Tentative Rulings for May 7, 2009 - Fresno Superior Court · Tentative Rulings for May 17, 2017 ......
Transcript of Tentative Rulings for May 7, 2009 - Fresno Superior Court · Tentative Rulings for May 17, 2017 ......
Tentative Rulings for May 17, 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).)
15CECG03207 Price v. Ahlin (Dept. 502)
The court has continued the following cases. The deadlines for opposition and reply
papers will remain the same as for the original hearing date.
17CECG00897 Kelton v. Coca-Cola Bottling Co., et al. is continued to Thursday,
May 25, 2017, at 3:30 p.m. in Dept. 502.
________________________________________________________________
(Tentative Rulings begin at the next page)
Tentative Rulings for Department 402
(20) Tentative Ruling
Re: Boyd v. J.H. Boyd Enterprises, Inc., et al.
Case No. 14CECG03792
Consolidated with
J.H. Boyd Enterprises, Inc. v. Boyd et al.
Case No. 15CECG00915 (lead case)
Hearing Date: May 17, 2017 (Dept. 402)
Motion: Motion for Order to Stay Enforcement of Judgment
Tentative Ruling:
To deny. (Code Civ. Proc. § 918(b).)
Explanation:
Based on the application of Code Civ. Proc. § 918(b) and 917.4, the court can
only stay enforcement of the judgment if it determines that no undertaking is required
because the value of the property is sufficient to satisfy the judgment. Defendant’s
contention on this point is based solely on his declaration, that of an interested party,
which does not even state a value for the property. No evidence of the value of the
property has been submitted, much evidence less from an uninterested appraiser. This
judgment was entered on 10/31/16. If defendant wanted a stay of enforcement,
defendant should have initiated proceedings to determine the value of the property
much earlier. Moreover, there is no evidence that any concrete steps have been
taken to foreclose on the property.
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 05/16/17
(Judge’s initials) (Date)
(24) Tentative Ruling
Re: Moreno v. Club One Casino
Court Case No. 14CECG03196
Hearing Date: May 17, 2017 (Dept. 402)
Motion: Demurrer of Defendants Juan Calderon, Carlos Quintero, Alvin
Aguirre, Shane Shepherd, and Juan Tapia to the Complaint
Tentative Ruling:
To order the special demurrer off calendar, as defective. To overrule the general
demurrers to each cause of action. (Code Civ. Proc. § 430.10, subd. (e).) Defendants
are granted 10 days’ leave to file their answer(s) to the complaint, with the time to run
from service by the clerk of the minute order.
Explanation:
Technical Defects:
No demurrer was filed. Defendants filed what purports to be a combined Notice
of Hearing and Demurrer, but there is no language on that document constituting the
demurrer. A demurrer is separate and distinct from the Notice of Hearing and the
memorandum supporting the motion. While combining the Demurrer and Notice of
Hearing is not a fatal flaw, there must be a demurrer. Code of Civil Procedure section
430.60 states that the demurrer “shall distinctly specify the grounds upon which any of
the objections to the complaint…are taken,” and if it does not “it may be disregarded.”
While the document entitled “Notice of Demurrer and Demurrer to Plaintiff’s Complaint”
provides adequate information constituting the Notice of Hearing, it does not “distinctly
specify the grounds” of demurrer, and instead states: “The basis for Defendants’
demurrer is more fully set forth in the accompanying Memorandum of Points and
Authorities in support thereof.” That is improper under section 430.60: the memorandum
is not the demurrer.
Moreover, even the memorandum itself does not provide adequate language
for demurrer. It states, “Defendants demur to each of the three causes of action in
Plaintiff’s Complaint on the basis that the Complaint is vague, uncertain, ambiguous
and "does not state facts sufficient to constitute a cause of action" under California
Code of Civil Procedure sections 430.10(e)(f).” Even if this language had been included
in the demurrer (as required), it violates California Rules of Court, Rule 3.1320, subdivision
(a), which requires that each ground of demurrer must be separately stated (i.e., not
the same statement as to “each cause of action” and not two different types of
demurrer, i.e., general and special, in the same paragraph).
These defects provide a basis for the court to disregard the motion entirely, i.e.,
order it off calendar. The court will do that as to defendants’ attempt at special
demurrer for uncertainty. However, to the extent the arguments for general demurrer to
each cause of action could be subsequently raised by a motion for judgment on the
pleadings, the court will consider the general demurrer on the merits.
Meet and Confer:
Plaintiff argues that meet and confer was insufficient since defense counsel
merely made a short, perfunctory phone call and did not attempt the collegial and
collaborative process contemplated by Code of Civil Procedure section 430.41.
Defendant argues that this motion is identical to the demurrer defendants raised before
the bankruptcy stay, which had already been fully briefed before being taken off
calendar. The reason the phone call was brief was because these concerns had
already been discussed and briefed, so there was no need to belabor the
conversation.
The court does expect meaningful meet and confer prior to a demurrer being
filed, and where this is not met it routinely orders demurrers off calendar in order for the
parties to meet further and to re-calendar the demurrer only if this is not productive.
Here, however, the court considers meet and confer sufficient since this motion
amounts to re-calendaring (albeit with added moving parties) a fully-brief motion that
was taken off calendar due to a bankruptcy stay.
Assault and Battery:
The liability of demurring defendants in the First and Second causes of action is
based on their taking part in a conspiracy to commit assault and battery on plaintiff,
rather than committing assault and battery themselves. To properly allege a
conspiracy, a plaintiff must allege: “(1) the formation and operation of the conspiracy,
(2) wrongful conduct in furtherance of the conspiracy, and (3) damages arising from
the wrongful conduct.” (Arei II Cases (2013) 216 Cal.App.4th 1004, 1022, brackets
added. See also 5 Witkin, Cal. Proc. 5th (2008) Plead, § 922, p. 336—second prong
requires allegation of “wrongful act or acts of any of the conspirators pursuant to the
conspiracy” (emphasis added).)
The cases are consistent in finding that the acts constituting the formation of the
conspiracy need not be alleged: the general averment that the defendants agreed to
a conspiracy is sufficient. (See Id. at pp. 535, 537—finding allegation that defendants
“have conspired together” sufficient; See also Farr v. Bramblett (1955) 132 Cal.App.2d
36, 47, disapproved of on other grounds by Field Research Corp. v. Superior Court of
City and County of San Francisco (1969) 71 Cal.2d 110—“Plaintiffs could not more
clearly allege the ultimate fact of conspiracy than by pleading that defendants ‘did
agree together’”.) Here, plaintiff has generally alleged that the defendants
“did…engage in an unlawful conspiracy,” which is sufficient.
The wrongful conduct of the defendants who actually committed the assault
and battery are sufficiently alleged; defendants did not argue otherwise. Contrary to
what they appear to suggest, plaintiff does not need to allege that the conduct of the
conspirator was itself independently tortious. (Greenwood v. Mooradian (1955) 137
Cal.App.2d 532, 538—“The view that defendant…must be shown to have done some
overt and independently tortious act in order to be liable as a conspirator is a mistaken
one.”) Plaintiff has sufficiently and clearly alleged that defendants took affirmative
action to support the tortious conduct of Does 1-3, in keeping with the conspiracy. This is
sufficient, since a conspirator can be held liable “regardless of whether [he] was a
direct participant in the wrongful act.” (Arei II Cases (2013) 216 Cal.App.4th 1004, 1024,
citing to and quoting from 5 Witkin, Cal. Proc. 5th (2008) Plead, § 921, p. 336.) Finally,
plaintiff has clearly alleged damages; defendants did not contend otherwise.
Negligence:
Defendants argue plaintiff fails to allege what role or capacity they held which
imposed on them a duty of care toward plaintiff as a “business invitee.” However,
plaintiff has alleged they were employees, and thus they owed the same duty of care
as their employer did. Similarly, plaintiff’s allegation that defendants were employees is
sufficient at the pleading stage to allege that they were responsible for the training,
investigation (before hiring), and supervision of employees, and for company-wide
policies towards “unruly or otherwise disruptive” patrons.
Plaintiff also adequately alleges causation. While defendant cites to Bockrath v.
Aldrich Chemical Co., Inc. (1999) 21 Cal.4th 71, 78 (“Bockrath”) for the proposition that
in pleading causation plaintiff must plead specific facts “explaining how the conduct
caused or contributed to the injury,” the California Supreme Court clearly said this only
pertained to cases where “'the pleaded facts of negligence and injury do not naturally
give rise to an inference of causation.” (Id.) Moreover, the Court said this was in
contrast to “the ordinary personal injury lawsuit, in which the complaint's factual
recitations show plainly the connection between cause and effect,” in which case “it
suffices to plead causation succinctly and generally.” (Id., emphasis added.)
Bockrath was a products liability case wherein plaintiff had named 55 different
manufacturers as being responsible for causing his cancer, but had only alleged
causation generally. This was not the “ordinary” personal injury suit, and under the then-
developing rules pertaining specifically to products liability cases, the court said plaintiff
was required to allege “that each defendant’s product was a substantial factor” in
causing his cancer, and the Court set forth a very specific five-point guideline he must
follow in alleging causation. (Id. at p. 79-80.) That is not applicable here. In the instant
case, the complaint’s recitation of what is alleged to have happened to plaintiff at the
hands of employees of Club One Casino, Inc. is clearly connected to the hiring,
training, and supervision of those employees; thus this case is in the category of the
“ordinary personal injury lawsuit” where the “complaint's factual recitations show plainly
the connection between cause and effect,” such that causation may be generally
alleged.
Demurrer to Prayer for Punitive Damages:
Prayers for punitive damages are not subject to general demurrer. (Venice Town
Council, Inc. v. City of Los Angeles (1996) 47 Cal.App.4th 1547, 1562—Demurrer “tests
the sufficiency of the factual allegations of the complaint rather than the relief
suggested in the prayer of the complaint.”) A motion to strike, not a general demurrer,
is the procedure to attack an improper claim for punitive damages. (See Grieves v.
Superior Court (1984) 157 Cal.App.3d 159, 164; Caliber Bodyworks, Inc. v. Superior Court
(2005) 134 Cal.App.4th 365, 385.)
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: JYH on 05/15/17
(Judge’s initials) (Date)
Tentative Rulings for Department 403
Tentative Rulings for Department 501
Tentative Rulings for Department 502
(28) Tentative Ruling
Re: Biondich v. Morgan
Case No. 16CECG02018
Hearing Date: May 17, 2017 (Dept. 502)
Motion: By Defendants Brian L. Morgan, M.D., Heather Vasquez, University
Women’s Specialty Center, Central California Faculty Medical
Group and Mary McLain, M.D. for Summary Judgment or, in the
alternative, Summary Adjudication.
Tentative Ruling:
To grant the motion for summary judgment.
Prevailing party is ordered to submit, within five (5) court days of this order, a
judgment in accordance with the Court’s decision as set forth below.
Explanation:
Defendants have moved for summary judgment or, in the alternative, for
summary adjudication of Plaintiffs’ complaint for negligence in the form of medical
malpractice. On May 3, 2017, Plaintiffs filed a Non-Opposition to the motion indicating
that they do not oppose the motion.
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).)
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 for the court the matters it contends
are “undisputed,” and cite the specific evidence showing why it is entitled to judgment
as a matter of law. (United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 337
(“This is the Golden Rule of Summary Adjudication: if it is not set forth in the separate
statement, it does not exist.” (emphasis in original).)
The opposing party’s failure to provide opposing evidence does not relieve the
moving party of its burden of production. (Consumer cause v. SmileCare (2001) 91
Cal.App.4th 454, 468.) Indeed, while a Court has discretion to grant the motion for an
opposing party’s failure to file a separate statement of disputed facts, the court must
first determine whether the moving papers establish grounds for granting summary
judgment or adjudication. (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 160.)
Plaintiff has pleaded one cause of action for professional negligence in the form
of medical malpractice arising from Defendants’ treatment of Plaintiffs while taking an
ultrasound of Plaintiff Amber Biondich on or about April 1, 2015, as well as in their
assessment of the ultrasounds that were taken.
To establish liability in an action for medical malpractice, a 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.”
(Powell v. Kleinman (2007) 151 Cal.App.4th 112, 122.)
Moreover, when “a defendant moves for summary judgment and supports his
motion with expert declarations that his conduct fell within the community standard of
care, he is entitled to summary judgment unless the plaintiff comes forward with
conflicting expert evidence.” (Id.)
However, “[s]imply because the defendant doctor provides an unopposed
declaration by an expert does not necessarily mean the court should grant summary
judgment. In Kelley v. Trunk (1998) 66 Cal.App.4th 519, 78 Cal.Rptr.2d 122 [] Division
Seven of the Second District Court of Appeal held that ‘a defendant doctor is not
entitled to obtain summary judgment based on a conclusory expert declaration which
states the opinion that no malpractice has occurred, but does not explain the basis for
the opinion.’” (Id. at 123.)
In the Complaint, Plaintiff contends that Defendants caused them the injuries
“from on or about April 1, 2015 in the taking, reading, and reporting of a fetal
ultrasound of that date.” (Complaint, p. 4, ¶1.) Plaintiff further alleges that the
negligence “includes but is not limited to, the failure to properly read and report an
ultrasound of the fetus.” (Complaint, p. 4, ¶2.)
The Separate Statement contains proposed undisputed facts that each of the
defendants met the standard of care. (UMF Nos. 10, 12, and 14 (Defendant Dr.
Morgan); 24, 26, and 28 (Defendant Dr. McLain); 38 and 40(Defendant Vasquez); 50, 52,
53, 55, 56, 58, and 60 (Defendant Central California Faculty Medical Group); and 71,
73, 74, 76, 77, 79, and 81 (Defendant University Women’s Specialty Center).
In support of the facts in the Separate Statement, Plaintiff presents the
declaration of Joseph Ouzounian, M.D. who appears to be a qualified medical expert
on the standard of care for the treatment of pregnant women. His declaration lists,
among other things, that he is the Chief of the Division of Maternal-Fetal Medicine and
Vice Chair of the Department of Obstetrics and Gynecology at USC. (Declaration of
Ouzounian, ¶2.)
Ouzounian opines that the treatment of patient was up to the standard of care
insofar as all of the defendants involved met the standard of care in their handling of
the utlrasound of Plaintiffs’ unborn child on or about April 1, 2015. (Declaration of
Ouzounian, ¶¶ 7, 13.) Dr. Ouzounian states the basis for his conclusion that the handling
of the ultrasound met the standard of care in some detail. (Declaration of Ouzounian,
¶¶ 14-17.)
Since Defendants have presented the declaration of an expert on the
applicable standard of care, and who has opined with an adequate foundation that
the actions of Defendants met that standard of care, then the burden has shifted to
Plaintiffs to present contrary evidence. (Powell, supra, 151 Cal.App.4th at 122.) Because
Plaintiffs have not presented any evidence or argument, the motion must be granted.
Therefore, for all these reasons, the Court grants the motion for Summary
Judgment in its entirety. The Moving Party is ordered to prepare and file a judgment in
accordance with this decision within five court days of this order.
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 05/15/17
(Judge’s initials) (Date)
(30)
Tentative Ruling
Re: Eloisa Simancas v. Sidney Ybarra
Superior Court No. 15CECG03874
Hearing Date: Wednesday May 17, 2017 (Dept. 502)
Motion: Plaintiffs’ Motions to Compel and for Sanctions
Tentative Ruling:
To grant and to impose sanctions against Plaintiff Jesus Padilla in the amount of $1,180.
Sanctions must be paid to Attorney Ronald Gomez within 20 days after service of this
order.
Explanation:
Interrogatories: Code of Civil Procedure section 2030.290, subdivision (b) provides for a
motion to compel where the opposing party fails to respond to written interrogatories.
Further, when a party has not responded to interrogatories all a moving party need
show is that a set of interrogatories was properly served on the opposing party, that the
time to respond has expired, and that a response has not been served. (Leach v.
Superior Court (1980) 111 Cal.App.3d 902, 905-906.) Unresponsive parties waive all
objections, including privilege and work product. (Code Civ. Proc., § 2030.290, subd.
(a).)
Plaintiff Padilla was properly served with form and special interrogatories on January 11,
2017 (Gomez Dec, filed: 4/5/17 Ex.4 POS & Ex.5 POS), and the deadline passed without
compliance. (Code Civ. Proc., § 2030.260; Gomez Dec, filed: 4/5/17 ¶8; Memo filed:
4/5/17 p4 lns14-16.)
Request for Documents: Code of Civil Procedure section 2031.010, subsection (b),
allows a party to an action to demand the opposing party produce relevant,
unprivileged documents for inspection and copying. A party who has propounded a
request for documents may move for a motion to compel where the opposing party
fails to timely respond. (Code Civ. Proc., § 2031.300.) When a party has not responded
to requests for production, the opposing party waives all objections, including privilege
and work product. (Code Civ. Proc., § 2031.300.)
Here, on January 11, 2017 Plaintiff Padilla was properly served (Gomez Dec, filed: 4/5/17
Ex.2 POS), and the deadline passed without compliance. (Code Civ. Proc., § 2031.260;
Gomez Dec, filed: 4/5/17 ¶8; Memo filed: 4/5/17 p4 lns14-16.)
Request for Admissions: Where a party fails to timely respond to a propounding party’s
RFAs, the court must grant the propounding party’s motion requesting that matters be
deemed admitted, unless it finds that the party to whom the requests were directed has
served, prior to the hearing on the motion, a proposed response that is substantially in
compliance with Code of Civil Procedure section 2033.220. (Code Civ. Proc., §
2033.280, subd. (c); St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 778.)
“Substantial compliance” means compliance with respect to “every reasonable
objective of the statute.” (Id. at 779, internal quotation marks and citation omitted.)
Where the responding party serves its responses before the hearing, the court “has no
discretion but to deny the motion.” (Id. at 776.)
Here, on January 11, 2017 Plaintiffs properly propounded their Request for Admissions,
set one upon Plaintiff Padilla. (Gomez Dec, filed: 4/5/17 Ex.3 POS.) The deadline has
passed without compliance. (Code Civ. Proc., § 2033.250; Gomez Dec, filed: 4/5/17 ¶8;
Memo filed: 4/5/17 p4 lns14-16.)
Sanctions: Failing to respond or to submit to an authorized method of discovery is a
misuse of the discovery process. (Code Civ. Proc., §§ 2023.010, subd. (d).) And in these
circumstances, where The Court finds a misuse of the discovery process, it must impose
a monetary sanction ordering the person engaging in such misuse, or any attorney
advising such conduct, or both, to pay the reasonable expenses, including attorney’s
fees, incurred by the other party as a result of the offending party’s behavior. (Codes
Civ. Proc., §§ 2030.290, subd. (c); 2031.300; 2033.280.) “Reasonable expenses” include
the time moving party's counsel spent in research and preparation of the motion and
court time in connection with the motion. (Ghanooni v. Super Shuttle of Los Angeles
(1993) 20 Cal.App.4th 256, 262.)
Here, Plaintiff Padilla has failed to respond within the statutory timeframes. This is a clear
misuse of the discovery process and sanctions are therefore justified for having to bring
this motion. The court finds $1,180 is reasonable under the circumstances. The court,
however, also finds no showing has been made which would justify an award of
sanctions against counsel.
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: DSB on 05/16/17
(Judge’s initials) (Date)
(24) Tentative Ruling
Re: Clowers v. County of Fresno
Court Case No. 13CECG01718
Hearing Date: May 17, 2017 (Dept. 502)
Motion: Motion for Apportionment of Verdict Funds
Tentative Ruling:
To continue to Wednesday, June 14, 2017, at 3:30 p.m. in Department 402, for
moving party to provide the court with evidence pertinent to deciding the proper
apportionment of the verdict funds.
Explanation:
Each wrongful death claimant is entitled to damages for all detriment he/she
personally suffered and is likely to suffer in the future because of decedent’s death.
(Corder v. Corder (2007) 41 Cal.4th 644, 663.) As a general rule, wrongful death
damages “are measured by the financial benefits the heirs were receiving at the time
of death, those reasonably to be expected in the future, and the monetary equivalent
of loss of comfort, society and protection.” (Id. at p. 661, internal quotes omitted.)
It is the court’s duty to apportion the wrongful death award between the various
claimants. (Code Civ. Proc. § 377.61.) An apportionment proceeding “is equitable in
character,” and thus there is no entitlement to a jury. (Corder v. Corder, supra, 41
Cal.4th at p. 654, fn 5.) While the recovery is in the form of a lump sum verdict
determined according to each heir’s separate interest in the decedent's life, “each heir
[is] required to prove his or her own individual loss in order to share in the verdict.” (San
Diego Gas & Elec. Co. v. Superior Court (2007) 146 Cal.App.4th 1545, 1551, brackets
added.) Therefore, the court may make unequal apportionment, depending on
evidence that would tend to show one claimant suffered a greater loss than another.
(See, e.g., Canavin v. Pacific Southwest Airlines (1983) 148 Cal.App.3d 512—allocation
of award between decedent’s adult daughter and his wife of eight months.) The
court’s allocation need not be based solely on the evidence admitted at trial (i.e., as to
the perceived contribution that each heir’s damages claim made to the verdict
amount), but can be based on new evidence presented in the apportionment
proceeding. (Corder v. Corder, supra at p. 660.)
The moving party has not presented the court with any evidence for the court to
evaluate. The court is aware only that the two minor children of decedent, the only
claimants, are close in age. No information has been presented as to whether they
were similarly situated with regard to decedent at the time of her death, or if there are
any other factors which would tend to show one of them suffered a greater loss than
the other (for instance, whether one child lived with decedent and the other did not, or
any other pertinent considerations).
It is possible that an equal division of the award in this situation is entirely
appropriate. (See, e.g., Canavin v. Pacific Southwest Airlines, supra, 148 Cal.App.3d at
pp. 535–536—noting that “the difficulty in ascertaining individual shares of lost
economic support when dealing with minors” was one factor making apportionment
appropriate for the court, rather than the jury, to decide.) However, the court cannot
decide this in a vacuum. Moving party must supply some evidence to support the
court’s ruling, which may also include pertinent evidence which was presented to the
jury at trial.
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 05/16/17
(Judge’s initials) (Date)
Tentative Rulings for Department 503 03
Tentative Ruling
Re: Vang v. Hmong International New Year Foundation
Case No. 15 CE CG 03849
Hearing Date: May 17th, 2017 (Dept. 503)
Motion: Defendant’s Motions to Compel Plaintiffs Xia Vue Vang and
Mee Xiong to Respond to Defendant’s Form Interrogatories,
Set One, and Request for Production of Documents, Set
One, and Request for Monetary Sanctions
Tentative Ruling:
To grant defendant’s motions to compel plaintiffs Xia Vue Vang and Mee Xiong
to respond to defendant’s form interrogatories, set one, and request for production of
documents, set one. (Code Civ. Proc. §§ 2030.290; 2031.300.) Plaintiffs shall serve
verified responses without objections within 10 days of the date of service of this order.
Also, the court intends to grant monetary sanctions in the total amount of $500
against the plaintiffs and their attorney for their unjustified refusal to respond to
discovery. (Ibid.) Plaintiffs and their counsel shall pay sanctions to defendant within 30
days of the date of service of this order.
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: ___A.M. Simpson__ on _05/12/17
(Judge’s Initials) (Date)
(28) Tentative Ruling
Re: BMO Harris Bank, N.A. v. Singh
Case No. 17CECG00969
Hearing Date: May 17, 2017 (Dept. 503)
Motion: Application for Writ of Possession.
Tentative Ruling:
To continue the hearing on the application for writ of possession to Wednesday,
May 31, 2017 at 3:30 p.m. in Department 503 of this Court.
Moving party is to provide to the Court documentary proof of payments made
by Defendant and the last date on which Defendant made a payment. Such
documentation is to be provided to the Court by Thursday, May 25, 2017. The question
of the undertaking will be resolved at that hearing.
Plaintiff’s alternative request for a preliminary injunction is denied without
prejudice.
Explanation:
Whether a writ of possession is to be granted is governed by Code of Civil
Procedure §512.060, which states:
“a) At the hearing, a writ of possession shall issue if both of the following
are found:
(1) The plaintiff has established the probable validity of the plaintiff's claim
to possession of the property.
(2) The undertaking requirements of Section 515.010 are satisfied.”
Section 515.010 concerns the necessity of an undertaking and states:
“(a) Except as provided in subdivision (b), the court shall not issue a temporary
restraining order or a writ of possession until the plaintiff has filed an undertaking
with the court. The undertaking shall provide that the sureties are bound to the
defendant for the return of the property to the defendant, if return of the
property is ordered, and for the payment to the defendant of any sum
recovered against the plaintiff. The undertaking shall be in an amount not less
than twice the value of the defendant's interest in the property or in a greater
amount. The value of the defendant's interest in the property is determined by
the market value of the property less the amount due and owing on any
conditional sales contract or security agreement and all liens and
encumbrances on the property, and any other factors necessary to determine
the defendant's interest in the property.
(b) If the court finds that the defendant has no interest in the property, the court
shall waive the requirement of the plaintiff's undertaking and shall include in the
order for issuance of the writ the amount of the defendant's undertaking
sufficient to satisfy the requirements of subdivision (b) of Section 515.020.”
Section 515.020 allows a defendant to prevent the Plaintiff from taking possession
of the property if the defendant files an undertaking in an amount equal to the amount
of Plaintiff’s undertaking or in an amount to be determined by the Court pursuant to
Section 515.020, subsection (a).
“Probably validity” means that it is “more likely than not” that the plaintiff will
obtain judgment against defendant on the claim to possession of the property. (People
v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 919.)
In lieu of filing any affidavits or declarations, Plaintiff is relying on its verified
complaint. It is allowed to do this, so long as it otherwise satisfies the requirements of
Code of Civil Procedure §516.030:
The facts stated in each affidavit filed pursuant to this chapter shall be set forth
with particularity. Except where matters are specifically permitted by this chapter
to be shown by information and belief, each affidavit shall show affirmatively
that the affiant, if sworn as a witness, can testify competently to the facts stated
therein. The affiant may be any person, whether or not a party to the action,
who has knowledge of the facts.
The moving party has presented the declaration of Tonya Hinton, who works for
Plaintiff as a “Litigation and Bankruptcy Specialist” and has “custody and control of the
business records” for Plaintiff. (Hinton Decl. ¶1.) Ms. Hinton provides copies of the various
agreements at issue in this case. (Exhibits 1-3.) She notes that Defendant Singh has not
made payments on the Agreement since December 1, 2016. (Hinton Decl. ¶12.) Hinton
notes that the principal balance now owing is $54,801.65. (Hinton Decl. ¶13.) Finally,
Hinton avers, on information and belief, that the property at issue is in the possession of
Defendants. (Hinton Decl. ¶¶16-17.)
By this evidence, Plaintiff has mostly established the probably validity of its claim
against Defendant insofar as they’ve established the ownership of the property. What
Plaintiff has not provided, other than the statement of Hinton, is any documentary proof
that Defendant has fallen behind on the payments. The Court therefore continues the
hearing for two weeks to allow Plaintiff the chance to provide the supporting
documentation.
Plaintiff has also sought an injunction:
Cal. Civ. Proc. Sec. 526 states:
(a) An injunction may be granted in the following cases:
(1) When it appears by the complaint that the plaintiff is entitled to
the relief demanded, and the relief, or any part thereof, consists in
restraining the commission or continuance of the act complained
of, either for a limited period or perpetually.
(2) When it appears by the complaint or affidavits that the
commission or continuance of some act during the litigation would
produce waste, or great or irreparable injury, to a party to the
action.
(3) When it appears, during the litigation, that a party to the action
is doing, or threatens, or is about to do, or is procuring or suffering to
be done, some act in violation of the rights of another party to the
action respecting the subject of the action, and tending to render
the judgment ineffectual.
(4) When pecuniary compensation would not afford adequate
relief.
(5) Where it would be extremely difficult to ascertain the amount of
compensation which would afford adequate relief.
In deciding whether to issue a preliminary injunction, a court must weigh two
interrelated factors: “(1) the likelihood that the moving party will ultimately prevail on
the merits, and (2) the relative harm to the parties from issuance or nonissuance of the
injunction.” (O’Connell v. Superior Court (2006) 141 Cal.App.4th 1452, 1462 (quoting Butt
v. State of California (1992) 4 Cal.4th 668, 677-678.)
However, nothing in the declaration provided by Plaintiff indicates that there is
any irreparable harm to the Plaintiff should the injunction not be issued, and, indeed,
there is nothing before the Court to indicate that Plaintiff might improperly dispose of
the property. Therefore, the injunction is denied without prejudice should new
information or facts come to the attention of Plaintiff.
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 _05/16/17
(Judge’s Initials) (Date)
(5)
Tentative Ruling
Re: ECN Financial, LLC v. Quality Carrier, LLC and Singh
Superior Court Case No. Case No: 16 CECG 04144
Hearing Date: May 17, 2017 (Dept. 503)
APPLICATIONS: (1) RTAO and Writ of Attachment Re: Quality Carrier, LLC
(2) RTAO and Writ of Attachment Re: Sandeep Singh
Tentative Ruling:
To grant the application as to Defendant Quality Carrier, LLC. The proposed
Order will be corrected re: new department and signed.
To grant the application as to Defendant Sandeep Singh. The proposed Order
will be corrected re: new department and signed.
Explanation:
Background
On or about November 13, 2015, Defendant Quality Carrier, LLC entered into a
written agreement with Plaintiff’s assignor, Volvo Financial Services for the purchase of a
2016 Volvo tractor-trailer including attachments and accessories; Model number
VNL64T780, VIN 4V4NC9EJ8GN957979. The total amount financed was $172,803.
On or about December 11, 2014, Defendant Sandeep Singh signed a
“continuing guaranty.” On or about December 3, 2015, a Certificate of Title was issued
by the Department of Motor Vehicles to the Defendant. The Certificate identified Volvo
Financial Services as a lienholder. On April 28, 2016, Defendant failed to make a
payment. This caused an acceleration such that the total amount became due.
On December 29, 2016, Plaintiff filed a Complaint alleging three causes of action
for breach of loan agreement, breach of guaranty and “unjust enrichment” and
pleading common counts for “open book” and “account stated.” On January 17,
2017, Plaintiff filed two separate notices of hearing for a right to attach order and a writ
of attachment. Proofs of service were filed showing personal service upon Sandeep
Singh in his individual capacity and as agent for service of process for Quality Carrier,
LLC. The summons, complaint and all moving papers for attachment were timely
served on each Defendant. [CCP §§ 484.040, 1005(a)(1) & (b)] No opposition was
filed.
[Note: A search of the Secretary of State’s website reveals that Quality Carrier,
LLC is a suspended limited liability company. But, a suspended limited liability company
may be sued. See Corporations Code § 17707.07]
Attachments in General
Proper Claims
Attachment is a purely statutory remedy. The attachment statutes are subject to
strict construction--i.e., unless specifically provided for by the attachment law, no
attachment procedure may be ordered by the court. See Nakasone v. Randall (1982)
129 Cal.App.3d 757, 761. Generally, an attachment may issue only if the claim sued
upon is:
· A "claim for money . . . based upon a contract, express or implied";
· Of a "fixed or readily ascertainable amount not less than $500";
· That is either unsecured or secured by personal property (including
fixtures); AND
· That is a commercial claim. See CCP § 483.010.
The money claim must be for a "fixed or readily ascertainable amount" of at least $500
(excluding costs, interest and attorney fees). See CCP § 483.010(a). Claims may be
aggregated to reach the minimum $500. The damages sought need not be liquidated,
but must be measurable by reference to the contract itself. See Lewis v. Steifel (1950)
98 Cal.App.2d 648, 650. A complaint must be filed before plaintiff may apply for an
attachment. See CCP §§ 484.010, 485.210, and 492.020.
Form of Evidence
A plaintiff’s declaration must, at the very least, show plaintiff would prevail on the
claim for which attachment is sought. In many cases, Plaintiff may be required to make
additional showings (e.g., that an individual defendant was engaged in a trade,
business or profession). The defendant must likewise present declarations to support its
claims. Unless the Code specifically authorizes facts to be shown by information and
belief, the declarant must affirmatively show that if sworn as a witness he or she could
competently testify to the facts stated in the declaration. See CCP § 482.040. At a
minimum, this means the declarant must show actual personal knowledge of the
relevant facts. See Evidence Code § 700 et seq. Thus, for example, a declaration
should not contain hearsay unless the declarant lays a foundation for an exception to
the hearsay rule based on personal knowledge.
Further, all facts must be stated "with particularity." See CCP § 482.040. This
means that attachment declarations must contain evidentiary facts, rather than the
ultimate facts commonly found in pleadings. Mere conclusions of law or fact are not
sufficient. See House v. Lala (1960) 180 Cal.App.2d 412, 416 (construing "particularity"
requirement of former summary judgment law). If matters are set forth on information
and belief (where authorized), the declarant must state the nature and reliability of the
information. CCP § 482.040.
Guarantor Liability
A guarantor or surety (there is no legal distinction between the two in California)
is one who promises to answer for the obligation or default of another or who pledges
property as security for such obligation. A “letter of credit,” however, is not a form of
suretyship obligation. [See Civil Code § 2787; American Contractors Indem. Co. v.
Saladino (2004) 115 Cal.App.4th 1262, 1268; R.P. Richards, Inc. v. Chartered Const.
Corp. (2000) 83 Cal.App.4th 146, 154]
A continuing guaranty is a guarantee of the guarantor's future liability under
successive transactions; it either continues or renews the guarantor's liability. [Civil Code
§ 2814; see Central Building, LLC v. Cooper (2005) 127 Cal.App.4th 1053, 1059] A
guaranty must be in writing and signed by the guarantor unless it is deemed to be an
original obligation of the guarantor in accordance with one of the exceptions listed in
Civil Code § 2794. [Civil Code § 2793]
A guaranty must be supported by independent consideration (i.e., consideration
distinct from the underlying obligation) unless:
The guaranty is executed at the same time as the underlying obligation; or
The creditor accepts the underlying obligation when the guaranty is entered
into; and
The guaranty forms part of the consideration to the creditor. [Civil Code § 2792]
A guaranty is presumed to be supported by valid consideration—i.e., the party seeking
to invalidate the guaranty bears the burden of proving lack of consideration. [Civil
Code § 1615] Generally, a guarantor is exonerated to the extent that it is prejudiced by
the creditor's failure to proceed against the debtor, or by the creditor's failure to pursue
any other remedy in the creditor's power that the guarantor cannot pursue. [Civil Code
§ 2845] However, a guarantor's liability under an unconditional guaranty is fixed upon
default. Thus, the creditor can pursue the guarantor without first resorting to other
remedies. [Civil Code § 2807; Ralston-Purina Co. v. Carter (1962) 210 Cal.App.2d 372,
380; Moffett v. Miller (1953) 119 Cal.App.2d 712, 713; see Gray1 CPB, LLC v. Kolokotronis
(2011) 202 Cal.App.4th 480, 488-489]
Merits
The Declaration of Eric Atherhold, Vice President of ECN Financial, LLC has been
submitted in support of each application. The Declaration meets the requirements of
CCP § 482.040 and the statutory requirements of CCP §483.010. See Declaration in its
entirety and Exhibits 1-3 attached thereto. In particular, Mr. Singh signed a continuing
guaranty. Although it states that it is governed by the law of North Carolina, the
provisions of the Guaranty are worded in such a manner as to confer enforceability in
any state. Importantly, the Guaranty states that it is direct and unconditional. See
Continuing Guaranty attached as Exhibit 1 to the Declaration of Atherhold. The
applications will be granted.
Pursuant to California Rules of Court, rule 3.1312(a) and Code of Civil Procedure
section 1019.5, subd. (a), no further written order is necessary. The minute order
adopting this tentative ruling will serve as the order of the court and service by the clerk
will constitute notice of the order.
Tentative Ruling
Issued By: ___A.M. Simpson__ on _05/16/17
(Judge’s Initials) (Date)
(17) Tentative Ruling
Re: Genthner v. Liberty Mutual Fire Insurance Company et al.
Court Case No. 16 CECG 00160
Hearing Date: May 17, 2017 (Dept. 503)
Motion: Defendant Barbara Taylor’s Demurrer to First Amended Complaint
Tentative Ruling:
To sustain the general demurrer to the complaint without leave to amend.
Defendant will file an ex parte application for judgment of dismissal with this court within
10 days of the clerk’s service of notice of this minute order.
Explanation:
Meet and Confer
Defense counsel declares he called plaintiff on February 22, 2017, at her last
known telephone number and the phone simply rang without picking up. He emailed
her that day and received no response to his phone call or email. Plaintiff declares she
received no phone call or email. Section 430.41, subdivision (a)(4) provides, that even
a “determination by the court that the meet and confer process was insufficient shall
not be grounds to overrule or sustain a demurrer.” Accordingly, the court will address
the merits of the demurrer at this time.
Demurrers Generally
A demurrer is made under Code of Civil Procedure section 430.10, and is used to
test the legal sufficiency of the complaint or other pleading. (Rylaarsdam & Edmon,
Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2015) “Attacking the
Pleadings” § 7:5.) The demurrer admits the truth of all facts properly pleaded by the
plaintiffs, as well as those that are judicially noticeable. (Blank v. Kirwan (1985) 39
Cal.3d 311, 318.)
Defendant Barbara Taylor demurs generally to plaintiff’s entire complaint for
failure to state facts sufficient to state a cause of action.
First Cause of Action – “Intentional Tort”
“A demurrer may be sustained on statute of limitations grounds if the time bar
clearly and affirmatively appears on the face of the complaint.” (Doe v. Roman
Catholic Archbishop of Los Angeles (2016) 247 Cal.App.4th 953, 960.) Plaintiff does not
identify the legal theory she sues under in the first cause of action. However, a general
demurrer may be upheld “only if the complaint fails to state a cause of action under
any possible legal theory.” (Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992,
998.)
The gravamen of the allegations of this cause of action are that plaintiff was
injured when Barbara Taylor came out of a side street and hit the side of plaintiff’s car,
causing plaintiff whiplash and a concussion. The cause of action is therefore for
general negligence.
If an amended complaint brings in a new party defendant for the first time and
states a new cause of action as to that defendant and it may be held improper if the
statute of limitations has run. (Ingram v. Superior Court (1979) 98 Cal.App.3d 483, 492
[“amendment after the statute of limitations has run will not be permitted when the
result is the addition of a party who, up to the time of the proposed amendment, was
neither a named nor a fictitiously designated party to the proceeding.) “A recognized
exception to the general rule is the substitution under [Code of Civil Procedure] section
474 of a new defendant for a fictitious Doe defendant named in the original complaint
as to whom a cause of action was stated in the original complaint.” (Woo v. Superior
Court (1999) 75 Cal.App.4th 169, 176.) “If the requirements of section 474 are satisfied,
the amended complaint substituting a new defendant for a fictitious Doe defendant
filed after the statute of limitations has expired is deemed filed as of the date the
original complaint was filed.” (Ibid.) Here, plaintiff named no Does or any fictitiously
named defendants in her lawsuit at any time. Accordingly, the statute of limitations is
measured as to Barbara Taylor as of February 14, 2017 – the date the complaint first
naming her was filed.
An action based on personal injury or wrongful death caused by the wrongful
act or neglect of another, must be commenced within two years following the accrual
of the cause of action. (Code Civ. Proc., § 335.1.) A cause of action for personal injury
accrues on the date the injury is sustained. (Howe v. Pioneer Mfg. Co. (1968) 262
Cal.App.2d 330, 340.) Once a cause of action accrues, the applicable statute of
limitations begins to run (Code Civ. Proc., § 312) unless the cause of action is subject to
the “discovery rule.” The discovery rule applies where the pathological effect of a
wrongful act occurs without perceptible trauma, and the victim is blamelessly ignorant
of the cause of injury. (G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 25.)
Here, plaintiff alleges she suffered whiplash, concussion, cervical neck sprain, neck and
back injury and injuries or her right and left knees on the date of the accident. The
medical records attached to plaintiff’s complaint show that she sought medical
treatment for pain in her neck, back and knees no later than January 16, 2014, after the
accident on January 9, 2014.
Accordingly, the filing of the First Amended Complaint against Barbara Taylor
over three years later is untimely. The statute of limitations has run.
Second through Fourth Causes of Action
The second through the fourth causes of action mirror the first cause of action, as
all deal with plaintiff’s personal injuries from the automobile accident. The second
cause of action seeks compensation for her cervical neck sprain and all other neck
and back injuries sustained in the accident. The third cause of action seeks
compensation for bilateral foraminal impingement of the C5-C6 C-spine. The fourth
cause of action seeks recompense for injuries to plaintiff’s left and right knees. These
causes of action are barred for the reasons set forth with respect to the first cause of
action.
Fifth and Sixth Cause of Action
These two causes of action set forth claims of insurance bad faith as the
allegations concern the actions of Liberty Mutual and its claims adjustors in that they: 1)
did not negotiate fairly with plaintiff in settling her claim against Liberty Mutual’s insured;
2) did not offer a settlement that included the full costs of plaintiff’s medical treatment;
3) did not return her calls; and 4) did not offer fair value for her automobile. Plaintiff
seeks compensation for her pain and suffering and punitive damages.
These allegations appear to raise a claim of breach of the covenant of good
faith and fair dealing or, to put it another way, “bad faith.” Breach of this implied
covenant involves something beyond breach of the specific contractual duties or
mistaken judgment. (Chateau Chamberay Homeowners Ass'n v. Associated Int'l Ins. Co.
(2001) 90 Cal.App.4th 335, 345.) Although the duties may arise from contract, bad faith
is a tort. (Richardson v. Allstate Ins. Co. (1981) 117 Cal.App.3d 8, 13.) Typically, only an
insured may sue for bad faith.
A first party bad faith lawsuit involves an insured's claim against the insurer under
coverage written for the insured's direct benefit: “The gravamen of a first party lawsuit is
a breach of the implied covenant of good faith and fair dealing by refusing, without
proper cause, to compensate the insured for a loss covered by the policy … or by
unreasonably delaying payments due under the policy.” (Waters v. United Services
Auto. Ass'n (1996) 41 Cal.App.4th 1063, 1069-1070 (emphasis added).) A third party
“bad faith” lawsuit generally involves an insured's suit against his or her liability insurer
arising out of the insurer's alleged mishandling of a third party claim against the insured,
e.g., by unreasonably refusing to settle within policy limits or unreasonably refusing to
provide a defense. Although it is called a “third party” case, the cause of action for
breach of the implied covenant belongs to the insured –not the third party. The third
party claimant is not a party to the contract or an intended beneficiary of the insurer's
duty to settle claims against the insured. That duty is intended to protect the insured
from excess liability, rather than to benefit the third party claimant. (Murphy v. Allstate
Ins. Co. (1976) 17 Cal.3d 937, 944.)
Here, plaintiff is a third party and Liberty Mutual and its employees owe no duties
to her. Thus, the legal doctrine of bad faith will not provide a theory of recovery for the
first cause of action.
Furthermore, suits making allegations similar to plaintiff’s on a statutory basis have
been barred since the California Supreme Court issued its opinion in Moradi-Shalal v.
Fireman's Fund Ins. Cos. (1988) 46 Cal.3d 287. The Unfair Claims Settlement Practices Act
[Ins. Code, § 790 et seq.] requires insurers “to attempt in good faith to effectuate
prompt, fair and equitable settlements of claims in which liability has become
reasonably clear.” (Ins. Code, § 790.03, subd. (h)(5).) However, no private action is
created thereby; the enforcement power rests exclusively with the Insurance
Commissioner. Therefore neither the insured, nor a third-party with a claim against the
insured, can sue the insurer for violating this statute. (Moradi-Shalal v. Fireman's Fund
Ins. Cos., supra, 46 Cal.3d at 313.)
Adding Barbara Taylor to these causes of action adds nothing, as Taylor owes
plaintiff no duty to make her insurance company act in a particular way.
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: ___A.M. Simpson__ on _05/16/17
(Judge’s Initials) (Date)
(20) Tentative Ruling
Re: Matias v. General Motors, LLC, Superior Court Case No.
16CECG01500
Hearing Date: May 17, 2017 (Dept. 503)
Motion: Plaintiff’s Motion to Compel Further Responses to Request for
Production of Documents, Set One
Tentative Ruling:
To grant. Within 30 days of service of the order by the clerk, defendant General
Motors, LLC shall serve further verified responses to Request for Production of
Documents, Set One, Nos. 7, 17, 20, 22, 23, 25, 26, & 49-52, without objection, and
produce all responsive documents (including electronic records). GM may withhold
documents subject to attorney-client privilege or work product protection, provided it
serves a privilege log clearly identifying such documents. Plaintiff and defendant shall
also meet and confer and agree on a protective order pursuant to which the records
will be produced.
Explanation:
This is a Lemon Law case. According to the Complaint, plaintiff purchased a
defective 2011 Chevy Cruze with engine defects that could not be repaired.
Defendant GM failed to repurchase the defective vehicle despite the numerous
unsuccessful repair attempts and knowledge of these defects in the same make, model
and year.
Plaintiff moves to compel further responses to his Request for Production of
Documents, Set One, Nos. 7, 17, 20, 22, 23, 25, 26, & 49-52, which are broadly divisible
into the following two categories: (1) all documents relating to GM’s internal
investigation and analysis of the alleged “Engine Defect” in both plaintiff's and other
customers’ vehicles (Nos. 17, 20, 22, 23, 25, and 26) and (2) all documents relating to
GM's warranty and vehicle repurchase policies, procedures, and practices, as well as
documents referencing plaintiff’s specific vehicle and interaction with GM (Nos. 7 and
49-52).
This motion was originally set for 2/15/17. But because there was a pending CCP
§ 998 offer from defendant, the court continued the motion to see if the action would
settle. Additionally, the court was concerned that the expense of complying with these
discovery demands might be high in relation to the value of the case. But the
opposition papers lacked any declarations or evidence substantiating the objections
that the requests are burdensome and oppressive. (See West Pico Furniture Co. of Los
Angeles (1963) 56 Cal.2d 407, 417 [“The objection based upon burden must be
sustained by evidence showing the quantum of work required, while to support an
objection of oppression there must be some showing either of an intent to create an
unreasonable burden or that the ultimate effect of the burden is incommensurate with
the result sought”].) Accordingly, the court suggested in the 2/15/17 order that
defendant obtain and file a declaration substantiating this objection. The court also
suggested that defendant provide the exhibits omitted from the request for judicial
notice. For some reason defendant opted not to file anything further in connection
with this motion.
Accordingly, the court intends to grant the motion.
The court overrules the objections that the demands are overbroad and seek
irrelevant information to the extent that they seek any information about vehicles other
than plaintiff’s specific vehicle. A party may obtain discovery regarding any matter
that is relevant and not privileged. (Code Civ. Proc. § 2017.010.) Any doubts as
relevance should generally be resolved in favor of permitting discovery. (Colonial Life
and Acc. Ins. Co. v. Super Court (1982) 31 Cal.3d 785, 790.) Plaintiff contends that his
vehicle suffered from various defects, including the “Engine Defects,” that defendant’s
authorized repair facilities have failed to repair within a reasonable number of
opportunities. Plaintiff also contends that, notwithstanding defendant’s internal
awareness and inability to repair the issues with the vehicle, defendant nevertheless
refused to repurchase plaintiff‘s vehicle. Evidence that defendant was aware, or
should have been aware, of a prevalent, unrepairable defect could show that
defendant willfully failed to abide by its obligations under the Song-Beverly Consumer
Warranty Act by either turning a blind eye to such evidence or adopting internal
policies to avoid discovery of such facts. Such evidence is relevant to plaintiff’s claim
for penalties under Civil Code § 1794(c), which requires a showing that the failure to
comply was willful.
The burden and oppression objections are overruled, as defendant has failed to
provide the court any information substantiating these objections, despite having been
giving three months to do so.
To the extent that the objection is based on the requests for electronically stored
information, has failed to provide the information required by Code of Civil Procedure §
2031.210(d).
The overbreadth objections are overruled. These objections are mainly based
on the contention that the demands would require it to compile information related to
vehicles other than plaintiff’s. Additionally, defendant fails to provide information about
its policies, procedures or systems so as to show that the requests would require the
production of documents unrelated to plaintiff’s model vehicle and year.
The attorney-client privilege / work product objections might have merit, but no
information is provided to substantiate them. “If an objection is based on a claim of
privilege or a claim that the information sought is protected work product, the response
shall provide sufficient factual information for other parties to evaluate the merits of that
claim, including, if necessary, a privilege log.” (Code Civ. Proc. §2031.240(c)(1).)
Defendant may withhold documents on the basis of this privilege, but must serve, with
the further responses, a privilege log clearly identifying any documents that it contends
fall within either privilege.
The objections that the request seeks confidential and proprietary information
are overruled. These are not appropriate objections to discovery requests. (See
Columbia Broadcasting System, Inc. v. Superior Court (1968) 263 Cal.App.2d 12, 23 [“We
know of no case holding that this is a proper objection to an otherwise proper
interrogatory.”].) The answering party should seek a protective order to excuse the
duty to answer. An objection is not the equivalent of such a motion. (Id.) Moreover,
the opposition provides no evidence in the form of declarations substantiating these
objections.
The vague and ambiguous objections are overruled. Even “where the question is
somewhat ambiguous, but the nature of the information sought is apparent, the proper
solution is to provide an appropriate response”. (Deyo v. Kilbourne (1978) 84
Cal.App.3d 771, 783.) None of the terms used in the requests are so vague that an
appropriate response cannot be given.
The “self-serving” and “assumes facts not in evidence” objections are overruled.
These are not a viable grounds for objecting to discovery.
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: ___A.M. Simpson__ on _05/16/17
(Judge’s Initials) (Date)