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Tentative Rulings for October 3, 2017
Departments 402, 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).)
16CECG03213 Callison v. Strang (Dept. 501)
16CECG03443 Wilshusen v. Advance Auto Parts, Inc. (Dept. 501)
14CECG02293 Smith v. Community Regional Medical Centers (Dept. 501)
The court has continued the following cases. The deadlines for opposition and reply
papers will remain the same as for the original hearing date.
16CECG02048 Renfro v. Lopez is continued to Wednesday, October 11, 2017 at
3:30 p.m. in Dept. 502.
________________________________________________________________
(Tentative Rulings begin at the next page)
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Tentative Rulings for Department 402 (2)
Tentative Ruling
Re: Chavez et al. v. Medina et al.
Superior Court Case No. 17CECG02076
Hearing Date: October 3, 2017 (Dept. 402)
Motion: Petitions to Compromise Minors” Claims
Tentative Ruling:
To grant. Orders signed. Hearing off calendar.
Pursuant to California Rules of Court, rule 3.1312 and Code of Civil Procedure
section 1019.5(a), no further written order is necessary. The minute order adopting this
tentative ruling will serve as the order of the court and service by the clerk will constitute
notice of the order.
Tentative Ruling
Issued By: JYH on 10/02/17
(Judge’s initials) (Date)
3
(20) Tentative Ruling
Re: Contreras v. Ashria, LLC, Superior Court Case No.
15CECG03848
Hearing Date: November 7, 2017 (Dept. 402)
Motion: (1) Plaintiff’s Motion to Seal Records; (2) Plaintiff’s Motion to
Enforce Settlement Agreement
Tentative Ruling:
To continue the motion to seal records to October 31, 2017, at 3:30 p.m. in
Department 402. Within 10 days of service of the order by the clerk, defendant Ashria,
LLC, shall file a motion to seal.
To continue the motion to enforce the settlement agreement to November 7,
2017, at 3:30 p.m. in Department 402. Nothing further shall be filed in support of this
motion, as it is fully briefed.
Explanation:
Initially, plaintiff should note that no memorandum of points and authorities in
support of the motion to enforce the settlement was e-filed on September 8, 2017.
Instead, two copies of the notice of motion were e-filed. The memorandum should be
e-filed promptly.
The parties orally reached a settlement on August 11, 2017 at the pretrial
settlement conference. The agreement was reduced to writing and executed on
August 14. Plaintiff contends that defendant breached the settlement agreement, and
moves to enforce it under Code of Civil Procedure section 664.6.
Before addressing the motion to enforce the settlement, the motion to seal must
be resolved. The parties agreed in the Settlement Agreement to keep the contents
thereof confidential. Plaintiff moves to seal the Settlement Agreement and any
mention of the terms thereof in the motion to enforce.
“Unless confidentiality is required by law, court records are presumed to be
open.” (Cal. Rules of Court, Rule 2.550(c).) “A record must not be filed under seal
without a court order. The court must not permit a record to be filed under seal based
solely on the agreement or stipulation of the parties.” (Cal. Rules of Court, Rule 2.551,
subd. (a), emphasis added.)
The court must make certain express findings in order to seal records.
Specifically, the court must find that the facts establish:
(1) There exists an overriding interest that overcomes the right of public access to
the record;
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(2) The overriding interest supports sealing the record;
(3) A substantial probability exists that the overriding interest will be prejudiced if
the record is not sealed;
(4) The proposed sealing is narrowly tailored; and
(5) No less restrictive means exist to achieve the overriding interest.
(Cal. Rules of Court, Rule 2.550, subd. (d).)
The sole justifications for the requested sealing order are (1) the fact of the
parties’ confidentiality agreement, and (2) plaintiffs’ concern that disclosing the terms
in the motion to enforce would expose her to a breach of contract claim by
defendant.
However, under Rule of Court 2.551, subdivision (a), “The court must not permit a
record to be filed under seal based solely on the agreement or stipulation of the
parties.” (Cal. Rules of Court, Rule 2.551, subd. (a).) Thus, the mere fact that the parties
agreed to keep the settlement confidential is not enough, by itself, to justify sealing the
portions of the petition and order related to the terms of the settlement.
Plaintiff cites to Universal City Studios, Inc. v. Superior Court (2003) 110
Cal.App.4th 1273 in support of their contention that a contract not to disclose
settlement amounts can constitute an overriding interest for the purposes of Rule of
Court 2.551. However, the court in Universal City went on to state that the mere fact
that the parties contracted to keep the settlement confidential is not enough to justify
sealing the settlement, absent a specific factual showing that the parties would suffer
prejudice if the settlement is disclosed.
Defendant has identified such a potential overriding interest—a binding
contractual agreement not to disclose. The second element of the
overriding interest analysis is there must be a substantial probability that it
will be prejudiced absent closure or sealing. [Citations.] As we will note,
defendant has not shown a substantial probability any such interest in the
present case will be prejudiced—the second element of overriding
interest analysis identified in NBC Subsidiary. This analysis has now been
promulgated by the Judicial Council as one of the findings that must be
returned before a sealing order can be entered. [Citation.].)
(Id. at p. 1283.)
Since the court there found that defendant had not shown that a party’s interest
would be prejudiced if the settlement was disclosed, the court denied the motion to
seal the settlement. (Id. at p. 1287.)
In the present case, the existence of an agreement between the parties not to
disclose the terms of the settlement may constitute an “overriding interest” for the
purposes of Rule 2.551. However, this is not the end of the analysis, and the parties must
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still show through specific facts that revealing the amount of the settlement would
cause actual harm to them. (Id. at p. 1283.)
It is apparent that the confidentiality provision was included at the insistence of
defendant. Plaintiff’s only interest in sealing the records is to not suffer a claim for
breach of contract and damages by defendant for disclosing the settlement. If that
were sufficient to justify a sealing order, then the second prong of the analysis is
subsumed by the first.
Since the confidentiality provision was included in the settlement agreement
apparently solely to benefit defendant, there needs to be a showing that defendant
would be prejudiced by disclosure. No such showing is made here.
The court recognizes the predicament in which plaintiff finds herself. She
apparently has no interest in disclosing the settlement terms, but cannot enforce the
agreement without disclosing the terms thereof. The Judicial Council has adopted a
procedure for just this situation, where a party needs to rely on and submit to the court
documents that the other insists on keeping confidential. Rule 2.551, subdivision (b)(3)
provides:
(3) Procedure for party not intending to file motion or application
(A) A party that files or intends to file with the court, for the purposes of
adjudication or to use at trial, records produced in discovery that are
subject to a confidentiality agreement or protective order, and does not
intend to request to have the records sealed, must:
(i) Lodge the unredacted records subject to the confidentiality
agreement or protective order and any pleadings, memorandums,
declarations, and other documents that disclose the contents of the
records, in the manner stated in (d);
(ii) File copies of the documents in (i) that are redacted so that they do
not disclose the contents of the records that are subject to the
confidentiality agreement or protective order; and
(iii) Give written notice to the party that produced the records that the
records and the other documents lodged under (i) will be placed in the
public court file unless that party files a timely motion or application to
seal the records under this rule.
(B) If the party that produced the documents and was served with the
notice under (A)(iii) fails to file a motion or an application to seal the
records within 10 days or to obtain a court order extending the time to file
such a motion or an application, the clerk must promptly transfer all the
documents in (A)(i) from the envelope, container, or secure electronic file
to the public file. If the party files a motion or an application to seal within
10 days or such later time as the court has ordered, these documents are
to remain conditionally under seal until the court rules on the motion or
application and thereafter are to be filed as ordered by the court.
The court will adopt this procedure for purposes of this motion to seal, albeit
slightly modified.
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While the rule was drafted to address the scenario of use of documents
produced in discovery that the producing party claims is confidential, the rationale for
this procedure applies equally here. Because defendant Ashria is the party that wants
this information concealed from the public, it is the party that should have the burden
of making the required showing for a sealing order.
As the parties have already submitted unredacted copies of their papers
conditionally under seal, the 10 days for defendant to file a motion to seal will run from
service of the minute order on this motion. Since plaintiff was the party initially filing the
motion to seal, the court does not expect any opposition from her to defendant’s
motion seal. Accordingly, the hearing on the motion to seal will be set for October 31,
2017, to give the court time to review defendant’s motion prior to the hearing. If
defendant opts not to file a motion to seal, or the motion to seal is denied, then all
documents lodged conditionally under seal will be placed in the public file. If the
motion to seal is granted, then the court can proceed to rule on the motion to enforce
the settlement agreement by reference to the sealed records. In any case, there will
be no basis for any claim against plaintiff for breach of the confidentiality agreement
because she did her part in maintaining confidentiality.
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: JYH on 10/02/17
(Judge’s initials) (Date)
7
03
Tentative Ruling
Re: Eggman v. Kullberg
Case No. 15 CE CG 03775
Hearing Date: If a request for oral argument is made in compliance with Local
Rule 2.2.6(B) on today’s date, the court will hear argument on
Thursday October 5, 2017 (Dept. 402)
Motion: Defendant/Cross-Defendant Panu’s Motion for Summary
Judgment on the Complaint and Cross-Complaint
Defendants Tanya and Kelly Hinton’s Motion for Summary
Adjudication
Tentative Ruling:
To grant the motion of defendant Panu for summary judgment as to the
complaint and cross-complaint. (Code Civ. Proc. § 437c.) Plaintiffs’ request for a
continuance of the hearing to obtain more discovery is denied.
To grant the motion for summary adjudication of defendants Tanya and Kelly
Hinton as to the negligent entrustment cause of action. (Ibid.)
Explanation:
Panu’s Motion: Defendant Panu contends that he is immune from liability for
supplying the alcohol that Kullberg drank on the day of the incident, and thus he is
entitled to summary judgment of all claims against him. He contends that Civil Code
section 1714, subdivision (c) and Business and Professions Code section 25602 both
provide him with complete immunity for providing alcohol to Kullberg.
Under Civil Code section 1714, subdivision (c), “Except as provided in subdivision
(d), no social host who furnishes alcoholic beverages to any person may be held legally
accountable for damages suffered by that person, or for injury to the person or
property of, or death of, any third person, resulting from the consumption of those
beverages.” (Civil Code § 1714, subd. (c).)
However, under Civil Code section 1714, subdivision (d)(1), “Nothing in
subdivision (c) shall preclude a claim against a parent, guardian, or another adult who
knowingly furnishes alcoholic beverages at his or her residence to a person whom he or
she knows, or should have known, to be under 21 years of age, in which case,
notwithstanding subdivision (b), the furnishing of the alcoholic beverage may be found
to be the proximate cause of resulting injuries or death.” (Civ. Code, § 1714, subd.
(d)(1), emphasis added.)
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“Section 1714, as presently constituted, was designed to reinstate in California a
common law rule that immunized from civil liability those who provided alcoholic
beverages to someone who then injured himself or a third party due to intoxication.
The theory behind the rule is that the furnishing of alcohol is not the proximate cause of
injuries resulting from intoxication; rather, it is the consumption of alcohol that is the
proximate cause of such injuries.” (Rybicki v. Carlson (2013) 216 Cal.App.4th 758, 762.)
In addition, under Business and Professions Code section 26502, subdivision (b),
“No person who sells, furnishes, gives, or causes to be sold, furnished, or given away,
any alcoholic beverage pursuant to subdivision (a) of this section shall be civilly liable to
any injured person or the estate of such person for injuries inflicted on that person as a
result of intoxication by the consumer of such alcoholic beverage.” (Bus. & Prof. Code
§ 25602, subd. (b).)
Here, Panu has met his burden of showing that he is immune under Civil Code
section 1714, subdivision (c) and Business and Professions Code section 25602,
subdivision (b). While the evidence indicates that Panu furnished alcohol to Kullberg,
and that Kullberg consumed the alcohol and then drove while intoxicated and caused
plaintiffs’ injuries, Panu is immune from civil liability. Civil Code section 1714, subdivision
(c) bars a private person like Panu from being held civilly liable for simply furnishing or
providing alcohol to another person, who then causes injuries to himself or others.
(Rybicki, supra, at p. 764.)
Panu is not a commercial seller of alcohol, and he did not “sell” alcohol to
Kullberg. He merely purchased the alcohol from a liquor store by using the money that
his friends provided to him, and then they shared the alcohol together. Likewise, the
exception to immunity under Civil Code section 1714, subdivision (d) does not apply
here because Panu did not furnish the alcohol at his residence. The alcohol was
obtained at a liquor store, and the parties drank it in their car just before the accident.
However, plaintiffs argue that Panu fits within the exception under Business and
Professions Code section 25602.1, which provides for civil liability for “any other person
who sells, or causes to be sold, any alcoholic beverage, to any obviously intoxicated
minor where the furnishing, sale or giving of that beverage to the minor is the proximate
cause of the personal injury or death sustained by that person.” (Bus. & Prof. Code §
25602.1, Italics added.)
Plaintiffs cite to Ennabe v. Manosa (2014) 58 Cal.4th 697, in which the California
Supreme Court held that a minor who held at a party at her parents’ house and
charged a fee to some of the guests in order to buy more alcohol could be held liable
when one of the guests drove while intoxicated and ran over another guest, killing him.
The Supreme Court relied on the exception to immunity under Business and Professions
Code section 25602.1 in finding civil liability could exist. “[A] private ‘person’ may be
held to have shed her civil immunity if she sold alcoholic beverages (or caused them to
be sold) within the meaning of section 25602.1.” (Id. at p. 713.) Thus, the Supreme
Court found that the defendant had “sold” alcohol for the purposes of section 25602.1
by charging for admission, and that title to the alcohol passed to the driver. (Id. at p.
715.) “Because she sold Garcia alcoholic beverages at her party, section 25602.1
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permits ‘a cause of action [to] be brought [against her] by or on behalf of any person
who has suffered injury or death.’” (Id. at p. 718.)
In the present case, however, Panu did not charge a cover fee or require
Kullberg or the plaintiffs to pay to access alcohol. He did collect money from them for
the purchase of the bottle of vodka at the liquor store, but he did not charge them for
the privilege of drinking, as the defendant did in Ennabe. Thus, he did not “sell” alcohol
to Kullberg within the meaning of section 25602.1.
Also, while plaintiffs contend that Panu “caused alcohol to be sold” to Kullberg
by using his fake ID for the purchase of drinks at Takumi, and later to buy vodka at the
liquor store, again it does not appear that section 25602.1 was intended to cover this
situation. Panu’s actions here are more similar to the actions of the defendants in
Rybicki, supra, who purchased alcohol for a party that was later consumed by the
driver, who then injured the plaintiff. The Rybicki court found that such actions could
not be used to impose civil liability on the defendants, as they were immune under Civil
Code section 1714, subdivision (c), and the exception under subdivision (d) did not
apply. (Id. at p. 764.) While the plaintiffs in Rybicki did not raise the possibility of
immunity under Business and Professions Code section 25602.1, it does not appear that
such immunity would have applied in any event, as there was no evidence that
defendants had charged the driver for the right to consume the alcohol.
Sakanaya also argues in its opposition that Panu “sold” alcohol to Kullberg
because he received consideration for the purchase of the vodka in the form of the
right to drink from the bottle. In Ennabe, the Supreme Court discussed the definition of
“sale” for the purposes of sections 25602 and 25602.1. “Section 23025 defines the terms
‘sell,’ ‘sale,’ and ‘to sell’ as including ‘any transaction whereby, for any consideration,
title to alcoholic beverages is transferred from one person to another.’ (Italics added.)
Because sections 25602 and 25602.1 also appear in the ABC Act, section 23025's
definition of ‘sale’ applies to those sections. We thus agree with the Department of
ABC that the definition of a sale of alcoholic beverages in section 23025 applies to
section 25602.1.” (Id. at p. 714.) Also, “the definition of a sale under section 23025 is
broad enough to encompass indirect sales; the statute requires simply a transfer of title,
not necessarily a transfer of possession of a particular drink.” (Id. at p. 714.)
However, Ennabe also discussed the fact that the Department of ABC does not
regulate the transactions between private parties who pool money together to
purchase alcohol. “The Department of ABC agrees, explaining that ‘situations involving
casual reimbursement among friends who have agreed to purchase alcohol together
rarely, if ever, arise for the Department, and the Department does not make a practice
of intruding into clearly private parties to assess the casual pooling of money among
friends to buy alcohol. On the other hand, circumstances in which alcohol is clearly
being transferred in return for a purchase price, and the only defense to licensure is
either that the alcohol is priced at cost or that a fee is charged for the privilege of
entering [the] premises and consuming alcohol there, present clear cases of sales
requiring a license.’ (Italics added.)” (Id. at p. 720, emphasis in original.)
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Thus, it appears that section 25602.1 was intended to apply to transactions
where there was some kind of “purchase price” and alcohol was exchanged in return
of money or some other form of consideration. Casual situations where friends pool
their money together are not covered, but situations where a person charges for drinks
or charges a fee for entrance to the premises where drinks can be consumed are
covered by the exception to immunity.
In the present case, the parties did not pay Panu for the right to consume
alcohol, and there was no exchange of consideration or transfer of title for the alcohol.
They simply pooled their money so that they could buy alcohol and consume it
together. Under these circumstances, section 25602.1 does not apply, and the general
rule of civil immunity bars the plaintiffs’ claims against Panu. As a result, the court
intends to grant summary judgment in favor of Panu as to plaintiffs’ complaint.
Likewise, the court intends to also grant summary judgment as to the cross-
complaint of Sakanaya against Panu. Sakanaya argues that there are facts suggesting
that there is at least a triable issue of material fact as to whether Kullberg was
“obviously intoxicated” at the time he purchased drinks at Takumi Restaurant. Thus,
Sakanaya argues that summary judgment cannot be granted on the cross-complaint,
as section 25602.1 provides an exception for licensed persons who sell alcohol to minors
who are obviously intoxicated. (Bus. & Prof. Code § 25602.1.) Sakanaya relies on the
fact that Eggman testified at her deposition that Kullberg “looked very intoxicated. His
face was red. His eyes were droopy. He was slurring his words. Again, being very
repetitive. Being very rowdy, very rambunctious. And it only got worse the more he
drank. But he looked red and very drunk.” (Exhibit A to Clark decl., Eggman depo., p.
150, lines 5-21.) Thus, Sakanaya argues that there is a triable issue as to whether the
exception to immunity applies here.
However, while there may be a triable issue of material fact as to whether
section 25602.1 applies to the claims against Sakanaya, since Sakanaya is a licensed
seller of alcohol that allegedly sold alcohol to an obviously intoxicated minor, Panu is
immune from civil liability under Civil Code section 1714, subdivision (c), as discussed
above. Since Panu is not civilly liable to plaintiffs, he cannot be held liable on an
indemnity or contribution theory to Sakanaya either. Again, Panu did not sell or cause
to be sold alcohol for the purposes of section 25602.1. The fact that Sakanaya may be
liable to plaintiffs does not permit it to sue Panu for indemnity where Panu owed no
duty of care toward the plaintiffs due to the application of section 1714. Therefore, the
court intends to grant summary judgment on the cross-complaint as to Panu.1
1 Plaintiffs have also requested that the court continue the hearing date on the summary
judgment motion under Code of Civil Procedure section 437c, subd. (h), contending that they
have pending discovery requests and may be able to obtain additional information that would
defeat summary judgment. However, the court intends to deny the request for a continuance.
Plaintiffs have not shown that they are likely to obtain any new information that would change
the outcome, especially in light of the fact that Panu is immune from civil liability under Civil
Code § 1714, subd. (c). The only evidence that plaintiff seeks to obtain is the testimony of
employees at Takumi and Liquor Junction, but this evidence would not affect the application of
the statutory immunity.
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The Hintons’ Motion: The Hintons also move for summary adjudication of the
negligent entrustment claim alleged against them.
“It has been stated that in order to impose liability for negligent entrustment, the
lending owner must know, or from facts known to him should know, that the entrustee
driver was intoxicated, incompetent, or reckless.” (Hartford Accident & Indemnity Co.
v. Abdullah (1979) 94 Cal.App.3d 81, 91, internal citation omitted.)
Here, the Hintons have provided their own declarations, in which they state that
they had no knowledge that their son, Cameron Kullberg, was unfit or incompetent to
drive. They point out that Kullberg had his driver’s license, that they were not aware of
him receiving any traffic tickets prior to the subject accident and in fact he had not
received any tickets, that they were not aware of him being involved in any other
accidents and he had not been involved in any other accidents, and that they were
not aware of him ever operating a vehicle under the influence of drugs or alcohol and
he had not ever operated a vehicle under the influence of drugs or alcohol.
(Defendants’ UMF’s 1-8.) Thus, they claim that they had no reason to believe that their
son was unfit to drive a car before the subject accident. (UMF No. 9.) Thus, the Hintons
have met their burden of showing that they are entitled to summary adjudication of the
negligent entrustment cause of action, as the evidence presented by them indicates
that they had no advance knowledge or reason to believe that their son would drive
under the influence of alcohol before the accident.
In opposition to the Hintons’ motion, plaintiffs present an extensive amount of
evidence, most of which is irrelevant to the issue of whether the Hintons had knowledge
or reason to suspect prior to the subject accident that their son was not fit to drive a
car. Much of plaintiffs’ evidence relates to the events on the day of the accident, most
of which occurred without the knowledge of the parents of Kullberg, or after the
accident. Such evidence is immaterial to the issue of whether the Hintons knew or
should have known before the accident that their son might be unfit to drive.
Therefore, the court intends to disregard it.
On the other hand, the plaintiffs do submit some evidence that they claim raises
a triable issue of material fact as to whether the Hintons might have known before the
accident that their son had regularly been out drinking and driving with his friends.
Plaintiffs claim that Kullberg regularly went out drinking and that he often came home
late at night, drunk. In fact, according to Eggman, Kullberg would go out drinking with
her and their friends at least two to four times a week before the accident. (Eggman
depo., pp. 44:24 – 45:13.)
Diaz Bravo claims that, “During the approximate 2 to 3 month period before this
collision I had been dating Cameron Kullberg regularly. Every weekend we would be
together with other friends drinking alcohol. We also got together several times during
the week and drank as well depending upon the week. We drank at Hanalei's house,
our friend Jacob's house and in Cameron's car. I had driven with him before the
collision on several occasions where he was driving while intoxicated. Whenever I
offered to drive he always refused.” (Diaz Bravo decl., ¶ 16.)
12
“On one occasion after we had been out drinking, Cameron had driven home
and he later confided in me that his mother was awake when he arrived home and she
noticed he was drinking and had been driving as well.” (Diaz Bravo decl., ¶ 17.)
“On another occasion, about two weeks before the collision, while driving under
the influence of alcohol, Cameron was dropping off Kevin at his house. Kevin was
extremely intoxicated and Cameron had to walk him inside his house. Cameron was
also intoxicated and on the way home Cameron continued to drink while driving and
had to pull over to throw up. He hit a stop sign and dented and damaged his vehicle
that was always parked at his house. There was no way to hide it from his parents.” (Id.
at ¶ 18.)
However, the Hintons argue in their opposition that the evidence is largely
speculative and inadmissible, and does not show that the Hintons were aware of
Kullberg’s drinking and driving. They also contend that the statement that Mrs. Hinton
“noticed” he had been drinking and driving is hearsay and thus inadmissible.
It does appear that the statement of Kullberg to Diaz Bravo about his mother’s
“noticing” his drunkenness is hearsay, and not subject to any exceptions to the hearsay
rule. Therefore, the court intends to disregard the statement.
The other events discussed by plaintiffs in their depositions and declarations
occurred out of the presence of the Hintons, as the plaintiffs admit they did their
drinking outside of the Hinton home. The incident where Kullberg allegedly hit a stop
sign and damaged his car while driving drunk also occurred outside the presence of
the Hintons. While it is possible to speculate that they might have noticed the damage
to his car, there is no evidence that they actually did so. Although Kullberg was living at
home and it is certainly possible that the Hintons saw the damage, it is also possible that
they did not see the damage because it was minor or difficult to see when the car was
parked.
As the plaintiffs have not presented any evidence that could allow a reasonable
jury to infer that the Hintons knew or should have known of their son’s unfitness to drive,
the court intends to grant summary adjudication of the negligent entrustment claim in
favor of the Hintons.
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 10/02/17
(Judge’s initials) (Date)
13
(5)
Tentative Ruling
Re: Thomas Emerzian v. Wilsonart, LLC et al. et al.
Superior Court Case No. 17 CECG 02495
Hearing Date: If a request for oral argument is made in compliance with
Local Rule 2.2.6(B) on today’s date, the court will hear
argument on Thursday October 5, 2017 (Dept. 402)
Motion: Strike by Defendant Western Building Materials Co.
Tentative Ruling:
To treat the motion to strike as a motion for judgment on the pleadings. To grant
the motion for judgment on the pleadings as to the second and eighth causes of
action with leave to amend. The motion to strike the claims for punitive damages and
the remedies set forth in the eighth cause of action is rendered moot. To strike the third
cause of action sua sponte pursuant to CCP § 436 with leave to amend.
The time in which the complaint can be amended will run from service by the
clerk of the minute order. All new allegations in the first amended complaint are to be
set in boldface type.
Explanation:
Plaintiffs are correct in their argument that a motion to strike generally
does not lie against a defect or objection that may be raised by demurrer. But a
“motion to strike” for failure to state a cause of action (ground for general
demurrer) may be treated by the court as a motion for judgment on the pleadings.
[Pierson v. Sharp Memorial Hosp., Inc. (1989)216 Cal.App.3d 340,342-343] This approach
will be taken here because there is a fundamental flaw in Plaintiff’s fraud based causes
of action.
Second Cause of Action—Fraud via Intentional Misrepresentation and
Third Cause of Action—Fraud via Negligent Misrepresentation
Judicial Council of California Civil Jury Instruction (CACI) No. 1900 Intentional
Misrepresentation states:
[Name of plaintiff] claims that [name of defendant] made a false representation that
harmed [him/her/it]. To establish this claim, [name of plaintiff] must prove all of the
following:
1. That [name of defendant] represented to [name of plaintiff] that a fact was true;
2. That [name of defendant]'s representation was false;
14
3. That [name of defendant] knew that the representation was false when [he/she]
made it, or that [he/she] made the representation recklessly and without regard for its
truth;
4. That [name of defendant] intended that [name of plaintiff] rely on the
representation;
5. That [name of plaintiff] reasonably relied on [name of defendant]'s representation;
6. That [name of plaintiff] was harmed; and
7. That [name of plaintiff]'s reliance on [name of defendant]'s representation was a
substantial factor in causing [his/her/its] harm.
CACI No. 1903 “Negligent Misrepresentation” states:
Name of plaintiff] claims [he/she/it] was harmed because [name of defendant]
negligently misrepresented a fact. To establish this claim, [name of plaintiff] must prove
all of the following:
1. That [name of defendant] represented to [name of plaintiff] that a fact was true;
2. That [name of defendant]'s representation was not true;
3. That [although [name of defendant] may have honestly believed that the
representation was true,] [[name of defendant]/he/she] had no reasonable grounds for
believing the representation was true when [he/she] made it;
4. That [name of defendant] intended that [name of plaintiff] rely on this
representation;
5. That [name of plaintiff] reasonably relied on [name of defendant]'s representation;
6. That [name of plaintiff] was harmed; and
7. That [name of plaintiff]'s reliance on [name of defendant]'s representation was a
substantial factor in causing [his/her/its] harm.
Of note, Plaintiffs do not specifically allege who made the representations and
how they were made. Instead they allege: “Defendants represented and advertised
that the Wilsonart® 1730/1 California Compliant Bulk Contact Adhesive that plaintiffs
used was ‘designed with outstanding bond and heat strength,’ that it ‘bonds flatwork
(non-postforming) applications,’ and that Wilsonart contact adhesives are ‘unmatched
in terms of performance’ and “have held together many of America’s foremost
projects since 1970.’” See ¶ 20. Thus, it appears that the representations were made
via advertising.
But, advertising is not made to any plaintiff on a personal basis. Advertising is
made to the public in general. CACI Nos. 1900, 1901 and 1903 require that the
representation be made to a particular person. As a policy consideration, this prevents
a consumer from bringing a common law cause of action for fraud based upon false
advertising. Therefore, the motion for judgment on the pleadings as to the second
cause of action will be granted. The third cause of action for negligent
misrepresentation will be stricken sua sponte pursuant to CCP § 436.
“Representations of opinion, particularly involving matters of value, are ordinarily
not actionable representations of fact. A representation is an opinion ‘“if it expresses
only (a) the belief of the maker, without certainty, as to the existence of a fact; or (b) his
15
judgment as to quality, value … or other matters of judgment.”’” Graham v. Bank of
America, N.A. (2014) 226 Cal.App.4th 594, 606−607.) “Puffing,” or sales talk, is generally
considered opinion, unless it involves a representation of product safety. (Hauter v.
Zogarts (1975) 14 Cal.3d 104, 112.) Leave to amend is granted on the condition that
Plaintiffs must be able to allege that representations of fact not opinion were personally
made and were not in the form of advertising.
In addition, as a matter of law, fraud be pleaded "with particularity" so that the
court can weed out nonmeritorious actions before defendant is required to answer. This
is said to be the "last remaining habitat" of common law pleading standards. See
Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197,
216. Every element of the cause of action for fraud must be alleged in full, factually and
specifically. The policy of liberal construction of pleading will not be invoked to sustain
a pleading defective in any material respect. See Wilhelm v. Pray, Price, Williams &
Russell (1986) 186 Cal.App.3d 1324, 1332.
The particularity requirement necessitates pleading facts that "show how, when,
where, to whom, and by what means the representations were tendered." See Lazar v.
Sup.Ct. (Rykoff-Sexton, Inc.) (1996) 12 Cal.4th 631, 645 and Stansfield v. Starkey (1990)
220 Cal.App.3d 59, 73. Plaintiff must also specially plead the "detriment proximately
caused" by defendant's tortious conduct. See Civil Code § 3333. ''In order to recover
for fraud, as in any other tort, the plaintiff must plead and prove the 'detriment
proximately caused' by the defendant's tortious conduct. Deception without resulting
loss is not actionable fraud.'' (Service by Medallion, Inc., (1996) 44 Cal.App.4th 1807 at
p. 1818, internal citations omitted.)
Also, in order to state a cause of action for fraud against a corporation, plaintiff
must allege:
--the names of the persons who made the misrepresentations;
--their authority to speak for the corporation;
--to whom they spoke;
--what they said or wrote; and
--when it was said or written. See Lazar v. Sup.Ct. (Rykoff-Sexton, Inc.) (1996) 12 Cal.4th
631, 645 and Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.
Eighth Cause of Action—Unfair Business Practices
“False advertising” is actionable pursuant to Bus. & Prof. Code § 17500.
Importantly, neither actual nor compensatory damages may be awarded in an action
for false advertising. [Bank of the West v. Sup.Ct. (Industrial Indem. Co.) (1992) 2 Cal.4th
1254, 1266—“damages are not available under section 17203”; Chern v. Bank of
America (1976) 15 Cal.3d 866, 875—§§ 17500 and 17535 “do not authorize recovery of
damages”] Punitive damages are not available. [People v. Sup.Ct. (Jayhill Corp.)
(1973) 9 Cal.3d 283, 287]
In the causes of action at bench, Plaintiff seeks both compensatory and punitive
damages. See ¶¶ 65-66 of the Complaint. This is not permitted. Therefore, the motion
16
for judgment on the pleadings will granted as to the eighth causes of action with leave
to amend.
Pursuant to California Rules of Court, Rule 3.1312, subd. (a) and Code of Civil
Procedure section 1019.5, subd. (a), no further written order is necessary. The minute
order adopting this tentative ruling will serve as the order of the court and service by
the clerk will constitute notice of the order.
Tentative Ruling
Issued By: JYH on 10/02/17
(Judge’s initials) (Date)
17
(24) Tentative Ruling
Re: Arteaga v. Fresno Community
Court Case No. 13CECG03906
Hearing Date: October 3, 2017 (Dept. 402)
Motion: Motion by Pervaiz A. Chaudhry, Valley Cardiac Surgery Medical
Group, and Chaudhry Medical, Inc. for Judgment on the Pleadings
on the Tenth Cause of Action to the Fourth Amended Complaint
Tentative Ruling:
To order off calendar as moot, given plaintiffs’ dismissal of the Tenth cause of
action. (Wells v. Marina City Properties, Inc. (1981) 29 Cal.3d 781, 789-790.)
Explanation:
Pursuant to California Rules of Court, rule 3.1312 and Code of Civil Procedure
section 1019.5(a), no further written order is necessary. The minute order adopting this
ruling will serve as the order of the court, and service by the clerk of the minute order
will constitute notice of the order.
Tentative Ruling
Issued By: JYH on 10/02/17
(Judge’s initials) (Date)
18
Tentative Rulings for Department 403
(20) Tentative Ruling
Re: Bella-Gala, Inc. v. Alvarez et al., Superior Court Case No.
16CECG00511
Hearing Date: October 3, 2017 (Dept. 403)
Motion: Plaintiff’s Motion to Vacate and Set Aside Entry of Default
and to Amend Complaint
Tentative Ruling:
To grant. Plaintiff may file the proposed amended complaint, which will have
the effect of vacating the default of defendant Andy Alvarez
IF ORAL ARGUMENT IS REQUESTED, IT WILL BE ENTERTAINED ON THURSDAY, OCTOBER 5,
2017 AT 3:00 PM.
Explanation:
It was not necessary for plaintiff to file this motion. Plaintiff has the right to amend
the complaint once without leave of court before a defendant’s answer or demurrer is
filed. (Code Civ. Proc. § 472; Woo v. Superior Court (1999) 75 Cal.App.4th 169, 175.)
The fact that a default has been entered does not affect this right – if a defendant's
default has already been entered, service of the amended complaint “opens” the
default—entitling it to plead to the amended complaint. (Weil & Brown, Cal. Practice
Guide: Civ. Proc. Before Trial (TRG 2017) ¶ 6:609; Engebretson & Co., Inc. v. Harrison
(1981) 125 Cal.App.3d 436, 442-443.) Plaintiff should have just gone ahead and filed the
amended complaint, which would have had the effect of setting aside the default.
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: KCK on 10/02/17
(Judge’s initials) (Date)
19
(5)
Tentative Ruling
Re: Karen Johnson v. Zenique Development, LLC et al.
Superior Court Case No. 16 CECG 03831
Hearing Date: October 3, 2017 (Dept. 403)
Motion: Demurrer to the First Amended Complaint
Tentative Ruling:
To take the demurrer off calendar for failure to comply with CCP § 430.41(a). It
states in relevant part: “Before filing a demurrer pursuant to this chapter, the demurring
party shall meet and confer in person or by telephone with the party who filed the
pleading that is subject to demurrer...” Here, there was no declaration submitted by
the Defendants regarding this requirement.
The parties are ordered to meet & confer as required by CCP § 430.41(a). If the
meet & confer is unsuccessful, then the demurring party may calendar a new date for
hearing the demurrer to the First Amended complaint.
IF ORAL ARGUMENT IS REQUESTED, IT WILL BE ENTERTAINED ON THURSDAY, OCTOBER 5,
2017 AT 3:00 PM.
Pursuant to California Rules of Court, Rule 391(a) and Code of Civil Procedure §
1019.5, subd. (a), no further written order is necessary. The minute order adopting this
tentative ruling will serve as the order of the court and service by the clerk will constitute
notice of the order.
Tentative Ruling
Issued By: KCK on 10/02/17
(Judge’s initials) (Date)
20
(30)
Tentative Ruling
Re: Bryan Moon v. Sina Vong
Superior Court Case No. 15CECG01871
Hearing Date: Tuesday October 3, 2017 (Dept. 403)
Motion: Petition to Compromise a Minor’s Claim
Tentative Ruling:
TO GRANT provided that Minor’s mother, Alma Ruiz Pranger is present at the hearing on
October 5, 2017 and testifies regarding the current status of Minor’s anxiety.
IF ORAL ARGUMENT IS REQUESTED, IT WILL BE ENTERTAINED ON THURSDAY, OCTOBER 5,
2017 AT 3:00 PM.
Explanation:
Paragraph 9 (a) of the Petition indicates Minor is fully recovered, but medical records
do not fully substantiate this claim. (Amend. Pet., Attach 9.)
Regarding anxiety: Minor was treated for anxiety (Pet. filed: 6/12/17, ¶ 8), but no
medical records are submitted indicating that Minor has fully recovered from this
condition. In Attorney Torem’s July 26 letter, he states that he has been unable to have
Minor evaluated on this basis, but states that he is fully recovered. He agrees to
produce Minor’s mother, Alma Ruiz Pranger at the hearing to testify as to Minor’s
current status.
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: KCK on 10/02/17
(Judge’s initials) (Date)
21
Tentative Rulings for Department 501
(29)
Tentative Ruling
Re: Samira Lyahyaoui v. Khalid Chaoui, et al.
Superior Court Case No. 17CECG00853
Hearing Date: October 3, 2017 (Dept. 501)
Motion: Set aside default
Tentative Ruling:
To deny. (Calif. Rules of Court, rule 3.1113(a).)
Explanation:
“Unless otherwise provided by the rules in this division, the papers filed in support
of a motion must consist of at least the following:
(1) a notice of hearing on the motion;
(2) the motion itself; and
(3) a memorandum in support of the motion[.]”
(Calif. Rules of Court, rule 3.1112(a).)
The court may construe the absence of a memorandum as an admission that
the motion is not meritorious and cause for its denial. (Calif. Rules of Court, rule
3.1113(a).)
In the case at bench, the Court found no moving papers in support of the instant
motion. Accordingly, the motion 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: MWS on 10/02/17
(Judge’s initials) (Date)
22
(30)
Tentative Ruling
Re: Joey Smith v. Community Regional Medical Center
Superior Court No. 14CECG02293
Hearing Date: Tuesday October 3, 2017 (Dept. 501)
Motions: Plaintiffs’ Motion for Reconsideration of This Court’s Order (dated
8/11/17), granting Defendant Johnson, Kapoor, and Regent’s
Motion for Summary Judgment
Tentative Ruling:
To Order Off Calendar
Explanation:
Either party may seek reconsideration by the same judge within 10 days upon showing
“new or different facts, circumstances or law.” (Code Civ. Proc., § 1008, subd. (a).) But,
the motion must be made and decided before entry of judgment. (Aguilar v. Atlantic
Richfield Co. (2001) 25 Cal.4th 826, n.29; Passavanti v. Williams (1990) 225 Cal.App.3d
1602, 1606; see also APRI Ins. Co. v. Superior Court (1999) 76 Cal.App.4th 176, 181
[immaterial that motion filed before entry of judgment]; Ramon v. Aerospace Corp.
(1996) 50 Cal.App.4th 1233, 1237–1238.)
Here, Plaintiffs seek reconsideration of the order issued on August 11, 2017. However,
because judgment was entered on August 18, 2017, This Court has no further power to
rule. And it is irrelevant that this motion was filed prior to entry of judgment.
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: ____ on .
(Judge’s initials) (Date)
23
Tentative Rulings for Department 502 (2)
Tentative Ruling
Re: In re Yaritzell Gaxiola
Superior Court Case No. 17CECG02018
Hearing Date: October 3, 2017 (Dept. 502)
Motion: Petition to Compromise Minor’s Claim
Tentative Ruling:
To grant. Order signed. Hearing off calendar.
Pursuant to California Rules of Court, rule 3.1312 and Code of Civil Procedure
section 1019.5(a), no further written order is necessary. The minute order adopting this
tentative ruling will serve as the order of the court and service by the clerk will constitute
notice of the order.
Tentative Ruling
Issued By: RTM on 09/22/17
(Judge’s initials) (Date)
24
Tentative Rulings for Department 503 (6)
Tentative Ruling
Re: Martinez v. Packard
Superior Court Case No.: 16CECG02429
Hearing Date: October 3, 2017 (Dept. 503)
Motion: Default prove-up
Tentative Ruling:
To deny, without prejudice, pending correction of the items noted below.
Any new hearing date must be obtained pursuant to The Superior Court of
Fresno County, Local Rules, rule 2.2.1.
Explanation:
Because Plaintiff is not seeking a judgment against Ameaca Packard and the
Doe Defendants, they must be dismissed from the case. (Cal. Rules of Court, rule
3.1800(a)(7).)
Because the statement of damages included just $1 million for the amount of
special damages/medical expenses, this element of the judgment will be limited to that
amount, not the entire $1,079,982.26 in medical bills attached to Plaintiff’s declaration.
(Code Civ. Proc., §§ 580, subd. (a); 425.11.) Should Plaintiff not wish to accept the $1
million for past medical expenses, default can be stricken, and Plaintiff must personally
serve on Defendant John Packard an amended statement of damages seeking
$1,079,982.26, before default is entered again and the process continue from there.
The Court is satisfied with the proof of the special damages/medical bills. Plaintiff
need only establish a prima facie case for damages; its evidence need not
preponderate because, by defaulting, the defendant admits the material allegations
of the complaint. (Johnson v. Stanhiser (1999) 72 Cal.App.4th 357, 361.)
While a personal injury plaintiff may obtain, on default, an award of future
medical expenses (present value), such evidence is going to require expert testimony
and calculation. (Niles v. City of San Rafael (1974) 42 Cal.App.3d 230, 243 [Future
medical expenses are a subject sufficiently beyond common knowledge that the
opinion of an expert would assist the trier of fact, with the testimony by actuaries
frequently used to show discount rates and the present value of future benefits.]) This
would include the probability and type of such future medical expenses, requiring
medical expert testimony, as well as the actuarial information about the expense.
25
Plaintiff may either re-submit this, or delete the future medical expenses from his request
for default judgment.
While there is no requirement that loss of future earning capacity be proved by
expert testimony, with Plaintiff’s own testimony concerning his or her occupational goals
and opportunities and the effect of his or her injury thereon being sufficient evidence of
such damages (Gargir v. B’nei Akiva (1998) 66 Cal.App.4th 1269, 1280-1282), the Court
would need to know Plaintiff’s age to know if his claimed $500,000 in loss of future
earnings capacity (present value) is reasonable. (See Judicial Council of Cal. Civ. Jury
Instns (Feb. 2007 rev.) CACI No. 3932 [Life expectancy tables].)
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: A.M. Simpson on 10/02/17
(Judge’s initials) (Date)
26
(24) Tentative Ruling
Re: Avila v. Sierra Pacific Mortgage Company, Inc.
Court Case No. 17CECG00459
Hearing Date: October 3, 2017 (Dept. 503)
Motion: 1) JPMorgan Chase Bank, N.A.’s Demurrer to the Third Amended
Complaint
2) JPMorgan Chase Bank, N.A.’s Motion to Strike Portions of Third
Amended Complaint
3) Demurrer of CitiMortgage, Inc. and Mortgage Electronic
Registration System to the Third Amended Complaint
Tentative Ruling:
To strike, sua sponte, the First and Fourth causes of action from the complaint as
they were improperly inserted in the pleading. (Code Civ. Proc. § 436.) This order is
expressly made applicable to all defendants. No leave to amend is granted, as this can
only be obtained via a duly noticed motion.
To sustain the demurrers of JPMorgan Chase Bank, N.A., CitiMortgage, Inc. and
Mortgage Electronic Registration System to the Second, Third, Fifth, Sixth, Seventh, and
Eighth causes of action, without leave to amend.
Explanation:
Chase’s Motion to Strike:
JPMorgan Chase Bank, N.A. (“Chase”) moves to strike the two causes of action
which were inserted in the Third Amended Complaint (“TAC”) without leave of court:
the First cause of action for violations of the HBOR and the Fourth cause of action for
violations of the TILA. Plaintiff’s authority to amend was limited in scope to those causes
of action alleged in the complaint. (People By and Through Dept. of Public Works v.
Clausen (1967) 248 Cal.App.2d 770, 785.) He had no leave of court to raise new causes
of action.
While only Chase moved to strike these causes of action, and CitiMortgage, Inc.
(“CMI”) and Mortgage Electronic Registration System (“MERS”) raised this issue by way
of demurrer, the order striking these causes of action must apply to all defendants.
Therefore, the court has stricken them from the complaint, sua sponte, so the order will
be applicable to all defendants. (Code Civ. Proc. § 436.)
Chase’s Demurrer to Entire Complaint (Judicial Estoppel):
Judicial estoppel is an equitable doctrine designed to preclude a party from
asserting one position and gaining an advantage thereby, and then later taking a
clearly inconsistent position. (Hamilton v. State Farm Fire & Cas. Co. (9th Cir. 2001) 270
27
F.3d 778, 782 (“Hamilton/State Farm”).) Specific to the context here, the doctrine
prevents a bankruptcy debtor who fails to disclose a lender liability claim (whether filed
yet or not), as is required to be listed in the bankruptcy petition, from later litigating that
claim. “The result of a failure to disclose [any litigation likely to arise in a nonbankruptcy
context] triggers application of the doctrine of equitable estoppel, operating against a
subsequent attempt to prosecute the actions.”(Hamilton v. Greenwich Investors XXVI,
LLC (2011) 195 Cal.App.4th 1602, 1609 (“Hamilton/Greenwich”) (Citation and internal
quotes omitted; brackets in the original).)
Chase argues that here the judicially noticed documents show that plaintiff’s
seventh bankruptcy petition was filed on January 19, 2016, so it occurred after all of the
pertinent documents relative to the foreclosure were recorded. Accordingly, he then
knew all facts necessary to allow him to be aware of any claims he had against Chase,
and indeed against all the defendants. However, he never disclosed the existence of
any claims or litigation against Chase or any other defendant when he filed the
schedules detailing his assets. (See RJN, Ex. 22, Bates No. 122.) Defendant is not asking
that the court accept the truth of the matter (i.e., that plaintiff had no claims against
anyone), but that the petition “says what it says,” i.e., that this was the position plaintiff
took in the bankruptcy action. Thus, Chase argues plaintiff should be judicially
estopped from asserting any such claims now.
In “Hamilton/Greenwich,” supra, the Second District Court of Appeal expressly
held that when ruling on a demurrer to a borrower’s fraud action against a lender there
was no error in the trial court taking judicial notice of the bankruptcy documents where
1) all documents could be verified by using the bankruptcy court’s electronic file
system, 2) plaintiff did not dispute that the documents were what they purported to be,
and 3) the judicial notice was not being requested for the truth of the matters asserted,
but rather to determine that the documents were filed and that “they say what they
say.” (Hamilton/Greenwich, supra, 195 Cal.App.4th at p. 1609, fn 3.) Here, all of these
apply, so the court has taken judicial notice of the bankruptcy documents to determine
whether the doctrine of judicial estoppel should apply to bar plaintiff’s claims.
Demurrer cannot be sustained based on the doctrine of judicial estoppel. First, in
discussing the factors where the doctrine could be applied, the court in
Hamilton/Greenwich clearly recognized that it could not be asserted by a defendant in
the lawsuit who was not also a party to the bankruptcy proceeding, since application
of judicial estoppel “in the absence of any basis for a res judicata finding [such as]
where the later lawsuit is against a noncreditor” would penalize both sides to the
bankruptcy while “bestowing a windfall upon the third party noncreditor defendant.”
(Hamilton/Greenwich, 195 Cal.App.4th at pp. 1612-1613 (brackets added), citing to
and quoting Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 1020.) Here,
Chase was not listed as a bankruptcy creditor on the petition and thus it stands as a
third party noncreditor defendant, so there is no basis for application of judicial
estoppel in its favor. At best, the doctrine might be asserted in favor of defendant CMI,
who was named as a creditor in the bankruptcy.
However, judicial estoppel cannot be applied on this motion for a second
reason (i.e., even if Chase had been a bankruptcy creditor): Chase failed to establish
28
that plaintiff’s seventh bankruptcy petition was on the proper footing for application of
the doctrine. Judicial estoppel will only be applied where the bankruptcy court has
confirmed a plan of reorganization, thereby establishing that the bankruptcy court
adopted or accepted the truth of the debtor’s position that he did not have any legal
claims. The court in Hamilton/Greenwich recognized this principal as set forth in Gottlieb
v. Kest (2006) 141 Cal.App.4th 110, and summarized the point as follows: “[W]hen the
bankruptcy court dismisses a case without confirming a plan of reorganization, judicial
estoppel does not bar a claim that should have been disclosed in bankruptcy, because
nothing that happened in the bankruptcy court affected any unpaid creditor's right to
pursue the debtor.” (Hamilton/Greenwich, supra, 195 Cal.App.4th at 1610 (and
discussing Gottlieb further at p. 1613).) The Ninth Circuit has recognized this same
limitation: “This court has restricted the application of judicial estoppel to cases where
the court relied on, or ‘accepted,’ the party's previous inconsistent position.” (See
Hamilton/State Farm, supra, 270 F.3d at p. 783.) Here, Chase requested judicial notice
of plaintiff’s bankruptcy petition, only. There is no indication that the court ever
confirmed a plan of reorganization for plaintiff, or if the case was dismissed just as the
other ones were. The court cannot find that the doctrine should apply here, even to a
named creditor.
Demurrers to Remaining Counts:
The court will combine the discussion of the demurrers by each set of
defendants, as the rulings and bases for each are the same.
First (Homeowner’s Bill of Rights) and Fourth (Truth in Lending) Causes of Action:
As these causes of action have been dealt with by way of being stricken from
the complaint, the demurrers are rendered moot.
Second Cause of Action: Fraud in the Concealment
In the earlier versions of the complaint, the Fraud in the Concealment cause of
action was stated only against defendant Sierra Pacific Mortgage Company, Inc.
(“Sierra Pacific”). In the TAC plaintiff has dropped the designation indicating who this
count is raised against. Since the prior demurrer by CMI and MERS was not raised
against this cause of action, the court’s ruling did not concern it, so plaintiff had no
permission to amend it in any way and thus had no right to add any other defendant to
this cause of action; nor did plaintiff request it by way of a motion to amend. (Phoenix
of Hartford Ins. Companies v. Colony Kitchens (1976) 57 Cal.App.3d 140, 147—new
party may not be added to cause of action by an amended complaint with leave of
court.) Thus, to the extent plaintiff intended this cause of action in the TAC to be raised
against any of the demurring defendants, both demurrers are sustained without leave
to amend absent this being requested and obtained via a duly noticed motion.
Third Cause of Action: Wrongful Foreclosure
This cause of action is premised on challenging defendants’ authority to
foreclose on the property because they “have failed to perfect any security interest” in
29
the property, or they “cannot prove to the court they have a valid interest” in the Deed
of Trust. (TAC, ¶79.) Further, plaintiff challenges MERS’ authority to foreclose. (See TAC, ¶
82.) He claims there is no authority to foreclose because the loan was improperly
securitized due to a violation of the pooling and servicing agreement (“PSA”) for the
securitized trust into which the Note and Deed of Trust was assigned. (TAC, ¶¶27-28.)
As to MERS’ authority to foreclose, this is clearly granted in the Deed of Trust at
issue here. It states that MERS, as nominee for the Lender, had “the right to foreclose
and sell the Property; and to take any action required of Lender including, but not
limited to, releasing and canceling this Security Instrument.” (RJN, Ex. 1, p. 2, Bates
Stamp 7.)
Furthermore, California law does not require a beneficiary or a foreclosing entity
to prove ownership of the Note, or record an assignment prior to commencing
foreclosure and plaintiff cannot demand such proof as a condition to the sale. (Gomes
v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1156—“California's
nonjudicial foreclosure law does not provide for the filing of a lawsuit to determine
whether MERS has been authorized by the holder of the Note to initiate a foreclosure.”
Debrunner v. Deutsche Bank Nat. Trust Co. (2012) 204 Cal.App.4th 433, 440—Nonjudicial
foreclosure statute “does not mandate physical possession of the underlying promissory
note in order for this initiation of foreclosure to be valid.”)
Courts have found that borrowers facing nonjudicial foreclosure lack standing to
bring preemptive actions to challenge a foreclosing entity’s authority based on alleged
improper securitization. “California courts do not allow such preemptive suits because
they “would result in the impermissible interjection of the courts into a nonjudicial
scheme enacted by the California Legislature.” (Saterbak v. JPMorgan Chase Bank,
N.A. (2016) 245 Cal.App.4th 808, 814 (internal quotes and citation omitted).) The
California Supreme Court recently held, in Yvanova v. New Century Mortg. Corp. (2016)
62 Cal.4th 919, 934-935, that a borrower had standing to sue for wrongful foreclosure
where the alleged defect in securitization rendered the assignment void rather than
voidable, but the Court expressly limited its ruling to the post-foreclosure context. It
clearly recognized there was no right to bring such a suit pre-foreclosure: “We do not
hold or suggest that a borrower may attempt to preempt a threatened nonjudicial
foreclosure by a suit questioning the foreclosing party's right to proceed.” (Id. at p. 924.)
Furthermore, while the Supreme Court in Yvanova left unresolved the question of
whether an untimely assignment to a securitized trust rendered the transfer void or
merely voidable, the court in Saterbak, relying on a case out of the Second Circuit,
expressly resolved the question: “We conclude such an assignment is merely voidable.”
(Saterbak, supra at p. 815, relying on Rajamin v. Deutsche Bank Nat. Trust Co. (2d Cir.
2014) 757 F.3d 79, 88-89.) Thus, the securitization issue is something only parties to that
transaction can challenge, and not a third-party borrower such as plaintiff.
After amending the complaint several times, plaintiff has failed to show he has
any basis for maintaining this claim. Both demurrers must be sustained, without leave to
amend.
30
Fifth Cause of Action: Unconscionable Contract
This cause of action was also initially only stated against defendant Sierra Pacific,
and no leave was granted in ruling on the prior demurrer for plaintiff to raise it against
any other defendant. Furthermore, it is not a valid cause of action: it is a defense to
enforcement of a contract, permitting the court to deny enforcement of
unconscionable provisions. (Civ. Code § 1670.5; Dean Witter Reynolds, Inc. v. Superior
Court (1989) 211 Cal.App.3d 758, 766; Jones v. Wells Fargo Bank (2003) 112 Cal.App.4th
1527, 1539.) Thus, to the extent plaintiff intended this cause of action in the TAC to be
raised against any defendant other than Sierra Pacific, both demurrers must be
sustained, and without leave to amend because it is not a valid cause of action.
Sixth Cause of Action: Breach of Contract
The text of this cause of action is unchanged from the prior version except for an
added sentence alleging defendants’ knowing breach and plaintiff’s damage (¶ 125).
The “breach” alleged is that Sierra Pacific “and specifically MERS” were obligated
under “paragraph 23 – Release” of the Deed of Trust to reconvey the Deed of Trust to
plaintiff once Sierra Pacific “sold and relinquished its interested in Plaintiff’s real
property,” i.e., in a third party sale. (See TAC, ¶¶ 122-124.)
As none of the allegations of this cause of action are directed to any of the
moving defendants, at best it is subject to a demurrer for uncertainty. However, no
leave to amend can be granted to clarify this uncertainty, since this count is also
subject to general demurrer since it is deficient as a matter of law and the defects have
not been cured despite plaintiff being given an opportunity to amend.
Generally, a plaintiff’s interpretation of a contract will be accepted as correct in
testing the sufficiency of a complaint, but only if the pleaded meaning is one to which
the instrument is reasonably susceptible. (Aragon-Haas v. Family Security Ins. Services,
Inc. (1991) 231 Cal.App.3d 232, 239; Marina Tenants Assn. v. Deauville Marina
Development Co. (1986) 181 Cal.App.3d 122, 128—pleaded meaning accepted as
long as it “does not place a clearly erroneous construction upon the provisions of the
contract.”) Here, plaintiff’s allegations of breach place a clearly erroneous construction
upon the provisions of the Deed of Trust which cannot be accepted as true on
demurrer: namely, plaintiff contends that because Sierra Pacific sold the Note and
Deed of Trust to another creditor he should have been released from any obligation
under either instrument and own the home free and clear of any debt, and defendants
breached the trust by not reconveying the Deed of Trust to him.
Not surprisingly, the Deed of Trust at issue has no such terms. First, the reference
to “paragraph 23” is erroneous, as this deals with riders to the instrument, and not
“releases.” Instead, paragraph 19 deals with “reconveyance,” and it merely provides
that the Lender (and/or its successors and assigns, see ¶12) must reconvey the Deed of
Trust to the person(s) “legally entitled to it” upon payment of all sums secured under it.
Since even after a sale/transfer of the Note and Deed of Trust plaintiff remained
obligated to the Lender and the Lender’s successors and assigns to pay all sums due,
and he acknowledges he is in default on the debt, he cannot allege he has paid all
31
sums due under the Note and is “legal entitled to” reconveyance, much less can he
claim breach for any defendant’s failure to reconvey.
Moreover, plaintiff has failed to add any allegations that might avoid the claim
being barred by the 4-year statute of limitations, as was noted in the prior ruling on
demurrer. Both demurrers must be sustained, without leave to amend.
Seventh Cause of Action: Breach of Fiduciary Duty
The ruling on the earlier demurrer found that plaintiff had failed to allege any
special relationship between the parties which created any fiduciary duty, and pointed
out that absent special circumstances, there is no such relationship between a
borrower and a lender. (Perlas v. GMAC Mortg., LLC (2010) 187 Cal.App.4th 429, 436.)
The only allegation plaintiff has added to the TAC is that Sierra Pacific “owed a duty to
Plaintiff to act in its best interest.” This fails to allege the requisite fiduciary relationship,
but pertinent to the motions at issue, fails to address any such relationship regarding
any of the moving defendants. Both demurrers must be sustained, without leave to
amend.
Eighth Cause of Action: Quiet Title
The earlier demurrer to this cause of action was sustained because, among other
things, plaintiff had not alleged he had rightful title to the property. Plaintiff has
attempted to cure this defect by alleging (and attaching an exhibit showing) that he
regained record title to the property by a Grant Deed from Michelle Avila to him earlier
this year. However, this is insufficient to aid him in maintaining a quiet title cause of
action. The allegation that plaintiff is the rightful owner of the property means he must
plead that he has satisfied his obligation on the debt. (Kelley v. Mortgage Electronic
Registration Systems, Inc. (N.D. Cal. 2009) 642 F.Supp.2d 1048, 1057—“A basic
requirement of an action to quiet title is an allegation that plaintiffs "are the rightful
owners of the property, i.e., that they have satisfied their obligations under the Deed of
Trust" (emphasis added). Shimpones v. Stickney (1934) 219 Cal. 637, 649—“It is “settled in
California that a mortgagor cannot quiet his title against the mortgagee without paying
the debt secured.”) “It is well established in the law that a mortgagor in possession may
not maintain an action to quiet title, even though the debt is unenforceable because
of the statute of limitations.” (Mix v. Sodd (1981) 126 Cal.App.3d 386, 390; Miller v.
Provost (1994) 26 Cal.App.4th 1703, 1707.) Here, there is no question that plaintiff has not
paid the secured debt; therefore, he may not maintain this cause of action. Both
demurrers must be sustained, without leave to amend.
Pursuant to California Rules of Court, rule 3.1312 and Code of Civil Procedure
section 1019.5(a), no further written order is necessary. The minute order adopting this
ruling will serve as the order of the court, and service by the clerk of the minute order
will constitute notice of the order.
Tentative Ruling
Issued by: A.M. Simpson on 10/02/17
(Judge’s initials) (Date)
32
(29)
Tentative Ruling
Re: Dorothy Adrian, et al. v. Scott Radtke, et al.
Superior Court Case No. 17CECG02080
Hearing Date: October 3, 2017 (Dept. 503)
Motion: Defendant Keylex, Inc.’s petition to compel arbitration
Tentative Ruling:
To grant Defendant Keylex, Inc.’s petition to compel arbitration of Plaintiffs’
financial elder abuse cause of action. To stay the judicial action pending resolution of
the arbitration.
Explanation:
In Prima Paint Corp. v. Flood & Conklin Mfg. Co. (1967) 388 U.S. 395, 402, the U.S.
Supreme Court specifically and expressly found a distinction between allegations of
fraud directed at the arbitration agreement itself, and allegations of fraud directed at
the principal contract, holding that only fraud directed at the making or performance
of the arbitration agreement is to be determined by the court. (See also Rosenthal v.
Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 415.) Where the fraud goes to
the inception or execution of the agreement, the promisor is deceived as to the nature
of his or her act, and does not actually know what he or she is signing, or does not
intend to enter into a contract at all; in such an instance, mutual assent is lacking, and
the contract is void. (Ibid.) On the other hand, fraud in the inducement occurs where
the party signing knows what he or she is signing, but his or her consent has been
induced by fraud; in that case, mutual assent is present and a contract is formed,
though due to the fraud is voidable. (Rosenthal, supra, 14 Cal.4th at p. 415.) “The
question in all cases simply is whether the agreement to arbitrate itself was induced by
some fraud.” (Hayes Children Leasing Co. v. NCR Corp. (1995) 37 Cal.App.4th 775, 781.)
The issue of fraud in the inducement of a contract containing an arbitration
provision is arbitrable. (Ericksen, Arbuthnot, McCarthy, Kearney & Walsh, Inc. v. 100 Oak
Street (1983) 35 Cal.3d 312.) Accordingly, where a party seeking to resist arbitration
does not allege facts showing that the resisting party never intended to agree to
arbitrate the issues raised, or that its assent to the agreement to arbitrate was the
product of wrongful coercion, “the matter should be referred to the arbitrators without
any preliminary judicial consideration of the question of fraud in the inducement.”
(Hayes, supra, 37 Cal.App.4th at p. 781; see also Engalla v. Permanente Medical Group,
Inc. (1997) 15 Cal.4th 951, 973 [party seeking to defeat petition to compel arbitration on
grounds of fraud must show alleged fraud goes specifically to making of arbitration
agreement, rather than to making of contract in general]; Ericksen, Arbuthnot,
McCarthy, Kearney & Walsh Inc. v. 100 Oak Street (1983) 35 Cal.3d 312, 323 [claims of
fraud in the inducement of contract containing arbitration clause, distinguished from
claims of fraud directed to arbitration clause itself, are to be decided by arbitrator, not
33
the court]; Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 416
[claims of fraud in the execution of entire agreement not arbitrable under either state
or federal law].)
A party that shows it is a third party beneficiary of an arbitration agreement may
be entitled to enforce that agreement. (Valley Casework, Inc. v. Comfort Construction,
Inc. (1999) 76 Cal.App.4th 1013, 1021; see Mormile v. Sinclair (1994) 21 Cal.App.4th 1508,
1511 [arbitration agreements enforced “with regularity” against nonsignatory parties].)
Where a party attempts to assert an arbitration provision pursuant to third party
beneficiary status, only a “minimal [pleading] requirement” is needed, including an
allegation of a controversy between the parties, facts demonstrating the existence of
an arbitrable controversy, the existence of a written agreement, and an allegation that
the other party has refused to arbitrate. (Bouton v. USAA Cas. Ins. Co. (2008) 167
Cal.App.4th 412, 425.)
When one party to a contract performs pursuant to it and the other party
accepts the performance without objection, the contract is enforceable. (Bohman v.
Berg (1960) 54 Cal.2d 787, 795.)
In the case at bench, Defendant Keylex petitions the Court to compel Plaintiffs to
arbitrate their financial elder abuse claim against moving party pursuant to (1) the
contract between Plaintiffs and Defendant Keylex (“Keylex Agreement”), or (2) the
contract between Plaintiffs and Defendant California Motoring Company Champions,
Inc. (“CAM Agreement”), which Defendant Keylex argues it is entitled to enforce on a
third party basis. Plaintiffs argue that the Keylex Agreement is invalid because Plaintiffs
never signed it; and the CAM Agreement is invalid because only Plaintiffs signed it, the
other party did not.
With regard to the CAM Agreement, though the contract does not appear to be
signed by Defendant California Motoring, the contract became enforceable when it
was accepted through performance, i.e., when Plaintiffs accepted delivery of the
vehicle. As to the Keylex Agreement, Plaintiffs’ argument applies so far as moving party
attempts to enforce the arbitration provision in that agreement; however, moving party
seeks to enforce the arbitration agreement in either contract, seeking to enforce the
arbitration provision of the CAM Agreement pursuant to a third party beneficiary
theory.
Plaintiffs plainly state they executed the CAM Agreement, though they did so in
reliance on misrepresentations made by Defendant Radtke. (Decls. of D. and M.
Adrian, ¶7.) Pursuant to Prima Paint, supra, 388 U.S. 395, and Engalla, supra, 15 Cal.4th
951, Plaintiffs must arbitrate their claims that arise from the CAM Agreement. Claims of
fraudulent inducement to enter an agreement are arbitrable. Plaintiffs do not argue
that they were unable to read the CAM Agreement, or that they were prevented from
doing so; rather, Plaintiffs state they understood that the CAM Agreement was a
formality, and would only be used if Plaintiffs’ check for the vehicle did not clear;
Plaintiffs state they signed the CAM Agreement. In other words, Plaintiffs do not argue
that they did not know they were entering the CAM agreement, that the arbitration
provision was hidden from them, or that any limitations prevented them from learning
34
the contents of the agreement.
Moving party asserts it is a third party beneficiary of the CAM Agreement
pursuant to the contract’s terms. The CAM Agreement specifically states that it is
intended to apply to any claim or dispute arising from or relating to Plaintiffs’ credit
application, purchase or condition of the vehicle, the contract, or any resulting
transactions or relationships, specifically including those with third-party non-signatories.
(See Decls. of D. and M. Adrian, Exh. C, p. 4, §3.) Each of Plaintiffs’ claims relates to the
purchase of the vehicle.
Plaintiffs admit they knowingly entered into the CAM Agreement; there is no
allegation of fraud in the inducement of the contract. The CAM Agreement contains
an arbitration provision that clearly states it extends to third parties where the claim
arises out of or relates to Plaintiffs’ purchase of the vehicle. The allegations against
Defendant Keylex arise from Plaintiffs’ purchase of the vehicle. Accordingly, Defendant
Keylex’s petition to compel arbitration is granted, and the instant action stayed
pending the conclusion of the arbitration proceedings.
Pursuant to California Rules of Court, rule 3.1312, 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: A.M. Simpson on 10/02/17
(Judge’s initials) (Date)