Tentative Rulings for March 28, 2019 Departments 403, 501 ...Mar 28, 2019 · submit the matter...

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Tentative Rulings for March 28, 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).)

19CECG00167 In re Manuel Agabo (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.

18CECG04455 David James vs. Wells Fargo Bank, N.A. is continued to Thursday,

April 4, 2019 at 3:00 p.m. on Dept. 501.

18CECG01399 Velasquez v. Kaiser Foundation Health et al. is continued to

Thursday, April 4, 2019 at 3:30 p.m. in Dept. 403.

________________________________________________________________

(Tentative Rulings begin at the next page)

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Tentative Rulings for Department 403

(20) Tentative Ruling

Re: Jackson v. Nashville Investment Group, LLC et al.

Superior Court Case No. 17CECG00824

Hearing Date: March 28, 2019 (Dept. 403)

Motion: Doreen Duinkerken’s Motion for Summary Judgment

Tentative Ruling:

To grant. (Code Civ. Proc. § 437c, subd. (c).) Doreen Duinkerken is directed to

submit to this court, within 5 days of service of the minute order, a proposed judgment

consistent with the court’s summary judgment order.

Explanation:

This is an assault and battery action. The Complaint of plaintiff Douglas Jackson

alleges that on 3/17/15 at Nashville’s Bar and Grill (owned and operated by defendant

Nashville Investment Group, LLC), defendants Raustyn Hurst, Sharonja Curry, Elizabeth

Ferreira, Luke Coghlan, John Hurst, III, and Doreen Duinkerken aka Doreen Hurst

(referred to herein as “Doreen”) assaulted and battered plaintiff by striking his face and

body.

Against the individual defendants plaintiff alleges causes of action for assault

and battery, conspiracy, intentional infliction of emotional distress (“IIED”) and false

imprisonment.

Doreen moves for summary judgment. The hearing was originally set to be heard

on 1/24/2019. The hearing was continued at plaintiff’s counsel’s request in order to take

the depositions of three witnesses to the alleged assault. Though the court noted

plaintiff’s apparent lack of diligence in previously pursuing this discovery, the motion

was continued nonetheless out of an abundance of caution. With the hearing

continued to 3/28/2019, any supplemental opposition papers were required to be filed

and served by 3/14/2019. (Code Civ. Proc. § 437c(b)(2).) Without explanation, plaintiff

filed and served a supplemental declaration of counsel and separate statement on

3/21/2019, a week late, preventing Doreen from filing a reply. On that ground Doreen

has objected to the supplemental opposition papers. That objection is sustained.

A moving defendant can prevail simply by showing that one or more elements

of a cause of action cannot be established. (Code Civ. Proc. § 437c, subd. (p)(2).) The

moving party must provide affidavits, declarations, or other evidence supporting the

motion (Code Civ. Proc. §§ 437c, subd. (p); §2015.5.) showing that there is no triable

issue of material fact and he/she is entitled to summary judgment/adjudication as a

matter of law. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) Once the

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moving party meets that burden, the opposing party must offer admissible evidence

that establishes that a triable issue does exist as to a material fact. (Law Offices of

Howard R. Dixon v. Valley (2005) 129 Cal.App.4th 1076, 1092.)

Assault and Battery

The essential elements of a cause of action for assault are: (1) defendant

acted with intent to cause harmful or offensive contact, or threatened to

touch plaintiff in a harmful or offensive manner; (2) plaintiff reasonably

believed she was about to be touched in a harmful or offensive manner

or it reasonably appeared to plaintiff that defendant was about to carry

out the threat; (3) plaintiff did not consent to defendant's conduct; (4)

plaintiff was harmed; and (5) defendant's conduct was a substantial

factor in causing plaintiff's harm. (CACI No. 1301; Plotnik v. Meihaus (2012)

208 Cal.App.4th 1590, 1603–1604, 146 Cal.Rptr.3d 585.) The essential

elements of a cause of action for battery are: (1) defendant touched

plaintiff, or caused plaintiff to be touched, with the intent to harm or

offend plaintiff; (2) plaintiff did not consent to the touching; (3) plaintiff

was harmed or offended by defendant's conduct; and (4) a reasonable

person in plaintiff's position would have been offended by the touching.

(CACI No. 1300; see Kaplan v. Mamelak (2008) 162 Cal.App.4th 637, 645,

75 Cal.Rptr.3d 861 (Kaplan).)

(So v. Shin (2013) 212 Cal.App.4th 652, 668–669, citing CACI No. 1301.)

Here, Doreen satisfies her burden as the moving party by submitting evidence

that Doreen was not directly physically involved in the physical altercation – that she

never touched or so much as threated to touch plaintiff. Rather, the other individual

defendants in the group perpetrated the attack. (See UMF 1-14.) The evidence

submitted by the moving papers shows that Doreen did not a) make an attempt to

cause harmful or offensive contact with plaintiff; b) threaten plaintiff; c) touch plaintiff -

let alone with the intent to harm or offend him; or d) cause plaintiff to be touched in a

harmful or offensive manner.

The burden shifts to plaintiff to show a triable issue of fact. The evidence

presented with the opposition is highly speculative and vague.

Plaintiff testified that Valerie Miguel told him that “Doreen was scratching and

clawing and punching me and hitting me from behind.” (Jackson Depo. 216:18-25.)

That is obvious hearsay. And Miguel filed a declaration in support of the opposition,

and did not state this in that declaration. Miguel states that Doreen was a “one of the

participants in pulling JACKSON off his chair onto the ground scratching, clawing,

punching and kicking JACKSON which led to the assault and battery of JACKSON.”

(Miguel Dec. ¶ 4.) However, it is unclear what “participant” means here. Miguel in her

statement to the Kings County Bureau of Investigations she indicated that she did not

see plaintiff pulled from his barstool. Rather, Miguel told the investigator that she

“heard a commotion,” looked in plaintiff’s direction, and observed that he was no

longer on his barstool. She did not see Doreen make physical contact with plaintiff.

(See Hoppe Dec. Exhs. E, F.)

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In his declaration in support of the opposition plaintiff also vaguely refers to

Doreen as a “participant” in the assault. (Jackson Dec. ¶ 2.) But his deposition

testimony makes clear that he does not know if Doreen pulled him from the barstool –

merely that she was “behind me” when that occurred. (Jackson Depo. 63:23-64:8; 65:8-

11.) “A party cannot evade summary judgment by submitting a declaration

contradicting his own prior deposition testimony.” (Guthrey v. State of California (1998)

63 Cal.App.4th 1108, 1120, citations omitted.) “[R]esponsive evidence that gives rise to

no more than mere speculation cannot be regarded as substantial, and is insufficient to

establish a triable issue of material fact.” (Sangster v. Paetkau (1998) 68 Cl1.App.4th

151, 163.)

After describing Raustyn hitting him with the empty glass, plaintiff says that

“several persons behind me then pulled me down to the ground identified as DOREEN,

ELIZABETH, JOHN and CURRY, and continued to strike and kick me as I was trying to get

on my two feet.” (Jackson Dec. ¶ 7.) While plaintiff says they were behind him, but

plaintiff does not indicate how he knew that Doreen or anyone in particular pulled him

down.

Plaintiff has only presented speculation that Doreen may have been one of the

people who pulled him from his barstool and struck him. This is not sufficient to create a

triable issue of fact.

Even if the supplemental opposition papers are considered, plaintiff still fails to

put forth evidence raising a triable issue of fact. The opposition is supported by a

declaration from counsel that provides copies of deposition transcripts, and oddly, a

summary of the relevant testimony. (See Supp. Sullivan Dec.) Typically a summary of

testimony would be found in a memorandum of points and authorities, which plaintiff

did not file with the supplemental papers, and not in a declaration from counsel. At

any rate, in the four pages of deposition testimony summary, only two statements, as

summarized by counsel, would seem to support the opposition. The rest of the

testimony, even as characterized by counsel, does not seem to support the opposition

at all.

Counsel says that Jeramiah Kemp testified that he told the Hanford police that

“the ‘older female’ sitting in PLAITNFF’S seat ran over and began to punch him on his

head.” (Sullivan Dec. ¶ 11.) That is not exactly what he said. In his statement to the

Hanford police, which Kemp affirmed as accurate in his deposition, Kemp stated,

“"When the younger female went to the ground, the older female ran over and began

to punch him on his head. Kemp said that he noticed that she had several rings on her

hands. The younger female got up off the ground and began to punch Jackson on the

head as well.” (See Kemp Depo. p. 33.) It doesn’t say “the order female sitting in

plaintiff’s seat”. Kemp’s testimony does not make clear that the “older female” is

Doreen. Moreover, earlier in the deposition, when asked where Doreen was during the

incident, Kemp said, “The last time I saw Doreen was sitting in that chair before she got

up for Mr. Jackson, I would assume.” (Kemp Depo. 20:8-11.) Kemp’s testimony actually

supports Doreen, not the opposition.

Counsel also states that Valerie Miguel testified that “DOREEN was a participant

in the assault of PLAINTIFF, that DOREEN held PLAINTIFF down during the assault, that

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DOREEN was pulling on PLAINTIFF from behind.” (Sullivan Dec. ¶ 12.) That is a clear

mischaracterization of Miguel’s testimony. Miguel stated that she was “not sure if

[Doreen] was trying to keep him down or using him to get up or something like that.”

(Miguel Depo. 37:17-20.) Directly asked if she saw Doreen throwing punches at plaintiff

“or anything like that”, Miguel said that she assumed she was pulling on him or pulling

herself up. Miguel made clear that she did not know if Doreen was trying to get up or

keep him down. She said, “I literally only looked for a split second as my eyes were

scanning everything. Then when I walked in on his eyes, my mind kind of freaked out

and went blank.” (Miguel Depo. 37:22-38:11.) This testimony is highly uncertain and

ambiguous, and therefore insufficient to raise a triable issue of fact, even if the

objection to the supplemental opposition papers was not sustained.

False Imprisonment

“The elements of a tortious claim of false imprisonment are: (1) the

nonconsensual, intentional confinement of a person, (2) without lawful privilege, and (3)

for an appreciable period of time, however brief.” (Easton v. Sutter Coast Hosp. (2000)

80 Cal.App.4th 485, 496, citing City of Newport Beach v. Sasse (1970) 9 Cal.App.3d 803,

810.)

As discussed above, there is no evidence that Doreen restricted plaintiff’s

freedom in any manner.

IIED

To support an IIED claim, a defendant's conduct must be so extreme as to

“exceed all bounds of that usually tolerated in a civilized community.” (Christensen v.

Superior Court (1991) 54 Cal.3d 868, 903.)

Mere “insults, indignities, threats, annoyances, petty oppressions or other

trivialities” do not equate to “outrageous conduct” where a case is lacking in other

circumstances of aggravation. Plaintiffs cannot recover damages for IIED merely

because of “hurt feelings.” (Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148,

155, fn. 7.)

Here, the evidence shows that Doreen told plaintiff to “get lost,” calling him a

“f"‘*king loser,” and stating that it was “no wonder” he was by himself in the bar. (See

UMF 2-4.) There is no evidence that Doreen assaulted or battered plaintiff as alleged.

The evidence does not constitute “extreme and outrageous” conduct sufficient to

support a claim for intentional infliction of emotional distress. Mere “insults, indignities,

threats, annoyances, petty oppressions or other trivialities” do not equate to

“outrageous conduct” where a case is lacking in other circumstances of aggravation.

(Cole v. Fair Oaks Fire Protection Dist. (1987) 43 Cal.3d 148, 155, fn. 7.)

Conspiracy

The elements of a cause of action for civil conspiracy are: “(1) the formation and

operation of the conspiracy; (2) the wrongful act or acts done pursuant thereto; and (3)

the damage resulting.” (Unruh v. Truck Insurance Exchange (1972) 7 Cal.3d 616, 631,

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citation omitted; Applied Equip. Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503,

511.)

Doreen argues that since there was no assault or battery, there is no factual or

legal foundation for a conspiracy claim. An essential element of a civil conspiracy is

“wrongful conduct in furtherance of the conspiracy.” (Kidron v. Movie Acquisition Corp.

(1995) 40 Cal.4th 1571, 1581.)

However, in this case clearly there was wrongful conduct. The evidence does

show that plaintiff was beaten by a group of people, and that Doreen was part of that

group. The court cannot grant the motion on the ground that there was no wrongful

act.

However, as the original reply points out, “actual knowledge of the planned tort,

without more, is insufficient to serve as the basis for a conspiracy claim. Knowledge of

the planned tort must be combined with intent to aid in its commission.” (Kidron, supra,

at 1582.)

Here, there is no evidence that Doreen participated in the assault and battery.

There is no evidence of any act or acts by Doreen in furtherance of the alleged

conspiracy.

Plaintiff testified that when the group of defendants returned from the patio,

“they were together, and it looked like they had something on their mind” and

defendants made eye contact with plaintiff. (UMF 21; Jackson Dec. ¶¶ 4, 5.)

Eye contact and plaintiff’s speculation that those in the group “had something

on their mind” is sufficient to raise a triable issue as to the existence of a conspiracy. It is

just too speculative.

Accordingly, summary judgment should be granted in favor of Doreen.

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

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

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

order.

Tentative Ruling

Issued By: RTM on 3/27/19 .

(Judge’s initials) (Date)

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(2)

Tentative Ruling

Re: Jordan v. Jordan

Case No. 18CECG00793


Motion: Motion to compel production of a statement of damages

Sanctions

Tentative Ruling:

To grant defendant’s motion to compel production of a statement of damages.

(Code Civ. Proc. §425.11(b).) Plaintiff is ordered to serve a statement of damages within

10 days of the clerk’s service of the minute order. Whereas it appears this motion may

be moot, there is insufficient evidence in the opposition papers to determine that a

statement of damages has been served.

To deny defendant’s motion for sanctions. A motion for sanctions under section

128.5 shall be made separately from other motions or requests. (Code Civ. Proc.

§128.5(f)(1)(A).) This request is made as part of the motion to compel and therefore is

not properly before the court.

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

Issued By: ___________RTM________________ on ____3/21/19_____________.


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(29)

Tentative Ruling

Re: Irigoyen v. Cazares



Motion: Defendant’s motion to compel initial responses

Tentative Ruling:

To grant Defendant’s motion to compel Plaintiff to provide initial verified

responses to Defendant’s request for form interrogatories, set one; request for

production, set one; and request for admissions, set one. (Code Civ. Proc. §§ 2030.290,

2031.300, 2033.220.) Plaintiff is ordered to serve complete verified responses to the

discovery set forth above, without objection, within five days of the clerk’s service of the

minute order.

To grant Defendant’s motion to compel Plaintiff to appear for, and produce

documents at, her deposition. (Code Civ. Proc. §2025.450.) Plaintiff to appear for

deposition at a mutually convenient date, time, and location that is within one week of

the hearing on this motion.

To impose monetary sanctions in favor of Defendant, against Plaintiff. (Code Civ.

Proc. §§ 2023.010(d), (i); 2030.290(c); 2031.300(c), 2033.280(c); 2025.450(g)(1).) Plaintiff is

ordered to pay $1,447.50 in sanctions to the Law Office of Roger D. Wilson law within 30

days of service of this order.

Explanation:

Motion to Compel

“The Civil Discovery Act provides litigants with the right to broad discovery. In

general, any party may obtain discovery regarding any matter, not privileged, that is

relevant to the subject matter involved in the pending action or to the determination of

any motion made in that action, if the matter either is itself admissible in evidence or

appears reasonably calculated to lead to the discovery of admissible evidence.”

(Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148

Cal.App.4th 390, 402, internal citation and quotation marks omitted.)

A party that fails to serve a timely response to a discovery request waives “any

objection” to the request. (Code Civ. Proc. §§ 2030.290(a), 2031.300(a).) The

propounding party may move for an order compelling a party to respond to the

discovery request. (Code Civ. Proc. §§ 2030.290(b), 2031.300(b).)

Code of Civil Procedure section 2025.450, subdivision (a), provides that if, “after

service of a deposition notice, a party to the action … without having served a valid

objection under Section 2025.410, fails to appear for examination, or to proceed with it

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… the party giving the notice may move for an order compelling the deponent's

attendance and testimony[.]” Generally speaking, a party is entitled to take the

testimony of its opponent before trial. (Code Civ. Proc. §2025.010; see Glenfed

Development Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1119 [“California's

pretrial discovery procedures are designed to minimize the opportunities for fabrication

and forgetfulness, and to eliminate the need for guesswork about the other side's

evidence, with all doubts about discoverability resolved in favor of disclosure.”].)

The discovery at issue was served on Plaintiff on November 5, 2018. Despite

Defendant’s repeated attempts to meet and confer, responses have not been

provided. The discovery requests appear tailored to lead to the discovery of relevant

evidence, and Plaintiff has not served any objections, or filed opposition to the instant

motion. Plaintiff has also failed to appear for her properly noticed deposition. This is

Plaintiff’s action, yet Plaintiff is failing to engage in the discovery process, an integral

part of any civil action. Defendant’s motion to compel Plaintiff to appear for deposition

and produce documents; and to provide verified responses to request for form

interrogatories, set one; request for production, set one; and request for admissions, set

one, is granted. Defendant’s request for sanctions is granted in the amount of $1,447.50.

Defendant’s request for terminating sanctions is denied. (Crawford v. JPMorgan Chase

Bank, N.A. (2015) 242 Cal.App.4th 1265, 1271 [court’s inherent authority to dismiss a

case as a “should be exercised only in extreme situations]”.)

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 3/26/19 .


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Re: Salyer v. CSAA Insurance Exchange



Motion: Petition to Approve Compromise of Disputed Claim (Minor’s

Compromise).

Tentative Ruling:

To grant. Petitioner is to submit a proposed order within five (5) court days that names

Bernie Ogdon as the Custodian for the CUTMA account to be opened at Valley First

Credit Union.

Explanation:

This Court continued the hearing from March 6, 2019 to March 28, 2019 to allow

Petitioner to address some concerns the Court had regarding the Petition, specifically

with respect to the failure to identify the proposed custodian for the CUTMA account to

be opened at Valley First Credit Union. Based on the declarations and new Petition filed

on March 13, 2019, the Court’s concerns have been addressed and the Court is

prepared to grant the Petition.

The Proposed Order directs $20,000 to be deposited into the CUTMA account at Valley

First Credit Union but does not order the guardian ad litem to be named as custodian.

The order should be amended to reflect this. Therefore, Petitioner is directed to submit

an amended order within five (5) days of this ruling which reflects the appointment of

Bernie Ogden as custodian pursuant to CUTMA.

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

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

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

service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: RTM on 3/27/19 .


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Tentative Rulings for Department 501 (24) Tentative Ruling

Re: De Fehr v. Heinz

Court Case No. 18CECG00956

Hearing Date: March 28, 2019 @ 3:00 p.m. (Dept. 501)

Motion: Default Prove-Up Hearing

Tentative Ruling:

To deny without prejudice.

Explanation:

There are two issues which mandate denial of default judgment at this time.

Unknown Defendants

An in rem judgment is one quieting title against the whole world, which is

allowed where the plaintiff names “all persons unknown, claiming any legal or

equitable right, title, estate, lien, or interest described in the complaint adverse to

plaintiff's title, or any cloud upon plaintiff's title thereto.” This statutory language is

required if an in rem judgment is sought. (Code Civ. Proc., § 762.060, subd. (a).) In that

case, plaintiffs must serve the unknown defendants by publication of the summons,

after obtaining an order therefor. (Code Civ. Proc., §§ 763.010, subd. (b), 764.030.) Also,

when service has been made by publication, the plaintiff must post a copy of the

summons and complaint at a conspicuous place on the subject real property. (Code

Civ. Proc., § 763.020.)

Here, plaintiff named “unknown defendants” according to the statutorily

required language. (See Compl., caption and ¶ 19.) However, plaintiff made no

attempt to obtain an order to publish summons as to the unknown defendants. Thus,

she did not enter (nor could she have entered) the default of the unknown defendants

after the requisite statutory period after publication. (Code Civ. Proc., § 415.50; Gov.

Code § 6064.) There is also no evidence she complied with the posting requirement.

While she requests a default judgment against the unknown defendants (see Request

for Court Judgment, Att. 1d, No. 15.), no such judgment can be entered due to this

defect.

While a judgment without the unknown defendants could be entered, the court

presumes that plaintiff seeks an in rem judgment, and will want to cure this defect.

Lafayette College

Defendant Lafayette College filed a Disclaimer of Interest in the property on

October 17, 2018, and its default was entered on October 29, 2018. However, on

January 23, 2019, plaintiff filed a Notice of Settlement regarding this defendant which

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included a request to set aside Lafayette College’s default, pursuant to a Settlement

Agreement and Mutual Release. Based on this, the court signed an order on February 5,

2019, setting aside Lafayette College’s default. That order included a provision for

plaintiff and defendant Lafayette College to have 120 days from the date of that order

(i.e., until June 5, 2019) in which to file a joint stipulation to dismiss said defendant with

prejudice.

Upon a closer reading of the “Notice of Settlement” filed January 23, 2019, the

court is confused about what plaintiff is attempting to do as to this defendant. The

Notice of Settlement indicates that the purpose of withdrawing the default and yet

delaying dismissal pursuant to the settlement is so “the Court may retain jurisdiction over

all defendants until such time as the Court is ready to finally adjudicate any and all

claims against the Subject Property, at which time the above-referenced joint

stipulation will be delivered to the Court.” The court further notes that plaintiff’s Request

for Court Judgment, filed on February 1, 2019—so, filed in light of the settlement and

stipulation to set aside default—includes Lafayette College as a defendant against

whom plaintiff seeks a default judgment. (Req. for Ct. Jgmt., Att. 1d, No. 9.)

It is axiomatic that no default judgment can be entered against a defendant

whose default has been set aside. So no default judgment can issue as against

Lafayette College. Nor is it clear that this situation presents a case where several

judgments, pursuant to Code of Civil Procedure section 579, are appropriate. In fact, it

appears no judgment at all should be entered against Lafayette College, since

plaintiff’s settlement with this defendant provides for its dismissal with prejudice. Clearly,

if the court were to enter judgment against Lafayette College, then plaintiff would be

unable to dismiss it from the action. Hence the court’s confusion over what the settling

parties intend, and whether their intentions (even if explained to the court) are capable

of being carried out as things are now constituted.

The court is aware that plaintiff filed an all-but-identical action in 2016, which

ultimately had to be dismissed without prejudice because plaintiff had obtained

disclaimers of interest from most of the defendants (as in this present action), but she

had then dismissed all of those defendants. When she sought default judgment against

these defendants, the court found that this was impossible since the court lost

jurisdiction over them once they were dismissed. It is proper to enter a judgment

quieting title against a disclaiming defendant. (Linthicum v. Butterfield (2009) 175

Cal.App.4th 259, 270; Bradley Co. v. Ridgeway (1936) 14 Cal.App.2d 326, 337.) But this is

impossible where that defendant has been dismissed.

It appears plaintiff may be concerned about having a similar problem with

defendant Lafayette College. However, it is not clear that plaintiff’s solution is workable,

or even necessary: if plaintiff has entered into a settlement with Lafayette College, then

arguably she does not need a judgment quieting title against that defendant. The result

in the 2016 action does not mean that a plaintiff can never dismiss a disclaiming

defendant, especially after settling with that defendant. It just means that the settling

defendant cannot be part of the judgment quieting title. But it is the settlement, and

not the judgment, which protects plaintiff from any future challenges to ownership of

the subject property by that defendant. Of course, there may be other concerns

plaintiff is attempting to address, which she is certainly free to explain. However, it is

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clear that no default judgment can issue against Lafayette College at this time, as it is

not a defaulted defendant.



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


Tentative Ruling

Issued By: JYH on 3/27/2019 .


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Tentative Rulings for Department 502

(2)

Tentative Ruling

Re: In re Anniyuh Porraz



Motion: Petition to Compromise Minor’s Claim

Tentative Ruling:

To grant. Order signed. Hearing off calendar.





Tentative Ruling DSB 3-26-19

Issued By: on .


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(2)

Tentative Ruling

Re: In re Avvah Porraz



Motion: Petition to Compromise Minor’s Claim

Tentative Ruling:

To grant. Order signed. Hearing off calendar.






Issued By: on .


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Re: Dept. of Fair Employment and Housing v. Crown Industries, Inc.



Motion: Order to Show Cause re Petition to Compel Compliance with

Administrative Discovery

Tentative Ruling:

To continue the hearing on the OSC to Tuesday, April 9, 2019 in Department 502

at 3:30 p.m.

To order DFEH to file a written reply to respondents’ oppositions. Any reply shall

be filed and served by April 3, 2019.

Explanation:

Due to oversight, the OSC issued by the court failed to include a date for the

filing of an opposition. Because respondents may file oppositions as a matter of right

(Gov. Code, § 12963.5) the oppositions filed March 22, 2019 are timely. However, as the

oppositions are extremely voluminous, the court requests a written reply by DFEH.

Consequently, this court finds good cause to continue the hearing in this matter to April

3, 2019. A tentative ruling will issue on April 2, 2019. In accordance with section 12963.5,

a ruling will issue within 60 days of the filing of the instant petition.

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





Issued By: on .


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Re: State v. Raven Family Limited Partnership



Motion: Plaintiff’s Motion for Order of Possession

Tentative Ruling:

To grant, with the date of possession revised to reflect the date of April 30, 2019.

Plaintiff is directed to provide the court with a revised form of order for signature.

Explanation:

The motion satisfies all the statutory requirements. Plaintiff has established that it is

entitled to take the property by eminent domain, and has deposited the amount

required to be deposited pursuant to Code of Civil Procedure Section1255.010 (the

probable amount of compensation to be awarded to defendants). Plaintiff does not

oppose the delay in the date of possession as proposed by the defendant. The court

has balanced the relative hardships, and finds this to be an appropriate resolution.



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



Issued By: on .


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(30)

Tentative Ruling

Re: Leonardo Valdovinos v. D&Z Law Group LLP



Motion: Defendants’ Motion to Strike Punitive Damages

Tentative Ruling:

To grant, with plaintiff granted 20 leave to amend. All new or modified allegations

should be set forth in bold type.

Explanation:

A motion to strike is the proper procedure to challenge an improper request for

relief, or improper remedy, within a complaint. (Grieves v. Superior Court (1984) 157

Cal.App.3d 159, 164.) With respect to punitive damage allegations, mere legal

conclusions of oppression, fraud or malice are insufficient and therefore may be

stricken. (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6; see also Spinks v. Equity

Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1055.) In this context,

“fraud” means intentional misrepresentation, deceit, or concealment of a material fact

known to the defendant with the intention on the part of the defendant of thereby

depriving a person of property or legal rights or otherwise causing injury. (Civil Code §

3294, subd. (c).)

Plaintiff’s second cause of action pleads a claim for breach of fiduciary duty

Paragraph 18 of the first cause of action, which is incorporated into the second cause

of action, alleges:

18. Defendants, and each of them, further breached their duty to Plaintiff by

purporting to terminate their legal representation of Plaintiff without providing

notice thereof until after the claims deadline and statute of limitations had

expired on his claims, and further, by failing to advise Plaintiff of the need to

meet such time limitations until after his claims already had been lost. (FAC, ¶ 18.)

Paragraphs 23 and 24 of the second cause of action add:

23. Defendants, and each of them, further breached their fiduciary duties to

Plaintiff, by failing to make reasonable efforts to contact Plaintiff until after the

claim-filing deadline and statute of limitations had expired, and by attempting to

deceive and mislead Plaintiff and Ms. Marroquin into believing that Defendants

were not responsible for the loss of Plaintiffs claims. In attempting to so deceive

and mislead Plaintiff and Ms. Marroquin, Defendants, and each of them, were

19

aware that it was their own inattention, neglect, failure to act, and failure to

communicate that allowed Plaintiff‘s claims to expire and be lost. (FAC, ¶ 23.)

24. The above attempts by Defendants, and each of them, to mislead and

deceive Plaintiff and Ms. Marroquin were fraudulent, and therefore justify the

imposition of punitive and exemplary damages. (FAC, ¶ 24.)

Though a claim for breach of fiduciary duty may support a punitive damage

claim if appropriate facts are alleged, the punitive damage claim here is inadequately

pled because the allegations either amount to no more than ordinary negligence or

are conclusory. Missing a claim filing deadline or a statute of limitations, withdrawing

from a case prematurely and failing to advise of a need to file a claim or meet a

statute of limitations deadline are claims that sound in negligence. The allegation that

defendants attempted to “deceive and mislead Plaintiff … into believing that

Defendants were not responsible for the loss of Plaintiff’s claims” is conclusory and does

not support a claim that defendants conduct was despicable or motivated by an evil

intent or ill will. (See Simmons v. Southern Pac. Transportation Co. (1976) 62 Cal. App. 3d

341, 368.)

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





Issued By: on .


20

Tentative Rulings for Department 503 (29)

Tentative Ruling

Re: Carrera v. Brenntag North America, Inc., et al.



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

April 2, 2019, at 3:30 p.m.

Motion: Defendant Imerys Talc America, Inc.’s motion for summary

judgment

Tentative Ruling:

To take off calendar. (11 U.S.C. §362.)

Explanation:

On February 13, 2019, Defendant Imerys Talc America filed for chapter 11

bankruptcy protection. (See notice, filed 2/15/19.) As the filing of a bankruptcy petition

automatically stays the continuation of actions against the debtor (11 U.S.C. §362), the

motion cannot go forward at this time and is therefore taken off calendar.

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



Tentative Ruling

Issued by: KAG on 3/20/19.


21

(03)

Tentative Ruling

Re: Walker v. Preet




April 2, 2019, at 3:30 p.m., in Dept. 503.

Motion: Defendant Marok’s Motion to Quash Service of Summons and

Complaint

Tentative Ruling:

To grant defendant Marok’s motion to quash service of the summons and

complaint.

Explanation:

The court intends to grant the motion to quash service of the summons and

complaint on defendant Kuldip Singh Preet Marok, as defendant was not properly

named in the complaint at the time he was served, and thus was not a party to the

action.

“A person or entity may become a party defendant only in two ways: by being

named as a defendant, or by being properly named and served as a fictitiously named

defendant pursuant to [Code of Civil Procedure] section 474.” (Kerr-Mcgee Chemical

Corp. v. Superior Court (1984) 160 Cal.App.3d 594, 597.) Where the plaintiff mistakenly

names the wrong defendant in the action, the correct procedure is to amend the

complaint under Code of Civil Procedure section 473. (Id. at p. 599.)

However, where the person has not yet been properly named in the complaint,

and the complaint has been served on that person before they are named, that

person may move to quash the service of summons. (Kline v. Beauchamp (1938) 29

Cal.App.2d 340, 342, internal citation omitted.) “The law is settled that a person who is

not named either by his true or a fictitious name or as an unknown defendant is not a

proper party to an action, and service of summons upon such person upon proper

motion should be quashed.” (Ibid, internal citations omitted)

Here, plaintiffs incorrectly named defendant as “Marok Kuldip Singh Preet,”

rather than his true name, which is Kuldip Singh Preet Marok. The proof of service also

shows that service was made by substitution on “Marok Kuldip Singh Preet.” Therefore,

plaintiffs incorrectly named defendant Marok, and he was not brought into the action

as a party until plaintiffs amended the complaint to correctly name him, which did not

occur until after plaintiffs had already purportedly served him.

Plaintiffs argue that the defect in the name of defendant was minor and that it

has now been corrected by an amendment to the complaint. However, the

22

amendment was not granted until February 26, 2019, which was almost three months

after plaintiffs had purportedly served defendant by substitution on December 3, 2018.

As a result, at the time of the alleged service, defendant was not yet a named party in

the case and consequently the attempted service on him was not sufficient to obtain

personal jurisdiction over him. (Kline v. Beauchamp, supra, 29 Cal.App.2d at p. 342.)

Nevertheless, plaintiffs contend that the defect was minor, since they merely

transposed defendant’s first and last names, and defendant admits that he had actual

notice of the action when his son-in-law notified him that the summons had been

mailed to his Clovis address. However, while it appears that plaintiffs inadvertently

transposed defendant’s first and last names, the defect nevertheless resulted in the

wrong person’s name appearing in the complaint. Thus, defendant Marok was not

properly named in the complaint, and the defect was not corrected until after the date

of attempted service. Also, the fact that defendant later received notice of the action

through his son-in-law does not cure the defect, as normally actual notice is not enough

to obtain personal jurisdiction over a defendant without compliance with the statutory

provisions regarding service. (American Express Centurion Bank v. Zara (2011) 199

Cal.App.4th 383, 392.) Therefore, under these circumstances, the court intends to find

that service was not effective to assert personal jurisdiction over defendant, as he was

not yet a named party in the action.

Plaintiffs also contend that they complied with the Code of Civil Procedure

regarding substituted service by serving a person over the age of 18 and apparently in

charge at the residence owned by defendant, and then mailing the summons and

complaint to defendant’s mailing address. (Code Civ. Proc., § 415.20, subd.’s (a), (b).)

According to the proof of service, plaintiffs’ process server was unable to effect

personal service on defendant despite multiple attempts to do so. He then served a

“John Doe” at defendant’s Clovis address, and thereafter mailed a copy of the

summons and complaint to the same address. However, although he admits that he

owns the residence at the Clovis address and uses it as a mailing address and

temporary residence, defendant denies that he was at the residence on the date of

the attempted service. He also denies that anyone else lives at the residence, or that

he authorized anyone to accept papers on his behalf. He claims that he did not learn

of the action against him until December 13, 2018, when his son-in-law checked the

mail at the Clovis address.

Also, while plaintiffs claim that the process server’s description of defendant

matches his actual physical description, they offer no evidence to support their

assertion. It is also worth noting that the proof of service describes “John Doe” as being

a “Middle Eastern” man, whereas defendant is of Indian descent. There are also no

facts in the proof of service that indicate whether “John Doe” was actually authorized

to be at the residence, or that he was a competent member of the household or

apparently in charge of the property. Defendant has denied that anyone else lives at

the property, or that he was there on the date of service, so defendant has sufficiently

rebutted the usual presumption that a proof of service establishes that the summons

was properly served.

Thus, the evidence is at best conflicting as to whether the attempted service on

“John Doe” was sufficient to constitute effective substituted service on defendant

23

Marok. In light of the doubts about the efficacy of the substituted service, combined

with the defect in naming Mr. Marok as a defendant in the complaint, the court intends

to grant the motion to quash service of summons on defendant.

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: KAG on 3/26/19.

(Judge’s Initials) (Date)

24


Re: Yambupah v. Englebright




April 2, 2019, at 3:30 p.m., in Dept. 503.

Motion: By Plaintiff and Cross-Defendants for Sanctions Against Defendants

and Cross-Complainants Jason Englebright, Ashley Cobbs and

David Morales pursuant to Code of Civil Procedure Sections 128.5

and 128.7

Tentative Ruling:

To deny the motion without prejudice to Plaintiff and Cross-Defendants’ ability to

raise the challenge to the alleged failure to abide by the pre-filing requirements of Civil

Code section 1714.10 through a more appropriate procedural vehicle.

The Court declines to award sanctions.

Explanation:

Plaintiff and Cross-Defendants move for sanctions pursuant to Code of Civil

Procedure sections 128.5 and 128.7. Code of Civil Procedure section 128.5, subdivision

(a), states:

A trial court may order a party, the party's attorney, or both, to pay the

reasonable expenses, including attorney's fees, incurred by another party

as a result of actions or tactics, made in bad faith, that are frivolous or

solely intended to cause unnecessary delay.

Prior to filing such a motion, the complaining party must follow a “safe harbor”

procedure, giving the opposing party a 21-day opportunity to withdraw the offending

document before filing the motion for sanctions. (Code Civ. Proc. §128.5, subd.

(f)(1)(D).)

The moving parties have filed a proof of service for what they describe as a letter

evidencing compliance with the safe harbor procedure, but the notice itself is not

included with the motion. The opposing parties do not object to the motion on this

ground.

The moving parties contend that the fifth cause of action of the cross-complaint

for extortion and conspiracy to commit extortion is “frivolous” for purposes of Code of

Civil Procedure section 128.5. Section 128.5, subdivision (b)(2), defines “frivolous” as

either (1) “totally and completely without merit” or (2) “for the sole purpose of harassing

an opposing party.” The case law setting forth the standard for “frivolous” states that a

25

“suit indisputably has no merit only where any reasonable attorney would agree that

the action is totally and completely without merit.” (Finnie v. Town of Tiburon (1988) 199

Cal.App.3d 1, 12.)

The moving parties suggest that it is plain that, in order to have filed the fifth

cause of action, the opposing parties were required to obtain leave of court pursuant

to Civil Code section 1714.10.

Civil Code section 1714.10, subdivision (a), states, in pertinent part:

No cause of action against an attorney for a civil conspiracy with his or

her client arising from any attempt to contest or compromise a claim or

dispute, and which is based upon the attorney's representation of the

client, shall be included in a complaint or other pleading unless the court

enters an order allowing the pleading that includes the claim for civil

conspiracy to be filed after the court determines that the party seeking to

file the pleading has established that there is a reasonable probability that

the party will prevail in the action. The court may allow the filing of a

pleading claiming liability based upon such a civil conspiracy following

the filing of a verified petition therefor accompanied by the proposed

pleading and supporting affidavits stating the facts upon which the

liability is based. The court shall order service of the petition upon the

party against whom the action is proposed to be filed and permit that

party to submit opposing affidavits prior to making its determination.

Civil Code section 1714.10, subdivision (b), makes the failure to obtain a court

order a defense to any action for civil conspiracy and notes that the defense “shall be

raised by the attorney charged with civil conspiracy upon that attorney's first

appearance by demurrer, motion to strike, or such other motion or application as may

be appropriate. Failure to timely raise the defense shall constitute a waiver thereof.”

Finally, Civil Code section 1714.10, subdivision (c), states:

This section shall not apply to a cause of action against an attorney for a

civil conspiracy with his or her client, where (1) the attorney has an

independent legal duty to the plaintiff, or (2) the attorney's acts go

beyond the performance of a professional duty to serve the client and

involve a conspiracy to violate a legal duty in furtherance of the

attorney's financial gain.

The opposing parties contend that their claim falls within the exception of Civil

Code section 1714.10, subdivision (c)(1), and/or that the moving parties should have

brought a demurrer or motion to strike pursuant to Civil Code section 1714.10,

subdivision (b). The Court need not reach the merits, as the Code of Civil Procedure

section 128.5 procedure is inappropriate in this instance.

The statute is clear that the proper method for resolving the question of whether

a party should move for leave to file a conspiracy claim against a party and his/her/its

attorney is to challenge the issue by demurrer or motion to strike “or such other motion

26

or application as may be appropriate.” (Civ. Code §1714.10, subd.(b).) The Court is

aware of no reported case in which a Civil Code section 1714.10 issue was raised by a

motion for sanctions pursuant to Code of Civil Procedure section 128.5. Although Code

of Civil Procedure section 128.5 provides for “directives of a nonmonetary nature,”

there is nothing in that section which authorizes the Court to direct the opposing parties

to file a new pleading. Additionally, section 128.5 merely questions whether the

objective and/or subjective purpose of the party filing the motion was frivolous; it does

not require any other substantive determination.

On the other hand, Civil Code section 1714.10, subdivision (d), provides that any

order made under subsections (a), (b), or (c), which “determines the rights of a

petitioner or an attorney against whom a pleading has been or is proposed to be filed”

is appealable. It is arguable whether assessing the merits of whether a party is bound

by section 1714.10 through the prism of section 128.5 actually “determines the rights” of

the parties. As a consequence, it appears that using section 128.5 to challenge the

parties’ failure to obtain pre-filing permission is not an “other motion or application as

may be appropriate” for purposes of section 1714.10, subdivision (b).

Defendants have also moved pursuant to Code of Civil Procedure section 128.7,

which allows for sanctions if a pleading is filed for an improper purpose or was

indisputably without merit, either legally or factually. (Code Civ. Proc., §128.7, subd.

(b)(1), (2).) However, this motion is directed not at the cross-complaint per se, but at an

alleged failure to seek pre-filing approval before filing the pleading. Section 128.7 is

therefore not applicable to this case.

The motion for sanctions is denied without prejudice to bringing the issue before

the Court using another procedural method.

The Court notes that attorney’s fees are awardable under Code of Civil

Procedure section 128.5, subdivision (f)(1)(C), at the Court’s discretion. “If warranted,

the court may award to the party prevailing on the motion the reasonable expenses

and attorney’s fees incurred in presenting or opposing the motion.” The Court declines

to award attorney’s fees in this case.

Likewise, Code of Civil Procedure section 128.7, subdivision (h), allows for a

motion for sanctions for bringing a section 128.7 motion for an “improper purpose.” No

separate motion has been filed. Therefore, the Court will not award any additional

sanctions or attorney’s fees under section 128.7, subdivision (h).

Finally, in the reply brief, the moving parties argue that opposing counsel’s

“refusal to meet and confer” meant that the moving parties could not file their

demurrer or motion to strike. However, the failure to meet and confer is not a ground to

overrule or sustain a demurrer. (Code Civ. Proc., §430.41, subd.(a)(4).) The parties are

reminded of their general duty to abide by the statutory provisions and obligations to

meet and confer in good faith.

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

27



Tentative Ruling

Issued By: KAG on 3/26/19.


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