Tentative Rulings for February 20, 2020 Departments 403 ... · 2/20/2020 · Carbide Indus. (USA)...

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Tentative Rulings for February 20, 2020

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).)

18CECG03518 Muskrat v. Suburban Propane, L.P. (Dept. 502)

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

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

19CECG03554 Chamlian v. Jebian is continued to March 5, 2020 at 3:30 p.m. in

Dept. 403.

19CECG04593 Ashley v. Slatic, et al. is continued to March 5, 2020 at 3:30 p.m. in

Dept. 403

________________________________________________________________

(Tentative Rulings begin at the next page)

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Tentative Rulings for Department 403 (30)

Tentative Ruling

Re: Jaskaran Sihota v. Bhajan Sihota

Superior Court Case No. 18CECG01393

Hearing Date: February 20, 2020 (Dept. 403)

Motions: I. Plaintiffs’ Motion to Confirm Arbitration Award

II. Defendants’ Motion to Vacate Arbitration Award

Tentative Ruling:

To grant plaintiffs’ motion to confirm and to deny defendants’ motion to vacate.

Plaintiffs are directed to submit to this court, within 5 days of service of the minute order,

a proposed judgment consistent with the court's order.

Explanation:

I. Motion to Confirm

Any party to an arbitration in which an award has been made may petition the

court to confirm the award. The petition shall name as respondents all parties to the

arbitration and may name as respondents any other person bound by the arbitration

award. (Code Civ. Proc., §1285.)

A petition shall: (a) set forth the substance or have attached a copy of the

agreement to arbitrate unless the petitioner denies the existence of such an

agreement; (b) set forth the names of the arbitrators; and (c) set forth or have

attached a copy of the award and the written opinion of the arbitrators, if any. (Code

Civ. Proc., §1285.4.)

If a petition is duly served and filed, the court shall confirm the award as made,

whether rendered in this state or another state, unless it corrects the award and

confirms it as corrected, vacates the award or dismisses the proceeding. (Code Civ.

Proc., §1286.)

Here, the motion to confirm conforms to the requirements set forth in the Code

of Civil Procedure. In accordance with Code of Civil Procedure section 1285, the

moving papers name all parties to the arbitration. Plaintiffs are identified as: Jaskaran

Sihota, Kewal Sihota, and Jaswinder Kaur. Defendants are identified as: Bhajan Sihota,

Jatinder Sihota, Balvinder Kaur, Bhupinder Sihota, and Ajitpal Singh.

In accordance with Code of Civil Procedure section 1285.4: (a) the agreement

to arbitrate is found at Exhibit A of the Webb declaration filed on November 13, 2019, in

support of the motion to confirm (Webb Dec., filed: 11/13/19, Ex. A); (b) the name of

the arbitrator is set out in the supporting memorandum and the Webb declaration, i.e.

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Hon. Howard Broadman (ret.) (Memo, filed: 11/13/19 p1 ln 27; Webb Dec., filed:

11/13/19 ¶5.); (c) a copy of the Interim Arbitration Award is found at Exhibit C of the

Webb declaration (Webb Dec., filed: 11/13/19, Ex. C); and (d) a copy of the Final

Arbitration Award is found at found at Exhibit G of the Webb declaration, filed on

February 5, 2020 in support of the opposition to defendants’ motion to vacate. (See

Webb Dec., filed: 2/5/2020, Ex. G.)

Finally, in accordance with Code of Civil Procedure section 1286, the motion was

duly filed and served on November 13, 2019. An amended motion to confirm was filed

and served on January 27, 2020.

II. Motion to Vacate

Code of Civil Procedure Section 1286.2, subdivision (a)(4) gives the court the

power to vacate an award when “the arbitrator exceeded his powers and the award

cannot be corrected without affecting the merits of the decision.” (Code Civ. Proc., §

1286.2, subd. (a)(4).)

However, the arbitrator's view of the scope of his or her powers and issues

submitted for arbitration receives the same judicial deference as the arbitrator's

determination on the merits. (Greenspan v. LADT, LLC (2010) 185 Cal.App.4th 1413,

1437.) Moreover, the parties may submit for decision issues they were not contractually

compelled to submit to arbitration. In such event, courts look both to the contract and

to the scope of the submissions to determine the arbitrator's authority. (Kelly Sutherlin

McLeod Architecture, Inc. v. Schneickert (2011) 194 Cal.App.4th 519, 529; see also

Porter v. Golden Eagle Ins. Co. (1996) 43 Cal.App.4th 1282, 1291.) Albeit, “[a] party

cannot wait until after an award is made to claim that an issue expressly presented to

the arbitrator for decision is beyond his [or her] authority.” (J.C. Gury Co. v. Nippon

Carbide Indus. (USA) Inc. (2007) 152 Cal.App.4th 1300, 1302.)

Here, defendants cite to section 1286.2 subdivision (a)(4), to support their

argument that the arbitrator exceeded his powers. Specifically, defendants argue that

because only Bhajan was a party to the LLC Operating Agreement, it was in excess of

the arbitrator’s powers to bind the remaining defendants to a joint and several award.

Defendants also argue that the arbitrator lacked jurisdiction over the Kamm and

Mountainview properties because they were not assets of the LLC.

Defendants’ arguments are unpersuasive. First, the evidence shows that the

arbitrator believed his powers encompassed the issues in question. In the Interim

Arbitration Award, the arbitrator stated that before him were “issues involving the

conclusion of the SSS Farming Venture regarding the accounting and various other

claims reflected in the Complaint filed by Plaintiffs on April 20, 2018. Furthermore, before

the Arbitrator were outstanding issues between the Toronto Group and Bhajan involving

the dissolution of SSS International, LLC . . .” (Webb Dec., filed: 11/13/19 Ex. C pp 1-2.)

The arbitrator’s view of the scope of his powers, is also supported by the

evidence. The issues in question were submitted to the arbitrator for decision.

Defendants themselves brought a petition to compel arbitration of all claims alleged in

the complaint. In so doing, defendants acknowledged that only Bhajan Singh was a

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party to the SSS Operating Agreement, but the remaining defendants expressly

stipulated to arbitration. (See Petition, filed: 7/2/18 ¶ 3.) And, it is undisputed that:

Bhajan Sihota, Jatinder Sihota, Balvinder Kaur, Bhupinder Sihota, and Ajitpal Singh, were

all named as defendants in the complaint.

In the petition to compel arbitration, defendants also posited that the arbitration

agreement required defendants and plaintiffs to arbitrate all claims, in their entirety.

(Petition, filed: 7/2/18 ¶ 3.) And again, in the complaint plaintiffs alleged causes of

action for: breach of contract, fraud, misrepresentation, breach of fiduciary duty,

conversion, an accounting, and breach of the covenant of good faith and fair dealing.

In other words, not all claims arose from the SSS Operating Agreement. Some claims

arose from other oral and written agreements between the parties, and some claims

arose from fraudulent actions unrelated to the SSS Operating Agreement. The

complaint also included specific claims for the Kamm and Mountainview properties,

including accounting for rents and agricultural profits.

On July 27, 2018, the parties confirmed their agreement to arbitrate all claims – in

their entirety. On said date, the parties stipulated to proceed to arbitration. In so doing,

they agreed “to arbitrate the case.” (See Order, filed: 7/27/18 ¶2.) They did not restrict

their agreement to part of the case, or to certain defendants.

On February 21, 2019, defendants reaffirmed and ratified the jurisdiction of the

arbitrator by signing another stipulation. It granted jurisdiction of all claims and any that

arose in discovery to the arbitrator, Hon. Howard Broadman (ret.). (Webb Dec., filed:

12/3/19 Ex. C.)

Finally, there is no evidence that defendants ever raised their concerns before

the arbitrator in this matter. And as stated above, “[a] party cannot wait until after an

award is made to claim that an issue expressly presented to the arbitrator for decision is

beyond his [or her] authority.” (J.C. Gury v. Nippon, supra, 152 Cal.App.4th at p. 1302.)

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

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

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

will constitute notice of the order.

Tentative Ruling

Issued By: RTM on 2/18/20 .

(Judge’s initials) (Date)

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(2)

Tentative Ruling

Re: Amaral v. Kurnosoff

Superior Court Number: 18CECG00749


Motion: Petition to compromise minor’s claim

Tentative Ruling:

To grant. Order signed. Hearing off calendar.

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

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

notice of the order.

Tentative Ruling



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(27) Tentative Ruling

Re: The Auger Group, INC. v. Juanita Martinez



Motions: Demurrer to the Answer

Tentative Ruling:

To sustain the demurrer with defendants granted 20 days leave to file a first

amended answer. (CCP § 430.20.) The time in which the answer can be amended will

run from service by the clerk of the minute order. New allegations in the first amended

answer are to be set in boldface type.

Explanation:

The general rule is that the same pleading of “ultimate facts” rather than

evidentiary matter or legal conclusions is required in pleading an answer as in pleading

a complaint. The answer must aver facts “as carefully and in as much detail as the

facts which constitute the cause of action and which are alleged in the complaint.”

(FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 384, quoting Pomeroy,

Code Remedies (5th ed. 1929) § 563, at p. 917.) Conclusions of law are not sufficient to

state a valid defense, and will not withstand a general demurrer. (FPI Development,

Inc. v. Nakashima, supra, 231 Cal.App.3d at 384.)

In this case, the answer contains no facts and thus is subject to the demurrer.

However, considering the liberal allowance for amendment, leave to amend is

granted. Defendant is granted 20 days leave to amend to file an amended answer.

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



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(2)

Tentative Ruling

Re: Garcia v. Le

Superior Court Number: 19CECG01773


Motion: Petition to compromise minor’s claim

Tentative Ruling:

To grant. Orders signed. Hearing off calendar.





Tentative Ruling



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Re: Martinez v. BMW of North America, LLC

Case No. 19CECG01243


Motion: By Plaintiffs for leave to file a First Amended Complaint.

Tentative Ruling:

To grant the motion. Plaintiffs shall file the proposed First Amended Complaint

within five (5) days of notice of this order. Plaintiffs are to perfect service in accordance

with the applicable provisions of the Code of Civil Procedure.

Explanation:

Plaintiffs seek leave to file a First Amended Complaint to correct the Vehicle

Identification Number (VIN) for the automobile that is subject to the claims under the

Song-Beverly Act.

Defendant filed a late opposition, noting in the supporting declaration that it did

not receive the moving papers. The Court would be inclined to continue the hearing to

allow Plaintiff to file a reply brief should Plaintiff request oral argument and seek such a

continuance at the hearing.

The court’s discretion will usually be exercised liberally to permit amendment of

the pleadings. (Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939.) If a motion to amend is

made in a timely fashion, and the granting of the motion will not prejudice the

opposing party, it is error to refuse to grant the motion. (Morgan v. Superior Court (1959)

172 Cal.App.2d 527, 530.) In considering whether to grant a motion for leave to amend

a pleading, prejudice can result where there is a delay in trial along with, for example,

a loss of critical evidence, added costs of preparation, and/or increased burden of

discovery. (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-88.)

The Court will not normally consider whether the cause of action is legally

sufficient on a motion to amend, leaving that for challenge by a subsequent demurrer.

(Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048.) The Court

therefore expresses no opinion on the validity of any of the factual or legal claims

made in the proposed First Amended Complaint.

In supporting a motion for leave to amend a moving party must also attach a

declaration specifying “(1) the effect of the amendment; (2) why the amendment is

necessary and proper; (3) when the facts giving rise to the amended allegations were

discovered; and (4) the reasons why the request for amendment was not made

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earlier.” (Cal. Rule of Ct. 3.1324, subdivision (b).). The declaration of Amy Morse in

support of the motion largely meets these requirements.

Defendant opposes the motion on three grounds. First, Defendant argues that

the motion is defective insofar as it violates California Rule of Court 3.1324, subdivision

(a)(2) and (3) by failing to provide the proposed deleted or new allegations “by page,

paragraph, and line number.” While this would have been helpful and preferable, it

appears that the proposed First Amended Complaint attached as Exhibit D to the

Declaration of Amy Morse, shows the changes by setting them in boldface typeset.

Again, while compliance with Rule of Court 3.1324 is preferred, Defendant has pointed

to no authority that non-compliance requires denying the request for leave to amend.

Second, Defendant argues that Plaintiffs delayed three months after learning of

the issue with the VIN number before filing the instant motion. Defendant relies on

Permalab-Metalab Equipment Corp. v. Maryland Cas. Co. (1972) 25 Cal.App.3d 465,

472 for the proposition that a Court has discretion to deny an amendment when there is

a lack of diligence or prejudice to the other party. However, here there has only been a

three-month delay, and Defendant has identified no prejudice caused by the delay

itself. Defendant is correct that it expended resources to determine that the original VIN

was inappropriate, but has pointed to no case authority for the proposition that this is

the kind of prejudice that would warrant a denial of the motion.

Finally, Defendant argues that Plaintiffs have not provided “very satisfactory

evidence of their mistake” with respect to the discrepancy in the Vehicle Identification

Numbers. (American Advertising & Sales Co. v. Mid-Western Transport (1984) 152

Cal.App.3d 875, 878-79.) In American Advertising, the Court ruled that “[t]he well-

established rule is that a proposed amendment which contradicts allegations in an

earlier pleading will not be allowed in the absence of ‘very satisfactory evidence‘ upon

which it is clearly shown that the earlier pleading is the result of mistake or

inadvertence.” (Id. at 879 - internal quotations and citations omitted.) However, here,

the proposed amended pleading merely corrects what appears to be a mistake,

instead of an outright contradiction. The trial court in American Advertising was faced

with a situation where a CEO had purportedly misidentified the identity of a subsidiary

company in a verified complaint. “Courts are understandably suspicious of a party's

belated claim of mistaken admission of facts where the party has had unrestricted

access to the facts, presumptive knowledge of what occurred, and several

opportunities to present the correct facts.” (Id. at 879.) Here, Plaintiff is taking the

opportunity to correct what appears to be an inadvertent mistake at the first

opportunity. Therefore, Plaintiff does not need to present “very satisfactory evidence” to

obtain leave to amend the pleading.

Defendant also makes several requests for clarification as to Plaintiffs’ claims, but

there appears to be no basis for these clarifications at this stage.

For all these reasons, the motion is granted.

Plaintiffs will have five (5) court days from notice of this order in which to file the

proposed First Amended Complaint. Plaintiffs are to perfect service in accordance with

the applicable provisions of the Code of Civil Procedure.

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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

service by the clerk will constitute notice of the order.

Tentative Ruling



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(29)

Tentative Ruling

Re: Thomas Rocha, et al. v. U-Haul Co. of California, et al.



Motion: Plaintiffs’ petition to vacate arbitration award

Tentative Ruling:

To deny Plaintiffs’ petition to vacate the final arbitration award. (Code Civ. Proc.

§1286.2.) To confirm the award. (Code Civ. Proc. §1286.)

Explanation:

Code of Civil Procedure section 1286.2, subdivision (a) provides:

Subject to Section 1286.4, the court shall vacate the award if the court

determines any of the following:

(1) The award was procured by corruption, fraud or other undue means.

(2) There was corruption in any of the arbitrators.

(3) The rights of the party were substantially prejudiced by misconduct of

a neutral arbitrator.

(4) The arbitrators exceeded their powers and the award cannot be

corrected without affecting the merits of the decision upon the

controversy submitted.

(5) The rights of the party were substantially prejudiced by the refusal of

the arbitrators to postpone the hearing upon sufficient cause being shown

therefor or by the refusal of the arbitrators to hear evidence material to

the controversy or by other conduct of the arbitrators contrary to the

provisions of this title.

(6) An arbitrator making the award either: (A) failed to disclose within the

time required for disclosure a ground for disqualification of which the

arbitrator was then aware; or (B) was subject to disqualification upon

grounds specified in Section 1281.91 but failed upon receipt of timely

demand to disqualify himself or herself as required by that provision.

However, this subdivision does not apply to arbitration proceedings

conducted under a collective bargaining agreement between employers

and employees or between their respective representatives.

In the instant petition, Plaintiffs argue that “the Court erred by rejecting Plaintiffs’

motion to file a Second Amended Complaint based on its mistaken assumption that

PAGA remedies were unavailable to Plaintiffs because they were not asserting PAGA

claims on behalf of other employees.” (Ps&As, 9:21-23.) Plaintiffs also set forth multiple

arguments regarding the unconscionability of the at-issue arbitration agreement. (See,

e.g., id. at 6:17-27, 8:1-27, 11:22-24 - 12:1-20.)

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In Toal v. Tardif (2009) 178 Cal.App.4th 1208, cited by Plaintiffs, the court states:

We have found no case that describes (as clearly as did Rosenthal for petitions

to compel arbitration) the postarbitration duty of a court to determine the

existence and validity of an arbitration contract, and the burden of proof borne

by an award's proponent, when enforcement of an arbitration award is

requested under circumstances where, as here, no prior judicial determination

has been made as to the existence of the contract to arbitrate. But we see no

reason why Rosenthal's analysis should not apply equally at this juncture. Absent

an enforceable agreement, an arbitration award is invalid. We conclude

Rosenthal's prescription for the court's duty, as well as the parties' respective

burdens of proof, applies to proceedings for confirmation of an arbitration

award. Thus, the party seeking to enforce an award must prove by a

preponderance of the evidence that a valid arbitration contract exists. The court

may not confirm an award without first finding the parties agreed in writing to

arbitrate their dispute, unless a judicial determination of the issue has already

been made (e.g., by a court considering a petition to compel arbitration).

(Id. at p. 1220, italics added.)

Here, the Court made a judicial determination that the parties’ arbitration

agreement was enforceable. (See order, 12/16/2016.)

“Arbitrators may exceed their powers when they act in a manner not authorized

by the contract or by law, act without subject matter jurisdiction, decide an issue that

was not submitted to arbitration, arbitrarily remake the contract, uphold an illegal

contract, issue an award that violates a well-defined public policy, issue an award that

violates a statutory right, fashion a remedy that is not rationally related to the contract,

or select a remedy not authorized by law. However, arbitrators do not ordinarily exceed

their contractually created powers simply by reaching an erroneous conclusion on a

contested issue of law or fact, and arbitral awards may not ordinarily be vacated

because of such error.” (Cohen v. TNP 2008 Participating Notes Program, LLC (2019) 31

Cal.App.5th 840, 868–869, citations, quotation marks, and brackets omitted.)

As Plaintiffs admit, there is no case or statute providing that an arbitrator exceeds

his or her power by making an award based on an unenforceable arbitration

agreement. (See reply, 3:1-4.)

Plaintiffs fail to meet their burden of showing any of the bases for vacating the

award apply here.

Plaintiffs’ petition appears to be a motion for reconsideration of their motion

seeking leave to file a Second Amended Complaint, and Defendants’ petition to

compel arbitration. Code of Civil Procedure, section 1008, requires the moving party to

seek reconsideration “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[.]” (Id.

at subd. (a).) Plaintiffs here appear to challenge orders made on October 20, 2016

(leave to file SAC), and December 16, 2016 (compel arbitration). Insofar as this may be

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a motion for reconsideration, it is untimely and Plaintiffs fail to present any new facts,

circumstances, or law.

Whether evaluating the instant petition as one to vacate the final arbitration

award, or as a motion for reconsideration, Plaintiffs do not meet their burden. As a

petition to vacate the award, Plaintiffs fail to show that the arbitrator exceeded his

authority; as a motion for reconsideration, Plaintiffs fail to allege any new facts,

circumstances, or law, and the motion is untimely. Plaintiffs’ petition to vacate the final

arbitration award is therefore denied.

In the opposition, Defendants request that the arbitration award be confirmed.

(Code Civ. Proc. §1285.2.) All of the required documents are in the Court’s file. (Code

Civ. Proc. §1285.4.) The Court intends therefore to confirm the arbitration award.

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




Tentative Ruling

Issued by: _________RTM______________ on _______2/18/20__________.


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Tentative Rulings for Department 501

(2)

Tentative Ruling

Re: In re Matthew Castillo


Hearing Date: None

Motion: Petition to Compromise Minor’s Claim

Tentative Ruling:

To grant. Petitioner to submit a properly completed order approving the

compromise for signature. Petitioner to submit a properly completed order to deposit

money into blocked account for signature. Hearing off calendar.

Pursuant to California Rules of Court, Rule 3.1312, subd. (a) and Code of Civil

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

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

the clerk will constitute notice of the order.

Tentative Ruling

Issued By: JYH on 2/18/2020 .


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(30)

Tentative Ruling

Re: Ramiro Mejia v. General Motors LLC


Hearing Date: February 20, 2020 @ 3:00 p.m. (Dept. 501)

Motion: Plaintiff’s motion for sanctions

Tentative Ruling:

To deny.

Explanation:

Generally, a party filing a motion “must serve and file a supporting

memorandum.” (Cal. Rules of Court, rule 3.1113, subd. (a).) The memorandum must

contain a statement of facts, a concise statement of the law, evidence and arguments

relied on, and a discussion of the statutes, cases, and textbooks cited in support of the

position advanced. (Id. at subd. (b).) The court may construe the absence of a

memorandum as an admission that the motion is not meritorious and cause for its

denial. (Id. at subd. (a).)

In the case at bar, no moving papers have been filed in support of plaintiff’s

request for sanctions. Instead, plaintiff filed a declaration with his ex parte application

attached. The application does include facts justifying the imposition of sanctions. But, it

fails to articulate which type of sanctions plaintiff seeks. It also fails to cite to any law to

justify the imposition of sanctions.

Accordingly, plaintiff’s motion for sanctions is denied.





Tentative Ruling



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Re: Phillips v. Cerda



Motion: By Plaintiffs to Compel the Depositions of Defendant Rosemarie M

Cerda and for sanctions.

Ruling:

To continue the hearing to Thursday, March 19, 2020 at 3:00 p.m. in Department

501. Plaintiff may file a supplemental brief including any missing documentation no later

than Friday, February 28, 2020. Any opposition papers or objections to the supplemental

filing must be received by March 6, 2020. Any reply by the moving party must be

received by March 13, 2020.

Explanation:

Plaintiffs move to compel the deposition of Defendant Rosemarie Mambrini

Cerda aka Rosemarie M. Cerda pursuant to an agreement for a deposition scheduled

for October 16, 2019. Plaintiffs also move to produce documents pursuant to the notice

of deposition. However, no notice of deposition, or list of documents to be produced,

appears in the declaration in support of the motion, even though it appears that such

papers are referenced in the supporting declaration.

The parties further dispute the timeliness of the motion and the opposition on file.

Generally speaking, an opposition on the merits is a waiver of defects in notice. (E.g.,

Alliance Bank v. Murray (1984) 161 Cal.App.3d 1, 7.) Therefore, any objection to the

timeliness of the moving papers is waived.

Nevertheless, because there appears to be papers missing from the moving

papers, the Court will continue the hearing to Thursday, March 19, 2020 at 3:30 p.m. in

Department 501. Plaintiff may file a supplemental brief including any missing

documentation no later than Friday, February 28, 2020. Any opposition papers or

objections to the supplemental filing must be received by March 6, 2020. Any reply by

the moving party must be received by March 13, 2020.

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


(Judges Initials) (Date)

17


Re: Robinson v. Turning Point

Fresno Superior Court Case No. 14CECG03685

Hearing Date: February 20, 2020 (Department 501)

Motion: by plaintiff for class certification

Tentative Ruling:

To grant. To order that the parties meet and confer on class notice and file

either 1) a jointly approved notice or 2) their own preferred notice as well as lodge a

proposed order encompassing same, by March 2, 2020. Such notice must permit class

members 45 days to opt out. Suggestions for a class administrator must be submitted

with the proposed notice. Plaintiff is to pay for the notice, subject to recovery of the

sums paid as costs.

Explanation:

1. Records Lodged Under Seal

The Court has not been presented with any order or agreement for sealing of

materials in this case. No motion has been filed. The Court’s review of the materials

shows no basis for sealing the motion or points and authorities, and those shall be

placed in the public file. The declaration of Mr. Blanchard includes the names of

patients and/or clients of defendant. While no party filed a motion to seal, the public

disclosure of treatment records for non-parties is not justified. Therefore, Mr. Blanchard’s

entire declaration shall be placed under seal, to preserve confidentiality under

Evidence Code section 1010. He is ordered to file a new declaration which redacts

only the names of the patients/clients, by March 2, 2020.

2. Objections

The Court sustains Defendant’s Objections 7 and 9 to Blanchard’s declaration,

and Objection No. 1 to Robinson’s declaration. All others are overruled.

The Court sustains Plaintiff’s Objections Nos. 7, 8, 9, 10, 11, 12, 13, 14, 15, and 18 to

Rick Ross’ Declaration, Objection No. 11 to Sharon Ross declaration, and the objection

to Defendant’s Exhibits Nos. 11, 12, 13, 14, 15, 16, and 17. All others are overruled.

3. Standards for Class Certification

“The party advocating class treatment must demonstrate the existence

of an ascertainable and sufficiently numerous class, a well-

defined community of interest, and substantial benefits from certification

that render proceeding as a class superior to the alternatives.

The community of interest requirement involves three factors: (1)

predominant common questions of law or fact; (2) class representatives

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with claims or defenses typical of the class; and (3) class representatives

who can adequately represent the class. Regarding the first of these

factors, we have recognized as a general rule that if the defendant’s

liability can be determined by facts common to all members of the class,

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

damages. Relatedly, in certifying a class action, the court must also

conclude that litigation of individual issues, including those arising from

affirmative defenses, can be managed fairly and efficiently.”

Noel v. Thrifty Payless, Inc. (2019) 7 Cal. 5th 955, 968.

Whether plaintiffs or defendants are correct about the lawfulness of a given

policy is not important for certification. Merits arguments are forbidden in determining

class certification. Hicks v. Kaufman & Broad Home Corp. (2001) 89 Cal. App. 4th 908,

914; Linder v. Thrifty Oil Co. (2000) 23 Cal. 4th 429, 443.

4. Numerosity and Ascertainability

The class is made up of all non-exempt employees who were responsible for

billing clients of defendant for productive or chargeable services, and for whom

defendant’s payroll records show they were not on the clock while their billing records

show they were billing for those services. Examples of several dozen billings and time

sheets for the years 2011, 2012, 2013, 2014, 2015, and 2016 were produced, which show

discrepancies. The identity of class members can be ascertained from defendant’s

records.

There is no set number required as a matter of law for the maintenance of a

class action. Rose v. City of Hayward (1981) 126 Cal. App. 3d 926, 934. There are more

than 40 persons identified falling within the class definition in those records, which are

found as Exhibits 8 and 11 through 113 to the declaration of counsel Blanchard. That is

sufficiently numerous to warrant class treatment.

5. Predominant Questions of Law and Fact

As the class is limited to non-exempt employees who billed for services to clients

and/or patients of defendant, the only wage order which can apply is Wage Order 4.

Wage Order 5 concerns housekeeping staff. While defendant references that wage

order, there are no facts showing how it could cover the class at issue. While

defendant contends there are “unique” rules at its numerous facilities, that does not aid

it. The law is the same despite the location or number of persons in the class.

Under Wage Order 4, an employee who works more than eight hours a day gets

overtime for the hours over eight. An exception is where there is “a regularly scheduled

alternative workweek schedule of not more than ten (10) hours a day.” That regularly

scheduled alternative workweek can only be instituted “pursuant to the election

procedures set forth in this order . . .” Title 8, Code of Regulations, section 11040.3(A)

and (B). There is also an exception for health workers, who can go up to 12 hours a

day, pursuant to that election. The “election procedures” are set forth in 11040.3(C).

None of the papers submitted in this case show any such election.

19

The Wage Order applicable to this case defines “hours worked” as “all the time

the employee is suffered or permitted to work, whether or not required to do so.” See

subsection 2(K) of Title 8, Code of Regulations, section 11040.2(K). Morillion v. Royal

Packing Co. (2000) 22 Cal. 4th 575, 584-585 discussed “suffered or permitted to work,

whether or not required to do so.” Where an employee continues to work more hours

than the time they are compensated for, “in all such cases it is the duty of

management to exercise its control and see that work is not performed if it does not

want it to be performed.” “Suffer” and “permit” mean “with knowledge of the

employer.” (Id. at 584-585.) An employee who works at lunch gets paid as well. See

subsection 11.

Plaintiff’s theory of the case is that defendant can be shown to have suffered or

permitted billing employees to work off the clock, by a comparison of billing records

and time records. Defendant says its records are not accurate and that it can so

prove. That is a defense to the merits. There are laws requiring accuracy in medical

billings and in employee records, both of which would appear to place the burden on

defendant to ensure accuracy. See, e.g., 18 U.S.C. section 1035 and Labor Code

sections 1174 and 1175. Cicairos v. Summit Logistics, Inc.(2005) 113 Cal. App. 4th 949

(rev. denied) held that failure to keep records as required by Wage Order placed

consequences of such on the employer. The trustworthiness of defendant’s records is a

subject for which each side has common proof and presumptions. The critical question

is whether the records provided defendant with constructive knowledge of off the

clock work, such that a policy of refusing to pay for same can be inferred.

Another defense is that certain time is proper for billing clients but not for paying

the worker who incurred it, such as travel time, which defendant urges is a type of

commuting time in certain situations. That is also a common proof issue, which by

defendant can seek to exclude certain time reported on billings as compensable time.

Even if not, see Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal. 4th 1004, 1022:

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

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

prove their damages.”

6. Typicality

This requires that the class representative possess claims or defenses typical of

the class. Robinson has demonstrated he was a non-exempt employee who was

required to provide billing information. He has provided samples of billing and time

records that show discrepancies. His claim is typical of those he seeks to represent.

7. Adequacy

“[A]n essential concomitant of adequate representation is that the party's

attorney be qualified, experienced and generally able to conduct the proposed

litigation.” Richmond v. Dart Industries, Inc. (1981) 29 Cal. 3d 462, 478. See also Miller v.

Woods (1983) 148 Cal. App. 3d 862, 874. Proposed class counsel has met those

requirements.

20

Defendant argues that a conflict exists because class counsel has offered the

testimony of supervisory personnel that support the claims of the proposed class. These

two persons are not offered as class representatives in this case, and Wortham was not

offered as a class representative in the other case. They have aligned with the non-

exempt employees who are to be in this class. They also do not appear to fall within

the definition of “managing agent.” Labor Code section 558.1(b). “We conclude the

Legislature intended the term “managing agent” to include only those corporate

employees who exercise substantial independent authority and judgment in

their corporate decision making so that their decisions ultimately determine corporate

policy.” White v. Ultramar (1999) 21 Cal. 4th 563, 566-567. Thus far, the supervisory

personnel have supported class claims, a conflict does not appear in this circumstance.

8. Superiority and Manageability

In terms of proof at trial, the availability of documentary evidence contradicting

time records renders a trial manageable. Here, the arguments between the parties are

over which set of books should be deemed more trustworthy: time records or billing

records. While experts may shorten trial time by testifying to what (if any) damages are

shown by those records, due to their volume, the trial of this matter is no different than

any matter involving accounting or other volumes of records.

On the issue of superiority, defendant points to administrative hearings offered by

the Labor Board, also known as “Berman Hearings.” See, e.g., OTO, LLC v. Kho (2019) 8

Cal. 5th 111 and Labor Code section 98 et seq. Exhaustion of administrative remedies is

not a prerequisite to bringing a judicial action to recover unpaid wages. Reynolds v.

Bement (2005) 36 Cal. 4th 1075, 1084-1085 (disapproved on other grounds in Martinez v.

Combs); Murphy v. Kenneth Cole Productions Inc. (2007) 40 Cal. 4th 1094, 1115. Labor

Code sections 218 and 1194 specifically grant employees the right to seek judicial relief

for non-payment of wages due.

The insistence that the Labor Department handle this matter first raises the issue

of primary jurisdiction. "Primary jurisdiction . . . applies where a claim is originally

cognizable in the courts and comes into play whenever enforcement of the claim

requires the resolution of issues which, under a regulatory scheme, have been placed

within the special competence of an administrative body; in such a case the judicial

process is suspended pending referral of such issues to the administrative body for its

views." Farmers Ins. Exch. v. Superior Court (1992) 2 Cal. 4th 377, 390.

This case has been pending since 2014. No one reports that the Department of

Labor has taken any action. The resolution of wage issues are commonly handled by

courts; no special expertise held by the Labor Department is required.

The true question is whether individual actions would be superior. A plaintiff in an

“off the clock” wage case has to prove there was work off the clock, and that the

employer knew or should have known about it. Having the same questions answered

over and over and over, perhaps differently, in individual Berman Hearings or by 200 or

so individual cases does not provide a superior method of handling these disputes.

21

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



22

Tentative Rulings for Department 502 (30)

Tentative Ruling

Re: Abdillah v. Western Dental Services, Inc.

Case No. 16CECG03528


Motion: Defendants’ demurrer to the third amended complaint

Tentative Ruling:

To overrule.

Explanation:

Where the dates alleged in the complaint show the action is barred by the

statute of limitations, a general demurrer lies. (Saliter v. Pierce Bros. Mortuaries (1978) 81

Cal.App.3d 292, 300; Iverson, Yoakum, Papiano & Hatch v. Berwald (1999) 76

Cal.App.4th 995; Vaca v. Wachovia Mortg. Corp. (2011) 198 Cal.App.4th 737, 746.)

Albeit, the running of the statute must appear “clearly and affirmatively” from the face

of the complaint. It is not enough that the complaint might be time-barred. (Committee

for Green Foothills v. Santa Clara County Bd. of Supervisors (2010) 48 Cal.4th 32, 42;

Roman v. County of Los Angeles (2000) 85 Cal.App.4th 316, 324-325; Stueve Bros. Farms,

LLC v. Berger Kahn (2013) 222 Cal.App.4th 303, 321.)

In an action for injury or death against a health care provider based upon such

person's alleged professional negligence, the time for the commencement of action

shall be three years after the date of injury or one year after the plaintiff discovers, or

through the use of reasonable diligence should have discovered, the injury, whichever

occurs first. (Code Civ. Proc., § 340.5.) This rule sets forth two alternate tests for triggering

the limitations period: (1) a subjective test requiring actual suspicion by the plaintiff that

the injury was caused by wrongdoing; and (2) an objective test requiring a showing

that a reasonable person would have suspected the injury was caused by wrongdoing.

(Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110.) The first to occur under these two tests

begins the limitations period. (Kitzig v. Nordquist (2000) 81 Cal.App.4th 1384.)

However, the date on which the plaintiff should have discovered an alleged

wrongdoing is a question of fact that generally requires a trial. (Brown v. Bleiberg (1982)

32 Cal.3d 426, 436; Graham v. Hansen (1982) 128 Cal.App.3d 965, 972; Jolly, supra, 44

Cal.3d at 1109-1114.) Only where the facts are sufficiently clear to support one

conclusion is a determination as a matter of law appropriate. (Jolly, supra, 44 Cal.3d at

1112; Velasquez v. Truck Ins. Exchange (1991) 1 Cal.App.4th 712, 717; Pereira v. Dow

Chemical Co. (1982) 129 Cal.App.3d 865, 874; Wells Fargo Bank v. Superior Court (1977)

74 Cal.App.3d 890, 895.)

23

Here, defendants again argue that plaintiff should have suspected injury within

the six days following her dental procedure. And, although defendants’ contentions

may be reasonable, it is also reasonable that a lay person (such as plaintiff) would not

have suspected injury within six days of the procedure (e.g., it is reasonable for a lay

person to not immediately equate pain resulting from such an extensive dental

procedure to injury).

Therefore, the date on which plaintiff should have suspected wrongdoing is a

question of fact which cannot be decided on demurrer, and which cannot (then) be

used to support a finding of a clear and affirmative running of the statute of limitations.

Plaintiff’s allegations are also in substantial compliance with the court’s order,

resulting from the remittitur issued by the 5th DCA. On August 29, 2019, the court

ordered plaintiff to state “that it was not reasonably possible for [plaintiff] to discover

her injuries resulting from the dental procedure before she returned to the dental

office.” (See Order, filed: 8/29/19.) And, in relevant part, plaintiff now alleges that “[i]t

was not reasonably possible for plaintiff to discover her injuries resulting from the dental

procedure before she returned to the dental office . . .” (TAC, ¶7.)

Accordingly, defendants’ demurrer is overruled.

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




Tentative Ruling

Issued by: A.M. Simpson on __2-18-20 .


24

Tentative Rulings for Department 503

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