1
Tentative Rulings for January 15, 2021
Department 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).)
16CECG00199 Moreno v. Moreno (Dept. 503, afternoon session)
The court has continued the following cases. The deadlines for opposition and reply
papers will remain the same as for the original hearing date.
18CECG01751 Cortes v. Goodwin is continued to January 22, 2021, at 9:00 a.m., in
Dept. 503
19CECG01210 Vallejos v. Saint Agnes Medical Center/Fresno is continued to
January 22, 2021, at 9:00 a.m., in Dept. 503
19CECG02932 Farias v. Ciresi is continued to April 8, 2021 in Dept. 503
20CECG02410 Kurtmen v. Honarchian is continued to January 22, 2021, at 9:00
a.m., in Dept. 503
20CECG00772 Shaw Creek Homeowners Assoc. v. Admiral Ins Group, LLC is
continued to March 2, 2021 in Dept. 503
________________________________________________________________
(Tentative Rulings begin at the next page)
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Tentative Rulings for Department 503 (AM)
Begin at the next page
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(27)
Tentative Ruling
Re: Praetorian Insurance Company v. Haight Brown & Bonesteel,
LLC
Superior Court Case No. 20CECG01978
Hearing Date: January 15, 2021 (Dept. 503)
Motion: By Defendant to Stay
Tentative Ruling:
To deny, without prejudice.
Explanation:
“Trial courts generally have the inherent power to stay proceedings in the interests
of justice and to promote judicial efficiency.” (Freiberg v. City of Mission Viejo (1995) 33
Cal.App.4th 1484, 1489.) In addition, “judges shall have the responsibility to eliminate
delay in the progress and ultimate resolution of litigation . . . .” (Gov. Code, § 68607.)
Here, both this lawsuit, as well as the lawsuit filed in the United States District Court
for the Northern District of California, make the same factual allegations—that Defendant
did not communicate early settlement offers in the personal injury case Ramirez, et al. v.
Interstate Home Services, Inc., et al., Fresno County Superior Case No. 15CECG01733.
Accordingly, in light of the common factual basis of both proceedings, it appears that
inconsistent rulings are possible.
Nevertheless, although it has not been processed, Plaintiff has presented an
executed stipulation to dismiss the Northern District case. In light of the stipulation, and
presumably forthcoming order, staying this proceeding would not promote the statutory
requirements of expeditious and efficient case progression. (See Gov. Code, § 68607;
see also Evid. Code, § 664 [“It is presumed that official duty has been regularly
performed.”].)
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: KAG on 1/5/2021 .
(Judge’s initials) (Date)
4
(19)
Tentative Ruling
Re: Sengrath v. Audeamus
Superior Court Case No. 20CECG02302
Hearing Date: January 15, 2021 (Dept. 503)
Motion: Motion by defendants Audeamus and Rita Garcia to compel
arbitration
Tentative Ruling:
To deny.
Explanation:
“The ordinary rules of contract interpretation apply to arbitration agreements.
(Hotels Nevada, LLC v. Bridge Banc, LLC (2005) 130 Cal.App.4th 1431 . . . .) The court
should attempt to give effect to the parties' intentions, in light of the usual and ordinary
meaning of the contractual language and the circumstances under which the
agreement was made (Civ.Code, sections 1636, 1644, 1647).” (Rice v. Downs (2016) 248
Cal.App.4th 175, 186.)
The evidence shows that an entity named Sebastian Enterprises, Inc. agreed with
plaintiff to arbitrate any disputes between them. That entity is not a defendant, and no
dispute between plaintiff and it is shown. The evidence shows that plaintiff was employed
and paid by Kertel Communications (which became Audeamus after a merger), insured
under a long-term care policy issued to Kertel, and had a flexible spending account
through Kertel. There is an employment dispute between plaintiff and Audeamus. While
Audeamus uses a dba of “Sebastian,” it is a separate corporation from Sebastian
Enterprises, Inc.; none of the documents other than the arbitration agreement mentions
Sebastian Enterprises, Inc.
Defendant Rita Garcia states that she has acted as the Human Resources
Manager for Audeamus since 2019, after the agreement was signed, and that she found
the agreement in plaintiff’s personnel file. She states that Audeamus has a policy of
providing “an” arbitration agreement to new hires. Defendant Garcia and Robin Stith
also testify that Sebastian Enterprises Inc. “assigned” plaintiff’s application for
employment to Kertel/Audeamus, who did hire plaintiff. That confirms that Sebastian
Enterprises, Inc. itself decided not to form an employment relationship with plaintiff.
“To construe that section of the Agreement to include payments made under
those agreements would contravene the principle that if the plain language of the
instrument is unambiguous, a court may not ‘read into’ the document additional terms
in order to conform its meaning to what the court's intuition tells it the parties must have
intended. Rather, the court is simply to ascertain and declare what is in terms or in
substance contained therein, not to insert what has been omitted, or to omit what has
5
been inserted . . . .” (G&W Warren’s Inc. v. Dabney (2017) 11 Cal.App.4th 565, 578,
internal quotes omitted.) To substitute the Kertel or Audeamus corporations for Sebastian
Enterprises, Inc. would violate this principle.
To deem “Sebastian Enterprises, Inc.” to be ambiguous would also provide no
basis to grant the motion. “[A]mbiguities in written agreements are to
be construed against their drafters. (Civ.Code section 1654; Rest. 2d Contracts, section
206.) As the Restatement explains, “Where one party chooses the terms of a contract,
he is likely to provide more carefully for the protection of his own interests than for those
of the other party. He is also more likely than the other party to have reason to know of
uncertainties of meaning.” (Sandquist v. Lebo Automotive, Inc. (2016) 1 Cal.5th 233, 248.)
If the arbitration agreement was intended to benefit separate corporations other than
Sebastian Enterprises, Inc., this could have easily been stated in the language of the pre-
printed form presented to plaintiff on an admittedly “take it or leave it” basis. It was not.
Although not expressly stated, it appears that defendants are arguing a mistake
was made in using a contract which referenced only Sebastian Enterprises, Inc. as the
employer. Ms. Stith claims what is in essence a unilateral mistake. The usual remedy for
unilateral mistake is rescission, not to give the party making the mistake the benefit of the
bargain it wishes it had made - but did not. (See Donovan v. RRL Corp. (2001) 26 Cal.4th
261 [auto dealer that advertised vehicle at price $12,000 less than should have been
stated, due to typographical error, permitted to rescind, not force buyer to pay extra
$12,000].)
Such a mistake is described in Civil Code section 1577, which states:
MISTAKE OF FACT. Mistake of fact is a mistake, not caused by the neglect
of a legal duty on the part of the person making the mistake, and consisting
in:
1. An unconscious ignorance or forgetfulness of a fact past or present,
material to the contract; or,
2. Belief in the present existence of a thing material to the contract, which
does not exist, or in the past existence of such a thing, which has not existed.
Ms. Stith states that she never worked for Sebastian Enterprises, Inc. and that she
was acting for Audeamus when she signed, and had plaintiff sign, an arbitration
agreement which did not mention Kertel or Audeamus. She provides no basis for finding
that she was unconscious, ignorant, or forgetful of the fact that the agreement listed only
Sebastian Enterprises, Inc. as the employer. No mistake allowing the remedy sought by
defendants appears.
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
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adopting this tentative ruling will serve as the order of the court and service by the clerk
will constitute notice of the order.
Tentative Ruling
Issued By: KAG on 1/8/2021 .
(Judge’s initials) (Date)
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(03)
Tentative Ruling
Re: Duarte v. Pollen Collection & Sales, Inc.
Superior Court Case No. 19CECG01832
Hearing Date: January 15, 2021 (Dept. 503)
Motion: By Defendant/Cross-Complainant Pollen Collection & Sales
for Summary Judgment or, in the Alternative, Summary
Adjudication of Plaintiff’s Complaint
By Defendant/Cross-Complainant Pollen Collection & Sales
for Summary Judgment or, in the Alternative, Summary
Adjudication of Its Cross-Complaint
Tentative Ruling:
To grant defendant/cross-complainant Pollen Collection & Sales, Inc.’s (“PCS”)
motion for summary judgment of plaintiff/cross-defendant Miguel Duarte’s (“Duarte”)
complaint, as well as PCS’s motion for summary judgment on its cross-complaint against
Duarte. (Code Civ. Proc., § 437c.) PCS shall submit a proposed judgment consistent with
this order within 10 days of service of the minute order.
Explanation:
PCS’s Motion for Summary Judgment/Adjudication of Duarte’s Complaint: PCS has
met its burden of showing that Duarte cannot prove the elements of his claims raised in
his complaint, as he has admitted that there is no evidence to support his claims.
Specifically, Duarte has been deemed to have admitted that:
1. There was no written agreement between PCS and Duarte.
2. PCS did not breach any agreement it had with Duarte.
3. PCS paid Duarte for all sums he was entitled to receive from PCS.
4. PCS does not owe Duarte any sum, whatsoever, or at all.
5. PCS did not breach any covenant of good faith and fair dealing it had with
Duarte.
6. PCS was not unjustly enriched in its dealings with Duarte.
7. Duarte has no account upon which PCS owes any money to Duarte.
8. Duarte has been paid in full for any goods sold and delivered to PCS.
9. PCS did not divulge to the public any of Duarte's personal information.
10. PCS did not divulge to the public any of Duarte's confidential information.
11. PCS did not divulge to the public any of Duarte's trade secrets.
12. PCS did not divulge to Campos Bros. any of Duarte's personal information.
13. PCS did not divulge to Campos Bros. any of Duarte's confidential
information.
14. PCS did not divulge to Campos Bros. any of Duarte's trade secrets.
15. PCS has not used any of Duarte's personal information for its benefit.
16. PCS has not used any of Duarte's confidential information for its benefit.
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17. PCS has not used any of Duarte's trade secrets for its benefit.
(See PCS’s Separate Statement of Undisputed Facts, Nos. 1-23.)
Therefore, PCS has met its burden of showing that there are no triable issues of
material fact with regard to any of Duarte’s claims, and that it is entitled to summary
judgment as to the entire complaint. Duarte has not filed any opposition or submitted
any evidence or authorities that would raise any triable issues of material fact with regard
to any of his causes of action. As a result, the court grants summary judgment as to
Duarte’s entire complaint. (Code Civ. Proc., § 437c.)
PCS’s Motion for Summary Judgment of Its Cross-Complaint: PCS has also met its
burden of showing that its cross-claims against Duarte have merit, and that Duarte has
no evidence to prove any of his denials or affirmative defenses to the cross-claims.
Specifically, Duarte has been deemed to have admitted that:
1. Duarte owes PCS the sum of $37,134.44.
2. Duarte breached his agreement with PCS relating to Campos Bros.
3. PCS has an account on which Duarte owes PCS the sum of $37,134.44.
Therefore, PCS has shown that there are no triable issues with regard to its cross-
claims against Duarte. Duarte has not filed any opposition or submitted any evidence or
authorities that would raise a triable issue of material fact with regard to the cross-claims.
As a result, the court grants summary judgment in favor of PCS and against Duarte as to
all of the cross-claims in the cross-complaint.
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: KAG on 1/8/2021 .
(Judge’s initials) (Date)
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(30)
Tentative Ruling
Re: Fajita Fiesta Mexican Restaurant, Inc. v. Agricultural Contracting
Services Association, Inc.
Superior Court Case No. 18CECG02410
Hearing Date: January 15, 2021 (Dept. 503)
Motion: Motion to File a Second Amended Complaint by Plaintiff Fajita
Fiesta Mexican Restaurant, Inc.
Tentative Ruling:
To grant, with plaintiff’s proposed second amended complaint deemed to be
filed as of the date of this order.
Explanation:
One not named as a party in the original complaint may be made a party to the
action by amendment of the complaint pursuant to Code of Civil Procedure section 473.
(Nissan v. Barton (1970) 4 Cal.App.3d 76, 79.) The trial court must consider various factors
in deciding whether to permit such an amendment, including whether the substitution
would prejudice the defendant (e.g., by delaying trial, or increasing discovery burden).
(Demetriades v. Yelp, Inc., (2014) 228 Cal.App.4th 294, 306; Royal Thrift & Loan Co. v.
County Escrow, Inc. (2004) 123 Cal.App.4th 24, 41–42; Jensen v. Royal Pools (1975) 48
Cal.App.3d 717, 721.)
Where no prejudice is shown to the adverse party, “courts are bound to apply a
policy of liberality in permitting amendments to the complaint at any stage of the
proceedings, up to and including trial.” (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739,
761; Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564; Congleton v. Natl. Union Fire Ins.
Co. (1987) 189 Cal.App.3d 51, 62; see also Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596.)
Here, plaintiff seeks to add two new parties: California Analytics, LLC and
Compass Pilot Workers Compensation Benefit Trust. The proposed amendments are
permissible. The proposed defendants are alleged to be alter egos of named
defendants, and the factual allegations are unchanging. All allegations are still related
to the alleged unauthorized sale of worker’s compensation insurance by defendants.
Prejudice is also unlikely. The proposed amendments will not result in an increase
in the amount of discovery because neither the facts nor the parties have changed
significantly. The potential for delay of trial is also low. The case is still in the early phases
of discovery, and trial is not scheduled until November 15, 2021.
Accordingly, plaintiff’s motion for leave to amend to file a second amended
complaint is granted.
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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: KAG on 1/11/2021 .
(Judge’s initials) (Date)
11
(19)
Tentative Ruling
Re: Mercy Springs Water District v. All Interested
Superior Court Case No. 20CECG03420
Hearing Date: January 15, 2021 (Dept. 503)
Motion: Application by plaintiff under Code of Civil Procedure section 861
Tentative Ruling:
To grant, on the condition that the response date in the summons is modified to
February 26, 2021. The previously lodged documents failed to note that the publication
must also take place in the Hanford Sentinel. A revised order setting forth publication
dates in accordance with this order and other proposed changes must be lodged, along
with a revised summons.
Explanation:
Plaintiff has provided evidence of persons and entities receiving the water at issue
in the contract appended to the complaint and provided an acceptable plan for
providing notice to such interested persons, including by mail where practicable.
However, a revised summons and proposed order which set forth the changes and which
contain a later response date than January 30 must be lodged.
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: KAG on 1/11/2021 .
(Judge’s initials) (Date)
12
(20) Tentative Ruling
Re: Dituri v. North Point Healthcare & Wellness Centre, LP, et al.
Superior Court Case No. 20CECG00310
Hearing Date: January 15, 2021 (Dept. 503)
Motion: Defendant Schlomo Rechnitz’s Petition to Compel
Arbitration
Tentative Ruling:
To grant and compel plaintiffs to arbitrate their claims against Schlomo Rechnitz.
The action is stayed pending arbitration.
Explanation:
In moving to compel arbitration, a defendant must prove by a preponderance of
evidence the existence of the arbitration agreement and that the dispute is covered by
the agreement. The party opposing the motion must then prove by a preponderance
of evidence that a ground for denial of the motion exists (e.g., fraud, unconscionability,
etc.). (Rosenthal v. Great Western Fin'l Securities Corp. (1996) 14 Cal.4th 394, 413-414;
Hotels Nevada v. L.A. Pacific Ctr., Inc. (2006) 144 Cal.App.4th 754, 758; Villacreses v.
Molinari (2005) 132 Cal.App.4th 1223, 1230.)
In ruling on the petition to compel arbitration by defendants North Point
Healthcare & Wellness Centre, LP (“North Point”) and Boardwalk West Financial Services,
LLC (“Boardwalk”), the court found: (1) this case is governed by the Federal Arbitration
Act (“FAA”), (2) the delegation clause is enforceable (it is not unconscionable), (3)
plaintiffs are bound by the arbitration agreement, (4) plaintiffs’ other defenses to
arbitration must be resolved by the arbitrator pursuant to the delegation clause; and (5)
the individual wrongful death claims are subject to arbitration. Those issues have already
been decided, and the court adopts and incorporates its findings and reasoning from
the July 31, 2020 Law and Motion Minute Order.
The only remaining question is whether the arbitration agreement is enforceable
by defendant Rechnitz.
Generally, only signatories to an arbitration agreement may seek to enforce it.
However, a non-signatory sued as an agent of a signatory may enforce an arbitration
agreement both as to arbitration agreements governed by state law and the FAA.
(Rowe v. Exline (2007) 153 Cal.App.4th 1276, 1282; Boucher v. Alliance Title Co., Inc. (2005)
127 Cal.App.4th 262, 268; Turtle Ridge Media Group, Inc. v. Pacific Bell Directory (2006)
140 Cal.App.4th 828, 833.) “[T]he equitable estoppel doctrine applies when a party has
signed an agreement to arbitrate but attempts to avoid arbitration by suing nonsignatory
defendants for claims that are ‘based on the same facts and are inherently inseparable’
from arbitrable claims against signatory defendants.’” (Ibid., quoting Metalclad Corp. v.
Ventana Environmental Organizational Partnership (2003) 109 Cal.App.4th 1705, 1713-
1714.)
13
In Dryer v. Los Angeles Rams (1985) 40 Cal.3d 406, individuals acting as agents for
the Los Angeles Rams professional football team were entitled to the benefit of the
arbitration provisions in the collective bargaining agreement, even though they were
not, as individuals, signatories to the collective bargaining agreement.
Here, the complaint alleges that defendants, including defendant Rechnitz, were
“owners, operators, administrators, employers and/or managers of [North Pointe].”
(Complaint ¶¶ 6, 7.) The complaint further alleges that they “actively participated in,
authorized, and/or directed the operation of [North Pointe] the conduct of its agents and
employees through employment, training, and supervision of Administrators, Directors of
Nursing, and other employees at [North Pointe].” (Ibid.) Moreover, section 2.2 of the
arbitration agreement provides that the arbitration agreement binds the parties hereto,
but also includes the heirs, representatives, executors, administrators, successors and
assigns of such parties.
Based on these allegations and the contractual provision, defendant Rechnitz
can compel arbitration, as well. Plaintiffs make no argument in opposition to this point.
Pursuant to Cal. 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: KAG on 1/12/2021 .
(Judge’s initials) (Date)
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(24)
Tentative Ruling
Re: Sepeda v. Bispham
Superior Court Case No. 18CECG01500
Hearing Date: January 15, 2021 (Dept. 503)
Motion: Doe 1 Defendant Eric Johnson’s Demurrer to and Motion to
Strike Plaintiff’s Complaint
Tentative Ruling:
To take the motions off calendar as moot given plaintiff’s filing of a First Amended
Complaint. (Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122
Cal.App.4th 1049, 1054; People ex rel. Strathmann v. Acacia Research Corp. (2012) 210
Cal.App.4th 487, 506.) Any challenges to the amended pleading must be raised by new
motion(s). Defendant Eric Johnson is granted 20 days’ leave to respond to the First
Amended Complaint, with the time to run from service of the minute order by the clerk.
In the event defendant challenges the First Amended Complaint with further motions,
plaintiff may not further amend the complaint absent court order, obtained either by
stipulation or by noticed motion.
Explanation:
It is apparent that the First Amended Complaint is directed to the objections raised
by defendant Eric Johnson on these motions, and that during meet and confer plaintiff
proposed amending the complaint to address at least some of these concerns. It is true
that plaintiff should have first requested leave to amend before filing the First Amended
Complaint if defendant refused to stipulate to amendment. (Code Civ. Proc., § 472;
Alden v. Hindin (2003) 110 Cal.App.4th 1502, 1508-1509.)
However, in the context of the current COVID-19 pandemic, the court’s resources
and its calendar are strained to the breakpoint; judicial economy is at its highest premium
in these unprecedented times. Given that this was the first attack on the pleading, the
court does not doubt that any ruling on these two motions would have included leave
to amend. Therefore, no one is prejudiced by this order, and it is consistent with the
court's inherent authority to manage and control its docket. (Code Civ. Proc., §§ 128,
subd. (a), and 187; Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 187,
192-193.)
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: KAG on 11/13/2021 .
(Judge’s initials) (Date)
15
Tentative Rulings for Department 503 (PM)
Begin at the next page
16
(27)
Tentative Ruling
Re: Ramirez v. Wildrose Chapel and Funeral Home
Superior Court Case No. 19CECG01112
Hearing Date: January 15, 2021 (Dept. 503)
Motion: Defendant Cairns Funeral Home’s Motion to Strike First
Amended Complaint, Joined by Defendant Wildrose Chapel
and Funeral Home
Tentative Ruling:
To grant the request for judicial notice. (Evid. Code, § 452, subd. (c), (d).) To grant
the motion to strike, without leave to amend. (Code of Civ. Proc., § 435, subd. (a).)
Explanation:
A decedent’s competent surviving spouse is one of the enumerated persons
entitled to control the disposition of the decedent’s remains. (Health & Saf. Code, § 7100,
subd. (a)(2); In re Cornitius’ Estate (1957) 154 Cal.App.2d 422, 442.) In addition, “[a]
subsequent marriage contracted by a person during the life of his or her former spouse,
with a person other than the former spouse, is illegal and void . . . .” (Fam. Code § 2021;
In re Marriage of Tejeda (2009) 179 Cal.App.4th 973, 980.)
Here, defendant’s request for judicial notice includes plaintiff’s marriage
certificate which indicates she married the decedent on December 9, 2016. The request
for judicial notice also includes the court record for plaintiff’s nullity of marriage
proceeding against Luciano Lopez, Sr. – Fresno Superior Court Case No. 07CEFL07094.
According to the record, Case No. 07CEFL07094 was administratively disposed
and never reached final adjudication. Consequently, plaintiff’s marriage to Luciano
Lopez, Sr. was still in existence at the time she married the decedent on December 9,
2016 – a circumstance which indicates her subsequent marriage to the decedent was
“illegal and void.” (Fam. Code, § 2021.) Accordingly, without contrary evidence,
plaintiff’s assertion in the first amended complaint that she was decedent’s wife is false,
and therefore subject to a motion to strike. (Code of Civ. Proc., § 436, subd. (a) [“The
court may . . . [¶](a) [s]trike out any irrelevant, false, or improper matter inserted in any
pleading.”].)
In addition, without a claim that she was married to the decedent, plaintiff was
not entitled to control the disposition of the decedent’s remains, thereby eliminating the
theory of liability asserted in the complaint. (Health & Saf. Code, § 7100, subd. (a)(2); In
re Cornitius’ Estate (1957) 154 Cal.App.2d 422, 442.) Finally, plaintiff has not filed an
opposition.
Therefore, the motion to strike is granted. (Code of Civ. Proc., § 435, subd. (a).)
Considering that this is the second motion on this ground and the lack of opposition, there
17
is no claim that the defects can be cured. Thus, leave to amend is not granted. (See
Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768 [leave to amend in response to motion
to strike, as with a demurrer, should only be granted where defect can be cured by
amendment].)
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: KAG on 1/13/2021 .
(Judge’s initials) (Date)
18
(17)
Tentative Ruling
Re: Seeley v. Covenant Care, LLC, et al,
Superior Court Case No. 19CECG01550
Hearing Date: January 15, 2021 (Dept. 503)
Motions: Defendants’ Demurrer and Motion to Strike Second Amended
Complaint
Tentative Ruling:
To overrule defendants’ demurrer to plaintiffs’ first and second causes of action.
(Code Civ. Proc., §430.10, subd. (e).)
To deny defendants’ motion to strike. (Code Civ. Proc. §§ 435, 436.)
Explanation:
Demurrer
On a demurrer, the facts alleged in the pleading are deemed to be true, as it is
“not the ordinary function of a demurrer to test the truth of the plaintiff's allegations or
the accuracy with which [plaintiff] describes the defendant's conduct. A demurrer tests
only the legal sufficiency of the pleading.” (Quelimane Co. v. Stewart Title Guaranty Co.
(1998) 19 Cal.4th 26, 47.) The pleading is adequate if it apprises the defendant of the
factual basis for the plaintiff's claim. (Perkins v. Superior Court (1981) 117 Cal.App.3d 1,
6.)
First Cause of Action -- Elder Abuse (Neglect)
The Elder Abuse Act (Welf. & Inst. Code, § 15600 et seq.) is intended “to protect a
particularly vulnerable portion of the population from gross mistreatment in the form of
abuse and custodial neglect,” including those residents of nursing homes. (Delaney v.
Baker (1999) 20 Cal.4th 23, 33, 40 (Delaney).) “ ‘[N]eglect’ . . . [refers to] the failure of
those responsible for attending to the basic needs and comforts of elderly or dependent
adults . . . to carry out their custodial obligations.” (Id., at p. 34.) To establish “neglect”,
“[t]he plaintiff must allege . . . facts establishing that the defendant: (1) had responsibility
for meeting the basic needs of the elder or dependent adult, such as nutrition, hydration,
hygiene or medical care; (2) knew of conditions that made the elder or dependent adult
unable to provide for his or her own basic needs; and (3) denied or withheld goods or
services necessary to meet the elder or dependent adult's basic needs, either with
knowledge that injury was substantially certain to befall the elder or dependent adult . . .
or with conscious disregard of the high probability of such injury . . . . The plaintiff must
also allege . . . that the neglect caused the elder or dependent adult to suffer physical
harm, pain or mental suffering. (Carter v. Prime Healthcare Paradise Valley LLC (2011)
198 Cal.App.4th 396, 406–407, internal citations omitted.)
19
Defendants claim the first cause of action fails because it is not alleged with the
requisite particularity. (Demurrer at 12:14-16.) Elder abuse, as a statutory cause of action,
must be pleaded with particularity. (Covenant Care, Inc. v. Superior Court (2004) 32
Cal.4th 771, 790.)
Plaintiffs contend that Seeley was age 85. (SAC, ¶ 11.) On March 28, 2018, Seeley
became a resident at Pacific Gardens, a skilled nursing facility operated by defendants.
(SAC, ¶ 12.) Defendants thus had the care and custody of Seeley, and were responsible
for his health, safety, and well-being, including meeting Seeley’s basic needs of nutrition,
hydration, hygiene or medical care. (SAC, ¶¶ 14, 40.)
Defendants knew that Seeley could not provide for his own nutrition, hydration,
hygiene and medical care and that he was fully dependent on defendants’ care,
because he was weak from a prior hospitalization, and could not walk independently.
(SAC, ¶¶ 40, 41.) Seeley was put in diapers on his first arrival at the facility as part a
conscious plan by defendants to leave him in bed “virtually 24 hours a day.” (SAC, ¶ 42.) Defendants “rarely” answered Seeley’s call light, causing him to remain in soiled diapers
for hours on end. (Ibid.) Defendants knew that this increased the risk of Seeley’s leg
wound worsening and developing sepsis. (Ibid.) Moreover, defendants failed to obtain
necessary medical care despite knowing that Seeley’s leg wound was deteriorating,
needing medical attention that Seeley could not obtain on his own. (Ibid.) This neglect
caused Seeley to suffer physical harm, pain, humiliation, mental anguish and ultimately
death. (SAC, ¶ 44.)
These allegations are sufficient. (Knox v. Dean (2012) 205 Cal.App.4th 417;
Worsham v. O'Connor Hospital (2014) 226 Cal.App.4th 331, 335; Fenimore v. Regents of
the University of California (2016) 245 Cal.App.4th 1339, 1350.)
Elder Abuse Against Employing Entity Defendants
In order to state a cause of action for elder abuse and neglect against an
employer, the plaintiff must allege that an officer, director, or managing agent of the
defendant either (a) had advance knowledge of the unfitness of an employee and
employed him or her with a conscious disregard of the rights and safety of others, or (b)
authorized or ratified the wrongful conduct for which the damages are awarded, or (c)
was personally guilty of oppression, fraud, or malice. (Welf. & Inst. Code., § 15657,
subdivision (c).) Here, plaintiffs’ allege that defendant Bart Vander Wal was the
“Administrator” of Pacific Gardens and therefore legally responsible for the operation
and management of Pacific Gardens pursuant to 42 C.F.R. section 483.75, subdivision (d). (SAC, ¶¶ 52-55.)
Defendants argue that Vander Wal was “neither an officer, director, nor
managing agent of the corporate defendants.” (Demurrer at 13:13-15.) However,
plaintiffs have alleged that Vander Wal, was the “Administrator” and therefore legally
the “highest managing agent of the facility” and was hired to carry out the day-to-day
operations at the facility. (SAC, ¶ 52.) These allegations are sufficient.
Defendants also argue that the Second Amended Complaint lacks factual
allegation as to how Vander Wal "authorized or ratified" the conduct of facility staff.
20
(Demurrer at 13:14-15.) Ratification “commonly arises where the employer or its
managing agent is charged with failing to intercede in a known pattern of workplace
abuse, or failing to investigate or discipline the errant employee once such misconduct
became known. [Citations.] Corporate ratification in the punitive damages context
requires actual knowledge of the conduct and its outrageous nature.” (College Hospital
Inc. v. Superior Court (1994) 8 Cal.4th 704, 726; see also Fisher v. San Pedro Peninsula
Hospital (1989) 214 Cal.App.3d 590, 621.)
Here, plaintiffs’ allege that Vander Wal “knew that Pacific Gardens', under his
direction and control, was not providing” essential services including physical therapy for
residents such as Seeley, and that failure to provide those “services had a high probability
of causing harm, including death.” (SAC, ¶ 66.) These allegations are sufficient. The
demurrer to the first cause of action is overruled.
Second Cause of Action -- Violation of Patients’ Bill of Rights
Health and Safety Code section 1430, subdivision (b), grants a “former resident or
patient of a skilled nursing facility,” the right to bring a civil action against the licensee of
a facility who violates any rights of the resident or patient as set forth in the Patients’ Bill
of Rights” in the California Code of Regulations, “or any other right provided for by federal
or state law or regulation. . . .” “Patients shall have the right . . . to be free from mental
and physical abuse.” (22 Cal. Code of Regs., § 72527, subd. (a)(10).) Moreover, “[a]
facility must treat each resident with respect and dignity and care for each resident in a
manner and in an environment that promotes maintenance or enhancement of his or
her quality of life, recognizing each resident’s individuality. The facility must protect and
promote the rights of the resident.” (42 CFR § 483.10, subd. (a)(1).)
Plaintiffs allege that defendant Pacific Gardens Nursing and Rehabilitation Center
was, in fact a skilled nursing facility” (SAC, ¶ 5) which violated decedent’s right to be free
from “mental and physical abuse” under 22 California Code of Regulations section
72527(9). (SAC, ¶¶ 69-70.) Moreover, the facility breached its duty to “care for its
residents in a manner and in an environment that promotes the maintenance of
enhancement of each resident’s quality of life” and its duty to “ensure that the resident
environment remains as free of accident hazards as is possible, and each resident
receives adequate supervision and assistance devices to prevent accidents.” (Ibid.)
The allegations of the Second Amended Complaint at paragraphs 40-44, detailed
in reference to the first cause of action, and incorporated into the second cause of
action, are sufficient. (See SAC, ¶¶ 40-44, 67.) The demurrer to this cause of action is
overruled.
Motion to Strike
A motion to strike is the proper procedure to challenge an improper request for
relief, or improper remedy, within a complaint. (Code Civ. Proc., § 431.10, subd. (b);
Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166-167.) Defendants assert that
insufficient facts support the claim for punitive damages. With respect to punitive
damage allegations, mere legal conclusions of oppression, fraud or malice are
21
insufficient (and hence improper) and therefore may be stricken. However, if looking to
the complaint as a whole, sufficient facts are alleged to support the allegations, then a
motion to strike should be denied. (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6.)
“To support punitive damages, the complaint asserting one of those causes of action
must allege ultimate facts of the defendant's oppression, fraud, or malice.” (Spinks v.
Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1055 (emphasis
added).) Evidentiary facts are not required.
“[A]bsent an intent to injure the plaintiff, ‘malice’ requires more than a willful and
conscious disregard of the plaintiff’s interests. The additional component of ‘despicable
conduct’ must be found.” (College Hosp. Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.)
“Despicable” conduct is defined as “conduct which is so vile, base, contemptible,
miserable, wretched or loathsome that it would be looked down upon and despised by
ordinary decent people.” (Ibid.)
The allegations of defendant’s deliberate neglect of Seeley by leaving him bed
bound in filth, refusing to respond to him or provide him adequate therapy and care, plus
defendant’s knowledge of, and indifference to, his suffering are sufficiently despicable
as to justify the imposition of punitive damages.
The employer defendants argue that they cannot be held liable for punitive
damages. Pursuant to Civil Code section 3294, subdivision (b), punitive damages may
not be awarded against an employer based upon the acts of an employee unless the
employer (i) had advance knowledge of the unfitness of the employee and employed
him or her with a conscious disregard of the rights or safety of others, (ii) authorized or
ratified the wrongful conduct for which the damages are awarded, or (iii) was personally
guilty of oppression, fraud or malice. “With respect to a corporate employer, the
advance knowledge and conscious disregard, authorization, ratification or act of
oppression, fraud or malice must be on the part of an officer, director, or managing
agent of the corporation.” (Civ. Code, § 3294, subd. (b); see also White v. Ultramar, Inc.
(1999) 21 Cal.4th 563, 573.) Here, plaintiff’s allegations regarding Vander Wal acting as
the managing agent of defendants are sufficient. (See SAC, ¶¶ 49-58, 66.) Accordingly,
defendants’ motion to strike plaintiffs’ punitive damages claim is denied.
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: KAG on 1/14/2021 .
(Judge’s initials) (Date)
22
(24)
Tentative Ruling
Re: Mooradian v. State of California Department of Transportation
Superior Court Case No. 20CECG01299
Hearing Date: January 15, 2021 (Dept. 503)
Motions: (1) Real Party in Interest California Department of
Transportation’s Motion to Strike
(2) Petitioner Theodore B. Mooradian’s Motion to Augment
Record
Tentative Ruling:
To continue for further briefing on the issues discussed in the Explanation section
below. The parties are to provide simultaneous supplemental briefs, not to exceed 10
pages in the length, filed by Friday, January 29, 2021. The motions are continued to
Friday, February 28, 2021, at 1:30 p.m., in Department 503, as is the writ of mandate
briefing schedule hearing.
Explanation:
Code of Civil Procedure, section 1094.5, subdivision (e), provides as follows:
Where the court finds that there is relevant evidence that, in the exercise
of reasonable diligence, could not have been produced or that was
improperly excluded at the hearing before respondent, it may enter
judgment as provided in subdivision (f) remanding the case to be
reconsidered in the light of that evidence; or, in cases in which the court
is authorized by law to exercise its independent judgment on the
evidence, the court may admit the evidence at the hearing on the writ
without remanding the case.
(Code Civ. Proc., § 1094.5, subd. (e), emphasis added.)
Petitioner argues that the court’s standard of review in this matter will be
independent judgment because the matter concerned a fundamental vested right.
(Mtn. Strike Opp., p. 4:12-23.)1 The court found no reference in either of the California
Department of Transportation’s briefs regarding the appropriate standard of review.
Pursuant to Code of Civil Procedure section 1094.5, subdivision (e), it is vital for the court
to consider the appropriate standard of review in ruling on a motion to augment the
record to include evidence that was (as Petitioner contends) improperly excluded at the
administrative level.
1 Petitioner’s opposition brief also served as his memorandum of points and authorities in support
of his motion to augment.
23
From the court’s research, it appears that the independent judgment test does
not apply to decisions of state agencies which are endowed with adjudicatory power
by the California Constitution. The State Personnel Board, the respondent in this action,
is such an agency. (Cal. Const., Art. VII, § 3; State Personnel Bd. v. Department of
Personnel Admin. (2005) 37 Cal.4th 512, 522 [“Because the State Personnel Board derives
its adjudicatory authority from the state Constitution rather than from a legislative
enactment, a superior court considering a petition for administrative mandate must defer
to the Board's factual findings if they are supported by substantial evidence.”].) “It is well
established that an employer 's right to discipline or manage its employees is subject to
civil service and anti-discrimination regulation and is not a fundamental vested right
entitling the employer to have a trial court exercise its independent judgment on the
evidence.” (Los Angeles County Dept. of Parks & Recreation v. Civil Service Com. (1992)
8 Cal.App.4th 273, 279, emphasis in original [citing cases].)
However, there may be exceptions to this principle which were not revealed in
the court’s limited research, especially where both sides agree that Petitioner did not
have the opportunity to have a Skelly hearing prior to the demotion taking effect. Courts
use independent judgment on the question whether the procedure followed by the
agency complied with statutory or constitutional requirements. (City of Fairfield v.
Superior Court (1975) 14 Cal.3d 768, 776; California Hotel & Motel Assn. v. Industrial
Welfare Com. (1979) 25 Cal.3d 200, 209 [violation of requirement of Labor Code],
superseded on other grounds as stated in Brinker Restaurant Corp. v. Superior
Court (2012) 53 Cal.4th 1004.)
Since this issue was not fully briefed, the court will provide the parties an
opportunity to present their arguments before ruling on the instant motions.
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: KAG on 1/14/2021 .
(Judge’s initials) (Date)