Tentative Rulings for December 12, 2018 Departments 403, 501, … · 2018-12-11 · 1 Tentative...

1

Tentative Rulings for December 12, 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).)

16CECG02554 Marquez de Vaca v. Chau et al. (Dept. 403)

15CECG00604 State of California v. William F Schuh Farms LLC (Dept. 403)

15CECG00974 Barboza v. Stengel (Dept. 403)

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

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

14CECG01494 John R. Lawson Rock v. California Air Resources Board is continued to

Thursday, January 10, 2019 at 3:30 p.m. in Dept. 403.

________________________________________________________________

(Tentative Rulings begin at the next page)

2

Tentative Rulings for Department 403

(24) Tentative Ruling

Re: PenberaParis, LLC v. Spirit of California, Inc.

Court Case No. 18CECG02904

Hearing Date: December 12, 2018 (Dept. 403)

Motion: Default Prove-Up

Tentative Ruling:

To continue to January 17, 2019, at 3:30 p.m. in Department 403, with plaintiffs to

address the issues noted below. Any necessary filings must be filed at least ten court

days prior to the hearing date.

Explanation:

First, plaintiffs are necessarily seeking a judgment against only the three

defaulted defendants, namely Spirit of California, Philip McKitterick, and James Rogers.

The three other defendants – the Spirit of California Entertainment Group, the Spirit of

California Resource Group, Inc. and Material Works, Inc. – have not yet been served (at

least no proof of service are filed) or defaulted. The complaint alleges that all

defendants are liable for the harm done to plaintiffs, on all causes of action. Pursuant to

CCP §579, judgment as to less than all of the named defendants is only proper where

the court, in its discretion, determines it is appropriate. Also, California Rules of Court,

Rule 3.1800, subdivision (7), requires the plaintiff to include, with any request for default

judgment, a “dismissal of all parties against whom judgment is not sought or an

application for separate judgment against specified parties under Code of Civil

Procedure section 579, supported by a showing of grounds for each judgment.”

Second, plaintiffs have not filed the required “Request for Court Judgment” form

(Judicial Council Form CIV-100). This is a dual-purpose form, used for requesting both

entry of default and court judgment. Plaintiffs used the form when requesting entry of

default, but they have not filed and served this form again in order to request court

judgment. Thus, neither defendants nor the court have been informed of the details of

the judgment plaintiffs will request to be entered (Paragraph 2 of the form), or of the

costs requested (Paragraph 7).

Third, plaintiffs did not file materials supporting the request for judgment until two

days before the hearing. (Cal. Rules of Court, Rule 3.1800, subd. (a)(1).) In this case,

plaintiffs have alleged four different causes of action, some of which would require

facts to be proved up that others would not. It is not in the interests of judicial economy

for the court to analyze causes of action that will not even be utilized to obtain a

default judgment. The prove-up brief therefore provides the critical focus for the court’s

attention. Pursuant to Fresno County Superior Court Local Rule 2.1.14, all paperwork in

conjunction with the default prove-up hearing must be filed at least ten court days prior

3

to the scheduled hearing date. The court did not have an opportunity to review the

filed materials given the late filing.

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

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

ruling will serve as the order of the court, and service by the clerk of the minute order

will constitute notice of the order.

Tentative Ruling

Issued By: RTM on 12/10/18

(Judge’s initials) (Date)

4


Re: Deloa v. Centex Homes, et al.



Motion: Contractor Ins. Co. of North America’s Motion for Leave to

Intervene on Behalf of Blue Ribbon Stairs, Inc.

Tentative Ruling:

To grant. The complaint in intervention shall be filed and served within 5 days of

the clerk’s service of this minute order.

Explanation:

Code of Civil Procedure section 387 sets forth the rules for intervention by a third

party in existing litigation. Section 387, subdivision (a) states in relevant part: “Upon

timely application, any person, who has an interest in the matter in litigation, or in the

success of either of the parties, or an interest against both, may intervene in the action

or proceeding.” Section 387, subdivision (b) provides that “if the person seeking

intervention claims an interest relating to the property or transaction which is the

subject of the action and that person is so situated that the disposition of the action

may as a practical matter impair or impede the person's ability to protect that interest,

unless that person's interest is adequately represented by existing parties, the court shall,

upon timely application, permit that person to intervene.”

Pursuant to Code of Civil Procedure section 387, subdivision (a), the trial court

has discretion to permit a nonparty to intervene where the following factors are met: (1)

the proper procedures have been followed; (2) the nonparty has a direct and

immediate interest in the action; (3) the intervention will not enlarge the issues in the

litigation; and (4) the reasons for the intervention outweigh any opposition by the

parties presently in the action. (Truck Ins. Exchange v. Superior Court (1997) 60

Cal.App.4th 342, 346.)

A timely request is a prerequisite to obtaining relief under the intervention statute.

(See Code Civ. Proc., § 387, subds. (a) & (b); Allen v. California Water & Tel. Co. (1947)

31 Cal.2d 104, 108 [interpreting predecessor statute].) The relevant cross-complaint was

filed September 5, 2018. Blue Ribbon Stairs’ agent for service of process was served on

September 19, 2018. This motion was filed October 18, 2018, only one month after

service. Under any standard, a delay of one month is reasonable.

Contractors Insurance has a direct and immediate interest in the subject matter

of the litigation as it will be liable for a judgment against Blue Ribbon Stairs. Insurance

Code section 11580 provides that a judgment creditor may proceed directly against

any liability insurance covering the defendant in an action for personal injury or

property damage, and obtain satisfaction of the judgment up to the amount of the

policy limits. (Ins. Code, § 11580, subd. (b)(2).) Thus, where the insurer may be subject to

5

a direct action under Insurance Code section 11580 by a judgment creditor who has or

will obtain a default judgment in a third party action against the insured, intervention is

appropriate. (Reliance Ins. Co. v. Superior Court (2000) 84 Cal.App.4th 383, 386-387.)

The Court takes judicial notice of California Secretary of State’s website. The

status of Blue Ribbon Stairs, Inc. is “Secretary of State/Franchise Tax Board Suspended.”

This means the corporation apparently failed to meet tax requirements. Pursuant to

Revenue & Taxation Code, section 23301, a suspended corporation cannot sue or

defend itself against a lawsuit. (See also Reed v. Norman (1957) 48 Cal.2d 338, 343;

Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2016) 6 Cal.App.5th

1207, 1215.) Blue Ribbon Stairs cannot currently defend itself in this action.

The intervention will not enlarge the issues in this litigation.

No party has opposed this motion.

Accordingly, intervention is appropriate.

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

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

adopting this tentative ruling will serve as the order of the court and service by the clerk


Tentative Ruling



6


Re: Malaga County Water District v. Central Valley Regional Water

Quality Control Board



Motions: Malaga’s Motion for Attorney’s Fees

Board’s Motion to Tax/Strike Costs

Tentative Ruling:

To deny Malaga’s Motion for Attorney’s Fees.

To grant the Board’s Motion to Tax/Strike Costs in the amount of $9,080.

Explanation:

Motion for Attorney’s Fees

Petitioner Malaga County Water District (Malaga) seeks attorney’s fees under

Code of Civil Procedure section 1021.5. Section 1021.5 codifies the private attorney

general doctrine, which provides an exception to the “American rule” that each party

bears its own attorney fees. (Olson v. Automobile Club of Southern California (2008) 42

Cal.4th 1142, 1147.) The fundamental objective of the private attorney general doctrine

is to encourage suits enforcing important public policies by providing substantial

attorney fees to successful litigants in such cases. (Graham v. DaimlerChrysler Corp.

(2004) 34 Cal.4th 553, 565 (Graham).) Under section 1021.5, the court may award

attorney fees to (1) a successful party in any action (2) that has resulted in the

enforcement of an important right affecting the public interest (3) if a significant benefit

has been conferred on the general public or a large class of persons, and (4) the

necessity and financial burden of private enforcement are such as to make the award

appropriate. (Ibid.) The burden is on the claimant for the award of attorney’s fees to

establish each prerequisite to an award of attorney’s fees under Code of Civil

Procedure section 1021.5. (Ebbetts Pass Forest Watch v. Department of Forestry and Fire

Protection (2010) 187 Cal. App. 4th 376, 381.)

1. Successful Party

Courts take “a broad, pragmatic view of what constitutes a ‘successful party’ ”

for purposes of a section 1021.5 fee award (Graham, supra, 34 Cal.4th at p. 565) and

the court must critically analyze the surrounding circumstances of the litigation and

pragmatically assess the gains achieved by the action.” (Ebbetts Pass Forest Watch v.

Department of Forestry & Fire Protection, supra, 187 Cal.App.4th at p. 382.)

Here, Malaga alleged that it was not afforded a “fair trial” pursuant to Code of

Civil Procedure section 1094.5, subdivision (b). This court agreed, finding that the

hearing was conducted pursuant to regulations not adopted pursuant to the

7

Administrative Procedures Act (APA), and that this issue required remand. However, in

its writ petition, Malaga did not request remand; it requested only that the order

imposing the financial sanction be set aside and the complaint against it be dismissed.

There is some authority that Malaga may not be the successful party (see Hall v.

Department of Motor Vehicles (2018) 26 Cal.App.5th 182, 190), but ultimately, a

different factor disqualifies Malaga from recovering its attorney’s fees under section

1021.5.

2. Important Public Right/ Significant Benefit Conferred

In Woodland Hills Residents Association, Inc. v. City Council of Los Angeles (1979)

23 Cal.3d 917, the California Supreme Court stated that constitutional rights are

“important” for purposes of section 1021.5. (Id. at p. 935.) In its 1995 recommendations,

the Law Revision Commission repeatedly stressed that one of the purposes of its

proposed revisions to the APA was to “[i]mprove fairness of state agency hearing

procedures” and to provide fundamental due process. (Recommendation:

Administrative Adjudication by State Agencies (Jan. 1995) 25 Cal. Law Revision Com.

Rep. (1995) pp. 55, 69–70, 81, 98–99.) Fundamental due process is a constitutional right.

California courts have previously ruled that fees are warranted under section 1021.5

where a plaintiff secures relief compelling an administrative agency to comply with the

APA because “an important public right is [thereby] implicated.” (Ligon v. State

Personnel Bd. (1981) 123 Cal.App.3d 583, 592.)

3. Necessity of Private Enforcement

Because the action proceeded against the governmental agencies that were

responsible for creating and enforcing the deficient procedures, it is evident that

private, rather than public, enforcement was necessary. (Conservatorship of Whitley

(2010) 50 Cal.4th 1206, 1215 (Whitley); Woodland Hills Residents Assn., Inc. v. City

Council, supra, 23 Cal.3d at p. 941.)

4. Financial Burden of Private Enforcement

The “financial burden of private enforcement” element concerns the costs of

litigation and any offsetting financial benefits that the litigation yields or reasonably

could have been expected to yield. (Whitley, supra, 50 Cal.4th at p. 1215.) As a general

proposition, an award of attorney fees is appropriate when the cost of the claimant's

legal victory transcends his or her personal interest and places a burden on the

claimant out of proportion to his or her individual stake in the matter. (Ibid.)

In evaluating the element of financial burden, “the inquiry before the trial court

[is] whether there were ‘insufficient financial incentives to justify the litigation in

economic terms.’ ” (Summit Media LLC v. City of Los Angeles (2015) 240 Cal.App.4th

171, 193 (Summit Media); Millview County Water District v. State Water Resources

Control Board (2016) 4 Cal.App.5th 759, 768.) If the plaintiff had a “personal financial

stake” in the litigation “sufficient to warrant [the] decision to incur significant attorney

fees and costs in the vigorous prosecution” of the lawsuit, an award under section

1021.5 is inappropriate. (Summit Media, supra, 240 Cal.App.4th at pp. 193–194.) “

‘Section 1021.5 was not designed as a method for rewarding litigants motivated by their

8

own pecuniary interests who only coincidentally protect the public interest.’ ” (Davis v.

Farmers Insurance Exchange (2016) 245 Cal.App.4th 1302, 1329 (Davis) [award

inappropriate where plaintiff expected “a substantial financial recovery” from the

litigation].) “ ‘Instead, its purpose is to provide some incentive for the plaintiff who acts

as a true private attorney general, prosecuting a lawsuit that enforces an important

public right and confers a significant benefit, despite the fact that his or her own

financial stake in the outcome would not by itself constitute an adequate incentive to

litigate.’ ” (Flannery v. California Highway Patrol (1998) 61 Cal.App.4th 629, 635.) “The

relevant issue is ‘ “ ‘the estimated value of the case at the time the vital litigation

decisions were being made.’ ” ' ” (Davis, supra, 245 Cal.App.4th at p. 1330.)

Here, the challenged administrative action found Malaga committed numerous

violations for over 2,365 days of over a 6-year period and imposed a $1,036,728 penalty.

The prayer for relief in the instant writ of mandate sought to set aside this decision and

bar further litigation of the issues, i.e., it sought to invalidate the fine and end the

enforcement action against Malaga. Thus, Malaga had, at all relevant times in this

litigation, a large financial incentive. Malaga’s financial incentive of $1,036,728 far

exceeds the $269,632.75 cost of this litigation.

Malaga, however, does not agree. It argues that it has received no financial

incentive from its victory because it is subject to a costly rehearing at which time the

penalties may be re-imposed. However, this misapprehends the benefit of this court’s

order, which was to vacate the very real, $1,036,728 penalty imposed by respondent.

This court provided an immediate benefit regardless of the result of any rehearing.

Because the cost of this litigation was far exceeded by Malaga’s interest in avoiding

the $1,036,728 penalty, an award of attorney’s fees under 1021.5 to Malaga would be

improper.

Motion to Tax/Strike Costs

On September 17, 2018, Malaga filed its Memorandum of Costs listing a single

line item requesting $9,080 for “Preparation of Administrative Record.” On October 4,

2018, Central Valley Regional Water Quality Control Board (Board) moved to strike

Malaga’s claimed costs of $9,080.

Code of Civil Procedure section 1094.5, subdivision (a) provides, in relevant part:

Except when otherwise prescribed by statute, the cost of preparing the

record shall be borne by the petitioner. Where the petitioner has

proceeded pursuant to Article 6 (commencing with Section 68630) of

Chapter 2 of Title 8 of the Government Code and the Rules of Court

implementing that section and where the transcript is necessary to a

proper review of the administrative proceedings, the cost of preparing the

transcript shall be borne by the respondent. Where the party seeking the

writ has proceeded pursuant to Section 1088.5, the administrative record

shall be filed as expeditiously as possible, and may be filed with the

petition, or by the respondent after payment of the costs by the

petitioner, where required, or as otherwise directed by the court. If the

9

expense of preparing all or any part of the record has been borne by the

prevailing party, the expense shall be taxable as costs.

However, Malaga did not prepare all or any part of “the record” in this action.

Instead, on August 18, 2017, Malaga unilaterally lodged an uncertified record that it

had prepared on its own accord without the consent or approval of the Court or the

Board. (See Malaga’s Notice of Lodging of Administrative Record, August 18, 2017.) The

Board moved to strike Malaga’s record on the grounds that Malaga’s uncertified

record was inadmissible, that Malaga had no right to file its own uncertified record, and

that the Board was the proper party to prepare the administrative record. (See Motion

to Strike, August 31, 2017.) On October 3, 2017, this Court granted the Board’s motion,

stating: “Respondent’s Motion to Strike Notice of Lodging Uncertified Administrative

Record is GRANTED. Respondent is to prepare a certified administrative record.”

(Court’s Minute Order, October 3, 2017.)

On November 29, 2017, the Board lodged the certified administrative record.

(See Notice of Lodging of Administrative Record, November 29, 2017.) This certified

record was the record this Court relied on for this writ proceeding. The Board incurred

expenses of $6,897.35 to prepare that record and requested that Malaga reimburse it

for that expense. (Nguyen Decl. at ¶¶ 2-3.) Malaga declined that request. (Id., at ¶ 4.)

Malaga cites no authority that it may recover the costs of an uncertified record

which was not used by the court. Instead, it claims that the record it prepared was

identical to the one eventually prepared by the Board, and that nothing requires a

record to be certified, which is incorrect.

“Review of actions taken by an administrative agency which is required by law

to hold a hearing and perform quasi-judicial functions is under Code of Civil Procedure

section 1094.5.” (Karlson v. City of Camarillo (1980) 100 Cal.App.3d 789, 798.) The

failure to present a certified record of the complete administrative proceedings is

grounds to deny a writ of mandate. (Id., at p. 798 fn. 4.) This court specifically struck

Malaga’s uncertified record and ordered that a certified record be prepared by the

Board. The resulting record from the Board became the official, actual administrative

record. Accordingly, Malaga has incurred no reimbursable costs and the Board’s

motion to tax costs should be granted in its entirety.

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




Tentative Ruling



10


2 Tentative Ruling

Re: Wells Fargo Equipment Finance, Inc. v. Singh et al.

Superior Court Case No. 17CECG02535


Motion: Motion for terminating and monetary sanctions

Tentative Ruling:

To grant plaintiff Wells Fargo Equipment Finance, Inc.’s motion for terminating

sanctions as to defendant Dave Singh. The court strikes the answer of Dave Singh and

enters the default of defendant Dave Singh pursuant to CCP §2023.030(d)(1) and (4). In

order to obtain a default judgment the plaintiff will need to set a default prove-up

hearing or submit a paper default request on the mandatory form.

To grant plaintiff Wells Fargo Equipment Finance, Inc.’s motion for monetary

sanctions. Dave Singh is ordered to pay sanctions in the amount of $450.00 to Soloman,

Grindle, Lidstad & Wintringer, APC within 30 days after service of this order. Code of Civil

Procedure §2023.030(a).

Explanation:

There is ample evidence that defendant Dave Singh has engaged in misuse of

the discovery process. There is no indication that any lesser sanction will result in

defendant responding to the outstanding discovery. There is no indication that a lesser

sanction will compel compliance with the discovery laws.



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 12/10/18


11

(29)

Tentative Ruling

Re: Hiyama v. Rivera



Motion: Reconsider

Tentative Ruling:

To deny Cross-Complainant Rivera’s motion for reconsideration. (Code Civ. Proc.

§1008(a).)

Explanation:

When an application for an order has been made to a judge or court, and

refused in whole or in part, “any party affected by the order may, within 10 days after

service upon the party of written notice of entry of the order and based upon new or

different facts, circumstances, or law, make application to the same judge or court that

made the order, to reconsider the matter and modify, amend, or revoke the prior

order.” (Code Civ. Proc. §1008(a); see Even Zohar Construction & Remodeling, Inc. v.

Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 840 [§1008 prohibits a party from making

renewed motions not based on new facts or law]; see also Sorenson v. Superior Court

(2013) 219 Cal.App.4th 409, 421, fn. 13.)

In the case at bench, Cross-Complainant Rivera asks the Court to reconsider its

October 9, 2018, order granting Cross-Defendant Fidelity National Title Insurance’s

motion for summary judgment. Cross-Complainant’s burden on the instant motion is to

present new or different facts, circumstances or law.

Cross-Complainant contends that this Court considered only Covered Risk 10 of

the title policy, however Covered Risks 1, 2, 5, 6, 7, 8, and 9 provide additional bases of

coverage and were not considered by the Court. All Covered Risks were considered by

the Court, the focus on item 10 in the order after hearing was due to the parties’ focus

on item 10 in the moving and opposing papers. Cross-Complaint does not present any

new or different facts, circumstances, or law. Accordingly, the motion is denied.

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

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

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

service by the clerk will constitute notice of the order.

Tentative Ruling



12


Re: Penn v. Beazer Homes Holding Corp.

Case No. 15CECG03926

Hearing Date: None. See below.

Motion: By Cross-Defendant ISI Design and Installation Solutions, Inc. fka

Creative Touch Interiors, Inc. For Determination of Good Faith

Settlement.

Tentative Ruling:

To continue the hearing to 3:00 p.m., Thursday, January 10, 2019 in Department

501. Supporting documentation is to be filed with the Court no later than Thursday,

December 27, 2018.

Explanation:

(Note- as of December 10, 2018, no opposition appears in the Court’s files.)

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) evidence of the existence of collusion, fraud, or tortious conduct aimed to

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

Finally, “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).)

It should be noted that, “if 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.)

13

Here, the only evidence presented is by the counsel for moving party. The

alleged damages appear to be derived from a defect list provided during the Case

Management process. However, the declaration contains no documentary evidence

of this repair list. This does not constitute substantial evidence to support the motion,

even where, as here, the motion is unopposed. The motion is therefore continued to

allow moving party to submit admissible evidence supporting the Tech-Bilt factors,

particularly with respect to a rough approximation of plaintiffs' total recovery and the

settlor's proportionate liability. The hearing is continued to 3:30 p.m., Thursday, January

3, 2019 in Department 501. Supporting documentation is to be filed with the Court no

later than Thursday, December 27, 2018.

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


Tentative Ruling



14


2 Tentative Ruling

Re: Gonzalez et al. v. Berndt



Motion: Compel plaintiff Miguel De La O aka Carlos Torres to provide initial

verified responses to form interrogatories, set one, special

interrogatories, set one and request for production of documents,

set one and sanctions

Tentative Ruling:

To grant defendant’s motions to compel plaintiff Miguel De La O aka Carlos

Torres to provide initial verified responses to form interrogatories, set one, special

interrogatories, set one and request for production of documents, set one. (Code of

Civil Procedure sections 2030.290(b), 2031.300(b).) Miguel De La O aka Carlos Torres to

provide complete verified responses to all discovery set out above, without objection

within 10 days after service of this order.

To grant defendant’s motion for sanctions. (Code of Civil Procedure sections

2030.290(c), 2031.300(c).) Miguel De La O aka Carlos Torres is ordered to pay sanctions

in the amount of $480.00 to Carbone, Smoke, Smith, Bent & Leonard within 30 days of

service of this order. (Code of Civil Procedure sections 2030.290(c), 2031.300(c).)

The Court records reveal that the defendant only tendered a filing fee of $60 for

the three motions set on calendar. The additional $120 in filing fees shall be paid within

10 days.

Explanation:

The court notes that there is no meet and confer requirement for motions to

compel initial responses. Further, the plaintiff has provided no substantial justification for

failing to provide the discovery responses.





Tentative Ruling

Issued By: DSB on 12/10/18


15

(03)

Tentative Ruling

Re: Barron v. Galvin

Case No. 14CECG01179


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

Alternative Summary Adjudication

Tentative Ruling:

To deny defendant Galvin’s motion for summary judgment, or in the alternative

summary adjudication. (Code Civ. Proc. § 437c.)

Explanation:

Defendant Galvin moves for summary judgment, or in the alternative summary

adjudication of his eleventh affirmative defense, arguing that, since he was an

employee of the City of Mendota at the time of the subject accident, therefore

plaintiffs were required to file a timely government tort claim with the City of Mendota

before they could sue him for their injuries arising out of the accident. (Govt. Code §§

815, subd. (a); 911.2; 950.2; 954.4; State of California v. Superior Court (Bodde) (2004) 32

Cal.4th 1234, 1239.) He also alleges that plaintiff Shelly Barron filed a timely claim, but it

was rejected by the City on May 16, 2013, and she did not file her complaint within six

months of the rejection of the claim, so the complaint is untimely. (Govt. Code § 945.6,

subd. (a)(1).) In addition, defendant alleges that Vincent Barron did not even file a tort

claim with the City, so his claim for loss of consortium is barred as well.

Plaintiffs do not dispute that they failed to timely comply with the Government

Tort Claims Act, and therefore their potential claims against the City are time-barred.

Indeed, they have dismissed their claims as to the City. However, they contend that

defendant Galvin was not acting in the scope of his employment with the City at the

time of the accident, so they were not required to bring a tort claim as to him before

filing their lawsuit. They allege that Galvin was merely driving home from work at the

time of the accident, so he was not acting for the benefit of his employer.

On the other hand, Galvin contends he was acting in the course and scope of

his employment, because he was a peace officer returning from a work-related

interview with Univision, he was driving a City-owned unmarked police car equipped

with a radio and sirens, he was in uniform, he was wearing his badge and gun, and he

was on-call and required to respond to any emergencies or criminal incidents that

might arise even if he was no longer at work. (Defendant’s UMF no.’s 5 – 11, 14.)

Defendant was authorized the use the City vehicle to drive to and from work, but he

was not authorized to use it for personal purposes. (UMF no. 12.) Also, one of Galvin’s

regular duties as Chief of Police was to conduct interviews in connection with law

enforcement matters. (UMF no. 14.)

16

In their opposition, plaintiffs contend that the “going and coming” rule applies to

the facts here, as Galvin was simply driving home from work at the time of the

accident, and thus he was not acting in the scope of his employment.

Principles of Respondeat Superior and the “Going and Coming Rule”: “Whether a

tort was committed within the scope of employment is ordinarily a question of fact; it

becomes a question of law, however, where the undisputed facts would not support an

inference that the employee was acting within the scope of his employment.

[Citation.]” (John R. v. Oakland Unified School Dist. (1989) 48 Cal.3d 438, 447.)

“... [A] public employee is acting in the course and scope of the employment

'when he is engaged in work he was employed to perform or when the act is an

incident to his duty and was performed for the benefit of his employer and not to serve

his own purposes or conveniences.' [Citations.] The phrase 'scope of employment' has

been equated with the express or implied power of the public employee to act in a

particular instance, and in evaluating his conduct to determine whether it is within the

ambit of his authority we are to look not to the nature of the act itself, but to the

purpose or result intended. [Citations, fn. omitted.] If the object or end to be

accomplished is within the employee's express or implied authority his act is deemed to

be within the scope of his employment irrespective of its wrongful nature.” (Neal v.

Gatlin (1973) 35 Cal.App.3d 871, 875.)

“Categorization of an employee's action as within or outside the scope of

employment thus begins with a question of foreseeability, i.e., whether the accident is

part of the inevitable toll of a lawful enterprise.” (Lazar v. Thermal Equipment Corp.

(1983) 148 Cal.App.3d 458, 464, internal citations omitted.)

“One traditional means of defining this foreseeability is seen in the distinction

between minor ‘deviations’ and substantial ‘departures’ from the employer's business.

The former are deemed foreseeable and remain within the scope of employment; the

latter are unforeseeable and take the employee outside the scope of his employment.”

(Id. at p. 465.)

“ ‘The question is often one of fact, and the rule now established is that only a

substantial deviation or departure takes the employee outside the scope of his

employment. If the main purpose of his activity is still the employer's business, it does not

cease to be within the scope of the employment by reason of incidental personal acts,

slight delays, or deflections from the most direct route. The term “deviation” is ordinarily

used to describe these minor deflections, and “departure” to describe the

abandonment which takes the acts outside the scope of employment.’ More recently,

the test was stated in this way: ‘In assessing whether an employee's wrongful act was

required by or incidental to his duties, the law defines occupational duties broadly. The

fact that an employee is not engaged in the ultimate object of his employment at the

time of his wrongful act does not preclude attribution of liability to an employer. For

example, acts necessary to the comfort, convenience, health, and welfare of the

employee while at work, though strictly personal to himself and not acts of service, do

not take him outside the scope of his employment.’” (Id. at p. 465, internal citations

omitted.)

17

However, “[u]nder the so-called ‘going and coming rule,’ an employee is not

regarded as acting within the scope of his employment while going to or coming from

his place of work. The courts, however, have recognized several exceptions to the

‘going and coming’ rule.” (Ducey v. Argo Sales Co. (1979) 25 Cal.3d 707, 722, internal

citations omitted.)

Workers’ Compensation Cases Versus Tort Cases: In the present case, Galvin

relies heavily on several workers’ compensation cases to argue that he was acting in

the scope of employment at the time of the accident. However, while the courts have

sometimes relied on workers’ compensation cases and treated them as

interchangeable with tort cases for purposes of establishing whether an employer could

be held liable for an employee’s torts, there are significant differences between the

tests under workers’ compensation law and negligence law.

“In the ‘going and coming’ cases, the California courts often cite tort and

workers' compensation cases interchangeably. As Mr. Witkin points out, however, ‘This

practice has been questioned, for compensation rules were developed from a distinct

social philosophy, with fault eliminated as a test, and liberal construction of the act

required.’ In Hinman v. Westinghouse Elec. Co., the California Supreme Court relied

upon workers' compensation cases, stating that ‘Although the test under the workmen's

compensation law of 'arising' out of and in the course of the employment' (Lab. Code,

§ 3600), is not identical with the test of 'scope of employment' under the respondeat

superior doctrine ... the two tests are closely related...’” (Ducey v. Argo, supra, at p.

722, internal citations omitted.)

“There is a marked conceptual difference in the rationale imposing liability on

the employer under workers' compensation laws for injuries suffered by his employee on

the one hand and, on the other, the rationale imposing liability on the employer to the

public in general for the negligent acts of his employee under the doctrine of

respondeat superior. In the first instance, the employer under the workers'

compensation laws is made liable for injuries sustained to his employee irrespective of

fault. Under general tort principles, on the other hand, fault is still one of the

fundamental bases for imposing liability. The primary object for an award of damages

in a civil action and the fundamental principle or theory on which such an award is

based is just compensation or indemnity for loss or injuries sustained by a complaint.

[Citation.] Other considerations are involved in an award under the workers'

compensation laws.” (Harris v. Oro-Dam Constructors (1969) 269 Cal.App.2d 911, 914.)

“In the light of these conceptual differences, it has been held that the authorities

interpreting the words 'arising out of and occurring in the course of his employment' for

the purpose of determining liability under the workers' compensation laws are not

controlling when the test of liability is in the interpretation of the words 'acting within the

scope of his employment' under the doctrine of respondeat superior. (Id. at p. 915.)

“”'Scope of employment“' defines a more restricted area of employee conduct

than the phrase ”'arising out of and in the course of employment. “' [Citations.] Thus, an

employee can suffer a compensable injury under workers' compensation but not be

within the scope of employment. [Citation.] If an injury is within the 'scope of

employment,' it will probably be 'arising out of and occurring in the course of

18

employment'; however, the reverse is not true. While the tests for liability under workers'

compensation and vicarious liability of the employer for torts of the employee are

closely related, the courts recognize a difference. [Citations.] … Thus while workers'

compensation cases can be helpful in determining vicarious liability of the employer for

torts of the employee, such cases are not controlling.” (Church v. Arko (1977) 75

Cal.App.3d 291, 298-300; see also Wank v. Richman & Garrett (1985) 165 Cal.App.3d

1103, 1111.)

“[T]he courts have articulated the justification for disparate results in vicarious

liability and workers' compensation cases many times. We will not repeat the analysis

set forth in these cases, but we will note that under Legislative direction to construe the

provisions of the Workers' Compensation Act liberally (Lab. Code, § 3202), the courts

have tended to be very generous in finding injured workers are entitled to workers'

compensation benefits.” (Anderson v. Pacific Gas & Electric Co. (1993) 14 Cal.App.4th

254, 260, internal citations omitted.)

“In summary, the analysis used by courts in workers' compensation cases to

direct or affirm coverage for the employee provide some guidance for analyzing

respondeat superior cases because situations will arise where workers' compensation

coverage overlaps with respondeat superior liability. Despite this overlap, the analysis

used in workers' compensation cases should not be applied in tort cases as though it

was controlling.” (Pierson v. Helmerich & Payne Internat. Drilling Co. (2016) 4

Cal.App.5th 608, 620.)

Exceptions to the “Going and Coming Rule”: There are certain recognized, well-

established exceptions to the “going and coming” rule. For example, “If an employer

requires an employee to furnish a vehicle as an express or implied condition of

employment, the employee will be in the scope of his employment while commuting to

and from the place of his employment.” (Felix v. Asai (1987) 192 Cal.App.3d 926, 932,

237 Cal.Rptr. 718, italics added; Pierson v. Helmerich & Payne Internat. Drilling Co.,

supra, Cal.App.5th at p. 625. “The employer's requirement may be either express or

implied.” (CACI 3725.)

Where the employee is required by his employer to use his vehicle for company

business, the “going and coming” rule does not apply, as the employer derives a

benefit from the employee’s use of his vehicle and therefore it should be liable for any

harm that results from the use of the vehicle. (Huntsinger v. Glass Containers Corp.

(1972) 22 Cal.App.3d 803, 810.)

Another recognized exception to the “going and coming” rule is the special

errand exception. “Under the special errand exception, an employee is considered

within the scope of employment while coming from home or returning to it, while on a

special errand either as part of his regular duties or at a specific order or request of the

employer. An example of a special errand is the delivery of mail to a post office on the

way home from work.” (Pierson, supra, 4 Cal.App.5th at p. 632, internal citations

omitted.)

The “going and coming” rule also usually does not apply where an employee’s

job duties require him to drive. (Huntsinger, supra, 22 Cal.App.3d at p. 809.)

19

There Are Triable Issues of Material Fact as to Whether the “Going and Coming

Rule Applies in the Present Case: Here, defendant argues that the “going and coming”

rule does not apply, as he was driving a City-provided unmarked police car with a

radio and sirens, he was in uniform wearing his badge and gun, he was returning from

an interview with Univision that related to his work as Chief of Police, and he was “on

call” and expected to respond to criminal activity or emergencies at any time. He

contends that these facts show that one or more of the exceptions to the “going and

coming” rule applied, and therefore he was acting in the course of his employment at

the time of the accident.

Defendant relies heavily on Garzoli v. Workmen’s Comp. Appeals Bd. (1970) 2

Cal.3d 502 to support his position. In Garzoli, the Supreme Court held that the “going

and coming” rule did not apply in a workers’ compensation case to a police officer

who was killed on his way home from work after his shift ended. The officer had left

work on his personal motorcycle, but he was still wearing his police uniform and carrying

his pistol at the time of the accident. There was no adequate place at the police

station for officers to change into their uniforms. There was also evidence that he was

on call 24 hours a day, and that he had been called many other times to report to duty

outside of his regular shift. He was also expected to render assistance in both

emergencies and less serious situations when needed. (Id. at p. 504.)

The Supreme Court held that, under the circumstances, the “going and coming”

rule did not apply to bar the decedent’s wife’s claim for workers’ compensation

benefits. However, in doing so, the court noted that, “In determining whether the facts

bring a case within the general rule or cause it to fall within an exception thereto, the

mandate of section 3202 of the Labor Code must be kept in mind. That section requires

that the provisions of the Workmen's Compensation Act be ‘liberally construed by the

courts with the purpose of extending the benefits for the protection of persons injured in

the course of their employment.’” (Id. at p. 505.) Thus, the Supreme Court was clearly

applying the more liberal standard for workers’ compensation cases, rather than the

more demanding standard for vicarious employer liability in tort actions. As a result, its

holding does not necessarily require a finding that the “going and coming” rule does

not apply in the present case.

The court also found that, “In the present case, the fact that the decedent was

on 24-hour call is not sufficient to render the going and coming rule inapplicable.”

(Ibid, internal citation omitted.) As a result, the Garzoli court rejected the same

reasoning defendant seeks to apply here, that the fact that he was on-call even when

he was off-duty means that he was acting in the scope of employment at the time of

the accident. Indeed, if defendant’s reasoning were correct, then a police officer like

the defendant would always be acting in the scope of employment, since police

officers are always considered to be on-call for the purpose of responding to

emergencies or other police matters. Such a result would be overbroad and would not

serve the public policy under respondeat superior liability. (See Le Elder v. Rice (1994)

21 Cal.App.4th 1604, 1609: “Public policy would be ill-served by a rule establishing 24-

hour employer liability for on-call employees, regardless of the nature of the employee's

activities at the time of an accident.”)

20

In addition, the Garzoli court noted that decedent was not required to use his

personal vehicle to commute to work. (Garzoli, supra, at p. 506.) Likewise, here the

defendant has not presented any evidence establishing that he was required to use

the City-provided vehicle for commuting to and from work. Rather, it appears that the

vehicle was provided to him as a perk of his position as Chief of Police, and that he was

merely allowed to commute to and from work with it. (See Exhibit 8 to Defendant’s

Motion, Galvin decl., ¶¶ 2, 3; Exhibit 13 to Defendant’s Evidence, Offer of Employment

from City of Mendota dated July 29, 2009.) The evidence indicates that Galvin was

authorized to use the City vehicle as a benefit of his employment, to commute to and

from work, and to allow him to respond to department-related business after work

hours. (Ibid.)

The resolution adopted by the City on July 23, 2013 also stated that “A City

vehicle and fuel will be provided to the City Manager, the Chief of Police, the Public

Works Director, and the Building Inspector/Code Enforcement Officer for his/her use in

performing his/her official duties. Employee's use of personal vehicle for City business

shall be compensated at a rate established by the IRS mileage rate. The City Manager,

Public Works Director, and Chief of Police are permitted to use such assigned vehicles

to commute between work and personal residence.” (Exhibit 14 to Defendant’s

Motion, City Council Resolution dated July 23, 2013, italics added.) Thus, the evidence

does not conclusively show that defendant was required to use his City vehicle for

commuting to and from work, and thus the required use exception does not apply

here.

However, defendant contends that the fact that he was wearing a uniform,

badge and gun at the time of the accident shows that he was acting in the scope of

employment, again relying primarily on Garzoli. The Supreme Court in Garzoli held that

the “going and coming” rule did not apply to bar the decedent officer’s widow’s

workers’ compensation claim because, “it is clear that, as a practical matter, the

decedent was required to wear his official uniform to and from work and that, at least

when so clothed, carrying his pistol, and traveling conspicuously in the public streets on

a motorcycle on his way home immediately after completing his shift, he was expected

to render assistance to members of the public in the field of law enforcement, if

needed. [¶] Accordingly, it is a reasonable extension of the exception laid down in

Smith to hold that under the circumstances here shown, the decedent was engaged

‘in conduct reasonably directed toward the fulfillment of his employees requirements,

performed for the benefit and advantage of the employer,’ as a result of which the

going and coming exclusion is inapplicable.” (Ibid.)

Yet, as discussed above, Garzoli was decided in the context of a worker’s

compensation case, and the court expressly stated that it was applying the more liberal

standard for finding that the employee’s injury arose out of his work for his employer

under the definition of Labor Code section 3202. (Garzoli, supra, at p. 505.) Thus, the

court’s reasoning does not automatically require the court in the present case to find

that defendant was acting in the scope of employment under the more demanding

standard for tort cases.

Also, the facts in the present case are distinguishable, in that defendant was

driving home from the interview in Fresno, which was outside his normal work jurisdiction

21

of Mendota. Thus, it is not clear that he was authorized to act as a police officer during

his commute. While defendant claims that he was expected to respond to criminal

incidents or emergencies at any time, even when he was no longer on-duty, the

plaintiffs point out that the Police Department policy was that Mendota Police officers

driving to and from work outside the jurisdiction of the Mendota Police Department

“should avoid becoming directly involved in enforcement actions except in those

circumstances where a potential threat to life or serious property damage exists…”

(Defendant’s Exhibit 16, Mendota Police Department Vehicle Use Policy, § 706.6.) Here,

defendant was driving home from outside his police jurisdiction, so there is at least a

triable issue of fact as to whether he was expected or authorized to act as a police

officer while on his commute, regardless of whether he was wearing a uniform, badge,

and gun at the time.

Moreover, it does not appear that Garzoli was intended to set forth a universal

rule that a police officer who commutes to or from work while wearing a uniform is

automatically acting in the scope of employment, and thus the “going and coming”

rule does not apply to him. At most, the court found that, based on the circumstances

presented to it, the “going and coming” rule did not bar the decedent’s widow’s

workers’ compensation claim.

The other cases cited by defendant to support his argument regarding wearing

a uniform during the commute are also distinguishable, as they were decided in the

context of workers’ compensation benefits or disability retirement claims, and thus

applied a more liberal standard than the one that applies in tort cases like the present

one. In Carrillo v. Workers’ Comp. Appeals Bd. (1983) 149 Cal.App.3d 1177, the Fifth

District Court of Appeal held that a reserve deputy sheriff who was injured on the way

to work was not “going and coming”, and thus her workers’ compensation claim was

not barred. The court pointed out that she was wearing her uniform during her

commute, and there was no place for her to change into her uniform once at work.

She was also required to assist the public, if needed, during her trip to work. (Id. at p.

1181.) She was driving an unmarked patrol car as well. (Id. at pp. 1181-182.) “In short,

petitioner in substance performed for her employer the function of a uniformed officer

in an unmarked patrol car when she was driving to work the morning of October 22,

1979.” (Ibid.)

However, in the present case, there is a triable issue of fact as to whether

defendant was expected or required to perform police duties while on his commute

home, as he was outside his jurisdiction during the entire commute. Although

defendant claims that he was required to wear his uniform, badge and gun on his

commutes, and that he was “on duty” at the time of his commute (Galvin decl., ¶ 11),

the City’s Vehicle Use Policy indicates that he was not supposed to engage in police

enforcement activity outside of the Mendota jurisdiction except in extreme cases of

danger to life or serious property damage. (Vehicle Use Policy, § 706.6.) Therefore,

Carrillo is distinguishable on the facts.

Next, in Minor v. Sonoma County Employees Retirement Bd. (1975) 53 Cal.App.3d

540, the First District Court of Appeal found that a deputy sheriff who was injured on the

way to work while driving his own personal car, but while he was in uniform, suffered a

“service connected” injury for the purposes of his disability retirement benefits. The

22

deputy was not injured in the initial traffic accident, but he broke his ankle when he

jumped a fence as he attempted to return to the scene of the accident to render

assistance and direct traffic. (Id. at p. 542.) The Court of Appeal found that the “going

and coming” rule did not apply under the facts of the case because the deputy was

not injured while driving to work, but rather after the accident when he was attempting

to perform his duties as a deputy sheriff. (Id. at p. 545.) The court also held that

arguments about whether he was required to wear his uniform while driving to work

were immaterial, since he was clearly acting as a sheriff’s deputy when he returned to

the accident scene to render first aid and direct traffic. (Id. at pp. 545-546.)

Here, on the other hand, the defendant was not engaging in any police activity

when he was involved in the accident. He was simply driving home from the interview,

which was part of his normal job duties. (Galvin decl., ¶¶ 7, 9, 10.) After the accident

occurred, he did not attempt to render first aid, direct traffic, conduct an investigation,

or make an arrest. In fact, he waited with the plaintiff while the Fresno Police

conducted their investigation. (See Bohn decl., Exhibit 2, Police Report of August 1,

2012.) Thus, there is at least a triable issue of material fact as to whether defendant was

acting in the scope of employment at the time of the accident, and the Minor case is

distinguishable.

Defendant also cites to Petroceili v. Workmen's Comp. Appeals Bd. (1975) 45

Cal.App.3d 635 in support of his argument that the fact that he was wearing a uniform

at the time of the accident means he was not “going and coming” from work.

However, in Petrocelli, the court was not dealing with the “going and coming” rule. In

that case, the claimant was a police officer who was off-duty and still in uniform. He

had gone to a movie theater to watch a film. While he was walking in the parking lot of

the theater, he saw several young men in a car who seemed suspicious to him. As he

walked toward them, he tripped and broke his arm. (Id. at pp. 636-637.) The Court of

Appeal found that the referee had erred when he found that the claimant’s injury did

not arise out of the course of his employment, since the claimant was acting as a

police officer as he attempted to investigate the suspicious men. (Id. at p. 638.)

The present case is again distinguishable, since here defendant was not acting

as a police officer at the time of the accident. He was not investigating a potential

crime or otherwise exercising any police powers. In fact, he was not authorized to act

as a police officer outside the Mendota jurisdiction, exception in cases of emergency

where there was a risk of death or serious property damage. (Mendota Police

Department Vehicle Use Policy, § 706.6.) He was simply driving home from work after

finishing a news interview, which was a normal part of his job duties. Therefore,

Petrocelli does not apply here or require a finding that the “going and coming” rule

does not apply to defendant.

Defendant has also argued that the fact that he was supplied with a City-issued

vehicle for his use means that he was not subject to the “going and coming” rule.

However, as discussed above, there are triable issues of fact as to whether defendant

was required to use the City vehicle to commute to and from work. The offer of

employment suggests that the vehicle was intended to be a perk of his employment as

Chief of Police. Also, the evidence is ambiguous as to whether defendant was required

to use the vehicle for business while he was commuting, particularly when he was

23

outside the jurisdiction of Mendota. (Vehicle Use Policy, § 706.6.) Therefore, the

“required vehicle use” exception to the “going and coming” rule does not necessarily

apply here.

Next, defendant argues that the “special errand” exception applies here,

because he was coming home after going to the interview at Univision, and thus was

conducting a special errand on behalf of his employer. (Galvin decl., ¶ 9.)1 However,

he also admits that conducting media interviews was a part of his regular job duties as

Chief of Police. (Id. at ¶ 7.) In addition, he was no longer engaged in police business at

the time that he was involved in the accident, as he had finished the interview before

he left to drive home. (Id. at ¶ 10.) Therefore it does not appear that defendant was

on a “special errand” for his employer at the time of the accident. At the very least,

there is a triable issue of fact as to whether the “special errand” exception applies here.

Defendant also argues that the exception to the “going and coming” rule for

employees whose job duties include driving applies here. (Huntsinger, supra, 22

Cal.App.3d at p. 809.) Again, however, there are triable issues of fact as to whether the

City required defendant to drive his City-issued vehicle on his daily commute. While

defendant contends that he was required to be on-call at all hours and respond to

potential criminal activity or emergencies, he was driving in Fresno at the time of the

accident, which was outside his normal jurisdiction. The City’s policy was that police

officers were not to engage in policing activity outside of the Mendota jurisdiction

when driving to and from work in City vehicles. Also, the evidence indicates that

defendant was only allowed to drive his City-issued vehicle to and from work, not that

he was required to do so. Therefore, there are triable issues of fact as to whether the

exception for employees who are required to drive for their work applies here.

Since defendant has failed to establish as a matter of law that the “going and

coming” rule does not apply to him under the circumstances, he has not met his

burden of demonstrating that he was acting in the scope of employment at the time of

the accident. At the very least, there are triable issues of material fact as to whether

the defendant was acting as a City employee when he was involved in the accident.

Consequently, the fact that plaintiffs did not comply with the Government Tort Claims

Act does not necessarily bar their claims against Galvin. Therefore, the court intends to

1 Plaintiffs object that the copy of the video from the interview presented by Galvin is not

translated, and that it is impossible to determine what is being said in the interview or what it

concerned. Galvin himself also testified somewhat inconsistently in his deposition about some

details of the interview, such as who conducted it, whether it was videotaped, and what exactly

it concerned. However, the court intends to overrule the objections to the interview, as the

content of the interview is not relevant to the issues of the motion. The only reason the interview

is relevant at all is that it explains why Galvin was driving in Fresno at the time of the accident,

and that he was conducting police business just before the accident. There is no need for a

translation to establish these facts, as the interview shows that Galvin was being interviewed in

English while he was in his police uniform about a matter of concern to the police, namely

closure of the outlying Fresno courthouses.

The court intends to overrule plaintiff’s objections, except for the seventh, eighth, ninth and tenth

objections, which will be sustained.

24

deny the motion for summary judgment, and the alternative motion for summary

adjudication of the eleventh affirmative defense.

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


Tentative Ruling

Issued By: DSB on 12/10/18


25


(2)

Tentative Ruling

Re: In re Daisy Renee Welch



Motion: Petition to Compromise Minor’s Claim

Tentative Ruling:

To grant. Orders signed. Hearing off calendar.





Tentative Ruling

Issued By: KAG on 11/29/18


26


Re: Delgado v. Kohl’s Department Stores, Inc. et al.



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

2:00 p.m., on December 12, 2018, in Dept. 503.

Motion: Motion in limine

Tentative Ruling:

To vacate the hearing date. Plaintiff reserved a hearing date for motions in

limine. Motions in limine are not proper on the regular law and motion calendar, and

the hearing date should not have been set. Motions in limine are to be scheduled by

the trial judge and heard by the trial judge. Motions in limine in this case are premature.

Trial is not set until February 4, 2019.

In the event that plaintiff was attempting to schedule a different type of motion,

no papers have been filed. The hearing is vacated.





Tentative Ruling



27


Re: Davtyan v. Tidwell





Motion: 1) Demurrer of Defendant Fresno Community Hospital and Medical

Center, dba Community Regional Medical Center to Complaint

2) Motion to Strike by Defendant Fresno Community Hospital and

Medical Center, dba Community Regional Medical Center

Tentative Ruling:

To overrule both the special and general demurrers. To grant the motion to

strike, without leave to amend, but without prejudice to plaintiff’s right to file a motion

under Code of Civil Procedure section 425.13 to obtain leave to add a claim for

punitive damages. Defendant Fresno Community Hospital and Medical Center, dba

Community Regional Medical Center (“CRMC”) is granted 10 days’ leave to file its

answer to the complaint. The time in which the answer can be filed will run from service

by the clerk of the minute order.

Explanation:

Demurrer for Uncertainty

“A demurrer for uncertainty is strictly construed, even where a complaint is in

some respects uncertain, because ambiguities can be clarified under modern

discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612,

616.) Furthermore, this special demurrer will not lie where the ambiguous or uncertain

facts are presumptively within the knowledge of the demurring party. (Fanucchi v.

Corberly-West Co. (1957) 151 Cal. App. 2d 72, 82-83; Fenton v. Groveland Community

Services Dist. (1982) 135 Cal. App. 3d 797, 810.) Here, defendant CRMC knows whether

it was involved in scheduling the surgery or cancelling it. Furthermore, its argument

concerning the employment/agency arrangement not existing between it and Dr.

Tidwell is not cognizable on demurrer; it is evidence (or, at least, purported evidence)

outside the pleadings and is not a fact subject to judicial notice. The demurrer for

uncertainty is overruled.

General Demurrer (Failure to State Facts Sufficient)

In ruling on a demurrer, whether the plaintiff will be able to prove his or her case

at trial is not considered. (Griffith v. Department of Public Works (1956) 141 Cal.App.2d

376, 381.) A demurrer admits the truth of all material factual allegations in the

complaint. The question of the plaintiff's ability to prove those allegations, or the

possible difficulty in making such proof does, not concern the reviewing court. (Perdue

v. Crocker National Bank (1985) 38 Cal.3d 913, 922.) A complaint or pleading

28

challenged by general demurer must be liberally construed and the demurrer overruled

where any cause of action is stated. To determine the sufficiency of the complaint, the

court must look to the whole of the pleading, construing each part in its total context.

(Amacorp Indus. Leasing Co. v. Robert C. Young Associates, Inc. (1965) 237 Cal.App.2d

724, 727.)

Under the allegations of the complaint, both defendants are alleged to have

refused to operate on plaintiff and repair the damage to his foot, leaving him with

permanent damage. Whether based on assuming an employment or agency

relationship between the hospital and doctor, or based on the hospital’s provision of

emergency care, plaintiff alleges that defendant CRMC is responsible for this damage.

Plaintiff came to defendant CRMC’s emergency room, and liberally construing the

allegations, he was still under both defendants’ care when the surgery was scheduled

and cancelled a few days later. The phrase “emergency services” under Health and

Safety Code Section 1317 is not limited in terms of timeframe, but rather is couched in

terms of the patient having “any condition in which the person is in danger of loss of life,

or serious injury or illness.” (See also Health & Saf. Code, § 1317.1, sub. (b) [“‘emergency

medical condition’ means a medical condition manifesting itself by acute symptoms of

sufficient severity (including severe pain) such that the absence of immediate medical

attention could reasonably be expected to result in . . . [s]erious dysfunction of any

bodily organ or part. . . .”] It would be premature to dismiss plaintiff’s claim against

defendant CRMC at this juncture. Whether or not plaintiff can prove that defendant

CRMC was the cause of his injuries and damages is not considered on demurrer. The

general demurrer must be overruled.

Motion to Strike

No claim for punitive damages may be included in an original complaint “(i)n

any action for damages arising out of the professional negligence of a health care

provider.” (Code Civ. Proc. § 425.13, subd. (a).) Instead, a punitive damages claim in

such a case must be raised in an amended complaint filed with leave of court pursuant

to the procedures required by Code of Civil Procedure section 425.13, i.e., after a

noticed motion at which the plaintiff produces evidence that, if accepted by the trier

of fact, would establish a prima facie showing of “malice, oppression or fraud,” bearing

in mind the “clear and convincing” standard of proof required at trial. (Looney v.

Superior Court (1993) 16 Cal.App.4th 521, 539.) This statute “shift[s] to the plaintiff the

procedural burden that would otherwise fall on the defendant to remove a ‘frivolous’

or ‘unsubstantiated’ claim early in the suit.” (Covenant Care, Inc. v. Superior Court

(2004) 32 Cal.4th 771, 787.)

Under the statute, the term “health care provider” has been construed broadly,

and as generally defined by Code of Civil Procedure section 425.13, subdivision (b),

includes “any clinic, health dispensary, or health facility,” and certainly encompasses

defendant CRMC in this action. Plaintiff has not filed a motion to amend in order to

add a claim for punitive damages. The motion to strike must be granted, and plaintiff

will only be allowed to state the claim if he timely brings such a motion and it is granted.



29

ruling will serve as the order of the court, and service by the clerk of the minute order


Tentative Ruling



30

(30)

Tentative Ruling

Re: Felicia Barrera v. Fruit Avenue Housing Associates LLP





Motion: Defendants’ Motion to Strike Punitive Damage Allegations from First

Amended Complaint

Tentative Ruling:

To deny.

Explanation:

A claim for punitive damages based upon malice may be supported by showing

“despicable conduct which is carried on by the defendant with a willful and conscious

disregard of the rights or safety of others.” (Civ. Code, § 3294, subd. (c)(1); see also

College Hosp. Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.) “‘Despicable’ conduct is

conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it

would be looked down upon and despised by ordinary decent people.” (Mock v.

Michigan Millers (1992) 4 Cal.App.4th 306, 331.) Such labels have been applied to

conduct which is “in blatant violation of law or policy.” (Tomaselli v. Transamerica Ins.

Co. (1994) 25 Cal.App.4th 1269, 1287.)

“‘To establish conscious disregard, the plaintiff must show ‘that the defendant

was aware of the probable dangerous consequences of his conduct, and that he

willfully and deliberately failed to avoid those consequences.’’” (Spinks v. Equity

Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1055, citing Hoch v.

Allied-Signal, Inc. (1994) 24 Cal.App.4th 48, 61.)

Here, plaintiffs allege that defendants knew that plaintiffs had young children

living on the premises, within 75 yards of a community pool. Plaintiffs also allege that,

despite knowing so, plaintiffs’ back door did not lock, plaintiffs’ back patio fence was in

disrepair, the condition of the pool was in violation of statutory and regulatory

requirements, and defendants refused to make any of the necessary repairs. This is

sufficient to allege malice.

Defendants’ conduct can be said to be “vile, base, contemptible, miserable,

wretched or loathsome” and “looked down upon and despised by ordinary decent

people.” (College Hosp. Inc. v. Superior Court, supra, 8 Cal.4th at p. 725.) They refused

to make the necessary repairs, despite knowing that serious personal injury to a child

was likely. Moreover, because defendants are also alleged to have violated state

regulations, their actions were “in blatant violation of law or policy.” (Tomaselli v.

Transamerica Ins. Co., supra, 25 Cal.App.4th at p. 1287.)

31

It can also be argued that defendants acted with conscious disregard. It was

reasonably foreseeable that serious personal injury in the form of drowning would

occur, and yet defendants willfully and deliberately failed to avoid those

consequences.

Defendants cite to G.D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22.

Defendants compare Searle to the case at bar. They argue that, like Searle, plaintiffs

allege only that defendants “might have had notice of the conditions.” (Memo, filed

10/16/18, p. 5 ln 7.) But this argument misrepresents the allegations in the complaint.

Plaintiffs’ allegations are actually specific, factual, and unequivocal. Plaintiffs clearly

allege that defendants had actual knowledge and callous indifference to the life-

threatening hazards presented. Defendants knew that plaintiffs’ door and patio fence,

as well as the pool fence, needed repair and that young children lived in plaintiffs’

apartment, but they refused to make the necessary repairs. Also, unlike Searle, injury

was not a mere possibility. It was foreseeable that serious personal injury such as

drowning would occur, and it did.

Next, defendants argue that plaintiffs’ allegations are insufficient because

malice requires intent. Defendants cite to G.D. Searle & Co. v. Superior Court, supra, 49

Cal.App.3d at p. 31, and Ebaugh v. Radkin (1972) 22 Cal.App.3d 891, 894. In their

moving papers, defendants state that punitive damages “require the most vile of

intentional conduct that is ‘not only willful in the sense of the intentional but [sic] also

accompanied by aggravating circumstances amount[ing] to malice of fact.’” (Memo,

filed 10/16/18, p. 5 lns 21-23.) This argument ignores the remainder of the Searle

holding, wherein the court recognizes an allegation of conscious disregard to be an

“appropriate description of the animus malus which may justify an exemplary damage

award when nondeliberate injury is alleged.” (G.D. Searle & Co. v. Superior Court,

supra, 49 Cal.App.3d at p. 32.) The Searle holding thus expands the definition of

malice, from what it was previously limited to in cases such as Ebaugh. (See also Code

Civ. Proc., § 3294, subd. (c)(1).)

Defendants further argue that plaintiffs’ claim for punitive damages based upon

intentional infliction of emotional distress fails. However, as detailed above,

defendants’ actions are alleged to be outside the bounds of all decency. This is

sufficient.

Finally, defendants argue that plaintiffs’ complaint is too vague to support their

request for punitive damages. However, as noted above, plaintiffs’ allegations are

actually specific, factual, and unequivocal. This too is sufficient.

On reply, defendants discuss a case cited by plaintiffs—Morgan v. Southern

Pacific Trans. Co. (1974) 37 Cal.App.3d 1006. Defendants argue that, unlike Morgan,

there was no probability of injury. However, as stated above, plaintiffs have

adequately pled that the risk of injury was known and appreciated.

Accordingly, defendants’ motion to strike is denied.

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


32



Tentative Ruling



Date post:	25-May-2020
Category:	Documents
Upload:	others
View:	3 times
Download:	0 times

Tentative Rulings for December 12, 2018 Departments 403, 501, … · 2018-12-11 · 1 Tentative...

Documents