Tentative Rulings for May 7, 2009...2021/01/15 · 1 Tentative Rulings for January 15, 2021...

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Tentative Rulings for January 15, 2021

Department 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).)

16CECG00199 Moreno v. Moreno (Dept. 503, afternoon session)

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

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

18CECG01751 Cortes v. Goodwin is continued to January 22, 2021, at 9:00 a.m., in

Dept. 503

19CECG01210 Vallejos v. Saint Agnes Medical Center/Fresno is continued to

January 22, 2021, at 9:00 a.m., in Dept. 503

19CECG02932 Farias v. Ciresi is continued to April 8, 2021 in Dept. 503

20CECG02410 Kurtmen v. Honarchian is continued to January 22, 2021, at 9:00

a.m., in Dept. 503

20CECG00772 Shaw Creek Homeowners Assoc. v. Admiral Ins Group, LLC is

continued to March 2, 2021 in Dept. 503

________________________________________________________________

(Tentative Rulings begin at the next page)

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Tentative Rulings for Department 503 (AM)

Begin at the next page

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(27)

Tentative Ruling

Re: Praetorian Insurance Company v. Haight Brown & Bonesteel,

LLC

Superior Court Case No. 20CECG01978

Hearing Date: January 15, 2021 (Dept. 503)

Motion: By Defendant to Stay

Tentative Ruling:

To deny, without prejudice.

Explanation:

“Trial courts generally have the inherent power to stay proceedings in the interests

of justice and to promote judicial efficiency.” (Freiberg v. City of Mission Viejo (1995) 33

Cal.App.4th 1484, 1489.) In addition, “judges shall have the responsibility to eliminate

delay in the progress and ultimate resolution of litigation . . . .” (Gov. Code, § 68607.)

Here, both this lawsuit, as well as the lawsuit filed in the United States District Court

for the Northern District of California, make the same factual allegations—that Defendant

did not communicate early settlement offers in the personal injury case Ramirez, et al. v.

Interstate Home Services, Inc., et al., Fresno County Superior Case No. 15CECG01733.

Accordingly, in light of the common factual basis of both proceedings, it appears that

inconsistent rulings are possible.

Nevertheless, although it has not been processed, Plaintiff has presented an

executed stipulation to dismiss the Northern District case. In light of the stipulation, and

presumably forthcoming order, staying this proceeding would not promote the statutory

requirements of expeditious and efficient case progression. (See Gov. Code, § 68607;

see also Evid. Code, § 664 [“It is presumed that official duty has been regularly

performed.”].)

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: KAG on 1/5/2021 .

(Judge’s initials) (Date)

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(19)

Tentative Ruling

Re: Sengrath v. Audeamus



Motion: Motion by defendants Audeamus and Rita Garcia to compel

arbitration

Tentative Ruling:

To deny.

Explanation:

“The ordinary rules of contract interpretation apply to arbitration agreements.

(Hotels Nevada, LLC v. Bridge Banc, LLC (2005) 130 Cal.App.4th 1431 . . . .) The court

should attempt to give effect to the parties' intentions, in light of the usual and ordinary

meaning of the contractual language and the circumstances under which the

agreement was made (Civ.Code, sections 1636, 1644, 1647).” (Rice v. Downs (2016) 248

Cal.App.4th 175, 186.)

The evidence shows that an entity named Sebastian Enterprises, Inc. agreed with

plaintiff to arbitrate any disputes between them. That entity is not a defendant, and no

dispute between plaintiff and it is shown. The evidence shows that plaintiff was employed

and paid by Kertel Communications (which became Audeamus after a merger), insured

under a long-term care policy issued to Kertel, and had a flexible spending account

through Kertel. There is an employment dispute between plaintiff and Audeamus. While

Audeamus uses a dba of “Sebastian,” it is a separate corporation from Sebastian

Enterprises, Inc.; none of the documents other than the arbitration agreement mentions

Sebastian Enterprises, Inc.

Defendant Rita Garcia states that she has acted as the Human Resources

Manager for Audeamus since 2019, after the agreement was signed, and that she found

the agreement in plaintiff’s personnel file. She states that Audeamus has a policy of

providing “an” arbitration agreement to new hires. Defendant Garcia and Robin Stith

also testify that Sebastian Enterprises Inc. “assigned” plaintiff’s application for

employment to Kertel/Audeamus, who did hire plaintiff. That confirms that Sebastian

Enterprises, Inc. itself decided not to form an employment relationship with plaintiff.

“To construe that section of the Agreement to include payments made under

those agreements would contravene the principle that if the plain language of the

instrument is unambiguous, a court may not ‘read into’ the document additional terms

in order to conform its meaning to what the court's intuition tells it the parties must have

intended. Rather, the court is simply to ascertain and declare what is in terms or in

substance contained therein, not to insert what has been omitted, or to omit what has

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been inserted . . . .” (G&W Warren’s Inc. v. Dabney (2017) 11 Cal.App.4th 565, 578,

internal quotes omitted.) To substitute the Kertel or Audeamus corporations for Sebastian

Enterprises, Inc. would violate this principle.

To deem “Sebastian Enterprises, Inc.” to be ambiguous would also provide no

basis to grant the motion. “[A]mbiguities in written agreements are to

be construed against their drafters. (Civ.Code section 1654; Rest. 2d Contracts, section

206.) As the Restatement explains, “Where one party chooses the terms of a contract,

he is likely to provide more carefully for the protection of his own interests than for those

of the other party. He is also more likely than the other party to have reason to know of

uncertainties of meaning.” (Sandquist v. Lebo Automotive, Inc. (2016) 1 Cal.5th 233, 248.)

If the arbitration agreement was intended to benefit separate corporations other than

Sebastian Enterprises, Inc., this could have easily been stated in the language of the pre-

printed form presented to plaintiff on an admittedly “take it or leave it” basis. It was not.

Although not expressly stated, it appears that defendants are arguing a mistake

was made in using a contract which referenced only Sebastian Enterprises, Inc. as the

employer. Ms. Stith claims what is in essence a unilateral mistake. The usual remedy for

unilateral mistake is rescission, not to give the party making the mistake the benefit of the

bargain it wishes it had made - but did not. (See Donovan v. RRL Corp. (2001) 26 Cal.4th

261 [auto dealer that advertised vehicle at price $12,000 less than should have been

stated, due to typographical error, permitted to rescind, not force buyer to pay extra

$12,000].)

Such a mistake is described in Civil Code section 1577, which states:

MISTAKE OF FACT. Mistake of fact is a mistake, not caused by the neglect

of a legal duty on the part of the person making the mistake, and consisting

in:

1. An unconscious ignorance or forgetfulness of a fact past or present,

material to the contract; or,

2. Belief in the present existence of a thing material to the contract, which

does not exist, or in the past existence of such a thing, which has not existed.

Ms. Stith states that she never worked for Sebastian Enterprises, Inc. and that she

was acting for Audeamus when she signed, and had plaintiff sign, an arbitration

agreement which did not mention Kertel or Audeamus. She provides no basis for finding

that she was unconscious, ignorant, or forgetful of the fact that the agreement listed only

Sebastian Enterprises, Inc. as the employer. No mistake allowing the remedy sought by

defendants appears.



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Tentative Ruling



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(03)

Tentative Ruling

Re: Duarte v. Pollen Collection & Sales, Inc.



Motion: By Defendant/Cross-Complainant Pollen Collection & Sales

for Summary Judgment or, in the Alternative, Summary

Adjudication of Plaintiff’s Complaint

By Defendant/Cross-Complainant Pollen Collection & Sales

for Summary Judgment or, in the Alternative, Summary

Adjudication of Its Cross-Complaint

Tentative Ruling:

To grant defendant/cross-complainant Pollen Collection & Sales, Inc.’s (“PCS”)

motion for summary judgment of plaintiff/cross-defendant Miguel Duarte’s (“Duarte”)

complaint, as well as PCS’s motion for summary judgment on its cross-complaint against

Duarte. (Code Civ. Proc., § 437c.) PCS shall submit a proposed judgment consistent with

this order within 10 days of service of the minute order.

Explanation:

PCS’s Motion for Summary Judgment/Adjudication of Duarte’s Complaint: PCS has

met its burden of showing that Duarte cannot prove the elements of his claims raised in

his complaint, as he has admitted that there is no evidence to support his claims.

Specifically, Duarte has been deemed to have admitted that:

1. There was no written agreement between PCS and Duarte.

2. PCS did not breach any agreement it had with Duarte.

3. PCS paid Duarte for all sums he was entitled to receive from PCS.

4. PCS does not owe Duarte any sum, whatsoever, or at all.

5. PCS did not breach any covenant of good faith and fair dealing it had with

Duarte.

6. PCS was not unjustly enriched in its dealings with Duarte.

7. Duarte has no account upon which PCS owes any money to Duarte.

8. Duarte has been paid in full for any goods sold and delivered to PCS.

9. PCS did not divulge to the public any of Duarte's personal information.

10. PCS did not divulge to the public any of Duarte's confidential information.

11. PCS did not divulge to the public any of Duarte's trade secrets.

12. PCS did not divulge to Campos Bros. any of Duarte's personal information.

13. PCS did not divulge to Campos Bros. any of Duarte's confidential

information.

14. PCS did not divulge to Campos Bros. any of Duarte's trade secrets.

15. PCS has not used any of Duarte's personal information for its benefit.

16. PCS has not used any of Duarte's confidential information for its benefit.

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17. PCS has not used any of Duarte's trade secrets for its benefit.

(See PCS’s Separate Statement of Undisputed Facts, Nos. 1-23.)

Therefore, PCS has met its burden of showing that there are no triable issues of

material fact with regard to any of Duarte’s claims, and that it is entitled to summary

judgment as to the entire complaint. Duarte has not filed any opposition or submitted

any evidence or authorities that would raise any triable issues of material fact with regard

to any of his causes of action. As a result, the court grants summary judgment as to

Duarte’s entire complaint. (Code Civ. Proc., § 437c.)

PCS’s Motion for Summary Judgment of Its Cross-Complaint: PCS has also met its

burden of showing that its cross-claims against Duarte have merit, and that Duarte has

no evidence to prove any of his denials or affirmative defenses to the cross-claims.

Specifically, Duarte has been deemed to have admitted that:

1. Duarte owes PCS the sum of $37,134.44.

2. Duarte breached his agreement with PCS relating to Campos Bros.

3. PCS has an account on which Duarte owes PCS the sum of $37,134.44.

Therefore, PCS has shown that there are no triable issues with regard to its cross-

claims against Duarte. Duarte has not filed any opposition or submitted any evidence or

authorities that would raise a triable issue of material fact with regard to the cross-claims.

As a result, the court grants summary judgment in favor of PCS and against Duarte as to

all of the cross-claims in the cross-complaint.





Tentative Ruling



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(30)

Tentative Ruling

Re: Fajita Fiesta Mexican Restaurant, Inc. v. Agricultural Contracting

Services Association, Inc.



Motion: Motion to File a Second Amended Complaint by Plaintiff Fajita

Fiesta Mexican Restaurant, Inc.

Tentative Ruling:

To grant, with plaintiff’s proposed second amended complaint deemed to be

filed as of the date of this order.

Explanation:

One not named as a party in the original complaint may be made a party to the

action by amendment of the complaint pursuant to Code of Civil Procedure section 473.

(Nissan v. Barton (1970) 4 Cal.App.3d 76, 79.) The trial court must consider various factors

in deciding whether to permit such an amendment, including whether the substitution

would prejudice the defendant (e.g., by delaying trial, or increasing discovery burden).

(Demetriades v. Yelp, Inc., (2014) 228 Cal.App.4th 294, 306; Royal Thrift & Loan Co. v.

County Escrow, Inc. (2004) 123 Cal.App.4th 24, 41–42; Jensen v. Royal Pools (1975) 48

Cal.App.3d 717, 721.)

Where no prejudice is shown to the adverse party, “courts are bound to apply a

policy of liberality in permitting amendments to the complaint at any stage of the

proceedings, up to and including trial.” (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739,

761; Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564; Congleton v. Natl. Union Fire Ins.

Co. (1987) 189 Cal.App.3d 51, 62; see also Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596.)

Here, plaintiff seeks to add two new parties: California Analytics, LLC and

Compass Pilot Workers Compensation Benefit Trust. The proposed amendments are

permissible. The proposed defendants are alleged to be alter egos of named

defendants, and the factual allegations are unchanging. All allegations are still related

to the alleged unauthorized sale of worker’s compensation insurance by defendants.

Prejudice is also unlikely. The proposed amendments will not result in an increase

in the amount of discovery because neither the facts nor the parties have changed

significantly. The potential for delay of trial is also low. The case is still in the early phases

of discovery, and trial is not scheduled until November 15, 2021.

Accordingly, plaintiff’s motion for leave to amend to file a second amended

complaint is granted.

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Tentative Ruling



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(19)

Tentative Ruling

Re: Mercy Springs Water District v. All Interested



Motion: Application by plaintiff under Code of Civil Procedure section 861

Tentative Ruling:

To grant, on the condition that the response date in the summons is modified to

February 26, 2021. The previously lodged documents failed to note that the publication

must also take place in the Hanford Sentinel. A revised order setting forth publication

dates in accordance with this order and other proposed changes must be lodged, along

with a revised summons.

Explanation:

Plaintiff has provided evidence of persons and entities receiving the water at issue

in the contract appended to the complaint and provided an acceptable plan for

providing notice to such interested persons, including by mail where practicable.

However, a revised summons and proposed order which set forth the changes and which

contain a later response date than January 30 must be lodged.





Tentative Ruling



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(20) Tentative Ruling

Re: Dituri v. North Point Healthcare & Wellness Centre, LP, et al.



Motion: Defendant Schlomo Rechnitz’s Petition to Compel

Arbitration

Tentative Ruling:

To grant and compel plaintiffs to arbitrate their claims against Schlomo Rechnitz.

The action is stayed pending arbitration.

Explanation:

In moving to compel arbitration, a defendant must prove by a preponderance of

evidence the existence of the arbitration agreement and that the dispute is covered by

the agreement. The party opposing the motion must then prove by a preponderance

of evidence that a ground for denial of the motion exists (e.g., fraud, unconscionability,

etc.). (Rosenthal v. Great Western Fin'l Securities Corp. (1996) 14 Cal.4th 394, 413-414;

Hotels Nevada v. L.A. Pacific Ctr., Inc. (2006) 144 Cal.App.4th 754, 758; Villacreses v.

Molinari (2005) 132 Cal.App.4th 1223, 1230.)

In ruling on the petition to compel arbitration by defendants North Point

Healthcare & Wellness Centre, LP (“North Point”) and Boardwalk West Financial Services,

LLC (“Boardwalk”), the court found: (1) this case is governed by the Federal Arbitration

Act (“FAA”), (2) the delegation clause is enforceable (it is not unconscionable), (3)

plaintiffs are bound by the arbitration agreement, (4) plaintiffs’ other defenses to

arbitration must be resolved by the arbitrator pursuant to the delegation clause; and (5)

the individual wrongful death claims are subject to arbitration. Those issues have already

been decided, and the court adopts and incorporates its findings and reasoning from

the July 31, 2020 Law and Motion Minute Order.

The only remaining question is whether the arbitration agreement is enforceable

by defendant Rechnitz.

Generally, only signatories to an arbitration agreement may seek to enforce it.

However, a non-signatory sued as an agent of a signatory may enforce an arbitration

agreement both as to arbitration agreements governed by state law and the FAA.

(Rowe v. Exline (2007) 153 Cal.App.4th 1276, 1282; Boucher v. Alliance Title Co., Inc. (2005)

127 Cal.App.4th 262, 268; Turtle Ridge Media Group, Inc. v. Pacific Bell Directory (2006)

140 Cal.App.4th 828, 833.) “[T]he equitable estoppel doctrine applies when a party has

signed an agreement to arbitrate but attempts to avoid arbitration by suing nonsignatory

defendants for claims that are ‘based on the same facts and are inherently inseparable’

from arbitrable claims against signatory defendants.’” (Ibid., quoting Metalclad Corp. v.

Ventana Environmental Organizational Partnership (2003) 109 Cal.App.4th 1705, 1713-

1714.)

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In Dryer v. Los Angeles Rams (1985) 40 Cal.3d 406, individuals acting as agents for

the Los Angeles Rams professional football team were entitled to the benefit of the

arbitration provisions in the collective bargaining agreement, even though they were

not, as individuals, signatories to the collective bargaining agreement.

Here, the complaint alleges that defendants, including defendant Rechnitz, were

“owners, operators, administrators, employers and/or managers of [North Pointe].”

(Complaint ¶¶ 6, 7.) The complaint further alleges that they “actively participated in,

authorized, and/or directed the operation of [North Pointe] the conduct of its agents and

employees through employment, training, and supervision of Administrators, Directors of

Nursing, and other employees at [North Pointe].” (Ibid.) Moreover, section 2.2 of the

arbitration agreement provides that the arbitration agreement binds the parties hereto,

but also includes the heirs, representatives, executors, administrators, successors and

assigns of such parties.

Based on these allegations and the contractual provision, defendant Rechnitz

can compel arbitration, as well. Plaintiffs make no argument in opposition to this point.

Pursuant to Cal. 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



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(24)

Tentative Ruling

Re: Sepeda v. Bispham



Motion: Doe 1 Defendant Eric Johnson’s Demurrer to and Motion to

Strike Plaintiff’s Complaint

Tentative Ruling:

To take the motions off calendar as moot given plaintiff’s filing of a First Amended

Complaint. (Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122

Cal.App.4th 1049, 1054; People ex rel. Strathmann v. Acacia Research Corp. (2012) 210

Cal.App.4th 487, 506.) Any challenges to the amended pleading must be raised by new

motion(s). Defendant Eric Johnson is granted 20 days’ leave to respond to the First

Amended Complaint, with the time to run from service of the minute order by the clerk.

In the event defendant challenges the First Amended Complaint with further motions,

plaintiff may not further amend the complaint absent court order, obtained either by

stipulation or by noticed motion.

Explanation:

It is apparent that the First Amended Complaint is directed to the objections raised

by defendant Eric Johnson on these motions, and that during meet and confer plaintiff

proposed amending the complaint to address at least some of these concerns. It is true

that plaintiff should have first requested leave to amend before filing the First Amended

Complaint if defendant refused to stipulate to amendment. (Code Civ. Proc., § 472;

Alden v. Hindin (2003) 110 Cal.App.4th 1502, 1508-1509.)

However, in the context of the current COVID-19 pandemic, the court’s resources

and its calendar are strained to the breakpoint; judicial economy is at its highest premium

in these unprecedented times. Given that this was the first attack on the pleading, the

court does not doubt that any ruling on these two motions would have included leave

to amend. Therefore, no one is prejudiced by this order, and it is consistent with the

court's inherent authority to manage and control its docket. (Code Civ. Proc., §§ 128,

subd. (a), and 187; Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 187,

192-193.)





Tentative Ruling



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Tentative Rulings for Department 503 (PM)

Begin at the next page

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(27)

Tentative Ruling

Re: Ramirez v. Wildrose Chapel and Funeral Home



Motion: Defendant Cairns Funeral Home’s Motion to Strike First

Amended Complaint, Joined by Defendant Wildrose Chapel

and Funeral Home

Tentative Ruling:

To grant the request for judicial notice. (Evid. Code, § 452, subd. (c), (d).) To grant

the motion to strike, without leave to amend. (Code of Civ. Proc., § 435, subd. (a).)

Explanation:

A decedent’s competent surviving spouse is one of the enumerated persons

entitled to control the disposition of the decedent’s remains. (Health & Saf. Code, § 7100,

subd. (a)(2); In re Cornitius’ Estate (1957) 154 Cal.App.2d 422, 442.) In addition, “[a]

subsequent marriage contracted by a person during the life of his or her former spouse,

with a person other than the former spouse, is illegal and void . . . .” (Fam. Code § 2021;

In re Marriage of Tejeda (2009) 179 Cal.App.4th 973, 980.)

Here, defendant’s request for judicial notice includes plaintiff’s marriage

certificate which indicates she married the decedent on December 9, 2016. The request

for judicial notice also includes the court record for plaintiff’s nullity of marriage

proceeding against Luciano Lopez, Sr. – Fresno Superior Court Case No. 07CEFL07094.

According to the record, Case No. 07CEFL07094 was administratively disposed

and never reached final adjudication. Consequently, plaintiff’s marriage to Luciano

Lopez, Sr. was still in existence at the time she married the decedent on December 9,

2016 – a circumstance which indicates her subsequent marriage to the decedent was

“illegal and void.” (Fam. Code, § 2021.) Accordingly, without contrary evidence,

plaintiff’s assertion in the first amended complaint that she was decedent’s wife is false,

and therefore subject to a motion to strike. (Code of Civ. Proc., § 436, subd. (a) [“The

court may . . . [¶](a) [s]trike out any irrelevant, false, or improper matter inserted in any

pleading.”].)

In addition, without a claim that she was married to the decedent, plaintiff was

not entitled to control the disposition of the decedent’s remains, thereby eliminating the

theory of liability asserted in the complaint. (Health & Saf. Code, § 7100, subd. (a)(2); In

re Cornitius’ Estate (1957) 154 Cal.App.2d 422, 442.) Finally, plaintiff has not filed an

opposition.

Therefore, the motion to strike is granted. (Code of Civ. Proc., § 435, subd. (a).)

Considering that this is the second motion on this ground and the lack of opposition, there

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is no claim that the defects can be cured. Thus, leave to amend is not granted. (See

Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768 [leave to amend in response to motion

to strike, as with a demurrer, should only be granted where defect can be cured by

amendment].)





Tentative Ruling



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(17)

Tentative Ruling

Re: Seeley v. Covenant Care, LLC, et al,



Motions: Defendants’ Demurrer and Motion to Strike Second Amended

Complaint

Tentative Ruling:

To overrule defendants’ demurrer to plaintiffs’ first and second causes of action.

(Code Civ. Proc., §430.10, subd. (e).)

To deny defendants’ motion to strike. (Code Civ. Proc. §§ 435, 436.)

Explanation:

Demurrer

On a demurrer, the facts alleged in the pleading are deemed to be true, as it is

“not the ordinary function of a demurrer to test the truth of the plaintiff's allegations or

the accuracy with which [plaintiff] describes the defendant's conduct. A demurrer tests

only the legal sufficiency of the pleading.” (Quelimane Co. v. Stewart Title Guaranty Co.

(1998) 19 Cal.4th 26, 47.) The pleading is adequate if it apprises the defendant of the

factual basis for the plaintiff's claim. (Perkins v. Superior Court (1981) 117 Cal.App.3d 1,

6.)

First Cause of Action -- Elder Abuse (Neglect)

The Elder Abuse Act (Welf. & Inst. Code, § 15600 et seq.) is intended “to protect a

particularly vulnerable portion of the population from gross mistreatment in the form of

abuse and custodial neglect,” including those residents of nursing homes. (Delaney v.

Baker (1999) 20 Cal.4th 23, 33, 40 (Delaney).) “ ‘[N]eglect’ . . . [refers to] the failure of

those responsible for attending to the basic needs and comforts of elderly or dependent

adults . . . to carry out their custodial obligations.” (Id., at p. 34.) To establish “neglect”,

“[t]he plaintiff must allege . . . facts establishing that the defendant: (1) had responsibility

for meeting the basic needs of the elder or dependent adult, such as nutrition, hydration,

hygiene or medical care; (2) knew of conditions that made the elder or dependent adult

unable to provide for his or her own basic needs; and (3) denied or withheld goods or

services necessary to meet the elder or dependent adult's basic needs, either with

knowledge that injury was substantially certain to befall the elder or dependent adult . . .

or with conscious disregard of the high probability of such injury . . . . The plaintiff must

also allege . . . that the neglect caused the elder or dependent adult to suffer physical

harm, pain or mental suffering. (Carter v. Prime Healthcare Paradise Valley LLC (2011)

198 Cal.App.4th 396, 406–407, internal citations omitted.)

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Defendants claim the first cause of action fails because it is not alleged with the

requisite particularity. (Demurrer at 12:14-16.) Elder abuse, as a statutory cause of action,

must be pleaded with particularity. (Covenant Care, Inc. v. Superior Court (2004) 32

Cal.4th 771, 790.)

Plaintiffs contend that Seeley was age 85. (SAC, ¶ 11.) On March 28, 2018, Seeley

became a resident at Pacific Gardens, a skilled nursing facility operated by defendants.

(SAC, ¶ 12.) Defendants thus had the care and custody of Seeley, and were responsible

for his health, safety, and well-being, including meeting Seeley’s basic needs of nutrition,

hydration, hygiene or medical care. (SAC, ¶¶ 14, 40.)

Defendants knew that Seeley could not provide for his own nutrition, hydration,

hygiene and medical care and that he was fully dependent on defendants’ care,

because he was weak from a prior hospitalization, and could not walk independently.

(SAC, ¶¶ 40, 41.) Seeley was put in diapers on his first arrival at the facility as part a

conscious plan by defendants to leave him in bed “virtually 24 hours a day.” (SAC, ¶ 42.) Defendants “rarely” answered Seeley’s call light, causing him to remain in soiled diapers

for hours on end. (Ibid.) Defendants knew that this increased the risk of Seeley’s leg

wound worsening and developing sepsis. (Ibid.) Moreover, defendants failed to obtain

necessary medical care despite knowing that Seeley’s leg wound was deteriorating,

needing medical attention that Seeley could not obtain on his own. (Ibid.) This neglect

caused Seeley to suffer physical harm, pain, humiliation, mental anguish and ultimately

death. (SAC, ¶ 44.)

These allegations are sufficient. (Knox v. Dean (2012) 205 Cal.App.4th 417;

Worsham v. O'Connor Hospital (2014) 226 Cal.App.4th 331, 335; Fenimore v. Regents of

the University of California (2016) 245 Cal.App.4th 1339, 1350.)

Elder Abuse Against Employing Entity Defendants

In order to state a cause of action for elder abuse and neglect against an

employer, the plaintiff must allege that an officer, director, or managing agent of the

defendant either (a) had advance knowledge of the unfitness of an employee and

employed him or her with a conscious disregard of the rights and safety of others, or (b)

authorized or ratified the wrongful conduct for which the damages are awarded, or (c)

was personally guilty of oppression, fraud, or malice. (Welf. & Inst. Code., § 15657,

subdivision (c).) Here, plaintiffs’ allege that defendant Bart Vander Wal was the

“Administrator” of Pacific Gardens and therefore legally responsible for the operation

and management of Pacific Gardens pursuant to 42 C.F.R. section 483.75, subdivision (d). (SAC, ¶¶ 52-55.)

Defendants argue that Vander Wal was “neither an officer, director, nor

managing agent of the corporate defendants.” (Demurrer at 13:13-15.) However,

plaintiffs have alleged that Vander Wal, was the “Administrator” and therefore legally

the “highest managing agent of the facility” and was hired to carry out the day-to-day

operations at the facility. (SAC, ¶ 52.) These allegations are sufficient.

Defendants also argue that the Second Amended Complaint lacks factual

allegation as to how Vander Wal "authorized or ratified" the conduct of facility staff.

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(Demurrer at 13:14-15.) Ratification “commonly arises where the employer or its

managing agent is charged with failing to intercede in a known pattern of workplace

abuse, or failing to investigate or discipline the errant employee once such misconduct

became known. [Citations.] Corporate ratification in the punitive damages context

requires actual knowledge of the conduct and its outrageous nature.” (College Hospital

Inc. v. Superior Court (1994) 8 Cal.4th 704, 726; see also Fisher v. San Pedro Peninsula

Hospital (1989) 214 Cal.App.3d 590, 621.)

Here, plaintiffs’ allege that Vander Wal “knew that Pacific Gardens', under his

direction and control, was not providing” essential services including physical therapy for

residents such as Seeley, and that failure to provide those “services had a high probability

of causing harm, including death.” (SAC, ¶ 66.) These allegations are sufficient. The

demurrer to the first cause of action is overruled.

Second Cause of Action -- Violation of Patients’ Bill of Rights

Health and Safety Code section 1430, subdivision (b), grants a “former resident or

patient of a skilled nursing facility,” the right to bring a civil action against the licensee of

a facility who violates any rights of the resident or patient as set forth in the Patients’ Bill

of Rights” in the California Code of Regulations, “or any other right provided for by federal

or state law or regulation. . . .” “Patients shall have the right . . . to be free from mental

and physical abuse.” (22 Cal. Code of Regs., § 72527, subd. (a)(10).) Moreover, “[a]

facility must treat each resident with respect and dignity and care for each resident in a

manner and in an environment that promotes maintenance or enhancement of his or

her quality of life, recognizing each resident’s individuality. The facility must protect and

promote the rights of the resident.” (42 CFR § 483.10, subd. (a)(1).)

Plaintiffs allege that defendant Pacific Gardens Nursing and Rehabilitation Center

was, in fact a skilled nursing facility” (SAC, ¶ 5) which violated decedent’s right to be free

from “mental and physical abuse” under 22 California Code of Regulations section

72527(9). (SAC, ¶¶ 69-70.) Moreover, the facility breached its duty to “care for its

residents in a manner and in an environment that promotes the maintenance of

enhancement of each resident’s quality of life” and its duty to “ensure that the resident

environment remains as free of accident hazards as is possible, and each resident

receives adequate supervision and assistance devices to prevent accidents.” (Ibid.)

The allegations of the Second Amended Complaint at paragraphs 40-44, detailed

in reference to the first cause of action, and incorporated into the second cause of

action, are sufficient. (See SAC, ¶¶ 40-44, 67.) The demurrer to this cause of action is

overruled.

Motion to Strike

A motion to strike is the proper procedure to challenge an improper request for

relief, or improper remedy, within a complaint. (Code Civ. Proc., § 431.10, subd. (b);

Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166-167.) Defendants assert that

insufficient facts support the claim for punitive damages. With respect to punitive

damage allegations, mere legal conclusions of oppression, fraud or malice are

21

insufficient (and hence improper) and therefore may be stricken. However, if looking to

the complaint as a whole, sufficient facts are alleged to support the allegations, then a

motion to strike should be denied. (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6.)

“To support punitive damages, the complaint asserting one of those causes of action

must allege ultimate facts of the defendant's oppression, fraud, or malice.” (Spinks v.

Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1055 (emphasis

added).) Evidentiary facts are not required.

“[A]bsent an intent to injure the plaintiff, ‘malice’ requires more than a willful and

conscious disregard of the plaintiff’s interests. The additional component of ‘despicable

conduct’ must be found.” (College Hosp. Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.)

“Despicable” conduct is defined as “conduct which is so vile, base, contemptible,

miserable, wretched or loathsome that it would be looked down upon and despised by

ordinary decent people.” (Ibid.)

The allegations of defendant’s deliberate neglect of Seeley by leaving him bed

bound in filth, refusing to respond to him or provide him adequate therapy and care, plus

defendant’s knowledge of, and indifference to, his suffering are sufficiently despicable

as to justify the imposition of punitive damages.

The employer defendants argue that they cannot be held liable for punitive

damages. Pursuant to Civil Code section 3294, subdivision (b), punitive damages may

not be awarded against an employer based upon the acts of an employee unless the

employer (i) had advance knowledge of the unfitness of the employee and employed

him or her with a conscious disregard of the rights or safety of others, (ii) authorized or

ratified the wrongful conduct for which the damages are awarded, or (iii) was personally

guilty of oppression, fraud or malice. “With respect to a corporate employer, the

advance knowledge and conscious disregard, authorization, ratification or act of

oppression, fraud or malice must be on the part of an officer, director, or managing

agent of the corporation.” (Civ. Code, § 3294, subd. (b); see also White v. Ultramar, Inc.

(1999) 21 Cal.4th 563, 573.) Here, plaintiff’s allegations regarding Vander Wal acting as

the managing agent of defendants are sufficient. (See SAC, ¶¶ 49-58, 66.) Accordingly,

defendants’ motion to strike plaintiffs’ punitive damages claim is denied.





Tentative Ruling



22

(24)

Tentative Ruling

Re: Mooradian v. State of California Department of Transportation



Motions: (1) Real Party in Interest California Department of

Transportation’s Motion to Strike

(2) Petitioner Theodore B. Mooradian’s Motion to Augment

Record

Tentative Ruling:

To continue for further briefing on the issues discussed in the Explanation section

below. The parties are to provide simultaneous supplemental briefs, not to exceed 10

pages in the length, filed by Friday, January 29, 2021. The motions are continued to

Friday, February 28, 2021, at 1:30 p.m., in Department 503, as is the writ of mandate

briefing schedule hearing.

Explanation:

Code of Civil Procedure, section 1094.5, subdivision (e), provides as follows:

Where the court finds that there is relevant evidence that, in the exercise

of reasonable diligence, could not have been produced or that was

improperly excluded at the hearing before respondent, it may enter

judgment as provided in subdivision (f) remanding the case to be

reconsidered in the light of that evidence; or, in cases in which the court

is authorized by law to exercise its independent judgment on the

evidence, the court may admit the evidence at the hearing on the writ

without remanding the case.

(Code Civ. Proc., § 1094.5, subd. (e), emphasis added.)

Petitioner argues that the court’s standard of review in this matter will be

independent judgment because the matter concerned a fundamental vested right.

(Mtn. Strike Opp., p. 4:12-23.)1 The court found no reference in either of the California

Department of Transportation’s briefs regarding the appropriate standard of review.

Pursuant to Code of Civil Procedure section 1094.5, subdivision (e), it is vital for the court

to consider the appropriate standard of review in ruling on a motion to augment the

record to include evidence that was (as Petitioner contends) improperly excluded at the

administrative level.

1 Petitioner’s opposition brief also served as his memorandum of points and authorities in support

of his motion to augment.

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From the court’s research, it appears that the independent judgment test does

not apply to decisions of state agencies which are endowed with adjudicatory power

by the California Constitution. The State Personnel Board, the respondent in this action,

is such an agency. (Cal. Const., Art. VII, § 3; State Personnel Bd. v. Department of

Personnel Admin. (2005) 37 Cal.4th 512, 522 [“Because the State Personnel Board derives

its adjudicatory authority from the state Constitution rather than from a legislative

enactment, a superior court considering a petition for administrative mandate must defer

to the Board's factual findings if they are supported by substantial evidence.”].) “It is well

established that an employer 's right to discipline or manage its employees is subject to

civil service and anti-discrimination regulation and is not a fundamental vested right

entitling the employer to have a trial court exercise its independent judgment on the

evidence.” (Los Angeles County Dept. of Parks & Recreation v. Civil Service Com. (1992)

8 Cal.App.4th 273, 279, emphasis in original [citing cases].)

However, there may be exceptions to this principle which were not revealed in

the court’s limited research, especially where both sides agree that Petitioner did not

have the opportunity to have a Skelly hearing prior to the demotion taking effect. Courts

use independent judgment on the question whether the procedure followed by the

agency complied with statutory or constitutional requirements. (City of Fairfield v.

Superior Court (1975) 14 Cal.3d 768, 776; California Hotel & Motel Assn. v. Industrial

Welfare Com. (1979) 25 Cal.3d 200, 209 [violation of requirement of Labor Code],

superseded on other grounds as stated in Brinker Restaurant Corp. v. Superior

Court (2012) 53 Cal.4th 1004.)

Since this issue was not fully briefed, the court will provide the parties an

opportunity to present their arguments before ruling on the instant motions.





Tentative Ruling



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