Tentative Rulings for December 19, 2019 Departments 403, 501, … · 2019-12-19 · 1 Tentative...

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Tentative Rulings for December 19, 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).)

18CECG02159 McFarland v. Cherry Blossom S-Corporation (Dept. 501 at 3:00 p.m.)

19CECG02715 Marin v. Ali (Dept. 501 at 3:00 p.m.)

17CECG01604 Juarez v. The Testate and Intestate Successors of C.L. Kotarski,

Deceased (Dept. 403 at 3:30p.m.)

17CECG00339 Garibo-Espinoza v. Kromberg (Dept. 403 at 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.

________________________________________________________________

(Tentative Rulings begin at the next page)

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Tentative Rulings for Department 403

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(03)

Tentative Ruling

Re: Brown v. Beverly Healthcare-California, Inc., et al.

Case No. 17CECG04065

Hearing Date: December 19, 2019 (Dept. 501) @ 3:00 p.m.

Motion: Defendant Beverly Healthcare-California’s Motion for

Summary Judgment, or in the Alternative Summary

Adjudication

Defendant Dycora Transitional Health-Clovis, LLC’s Motion

for Summary Judgment, or in the Alternative Summary

Adjudication

Tentative Ruling:

To deny both defendants’ motions for summary judgment and the alternative

motions for summary adjudication, without prejudice, as it appears that plaintiff has not

been properly served at her current address with the motions and she is not competent

to represent herself in the action. (Code Civ. Proc. § 437c.)

To order the Public Guardian’s Office to appear at the hearing to discuss

appointing a guardian or conservator and legal counsel to represent plaintiff’s interests

in the case.

Also, the court intends to take the pending trial date of January 27, 2020 off

calendar, as it does not appear that plaintiff will be ready to go to trial on the presently

set date. The trial date will be reset at a later date when a guardian or conservator

and legal counsel have been appointed for plaintiff.

Explanation:

As defendants point out, plaintiff is 89 years old, has Alzheimer’s disease and

various other serious health conditions, and is not competent to represent her own

interests in the case. (Pardo decl., ¶ 8; Steinberg decl., ¶ 6.) Indeed, plaintiff’s own

complaint states that she is “insane” within the meaning of Code of Civil Procedure

section 352 and lacks the ability to communicate. (Complaint, ¶ 1.) Nevertheless,

plaintiff’s counsel never moved to appoint a guardian ad litem or conservator to act on

behalf of plaintiff in the action. Plaintiff’s counsel also apparently never conducted any

discovery in the case, despite the fact that the action has been pending for two years

and the trial date is only about one month away. (Pardo decl., ¶ 7.)

Recently, plaintiff’s counsel moved to be relieved from his role as plaintiff’s legal

representative, citing a “breakdown in the attorney-client relationship with Plaintiff.”

(August 14, 2019 Declaration Support of Attorney’s Motion to be Relieved as Counsel.)

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The court granted the motion on September 26, 2019, which left plaintiff without any

legal representation or any competent person to represent her interests in the case.

(September 26, 2019 Order Granting Motion to be Relieved as Counsel.) However, the

court granted the motion without being fully apprised by counsel that plaintiff was

incompetent and unable to represent herself. If the court had been made aware of

the plaintiff’s circumstances it would not have granted the order to relieve counsel

without making some provision for plaintiff to at least have a guardian ad litem and

new legal counsel.

Also, plaintiff’s former counsel failed to apprise the court of plaintiff’s current

address when he moved to be relieved, since he gave the Fresno address for Golden

Living Center rather than the Clovis address for Golden Living Center, even though

plaintiff’s counsel knew that plaintiff had been transferred to the Clovis facility in 2013.

(Complaint, ¶ 17.) All notices that have been mailed to plaintiff since the order

granting counsel’s motion to be relieved from representing plaintiff have been returned

by the Post Office as undeliverable, apparently because plaintiff has not lived at the

Fresno facility in several years. The motions for summary judgment were also served to

the Fresno facility’s address, which means that plaintiff has not received any notice of

the pending motions for summary judgment.

Thus, under the circumstances it would be a miscarriage of justice for the court

to grant summary judgment or adjudication in favor of defendants and against plaintiff.

All parties concede that plaintiff is incompetent to represent herself in the action, yet

she has not been appointed a guardian ad litem or conservator, and her own attorney

has essentially abandoned her and left her to her own devices. Even if plaintiff were

competent to represent herself, it does not appear that she has been served at her

current address with the summary motions, or the order relieving her own attorney from

representing her. Therefore, the court intends to deny the motions for summary

judgment without prejudice, as plaintiff has not been properly served with notice of the

motions and, even if she had, she has no ability to defend herself from them at this time.

The court also orders the Public Guardian’s Office to appear at the summary

judgment hearing to discuss appointing a guardian or conservator needs to represent

plaintiff in the action, and whether counsel can be retained to represent plaintiff as

well.

In addition, the court intends to take the January 27, 2020 trial date off calendar,

as it does not appear that plaintiff will be ready to go to trial within a month. The trial

will be reset at a later time, after a guardian ad litem or conservator has been

appointed for plaintiff and she has obtained new legal counsel.

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 12/16/19 .

(Judge’s Initials) (Date)

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(17) Tentative Ruling

Re: Gregori v. Clovis Community Medical Center, et al.

Court Case No. 17CECG03850


Motion: Defendant James Conquest’s Motion for Summary

Judgment/Adjudication

Tentative Ruling:

To deny summary judgment. To grant summary adjudication as to the third

cause of action only.

Explanation:

Burden on Summary Judgment

In ruling on a motion for summary judgment or summary adjudication, the court

must “consider all of the evidence' and all of the 'inferences' reasonably drawn there

from and must view such evidence and such inferences 'in the light most favorable to

the opposing party.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) In

making this determination, courts usually follow a three-prong analysis: identifying the

issues as framed by the pleadings; determining whether the moving party has

established facts negating the opposing party's claims and justifying judgment in the

movant's favor; and determining whether the opposition demonstrates the existence of

a triable issue of material fact. (Lease & Rental Management Corp. v. Arrowhead

Central Credit Union (2005) 126 Cal.App.4th 1052, 1057-1058.)

Second Cause of Action – Battery

Conquest concedes Gregori has raised a triable issue of fact as to whether he

committed civil battery. (Reply Memorandum of Points and Authorities at 1:21-23.)

Consequently the motion should be denied as to the second cause of action.

Third Cause of Action – Violation of Business & Professions Code §§ 7583.35 & 7583.37

Business and Professions Code section 7583.35 provides: “Every licensee,

qualified manager, or a registered uniformed security guard, who in the course of his or

her employment carries tear gas or any other nonlethal chemical agent, shall complete

the required course pursuant to Section 22835 of the Penal Code.” Business and

Professions Code section 7583.37 provides that administrative fines may issue against a

private security guard who carries or uses tear gas or any other nonlethal chemical

agent in the performance of his or her duties unless he or she has in his or her possession

proof of completion of a course in the carrying and use of tear gas or any other

nonlethal chemical agent. (Bus. & Prof. Code, § 7583.37, subd. (d).)

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Conquest has presented undisputed evidence that Conquest carried the

pepper spray in the course of his employment. (UMF No. 1 (2nd issue).) Moreover, the

National Security Enforcement Training Center of California awarded Conquest a

certificate for his completion of a chemical agents course on February 17, 2011, and

the State of California, Department of Consumer Affairs Bureau of Security and

Investigative Services approved and licensed that course. (UMF Nos. 2-3 (2nd Issue).)

Finally, the Academy of Police Science Issued Conquest a Chemical Agents/Tear Gas

Pepper Spray permit on March 2, 2015 and this permit was in force at the time of the

incident. (UMF Nos. 4-5 (2nd Issue).)

Gregori makes no citation to, or argument concerning, the third cause of action

in his opposition. Indeed, he fails to cite either section 7583.35 or section 7583.37.

Instead, he claims Conquest violated Penal Code section 12403.5. Penal Code section

12403.5 was, on January 1, 2012, repealed and reenacted in Penal Code section 22835.

However, neither section is cited in Gregori’s First Amended Complaint. “ ‘[T]he

pleadings delimit the issues to be considered on a motion for summary judgment.

[Citation.]’ [Citation.] Thus, a ‘defendant moving for summary judgment need address

only the issues raised by the complaint; the plaintiff cannot bring up new, unpleaded

issues in his or her opposing papers.’ ” (Laabs v. City of Victorville (2008) 163 Cal.App.4th

1242, 1253.) Accordingly, summary adjudication of the third cause of action in

Conquest’s favor is appropriate.

Fifth Cause of Action – Intentional Infliction of Emotional Distress

The elements of a cause of action for intentional infliction of emotional distress

are (1) the defendant engages in extreme and outrageous conduct with the intent to

cause, or with reckless disregard for the probability of causing, emotional distress; (2)

the plaintiff suffers extreme or severe emotional distress; and (3) the defendant's

extreme and outrageous conduct was the actual and proximate cause of the plaintiff's

extreme or severe emotional distress. (Potter v. Firestone Tire & Rubber Co. (1993) 6

Cal.4th 965, 1001.) “[O]utrageous conduct’ is conduct that is intentional or reckless and

so extreme as to exceed all bounds of decency in a civilized community. (Ibid.) The

defendant's conduct must be directed to the plaintiff, but malicious or evil purpose is

not essential to liability. (Ibid.) Whether conduct is outrageous is usually a question of

fact. (Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004,

1045.) “Generally, conduct will be found to be actionable where the ‘recitation of the

facts to an average member of the community would arouse his resentment against

the actor, and lead him to exclaim, “Outrageous!” ’ ” (KOVR-TV, Inc. v. Superior Court

(1995) 31 Cal.App4.th 1023, 1028.)

Here, Conquest argues he pepper sprayed Gregori and took him to the ground

during a lawful citizen’s arrest. Moreover, pepper spray is widely available, causes only

temporary discomfort, and is non-lethal. Finally, “Conquest’s use of pepper spray was

not outrageous as Mr. Gregori appeared upset and continued to trespass on hospital

property despite repeated requests to leave the premises.” (Memorandum of Points

and Authorities at 13:26-14:13.) A citizen generally has the authority to make a citizen's

arrest. (Pen. Code, § 847, subd. (a); Wang v. Hartunian (2003) 111 Cal.App.4th 744, 748.)

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Triable Issue as to Trespass

Conquest argues that he validly conducted a citizen’s arrest of Gregori under

Penal Code 837(1). Specifically, Conquest claims that Gregori violated Penal Code

section 602, subdivision (o) in his presence by arguing with him for 4 to 5 minutes before

leaving the Medical Center. Section 602, subdivision (o) provides that “[r]efusing or

failing to leave land, real property, or structures belonging to or lawfully occupied by

another and not open to the general public, upon being requested to leave by … the

owner, the owner's agent, or the person in lawful possession” constitutes misdemeanor

trespass. First, Conquest has presented no evidence, nor any undisputed fact, that the

Medical Center was not open to the general public. Second, even assuming that the

Medical Center was not open to the general public, Conquest has not proven a

violation of subdivision (o) merely because Gregori argued for 4 to 5 minutes before

leaving. Nothing in subdivision (o)’s language requires immediate departure.

(Compare Pen. Code, § 602, subd. (l)(1).) Accordingly, there is a triable issue of fact as

to whether Gregori validly committed a trespass at all, undermining Conquest’s claim

his citizen’s arrest was lawful. If Conquest’s citizen’s arrest was unlawful, it could

certainly be said that that his use of pepper spray to effectuate the arrest was

outrageous.

Triable Issue as to Conquest’s Motive and Intent

Conquest’s only evidence as to his intent and motive is contained in his

Declaration: “At no point was it my intention to injure Mr. Gregori or cause him

emotional distress. I was simply flying to protect other patients, staff and visitors of the

hospital and hem to make a citizen’s arrest of Mr. Gregori to do so.” (Ex. O to Todd

Decl., at ¶ 5.) A trial court is authorized to deny a motion for summary

judgment/adjudication “if a material fact is an individual's state of mind, or lack

thereof, and that fact is sought to be established solely by the individual's affirmation

thereof.” (Code Civ. Proc., § 437c, subd. (e).) Here, however, there is other

circumstantial evidence as to Conquest’s state of mind.

According to Gregori’s deposition testimony after Gregori got out his keys and

was arriving at his car, when Conquest pulled up in another vehicle and exited the

vehicle, saying "I'm arresting you!" To which Gregori replied, "For what? You asked me to

leave and I'm leaving. There's my car right there!" Conquest responded, "Too late

mother fucker,” and proceeded to attempt to grab Gregori. (Depo. John Gregori, at

109:1-7; 110:16-20; 113:10-114:4.) Gregori’s assertion that he had his keys out and was

standing at his car when confronted by Conquest and Conquest’s saying it was “too

late” to leave, contradicts Conquest’s assertion that he had to affect a citizen’s arrest

of Gregori to protect anyone. Conquest’s use of profanity can also be interpreted as

meaning the dispute had taken on personal overtones as well.

Accordingly, Conquest’s UMF No. 12 (3rd Issue) is validly disputed. Consequently,

Conquest’s motion for summary adjudication of the cause of action for intentional

infliction of emotional distress fails.

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Claim for Punitive Damages

“ ‘Exemplary or punitive damages are not recoverable as matter of right. Their

allowance rests entirely in the discretion of the jury, and they may be awarded only

where there is some evidence of fraud, malice, express or implied, or oppression.’ ”

(Clark v. McClurg (1932) 215 Cal. 279, 282.) “Since the 1987 amendments to Civil Code

section 3294, oppression, fraud, or malice must be proven by ‘clear and convincing’

evidence.” (American Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96

Cal.App.4th 1017, 1049.)

In the punitive damages context, malice is statutorily defined as either “conduct

which is intended by the defendant to cause injury to the plaintiff,” or “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 American Airlines,

Inc. v. Sheppard, Mullin, Richter & Hampton, supra, 96 Cal.App.4th at p. 1050.) In the

usual case, the question of whether the defendant's conduct will support an award of

punitive damages is for the trier of fact, “since the degree of punishment depends on

the peculiar circumstances of each case.” (Spinks v. Equity Residential Briarwood

Apartments, supra, 171 Cal.App.4th 1004, 1053, citing Hannon Engineering, Inc. v. Reim

(1981) 126 Cal.App.3d 415, 431.) Summary judgment “on the issue of punitive damages

is proper” only “when no reasonable jury could find the plaintiff's evidence to be clear

and convincing proof of malice, fraud or oppression.” (Hoch v. Allied–Signal, Inc. (1994)

24 Cal.App.4th 48, 60–61.)

Battery and intentional infliction of emotional distress, are intentional torts which,

when conducted maliciously, can support punitive damages. As set forth above, the

Court should deny the motion for summary adjudication as to these causes of action.

Conquest nonetheless argues that on this record, “there is no evidence from which a

jury can conclude” that the contact between Conquest and Gregori was anything

more than incidental to the guard’s attempt to get close enough to safely detain

Gregori and that the facts and circumstances surrounding Conquest’s interaction with

Gregori clearly support the position that Conquest was acting out of the course and

scope of his duties to remove Gregori from the hospital premises rather than harboring

any malice or ill will. (Memorandum of Points and Authorities at 18:1-8.) However, as

noted above there is evidence in this record from which a trier of fact could conclude

that Conquest had no valid cause to arrest Gregori and used excessive force due to

personal animus against Gregori. It is therefore inappropriate to summarily adjudicate

Gregori’s claim for punitive damages.

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


(Judge’s initials) (Date)

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(29)

Tentative Ruling

Re: Griffis v. Ikuta, et al.

Superior Court Case No. 19CECG00969

Hearing Date: None. See below.

Motion: Compel

Tentative Ruling:

To take off calendar. (Superior Court of Fresno County, Local Rules, rule 2.1.17.)

Explanation:

Plaintiff failed to comply with Local Rule 2.1.17 prior to filing the instant motion.

The local rule applies to all motions brought pursuant to sections 2016.010 through

2036.050, inclusive, of the California Code of Civil Procedure, except for motions to

compel initial responses to interrogatories, initial requests for production and requests for

admissions to be deemed admitted. The rule applies to the motion filed. Plaintiff did not

file a request for pretrial discovery conference prior to filing the motion, no pretrial

discovery conference was held prior to the filing of the motion, and permission to file

this motion was not expressly granted. Accordingly, the motion is taken off calendar.

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




Tentative Ruling

Issued by: JYH ___ on 12/17/2019__ .


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Re: Pawnee Leasing Corporation v English



Motion: By Plaintiff Pawnee Leasing Corporation for right to attach order

and writ of attachment against Kelly English dba Maverick

Academic Prep Program.

Tentative Ruling:

To grant the application for a right to attach order and to issue the writ of

attachment against Kelly English in the amount of $48,899.61. The undertaking shall be

in the amount of $10,000.00. Proof of undertaking must be filed with the Court before

the writ will be issued.

Explanation:

(Note- as of December 17, 2019, no opposition appears in the Court’s files.)

Plaintiff asks this Court to issue a writ of attachment against Kelly English, dba

Maverick Academic Prep Program in the amount of $55,899.61.

Attachment is a prejudgment remedy that allows a creditor to have a lien on the

debtor’s assets until final adjudication of the claim sued upon. (Code Civ. Proc.,

§481.010, et seq.) By this application, Plaintiff seeks a lien against various items of

property owned by Defendant English, including her deposit accounts, safe deposit

boxes, and real property.

A creditor must follow statutory guidelines in applying for the attachment and

establish a prima facie claim. (Lorber Industries of Calif. v. Turbulence, Inc. (1985) 175

Cal.App.3d 532, 535.)

An attachment may be issued only if the claim sued upon meets the following

requirements: (1) it is a claim for money based on a contract, express or implied; (2) the

contract is for an amount not less than $500; (3) the claim is either unsecured or secured

by personal property; and (4) it is a commercial claim. (Code Civ. Proc., §483.010.)

All of these elements appear to have been met, based on the paper submitted

by Plaintiff: it is a claim on a contract for lease of phone equipment with a value far in

excess of $500, it is secured by personal property (the phone equipment in question is

listed as collateral in the various agreements), and it is a commercial claim.

The procedural requirements for obtaining a writ are:

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(1) The claim upon which the attachment is based is one upon which an

attachment may issue;

(2) Plaintiff has established the probable validity of the claim;

(3) The attachment is not sought for a purposes other than recovery of the

claim upon which the attachment is based;

(4) The amount to be secured by the attachment is greater than zero.

(Code Civ. Proc., §484.090, subd.(a).)

A claim has “probable validity” where “it is more likely than not that the plaintiff

will obtain a judgment against the defendant on that claim.” (Code Civ. Proc.

§481.190.) The evidence presented must be admissible under the applicable rules of

evidence. (Generale Bank Nederland, N.V. v. Eyes of the Beholder Ltd. (1998) 61

Cal.App.4th 1384, 1390.) The Court has the power to determine disputed facts on the

basis of a preponderance of the evidence as disclosed in the affidavits and

declarations. (Hobbs v. Weiss (1999) 73 Cal.App.4th 76, 80.) The court is not required to

accept as true the truth of unopposed testimony. (Bank of America v. Salinas Nissan,

Inc. (1989) 207 Cal.App.3d 260, 273-74.) Any facts asserted in the evidence in support of

the application must be stated “with particularity.” (Code Civ. Proc. §482.040.)

Further, determinations of fact in the attachment proceeding have no effect on

issues in the main action and are inadmissible at trial. (Code Civ. Proc. §484.100.)

Parts three and four of Code section 484.090, subdivision (a) appear to be met

here as well: the attachment appears to be sought for no reason other than to recover

the amount sought, and the amount to be secured is greater than zero.

As to the probably validity of the claim, Plaintiff provides evidence in the form of

a Lease Agreement, entered on October 29, 2018 (Fitzgerald Decl., Exh. 1), an

Addendum to the Lease Agreement, also executed on October 29, 2018 (Fitzgerald

Decl., Exh. 2) and a Guaranty by Defendant, also executed on October 29, 2018

(Fitzgerald Decl., Exh. 1).

Plaintiff’s representative states that Plaintiff does not have possession of the lease

equipment, and that, per Plaintiff’s accounting, the balance owed is $48,899.61.

(Fitzgerald Decl., ¶¶16-18, Exh. 3.) The Declaration also contains evidence that

Defendant has not paid since August 15, 2019 and is, therefore, in default. (Fitzgerald

Decl. ¶¶, 16-17, Exh.3.) Therefore, Plaintiff has shown the probable validity of the claim.

However, in the papers for the writ of attachment, Plaintiff also seeks $5,000 in

attorney’s fees and $2,000 in costs. However, Plaintiff provides no factual basis for the

attorney’s fees or costs in either the declaration or by citation to any case authority.

Therefore, the writ is granted only in the amount of $48,899.61.

Pursuant to Code of Civil Procedure §489.220, an undertaking is required to be

filed in the amount of $10,000.00 before the writ can be issued.

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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



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Tentative Ruling

Re: Barrios v. Varni Brothers Corp.



Motion: Plaintiff’s Motion for Approval of PAGA Settlement

Tentative Ruling:

To grant and approve the settlement.

Explanation:

1. Introduction

Labor Code section 2699, subdivision (a), the Private Attorneys General Act of

2004 (“PAGA”), provides,

Notwithstanding any other provision of law, any provision of this code that

provides for a civil penalty to be assessed and collected by the Labor and

Workforce Development Agency or any of its departments, divisions,

commissions, boards, agencies, or employees, for a violation of this code,

may, as an alternative, be recovered through a civil action brought by an

aggrieved employee on behalf of himself or herself and other current or

former employees pursuant to the procedures specified in Section 2699.3.

In addition, “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.” (Lab. Code, § 2699, subd.

(i)(2).)

2. Notice to LDWA

Labor Code section 2699, subdivision (l)(2) states: “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 LWDA has been served with the motion.

3. Fairness of the Settlement

“[A court must be] provided with basic information about the nature and

magnitude of the claims in question and the basis for concluding that the consideration

being paid for the release of those claims represents a reasonable compromise.”

(Kullar v. Foot Locker Retail, Inc. (2008) 168 Cal. App. 4th 116, 133.)

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“The well-recognized factors that the trial court should consider in evaluating the

reasonableness of a class action settlement agreement include ‘the strength of

plaintiffs' case, the risk, expense, complexity and likely duration of further litigation, the

risk of maintaining class action status through trial, the amount offered in settlement, the

extent of discovery completed and stage of the proceedings, the experience and

views of counsel, the presence of a governmental participant, and the reaction of the

class members to the proposed settlement.’ This list ‘is not exhaustive and should be

tailored to each case.’ Relying on an earlier edition of Newberg on Class Actions, the

court in Dunk asserted that ‘a presumption of fairness exists where: (1) the settlement is

reached through arm's-length bargaining; (2) investigation and discovery are sufficient

to allow counsel and the court to act intelligently; (3) counsel is experienced in similar

litigation; and (4) the percentage of objectors is small.’” (Kullar, supra, at p. 128,

internal citations omitted.)

The court is satisfied that the settlement amount is fair and reasonable.

The settlement was reached through arm’s-length bargaining at mediation.

While plaintiff recovered the entirety of his unpaid wages, the allocation to the

PAGA claim ($75,000) represents 20% of the total maximum possible penalties

($377,280). (See Schwinn Decl., ¶¶ 29, 33, 34.)

This is reasonable in light of the nature of the claims for three reasons. First, only

civil penalties can be recovered by aggrieved employees under PAGA. Unpaid wages

cannot be recovered on behalf of the other aggrieved employees through a PAGA

claim. (ZB, N.A. v. Superior Court (2019) 8 Cal.5th 175.) It is of no import that plaintiff

recovered all of his unpaid wages.

Second, defendant discontinued its challenged pay practices immediately after

being notified of this action. (Schwinn Decl., ¶ 34 fn 1.) This speaks to good faith efforts

by defendant to comply with its obligations under the Labor Code.

Third, it is unlikely the court would have imposed maximum penalties. Defendant

has a strong argument that the maximum penalties are “unjust, arbitrary and

oppressive, or confiscatory” because Plaintiff seeks PAGA penalties for a total of seven

separate Labor Code violations, all of which derive from only two allegedly unlawful

pay practices. “In action by an aggrieved employee …, a court may award a lesser

amount than the maximum civil penalty amount specified by this part if, based on the

facts and circumstances of the particular case, to do otherwise would result in an

award that is unjust, arbitrary and oppressive, or confiscatory.” (Lab. Code § 2699,

subd. (e)(2).)

Attorney’s Fees

“Any employee who prevails in any action shall be entitled to an award of

reasonable attorney’s fees and costs.” (Lab. Code § 2699, subd. (g).) Fee awards of

roughly one-third of the settlement fund are routinely awarded in California state and

federal courts. “[F]ee awards in class actions average around one-third of the

recovery.” (Chavez v. Netflix, Inc. (2008) 162 Cal.App.4th 43, 66, fn. 11.)

15

The settlement agreement provides for payment of $35,000 to compensate

Schwinn for his attorney fees and costs. (Schwinn Decl., ¶ 29.) The attorney fees

incurred total $37,550 based on counsel’s claimed $500 per hour billing rate and 75.1

hours of time spent on the matter. Counsel also incurred $6,233.35 in costs. (Schwinn

Decl., ¶ 30.)

Even if the hourly rate is reduced to a more reasonable $400 per hour, the

amount agreed to represents a reasonable approximation of counsel’s lodestar. And

$35,000 for fees and costs is far less than the average one-third of the $140,000 total

settlement.

The court finds the allocation for attorneys’ fees and costs to be reasonable.

Pursuant to Cal. Rules of Court, Rule 3.1312 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



16


Re: Bremseth v. McKenney


Hearing Date: December 19, 2019 (Dept. 501) @3:00 p.m.

Motion: Defendant’s Motion for Summary Judgment

Tentative Ruling:

To deny.

Explanation:

While plaintiff’s opposition was filed one day late, defendant was able to—and

did—argue on the merits in reply, thus waiving the defect. (Alliance Bank v. Murray,

(1984) 161 Cal.App.3d 1, 7; Carlton v. Quint (2000) 77 Cal.App.4th 690, 697.)

Summary judgment is granted when there is no triable issue as to any material

fact and the moving party is entitled to judgment as a matter of law. As the party

moving for summary judgment, the defendant has the burden to show it is entitled to

judgment concerning all theories of liability asserted by plaintiff. (Lopez v. Superior Court

(1996) 45 Cal.App.4th 705, 717.) The ultimate burden of persuasion on summary

judgment/adjudication rests on the moving party. The initial burden of production is on

defendant to show, by a preponderance of the evidence, that it is more likely than not

that there is no triable issue of material fact. (Aguilar v. Atlantic Richfield (2001) 25

Cal.4th 826, 850.) In determining whether any triable issues of material fact exist, the

court must strictly construe the moving papers and liberally construe the declarations of

the party opposing summary judgment. Any doubts as to whether a triable issue of

material fact exist are to be resolved in favor of the party opposing summary judgment.

(Barber v. Marina Sailing, Inc. (1995) 36 Cal.App.4th 558, 562.)

Only if the moving party meets this initial burden does it shift to the opposing

party, who is then subject to its own burden of production to make a prima facie

showing that a triable issue of material fact exists. (Aguilar v. Atlantic Richfield Co.,

supra, 25 Cal.4th at p. 850.) A prima facie showing is one that is sufficient to support the

position of the party in question. “No more is called for.” (Id. at p. 851.) If the moving

party fails to meet this burden of production, the opposing party has no evidentiary

burden to even oppose the motion. (Consumer Cause, Inc. v. SmileCare (2001) 91

Cal.App.4th 454, 467.)

There is no dispute here that defendant McKenney is the owner of the premises

where plaintiff’s accident occurred, and that the premises was leased to Ahmed

Ghazaly and Zahi Saleh. The copy of the lease did not need to be presented and

authenticated to establish the tenancy, since plaintiff himself testified that he was at

the premises because he had been contacted by them as owners of the restaurant, in

order to “work on their tenant improvements.” He also does not dispute facts which

refer to Messrs. Ghazaly and Saleh as “lessees” (see Facts 14, 18) so he concedes that

17

they leased the premises from defendant, the owner. Therefore, the court declines to

rule on plaintiff’s objection to the lease exhibit, as the evidence was not material to the

disposition of the motion. (Code Civ. Proc., § 437c, subd. (q).)

“A landlord owes a duty of care to a tenant to provide and maintain safe

conditions on the leased premises. [Citation.] This duty of care also extends to the

general public.” (Lopez v. Superior Court, supra, 45 Cal.App.4th at p. 714, internal

quotes and citation omitted.) An owner of real property is not an insurer of safety, but

still the owner does owe “a duty to exercise reasonable care in keeping the premises

reasonably safe.

Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205.)

Defendant makes two contentions on this motion: 1) that he owed no duty to

plaintiff because the stoop and ramp where the incident occurred was not a

dangerous condition; and 2) even assuming it was a dangerous condition, defendant

owed no duty because the condition of the stoop and ramp was open and obvious.

One problem with defendant’s first argument, however, is that he used the

wrong standard in relying on Davis v. City of Pasadena (1996) 42 Cal.App.4th 701 to

argue that the condition of the property must constitute a “substantial risk, as opposed

to a minor, trivial or insignificant risk.” to be considered a “dangerous condition.” (Id. at

p. 704.) The court in Davis was discussing the standard when dealing with “dangerous

condition of public property,” i.e., a governmental entity’s duty question. That standard

is taken directly from Government Code section 830, subdivision (a), which is

completely inapplicable here. As plaintiff points out, this analysis is substantively

different than a private owner’s duty.1 Thus, the court does not accept defendant’s

conclusion that there was no duty to plaintiff because the six to six and one-half inch

rise from the ground to the stoop where plaintiff fell was not a “substantial” risk, but at

best constituted a “minor, trivial or insignificant risk.” The general duty of care still exists

for a private landowner, and the question is whether the allegedly dangerous condition

constitutes an unreasonable risk of harm with the foreseeable use of the property.

(Lopez, supra, 45 Cal.App.4th at p. 714; Kentucky Fried Chicken of Cal., Inc. v. Superior

Court (1997) 14 Cal.4th 814, 827 [noting the “general principal that a defendant owes a

duty not to increase foreseeable risk of harm to another”].)

The condition of the property which caused plaintiff’s injury, as alleged by

plaintiff, consists of the stoop (with the six-inch step-down) and the ramp. The facts as

presented by defendant indicate that, by design, the intended path to the water

heater was the ramp, but because the door opened onto, or toward, the ramp and

needed to be held open to avoid locking people out, it blocked access to the ramp,

which meant that a person needing to walk to the water heater would have to step

1 The court recognizes that cases have held that the trivial defect defense can be asserted by

non-governmental defendants. (See, e.g., Ursino v. Big Boy Restaurants (1987) 192 Cal.App.3d

394, 396, citing Robson v. Union Pac. R. Co. (1945) 70 Cal.App.2d 759 and Graves v. Roman

(1952) 113 Cal.App.2d 584.) However, as discussed herein, the court cannot find on this motion

that the alleged defect is trivial as a matter of law.

18

down from the stoop, and step back up on it when traveling back to the door. The

court finds that the trier of fact should be the one to decide whether the stoop and

ramp configuration presented an unreasonable risk of harm, rather than this being a

“duty” question for the court to decide. “[T]he legal decision that an exception to Civil

Code section 1714 is warranted, so that the defendant owed no duty to the plaintiff, or

owed only a limited duty, is to be made on a more general basis suitable to the

formulation of a legal rule, in most cases preserving for the jury the fact-specific

question of whether or not the defendant acted reasonably under the circumstances.”

(Cabral v. Ralphs Grocery Co. (2011) 51 Cal.4th 764, 773, emphasis in the original.)

Defendant’s second point—that even if the stoop and ramp presented a

dangerous condition he had no duty, since it was open and obvious—implicates only

the landlord’s duty to warn. (Krongos v. Pacific Gas & Electric Co. (1992) 7 Cal.App.4th

387, 393 [where risk encountered is open and obvious, the condition itself serves as a

warning]; Danieley v. Goldmine Ski Associates, Inc. (1990) 218 Cal.App.3d 111, 122.) A

triable issue of fact can still exist as to whether the owner had a duty to remedy the

danger posed by an open and obvious condition of the property. (Osborn v. Mission

Ready Mix (1990) 224 Cal.App.3d 104, 116 [jury instruction that defendant could not be

liable for an “open and obvious” defect was reversible error]; Martinez v. Chippewa

Enterprises, Inc. (2004) 121 Cal.App.4th 1179, 1185 [circumstances of plaintiff's fall on

defendants' wet driveway did not establish absence of duty as a matter of law, thus

precluding summary judgment].)

Also, the court cannot determine from the facts provided by defendant that as

a matter of law the stoop and ramp presented an open and obvious danger. The

photographic evidence presented was of poor quality, and the testimony from plaintiff

that he did not have any “safety concerns” when stepping off and then back onto the

stoop actually undermines finding the condition to be open and obvious. Where

reasonable minds might differ as to whether the condition was open and obvious, it

should be left to the trier of fact rather than determined as a matter of law on summary

judgment. (Kasparian v. AvalonBay Communities, Inc. (2007) 156 Cal.App.4th 11, 25-26

[reasonable minds could differ over whether photographs correctly depicted alleged

defect, precluding summary judgment].)

Finally, the fact that there was an alternative route, by walking from the water

heater to the front of the store, does not change the analysis. Since the court cannot

find as a matter of law that the danger was open and obvious, it cannot conclude that

plaintiff would have been alerted that taking the alternative path was advisable.

Furthermore, even if the failure to take the alternate path might pose an issue of

contributory negligence, that does not warrant relieving defendant of all possible duty,

or breach of duty, with respect to the condition of the property. (Martinez v. Chippewa

Enterprises, Inc., supra, 121 Cal.App.4th at pp. 1184-1186; Donohue v. San Francisco

Housing Authority (1993) 16 Cal.App.4th 658, 665 [Proceeding to traverse obviously wet

stairs in full appreciation of risk “was no more than a species of contributory negligence,

to be considered by the jury in apportioning comparative fault.”]

Since the court’s ruling is not based on plaintiff’s evidence, the court declines to

rule on defendant’s evidentiary objections. (Code Civ. Proc., § 437c, subd. (q).)

19

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


Tentative Ruling



20


(03)

Tentative Ruling

Re: Miller v. Fisher


Hearing Date: December 19, 2019 (Dept. 502)

Motion: Defendant/Cross-Defendant Pearson Properties’ Motion to

Compel Production of Dr. Langford’s Records Pursuant to

Subpoena

Tentative Ruling:

To deny Pearson Properties’ motion to compel production of Dr. Langford’s

records pursuant to subpoena, for lack of personal service of the motion on Dr.

Langford and untimeliness. (Code Civ. Proc. §§ 2020.480, subd.’s (a) and (b); 1987.1.)

Explanation:

First of all, Pearson has not cited to any statutory authority to support its motion to

compel Dr. Langford to produce the documents. However, it seems that Pearson is

relying on either Code of Civil Procedure section 1987.1, or section 2020.480, both of

which authorize the court to make orders compelling compliance with subpoenas.

Under section 1987.1, subdivision (a),

If a subpoena requires the attendance of a witness or the production of books,

documents, electronically stored information, or other things before a court, or at

the trial of an issue therein, or at the taking of a deposition, the court, upon

motion reasonably made by any person described in subdivision (b), or upon the

court's own motion after giving counsel notice and an opportunity to be heard,

may make an order quashing the subpoena entirely, modifying it, or directing

compliance with it upon those terms or conditions as the court shall declare,

including protective orders. In addition, the court may make any other order as

may be appropriate to protect the person from unreasonable or oppressive

demands, including unreasonable violations of the right of privacy of the person.

(Code Civ. Proc., § 1987.1, subd. (a).)

Also, under section 2020.480, subdivision (a),

If a deponent fails to answer any question or to produce any document,

electronically stored information, or tangible thing under the deponent's control

that is specified in the deposition notice or a deposition subpoena, the party

seeking discovery may move the court for an order compelling that answer or

production. (Code Civ. Proc., § 2025.480, subd. (a).)

21

However, under section 2020.480, the motion to compel must be brought within

60 days after the completion of the record of the deposition, and it must be

accompanied by a meet and confer declaration. (Code Civ. Proc. § 2020.480, subd.

(b).) Courts have interpreted “completion of the record of the deposition” to mean

when the objections or responses were served by the deponent where the subpoena is

for business records only. (Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App.4th 123,

132.) In addition, the party moving to compel compliance with the deposition

subpoena must give notice of the motion “to all parties and to the deponent either

orally at the examination, or by subsequent service in writing.” (Code Civ. Proc., §

2025.480, subd. (c).)

Also, where a party serves a business records subpoena on a nonparty for

production of business records, the nonparty has the right to object and refuse to

produce the records, or to move to quash the subpoena or move for a protective

order. (Unzipped Apparel, supra, at p. 132, citing Monarch Healthcare v. Superior Court

(2000) 78 Cal.App.4th 1282, 1284.)

Here, it is unclear whether Pearson is moving to compel compliance with the

subpoena under section 1987.1 or section 2020.480. The subpoena was served under

sections 2020.410 to 2020.440, so it appears that section 2020.480 would be applicable

here. (Exhibit 2 to Pearson’s Motion to Compel.) However, regardless of which statute

Pearson uses to seek relief, it would need to serve the third-party deponent with notice

of the motion.

There is no evidence that Pearson ever served Dr. Langford with the motion. The

proof of service only lists the other parties to the action, not Dr. Langford. Also, since Dr.

Langford has not been joined to the case as a party, service would need to be by

personal delivery so that the court would have jurisdiction over him. Here, the only

service of the motion was by mail, not personal delivery, and in any event Dr. Langford

was apparently never served with notice of the motion.

Also, if the motion is being brought under section 2020.480, it is untimely. Motions

to compel compliance under section 2020.480 must be brought within 60 days of the

service of the response or objection to the subpoena. (Code Civ. Proc. § 2020.2480,

subd. (b); Unzipped Apparel, supra, at p. 132.) Here, Dr. Langford served his objection

on June 1, 2019. (Exhibit 4 to Pearson’s Motion.) However, Pearson did not bring its

motion until November 8, 2019, well over 60 days after service of the objection. Also,

while Pearson did file a pretrial discovery conference request on July 16, 2019, which

tolled the time to bring the motion during the time the pretrial discovery conference

request was pending, the court granted the order allowing the motion to be filed on

September 16, 2019. The court’s order did not toll the deadline for bringing the motion.

Thus, not counting the time during which the pretrial discovery conference

request was pending, about 98 days passed between the service of the objection and

the filing of the motion to compel. Therefore, the motion to compel was not filed within

60 days of service of the objection, and it is untimely. As a result, the court intends to

deny the motion to compel.

22

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: A.M. Simpson on December 16, 2019 .


23


Re: Williams v. BNSF Railway Company



Motions: Plaintiff’s motion to compel further responses

Tentative Ruling:

To grant.

Explanation:

Generally, “in accordance with the liberal policies underlying the discovery

procedures, doubts as to relevance should generally be resolved in favor of permitting

discovery.” (Pacific Tel. & Tel. Co. v. Superior Court (1970) 2 Cal.3d 161, 173; Perkins v.

Superior Court (1981) 118 Cal.App.3d 761, 765 [“[d]iscovery is to be liberally allowed.”].)

Also, a demanding party may promptly move for an order compelling a further

response to requested discovery if responses is incomplete, inadequate or evasive.

(CCP § 2031.310.) Additionally, the objecting party has the burden of showing the

discovery request was improper. (see Coy v. Superior Court (1962) 58 Cal.2d 210, 220.)

Here, as indicated in the service records accompanying the opposition, BNSF

locomotives traverse numerous states and receive service at numerous locations.

Moreover, it appears that the service records can be found in one source (the

database). Accordingly, it neither appears unreasonable nor overly burdensome to

remove the location restriction of the database search. The motion is granted. The

Court intends to sign the proposed order.

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: A.M. Simpson on 12-18-19 .


24


Re: Farrington v. Rohlen



Motion: By Defendant Kuldeep Gill demurring to the Fourth and Fifth Causes

of Action in Plaintiffs’ Fourth Amended Complaint.

Tentative Ruling:

To continue the hearing to 3:30 p.m. on Wednesday, January 22, 2020 in

Department 502. Parties may file opposition or reply briefs, as appropriate, in

accordance with Code of Civil Procedure §1005, subdivisions (b) and (c) based on the

new hearing date.

Explanation:

In their opposition to the demurrer, Plaintiffs objected to the demurrer, arguing

that it was untimely and that Dr. Gill failed to meet-and-confer. Plaintiffs thereupon

sought to continue the motion to January 22, 2020, a date already reserved for a

hearing on demurrers brought by other defendants. Although contesting Plaintiffs’

version of events, Defendant Gill does not object to a continuance of the hearing on

the demurrer to that date.

Therefore, the Court will order that the hearing date on Dr. Gill’s demurrer shall

be continued to 3:30 p.m. on Wednesday, January 22, 2020 in Department 502. Parties

may file opposition or reply briefs, as appropriate, in accordance with Code of Civil

Procedure §1005, subdivisions (b) and (c) based on the new hearing date. Parties are

encouraged to engage in meet and confer efforts to resolve any issues potentially

raised by the demurrer.

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



25


Re: Saint-Fleur v. County of Fresno, et al.



Motion: Plaintiff’s Motion for Attorney’s Fees and Costs Incurred on Appeal

Tentative Ruling:

To grant plaintiff attorney’s fees of $6,230.00; to award costs in the amount of

$969.60, and to lift the stay on plaintiff’s prior motion for fees. Plaintiff’s prior motion for

pre-appeal fees is hereby set for Tuesday, February 4, 2020 at 3:30 p.m. in Department

502.

Explanation:

The California Public Records Act (“CPRA”) is contained in Chapter 3.5 of Title 1

of the Government Code. (Gov. Code, § 6251.) The California Supreme Court observed

that the CPRA “was enacted for the purpose of increasing freedom of information by

giving members of the public access to information in the possession of public

agencies.” (Filarsky v. Superior Court (2002) 28 Cal.4th 419, 425.) Specifically, section

6259, subdivision (d), provides: “The court shall award court costs and reasonable

attorney's fees to the requester should the requester prevail in litigation filed pursuant to

this section.” (Gov. Code, § 6259, subd. (d).) An award of costs and attorney fees

pursuant to this provision is mandatory if the plaintiff prevails. (Filarsky v. Superior Court,

supra, 28 Cal.4th 419, 427.)

Here, the Fifth District Court of Appeal determined that the plaintiff was the

prevailing party on the CPRA for the purposes of the appeal and awarded costs:

“Considering the relief obtained by plaintiff in light of the above record, we believe

substantial evidence supports the trial court's pragmatic factual conclusion that plaintiff

was the prevailing party. … [¶] The order of the trial court is affirmed. Costs on appeal

are awarded to plaintiff.” Where entitlement to section 6259 fees is shown, the

prevailing party may, at the appropriate time, request fees attributable to a subsequent

appeal. “[B]ecause contractually authorized attorney fees are now listed as costs

under Code of Civil Procedure section 1033.5, … they may either be requested of the

appellate court while the appeal is pending, or of the trial court upon issuance of the

remittitur. The trial court has jurisdiction to award them, regardless of the lack of specific

instructions in the opinion or the remittitur.” (Harbour Landing-Dolfann, Ltd. v. Anderson

(1996) 48 Cal.App.4th 260, 264–265.)

The lodestar method applies to awards of legal fees absent an express legislative

indication to the contrary. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1134-1136.)

26

Lodestar Fees

A court assessing attorney’s fees begins with a touchstone or lodestar figure,

based on the ‘careful compilation of the time spent and reasonable hourly

compensation of each attorney . . . involved in the presentation of the case." (Serrano

v. Priest (Serrano III) (1977) 20 Cal.3d 25, 48.) Here, plaintiff seeks a lodestar of $5,430.00

for fees incurred on appeal and an estimated $800 for the time spent preparing the

instant fee motion and anticipated reply. As our Supreme Court has repeatedly made

clear, the lodestar consists of "the number of hours reasonably expended multiplied by

the reasonable hourly rate. . . ." (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084,

1095, italics added; Ketchum v. Moses, supra, 24 Cal.4th at 1134.) The California

Supreme Court has noted that anchoring the calculation of attorney fees to the

lodestar adjustment method "'is the only way of approaching the problem that can

claim objectivity, a claim which is obviously vital to the prestige of the bar and the

courts.' " (Serrano III, supra, 20 Cal.3d at p. 48, fn. 23.)

Number of Hours Reasonably Expended

While the fee awards should be fully compensatory, the trial court's role is not to

simply rubber stamp the defendant's request. (Ketchum v. Moses, supra, 24 Cal.4th at p.

1133.) Rather, the court must ascertain whether the amount sought is reasonable.

(Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 361.) However, while an attorney fee

award should ordinarily include compensation for all hours reasonably spent, inefficient

or duplicative efforts will not be compensated. (Christian Research Institute v. Alnor

(2008) 165 Cal.App.4th 1315, 1321.)

The court finds nothing improper, inefficient, excessive or redundant with

plaintiff’s instant fee request.

Reasonable Hourly Compensation

Reasonable hourly compensation is the "hourly prevailing rate for private

attorneys in the community conducting noncontingent litigation of the same type"

(Ketchum v. Moses, supra, 24 Cal.4th at p. 1133.) Ordinarily, "'the value of an attorney's

time . . . is reflected in his normal billing rate.'" (Mandel v. Lackner (1979) 92 Cal. App. 3d

747, 761.) The hourly rate of Amy R. Lovegren-Tipton, an attorney with more than ten

years’ experience, of $250 is reasonable.

Failure to Attach Billing Records

Defendants object to plaintiff’s fee motion on the ground it fails to attach

detailed billing records. However, the absence of billing records detailing the hours

spent and services provided does not preclude finding that counsel claims a

reasonable number of hours for work performed. (Bernardi v. County of Monterey (2008)

167 Cal.App.4th 1379.) Here, paragraph 9 of Amy R. Lovegren-Tipton’s Declaration

details seven events in the timeline of the appeal from responding to the designation of

the record, to filing questionnaires and briefs, waiving oral argument, and reviewing the

appellate opinion, and pairs each task with a total cost in attorney’s fees and actual

costs incurred. The Declaration is made under penalty of perjury and this is sufficient to

27

allow the court to ascertain that the time spent in opposing the appeal was reasonable

and necessary, as was the preparation of the instant fee motion and reply.

Stayed Prior Motion for Fees

Since the issuance of the remittitur on September 16, 2019, there is no

impediment to lifting the stay on the prior motion to determine fees incurred pre-

appeal.

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




Tentative Ruling



(29)

28

Tentative Ruling

Re: Northern California Collection Services, Inc. v. Bryant, et al.



Motion: Set aside

Tentative Ruling:

To grant Defendant Bryant’s motion to set aside the default and default

judgment entered against him. (Code Civ. Proc. §473.) Defendant Bryant to file his

answer within 5 days of the clerk’s mailing of the minute order.

Explanation:

The court may relieve a party from a judgment, order, or other proceeding taken

against him or her as a result of mistake, inadvertence, surprise, or excusable neglect,

where the application for relief is made within six months of entry of the judgment,

order, or other proceeding. (Code Civ. Proc. §473(b).) Application for relief may be

based on either (1) an attorney affidavit of fault, in which event relief is mandatory; or

(2) declarations or other evidence showing mistake, inadvertence, surprise or excusable

neglect, in which case relief is discretionary. (Ibid.) Further, the court may set aside any

void judgment or order. (Code Civ. Proc. §473(d).)

“Compliance with the statutory procedures for service of process is essential to

establish personal jurisdiction. Thus, a default judgment entered against a defendant

who was not served with a summons in the manner prescribed by statute is void. Under

section 473, subdivision (d), the court may set aside a default judgment which is valid

on its face, but void, as a matter of law, due to improper service.” (Ellard v. Conway

(2001) 94 Cal.App.4th 540, 544, citations, quotation marks, and brackets omitted.)

Though the filing of a proof of service creates a rebuttable presumption that

service was proper (Lebel v. Mai (2012) 210 Cal.App.4th 1154, 1163), “a declaration of

non-service if credited by the trial court can rebut the presumption of proper service[.]”

(Fernandes v. Singh (2017) 16 Cal.App.5th 932, 941, fn. 6; see Peralta v. Heights Medical

Center, Inc. (1988) 485 U.S. 80, 84 [“a judgment entered without notice or service is

constitutionally infirm.”].)

Where “service of a summons has not resulted in actual notice to a party in time

to defend the action and a default … has been entered against him or her in the

action, he or she may serve and file a notice of motion to set aside the default or

default judgment and for leave to defend the action. The notice of motion shall be

served and filed within a reasonable time, but in no event exceeding the earlier of: (i)

29

two years after entry of a default judgment against him or her; or (ii) 180 days after

service on him or her of a written notice that the default or default judgment has been

entered.” (Code Civ. Proc. §473.5(a); see Trackman v. Kenney (2010) 187 Cal.App.4th

175, 180 [defendant need not show that he or she did anything improper, defendant

“simply asserts that he or she did not have actual notice”].) Actual knowledge is to be

strictly construed, to support the policy of liberally granting relief so that cases may be

resolved on their merits. (Ellard, supra, 94 Cal.App.4th at p. 547.) It has been held that

even where a defendant has knowledge of an action, it is inadequate to show “actual

knowledge” if the defendant has not received process. (Olvera v. Olvera (1991) 232

Cal.App.3d 32, 40.)

Last, “it is the policy of the law that every case should be heard on its merits, and

section 473 is a remedial provision to be liberally construed to the end that cases be

disposed of upon their merits; that for these reasons a reviewing court listens more

readily to an appeal for an order denying relief than one granting relief; and that where

there is any doubt as to whether a default should be set aside such doubt should be

resolved in favor of the application.” (Gore v. Witt (1957) 149 Cal.App.2d 681, 685.)

In the instant action, Plaintiff substitute served Defendant by serving Defendant’s

brother, Douglas Bryant. Service on Douglas appears to have been technically proper,

as he was over the age of 18, and the address is Defendant Bryant’s actual residence.

Defendant submits his own declaration, in which he states he did not receive

any documents from State Fund or Plaintiff regarding the instant action, including the

summons and complaint (S. Bryant decl., ¶7); and that until his bank account was

levied in September 2019, he had no knowledge that an action had been filed against

him (ibid.). Defendant also submits the declaration of Douglas Bryant, who states that at

some time in February 2019, he answered the door and a woman handed him a manila

envelope and stated to Douglas that he had been served; that the woman asked him

his name and after answering that his name was “Doug or Douglas,” the woman

retrieved the manila envelope from Douglas, and left. (D. Bryant decl., ¶3.) Douglas

states that the woman left no papers with him, and there have been no other

occurrences wherein anyone attempted to serve him papers. (Id. at ¶¶ 3-4.) Defendant

states that he never received service of process. (S. Bryant decl., ¶7.)

Defendant’s default was entered on April 15, 2019; and judgment entered on

April 16, 2019. It appears from Defendant’s and his brother’s declarations, that the

default and default judgment are void as a matter of law due to improper service.

Accordingly, Defendant’s motion is granted.

30





Tentative Ruling

Issued by: A.M. Simpson on 12-18-19 .


31



Re: Martinez v. Valtierra



Motion: Kratos Properties, LLC and Antonio Valtierra’s Motion to File

Compulsory Cross-Complaint

Tentative Ruling:

To grant, with defendant given 10 days’ leave to file the cross-complaint. The

time in which the cross-complaint can be filed will run from the date of service of this

order by the clerk.

Explanation:

The proposed cross-complaint, as it pertains to plaintiff Martinez, may be a

compulsory one. (Code Civ. Proc. § 426.30.) Leave to file a cross-complaint “shall” be

granted so long as defendant is acting in good faith. (Code Civ. Proc. § 426.50; see

Silver Organizations Ltd v. Frank (1990) 217 Cal.App.3d 94, 98-99 [factors such as

oversight, inadvertence, neglect, mistake or other cause, are insufficient grounds to

deny the motion unless accompanied by bad faith]; Carroll v. Import Motors, Inc. (1995)

33 Ca1.App.4th 1429, 1436; Foot's Transfer & Storage Co. v. Superior Court (1980) 114

Cal.App.3d 897, 904 [“It is preferable that the parties have their day in court.”].) This is

especially so given the drastic consequence of denying leave to file a compulsory

cross-complaint.

In the instant case, it does not appear that defendant acted in bad faith in not

filing the cross-complaint at the time of the answer. It also does not appear that

plaintiff will be prejudiced in any way by the granting of this motion, since her ability to

challenge the validity of the cross-complaint is not foreclosed.





Tentative Ruling

Issued By: KAG on 12/16/19.


32


Re: Fresno County Public Guardian v. Brar Financial Services,

Inc. et al.



Motion: Demurrer to Complaint

Tentative Ruling:

To overrule. (Code Civ. Proc. § 430.10(d).)

Explanation:

Plaintiff is a division of the County of Fresno, which has been appointed

Conservator of the Estate of David Silnitzer. According to the complaint, David Silnitzer

was the victim of financial elder abuse at the hands of two woman, Christina Alvarado

and Brenda Denning. The complaint alleges that Silnitzer suffered from dementia, and

less than a year after his wife passed away, he became entangled with Alvardo, who

has a history of arrests for prostitution and possession for sale of controlled substances.

At Brar Financial Services, Inc., dba Clovis Check Cashing (“Clovis Check”), Alvarado

caused Silnitzer to cash at least $1,522,377.54 in checks between March 2, 2017 and

September 2017. Clovis Check collected approximately $60,105.27 in fees from cashing

Silnitzer's checks. At California Check Cashing Stores, LLC (“California Check”),

Alvarado caused Silnitzer to cash a series of checks, dividends and stocks totaling

$2,232,466.08 from November 21, 2017 to July 25, 2018. California Check collected

approximately $67,000 in fees from cashing Silnitzer's checks.

California Check demurs on the ground of misjoinder of parties. Code of Civil

Procedure section 430.10(d) provides for objection to a complaint by demurrer when

there is a defect or misjoinder of parties. Code of Civil Procedure section 379(a)(1)

provides that “[a]ll persons may be joined in one action as defendants if there is

asserted against them: . . . Any right to relief jointly, severally, or in the alternative, in

respect of or arising out of the same transaction, occurrence, or series of transactions or

occurrences and if any question of law or fact common to all these persons will arise in

the action.”

Clearly the transactions were part of a singular scheme being perpetrated by

Alvarado. The series of transactions and occurrences are obviously related, even if

there is no connection between the two named defendants. The argument

concerning the timing and location of the transactions therefore lacks merit. The

differences between the instruments presented to the two check cashing businesses is

a distinction without a difference. The requirements for financial elder abuse are that

the victim be deprived of real or personal property. (Welf. & Inst. Code § 15610.30). The

court finds that on its face the complaint alleges injury arising out of a “series of

transactions or occurrences” with common questions of law or fact.

33

It is unnecessary to address the question of prejudice.

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

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

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

order.

Tentative Ruling

Issued By: KAG on 12/18/19.


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