1
Tentative Rulings for October 17, 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).)
18CECG04550 Rogers v. Lidestri Foods, Inc. et al. (Dept. 501) @ 3:00 p.m.
The court has continued the following cases. The deadlines for opposition and reply
papers will remain the same as for the original hearing date.
18CECG00586 Dominguez v. Holaday, all three motions, are continued to
Thursday, November 7, 2019, at 3:00 p.m. in Department 501.
________________________________________________________________
(Tentative Rulings begin at the next page)
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Tentative Rulings for Department 403
(20) Tentative Ruling
Re: Saad v. Kazanjian
Superior Court Case No. 17CECG03643
Hearing Date: If a party wishing to contest this tentative ruling notifies the
Court and opposing counsel between the hours of 3-4 p.m.
on October 16, 2019, the hearing will be held on 10/24/19 @
3:30 p.m. in Dept. 403.
Motion: Plaintiff/Cross-Defendant’s Motion for Summary Judgment or
Adjudication
Tentative Ruling:
To deny. (Code Civ. Proc. § 437c.)
Explanation:
Plaintiff and cross-defendant Zakaria Saad moves for summary judgment, or
alternatively summary adjudication, of both his complaint and the cross-complaint filed
by Derek Kazanjian.
This is a repetitive motions, seeking summary judgment of the same pleadings
and causes of action, and raising the same issues, as that denied on May 17, 2019.
A party may not move for summary judgment “based on issues asserted in a
prior motion for summary adjudication” that has been denied by the court unless
newly-discovered facts or circumstances supporting these issues, or a change of law,
are established to the satisfaction of the court. (Code Civ. Proc. § 437c(f)(2); see
Bagley v. TRW, Inc. (1999) 73 Cal.App.4th 1092, 1097 [new facts required even though
earlier motion based on same facts denied “without prejudice”]; Pender v. Radin (1994)
23 Cal.App.4th 1807, 1811-1812 [second motion proper where newly-discovered facts
shown].)
The Rutter Guide comments, “The apparent intent is to prevent repetitive
motions aimed at the same issues. The effect is that a motion for summary judgment,
based on issues as to which the court previously denied summary adjudication, is
treated similarly to a motion for reconsideration of the order denying summary
adjudication.” (Weil & Brown, Cal. Practice Guide: Civ. Proc. Before Trial (TRG 2019) ¶
10:373.2.)
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Here, Zakaria makes no showing that this motion, which is based on the same
issues raised in the prior motion, is based on newly-discovered facts or circumstances.
Zakaria simply filed a new motion. Since this is a repetitive motion, Zakaria has the
burden of showing that it is based on newly-discovered facts or circumstances, but has
made no attempt to satisfy this burden.
The court additionally notes that the prior motion was denied because Zakaria
failed to establish his damages. A plaintiff moving for summary judgment must establish
the fact and amount of damages. (Pajaro Volley Water Management Agency v.
McGrath (2005) 128 Col.App.4th 1093, 1106.) Zakaria submits additional information
and evidence relative to damages, but still fails to satisfy his burden as the moving
party. Aside from the speculative nature of the $3,000 per month in net profits serving
as the foundation for the damages calculation, Zakaria has not shown that he is
entitled to the damages for lost profits and goodwill. Zakaria states in his declaration
that Abdo owned the business, and that “Abdo transferred the business to me.”
(Zakaria Dec. ¶¶ 10, 11.) But he does not indicate how this transfer was accomplished,
or what exactly was transferred. Zakaria testified in his deposition that in 2015 he was
only being paid for his time working in the store two days per week. Abdo was owed
$50,000 to $70,000 (apparently by Zakaria). In 2015 Zacharia was only making what he
earned working 16 hours per week at the store, and Zakaria was not expecting to
derive any income from the store until Abdo had been paid in full. Aside from
ambiguity with regards to Zakaria’s ownership interest in the store, his own testimony
indicates that he had no right to the income or profits in the store until Abdo was
repaid. (Dhillon Dec. Exh. B, Zakaria Depo. 32:7-10.) Abdo testified that while Zakaria
was the owner of the store, Abdo was operating the store, Abdo would continue
receiving income from the store, and there was no agreement to have Zakaria start
collecting income at some point in the future. (Dhillon Dec. Exh. C, Abdo Depo. 80:21-
82:23.) Accordingly, Zakaria’s right to damages, and the extent of those damages, are
highly uncertain.
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 10/15/19 .
(Judge’s initials) (Date)
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(30)
Tentative Ruling
Re: Silvano Garcia Hernandez v. Purl’s Metal & Air Conditioning
Superior Court No. 18CECG03399
Hearing Date: If a party wishing to contest this tentative ruling notifies the Court
and opposing counsel between the hours of 3-4 p.m. on October
16, 2019 the hearing will be held on 10/24/19 @ 3:30 p.m. in Dept.
403.
Motion: Defendants California Highway Patrol and Officer Santos’ Demurrer
to Cause of Action One within the Second Amended Complaint
Tentative Ruling:
To overrule defendant’s demurrer, in its entirety.
Explanation:
In the case at bar, plaintiffs allege two causes of action: (1) violation of
Government Code sections 820, subdivision (a) & 815.2, et. seq.; and (2) negligence.
Only the first cause of action is directed at moving parties.
Defendants demur to cause of action one, pursuant to Code of Civil Procedure
section 430.10, subdivisions (e) & (f). Defendants argue that: (1) the facts are insufficient
to allege a cause of action for negligence because there was no special relationship
created between Officer Santos and the plaintiffs; and (2) the California Highway Patrol
cannot be held liable for negligence.
1. Special relationship created between Officer Santos and the plaintiffs
There is no general duty owed by members of the California Highway Patrol to
members of the general motoring public. (Williams v. State of California (1983) 34 Cal.3d
18, 24; Posey v. State of California (1986) 180 Cal.App.3d 836, 842.) Thus, law
enforcement officers, like other members of the public, generally do not have a legal
duty to come to the aid of a person. (Williams v. State of California, supra, 34 Cal.3d at
p. 24.)
However, a duty of care does arise when an officer engages in “an affirmative
act which places the person in peril or increases the risk of harm.” (Williams v. State of
California, supra, 34 Cal.3d at p. 24.) In other words, if an officer responds to a request
for assistance, “and their affirmative acts negligently cause harm to a person in need of
assistance, their misfeasance may create a special relationship and result in tort
liability.” (Camp v. State of California (2010) 184 Cal.App.4th 967, 970.)
In the case at bar, plaintiffs adequately allege negligence via a special
relationship. Plaintiffs allege that Officer Santos engaged in an affirmative act which
placed them in peril or increased the risk of harm, when he chose to create a zone of
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safety but then abandoned it without directing the parties to safety or throwing down
flares.
Mann v. State of California (1977) 70 Cal.App.3d 773 is instructive. In Mann,
plaintiff brought a personal injury action against the State arising out of a traffic
accident in which plaintiff and others were struck by a car on a freeway while standing
by two stalled cars. Viewing the record most favorably to plaintiff, the Court of Appeal
held that liability could attach to the State. In making its determination, the Court
focused on the following facts: the responding officer failed to instruct the occupants of
the stalled cars or other interested motorists to get back into their vehicles and to avoid
standing between the stalled cars; the responding officer left without advising any of
those present that he was leaving; the responding officer left the stranded cars
unprotected by the rearward flashing amber light of his patrol car; the responding
officer failed to throw down any protective flares; and the responding officer violated
several guidelines of the California Highway Patrol designed to enhance the safety of
motorists on freeways. The Court of Appeal held that – under the circumstances
described above – a special relationship could have been found to exist between
plaintiffs and the responding officer.
Mann is very similar to the case at bar. Like in Mann, this case arises out of a
traffic accident in which plaintiff Silvano Garcia Hernandez was struck by a car on the
freeway, while standing in between two cars involved in a traffic collision. Officer
Santos responded to the scene of the accident in his fully equipped patrol vehicle. He
pulled his vehicle beside the parties and turned on his flashing lights – thereby, making
the situation safer by clearing “the field” around the parties on the 99 Freeway. But
then, Officer Santos allegedly left plaintiffs in a dangerous situation. He continued
driving and parked in front of the parties and their vehicles, without throwing down any
protective flares or instructing the occupants of the cars (such as Mr. Hernandez) to get
back into their vehicles or to avoid standing between the parked cars. In so doing,
Officer Santos also violated several guidelines of the California Highway Patrol.
Defendants attempt to distinguish Mann, but their argument is unconvincing.
First, many of the facts to which defendants cite are actually analogous to the case at
bar. For instance, defendants cite to the fact that in Mann, Officer Lane did not throw
down flares. But here, like in Mann, Officer Santos also neglected to throw down flares.
Other facts to which defendants cite are not determinative. For example, defendants
cite to the fact that in Mann, the car which caused the secondary collision was driven
by a partially blind driver. This fact is unimportant. What matters when comparting the
two cases is that in Mann, the plaintiffs were hit by another driver because of the
danger that the responding officer created.
In support of their demurrer, defendants also cite to various cases with similar fact
patterns, wherein Courts hold that liability does not attach. However, in ruling on a
demurrer, the court must construe the complaint liberally “with a view to substantial
justice between the parties.” (Code Civ. Proc., § 452; Stevens v. Sup.Ct. (1999) 75
Cal.App.4th 594, 601; Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228,
1238.) So, where complaints show some right to relief, they are sufficient against
demurrer. (Gressley v. Williams (1961) 193 Cal.App.2d 636, 639.) Thus, in light of the Mann
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holding, the Second Amended Complaint is sufficiently states facts upon which a
special relationship could be found to exist between plaintiffs and the Officer Santos.
2. Vicarious liability
The argument that the State cannot be held vicariously liable is dependent upon
a finding that, as a matter of law, no special relationship existed between plaintiffs and
Officer Santos. Thus, it fails.
3. Code of Civil Procedure section 430.10, subdivision (f)
Defendants also demur based upon uncertainty. However, the accompanying
points and authorities fail to specify in what particulars the Second Amended
Complaint is uncertain. Where a demurrer is made upon this ground, it must distinctly
specify exactly how or why the pleading is uncertain, and where such uncertainty
appears (by reference to page and line numbers of the complaint). (Fenton v.
Groveland Comm. Services Dist. (1982) 135 Cal.App.3d 797, 809 [disapproved on other
grounds in Katzberg v. Regents of Univ. of Calif. (2002) 29 Cal.4th 300, 328].)
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 10/16/19 .
(Judge’s initials) (Date)
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Tentative Rulings for Department 501
(03)
Tentative Ruling
Re: Orozco v. Hodanu
Case No. 18CECG00965
Hearing Date: If timely requested on October 16, 2019 between 3-4 p.m., the
hearing will be held on THURSDAY October 17th @ 3:00 p.m. (Dept.
501)
Motion: Defendants Abolnik, Galamgam, and Nwaka’s Motion for
Summary Judgment
Tentative Ruling:
To grant defendants Abolnik, Galamgam, and Nwaka’s motion for summary
judgment. (Code Civ. Proc. § 437c.) To deny plaintiff’s cross-motion for summary
judgment against defendants. (Ibid.)
Explanation:
Plaintiff has sued defendants Abolnik, Galamgam, and Nwaka for elder neglect
based on their alleged failure to intervene to protect him from defendant Hodanu, who
allegedly assaulted and battered plaintiff. He alleges that he is over the age of 65 and
an inpatient at the Department of State Hospitals – Coalinga, and thus he is an elder or
dependent adult. (Complaint, ¶ 1.) Hodanu allegedly attacked and battered plaintiff
on November 12, 2017. (Id. at ¶ 4.) Plaintiff also alleges that defendants, who were
agents or employees of the Hospital, were entrusted with the custodial care of plaintiff
and failed to protect him from the physical and emotional harm caused by Hodanu.
(Id. at ¶ 8.)
Welfare and Institutions Code section 15657 allows a plaintiff to obtain enhanced
remedies, including attorney’s fees, costs, and punitive damages, when he or she can
demonstrate by clear and convincing evidence that the defendant is guilty of abuse or
neglect and acted with “recklessness, oppression, fraud or malice in commission of this
abuse.”
“‘Neglect’ means either of the following: (1) The negligent failure of any person
having the care or custody of an elder or a dependent adult to exercise that degree of
care that a reasonable person in a like position would exercise.” (Welf. & Inst. Code, §
15610.57, subd. (a)(1).) Also, “Neglect includes, but is not limited to, all of the following:
… (3) Failure to protect from health and safety hazards.” (Welf. & Inst. Code, §
15610.57, subd. (b)(3).)
Here, defendants have met their burden of producing evidence showing that
they did not breach any duty they owed to plaintiff, and nothing they did or failed to
do caused any of plaintiff’s injuries. In addition, the undisputed facts show that
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defendants did not do anything that would constitute the type of reckless, malicious,
oppressive, or fraudulent conduct that would warrant imposing enhanced relief under
the Elder and Dependent Adult Abuse Civil Protection Act. (Welf. & Inst. Code, §
15657.)
The undisputed facts show that defendants were either not present at the scene
when the altercation between plaintiff and Hodanu occurred, or they arrived too late
to intervene and protect plaintiff from being attacked and injured. Abolnik and Nwaka
both arrived on the scene after plaintiff and Hodanu had already stopped fighting and
had separated. (Defendants’ Undisputed Material Facts 31-48.)
Abolnik was with another patient in a “one-on-one” observation in the Sports
Room at the time of the incident. (UMF No. 31.) The patient she was with was curious
about the incident, and walked out of the Sports Room and went to the nurses’ station
to see what was happening. (UMF No. 32-34.) Abolnik saw a large number of patients
were gathered around the nurses’ station. (UMF No. 33.) She heard shouting and
yelling, including staff yelling “back up please”, and patients yelling random curse
words. (UMF No. 34.) The one-on-one patient stopped in front of the nurses’ station,
and Abolnik stopped behind him. (UMF No. 35.) There were about 20 patients blocking
Abolnik’s view, and she had to move her head to try to see across the nurses’ station.
(UMF No. 36.) She saw Hodanu, Montes, and plaintiff standing in the area outside the
nurses’ station in front of Hallway A. They were all separated, and Hodanu was about
five feet from plaintiff. (UMF No. 37.) Abolnik heard another alarm sound a few
seconds after she arrived. Department police officers arrived shortly afterwards. (UMF
No. 38.) Abolnik and the one-on-one patient went back to the Sports Room once the
DPS officers arrived. (UMF No. 39.)
Most of the witnesses did not recall whether defendants were even present at
the scene at the time of the incident. (UMF No.’s 49-53.) Only one witness, Mr. Elliott,
claims that Abolnik saw Hodanu beating plaintiff, but he admitted that Abolnik was on
the other side of the nurses’ station from the scene of the incident. (UMF No. 54.) Thus,
she could not have intervened in time to prevent plaintiff from being injured. Abolnik
likewise testified that she was standing on the opposite side of the nurses’ station from
the incident with about 20 patients blocking her from reaching plaintiff’s location, and
thus she was not in a position to intervene and protect plaintiff. (UMF No. 35.) As a
result, Abolnik has met her burden of producing evidence showing that she did not fail
to intervene and protect plaintiff, and therefore she was not guilty of elder neglect with
regard to the incident.
Plaintiff contends in opposition that Abolnik’s statements to the police during the
investigation of the incident are inconsistent with her declaration, and thus the court
should disregard them as false and perjured testimony. However, the police report
submitted by plaintiff is hearsay, and plaintiff has not laid a foundation for it or
established its authenticity. Nor has he shown that it is subject to a hearsay exception.
Defendants have objected to the admission of the report into evidence, and the court
intends to sustain the objection. Therefore, the report fails to raise a triable issue of
material fact with regard to whether Abolnik failed to protect plaintiff from Hodanu.
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In any event, even if the court were to consider the report, the statements of
Abolnik in the report appear to be entirely consistent with her declaration. (See Exhibit
A to Plaintiff’s Opposition.) Thus, the report fails to demonstrate that Abolnik’s
statements in her declaration in support of the summary judgment motion are false,
and the court intends to overrule plaintiff’s objection to her declaration.1
Plaintiff also contends that the other witnesses, who are patients at the Hospital,
did not testify truthfully to the facts of the incident because they are afraid of retaliation
from defendants or their agents or associates. Plaintiff objects to all of the deposition
testimony in support of defendants’ motion, contending that it is false and coerced
testimony and should not be admitted. However, plaintiff has not cited any basis for his
objection in the Evidence Code, and he points to no other evidence that would tend
to demonstrate that the witnesses’ testimony was false or coerced by anyone. He
appears to be merely speculating that their statements must be false because of
various alleged prior incidents of retaliation against unnamed patients by unspecified
staff members at the Hospital. Yet he fails to show that the particular witnesses who
gave deposition testimony in the present case have been subjected to any coercion
regarding the incident in question here, or that their statements are not true and
accurate. Therefore, the court intends to overrule the plaintiff’s objections to their
testimony.
Plaintiff has not pointed to any other evidence that would tend to raise a triable
issue of material fact with regard to whether Abolnik neglected him or acted with
recklessness, malice, fraud, or oppression when she responded to the incident. Plaintiff
cites to his own verified complaint in an effort to raise a triable issue of fact, but a party
cannot rely on his own pleadings, whether or not they are verified, to support his
opposition to a summary judgment motion. (College Hospital Inc. v. Superior Court
(Cromwell) (1994) 8 Cal.4th 704, 720, fn. 7.) “The moving party cannot depend upon
allegations in his own pleadings to cure deficient affidavits, nor can his adversary rely
upon his own pleadings in lieu or in support of affidavits in opposition to a motion;
however, a party can rely on his adversary's pleadings to establish facts not contained
in his own affidavits.” (Parker v. Twentieth Century-Fox Film Corp. (1970) 3 Cal.3d 176,
181, internal citations omitted.) Thus, plaintiff’s citations to his own verified complaint
are improper and fail to raise a triable issue of material fact. Defendants have
objected to the plaintiff’s citations to his own complaint, and the court intends to
sustain the objections.
The undisputed facts show that Abolnik arrived on the scene after the altercation
had already begun, and that she was too far away to intervene and protect plaintiff.
The altercation ended shortly after she arrived, so there is no evidence that Abolnik was
guilty of neglect or abuse. As a result, the court intends to grant summary judgment in
favor of Abolnik.
1 Plaintiff’s objections are also defective procedurally, since they do not cite any legal basis for
the objections based on the Evidence Code, i.e. hearsay, lack of foundation, relevance, etc.
He also fails to comply with Rule of Court 3.1354 regarding the format of objections to evidence
in support of summary judgment motions, and he has not submitted a proposed order regarding
the objections. Therefore, the court intends to overrule all of plaintiff’s objections.
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Likewise, the evidence submitted by Nwaka also shows that she did not fail to
intervene in the fight and protect plaintiff from harm. Nwaka was in the Medication
Room passing out medication when the alarm sounded. (UMF No. 41.) She heard
someone yelling in the hallway, but could not make out the words. (Ibid.) She
responded to the alarm by walking out of the Medication Room and through the
breezeway between the Seclusion Room and the nurses’ station, and then exited the
door leading to hallway A. (UMF No. 43.) Upon exiting the door, she saw a crowd of
patients in the hallway. (UMF No. 44.) To her left, she saw Hodanu walking in the
direction of the entrance to the nurses’ station. (UMF No. 45.) She did not hear him say
anything or do anything other than walk. (Ibid.) To her right, she saw plaintiff, Montes,
and Hernandez standing a few feet from her location. (UMF No. 46.) Additional staff
and DPS officers then arrived and took over the situation. (UMF No. 47.) She did not see
any contact between plaintiff and Hodanu, and she has no personal knowledge about
what happened between them. (UMF No. 48.)
Thus, Nwaka has met her burden of producing evidence that shows that she was
not in a position to intervene to protect plaintiff from Hodanu, as she was not even
present at the scene until after the altercation had already ended and Hodanu was
leaving the area. None of the other patients testified that they saw Nwaka at the
scene during the incident, or that she failed to intervene. Nor has plaintiff presented
any evidence that she stood by and allowed Hodanu to beat him. He has claimed
that all of the defendants gave inconsistent statements to the police about their
involvement in the incident, but even if the court were to consider the police reports he
has submitted, plaintiff has not submitted a report concerning any statements about
the incident by Nwaka. Thus, there is no evidence that would tend to raise a triable
issue of material fact as to whether Nwaka was guilty of neglect in failing to intervene in
the altercation, and the court intends to grant summary judgment in her favor.
Next, the undisputed facts also show that Galamgam did not fail to intervene
and protect plaintiff from Hodanu’s alleged attack. Galamgam was outside the
shower room when he heard yelling down the hallway. (Defendants’ UMF No. 23.) He
immediately responded to the area where the yelling was coming from. (Ibid.) As
Galamgam approached the nurses’ station, he saw through the windows of the station
that plaintiff and Hodanu were grappling or wrestling with their arms locked together.
(UMF No. 25.) Another staff member, Hernandez, was between them. (Ibid.)
As Galamgam rounded the nurses’ station with the intention of intervening and
separating plaintiff and Hodanu, he heard Hernandez yell “Stop!” very loudly. He
assumed she was speaking to him. (UMF No. 26.) He then stopped and did not
intervene. (Ibid.) He noticed that plaintiff and Hodanu stopped grappling and
released their holds on each other. (UMF No. 27.) After they separated, plaintiff and
Hodanu did not have any further physical contact with each other, although they
exchanged a few words. (UMF No. 28.) Galamgam then noticed that a large crowd of
patients had gathered, and there were no Department Police officers or staff in the
area. He activated his personal alarm, and additional staff and police officers then
arrived. (UMF No. 29.) Galamgam did not see Hodanu or plaintiff hit or strike each
other, or throw any punches. (UMF No. 30.)
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As a result, the evidence submitted by Galamgam shows that he did not fail to
intervene in the altercation or fail to protect plaintiff from Hodanu. In fact, the
evidence shows that Galamgam responded from a different location as quickly as
possible, but that he was not able to intervene before the fight ended. Thus,
Galamgam has met his burden of showing that he is entitled to summary judgment on
the elder neglect claim against him.
In his opposition, plaintiff has not pointed to any evidence that would tend to
raise a triable issue with regard to whether Galamgam stood by and allowed him to be
beaten. Again, plaintiff’s reliance on his own complaint is improper, and his attempt to
object to the statements of the other witnesses is unsupported by legal authority or
evidence. Also, to the extent that plaintiff relies on the police reports from the incident
to show that Galamgam made inconsistent statements to the police, the report is
inadmissible hearsay. Even if the court were to consider the report, Galamgam’s
statements in the report are consistent with his version of events in his declaration in
support of the motion. (Exhibit A to Opposition.) Therefore, plaintiff has not raised a
triable issue of material fact with regard to Galamgam’s motion, and Galamgam is also
entitled to summary judgment.
Finally, to the extent that plaintiff has attempted to bring a “cross-motion” for
summary judgment as part of his own opposition to defendants’ motion, the cross-
motion is improper and will be denied. First of all, plaintiff did not serve his motion for
summary judgment at least 75 days before the hearing date for the defendants’
motion, nor did he calendar his motion separately. (Code Civ. Proc. § 437c, subd.
(a)(2): “Notice of the motion and supporting papers shall be served on all other parties
to the action at least 75 days before the time appointed for hearing.”) He has also
failed to submit any separate affidavits, deposition testimony, discovery responses,
documents, or other admissible evidence to support his motion. (Code Civ. Proc. §
437c, subd. (b)(1): “The motion shall be supported by affidavits, declarations,
admissions, answers to interrogatories, depositions, and matters of which judicial notice
shall or may be taken.”) The only citations to evidence in his separate statement are to
his own verified complaint, which is improper as discussed above, as well as
defendants’ evidence. Plaintiff attempts to rely on police reports from the incident, but
those reports are hearsay and lack proper foundation or authentication, so they are
inadmissible. (See Defendants’ Objection No. 7, which will be sustained.) In any event,
the reports fail to establish any facts that would tend to show that defendants
neglected plaintiff by failing to intervene in the altercation and protect him from
Hodanu’s attack.
Therefore, plaintiff’s cross-motion for summary judgment is improper and
unsupported by admissible evidence. As a result, the motion will be denied.
Pursuant to CRC 3.1312 and CCP §1019.5(a), no further written order is necessary.
The minute order adopting this tentative ruling will serve as the order of the court and
service by the clerk will constitute notice of the order.
Tentative Ruling
Issued By: ________JYH___________ on ___10/15/2019___.
(Judge’s Initials) (Date)
12
(19) Tentative Ruling
Re: Orozco v. Bulldog Square, Inc.
Fresno Superior Court Case No. 18CECG01105
Hearing Date: October 17, 2019 (Dept. 501)
Motion: by plaintiff for approval of PAGA settlement
Tentative Ruling:
To deny without prejudice.
Explanation:
1. Introduction
“Because an aggrieved employee's action under the [PAGA] functions as
a substitute for an action brought by the government itself, a judgment in
that action binds all those, including nonparty aggrieved employees, who
would be bound by a judgment in an action brought by the government.
The act authorizes a representative action only for the purpose of seeking
statutory penalties for Labor Code violations (Lab.Code, section 2699,
subds. (a), (g)), and an action to recover civil penalties ‘is fundamentally
a law enforcement action designed to protect the public and not to
benefit private parties.”
Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal. 4th 348, 381.
“A PAGA representative action is therefore a type of qui tam action.
Traditionally, the requirements for enforcement by a citizen in a qui tam
action have been (1) that the statute exacts a penalty; (2) that part of the
penalty be paid to the informer; and (3) that, in some way, the informer be
authorized to bring suit to recover the penalty. The PAGA conforms to
these traditional criteria, except that a portion of the penalty goes not only
to the citizen bringing the suit but to all employees affected by the Labor
Code violation. The government entity on whose behalf the plaintiff files
suit is always the real party in interest in the suit.”
(Id. at 382, internal citation omitted.)
2. Settlement of PAGA claims
“PAGA settlements are subject to trial court review and approval, ensuring that
any negotiated resolution is fair to those affected.” Williams v. Superior Court (2017) 3
Cal. 5th 531, 549, citing Labor Code section 2699(l)(2): “The superior court shall review
and approve any settlement of any civil action filed pursuant to this part. The
proposed settlement shall be submitted to the agency at the same time that it is
submitted to the court.” The requirement of court approval was added by SB 1809 in
2004.
13
Moving party is correct that there are published cases where a payment of $0
was permitted and upheld as res judicata, but in those cases the PAGA claims were
settled as part of a class action and the workers received cash for other claims. In
Villacres v. ABM Industries Inc. (2010) 189 Cal. App. 4th 562 (rev. denied), the Court of
Appeal upheld dismissal of a pure PAGA claim on the basis a class action settlement
previously entered as a judgment in another case acted as res judicata. No PAGA
claim was pled in that class action case, so no PAGA penalties were sought or paid.
But the class members did get $730,000 for personal penalties. In Nordstrom
Commission Cases (2010) 186 Cal. App. 4th 576, an objector to a class action
settlement approved and entered as judgment appealed on the basis that the
settlement undervalued waiting time penalties, paid nothing for PAGA claims, and was
funded in part by coupons for defendant’s merchandise. The discussion of the non-
payment for PAGA claims is found at page 589.
However, in 2016, a federal trial court invited comments by the Labor Workforce
Development Agency on how settlement of PAGA claims should be assessed, in
O’Connor v. Uber Technologies, Inc. (N.D.Cal. 2016) 201 F. Supp. 3d 1110. That was a
very hard fought matter, with writs to the Court of Appeal and motions for certification,
arbitration, summary judgment, and so on. The Court refused to grant preliminary
approval to a class action settlement because it provided only 1% of the value of the
PAGA claim. See same at page 1134:
“It is important to note that where plaintiffs bring a PAGA representative
claim, they take on a special responsibility to their fellow aggrieved
workers who are effectively bound by any judgment . . . The duty imposed
on the PAGA representative is especially significant given that PAGA does
not require class action procedures, such as notice and opt-out rights.
The Court must be cognizant of the risk that despite this responsibility,
there may be a temptation to include a PAGA claim in a lawsuit to be
used merely as a bargaining chip, wherein the rights of individuals who
may not even be members of the class and the public may be waived for
little additional consideration in order to induce the employer to agree to
a settlement with the class.”
The LDWA stated: “It is thus important that when a PAGA claim is settled, the
relief provided for under the PAGA be genuine and meaningful, consistent with the
underlying purpose of the statute to benefit the public and, in the context of a class
action, the court evaluate whether the settlement meets the standards of being
‘fundamentally fair, reasonable, and adequate’ with reference to the public policies
underlying PAGA.” (Id. at 1133.)
The point of allowing the public to bring such claims where the State was unable
to do so due to staffing problems was to augment “the state’s enforcement
capabilities, encouraging compliance with Labor Code provisions, and deterring non-
compliance.” (Id. at 1132-1133.)
14
“PAGA's purpose is not to promote private enforcement without regard to
the LWDA. On the contrary, our Supreme Court has stated that PAGA's ‘sole purpose is
to vindicate [the LWDA's] interest in enforcing the Labor Code ....’ (Iskanian, supra, 59
Cal. 4th at pp. 388-389 . . ., italics added.)” Esparza v. Safeway, Inc. (2019) 36 Cal. App.
5th 42, 61. Following the LWDA’s recommendations to the federal trial court in O’Connor
is appropriate.
3. Potential Value of Claims
The last page of Exhibit 3 to the Migliazzo declaration state that the employees
covered by the proposed PAGA settlement worked a total of 1,491.29 compensable
work weeks. Divided by two, that would be equivalent to approximately 745 pay
periods, if compensation was paid on an “every other week” basis. However, plaintiff
states that he was paid twice a month, and the referenced exhibit shows three years of
work involved in the 1,491.29 figure. Being paid twice a month results in two less pay
periods per year (24 vs. 26), thus the 745 figure is properly cut to 739 pay periods.
Plaintiff states there are 16 aggrieved employees, including himself.
Under Labor Code section 210, the penalty is $100 for the first violation, and $200
for subsequent violations. 16 employees X $100 is $1,600 for violation #1. For violation
#2, that leaves 723 pay periods X $200 = $144,600. $144,600 plus $1,600 is $146,200.00.
Under Labor Code section 226.3, calling for $250 for a first violation and $1000 for
a second violation, the first violation would be worth $4,000 (16 employees X $250). For
the second violation, $1,000 X 723 pay periods, the amount is $723,000. The total comes
to $727,000.
Under Labor Code section 558, the penalty is $50 for the first violation and $100
for the second. 16 X $50 is $800 for violation #1. $100 X 723 pay periods is $72,300 for
the second violation, for a total of $73,100.
As the Court roughly estimates the penalties, the total for these three statutes is
$946,300. The proposed settlement comes to less than 3% of the potential penalties for
the three statutes listed, which are far fewer than those set forth in the settlement
agreement. Plaintiff also proposes to have 100% of the costs of his lawsuit deducted
from the PAGA settlement, and none from his own. That lowers the proposed
settlement to about 3% of the above value.
4. Approval Is Denied
First, the settlement proposes to include actual lost wages, which is not permitted
as part of a PAGA penalty claim. As ZB, N.A. v. Superior Court of San Diego County
(2019) 8 Cal. 5th 175 makes clear that actual wages cannot be awarded as PAGA
penalties. Including wages would require that the parties meet class action
prerequisites.
The argument that there could be proof problems showing a knowing and
intentional injury is incorrect, at least for the claim with the highest penalties.
15
“[A] representative PAGA claim for civil penalties for a violation of section
226(a) does not require proof of injury or a knowing and intentional
violation. This is true even though these two elements are required to be
proven when bringing an individual claim for damages or statutory
penalties under section 226(e).”
Raines v. Coastal Pacific Food Distributors, Inc. (2018) 23 Cal. App. 5th 667, 670.
The Court of Appeal held that Labor Code “section 226.3 sets out a civil penalty
for all violations of section 226.” (Id. at 676.) “Because the trial court incorrectly found
an employee must suffer an injury in order to bring a PAGA claim, it erred in granting
summary adjudication on Raines's PAGA claim.” (Id. at 682.)
A federal court found Raines to be persuasive, in Magadia v. Wal-Mart Assoc.,
Inc. (N.D. Cal. 2019) 384 F. Supp. 3d 1058, 1105. It ultimately awarded $48,046,000 for
wage statement violations under the statutory damages provided for by Labor Code
section 225(e) and another $53,901,700 more in PAGA penalties, for a total of
$101,947,700. That case is on appeal in the 9th Circuit at the present time.
The settlement here, if the Court’s figures are correct and as presently
constructed, gives the appearance of having added the PAGA claim as an
inappropriate “bargaining chip” to bolster the individual claim. O’Connor v. Uber
Technologies, Inc., supra, 201 F. Supp. 3d at 1134.
Plaintiff settled his personal claim for nearly 2/3rds of its value, but was willing to
sacrifice the PAGA claim of his fellows for what appears to be 3% of their value. That
does not support a finding that plaintiff undertook “a special responsibility to [his] fellow
aggrieved workers who are effectively bound by any judgment” or acted to augment
“the state’s enforcement capabilities, encouraging compliance with Labor Code
provisions, and deterring non-compliance.” (Id. at 1132-1133.)
The settlement also releases persons and entities far beyond those named as
defendants in this action, including insurers, reinsurers, and attorneys. Such is not
appropriate, due to the small sum offered and the fact no such persons or entities are
shown to have contributed to the settlement. Should any defendant become
bankrupt, the non-paying persons and entities may be the only source of recovery for
the Covered Employees.
While there is argument that defendants changed their policies, there is no
provision the settlement itself which requires defendants to make or continue specific
changes. Thus such cannot count as consideration, due to the uncertain nature of any
change or its continuation.
Lastly, the settlement purports to release PAGA penalties for many violations
which are not part of the penalty calculation by plaintiffs, such as Labor Code section
203. Why these claims were assessed as $0 value must be explained.
16
Pursuant to Code of Civil Procedure section 1019.5, subdivision (a), no further
written order is necessary. The minute order adopting this tentative ruling will serve as
the order of the court and service by the clerk will constitute notice of the order.
Tentative Ruling
Issued By: JYH on 10/16/2019.
(Judge’s initials) (Date)
17
Tentative Rulings for Department 502 (30) Tentative Ruling
Re: Kashian Enterprises v. David Fisher
Court Case No. 15CECG03807
Hearing Date: October 17, 2019 (Dept. 502)
Motion: Plaintiff’s motion to enforce settlement dated February 22, 2019
Tentative Ruling:
To deny.
Explanation:
In the case at bar, plaintiffs move to enforce the February 2019 agreement.
Plaintiffs move pursuant to section 664.6, so this court is empowered to determine the
enforceability of said agreement. (See e.g., Fiore v. Alvord (1985) 182 Cal.App.3d 561,
566.) In the moving and opposing papers, the parties argue over whether or not the
May 2019 agreement was rescinded. The implication is that if the May agreement was
rescinded, the February 2019 agreement is revived and can now be enforced pursuant
to section 664.6.
However, the evidence shows that the May 2019 agreement functioned as a
novation to the February 2019 agreement. And an essential element of a novation is
the extinguishment of the existing contract. In Beckwith v. Sheldon (1913) 165 Cal. 319,
323, the California Supreme Court clearly defined the requirement:
“this extinguishment does not mean that the earlier contract was held in
abeyance or in suspense. It does not mean that it could be revived upon a mere
failure to perform the new obligation. It means that it was canceled and
obliterated as completely as though it had never had existence.” (Ibid.)
Therefore, the February 2019 agreement ceases to exist. And the parties’
arguments regarding whether or not the May 2019 agreement was rescinded, are
irrelevant. Even assuming the May 2019 agreement was rescinded, the February 2019
agreement would not be revived thereby.
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 A.M. Simpson October 15, 2019
Issued By: on .
(Judge’s initials) (Date)
18
Tentative Rulings for Department 503 (03)
Tentative Ruling
Re: Hydroelectric Penetrations, L.P. v. Technicon Engineering
Services, Inc.
Superior Court Case No. 18CECG01011
Hearing Date: October 17, 2019 (Dept. 503)
In the event oral argument is timely requested, it will be heard at
1:30 p.m. on October 17, 2019 in Dept. 503.
Motion: Defendant’s Motion for Summary Judgment or, in the
Alternative, Summary Adjudication
Tentative Ruling:
To grant the motion for summary judgment filed by defendant Technicon
Engineering Services, Inc. (“Technicon”) as to the entire complaint. (Code Civ. Proc. §
437c.) Technicon shall submit a proposed judgment consistent with this court’s order
within ten (10) days of the date of service of this order.
Explanation:
Technicon moves for summary judgment on the ground that all of the claims of
plaintiff Hydroelectric Penetrations, L.P. (“HP”) against it are all barred by the settlement
agreement and release executed between Technicon and Ernie Graham in a prior
case filed in 2010. (Technicon Engineering Services, Inc. v. Graham, Case No.
10CECG02611.) Under Civil Code section 1541, “[a]n obligation is extinguished by a
release therefrom given to the debtor or the released party by the creditor or releasing
party, upon a new consideration, or in writing, with or without new consideration.” (Civ.
Code, § 1541.)
“In general, a written release extinguishes any obligation covered by the
release's terms, provided it has not been obtained by fraud, deception,
misrepresentation, duress, or undue influence.” (Skrbina v. Fleming Companies (1996)
45 Cal.App.4th 1353, 1366, internal citations omitted.) “‘[W]hen the language of a
contract is plain and unambiguous it is not within the province of a court to rewrite or
alter by construction what has been agreed upon . . . .’ A release is ‘the
abandonment, relinquishment or giving up of a right or claim to the person against
whom it might have been demanded or enforced [citations] and its effect is to
extinguish the cause of action . . . .’ Thus, a release ‘conclusively estops the parties from
reviving and relitigating the claim released.’ ‘“ 'The general rule is that when a person
with the capacity of reading and understanding an instrument signs it, he is, in the
absence of fraud and imposition, bound by its contents, and is estopped from saying
that its provisions are contrary to his intentions or understanding . . . .' ”’ (In re Mission Ins.
Co. (1995) 41 Cal.App.4th 828, 837–838, internal citations omitted.)
19
On the other hand, “mere recital, as in the release signed by plaintiffs, that the
protection of Civil Code section 1542 is waived, or that the release covers unknown
claims or unknown parties is not controlling. Whether the releaser intended to
discharge such claims or parties is ultimately a question of fact.” (Leaf v. City of San
Mateo (1980) 104 Cal.App.3d 398, 411, internal citations omitted.)
In the instant case, the undisputed facts show that Graham and Technicon
originally entered into an agreement in 2005 in which Technicon was to provide an
engineering study related to a proposed project that HP was planning to build.
(Defendant’s UMF No. 3.) Graham signed the agreement on behalf of HP, a
partnership that Graham and Mehet Noyan had formed to develop the property. (UMF
Nos. 1, 2, 4.)
In 2010, Technicon sued Graham for unpaid fees related to the engineering
services provided under the agreement. (UMF Nos. 10, 11.) The parties then entered
into negotiations to settle the case. Technicon sent a draft settlement agreement to
Noyan on September 19, 2010. (UMF No. 12.) After making some revisions, Graham
signed the settlement agreement on October 8, 2010. (UMF No. 16.) One of Graham’s
proposed revisions was to strike the reference to “future” claims from the release. (UMF
No. 13.) However, after further discussions with Technicon’s principal, Williams, the
parties agreed that the settlement release would cover any and all “present or future”
claims that might arise between them related to the lawsuit. (UMF Nos. 18-20.) HP then
paid $25,000 to Technicon to settle the case. (UMF No. 24.)
Thus, Technicon contends that HP has waived its right to bring its present claims
against Technicon, which also arise out of the development of the subject property and
are covered by the release of future claims. Technicon argues that the release clearly
covers the types of claims that HP has now asserted, including breach of contract,
professional negligence, and declaratory relief, all of which arise out of the original 2005
contract for engineering services between Technicon and Graham, who was acting as
an agent of HP at the time he entered into the engineering agreement and the
subsequent settlement.
However, HP contends that the 2010 lawsuit was not filed against HP and HP was
not a party to the action, and thus the settlement of the 2010 case did not release HP’s
claims here. Indeed, it is true that the case was filed by Technicon against Ernie
Graham, dba Graham Development Co. (UMF No. 11, Defendant’s Appendix of
Evidence, Exhibit B.) The 2010 case concerned unpaid fees that Technicon alleged
Graham owed to it under the 2005 engineering services contract. (UMF Nos. 10-11,
Defendant’s Appendix of Evidence, Exhibit B.) The engineering services contract was
between Technicon and Graham only, and HP was not mentioned in that agreement.
(Defendant’s Appendix of Evidence, Exhibit A.)
The settlement agreement and release for the 2010 case were also between
Technicon and Graham, and HP was not mentioned in that agreement. (Defendant’s
Appendix of Evidence, Exhibits D & E.) The settlement agreement never mentions that
Graham is acting as the agent for HP at the time that he executed the agreement, or
that he has authority to bind HP to the terms of the agreement. (Ibid.) The release only
20
purports to bind “each party” to the agreement, namely Technicon and Graham. (Id.
at ¶ 1.)
Nevertheless, it appears that Graham was acting as HP’s agent when he
executed the settlement, and thus HP is bound by the agreement’s terms even though
HP was not specifically named in the 2010 lawsuit or settlement agreement. Technicon
has produced evidence that tends to show that Graham was acting as HP’s actual
agent when he signed the original engineering service contract with Technicon, as well
as when he signed the settlement agreement.
“A contract of agency may be implied from the circumstances and conduct of
the parties. The existence of an agency is a question of fact.” (Zander v. Casualty Ins.
Co. of Cal. (1968) 259 Cal.App.2d 793, 800.)
Also, under the Uniform Partnership Act, “(1) Every partner is an agent of the
partnership for the purpose of its business, and the act of every partner, including the
execution in the partnership name of any instrument, for apparently carrying on in the
usual way the business of the partnership of which he is a member binds the
partnership, unless the partner so acting has in fact no authority to act for the
partnership in the particular matter, and the person with whom he is dealing has
knowledge of the fact that he has no such authority. (2) An act of a partner which is
not apparently for carrying on of the business of the partnership in the usual way does
not bind the partnership unless authorized by the other partners.” (Corp. Code § 15009;
see also Ellis v. Mihelis (1963) 60 Cal.2d 206, 217.)
Here, HP has admitted that Graham was authorized by HP to sign the settlement
and release in the 2010 Technicon v. Graham case, and that he signed the release as
HP’s agent. (See Defendant’s Evidence at Exhibit H, HP’s response to RFA Nos. 14, 15.)
Request for admission 14 asked HP to “[a]dmit that Ernie Graham was authorized by
YOU to sign the SETTLEMENT AGREEMENT.” HP’s response, after raising objections, states
that “Mr. Graham was authorized to enter into the Settlement Agreement solely for the
purpose of resolving Technicon’s claim for unpaid fees. Mr. Graham was not authorized
to release, nor does responding party believe the Settlement Agreement did release,
responding party’s claims against Technicon that are the subject of this lawsuit.
Notwithstanding, this Responding Party responds as follows: Admit.” (Defendant’s
Evidence at Exhibit H.)
Also, in request for admission number 15, Technicon asked HP to “[a]dmit that
Ernie Graham signed the SETTLEMENT AGREEMENT as YOUR agent.” HP responded
again that “Mr. Graham was authorized to enter into the Settlement Agreement solely
for the purpose of resolving Technicon’s claim for unpaid fees. Mr. Graham was not
authorized to release, nor does responding party believe the Settlement Agreement did
release, responding party’s claims against Technicon that are the subject of this lawsuit.
Notwithstanding, this Responding Party responds as follows: Admit.” (Ibid.)
In addition, in the first amended complaint in the present action, HP alleged that
Graham controlled one of the two general partners of HP. (FAC, ¶ 5.) Plaintiff also
alleged that Graham, “acting on behalf of and/or as the agent of Plaintiff, retained
Defendant Technicon to act as the geotechnical engineer for the Project.” (Id. at ¶ 6.)
21
Furthermore, in his deposition, Graham admitted that he executed the original
engineering services agreement on behalf of HP. (Graham depo., p. 17:2-19.) He also
stated that HP paid for Technicon’s services to conduct the engineering study for the
property. (Id. at p. 20:7-21.) Technicon’s proposal for the engineering contract was
sent to Graham as part of his role in HP. (Id. at p. 22:2-5.) Graham never represented
that he was going to be personally liable for paying any expenses incurred by
Technicon. (Id. at p. 22:6-10.) HP paid for all of Technicon’s work on the project. (Id. at
p. 22:11-18.)
Graham also testified in his deposition that, although Technicon sued him
personally in 2010 over a dispute concerning Technicon’s fees for the project, he and
his partner, Mehmet Noyan, were sued “on behalf of Hydroelectric Penetrations”
because Technicon claimed that they owed more money under the engineering
contract. (Id. at p. 35:8-22.) Graham stated that he understood the release to mean
that “[w]e were releasing them from any litigation pursuant to them wanting more
money.” (Id. at p. 37:14-21.) He never objected to the fact that Technicon had sued
him personally, rather than suing HP, because he believed that Technicon knew that he
was representing HP. (Id. at pp. 126:19 - 127:9.) Graham stated that he and Noyan
negotiated the settlement with Technicon together. (Id. at p. 127:10-19.) He testified
that HP had paid the settlement to Technicon, although he also stated that sometimes
he or Noyan would write a check and get reimbursed later. (Id. at p. 127:20-25.)
Thus, the evidence submitted by Technicon establishes that, although Graham
was sued personally by Technicon in the 2010 case and the settlement of that case was
between him and Technicon, he was acting as HP’s agent when he entered into both
the original service contract and the 2010 settlement and release. Indeed, HP
admitted in its responses to the requests for admissions that Graham was acting as its
agent and was authorized to execute the release, although it also claimed that his
authority was limited to only releasing any claims regarding Technicon’s fees.
(Responses to RFA Nos. 14, 15.) Consequently, even though the 2010 settlement does
not mention HP, HP is bound by the release.
While HP disputes that it authorized Graham to sign the release for any purpose
other than to settle the unpaid fee claim that was the subject matter of the 2010
lawsuit, the language of the release itself does not contain any such limitation. Indeed,
the release’s language is extremely broad, and appears to cover virtually any type of
claim that might arise out of the engineering service agreement.
The release states that, “each party hereby agrees to release and discharge the
other, and each of their respective past, present, and future directors, officers,
employees, agents, partners, joint venturers, bonding companies, affiliates,
representatives, subsidiaries, parent and affiliate corporations, successors and assigns,
and each of them, of and from any and all alleged or actual claims, demands,
damages, proceedings, rights of action, or causes of action of any kind or nature,
whether sounding in tort, contract, equity or otherwise, whether known or unknown,
suspected or unsuspected, or liquidated or unliquidated, latent or patent, existing or
inchoate, present or future, actual or contingent, included but not limited to . . .
statutory penalties, statutory damages, penalty damages, punitive damages, statutory
22
interest, negligence, strict liability, express indemnity, equitable indemnity, contribution,
and declaratory relief, and for damages arising therefrom, whether known or unknown,
present or future, general or specific in nature, including but not limited to property
damages, loss of use and enjoyment, diminution in value, stigma damages, lost profits,
investigative costs, repair costs, personal injuries, bodily injuries, emotional distress,
investigation fees, costs, consultants’ fees, experts’ fees, and attorneys’ fees, and any
indirect or consequential damages, arising from any act, failure to act, disruptions,
accelerations, mobilizations, remobilizations, tool rentals, labor cost increases,
equipment cost increases, material cost increases, loans, interest on unpaid invoices,
impacts, lost profits, lost income, home office or field overhead costs, diminished
bonding capacity or impairments to the work in connection with the Lawsuit.” (UMF No.
26, Defendant’s Evidence at Exhibit F, emphasis added.)
The settlement was entered into between Graham and Technicon to “resolve
any and all disputes including, but not limited to, the relief sought, damages, fees, costs,
and litigation expenses arising out of and relating to the action entitled TECHNICON
ENGINEERING SERVICES, INC, a California corporation, v. ERNIE GRAHAM, an individual
dba Graham Development Co. et al., Superior Court of California County of Fresno,
Case No. 10CECG02611 AMS (the ‘Lawsuit’).” (Defendant’s UMF No. 27, Defendant’s
Evidence at Exhibit F, emphasis added.)
In addition, the settlement agreement further states, “The Lawsuit concerns
claims arising from Technicon’s provision of engineering studies and testing related work
for a private works project located at Palm and Nees in Fresno, CA and commonly
referred to as the Palm Bluffs Business Park (referred to herein as the ‘Project’). [¶] The
parties desire to compromise and settle all claims that were or could have been raised
in the Lawsuit relating to the Project.” (UMF No. 28, Defendant’s Evidence at Exhibit F,
emphasis added.) Also, the release contained a Civil Code section 1542 waiver. (Ibid.)
Thus, the release was not limited to only the underlying fee dispute in the 2010
litigation, but was broadly worded to include any and all other claims that might arise
between the parties related to or arising out of Technicon’s provision of services under
the engineering contract. The release covered “any and all alleged or actual claims,
demands, damages, proceedings, rights of action, or causes of action of any kind or
nature, whether sounding in tort, contract, equity or otherwise, whether known or
unknown, suspected or unsuspected, . . . present or future, actual or contingent,
included but not limited to . . . negligence, . . . and declaratory relief, and for damages
arising therefrom, whether known or unknown, present or future, . . . including but not
limited to property damages, loss of use and enjoyment, diminution in value, stigma
damages, lost profits, investigative costs, repair costs, . . . arising from any act, . . . lost
profits, lost income, . . . or impairments to the work in connection with the Lawsuit.”
(Defendant’s Evidence at Exhibit F.) Such claims would clearly encompass the claims
brought by HP’s first amended complaint in the present action, which raises claims of
breach of contract, negligence, declaratory relief in connection with Technicon’s
allegedly negligent engineering study and report related to the development of the
project. As a result, the court finds that the release covers the claims asserted by HP in
the instant action.
23
Indeed, Graham and Technicon specifically discussed the scope of the release,
and, in particular, whether it would cover “future” claims, when they were negotiating
the release’s terms. (UMF Nos. 12-19.) Graham at first struck out the words “or future”
from the release. (UMF No. 13.) However, Technicon objected to this change, stating
that “striking the words ‘or future’ in Item 1 negates the value of the settlement. As you
recall the purpose of the agreement was to resolve the issue without attorney’s fees
and move on. We discounted the final payment based on being released from future
claims. Therefore, if the words ‘or future’ are stricken from the agreement, TECHNICON
will require payment in full for services rendered.” (UMF No. 18, Defendant’s Evidence
at Exhibit E.) Graham then responded “OK, we can leave ‘or future’ in.” (UMF No. 19,
Defendant’s Evidence at Exhibit E.) Thus, the parties clearly discussed and made a
conscious decision to release each other from any and all future claims related to
Technicon’s work on the project, which would include the claims alleged in the present
lawsuit.
Nevertheless, HP argues that Graham was not authorized by it to release any
claims beyond the pending fee dispute that was at issue in the 2010 case. However, as
discussed above, HP admitted that Graham was its agent for the purpose of executing
the release, which clearly encompassed all present or future claims or any kind arising
out of Technicon’s services under the contract. There is nothing in the language of the
settlement agreement that would indicate that Graham was not authorized to execute
the broad release of all future claims on behalf of HP.
Nor has HP presented any evidence that either Graham or Noyan ever stated to
Technicon that Graham did not intend to release all present or future claims that HP
might have against Technicon relating to its services on the project. Noyan claims in his
declaration in opposition to the motion for summary judgment that Graham was not
authorized to release any claims on behalf of HP other than the claims related to
Technicon’s claim for unpaid fees. (Noyan decl., ¶ 8.) However, he does not state that
this intention were ever conveyed to Technicon when the settlement was being
negotiated by the parties. Such unexpressed intentions which are not reflected in the
language of the settlement agreement itself, and appear to be inconsistent with the
agreement’s own language, cannot be used to modify the terms of the agreement.
“‘[M]utual consent is gathered from the reasonable meaning of the words and
acts of the parties, and not from their unexpressed intentions or understanding.’ In the
absence of fraud, mistake, or another vitiating factor, a signature on a written contract
is an objective manifestation of assent to the terms set forth there. If the terms are
unambiguous, there is ordinarily no occasion for additional evidence of the parties'
subjective intent. Their ‘actual intent,’ for purposes of contract law, is that to which
they manifested assent by executing the agreement.” (Rodriguez v. Oto (2013) 212
Cal.App.4th 1020, 1027, internal citations omitted.)
“It is true that in determining the meaning of a contract, the dominant objective
is to ‘give effect to the mutual intention of the parties as it existed at the time of
contracting, so far as the same is ascertainable and lawful.’ But in ascertaining the
parties' mutual intention, their agreed language ‘is to govern . . . if the language is clear
and explicit, and does not involve an absurdity.’ When the contract has been
‘reduced to writing,’ the parties' intention ‘is to be ascertained from the writing alone, if
24
possible,’ subject to other rules of interpretation.” (Id. at pp. 1027–1028, internal
citations omitted.)
Here, there is nothing in the plain language of the settlement agreement that
would tend to indicate that the parties did not intend to release all future claims
against each other arising out of the engineering agreement. The agreement also
appears to be clear and unambiguous, and it states, “This Agreement contains the
entire agreement between the parties. Any modification must be in writing and signed
by all parties hereto.” (Defendant’s Evidence at Exhibit F, ¶ 12.) In other words, the
agreement was intended to be integrated and complete, and no parol evidence may
be allowed to add language outside the stated provisions of the agreement.
In Edwards v. Comstock Insurance Co. (1988) 205 Cal.App.3d 1164, the Court of
Appeal affirmed the trial court’s grant of summary judgment in favor of defendant
insurance company where the plaintiffs executed a release of “any and all claims,
demands, actions and causes of actions.” (Id. at p. 1167.) The plaintiffs did not deny
signing the release, but contended that they only intended to release their personal
injury claims, not their insurance bad faith claims, unfair business practice claims, or
claim for violations of the Insurance Code. (Ibid.) The Court of Appeal declined to
interpret the release to mean “all claims except claims for bad faith, unfair practices or
violations of the Insurance Code.” (Ibid.) “Under the circumstances presented here,
we decline to rewrite appellants' release agreements to include a concept they failed
to enunciate at the time they accepted the terms of the settlement with their insurer.”
(Ibid.)
“'[T]he law imputes to a person an intention corresponding to the reasonable
meaning of his words and acts. It judges of his intention by his outward expressions and
excludes all questions in regard to his unexpressed intention. If his words or acts, judged
by a reasonable standard, manifest an intention to agree in regard to the matter in
question, that agreement is established, and it is immaterial what may be the real but
unexpressed state of his mind on that subject.”' (Crow v. P.E.G. Construction Co., Inc.
(1957) 156 Cal.App.2d 271, 278-279, quoting Zurich etc. Assurance Co. v. Industrial Acc.
Com. (1933) 132 Cal.App. 101.)
Likewise, here the unexpressed intent by Graham or HP to limit the scope of the
release to only claims that directly related to Technicon’s fees under the engineering
contract is inadmissible parol evidence that cannot contradict or vary the plain terms
of the settlement agreement. The release in the agreement clearly stated that the
parties were releasing all “present or future” claims of any type that might arise out of
the engineering agreement, including property damage claims, lost profits, breach of
contract, negligence, and declaratory relief. These are exactly the type of claims that
HP now seeks to bring in the present action. HP’s assertions that it did not actually
mean to release future claims relating to Technicon’s performance under the contract
are inadmissible parol evidence and will be disregarded by the court, as they are
inconsistent with the plain language of the release.
HP also contends that Graham was never a general partner of HP, and thus he
did not have the authority to bind it to the settlement agreement. However, HP’s own
first amended complaint alleges that HP is “a limited partnership with two general
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partners, one of which is controlled by Ernie Graham.” (FAC, ¶ 5.) HP also alleges that
Graham was acting on behalf of HP at the time he entered into the 2005 engineering
services agreement with Technicon that forms the basis of the 2010 lawsuit. (Id. at ¶ 6.)
Thus, regardless of whether Graham was a general partner of HP, HP’s own complaint
shows that he controlled one of the two partnerships that formed HP, and that he
entered into the underlying engineering contract with Technicon. HP has also admitted
that Graham was authorized to act as its agent when he entered into the settlement
agreement, and that he was in fact acting as HP’s agent when he executed the
settlement and release. (Plaintiff’s Responses to RFA Nos. 14, 15.) Thus, the undisputed
facts show that Graham had the authority to execute the settlement and release on
behalf of HP, regardless of whether he was a general partner of HP or not.
HP also argues that the question of whether it intended to release all future
claims against Technicon is a question of fact based on the language of the release
and the surrounding circumstances, and that here Technicon never took Noyan’s
deposition or propounded any discovery regarding whether Graham was authorized to
execute such a broad release. (Leaf v. City of San Mateo (1980) 104 Cal.App.3d 398,
411.) However, Technicon did in fact ask HP in the requests for admissions whether
Graham was authorized to act as HP’s agent when he executed the release, and HP
admitted that he was, albeit with the qualification that he was only authorized to
release claims regarding the fee dispute. (Plaintiff’s Responses to RFA Nos. 14, 15.)
Also, as discussed above, a party’s unexpressed intent to limit the terms of an
agreement cannot be used to vary the actual terms of that agreement, particularly
where the agreement is integrated, as the settlement agreement is here. There is no
evidence that HP ever mentioned to Technicon that it did not intend to authorize
Graham to execute a release of all future claims that it might raise. The release’s
language is quite broad, and clearly conveys an intent to release all present or future
claims, including the types of claims that HP now raises. Thus, Noyan’s statements that
Graham was not authorized to enter into the broad release contained in the settlement
agreement is not sufficient to raise a triable issue of material fact regarding the parties’
intent when they entered into the settlement.
As a result, the court finds that the release bars all of HP’s claims in the present
action, and it therefore grants summary judgment as to the entire complaint.
Pursuant to CRC 3.1312 and CCP §1019.5(a), no further written order is necessary.
The minute order adopting this tentative ruling will serve as the order of the court and
service by the clerk will constitute notice of the order.
Tentative Ruling
Issued By: KAG on 10/9/19.
(Judge’s Initials) (Date)