Tentative Rulings for March 26, 2019 Departments …...2019/03/26 · 1 Tentative Rulings for March...

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Tentative Rulings for March 26, 2019

Departments 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).)

16CECG02260 Lucky Lee Gold vs. Monalisa Berbey (Dept. 403)

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

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

18CECG03399 Silvano Garcia Hernandez vs Purl's Sheet Metal & Air Conditioning is

continued to Thursday, March 28, 2019 at 3:30 in Dept. 403.

18CECG04455 David James vs. Wells Fargo Bank, N.A. is continued to Thursday,

March 28, 2019 at 3:00 in Dept. 501.

________________________________________________________________

(Tentative Rulings begin at the next page)

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Tentative Rulings for Department 403

(20) Tentative Ruling

Re: Martinez v. Lai

Superior Court Case No. 18CECG04584

Hearing Date: March 26, 2019 (Dept. 403)

Motion: Demurrer and Special Motion to Strike

Tentative Ruling:

To grant the special motion to strike the First Amended Complaint. (Code Civ.

Proc. § 425.16.) To take the demurrer off calendar as moot in light of the ruling on the

motion to strike. Defendant shall submit to this court, within seven days of service of the

minute order, a proposed judgment dismissing the action.

Explanation:

A special motion to strike provides a procedural remedy to dismiss nonmeritorious

litigation meant to chill the valid exercise of the constitutional rights to petition or

engage in free speech. (Code Civ. Proc. §425.16, subd.(a); see Martinez v. Metabolife

Intern., Inc. (2003) 113 Cal.App.4th 181, 186.)

The court engages in a two-step process in determining whether an action is

subject to the anti-SLAPP statute: first, the court decides whether defendant has made

a threshold showing that the challenged cause of action is one arising from protected

activity, by demonstrating that the facts underlying plaintiff's complaint fit one of the

categories set forth in section 425.16, subdivision (e); if the court finds that such a

showing has been made, it then determines whether plaintiff has demonstrated a

probability of prevailing on the claim. (Code Civ. Proc. §425.16; Cross v. Facebook, Inc.

(2017) 14 Cal.App.5th 190, 198.)

The Complaint and Amended Complaint in and of themselves are rather vague.

They allege that the claim against defendant Victor Lai is for “trespass,” which

somehow was accomplished through a “forged instrument/false claim.” Plaintiff

specifies that the initial cause of harm began September 18, 2015. Plaintiff attaches to

the pleading a Felony Complaint filed by the People of the State of California against

plaintiff, alleging three counts: (1) stalking, (2) felony concealed firearm in a vehicle,

and (3) driving under the influence of a drug. The Felony Complaint is dated

September 18, 2015. Thus, it is apparent from the pleading that plaintiff’s claim is based

somehow on the Felony Complaint filed against him.

This is confirmed by the declarations supporting the motion to strike. Defendant

Lai is the deputy district attorney assigned to that criminal case. Other than contact in

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the courtroom, Lai has had no contact with plaintiff of any kind, or been to his home.

(Lai Dec. ¶¶ 2, 3.)

Defendant satisfies his threshold burden by showing that his actions complained

of in the complaint arise from the exercise of the right to take action to prosecute

crimes against plaintiff, which is clear petitioning activity protected by section 425.16,

subdivision (e).

The burden shifts to plaintiff to show that the complaint is both legally sufficient

and supported by a sufficient prima facie showing of facts to sustain a favorable

judgment if the evidence submitted by the plaintiff is credited. (Navellier v. Sletten

(2002) 29 Cal.4th 82, 88-89.) In considering this issue, the court looks at the “ ‘pleadings,

and supporting and opposing affidavits … upon which the liability or defense is based.’

” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269.)

A party cannot rely on allegations in its own pleadings, even if verified, to make

the evidentiary showing required. Admissible evidence is required. (See Church of

Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 656.) The court must consider the

declarations and pleadings in deciding whether such “probability” has been shown.

(See Code Civ. Proc. § 425.16(b).) In assessing the probability that plaintiff will prevail at

trial, the court may consider only evidence that will be admissible at trial. (See Evans v.

Unkow (1995) 38 Cal.App.4th 1490, 1497.)

Plaintiff’s opposition does not produce any evidence, or even offer a coherent

argument as to why the complaint has any merit. And as the moving papers point out,

defendant has prosecutorial immunity under Government Code section 821.6, which

provides “[a] public employee is not liable for injury caused by his instituting or

prosecuting any judicial or administrative proceeding within the scope of his

employment, even if he acts maliciously and without probable cause."

Plaintiff’s complaint makes no mention of anything beyond the prosecution of

the charges of the “forged instrument” that forms the basis of the “trespass” claim.

Prosecutorial immunity applies. (See County of Los Angeles v. Superior Court (2009) 181

Cal.App.4th 218.) Thus, Plaintiff cannot show a probability of prevailing and the

complaint should be stricken.

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: RTM on 3/18/19 .

(Judge’s initials) (Date)

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Re: Gulf Coast Bank & Trust v. Hamdan

Court Case No. 18CECG01273


Motion: Defendants’ Motion to Vacate and Set Aside Default and Default

Judgment

Tentative Ruling:

To deny.

Explanation:

Defendants are correct that plaintiff’s evidence of defendants’ actual

knowledge of the filing of this complaint is insufficient to support denial of this motion if

plaintiff, in fact, failed to comply with the statutory requirements for proper service of

the Summons and Complaint. (Summers v. McClanahan (2006) 140 Cal.App.4th 403,

414 [“[N]o California appellate court has gone so far as to uphold a service of process

solely on the ground the defendant received actual notice when there has been a

complete failure to comply with the statutory requirements for service.”].) On the other

hand, it is also true that if the evidence supports a finding that defendants were

properly served, then their actual notice of the complaint and subsequent inaction

does support a finding of inexcusable neglect, as plaintiff argues, and a reason to deny

relief under Code of Civil Procedure section 473.

Filing a proof of service which complies with statutory standards creates a

rebuttable presumption that service was proper. (Floveyor Internat., Ltd. v. Superior

Court (1997) 59 Cal.App.4th 789, 795.) Moreover, a declaration of service by a

registered process server establishes a presumption that the facts stated in the

declaration are true. (Evid. Code § 647; Rodriguez v. Cho (2015) 236 Cal.App.4th 742,

750.) The proofs of service filed by plaintiff on June 7, 2018, show personal delivery of the

papers directly to defendant Hadi Hamdan, and these proofs were signed by a

registered process server, and thus they created a rebuttable presumption of proper

personal service. (Code Civ. Proc. § 415.10 [requiring personal delivery of papers to the

defendant being served]; Sternbeck v. Buck (1957) 148 Cal.App.2d 829, 832.) However,

defendants correctly observe that these proofs of service would not be adequate

proof of substituted service, for want of a Declaration of Diligence (as to the individual

defendant; none would be required for the corporate defendant) and for want of

proof of subsequent mailing of the served documents (required on both). (Code Civ.

Proc. § 415.20.)

On their motion, defendants presented evidence, via the declaration of

defendant Hamdan, which made an effective prima facie rebuttal of the presumption

of proper personal service. Dr. Hamdan stated that the process server simply left the

summons and complaint with his receptionist at the front desk once the process server

was told he would have to wait for Dr. Hamdan to finish treating a patient. Dr. Hamdan

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further states that he never received copies of the served documents in the mail, sent

to the office address or any other address. This presents sufficient evidence to support a

finding that not only did plaintiff fail to serve the documents personally on either

defendant, but plaintiff also failed to accomplish proper substituted service. With this

evidence from defendant, plaintiff then had the burden to present its own evidence

proving proper personal service. (Summers v. McClanahan, supra, 140 Cal.App.4th at p.

413.)

Plaintiff met this burden. The process server’s declaration presents an account in

direct conflict with Dr. Hamdan’s account of the service. Mr. Thornton declares that Dr.

Hamdan was walking by the receptionist’s desk at the same time Mr. Thornton was

asking the receptionist to see Dr. Hamdan. He says the receptionist called Dr. Hamdan

over, and Mr. Thornton identified himself and informed Dr. Hamdan that he was being

served, and he states that Dr. Hamdan accepted the documents. On reply, defendants

simply ignored this evidence.

Thus, this motion presents a case of conflicting evidence regarding service,

where the court is called upon to determine which account appears the more

credible, with no presumptions favoring either side. On balance, the declaration of the

process server is more persuasive. If events had occurred as recounted by defendant,

the experienced (twelve-year) process server would have known that leaving the

papers with the receptionist did not accomplish personal service, and that he would

need to file the proof of service to indicate substituted service, with the requisite

Declaration of Diligence and proof of subsequent mailing. Mr. Thornton would have

had no incentive, at that time, to file the proof of service as one for personal, as

opposed to substituted, service. Either type of service would have accomplished the

job he was paid to do. On the other hand, defendant’s version of events are recounted

only by Dr. Hamdan, with no corroboration from someone with no self-interest in the

matter (for instance, the receptionist). (In contrast, see County of San Diego v. Gorham

(2010) 186 Cal.App.4th 1215, 1230, where the proof of personal service was found false

because independent evidence showed defendant was incarcerated at the time he

was said to have been served.) Upon weighing the evidence, the process server’s

declaration is more credible, especially given the fact that defendants did not even

address this evidence on reply.

Plaintiff also presented evidence (also undisputed by defendants on reply) of

phone and email contact counsel had with Dr. Hamdan, and in one email Dr. Hamdan

stated he would respond (i.e., file an Answer), and yet he failed to do so. Plaintiff also

presented undisputed evidence that its counsel emailed defendant Hamdan one last

time, on June 22, 2018, prior to entering default, to which she received no response,

and that she also mailed both the Request to Enter Default and the Request for Court

Judgment forms to defendants, as required by law.

On this record the court must find that defendants were personally served with

process, and moreover that they demonstrated their actual notice of the action

(including by telling plaintiff’s counsel that an Answer would be filed), and that they

had clear notice that their default was being entered, and yet they still did not seek

relief from default, nor did they do so when the received subsequent notice that

plaintiff was following through with seeking judgment. The court must also note that the

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case record reflects that on January 9, 2019, plaintiff set a hearing and filed an

Application and Order for Examination of Judgment Debtor (a “Judgment Debtor’s

Exam”), and served Dr. Hamdan with this on January 19, 2019. It was only after this

event that he obtained counsel and began moving for relief.

On balance, this does not present a case of failure to properly serve a

defendant, resulting in the court lacking personal jurisdiction over defendants. Instead,

it presents a case of inexcusable neglect by defendants in failing to protect themselves

from default and default judgment. There is no basis here for the exercise of the court’s

discretion to set aside the default judgment or the default itself.

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



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Re: Acosta v. Ayala

Case No. 14CECG02353


Motion: By Defendants for Default Judgment as to Ayala Corp., Ayala

Farms, Inc., Bernardo Ayala, and B&A Int’l Farm Labor Servs., Inc.

Tentative Ruling:

To deny without prejudice.

Explanation:

On October 23, 2019, this Court denied a request for default judgment. A

hearing was scheduled for March 26, 2019, but, as of March 22, 2019, no new

documentation has been filed. The Court’s ruling on the October 23, 2019 request was

as follows:

“Plaintiff has not filed the mandatory CIV-100 form.

“Further, the only defendant for which there is a record of default is the

Ayala Corporation. In the papers, Plaintiff states that the other defendants

against whom this judgment is sought had a default entered against them by the

Court for a failure to appear at trial, but such an order does not appear to be in

the record. Moreover, the trial court has no power to enter a default where a

defendant files an answer but fails to appear for trial. (Heidary v. Yadollahi (2002)

99 Cal.App.4th 857, 859.) The options in such a case are to proceed with the

case in the non-appearing parties’ absence or continue the trial. (Id.) In any

event, no default against any party other than Ayala Corporation appears to be

in the record and, consequently, default judgment may not be entered on the

terms set forth by Plaintiff.

“Furthermore, the attorney’s fees also do not comport with Appendix A1

to the Fresno Superior Court Local Rules. Even if a basis for departing from the

rates indicated in the Appendix was shown, the fees sought would have to be

re-worked depending on which parties the judgment was sought against (i.e. if

only the Ayala Corporation is in default, attorney’s fees could only be awarded

for the time until the corporation’s default).

“Finally, the declaration by Mr. Acosta provides some proof for the loans

made to Defendant (in the form of either promissory notes or cancelled checks).

While there is a reference to ‘some payments made,’ Plaintiff provides no

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balance or ledger sheets to show such payments. Further, the payments and

promissory notes indicate only the Ayala Corporation as the payee; there are no

facts or evidence to make a prima facie case that the other entities or

individuals should be liable for the debts.”

Because Plaintiff has not addressed any of these issues, the request for default

judgment is, once again, denied without prejudice.

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



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Re: Martinez v. Lopez et al.


Hearing Date: If oral argument is TIMELY requested on 3/25/19 between

3:00 p.m. and 4:00 p.m., the hearing will be held on

THURSDAY March 28, 2019 (Dept. 501) @ 3:00 p.m.

Motion: Demurrer to First Amended Complaint

Tentative Ruling:

To sustain the demurrer without leave to amend. Within 7 days of service of the

order, demurring parties shall submit to the court a judgment dismissing the action.

(Code Civ. Proc. § 430.10(e).)

Explanation:

Though the pleadings are somewhat vague, it is clear that the trespass claim is

premised on judicial orders issued by defendants Judge Pro Tem Amy Lopez and Judge

David Kalemkarian in other cases involving plaintiff.

"[A] plaintiff must allege facts demonstrating or excusing compliance with the

claim presentation requirement." (State of California v. Superior Court (2004) 32 Cal.4th

1234, 1243.) "Otherwise, his complaint is subject to a general demurrer for failure to state

facts sufficient to constitute a cause of action." (Ibid.) Under Government Code section

945.4, “no suit for money or damages may be brought against a public entity … until a

written claim therefore has been presented to the public entity and has been acted

upon …”

No suit may be brought against a public entity until a written claim has been

presented to the public entity and has been acted upon by the Board, or has been

deemed to be have been denied by the Board. (Gov. Code § 945.4.) The claim filing

requirement applies to any lawsuit for damages against the State or its employees.

(Gov. Code §§ 911.2, 950.2, 945.4.)

Plaintiff alleges that the "initial cause of harm began October 5th, 2015.” (FAC

p.1.) Plaintiff is time-barred from presenting a claim based because he was required to

present a claim within six months of the date of damage. (Gov. Code §§ 901, 911.2.)

Accordingly, plaintiff was required to present a claim no later than 4/2/16. The earliest

of the notices attached to the FAC (even if they were construed to constitute claims

under the Act), are dated 6/29/17 and 6/30/17, well beyond the 4/2/16 deadline.

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Even if plaintiff had timely presented a claim, the action is barred by judicial

immunity.

The demurrer is premised on the fact that defendants' only connection to

plaintiff is limited to their roles as judicial officers presiding over plaintiff’s other matters.

Judicial officers are entitled to unqualified immunity and are therefore immune

from civil suits arising out of the exercise of their judicial functions. (Mireles v. Waco

(1991) 502 U.S. 9, 11.) Here, Judge Kalemkarian and Judge Pro Tem Lopez enjoy

absolute judicial immunity for all acts taken in their official capacity. While plaintiff fails

to allege specific conduct by these defendants, it is clear from the FAC that plaintiff is

dissatisfied with rulings by the defendants made in plaintiff’s other cases. (See FAC p. 5

["...the decisions this court made are harming this man. ..."].) The demurrer should be

sustained without leave to amend on the ground that these defendants have absolute

judicial immunity.

The demurrer should be sustained without leave to amend on the additional

ground that the trespass claim is time barred. The initial complaint was filed on

12/31/18. Plaintiff alleges that the cause of the harm began on 10/5/15. The statute of

limitations for trespass is three years. (Code Civ. Proc. § 338(b).) Therefore, the statute of

limitations on any cause of action based upon a trespass theory expired by 10/5/18 at

latest.

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 3/22/2019 .


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Re: Stormes v. Elder

Case No. 18CECG02345

Hearing Date: If oral argument is TIMELY requested on 3/25/19 between 3:00 p.m.

and 4:00 p.m., the hearing will be held on THURSDAY March 28,

2019 (Dept. 501) @ 3:00 p.m.

Motion: By Defendant to strike exemplary damages.

Tentative Ruling:

To deny the motion. Defendant shall have ten (10) court days to file a responsive

pleading.

Explanation:

California Rule of Court 3.1322, subdivision (a) requires that a motion to strike

must “must quote in full the portions sought to be stricken except where the motion is to

strike an entire paragraph, cause of action, count, or defense. Specifications in a

notice must be numbered consecutively.”

Here, as objected to by Plaintiff, the motion and notice does not indicate what

portions of the complaint defendants are seeking to strike in accordance with the

California Rule of Court. In the reply brief, Defendant argues that the “x” next to the

punitive damages box should be stricken. This request, however, does not appear in the

notice of motion. Therefore, the motion is denied.

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

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

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

service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: JYH on 3/25/2019 .


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Re: Gonzales v. Adelaja

Court Case No. 18CECG00247


Motion: Defendant’s Motion for Summary Judgment, or in the alternative,

for Summary Adjudication

Tentative Ruling:

To grant summary adjudication of the first cause of action for medical

negligence. To treat the motion for summary adjudication of the second and third

causes of action as a motion for judgment on the pleadings, and to grant without

leave to amend. To deny summary adjudication as to the Sixth Affirmative Defense.

Defendant is directed to submit to this court, within 5 days of service of the minute

order, a proposed judgment consistent with this order.

Explanation:

The court disregards defendant’s “Objections” to plaintiff’s amended Separate

Statement filed on March 19, 2019, which amounts to a “reply separate statement,”

which the summary judgment statute does not provide for or allow. (Nazir v. United

Airlines, Inc. (2009) 178 Cal.App.4th 243, 248.) The court gave defendant leave to file an

additional 5-page reply brief, and not a “reply separate statement.”

Burden on Summary Judgment

In ruling on a motion for summary judgment or summary adjudication, the court

must consider all of the evidence and all of the inferences reasonably drawn therefrom

and must view these in the light most favorable to the opposing party. (Aguilar v.

Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) In making this determination, courts

usually follow a three-prong analysis: identifying the issues as framed by the pleadings;

determining whether the moving party has established facts negating the opposing

party's claims and justifying judgment in the movant's favor; and determining whether

the opposition demonstrates the existence of a triable issue of material fact. (Lease &

Rental Management Corp. v. Arrowhead Central Credit Union (2005) 126 Cal.App.4th

1052, 1057-1058.)

As the moving party, defendant “bears an initial burden of production to make a

prima facie showing of the nonexistence of any triable issue of material fact[.]” (Aguilar

v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 850.) If Dr. Adelaja meets this burden,

then the burden of production shifts to plaintiff “to make a prima facie showing of the

existence of a triable issue of material fact.” (Ibid.)

A defendant who seeks a summary judgment must define all of the theories of

liability alleged in the complaint and challenge each factually; if the defendant fails to

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do so, he or she does not carry the initial burden of showing the nonexistence of a

triable issue of material fact. (Jameson v. Desta (2013) 215 Cal.App.4th 1144, 1165;

Lopez v. Superior Court (1996) 45 Cal.App.4th 705, 714.)

First Cause of Action – Medical Malpractice

Medical providers must exercise that degree of skill, knowledge, and care

ordinarily possessed and exercised by members of their profession under similar

circumstances. (Barris v. County of Los Angeles (1999) 20 Cal.4th 101, 108, fn. 1.) Thus,

in any medical malpractice action, the plaintiff must establish: “(1) the duty of the

professional to use such skill, prudence, and diligence as other members of his

profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate

causal connection between the negligent conduct and the resulting injury; and (4)

actual loss or damage resulting from the professional's negligence.” (Hanson v. Grode

(1999) 76 Cal.App.4th 601, 606, citation and internal quotes omitted.)

Typically, when a defendant in a medical malpractice action moves for

summary judgment and supports motion with an expert declaration opining that his

conduct fell within the community standard of care, he is entitled to summary judgment

unless plaintiff comes forward with conflicting expert evidence. (Munro v. Regents of

Univ. of Cal. (1989) 215 Cal.App.3d 977, 983-985.)

However, an expert’s declaration submitted in connection with a summary

judgment motion must not be speculative or lacking in foundation, and must be made

with sufficient certainty. “It is sufficient, if an expert declaration establishes the matters

relied upon in expressing the opinion, that the opinion rests on matters of a type

reasonably relied upon, and the bases for the opinion. [Citation.]” (Sanchez v. Hillerich

& Bradsby Co. (2002) 104 Cal.App.4th 703, 718.) A defendant’s expert declaration must

be detailed, explaining the basis for the opinion and the facts relied upon. (Powell v.

Kleinman (2007) 151 Cal.App.4th 112, 125; Kelley v. Trunk (1998) 66 Cal.App.4th 519, 521,

524–525.) Moreover, because expert opinion may not be based on assumptions of fact

that are without evidentiary support and experts may not recite hearsay as fact,

properly authenticated medical records reviewed by the experts must be included in

the motion for summary judgment. (Garibay v. Hemmat (2008) 161 Cal.App.4th 735,

743.)

Under these standards, the Declaration of Dr. Paul M. Goldfarb, defendant Dr.

Adelaja’s medical expert, is sufficient. The medical records relied on by Dr. Goldfarb

were submitted into evidence, and he properly relied on Dr. Adelaja’s own declaration.

An expert may opine without having personally observed any of the facts on which he

relies. (Manney v. Housing Authority of City of Richmond (1947) 79 Cal.App.2d 453, 459-

460.) He sufficiently explained the basis for his opinion. Plaintiff’s evidentiary objections

to Dr. Goldfarb’s declaration are overruled. This declaration is complete and sufficient

to establish that the doctor met the applicable standard of care in treating plaintiff. This

is sufficient to negate plaintiff’s claim of professional negligence. (See Munro, supra.)

The burden therefore shifts to plaintiff to show the existence of a triable issue of

material fact. While plaintiff opposed the motion, she has introduced no conflicting

expert evidence to controvert the expert evidence introduced by Dr. Goldfarb.

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Accordingly, plaintiff has not met her burden. It appears there is no question that during

the surgery performed by Dr. Adelaja, the metallic-marked masses were not removed.

Both Dr. Goldfarb, and Dr. Adelaja, as her own expert witness, opine that this did not

deviate from the standard of care because Dr. Adelaja removed the tissue she

palpated during her examination of plaintiff, which plaintiff stated was causing her

pain. They conclude this was within the standard of care since it had already been

determined that the marked masses were benign, and taking less tissue would minimize

disfigurement, i.e., that it was within the standard of care for the doctor to remove the

mass which plaintiff had identified as causing her pain and leave the marked masses.

Summary adjudication of the medical malpractice cause of action is

appropriate.

Second and Third (Fraud-Based) Causes of Action

A motion for summary judgment/adjudication necessarily tests the sufficiency of

the pleadings, and thus its legal effect is the same as a demurrer or a motion for

judgment on the pleadings. (See Yancey v. Superior Court (1994) 28 Cal. App. 4th 558,

561-62; American Airlines, Inc. v. County of San Mateo (1996) 12 Cal.4th 1110, 1117.)

Therefore, if the court concludes the complaint, or any claim or defense, is insufficient

as a matter of law, it “may elect to treat the hearing of a summary judgment motion as

a motion for judgment on the pleadings and grant the opposing party an opportunity

to file an amended complaint to correct the defect.” (Hobson v. Raychem Corp. (1999)

73 Cal.App.4th 614, 624, disapproved of on other grounds by Colmenares v. Braemar

Country Club, Inc. (2003) 29 Cal.4th 1019.) But leave to amend will not be granted

where all possible facts have been alleged and it can be determined as a matter of

law that no cause of action exists. In such cases, a summary judgment motion is

properly treated as a motion for judgment on the pleadings, and may be granted

without leave to amend. (Hansra v. Superior Court (1992) 7 Cal.App.4th 630, 647.)

A motion for judgment on the pleadings has the same function as a general

demurrer, but is made after the time for demurrer has expired. Thus, except as provided

by statute, the rules governing demurrers apply. (Cloud v. Northrop Grumman Corp.

(1998) 67 Cal.App.4th 995, 999; County of Orange v. Association of Orange County

Deputy Sheriffs (2011) 192 Cal.App.4th 21, 32—“A defendant's motion for judgment on

the pleadings should be granted if, under the facts as alleged in the pleading or

subject to judicial notice, the complaint fails to state facts sufficient to constitute a

cause of action.”)

The second and third causes of action are not well-pleaded, so judgment on the

pleadings must be granted as to these counts. The alleged statements which form the

factual basis for both causes of action, are stated as follows: “During the course of the

doctor/patient relationship between Plaintiff and Defendant, Defendant made

promises and representations to Plaintiff that she was authorized and qualified to

perform, and would perform, medical services in a competent manner and that she

had and would continue to offer Plaintiff sound advice as to the maintenance of her

medical health.” This allegation cannot support a fraud-based claim, since this is what

every doctor “represents” and “promises” to a patient he or she treats, whether it is

stated expressly or impliedly. All doctors hold themselves out as competent to treat their

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patients and render sound medical advice, and all patients rely on their doctors having

such competence. If the doctors do not measure up to that standard, this is medical

negligence, not fraud.

The question, then, is whether leave to amend can be granted. There is no

evidence that Dr. Adelaja promised specifically, before surgery, to remove the metallic-

marked tissue as opposed to removing the lump the doctor palpated in examining

plaintiff before surgery, which plaintiff indicated was causing her pain. At best, plaintiff’s

declaration states “not once was there a discussion of not removing the marked

lumps.” In other words, all plaintiff can say is that Dr. Adelaja did not tell her she was not

going to remove those specific lumps. It does not appear plaintiff can credibly

allegethat Dr. Adelaja affirmatively made a false promise or misrepresentation that she

would remove the marked tissue, upon which plaintiff relied.

Plaintiff states on this motion that Dr. Adelaja never told plaintiff, after the surgery,

that she had not removed the metallic-marked tissue, which she argues is

concealment. However, such an allegation would also not aid plaintiff in stating a

cause of action, since something the doctor concealed after the surgery could not

possibly be something plaintiff relied on before the surgery.

It does not appear that plaintiff can amend these causes of action to credibly

allege a fraudulent representation or negligent misrepresentation to cure the defect in

these cause of action. Thus, leave to amend must be denied.

Sixth Affirmative Defense—Statute of Limitations

Plaintiff has stated in her declaration that Dr. Adelaja never discussed with

plaintiff the fact that the lumps/tumors with the metallic markers were not removed

during the 2014 surgery, and that the first time she learned about this was when she

spoke with Dr. Forsythe on or about March 30, 2017. Each declaration is normally

accepted as true in determining whether there are triable issues of material fact. (Code

Civ. Proc., § 437c, subd. (e); AARTS Productions, Inc. v. Crocker National Bank (1986) 179

Cal.App.3d 1061, 1064.) The court does not weigh the evidence on summary judgment.

(Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.) Plaintiff’s statement is

sufficient to raise a triable issue of material fact as to whether she learned about this as

early as September 18, 2015, as defendant claims. Summary adjudication of this

affirmative defense must be denied.





Tentative Ruling DSB 3-25-19

Issued By: on .


16

Tentative Rulings for Department 503 (19) Tentative Ruling

Re: Nevarez v. Foster Farms, LLC



Motion: By plaintiff for leave to file Third Amended Complaint

Tentative Ruling:

To grant and order that the Third Amended Complaint be filed and served by

April 3, 2019.

To set a hearing on May 22, 2019, at 3:30 p.m., in Department 503, for a motion

by plaintiff to 1) certify the Labor Code section 203 claim; 2) seek appointment of the

two new plaintiffs as class representatives for such claim, and 3) show manageability for

trial of all claims. Plaintiff must file that motion by April 17, 2019. Any opposition is due

by May 1, 2019, and a reply may be filed on or before May 10, 2019.

Explanation:

There is no trial date in this action. The claim under Labor Code section 203 is

derivative of and dependent on the success of the already-pled certified claims. The

fact that class members have separated from their employment after this case was

filed is well-known to defendant, as are the facts of the claims underlying the proposed

new claim. Defendant was made aware of the claim as early as 2017, but resisted its

addition until class members who had separated from employment were joined as

plaintiffs. Defendant was specifically aware of the two proposed new plaintiffs more

than six months ago, and has had ample opportunity to take their depositions to test

their qualifications as additional class representatives. Where the facts are known to a

defendant, prejudice cannot accrue. (Mesler v. Bragg Management Company (1985)

39 Cal.3d 290, 297; County Sanitation Dist. No. 2 v. County of Kern (2005) 127

Cal.App.4th 1544, 1618.)

"[T]he test is whether the two pleadings relate to the same general set of facts.

Plaintiff's proposed amendment, by seeking recovery for the same accident and injuries

as the original complaint, complies with that test." (Hirsa v. Superior Court (1981) 118

Cal.App.3d 373, 489.) Here, the additional claim is derivative of the already existing

claims, based on facts occurring after this case was filed – separate from employment

of some class members. The core injury alleged is failure to pay all wages; a waiting

time penalty under Labor Code section 203 is an additional penalty for such failure

where it extends past separation from employment.

The addition of class representatives to protect the claims of the class is

common. (See, e.g., Budget Finance Plan v. Superior Court (1973) 34 Cal.App.3d 794,

17

799; La Sala v. American Sav. & Loan Assn. (1971) 5 Cal.3d 864; Cashcall, Inc. v. Superior

Court (2008) 159 Cal.App.4th 273.)

The cases cited by defendant involved situations where the named class

representative was never an appropriate representative, either because he or she had

no class claim, had credibility problems, or was a convicted criminal. In such situations,

the court may find a specter of abuse of the class action process, and deny leave to

add a representative on that basis. Here, Nevarez has already been ruled a proper

class representative for certified class claims, and class action abuse is not an issue.

Therefore, “[t]he general principles governing the amendment of a complaint apply to

the decision whether to permit an amendment naming a new class representative.”

(Payton v. CSI Electrical Contractors, Inc. (2018) 27 Cal.App.5th 832, 848.) As explained

by the court in Jaimez v. Daiohs USA, Inc. (2010) 181 Cal.App.4th 1286, 1301:

As leave to amend is routinely granted and because the Class presented

two new class representatives (in direct response to the trial court's

concern regarding the adequacy of Jaimez as a class representative), we

conclude the trial court abused its discretion in denying leave to amend.

If the motion to amend is timely made and the granting of the motion will

not prejudice the opposing party, it is error to refuse permission to amend

and where the refusal also results in a party being deprived of the right to

assert a meritorious cause of action or a meritorious defense, it is not only

error but an abuse of discretion.

Here, the motion is made in response to defendant’s own insistence that the

current class representative was unable to fully represent the class on all of its claims,

where separated employees were concerned. Defendant’s case of Melican v. UC

Regents (2007) 151 Cal.App.4th 168, concerned an attempt to amend in the face of a

summary judgment motion, to avoid a judgment against the plaintiff. That case does

not apply here, where defendant was permitted to go forward with its summary

adjudication motions without facing an attempt to derail its efforts with an interfering

motion to amend. The motion was denied, and this after-filed motion had no

prejudicial effect on that outcome.

The instant motion does not address whether the new plaintiffs are appropriate

class representatives, and a showing that the Labor Code section 203 claim should be

certified is also necessary. As noted by defendant, it is also time to address trial

manageability for all claims. A separate motion addressing these issues is necessary.

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: KAG on 3/19/19.


18


Re: Fletcher v. Kumar, et al.


Mer, et al. v. Kumar, et al.


Hearing Date: March 26, 2019 (Dept. 503 - note change of department)

Motion: Consolidate

Tentative Ruling:

To deny Defendant Kumar’s motion to consolidate case no. 18CECG00954 and

case no. 18CECG1980, without prejudice. (CRC, rule 3.350(a)(1).)

Explanation:

California Rules of Court, rule 3.350(a)(1) requires that notice of a motion to

consolidate be filed in each case sought to be consolidated.

In the case at bench, the moving party failed to file notice of the instant motion

in case no. 18CECG01980. Accordingly, the motion is denied without prejudice.

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


Tentative Ruling



19

(29)

Tentative Ruling

Re: Toutikian v. El-Sayegh



Motions: Demurrer, strike

Tentative Ruling:

To sustain Defendant El-Sayegh’s demurrer to Plaintiff’s first through fifth causes of

action. (Code Civ. Proc. §430.10(e).)

To grant Defendant El-Sayegh’s unopposed motion to strike. (Code Civ. Proc.

§436.)

Plaintiff is granted 20 days, running from service of the minute order by the clerk,

to file and serve a first amended complaint. All new allegations in the amended

complaint are to be set in boldface type.

Explanation:

Demurrer

Breach of Fiduciary Duty

To adequately allege breach of fiduciary duty, a plaintiff must allege a fiduciary

relationship, its breach, and damage proximately caused by that breach. (Knox v.

Dean (2012) 205 Cal.App.4th 417, 432.) Where a person was once a limited partner, but

then sells his or her partnership interest, the “mere fact that they were formerly limited

partners and the collateral securing an indebtedness to them is a limited partnership

interest does not mean that they have the same status as the partners and are owed a

fiduciary duty by the partners. The plaintiffs may assert a claim for damages or even

equitable relief for the torts or breaches of trust by the partnership or individual partners

[citations], not because a fiduciary duty is owed to them but because there has been a

breach of a statutory, contractual or common law duty.” (Baldwin v. Marina City

Properties, Inc. (1978) 79 Cal.App.3d 393, 406.)

In the case at bench, Plaintiff alleges Defendant owes Plaintiff a fiduciary duty

“as a partner[.]” (Complaint, at ¶14.) However, Plaintiff also alleges that he sold his

partnership interest to Defendant. (Id. at ¶¶6-7.) Exhibit A to the complaint establishes

that, in December 2015, Plaintiff agreed to sell, and Defendant agreed to buy, Plaintiff’s

interest in Tiger Auto Sales. Because Plaintiff alleges that he has sold his interest in the

partnership, Plaintiff cannot also allege a fiduciary duty based on such partnership

interest. Accordingly, the demurrer to Plaintiff’s breach of fiduciary duty cause of

action is sustained, with leave to amend.

20

Dissolution and Accounting

The court can “take jurisdiction of an action for the dissolution of the partnership

only at the instance of a partner[.]” (Behlow v. Fischer (1894) 102 Cal. 208, 216; see also

Baldwin, supra, 79 Cal.App.3d at p. 406.)

As set forth above, Plaintiff alleges that he sold his interest in the partnership to

Defendant. As Plaintiff is no longer a partner in Tiger Auto Sales, it appears that Plaintiff

lacks standing to seek a dissolution and accounting. Defendant’s demurrer to this

cause of action is therefore sustained, with leave to amend.

Receivership

“Upon the dissolution of any corporation, the Superior Court of the county in

which the corporation carries on its business or has its principal place of business, on

application of any creditor of the corporation, or of any stockholder or member

thereof, may appoint one or more persons to be receivers or trustees of the

corporation, to take charge of the estate and effects thereof, and to collect the debts

and property due and belonging to the corporation, and to pay the outstanding debts

thereof, and to divide the moneys and other property that shall remain over among the

stockholders or members.” (Code Civ. Proc. §565.)

Plaintiff alleges in his complaint that he and Defendant are sole general partners

of Tiger Auto Sales, and he appears to seek the appointment of a receiver based on his

status as a partner. Plaintiff also alleges, however, that he sold his partnership interest to

Defendant, such that it would not appear that Plaintiff has standing to seek the

appointment of a receiver based on Plaintiff’s status as a partner of Tiger Auto Sales.

In the opposition, Plaintiff simply asks the Court to “[p]lease see argument above

in A(1) and (2).” (Opp., at 6:5.) Plaintiff argues in his opposition that the “[m]ere fact of

dissolution of partnership [sic] before bringing action [sic] does not remove bar [sic]

against law actions between partners in absence [sic] of statute.” (Opp., at 5:16-17.)

The meaning of this argument is unclear. Plaintiff also argues that a partner’s fiduciary

duty “extends to the dissolution and liquidation of partnership affairs, as well as to the

sale by one partner to another of an interest in the partnership.” (Id. at 4:14-16.) It is

unclear how this supports Plaintiff’s receivership cause of action. It does not appear

that the partnership has been dissolved. (See Corp. Code §16801; Chatten v. Martell

(1958) 166 Cal.App.2d 545, 551 [“A conveyance by a partner of his interest in the

partnership does not of itself dissolve the partnership[.]”.) Defendant’s demurrer to

Plaintiff’s receivership claim is sustained, with leave to amend.

Breach of Contract

“If plaintiffs are to plead sufficient facts to state a cause of action for an

impairment to their security interest, for conversion or conspiracy to convert, or for the

breach of a contractual right, or for a tort or statutory wrong, plaintiffs must allege and

seek the proper measure of damages. Plaintiffs' compensatory monetary damages are

limited to the alleged impairment of the value of the collateral or security interest, but in

21

no event for a sum greater than the unpaid balance due on the secured indebtedness

plus the collection cost.” (Baldwin, supra, 79 Cal.App.3d at p. 412.)

Here, Plaintiff alleges that he sold his interest in Tiger Auto Sales to Defendant for

$265,000 and that he also loaned Defendant $50,000. Plaintiff alleges that Defendant

has failed to make the payments on these debts as agreed by the parties. Plaintiff

seeks $1.2 million in damages pursuant to his breach of contract claim. The amount

sought is greater than the amount of the unpaid balances owed. The demurrer to this

cause of action is sustained, with leave to amend.

Judicial Expulsion of Partner

A partner may be dissociated from a partnership on application by the

partnership or another partner for the partner's expulsion by judicial determination.

(Corp. Code §16601(5).)

Plaintiff’s judicial expulsion cause of action is brought pursuant to Corporations

Code section 16601. Plaintiff fails to specify on which subdivision he relies. As Plaintiff is

no longer a partner, it appears that insufficient facts are pled in support of this claim,

under any subdivision. Defendant’s demurrer to Plaintiff’s judicial expulsion cause of

action is sustained, with leave to amend.

Motion to Strike

Punitive damages are authorized in noncontract actions “where it is proven by

clear and convincing evidence that the defendant has been guilty of oppression,

fraud, or malice[.]” (Civ. Code §3294(a).) “In the absence of an independent tort,

punitive damages may not be awarded for breach of contract even where the

defendant's conduct in breaching the contract was willful, fraudulent, or malicious.”

(Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 516, internal

quotation marks and citations omitted.)

Here, it is unclear whether Plaintiff seeks punitive damages based on

Defendant’s alleged breach of the purchase and sale agreement, alleged breach of a

partnership agreement, or alleged breach of Defendant’s alleged fiduciary duty. There

are insufficient allegations of oppression, fraud, or malice in the complaint to support a

request for punitive damages, if the request is indeed based on an independent tort. If

the request is based on Defendant’s alleged breach of a contract, punitive damages

are not available. As it is unclear from the complaint, and as Plaintiff did not file an

opposition to the motion, Defendant’s motion to strike is granted, with leave to amend.

Pursuant to California Rules of Court, rule 3.1312, 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


Tentative Ruling



22


Re: Xiong v. Creative Alternatives, Inc. et al.



Motion: Petition to Compromise Claim

Tentative Ruling:

To deny without prejudice. Petitioner must file a new petition, with appropriate

supporting papers and proposed orders, and obtain a new hearing date for

consideration of the amended petition. (Super. Ct. Fresno County, Local Rules, rule

2.8.4.)

Explanation:

The petition indicates that there is a Medi-Cal lien. Petitioner was required to

attach a copy of the final Medi-Cal demand letter as Attachment 13b(4). There is no

Attachment 13b(4).

There is insufficient information in the petition for the Court to determine if the

costs are reasonable and appropriate to be paid from the settlement. It is insufficient to

lump all of the costs together. Each must be broken out with the amount of fees for

each category separately provided.

The customary reasonable attorney’s fees in a petition to compromise the claim of an adult person with a disability are 25 percent of the net settlement (gross

settlement minus costs). In the current petition, the attorney seeks 25 percent of the

gross amount.

When attorney’s fees are sought, a declaration from the attorney explaining the

basis for the request, including a discussion of applicable factors listed in rule 7.955(1) of

the California Rules of Court, is to be included, as is a copy of the fee agreement.

There is no declaration and no copy of the fee agreement.

The petition indicates that there is a conservatorship of the estate of the adult

person with a disability. The case number provided is 17CEPR00425. In that case, there

is a conservatorship of the person, but not of the estate. Therefore, the proposed

disposition of the proceeds is improper.

Pursuant to 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


(Judge’s initials) (Date

23


Re: Dilldine v. First Mortgage Corporation



Motion: 1) Defendant’s Motion to Set Aside Default

2) Plaintiff’s Prove-Up Hearing for Default Judgment

Tentative Ruling:

To grant the motion to set aside default and to order the default prove-up

hearing off calendar as moot in light of that ruling. Defendant is granted 10 days’ leave

to obtain a hearing date from the calendar clerk and file its demurrer to the Second

Amended Complaint. The 10 days’ leave will run from service by the clerk of the minute

order.

Explanation:

On application, the court may, on any terms as may be just, relieve a party from

a default taken against it due to mistake, inadvertence, surprise, or excusable neglect.

(Code Civ. Proc., § 473, subd. (b).) Code of Civil Procedure section 473 permits a

defaulted party to move to set aside a default if such motion is brought within six

months of the default. Here, the default was entered on September 10, 2018, so this

motion was timely filed. A copy of defendant’s proposed responsive pleading, a

demurrer, was attached to defense counsel’s supporting declaration.

Setting aside the default is within the sound discretion of the trial court, and even

where a showing under section 473, subdivision (b), is not strong, any doubt should be

resolved in favor of setting aside the default due to the strong policy favoring resolving

disputes on their merits. (Berman v. Klassman (1971) 17 Cal.App.3d 900, 909; Barnes v.

Witt (1962) 207 Cal.App.2d 441, 448; Daher v. American Pipe & Const. Co. (1968) 257

Cal.App.2d 816, 819.) In this case, defendant made good faith efforts to address the

charges leveled against it in the complaint by way of the stipulation with plaintiff for its

dismissal, in exchange for other agreements on defendant’s part. It had no notice that

the request for an order of dismissal had been denied. Once defense counsel was

notified of the default, he immediately contacted plaintiff to discuss setting aside the

default and then brought this motion once it was clear those efforts were unsuccessful.

This matter should be heard on its merits. No party to this dispute will be

prejudiced by setting aside the default, but defendant would be unfairly prejudiced if

the default is not set aside.





Tentative Ruling



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