Tentative Rulings for November 27, 2018 …...1 Tentative Rulings for November 27, 2018 Departments...

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Tentative Rulings for November 27, 2018

Departments 403, 501, 502, 503

There are no tentative rulings for the following cases. The hearing will go forward on

these matters. If a person is under a court order to appear, he/she must do so.

Otherwise, parties should appear unless they have notified the court that they will

submit the matter without an appearance. (See California Rules of Court, rule 3.1304(c).)

09CECG00932 Gomez v. Gomez (Dept. 503)

15CECG01541 Kelley v. Fowlks (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.

17CECG01178 Janet Moore et al. v. Michael Burg, M.D. et al. is continued to

Tuesday, December 11, 2018 at 3:30 p.m. in Dept. 502.

________________________________________________________________

(Tentative Rulings begin at the next page)

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Tentative Rulings for Department 403

(5)

Tentative Ruling

Re: Greg Amos v. Target Financial & Insurance Services et

al.

Superior Court Case No. 17 CECG 04353

Hearing Date: November 27, 2018 (Dept. 403)

Motion: Demurrer to the Third Amended Complaint by

Defendant Insurance Underwriters Inc.

Tentative Ruling:

To take the demurrer off calendar for failure to comply with CCP § 430.41(a).

The parties are ordered to meet & confer in person or via telephone as required by CCP

§ 430.41(a). If the meet & confer is unsuccessful, then the demurring party may

calendar a new date for hearing the demurrer to the Third Amended Complaint.

Explanation:

CCP § 430.41(a) states in relevant part: “Before filing a demurrer pursuant to this

chapter, the demurring party shall meet and confer in person or by telephone with the

party who filed the pleading that is subject to demurrer...” In the instant case, the

parties met & conferred via email. See Declaration of Joseph C. Campo and Exhibit A

attached thereto. Although convenient, the statute specifies “in person or by

telephone.” Therefore, the demurrer must be taken off calendar.

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: RTM on 11/20/18

(Judge’s initials) (Date)

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(03)

Tentative Ruling

Re: Verrees v. Davis

Case No. 18CECG01307


Motion: Defendants Joyce Fields-Keene, Central California Faculty

Medical Group, and University Neurosurgery Associates’

Demurrer to First Amended Complaint, and Motion to Strike

Portions of First Amended Complaint

Defendants Scott Wells, Fresno Community Medical Center,

and Santé Health’s Demurrer to First Amended Complaint,

and Motion to Strike Portions of First Amended Complaint

Tentative Ruling:

To sustain the demurrers of defendants Joyce Fields-Keene, Central California

Faculty Medical Group, University Neurosurgery Associates, Fresno Community Medical

Center, and Santé Health to the entire first amended complaint for uncertainty and

failure to state facts sufficient to constitute a cause of action, without leave to amend.

(Code Civ. Proc. § 430.10, subd.’s (e), (f).)

To grant the defendants’ motions to strike the portions of the first amended

complaint seeking punitive damages and attorney’s fees, as well as the improper

references to the names and medical information of plaintiff’s patients, without leave

to amend. (Code Civ. Proc. §§ 435, 436.)

Defendants shall submit a proposed order dismissing the plaintiff’s first amended

complaint as to them with prejudice within 10 days of the date of service of this order.

Explanation:

Demurrers for Uncertainty: First of all, plaintiff has included over 100 pages of

largely irrelevant background facts regarding various incidents that happened during

her employment with CCFMG, including lengthy and detailed descriptions of medical

treatments that she provided to several patients, her disputes with the other doctors at

the hospital regarding patient treatment, and incidents of bullying and harassment by

other doctors. However, most of the facts alleged appear to have little to do with

plaintiff’s actual claims in the present case, which she alleges are actually based on

events that took place after she left her employment with CCFMG in May of 2011. (See

FAC, p. 114, lines 14-17.) Indeed, plaintiff concedes that most of the events that she

describes that occurred prior to May 17, 2011 were already litigated in the prior

arbitration proceeding, at least as far as they relate to defendants CCFMG, University

Neurosurgery Associates, and Fields-Keene. (Ibid.) The massive amount of irrelevant

allegations in the preceding pages of the complaint render the entire amended

complaint confusing, ambiguous and uncertain, as it is unclear which allegations are

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actually material to the plaintiff’s claims and which are simply irrelevant background.

As a result, the court intends to sustain the demurrer to the entire first amended

complaint for uncertainty.

Demurrer to First Cause of Action: The plaintiff’s first cause of action for fraud fails

to state facts sufficient to constitute a cause of action. First of all, defendants argue

that the fraud claim is time-barred because it is based on statements that were made

over three years before the filing of the original complaint. However, a general

demurrer based on the statute of limitations will only lie where the allegations of the

complaint clearly and unambiguously show that the statute has run. Where the dates

and facts are ambiguous and only show that the statute might have run, the demurrer

will not lie. (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th 1397, 1403.)

The statute of limitations for a fraud cause of action is three years from the date

that the plaintiff either discovered the facts constituting the fraud, or with reasonable

diligence could have discovered those facts, whichever comes first. (Code Civ. Proc. §

338, subd. (d); Sun ‘n Sand, Inc. v. United California Bank (1978) 21 Cal.3d 671, 701.)

Here, plaintiff has alleged that “Defendants made multiple false representations against

Plaintiff through blackmailing sources.” (FAC, p. 115, lines 13-14.) However, she does

not allege the exact date that these representations were made. It appears that at

least some of the false statements were made in 2011 or 2012, around the time that

defendant refused to renew plaintiff’s contract. Also, plaintiff alleges that defendants

made a false report about her to the Medical Board in 2013. (FAC, p. 108, lines 16-18.)

However, she also alleges that defendants continued to make false statements to the

Medical Board in 2014 and 2015. (Id. at pp. 109, line 24 - 110, line 17.)

Thus, while it appears that many of the allegedly false statements by defendants

were made more than three years before the filing of the original complaint in the

present case, at least some of the false statements may have been made less than

three years before the filing of the complaint. Therefore, since it is not clear from the

face of the complaint that the fraud claim is entirely time-barred, the court will not

sustain the demurrer on the ground that the claim is barred by the statute of limitations.

On the other hand, plaintiff has failed to allege specific facts to support the

required elements of a fraud cause of action, so her first cause of action still fails to state

a valid claim. In order to state a cause of action for fraud, a plaintiff must allege: “(a)

misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge

of falsity (or ‘scienter’); (c) intent to defraud, i.e. to induce reliance; (d) justifiable

reliance; and (e) resulting damage.” (Lazar v. Superior Court (1996) 12 Cal.4th 631,

638.)

“In addition, ‘[i]n California, fraud must be pled specifically; general and

conclusory allegations do not suffice. [Citations.] “Thus ‘”’the policy of liberal

construction of the pleadings ... will not ordinarily be invoked to sustain a pleading

defective in any material respect.”’ ” [Citation.] [¶] This particularity requirement

necessitates pleading facts which “show how, when, where, to whom, and by what

means the representations were tendered.’”'” (Robinson Helicopter Co., Inc. v. Dana

Corp. (2004) 34 Cal.4th 979, 993, quoting Lazar, supra, at p. 645.)

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Here, plaintiff has failed to allege any specific facts to support her fraud claim

against the defendants. She does not allege when exactly the misrepresentations were

made, who made them, where they were made, to whom they were made, and by

what means they were tendered. It is not even clear exactly which defendants made

the representations, other than Dr. Davis and CRMC. (FAC, p. 115, lines 13-20.) The

other named defendants do not appear to have made any false representations to

anyone, so it is unclear what the basis of plaintiff’s fraud claim as to the other

defendants might be. Plaintiff simply vaguely alleges that “Defendants” made various

false statements about her, but she does not specify who made the statements, other

Davis and CRMC.

Also, it does not appear that plaintiff is alleging that the false statements were

made to her, that defendants intended to deceive her, or that she relied on the

statements to her damage. Instead, she seems to be alleging that the false statements

were made to the Medical Board, Saint Agnes, and the arbitrator in the prior arbitration

case, and that those people or entities took negative actions against her as a result.

(FAC, ¶¶ 115-117.) However, in order to state a claim for fraud, the plaintiff must allege

that defendant made false statements to her with the intent to deceive her, that she

reasonably relied on the defendant’s statements, and that she suffered harm as a result

of her reliance. (Lazar, supra, at p. 645, Civil Code § 1709.)

In the present case, it is apparent from plaintiff’s allegations that defendants did

not make any false statements directly to her with the intent to induce her to rely on

them, nor did she ever believe the false statements or rely on them to her detriment. At

most, defendants made false statements to third parties, i.e. the Medical Board, the

arbitrator in the prior arbitration case, and Saint Agnes, who took actions against

plaintiff as a result. Such indirect misrepresentations and reliance cannot support a

cause of action for fraud.1

Thus, plaintiff has failed to state facts sufficient to constitute a cause of action for

fraud, and the court intends to sustain the demurrer to the first cause of action.

Furthermore, it does not appear that there is any chance that plaintiff will be able to

amend the complaint to cure the defect in her fraud claim, as she has been unable to

point to any facts that she could allege that would show that defendants made any

misrepresentations directly to her, or that she relied on those statements to her

detriment. Therefore, the court intends to deny leave to amend the first cause of

action.

Demurrer to Second Cause of Action: Plaintiff’s second cause of action for

breach of contract also fails to state facts sufficient to constitute a valid claim. First,

most of plaintiff’s allegations in the second cause of action appear to relate to her

employment with CCFMG, which plaintiff admits ceased on May 17, 2011. (FAC, p. 115,

1 It also seems likely that any false statements made by defendants in the arbitration proceeding

or in their report to the Medical Board and the subsequent investigation would be privileged

under Civil Code section 47, subdivision (b). Therefore, even if the court were to construe the

plaintiff’s fraud claim as actually being an attempt to state a claim for defamation, the plaintiff’s

claim is still defectively pled, as the allegedly defamatory statements appear to be privileged on

their face.

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lines 14-17.) Indeed, plaintiff’s allegations indicate that the only contract between her

and any of the defendants was terminated in 2011. (Id. at p. 94, lines 12-14.) Plaintiff

also alleges that she started working at Saint Agnes after leaving CCFMG, and that she

was forced to resign from Saint Agnes in October of 2012 when defendants’ false

statements about her ruined her reputation. (Id. at p. 98, line 24 – p. 99, line 4.) Thus,

her contract with CCFMG, which is the only contract alleged in the amended

complaint, terminated in 2011.

There is a four-year statute of limitations for actions based on the breach of a

written contract. (Code Civ. Proc. § 337.) A cause of action for breach of contract

begins to run from the time of the breach. (Romano v. Rockwell International, Inc.

(1996) 14 Cal.4th 479, 488-489.) Thus, in the case of an employee’s claim for breach of

an employment contract, the breach occurs and the claim accrues at the time the

employee’s employment was actually terminated. (Id. at pp. 489-490.)

In the present case, the allegations show that the plaintiff’s contract was bought

out or terminated in May of 2011, which was more than four years before she filed her

original complaint. Thus, her breach of contract claim is time-barred, and she has not

stated a valid claim against the defendants.

Also, to the extent that plaintiff seems to be alleging some other type of

contractual breach, she has failed to allege that any other contract existed between

her and the defendants that would support the existence of a contract cause of

action. Of course, one of the required elements of a breach of contract claim is the

existence of a contract between the parties. (Careau & Co. v. Security Pacific Business

Credit, Inc. (1990) 222 Cal.App.3d 1371.)

Here, plaintiff seems to be alleging that defendants breached their contractual

duties even after plaintiff’s contract with CCFMG was terminated by making false

reports about her to the Medical Board and spreading rumors about her while she was

working at Saint Agnes. (FAC, p. 124, lines 17-26.) However, since the contract

between plaintiff and defendant CCFMG terminated in May of 2011, and she has not

alleged that she formed any other contract with defendants after that date, she has

failed to state a claim for breach of contract against defendants.

Plaintiff seems to rely on other, non-contractual duties that defendants allegedly

owed to her, such as duties under the Constitution, and the basic tenets of healthcare

and medicine like the Hippocratic Oath to “First, do no harm.” (Id. at p. 122, lines 5-10.)

Yet, while such non-contractual duties might conceivably support some type of tort

claim, they do not constitute a basis for a breach of contract claim. As a result, the

court intends to sustain the demurrer to the second cause of action for breach of

contract.

Nor does it appear that plaintiff will be able to cure the defect in her contract

cause of action if given leave to amend, since she has not pointed to any facts that

she could allege that would show the existence of a contract between herself and the

defendants after the one that terminated in 2011. Plaintiff’s vague references to

defendants’ alleged breach of duties arising out of the Constitution and the tenets of

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medicine and healthcare cannot form the basis for a contract claim. Therefore, the

court intends to deny leave to amend the second cause of action.

Demurrer to Third Cause of Action: Plaintiff’s third cause of action for intentional

infliction of emotional distress also fails to state facts sufficient to constitute a cause of

action.

“The elements of a prima facie case for the tort of intentional infliction of

emotional distress are: (1) extreme and outrageous conduct by the defendant with the

intention of causing, or reckless disregard of the probability of causing, emotional

distress; (2) the plaintiff's suffering severe or extreme emotional distress; (3) and actual

and proximate causation of the emotional distress by the defendant's outrageous

conduct.” (Cervantez v. J. C. Penney Co. (1979) 24 Cal.3d 579, 592, internal citations

omitted, superseded by statute on other grounds as stated in Melendez v. City of Los

Angeles (1998) 63 Cal.App.4th 1, 6.)

“Conduct to be outrageous must be so extreme as to exceed all bounds of that

usually tolerated in a civilized community.” (Id. at p. 592, internal citations omitted.)

“And the defendant's conduct must be ‘“ ‘ “intended to inflict injury or engaged in with

the realization that injury will result.’” ’ ” (Hughes v. Pair (2009) 46 Cal.4th 1035, 1051,

quoting Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001.) However,

“Liability for intentional infliction of emotional distress ‘“‘does not extend to mere insults,

indignities, threats, annoyances, petty oppressions, or other trivialities.”’” (Ibid, internal

citations omitted.)

Here, plaintiff’s intentional infliction cause of action alleges that “[t]he conduct

of Defendants was extreme and outrageous.” (FAC, p. 127, line 13.) She also alleges

that defendants used knowingly fictitious allegations to cause cumulative damage to

her, and that they actively obstructed justice to prevent exposure of the fraudulent

material, and the illegal means used to obtain it, which caused plaintiff to suffer

“agony” that “exceeds all bounds of that usually tolerated in a civilized community.”

(Id. at p. 127, lines 15-19.) She also alleges that defendants knew their fraudulent

allegations against her would result in the devastation of her neurosurgery career and

potential in neurosurgery. (Id. at p. 127, lines 21-24.) Defendants allegedly intended to

inflict injury on plaintiff. (Id. at p. 127, lines 25-26.)

However, as discussed above, the first amended complaint is filled with over 100

pages of confusing and apparently irrelevant allegations regarding various wrongful

acts by defendants, many of which appear to have occurred in 2013 or earlier, and

thus would be beyond the statute of limitations for an intentional infliction claim, which

is two years. (Code Civ. Proc. § 335.1.) Even the defendants’ conduct in filing the

allegedly false report to the Medical Board that resulted in the investigation of plaintiff

allegedly occurred in 2013, which was about five years before she filed the present

action. (FAC, p. 108, lines 16-18.) The other allegedly false statements that defendants

obtained from Nurse Ahrenberg were all made in April of 2011, prior to plaintiff’s

contract with CCFMG being terminated. (Id. at pp. 85-86.) Thus, to the extent that

plaintiff claims that defendants acted outrageously and with intent to cause her

emotional distress based on events that occurred more than two years before the filing

of the present action, the claim is time-barred.

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Also, to the extent that plaintiff is alleging that defendants continued to make

false statements about her to the Medical Board, and extorted or pressured other

people to make false statements about her during the Board’s investigation, plaintiff

admits that the Medical Board’s investigation ended in 2015, at which time she was

exonerated of all charges. (FAC, p. 110, lines 18-21.) While it was not until August of

2016 that the Medical Association confirmed to plaintiff that her record had been

cleared of all negative information (Id. at p. 110, lines 24-27), plaintiff alleges no

wrongful conduct by defendants that could support an IIED claim after the end of 2015.

Since the statute of limitations for IIED claims is only two years, plaintiff would have had

to bring her complaint by the end of 2017 at the latest. However, she did not file her

complaint until April 16, 2018, more than two years after the last possible wrongful act

that could have formed a basis for her IIED claim. Therefore, plaintiff’s claim for

intentional infliction of emotional distress is barred by the statute of limitations.

Plaintiff argues in her opposition that the statute did not finally start to run until

after she learned that her license had been cleared of all possible negative information

in August of 2016. However, an IIED claim accrues for purposes of the statute of

limitations on the date that plaintiff actually suffered harm from severe emotional

distress due to defendants’ conduct. (Kisesky v. Carpenters’ Trust for So. California

(1983) 144 Cal.App.3d 222, 231-232: plaintiff’s claim for IIED accrued on date he

suffered a heart attack due to defendants’ threats of bodily harm.)

Here, plaintiff alleges that she suffered cumulative harm to her professional

reputation and ability to practice neurosurgery due to defendants’ conduct, but she

also admits that the Medical Association exonerated her of all wrongdoing at the end

of 2015. (FAC, p. 110, lines 18-21.) She also never alleges that she suffered any specific

physical harm from the investigation or defendants’ false statements about her, and

instead only alleges harm to her professional reputation and ability to practice

medicine. (Id. at p. 127, lines 21-24.) Since the Medical Board exonerated her in 2015,

it appears that the latest date on which she suffered harm was the end of 2015, and

thus the statute ran on her claim for IIED by the end of 2017. Since plaintiff fails to allege

any further wrongful conduct or harm to her after that date, her IIED claim is time-

barred.

Demurrer to Fourth Cause of Action: For the same reasons, plaintiff’s cause of

action for negligent infliction of emotional distress is also time-barred. Again, the statute

of limitations for negligence claims is two years. (Code Civ. Proc. § 335.1.) Plaintiff has

not alleged any facts showing that she suffered harm due to defendants’ alleged

campaign against her after the end of 2015, when the Medical Board investigation

ended and she was exonerated of all charges. Indeed, most of plaintiff’s allegations in

support of her NEID claim appear to be based on actions that defendants took while

she was still employed by CCFMG, even though plaintiff admits that such activity would

not form a basis for any claim here. (FAC, p. 128, lines 5-23.) Since plaintiff has not

alleged that defendants did anything to cause her emotional distress after the Medical

Board investigation was closed, her NEID claim is time-barred, as she did not file her

complaint until April of 2018, more than two years after the date of her last alleged

injury.

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Also, plaintiff has not alleged any facts showing that defendants owed her a

duty to avoid causing her emotional harm, or that she suffered the type of harm that

constitutes damage for the purpose of an emotional distress claim. The California

Supreme Court explained in Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965

that, “there is no independent tort of negligent infliction of emotional distress. The tort is

negligence, a cause of action in which a duty to the plaintiff is an essential element.

That duty may be imposed by law, be assumed by the defendant, or exist by virtue of a

special relationship.” (Id. at pp. 984–985, internal citations omitted.)

Thus, “unless the defendant has assumed a duty to plaintiff in which the

emotional condition of the plaintiff is an object, recovery is available only if the

emotional distress arises out of the defendant's breach of some other legal duty and

the emotional distress is proximately caused by that breach of duty. Even then, with

rare exceptions, a breach of the duty must threaten physical injury, not simply damage

to property or financial interests.” (Id. at p. 985.)

Here, plaintiff has not alleged any facts showing that defendants owed her any

duty in which her emotional condition was an object, or that any other duty existed

under the law that defendants may have breached. Plaintiff’s vague references to

Constitutional or other laws, or the tenets of medicine and healthcare, do not establish

that defendants had a duty to ensure that plaintiff did not suffer emotional distress from

their actions. Also, the plaintiff only alleges harm to her professional reputation, not any

physical injury or threat of physical harm. The emotional distress plaintiff suffered

because of the damage to her financial and professional status is not enough to

support a claim for negligent infliction of emotional distress. (Potter, supra, at p. 985.)

Therefore, the court intends to sustain the defendants’ demurrers to the fourth

cause of action for failure to state facts sufficient to constitute a cause of action.

Furthermore, the court intends to deny leave to amend the fourth cause of action, as

plaintiff has not pointed to any new facts that she could allege that would cure the

defects in her negligent infliction claim. Indeed, it is clear from the allegations of the

first amended complaint that plaintiff’s claims are time-barred, so it does not appear

that it would be possible to cure the defect by amendment.

Demurrer to Fifth Cause of Action: Finally, the court intends to sustain the

demurrer to the fifth cause of action for civil conspiracy.

First of all, “Conspiracy is not a cause of action, but a legal doctrine that imposes

liability on persons who, although not actually committing a tort themselves, share with

the immediate tortfeasors a common plan or design in its perpetration. By participation

in a civil conspiracy, a coconspirator effectively adopts as his or her own the torts of

other coconspirators within the ambit of the conspiracy. In this way, a coconspirator

incurs tort liability co-equal with the immediate tortfeasors.” (Applied Equipment Corp.

v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510–511, internal citations omitted.)

“Standing alone, a conspiracy does no harm and engenders no tort liability. It

must be activated by the commission of an actual tort. ‘“ 'A civil conspiracy, however

atrocious, does not per se give rise to a cause of action unless a civil wrong has been

committed resulting in damage.' ”’ ‘A bare agreement among two or more persons to

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harm a third person cannot injure the latter unless and until acts are actually performed

pursuant to the agreement. Therefore, it is the acts done and not the conspiracy to do

them which should be regarded as the essence of the civil action.’” (Id. at p. 511,

internal citations omitted, italics in original.)

“We have summarized the elements and significance of a civil conspiracy: ‘“

'The elements of an action for civil conspiracy are the formation and operation of the

conspiracy and damage resulting to plaintiff from an act or acts done in furtherance of

the common design.... In such an action the major significance of the conspiracy lies in

the fact that it renders each participant in the wrongful act responsible as a joint

tortfeasor for all damages ensuing from the wrong, irrespective of whether or not he

was a direct actor and regardless of the degree of his activity.' ”’” (Id. at p. 511,

internal citation omitted.)

Here, since plaintiff has not alleged any valid causes of action that would serve

as the underlying wrongful acts on which to base a conspiracy claim, she has also

failed to state facts sufficient to support her conspiracy cause of action. As discussed

above in detail, most of plaintiff’s claims are time-barred, and she has failed to allege

facts to support the required elements of each cause of action. Therefore, she has not

stated a valid conspiracy cause of action either. Nor does it appear that she could

allege any new facts to cure the defect in the conspiracy claim. As a result, the court

intends to sustain the defendants’ demurrers to the fifth cause of action, without leave

to amend.

Motions to Strike: The court also intends to grant the defendants’ motions to strike

the prayers for attorney’s fees, punitive damages, and references to the names and

medical information of plaintiff’s patients, without leave to amend.

Under Code of Civil Procedure sections 435 and 436, a party may move to strike,

and the court grant an order striking, any irrelevant, improper, or false matter inserted

into any pleading. The court may also “[s]trike out all or any part of any pleading not

drawn or filed in conformity with the laws of this state, a court rule, or an order of the

court.” (Code Civ. Proc. § 436, subd. (b).)

Here, plaintiff has included several improper and irrelevant matters in her first

amended complaint. Plaintiff includes the names and private medical information of

several of her patients, which she describes in detail. Such private medical information

appears to violate the patients’ right of privacy in their health records in violation of

laws regarding medical confidentiality. While plaintiff claims that she obtained consent

from her patients to include their names and information, she does not include signed

medical releases from the patients to establish that the patients actually consented to

the release of their private information.

In any event, even assuming that the patients did consent to have their private

information released, the detailed allegations concerning their care are irrelevant to

the claims alleged by plaintiff, which are primarily based on events that occurred after

she left her employment with CCFMG. Thus, the court intends to grant the motion to

strike the allegations about the patients’ names and medical information, as well as the

copies of medical records attached to the first amended complaint.

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Next, plaintiff’s request for attorney’s fees in the first amended complaint is

completely unsupported by law. The usual “American Rule” is that a prevailing litigant

is not entitled to an award of attorney’s fees absent a contract, statute, or law that

expressly provides for such fees. (Code Civ. Proc. § 1033.5, subd. (10); Civil Code §§

1021 and 1717; In re Zarate (2017) 567 B.R. 176, 182.) Also, where a party represents him

or herself in litigation, that party is not entitled to an award of attorney’s fees even if

there is a contract that provides for an award of fees to the prevailing party. (Trope v.

Katz (1995) 11 Cal.4th 274, 292.)

Here, plaintiff alleges no contractual or statutory basis for an award of fees. Nor

would she be entitled to an award of fees in any event, since she is representing herself

in the action, and thus she has not “incurred” any attorney’s fees. As a result, the court

intends to strike the request for attorney’s fees from the amended complaint.

Finally, while plaintiff seeks an award of punitive damages against all defendants

based on their allegedly fraudulent, malicious or oppressive conduct, she has failed to

allege any facts to support her underlying claims for relief. Without any properly stated

underlying causes of action, plaintiff’s claim for punitive damages is also improper, as

plaintiff has failed to allege how defendants acted wrongfully and injured her, much

less acted with malice, fraud, or oppression. (Civil Code § 3294.) Therefore, the court

intends to strike the prayer for punitive damages, without leave to amend.

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: ________RTM______ on 11/26/18

(Judge’s Initials) (Date)

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(19) Tentative Ruling

Re: Munoz v. Tarlton & Sons, Inc.

Court Case No. 13CECG03503

Hearing Date: November 27, 2016 (Department 403)

Motion: by plaintiffs for class certification and preliminary approval of

settlement

Tentative Ruling:

To deny without prejudice.

Explanation:

1. CLASS CERTIFICATION

a. Standards

An agreement of the parties is not sufficient to establish a class for settlement

purposes. There must be an independent assessment by a neutral court of evidence

showing that a class action is proper. Luckey v. Superior Court (2014) 228 Cal. App. 4th 81

(rev. denied). See also Newberg, Newberg on Class Actions (T.R. Westlaw, 2017) Section

7:3: “The parties’ representation of an uncontested motion for class certification does not

relieve the Court of the duty of determining whether certification is appropriate.”

The case so requiring is Amchem Prods., Inc. v. Windsor (1997) 521 U.S. 591, 620

(“Amchem”): “Confronted with a request for settlement-only class certification, a district

court need not inquire whether the case, if tried, would present intractable management

problems [citation omitted] for the proposal is that there will be no trial. But other

specifications of the rule--those designed to protect absentees by blocking unwarranted or

overbroad class definitions--demand undiluted, even heightened, attention in the settlement

context."

The Court also discussed the requirement for predominant common legal and factual

questions, and held: “That inquiry trains on the legal or factual questions that qualify each

class member's case as a genuine controversy, questions that preexist any settlement, . . .

[and] tests whether proposed classes are sufficiently cohesive to warrant adjudication by

representation.” (Id. at 623.) “Settlement class actions present unique due process concerns

for absent class members.” Hanlon v. Chrysler Corp. (9th Cir. 1998) 150 F.3d 1011, 1026.

“Class certification requires proof (1) of a sufficiently numerous, ascertainable

class, (2) of a well-defined community of interest, and (3) that certification will

provide substantial benefits to litigants and the courts, i.e., that proceeding as

a class is superior to other methods. In turn, the community of interest

requirement embodies three factors: (1) predominant common questions of

law or fact; (2) class representatives with claims or defenses typical of the class;

and (3) class representatives who can adequately represent the class.”

13

In re Tobacco II Cases (2009) 46 Cal. 4th 298, 313.

California law requires that substantial evidence underlie a decision to certify.

Richmond v. Dart Industries, Inc. (1981) 29 Cal. 3d 462, 470. “In particular, we must consider

whether the record contains substantial evidence to support the trial court's

predominance finding, as a certification ruling not supported by substantial evidence

cannot stand.” Lockhead Martin Corp. v. Superior Court (2003) 29 Cal. 4th 1096, 1106.

b. Numerosity and Ascertainability

Counsel estimates the class size as 50 persons. The number of class members comes

from plaintiff’s counsel, not from discovery or other admissible evidence. "[T]he arguments of

counsel are not evidence." People v. Gonzalez (1990) 51 Cal. 3d 1179, 1228, see also People

v. Yick (1922) 189 Cal. 599, 608. Plaintiff’s counsel cannot testify about defendant’s

employees. The admissible evidence does not establish the number of persons in the class.

c. Community of Interest

i. Class Representatives with Typical Claims

“The focus of the typicality requirement entails inquiry as to whether the plaintiff’s

individual circumstances are markedly different or whether the legal theory upon which the

claims are based differ from that upon which the claims of the other class members will be

based.” Classen v. Weller (1983) 145 Cal. App. 3d 27, 46.

Three of the four class representatives have offered declarations; there is none from

Mr. Haro. An appeal of the order denying arbitration of Mr. Haro’s claim on the basis he

spoke Spanish and did not read English is pending, but stayed on the basis of settlement. It is

uncertain whether Mr. Haro is part of the class or not, as it appears he did sign an

agreement, but was not bound to it due to his language issues. The class definition excludes

those who entered into such agreements, but it is not clear how that will be determined,

given Mr. Haro’s circumstances. Mr. Haro fails to qualify as a class representative due to the

absence of a declaration in any case.

The class is limited to persons working from November 8, 2009 to November 7, 2013.

The other three representatives voice the same circumstances, but for limited time spans.

Munoz worked for perhaps six months in 2013 only, at Tarlton only. Mr. Speak worked for two

years, from July 2011 to July, 2013, for both Tarlton and Texture. Mr. Martinez worked for four

or five months, from December 2012 to April 2013, for Tarlton, but was paid by Texture on one

job.

Each of them states similar claims of no breaks but a 20 minute lunch break, of having

to come in early and stay late, of failure to pay actual reimbursement for travel expenses or

wages for travel time, and having to buy work tools or supplies and not being reimbursed.

Each states this was how it was for all other workers they knew, or that they “understood”

such was the case.

14

These three remaining class representatives seek approval for a settlement that

releases all claims arising from the complaint, which is to include all from November 8, 2009

to the date of judgment. Each of them was no longer employed when this case was filed,

thus claims released run at least five years past the time any of them have a claim. The

settlement fund is to be divided up, however, based solely on hours worked during the “class

period,” to wit, the four years prior to this case being filed. This raises a conflict between the

claims of the class representatives (whose work ended before 2014) and those who

continued to work after this case was filed. Those continuing to work, and will receive

nothing for the last five years.

While differences in damages generally do not alter the typicality analysis, the

settlement here calls for some class members to forfeit compensation for all claims incurred

after 2013, claims not possessed by the proposed class representatives. That is the conflict

found in Amchem Prods. v. Windsor (1997) 521 U.S. 591, where the class representatives

decided to approve a settlement which paid those with injuries from asbestos exposure, but

to denied compensation to others who had also been exposed or had different injuries.

In Amchem, the Supreme Court noted that the requirement class certification factors

be proven whether for settlement or trial "protects unnamed class members from unjust or

unfair settlements affecting their rights when the representatives become fainthearted

before the action is adjudicated or are able to secure satisfaction of their individual claims

by a compromise." (Id. at 623.) "The adequacy inquiry under Rule 23(a)(4) serves to uncover

conflicts of interest between the named parties and the class they seek to represent." (Id. at

625.) This sort of conflict exists here. The claims of the class representatives are not typical of

those who worked in the past five years.

ii. Predominant Questions of Fact and Law

“As a general rule, if defendant’s liability can be determined by facts common to all

members of the class, a class will be certified even if the members must individually prove

their damages.” Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal. 4th 1004, 1022.

Conversely, “No evidence of common policies or means of proof was supplied, and the trial

court therefore erred in certifying a subclass.” (Id. at 1017.)

Here, there is proof of a common policy, in the form of the timecard statements, and

Tarlton’s testimony. The collective bargaining agreements, which Tarlton says applied

universally, would also be evidence of a common policy, if offered (they are not in

evidence). Payroll and wage statements were all done in house, and used the same

format, but correctly contained all required information, according to Tarlton. The

evidence from defendants tends to show legally compliant policies.

That is not the end of the inquiry, however, for certification purposes. A plaintiff can

demonstrate that such legally compliant policies are “for show” only, and that an

employer’s actual practice is different, via pattern and practice evidence.

“California courts consider pattern and practice evidence, statistical evidence,

sampling evidence, expert testimony, and other indicators of a defendant's centralized

practices in order to evaluate whether common behavior towards similarly situated plaintiffs

makes class certification appropriate.” Jaimez v. DAIOHS USA (2010) 181 Cal. App. 4th 1286,

15

1298. “By discarding out of hand appellants' pattern and practice evidence, the trial court

turned its back on methods of proof commonly allowed in the class action context. Over

the years, numerous courts have approved the use of statistics, sampling, policies,

administrative practices, anecdotal evidence, deposition testimony and the like to prove

class-wide behavior on the part of defendants.” Capitol People First v. DDS (2007) 155 Cal.

App. 4th 676, 695.

“California courts have shifted the burden of proof to employers when

inadequate records prevent employees from proving their claims for unpaid

overtime hours (Hernandez v. Mendoza (1988) 199 Cal. App. 3d 721, 726-728)

and unpaid meal and rest breaks (Cicairos v. Summit Logistics, Inc. (2005) 133

Cal. App. 45h 949, 961-963). Anderson's reasoning has also been applied to

permit class action plaintiffs to prove their damages for unpaid overtime by the

use of statistical sampling. (Bell v. Farmers Ins. Exchange (2004) 115 Cal. App. 4th

715, 746-751.)”

Amaral v. Cintas Corp. No. 2 (2008) 163 Cal. App. 4th 1157, 1189.

However, there is no such evidence here. The sole admissible evidence of non-

compliant policies comes from the three proposed class representatives Speak, Munoz, and

Martinez, who worked only part of the class period. While plaintiff’s counsel states they

interviewed 17 putative class members in depth, they decline to state specifics of those

interviews, even the names of those interviewed, on the basis of work product and the

attorney/client privilege. No declarations from any of those persons are provided, thus the

claims of what they said are not admissible to support a class.

There is no declaration from an expert stating if three is a sufficient sampling, or that

some other method was used to extrapolate the claimed violations to encompass all in the

class. Thus there is no evidence that the facts and legal theories pertaining to the three class

representatives predominate for all others in the class.

The other problem here is that there is no evidence for the past five years of time, yet

the parties wish to compromise any claims from that period for no compensation at all. If the

claims of those prior to November 2013 are good, it would appear there are defenses or

legal theories that differentiate class members’ claims for alleged post-November 2013

wrongs.

Plaintiffs obtained an order early in the case permitting notice to all class members,

and contact if allowed by the individuals, under Belaire-West Landscape, Inc. v. Superior

Court (2007) 149 Cal. App. 4th 554. Counsel admits they talked to many of those persons, but

no evidence is provided from them to show class-wide violations. Evidence Code section

412 states: "If a weaker and less satisfactory evidence is offered when it was within the

power of the party to produce stronger and more satisfactory evidence, the evidence

offered should be viewed with distrust." Counsel has had several years to provide admissible

evidence of common questions of law and fact, and has failed to do so for the class at issue.

16

d. Adequacy

"[T]he adequacy inquiry should focus on the abilities of the class representative's

counsel and the existence of conflicts between the representative and other class

members." Caro v. Procter & Gamble Co. (1993) 18 Cal. App. 4th 644, 669. Counsel have

made no contested motion to certify the class in the five years that the matter has been

pending. While settlement is favored, it is of concern that counsel has failed to take

measures necessary to ready this matter for trial in the event settlement is not concluded.

The last motion seeking approval of a settlement was almost two years ago. In the interim,

case law unfavorable to group treatment of the original proposed class has come down

from the nation’s highest court.

2. Settlement

a. Standards

Kullar v. Foot Locker Retail, Inc. (2008) 168 Cal. App. 4th 116, 129 holds: “[I]n the final

analysis it is the Court that bears the responsibility to ensure that the recovery represents a

reasonable compromise, given the magnitude and apparent merit of the claims being

released, discounted by the risks and expenses of attempting to establish and collect on

those claims by pursuing litigation. The court has a fiduciary responsibility as guardians of the

rights of the absentee class members when deciding whether to approve a settlement

agreement.”

“[T]o protect the interests of absent class members, the court must independently and

objectively analyze the evidence and circumstances before it in order to determine whether

the settlement is in the best interests of those whose claims will be extinguished . . . [therefore]

the factual record before the . . . court must be sufficiently developed.” (Id. at 130.)

In Clark v. American Residential Services, LLC (2009) 175 Cal. App. 4th 785, proposed

class counsel decreed that the overtime class’ claims had “absolutely no value,” and that

was accepted at face value by the trial court. The Court of Appeal reversed: “While the

court need not determine the ultimate legal merit of a claim, it is obliged to determine, at a

minimum, whether a legitimate controversy exists on a legal point, so that it has some basis for

assessing whether the parties' evaluation of the case is within the ‘ballpark’ of

reasonableness.” (Id. at 789.)

“While the court must stop short of the detailed and thorough investigation that it

would undertake if it were actually trying the case, it must eschew any rubber stamp

approval in favor of an independent evaluation.” (Id. at 799, internal citations omitted.) The

lack of evidence required denial (Id. at 801-802):

“Two weeks before the final fairness hearing, class counsel finally provided an

evaluation of plaintiffs' case, which described the overtime claim as having

‘absolutely no’ value. No data was included to support counsel's evaluation

and the only data anywhere in the record was a copy of ARS's overtime policy,

stating it paid overtime at one and a half times the employee's regular rate,

along with a couple of pay stubs and time sheets showing some overtime

payments to Clark and Gaines). Instead, counsel stated that ARS had a legally

17

compliant overtime policy and they actually paid overtime premium pay

pursuant to their compensation policy.”

Kullar rejected any “presumption” of fairness in class action settlements as a general

rule, and particularly with regard to the one before it (at 129, emphasis added):

“Class counsel asserted that information had been exchanged informally and

during the course of the mediation session, but their declarations provided no

specificity. The only specific was the repeated reference in the moving papers to

several employee manuals that had been produced stating company policy

simply as follows: Rest breaks and meal periods are scheduled based on business

levels, hours worked and applicable state laws. Whatever information may have

been exchanged during the mediation, there was nothing before the court to

establish the sufficiency of class counsel's investigation other than their

assurance that they had seen what they needed to see. The record fails to

establish in any meaningful way what investigation counsel conducted or what

information they reviewed on which they based their assessment of the strength

of the class members' claims, much less does the record contain information

sufficient for the court to intelligently evaluate the adequacy of the settlement.”

b. Lack of Evidence to Support Settlement

Plaintiffs do not estimate the potential damages for the class proposed here, which

has less than one/third of the members in the class proposed last time. There is no evidence

of the amount of damages potentially at issue, which is usually provided by an expert in these

kinds of matters, based on a review of payroll and timecard data by that expert. The expert

usually has a background in mathematics or some other field of science which makes him or

her qualified to render an opinion from source documents verified by the defendant. It can

also be done via sampling or other techniques discussed above. See, e.g., Bell v. Farmers

Insurance Company (2004) 115 Cal.App.4th 715.

Instead we have the opinion of a lawyer who shows no qualifications to testify as to

statistical analysis, who testifies only to the damages model used for mediation. There is no

calculation of the number of meal periods cut short, of rest breaks missed, of work weeks or

days for each person in the 50 person class, driving time to distant jobs, or pre- and post-work

attendance requirements. In paragraph 43, plaintiff’s counsel states that defendant told him

that the 49 persons in the class worked an average of 110 workdays. It does not appear that

the estimate was based on actual days worked by the class; no overall total of days worked

or weeks worked is provided.

It is admitted that the mediation damages model included nothing for general

overtime or further rest periods and meals for time spent driving to distant locations, such as

Stockton, Yuba City, Davis, Hollister, etc., or other time spent working that was not

compensated. The wage statements list the jobs worked on, which gives concrete evidence

of driving distance. That, in turn, provides concrete evidence by which the duty to provide

additional rest breaks or meals could be determined. For example, a drive to and from

Hollister would add four overtime hours to the already nine-hour workday, and another rest

period and meal break would be due, for another set of premiums on meals and rest breaks

missed. Yet all these claims were discarded, and no estimate of their value is given.

18

The damages model was admittedly created only for settlement, not to determine

likely potential damages, and counsel admitted they dropped the above claims to

“compromise.” (Delgado Decl., para. 65-66.) Average wage rates, not actual wage rates,

were used, although the class is relatively small. Plaintiff’s counsel state they decided to use

only one missed rest break per day (Delgado, para. 56), although all three class

representatives state they never got a rest break of any kind.

A total of $500 per worker, whether they worked a week or 9 years, was “added to the

model” for reimbursement for business expenses – travel, mileage, tools, etc.2 The actual

settlement will be paid out based on the number of hours defendant says class members

worked between November 8, 2008 and November 7, 2013, although the central theory of

the case is that defendant failed to record time properly.

All claims from November 8, 2013 to the final judgment are released for no payment at

all, and people who continued to work past that date get nothing for that time. No value is

placed on those claims. “Waiting time” penalties are a month’s wages, but they are not

included from the “damages model,” and no estimate of the value of that claim is provided.

(Delgado Decl., paras. 61-64.) There is no value given for claims for liquidated damages

under Labor Code section 203 or for penalties for alleged violation of wage statement

statutes.

The basis for settlement, other than speed of payment and a vague reference to

financial issues for defendants (not supported by any evidence), is not specified. As there is

insufficient information as to the true value of the claims, and very little on why they should be

settled for the proposed amounts, the record lacks sufficient basis on which the Court can

determine if the proposed settlement is fair or reasonable.

c. Overbroad Release

“The Court may approve a settlement which releases claims not specifically alleged in

the complaint as long as they are based on the same factual predicate as those claims

litigated and contemplated by the settlement.” Strube v. Am. Equity Inv. Life Ins. Co. (M.D.

Fla. 2005) 226 F.R.D. 688, 700. “A federal court may release not only those claims alleged in

the complaint, but also a claim based on the identical factual predicate as that underlying

the claims in the settled class action even though the claim was not presented . . .” Class

Plaintiffs v. Seattle (9th Cir. 1992) 955 F.2d 1268, 1287.

“[T]he law is well established in this Circuit and others that class action releases may

include claims not presented and even those which could not have been presented as long

as the released conduct arises out of the ‘identical factual predicate’ as the settled

conduct.” In re American Exp. Financial Advisors Securities Litigation (2nd Cir. 2011) 672 F. 3d

113. “[I]n order to achieve a comprehensive settlement that would prevent relitigation of

settled questions at the core of a class action, a court may permit the release of a claim

based on the identical factual predicate as that underlying the claims in the settled class

action even though the claim was not presented and might not have been presentable in

1 In paragraphs 57 and 58, Mr. Delgado states they figured $500 per employee for unreimbursed

expenses

19

the class action.” See also Matsushita Elec. Indus. Co., Ltd. v. Epstein (1996) 516 U.S. 367, 376-

377.

The release here includes years for which no one receives compensation. It also

extends beyond claims arising from the identical factual predicate to add claims arising from

or related to “allegations” made in the complaint, which could include all legal claims

mentioned, whether based on the same facts or not. This problem was noted to counsel in

2016.

d. Clear Sailing and Reverter Clauses

The settlement provides a theoretical figure of $800,000. Out of that counsel wants

$280,000 in fees and costs, and another $22,000 for class representative awards.

Administration is “estimated” to be $10,000. Of the remaining $488,000, only $210,000 is

guaranteed to go to the class members.

The amounts payable to class members will be whittled down by a claim process,

wherein the class member has to admit that defendant’s records of his or her hours are

correct. The settlement provides that as much as $270,000 will never be paid to any class

member, and that same may not be distributed pursuant to Code of Civil Procedure section

384. The problem with such a settlement was pointed out to counsel in 2016; no adequate

justification is given.

“Claims made settlements with reversions to a defendant are strongly disfavored.”

Millan v. Cascade Water Services, Inc. (E.D. Cal. 2015) 310 F.R.D. 593, 612. There, Judge Ishii

looked to Allen v. Bedolla (9th Cir. 2015) 787 F. 3d 1218, 1224, and In re Bluetooth (9th Cir. 2011)

654 F. 3d 935, 947 as supportive of denial of approval to such a settlement. Accord also

Chin, Wiseman et al., Employment Litigation (TRG 2016), section 19:807.2 – 19:807.3.

International Precious Metals Corp. v. Waters (2000) 530 U.S. 1223 was a matter where

the Court denied certiorari but Justice O’Connor was sufficiently disturbed to issue a written

opinion decrying settlements where counsel’s fees were divorced from the actual amount

recovered for the class: “Arrangements such as that at issue here decouple class counsel's

financial incentives from those of the class, increasing the risk that the actual distribution will

be misallocated between attorney's fees and the plaintiffs' recovery. They potentially

undermine the underlying purposes of class actions by providing defendants with a powerful

means to enticing class counsel to settle lawsuits in a manner detrimental to the class.”

Her statements were quoted in Vought v. Bank of America (C.D. Ill. 2012) 901 F. Supp.

2d 1071, which took a decidedly negative view of this situation (at p. 1099):

“The terms of the settlement, despite the superficially generous $500,000 cap,

ended up being a zero-sum framework where the putative attorneys' fees

award cannibalized the funds that would otherwise have gone to the class.

Presumably, BANA does not care who it pays so long as it maintains its public

image and precludes subsequent actions. Other courts have dealt with the

problem of overcompensating the claiming class members by capping each

individual member's recovery and directing the residual be paid to an

alternate cy pres recipient.”

20

The Court also cited Sylvester v. CIGNA Corp. (D. Mass 2005) 369 F. Supp. 2d 34, where

only 10.8% of the class was willing to put in claims. The judge ultimately found that the

settlement was not fair at the final fairness hearing. The coupling of a claims-made

settlement with a significant reversion to the defendant, along with a “clear-sailing

agreement” as to attorney fees, was noted to be particularly odious.3

The Court quoted form William D. Henderson, Clear Sailing Agreements: A Special

Form of Collusion in Class Action Settlements, 77 Tul. L. Rev. 813, 835 (2003): “It is important to

recognize that it would be relatively rare for a plaintiff's attorney to agree to a reverter-fund

settlement without also having the security of a clear sailing agreement to reduce the

uncertainty in his fee award.” Further (Id. at 46):

“[T]he presence of both a reverter clause and a clear sailing clause should be

viewed with even greater suspicion and not be presumed fair to the class.

Because of the problems inherent in a class settlement agreement that

includes both a reverter clause and a clear sailing clause, the Court believes

that the presence of these two provisions in any settlement agreement should

present a presumption of unfairness that must be overcome by the proponents

of the settlement.”

Accord International Precious Metals Corp. v. Waters (2000) 530 U.S. 1223 (J.

O’Connor’s statement on the denial of certiorari).

The need for a claim form is not supported. Defendants should already know who

signed a release of defendant’s own drafting while working for defendant. The contention

that a claim form is needed to determine whether a class member is in fact the employee is

not reasonable. If defendant’s information is enough to enable them to deliver notice about

the lawsuit and sufficient to bind employees to the settlement, such information is sufficient to

obtain their actual settlement payment as well. The fact the claim form requires an admission

that defendants’ records are correct is also improper. The point of a settlement is that neither

side admits defeat.

Pursuant to Code of Civil Procedure section 1019.5, subdivision (a), no further written order is

necessary. The minute order adopting this tentative ruling will serve as the order of the court

and service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: RTM on 11/26/18


2 A “clear sailing agreement” is where the defendant agrees not to oppose class counsel’s

request for fees and costs up to a certain amount.

21



Re: JC Diversified Enterprises, Inc. v. New Hampshire Insurance Co.



Motion: By New Hampshire Insurance Company for Determination of Good

Faith Settlement.

Tentative Ruling:

To grant the motion.

Explanation:

Code of Civil Procedure Section 877.6 provides the good faith standard, but

Tech-Bilt, Inc. v. Woodard-Clyde & Assocs. (1985) 38 Cal.3d 488, contains the list of

factors for use in determining whether the settlement was made in good faith. These

include the following:

(1) a rough approximation of plaintiffs' total recovery and the settlor's

proportionate liability;

(2) the amount paid in settlement;

(3) the allocation of settlement proceeds among plaintiffs

(4) a recognition that a settlor should pay less in settlement than he would if

he were found liable after a trial;

(5) the financial conditions and insurance policy limits of settling defendants;

(6) no evidence of the existence of collusion, fraud, or tortious conduct

aimed to injure the interests of nonsettling defendants. (Id. at 499.)

Also, “practical considerations obviously require that the evaluation be made on

the basis of information available at the time of settlement. A defendant's settlement

figure must not be grossly disproportionate to what a reasonable person, at the time of

the settlement, would estimate the settling defendant's liability to be.” (Id. (internal

citations and quotations omitted); City of Grand Terrace v. Superior Court (1987) 192

Cal.App.3d 1251, 1262 (“ultimate determination of good faith” hinges on whether

settlement grossly disproportionate to contemporaneous reasonable assessment

liability).)

The Court must consider not only the settlor’s potential liability to plaintiff, but also

its proportionate share of culpability as among all parties alleged to be liable for the

22

same injury. (TSI Seismic Tenant Space, Inc. v. Superior Court (2007) 149 Cal.App.4th 159,

166.)

Substantial evidence showing the nature and extent of the settling defendant’s

liability is required. (Mattco Forge, Inc. v. Arthur Young & Co. (1995) 38 Cal.App.4th

1337, 1348.) “[I]f there is no substantial evidence to support a critical assumption as to

the nature and extent of a settling defendant’s liability, then a determination of good

faith based upon such assumption is an abuse of discretion.” (Toyota Motor Sales U.S.A.,

Inc. v. Superior Court (1990) 220 Cal.App.3d 864, 871.)

Here, moving party has presented substantial evidence of the Tech-Bilt factors.

There has also been no opposition filed to the motion. Therefore, the motion will be

granted.

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

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

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

service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: JYH on 11/26/18


23

(30)

Tentative Ruling

Re: Oliverio Vasquez v. Northland Insurance Company



Motion: Defendant Northland Insurance Company’s motion to set aside

default entered September 12, 2018

Tentative Ruling:

To grant.

Explanation:

Motion to aside default entered on September 12, 2018 is granted pursuant to

Code of Civil Procedure section 473.5.

Pursuant to California Rules of Court, rule 391(a) and Code of Civil Procedure

section 1019.5, subd. (a), no further written order is necessary. The minute order



Tentative Ruling

Issued By: JYH on 11/26/18


24


25

Tentative Rulings for Department 503 (29)

Tentative Ruling

Re: Cavey v. Tualla, Jr., et al.

Superior Court Case No. 18CECG01104


Motion: Demurrer

Tentative Ruling:

To take the matter off calendar. (Code Civ. Proc. §430.41(a).) The parties are

ordered to meet and confer as set forth in the above statute and, if needed, schedule

a new hearing date for the demurrer.

Explanation:

Before filing a demurrer, the demurring party “shall meet and confer in person or

by telephone with the party who filed the pleading that is subject to demurrer[.]”

(Code Civ. Proc. §430.41(a) (emphasis added); see Judicial Council form CIV-140.)

Where the parties are unable to sufficiently meet and confer five or more days prior to

the date the responsive pleading is due, a 30-day extension is automatically granted

upon the filing by the demurring party of a declaration stating that a good faith effort

was made to meet and confer, but that the parties were nonetheless unable to do so.

(Id. at (a)(2); see Judicial Council form CIV-141.)

In the case at bench, each attorney mailed the other a letter regarding the

moving parties’ proposed demurrer, after which Defendants filed the instant motion.

Counsels’ efforts at meeting and conferring fall short of the statutory requirement to

meet and confer in person or by telephone. Although the moving parties state that the

only mutually acceptable date to meet and confer was two days before the demurrer

was due, a declaration pursuant to Code of Civil Procedure section 430.41, subdivision

(a)(2), would have remedied this concern.

Accordingly, the hearing is taken off calendar. The parties are ordered to meet

and confer pursuant to statute and, if necessary, calendar a new hearing date for a

demurrer.

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

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



Tentative Ruling

Issued By: KAG on 11/16/18


26


Re: Lewis v. FCA UA LLC

Superior Court Case No. 16CECG01922


Motion: Defendants’ Motion to Tax Costs of Plaintiff

Tentative Ruling:

To deny.

Explanation:

A prevailing buyer in an action under the Song-Beverly Act “shall be allowed by

the court to recover as part of the judgment a sum equal to the aggregate amount of

costs and expenses, including attorney's fees based on actual time expended,

determined by the court to have been reasonably incurred by the buyer in connection

with the commencement and prosecution of such action.” (Civ. Code § 1794, subd.

(d).)

Plaintiff seeks a total of $3,704.88 in costs. Defendants move to tax three

categories of costs that are either not authorized by Code of Civil Procedure section

1033.5, subdivision (a), or are disallowed by subdivision (b). Those costs are for attorney

messenger services, overnight postage, and travel costs for court hearings (not

depositions).

“When the same subject matter is covered by inconsistent provisions, one of

which is special and the other general, the special one . . . is an exception to the

general statute and controls unless an intent to the contrary clearly appears.” (Warne

v. Harkness (1963) 60 Cal.2d 579, 588.) Here, Civil Code section 1794, subdivision (d) is

the “special” statute that governs recoverability of costs and expenses under the Song-

Beverly Act and controls over the “general” statute of Code of Civil Procedure section

1033.5.

The words “costs and expenses” in Civil Code section 1794, subdivision (d), cover

items not included in the detailed statutory definition of costs. (Jensen v. BMW of North

America, Inc. (1995) 35 Cal.App.4th 112, 137.) In the context of a contractual

agreement to pay costs and attorney fees, “costs” includes all expenditures not part of

overhead and which are ordinarily billed to paying clients regardless of whether they

are recoverable under section 1033.5. (Bussey v. Affleck (1990) 225 Cal.App.3d 1162,

1166.) A similar interpretation of “costs and expenses” seems in keeping with the

legislature’s intent to “provide[] injured consumers strong encouragement to seek legal

redress in a situation in which a lawsuit might not otherwise have been economically

feasible.” (Murillo v. Fleetwood Enterprises, Inc. (1998) 17 Cal.4th 985, 994.)

27

The court finds that the attorney messenger services, overnight delivery costs,

and travel expenses at issue were reasonably incurred, and are recoverable under Civil

Code section 1794, subdivision (d). Accordingly, the motion to tax is denied.

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: KAG on 11/21/18


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