Tentative Rulings for March 22, 2017 Departments 402, · PDF fileTentative Rulings for March...
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Tentative Rulings for March 22, 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).)
15CECG00094 Juarez v. City of Fresno (Dept. 501)
15CECG02635 Hamed v. Banuelos Aguilar (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.
13CECG03374 Gerawan Farming, Inc. v. Calif. Agricultural Labor Relations Board,
et al. All four motions for summary judgment are continued to
Wednesday, April 5, 2017 at 3:30 p.m. in Dept. 501.
________________________________________________________________
(Tentative Rulings begin at the next page)
Tentative Rulings for Department 402 (6)
Tentative Ruling
Re: Bennett v. French
Superior Court Case No.: 16CECG03085
Hearing Date: March 22, 2017 (Dept. 402)
Motion: Demurrer to and motion to strike portions of the first
amended complaint by Defendants G. Dana French and
Wild, Carter & Tipton
Tentative Ruling:
To take off calendar Defendants’ G. Dana French’s and Wild, Carter & Tipton’s
demurrer to the complaint. (Code Civ. Proc., § 430.41, subd. (a).) The motion to strike is
denied.
The Court orders Plaintiffs’ and Defendants’ counsel to meet and confer in
person or by telephone as required by Code of Civil Procedure section 430.41,
subdivision (a). If the parties do not reach an agreement resolving the objections raised
in the demurrer, Defendants may obtain a new hearing date for the demurrer. If a new
hearing date is obtained, Defendants must file a new meet and confer declaration as
required by Code of Civil Procedure section 430.41, subdivision (a)(3), at least 16 court
days, plus any additional time as required for service of the declaration, before the new
hearing date. If, after meeting and conferring, Plaintiffs agree to amend the complaint,
Plaintiffs and Defendants may submit a stipulation and order for leave to file a second
amended complaint, which will be granted by the Court without need for a hearing.
(Cal. Rules of Court, rule 3.1207(4); Fresno County Sup.Ct., Local Rules of Court, rule
2.7.2.)
Explanation:
In the circumstance where the attorneys have not met and conferred in person
or by telephone by statute, demurring Defendants should have filed and served, on or
before the date on which the demurrer would be due, a declaration that a good faith
attempt to meet and confer was made and explaining the reasons why the parties
could not meet and confer. Upon filing of such a declaration, Defendants would have
been granted an automatic 30-day extension of time. (Code Civ. Proc., § 430.41, subd.
(a)(2).)
Concerning the motion to strike, the Court notes that Plaintiffs have filed a notice
that they do not oppose the motion to strike. However, a challenge to an entire cause
of action is only by demurrer or judgment on the pleadings, not a motion to strike.
(Quiroz v. Seventh Avenue Center (2006) 140 Cal.App.4th 1256, 1281.) The purpose of
motions to strike are to cut out “irrelevant, false or improper” matters inserted into the
complaint. (Code Civ. Proc., § 436, subd. (a).)
The Court will treat the concession that the fifth “cause of action” for attorney’s
fees has no merit, and an agreement by Plaintiffs that it will be deleted as a “cause of
action” upon the filing of any amended pleading, and thus it need not be discussed by
the attorneys at the meet and confer conference on the demurrer.
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 03/21/17
(Judge’s initials) (Date)
(6)
Tentative Ruling
Re: US Bank National Association as Trustee for CRMSI REMIC Series
2007-02 – REMIC Pass-Through Certificates Series 2007-02 v. King
Superior Court Case No.: 16CECG00296
Hearing Date: March 22, 2017 (Dept. 402)
Motion: Default prove-up
Tentative Ruling:
To deny. The Court will vacate the defaults entered against Brett King, Nancy
Simms aka Nancy King, and Cynthia Lynn Adkins as successor trustee of the Georgia
Florine Rich Living Trust dated April 8, 2004, on May 26, 2016, and permit Plaintiff to file
an amended complaint.
Explanation:
A defendant who defaults admits only facts well pleaded in the complaint. Thus,
if the complaint fails to state a cause of action, a default judgment is erroneous and will
be set aside on appeal. (Molen v. Friedman (1998) 64 Cal.App.4th 1149, 1153-1154.)
The first cause of action is for judicial foreclosure is not well-pleaded. A complaint
by a beneficiary under a deed of trust for judicial foreclosure must allege: (1) the
secured obligation; (2) the trust deed securing the obligation; (3) the plaintiff’s status as
creditor; (4) acceleration clauses enabling the plaintiff to declare the entire unpaid
immediately due; (5) the defaults entitling the plaintiff to foreclosure; (6) a provision for
the recovery of reasonable attorney’s fees; (7) optional allegations if the plaintiff is
seeking a deficiency judgment or is waiving recovery of a deficiency judgment. (Code
Civ. Proc., §§728, 726, 730.) Here, there is no allegation in the first cause of action for
judicial foreclosure as to why Plaintiff is entitled to a deficiency and in fact, the loan
made to Defendants Brett King and Nancy Simms aka Nancy King (“the Kings”)
appears to be a purchase money loan. (Code Civ. Proc., § 580, subd. (a)(1), (2).) The
complaint seeks a deficiency judgment (complaint, ¶16), but doesn’t allege why
Plaintiff is entitled to a deficiency judgment.
The third cause of action for quiet title is not well-pleaded. In order to allege a
cause of action for quiet title, the complaint must be verified and must include all of the
following: (a) A description of the property that is the subject of the action. In the case
of tangible personal property, the description must include its usual location, and in the
case of real property, the description must include both its legal description and its
street address or common designation, if any. (b) The title of the plaintiff as to which a
determination is sought and the basis of the title. If the title is based on adverse
possession, the complaint must allege the specific facts constituting the adverse
possession. (c) The adverse claims to the title of the plaintiff against which a
determination is sought. (d) The date as of which the determination is sought. If the
determination is sought as of a date other than the date the complaint is filed, the
complaint must include a statement of the reasons why a determination as of that date
is sought. (e) A prayer for the determination of the title of the plaintiff against the
adverse claims. (Code Civ. Proc. § 761.020.) Here, the cause of action seeks to quiet
title in a piece of property, allegedly owned by The Georgia Florine Rich Living Trust
Dated April 8, 2004. However, the cause of action does not set forth the legal
description of that parcel which the complaint alleges was “swapped” with a parcel
belonging to the Kings. Contrary to the allegations of the complaint, that the
assignments (and presumably, the legal descriptions) of the “swapped” properties are
attached as exhibits, are not so attached. (Complaint, ¶10, exhibits 1-3.)
The second cause of action for breach of contract states facts sufficient to
constitute a cause of action. However, by suing on this cause of action without first
foreclosing on the security, Plaintiff would violate the security-first, one-action rule of
Code of Civil Procedure section 726, and waive its rights in the security by doing so.
Also, no monetary judgment can be obtained on the complaint as it is currently
alleged does not specify a dollar amount for damages in the prayer, and at times seeks
“damages…in excess of $250,000” (prayer, ¶3), “in excess of $330,877.46” owed on the
loan (complaint, ¶15), and nothing specifically for the second cause of action for
breach of contract. If damages according to proof are prayed for, the court may not
grant a money judgment. (Ludka v. Memory Magnetics Int'l (1972) 25 Cal.App.3d 316,
322.) Further, judicial foreclosure is not simply the obtaining of a money judgment; it
involves obtaining a decree of sale (Code Civ. Proc., § 726, subd. (a)); enforcement by
a writ of sale (Code Civ. Proc., §716.010, subd. (a); 712.010, 716.010, subd. (c)); sale of
the property if the right to a deficiency exists (Code Civ. Proc., §§ 726, subd, (e);
729.010, subd. (a)), with other requirements including notice to the trustor.
Also, the Court notes that the notice of recording of lis pendens does not cover
the property belonging to the trust. On the filing of a complaint, a notice that the
action is pending (lis pendens) should be recorded in each county where the property
or any part of it is located. The recordation of the lis pendens gives notices of the
proceedings to all persons who subsequently acquire an interest in or a lien upon the
encumbered premises, and all persons who acquire an interest or lien after the lis
pendens is recorded take subject to any foreclosure judgment rendered. (Dobbins v.
Economic Gas Co. (1920) 182 Cal. 616, 622; Hibernia Savings & Loan Society v. Cochran
(1904) 141 Cal. 653, 656; Johnson v. Friant (1903) 140 Cal. 260, 262.) If a notice is not
recorded, a subsequent purchaser or encumbrancer for value who has no notice of
the proceedings is not bound by any judicial decree that may be rendered. (Carpenter
v. Lewis (1897) 119 Cal. 18, 22.)
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.
(19) Tentative Ruling
Re: Maciel v. Bar 20 Dairy LLC
Court Case No. 15CECG00475
Hearing Date: March 22, 2017 (Department 402)
Motions: By defendant to seal Exhibit C, part 15, of Salvador Rodriguez’
declaration filed February 22, 2017.
Tentative Ruling:
To grant with directions.
Explanation:
The filing at issue contains unredacted Social Security numbers in violation of
California Rules of Court, Rule 1.201, and the request is properly made. Such filing shall
be removed from the public court file and sealed. Defendant need provide an
envelope sufficient for packaging the February 22, 2017 filing with a face page for the
filing on front of the envelope, along with the legend “UNDER SEAL PURSUANT TO COURT
ORDER.”
Defendant need also make a separate filing of Exhibit A to the Carlson
declaration filed with this motion.
The actions described above shall be completed by March 24, 2017.
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: JYH on 03/21/17
(Judge’s initials) (Date)
Tentative Rulings for Department 501 03
Tentative Ruling
Re: Switzer v. Flournoy Management, LLC
Case No. 11 CE CG 04395
Hearing Date: March 22nd, 2017 (Dept. 501)
Motion: Plaintiff’s Motions to Compel Further Responses to Requests
for Production of Documents, Set Two, as to Defendants
Wood and Access Medical, and Motion to Compel Further
Responses to Special Interrogatories, Set Three, as to Wood
Defendants’ Motion to Quash Subpoena for Production of
Business Records
Tentative Ruling:
To grant plaintiff’s motions to compel further responses to requests for
production of documents, set two, as to defendants Wood and Access Medical.
(Code Civ. Proc. § 2031.310.) Defendants shall serve further responses within 10 days of
the date of service of this order. Also, the court intends to order defendants and their
counsel to pay monetary sanctions of $750 and $420 with regard to the two motions to
compel within 30 days.
To grant plaintiff’s motion to compel further responses to special interrogatories,
set three, as to defendant Wood, with regard to special interrogatories 27, 28, 39, 40, 41,
and 42. (Code Civ. Proc. § 2030.300.) However, defense counsel has stated that she will
serve supplemental responses to the other disputed interrogatories, so the motion is
moot with regard to those interrogatories. To grant monetary sanctions against
defendants and their counsel in the amount of $780. Defendants shall serve further
responses within 10 days of the date of service of this order, and pay sanctions within 30
days.
To deny defendants’ motion to quash the subpoena for business records of
Alpine Medical Management, LLC served on First Madison National Bank. (Code Civ.
Proc. § 1987.1.) However, the court will grant a protective order limiting the scope of
the subpoena to only the bank records that relate to Alpine’s transactions related to
University Hospital of Augusta, Georgia and Santa Barbara Cottage Hospital, and
Alpine’s transactions related to Access, Aramat and Wood. To deny plaintiff’s request
for monetary sanctions against defendants and their counsel with regard to the motion
to quash.
Explanation:
Motions to Compel: With regard to the requests for production served on Wood
and Access, defendant objected and refused to answer, relying primarily on the
contention that the requests seek irrelevant information about companies that were not
parties to the partnership agreement and are not involved in the litigation. However,
plaintiff has alleged that Wood is using the new companies Alpine and Longhorn as
shells to conceal money from Flournoy, which is part of Wood’s alleged ongoing
scheme to defraud and steal money from Wood and Flournoy. He alleges that the new
companies have received substantial amounts of money from customers that should
have gone to Flournoy under the partnership agreement. Therefore, it does appear
that information about the formation and management of these companies is relevant
to the subject matter of the action, as the records may reveal information about
whether the companies are being used to divert and conceal money from Flournoy.
Consequently, the court intends to overrule the relevance objection.
Also, while defendants argue that the requests infringe on the third party
financial privacy rights of the companies, the right of privacy is not absolute. The court
may order discovery if there is a compelling need that outweighs the person’s right to
keep their information private. “Where objection is made to discovery of such sensitive
information in the trial court, the court must carefully weigh the competing factors in
fashioning an order, considering: '... the purpose of the information sought, the effect
that disclosure will have on the parties and on the trial, the nature of the objections
urged by the party resisting disclosure, and ability of the court to make an alternative
order which may grant partial disclosure, disclosure in another form, or disclosure only in
the event that the party seeking the information undertakes certain specified burdens
which appear just under the circumstances ....' (Greyhound Corp. v. Superior Court
(1961) 56 Cal.2d 355, 382-383.)
Here, plaintiff is not seeking detailed financial records from the companies, but
only basic information about the membership, formation, and management of the
companies. In any event, there appears to be a compelling interest in seeking the
information from the companies, as plaintiff is alleging that they are being used as shell
entities to conceal income from Flournoy. While the companies have an interest in
keeping their records private, their interest is outweighed by the plaintiff’s need to
discover relevant information regarding his claim that defendants are stealing money
from the partnership and concealing it in shell companies.
Also, there does not appear to be any other, less intrusive means of discovering
the information. While defendants contend that plaintiff can obtain the same
information by subpoenaing bank records regarding any payments to the companies,
the bank records would not give plaintiff any information about where the money goes
after it is paid to the companies. Given plaintiff’s claim that the companies are being
used to conceal money and divert it to Wood, it is necessary for plaintiff to obtain
records directly from the companies to determine who the owners and managers of
the companies are and whether they are being used to funnel money to Wood or his
other companies. Therefore, the court intends to grant the motion to compel further
responses to the requests for production.
The same rationale applies to the motion to compel further responses to special
interrogatories with regard to Alpine, Longhorn and Double Nickel. Therefore, the court
intends to grant the motion to compel as to special interrogatories 27, 28, 39, 40, 41,
and 42. However, defense counsel has represented that she will serve supplemental
responses as to the other disputed interrogatories, so the motion to compel is moot as
to them.
Finally, the court intends to grant the request for monetary sanctions as to all
three motions to compel against defendants and their counsel.
Motion to Quash: Defendants contend that the subpoena seeks irrelevant
information, as well as being overbroad, burdensome and harassing, and that Alpine is
not a party to the action or the underlying partnership agreement, and therefore there
is no good cause for requiring the bank to produce Alpine’s financial records.
However, plaintiff has presented evidence which supports his contention that Alpine is a
shell entity that defendant Wood is using to transfer and conceal money from Flournoy
as part of Wood’s alleged continuing scheme to defraud Flournoy and Switzer. The fact
that Alpine is not a party to the partnership agreement or a party to the action does
not necessarily establish that its financial records are not relevant to the issues of the
litigation or likely to lead to the discovery of admissible evidence, since Wood allegedly
created Alpine to help him conceal money and assets from Flournoy and Switzer.
Plaintiff claims that Alpine has received substantial sums of money from Wood and
Access over the last several years, and that this money should have gone to Flournoy
instead. Therefore, Alpine’s bank records appear to be relevant to the issues of the
litigation, and the court will not grant the motion to quash the subpoena for them.
Defendants contend that the subpoena violates the right of privacy of the third
party company, and that plaintiff has not shown any compelling interest that would
justify such an intrusion. Financial records are generally considered to be protected by
the constitutional right of privacy. (Valley Bank of Nevada v. Superior Court (1975) 15
Cal.3d 652.) However, this protection is not a complete bar to discovery. (Greyhound
Corp. v. Superior Court (1961) 56 Cal.2d 355, 382-383.)
Here, while the bank records of Alpine are protected under the right of privacy,
plaintiff has shown a compelling need for the information, as Alpine is allegedly being
used to conceal money from Access and other businesses controlled by Wood that
should have gone to Flournoy. Obviously, any money that has been diverted from
Flournoy in violation of the partnership agreement is directly relevant to plaintiff’s
derivative claims. Plaintiff therefore has a strong interest in obtaining this information.
Also, it does not appear that there is any other, less intrusive means for plaintiff to obtain
the information. Defendants contend that plaintiff could obtain the information from
other sources, and in fact that plaintiff has already obtained much of the information
he seeks from his subpoena to University Hospital of Augusta, Georgia. Yet it does not
appear that University Hospital would have had access to all the information plaintiff
seeks, such as payments by Santa Barbara Cottage Hospital, as well as any other
payments to and from defendants’ alleged shell companies after the hospitals made
payments to Alpine. Therefore, the court intends to find that the subpoena is the least
intrusive means of obtaining the information plaintiff seeks.
However, the court will grant a protective order limiting the disclosure of Alpine’s
bank records to only the records that show deposits, withdrawals or transfers between
Alpine and Wood’s other companies, including Access and Aramat, as well as from
University Hospital of Augusta, Georgia and Santa Barbara Cottage Hospital. This will
protect Alpine’s right of privacy as to its transactions with its other customers, while still
allowing plaintiff to obtain information relevant to the present case.
Finally, the court intends to deny plaintiff’s request for monetary sanctions
against defendants for bringing the motion to quash. As discussed above, while the
motion to quash the entire subpoena will be denied, the court does intend to issue a
protective order limiting the scope of the subpoena. Thus, the motion is not entirely
without merit. Also, while plaintiff claims that defense counsel failed to meet and
confer before bringing the motion, defense counsel claims that she tried to meet and
confer but that plaintiff’s counsel was rude and abusive to her, so further efforts to
resolve the dispute informally would have been futile. Although it is not clear which
version of events is correct, under the circumstances it does not appear that
defendants were acting in bad faith when they brought the motion, so sanctions
against them are not warranted here.
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: MWS on 03/21/17
(Judge’s initials) (Date)
(30)
Tentative Ruling
Re: Shaw’s Structures v. Friends of the Fair
Superior Court No. 15CECG01373
Hearing Date: Wednesday March 22, 2017 (D. 501)
Motion: Defendants Brosi and Ferettas’ Motions to Compel
Tentative Ruling:
To Order motions to compel off calendar.
Explanation:
Motion to Compel
An action that originally was based on a justiciable controversy cannot be maintained
if all the questions have become moot by subsequent acts or events. Judgment would
be without practical effect, and cannot therefore proceed. (Consolidated Vultee
Aircraft Corp. v. United Auto., Aircraft & Agricultural Implement Workers (1946) 27 Cal.2d
859.)
Here, Plaintiffs have complied with Defendants’ requests. Therefore, Defendants’
motions are moot; there is nothing to compel. Motions ordered off calendar.
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: MWS on 03/21/17
(Judge’s initials) (Date)
Tentative Rulings for Department 502
(24) Tentative Ruling
Re: Wyatt v. Own A Car of Fresno
Court Case No. 16CECG02098
Hearing Date: March 22, 2017 (Dept. 502)
Motion: Plaintiff’s Motion to Confirm Arbitration Award
Tentative Ruling:
To grant; the court will sign the proposed order submitted.
Explanation:
Defendant Own A Car of Fresno has filed a “Notice of No Opposition” to this
motion/petition, and moving party has met the statutory requirements for moving to
have the arbitrator’s award confirmed.
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
Issued By: DSB on 03/20/17
(Judge’s initials) (Date)
(28) Tentative Ruling
Re: Smith v. Nationwide Agribusiness Ins. Co.
Case No. 15CECG02768
Hearing Date: March 22, 2017 (Dept. 502)
Motion: By Defendant Nationwide Agribusiness Insurance Company for
Summary Judgment or, Alternatively, Summary Adjudication of the
Breach of Contract, Breach of the Implied Covenant of Good Faith
and Fair Dealing, and Negligence Causes of Action of the
Complaint and Request for Punitive Damages as Alleged Against
Nationwide.
Tentative Ruling:
To deny.
Explanation:
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).)
Defendant Nationwide Agribusiness Insurance Company (“Nationwide”) brings
this motion against the operative complaint filed by Plaintiff Edwin Smith (“Plaintiff”).
Plaintiff’s complaint alleges breach of insurance contract, breach of the covenant of
good faith and fair dealing (insurance bad faith), and negligence, stemming from the
handling of an insurance claim for theft of and damage to real and personal property.
Nationwide made a payment on the claim, but Plaintiff asserts that Nationwide
delayed the resolution of the claim and underpaid. Plaintiff seeks compensatory and
punitive damages.
Breach of Insurance Contract Claim
Defendant contends that Plaintiff’s insurance claim should have been denied
because Plaintiff was not a named insured on the policies he obtained from
Nationwide: his father, Edwin Smith (“the elder Smith”) who had died several years prior
to the claim, was the named insured on the insurance policy initially purchased from
Nationwide in 2009. (Undisputed Material Fact (“UMF”) 1.) According to Nationwide’s
own documents, this apparently never changed between 2009 and 2013. (UMF 2.)
Plaintiff made the instant claim on the policy on April 16, 2014. (UMF 23.) At the
time of the claim, according to the documents in Nationwide’s possession, Plaintiff was
named as an “additional insured” and was covered only to the extent of his own
actions. (UMF 4-6.) Furthermore, the property had been transferred from the elder Smith
to the family partnership three years before the insurance was purchased. (UMF 19-22.)
Therefore, Nationwide argues, the elder Smith did not have an insurable interest at the
time the insurance was procured. (Davis v. Phoenix Ins. Co. (1896) 111 Cal. 409, 414
(insurance indemnifies a particular insured, and not the property itself).) To the extent
that the insurance policy was transferred, Nationwide contends that there is no record it
ever consented to such an assignment. (UMF 11.)
Plaintiff counters that, after the elder Smith’s death, Plaintiff directed Avakian,
Nationwide’s agent, to provide insurance for the subject property in Plaintiff’s name.
(AMF nos. 20-25.) Avakian represented that the changes had been made and Plaintiff
contends that Nationwide was bound by those promises. (Shade Foods, Inc. v.
Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 974 (agents
“may bind the company by any acts, agreements or representations that are within the
ordinary scope and limits of the insurance business entrusted to him”).) If there was a
mistake in the identity of the named insured, according to Plaintiff, this mistake is the
responsibility of Nationwide. (Granco Steel, Inc. v. Workman’s Compensation Appeals
Board (1968) 68 Cal.2d 191, 197 (oral representation regarding scope of insurance by
agent is binding on insurance company).)
In the reply, Defendant argues that it is not vicariously liable for the torts of
Avakian because Avakian was the insured’s agent and not the agent for Nationwide.
(Mercury Insurance Co. v. Pearson (2008) 169 Cal.App.4th 1064, 1073.)
However, the question with respect to the contract claim is not whether
Defendant is vicariously liable for Avakian’s torts, but rather whether Avakian had
authority to bind Nationwide. The case cited by Plaintiff holds that, even when an
agent represents several insurance companies, such an oral binder can be legally
operative. (Granco Steel, Inc., supra, 68 Cal.2d at 199-200 (relying on estoppel
principles and citing with approval a compensation case in with similar facts to the
instant case, where a partnership was incorporated and a request to change the
named insured was delivered, the insurance company was estopped from denying
coverage).) Here, there is evidence from which a reasonable jury could conclude that
Plaintiff had instructed Avakian to procure the insurance in the proper name that would
cover the subject property. (See Additional Material Facts (“AMF”) 21-26.) Therefore,
there remains a question of fact as to whether the insurance contract is binding on
Nationwide.
Nationwide also cites to several cases for the proposition that a “no-oral-
modification” clause in an insurance contract prevents such an oral binder. (Northern
Assur. Co. v. Grand View Building Assoc. (1902) 183 US 308, 361; Madsen v. Maryland
Cas. Co. of Baltimore (1914) 168 Cal.204, 206; Fidelity & Cas. Co. v. Fresno Flume &
Irrigation Co. (1911) 161 Cal.466, 471; Iverson v. Metropolitan Life Ins. Co. (1907) 151 Cal.
746, 752-53.) However, aside from the fact that these cases are over a century old,
Defendant does not account for or distinguish the contrary authority in Granco Steel.
As to the issue of whether Plaintiff had an insurable interest in the property,
Nationwide points to no case law that squarely holds that Plaintiff lacks an insurable
interest as a general partner. There is also an issue as to whether Plaintiff had an
insurable interest in the property seems as a result of his status as a general partner in
the limited partnership that had an ownership interest. Resolution of this issue is factual
and will require evidence related to the communications between Plaintiff and his
affiliates and Avakian regarding ownership of the property.
Breach of Covenant of Good Faith and Fair Dealing.
Where a duty to investigate has arisen, the failure of the insurer to investigate
properly breaches the implied covenant. (Egan v. Mutual of Omaha Ins. Co. (1979) 24
Cal.3d 809, 817.) An insurer has an affirmative duty to initiate the investigation and
cannot sit back and merely find fault with the information provided by the policy
holder. (Id. at 819.)
Nationwide initially argues that there could be no insurance “bad faith” in this
case because Plaintiff was not the named insured nor did he have any insurable
interest in the subject Property. However, as noted above, there is at least a question of
fact on these issues.
Nationwide also argues that there was no bad faith because there was a
genuine issue as to the existence of coverage liability, whether a theft had occurred,
what items had been stolen, the value of the items, and whether Plaintiff had an
insurable interest in the Property. (Chateau Chamberay Homeowners Ass’n. v.
Associated Internat. Ins. Co. (2001) 90 Cal.App.4th 335, 349.) However, encompassed
within the bad faith claim are claims that Defendant conducted an incomplete and
faulty investigation and unreasonably delayed in adjudicating the claim. There are
obvious factual issues related to these claims which cannot be resolved by summary
adjudication.
Negligence
The Complaint alleges that Avakian was an authorized agent of Nationwide,
breached duties owed to Plaintiff, and Nationwide is vicariously liable. (Complaint ¶¶
39-45; Jackson v. Aetna Life & Cas. Co. (1979) 93 Cal.App.3d 838, 846-847). Defendant
argues that Avakian is an agent of Plaintiff and not of Nationwide. However,
Defendant completely ignored the issue in its Separate Statement. Since the “golden
rule” is that if it is not in the separate statement, it does not exist (United Community
Church, supra, 231 Cal.App.3d at 337), the claim cannot be summarily adjudicated in
Defendant’s favor.
Punitive Damages
Nationwide argues that there are no facts from which a jury could conclude that
it acted in a fraudulent, oppressive, or malicious manner for the purposes of awarding
punitive damages. (Taylor v. Superior Court (1979) 24 Cal.3d 890, 894 (likening such
behavior to the level of outrage associated with crime).) However, as Plaintiff notes, the
question of whether to award punitive damages is generally better left to a jury.
(Amerigraphics v. Mercury Casualty Co. (2010) 182 Cal.App.4th 1538, 1559-60
(disapproved of on other grounds by Nickerson v. Stonebridge Life Ins. Co. (2016) 63
Cal.4th 363, 377, fn.2.).) Furthermore, punitive damages have been approved in the
instance where an insurance company makes decisions that were the product of
established company practice as opposed to mere negligence, and it is the
provenience of a jury to make that determination. (Hughes v. Blue Cross of Northern
California (1989) 215 Cal.App.3d 832, 847.) Plaintiffs have submitted evidence that
would support a finding that Defendant intentionally conducted a flawed investigation
and intended to deny Plaintiffs the benefits of their insurance.
Pursuant to California Rules of Court, rule 3.1312, subdivision (a), and Code of
Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The
minute order adopting this tentative ruling will serve as the order of the court and
service by the clerk will constitute notice of the order.
Tentative Ruling
Issued By: DSB on 03/21/17
(Judge’s initials) (Date)
Tentative Rulings for Department 503
(28) Tentative Ruling
Re: Tolmasoff v. Specialized Loan Servicing, LLC
Case No. 17CECG00429
Hearing Date: March 22, 2017 (Dept. 503)
Motion: Order to Show Cause Why Preliminary Injunction Should Not Issue.
Tentative Ruling:
To discharge the order to show cause and dissolve the temporary restraining
order.
Explanation:
On February 15, 2017, Plaintiff filed an ex-parte application for a temporary
restraining order and an order to show cause for a preliminary injunction to prevent the
foreclosure sale of property located in Fresno, California. The ex parte was denied.
On February 28, 2017, Plaintiff filed a second ex-parte application seeking the
same relief. This Court granted a temporary restraining order and set a hearing for
March 2, 2017.
At the March 2, 2017 hearing, the Court issued a temporary restraining order until
March 22, 2017 and set a hearing for that date on an Order to Show Cause why a
preliminary injunction should not issue for that date.
The parties have filed no papers since the Order to Show Cause was issued.
Moreover, Plaintiff has filed no proof of service on Defendant of the March 22nd, 2017
order.
When a TRO is issued, the papers must be served on the opposing party within
five days after the TRO is issued or 2 days before the hearing, whichever is earlier. (Code
Civ.Proc. §527, subd.(d)(2).) If the papers are not timely served on the opposing party,
the TRO must be dissolved. (Code Civ.Proc. §527, subd.(d)(2).) Because no proof of
service has been filed, the TRO must be dissolved and the request for a preliminary
injunction is denied. (Code Civ.Proc. §527, subd.(d)(3).)
Pursuant to California Rules of Court, rule 3.1312, subdivision (a), and Code of
Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The
minute order adopting this tentative ruling will serve as the order of the court and
service by the clerk will constitute notice of the order.
Tentative Ruling
Issued By: A.M. Simpson on 03/20/17
(Judge’s initials) (Date)
(24) Tentative Ruling
Re: Vlahopouliotis v. Vallarta Properties LLC
Court Case No. 12CECG04030
Hearing Date: March 22, 2017 (Dept. 503)
Motion: 1) Defendant’s Motion to Enforce Settlement
2) Defendant’s Motion to Compel Arbitration
Tentative Ruling:
To deny defendant’s motion to enforce settlement. To grant defendant’s motion
to compel arbitration, with said arbitration to occur on Wednesday April 19, 2017, unless
the parties agree to conducting the arbitration on any of the alternate three dates
given in the moving papers (April 20, 24, or 25, 2017). Plaintiff is ordered to pay his half of
the deposit on the arbitrator’s fee in a timely fashion, and failure to do so may subject
him to being held in contempt of court. No stay of the action can be granted at this
time.
Neither of the proposed orders will be signed; the minute order adopting this
ruling suffices. (Cal. Rules of Court, Rule 3.1312; Code Civ. Proc. § 1019.5, subd. (a).)
Explanation:
Motion to Enforce Settlement:
Code of Civil Procedure Section 664.6 states as follows:
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.
(Id., emphasis added.)
This statute “was enacted to provide a summary procedure for specifically
enforcing a settlement contract without the need for a new lawsuit.” (Bowers v.
Raymond J. Lucia Companies, Inc. (2012) 206 Cal.App.4th 724, 732 (citation omitted).)
It allows the party to move the court for entry of judgment pursuant to the terms of the
settlement. (Id.) Then, after entry of judgment pursuant to this statute, one or more of
the parties may request the court to retain jurisdiction to enforce the settlement until it is
fully performed. (Code Civ. Proc., § 664.6, last sentence.)
This motion to enforce the “Compromise Settlement Agreement” is defective.
First, the Notice of Motion mentioned only arbitration, and did not mention that
defendant would be seeking to enforce Paragraph 3 of that agreement (regarding
amending the CC&Rs). The Notice of Motion must state in the first paragraph exactly
what relief is sought, and why. (Code Civ. Proc. § 1010; Cal. Rules of Court, Rule 3.1110,
subd. (a); People v. American Surety Ins. Co. (1999) 75 Cal.App.4th 719, 726.)
Second, the opening memorandum did not even brief the law as to Code of
Civil Procedure section 664.6 (“section 664.6”). The memorandum must “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.” (Cal. Rules of Court, Rule 3.1113, subd. (b); Quantum Cooking Concepts,
Inc. v. LV Associates, Inc. (2011) 197 Cal.App.4th 927, 934—Court not required to “comb
the record and the law for factual and legal support that a party has failed to identify
or provide.”)
Third, even had the foregoing defects not been present, the relief could not be
granted. On a motion pursuant to Section 664.6, the court, must decide whether an
agreement is enforceable under the statute. (Terry v. Conlan (2005) 131 Cal.App.4th
1445, 1454—“In ruling on a motion to enter judgment the trial court acts as the trier of
fact, determining whether the parties entered into a valid and binding settlement.”)
Under the statute’s express terms, the court can only enforce provisions of an
agreement which represents a “settlement of the case, or part thereof.” In other words,
issues that are framed by the pleadings and will be encompassed in the eventual
judgment.
Here, the agreement to arbitrate is not a “settlement of the case or part
thereof,” but is simply an agreement about the conduct of the litigation. Thus, even
though the agreement to arbitrate may be (and is here) the subject of a motion to
compel arbitration, it is not a proper subject for a motion under Section 664.6.
As to the second issue (amending the CC&Rs), this provision does appear to
represent at least a partial settlement of the issues, since this relief is expressly requested
in defendant’s Cross-Complaint (see ¶32). However, defendant’s memorandum
expressly puts this issue under the heading of “Issues Remaining for Arbitration.” Thus,
while Paragraph 3 of the agreement ostensibly appears to present this as a “settled”
issue, defendant argues instead that it is an issue remaining for arbitration, which would
appear to mean it is not settled.
Defendant may not have intended to say the issue regarding amending the
CC&Rs was not settled, but simply that it was willing for the parties to arbitrate over their
disputes in carrying out the terms of their settlement. Even if that were the case, the
motion to enforce this settlement still must be denied. While on a section 664.6 motion
the court may adjudicate disputed factual issues that have arisen regarding the
settlement (e.g., to determine what orders are necessary in order to enforce the
settlement), the memorandum is entirely too vague as to what may be in dispute on
this issue: defendant refers to “certain formalities” that remain and does not specify
what it contends are the “necessary steps” plaintiff should be ordered to take to
enforce the agreement. Neither the court nor plaintiff were put on notice of what
disputed factual issues defendant intended to be adjudicated on this motion.
Motion to Compel Arbitration:
Plaintiff appears to argue that the court should deny this motion to compel
arbitration because he already agrees to the arbitration. Even though this was the result
of his own earlier motion to compel, the ruling must be different at this juncture, given
the significant passage of time since the parties agreed to arbitrate, and the
unpersuasive arguments plaintiff made regarding his de facto forcing of a
postponement of the arbitration in December.
Plaintiff offered no reason why any of the four dates in April offered by
defendant would not accommodate his schedule, and instead he sought an order
pushing the arbitration completion back to the end of this year. On this record, an order
compelling arbitration, and setting a date certain for it, is warranted in order to move
this case to conclusion, sooner rather than later.
Even so, plaintiff is correct regarding the stay. An arbitration stay is not
“automatic,” but instead can only be ordered “upon motion of a party to such action
or proceeding.” (Code Civ. Proc. § 1281.4; Brock v. Kaiser Foundation Hospitals (1992)
10 Cal.App.4th 1790, 1796; Dial 800 v. Fesbinder (2004) 118 Cal.App.4th 32, 45.) The
Notice of Motion did not mention defendant was making a combined motion to
compel arbitration and motion for stay, nor did the memorandum mention stay at all.
Therefore, the court is without authority to order a stay of the action at this time.
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
Issued By: A.M. Simpson on 03/20/17
(Judge’s initials) (Date)
(5)
Tentative Ruling
Re: Wayne Houser, Sr. through his GAL v. Kathryn Miller
Superior Court Case No. 16 CECG 00966
Hearing Date: March 22, 2017 (Dept. 503)
Motion: By Plaintiff to compel further responses to Special
Interrogatories Nos. 6, 15, 31 and 32 and Request for
Production of Documents aka Inspection Demands
Nos. 2, 3, and 4.
Tentative Ruling:
To deny the motion without prejudice.
Explanation:
Background
According to the Complaint, in 2004, the parties became involved in a personal
relationship. The Plaintiff was over 80 years old at the time and the Defendant was over
60 years of age. In 2010, Defendant drafted an agreement that purportedly provided
a “life estate” in her home to the Plaintiff in exchange for payment of certain expenses.
Miller then allegedly coerced the Plaintiff into taking $25,000 of his money and creating
a joint account for the two. In 2012, Plaintiff created a Trust Document granting power
of attorney to his son, Wayne Houser, Jr. Defendant allegedly “stepped up” her efforts
to obtain as much money as she could from the Plaintiff. At some point in time, Plaintiff
was removed from Defendant’s home and placed in an assisted living facility.
On March 29, 2016, Plaintiff through his GAL filed a Complaint alleging:
1. Elder Abuse;
2. Conversion;
3. Breach of Written Contract; and
4. Rescission.
Motion at Bench
On September 2, 2016, Plaintiff propounded and served Form Interrogatories,
Special Interrogatories, Requests for Admission and Inspection Demands upon the
Defendant. On October 11, 2016, Defendant served her Answers and objections. The
parties began to “meet and confer” without success. On November 21, 2016, Plaintiff
filed a request for a pre-trial discovery conference.
The right to privacy extends to an individual's confidential financial information in
whatever form it takes, e.g., tax returns, checks, statements, or other account
information. [SCC Acquisitions, Inc. v Superior Court (2015) 243 Cal.App.4th 741, 754;
Overstock.Com, Inc. v Goldman Sachs Group, Inc. (2014) 231 Cal.App.4th 471, 503] A
motion seeking an order compelling further responses “shall set forth specific facts
showing good cause justifying the discovery sought by the demand.” [CCP §
2031.310(b)(1) (emphasis added); Kirkland v. Sup.Ct. (Guess?, Inc.) (2002) 95
Cal.App.4th 92, 98]
To establish “good cause,” the burden is on the moving party to show both:
• Relevance to the subject matter (e.g., how the information in the documents
would tend to prove or disprove some issue in the case); and
• Specific facts justifying discovery (e.g., why such information is necessary for trial
preparation or to prevent surprise at trial). [Glenfed Develop. Corp. v. Sup.Ct.
(National Union Fire Ins. Co. of Pittsburgh, Penn.) (1997) 53 Cal.App.4th 1113, 1117;
see also Kirkland v. Sup.Ct. (Guess?, Inc.), supra
The fact that there is no alternative source for the information sought is an important
factor in establishing “good cause” for inspection. But it is not essential in every case.
[Associated Brewers Distrib. Co., Inc. v. Sup.Ct. (Jos. Schlitz Brewing Co.) (1967) 65
Cal.2d 583, 588 (decided under former law)]
Declarations are generally used to show the requisite “good cause” for an order
to compel inspection. The declarations must contain “specific facts” rather than mere
conclusions. [Fireman's Fund Ins. Co. v. Sup.Ct. (Paine Webber Real Estate Securities)
(1991) 233 Cal.App.3d 1138, 1141—P's desire to review documents for “context” is “a
patently insufficient ground” for production of sensitive commercial information] The
declarations may be on information and belief, if necessary. However, in such cases,
the “specific facts” supporting such information and belief (the sources of the
information) must also be alleged. [See Grannis v. Board of Medical Examiners (1971) 19
Cal.App.3d 551, 564—also dealing with former “good cause” requirement in affidavit
for depo subpoena duces tecum]
Here, the Plaintiff seeks the Defendant’s tax returns, banking information, and
other financial information. A right of privacy clearly exists in this information. See SCC
Acquisitions, Inc. v Superior Court, supra. Yet, the Declaration of Casheros in support of
the motion only addresses the timeline of the motion and submits documents for the
court to review. This is insufficient.
The Declaration in reply submits various pieces of evidence. But, it is not
incumbent for the Court to examine this evidence and “make the case” for the moving
party. The discovery still encompasses information protected by a right of privacy. The
moving party has the burden to overcome the protection. [CCP § 2031.310(b)(1)] The
motion will be denied without prejudice.
Pursuant to California Rules of Court, Rule 3.1312, subd. (a) and Code of Civil
Procedure section 1019.5, subd. (a), no further written order is necessary. The minute
order adopting this tentative ruling will serve as the order of the court and service by
the clerk will constitute notice of the order.
Tentative Ruling
Issued By: A.M. Simpson on 03/21/17
(Judge’s initials) (Date)