Tentative Rulings for December 6, 2017 Departments 402 ... · 17CECG01087 Cypress Insurance v....

Tentative Rulings for December 6, 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).)

16CECG03895 Guerrero v. Owens (Dept. 402)

17CECG01087 Cypress Insurance v. Owens (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.

15CECG02629 Anderson v. The Bertelsman Living Trust is continued to Tuesday,

January 9, 2018, at 3:30 p.m. in Dept. 503.

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

al. is continued to Thursday, December 14, 2017, at 3:30 p.m. in

Dept. 503.

________________________________________________________________

(Tentative Rulings begin at the next page)

Tentative Rulings for Department 402

(2)

Tentative Ruling

Re: In re Juan Gonzalez, Jr.

Superior Court Number: 17CECG03576

Hearing Date: December 6, 2017 (Dept. 402)

Motion: Petition to Compromise Minor’s Claim

Tentative Ruling:

To grant. Order signed. Hearing off calendar.

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

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 12/05/17

(Judge’s initials) (Date)

(30)

Tentative Ruling

Re: M. Paul Humphreys v. Community Behavioral Health Center;

Marissa P. Dizon, R.N.; and Does 1 to 10, inclusive

Superior Court No. 17CECG01068


Motion: Defendant Marissa P. Dizon’s Demurrer and Motion to Strike to SAC

Tentative Ruling:

To Overrule demurrers to causes of action one and three.

To Sustain demurrer to cause of action two.

To Deny the motion to strike.

Plaintiff is granted ten days leave to amend. (Cal. Rules of Court, rule 3.1320, subd. (g).)

The time in which an amendment may be filed will run from service by the clerk of the

minute order. Changes must be made in bold typeface.

Explanation:

DEMURRER

COA 1: Violation of Civil Code section 56 et. seq.

California Civil Code section 56 et. seq., also referred to as the Confidentiality of

Medical Information Act (CMIA) protects private medical information from certain

disclosures by medical care providers. In part it states, "[a] provider of health care...

shall not disclose medical information regarding a patient of the provider of health

care... without first obtaining an authorization." (Cal. Civ. Code § 56.10, subd. (a).)

More, "[e]ach employer who receives medical information shall establish appropriate

procedures to ensure the confidentiality and protection from unauthorized use and

disclosure of that information." (Id. at § 56.20.) And CMIA defines “Medical information"

as "individually identifiable information, in electronic or physical form, in possession of or

derived from a provider of health care..." (Id. at § 56.05, subd. (j).)

Here, Plaintiff adequately alleges facts to support a cause of action. Plaintiff alleges

that Defendant orally communicated his private medical information without

authorization. (SAC p4 ¶¶3-4.) Defendant argues that Plaintiff fails in that he does not

allege that the information was in electronic or physical form. And in support thereof,

Defendant points to legislative history. However, Defendant ignores a vast body of

precedent which recognizes oral communications as qualifying events. (see e.g.

Regents of University of California v. Superior Court (2013) 220 Cal.App.4th 549; Oiye v.

Fox (2012) 211 Cal.App.4th 1036, 1068; Shaddox v. Bertani (2003) 110 Cal.App.4th 1406;

Maureen K. v. Tuschka (2013) 215 Cal.App.4th 519, 531; and Brown v. Mortensen (2011)

51 Cal.4th 1052, 1071.) Overruled.

COA 2: Invasion of privacy, intrusion into private affairs

An action for intrusion has two basic elements: (1) intrusion into a private place,

conversation or matter, and (2) in a manner highly offensive to a reasonable person.

(Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200, 231.) Plaintiff may allege

element one by asserting the Defendant penetrated some zone of physical or sensory

privacy surrounding, or obtained unwanted access to data about Plaintiff. (Id. at 232.)

Here, Plaintiff fails to allege element one, intrusion. Though Plaintiff alleges that

Defendant accessed the private data (SAC, p4 ¶3), Plaintiff does not allege that the

access was “unwanted.” Plaintiff submits evidence of intrusion via Declaration (see

Moeck Dec., filed: 11/21/17 Ex. A), but a demurrer tests the pleading alone, not the

evidence or other extrinsic matters except that which is judicial noticeable. (Code Civ.

Proc., § 430.30; Atascadero v. Merrill Lynch (1998) 68 Cal.App.4th 445, 459.) The sole

issue on demurrer is whether the facts as pleaded state a valid cause of action. (Del E.

Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604; Berg & Berg

Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1034.) Sustained.

COA 3: Invasion of privacy, public disclosure of private facts

An action for public disclosure has four elements: “(1) public disclosure (2) of a private

fact (3) which would be offensive and objectionable to the reasonable person and (4)

which is not of legitimate public concern.” (Moreno v. Hanford Sentinel, Inc. (2009) 172

Cal.App.4th 1125, 1129-1130.) But the disclosure must be “be widely published and not

confined to a few persons or limited circumstances.” (Hill v. National Collegiate Athletic

Ass'n (1994) 7 Cal.4th 1, 27; Shulman, supra, 18 Cal.4th 200, 214.)

Here, Plaintiff fails to allege element one, public disclosure. Plaintiff only alleges that the

disclosure was to one person, Matthew Shelton. (SAC, p8 ¶3.) This is insufficient to meet

the requirements set forth by precedent.

COA 3: Invasion of privacy, Article I, § 1 of the California Constitution

Any valid cause of action overcomes demurrer. It is not necessary that the cause of

action be the one intended by plaintiff. The test is whether the complaint states any

valid claim entitling plaintiff to relief. Thus, plaintiff may be mistaken as to the nature of

the case, or the legal theory on which he or she can prevail. But if the essential facts of

some valid cause of action are alleged, the complaint is good against a general

demurrer. (Quelimane Co., Inc. v. Stewart Title Guar. Co. (1998) 19 Cal.4th 26, 38-39;

Adelman v. Associated Int'l Ins. Co. (2001) 90 Cal.App.4th 352, 359; Sheehan v. San

Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 998.)

Thus, the elements of a claim for invasion of privacy based on the California

Constitution are: "(1) a legally protected privacy interest; (2) a reasonable expectation

of privacy in the circumstances; and (3) conduct by defendant constituting a serious

invasion of privacy [citations]." (Pettus v. Cole (1996) 49 Cal.App.4th 402, 439.) More,

widespread public dissemination is not required. (Hill v. National Collegiate Athletic

Ass'n, supra, 7 Cal.4th at 27.)

Here, the facts asserted in support of cause of action three support a valid cause of

action based upon the California Constitution. Again, Plaintiff alleges that Defendant

orally communicated his private medical information to at least one person without

authorization. (SAC p4 ¶¶3-4; p8 ¶3.) More, as articulated above, this analysis is

permissible despite misnomer. Overruled.

MOTION TO STRIKE

Generally, a party filing a motion must serve and file a supporting memorandum. (Cal.

Rules of Court, rule 3.1113, subd. (a).) It must contain a statement of facts, a concise

statement of the law, evidence and arguments relied on, and a discussion of the

statutes, cases, and textbooks cited in support of the position advanced. (Id. at subd.

(b).) The Court may construe the absence of any such memorandum as an admission

that the motion is not meritorious and cause for its denial. (Id. at subd. (a).)

Here, Defendant calendared a motion to strike, but failed to file any supporting

memorandum. Denied.

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



(28) Tentative Ruling

Re: Genthner v. First Health Medical Center of Fresno, Inc.

Case No. 16CECG01395


Motion: By Defendants Ryan Rustigan D.C., and Jeanette Harris, D.C.,

demurring to the Second Amended Complaint.

By defendants moving to strike portions of the same.

Tentative Ruling:

To sustain the demurrer in its entirety with leave to amend. Plaintiff shall have ten

(10) court days from the date of this order in which to file a Third Amended Complaint.

All new or changed allegations shall be set forth in boldface typeset.

To grant the motion to strike the claims for punitive damages without prejudice

to Plaintiff’s ability to seek leave to amend to add a claim for punitive damages

pursuant to Code of Civil Procedure §425.13, assuming all other procedural

requirements are met. To grant the motion to strike the Second, Third, and Fourth

Causes of Action in the Second Amended Complaint without prejudice to Plaintiff’s

ability to seek leave to amend to add these causes of action, assuming all other

procedural requirements are met.

Explanation:

(Note-as of December 4, 2017, no opposition to the Demurrer and Motion to

Strike appears in the Court’s files.)

Defendants Ryan Rustigan D.C., and Jeanette Harris, D.C., have filed a demurrer

to the Second Amended Complaint (SAC) and seek to strike portions of the same.

Demurrer

First, it should be noted that the demurrer violates California Rule of Court 3.1320

insofar that the grounds for the demurrer are not set forth in a separate paragraph or

state whether each ground applies to the entire complaint. (CRC 3.1320, subd.(a).)

As to the merits, a general demurrer admits the truth of all material allegations

and a Court will “give the complaint a reasonable interpretation by reading it as a

whole and all its parts in their context.” (People ex re. Lungren v. Superior Court (1996)

14 Cal.4th 294, 300.) The standard of pleading is very liberal and a plaintiff need only

plead “ultimate facts.” (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6.) However,

a plaintiff must still plead facts giving some indication of the nature, source, and extent

of the cause of action. (Semole v. Sansoucie (1972) 28 Cal.App.3d 714, 719.)

Defendant contends that the statute of limitations for medical malpractice

applies to this case. This statute is “three years after the date of injury or one year after

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

discovered, the injury, whichever occurs first.” (Code Civ.Proc. §340.5.) Unlike most

other limitations periods, this statute is generally not tolled or extended. (Gutierrez v.

Mofid (1985) 39 Cal.3d 892, 896.)

Although Plaintiff did not file an opposition, she did allege in her Second

Amended Complaint that the statute of limitations for personal injury is two years. (SAC

¶9.) Plaintiff is correct about this, but the personal injury statute does not apply to this

case. In determining whether a claim is barred by the statute of limitations, the court

must look to the “gravamen of the complaint.” (Carter v. Prime Healthcare Paradise

Valley, LLC (2011) 198 Cal.App.4th 396, 411.) Here, even though the claims are for

breach of fiduciary duty and negligence, it is clear that the allegations describe injuries

“arising out of the professional negligence of a health care provider,” and so the

medical malpractice statute of limitations applies, not the personal injury or negligence

statutes. (E.g., Central Pathology Service Medical Center (1992) 3 Cal.4th 181, 191-92

(concerning claims for punitive damages); see also Carter, supra, 198 Cal.App.4th at

412-13 (claim presented as “willful misconduct” analyzed as medical malpractice for

statute of limitations purposes); Bellamy v. Appellate Department (1996) 50 Cal.App.4th

797, 805-06 (medical malpractice statute, not personal injury statute, applied when

patient injured in fall from gurney because injury related to medical care). Section 340.5

applies to this case, and, in order to be timely, the complaint would have had to be

filed within one year after discovery of the injury or three years after the injury caused

by Defendants.

Defendants are chiropractic doctor who is alleged to have worked on Plaintiff

between January 16, 2014 and March 25, 2014. Moreover, the First Amended

Complaint stated that a “foreign body” was discovered on October 7, 2014 which

Plaintiff alleges the scans conducted by Defendant should have discovered. Therefore,

from Plaintiff’s previous pleading, Plaintiff had knowledge of injury as of October, 2014,

rendering the complaint untimely, as it was filed on April 25, 2016.

In the Second Amended Complaint, Plaintiff makes several references to a

“foreign body” as the source for the injury. Plaintiff thereby appears to be relying on the

“foreign body” tolling exception to Section 340.5. Under this provision, the statute is

delayed until patient discovers or through reasonable diligence should have

discovered a foreign body as the negligent cause of injuries, even where there was

suspicion that the injuries resulted from other forms of malpractice. (Ashworth v.

Memorial Hospital (1988) 206 Cal.App.3d 1046, 1057.) But Plaintiff’s Second Amended

Complaint says that this body was found by the X-rays in January, 2014. (SAC ¶17.)

Therefore, the statute of limitations would have expired before the complaint was filed.

The Second Amended Complaint is devoid of claims involving fraud or intentional

concealment as well. There is, simply, no other ground appearing in the Second

Amended Complaint that would toll the statute of limitations.

Defendants make arguments in their memorandum of points and authorities

that the second and third causes of action do not state facts sufficient to support the

causes of action. However, the Demurrer did not actually individually contest those

causes of action in accordance with California Rule of Court 3.1320, subdivision (a),

and there is no argument on these grounds with respect to the first or fourth causes of

action. As a result, the demurrer cannot be sustained on those grounds.

Defendants also argue that the causes of action are uncertain and ambiguous

under Code of Civil Procedure §430.10, subdivision (f). However, the argument contains

no legal citation (other than to the statute) and, while the individual allegations may be

extraneous or unnecessary, there is no basis for granting a demurrer; the complaint,

while not a model of clarity or efficiency, is, at least, understandable. (Khoury v. Maly’s

of California, Inc. (1993) 14 Cal.App.4th 612, 616 (demurrer for uncertainty granted only

where a defendant cannot reasonably respond because they cannot determine what

issues must be admitted or denied). Therefore, the demurrer cannot be sustained on

these grounds.

Nevertheless, for the reasons stated above, the demurrer is sustained with leave

to amend to allege some grounds for tolling or delayed discovery of the injury such that

it would fall within the applicable statute of limitations.

Motion to Strike

Defendant moves to strike the punitive damages allegations as well as the

Second, Third and Fourth Causes of Action.

Defendant notes that, because it is a health care provider, Plaintiff must first

comply with Code of Civil Procedure §425.13 before validly alleging a claim for punitive

damages. As noted by Defendants, all the claims derive from treatment of Plaintiff by a

medical provider and are all covered by the requirements, even though some are

styled as intentional torts. (See Central Pathology Service Medical Clinic, Inc. v. Superior

Court (1991) 3 Cal.4th 181, 192.) Therefore, the motion to strike should be granted until

such time as Plaintiff complies with Section 425.13.

Defendants also move to strike the Second, Third, and Fourth causes of action

because Plaintiff did not seek permission to amend the complaint to add these new

causes of action. A plaintiff may not add new causes of action unless they have first

obtained permission. (Harris v. Wachovia Mortg. (2010) 185 Cal.App.4th 1018, 1023.)

Here, Plaintiff did not seek leave of the Court before alleging the new causes of action.

Therefore, the motion to strike should be granted without prejudice to Plaintiff’s ability to

seek leave to amend to allege these claims.

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

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

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

service by the clerk will constitute notice of the order.

Tentative Ruling




03

Tentative Ruling

Re: Silvas Oil Company, Inc. v. Orange Grove Industrial Park, LLC

Case No. 16 CE CG 03101

Hearing Date: December 6th, 2017 (Dept. 403)

Motion: Intervenor FMC Corporation’s Motion for Order Entering

Stipulated Final Judgment and Permanent Injunction

Tentative Ruling:

To grant the motion for an order entering the stipulated final judgment and

permanent injunction. (Code Civ. Proc. § 664.6.)

Explanation:

FMC moves to enforce the settlement agreement under Code of Civil Procedure

section 664.6, which states, “If parties to pending litigation stipulate, in a writing signed

by the parties outside the presence of the court or orally before the court, for

settlement of the case, or part thereof, the court, upon motion, may enter judgment

pursuant to the terms of the settlement. If requested by the parties, the court may

retain jurisdiction over the parties to enforce the settlement until performance in full of

the terms of the settlement.”

Here, the parties have entered into a settlement agreement in writing outside

the presence of the court, and they all signed the agreement. (Exhibit 1 to Cornwell

decl.) The agreement also expressly states that the court retains jurisdiction to enforce

the settlement. (Id. at ¶ 5.) In addition, the parties signed a stipulated final judgment

and permanent injunction. (Exhibit 2 to Cornwell decl.) Therefore, the court intends to

grant the requested relief and enter judgment pursuant to the terms of the settlement.1

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 12/04/17


1 There does not appear to be any reason the parties could not have simply submitted the stipulated judgment for the

court’s signature without setting a motion to enforce the settlement agreement. Such motions are usually only necessary

when one of the parties to the settlement refuses to cooperate in enforcing the agreement. Here, all the parties are in

agreement, so a motion to enforce is not required. Nevertheless, there does not appear to be any reason why the court

should not enter the requested judgment.

(30)

Tentative Ruling

Re: Jesse Emmett v. Pholy Tuon



Motion: Cross-Defendant Lenden Webb and Webb Law Group’s Demurrer

to Cross-Complaint

Tentative Ruling:

To Overrule all demurrers on behalf of Cross-Defendant Attorney Webb, except that

directed at cause of action seven. Plaintiff is granted ten days leave to amend cause

of action seven only. (Cal. Rules of Court, rule 3.1320, subd. (g).) The time in which an

amendment may be filed will run from service by the clerk of the minute order. All

amendments must be in bold type-face.

To Sustain all demurrers on behalf of Cross-Defendant Webb Law Group, no leave to

amend is granted.

Explanation:

Civil Conspiracy

The elements of a civil conspiracy are (1) formation and operation of the conspiracy,

(2) damage resulting to plaintiff, and (3) from an act done in furtherance of the

common design. (I-CA Enterprises, Inc. v. Palram Americas, Inc. (2015) 235 Cal.App.4th

257, fn.2; Prakashpalan v. Engstrom, Lipscomb and Lack (2014) 223 Cal.App.4th 1105,

1136.) But the essence of a civil conspiracy claim is that it is merely a mechanism for

imposing vicarious liability; it is not itself a substantive basis for liability. So there is no civil

action for conspiracy to commit a recognized tort unless the wrongful act itself is

committed and damage results therefrom. (Favila v. Katten Munchin (2010) 188

Cal.App.4th at 206; City of Industry v. City of Fillmore (2011) 198 Cal.App.4th 191, 211-

212.)

Here, Cross-Complainant adequately supports her civil conspiracy claim with the

following allegations of direct involvement and self-help by Cross-Defendants: After

unilaterally deciding that the operative deed was a fraud, Cross-Defendant Webb

accompanied Plaintiff Emmett and the police to a partnership property and informed

tenants that Cross-Complainant was no longer entitled to rents. (XC, ¶¶ 15-16.) Cross-

Defendant Webb then sent tenants a follow-up letter which included a copy of the

outdated deed and reiterated misrepresentations made during the earlier encounter.

(Ibid.) These allegations provide the foundation for her civil conspiracy claim by

supporting: cause of action two (intentional misrepresentation), cause of action five

(intentional interference with contractual relations), and cause of action eight (slander

of title). Overruled.

COA 2: Intentional Misrepresentation

Intentional misrepresentation requires: a misrepresentation, knowledge of falsity, intent

to induce reliance, justifiable reliance, and resulting damages. (Robinson Helicopter

Co., Inc. v. Dana Corp. (2004) 34 Cal.4th 979, 990; Lazar v. Sup.Ct. (1996) 12 Cal.4th 631,

638; Behnke v. State Farm Gen. Ins. Co. (2011) 196 Cal.App.4th 1443, 1452-1453.) Also, it

must be pled specifically; general and conclusory allegations do not suffice. This

requirement necessitates pleading facts which show how, when, where, to whom, and

by what means the representations were tendered. (Morgan v. AT &T Wireless Services,

Inc. (2009) 177 Cal.App.4th 1235, 1261-1262; see also Lazar, supra, 12 Cal.4th at 645.)

Moreover, an attorney may not, with impunity, either conspire with a client to defraud

or injure a third person, or engage in intentional tortious conduct toward a third person.

(Panoutsopoulos v. Chambliss (2007) 157 Cal.App.4th 297 holding that an attorney may

be held liable for conspiring with his or her client to commit actual fraud; see also

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

6068, subd. (d).)

Here, Cross-Complainant alleges adequate facts to plead intentional

misrepresentation. She alleges that in April 2017, Plaintiff Emmett along with Cross-

Defendant Webb knowingly misrepresented the ownership of certain partnership

properties so that they could freeze her out of the rents and profits resulting therefrom.

(XC, ¶¶ 15, 28-36.) Tenants reasonably relied on those representations and stopped

sending Cross-Complainant their payments. (Id. at ¶35.) Cross-Complainant’s damages

(as a result thereof) are in the form of lost profits. (Id. at ¶¶ 35-36.) Overruled.

COA 5: Intentional Interference with Contractual Relations

Intentional interference with contractual relations requires: a valid contract between

plaintiff and a third party; defendant’s knowledge of this contract; defendant’s

intentional acts designed to induce a breach or disruption of the contractual

relationship; actual breach or disruption of the contractual relationship; and resulting

damage. (Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1126.)

And again, an attorney may not, with impunity, conspire with a client to engage in

intentional tortious conduct toward a third person. (Panoutsopoulos, supra, 157

Cal.App.4th 297; Roberts, supra, 57 Cal.App.3d at 109.)

Here, Cross-Complainant alleges adequate facts to plead intentional interference with

contractual relations. First, she alleges valid lease agreements between herself and

tenants. (XC, ¶¶ 48-50.) Next, she alleges knowledge of the agreements on behalf of

Plaintiff Emmett as well as Cross-Defendant Webb. (Id. at ¶¶ 15-16 [Attorney Webb

instructed tenants to “destroy their old leases,” which admits knowledge]; see also ¶ 50.)

Third, Cross-Complainant alleges intent: when Plaintiff Emmett and Cross-Defendant

Webb informed tenants that the partnership properties were exclusively owned by

Plaintiff Emmett, they intended to disrupt the performance of the lease agreements. (Id.

at ¶¶ 15, 51.) Finally, actual disruption and damages resulted when the tenants stopped

paying rent. (Id. at ¶¶ 52-53.) Overruled.

COA 7: Business and Professions Code section 17200

“The UCL [Unfair Competition Law] prohibits, and provides civil remedies for, unfair

competition, which it defines as ‘any unlawful, unfair, or fraudulent business act or

practice.’” (Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 320 [quoting Bus. &

Prof. Code, § 17200].) More specifically, the UCL aims to prevent both anticompetitive

business practices as well as fraud, deceit, and unlawful conduct directed towards

consumers. (Hewlett v. Squaw Valley Ski Corp. (1997) 54 Cal.App.4th 499; see also Bank

of the West v. Sup.Ct. (1992) 2 Cal.4th 1254, 1266-1267.) To state a claim based on an

“unlawful” business act or practice, the complaint must allege: the specific unlawful

conduct; that the unlawful conduct is a business practice; and that as a result of this

practice, defendant has received ill-gotten gains, including plaintiff’s money or

property. (Bus. & Prof. Code, §§ 17200; 17204.)

Here, Cross-Complainant fails to adequately allege a violation of the UCL. There are no

facts to support a finding of unlawful business practices because there is no unfair

competition or consumer fraud (e.g. there are no allegations of misrepresentations to

consumers with the intent to unfairly compete). Sustained.

COA 8: Slander of Title

The elements of slander of title are: a publication, which is without privilege or

justification, which is false, and which causes direct and immediate pecuniary loss.

(Manhattan Loft, LLC v. Mercury Liquors, Inc. (2009) 173 Cal.App.4th 1040, 1050; Truck

Ins. Exchange v. Bennett (1997) 53 Cal.App.4th 75, 84.) And again, an attorney may not,

with impunity, conspire with a client to defraud or injure a third person, or engage in

intentional tortious conduct toward a third person. (Panoutsopoulos, supra, 157

Cal.App.4th 297; Roberts, supra, 57 Cal.App.3d at 109; Bus. & Prof. § 6068, subd. (d).)

Here, Cross-Complainant alleges adequate facts to plead slander of title. She alleges

that Plaintiff and Cross-Defendant Webb falsely published to tenants and police that

she no longer had an interest in the partnership properties by direct misrepresentation

as well as by sending copies of outdated deeds. (XC, ¶¶ 15, 63-64.) Damages resulted

when the tenants stopped paying rent. (Id., at ¶¶ 35, 67.) Overruled.

Code of Civil Procedure section 430.10, subdivision (f) – uncertainty

A special demurrer is a disfavored ground, and will be sustained only where the

complaint is so bad that the defendant cannot reasonably determine what issues must

be admitted or denied, or what counts or claims are directed against him or her. (Code

Civ. Proc., §430.10, subd. (f); Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612,

616.) “A demurrer for uncertainty is strictly construed, even where a complaint is in some

respects uncertain, because ambiguities can be clarified under modern discovery

procedures.” (Khoury, supra, 14 Cal.App.4th at 616.) Moreover, where a demurrer is

made upon this ground, it must distinctly specify exactly how or why the pleading is

uncertain, and where such uncertainty appears (by reference to page and line

numbers of the complaint). (Fenton v. Groveland Community Services Dist. (1982) 135

Cal.App.3d 797, 809 disapproved on other grounds in Katzberg v. Regents of Univ. of

Calif. (2002) 29 Cal.4th 300, 328.)

Here, Cross-Defendants fail to articulate exactly how or where the Cross-Complaint is

uncertain. Overruled.

Agent Immunity

Under the agent's immunity rule, an agent is not liable for conspiring with the principal

when the agent is acting in an official capacity on behalf of the principal. (Pavicich v.

Santucci (2000) 85 Cal.App.4th 382, 394.) Moreover, (generally) the only viable claims

for an attorney's civil conspiracy with a client, are claims that an attorney, conspiring to

cause a client to violate a statutory duty peculiar to the client, acted not only in the

performance of a professional duty to serve the client but also in furtherance of the

attorney's financial gain or claims that the attorney violated the attorney‘s own duty to

the plaintiff. (Doctors’ Co. v. SuperiorCourt (1989) 49 Cal.3d 39, 46 - 47; Panoutsopoulas,

supra, 157 Cal.App.4th at 304.) However, engaging in self-help tactics forecloses the

application of agent immunity because “self-help is not the practice of law.” (Burtscher

v. Burtscher (1994) 26 Cal.App.4th 720, 727.)

Here, Cross-Defendant Webb asserts agent’s immunity. But as noted previously (see

Ten., adopted 9/5/17), agent’s immunity does not apply because Cross-Defendant

Webb engaged in self-help, which is “not the practice of law.” (Burtscher, supra, 26

Cal.App.4th 720.) Instead of bringing an ex parte for a temporary restraining order and

seeking appointment of a receiver during the pendency of this action, Cross-Defendant

Webb unilaterally decided that the operative deed was fraudulent. He then informed

tenants that Cross-Complainant was no longer entitled to rents, and he furnished deeds

he knew to be outdated in support of his misrepresentations. Overruled.

Litigation Privilege

A general demurrer lies where the pleaded facts make clear that actions were made in

the course of a judicial proceeding and that no exception to the litigation privilege

applies. (Civ. Code § 47, subd. (b); Holland v. Jones (2012) 210 Cal.App.4th 378, 381-

382.) Section 47, subdivision (b) thus provides a defense to intentional infliction of

emotional distress, fraud, invasion of privacy, false imprisonment, abuse of process,

intentional interference with contract or prospective economic advantage, unfair

competition (Bus. & Prof. Code § 17000 et seq.), negligence and even deprivation of

civil rights. (Silberg v. Anderson (1990) 50 Cal.3d 205, 215-216; Jacob B. v. County of

Shasta (2007) 40 Cal.4th 948, 955-956; Rubin v. Green (1993) 4 Cal.4th 1187, 1193-1194;

Heller v. Norcal Mut. Ins. Co. (1994) 8 Cal.4th 30, 45.) The privilege is absolute and

applies to litigants or other participants authorized by law, as long as they are acting to

achieve the objects of the litigation. (Silberg, supra, 50 Cal.3d at 212; Makaeff v. Trump

Univ., LLC, (2013) 715 F.3d 254, 264 [applying Calif. law].)

Here, Cross-Defendant Webb also asserts litigation privilege. But again, it does not apply

because Cross-Defendant Webb engaged in self-help, which is “not the practice of

law.” (Burtscher, supra, 26 Cal.App.4th 720; see also Ten., adopted: 9/5/17.) So by

definition then, he was not acting to achieve the objects of the litigation. Overruled.

Evans v. Pillsbury, Madison & Sutro (1998) 65 Cal.App.4th 599

Cross-Defendant Webb Law Group’s (“WLG”) also argues based upon Evans v. Pillsbury,

Madison & Sutro (1998) 65 Cal.App.4th 599. WLG argues that it, like the Cross-Defendant

law firm in Evans, should be dismissed because Cross-Complainant failed to comply

with the prefilling requirement pursuant to Civil Code section 1714.10. This argument is

supported by the Evans holding wherein the Court ruled that Cross-Defendant law firms

are also entitled to the protections of the pre-filing procedures. (Id. at 607.) Sustained.





Tentative Ruling




Re: The Diocese of San Joaquin v. The Rev. James Snell et al.

Court Case No. 10 CECG 00908


Motion: Motion to Lift Stay and Set Trial Date

Tentative Ruling:

To lift the stay previously imposed. All trial counsel, or counsel familiar with trial

counsels’ schedules, are ordered to appear for this hearing (telephonic appearance is

acceptable) to select a new trial date. Counsel are directed to call the clerk of this

department by 4:00 p.m. December 5, 2017, to confirm their appearances.

Explanation:

Where jurisdiction exists, Code of Civil Procedure section 187 grants courts

authority to exercise any of their various powers as may be necessary to carry out that

jurisdiction. It is well settled that courts have fundamental, inherent powers to control

litigation before them. (Cottle v. Superior Court (1992) 3 Cal.App.4th 1367, 1377.)

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




Tentative Ruling



Tentative Rulings for Department 501 (2)

Tentative Ruling

Re: In re Bethany Tapia

Superior Court Case No. 17CECG03584


Motion: Petition to Compromise Minor’s Claim

Tentative Ruling:

To deny the petition without prejudice. Petitioner must file amended petitions,

with appropriate supporting papers and proposed orders, and obtain a new hearing

date for consideration of the amended petitions. (Super. Ct. Fresno County, Local Rules,

rule 2.8.4.)

Explanation:

The petitioner has failed to check any box at item 9. The petition fails to tell this

court if the minor has or has not fully recovered from the effects of her injury.

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

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: MWS on 12/04/17



Re: Central Valley Young Men’s Christian Association, Inc. v. The

Sequoia Lake Conference and Young Men’s Christian

Associations et al.

Superior Court Case No. 10CECG00746


Motion: (1) Plaintiff’s Motion for Entry of Modified Judgment on

Special Verdict

(2) Plaintiff’s Renewed Motion for Attorneys’ Fees

(3) Defendant’s Motion for Attorneys’ Fees

Tentative Ruling:

To continue all three motions to February 7, 2017, at 3:30 p.m. in Department 501.

Regarding the motion for entry of modified judgment on special verdict, as

stated in the opinion of the Court of Appeals, the parties are directed to meet and

confer on the language to modify the judgment. Within 10 calendar days of the

continued hearing date, the parties shall file a joint statement briefly summarizing their

meet and confer efforts, where they are in agreement, and the remaining dispute.

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: MWS on 12/05/17


Tentative Rulings for Department 502 Tentative Ruling

Re: Guled Abdillah v. Western Dental Svs, Inc.


Hearing Date: Wednesday December 6, 2017 (Dept. 502)

Motion: Defendants’ Demurrer

Tentative Ruling:

To sustain without leave to amend. Defendants are directed to immediately

submit a judgment to This Court.

Explanation:

Plaintiff’s original Complaint was filed on November 2, 2016, and alleges a single

cause of action for general negligence against defendant Western Dental. It is alleged

that the dental work that forms the basis of the Complaint occurred on October 27,

2015. Defendant demurred to the Complaint based upon the one-year statute of

limitations. (Code of Civil Procedure section 340.5.) The demurrer was sustained with

leave to amend instructing plaintiff to file an amended pleading to attempt to allege a

factual basis to toll the running of the statute of limitations.

Plaintiff’s First Amended Complaint (FAC) was filed on June 14, 2017 alleging

medical malpractice and negligence against Defendants Western Dental and William

Murphy, D.D.S. Again, plaintiff alleges surgery was performed on October 27, 2015

resulting in loss of gum and loss of bone. Defendants demurred to the FAC. The court

found that plaintiff’s claim as to Dr. Murphy was time-barred and no leave to amend

was granted on this issue. Once again the Court sustained the demurrer as to Western

Dental giving plaintiff “one more chance to amend her complaint so that she can

attempt to allege a factual basis to toll the running of the statute of limitations.”

Plaintiff filed her Second Amended Complaint on October 2, 2017. Plaintiff has

completely failed to comply with this Court’s prior orders. Namely, there is no factual

basis alleged to toll the running of the statute of limitations. Plaintiff has been given two

opportunities to allege a factual basis to toll the running of the statute of limitations and

has not done so. Therefore, the Court assumes she is unable to do so and giving further

leave to amend would not produce a different result.





Tentative Ruling

Issued By: RTM on 12/04/17




Re: Leonel Valencia, et al. v. H/S Development, et al.

Superior Court Case no. 13CECG03980


Motion: Intervenor State Auto Insurance Company - Rockhill Insurance

Company’s application for determination of good faith settlement

Tentative Ruling:

To deny without prejudice.

Explanation:

The Court found no proof of service of the instant application. Accordingly, the

application is denied without prejudice.

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


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

Issued by: A.M. Simpson on 12/04/17


Tentative Rulings for December 6, 2017 Departments 402 ... · 17CECG01087 Cypress Insurance v....

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