Tentative Rulings for December 6, 2016 Departments 402, …€¦ · Tentative Rulings for December...

Tentative Rulings for December 6, 2016

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).)

16CECG01625 Rodriguez et al. v. Franzen Hill Corporation et al. (Dept. 402)

15CECG02892 Contreras v. Fresno County Employees’ Retirement

Association (Dept. 403)

15CECG03406 Delicious Foods, LLC v. Sunsweet Fresh Stone Fruit, LLC (Dept. 501)

16CECG00180 Alvaro Rivera-Diaz v. Alejandro Rivera-Diaz, et al. (Dept. 503)

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

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

15CECG01720 AMP Trucking, Inc. v. Narvinder Singh dba Prince Transport is

continued to Tuesday, December 13, 2016 at 3:30 p.m. in

Dept. 503.

16CECG01021 Ramirez v. Doe is continued to Wednesday, December 21,

2016 at 3:30 p.m. in Dept. 403.

________________________________________________________________

(Tentative Rulings begin at the next page)

Tentative Rulings for Department 402 (30)

Tentative Ruling

Re: Jesus Castaneda v. James Yates

Superior Court No. 15CECG01086

Hearing Date: Tuesday December 6, 2016 (Dept. 402)

Motion: Defendants’ Request for Judicial Notice (RJN)

Defendants’ DEMURRER

Tentative Ruling:

To GRANT request for judicial notice.

To SUSTAIN demurrer with leave to amend. Plaintiffs is granted 20 days leave to

amend.

Explanation:

California Rules of Court, rule 3.1300, subdivision (d)

All opposition papers must be served on the demurring party and filed with the

court at least 9 court days before the hearing.(Code Civ. Proc., § 1005, subd.

(b).) The Court may refuse to consider late-filed opposition. (Cal. Rules of Court,

rule 3.1300, subd. (d).)

Here, Plaintiff filed his opposition on November 28, 2016. However, hearing in this

matter is set for December 6, 2016. Therefore, Plaintiff’s opposition is late and will

not be considered.

Judicial Notice

A trial court may take judicial notice of the official records of a state agency.

(EH. Morrill Co. v. State California (1967) 65 Cal.2d 787, 794-795. ) Evidence Code

section 452 subdivision (c) thus permits the trial court to take judicial notice of the

records and files of state administrative boards. (Fowler v. Howell (1996) 42

Cal.App.4th 1746, 1750; Hagen v. Valley Hospital (1983) 147 Cal.App.3d 119, 125;

Chas L. Harney Inc. v. State of California (1963) 217 Cal.App.2d 77, 85-87; Harris v.

Alcoholic Bey. etc. (1965) 62 Cal.2d 589, 595; Oeth v. Mason (1967) 247

Cal.App.2d 805, 810; Dittus v. Cranston (1959) 53 Cal.2d 284, 286-287.) The

requirements for judicial notice are: (a) the matter be appropriately drawn to the

court's attention and (b) Plaintiff must have adequate notice and opportunity to

be heard. (Evid. Code § 453.) Defendant also has the burden of supplying the

court with sufficient, reliable and trustworthy sources of information about the

matter. (People v. Maxwell (1978) 78 Cal.App.3d 124, 130.)

Here, Defendant requests This Court take judicial notice of: (1) Plaintiff’s claim to

the California Victims Compensation and Government Claims Board (RJN, filed

11/8/16 Ex. 1); and (2) their rejection letter dated September 23, 2010. (Id. at Ex.

2.) First, the Court can take judicial notice of these documents because the

Victim’s Compensation and Government Claims Board is a state administrative

agency and the documents offered are the files of the Board. Next, the matters

were appropriately drawn to The Court's attention via motion (RJN filed 11/8/16),

giving Plaintiff adequate notice and opportunity to be heard. Last, Defendants

supplied This Court with sufficient, reliable and trustworthy sources of information

about the matter. Exhibit 1 bears Plaintiff’s signature and Exhibit 2 bears the State

of California logo and is prepared on the California Victim Compensation and

Government Claims Board official letterhead. Request for Judicial Notice

Granted.

Government Code section 945.6

Suits against a public entity or public employees are governed by the specific

statute of limitations provided in the Government Code, not the statute of

limitations that applies to private defendants. (Moore v. Twomey (2004) 120

Cal.App.4th 910, 913.) And according to Government Code section 945.6, suits

must be filed no later than six months after the date that a written rejection is

personally delivered or deposited in the mail. If no notice is given, an action must

be commenced within two years after accrual of the cause of action.

(Paniagua v. Orange County Fire Authority (2007) 149 Cal.App.4th 83, 88.)

Here, the Board rejected Plaintiff’s claim on September 23, 2010. (RJN, Ex. 2.)

Therefore, Plaintiff had until March 23, 2011 to file this Complaint. Plaintiff did not

however commence the instant action until February 2015, well past the six-

month statute of limitations. And even if Plaintiff never received notice,

September 23, 2012 marks the two –year statute of limitations. Demurrer

sustained.

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

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

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

and service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: JYH on 12/05/16

(Judge’s initials) (Date)

(20)

Tentative Ruling

Re: Palmer et al. v. MTC Financial, Inc., et al., Superior

Court Case No. 16CECG00946

Hearing Date: December 6, 2016 (Dept. 402)

Motion: Demurrers to Second Amended Complaint

Tentative Ruling:

Demurrer by MTC Financial, Inc. dba Trustee Corps (“MTC”) – To take off

calendar in light of MTC’s failure to comply with Code Civ. Proc. § 430.41(a).

Demurrer by Ditech Financial LLC (“Ditech”) and The Bank of New York

Mellon as Trustee for Certificateholders of the CWABS, lnc., Asset-Backed

Certificates, Series 2005-14 (“BNS”) – To overrule demurrers to the first and second

causes of action. To sustain demurrers to the third, fourth and fifth causes of

action without leave to amend. So I say sustain without leave to amend.

Defendants shall file their answer to the SAC within 10 days of service of the order

by the clerk.

Explanation:

Code Civ. Proc. § 430.41(a) requires the moving party to meet and confer

in person or by telephone. MTC’s counsel sent a letter detailing the deficiencies

in the SAC, but made no attempt to confer either in person or by telephone.

Accordingly, the demurrer will be taken off calendar.

The first and second causes of action are premised on two contentions:

(1) the Deed of Trust (“DOT”) is void because America’s Wholesale Lender

(“AWL”) was “not the actual funding lender to the Plaintiffs’ loan,” but acted as

the broker for a third party that funded the Plaintiffs’ Loan (SAC ¶¶ 5-11); (2)

“AWL was not a corporation organized under the state of New York, nor was

AWL authorized to do business in the state of California at any time mentioned

herein.” (Id. ¶ 4.) Based on these allegations, plaintiffs allege that the DOT and

subsequently recorded documents initiating nonjudicial foreclosure are void.

Ditech and BNY dispute these two allegations. First, they point out that

the DOT lists AWL as the lender. (RJN Exh. A.) However, this is not sufficient to

negate the allegations of the SAC, which acknowledges that the DOT listed AWL

as Lender (SAC ¶ 3), but that this is in fact not true. Plaintiffs identified that

practice as table funding, which violates Bus. & Prof. Code § 10234. In ruling on

a demurrer the court may take “judicial notice not only of the existence and

recordation of recorded documents but also of a variety of matters that can be

deduced from the documents [including] the parties, dates, and legal

consequences of a series of recorded documents relating to a real estate

transaction." (Fontenat v. Wells Fargo Bank, NA (2011) 198 Cal.App.4th 256, 265-

66.) Ditech and BNY want the court to take judicial notice of the truth of the

factual representations within the recorded document, which is not proper in

ruling on a demurrer. (Fremont Indemnity Co. v. Fremont General Corp. (2007)

148 Cal.App.4th 97, 113-114).

Ditech and BNY have failed to show that plaintiffs’ primary allegations

(that the DOT was void and unenforceable due to the table funding in violation

of Bus. & Prof. Code § 10234) lacks merit. Since the first and second causes of

action are premised in substantial part on this allegation, demurrers to those

causes of action should be overruled. The moving papers fail to show how this

contention would invalidate the first two causes of action if the note was

unsecured because the DOT is void.

Ditech and BNY contend that plaintiffs do not have standing to cancel

the DOD, Assignment, NOD or NOTS because they have not caused them serious

injury. Civil Code section 3412 provides that “[a] written instrument, in respect to

which there is a reasonable apprehension that if left outstanding it may cause

serious injury to a person against whom it is void or voidable, may, upon his

application, be so adjudged, and ordered to be delivered up or canceled.”

Section 3412 does not speak of serious injury that has already occurred. It speaks

of reasonable apprehension that it may cause serious injury. Enforcement of the

DOT would result in the loss of plaintiffs’ property, which would constitute a

serious injury.

Ditech and BNY also contend that the second cause of action must fail

because declaratory and injunctive relief are not individual causes of action, but

rather a form of equitable relief, citing Ball v. City and County of San Francisco

(2007)155 Cal.App.4th 65, 82 (2007). However, declaratory relief is commonly

pled as an independent cause of action. Demurring defendants cite to no

authority supporting the sustaining of a demurrer or dismissal of such a cause of

action on this ground.

The third cause of action for negligence alleges that Penal Code section

530.5 placed a duty on BNY and MTC to abstain from unlawfully utilizing plaintiffs’

private personal information, and that defendants breached that duty by

utilizing plaintiffs’ name, address, and mortgage account number in the unlawful

and unauthorized execution and filing of the NOD and NOTS. (SAC ¶¶ 51, 52.)

Penal Code section 530.5 provides: “(a) Every person who willfully obtains

personal identifying information, as defined in subdivision (b) of Section 530.55, of

another person, and uses that information for any unlawful purpose, including to

obtain, or attempt to obtain, credit, goods, services, real property, or medical

information without the consent of that person, is guilty of a public offense.”

“The elements of a cause of action for negligence are (1) a legal duty to

use reasonable care, (2) breach of that duty, and (3) proximate [or legal] cause

between the breach and (4) the plaintiff’s injury.” (Mendoza v. City of Los

Angeles (1998) 66 Cal.App.4th 1333, 1339 (citation omitted).)

It is unclear how the inclusion of plaintiffs’ name, address, and mortgage

account number in the NOD and NOTS is unlawful, even if the DOT, NOD and

NOTS were void. Plaintiffs do not allege any facts that establish that the

demurring defendants violated this statute or that this statute imposes any duty

on these defendants.

The fourth cause of action alleges that the recordation of the NOT and

NOTS defamed plaintiffs’ title to the property because each indicated that BNY

was a secured lender to plaintiffs’ loan and that MTC was the authorized trustee

of the DOT therein, which representations were false. (SAC ¶ 56.)

To establish a cause of action for slander of title, a plaintiff must show: (1)

publication, (2) falsity, (3) absence of privilege, and (4) disparagement of

another’s land which is relied upon by a third party and which results in a

pecuniary loss. (Appel v. Burma (1984) 159 Cal.App.3d 1209, 1215.) A plaintiff

must also specifically allege the particular financial loss caused by the false

statement. (Davis. v. Wood (1943) 61 Cal.App.3d 788, 798.)

Here, the allegedly defamatory statement was that BNY was the secured

lender to plaintiff’s loan and that MTC was the authorized trustee. Even if false, it

is unclear how these representations disparaged plaintiff’s title. Moreover, the

recording of notices of default and trustee sale are privileged acts upon which

no tort claim other than malicious prosecution may be based. (Civ. Code §

2924(d)(1) (“[t]he mailing, publication, and delivery of notices as required by this

section constitute privileged communications pursuant to Section 47.”); Kachlan

v. Markowitz (2008) 168 Cal.App.4th 316, 333.) Notices of sale and default are

required by Civil Code section 2924(a)(1) and (3), making those notices

privileged under Civil Code section 47. Finally, plaintiffs do not plead any facts

showing they suffered any financial loss as a result of a third party relying on the

alleged slander. (Appel, 159 Cal.App.3d at 1215.)

The fifth cause of action (mislabeled the fourth in the SAC) for violation of

the Fair Credit Reporting Act alleges that BNY falsely reported to the three major

credit agencies that they were a secured lender of the Note when the DOT was

in fact void. (SAC ¶ 63.) Also, all defendants “did falsely reported to the three

major credit reporting agencies … in that BNY falsely reported to the three CMS

that (1) that the DOT was valid; (2) that BNY was the beneficiary of the DOT; and

(3) that Defendants, and each of them, were authorized to execute the security

under the DOT through the foreclosure process under Civil Code section 2924, et.

seq. including filing of the NOD and NoTS.” (Ibid.)

An individual consumer cannot state a FCRA claim against a furnisher of

his credit information unless he passes through the "filtering mechanism....”-

“making the disputatious consumer notify a CRA and setting up the CRA to

receive notice of the investigation by the furnisher. (Nelson v. Chase Manhattan

Mortgage Corp. (9th Cir. 2002) 282 F.3d 1057, 1060.)

Plaintiffs do not allege that they directly notified any of the three major

CRAs that information provided to them by defendants was false; that

defendants were notified by a CRA regarding a dispute; or that defendants

failed to take the necessary steps under section USC § 1681s-2(b). Plaintiffs only

allege that on April 3, 2015, plaintiffs’ counsel sent a letter to the Loss Mitigation

Department of Green Tree Servicing, copying the three major CRAs, in which

plaintiffs’ counsel contended that the 2011 Assignment of the Deed of Trust was

void and as result requesting that Green Tree rescind the 2015 NOD. (See SAC ¶

68, Exh. D.) This single allegation is insufficient to state a claim under section

1681s-2(b).

In light of the fact that plaintiffs have not filed any opposition or

represented that they can cure these defects with further amendment to the

pleading, the demurrers will be sustained without leave to amend.

Pursuant to Cal. Rules of Court, Rule 3.1312(a) and Code Civ. Proc. §

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

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

constitute notice of the order.

Tentative Ruling

Issued By: JYH on 12/01/16


Tentative Rulings for Department 403 03

Tentative Ruling

Re: Almashan v. Geico Indemnity Company

Case No. 16 CE CG 02601

Hearing Date: December 6th, 2016 (Dept. 403)

Motion: Defendant’s Demurrer to Complaint

Tentative Ruling:

To sustain the demurrer to the entire complaint for failure to state facts

sufficient to constitute a cause of action and uncertainty, with leave to amend.

(Code Civ. Proc. § 430.10, subd.’s (e) and (f).) 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:

First of all, plaintiff has not alleged any facts showing that he was insured

by defendant Geico, or any other facts that indicate that Geico owed him a

duty under contract, statute, or other law. Plaintiff claims that Geico promised to

do a proper investigation of his claim regarding his stolen Honda Accord, but he

never alleges that Geico had issued an insurance policy to him regarding the

Honda. (Complaint, pp. 2:19 - 3:5, 5:12-18.) Without an insurer/insured

relationship between the parties, it is difficult to understand why Geico had any

legal duty to do anything with regard to plaintiff’s claimed loss. If Geico had no

legal duty to investigate or repay plaintiff for the loss of his car, then Geico

cannot be held liable under theories of negligence, breach of contract, fraud,

or unfair business practices.

Also, while plaintiff claims that Geico provided him with a “written

promissory [sic, promise]” to do an investigation and provide him with the results

of the investigation when it was completed (Complaint, p. 5:12-13), he does not

submit a copy of the alleged written contract or any details about what the

contract said, whether it was supported by adequate consideration, what his

duties under the contract were, or any other elements of a valid written

contract. At the very least, plaintiff needs to either attach and incorporate a

copy of the written contract to the complaint, allege its exact terms, or give a

summary of its material terms if he is seeking to allege a claim for breach of that

contract. (Bowden v. Robinson (1977) 67 Cal.App.3d 705, 718.)

Plaintiff also alleges that Geico’s agent made an oral promise to

represent him honestly and truthfully. (Complaint, p. 5:12-14.) However, plaintiff

does not explain how the alleged oral promise was enforceable as a contract,

as there is no consideration alleged and plaintiff does not state what his own

duties under the oral contract were, or that he performed those duties. (See

CACI 303; Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.)

It is also unclear how plaintiff was damaged from the alleged breach of

contract. While plaintiff alleges in conclusory fashion that he was damaged, he

does not explain how he was harmed by the alleged failure to investigate his

claim. It appears that defendant may have refused to pay him for the damage

to his car, but since there is no allegation of any insurer/insured relationship, it is

not clear why defendant even had a duty to pay plaintiff for damage to his car.

Nor does plaintiff explicitly allege that his car was actually damaged. In fact, he

alleges that the car was recovered (Complaint, p. 2-:24 - 25), so it is not clear

how he was damaged as a result of the alleged failure to investigate or cover

the claim. Thus, plaintiff has failed to allege a valid claim for breach of a written

or oral contract.

The negligence claim also fails for the same reasons. A claim for

negligence requires the plaintiff to allege (1) defendant owed a duty of care to

plaintiff, (2) breach of that duty by defendant, and (3) resulting damage to

plaintiff. (Castellon v. U.S. Bancorp (2013) 220 Cal.App.4th 994, 998.) Here, there

are no facts alleged that would show the existence of any legal duty owed by

Geico to plaintiff, nor has plaintiff alleged any facts showing that he was actually

damaged by any breach of duty by Geico. Plaintiff appears to be basing his

claim on some kind of contractual relationship between the parties that required

defendant to investigate his claim, but he fails to allege enough facts to show

what the contract was or what duties it imposed on the parties. If there was an

insurance contract between the parties, plaintiff needs to allege the existence of

the contract and attach a copy to the complaint, or at least allege its essential

terms and the duties it imposed on each party.

Also, plaintiff has not alleged any facts showing how the alleged failure to

investigate his claim caused him any actual harm. There is no allegation that

defendant failed to pay him for loss of the car. Indeed, plaintiff alleges that the

car was recovered by the police, so it is not even clear that plaintiff suffered any

harm from the temporary loss of the car. Therefore, plaintiff’s negligence claim is

vague and uncertain, as well as failing to allege any facts to state a cause of

action.

Next, the fraud claim is also uncertain and insufficiently alleged. First,

plaintiff alleges that defendant is guilty of “fraud and deceit by intentional

conversion”, which appears to conflate the separate torts of fraud and

conversion. Thus, the claim is uncertain, in that it is unclear whether plaintiff is

alleging fraud or conversion by defendant. However, the plaintiff does quote

Civil Code section 1709 regarding the elements of deceit, as well as Civil Code

section 1572 regarding fraud in the making of contracts, so it appears that he is

alleging a fraud claim, and not conversion.

In order to state a claim for promissory fraud, plaintiff must allege (1) a

misrepresentation of fact by defendant, (2) knowledge of falsity, (3) intent to

defraud, (4) justifiable reliance by plaintiff, and (5) resulting damages. (Service

by Medallion, Inc. v. Clorox Co. (1996) 44 Cal.App.4th 1807, 1816.) Every fact

supporting the elements of the claim must be specifically pleaded. (Ibid.) A

fraud claim cannot be salvaged by references to the general policy favoring the

liberal construction of pleadings. (Goldrich v. Natural Y Surgical Specialties, Inc.

(1994) 25 Cal.App.4th 772, 782.)

Here, plaintiff does not allege any facts at all showing that defendant

made any misrepresentations of fact to him, or that defendant knew the

representations were false when it made them and intended that he rely on

them. Nor does he allege facts showing how he reasonably relied on the

representations, or how he was harmed as a result.

The only representations plaintiff has alleged are the promises to

investigate the claim and inform plaintiff of the outcome of the investigation,

and to represent plaintiff honestly and truthfully. (Complaint, p. 5:12-14.) First,

these allegations are made several pages after the fraud claim, so they are not

properly incorporated into the fraud cause of action, which only incorporates

the previous allegations. In any event, plaintiff never alleges that defendant did

not intend to conduct a complete and proper investigation or inform him of the

results, or that defendant did not actually do what it promised to do. There is no

allegation that defendant promised plaintiff that there would be any specific

result from the investigation. For example, plaintiff does not allege that

defendant promised that it would pay his claim after the investigation was

complete. Nor does plaintiff allege that defendant intentionally failed to do a

proper investigation, and knew it was not going to do a complete investigation

at the time it made the promises.

Also, plaintiff does not allege how he justifiably relied on defendant’s

promises, or how he was harmed as a result of his reliance. While it appears that

defendant did not pay his claim, it is unclear that plaintiff suffered any harm due

to his reliance on defendant’s alleged promises. In fact, as discussed above, it is

not even clear that plaintiff suffered any harm at all, since he alleges that his car

was located after the police were able to track it with the GPS system. He never

alleges that the car was damaged when it was returned to him. Thus, plaintiff’s

fraud claim is insufficiently alleged and uncertain.

Finally, the claim for unfair business practices in violation of Business and

Professions Code section 17200 is insufficiently alleged and uncertain as well. “As

used in this chapter, unfair competition shall mean and include any unlawful,

unfair or fraudulent business act or practice and unfair, deceptive, untrue or

misleading advertising and any act prohibited by Chapter 1 (commencing with

Section 17500) of Part 3 of Division 7 of the Business and Professions Code.” (Bus.

& Prof. Code, § 17200.) “Any person who engages, has engaged, or proposes to

engage in unfair competition may be enjoined in any court of competent

jurisdiction.” (Bus. & Prof. Code, § 17203.)

“This language is intended to protect consumers as well as business

competitors; its prohibitory reach is not limited to deceptive or fraudulent

conduct but extends to any unlawful business conduct.” (Perdue v. Crocker

National Bank (1985) 38 Cal.3d 913, 929, internal citations omitted.)

“A plaintiff alleging unfair business practices under these statutes must

state with reasonable particularity the facts supporting the statutory elements of

the violation.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 619,

internal citations omitted.) In addition, the plaintiff must also allege the particular

section of the statutory scheme that was violated. (Ibid.)

Also, to have standing to assert a claim under California's Unfair

Competition Law, the plaintiff must (1) establish a loss or deprivation of money or

property sufficient to qualify as injury in fact, that is, economic injury, and (2)

show that economic injury was the result of, that is, caused by, the unfair business

practice or false advertising that is the gravamen of the claim. (Cornejo v.

Ocwen Loan Servicing, LLC, E.D.Cal.2015, 151 F.Supp.3d 1102.)

Here, the plaintiff’s allegations supporting the unfair business practices

claim are extremely vague and confusing. After quoting verbatim from section

17203, plaintiff alleges that “Allstate is a ‘person’ as defined by the statute.”

(Complaint, p. 6, lines 8-9.) Plaintiff also alleges that defendants’ conduct

constitutes “unfair competition” under Business and Professions Code section

17200. (Id. at p. 6, lines 11-13.) He then alleges that “As a result of the conduct

of defendants, and each of them, Allstate has suffered the loss of substantial

amounts of money. Under California Business and Professions Code section

17204, Allstate is a ‘person who has suffered injury in fact and has lost money or

property as a result of such unfair competition.’ Accordingly, Allstate asks this

court to issue orders and enter judgment in favor of Allstate and against

defendants as hereinafter set forth.” (Id. at p. 6, liners 14-18.)

The allegations cited above are so vague and confusing as to render the

cause of action uncertain. First of all, “Allstate” is not a party to the action, so it is

unclear why plaintiff has alleged that “Allstate” was harmed. Also, even if

Allstate had been a party to the case, plaintiff would not have standing to assert

any harm to Allstate to support his own claim for unfair business practices.

Plaintiff needs to allege that defendants’ business practices caused actual

economic harm to him, not to some other party. Thus, the references to

“Allstate” make the claim uncertain, as well as failing to demonstrate any actual

harm to plaintiff.

Even assuming that plaintiff meant to allege that he was harmed by

defendants’ practices, plaintiff has failed to allege any facts showing that he

suffered any actual harm from the alleged conduct. As previously discussed,

plaintiff has not alleged enough facts to support his fraud, negligence or breach

of contract claims. For example, he never alleges that defendant made false

representations to him with knowledge of their falsity or the intent to deceive

him. Nor has he alleged facts showing that he suffered actual harm from the

allegedly deceptive statements or broken promises. It is not even clearly alleged

that defendant was his insurer, or that it had a duty under contract or law to pay

his claim. Indeed, plaintiff does not even allege that he suffered any permanent

loss of his property, since he admits that his car was recovered and he does not

state that the car was damaged.

Therefore, plaintiff has failed to allege facts showing that defendants’

conduct constituted unfair, unlawful, or fraudulent business practices, or that

their practices caused him any actual economic harm. As a result, the court

intends to sustain the demurrer to the fourth cause of action for failure to state

facts sufficient constitute a cause of action and uncertainty.

However, the court intends to grant leave to amend all of the causes of

action, since it is possible that plaintiff might be able to allege valid claims if

given a chance to do so.

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

necessary. The minute order adopting this tentative ruling will serve as the order

of the court and service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: KCK on 12/05/16


03

Tentative Ruling

Re: Alvarez v. California Mentor Family Home Agency, LLC

Case No. 15 CE CG 00128

Hearing Date: December 6th, 2016 (Dept. 403)

Motion: Defendant Post’s Motion to File Portions of Petition, and

Portions of Any Order Thereon, Under Seal

Tentative Ruling:

To deny the defendant’s motion to file portions of the petition to

compromise Adrian Alvarez, Sr.’s petition to compromise dependent adult claim,

and portions of any order thereon, under seal. (Cal. Rules of Court, Rules 2.550,

2551.)

Explanation:

“Unless confidentiality is required by law, court records are presumed to

be open.” (Cal. Rules of Court, Rule 2.550(c).) Also, “The court must not permit

a record to be filed under seal based solely on the agreement or stipulation of

the parties.” (Cal. Rules of Court, Rule 2.551, subd. (a).) In addition, the motion

to seal must contain facts sufficient to show an overriding interest in sealing the

records that outweighs the public interest in keeping court records open. (Cal.

Rules of Court, Rule 2.550, subd. (e)(1)(A).)

In the present case, the defendant cites no facts to justify sealing the

documents, other than the fact that parties agreed to keep the settlement

confidential to support the request to seal the documents and her vague

concern that disclosing the amount of her settlement payment will somehow

prevent her from finding future employment or business. While defendant claims

that there is a strong public interest in allowing parties to settle, and that the

parties have expressed a desire to keep the settlement terms confidential, this

does not equate to an overriding interest that would overcome the public

interest in keeping court records open. Defendant never explains why it is so

important for the settlement terms to remain confidential, or why the parties’

interest in confidentiality outweighs the public interest in openness in court

records. Simply adding a confidentiality clause into a settlement agreement is

not enough to justify granting an order sealing the petition and order; otherwise,

parties could always seal court records relating to a settlement simply by adding

a confidentiality clause to the settlement. This would violate the language of

Rule 2.551, subdivision (a).

In addition, defendant’s concern that disclosing the amount of the

settlement would affect her future employment or business prospects is very

vaguely expressed. Defendant submits no facts that would support her claimed

concern. It is not clear why disclosing the amount of the settlement would make

it harder for her to find work or conduct some other business. Whether the

amount of the settlement and her portion of it is disclosed or not, the fact that

defendant settled the plaintiff’s claim against her will still be public record, and

third parties may draw inferences from the fact that defendant settled even if

they do not know the details of the settlement.

Defendant may be concerned that there will be an implication that she

has a greater share of liability simply based on her percentage of the settlement

payment. However, it does not appear that this concern is enough to constitute

the type of overriding interest that would justify sealing the portions of the

settlement, petition, and order relating to the amounts each party will pay.

Defendants in general may have various reasons for wishing to keep the terms of

the settlement confidential, including not wanting to harm their future business

and employment prospects, which is why settlements are usually confidential.

Yet these concerns are generally not sufficient to warrant sealing a settlement

that is submitted as part of a minor’s compromise petition. Indeed, it is very rare

that such petitions or the related settlements are ever sealed by the court.

Again, if the court allows this settlement to be even partially sealed based simply

on the parties’ agreement, other parties could use the same rationale to seal

their settlements too even if there are no other overriding interests in keeping the

settlements confidential. This would be inconsistent with the intent of Rule 2.551,

subdivision (c).

Therefore, as defendant has not presented any facts showing the

existence of a true overriding interest in keeping the settlement, petition and

order confidential, the court intends to deny the motion to seal the petition and

order.

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



Tentative Ruling



(24) Tentative Ruling

Re: Boparai v. Nieto



Motion: Defendant/Cross-Complainant Richard Nieto’s Motion for

Attorney Fees and Costs

Tentative Ruling:

To grant, allowing attorney fees to defendant/cross-complainant Richard

Nieto in the amount of $27,950, and costs in the amount of $459.61. (Code Civ.

Proc. §§ 1032, 1021.9, 1033.5.)

Moving party is directed to submit a judgment in conformity with the

court’s Statement of Decision issued on October 11, 2016, which includes the

fees and costs awarded on this motion. (Code Civ. Proc. § 664; Cal. Rules of

Court, Rule 3.1590.)

Explanation:

Moving party has already been found to be the prevailing party. No

opposition to the motion or the memorandum of costs has been filed, and the

fees requested are reasonable.

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 will constitute notice of the order.

Tentative Ruling



Tentative Rulings for Department 501 (30)

Tentative Ruling

Re: Stephanie Carr v. Roderick Bowie

Superior Court No. 16CECG00413

Hearing Date: Tuesday December 6, 2016 (Dept. 501)

Motion: Plaintiff Stephanie Carr’s Request for Leave to Amend

Tentative Ruling:

To Grant.

Explanation:

A defendant may be sued under a fictitious name, and the complaint may be

amended, even after the statute of limitations has run, to substitute the

defendant's true name as long as recovery is based upon “the same general

facts” as those asserted in the original complaint. (Wennerholm v. Stanford

University School of Medicine (1942) 20 Cal.2d 713, 718.)

Here, recovery in the Second Amended Complaint is based upon “the same

general facts” as those previously asserted: Plaintiff was injured in a car accident

that occurred on March 12, 2014. (FAC p5 and Notice filed 10/24/16, Ex. A p4

MV-1.) Defendant Bowie was driving one of the vehicles that hit her car. (FAC p5

MV-2 and Notice filed 10/24/16, Ex. A p4 MV-2.) Therefore, amendment is proper.

Motion Granted.





Tentative Ruling

Issued By: MWS on 12/05/16



Re: Mason v. Lion Raisins, Inc.

Case No. 15CECG00733


Motion: By Defendant for Summary Judgment or, alternatively,

Summary Adjudication.

Tentative Ruling:

To deny the motion.

Explanation:

The following facts are from Plaintiff’s opposition separate statement and

are undisputed unless otherwise noted:

Plaintiff worked for 55 days for Defendant as a Plant Mechanic from

March 5, 2012 through May 18, 2012 until he quit. (UMF, No. 1.) During his

employment, Plaintiff’s immediate supervisor was Anthony Rangbar. (UMF, No. 2.)

Defendant claims that Plaintiff and other Plant Mechanics were subject to

the CBA. (UMF No.3.) Plaintiff disputes this on the grounds that the supporting

declaration lacks foundation and personal knowledge. (UMF No. 3, objections.)

Plaintiff also argues that the attached CBA was not signed until August, 2013 and

that the earliest schedules in the CBA show it reaching March of 2013. According

to Plaintiff, his wages were never deducted for fees or dues. (UMF No. 3.)

Plaintiff never brought any grievance to the attention of his supervisor.

(UMF No. 4.) The CBA provides a procedure for responding to grievances, and

no grievance ever filed by Plaintiff made its way through this procedure (Plaintiff

objects to these facts on the grounds that there is no evidence the CBA was in

force and effect during Plaintiff’s employment). (UMF Nos. 5-7, 10-13.)

The plant superintendent was Raul Gomez, who also never received a

grievance from, or on behalf of, Plaintiff. (UMF No. 8-9.)

DISCUSSION

To obtain summary judgment, “all a defendant needs to do is to show

that the plaintiff cannot establish at least one element of the cause of action.”

Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853. If a defendant makes

this showing, the burden shifts to the plaintiff to demonstrate that one or more

material facts exist as to the cause of action or as to a defense to a cause of

action. (CCP § 437(c), subdivision(p)(2).)

In a summary judgment motion, the pleadings determine the scope of

relevant issues. (Nieto v. Blue Shield of Calif. Life & Health Ins. Co. (2010) 181

Cal.App.4th 60, 74.) A defendant need only “negate plaintiff's theories of liability

as alleged in the complaint; that is, a moving party need not refute liability on

some theoretical possibility not included in the pleadings.” (Hutton v. Fidelity

Nat’l Title Co. (2013) 213 Cal.App.4th 486, 493 (emphasis in original).)

Nevertheless, the burden is on the moving party to make a prima facie

showing that there are there are no triable issues of material fact; only if the

moving party carries this burden, it causes a shift and the opposing party is then

subject to its own burden of production to show that a material fact exists.

(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850-51.)

The court examines affidavits, declarations and deposition testimony as

set forth by the parties, where applicable. (DeSuza v. Andersack (1976) 63

Cal.App.3d 694, 698.) Any doubts about the propriety of summary judgment are

to be resolved in favor of the opposing party. (Yanowitz v. L’Oreal USA, Inc.

(2003) 106 Cal.App.4th 1036, 1050.)

A court will “liberally construe plaintiff's evidentiary submissions and strictly

scrutinize defendant's own evidence, in order to resolve any evidentiary doubts

or ambiguities in plaintiff's favor.” (Johnson v. American Standard, Inc. (2008) 43

Cal.4th 56, 64.)

Furthermore, the moving party must identify the issues and cite specific

evidence showing there is no controversy in the separate statement; “If it is not

set forth in the separate statement, it does not exist.” (United Community Church

v. Garcin (1991) 231 Cal.App.3d 327, 337 (emphasis in original).)

Here, Defendant initially contends that the Plaintiff’s claims are subject to

a grievance procedure contained in a Collective Bargaining Agreement

(“CBA”). However, Defendant has not attached a CBA applicable at the time of

Plaintiff’s employment with Defendant. The undisputed facts indicate that

Plaintiff was employed by Defendant between March and May 2012. The terms

of the CBA appear to apply to the period from August 7, 2013 through March 31,

2017.

The only other evidence that Plaintiff may have been subject to the CBA

comes in the form of the declaration of his immediate supervisor, Rangbar.

However, Rangbar’s declaration does not contain any foundation for this

knowledge.

As a result, Defendant has not borne its burden of production by

producing evidence to show that Plaintiff was subject to a grievance procedure

contained in the CBA. On this basis, the motion is denied.

However, even if the CBA applied, Defendant has not borne its burden of

proof on the main issue of whether Plaintiff has waived his right to pursue these

statutory claims.

Plaintiff makes the argument that a collective bargaining agreement must

contain a “clear and unmistakable” waiver that a statutory claim is subject to

arbitration. (Wright v. Universal Maritime Service Corp. (1998) 525 U.S. 70, 79;

Vasquez v. Superior Court (2000) 80 Cal.App.4th 430, 434.) In Vasquez, the Court

rejected a finding of wavier pursuant to a CBA agreement similar to the one

presented by Defendant in the present case. (Id. at 433-36.) Indeed, in Vasquez,

the grievance procedure was arguably closer to a waiver, insofar as that

procedure terminated in binding arbitration. (Id.)

“The [collective bargaining agreement] must contain a clear and

unmistakable provision under which the employees agree to submit to

arbitration all [state and federal statutory] causes of action arising out of

their employment. A waiver in a collective bargaining agreement may

also be sufficiently clear if broad, nonspecific language in the arbitration

clause is coupled with an explicit incorporation of statutory

antidiscrimination requirements elsewhere in the contract. If another

provision, like a nondiscrimination clause, makes it unmistakably clear that

the discrimination statutes at issue are part of the agreement, employees

will be bound to arbitrate their [state and federal statutory] claims. A

simple agreement not to engage in acts violative of a particular statute

will not suffice; the agreement must establish the intent of the parties to

incorporate ‘in their entirety’ the discrimination statutes.”

(Id. at 435 (internal citations and quotations omitted).)

Here, the CBA does not contain any explicit waiver of an employee’s right to

pursue statutory remedies, as required in Wright and Vasquez. Therefore,

pursuant to Wright and Vasquez, the Defendant has met its burden of

production to show waiver, and for this additional reason the motion is denied.

Objections

The Second and Fourth objections to the declaration of Rangbar on the

grounds of foundation and personal knowledge are sustained. The objections to

the declaration of Rangbar are sustained to the extent that it claims the Plaintiff

was bound by the CBA or otherwise describes the terms of the CBA; the CBA

speaks for itself. The remaining objections filed by Plaintiff go to the weight of the

evidence, not its admissibility. Therefore, the remaining objections are overruled.

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

of Civil Procedure section 1019.5, subdivision (a), no further written order is



Tentative Ruling

Issued By: MWS on 12/05/16


Tentative Rulings for Department 502 (29) Tentative Ruling

Re: Ignacio Ortega, et al. v. KM546 Partners, LP, et al., and

related cross-actions

Superior Court Case No. 12CECG03888


Motions: Cross-Complainant AIG Specialty Insurance’s motion for

determination of good faith settlement

Tentative Ruling:

To grant the motion, finding that the settlement between Plaintiffs and

Cross-Complainant AIG Specialty Insurance is in good faith.

To sign the proposed order, and take the hearing off calendar.

If oral argument is requested, the hearing will go forward on December

7, 2016 at 3:30 p.m. in Dept. 502.

Explanation:

In considering a motion pursuant to section 877.6, the court balances the

statute’s goals of (1) encouragement of settlements, and (2) equitable sharing of

costs among the parties at fault. (Tech-Bilt v. Woodward-Clyde & Assoc. (1985)

38 Cal.3d 488, 494.) The standard is whether the amount of the settlement is

within the “reasonable range” or “ballpark” of the settling tortfeasor’s

proportionate share of comparative liability for the plaintiff’s injuries. (Id. at. p.

499.)

Where a determination for good faith settlement is uncontested, the

moving party’s burden is slight. If the nonsettling defendants do not oppose the

motion on the issue of good faith, only a “barebones” showing is required; such a

motion should set forth the grounds of good faith and be accompanied by a

declaration providing a brief background of the case. (City of Grand Terrace v.

Superior Court (1987) 192 Cal.App.3d 1251, 1261.) In other words, where the

motion is unopposed, the court need not go through the Tech-Bilt factors. (Ibid.;

see Tech-Bilt, supra, 38 Cal.3d at p. 499)

The instant motion is unopposed. Cross-Complainant AIG has made the

required barebones showing. Accordingly, the motion is granted. The Court will

sign the proposed order.





Tentative Ruling

Issued By: DSB on 12/02/16


(6)

Tentative Ruling

Re: HAT Holdings I LLC v. Vital Energy Solutions, LLC

Superior Court Case No.: 16CECG02918


Motions: (1) Motion by Petitioner HAT Holdings I LLC for award

of attorney’s fees and costs;

(2) Motion by Petitioner HAT Holdings I LLC to add

Jason Jackson as a respondent

Tentative Ruling:

To grant the motion for attorney’s fees and costs against Defendant Vital

Energy Solutions, LLC, in the amount of $528.44 in costs, and $5,604.50 in

attorney’s fees; and to deny the motion to add Jason Jackson as a respondent,

without prejudice. Any new hearing date must be obtained pursuant to The

Superior Court of Fresno County, Local Rules, rule 2.2.1.

If oral argument is requested, the hearing will go forward on December

7, 2016 at 3:30 p.m. in Dept. 502.

Explanation:

While the statutory scheme contemplates and permits service of the

petition via certified mail, return receipt requested (Civ. Code, § 8486), so that

service of a subsequent motion for attorney’s fees and costs would also be

permissible via certified mail, return receipt requested, a motion to add a

judgment debtor to the judgment is not contained within that statutory scheme.

Jason Jackson, who was never even been served with the original petition,

should be served in the same manner as service of summons, both with the

original petition and the motion to add him as a judgment debtor to the

judgment, for the new hearing date, so as to comport with principles of due

process.





Tentative Ruling

Issued By: DSB on 12/02/16


Tentative Rulings for Department 503


Re: Porter v. Community Regional Medical Center (“CRMC”)


Hearing Date: December 6, 2016 (Department 503)

Motion: Demurrer by defendant Fresno Community Hospital and

Medical Center dba Community Regional Medical Center

to Third Amended Complaint

Demurrer by defendant University Neurology Associates et.

al. to Third Amended

Complaint.

Tentative Ruling:

To sustain without leave.

Explanation:

No opposition has been served in response to either of the demurrers,

and the arguments are well-taken. Under the facts alleged, reasonable

reliance on the June, 2011 letter cannot be found as the plaintiffs decided to

get a second opinion from a physician in Bakersfield and follow that physician’s

advice to forego monitoring for regrowth of the tumor.

Pursuant to Code of Civil Procedure section 1019.5, subdivision (a), no

further written order is necessary. The minute order adopting this tentative ruling

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

of the order.

Tentative Ruling

Issued By: A.M. Simpson on 12/05/16



Re: Porter v. Community Regional Medical Center (“CRMC”)


Hearing Date: December 6, 2016 (Department 503)

Motions: by University Neurosurgery Associates et al. to compel further

responses by plaintiff Johanna Porter to Special

Interrogatories, Set No. One.

by University Neurosurgery Associates et al. to compel

further responses by plaintiff Daniel Porter to Special


by University Neurosurgery Associates et al. to compel further

responses by plaintiff Johanna Porter to Form Interrogatories,

Set No. One.


further responses by plaintiff Daniel Porter to Form



further responses by plaintiff Kyle Porter to Form



further responses by plaintiff Kyle Porter to Special


by University Neurosurgery Associates et al. to compel further

responses by plaintiff Kyle Porter to Document Demand, Set

No. One.

Tentative Ruling:

Special Interrogatories to Plaintiff Parents:

All objections to Interrogatories 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 18, 19, 20, 21, 22, 24,

30, 31, and 34 are overruled, and a further response without objections, including

the preliminary statement, is ordered.

For Interrogatory No. 9, to order a further response without objections, but to

define “incident” as the recurrence of the brain tumor and Kyle Porter’s

subsequent deterioration.

For Interrogatory No. 13, the Court orders a further response without objections

with this instruction: said interrogatory is interpreted to seek only information for

persons who made such statements prior to plaintiffs’ contact with counsel.

For Interrogatory No. 14, the Court orders a further response without objections

with this instruction: the term “your” in said interrogatory is to be read as “Kyle

Porter.”

The motion is denied as to Interrogatory No. 17, on the basis of burden as Form

Interrogatories Nos. 50.1 through 50.6 were also served and seek the same

information.

For Interrogatories Nos. 32, 33, and 35, a further response without objection is

ordered with this exception: an objection on the basis of attorney/client

privilege may be posed to No. 35, if applicable.

Sanctions are awarded, payable by counsel for plaintiff only, but reduced to

$740.00 total for both motions together. The further verified responses are to be

served by January 9, 2017.

Form Interrogatories to Plaintiff Parents:

To overrule all objections and order a further verified response for Form

Interrogatories Nos. 2.11, 4.1, 6.4, 6.5, 6.7, 9.1, 12.2, 12.3, 12.6, 14.1, 14.2, and 50.1

through 50.6. To sustain the overbreadth objection to Form Interrogatory 12.1

and deny the motion as to it. To sustain the vagueness objection to Form

Interrogatory No. 12.5.

To grant sanctions, but lower amount to $500.00, payable by plaintiffs’ counsel

alone, total, for both motions. The further verified responses are to be served by

January 9, 2017.

Discovery to Kyle Porter:

The motion is granted now that there is a guardian ad litem, but sanctions

are denied. The guardian is to provide verified responses by January 9, 2017.

Explanation:

Special Interrogatories to Plaintiff Parents

The special and form interrogatories are the same for each of the parents

in this case.

Each plaintiff posed a universal objection on the basis of 1) the

attorney/client privilege, 2) work product, 3) financial information, 4) relevancy,

and 5) burden. The prefatory language where such general objections appear

is to be omitted from the further responses.

The attorney/client privilege does not apply, as there is no request for the

content of an attorney/client communication, with the possible exception of

Interrogatory No. 35. The attorney-client privilege “only protects disclosure of

communications; it does not protect disclosure of underlying facts by those who

communicated with the attorney." Continental Ins. Co. v. Superior Court (1995)

32 Cal. App. 4th 94, 117. Plaintiff’s case of Sheets v. Superior Court (1967) 257

Cal. App. 2d 1 points out the difference between asking for specifics told to an

attorney by an expert and an interrogatory asking for all facts underlying a

position asserted by a party. The former is forbidden and the latter is fine.

See also Chodos v. Superior Court (1963) 215 Cal. App. 2d 318, 323,

requiring that an expert be consulted so that a party could answer a request for

admission and reveal whether or not they would dispute a given fact at trial.

Work product cannot generally be used to avoid an answer either. Code

of Civil Procedure section 2030.010(b) states: “An interrogatory may relate to

whether another party is making a certain contention, or to the facts, witnesses,

and writings on which a contention is based. An interrogatory is not

objectionable because an answer to it involves an opinion or contention that

relates to fact or the application of law to fact, or would be based on

information obtained or legal theories developed in anticipation of litigation or in

preparation for trial.” Such doctrine may be applicable to Interrogatory No. 13,

which is restricted as noted above for this reason, but not to the others.

Moving party references Civil Code section 3333.1 as a basis for seeking

information sought in Interrogatories Nos. 10, 11, and 12 as to collateral sources.

Subsection (a) of same states:

“In the event the defendant so elects, in an action for personal

injury against a health care provider based upon professional

negligence, he may introduce evidence of any amount payable

as a benefit to the plaintiff as a result of the personal injury pursuant

to the United States Social Security Act, any state or federal income

disability or worker’s compensation act, any health, sickness or

income-disability insurance, accident insurance that provides

health benefits or income-disability coverage, and any contract or

agreement of any group, organization, partnership, or corporation

to provide, pay for, or reimburse the cost of medical, hospital,

dental, or other health care services. Where the defendant elects

to introduce such evidence, the plaintiff may introduce evidence

of any amount which the plaintiff has paid or contributed to secure

his right to any insurance benefits concerning which the defendant

has introduced evidence.”

Where information is admissible at trial, it is discoverable. Glenfed

Development Corp. v. Superior Court (1997) 53 Cal. App. 4th 1113, 1117-1118.

The above statute disposes of the claim of financial privacy where collateral

sources are at issue.

There is also the fact that the plaintiffs have placed some financial

information in question by filing the lawsuit, effecting a waiver for matters at issue

herein. The pleadings show that they received specific advice from the doctor

they state they trusted for careful future monitoring of Kyle for recurrence of the

tumor. However, they decided to instead follow another physician’s advice that

no further monitoring was needed. Perhaps their insurance was expensive, had

a high deductible, or coverage became less generous. Insurance could provide

proof of a financial motive to go with the “no more monitoring” opinion.

Financial bias to take a certain action or testify a certain way is admissible

evidence. People v. Easley (1988) 46 Cal. 3d 712; Calvert v. State Bar (1991) 54

Cal. 3d 765, 778.

Plaintiff attempts to argue that Code of Civil Procedure section 2017.210

limits discovery of insurance information. The language of the statute contains

no limiting words, however. It instead makes clear that insurance information is

discoverable even if it could not be admitted at trial. “[F]or discovery purposes,

information is relevant to the ‘subject matter’ of an action if the information

might reasonably assist a party in evaluating the case, preparing for trial, or

facilitating settlement.” Jessen v. Hartford Casualty Ins. Co. (5th Dist. 2003) 111

Cal. App. 4th 698, 711-712. It can be helpful in terms of settlement to know what

expenses are not paid for or covered by insurance, as one who was rendered

destitute may need more to settle, or could be more willing to settle due to the

financial burden. If a person is covered by Medicare or Medi-cal, that may

make a structured settlement favored, to protect the person’s ability to continue

to collect from such sources, and to avoid the need to make reimbursement out

of a lump sum. Collateral source information is discoverable.

Plaintiffs also claim burden. However, to show objectionable burden

requires a declaration from the responding party specifying the tasks required to

be completed to answer, and the number of hours required to do those tasks.

Generalization does not suffice. "Many hundreds of man-hours" and

"approximately nine months" "is conclusionary and not factual in character,” and

insufficient to show burden. Coriell v. Superior Court (1974) 39 Cal. App. 3d 487,

493. See also Perkins v. Superior Court (1981) 118 Cal. App. 3d 761, 764.

No such declaration is offered here, and the burden objection must

therefore be overruled as to all but for Interrogatory No. 17, which can be

assessed as burdensome on its face due to the concurrent use of Form

Interrogatories 50.1 through 50.6, which ask for essentially the same information.

Each side is entitled to what the other side knows about the various

communications sought, so they each have a complete set of the facts as the

other side sees it. "California's pretrial discovery procedures are designed to

minimize the opportunities for fabrication and forgetfulness, and to eliminate the

need for guesswork about the other side's evidence, with all doubts about

discoverability resolved in favor of discovery." Glenfed Development Corp. v.

Superior Court, supra, 53 Cal. App. 4th 1113, 1119.

Where an Interrogatory asks for facts, witnesses, or documents that

support the responding party’s contentions, it is highly unlikely that responding

party’s theory of their case is “equally available” to the propounding party

absent discovery.

The Court does find that the apparent request for the health information

of each parent is overbroad, and rules that the term “your” in Interrogatory No.

14 be read as “Kyle Porter.” A patient filing a lawsuit over medical treatment or

the lack thereof waives the patient-physician privilege via the patient-litigant

exception. In re Lifschutz (1970) 2 Cal. 3d 415.

The objection that certain Interrogatories require adoption of an

assumption is improper, as the answering party can simply deny the assumption

as part of their answer. Further, see West Pico v. Superior Court, supra, 56 Cal.

2d 407, 421:

“Its objections are that the question assumes a fact not in

evidence, and that it is compound in form. The interrogatory makes

no such assumption, and it is not compound. But even if both

objections were meritorious, that would not be grounds for

objection to an interrogatory propounded under the provisions of

section 2030. As was pointed out in the Greyhound case, supra,

objections such as here raised to the form of the question are for

the protection of a witness on oral examination. When, as here, the

answer is to be made in writing, after due time for deliberation and

consultation with counsel, an answer may be framed which avoids

the pitfalls, if any, inherent in the form of the question. Pacific, in an

attempt to avoid this conclusion, claims that the rules for

interrogatories propounded under section 2030 are the same as

those for the taking of oral depositions. This is not so.”

The case cited by plaintiff, Fairfield v. Superior Court (1966) 246 Cal. App.

2d 116 on the issue of sanctions was decided at a time where sanctions could

not be imposed in discovery motion absent a finding of a willful failure to answer.

That is no longer the case, as since 1986, the standard has been making or

opposition a motion without substantial justification, and absent such justification,

sanctions are mandatory.

Code of Civil Procedure section 2030.300(3) now permits a party to seek a

specific ruling that an objection is without merit or too general. Subsection (d) of

same states:

“(d) The court shall impose a monetary sanction under Chapter 7

(commencing with Section 2023.010) against any party, person, or

attorney who unsuccessfully makes or opposes a motion to compel

a further response to interrogatories, unless it finds that the one

subject to the sanction acted with substantial justification or that

other circumstances make the imposition of the sanction unjust.”

Fairfield is not good law for the proposition cited.

Some sanctions are appropriate, as much of the objections were not

warranted or supported where such support is required. However, the amount

sought includes work for which sanctions are not available. A party is required to

review responses, meet and confer, and seek a pre-trial discovery conference

whether or not a motion is ever filed. The opposition here was relatively short as

well.

Form Interrogatories to Plaintiff Parents:

The above also applies to the responses given by the parents to the form

interrogatories. While work product might be a proper objection to Form

Interrogatories 12.2, 12.3, 12.5, and 12.6 (Coito v. Superior Court (2012) 54 Cal. 4th

480), the law requires that an assertion of work product be substantiated by

declaration. "It is not enough that the objecting party merely state that

something is protected by a particular privilege. The burden is upon him to

prove the preliminary facts to show that the privilege applies." Mahoney v.

Superior Court (1983) 142 Cal. App. 3d 937, 941. "It is hornbook law that a person

claiming a privilege bears the burden of proving he is entitled to the privilege."

Delany v. Superior Court (1990) 50 Cal. 3d 785, 807. As no such declaration was

submitted, the work product objection is not supported and cannot be

sustained.

A query seeking identification of any witness to the INCIDENT, as defined

by the Judicial Council, is too overbroad in this context, constituting an

“omnibus” query that fails to particularize the information sought so as to permit

a full answer. See, e.g., Flora Crane v. Superior Court (1965) 234 Cal. App. 2d

767, 786, talking about how a demand for information can be so overbroad as

to constitute an “omnibus” discovery request, and therefore be inappropriate.

The request for information about any diagram, reproduction, or model of

any place or thing, Form Interrogatory No. 12.5, is too vague in this context, and

such objection is sustained.

Discovery to Kyle Porter

Defendants did not oppose the guardian ad litem application, which was

granted on October 26, 2016, on the basis that Kyle Porter lacked capacity to

make his own decisions.

Those who lack capacity to make decisions also lack capacity to defend

an action or to sue. See Weil & Brown, Civil Procedure Before Trial (TRG 2008)

section 2:83. Discovery answers by an un-appointed guardian would also be

ineffective. But now that there is a guardian, answers need be provided.

As there was no one with capacity to answer the discovery before the

guardian appointment, sanctions are not appropriate. The lack of capacity on

the part of Kyle furnishes good cause for failure to give a substantive response.

Pursuant to Code of Civil Procedure section 1019.5, subdivision (a), no further

written order is necessary. The minute order adopting this tentative ruling will

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

the order.

Tentative Ruling



(6)

Tentative Ruling

Re: Arana v. Tarlton and Son Inc.

Superior Court Case No.: 16CECG03119


Motion: Petition [motion] by Defendant Tarlton and Son, Inc.,

to compel arbitration and stay this matter pending

resolution of the arbitration

Tentative Ruling:

To grant, and to stay the matter pending resolution of the arbitration.

The January 23, 2017, case management conference is vacated.

Explanation:

The Court finds that an agreement to arbitrate the controversy exists.

(Code Civ. Proc., § 1281.2.)





Tentative Ruling




Re: Woolley v. WG Wells, et al.

Case No. 15CECG00610


Motion: By Proposed Intervenor General Casualty Co. of Wi. to

Intervene on behalf of Defendants James C. Wells and

Richard Hansen

Tentative Ruling:

To continue the motion to 3:30 p.m. on Tuesday, December 20, 2016 in

Department 503 unless the Proposed Intervenor can produce evidence of

insurance relevant to this case. Proposed Intervenor shall provide some evidence

of insurance coverage for Defendants to the Court on or before December 12th,

2016. Any objection to such evidence shall be provided to the Court by

December 16th, 2016.

Explanation:

[The Court notes that, as of December 2, 2016, no opposition appears in

the Court’s files.]

This lawsuit was filed regarding a motor vehicle accident in Fresno County.

Defendants James C. Wells and Richard Hansen (“Defendants”) are named

parties. According to proposed intervenor General Casualty Co. of Wi. (“General

Casualty”), the Defendants have no known current contact information or have

been unable to be contacted.

General Casualty has alleged that it has issued one or more insurance

policies to BW Blacktopping which “may be applicable, at least in part, to the

claims being made against” Defendants. (Proposed Complaint-in-intervention,

¶3.)

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.

As noted in the moving papers, it appears that the General Casualty has

a right to intervene in this matter. (Code of Civ.Proc. §387, subd.(b).) General

Casualty has indicated that it has an interest in the transaction and is so situated

that any judgment rendered in its absence “may as a practical matter impair or

imeded that person’s ability to protect that interest.” (Id.)

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

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

enlarge the issues, and that intervention will not tread on the rights of other

parties. (Id.)

However, in its moving papers, Intervenor did not produce any evidence

or documentation of any actual insurance policies applicable to this case. There

is a bare allegation that the insurance might cover the present situation, but has

not made reference to any specific insurance policies or attached any proof of

such policies. In short, proposed Intervenor has not met its burden of proof on this

motion.

Therefore, unless the proposed intervenor can provide such evidence at

the time of hearing, the Court will continue the motion to 3:30 p.m. on Tuesday,

December 20, 2016 in Department 503. Proposed Intervenor shall provide some

evidence of insurance coverage for Defendants to the Court on or before

December 12th, 2016. Any objection to such evidence shall be provided to the

Court by December 16th, 2016.

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



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