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Tentative Rulings for October 17, 2019

Departments 403, 501, 502, 503

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

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

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

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

18CECG04550 Rogers v. Lidestri Foods, Inc. et al. (Dept. 501) @ 3:00 p.m.

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

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

18CECG00586 Dominguez v. Holaday, all three motions, are continued to

Thursday, November 7, 2019, at 3:00 p.m. in Department 501.

________________________________________________________________

(Tentative Rulings begin at the next page)

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Tentative Rulings for Department 403

(20) Tentative Ruling

Re: Saad v. Kazanjian

Superior Court Case No. 17CECG03643

Hearing Date: If a party wishing to contest this tentative ruling notifies the

Court and opposing counsel between the hours of 3-4 p.m.

on October 16, 2019, the hearing will be held on 10/24/19 @

3:30 p.m. in Dept. 403.

Motion: Plaintiff/Cross-Defendant’s Motion for Summary Judgment or

Adjudication

Tentative Ruling:

To deny. (Code Civ. Proc. § 437c.)

Explanation:

Plaintiff and cross-defendant Zakaria Saad moves for summary judgment, or

alternatively summary adjudication, of both his complaint and the cross-complaint filed

by Derek Kazanjian.

This is a repetitive motions, seeking summary judgment of the same pleadings

and causes of action, and raising the same issues, as that denied on May 17, 2019.

A party may not move for summary judgment “based on issues asserted in a

prior motion for summary adjudication” that has been denied by the court unless

newly-discovered facts or circumstances supporting these issues, or a change of law,

are established to the satisfaction of the court. (Code Civ. Proc. § 437c(f)(2); see

Bagley v. TRW, Inc. (1999) 73 Cal.App.4th 1092, 1097 [new facts required even though

earlier motion based on same facts denied “without prejudice”]; Pender v. Radin (1994)

23 Cal.App.4th 1807, 1811-1812 [second motion proper where newly-discovered facts

shown].)

The Rutter Guide comments, “The apparent intent is to prevent repetitive

motions aimed at the same issues. The effect is that a motion for summary judgment,

based on issues as to which the court previously denied summary adjudication, is

treated similarly to a motion for reconsideration of the order denying summary

adjudication.” (Weil & Brown, Cal. Practice Guide: Civ. Proc. Before Trial (TRG 2019) ¶

10:373.2.)

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Here, Zakaria makes no showing that this motion, which is based on the same

issues raised in the prior motion, is based on newly-discovered facts or circumstances.

Zakaria simply filed a new motion. Since this is a repetitive motion, Zakaria has the

burden of showing that it is based on newly-discovered facts or circumstances, but has

made no attempt to satisfy this burden.

The court additionally notes that the prior motion was denied because Zakaria

failed to establish his damages. A plaintiff moving for summary judgment must establish

the fact and amount of damages. (Pajaro Volley Water Management Agency v.

McGrath (2005) 128 Col.App.4th 1093, 1106.) Zakaria submits additional information

and evidence relative to damages, but still fails to satisfy his burden as the moving

party. Aside from the speculative nature of the $3,000 per month in net profits serving

as the foundation for the damages calculation, Zakaria has not shown that he is

entitled to the damages for lost profits and goodwill. Zakaria states in his declaration

that Abdo owned the business, and that “Abdo transferred the business to me.”

(Zakaria Dec. ¶¶ 10, 11.) But he does not indicate how this transfer was accomplished,

or what exactly was transferred. Zakaria testified in his deposition that in 2015 he was

only being paid for his time working in the store two days per week. Abdo was owed

$50,000 to $70,000 (apparently by Zakaria). In 2015 Zacharia was only making what he

earned working 16 hours per week at the store, and Zakaria was not expecting to

derive any income from the store until Abdo had been paid in full. Aside from

ambiguity with regards to Zakaria’s ownership interest in the store, his own testimony

indicates that he had no right to the income or profits in the store until Abdo was

repaid. (Dhillon Dec. Exh. B, Zakaria Depo. 32:7-10.) Abdo testified that while Zakaria

was the owner of the store, Abdo was operating the store, Abdo would continue

receiving income from the store, and there was no agreement to have Zakaria start

collecting income at some point in the future. (Dhillon Dec. Exh. C, Abdo Depo. 80:21-

82:23.) Accordingly, Zakaria’s right to damages, and the extent of those damages, are

highly uncertain.

Pursuant to Cal. Rules of Court, Rule 3.1312(a) and Code Civ. Proc. § 1019.5(a),

no further written order is necessary. The minute order adopting this tentative ruling will

serve as the order of the court and service by the clerk will constitute notice of the

order.

Tentative Ruling

Issued By: RTM on 10/15/19 .

(Judge’s initials) (Date)

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(30)

Tentative Ruling

Re: Silvano Garcia Hernandez v. Purl’s Metal & Air Conditioning

Superior Court No. 18CECG03399

Hearing Date: If a party wishing to contest this tentative ruling notifies the Court

and opposing counsel between the hours of 3-4 p.m. on October

16, 2019 the hearing will be held on 10/24/19 @ 3:30 p.m. in Dept.

403.

Motion: Defendants California Highway Patrol and Officer Santos’ Demurrer

to Cause of Action One within the Second Amended Complaint

Tentative Ruling:

To overrule defendant’s demurrer, in its entirety.

Explanation:

In the case at bar, plaintiffs allege two causes of action: (1) violation of

Government Code sections 820, subdivision (a) & 815.2, et. seq.; and (2) negligence.

Only the first cause of action is directed at moving parties.

Defendants demur to cause of action one, pursuant to Code of Civil Procedure

section 430.10, subdivisions (e) & (f). Defendants argue that: (1) the facts are insufficient

to allege a cause of action for negligence because there was no special relationship

created between Officer Santos and the plaintiffs; and (2) the California Highway Patrol

cannot be held liable for negligence.

1. Special relationship created between Officer Santos and the plaintiffs

There is no general duty owed by members of the California Highway Patrol to

members of the general motoring public. (Williams v. State of California (1983) 34 Cal.3d

18, 24; Posey v. State of California (1986) 180 Cal.App.3d 836, 842.) Thus, law

enforcement officers, like other members of the public, generally do not have a legal

duty to come to the aid of a person. (Williams v. State of California, supra, 34 Cal.3d at

p. 24.)

However, a duty of care does arise when an officer engages in “an affirmative

act which places the person in peril or increases the risk of harm.” (Williams v. State of

California, supra, 34 Cal.3d at p. 24.) In other words, if an officer responds to a request

for assistance, “and their affirmative acts negligently cause harm to a person in need of

assistance, their misfeasance may create a special relationship and result in tort

liability.” (Camp v. State of California (2010) 184 Cal.App.4th 967, 970.)

In the case at bar, plaintiffs adequately allege negligence via a special

relationship. Plaintiffs allege that Officer Santos engaged in an affirmative act which

placed them in peril or increased the risk of harm, when he chose to create a zone of

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safety but then abandoned it without directing the parties to safety or throwing down

flares.

Mann v. State of California (1977) 70 Cal.App.3d 773 is instructive. In Mann,

plaintiff brought a personal injury action against the State arising out of a traffic

accident in which plaintiff and others were struck by a car on a freeway while standing

by two stalled cars. Viewing the record most favorably to plaintiff, the Court of Appeal

held that liability could attach to the State. In making its determination, the Court

focused on the following facts: the responding officer failed to instruct the occupants of

the stalled cars or other interested motorists to get back into their vehicles and to avoid

standing between the stalled cars; the responding officer left without advising any of

those present that he was leaving; the responding officer left the stranded cars

unprotected by the rearward flashing amber light of his patrol car; the responding

officer failed to throw down any protective flares; and the responding officer violated

several guidelines of the California Highway Patrol designed to enhance the safety of

motorists on freeways. The Court of Appeal held that – under the circumstances

described above – a special relationship could have been found to exist between

plaintiffs and the responding officer.

Mann is very similar to the case at bar. Like in Mann, this case arises out of a

traffic accident in which plaintiff Silvano Garcia Hernandez was struck by a car on the

freeway, while standing in between two cars involved in a traffic collision. Officer

Santos responded to the scene of the accident in his fully equipped patrol vehicle. He

pulled his vehicle beside the parties and turned on his flashing lights – thereby, making

the situation safer by clearing “the field” around the parties on the 99 Freeway. But

then, Officer Santos allegedly left plaintiffs in a dangerous situation. He continued

driving and parked in front of the parties and their vehicles, without throwing down any

protective flares or instructing the occupants of the cars (such as Mr. Hernandez) to get

back into their vehicles or to avoid standing between the parked cars. In so doing,

Officer Santos also violated several guidelines of the California Highway Patrol.

Defendants attempt to distinguish Mann, but their argument is unconvincing.

First, many of the facts to which defendants cite are actually analogous to the case at

bar. For instance, defendants cite to the fact that in Mann, Officer Lane did not throw

down flares. But here, like in Mann, Officer Santos also neglected to throw down flares.

Other facts to which defendants cite are not determinative. For example, defendants

cite to the fact that in Mann, the car which caused the secondary collision was driven

by a partially blind driver. This fact is unimportant. What matters when comparting the

two cases is that in Mann, the plaintiffs were hit by another driver because of the

danger that the responding officer created.

In support of their demurrer, defendants also cite to various cases with similar fact

patterns, wherein Courts hold that liability does not attach. However, in ruling on a

demurrer, the court must construe the complaint liberally “with a view to substantial

justice between the parties.” (Code Civ. Proc., § 452; Stevens v. Sup.Ct. (1999) 75

Cal.App.4th 594, 601; Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228,

1238.) So, where complaints show some right to relief, they are sufficient against

demurrer. (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.) Thus, in light of the Mann

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holding, the Second Amended Complaint is sufficiently states facts upon which a

special relationship could be found to exist between plaintiffs and the Officer Santos.

2. Vicarious liability

The argument that the State cannot be held vicariously liable is dependent upon

a finding that, as a matter of law, no special relationship existed between plaintiffs and

Officer Santos. Thus, it fails.

3. Code of Civil Procedure section 430.10, subdivision (f)

Defendants also demur based upon uncertainty. However, the accompanying

points and authorities fail to specify in what particulars the Second Amended

Complaint is uncertain. Where a demurrer is made upon this ground, it must distinctly

specify exactly how or why the pleading is uncertain, and where such uncertainty

appears (by reference to page and line numbers of the complaint). (Fenton v.

Groveland Comm. Services Dist. (1982) 135 Cal.App.3d 797, 809 [disapproved on other

grounds in Katzberg v. Regents of Univ. of Calif. (2002) 29 Cal.4th 300, 328].)

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: RTM on 10/16/19 .

(Judge’s initials) (Date)

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Tentative Rulings for Department 501

(03)

Tentative Ruling

Re: Orozco v. Hodanu

Case No. 18CECG00965

Hearing Date: If timely requested on October 16, 2019 between 3-4 p.m., the

hearing will be held on THURSDAY October 17th @ 3:00 p.m. (Dept.

501)

Motion: Defendants Abolnik, Galamgam, and Nwaka’s Motion for

Summary Judgment

Tentative Ruling:

To grant defendants Abolnik, Galamgam, and Nwaka’s motion for summary

judgment. (Code Civ. Proc. § 437c.) To deny plaintiff’s cross-motion for summary

judgment against defendants. (Ibid.)

Explanation:

Plaintiff has sued defendants Abolnik, Galamgam, and Nwaka for elder neglect

based on their alleged failure to intervene to protect him from defendant Hodanu, who

allegedly assaulted and battered plaintiff. He alleges that he is over the age of 65 and

an inpatient at the Department of State Hospitals – Coalinga, and thus he is an elder or

dependent adult. (Complaint, ¶ 1.) Hodanu allegedly attacked and battered plaintiff

on November 12, 2017. (Id. at ¶ 4.) Plaintiff also alleges that defendants, who were

agents or employees of the Hospital, were entrusted with the custodial care of plaintiff

and failed to protect him from the physical and emotional harm caused by Hodanu.

(Id. at ¶ 8.)

Welfare and Institutions Code section 15657 allows a plaintiff to obtain enhanced

remedies, including attorney’s fees, costs, and punitive damages, when he or she can

demonstrate by clear and convincing evidence that the defendant is guilty of abuse or

neglect and acted with “recklessness, oppression, fraud or malice in commission of this

abuse.”

“‘Neglect’ means either of the following: (1) The negligent failure of any person

having the care or custody of an elder or a dependent adult to exercise that degree of

care that a reasonable person in a like position would exercise.” (Welf. & Inst. Code, §

15610.57, subd. (a)(1).) Also, “Neglect includes, but is not limited to, all of the following:

… (3) Failure to protect from health and safety hazards.” (Welf. & Inst. Code, §

15610.57, subd. (b)(3).)

Here, defendants have met their burden of producing evidence showing that

they did not breach any duty they owed to plaintiff, and nothing they did or failed to

do caused any of plaintiff’s injuries. In addition, the undisputed facts show that

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defendants did not do anything that would constitute the type of reckless, malicious,

oppressive, or fraudulent conduct that would warrant imposing enhanced relief under

the Elder and Dependent Adult Abuse Civil Protection Act. (Welf. & Inst. Code, §

15657.)

The undisputed facts show that defendants were either not present at the scene

when the altercation between plaintiff and Hodanu occurred, or they arrived too late

to intervene and protect plaintiff from being attacked and injured. Abolnik and Nwaka

both arrived on the scene after plaintiff and Hodanu had already stopped fighting and

had separated. (Defendants’ Undisputed Material Facts 31-48.)

Abolnik was with another patient in a “one-on-one” observation in the Sports

Room at the time of the incident. (UMF No. 31.) The patient she was with was curious

about the incident, and walked out of the Sports Room and went to the nurses’ station

to see what was happening. (UMF No. 32-34.) Abolnik saw a large number of patients

were gathered around the nurses’ station. (UMF No. 33.) She heard shouting and

yelling, including staff yelling “back up please”, and patients yelling random curse

words. (UMF No. 34.) The one-on-one patient stopped in front of the nurses’ station,

and Abolnik stopped behind him. (UMF No. 35.) There were about 20 patients blocking

Abolnik’s view, and she had to move her head to try to see across the nurses’ station.

(UMF No. 36.) She saw Hodanu, Montes, and plaintiff standing in the area outside the

nurses’ station in front of Hallway A. They were all separated, and Hodanu was about

five feet from plaintiff. (UMF No. 37.) Abolnik heard another alarm sound a few

seconds after she arrived. Department police officers arrived shortly afterwards. (UMF

No. 38.) Abolnik and the one-on-one patient went back to the Sports Room once the

DPS officers arrived. (UMF No. 39.)

Most of the witnesses did not recall whether defendants were even present at

the scene at the time of the incident. (UMF No.’s 49-53.) Only one witness, Mr. Elliott,

claims that Abolnik saw Hodanu beating plaintiff, but he admitted that Abolnik was on

the other side of the nurses’ station from the scene of the incident. (UMF No. 54.) Thus,

she could not have intervened in time to prevent plaintiff from being injured. Abolnik

likewise testified that she was standing on the opposite side of the nurses’ station from

the incident with about 20 patients blocking her from reaching plaintiff’s location, and

thus she was not in a position to intervene and protect plaintiff. (UMF No. 35.) As a

result, Abolnik has met her burden of producing evidence showing that she did not fail

to intervene and protect plaintiff, and therefore she was not guilty of elder neglect with

regard to the incident.

Plaintiff contends in opposition that Abolnik’s statements to the police during the

investigation of the incident are inconsistent with her declaration, and thus the court

should disregard them as false and perjured testimony. However, the police report

submitted by plaintiff is hearsay, and plaintiff has not laid a foundation for it or

established its authenticity. Nor has he shown that it is subject to a hearsay exception.

Defendants have objected to the admission of the report into evidence, and the court

intends to sustain the objection. Therefore, the report fails to raise a triable issue of

material fact with regard to whether Abolnik failed to protect plaintiff from Hodanu.

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In any event, even if the court were to consider the report, the statements of

Abolnik in the report appear to be entirely consistent with her declaration. (See Exhibit

A to Plaintiff’s Opposition.) Thus, the report fails to demonstrate that Abolnik’s

statements in her declaration in support of the summary judgment motion are false,

and the court intends to overrule plaintiff’s objection to her declaration.1

Plaintiff also contends that the other witnesses, who are patients at the Hospital,

did not testify truthfully to the facts of the incident because they are afraid of retaliation

from defendants or their agents or associates. Plaintiff objects to all of the deposition

testimony in support of defendants’ motion, contending that it is false and coerced

testimony and should not be admitted. However, plaintiff has not cited any basis for his

objection in the Evidence Code, and he points to no other evidence that would tend

to demonstrate that the witnesses’ testimony was false or coerced by anyone. He

appears to be merely speculating that their statements must be false because of

various alleged prior incidents of retaliation against unnamed patients by unspecified

staff members at the Hospital. Yet he fails to show that the particular witnesses who

gave deposition testimony in the present case have been subjected to any coercion

regarding the incident in question here, or that their statements are not true and

accurate. Therefore, the court intends to overrule the plaintiff’s objections to their

testimony.

Plaintiff has not pointed to any other evidence that would tend to raise a triable

issue of material fact with regard to whether Abolnik neglected him or acted with

recklessness, malice, fraud, or oppression when she responded to the incident. Plaintiff

cites to his own verified complaint in an effort to raise a triable issue of fact, but a party

cannot rely on his own pleadings, whether or not they are verified, to support his

opposition to a summary judgment motion. (College Hospital Inc. v. Superior Court

(Cromwell) (1994) 8 Cal.4th 704, 720, fn. 7.) “The moving party cannot depend upon

allegations in his own pleadings to cure deficient affidavits, nor can his adversary rely

upon his own pleadings in lieu or in support of affidavits in opposition to a motion;

however, a party can rely on his adversary's pleadings to establish facts not contained

in his own affidavits.” (Parker v. Twentieth Century-Fox Film Corp. (1970) 3 Cal.3d 176,

181, internal citations omitted.) Thus, plaintiff’s citations to his own verified complaint

are improper and fail to raise a triable issue of material fact. Defendants have

objected to the plaintiff’s citations to his own complaint, and the court intends to

sustain the objections.

The undisputed facts show that Abolnik arrived on the scene after the altercation

had already begun, and that she was too far away to intervene and protect plaintiff.

The altercation ended shortly after she arrived, so there is no evidence that Abolnik was

guilty of neglect or abuse. As a result, the court intends to grant summary judgment in

favor of Abolnik.

1 Plaintiff’s objections are also defective procedurally, since they do not cite any legal basis for

the objections based on the Evidence Code, i.e. hearsay, lack of foundation, relevance, etc.

He also fails to comply with Rule of Court 3.1354 regarding the format of objections to evidence

in support of summary judgment motions, and he has not submitted a proposed order regarding

the objections. Therefore, the court intends to overrule all of plaintiff’s objections.

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Likewise, the evidence submitted by Nwaka also shows that she did not fail to

intervene in the fight and protect plaintiff from harm. Nwaka was in the Medication

Room passing out medication when the alarm sounded. (UMF No. 41.) She heard

someone yelling in the hallway, but could not make out the words. (Ibid.) She

responded to the alarm by walking out of the Medication Room and through the

breezeway between the Seclusion Room and the nurses’ station, and then exited the

door leading to hallway A. (UMF No. 43.) Upon exiting the door, she saw a crowd of

patients in the hallway. (UMF No. 44.) To her left, she saw Hodanu walking in the

direction of the entrance to the nurses’ station. (UMF No. 45.) She did not hear him say

anything or do anything other than walk. (Ibid.) To her right, she saw plaintiff, Montes,

and Hernandez standing a few feet from her location. (UMF No. 46.) Additional staff

and DPS officers then arrived and took over the situation. (UMF No. 47.) She did not see

any contact between plaintiff and Hodanu, and she has no personal knowledge about

what happened between them. (UMF No. 48.)

Thus, Nwaka has met her burden of producing evidence that shows that she was

not in a position to intervene to protect plaintiff from Hodanu, as she was not even

present at the scene until after the altercation had already ended and Hodanu was

leaving the area. None of the other patients testified that they saw Nwaka at the

scene during the incident, or that she failed to intervene. Nor has plaintiff presented

any evidence that she stood by and allowed Hodanu to beat him. He has claimed

that all of the defendants gave inconsistent statements to the police about their

involvement in the incident, but even if the court were to consider the police reports he

has submitted, plaintiff has not submitted a report concerning any statements about

the incident by Nwaka. Thus, there is no evidence that would tend to raise a triable

issue of material fact as to whether Nwaka was guilty of neglect in failing to intervene in

the altercation, and the court intends to grant summary judgment in her favor.

Next, the undisputed facts also show that Galamgam did not fail to intervene

and protect plaintiff from Hodanu’s alleged attack. Galamgam was outside the

shower room when he heard yelling down the hallway. (Defendants’ UMF No. 23.) He

immediately responded to the area where the yelling was coming from. (Ibid.) As

Galamgam approached the nurses’ station, he saw through the windows of the station

that plaintiff and Hodanu were grappling or wrestling with their arms locked together.

(UMF No. 25.) Another staff member, Hernandez, was between them. (Ibid.)

As Galamgam rounded the nurses’ station with the intention of intervening and

separating plaintiff and Hodanu, he heard Hernandez yell “Stop!” very loudly. He

assumed she was speaking to him. (UMF No. 26.) He then stopped and did not

intervene. (Ibid.) He noticed that plaintiff and Hodanu stopped grappling and

released their holds on each other. (UMF No. 27.) After they separated, plaintiff and

Hodanu did not have any further physical contact with each other, although they

exchanged a few words. (UMF No. 28.) Galamgam then noticed that a large crowd of

patients had gathered, and there were no Department Police officers or staff in the

area. He activated his personal alarm, and additional staff and police officers then

arrived. (UMF No. 29.) Galamgam did not see Hodanu or plaintiff hit or strike each

other, or throw any punches. (UMF No. 30.)

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As a result, the evidence submitted by Galamgam shows that he did not fail to

intervene in the altercation or fail to protect plaintiff from Hodanu. In fact, the

evidence shows that Galamgam responded from a different location as quickly as

possible, but that he was not able to intervene before the fight ended. Thus,

Galamgam has met his burden of showing that he is entitled to summary judgment on

the elder neglect claim against him.

In his opposition, plaintiff has not pointed to any evidence that would tend to

raise a triable issue with regard to whether Galamgam stood by and allowed him to be

beaten. Again, plaintiff’s reliance on his own complaint is improper, and his attempt to

object to the statements of the other witnesses is unsupported by legal authority or

evidence. Also, to the extent that plaintiff relies on the police reports from the incident

to show that Galamgam made inconsistent statements to the police, the report is

inadmissible hearsay. Even if the court were to consider the report, Galamgam’s

statements in the report are consistent with his version of events in his declaration in

support of the motion. (Exhibit A to Opposition.) Therefore, plaintiff has not raised a

triable issue of material fact with regard to Galamgam’s motion, and Galamgam is also

entitled to summary judgment.

Finally, to the extent that plaintiff has attempted to bring a “cross-motion” for

summary judgment as part of his own opposition to defendants’ motion, the cross-

motion is improper and will be denied. First of all, plaintiff did not serve his motion for

summary judgment at least 75 days before the hearing date for the defendants’

motion, nor did he calendar his motion separately. (Code Civ. Proc. § 437c, subd.

(a)(2): “Notice of the motion and supporting papers shall be served on all other parties

to the action at least 75 days before the time appointed for hearing.”) He has also

failed to submit any separate affidavits, deposition testimony, discovery responses,

documents, or other admissible evidence to support his motion. (Code Civ. Proc. §

437c, subd. (b)(1): “The motion shall be supported by affidavits, declarations,

admissions, answers to interrogatories, depositions, and matters of which judicial notice

shall or may be taken.”) The only citations to evidence in his separate statement are to

his own verified complaint, which is improper as discussed above, as well as

defendants’ evidence. Plaintiff attempts to rely on police reports from the incident, but

those reports are hearsay and lack proper foundation or authentication, so they are

inadmissible. (See Defendants’ Objection No. 7, which will be sustained.) In any event,

the reports fail to establish any facts that would tend to show that defendants

neglected plaintiff by failing to intervene in the altercation and protect him from

Hodanu’s attack.

Therefore, plaintiff’s cross-motion for summary judgment is improper and

unsupported by admissible evidence. As a result, the motion will be denied.

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: ________JYH___________ on ___10/15/2019___.

(Judge’s Initials) (Date)

12

(19) Tentative Ruling

Re: Orozco v. Bulldog Square, Inc.

Fresno Superior Court Case No. 18CECG01105

Hearing Date: October 17, 2019 (Dept. 501)

Motion: by plaintiff for approval of PAGA settlement

Tentative Ruling:

To deny without prejudice.

Explanation:

1. Introduction

“Because an aggrieved employee's action under the [PAGA] functions as

a substitute for an action brought by the government itself, a judgment in

that action binds all those, including nonparty aggrieved employees, who

would be bound by a judgment in an action brought by the government.

The act authorizes a representative action only for the purpose of seeking

statutory penalties for Labor Code violations (Lab.Code, section 2699,

subds. (a), (g)), and an action to recover civil penalties ‘is fundamentally

a law enforcement action designed to protect the public and not to

benefit private parties.”

Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal. 4th 348, 381.

“A PAGA representative action is therefore a type of qui tam action.

Traditionally, the requirements for enforcement by a citizen in a qui tam

action have been (1) that the statute exacts a penalty; (2) that part of the

penalty be paid to the informer; and (3) that, in some way, the informer be

authorized to bring suit to recover the penalty. The PAGA conforms to

these traditional criteria, except that a portion of the penalty goes not only

to the citizen bringing the suit but to all employees affected by the Labor

Code violation. The government entity on whose behalf the plaintiff files

suit is always the real party in interest in the suit.”

(Id. at 382, internal citation omitted.)

2. Settlement of PAGA claims

“PAGA settlements are subject to trial court review and approval, ensuring that

any negotiated resolution is fair to those affected.” Williams v. Superior Court (2017) 3

Cal. 5th 531, 549, citing Labor Code section 2699(l)(2): “The superior court shall review

and approve any settlement of any civil action filed pursuant to this part. The

proposed settlement shall be submitted to the agency at the same time that it is

submitted to the court.” The requirement of court approval was added by SB 1809 in

2004.

13

Moving party is correct that there are published cases where a payment of $0

was permitted and upheld as res judicata, but in those cases the PAGA claims were

settled as part of a class action and the workers received cash for other claims. In

Villacres v. ABM Industries Inc. (2010) 189 Cal. App. 4th 562 (rev. denied), the Court of

Appeal upheld dismissal of a pure PAGA claim on the basis a class action settlement

previously entered as a judgment in another case acted as res judicata. No PAGA

claim was pled in that class action case, so no PAGA penalties were sought or paid.

But the class members did get $730,000 for personal penalties. In Nordstrom

Commission Cases (2010) 186 Cal. App. 4th 576, an objector to a class action

settlement approved and entered as judgment appealed on the basis that the

settlement undervalued waiting time penalties, paid nothing for PAGA claims, and was

funded in part by coupons for defendant’s merchandise. The discussion of the non-

payment for PAGA claims is found at page 589.

However, in 2016, a federal trial court invited comments by the Labor Workforce

Development Agency on how settlement of PAGA claims should be assessed, in

O’Connor v. Uber Technologies, Inc. (N.D.Cal. 2016) 201 F. Supp. 3d 1110. That was a

very hard fought matter, with writs to the Court of Appeal and motions for certification,

arbitration, summary judgment, and so on. The Court refused to grant preliminary

approval to a class action settlement because it provided only 1% of the value of the

PAGA claim. See same at page 1134:

“It is important to note that where plaintiffs bring a PAGA representative

claim, they take on a special responsibility to their fellow aggrieved

workers who are effectively bound by any judgment . . . The duty imposed

on the PAGA representative is especially significant given that PAGA does

not require class action procedures, such as notice and opt-out rights.

The Court must be cognizant of the risk that despite this responsibility,

there may be a temptation to include a PAGA claim in a lawsuit to be

used merely as a bargaining chip, wherein the rights of individuals who

may not even be members of the class and the public may be waived for

little additional consideration in order to induce the employer to agree to

a settlement with the class.”

The LDWA stated: “It is thus important that when a PAGA claim is settled, the

relief provided for under the PAGA be genuine and meaningful, consistent with the

underlying purpose of the statute to benefit the public and, in the context of a class

action, the court evaluate whether the settlement meets the standards of being

‘fundamentally fair, reasonable, and adequate’ with reference to the public policies

underlying PAGA.” (Id. at 1133.)

The point of allowing the public to bring such claims where the State was unable

to do so due to staffing problems was to augment “the state’s enforcement

capabilities, encouraging compliance with Labor Code provisions, and deterring non-

compliance.” (Id. at 1132-1133.)

14

“PAGA's purpose is not to promote private enforcement without regard to

the LWDA. On the contrary, our Supreme Court has stated that PAGA's ‘sole purpose is

to vindicate [the LWDA's] interest in enforcing the Labor Code ....’ (Iskanian, supra, 59

Cal. 4th at pp. 388-389 . . ., italics added.)” Esparza v. Safeway, Inc. (2019) 36 Cal. App.

5th 42, 61. Following the LWDA’s recommendations to the federal trial court in O’Connor

is appropriate.

3. Potential Value of Claims

The last page of Exhibit 3 to the Migliazzo declaration state that the employees

covered by the proposed PAGA settlement worked a total of 1,491.29 compensable

work weeks. Divided by two, that would be equivalent to approximately 745 pay

periods, if compensation was paid on an “every other week” basis. However, plaintiff

states that he was paid twice a month, and the referenced exhibit shows three years of

work involved in the 1,491.29 figure. Being paid twice a month results in two less pay

periods per year (24 vs. 26), thus the 745 figure is properly cut to 739 pay periods.

Plaintiff states there are 16 aggrieved employees, including himself.

Under Labor Code section 210, the penalty is $100 for the first violation, and $200

for subsequent violations. 16 employees X $100 is $1,600 for violation #1. For violation

#2, that leaves 723 pay periods X $200 = $144,600. $144,600 plus $1,600 is $146,200.00.

Under Labor Code section 226.3, calling for $250 for a first violation and $1000 for

a second violation, the first violation would be worth $4,000 (16 employees X $250). For

the second violation, $1,000 X 723 pay periods, the amount is $723,000. The total comes

to $727,000.

Under Labor Code section 558, the penalty is $50 for the first violation and $100

for the second. 16 X $50 is $800 for violation #1. $100 X 723 pay periods is $72,300 for

the second violation, for a total of $73,100.

As the Court roughly estimates the penalties, the total for these three statutes is

$946,300. The proposed settlement comes to less than 3% of the potential penalties for

the three statutes listed, which are far fewer than those set forth in the settlement

agreement. Plaintiff also proposes to have 100% of the costs of his lawsuit deducted

from the PAGA settlement, and none from his own. That lowers the proposed

settlement to about 3% of the above value.

4. Approval Is Denied

First, the settlement proposes to include actual lost wages, which is not permitted

as part of a PAGA penalty claim. As ZB, N.A. v. Superior Court of San Diego County

(2019) 8 Cal. 5th 175 makes clear that actual wages cannot be awarded as PAGA

penalties. Including wages would require that the parties meet class action

prerequisites.

The argument that there could be proof problems showing a knowing and

intentional injury is incorrect, at least for the claim with the highest penalties.

15

“[A] representative PAGA claim for civil penalties for a violation of section

226(a) does not require proof of injury or a knowing and intentional

violation. This is true even though these two elements are required to be

proven when bringing an individual claim for damages or statutory

penalties under section 226(e).”

Raines v. Coastal Pacific Food Distributors, Inc. (2018) 23 Cal. App. 5th 667, 670.

The Court of Appeal held that Labor Code “section 226.3 sets out a civil penalty

for all violations of section 226.” (Id. at 676.) “Because the trial court incorrectly found

an employee must suffer an injury in order to bring a PAGA claim, it erred in granting

summary adjudication on Raines's PAGA claim.” (Id. at 682.)

A federal court found Raines to be persuasive, in Magadia v. Wal-Mart Assoc.,

Inc. (N.D. Cal. 2019) 384 F. Supp. 3d 1058, 1105. It ultimately awarded $48,046,000 for

wage statement violations under the statutory damages provided for by Labor Code

section 225(e) and another $53,901,700 more in PAGA penalties, for a total of

$101,947,700. That case is on appeal in the 9th Circuit at the present time.

The settlement here, if the Court’s figures are correct and as presently

constructed, gives the appearance of having added the PAGA claim as an

inappropriate “bargaining chip” to bolster the individual claim. O’Connor v. Uber

Technologies, Inc., supra, 201 F. Supp. 3d at 1134.

Plaintiff settled his personal claim for nearly 2/3rds of its value, but was willing to

sacrifice the PAGA claim of his fellows for what appears to be 3% of their value. That

does not support a finding that plaintiff undertook “a special responsibility to [his] fellow

aggrieved workers who are effectively bound by any judgment” or acted to augment

“the state’s enforcement capabilities, encouraging compliance with Labor Code

provisions, and deterring non-compliance.” (Id. at 1132-1133.)

The settlement also releases persons and entities far beyond those named as

defendants in this action, including insurers, reinsurers, and attorneys. Such is not

appropriate, due to the small sum offered and the fact no such persons or entities are

shown to have contributed to the settlement. Should any defendant become

bankrupt, the non-paying persons and entities may be the only source of recovery for

the Covered Employees.

While there is argument that defendants changed their policies, there is no

provision the settlement itself which requires defendants to make or continue specific

changes. Thus such cannot count as consideration, due to the uncertain nature of any

change or its continuation.

Lastly, the settlement purports to release PAGA penalties for many violations

which are not part of the penalty calculation by plaintiffs, such as Labor Code section

203. Why these claims were assessed as $0 value must be explained.

16

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

written order is necessary. The minute order adopting this tentative ruling will serve as

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

Tentative Ruling

Issued By: JYH on 10/16/2019.

(Judge’s initials) (Date)

17

Tentative Rulings for Department 502 (30) Tentative Ruling

Re: Kashian Enterprises v. David Fisher

Court Case No. 15CECG03807

Hearing Date: October 17, 2019 (Dept. 502)

Motion: Plaintiff’s motion to enforce settlement dated February 22, 2019

Tentative Ruling:

To deny.

Explanation:

In the case at bar, plaintiffs move to enforce the February 2019 agreement.

Plaintiffs move pursuant to section 664.6, so this court is empowered to determine the

enforceability of said agreement. (See e.g., Fiore v. Alvord (1985) 182 Cal.App.3d 561,

566.) In the moving and opposing papers, the parties argue over whether or not the

May 2019 agreement was rescinded. The implication is that if the May agreement was

rescinded, the February 2019 agreement is revived and can now be enforced pursuant

to section 664.6.

However, the evidence shows that the May 2019 agreement functioned as a

novation to the February 2019 agreement. And an essential element of a novation is

the extinguishment of the existing contract. In Beckwith v. Sheldon (1913) 165 Cal. 319,

323, the California Supreme Court clearly defined the requirement:

“this extinguishment does not mean that the earlier contract was held in

abeyance or in suspense. It does not mean that it could be revived upon a mere

failure to perform the new obligation. It means that it was canceled and

obliterated as completely as though it had never had existence.” (Ibid.)

Therefore, the February 2019 agreement ceases to exist. And the parties’

arguments regarding whether or not the May 2019 agreement was rescinded, are

irrelevant. Even assuming the May 2019 agreement was rescinded, the February 2019

agreement would not be revived thereby.

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 A.M. Simpson October 15, 2019

Issued By: on .

(Judge’s initials) (Date)

18

Tentative Rulings for Department 503 (03)

Tentative Ruling

Re: Hydroelectric Penetrations, L.P. v. Technicon Engineering

Services, Inc.

Superior Court Case No. 18CECG01011

Hearing Date: October 17, 2019 (Dept. 503)

In the event oral argument is timely requested, it will be heard at

1:30 p.m. on October 17, 2019 in Dept. 503.

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

Alternative, Summary Adjudication

Tentative Ruling:

To grant the motion for summary judgment filed by defendant Technicon

Engineering Services, Inc. (“Technicon”) as to the entire complaint. (Code Civ. Proc. §

437c.) Technicon shall submit a proposed judgment consistent with this court’s order

within ten (10) days of the date of service of this order.

Explanation:

Technicon moves for summary judgment on the ground that all of the claims of

plaintiff Hydroelectric Penetrations, L.P. (“HP”) against it are all barred by the settlement

agreement and release executed between Technicon and Ernie Graham in a prior

case filed in 2010. (Technicon Engineering Services, Inc. v. Graham, Case No.

10CECG02611.) Under Civil Code section 1541, “[a]n obligation is extinguished by a

release therefrom given to the debtor or the released party by the creditor or releasing

party, upon a new consideration, or in writing, with or without new consideration.” (Civ.

Code, § 1541.)

“In general, a written release extinguishes any obligation covered by the

release's terms, provided it has not been obtained by fraud, deception,

misrepresentation, duress, or undue influence.” (Skrbina v. Fleming Companies (1996)

45 Cal.App.4th 1353, 1366, internal citations omitted.) “‘[W]hen the language of a

contract is plain and unambiguous it is not within the province of a court to rewrite or

alter by construction what has been agreed upon . . . .’ A release is ‘the

abandonment, relinquishment or giving up of a right or claim to the person against

whom it might have been demanded or enforced [citations] and its effect is to

extinguish the cause of action . . . .’ Thus, a release ‘conclusively estops the parties from

reviving and relitigating the claim released.’ ‘“ 'The general rule is that when a person

with the capacity of reading and understanding an instrument signs it, he is, in the

absence of fraud and imposition, bound by its contents, and is estopped from saying

that its provisions are contrary to his intentions or understanding . . . .' ”’ (In re Mission Ins.

Co. (1995) 41 Cal.App.4th 828, 837–838, internal citations omitted.)

19

On the other hand, “mere recital, as in the release signed by plaintiffs, that the

protection of Civil Code section 1542 is waived, or that the release covers unknown

claims or unknown parties is not controlling. Whether the releaser intended to

discharge such claims or parties is ultimately a question of fact.” (Leaf v. City of San

Mateo (1980) 104 Cal.App.3d 398, 411, internal citations omitted.)

In the instant case, the undisputed facts show that Graham and Technicon

originally entered into an agreement in 2005 in which Technicon was to provide an

engineering study related to a proposed project that HP was planning to build.

(Defendant’s UMF No. 3.) Graham signed the agreement on behalf of HP, a

partnership that Graham and Mehet Noyan had formed to develop the property. (UMF

Nos. 1, 2, 4.)

In 2010, Technicon sued Graham for unpaid fees related to the engineering

services provided under the agreement. (UMF Nos. 10, 11.) The parties then entered

into negotiations to settle the case. Technicon sent a draft settlement agreement to

Noyan on September 19, 2010. (UMF No. 12.) After making some revisions, Graham

signed the settlement agreement on October 8, 2010. (UMF No. 16.) One of Graham’s

proposed revisions was to strike the reference to “future” claims from the release. (UMF

No. 13.) However, after further discussions with Technicon’s principal, Williams, the

parties agreed that the settlement release would cover any and all “present or future”

claims that might arise between them related to the lawsuit. (UMF Nos. 18-20.) HP then

paid $25,000 to Technicon to settle the case. (UMF No. 24.)

Thus, Technicon contends that HP has waived its right to bring its present claims

against Technicon, which also arise out of the development of the subject property and

are covered by the release of future claims. Technicon argues that the release clearly

covers the types of claims that HP has now asserted, including breach of contract,

professional negligence, and declaratory relief, all of which arise out of the original 2005

contract for engineering services between Technicon and Graham, who was acting as

an agent of HP at the time he entered into the engineering agreement and the

subsequent settlement.

However, HP contends that the 2010 lawsuit was not filed against HP and HP was

not a party to the action, and thus the settlement of the 2010 case did not release HP’s

claims here. Indeed, it is true that the case was filed by Technicon against Ernie

Graham, dba Graham Development Co. (UMF No. 11, Defendant’s Appendix of

Evidence, Exhibit B.) The 2010 case concerned unpaid fees that Technicon alleged

Graham owed to it under the 2005 engineering services contract. (UMF Nos. 10-11,

Defendant’s Appendix of Evidence, Exhibit B.) The engineering services contract was

between Technicon and Graham only, and HP was not mentioned in that agreement.

(Defendant’s Appendix of Evidence, Exhibit A.)

The settlement agreement and release for the 2010 case were also between

Technicon and Graham, and HP was not mentioned in that agreement. (Defendant’s

Appendix of Evidence, Exhibits D & E.) The settlement agreement never mentions that

Graham is acting as the agent for HP at the time that he executed the agreement, or

that he has authority to bind HP to the terms of the agreement. (Ibid.) The release only

20

purports to bind “each party” to the agreement, namely Technicon and Graham. (Id.

at ¶ 1.)

Nevertheless, it appears that Graham was acting as HP’s agent when he

executed the settlement, and thus HP is bound by the agreement’s terms even though

HP was not specifically named in the 2010 lawsuit or settlement agreement. Technicon

has produced evidence that tends to show that Graham was acting as HP’s actual

agent when he signed the original engineering service contract with Technicon, as well

as when he signed the settlement agreement.

“A contract of agency may be implied from the circumstances and conduct of

the parties. The existence of an agency is a question of fact.” (Zander v. Casualty Ins.

Co. of Cal. (1968) 259 Cal.App.2d 793, 800.)

Also, under the Uniform Partnership Act, “(1) Every partner is an agent of the

partnership for the purpose of its business, and the act of every partner, including the

execution in the partnership name of any instrument, for apparently carrying on in the

usual way the business of the partnership of which he is a member binds the

partnership, unless the partner so acting has in fact no authority to act for the

partnership in the particular matter, and the person with whom he is dealing has

knowledge of the fact that he has no such authority. (2) An act of a partner which is

not apparently for carrying on of the business of the partnership in the usual way does

not bind the partnership unless authorized by the other partners.” (Corp. Code § 15009;

see also Ellis v. Mihelis (1963) 60 Cal.2d 206, 217.)

Here, HP has admitted that Graham was authorized by HP to sign the settlement

and release in the 2010 Technicon v. Graham case, and that he signed the release as

HP’s agent. (See Defendant’s Evidence at Exhibit H, HP’s response to RFA Nos. 14, 15.)

Request for admission 14 asked HP to “[a]dmit that Ernie Graham was authorized by

YOU to sign the SETTLEMENT AGREEMENT.” HP’s response, after raising objections, states

that “Mr. Graham was authorized to enter into the Settlement Agreement solely for the

purpose of resolving Technicon’s claim for unpaid fees. Mr. Graham was not authorized

to release, nor does responding party believe the Settlement Agreement did release,

responding party’s claims against Technicon that are the subject of this lawsuit.

Notwithstanding, this Responding Party responds as follows: Admit.” (Defendant’s

Evidence at Exhibit H.)

Also, in request for admission number 15, Technicon asked HP to “[a]dmit that

Ernie Graham signed the SETTLEMENT AGREEMENT as YOUR agent.” HP responded

again that “Mr. Graham was authorized to enter into the Settlement Agreement solely

for the purpose of resolving Technicon’s claim for unpaid fees. Mr. Graham was not

authorized to release, nor does responding party believe the Settlement Agreement did

release, responding party’s claims against Technicon that are the subject of this lawsuit.

Notwithstanding, this Responding Party responds as follows: Admit.” (Ibid.)

In addition, in the first amended complaint in the present action, HP alleged that

Graham controlled one of the two general partners of HP. (FAC, ¶ 5.) Plaintiff also

alleged that Graham, “acting on behalf of and/or as the agent of Plaintiff, retained

Defendant Technicon to act as the geotechnical engineer for the Project.” (Id. at ¶ 6.)

21

Furthermore, in his deposition, Graham admitted that he executed the original

engineering services agreement on behalf of HP. (Graham depo., p. 17:2-19.) He also

stated that HP paid for Technicon’s services to conduct the engineering study for the

property. (Id. at p. 20:7-21.) Technicon’s proposal for the engineering contract was

sent to Graham as part of his role in HP. (Id. at p. 22:2-5.) Graham never represented

that he was going to be personally liable for paying any expenses incurred by

Technicon. (Id. at p. 22:6-10.) HP paid for all of Technicon’s work on the project. (Id. at

p. 22:11-18.)

Graham also testified in his deposition that, although Technicon sued him

personally in 2010 over a dispute concerning Technicon’s fees for the project, he and

his partner, Mehmet Noyan, were sued “on behalf of Hydroelectric Penetrations”

because Technicon claimed that they owed more money under the engineering

contract. (Id. at p. 35:8-22.) Graham stated that he understood the release to mean

that “[w]e were releasing them from any litigation pursuant to them wanting more

money.” (Id. at p. 37:14-21.) He never objected to the fact that Technicon had sued

him personally, rather than suing HP, because he believed that Technicon knew that he

was representing HP. (Id. at pp. 126:19 - 127:9.) Graham stated that he and Noyan

negotiated the settlement with Technicon together. (Id. at p. 127:10-19.) He testified

that HP had paid the settlement to Technicon, although he also stated that sometimes

he or Noyan would write a check and get reimbursed later. (Id. at p. 127:20-25.)

Thus, the evidence submitted by Technicon establishes that, although Graham

was sued personally by Technicon in the 2010 case and the settlement of that case was

between him and Technicon, he was acting as HP’s agent when he entered into both

the original service contract and the 2010 settlement and release. Indeed, HP

admitted in its responses to the requests for admissions that Graham was acting as its

agent and was authorized to execute the release, although it also claimed that his

authority was limited to only releasing any claims regarding Technicon’s fees.

(Responses to RFA Nos. 14, 15.) Consequently, even though the 2010 settlement does

not mention HP, HP is bound by the release.

While HP disputes that it authorized Graham to sign the release for any purpose

other than to settle the unpaid fee claim that was the subject matter of the 2010

lawsuit, the language of the release itself does not contain any such limitation. Indeed,

the release’s language is extremely broad, and appears to cover virtually any type of

claim that might arise out of the engineering service agreement.

The release states that, “each party hereby agrees to release and discharge the

other, and each of their respective past, present, and future directors, officers,

employees, agents, partners, joint venturers, bonding companies, affiliates,

representatives, subsidiaries, parent and affiliate corporations, successors and assigns,

and each of them, of and from any and all alleged or actual claims, demands,

damages, proceedings, rights of action, or causes of action of any kind or nature,

whether sounding in tort, contract, equity or otherwise, whether known or unknown,

suspected or unsuspected, or liquidated or unliquidated, latent or patent, existing or

inchoate, present or future, actual or contingent, included but not limited to . . .

statutory penalties, statutory damages, penalty damages, punitive damages, statutory

22

interest, negligence, strict liability, express indemnity, equitable indemnity, contribution,

and declaratory relief, and for damages arising therefrom, whether known or unknown,

present or future, general or specific in nature, including but not limited to property

damages, loss of use and enjoyment, diminution in value, stigma damages, lost profits,

investigative costs, repair costs, personal injuries, bodily injuries, emotional distress,

investigation fees, costs, consultants’ fees, experts’ fees, and attorneys’ fees, and any

indirect or consequential damages, arising from any act, failure to act, disruptions,

accelerations, mobilizations, remobilizations, tool rentals, labor cost increases,

equipment cost increases, material cost increases, loans, interest on unpaid invoices,

impacts, lost profits, lost income, home office or field overhead costs, diminished

bonding capacity or impairments to the work in connection with the Lawsuit.” (UMF No.

26, Defendant’s Evidence at Exhibit F, emphasis added.)

The settlement was entered into between Graham and Technicon to “resolve

any and all disputes including, but not limited to, the relief sought, damages, fees, costs,

and litigation expenses arising out of and relating to the action entitled TECHNICON

ENGINEERING SERVICES, INC, a California corporation, v. ERNIE GRAHAM, an individual

dba Graham Development Co. et al., Superior Court of California County of Fresno,

Case No. 10CECG02611 AMS (the ‘Lawsuit’).” (Defendant’s UMF No. 27, Defendant’s

Evidence at Exhibit F, emphasis added.)

In addition, the settlement agreement further states, “The Lawsuit concerns

claims arising from Technicon’s provision of engineering studies and testing related work

for a private works project located at Palm and Nees in Fresno, CA and commonly

referred to as the Palm Bluffs Business Park (referred to herein as the ‘Project’). [¶] The

parties desire to compromise and settle all claims that were or could have been raised

in the Lawsuit relating to the Project.” (UMF No. 28, Defendant’s Evidence at Exhibit F,

emphasis added.) Also, the release contained a Civil Code section 1542 waiver. (Ibid.)

Thus, the release was not limited to only the underlying fee dispute in the 2010

litigation, but was broadly worded to include any and all other claims that might arise

between the parties related to or arising out of Technicon’s provision of services under

the engineering contract. The release covered “any and all alleged or actual claims,

demands, damages, proceedings, rights of action, or causes of action of any kind or

nature, whether sounding in tort, contract, equity or otherwise, whether known or

unknown, suspected or unsuspected, . . . present or future, actual or contingent,

included but not limited to . . . negligence, . . . and declaratory relief, and for damages

arising therefrom, whether known or unknown, present or future, . . . including but not

limited to property damages, loss of use and enjoyment, diminution in value, stigma

damages, lost profits, investigative costs, repair costs, . . . arising from any act, . . . lost

profits, lost income, . . . or impairments to the work in connection with the Lawsuit.”

(Defendant’s Evidence at Exhibit F.) Such claims would clearly encompass the claims

brought by HP’s first amended complaint in the present action, which raises claims of

breach of contract, negligence, declaratory relief in connection with Technicon’s

allegedly negligent engineering study and report related to the development of the

project. As a result, the court finds that the release covers the claims asserted by HP in

the instant action.

23

Indeed, Graham and Technicon specifically discussed the scope of the release,

and, in particular, whether it would cover “future” claims, when they were negotiating

the release’s terms. (UMF Nos. 12-19.) Graham at first struck out the words “or future”

from the release. (UMF No. 13.) However, Technicon objected to this change, stating

that “striking the words ‘or future’ in Item 1 negates the value of the settlement. As you

recall the purpose of the agreement was to resolve the issue without attorney’s fees

and move on. We discounted the final payment based on being released from future

claims. Therefore, if the words ‘or future’ are stricken from the agreement, TECHNICON

will require payment in full for services rendered.” (UMF No. 18, Defendant’s Evidence

at Exhibit E.) Graham then responded “OK, we can leave ‘or future’ in.” (UMF No. 19,

Defendant’s Evidence at Exhibit E.) Thus, the parties clearly discussed and made a

conscious decision to release each other from any and all future claims related to

Technicon’s work on the project, which would include the claims alleged in the present

lawsuit.

Nevertheless, HP argues that Graham was not authorized by it to release any

claims beyond the pending fee dispute that was at issue in the 2010 case. However, as

discussed above, HP admitted that Graham was its agent for the purpose of executing

the release, which clearly encompassed all present or future claims or any kind arising

out of Technicon’s services under the contract. There is nothing in the language of the

settlement agreement that would indicate that Graham was not authorized to execute

the broad release of all future claims on behalf of HP.

Nor has HP presented any evidence that either Graham or Noyan ever stated to

Technicon that Graham did not intend to release all present or future claims that HP

might have against Technicon relating to its services on the project. Noyan claims in his

declaration in opposition to the motion for summary judgment that Graham was not

authorized to release any claims on behalf of HP other than the claims related to

Technicon’s claim for unpaid fees. (Noyan decl., ¶ 8.) However, he does not state that

this intention were ever conveyed to Technicon when the settlement was being

negotiated by the parties. Such unexpressed intentions which are not reflected in the

language of the settlement agreement itself, and appear to be inconsistent with the

agreement’s own language, cannot be used to modify the terms of the agreement.

“‘[M]utual consent is gathered from the reasonable meaning of the words and

acts of the parties, and not from their unexpressed intentions or understanding.’ In the

absence of fraud, mistake, or another vitiating factor, a signature on a written contract

is an objective manifestation of assent to the terms set forth there. If the terms are

unambiguous, there is ordinarily no occasion for additional evidence of the parties'

subjective intent. Their ‘actual intent,’ for purposes of contract law, is that to which

they manifested assent by executing the agreement.” (Rodriguez v. Oto (2013) 212

Cal.App.4th 1020, 1027, internal citations omitted.)

“It is true that in determining the meaning of a contract, the dominant objective

is to ‘give effect to the mutual intention of the parties as it existed at the time of

contracting, so far as the same is ascertainable and lawful.’ But in ascertaining the

parties' mutual intention, their agreed language ‘is to govern . . . if the language is clear

and explicit, and does not involve an absurdity.’ When the contract has been

‘reduced to writing,’ the parties' intention ‘is to be ascertained from the writing alone, if

24

possible,’ subject to other rules of interpretation.” (Id. at pp. 1027–1028, internal

citations omitted.)

Here, there is nothing in the plain language of the settlement agreement that

would tend to indicate that the parties did not intend to release all future claims

against each other arising out of the engineering agreement. The agreement also

appears to be clear and unambiguous, and it states, “This Agreement contains the

entire agreement between the parties. Any modification must be in writing and signed

by all parties hereto.” (Defendant’s Evidence at Exhibit F, ¶ 12.) In other words, the

agreement was intended to be integrated and complete, and no parol evidence may

be allowed to add language outside the stated provisions of the agreement.

In Edwards v. Comstock Insurance Co. (1988) 205 Cal.App.3d 1164, the Court of

Appeal affirmed the trial court’s grant of summary judgment in favor of defendant

insurance company where the plaintiffs executed a release of “any and all claims,

demands, actions and causes of actions.” (Id. at p. 1167.) The plaintiffs did not deny

signing the release, but contended that they only intended to release their personal

injury claims, not their insurance bad faith claims, unfair business practice claims, or

claim for violations of the Insurance Code. (Ibid.) The Court of Appeal declined to

interpret the release to mean “all claims except claims for bad faith, unfair practices or

violations of the Insurance Code.” (Ibid.) “Under the circumstances presented here,

we decline to rewrite appellants' release agreements to include a concept they failed

to enunciate at the time they accepted the terms of the settlement with their insurer.”

(Ibid.)

“'[T]he law imputes to a person an intention corresponding to the reasonable

meaning of his words and acts. It judges of his intention by his outward expressions and

excludes all questions in regard to his unexpressed intention. If his words or acts, judged

by a reasonable standard, manifest an intention to agree in regard to the matter in

question, that agreement is established, and it is immaterial what may be the real but

unexpressed state of his mind on that subject.”' (Crow v. P.E.G. Construction Co., Inc.

(1957) 156 Cal.App.2d 271, 278-279, quoting Zurich etc. Assurance Co. v. Industrial Acc.

Com. (1933) 132 Cal.App. 101.)

Likewise, here the unexpressed intent by Graham or HP to limit the scope of the

release to only claims that directly related to Technicon’s fees under the engineering

contract is inadmissible parol evidence that cannot contradict or vary the plain terms

of the settlement agreement. The release in the agreement clearly stated that the

parties were releasing all “present or future” claims of any type that might arise out of

the engineering agreement, including property damage claims, lost profits, breach of

contract, negligence, and declaratory relief. These are exactly the type of claims that

HP now seeks to bring in the present action. HP’s assertions that it did not actually

mean to release future claims relating to Technicon’s performance under the contract

are inadmissible parol evidence and will be disregarded by the court, as they are

inconsistent with the plain language of the release.

HP also contends that Graham was never a general partner of HP, and thus he

did not have the authority to bind it to the settlement agreement. However, HP’s own

first amended complaint alleges that HP is “a limited partnership with two general

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partners, one of which is controlled by Ernie Graham.” (FAC, ¶ 5.) HP also alleges that

Graham was acting on behalf of HP at the time he entered into the 2005 engineering

services agreement with Technicon that forms the basis of the 2010 lawsuit. (Id. at ¶ 6.)

Thus, regardless of whether Graham was a general partner of HP, HP’s own complaint

shows that he controlled one of the two partnerships that formed HP, and that he

entered into the underlying engineering contract with Technicon. HP has also admitted

that Graham was authorized to act as its agent when he entered into the settlement

agreement, and that he was in fact acting as HP’s agent when he executed the

settlement and release. (Plaintiff’s Responses to RFA Nos. 14, 15.) Thus, the undisputed

facts show that Graham had the authority to execute the settlement and release on

behalf of HP, regardless of whether he was a general partner of HP or not.

HP also argues that the question of whether it intended to release all future

claims against Technicon is a question of fact based on the language of the release

and the surrounding circumstances, and that here Technicon never took Noyan’s

deposition or propounded any discovery regarding whether Graham was authorized to

execute such a broad release. (Leaf v. City of San Mateo (1980) 104 Cal.App.3d 398,

411.) However, Technicon did in fact ask HP in the requests for admissions whether

Graham was authorized to act as HP’s agent when he executed the release, and HP

admitted that he was, albeit with the qualification that he was only authorized to

release claims regarding the fee dispute. (Plaintiff’s Responses to RFA Nos. 14, 15.)

Also, as discussed above, a party’s unexpressed intent to limit the terms of an

agreement cannot be used to vary the actual terms of that agreement, particularly

where the agreement is integrated, as the settlement agreement is here. There is no

evidence that HP ever mentioned to Technicon that it did not intend to authorize

Graham to execute a release of all future claims that it might raise. The release’s

language is quite broad, and clearly conveys an intent to release all present or future

claims, including the types of claims that HP now raises. Thus, Noyan’s statements that

Graham was not authorized to enter into the broad release contained in the settlement

agreement is not sufficient to raise a triable issue of material fact regarding the parties’

intent when they entered into the settlement.

As a result, the court finds that the release bars all of HP’s claims in the present

action, and it therefore grants summary judgment as to the entire complaint.

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: KAG on 10/9/19.

(Judge’s Initials) (Date)