Tentative Ruling for Tuesday, February 13, 2024, for Department 2, Judge Edwards presiding

Brown v DVA Renal Healthcare, Holt 23CU0401

Defendants demurrer to the eleventh cause of action for defamation in the FAC is overruled. The plaintiff alleged that defendants falsely stated plaintiff: 1) violated company policy 2) engaged in misconduct 3) had poor attendance 4) did not complete her assigned work 5) was incompetent 6) failed to meet the requirements of her job description 7) deserved to be terminated. On demurrer, these facts must be accepted as true. (Kamen v Lindly (2001) 94 Cal.App.4th 197, 201.)

Defendants argue that there can be no defamation because the statements expressed an opinion about plaintiff’s job performance, and was not a statement of fact. The first amended complaint alleged at ¶ 91 that the defamatory statements were understood as assertions of fact, not opinion. Case law holds that a statement that an employee is incompetent implies a knowledge of facts which leads to this conclusion, that such facts are susceptible of being proven true or false, so the statement implying the employee is disqualified for the employee’s profession is defamatory. It is an assertion of a false objective fact. (Gallant v City of Caron (2005) 128 Cal.App.4th 705, 709, overruled in part on other grounds in Reid v Google Inc (2010) 50 Cal.4th 512.)

Defendant contends as a matter of law, employee evaluations are not defamatory. (Gould v Maryland Sound Industries (1995) 31 Cal.App.4th 1137, 1154. )This case is distinguishable. Gould was accused by his supervisor as having a “poor performance.” The case itself notes that unless lack of honesty, integrity or competence is expressed, the statement is not defamatory. Here, the complaint alleged statements accusing plaintiff of incompetence and misconduct. (FAC ¶ 85.) Statements accusing an employee of incompetence and misconduct may be the basis of a claim of defamation. (Civil Code § 46 (c); Jensen v Hewlett-Packard (1993 14 Cal. App.4th 958, 965.)

Defendant argued that on the face of the 11th cause of action, the statements allegedly made by defendants, are protected by a common interest privilege to discuss plaintiff’s job performance without malice. (Civil Code §47 ( c); Cuenca v Safeway San Francisco Em Fed Credit Union (1986) 180 Cal.App.3d 985, 995 [communications relating to the conduct of an employee fall within the qualified privilege for communications to interested persons].) Plaintiff alleged at ¶¶ 93, 94 and 98 that the statements were made by defendants who lacked reasonable grounds for believing them true. It was alleged defendants failed to investigate, failed to verify the facts and acted in reckless disregard of plaintiff’s rights. Case law holds that malice includes when a statement was known to be false when made, or was made by a defendant who lacked reasonable grounds to believe the statement was true. (Taus v Loftus (2007) 40 Cal.4th 683, 721.)

Defendant argued in reply points and authorities that actual malice is needed to defeat the common interest privilege. (Tschirky v Superior Court (1981) 124 Cal.App.3d 534, 538-39.) Defendant contends that the allegations made by plaintiff at ¶93 and ¶98 that the statements were made without a reasonable investigation into the falsity of the statements is not “actual malice.”’ Defendant contends that mere failure to investigate the truth of the statement, even when a reasonably prudent person would have done so, does not demonstrate actual malice. (Christian Research Institute v Alnor (2007) 148 Cal App 4th 71, 90.)

Paragraph 93 alleged defendants not only failed to investigate thoroughly and verify the facts of the defamatory statements before making them, but purposely avoided the truth, made a deliberate decision not to acquire knowledge of facts that might confirm the probable falsity of the charges, knew the statements were false and made the statements out of ill feelings towards plaintiff and the statements were made in an exaggerated, overdrawn or colored to the detriment of plaintiff, with the intent to injure plaintiff. All of these allegations support a claim of actual malice. (Christian, supra at 90 [To support a finding of actual malice, the failure to investigate must fairly be characterized as ‘ “the purposeful avoidance of the truth” ’ or the ‘ “product of a deliberate decision not to acquire knowledge of facts that might confirm the probable falsity of [the subject] charges]; Khawar v Globe Internat (1998) 19 Cal.4th 254, 276 [Although failure to investigate will not alone support a finding of actual malice, … the purposeful avoidance of the truth is in a different category; Hicks v Richard (2019) 39 Cal.App.5th 1167, 1179 [the tenor of a statement may be evidence of malice and the manner of a statement may be evidence of malice if the facts the defendant believed to be true were exaggerated, overdrawn, or colored to plaintiff's detriment].)

The FAC herein alleged that the negative statements about plaintiff’s job performance were false and were published recklessly, without adequate investigation for the purpose of harassing and injuring plaintiff. (FAC ¶¶94, 97 [false statements were also made to potential employers of plaintiff] 98].) On demurrer these allegations must be accepted as true. The court does not find the allegations conclusory or uncertain, especially in light of the facts alleged in the entirety of the FAC that were incorporated by reference into the eleventh cause of action. Plaintiff alleged retaliatory conduct on the part of plaintiff’s supervisor in response to plaintiff’s complaint to management about improper alternation of her time sheet, which plaintiff reasonably believed to be in violation of the Labor Code. (FAC ¶¶ 10, 11, 13, 14, 15, 16.) Facts to support ill will and intent to injure plaintiff were adequately alleged.

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Todd v West Hills Community College District, Picchi 21C-0309

Defendants motion for summary judgment, or alternatively summary adjudication is granted.

Objections to evidence presented by plaintiff

Defendants’ objections to the declarations of students that recount incidents that made the students feel discriminated against or harassed due to their race are sustained for the reasons set forth by defendant (not relevant, hearsay, lacks foundation, inadmissible speculation, lack of personal knowledge, improper legal conclusion)

Defendants’ objections to the declaration of plaintiff are sustained for the reasons set forth in the objections.

Defendants’ objections to the plaintiff deposition citations are sustained for the reasons set forth in the objections.

Defendants’ motion to strike the entirety of plaintiff’s additional material facts is denied.

Summary of facts

On 11/24/21, Plaintiff filed a FAC for gender and race discrimination, work environment harassment under Government Code section 12940 (j) , retaliation under Government Code section 12940 ( h), and failure to prevent harassment and discrimination. The third cause of action is directed to defendant Athletic Director Picchi. (Defendant Picchi was hired as the Interim Athletics Director in November of 2019. (UMF 10. Plaintiff contends this promotion was December 2019, or January 2020 Pl Facts## 62, 73.) Picchi (female) was interviewed and hired as the Athletic Director in spring of 2020. (Decl Picchi ¶2.) The other causes of action are directed to the employer, West Hills.

Plaintiff was hired on 8/1/2018, as an assistant basketball coach. Plaintiff (male) is African American. The head coach was Donnye Ross (male) also African American. In August of 2019, at the start of the 2019/2020 school year Coach Ross went out on medical leave due to a cancer diagnosis. (UMF 6) Plaintiff was interviewed and ultimately hired as the Interim Head Coach. (UMF 7) Defendant Picchi interviewed plaintiff for the position along with Athletic Director Hawken. (UMF 8) The head coach position pays twice as much as the assistant coach position. (UMF 4, 5.) The head coach also teaches a class, which pays a monthly stipend of $2000 according to plaintiff. (Pl Fact # 98.)

Coach Ross was cleared to return from his medical leave in January of 2020. (UMF 11) West Hills believed it was legally obligated to return Coach Ross to his former position and pay. (UMF 12 [plaintiff disputes this fact with inadmissible hearsay by a person who was not employed when Ross returned].) When Coach Ross returned, defendants decided that Ross and plaintiff would be co-head coaches until the end of the 2019/202 school year. Coach Ross was restored the teaching position that accompanied the head coach position. (UMF 13 [plaintiff disputes this fact with inadmissible hearsay by a person who was not employed when Ross returned ].) In January of 2020, Coach Ross and plaintiff were involved in an incident wherein Ross reacted angrily when a student allegedly told Ross that Ross was not his coach. (Plaintiff disputed UMF 41 but confirmed the existence of a heated incident which required plaintiff to calm Ross down.) Plaintiff objected to his class being taken from him. After the season ended in March 2020, plaintiff learned he would be returning to his assistant coach position. Plaintiff resigned in March of 2020. (UMF 14; Decl. Pl ¶28) When Coach Ross passed away, West Hills hired another African American male coach for the men’s basketball team. (UMF 16)

Under appropriate circumstances a resignation may be treated as a termination. (Turner v Anheuser-Busch Inc (1994) 7 Cal.4th 1238, 1244-48 [the standard by which a constructive discharge is determined is an objective one--the question is “whether a reasonable person faced with the allegedly intolerable employer actions or conditions of employment would have no reasonable alternative except to quit].) Plaintiff’s declaration contends that before his interview for interim head coach, he was told by the athletic director then in charge (Hawken, also an African American male) that they wanted Coach Ross to return healthy, but did not want to give him the “reigns” and that plaintiff could expect remaining the co-head coach into the future. He was also told by Hawken that plaintiff would be evaluated in March or April of 2020 to determine if he would remain as an “Associate Head Coach,” which was dependent upon the academic performance of his team. (Pl Decl. ¶6 Pl fact #20)

Gender/ race discrimination and retaliation directed to West Hills

Plaintiff has sued his employer for gender and race discrimination and retaliation. On summary judgment, discrimination and retaliation claims are analyzed under the McDonnell Douglas burden-shifting framework. (McDonnel Douglas Corp v Green (1973) 411 U.S. 792, 802; Lawson v PPG Architectural Finishes Inc (2022) 12 Cal.5th 703 excepts whistleblower retaliation under Labor Code 1102.6 from the three part McDonnel Douglas test.) Plaintiff must first establish a prima face case of discrimination. A prima facie case requires plaintiff to be a member of a protected class, qualified for the position, suffered an adverse employment action under circumstances suggesting a discriminatory motive. (McDonnell, supra at 802.) Once a prima facie case has been demonstrated, then the employer must articulate a legitimate non-discriminatory/ non-retaliatory reason for the adverse employment decisions. Once a legitimate reason for the decision is proffered, the only way a plaintiff may overcome summary judgment is by introducing evidence that shows the reasons articulated by the employer are a pretext for intentional retaliation. (Harris v City of Santa Monica (2013) 56 Cal.4th 203, 232 [plaintiff must show discrimination or retaliation was a substantial motivating factor in the adverse employment decision].) Whether or not a plaintiff has met his prima facie burden under McDonnell Douglas and whether or not the defendant has rebutted the plaintiff’s prima facie showing are questions of law. (Caldwell v Paramount Unified School Dist (1995) 41 Cal.App.4th 189, 201.)

West Hills position on summary judgment is that plaintiff has failed to set forth facts of a prima facie case for gender and race discrimination and retaliation because plaintiff did not suffer an adverse employment action under circumstances suggesting a discriminatory motive. The court agrees with West Hills that plaintiff cannot tie Coach Ross’s return to employment after he was medically cleared to work to plaintiff’s gender or race. Coach Ross was also an African American male. (UMF 3.) When Coach Ross, passed away, another African American male was hired to coach the men’s basketball team. (UMF 16.)

West Hills decision to return Coach Ross to his position as Head Coach and to resume the class taught by the head coach was supported by a declaration from Athletic Director Picchi. (Plaintiff’s objections to the declaration based on lack of personal knowledge and foundation are overruled.) She stated that she always understood when Coach Ross was medically cleared to return to work, West Hills was obligated to return him to the same position, duties and salary he had before he left. When Coach Ross returned earlier than expected, it was decided to keep both coaches on as co-head coaches with the same salary to close out the 2019/ 2020 year but after that, plaintiff would return to his assistant coach position with the lesser salary. The class taught by the head coach the spring semester focuses on the next year’s team. Since Coach Ross was taking back his head coach position for the next year, he was assigned to teach the spring course. There has never been a time when West Hills had co-head coaches and paid both at the higher salary until Coach Ross came back earlier than expected from medical leave. (Decl Picchi ¶ 6.)

The decision by West Hills to return Coach Ross to his position, class and salary and to have Coach Todd return to his position as Assistant Coach was discussed in the declaration of Director of Human Resources Cazares. (Plaintiff’s objections to the declaration based on lack of personal knowledge and foundation are overruled.) Cazares job includes overseeing complaints of harassment, discrimination and retaliation. Her understanding of the law was that West Hills was required to allow Coach Ross to come back to his position as Head Coach after being medically cleared to return. (Decl ¶4) Because Coach Ross returned mid-season, the decision was to continue the salary as Head Coach to both Coach Ross and Coach Todd, and to allow coach Ross to transition to Head Coach. (Decl ¶5.) Cazares contends plaintiff never made a complaint of race or gender discrimination to Human Resources. (Decl ¶6) Plaintiff contends he did complain to Athletic Director Picchi of age and race discrimination after resigning his employment. (Pl Facts 107.)

The undisputed facts suggest that plaintiff chose to resign his position as assistant coach, due the tension between himself and Coach Ross, raising the question if there was a constructive termination to support an adverse action supporting a discrimination claim. (Turner v Anheuser-Busch Inc (1994) 7 Cal.4th 1238, 1244-48 [whether working conditions are so intolerable or aggravated at the time of the employee’s resignation is viewed as an objective reasonable person standard]; Colores v Board of Trustees of California (2003) 105 Cal.App.4th 1293, 1318.) .)

Setting that issue aside, the court agrees with West Hills that plaintiff never suffered an adverse employment action under circumstances suggesting a discriminatory motive. Case law has held that when an employee returns after medical leave, an employer is required to provide a reasonable accommodation unless the employer demonstrates such an accommodation would produce an undue hardship. (Sanchez v Swissport, Inc (2013) 213 Cal.App.4th 1331, 1338.) Holding a job open may be all that is required when the return is to an existing position in the foreseeable future. (Jensen v Wells Fargo Bank (2000) 85 Cal.App.4th 245, 263.) The decision not to allow the employee to return, places the burden on the employer to establish that the returning employee is incapable of performing the employee’s essential duties with reasonable accommodation. (Bagatti v Department of Rehabilitation (2002) 97 Cal.App.4th 344, 359-363.) The undisputed facts support a finding that West Hills belief the school was required to allow an employee to return to the same position, duties and salary before the medical leave was taken was reasonable and not made under circumstances suggesting a discriminatory motive.

Even if plaintiff could raise a triable issue of fact that he suffered an adverse employment action, Plaintiff has not established pretext for discriminatory intent. West Hills has a sound legal reason for allowing Coach Ross to return to his former position, salary and duties after he was medically cleared to return to work. Plaintiff has failed produce any evidence to the contrary to prove pretext. Pretext means a dishonest explanation, a “a lie rather than an oddity or error.” (O’Regan v Arbitration Forums, Inc. (7th Cir 2010) 246 Fed 3d 975, 983; Reeves v Sanderson Plumbing Products Inc (2000) 530 US 133, 142.) Plaintiff has failed to raise a triable issue of fact that West Hills was untruthful in its position that it felt legally compelled to return Coach Ross to his head coach position and there was no precedent or obligation for West Hills to retain plaintiff as a co-Head Coach for the next season. Even plaintiff recognized that he was never guaranteed continued employment as an “Associate Head Coach.” (Decl Pl ¶6.)

Failure to prevent harassment and discrimination directed to West Hills

Plaintiff has alleged multiple occasions wherein he contends he was subjected to race and gender discrimination by coworkers, which will be discussed below in the harassment cause of action, but as noted by West Hills, an employee’s subjective belief of employment discrimination does not create an issue of fact and speculation on the part of the employee is insufficient to meet a plaintiff’s burden of proof. (Martin v Lockheed Missiles & Space Co (1994) 29 Cal.App.4th 1718, 1734-1735.)

Summary adjudication of the fifth cause of action for failure to prevent harassment and discrimination follows due to the finding that plaintiff has failed to present a prima facie case of discrimination. The “failure to prevent” claim is derivative of the discrimination claim and if the former fails, so does the latter. (Dickson v Burke Williams, Inc (2015) 234 Cal.App.4th 1307, 1314 [[T]here's no logic that says an employee who has not been discriminated against can sue an employer for not preventing discrimination that didn't happen].)

Harassment based on gender and race directed to Picchi

Plaintiff has sued Athletic Director Picchi for harassment based on gender and race. Summary adjudication is sought by Picchi on the basis that the acts alleged were not severe or pervasive. As noted by defendant, to prevail on a claim of harassment, plaintiff must prove: 1) he was a member of a protected class; 2) he was subject to unwelcome harassment based upon a protected status; 3) the harassment unreasonably interfered with his work performance by creating an intimidating, hostile or offensive work environment. (Thompson v City of Monrovia (2010) 186 Cal App.4th 860, 876.) The following are the acts complained about by plaintiff.

1. A Caucasian professor at West Hills would film his students playing basketball allegedly due to a disagreement that the students were staying in the gym to play basketball rather than getting to his class on time. Plaintiff complained of a racial component of the players feeling harassed to the Interim Athletic Director Preston, who spoke to the professor and the filming stopped. Plaintiff brought the issue to Picchi’s attention who did not respond in a way he thought took his complaint seriously. (UMF 21, 22, 23 [undisputed plaintiff submitted a written complaint about Ragsdale that did not mention anything about race], 24 [Ragsdale apologized and the filming stopped], 25 [no discipline to plaintiff which plaintiff disputed with speculative evidence].)

2. He believed Picchi looked down on him during the interview for Interim Head Coach and Picchi asked him about his qualifications for the job he was being interviewed for. (UMF 7, 8 9 [Picchi recommended plaintiff be hired for interim head coach [plaintiff disputes with speculation]

3. He suspected Picchi was the reason a story about his team winning their first game was not written by an assistant to the woman’s basketball team, he suspected Picchi as the person who prevented his team from getting their pictures taken, she was the person behind having to ask his players (one time) to return overpaid meal expense per diem payments. (UMF 38, 39 [plaintiff never learned from photographer why he did not show up for the originally scheduled shoot] 40 [Picchi had nothing to do with scheduling the team photo [plaintiff disputes with speculation]) (Per diem expense UMF 43, 44, 45 [disputed based on speculation], 46 [Picchi had nothing to do with cutting checks for men’s basketball]

4. Picchi delayed getting out the grades for his students in order to sabotage him. (UMF 32, 33 [no students who complained about late grades were disqualified from playing on the team due to their grades not being timely updated].)

5. There was a charter bus scheduled for the wrong date in December of 2019, which plaintiff was able to reschedule in time for the needed transportation, but plaintiff blamed mix up on Picchi due to her friendship with the athletic secretary, who was involved in scheduling. When plaintiff questioned the secretary how this happened, Picchi “verbally attacked” plaintiff for blaming the secretary for what happened. (UMF 34, 35 [plaintiff disputes with “protocol” not specific facts] 36 [Picchi has nothing to do with scheduling charter buses].)

6. Ross had gone to a tournament in November of 2019 and told the other coaches and players he was the coach, not plaintiff, and Ross would have had better food. Picchi did not take any action about this. (UMF 29, 30, 31)

7. After the incident with Coach Ross in January of 2020, plaintiff reported to Picchi that he felt threatened by Ross. At a meeting to discuss the situation, plaintiff felt Picchi had reprimanded him by telling him he should be more empathetic of how Ross felt. Plaintiff expressed at the meeting he was being retaliated against for his past complaints to Preston. Ross was not disciplined or reprimanded for his “aggressive behavior towards plaintiff.” (UMF 41, 42 [plaintiff disputes both facts without citing to contrary evidence]

As noted by defendant, Picchi was part of the interview panel that hired plaintiff. The professor ended up apologizing for the videotaping, and the videotaping of his players stopped. No player lost his position on his team due to their grades. The athletic secretary did not have any involvement in the charter bus incident. Plaintiff was not disciplined for the Ross incident. The concerns raised by plaintiff are mostly based on speculation. There is no basis to believe the acts were taken by Picchi due to plaintiff’s race or gender. The acts were not severe or aggravated to rise to the level of harassment based on race or gender because they did not interfere with plaintiff’s work performance. (Vasquez v County of Los Angeles (9th Cir. 2003) 349 Fed. 3d 634, 642.)

Punitive damage claim

Given the failure of the acts to rise to the level of harassment, plaintiff’s claim for punitive damages fails. An award of punitive damages may not be based on mere speculation, but depends on a definite showing of willingness to vex, harass, annoy or injure consistent with a wrongful personal intention to injure. (McAfee v Ricker (1961) 195 Cal.App.2d 630, 634.) No facts to support a malice or oppression determination were presented by plaintiff.

Defendants motion for summary judgment, or alternatively summary adjudication is granted.

There are no other tentative rulings. Consistent with California Rule of Court, rule 3.1308 (a)(2), no notice of intent to appear is required. If the non-prevailing party does not appear for hearing, the tentative ruling will become the order of the court. The prevailing party shall prepare an order for the court’s signature.

Tentative Ruling for Thursday, February 8, 2024, for Department 2, Judge Edwards presiding

Ogundare v Francies Jr et. al. 23CU0365

Reply was due 1/19/24 and was filed late on January 24, 2024. Under California Rule of Court, rule 3.1300 (d) the court declines to consider the reply points and authorities. The demurrer is overruled. Defendants demurred to each cause of action in the complaint for failure to state facts sufficient to state a cause of action. Defendants commenced the pleading with four pages of “facts” alleged outside the complaint. On demurrer, a court must accept as true all material facts properly pleaded. (Blatty v New York Times Co (1986) 42 Cal.3d 1033, 1040.) Whether plaintiff will be able to prove the pleaded facts is irrelevant to ruling on the demurrer. (Stevens v Superior Court (1986) 180 Cal.App.3d 605, 609-10.) Accordingly, the court has disregarded all the “facts” asserted by defendants.

The points and authorities in support of the demurrer consisted of four paragraphs that merely recite that the terms of an alleged oral contract must set forth the essential contract terms and must allege the elements of a breach of contract, which include an offer, acceptance, terms of the offer, breach of such terms and damages that flowed from the breach. Defendants made no effort to cite to the complaint and its deficiencies as to its alleged failure to set forth the essential terms of the alleged oral contract, or any missing element of a cause of action for breach of contract. The court does not feel inclined to make the argument for defendants why the complaint fails to set forth facts sufficient to state a cause of action. With reference to the fraud causes of action, defendants simply state that fraud is to be pleaded with specificity. Again, defendants make no effort to state in what manner the complaint fails to state facts sufficient to state a cause of action for intentional fraud directed to defendants. The court is not inclined to make this argument for defendants. The demurrer is overruled.

Case No. 23CU 0368

Tulare Lake Basin Water Storage District v. Sandridge Partners LP

Motion to Quash Notice to Consumer and Deposition Subpoena of Pacific Boring, Inc.

Motion to Quash Notice to Consumer and Deposition Subpoena of Laurel Ag & Water Purchasing LLC

February 5, 2024 at 10:30 a.m. in D-8, J. Chrissakis

The motions are granted in part. The court orders the deposition subpoenas be limited to those documents relating to the installation of the irrigation pipe under Lateral A by Laurel Ag & Water Purchasing, LLC and Pacific Boring, Inc., as stated more specifically below. A protective order will not issue at this time.

As an initial matter, the court finds that Sandridge does not adequately establish its objections based on trade secrets or privacy, due to the failure to sufficiently identify the alleged trade secrets or proprietary information to be protected. (Code Civ. Proc. §2031.240 [requiring sufficient factual information to evaluate the claim that the information sought is privileged]; SCC Acquisitions, Inc. v. Superior Court (2015) 243 Cal.App.4th 741, 755 [requiring application of a balancing test between relevance and the corporation’s right to privacy].)

However, the motions must be granted, at least in part, for lack of relevance. The first and most basic limitation on the scope of discovery is that the information sought must be relevant to the “subject matter” of the pending action or to the determination of a motion in that action. (Code Civ. Proc. §2017.010.) Information is regarded relevant to the subject matter if it might reasonably assist a party in evaluating a case, preparing for trial, or facilitating settlement. Additionally, the information sought must be “not privileged” and either itself admissible or “reasonably calculated to lead to the discovery of admissible evidence.” (Ibid.; Evid. Code §350 [“No evidence is admissible except relevant evidence.”].)

Applying this standard here, the court finds that the deposition subpoenas seeking all documents relating to any work done for Sandridge in Kings, Kern, and Tulare counties during the last 5 years (i.e., since January 2019), are not sufficiently limited to be discoverable. The complaint in this action limits the allegations to work done on a specific section of Lateral A in Kings County. (Compl. ¶7.) While any documents relating to work completed on Lateral A in Kings County are certainly relevant or otherwise reasonably calculated to lead to the discovery of admissible evidence, the court does not find any basis for expanding the request to those documents relating to any and all projects for Sandridge conducted outside of Kings County. Indeed, Plaintiff appears to make no attempt to show that such documents will lead to evidence admissible in this action and instead cites the allegations set forth in the related actions in Kings and Kern counties to support its argument that the evidence sought is relevant here. (Opp. at pp. 2, 3.) The court similarly rejects Plaintiff’s argument that the causes of action for quiet title, private nuisance, and public nuisance, as well as the related request for punitive damages, render the entirety of the requested documents relevant or reasonably calculated to lead to the discovery of admissible evidence. (Opp. at p. 3.) Again, the allegations in the complaint are limited to specific portions of Lateral A, in Kings County, and the causes of action relate only to the pipeline described in the Complaint. (¶¶7, 10-13, 37, 41, 46.) The Complaint does not appear to include allegations—express or implied—that projects relating to work by Pacific Boring and Laurel Ag in Kern and Tulare counties are reasonably calculated to lead to admissible evidence about the boring and placement of the pipeline at issue in this action.

Based on the foregoing, the motion is granted in part, and the deposition subpoenas are limited to documents with information about work performed by Laurel Ag & Water Purchasing, LLC and Pacific Boring, Inc. for Sandridge Partners and on, under, or over land owned by Sandridge Partners in Kings County relating to the installation of irrigation piping under Lateral A. (Code Civ. Proc. §1987.1, subd. (a) [the court may quash the subpoena entirely or enter an order modifying it].) The court declines to enter a protective order at this time, since there is a foreseeable possibility that additional discovery requests and corresponding motions may be brought asserting valid bases for limiting or compelling discovery from Defendant and a protective order precluding such would be premature.

Case No. 21C 0284 (consolidated with 22C 0042)

Sabino Marquez v. Danell Custom Harvesting LLC

Juan Antonio Carranza De La Paz v. Danell Custom Harvesting LLC

Plaintiffs’ Motion for Class Certification

February 1, 2024 at 8:15 a.m. in D-2, J. Edwards

The motion to certify the class of all current and former non-exempt employees of Danell in California at any time from September 9, 2017 through the date of the order is granted. The subclasses for rounding, daily double time, 7th day overtime, first meal period, second meal period, rest period, late final wages, and facially deficient wage statement are also certified, together with the derivative claims.

Defendants’ objections to Plaintiffs’ evidence presented in support—including the declarations, deposition excerpts, and employee handbook excerpts—are overruled. The supplemental compendium of evidence cures the objections related to translated declarations and electronic signatures. (Evid. Code §752; Cal. Rules of Cour Rule 2.257.) The declarations are otherwise based on the employee’s personal knowledge of the working conditions while they were employed by Danell and, together with the excerpt from the relevant employee handbooks and expert analysis of the pay records and wage, are adequate to support a finding that common issues of law and fact predominate over issues requiring separate adjudication, as addressed more specifically below.

The objections to the expert declaration are also overruled, since Danell’s expert does not state that he reviewed the same information reviewed by Plaintiffs’ expert and thus is unable to refute the validity of Plaintiffs’ expert’s conclusions. (Def. Exh. 1, ¶8.) Moreover, the Declaration is not insufficient under Duran, since the Trial Plan submitted by Plaintiffs addresses the use of Mr. Anello’s expert analysis at trial. (Duran v. U.S. Bank Nat’l Ass’n (2014) 59 Cal.4th 1, 33.) The court recognizes that Defendant did not have the benefit of reviewing Plaintiffs’ Trial Plan in drafting its Opposition, but Defendant seems to acknowledge that trial plans may be presented even after certification. (Opp. at 4.) Because the Trial Plan does not appear to restrict Danell’s right to present evidence against Mr. Anello’s expert analysis, the court reiterates that the expert analysis does not run afoul of the protections set forth in Duran.

Plaintiffs assert that the proposed class would consist of approximately 506 non-exempt employees employed from September 9, 2017 to the present. The court finds that the class is sufficiently numerous and ascertainable. As to common questions of law and fact, the court looks to whether the theory of recovery advanced by the plaintiffs is likely to prove amendable to class treatment. (Brinker Rest. Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1021.) Plaintiff asserts that the cause is ideally suited for class certification because Plaintiffs’ theories of liability are premised on Danell’s wage and hour policies and procedures that were applied to all class members and thus present common questions of law and fact which predominate over any individualized inquiries. Plaintiffs proposed nine subclasses due to defendant’s alleged violations, which will be addressed individually as follows:

1. Rounding Subclass: All persons employed by Defendant as a non-exempt employee in California during the class period and whose time was rounded

California law permits an employer to use a rounding policy for compensating employee time provided that “the employer’s rounding policy does not consistently result in a failure to pay employees for time worked.” (See’s Candy Shops, Inc. v. Superior Court (2012) 210 Cal.App.4th 889, 901 [citation omitted].) Plaintiffs presented evidence that Danell maintained a policy of rounding employees’ time to the nearest quarter hour, and Defendant does not appear to dispute its use of rounding during at least part of the class period. (Exh. 14.) Plaintiffs further presented an expert declaration to demonstrate that 26.6% of all shifts had “lost” time, meaning that class members were paid for less time than they actually worked, resulting in class members being undercompensated a total of 1,522.1 hours during the class period, which would be unlawful. (Exh. 3 ¶¶24, 26.) Other than asserting that the expert declaration is unreliable to support certification, Defendant does not appear to address whether there is a common question of law and fact with respect to rounding. Moreover, Defendant’s assertion that there are “separate policies and pay practices for the shop employees versus the harvest employees versus the field agricultural employees”—even if supported by Defendant’s declarations present in opposition—does not demonstrate that the rounding policy did not apply to all employees during the period it was in effect. (Def. Exh. 2. ¶¶29-30.) The court grants the motion to certify this subclass.

2. Daily Double Time Subclass: All persons employed by Defendant as a non-exempt truck driver, or similarly titled position, in California during the class period and who were not paid at double their regular rate of pay for time worked over 12 hours in a work day

Non-exempt employees must be compensated at double their regular rate of pay for time worked over 12 hours in a workday. (Cal. Code Regs., tit. 8, section 11090, subd. 3(A)(1)(b).) Plaintiff cites evidence that Danell admitted its impermissible payment to truck drivers pursuant to the agricultural work order, which, until 2022, did not require employees to be paid at double the employee’s regular rate of pay for all time worked over twelve in any one workday. (Exh. 14; Wal-Mart Stores Inc. v. Dukes (2011) 564 U.S. 338, 350.) Thus, evidence was presented that demonstrates that for at least a portion of the class period, Danell did not pay truck drivers double their regular rate of pay for time worked over 12 hours in a workday. Defendant does not present any evidence in dispute and thus only a legal dispute remains regarding whether this practice was lawful. Accordingly, the court grants the motion to certify this subclass.

3. 7th Day Overtime Subclass: All persons employed by Defendant as a non-exempt employee in California during the class period and who (i) were not paid at an overtime rate of pay for time worked during the first eight hours on the seventh consecutive day in a workweek, and/or (ii) were not paid at a double time rate of pay for time worked over eight hours on the seventh consecutive day of the workweek

Plaintiff again presents evidence, in the form of its expert declaration, to demonstrate that employees were not always paid at one and on-half times their regular rate of pay for the first eight hours worked on the seventh consecutive day of the workweek, and were not always paid double their regular rate of pay for time worked over eight hours on the seventh consecutive day of the week, in violation of the relevant Wage Orders applicable throughout the class period. (See Cal. Code Regs. tit. 8, section 11140 ¶3(A)(1); Exh. 3 ¶31, Table 9.) Defendant again does not present evidence to refute this conclusion and the objections to Plaintiffs’ expert declaration are addressed above. Further, because Defendant does not adequately demonstrate how the different categories of employees were somehow not uniformly subject to these practices, the court finds that the existence of different categories of employees does not defeat commonality within the proposed subclass. To the contrary, Plaintiffs appear to present declarations from employees from each purported category of employee, attesting to, among other violations, the overtime pay violations. (See, e.g., Exhs. 5, 7, 9, 10.) Accordingly, the court grants the motion to certify this subclass.

4. First Meal Period Subclass: All persons employed by Defendant as non-exempt employees in California during the class period and who worked one or more shifts over five hours;

5. Second Meal Period Subclass: All persons employed by Defendant as non-exempt employees in California during the class period and who worked one or more shifts over 10 hours;

6. Rest Period Subclass: All persons employed by Defendant as non-exempt employees in California during the class period and who worked one or more shifts over 3.5 hours

With respect to meal periods, an employer’s obligation is to relieve its employees of all duty, with the employee thereafter at liberty to use the meal period for whatever purpose he or she desires, but the employer need not ensure that no work is done. (Brinker, supra, 53 Cal.4th at 1017; Lubin v. Wackenhut Corp. (2016) 5 Cal.App.5th 926, 939.) As for rest breaks, employers are also required to authorize and permit all employees to take a net 10-minute rest break for every four hours of work, or major fraction thereof, which insofar as practicable shall be in the middle of each work period. (Cal. Code Regs. tit. 8, section 11140, subd. 12.)

Plaintiffs have presented various declarations from class members demonstrating Danell failed to provide class members rest and meal periods as required. (Exhs. 4-11, 13.) Plaintiffs’ expert declaration similarly demonstrates first meal period violations based on the lack of 61.9% of shifts having non-compliant meal periods recorded (or no meal period recorded) and a second meal period violations for 71.7% of all shifts over 10 hours. (Exh. 3 ¶14, Table 3; see also Exh. 15 [deposition excerpt for E. Danell].) Further evidence demonstrates rest period violations. (Exh. 14; Exh. 3 ¶20.) Defendant argues that Plaintiffs’ reliance on time and pay records “does not support certification,” especially since different classes of employees had different methods of timekeeping. Defendant cites Serrano v. Aerotek, Inc. (2018) 21 Cal.App.5th 773, 781 for the proposition that time records showing late and missed meal periods do not create a presumption of violations. However, as Plaintiffs point out, the California Supreme Court disapproved of Serrano and expressly held that “[i]f time records show noncompliant meal periods, then a rebuttable presumption of liability arises.” (Donahue v. AMN Services LLC (2021) 11 Cal.5th 58, 77-78.) As Defendant does not

present any other basis for the unreliability of the time and pay records and because there appears to be substantial evidence of violations among the proposed subclasses, the court grants the motion to certify these subclasses.

7. Late Final Wages Subclass: All persons employed by Defendant as non-exempt employees in California during the time period of September 9, 2018 through the date of the order granting class certification and who were not paid all final wages owed immediately upon seasonal discharge

Labor Code section 201 provides that if an employer discharges an employee, the wages earned and unpaid at the time of discharge are due and payable immediately. Plaintiffs present evidence that Danell maintained a policy that employees were subject to discharge at the end of the season were not paid their final wages at the time of discharge but were instead paid within two days of the termination. (Exh. 14, Deposition of D. Danell.) Plaintiffs’ further present their expert declaration to demonstrate that 62.4% of employees with a 30 day or more gap in employment were paid, on average, 8 days or more after the last date the employee worked. (Exh. 3, ¶32, Table 10.) Defendant’s opposition does not appear to address the late final wages subclass. Defendant does present an expert declaration to counter Plaintiffs’ expert’s analysis and which states, “Courts have indicated that the time between work stints in seasonal occupations does not indicate a layoff. Without [Plaintiffs’ expert’s] complete analysis, it is not clear how [Plaintiffs’ expert] determined the ‘final pay date’.” (Def. Exh. 1, ¶22.) However, Defendant’s expert does not purport to have reviewed any of the underlying data in order to contradict Plaintiffs’ expert’s conclusions and does not otherwise set forth any analysis or present evidence of timely final wages. Further, Defendant’s expert does not purport to contradict the admission of Danell that wage statements were not provided upon discharge as a matter of practice. (Exh. 14, Deposition of D. Danell.) Because on the evidence presented by Plaintiffs and because the alleged unlawful policy is a common question of law and fact for the class period, the court grants the motion to certify this subclass.

8. Facially Deficient Wage Statement Subclass: All persons employed by Defendant as non-exempt employees in California during the time period of September 9, 2020 through the date of the order granting class certification and who were provided wage statements that did not contain Defendant’s complete legal address

Pursuant to Labor Code §226(a), an employer must furnish an accurate itemized statement in writing showing the name and address of the legal entity that is the employer. The wage statements presents by the representative Plaintiffs do not include the street address of Danell. (Exhs. 28, 29; see also Exh. 14.) Based on the evidence presented and because Defendant does not appear to address this subclass in its opposition or present evidence or authority to rebut the evidence establishing the presumptive violation of section 226, the court grants the motion to certify this subclass.

9. Derivative claims: (a) Failure to pay all wages due to discharged and quitting employees; (b) failure to furnish accurate itemized wage statements; and (c) unfair business practices

Finally, Defendant does not appear to address the merits of the derivative claims. Because the court has determined that common issues predominate with respect to the claims for failure to pay all wages due upon separation, failure to furnish accurate wage statements, and unfair business practices, the derivative claims should also be certified.

Based on the foregoing, the motion for class certification is granted in all aspects. The court notes that an order certifying a class action is only tentative and may be modified at any time prior to trial if, based on discovery or other developments, the party opposing the class moves to decertify on the ground that the prerequisites for a class action do not in fact exist. (Cal. Practice Guide: Civil Procedure Before Trial ¶¶14:108, 14:109 [citing Vazquez v. Superior Court (Karp) (1971) 4 Cal.3d 800, 821; Walsh v. IKON Office Solutions, Inc. (2007) 148 Cal.App.4th 1440, 1444].)

Tentative Ruling for Friday, January 26, 2024, for Department 2, Judge Edwards presiding

Ogundare v Francies Jr et. al. 23CU0365

Reply was due 1/19/24 but was not filed. The demurrer is overruled. Defendants demurred to each cause of action in the complaint for failure to state facts sufficient to state a cause of action. Defendants commenced the pleading with four pages of “facts” alleged outside the complaint. On demurrer, a court must accept as true all material facts properly pleaded. (Blatty v New York Times Co (1986) 42 Cal.3d 1033, 1040.) Whether plaintiff will be able to prove the pleaded facts is irrelevant to ruling on the demurrer. (Stevens v Superior Court (1986) 180 Cal.App.3d 605, 609-10.) Accordingly, the court has disregarded all the “facts” asserted by defendants.

Case No. 23CU 0282

Brieann Collins v. Warmerdam Packing, LLC

Defendant’s Motion to Compel Arbitration and Stay the Case

January 23, 2024 at 8:15 a.m. in D-2, J. Edwards

The motion to compel arbitration is granted. Although the waiver of “representative” actions is invalid to the extent it would bar a PAGA action, the provision is severable and otherwise enforceable as to the waiver of class claims. The class claims must be dismissed and the matter ordered to arbitration, staying the instant action.

As an initial matter, the FAA applies based on the express provision that the Arbitration Agreement (“Agreement”) is “made pursuant to and shall be governed by and construed in accordance with the procedures set forth in the Federal Arbitration Act[.]” (Mayorquin Decl. Exh. C, ¶4(a).) Alternatively, the FAA applies due to Defendant’s involvement in interstate commerce. (Holland Decl. ¶¶4-5; Guiliano v. Inland Empire Personnel, Inc. (2007) 149 Cal.App.4th 1276, 1286-89.) Under the FAA, a written agreement to arbitrate disputes “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” (9 U.S.C. § 2; AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333, 339.) The court’s role under the FAA is limited, therefore, to determining (1) whether a valid agreement to arbitrate exists and, if so, (2) whether the agreement encompasses the dispute at issue. (Chiron Corp. v. Ortho Diagnostic Systs., Inc. (9th Cir. 2000) 207 F.3d 1126, 1130.)

In addressing the validity of the Agreement, the court rejects Plaintiff’s argument that the court may apply the discretionary grounds for denial under Code of Civil Procedure section 1281.2, since nothing in the Agreement suggests the parties intended that enforcement of the Agreement would be subject to section 1281.2, especially in light of the unequivocal provision that the Agreement would be “governed by and construed in accordance with” the FAA. (Warren-Guthrie v. Health Net (2000) 84 Cal.App.4th 804, 816 [“Agreement to apply California contractual arbitration law is expressly limited to that law which bears on how the arbitration shall be conducted, as distinguished from agreeing that the plan shall be governed by California law for all purposes, including the determination as [to] whether or not arbitration is required.”], disapproved of on other grounds by Cronus Investments, Inc. v. Concierge Services (2005) 35 Cal.4th 376, 393 n.8.) The court finds Best Interiors, Inc. v. Millie & Severson, Inc. (2008) 161 Cal.App.4th 1320, 1326 inapposite to the instant case. Best Interiors merely stated that “even if the FAA applies because the subcontract affects interstate commerce . . . the parties may agree that California law governs their agreement to arbitrate.” Here, however, the court has determined that the Agreement plainly demonstrates it would be “governed by” the FAA. Having reached this finding, the holding in Best Interiors does not require application of Section 1281.2 to determine the agreement’s enforceability. Assuming arguendo that Section 1281.2 would apply here, specifically subdivision (c)—which allows for the court to deny a petition to compel arbitration where there is a possibility of conflicting rulings on a common issue of law or fact—the court does not find that such circumstances exist here, even in light of the related PAGA action relating to the same alleged

violations. Plaintiff opted to file the actions separately and the granting of the instant motion will have the likely effect of staying the PAGA action during the pendency of the arbitration.

Plaintiff does not appear to raise any factual issues with respect to her execution of the Agreement in 2023 or in 2021, which are attached to the Declaration of Berlin Mayorquin, Human Resources Manager for Defendant, as Exhibits C and E, respectively, and appear to be identical agreements to one another. For purposes of the instant discussion, references to the Agreement are made to the operative Agreement signed in 2023 and attached as Exhibit C to the Mayorquin Declaration.

Plaintiff raises the defense of unconscionability. Plaintiff has the burden of proof and must show both procedural and substantive unconscionability. (Pinnacle Museum Tower Assn v. Pinnacle Mkt Dev (US) LLC (2012) 55 Cal.4th 223, 236, 247.) Both procedural unconscionability and substantive unconscionability must be shown, but “they need not be present in the same degree” and are evaluated on “a sliding scale.” (Armendariz v Found Health Psyhcare Services Inc (2000) 24 Cal.4th 83, 88 [“[T]he more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa.”].)

Here, as Defendant addresses in its Motion, the Agreement meets the standard for substantive conscionability: (1) neutral arbitrators (Agreement ¶6); (2) more than minimal discovery (Agreement ¶4(b)); (3) written award (Ibid.); (4) all remedies provided by California law may be awarded by arbitrator (Agreement ¶4(c)); and (5) employer is to pay the arbitrator’s fees and costs and plaintiff’s attorney fees if ordered by the arbitrator (Agreement ¶7.). (Armendariz, supra, 24 Cal.4th 83.)

With respect to procedural unconscionability, Plaintiff argues that the Agreement is a contract of adhesion because it was on a standardized form offered by the employer, who has superior bargaining power, and as a condition of employment. (Opp. at 9, 14-15.) Considering that even mandatory arbitration agreements do not, by themselves, render an agreement unenforceable, the court is unpersuaded that the Agreement supports a finding of a high level of procedural unconscionability. (See Giuliano v. Inland Empire Personnel, Inc. (2007) 149 Cal.App.4th 1276, 1292 [“[T]he compulsory nature of a predispute arbitration agreement does not render the agreement unenforceable on the grounds of coercion or lack of voluntariness.”]; Lagatree v. Luce Forward Hamilton & Scripps LLP (1999) 74 Cal.App.4th 1105, 1122-1123.) Additionally, Plaintiff cannot assert “surprise” as to the terms, since Plaintiff does not appear to dispute that she twice signed the identical arbitration agreement upon her employment in 2021 and 2023. (Mayorquin Decl. ¶¶6(e), 7, 9.)

In regard to whether the claims asserted are covered by the Agreement, the applicable provision in the Agreement broadly encompasses all claims arising out of or relating to Plaintiff’s employment with Defendant. (Agreement ¶1 [stating the employee and employer “agree to resolve all claims, disputes, or controversies arising out of or relating to Employee’s employment and/or termination

of employment (“Employment Claims”) exclusively by final and binding arbitration to the extent permitted by law”].) Because the Complaint here raises claims based on Defendant’s alleged failures to pay wages, overtime, meal and rest period premiums, and minimum wages, as well as other wage- and hour-related violations, the claims appear to fall squarely within the scope of the Agreement. (Compl. ¶¶24-41.)

With the respect to Paragraph 9 of the Agreement entitled “Agreement to Bilateral Arbitration,” the court finds that this provision includes an invalid PAGA waiver. The relevant language in the Agreement states: “The parties to the Agreement intend to arbitrate any disputes between them on an individual basis only. To the fullest extent permitted by law, the Parties agree that they shall not join or consolidate claims submitted for arbitration under the Agreement with those of any other persons, and that no form of class, collective, or representative action shall be maintained without the mutual consent of the Parties.” (Agreement ¶9 [emphasis added].)

This waiver of “representative” actions is invalid because it requires plaintiffs to waive their right to bring any “representative” (including PAGA) claim “in any forum,” arbitral or judicial. (Damarinis v. Heritage Bank of Commerce (Dec. 11, 2023, A167091) __ Cal.Rptr.3d __ [2023 WL 9113099 [relying on Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 383-384 and finding unenforceable a nearly identical waiver provision]; see also Securitas Sec. Servs. USA, Inc. v. Super. Ct. (2015) 234 Cal.App.4th 1109, 1121-22 (Securitas) [concluding that an agreement’s representative PAGA waiver violated public policy, notwithstanding the agreement’s opt-out provision].) California law is clear that “employers cannot compel employees to waive their right to enforce the state’s interests when the PAGA has empowered employees to do so.” (Z.B. NA v. Superior Court (2019) 8 Cal.5th 175, 197 [citing Iskanian, supra, 59 Cal.4th at 384] [emphasis added].)

Having determined the waiver of “representative” actions is invalid to the extent it purports to waive actions under the PAGA, the court must determine whether the provision is severable. “Whether a contract is entire or separable depends upon its language and subject matter, and this question is one of construction to be determined by the court according to the intention of the parties. . . . Thus, the rule relating to severability of partially illegal contracts is that a contract is severable if the court can, consistent with the intent of the parties, reasonably relate the illegal consideration on one side to some specified or determinable portion of the consideration on the other side.” (Securitas, supra, 234 Cal.App.4th at 1125-1126 [italics in original] [quoting Keene v. Harling (1964) 61 Cal.2d 318, 320-321].)

The severability provision of the Agreement states plainly that “[a]ny provision of this Agreement that is determined to be void or unenforceable shall not affect the validity of the remainder of the Agreement.” (Agreement ¶12.) The court finds this statement unambiguously reflects an intent to sever unenforceable aspects of the Agreement and leave the remainder intact. (Cf. Viking River Cruises, Inc. v. Moriana (2022) 596 U.S. 639, 687 [upholding a severability clause where if any “portion” of a waiver remained valid, it would be enforced in arbitration].) The court notes that

Plaintiff does not appear to address this severability provision anywhere in her opposing papers and instead cursorily asserts that the Agreement “contains severe procedural unconscionability and substantive unconscionability, neither of which can be severed to create a just Agreement.” (Opp. at 15.) Having found infra that the Agreement is not procedurally or substantively unconscionable and based on Plaintiff’s failure to otherwise address the severability provision at Paragraph 12, the court thus rejects Plaintiff’s assertion.

The court therefore concludes that while the portion of Paragraph 9 of the Agreement (i.e., the “Agreement to Bilateral Arbitration”) is not enforceable to the extent it would require a waiver of Plaintiff’s PAGA claims—which are not at issue in the instant action—it remains enforceable to prevent her pursuit of the class claims at issue here and to compel the matter be submitted to arbitration. Accordingly, the motion to compel arbitration is granted, the class claims are dismissed, and the matter is stayed pending arbitration.

Tentative Ruling for Tuesday, January 23, 2024, for Department 2, Judge Edwards presiding

Aguirre v J&K Restaurants dba McDonalds Case No 23CU 0227

Defendant’s motion for summary judgment, or alternatively summary adjudication is denied.

Defendant seeks summary judgment or alternatively summary adjudication of the wrongful death and survivors claims stemming from premises liability. Plaintiffs’ decedent was injured as a result of a slip and fall accident on June 13, 2021. Decedent initially filed a personal injury action shortly after the accident, but this case was dismissed after plaintiff’s 2023 death and this wrongful death/ survivor action was filed in its place. (Def UMF 13 [separate statement date of death listed as 5/5/23 however May 7, 2023 is the date of death in the death certificate].)

Defendant contends that it cannot be held liable to plaintiffs because the alleged dangerous condition of a just mopped floor was “open and obvious” and because decedent had “full and actual notice” of the danger. In terms of the wrongful death claim, defendant also argued that plaintiff’s injury in 2021 was not the proximate cause of her death. Defendant asks the court to take judicial notice of decedent’s death certificate which listed the cause of death as cardiopulmonary arrest and Alzheimer’s disease, late onset. The court agrees to take judicial notice of the death certificate, but not the truth of the facts set forth therein. (Herrera v Deutsche Bank National Trust (2011) 196 Cal.App.4th 1366, 1375.)

Defendant argues that the only question for the court is if defendant had a duty of care to decedent in light of the facts of the case. There is a video of the incident wherein an employee is seen mopping the floor starting near the restrooms and then moving closer to the entrance as decedent and her husband arrived. (Def UMF #3) It is disputed if the employee gave decedent a verbal warning as she walked around the employee to the restroom. (Def UMF 4) The employee moved around a “wet floor” sign as he mopped. The sign was near the entrance initially and then was moved to the middle of the area between the tables leading to the restrooms when decedent was in the restroom. (Def UMF 5, 7.) The employee left the area with the wheeled mop bucket and left the wet floor sign in the middle of the dining area. (Def UMF 8) Decedent left the restroom several minutes after she went in, took a few steps and then fell. (Def UMF 10.)

Defendant contends the fact situation falls within the line of cases holding that if a condition is so obvious a reasonable person can be expected to perceive it, the condition itself is a warning and defendant does not have a duty to the plaintiff to take any further action. (Danieley v Goldmine Ski Assoc (1990) 218 Cal App 3d 111, 121 [wife ran into tree while skiing; no duty to warn of tree because tree itself provided a warning of the implicit danger of a collision.) The court finds the Danieley case distinguishable. A skier knows not to collide with a tree, which is a naturally occurring danger. By contrast, the alleged dangerous condition was intentionally created by the defendant. This fact situation is addressed in case law that holds even if the danger may be open and obvious, the property owner may still have a duty to remedy, fix or correct an unsafe condition. (Osborn v Mission Ready Mix (1990) 224 Cal.App.3d 104, 119 [obviousness of a danger may negate any duty to warn, it does not necessarily negate a duty to remedy].) These cases further hold that it is a question for the jury whether the premises pose an obvious danger and what percentage of fault should be assigned to the injured person in not appreciating the risk.

(Beauchamp v. Los Gatos Golf Course (1969) 273 Cal.App.2d 20, 27-28, 34 [we cannot say that with appellant's previous unfamiliarity with the veranda, and

the absence of prior experience in walking with spikes upon it, there was an unequivocal acceptance of the risk; or that the danger of doing so was so well-known and apparent to her, that the "visible defect rule" was applicable. The jury may charge her with contributory negligence … but the question of her appreciation of the risk, or her imputed knowledge of it, is not so overwhelming as to properly permit a nonsuit. Initially, in view of the invitation to use the walkway, she was entitled to consider it reasonably safe ].)

Plaintiff relies on a case with analogous facts in arguing that a freshly mopped floor is not necessarily an obvious danger, so that the condition itself serves as a warning. (Williams v Carl Karcher Enter (1986) 182 Cal.App.3d 479.) In the Williams case, a store patron saw an employee mopping the ceramic tile floor when she arrived. The patron walked past that area and took a seat in a different area to eat. The employee and mop were gone when she proceeded past the area in order to exit, but the cone bearing the word caution was still there. The appellate court reversed a judgment for the store. The appellate court held that the jury instructions sought by plaintiff should have been given. The court noted that “…if a floor is slippery and constitutes a dangerous condition, precautionary measures may not necessarily shield the landowner from liability.” (Id. at 488.) By failing to properly instruct the jury, the plaintiff was deprived of her right to argue that not only was the warning cone inadequate to alert her to the dangerous condition, but the condition should not have been allowed to stand and that, “the floor should have been dried by hand, roped off, or cleaned before or after business hours.” (Id. at 490.)

In opposing summary judgment, plaintiff submitted the declaration of Alex Balian. Mr. Balian’s declaration set forth his qualifications as an expert in safety and operations of retail stores. Mr. Balian opined that it is industry standard to limit mopping during business hours to spills. If mopping of a large area needs to take place, it should occur before or after business hours, or at least the area should be blocked off to prevent traversing the mopped area. Defendant objected to the declaration on the grounds it is improper to rely on expert testimony on the issue of the existence of a duty, which is a question of law for the court. (Obj #7 replying on Thompson v Sacramento City Unified Sch Dist (2003) 107 Cal.App.4th 1352, 1373 [no duty to prevent attack by fellow student who had lured the student beyond the immediate scrutiny of supervisory personnel] and Caloroso v Hathaway (2004) 122 Cal.App.4th 922, 928 [expert not needed to determine if a sidewalk crack was so minor and minimally irregular in shape as not to constitute a dangerous condition].)

The objection is overruled. The duty of care of a business owner stems from a duty to exercise reasonable care in keeping the premises reasonably safe. (Ortega v Kmart Corp (2001) 26 Cal.4th 1200, 1204.) Depending upon the facts of the case, a duty of care may be extended from a duty to warn to a duty to remedy an open and arguably obvious dangerous condition. Plaintiff has raised triable issues of fact whether defendant was negligent in 1) mopping a substantial area of the restaurant during business hours, not limited to cleaning up a spill; 2) not correcting the soapy wet floor by going over it with a dry mop; 3) not placing multiple wet floor signs in the area, especially closer to the restrooms, rather than leave one sign in the middle of the mopped area, which faced the tables, not the path of travel; 4) not blocking off entirely access to the restrooms until the floor was no longer wet. (Pl additional facts ##18 [floor not dirty], 19

[potentially up to 12 signs could be used to warn of danger], 28 [location of sign] 29 [one warning sign] 39 [use of dry mop after accident 69 [industry standard to mop large areas before or after business is open, 70 [block off area if must mop during business hours] 72 extant moisture may not be visible].)

Defendant’s relevance, improper legal opinion, speculative, conclusory objections to the declaration of Balian are overruled. The court does not find Mr Balian’s opinion as to standard of care when mopping a store to be speculative or conjectural. Nor is the opinion presented in order to establish duty, but to raise a question of fact as to the standard in the industry in undertaking mopping of a large section of a restaurant during business hours.

In terms of whether decedent’s 2021 slip and fall injury was the proximate cause of decedent’s 2023 death, plaintiff produced the declaration of Dr. Yoshimura who examined decedent in October of 2022. The doctor found that due to the fall, decedent suffered a traumatic brain injury. The doctor found to a medical certainty that decedent suffered head trauma, prolonged confusion and post traumatic amnesia. The doctor found that decedent’s functional status had worsened dramatically due to the fall. Before the fall, decedent was a productive wife, mother and grandmother and competently ran her household. After her fall, decedent became dependent and virtually home-bound. Dr. Yoshimura opined to a medical certainty that the injury from decedent’s fall substantially contributed to her death and that decedent would have lived past 5/5/23 (corrected to 5/7/23 in errata) had the fall not occurred.

Defendant objects to this declaration as based on speculation and conjecture. (Obj #1) Defendant relies on a case wherein the expert speculated as to the source of asbestos exposure to the plaintiff. (McGonnell v Kaiser Gypsum Co (2002) 98 Cal.App.4th 1098.) Dr Yoshimura, by contrast, discussed in detail the medical records he examined in addition to his own examination of plaintiff on October 20. 2022. The doctor noted before the fall, decedent did not need a walker or cane and could walk several blocks with her husband. After the fall, decedent could not cook, do chores, she lost 20 pounds and needed assistance with activities of daily living and no longer went on walks or interacted with her friends or children/ grandchildren. Decedent experienced daily pounding headaches and new onset urinary and fecal incontinence with increased apathy and depression. There were many physical and neurological reasons supporting the doctor’s medical opinion as to wrongful death causation. The court does not find Dr. Yoshimura’s declaration speculative or conclusory.

Causation is a question of reasonable probability and where there may be concurrent causes of death, a plaintiff need only prove that defendant’s negligence was a substantial factor in producing the death. (Espinosa v Little Co. of Mary Hospital (1995) 31 Cal App. 4th 1304, 1317-1318; Ng v Hudson (1977) 75 Cal.App.3d 250, 255 [a tortfeasor may be held liable in an action for damages where the effect of his negligence is to aggravate a preexisting condition or disease…. A plaintiff may recover to the full extent that his condition has worsened as a result of defendant's tortious act].) Plaintiff has raised triable issues of fact supporting causation. (PL Additional Fact ## 42[no prior slip and fall injuries] 46 [a dementia diagnosis before the incident but symptoms were only forgetting a few words] 49 [no prior complaints of headaches, dizziness 56 [after incident daily headaches, weakness in walking, unbalanced]

In conclusion, plaintiff has raised a triable issue of fact that defendant was negligent in deciding to mop the entire area in front of the restrooms during business hours and/or in failing to dry mop the area to remedy the dangerous condition of a wet floor. Plaintiff has also raised a triable issue of fact that plaintiff’s 6/13/21 injury resulted in a traumatic brain injury and diminished mobility which resulted in shortening plaintiff’s life to a medical probability. Defendant’s motion for summary judgment is denied.

Tentative Ruling for Thursday, January 11, 2024, for Department 2, Judge Edwards presiding

City of Lemoore v Everest Reinsurance Company 23CU0259

The city’s objection to the declaration of Everest’s counsel asserting that no information has been received to suggest that RJ Filanc failed to perform its obligations under the contract is sustained on the basis of unsupported opinion, hearsay, secondary evidence and the fact that the demurrer is to be determined on the face of the pleadings. This court may not consider facts outside the pleadings. (Donabedian v Mercury Ins Co (2004) 116 Cal.App.4th 968, 994.)

The city’s request that the court take judicial notice of the cases related to the tank explosion in Lemoore on June 2, 2021 is denied. The court may take judicial notice of the filing of the litigation, but not the facts alleged in the litigation. (Sosinsky v Grant (1992) 6 Cal.App.4th 1548, 1551.)

The city’s demurrer to the cross-complaint for declaratory relief filed by Everest is overruled. The city (obligee) sued Everest (the surety) for breach of the performance bond. The city could have but chose not to name the contractor (principal) as an additional defendant. (Mahana v Alexander (1927) 88 Cal.App.111, 119 [judgment against principal is not conclusive as to the surety].) The cross complaint for declaratory relief filed by the surety of the bond takes the position that the performance bond is null and void, given the contractor’s full performance under the construction contract. The surety may but need not seek reimbursement from any damages caused by the principal. (Civ Code § 2847; Schmitt v Insurance Co of North America (1991) 230 Cal.App.3d 245, 257.)

In terms of the merits of the demurrer, the court agrees with Everest that it has no obligation to name the principal (JR Filanc) or Vanir (an alleged agent of the city) in its declaratory relief action. The city (obligee) may sue the surety (Everest) or the principal (JR Filanc), or both. (Fort Bragg Unified School Dist. v Solano County Roofing Inc (2011) 194 Cal.App.4th 891, 910 [typically only the obligee may make a claim against the surety]; Schmitt, supra 230 Cal.App.3d at 257 [the risk of loss under a suretyship contract remains with the principal, while the surety merely lends its credit, so as to guarantee payment in the event that the principal defaults. In the absence of default, the surety has no obligation.) In fact, under Civil Code section 2845, the surety may require the creditor to proceed against the principal, not the other way around.

The court does not find that the principal (JR Filanc) or the city’s agent (Vanir) to be an indispensable party to the surety’s declaratory relief cross complaint. (Code Civ. Proc. §389; Morrical v Rogers (2013) 220 Cal.App.4th 438, 460-464 [joinder is required only if in the person’s absence their ability to protect their interest would be prejudiced or expose the parties to risk of additional liability or inconsistent obligations].) The city’s demurrer to the cross complaint is overruled.

Consolidate Case Nos. 22C 0258, 22C 0327, 22C 0379

Javod Barnes v. D.H. Blattner & Sons, Inc. et al (and consolidated cases)

Plaintiff’s Motion for Court Order to Amend the Complaint

January 9, 2024 at 8:15 a.m. in D-2, J. Edwards

The motion to amend the complaint is granted. In deciding on the motion, the court is to consider the following factors: (1) the liberal policy favoring amendment such that denial is rarely justified; (2) the nature of the proposed amendment; (3) the validity of the proposed amendment, subject to certain limitations; (4) the proximity to trial; and (3) whether prejudice to the opposing party will result. (Weil & Brown, Civil Procedure Before Trial ¶¶6:638-6:653.) Motions for leave to amend the pleadings are directed to the sound discretion of the court and such discretion will usually be exercised liberally to permit amendment of the pleadings. (Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428.) “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion. (Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530.)

In applying the factors set forth above, the court finds that leave to amend should be granted. The motion is timely made and Defendants fail to demonstrate prejudice. To the contrary, based on the court’s prior order consolidating the three related matters, it appropriately follows that the proposed amended complaint would incorporate all related causes of action into one coherent complaint, retaining those defendants whose inclusion in the matter has not been previously challenged. With respect to the nature and validity of the proposed amendments, i.e., Defendants’ assertions that Andrey Baydak and Quanta Energy Services, LLC are not involved in the substantive allegations of the complaint, the court notes that grounds for demurrer or motion to strike are premature. (Weil & Brown, supra, ¶6:644; Kittredge Sports Co. v. Superior Court. (Marker, USA) (1989) 213 Cal.App.3d 1045, 1048; Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 760 [the “better course of action [is to] allow [plaintiff] to amend the complaint and then let the parties test its legal sufficiency in other appropriate proceedings”].) Here, Defendants will have the opportunity to attack the validity of the amended pleading upon its filing.

Plaintiffs are directed to file and serve the proposed consolidated complaint (Exhibit 4 to the Declaration of Stuart H. Kluft) within five (5) days. Responsive pleadings to the amended complaint are to be filed within thirty (30) days of service of the amended complaint.

Case No. 22C 0158

Mallard v. Bookwalter et al.

Plaintiff’s Motion to Reopen Fact Discovery

January 3, 2024 at 8:15 a.m. in D-8, J. Edwards

The motion to reopen fact discovery for the limited purpose of conducting a deposition of former counsel is granted in part.

On motion of any party, the court may reopen discovery after trial has been continued to a new date, so long as the court considers any relevant matter, including (1) the necessity and reasons for the additional discovery sought, (2) the diligence or lack of diligence by the party seeking discovery, and the reasons why the discovery was not completed, (3) whether permitting the discovery or granting the discovery motion will likely prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar or prejudice any other party, and (4) the length of time elapsed between any date previously set and the date presently set for trial. (Code Civ. Proc. §2024.050(b); Cal. Practice Guide: Civil Procedure Before Trial ¶¶8:457-8:460.) The motion must also be accompanied by a declaration showing a reasonable and good faith attempt to resolve the matter informally. (Code Civ. Proc. §2024.050(a).)

In applying these factors, the court finds that Plaintiff has been diligent in seeking the discovery and that the discovery is unlikely to prevent the case from going to trial on the date set or otherwise prejudice Defendants. The court further finds that the discovery sought, to wit: the deposition of former counsel, is necessary in light of the pending Motion for Reconsideration and former counsel’s position as a declarant in support of that motion. (See Code Civ. Proc. §2017.010 [“[A]ny party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action.”] Inherent in the court’s determination of whether the discovery is necessary is whether Plaintiff has demonstrated the existence of the “extremely good cause” to conduct a deposition of opposing counsel. (Carehouse Convalescent Hospital v. Superior Court (2006) 143 Cal.App.4th 1558, 1562.) While the court is aware that depositions of opposing counsel are presumptively improper and severely restricted, Plaintiff appears to have demonstrated that the appropriate circumstances exist in this case to rebut this presumption and permit the deposition of former opposing counsel to be taken.

In determining the propriety of a deposition of opposing counsel, the court applies a three-prong test: First, does the proponent have other practicable means to obtain the information? Second, is the information crucial to the preparation of the case? Third, is the information subject to a privilege? (Id. at 1563.) Plaintiff satisfies the first prong of this test because Attorney Rejavardi is the only person with personal knowledge of his state of mind at the time he sent the purportedly inconsistent emails at issue, as well as when he drafted the initial declaration. Further, Attorney Rejavardi has since submitted an amended declaration in support of the Motion for Reconsideration, purporting to cure the inconsistencies in his initial declaration, which, in the court’s view, presents a sufficient basis to challenge the trustworthiness and evidentiary sufficiency of the initial declaration and of the relevant emails. Further, while Plaintiff has not shown any attempts of targeted discovery using other means, the court agrees with Plaintiff’s assertion that other discovery devices, such as written interrogatories, would be fruitless to challenge the inconsistencies raised.

Further, the court finds that the information sought by way of deposition is crucial to Plaintiff’s preparation of the case. The court emphasizes that Defendants’ Motion for Reconsideration is not before the court at this time and that the court’s view as to the credibility of Mr. Lajevardi should not be presumed by either party. However, where, as here, discovery is sought to aid in the court’s determination of the credibility of a declarant whose statements presented in support of a motion which may significantly alter the posture of the case, such discovery is crucial to the preparation of that case. Plaintiff does not merely assume based on speculation that Mr. Lajevardi has presented inconsistent explanations for his prior conduct; he himself has presented an amended declaration to “correct” certain inconsistencies, which therefore warrants additional discovery to shed light on the critical issues raised in Defendants’ Motion for Reconsideration.[1]

With respect to privilege, the court agrees with Defendants that to the extent Plaintiff seeks production of documents of the claim, written communications mentioning the claim, documents mentioning when Mr. Lajevardi was assigned to represent Defendants when he was assigned to work on the claim, and communications mentioning the declaration executed for the motion for reconsideration, such documents are protected by work-product privilege. Defendants do not, however, appear to assert that the deposition itself seeks to obtain privileged information. Thus, while the court grants the motion to reopen discovery for the limited purpose of conducting the deposition of Mr. Lajevardi, the motion to reopen discovery for the purpose of requesting production of related documents is denied. Further, should any attempts be made during the deposition to seek privileged information, such proper objections may be made at the appropriate time.

[1] It is for this reason that the court rejects Defendants’ argument that “any attorney who files a motion for relief based on CCP §473 would be subject to a deposition to determine the truthfulness of their declaration.” (Opp. at 5.) To the contrary, only attorneys whose declarations present a sufficient basis to challenge their trustworthiness may be subject to deposition to aid in determining credibility.

Case No. 22C 0340

Louise Alice Andermatt et al. v. Kings Nursing & Rehabilitation Hospital et al.

Plaintiffs’ Renewed Motion for Leave to File Second Amended Complaint

Defendant Kings Nursing’s Motion for Judgment on the Pleadings

January 3, 2024 at 10:30 a.m. in D-8, J. Chrissakis

Plaintiffs’ renewed motion for leave to file a second amended complaint is granted and the proposed SAC submitted with the motion is deemed filed. In deciding on the motion, the court is to consider the following factors: (1) the liberal policy favoring amendment such that denial is rarely justified; (2) the nature of the proposed amendment; (3) the validity of the proposed amendment, subject to certain limitations; (4) the proximity to trial; and (3) whether prejudice to the opposing party will result. (Weil & Brown, Civil Procedure Before Trial ¶¶6:638-6:653.) Motions for leave to amend the pleadings are directed to the sound discretion of the court and such discretion will usually be exercised liberally to permit amendment of the pleadings. (Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428.) “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion. (Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530.)

In applying the factors set forth above, the court finds that leave to file a Second Amended Complaint is warranted in this case. As an initial matter, the motion is timely noticed. Moreover, the court disagrees with Defendant that counsel’s declaration fails to comply with California Rule of Court Rule 3.1324 and finds that counsel has, with adequate specificity, attested to the necessity of the proposed amendments, when the facts giving rise to the proposed amendments were discovered, and the reasons why the request for amendment was not made earlier. Even assuming a delay in seeking the amendment existed here, absent prejudice to the other side, the liberal policy of allowing amendments prevails. (Weil & Brown, Civil Procedure Before Trial ¶6:653 [citing Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564-565; Berman v. Bromberg (1997) 56 Cal.App.4th 936, 945].) Defendant demonstrates no such prejudice; this case is in its infancy, very little discovery has been conducted, no trial date has been set, responsive pleadings from two defendants remain outstanding, and there is no indication the proposed amendments will “open[] up an entirely new filed of inquiry without any satisfactory explanation” for the delay. (See Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.471, 487 [quoting Estate of Murphy (1978) 82 Cal.App.3d 304, 311].)

Finally, with respect to the nature and validity of the proposed amendments—and Defendant’s assertions that the additional causes of action for elder abuse and general negligence are not properly pled—the court notes that grounds for demurrer or motion to strike are premature. (Weil & Brown, supra, ¶6:644; Kittredge Sports Co. v. Superior Court. (Marker, USA) (1989) 213 Cal.App.3d 1045, 1048; Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 760 [the “better course of action [is to] allow [plaintiff] to amend the complaint and then let the parties test its legal sufficiency in other appropriate proceedings”].) Here, Defendants will have the opportunity to attack the validity of the amended pleading upon its filing.

With respect to the Motion for Judgment on the Pleadings, the court’s ruling on Plaintiffs’ motion and deemed filing of the proposed SAC moots this motion as directed to the FAC. (Weil & Brown, supra, ¶6:704 [citing State Comp. Ins. Fund v. Superior Court (Onvoi Business Solutions, Inc.) (2010) 184 Cal.App.4th 1124, 1130-1131.)

Responsive pleadings to the SAC are to be filed within thirty (30) days of service of this order.

Case No. 22C 0338

D.R. v. County of Kings

Demurrer to Plaintiff’s First Amended Complaint

December 15, 2023 at 8:15 a.m. in D-2, J. Edwards

The demurrer to the FAC is overruled.

The court acknowledges that its prior order on the demurrer to the initial complaint found that the initial complaint failed to allege with adequate specificity the basis for the County’s liability or any basis to defeat the County’s immunity. The court further acknowledges that the FAC does not include materially different allegations than those contained in the initial complaint. However, upon further review of the amended pleadings, the opposition to the instant demurrer, and case law, in particular C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861 (“C.A.”), the court finds the complaint adequately alleges the County’s actual or constructive notice that Plaintiff was being sexually abused by the perpetrator in the foster home and failed to protect Plaintiff. In C.A., the supreme court held that the complaint did not need to identify the name and position of the district employee who allegedly failed to properly hire, train, and supervise the perpetrating employee, even though particularity was required to state a cause of action against the government entity at issue. (53 Cal.4th at pp. 865, 872.) The court reiterated a prior holding that each evidentiary fact that might eventually form part of a plaintiff’s proof need not be alleged. (Id. at 872 [citing Golceff v. Sugarman (1950) 36 Cal.2d 152, 154 [complaint against employer need not include allegation that negligent act was committed by employee in order for plaintiff to pursue respondeat superior liability].) The court further explained that there is basis for a rule that a plaintiff must specifically plead, before undertaking discovery, the identity of a government employee whose alleged negligence is made the basis for vicarious liability. (Ibid. [citations omitted].) Thus, here, the failure of the FAC to name the social worker to whom Plaintiff is alleged to have disclosed the sexual abuse is not, on its own, a basis for demurrer. Similarly, the court finds that specifying failure to specify the date of the alleged notification to the social worker beyond the statement that Plaintiff notified the social worker during the course of the ongoing abuse is not necessary at the pleading stage in order to state a claim against the County.

With respect to immunity under Government Code section 820.2, which shields a public employee from liability for an injury resulting from discretionary acts or omissions, the court similarly finds that the demurrer cannot be sustained based on the allegations set forth in the FAC. The FAC adequately alleges that the County, including its social worker employee, failed to take reasonable steps to protect Plaintiff or conduct any investigation as to the alleged sexual abuse following Plaintiff’s notification to her social worker. (¶¶28, 43.) “Decisions made with respect to the maintenance, are or supervision of plaintiff, as a dependent child, . . . may entail the exercise of discretion in a literal sense, but such determinations do not achieve the level of basic policy decisions, and thus do not, under the provisions of [section 802.2], preclude judicial inquiry into whether negligence of public employees was involved and whether such negligence caused or contributed to plaintiff’s injuries.” (Elton v. County of Orange (1970) 3 Cal.App.3d 1053, 1058 [citations omitted].) Because the County cannot demonstrate at this stage that the pleadings demonstrate a conscious balancing of risks and advantages in failing to investigate the reports of sexual abuse and assault, the County cannot invoke immunity under section 820.2. (Ibid.; Johnson v. State of California (1968) 69 Cal.2d 782, 783 [“The fact that an employee normally engages in ‘discretionary activity’ is irrelevant if, in a given case, the employee did not render a considered decision.”].) Accordingly, immunity as to the County under section 815.2 cannot be invoked. Further, the court declines to find that the immunity provision contained in section 821.6 applies to the County. The cases of Jenkins v. County of Orange (1989) 212 Cal.App.3d 278 and Alicia T. v. County of Los Angeles (1990) 222 Cal.App.3d 869 are materially distinguishable as the FAC at issue here does not allege a failure to use due care in the initiation of dependency proceedings and related investigation and instead involves allegations of a complete failure to investigate notifications of alleged sexual abuse while in foster care. Additionally, the court notes the recent supreme court decision, which reaffirmed the previous holding that section 8201.6 protects public employees from liability only for initiation or prosecution of an official proceeding. (Leon v. County of Riverside (2023) 14 Cal.5th 910, 930-931.) In short, the County cannot demonstrate immunity based on the allegations in the FAC.

Based on the foregoing, the demurrer is overruled. The County is ordered to file its Answer to the complaint within thirty (30) days of service of this order.

Case No. 22C 0424

TH v. Doe 1 et al.

Doe 1’s Demurrer and Motion to Strike

December 12, 2023 at 8:15 a.m. in D-2, J. Edwards

DOE 1’s demurrer to the third and fourth causes of action is granted with leave to amend.

With respect to the fourth cause of action for negligent supervision of a minor, the complaint fails to state sufficient facts to support a legal duty to Plaintiff, as no special relationship is established by the pleadings. (Brown v. USA Taekwondo (2021) 11 Cal.5th 204, 211 [citing the exception to the no-duty-to-protect rule for cases in which the defendant has a special relationship with either the dangerous third party or with the victim].) Other than the conclusory allegation that “a special relationship existed between Entity Defendants and DOE 3,” (¶¶62, 83) the complaint does not otherwise contain sufficient facts to demonstrate DOE 1 had any control over the plaintiff’s welfare or that plaintiff had a right to expect protection from DOE 1 or that DOE 3’s position with DOE 1 included the ability of DOE 1 to control the conduct of DOE 3 in regard to the subject incidents of alleged abuse. (Brown, supra, 11 Cal.5th at 216; Conti v. Watchtower Bible & Tract Soc’y of New York, Inc. (2015) 235 Cal.App.4th 1214, 1231 [special relationship during “field service”; Doe v. Superior Court (2015) 237 Cal.App.4th 239, 246 [special relationship during church camp].) Without additional factual allegations of the nature of subject river excursion as well as the role of DOE 3 within DOE 1’s organization, the complaint is insufficient to state a claim for negligent supervision of a minor.

Similarly, as to the third cause of action for negligent hiring, supervision, and retention. In addition to the foregoing discussion regarding the failure to adequately allege a special relationship, the complaint fails to state sufficient facts to support that DOE 1 was the legal cause of the alleged childhood sexual assault. (Code Civ. Proc. §340.1(a)(2).) Again, the complaint contains conclusory allegations that DOE 1 “knew or should have known, reasonably suspected, or [was] otherwise on notice, that DOE 3 sexually abused and/or sexually assaulted, and molested minor children, including Plaintiff” prior to the alleged abuse. (¶¶21, 37, 63, 66, 67, 84.) However, the complaint does not contain factual allegations relating to whether DOE 1 had “acquired actual knowledge of facts from which a reasonable person of ordinary intelligence, or one of the superior intelligence of the act, would either infer, or consider highly probable, that the agent had previously committed” any misconduct that created a risk of childhood sexual assault by DOE 3. (Code Civ. Proc. §340.1(a)(2), (c); Santillan v. Roman Catholic Bishop of Fresno (2012) 202 Cal.App.4th 708, 718 [citing Doe v. City of Los Angeles (2007) 42 Cal.4th 531].) Indeed, the complaint does not adequately present a timeline of events as to when and how DOE 1 is alleged to have learned facts which would have given reason to know of DOE 3’s alleged prior misconduct. Therefore, the complaint does not adequately allege DOE 1’s knowledge—actual or constructive—of the alleged misconduct such that a claim can be stated under section 340.1(c).

The motion to strike is granted with leave to amend. As for the motion to strike the prayer for relief for treble damages, the motion is mooted by Plaintiff’s request for dismissal of the request for treble damages, which was entered on September 20, 2023. Regarding the allegations of conduct that occurred after the alleged abuse, DOE 1 argues that such conduct cannot factually be the “legal cause” under section 340.1 and thus these allegations are irrelevant and improper and should be stricken. (Motion at 6.) In opposition, Plaintiff asserts that allegations of post-abuse conduct by DOE 1 are “highly relevant to Plaintiff’s allegations that DOE 1 exercised control and promulgated policies to its congregations, regarding the child abuse which directly caused Plaintiff’s abuse.” (Opposition at 4.) The court disagrees. While allegations relating to DOE 1’s control of certain individuals, such as DOE 3, are relevant for a determination of whether a legal duty may be imposed on DOE 1, it does not follow that DOE 1’s control of and promulgation of policies as to its congregations as a whole somehow establishes a legal cause of the alleged abuse. As such, these allegations are irrelevant and improper.

DOE 1 further seeks to strike allegations in regard to “reporting” requirements because there were no mandatory reporting duties for clergy in effect at the time of the alleged abuse and also citing clergy-penitent privilege and constitutional grounds. (Motion at 7-9.) Plaintiff asserts that notwithstanding the lack of a mandatory duty to report, DOE 1’s intentional failure to report or warn Plaintiff’s parents and other members of its congregation is further evidence of its breaches and failure to do what a reasonably prudent entity or person would do when it acquires knowledge of sexual abuse of minors occurring by its employees. (Opposition at 5.) However, as discussed above with regard to the demurrer, the complaint presently fails to sufficiently state facts to demonstrate DOE 1’s alleged knowledge—or reason to know—of any alleged misconduct by DOE 3. Without factual allegations to demonstrate this knowledge, allegations of a failure to report or warn other’s of DOE 3’s misconduct are irrelevant and improper.

Based on the foregoing, the demurrer is sustained and the motion to strike granted with leave to amend. Plaintiff’s amended complaint must be filed within thirty (30) days of service of this order.

Case No. 23C 0048

Solano v. David Bakker Dairies et al.

Plaintiff’s Motion to Compel Compliance of Production of Documents and for Sanctions

December 11, 2023 at 8:15 a.m. in D-2, J. Edwards

Plaintiff’s motion to compel compliance is denied.

Plaintiff asserts in the instant motion that Defendant’s failure to produce telephone numbers, timecards, and payroll records for the putative class members following completion of the Belaire-West notice procedures warrants an order compelling compliance under section 2031.320. According to Plaintiff, there is no dispute that Defendant was required to produce the telephone numbers, payroll records, and timecards of the putative class once the Belaire-West notice procedures were completed. (Memo. in Support at 5; Reply at 3.)

The court disagrees. Defendant’s July 5, 2023 responses to RFP Nos. 1 through 3, each state, in pertinent part: “Defendant further objects to this integratory [sic] because it necessitates the preparation of a compilation, abstract, audit or summary from documents in Defendant’s possession which contain confidential information. [Citation]. The parties have agreed to engage in the Belaire-West Notice process and Defendant anticipates the execution of a Protective Order concerning the confidential nature of Defendant’s records from which such compilation and abstract would be required in order to provide the information requested in this Request. Once the anticipated Belaire-West Notice process has been completed and the Protective Order executed by all parties Defendant will produce confidential documents which contain responsive information in response to this Request following the redaction of personally identifying information for any employee(s) that affirmative[ly] opt-out.” (Exh. A to Declaration of Jesus Pereda at pp. 3-6.)

In the court’s view, Defendant’s response to the inspection demand constituted an objection to the demand on grounds of confidentiality but was not a statement of compliance. At best, the response was a conditional statement of compliance—conditioned upon completion of the Belaire-West notice process and execution of a protective order—which does not appear to be an acceptable response to an inspection demand under the Discovery Act. (Code Civ. Proc. §2031.210(a).) Where the response to an inspection demand is improper, the demanding party is entitled to obtain an order compelling further responses to its inspection demands. (Id. §2031.310(a).) However, such a motion must be brought within 45 days after service of the response. (Id. §2031.310(c).) Plaintiff filed no such motion here.

Plaintiff has not presented any authority, and the court finds none, for the proposition that a motion under section 2031.320 to compel compliance with an inspection demand may be granted where a responding party objects (or offers conditional compliance) to the demand. (Code Civ. Proc. §2031.320, subd. (a) [“If a party filing a response to a demand for inspection . . . thereafter fails to permit the inspection . . . in accordance with that party’s statement of compliance, the demanding party may move for an order compelling compliance.”].) In the court’s view, if Plaintiff now seeks to compel Defendant to produce certain information upon completion of the Belaire-West notice procedures, Plaintiff must be able to demonstrate some agreement between the parties to that effect, since Defendant’s July 5, 2023 responses to the inspection demands do not so state. The court does not find that Plaintiff has demonstrated such an agreement here.

Based on the foregoing, Plaintiff’s motion to compel compliance is denied. The court further declines to enter an award of sanctions.

Case No. 23CU 0188

Rogelio Silva et al. v. Jersey Creek Dairy, Inc.

Demurrer to Plaintiffs’ First Amended Complaint

December 7, 2023 at 8:15 a.m. in D-2, Visiting Judge

The demurrer is overruled.

In the fifth cause of action, the FAC alleges, in part: “Defendants failed to compensate Plaintiffs and Class Members for all hours worked, including, but not limited to, the hours Plaintiffs and Class Members were working off the clock, the hours worked during their meal and rest breaks, as well as overtime pay, and for which they did not receive the proper compensation under the law.” (¶97.) On demurrer, Defendant argues that the allegations do not constitute a cause of action as the pleadings set forth a legal standard with regard to minimum wage that is inconsistent with the only applicable IWC Order, No. 14-2001. (Demurrer at 2.) Defendant cites that the minimum wage stated in the Labor Code differs from the minimum wage established by IWC Order No. 14-2001 and thus Plaintiffs do not rely on the correct law for their claim for minimum wages. (Memo. in Support at 5.) According to Defendants, the FAC is uncertain and ambiguous because the cause of action is titled “Failure to Pay Minimum Wage and Pay for All Wages Earned,” but the statutes are not related to the laws that govern minimum wage for Plaintiffs as agricultural workers. (Ibid.)

On demurrer, it is not necessary that the cause of action be the one intended by plaintiff. The test is whether the complaint states any valid claim entitling plaintiff to relief. So long as the essential facts of some valid cause of action are alleged, the complaint will overcome a general demurrer. (Weil & Brown, Civil Procedure Before Trial ¶7:41 [citing Quelimane Co., Inc. v. Stewart Title Guar. Co. (1998) 19 Cal.4th 26, 38-39; New Livable Calif. v. Association of Bay Area Governments (2020) 59 Cal.App.5th 709, 714-715; Adelman v. Associated Int'l Ins. Co. (2001) 90 Cal.App.4th 352, 359; Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 998 [general demurrer may be upheld “only if the complaint fails to state a cause of action under any possible legal theory” (emphasis added)]].) Here, Defendant does not assert that the fifth cause of action fails to assert any valid claim, such as the one for payment for all wages earned under California Labor Code section 204, which requires California employers to pay employees for all wages earned. To the contrary, the allegations in the fifth cause of action appear to include essential facts of this cause of action. “Erroneous or confusing labels attached by the inept pleader are to be ignored if the complaint pleads facts which would entitle the plaintiff to relief.” (Saunders v. Cariss (1990) 224 Cal.App.3d 905, 908.) Because Defendant does not demonstrate that the fifth cause of action in the FAC fails to state any valid claim entitling the Plaintiffs to relief, the demurrer is overruled as to this cause of action.

With respect to the eighth cause of action, the FAC alleges, in sum, that Labor Code section 2802 requires an employer to reimburse employees for necessary business expenditures and that Defendant failed to reimburse Plaintiffs for their own drinking water (or to provide them with drinking water as required by statute), failed to reimburse Plaintiffs for cell phone usage to conduct business tasks, and failed to reimburse Plaintiffs for boots and gloves purchased to complete their job duties. (FAC ¶¶108-114.) Defendant argues that because the FAC fails to describe how the boots and gloves are distinct such that the items constitute a uniform and thus it must be presumed the boots were not part of a uniform and thus not a reimbursable expense. (Memo. in Support at 6.) According to Defendant, the FAC is uncertain and ambiguous because Plaintiffs failed to state facts that the boots were party of a uniform or otherwise qualify as a necessary business expense under the IWC Order No. 14-2001.

Again, and as stated above, the standard on demurrer is whether the complaint states any valid claim entitling plaintiff to relief. Defendant does not assert, and the court declines to find, that the allegations with respect to the failure to reimburse Plaintiffs for their necessary purchase of drinking water and for their cell phone usage for work-related communications, are insufficient to state a claim for failure to reimburse required business expenses. (See Cochran v. Schwan’s Home Service, Inc. (2014) 228 Cal.App.4th 1137, 1144 [“If an employee is required to make work-related calls on a personal cell phone, then he or she is incurring an expense for purposes of section 2802.”]; Labor Code §2441 [requirement of employers to provide drinking water during working hours].) Because it appears the FAC states a cause of action for failure to reimburse for failure to reimburse Plaintiffs for business expenses on these alternative theories, the demurrer is overruled as to the eighth cause of action as well.

Case No. 22C 0340

Andermatt ex rel. Silva v. Kings Nursing & Rehabilitation Hospital et al.

Defendant Dr. Raber’s Motion for Judgment on the Pleadings

Plaintiffs’ Motion for Leave to File Second Amended Complaint

December 1, 2023 at 10:30 a.m. in D-8, J. Chrissakis

The motion for leave to file a second amended complaint is denied. In deciding on the motion, the court is to consider the following factors: (1) the liberal policy favoring amendment such that denial is rarely justified; (2) the nature of the proposed amendment; (3) the validity of the proposed amendment, subject to certain limitations; (4) the proximity to trial; and (3) whether prejudice to the opposing party will result. (Weil & Brown, Civil Procedure Before Trial ¶¶6:638-6:653.) Motions for leave to amend the pleadings are directed to the sound discretion of the court and such discretion will usually be exercised liberally to permit amendment of the pleadings. (Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428.) “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend and where the refusal also results in a party being deprived of the right to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion. (Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530.)

The motion for leave to amend seeks to add causes of action for “Elder Neglect with Heightened Remedies” and “Wrongful Death” and removes and alters certain allegations with respect to the original causes of actions for professional negligence and wrongful death. (Motion at Exh. 1.) As an initial matter, the motion is not timely noticed for failure to file and serve no later than sixteen court days before the hearing, plus the two additional days for electronic service. (Code Civ. Proc. §§1005(b), 1010.6(a)(3)(B).) Additionally, the motion fails to comply with California Rules of Court rule 3.1324. A motion to amend a pleading must be accompanied by a separate declaration that specifies: (1) the effect of the amendment, (2) why the amendment is necessary and proper, (3) when the facts giving rise to the amended allegations were discovered, and (4) the reasons why the request for amendment was not made earlier.

Plaintiff presents a declaration by counsel, which states only that “[a]s soon as practicable, after identifying additional facts and additional causes of action that relate back to the claims in the First Amended Complaint, the instant Motion was filed.” (Declaration of L. Marcel Stewart ¶5.) The declaration therefore fails to state why the amendment is necessary and proper, when the facts giving rise to the amended allegations were discovered, and the reasons why the request for amendment was not made earlier. Such statements are material in this case, especially in light of the opposing party’s arguments that the original causes of action which remain in the proposed SAC are barred by the statute of limitations. While the court will not ordinarily consider the validity of the proposed amended pleadings, as grounds for demurrer or motion to strike are premature, the court undoubtedly has the discretion to deny leave to amend where the proposed pleading is deficient as a matter of law, i.e., barred by the statute of limitations, and the defect cannot be cured by further appropriate amendment. (Weil & Brown ¶¶6:644, 6:688; Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 760; California Cas. Gen. Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 280-281 (disapproved of on other grounds by Kransco v. Merican Empire Surplus Lines Ins. Co. (2000) 23 Cal.App.4th 390, 407).) Because this action involves a dispute as to when Plaintiff learned of those facts giving rise to the original causes of action asserted in the proposed SAC, the failure of counsel’s declaration to include the required statements is fatal to the motion. The court acknowledges that the proposed causes of action for elder abuse and general negligence are not subject to the same statute of limitations. Nevertheless, the court denies the motion as procedurally improper but without prejudice to the filing of a renewed motion.

The motion for judgment on the pleadings is granted as to Dr. Raber, without leave to amend. “A pleading which on its face is barred by the statute of limitations does not state a viable cause of action and is subject to judgment on the pleadings.” (Hunt v. County of Shasta (1990) 225 Cal.App.3d 432, 440.) The statute of limitations to file a suit for medical negligence is three years after the date of the injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, or, whichever comes first. (CCP §340.5.) Reasonable diligence is an objective test requiring a showing that a reasonable person would have suspected the injury was caused by wrongdoing. (Kitzig v. Nordquist (2000) 81 Cal.App.4th 1384, 1391.) Service of a Notice of Intent to Sue pursuant to Code of Civil Procedure section 364 will extend the statute of limitations period by ninety (90) days.

Regarding the first cause of action for medical malpractice, the operative complaint alleges the decedent received medical care and treatment from Defendant at Kings Nursing from March 30, 2021 and May 5, 2021 and that Plaintiff Silva personally and contemporaneously observed several incidents of alleged failure to provide proper care to the decedent during that time. (¶¶19-22.) The FAC alleges that Silva notice her mother’s loss of strength and believed that her mother was suffering from starvation. (¶20.) Using the date of discharge of May 5, 2021, the Court agrees with Defendant that the one-year statute of limitations would be triggered on that date at the latest for purposes of the professional negligence claim. The service of Notice of Intent to Sue pursuant to section 364, even if served on or before May 5, 2022 would only extend the statute of limitations to August 3, 2022, while the original complaint was filed on September 16, 2022. Accordingly, the claim is barred by the statute of limitations.

As for the wrongful death claim, the same statute of limitations provision applies. (Code Civ. Proc. §340.5.) The decedent passed away on May 14, 2021 and her death certificate, citing respiratory failure, renal failure, and diabetes, issued on May 28, 2021. (Defendant’s Request for Judicial Notice Exh. 1.) The court is inclined to agree with Defendant that a reasonable person, who had personally observed the alleged mistreatment of an individual who dies within nine days of discharge from the care facility would likewise discover the alleged wrongdoing on the date of death. However, even using the date of issuance of the death certificate that would provide Plaintiff with the medical causes of death, the statute of limitations would still provide for a filing date of August 26, 2022. Again, the complaint is untimely.

In opposition, Plaintiff does not address the allegations in the complaint of Silva’s personal observations of the decedent while she was in the care of Kings Nursing or argue that these observations somehow do not establish the date of discovery in May 2021. Instead, the opposition asserts that Silva was (understandably) preoccupied with funeral arrangements and other personal matters following her mother’s death and that it was not until early to mid-July of 2021 that Silva began to review her mother’s medical records, which led to her discovery that her mother’s case may have been a matter of medical malpractice. The opposition further asserts that Silva was advised not to visit her mother due to COVID-19 protocol and that despite observing several incidents of improper care, she believed that decedent’s recovery “was going well.” Plaintiff asserts the date of July 1, 2021 is the earliest date that should be applied as the date of discovery and that the complaint was timely filed by the resulting calculation.

Firstly, to the extent Plaintiff includes factual allegations outside of those in the operative complaint and which may not be judicially noticed, the court disregards these allegations. Moreover, a plaintiff discovers a cause of action when she at least suspects a factual basis for the elements of a legal theory, i.e., she at least “suspects . . . that someone has done something wrong.” (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397.) “If a person becomes aware of facts which would make a reasonably prudent person suspicious, he or she has a duty to investigate further and is charged with knowledge of matters which would have been revealed by such an investigation.” (Wilshire Westwood Assocs. v. Atlantic Richfield Co. (1993) 20 Cal.App.4th 732 [quoting Mangini v. Aerojet-General Corp. (1991) 230 Cal.App.3d 1125, 1150].) Thus, even if the court considers allegations that after her mother’s death Silva’s attention was dedicated to finalizing funeral arrangements, attending a high school reunion, and mourning the loss of her husband in August of 2021, these events following her mother’s death do not cure the FAC’s inclusion of Silva’s personal observations prior to her mother’s death of alleged mistreatment, including her drastic and rapid weight loss and the failure to, among other things, properly assist with her feeding and diabetic needs. It is based on those allegations that the date of discovery of the alleged injuries cannot be attributed to a date as late as July 2021.

Because the causes of action appear on the face of the FAC to be barred by the statute of limitations, the motion for judgment on the pleadings is granted as to Defendant Raber. Leave to amend is denied since further amendment cannot cure the issue. To reiterate, Silva’s review of the decedent’s medical records in July 2021 does not remedy the allegations in the FAC of her observations of the decedent’s alleged mistreatment by May 5, 2021, or May 28, 2021 at the latest, such that a reasonable person would have suspected the injury at issue was caused by wrongdoing by those respective dates. Moreover, the removal of those allegations from an amended pleading is likely to run afoul of the sham pleading doctrine. (Kenworthy v. Brown (1967) 248 Cal.App.2d 298, 302 [amended complaint may not simply omit dates without explanation]; Foxen v. Carpenter (2016) 6 Cal.App.5th 284, 295 [amended complaint cannot avoid defects set forth in a prior complaint by ignoring them].) Accordingly, the motion is granted without leave to amend as to Defendant Raber.

Tentative Ruling for Tuesday, November 28, 2023, for Department 8, Judge Chrissakis presiding

Ingram v Noland, Kahn, Soares & Conway D-8

Case No. 22C0215 Judge Chrissakis

Defendants’ motion for summary judgment is granted. Defendants seek summary judgment of this legal malpractice action based on the statute of limitations. (Code Civ. Proc. §340.6.) The court agrees with defendants that plaintiff’s lawsuit is barred under both the one year and four year provisions of Code of Civil Procedure section 340.6.

The one year provision of the statute begins to run after actual or constructive knowledge. (§340.6, subd. (a) [discovers or through use of reasonable diligence should have discovered the facts constituting the wrongful act or omission].) In this case, plaintiff signed partnership amendments in 2014 that clearly informed her that, if signed, she would be required on her death to distribute her entire general partnership interests to EG Farming Trust, and that the beneficiaries of that trust were Gary Esajian’s daughters. ((UMF 1, 8 and Ingram Depo. EX 4, ecourt page 187 [Esajian West Partnership], ecourt page 191 [Esajian Land Co] ecourt page 194 [Esajian Farming Co].)

Constructive knowledge stems from a suspicion of wrongdoing by someone; this suspicion puts a plaintiff on inquiry notice. (Peregrine Funding, Inc. v Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 685.) In the first quarter of 2021, plaintiff retained attorney Wright, who explained to plaintiff that the 2014 partnership amendments were incorporated into plaintiff’s estate plan and were a “big problem” and very detrimental to her partnership shares by dramatically lowering the value of the shares. (UMF 24-25.) At that point, plaintiff was aware she had been injured. Plaintiff knew that Gary has recommended Noland to be her estate planning counsel and that Gary had offered to pay for attorney Noland’s preparation of plaintiff’s estate plan. (UMF 3.) There was no written waiver of any conflict when the estate plan documents were received by plaintiff. (UMF 17 and Ex. To Ingram Depo.) Plaintiff also knew she had executed the partnership amendments in the same time period of time. (UMF 10, 16.) These undisputed facts would make a reasonably prudent person suspicious that Mr Noland was working with Gary to prepare for plaintiff’s signature the 2014 partnership amendments at the same time he was drafting her estate plans.

Upon such suspicion of wrongdoing, plaintiff had a duty of inquiry to determine if these facts would support a claim for damages. The facts that would have been revealed by inquiry notice are charged to the plaintiff. (Genisman v Carley (2018) 29 Cal. App 5 th 45, 51 [If a person becomes aware of facts which would make a reasonably prudent person suspicious, he or she has a duty to investigate further and is charged with knowledge of matters which would have been revealed by such an investigation].) In this case, plaintiff could have asked questions about the source of the partnership amendments and the timing of the preparation of her estate plans from her brother, or Mr Noland, or she could have hired an attorney to conduct an investigation. Plaintiff in fact did hire an attorney, who was able to learn even before he had been retained, that Mr Noland had drafted the 2014 partnership amendments.

Plaintiff claims the attorney (Georgeson) did not tell plaintiff until August of 2021, that she had a potential claim arising from an undisclosed conflict of interest. The court agrees with defendant that the ease with which these facts were learned demonstrates that the facts were “open and available” to plaintiff at all times. The one year statue began to run in the first quarter of 2021 when plaintiff suspected she had been injured by the 2014 partnership amendments. Plaintiff is charged with the knowledge she would have obtained with reasonable diligence. By the first quarter of 2022 with reasonable diligence, plaintiff would be aware that the 2014 amendments were drafted by Noland at the same time Noland was preparing plaintiff’s estate plan without a written waiver of conflict. Accordingly, the statute ran in the first quarter of 2022. This results in a finding that the lawsuit is barred under the one year from discovery provision of section 340.6.

Plaintiff’s lawsuit is also barred under the 4 year provision of section 340.6. Noland’s alleged wrongful acts took place in 2014 when plaintiff was given the partnership amendments to sign. The amendments had the effect of restricting the transferability of plaintiff’s partnership interests, thereby lessening the value of such interests. The impairment or loss of a right or remedy is an actual injury triggering the statute of limitations. (Jordache v Brobeck Phleger & Harrison (1998) 18 Cal.4th 739, 743 [Actual injury occurs when the client suffers any loss or injury legally cognizable as damages in a legal malpractice action based on the asserted errors or omissions].) The four year period runs, whether or not plaintiff has discovered the malpractice. (Radovich v Locke-Paddon (1995) 35 Cal.App.4th 946, 970.)

None of the tolling provisions set forth in section 340.6 apply. There are no facts to support any of the tolling provisions due to continuous representation (plaintiff’s relationship with defendant ended February 2015), or willful concealment (no affirmative misrepresentation by defendant and the amendments plaintiff was asked to sign clearly informed her that if signed, on her death her entire general partnership interest would be distributed to EG Farming Trust, whose beneficiaries were the daughters of Gary Esajian), or disability on the part of plaintiff.

Plaintiff contends there was tolling because Noland willfully concealed the fact he had drafted the 2014 partnership amendments at the same time he was drafting her estate plans. However, for concealment which tolls the statute of limitations, there must be an affirmative misrepresentation, not a mere nondisclosure. (See the legislative analysis in the reply in addition to analogous cases in the context of the statute of limitations for medical malpractice. Trantafello v Medical Center of Tarzana (1986) 182 Cal.App.3d 315, 321[affirmative misrepresentation tolls the statute, not mere nondisclosure of the risks and nature of the operation].)

For the reasons set forth above, defendants’ summary judgment motion is granted.

Case No. 18C 0333

Santos Fredy Hernandez v. AMG Express LLC et al.

Plaintiff’s Motion to Augment Expert Witness Designation

November 6, 2023 at 8:15 a.m. in D-2, Visiting Judge

As an initial matter, the parties should be prepared to address the applicability of the five-year statute requiring an action to be brought to trial within five years after the action is commenced against the Defendant. The court notes the action was filed on November 13, 2018 and that the parties agreed to the most recent continuance of the trial date, with the apparently shared understanding that the 6-month pandemic extension results in an extended date of May 13, 2024. (See Defendant’s May 16, 2023 Ex Parte Application to Continue; Declaration of Ron Torem in Support, filed May 17, 2023.) The court denies Defendant’s request to continue the trial date at this time, without prejudice to a noticed motion to continue trial or another stipulation, subject to any points and authorities in support of an extension beyond the five-year statute. (Code Civ. Proc. §583.310.)

Plaintiff’s motion to augment expert witness designation is conditionally granted. Plaintiff has filed a declaration to support his contention that he could not have reasonably known to name a neuropsychologist (Edger Omar Angelone) and life care planner (Violeta (Holly) Suzara Allman) until he took the deposition of defendant’s expert Guitierrez on 8/16/23. (Code Civ. Proc. §2024.620, subd. (c)(1).) Plaintiff has also shown adequate meet-and-confer efforts to have Defendants agree to the augmentation of Plaintiff’s expert witness list and the naming of non-retained treating experts. (Id. §2024.610, subd. (c).) Plaintiff has otherwise met all requirements to be able to augment his expert witness list. Specifically, Plaintiff has demonstrated he timely engaged in expert witness disclosure and would not in the exercise of reasonable diligence known to add these experts as counsel only recently learned, despite inquiry, his client had been treated for mental health issues since the accident and had been diagnosed with a TBI by those doctors. Plaintiff has also demonstrated there is adequate time to depose the additional experts and that no prejudice to Defendants will occur. (Weil & Brown, Civil Procedure Before Trial ¶¶8:1744 et seq.) Defendants cannot establish prejudice simply because a new expert will give adverse testimony. (Dickison v. Howen (1990) 220 Cal.App.3d 1471, 1479.) Defendants have not demonstrated an inability to respond adequately to such testimony, as they have already designated a neuropsychologist who has examined Plaintiff and Plaintiff stipulates to Defendants’ designation of a Life Care Planner. Further, to the extent Defendants argue they are prejudiced by Plaintiff’s naming of multiple non-retained experts, the court is unpersuaded since Defendants do not dispute that Plaintiff has produced all medical records and continued to supplement this production, which included the identities of all the new non-retained experts.

However, in the interest of dispelling any potentially prejudicial effect of granting the motion, the court imposes those conditions on its order to include those offered in Plaintiff’s motion and reply as well as Defendants’ request to supplement. First, while the court is willing to allow augmentation as to Plaintiff’s non-retained experts, Plaintiff must narrow their list of non-retained experts within fourteen (14) days, affording consideration of the duration of trial currently set for 7 days, and must promptly depose and allow defense to examine the revised list of non-retained experts. Pragmatically, Plaintiff may only have at most three days to present his case-in-chief, as do Defendants, leaving one total day for jury selection and deliberation. Additionally, Plaintiff must make the new experts, Neuropsychologist Edger Omar Angelone and Life Care Planner Violeta (Holly) Suzara Allman, available immediately for deposition. Finally, Defendants are permitted to supplement their expert witness list up to twenty (20) days after the Plaintiff’s new experts are deposed.

Tentative Ruling for Wednesday October 25, 2023, for Department 2, Judge Edwards presiding

Jimenez v Sherwood Management Co Inc Case No. 22C-0409

The reply suggests this motion is more akin to a motion for judgment on the pleadings, however defendant brought a motion for summary judgment. This was necessary due to plaintiff’s allegation that multiple communications were received from defendant after the “I refuse to pay this debt” letter was received. (Compl ¶26.) The discovery responses by plaintiff’s only referred to the one letter received from defendant dated 9/28/22 (the Sherwood letter). It is now undisputed that the only communication from December 2018 to the present is the one Sherwood letter. (UMF 11.) Nevertheless, a motion for summary judgment was the appropriate motion to file, given the allegations in the complaint.

The court finds that a triable issue of fact exists if the Sherwood letter was in violation of 15 USC §1692c and §1692e. The declaration of plaintiff notes that his letter refusing to pay the debt is to be construed as a cease and desist letter. (15 USC 1692c, subd. (c).) Jimenez was surprised that he received a letter in response since §1692c, subd. (c) provides all communications from the creditor shall cease on receipt of the letter. Plaintiff had not asked for verification of the debt, as provided under 15 USC §1692g ( a) (4).

The details of the letter and the assertion the creditor would continue to report plaintiff to a credit reporting agency creates a triable issue of fact if it was an implicit demand for payment and threat that failure to pay would compromise plaintiff’s credit. (UMF 10.) The plaintiff’s last payment on the debt was June 13, 2018. (UMF 4.) It was disputed if the debt was “charged off” in December of 2018. (UMF 5.) Defendant did not establish that the charge off date alters the four year statute of limitation on collections on a debt, which accrues on the last payment on the debt. (Code Civ. Proc. §337, sub. (b) [four year statute begins to run from the date of the last item].) A triable issue of fact exists if the letter from defendant dated 9/28/22 was an attempt to collect a stale debt. (15 USC 1692e [use of false, deceptive or misleading representations as a means of debt collection is a violation of the act].

A triable issue of fact exists if reference to intent to report the debt to credit reporting agencies is a permissible intent to invoke a “specified remedy of debt collectors” when the debt itself may be barred by the statute of limitations. (UMF 13.)

Defendant’s motion for summary judgment is denied.

Case No. 22C 0046

TLCC v. Stratford Public Utility District et al.

TLCC’s Motion for Attorneys’ Fees After Appeal

October 24, 2023 at 10:30 a.m. in D-8, J. Chrissakis

The motion is denied without prejudice to its renewal following a final determination in the matter. (Urbaniak v. Newton (1993) 19 Cal.App.4th 1837, 1837.) Code of Civil Procedure Section 1021.5 provides in relevant part: “Upon motion, a court may award attorneys' fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any.” (Millview County Water Dist. v. State Water Resources Control Bd. (2016) 4 Cal.App.5th 759, 768; Morgan v. Imperial Irrigation Dist. (2014) 223 Cal.App.4th 892, 929 [each element must be satisfied to justify a fee award].)

With respect to whether Petitioner is a “successful party” under section 1021.5 or whether the action has resulted in enforcement of an important right protecting the public interest, the court is inclined to agree with Petitioner. The court disagrees with Respondents’ assertion that there was no change in their conduct as a result of the court of appeals’ opinion, especially in light of the court of appeals’ determination that “it is a near certainty that [Stratford Public Utility District] failed to comply with CEQA” and the parties’ representations in the related case that the project at issue is to be stayed pending CEQA review, following issuance of the appellate opinion. (See Tulare Lake Canal Company v. Stratford Public Utility District (2023) 92 Cal.App.5th 380, 390.) While Petitioner does appear to acknowledge the temporal nature of this benefit, in stating that the “procedural right is being presently enforced pending the end of this case,” (Reply at 4), it is difficult to state that the appeal failed to “secure any additional environmental review of the project” since that appears to be precisely what has resulted from the appeal. (Cf. Canyon Crest Conservancy v. County of Los Angeles (2020) 46 Cal.App.5th 398, 410 [citing, and distinguishing, cases involving a change made by the public entity as a result of the lawsuit]; Leiserson v. City of San Diego (1988) 202 Cal.App.3d 725, 736 [city’s voluntary action to revise its manual did not render plaintiff a “successful party” under section 1021.5, based on a lack of evidence to support a causal relationship between plaintiff’s tort action and the manual revision].) It further appears that the appeal conferred a significant benefit on the public by clarifying and/or expanding the law relating to CEQA and the potential harm to the public interest in an agency’s lack of informed decision-making and public disclosure, especially since the decision was published. (TLCC, supra, 202 Cal.App.3d at 411, 415; Leiserson, supra, 202 Cal.App.3d at 737 [“Whether a published opinion clarifies and/or expands the law is probative of whether [plaintiff] has satisfied the substantial benefit concept underlying the private attorney general rule. Similarly, if that opinion is published because it satisfies the criteria for publication . . . , such status is also probative of whether the decision clearly vindicates a right where the reason for publication was to announce a rule not found in previously published opinions.” [citations omitted].)

However, the court does not find that Petitioner has demonstrated that the burden of pursuing the appeal outweighed its own individual interest in the litigation such that TLCC has acted as a “true private attorney general”. (Millview County Water Dist. v. State Water Resources Control Bd. (2016) 4 Cal.App.5th 759, 769.) “An award on the ‘private attorney general’ theory is appropriate when the cost of the claimant’s legal victory transcends his own personal interest, that is, when the necessity for pursuing the lawsuit placed a burden on the plaintiff ‘out of proportion to his individual stake in the matter.’” (Id. at 768 [citing Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1215, 1217-1218; Summit Media LLC v. City of Los Angeles (2015) 240 Cal.App.4th 171, 187.) “Section 1021.5 was not designed as a method for rewarding litigants motivated by their own pecuniary interests who only coincidentally protect the public interest.” (Id. at 769 [citing Davis v. Farmers Insurance Exchange (2016) 245 Cal.App.4th 1302,1329, 1330].) TLCC does not appear to dispute that its interests in protecting its canal will be protected in this case. TLCC asserts instead that the related trespass action exists to protect its interests in the canal and that Sandridge has failed to explain what “‘personal’ interest TLCC has in this CEQA litigation beyond its role as a good corporate citizen.” (Reply at p. 6.) However, the burden is on the party requesting section 1021.5 fees to demonstrate all elements of the statute, including that the litigation costs transcend his or her own personal interest. (Millview, 4 Cal.App.5th at 769 [citation omitted].) The court does not find that TLCC has presented adequate evidence to demonstrate that its concern about continued operation of its canal is not, on its own, adequate incentive to litigate such that it acted as a true private attorney general in this action. (Id. at 768-769.)

Tentative Ruling for Monday October 23, 2023, for Department 2, Judge Edwards presiding

Cupa v Harris Feeding Company et. al. Case No. 22 C0159

The court grants the motion by CVM Holding to deem the opposition timely filed. The court has reviewed the opposition in connection with this motion to compel.

Plaintiff’s motion to compel further production of documents and further deposition of custodian of records in response to requests 1-208 is granted. During the deposition of Mike Casey, Vice President for Risk Management and Custodian of Records (COR) for Central Valley Meat Holding Inc (Hereafter CVM Holding) ( a party to this lawsuit), the deponent admitted that he searched for insurance policies for CVM Holding and found one excess policy but believes there is another policy. He is attempting to retrieve a copy of this excess policy from the insurance broker. (Decl Beecher Ex 3 page 20-21 ecourt page 329 et seq) The opposition did not address this document request. Absent assurances the document will be provided, the motion is granted. (CCP §2025.480, subd. ( a).)

The moving and reply points and authorities note that the deponent admitted not reviewing any of his emails or the emails of anyone else at CVM Holding. The deponent’s email addresses are for Harris Ranch Beef and CVM. The deponent admitted having access to those emails. The opposition does not address why further production of the emails should not ordered. The opposition takes the position that Casey is the COR of CVM Holding, not the COR of CVM Inc (the employer of plaintiff) and that even though Casey admitted he had access to all the records of CVM Inc., due to his position as VP of Risk Management, since he is not the COR of that entity, it would be pointless to produce the documents since he cannot attest that the documents were prepared in the ordinary course of business. The scope of discovery is broader than the scope of admissibility. (CCP §2017.010.) There is no compelling reason why the deponent should not be required to produce documents, which he admitted he has access to, as a result of his position as VP of Risk Management. (CCP §2025.480, subd. (d ) [CVM Holding has the burden of demonstrating the information is from a source that is not reasonably accessible because of undue burden or expense].)

Plaintiff’s motion to compel is granted. Further production is due 20 days after service of notice of ruling. The court declines to award the $10,000 in sanctions sought by counsel ($985 per hour times 8 hours to draft the motion and separate statement, 2 hours for the reply and 1 hour for the hearing.) The court, however, will grant $3060 in sanctions. ($300 times 10 hours plus filing fees). Sanctions are payable by defendant, and or defendant’s counsel within 30 days from service of notice of ruling.

Case No. 22C 0158

Heather Lee Mallard v. Patti Diane Bookwalter et al.

Motion to Reopen Fact and Expert Discovery and Motions Concerning Discovery

Motion for Leave to Augment Expert Witness Designation

Motion for Relief from Waiver of Objections

Motion to Set Aside 4/13/23 and 8/22/23 Orders

October 19, 2023 at 10:30 a.m. in D-2, J. Edwards

Motion to Reopen Fact and Expert Discovery and Motions Concerning Discovery

The motion to re-open discovery is granted for the limited purposes indicated in the motion, i.e., to obtain an IME of Plaintiff, issue subpoenas and obtain documents, conduct depositions of treating physicians, and conduct expert discovery. On motion of any party the court may reopen discovery after trial has been continued to a new date, so long as the court considers any relevant matter, including (1) the necessity and reasons for the additional discovery sought, (2) the diligence or lack of diligence by the party seeking discovery, and the reasons why the discovery was not completed, (3) whether permitting the discovery or granting the discovery motion will likely prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar or prejudice any party, and (4) the length of time elapsed between any date previously set and the date presently set for trial. (Code Civ. Proc. §2024.050(b); Cal. Practice Guide: Civil Procedure Before Trial ¶¶8:457-8:460.) The motion must also be accompanied by a declaration showing a reasonable and good faith attempt to resolve the matter informally. (Code Civ. Proc. §2024.050(a).)

Here, the court considers these factors and finds that discovery should be reopened and the cut-off date extended to correspond to the new trial date. In previously declining to continue the discovery cut-off dates within its ruling on the ex parte application to continue trial, the court noted Defendants’ ability to file a motion to reopen discovery, which they have now exercised. The court finds that prior counsel’s inability to manage the discovery demands of this case, while not dispositive, is relevant, especially in light of current counsel’s diligent efforts to rectify prior counsel’s omissions. The trial date in this case has been reset to July 2024 and the court does not find that granting the motion will prevent the case from going to trial, otherwise interfere with the trial calendar, or prejudice any party. However, as the court does not seek to encourage the serious deficiencies of prior counsel, discovery will be reopened as stated above for the limited purposes cited in Defendants’ motion. Requests to conduct additional discovery may be sought pursuant to an additional motion to expand the scope of discovery.

Motion for Leave to Augment Expert Witness Designation

The motion for leave to augment the expert witness designation is granted. The court must grant such a motion where the court has taken into account the extent to which the opposing party has relied on the list of expert witnesses, the court has determined that any party opposing the motion will not be prejudiced in maintaining the party’s action or defense on the merits, and the court has determined that the moving party failed to determine to call the expert witness as a result of mistake, inadvertence, surprise, or excusable neglect and the moving party has sought leave to augment promptly and promptly served a copy of the proposed expert witness information on the other party. (Code Civ. Proc. §2034.620, subds. (a)-(c).) Here, the court takes into account the minimal extent to which Plaintiff has relied on the list of expert witnesses and has determined that Plaintiff will not be prejudiced in maintaining her action on the merits, especially since the change in designation is solely due to the location of the proposed expert. Further, the court determines that the failure to designate the proposed expert is the result of excusable mistake and inadvertence based on counsel’s reasonable failure to designate an expert within 75 miles of Plaintiff’s residence in counsel’s haste to designate expert witnesses immediately upon associating into the case. Defendants have sought leave to amend and served Plaintiff with the proposed expert information promptly. Accordingly, the motion is granted.

Motion for Relief from Waiver of Objections

The motion for relief from waiver of objections is denied. Code of Civil Procedure sections 2030.290, 2031.330, and 2033.280 permit the Court to grant a party’s motion for relief from the waiver of objections if the party shows that (1) it has served a response that is in substantial compliance with the discovery act, and (2) the failure to timely respond was the result of mistake, inadvertence, or excusable neglect. While the parties do not appear to dispute that Defendants later served a response in substantial compliance with the Discovery Act, the court does not find that Defendants have established that the failure to timely respond to the discovery requests at issue was the result of mistake, inadvertence, or excusable neglect. Defendants appear to rely heavily on Attorney Harvey’s April 13, 2023 Declaration in Response to Plaintiff’s Motions to Compel, submitted by prior counsel, in which he states that his firm “simply [does not] have the ability to cover all the cases” and that the defense “has lost contact with both defendants and has no way to respond to plaintiff’s discovery.” (¶¶1-2.) Without further details and explanation—from, for instance, updated declarations from prior counsel or additional supporting declarations from Defendants—the court is disinclined to reevaluate its prior decision that Defendants waived their objections by failing to timely respond to the discovery requests. Accordingly, the motion is denied.

Motion to Set Aside 4/13/23 and 8/22/23 Orders

The motion to set aside the court’s April 13, 2023 and August 22, 2023 orders is denied. Under Code of Civil Procedure section 473, subdivision (b), the court may relieve a party from an order taken against them to his or her mistake, inadvertence, surprise, or excusable neglect. While the court is sympathetic to Defendants’ and current counsel’s attempt to remedy to course of the instant litigation following prior counsel’s failures, the court finds that Defendants have not established mistake, inadvertence, surprise, or excusable neglect. As noted in the ruling on the motion for relief from waiver of objections, additional explanation is necessary for whether prior counsel’s failure to respond to discovery and to file any opposition to 8 motions to compel can be said to constitute mistake, inadvertence, surprise, or excusable neglect. Further, Defendants do not appear to address the failure by current counsel to file any opposition to the motion for discovery sanctions (or request a continued hearing on the motion), which was set to be heard nearly three weeks after current counsel associated into the case and a week after current counsel substituted in as Defendants’ official legal representative at the time the motion was heard. The court notes that to the extent Defendants are concerned they will be precluded from presenting evidence relating to damages, the court notes that the August 22, 2023 order denied Plaintiff’s request for evidentiary sanctions. Based on the foregoing, the motion is denied and the court’s prior orders remain in effect.

Tentative Rulings for Thursday October 19, 2023, for Department 2, Judge Edwards presiding

Haigh v General Motors LLC 22C-0311

The objection to the declaration of Huizhen Lu is sustained as it is dated 2018 and does not refer to any particular document request to which a trade secret objection is asserted that cannot be addressed within the context of the protective order agreed to by the parties.

Motion to compel further responses is granted as to the following requests on the grounds that defendant did not submit code compliant responses. (Code Civ Proc. §§ 2031.210, 2031.220 and 2031.240.) Defendant specified the documents they would produce while at the same time asserting objections based on burden, relevance, trade secret, and attorney client privilege. GM agreed to “comply” in part “subject to and without waiving any objections.” A further response is required that specifies the documents to which objection is made and if the objection is based on privilege, provide a privilege log. (CCP §2031.240 (c )(1).) The parties have stipulated to a protective order and production of confidential documents are ordered to be produced in the manner set forth therein. (1,2,3,7,11,12.)

#1 Documents relating to subject vehicle in your databases.

#2 Documents relating to the subject vehicle including warranty records, customer contacts, field reports, dealer contacts

#3 Studies of root cause of failure analysis of parts repaired and replaced on subject vehicle. (response was GM not aware of any part sent off for analysis. Here transmission parts were allegedly replaced so response must be in form of 2031.230 [inability to comply].

#7 technical service bulletins, alerts, extended warranties for subject vehicle. (GM agreed as to TSB and ISB for same year, make, model and any recalls but response was “subject to and without waiving objections and agreed to “comply in part.” This is not code compliant under 2031.240.

#11 communications between plaintiff and GM concerning subject vehicle. Again, GM made objects and agreed to “comply in part” which does not track CCP §2031.240.

#12 all presale documents made available to purchasers/lessees concerning disclosure of problems with 6-speed transmissions. GM refused to produce documents and objected on the basis of confidential, trade secret and attorney client privilege objections Again, GM did not comply with 2031.240.

#17 emails internal investigation concerning transmission defects in Cadillac vehicles with 6 speed transmission like subject vehicle. GM refused to produce documents and objected on confidential, trade secret and attorney client privilege objections Again, GM did not comply with 2031.240 (or 2031.230 if the position is no such documents exist).

#21 emails and ESI concerning root cause problem solving efforts to identify potential defects, malfunctions to 6 speed transmission Cadillac vehicles. GM refused to produce documents and objected on confidential, trade secret and attorney client privilege objections. Again, GM did not comply with 2031.240 (or 2031.230 if the position is no such documents exist).

#22 emails ESI with other entities involved in problem solving efforts to identify problems with 6 speed transmission in Cadillac vehicles. GM refused to produce documents and objected on overbroad, not relevant, confidential, trade secret and attorney client privilege objections. Again, GM did not comply with 2031.240 (or 2031.230 if the position is no such documents exist).

#25 emails and ESI when members of your recall committed first learned of defects to transmission in Cadillac Vehicles. GM refused to produce documents and objected on overbroad, not relevant, confidential, trade secret and attorney client privilege objections. Again, GM did not comply with 2031.240 (or 2031.230 if the position is no such documents exist).

#27 emails ESI to your engineers employees or part suppliers concerning common parts failures for 6 speed Cadillac. GM refused to produce documents and objected on overbroad, not relevant, confidential, trade secret and attorney client privilege objections. Again, GM did not comply with 2031.240 (or 2031.230 if the position is no such documents exist).

#31 all failure mode and effects analysis reports concerning transmission defects in 6 speed Cadillacs. GM refused to produce documents and objected on overbroad, not relevant, confidential, trade secret and attorney client privilege objections Again, GM did not comply with 2031.240 (or 2031.230 if the position is no such documents exist).

#33 all vehicle warranty history reports for 6 speed Cadillacs repurchased or replaced with 2 or more warranty repair attempts. . GM refused to produce documents and objected on overbroad, not relevant, confidential, trade secret and attorney client privilege objections. Again, GM did not comply with 2031.240 (or 2031.230 if the position is no such documents exist).

#34 All vehicle warranty history reports for Cadillac Vehicles you purchased or replaced that you were unable to repair within 30 days due to concerning regarding the 6 speed transmission. GM refused to produce documents and objected on overbroad, not relevant, confidential, trade secret and attorney client privilege objections Again, GM did not comply with 2031.240 (or 2031.230 if the position is no such documents exist).

#36 emails and ESI concerning decision to issue campaigns, technical service bulletins concerning 6 speed Cadillacs. GM agreed to comply “in part” subject to the objections and agreed to produce the TSB and ISB for vehicles with the same make model year as subject vehicle. As noted above this response is not code compliant.

#41 all documents regarding the transmission defects in 6 speed Cadillacs. GM refused to produce documents and objected on overbroad, not relevant, confidential, trade secret and attorney client privilege objections. Again, GM did not comply with 2031.240 (or 2031.230 if the position is no such documents exist).

#42 emails and ESI concerning fixes for the 6 speed Cadillac. GM refused to produce documents and objected on overbroad, not relevant, confidential, trade secret and attorney client privilege objections. Again, GM did not comply with 2031.240 (or 2031.230 if the position is no such documents exist).

#43 reports, warnings by your engineers or suppliers concerning the transmission defects in the 6 speed Cadillacs. . GM refused to produce documents and objected on overbroad, not relevant, confidential, trade secret and attorney client privilege objections. Again, GM did not comply with 2031.240 (or 2031.230 if the position is no such documents exist).

#51 emails, software release notes for all software release for the transmission. GM refused to produce documents and objected on overbroad, not relevant, confidential, trade secret and attorney client privilege objections. Again, GM did not comply with 2031.240 (or 2031.230 if the position is no such documents exist).

#56 documents you use since 2013 to evaluate customer request for repurchases or replacements under Song Beverly. GM refused to produce documents and objected on overbroad, not relevant, confidential, trade secret and attorney client privilege objections. Again, GM did not comply with 2031.240 (or 2031.230 if the position is no such documents exist).

#58 training manuals used since 2013 on lemon law repurchase requests. GM refused to produce documents and objected on overbroad, not relevant, confidential, trade secret and attorney client privilege objections. Again, GM did not comply with 2031.240 (or 2031.230 if the position is no such documents exist).

#59 warranty policy and procedure manual you have provided to repair facilities in California since 2013. GM refused to produce documents and objected on overbroad, not relevant, confidential, trade secret and attorney client privilege objections. Again, GM did not comply with 2031.240 (or 2031.230 if the position is no such documents exist).

#68 lemon law documents you provide to your employees and agents. GM refused to produce documents and objected on overbroad, not relevant, confidential, trade secret and attorney client privilege objections. Again, GM did not comply with 2031.240 (or 2031.230 if the position is no such documents exist).

#72 point of sale training materials you provide to your authorized deale3rs one yer prior to sale of subject vehicle concerning 6 speed Cadillac. GM refused to produce documents and objected on overbroad, not relevant, confidential, trade secret and attorney client privilege objections. Again, GM did not comply with 2031.240 (or 2031.230 if the position is no such documents exist).

#73 your recall policies and procedures. GM refused to produce documents and objected on overbroad, not relevant, confidential, trade secret and attorney client privilege objections. Again, GM did not comply with 2031.240 (or 2031.230 if the position is no such documents exist).

#76 your ESI and email communications to NHTSA or EPA concerning transmission defects in Cadillacs GM refused to produce documents and objected on overbroad, not relevant, confidential, trade secret and attorney client privilege objections. Again, GM did not comply with 2031.240 (or 2031.230 if the position is no such documents exist).

#78 all early warning reports you submitted to NHTSA concerning Cadillacs. GM says these documents are on NHYSA website and are equally available. The response was subject to the objections made and the response was not code compliant as set forth above.

# 79 all transportation, recall enhancement accountability and documentation reports submitted concerning Cadillac vehicles. GM refused to produce documents and objected on overbroad, not relevant, confidential, trade secret and attorney client privilege objections. Again, GM did not comply with 2031.240 (or 2031.230 if the position is no such documents exist).

#82 analysis and reports received from part suppliers concerning transmission defects in the 6 speed Cadillac vehicles. GM refused to produce documents and objected on overbroad, not relevant, confidential, trade secret and attorney client privilege objections. Again, GM did not comply with 2031.240 (or 2031.230 if the position is no such documents exist).

Further verified responses and documents are due 20 days from service of notice of ruling. Sanctions in the sum of $3750 are ordered payable by GM and/or counsel within 30 days of service of notice of ruling.

Tentative Rulings for Wednesday, October 4, 2023, for Department 2, Judge Edwards presiding

Cupa v Harris Feeding Company Case No. 22C-0159

Plaintiff’s motion to compel production of documents through deposition subpoena

Case law provides that the time in which to file a motion to compel production of documents sought by a non-party deposition subpoena is 60 days after service of objections. (Rutledge v Hewlett Packard (2015) 238 Cal. App. 4th 1164, 1192; Board of Registered Nursing v Superior Court (2021) 59 Cal.App.5th 1011, 1032) It is undisputed that nonparty Central Valley Meat Co. Inc (CVM)’s objections were served by email on 2/22/23. This motion was not filed until 8/11/23.

Plaintiff relies on Code of Civil Procedure section 2025.410 in arguing that CVM’s objections were not timely asserted because they were made two days, not three days before the production date of 2/24/23. Plaintiff argues that CVM’s objections have been waived. However, CCP §2025.410 relates to objections to a deposition notice by a party to the action. CVM is not a named defendant. No authority was cited to support the assertion that the time to file objections to a deposition notice, as set forth in CCP §2025.410, applies to objections by a nonparty to a request for production of documents by a certain date. If no objections had been asserted by CVM before the date of production on 2/24/23, then the 60 day time limit on the motion to compel would have commenced on the date of production. (Board of Registered Nursing, supra 59 Cal. App 5th at 1033[ the nonparty's compliance with the subpoena is clear on the date specified for production. It has either produced documents as requested in the subpoena, or not. On that date, the subpoenaing party has all of the information it needs to meet and confer regarding the nonparty's compliance and, if unsatisfied, prepare a motion to compel].)

Accordingly, even if CCP § 2025.410 did apply to CVM, the waiver of objections would not extend the 60 day time limitation on bringing the motion to compel to make timely a motion filed 8/11/23.

The court also finds that at no time did CMV counsel in writing waive or extend the 60 day time limitation to bring a motion to compel by producing some of the requested documents in an unverified email. (Decl. Balch ¶ 5.) By analogy to extensions of time to compel discovery from a party, a written agreement to extend the time is required. (Code Civ. Proc §2031.310, subd. (c).)

The motion to compel was not timely filed. The motion is denied. The court declines to award sanctions to CVM and finds that an award of sanctions would be unjust under the circumstances of this case where nonparty CVM was alleged to have multiple interrelationships with defendant. (Decl Guillen ¶ ¶2, 7.) (Decl. Guillen ¶ 4 opposing counsel verbally agreed to produce documents and agreed plaintiff’s motion deadline would start once documents were produced. Documents were produced 6/12/23. No affidavit from the Custodian of Records accompanied the production. ¶5 further meet and confer discussions ensued.)

Pro Hac Vice Application

Defendant FPEC is seeking to associate attorney Griffin. Griffin is an attorney from Arkansas and a partner in a personal injury law firm. He is an attorney in good standing. Notice was given to State Bar and $50 fee was paid. The Arkansas lawyer signed his declaration. The application is granted.

Case No. 22C 0046

Tulare Lake Canal Company v. Stratford Public Utility District et al.

Sandridge Partners, L.P.’s and Roller Land Co.’s Motion to Quash Deposition Notice and Subpoena

September 28, 2023 at 10:30 a.m. in D-8, J. Chrissakis

The motion is granted, in part, and notice of deposition and deposition subpoena are quashed. As an initial matter, because the scope of review in CEQA cases is largely restricted to the record, discovery is generally not allowed. (Cadiz Land Co. v. Rail Cycle, L.P. (2000) 83 Cal.App.4th 74, 117-123; Western States Petroleum Ass’n v. Superior Court (1995) 9 Cal.4th 559, 570-576.) Moreover, TLCC has failed to establish the relevancy of the evidence sought, namely, the deposition testimony of John Vidovich as to his knowledge regarding the Pipeline Project. As the Fifth District held in its opinion reversing the court’s order denying the preliminary injunction, and which is therefore now the law of the case, the failure of an approving agency to conduct any preliminary review, to obtain information about the whole of the activity constituting the proposed project, and to determine whether the proposed project was exempt from CEQA, constitutes a “near certainty” that the agency has failed to comply with CEQA. (Tulare Lake Canal Company v. Stratford Public Utility District et al. (2023) 92 Cal.App.5th 380, 390.) In other words, an approving public agency has a duty to investigate a project before approval and the failure to investigate is a violation of CEQA. TLCC has not demonstrated how information derived from Sandridge by way of a deposition of one of its partners is therefore relevant to the court’s determination as to whether CEQA has been violated.

The court is aware of the appellate court’s acknowledgment as to Sandridge’s “obligation to provide information” about the project. (Tulare Lake, supra, 92 Cal.App.5th at 409.) However, this obligation relates to the public agency’s ability to require a person to submit data and information to that agency in order to determine the effects of the proposed project before approval. (Pub. Resources Code §21160) In other words, CEQA “does not allow a private person to keep information about the activity secret when that person wants agency’s approval.” (Tulare, supra, 92 Cal.App.5th at 410.) Nevertheless, in the context of a discovery motion, the evidence sought must be reasonably calculated to lead to admissible information and the test for admissibility is relevance. (Evid. Code §350; Cadiz, supra, 9 Cal.4th at 117.) Here, absence of any information about the pipeline and the agencies’ failure to investigate in light of that absence on its own constitutes the basis for the CEQA violation. Consequently, further discovery as to the knowledge of a representative of a private entity as to the nature of this absent information is not relevant for the court to determine whether a violation of CEQA occurred in this case.[1]

Based on the failure to demonstrate the relevancy of the evidence sought, the motion to quash the deposition notice and subpoena is granted in part. The deposition notice and subpoena are hereby quashed. The court declines to enter a protective order at this time, since there is a foreseeable possibility that additional discovery requests and corresponding motions may be brought asserting valid bases for compelling discovery responses from Respondents, and a protective order precluding such would be premature. Additionally, the court declines to enter an award of sanctions on the motion.

[1] In contrast, certain information known to Sandridge via Mr. Vidovich, may be relevant for issues to be addressed in the related case (22C 0019) involving the respective property rights and related disputes of the private entities. Here, however, because it is the conduct, or lack thereof, of public agencies which is at issue here, discovery as to the conduct of private entities is not necessarily relevant to the CEQA determinations to be made in this case. (Guidelines section 15002, subdivision (c) [“Private action is not subject to CEQA unless the action involves governmental participation, financing, or approval.].)

Case No. 22C 0046

Tulare Lake Canal Company v. Stratford Public Utility District et al.

Angiola Water District’s Demurrer to the Fourth Amended Petition

September 28, 2023 at 10:30 a.m. in D-8, J. Chrissakis

The hearing on the demurrer is continued to October 12, 2023 at 10:30 a.m. in Department 8.

Case No. 23C 0064

Damarus Marie Fugate et al. v. Hanford Community Hospital dba Adventist Health Hanford et al.

Defendant Satish Kesavaramanjum, M.D.’s Demurrer to Plaintiff’s Complaint

September 28, 2023 at 10:30 a.m. in D-8, J. Chrissakis

The demurrer is sustained with leave to amend.

To state a cause of action for intentional infliction of emotional distress, a plaintiff must allege that (1) defendant’s conduct was outrageous, (2) defendant either intended to cause emotional distress or acted with reckless disregard for the probability that plaintiff would suffer emotional distress, knowing that plaintiff was present when the conduct occurred, (3) plaintiff suffered severe emotional distress, and (4) defendant’s conduct was a substantial factor in causing plaintiff’s severe emotional distress. (CACI 1600; Christensen v. Superior Court (1991) 54 Cal.3d 868, 903; Davidson v. City of Westminster (1982) 32 Cal.3d 197, 209.) A defendant acts with “reckless disregard” in causing emotional distress if defendant either knew that emotional distress would probably result from his conduct or defendant gave little or no thought to the probable effects of his conduct. (CACI 1603; KOVR-TV, Inc. v. Superior Court (1995) 31 Cal.App.4th 1023, 1031-1032; Little v. Stuyvesant Life Insurance Co. (1977) 67 Cal.App.3d 451, 462.) “Where reckless disregard of the plaintiff’s interests is the theory of recovery, the presence of the plaintiff at the time the outrageous conduct occurs is recognized as the element establishing a higher degree of culpability[.]” (Christensen, supra, 54 Cal.3d at 868 [underlining and italics added].) Thus, even where reckless disregard is the basis for recovery under IIED, the threshold inquiry is whether the alleged behavior is sufficiently extreme and outrageous. A defendant’s conduct is “outrageous” when it is so “extreme as to exceed all bounds of that usually tolerated in a civilized community.” (See, e.g., So v. Shin (2013) 212 Cal.App.4th 652, 671 [patient adequately alleged that anesthesiologist engaged in extreme and outrageous conduct when, after patient complained of waking up during surgery, anesthesiologist brought container of blood and tissue that had been removed during surgery into recovery room and showed it to her]; Hughes v. Pair (2009) 46 Cal.4th 1035, 1050-1051 [trustee’s alleged sexual advances toward decedent’s former wife were not extreme or outrageous conduct to support liability for IIED]; Davidson v. City of Westminster (1982) 32 Cal.3d 197, 209, 210 [absent an intent to injure the plaintiff, police failure to intervene during attack by assault suspect under surveillance was, at most, poor police procedure]; see generally 5 Witken, Summary of California Law (11th ed. 2017) Torts, §525 [illustrative examples of outrageous and non-outrageous conduct].)

Here, Plaintiff fails to allege conduct rising to the level of extreme outrageous. The complaint alleges that Defendant Kesavaramanjum negligently and improperly failed to remove a lap pad/sponge from Plaintiff’s right lower quadrant within the surgical area after failing to conduct proper lap pad/sponge counts or follow established procedures for counting and tracking surgical items. (¶¶19, 33, 40.) While these allegations sound in medical malpractice, such conduct—the failure to properly follow procedure for count surgical items—does not rise to the level of outrageous conduct that is so extreme as to exceed all bounds of that usually tolerated in a civilized community. As such, the Complaint does not state a cause of action for intentional infliction of emotional distress.

Leave to amend is granted. The court orders the amended complaint to be filed and served within thirty (30) days of service of this order.

Tentative Rulings for Wednesday, September 20, 2023, for Department 2, Visiting Judge Oakley presiding

RE Slate 1 LLC v Canadian Solar (USA) Inc. 23C-0053

First Cause of Action

Defendant’s demur to the first cause of action for payment of delay liquidated damages (DLD) is overruled. The complaint alleged that defendant was to deliver the modules each week commencing in November of 2020, with the last delivery to be May 31, 2021. (Compl. ¶11) The last delivery, however, was alleged to be January 2, 2022. (Compl ¶21) The contract provided that delay liquidated damages (DLD) would be paid for delays in delivery exceeding 7 days, with $1750 due for a delay 8 to 28 days and $2500 a day for a delay over 28 days. (Compl. ¶16) The complaint alleged that defendant “continually failed to deliver the designated quantity of Modules by each of the Module Delivery Deadlines specified in the Contract.” (Compl ¶20). Plaintiff paid the amount due and owing under the contract. (Compl ¶18) But in April of 2022, plaintiff sought DLD in the sum of $13 million. (Compl ¶¶22, 26.).

Defendant contends that the contract implicitly required plaintiff to notify defendant if modules in the required quantity were not received promptly after receipt of an installment invoice. Defendant contends this requirement was in the nature of a condition precedent. Defendant relied on various provisions of the contract to support this assertion. (Section 3.2 [DLD were payable on a monthly basis within 7 days of the calendar month, or 30 days from receipt of invoice]; Section 4.6 [plaintiff may dispute quantity of modules delivered]; Section 8 of the addendum contract allowing for credit to plaintiff of any “undisputed” DLD on payment of the installment invoice]; Section 13.1 [requiring prompt notification of any dispute].) Defendant contends plaintiff is precluded from recovering DLD by its untimely notice in April of 2022, after delivery of the modules was completed.

Whether a contract provision is a condition precedent normally depends upon the intent of the parties, as determined by the words of a contract. (Pfeifer v Countrywide Home Loans Inc (2012) 211 Cal.App.4th 1250, 1267.) Here, plaintiff takes the position that notice of the delays in delivery was not a clear and unambiguous condition precedent in the contract between the parties. (Colaco v Cavotec SA (2018) 25 Cal.App.5th 1172, 1183.)

Plaintiff further argues that it is not required to plead the evidence specifying which deliveries were delayed, the length of the delay, and when DLD accrued as to each installment delivery in order to state a cause of action for breach of contract by defendant’s failure to pay DLD after the April 2022 invoice for the same was issued. (CA v William S Hart Union High School Dist (2012) 53 Cal.4th 861, 872 [plaintiff need not allege evidentiary facts; plaintiff need only allege ultimate facts that give rise to a cause of action].)

As noted by plaintiff, dependent covenants or conditions precedent are not favored in the law. A court shall not construe a term of the contract so as to establish a condition precedent absent plain and unambiguous contract language to that effect. (Colaco, supra 25 Cal.App.5th 1172, 1183.) CACI No 321 provides that where defendant contends it is not required to perform due to the existence of a condition precedent, defendant has the burden of proof that the condition precedent exists. If it’s existence is proven, then plaintiff must prove that the condition was performed or excused.

The court finds that the contract did not unambiguously make payment of DLD contingent on plaintiff’s notification to defendant of a delay in delivery of the modules during the performance of the contract. The contract does not set forth consequences for the failure to comply with the notice provisions, which is typical of a condition precedent. (Alpha Beta Food Mkts v Retail Clerks Union Local 770 (1955) 45 Cal.2d 764, 771; Colaco supra 25 Cal.App.5th at 1183 [to construe covenants as dependent is to work a forfeiture as to one party].) The assertion of notice as a condition precedent may be asserted by defendant as an affirmative defense to payment of DLD. Defendant’s demurrer for failure to state facts sufficient to state a cause of action is overruled.

Second cause of action

When the contract between plaintiff and defendant was entered into in April of 2020, the sale of solar modules was exempt from international tariffs. (Compl ¶31.) This was altered by a proclamation in October of 2020 by President Trump. (Compl. ¶32.) In November of 2021 the tariff exemption was reinstated by the US Court of International Trade, the proclamation was found unlawful and tariffs were ordered refunded with interest. (Compl. ¶33, 34.) The contract was amended in November of 2020, to require that should tariffs be changed to decrease the contract amount due, then half of such decrease was to be allocated to plaintiff buyer by way of a change order due to plaintiff’s payment of half the tariff. (Compl. ¶35.) A change order seeking half the tariff paid by plaintiff ($12.5 million) was submitted to defendant on September 30, 2022. (Compl. ¶36.)

Defendant asks the court to take judicial notice of existing litigation surrounding the tariff exemption, the proclamation, the reinstatement of the exemption by final judgment, the stay of the reinstatement order pending appeal, the appeal of the order that the tariffs collected be returned and the docket of the federal court. Defendant contends that the second cause of action is not ripe for review in that the right of plaintiff to return of half the tariffs paid by plaintiff is an issue being litigated in federal court. Defendant further notes that it has not been repaid the $25 million in tariffs that were paid, and defendant should not be required to refund payments plaintiff made under the contract unless defendant is repaid tariffs collected by CBP (US Customs and Border Protection).

Plaintiff did not file an objection to the court taking judicial notice of the records provided by defendant in connection with its demurrer. Normally, a court may take judicial notice of judgments and particular documents filed with a court, but not the truth of the allegations contained therein. (Richtek USA Inc v u PI Semiconductor Corp (2015) 242 Cal.app.4th 651, 659-660.) The court agrees to take judicial notice of the documents which the parties agree reflect that the United States was enjoined from issuing tariff reimbursements pending a final decision on appeal. (Ex C [US is enjoined from “issuing instructions to liquidate….any entries of merchandise subject to the modifications to the safeguard measures on crystalline silicon photovoltaic cells, whether or not partially or fully assembled into other products, imposed by Proclamation 10101 pending final and conclusive dispositions of this action, including all appeals”].)

The court finds that the issue of plaintiff’s entitlement to a refund of the tariffs collected is a present dispute between the parties. Plaintiff relies on a judgment that held the tariffs were imposed outside the authority of the President and should be refunded. The contract between the parties provided that if there was a change in the tariffs such that there was a decrease in the contract amount, plaintiff was entitled to half the decrease. The court agrees with plaintiff that section 5.1 (Change order requests) does not appear to apply to refunds under the Addendum section 9.3. The court further agrees with plaintiff that the dispute is ripe for review. Judicial economy would not be served by requiring plaintiff to dismiss the complaint and refile should plaintiff’s right to reimbursement be affirmed by the federal courts. Nor is the relabeling of the cause of action as a request for declaratory relief required, given that plaintiff’s contractual reimbursement right was stayed by an outside court. By analogy to a bankruptcy stay, the claim by the creditor exists and stems from an actual controversy between the parties, but the payment of the claim is stayed by an outside court.

Defendant’s demur to the second cause of action seeking a refund of tariffs paid under the contract is overruled.

Case No. 23CU 0188

Rogelio Silva et al. v. Jersey Creek Dairy, Inc.

Demurrer to Plaintiffs’ Complaint

September 19, 2023 at 10:30 a.m. in D-2, Visiting Judge

Plaintiffs are directed to file and serve their First Amended Complaint (“FAC”), and the hearing on the Demurrer to the initial Complaint will be taken off calendar. Per Code of Civil Procedure Section 472, subdivision (a), a party may amend its pleading once without leave of court before a demurrer is heard, if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer. The court construes Plaintiffs’ attachment of the Proposed FAC to their timely opposition, together with their request in the opposition that the court accept the Proposed FAC for filing, as complying Section 472. Defendant is ordered to file its responsive pleading within thirty (30) days after service of the FAC. (Code Civ. Proc. §471.5, subd. (a).)

The court declines to address the adequacy of the allegations in the Proposed FAC since doing so would be premature, as the proposed pleading has not yet been filed.

Case No. 18C 0256

A.F.C. v. Kings County et al.

Plaintiff’s Petition for Approval of Minor’s Compromise

Defendant NaphCare Inc.’s Motion to Seal Minor’s Compromise

September 7, 2023 at 8:15 a.m. in D-2, J. Edwards

Grant petition for approval of the minor’s compromise and set a review hearing re status of funding of the annuity.

With respect to the motion to seal, Defendant NaphCare seeks to seal the entire minor’s compromise, including those portions of the Petition relating to Defendants Kings County and Sheriff Robinson. However, those Defendants have not joined in the motion and are not included in the NaphCare settlement agreement nor have they presented a separate agreement that contains a confidentiality provision or any other bases for sealing the aspects of the minor’s compromise relating to those Defendants.

In order to grant a sealing motion, the court must expressly find facts that establish: (1) there exists an overriding interest that overcomes the right of public access to the record; (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. (CRC Rule 2.550(d).) The court notes that a stipulation or lack of opposition to the motion is not sufficient to justify sealing. (CRC Rule 2.551(a).) Here, while there is an overriding interest in protecting Plaintiff’s financial information as well as the goal of facilitating settlement between the parties, the motion is not narrowly tailored to seal only those portions of the petition that relate to the moving party, i.e., NaphCare Inc. Defendants Kings County and Sheriff Robinson have not presented their own evidence or settlement agreement to establish, inter alia, whether confidentiality is a material term of their settlement(s) with Plaintiff.

Unless Defendant is able to establish that the motion is narrowly tailored to seal certain portions of the petition for approval of a minor’s compromise—and that it will facilitate settlement between the parties, while serving Plaintiff’s overriding interest in protecting her financial information—then Defendant is not entitled to an order sealing the petition.

Case No. 22C 0358

Jennifer Perez et al. v. GM LLC

Plaintiffs’ Motion to Compel Further Discovery Responses from Defendant, and Request for Sanctions (continued)

September 7, 2023 at 8:15 a.m. in D-2, J. Edwards

As the parties have reached an agreement regarding RFP Nos. 16, 19-31, and 45-46, the motion as to these requests is now moot and will not be addressed further by the court. With respect to RFP Nos. 37-41, the motion to compel is granted. As addressed in greater detail in the court’s previous tentative ruling on the motion, Defendant GM has not demonstrated a valid objection to these requests. GM’s arguments in its supplemental declaration filed August 21, 2023 do not address the information sought by RFP Nos. 37-41 and thus GM has presented no authority in opposition to the courts tentative ruling as to these requests. Because GM has not demonstrated a valid objection based on burden, overbreadth, irrelevance, trade secret, or other privilege, the court grants Plaintiffs’ motion to compel and orders Defendant GM to produce documents responsive to RFP Nos. 37-41, in compliance with Code of Civil Procedure section 2031.280, within ten (10) days of service of this order.

In light of the parties’ resolution of the majority of the discovery requests without court intervention, the court modifies its previous tentative ruling with respect to the request for monetary sanctions and orders sanctions in the amount of $1,070.00 payable by Defendant GM and its attorney, jointly and severally, payable to Knight Law Group LLP within thirty (30) days of service of the Order.

Tentative Rulings for Friday, September 1, 2023, for Department 2, Judge Edwards presiding

Galvan v State of California Department of Corrections and Rehabilitation D-2

19C-0121 Judge Edwards

CDCR’s brought a motion for summary judgment. CDCR did not alternatively seek summary adjudication. The operative complaint only named CDCR as a defendant. It contained two causes of action for: 1) liability based on a failure to summon medical care for a serious and obvious medical condition requiring immediate medical care (Gov Code §845.6); and 2) negligence based on a special duty of care arising from the jailor-inmate relationship. (Goc Code §815.2 [liability for acts of employees], 15 CCR §3004 [rights and respect of others and Giraldo v CDCR (2008) 168 Cal.App.4th 231, 248. ) The second cause of action did not specifically allege medical malpractice, although allegations suggesting the same were alleged. (FAC ¶21 [knew or should have known plaintiff was a suicide risk], ¶ 22[failure to place plaintiff in a custodial environment where he could not harm himself] ¶23 [such failure caused foreseeable self-harm] ¶24 [damages].)

In opposing the summary judgment motion, plaintiff cited extensively to CDCR’s suicide prevention policy and set forth facts establishing that it had been determined by mental health professions at the California Health Care Facility, Stockton that plaintiff was a suicide risk and had active plans to commit suicide. (Opp UMF 2, 3.) After approximately 10 days, plaintiff was transferred to CSATF’s Enhanced Outpatient Program, requiring mental health monitoring. (UMF 2, 3, 5.) In opposing the summary judgment, Plaintiff cited to evidence from the state’s suicide prevention policy that a triable issue of fact existed that plaintiff should not have been transferred from his mental health care bed in Stockton, but having been transferred to CSATF, plaintiff should have been on suicide watch at CSATF. (OPP UMF 5, 6.) This would have necessitated welfare checks every half hour for the first 24 hours. (Opp UMF 6.)

The declarations presented by defendant indicate no one spoke to plaintiff after his late night (11:38 pm) transfer until 10:50 am the next morning (March 24, 2018). At that time, a psychiatric technician met with plaintiff and found that he did not express that he was thinking of self- harm, plaintiff denied that he could not stop thinking of self-harm, plaintiff did not appear to be in any distress and plaintiff indicated he just wanted to sleep. (UMF 7, 8, 9-11.) The technician determined plaintiff was not in need of immediate medical care. (UMF 12)

Within an hour after this interview, plaintiff attempted suicide by jumping off the second tier of cells and landed on the floor. (UMF 14, 15.) It is undisputed that CDCR personnel immediately responded to the emergency code and immediately provided medical care. Plaintiff was promptly transported plaintiff to a hospital. (UMF 14-22.) In response to UMF 23 [no CDCR employee present before the suicide attempt knew or had reason to know that plaintiff required immediate assistance] plaintiff contended there was a failure to communicate to the employees plaintiff’s suicide risk history, including an active suicide threat made by plaintiff the day before his transfer. The same history from Stockton was cited in response to UMF 25 [plaintiff did not make a request, nor exhibit any behavior indicating he was in need of immediate medical care]. Plaintiff does not recall letting anyone know of his suicidal feelings, “Yeah, I don’t remember talking to anybody on the day of the incident.”

Plaintiff did not add additional facts to the separate statement but did submit an evaluation report dated 1/7/2019 focused on a mental health evaluation before plaintiff’s parole, a 2019 annual report on suicide prevention, excerpts from the 2009 revision of CDCR suicide policy, discharge report dated April 9, 2018, after plaintiff’s suicide attempt and medical records cited to in the opposition separate statement. Plaintiff also submitted a Declaration from Sandra Salazar M.D. Board certified in Family Medicine with emphasis in Family Medicine and Emergent Care Medicine. She opines that a suicide risk is increased by failure to provide ongoing welfare checks to a patient removed from a mental health unit, plaintiff should have been kept in the mental health unit, he should have been on suicide watch with frequent welfare checks and these failures contributed to and resulted in his suicide attempt.

The court sustains the objection to the declaration from Dr. Salazar on the grounds that her qualification was “ Family Medicine and Emergent Care” but there was no discussion of the education or experience needed to offer expertise as an urgentologist. Dr. Salazar does not describe expertise in the area of mental health in a correctional setting and has not demonstrated she is qualified to offer an expert opinion as to plaintiff’s mental health treatment. The court also sustains the objection to plaintiff’s attachment of excerpts from the suicide prevention policy in that no foundation was provided. The pages reference a 2019 report (after plaintiff’s suicide attempt) and a 2009 revision rendering it unclear as to the policy recommendations in place during the operative time period. The court sustains CDCR’s objections (##10-11) to the California State Hospital Report written by a contract psychologist for the purposes of determining if mental health treatment was required as a condition of parole. (Pen. Code §2962.) The report is hearsay, and it lacks foundation.

The first cause of action seeks liability against CDCR based on the narrow exception to immunity under Government Code section 845.6. This code section provides in pertinent part:

Neither a public entity nor a public employee is liable for injury proximately caused by the failure of the employee to furnish or obtain medical care for a prisoner in his custody; but, except as otherwise provided by Sections 855.8 and 856, a public employee, and the public entity where the employee is acting within the scope of his employment, is liable if the employee knows or has reason to know that the prisoner is in need of immediate medical care and he fails to take reasonable action to summon such medical care.

In opposition to CDCR’s assertion that at no time prior to the suicide attempt did any CDCR personnel know or have reason to know that plaintiff required medical assistance, plaintiff cited to the state’s suicide prevention program. (Ex D and Calif Code of Regs., tit .15 section 1030 [this regulation does not contain any specific every half hour evaluation of an inmate transferred from a mental health crisis bed].). It highlights the need to monitor those inmates who present a suicide risk, to have an intake screening prior to a housing assignment, to have provisions facilitating communication between transport officers, staff and mental health professionals in relation to suicide risk and supervision depending on the suicide risk. The plaintiff notes that his medical records reflected that plaintiff stated a plan to commit suicide just the day before his transport.

Plaintiff argues that CDCR was negligent in its failure to follow the suicide prevention program and this negligence should be factored into a “knows or has reason to know” that the prisoner is in need of immediate medical care. Plaintiff argues this counters the five declarations filed by CDCR by personnel at the time of the incident that, “Plaintiff did not make any request or exhibit behavior that informed any assigned CDCR personnel of the need for immediate medical care, nor were they aware of any request made by any other inmate regarding plaintiff’s need for immediate medical care.”

Government Code section 845.6 bases liability on a failure to summon medical care, not any malpractice in furnishing or obtaining that medical care. (Castaneda v CDCR (2013) 212 Cal.App.4th 1051, 1070.) Government Code section 845.6 does not create vicarious liability for the medical malpractice of its employees. (Watson v State of California (1993) 21 Cal App.4th 836 at 842) Liability is limited to serious and obvious medical conditions requiring immediate care. (Lucas v County of Los Angeles (1996) 47 Cal.App.4th 277, 288.) The “must know or have reason to know” is equivalent to an objective standard. (Ibid.)

Here, the psychiatric technician on duty on the day in question knew plaintiff had been discharged from a higher level of care and knew of the need for an evaluation by a mental health clinician within 24 hours of arrival of CSATF and for ongoing follow up. (Dec. Ramos ¶5-¶6) The technician did not observe any self harm behavior, such behavior was denied by plaintiff, his affect was normal and he did not make any indication of being in distress. The technician determined plaintiff was not at risk of self harm (Decl. ¶6-¶7.)

CDCR argued in its reply points and authorities that the decision to move plaintiff from a crisis bed to an outpatient facility and what monitoring should have resulted thereafter is not encompassed into the statutory exception to immunity set forth in Government Code section 845.6 which requires the condition to be serious, obvious and requiring immediate care. Reply argues that challenging how preventive medical measures were carried out amounts to a medical malpractice claim that falls outside the narrow exception to immunity under section 845.6. (Kockelman v Segal (1998) 61 Cal.App.4th 491, 505 [medical professionals who are caring for and treating mentally disturbed patients know of facts from which they could reasonably conclude that the patient would be likely to self-inflict harm in the absence of preventative measures, then those caretakers must use reasonable care under the circumstances to prevent such harm from occurring].)

This court agrees with CDCR that plaintiff failed to raise a triable issue of fact that CDCR is liable under Government Code section 845.6 because CDCR employees knew or should have known plaintiff was at risk of suicide and immediate care was needed. The facts presented by plaintiff do support a triable issue of fact as to medical malpractice, and the second cause of action in the complaint suggested a medical malpractice claim. However, CDCR was the only defendant named in the 2019 lawsuit. CDCR is immune from liability for medical malpractice and/or liability stemming from a special relationship under Government Code section 844.6. (Castaneda, supra 212 Cal.App.4th at 1070-1071.) Given that the original complaint was filed in March of 2019, it is now too late to add medical professional defendants to a medical malpractice claim. (Code Civ. Proc. §583.210 and Higgins v Superior Court (2017) 15 Cal.App.5th 973, 982 [even where the filing of an amended complaint on a Doe defendant relates back to the filing of an original complaint, the plaintiff must nonetheless identify and serve a Doe defendant with a summons and complaint within three years of the commencement of the action].)

CDCR’s motion for summary judgment is granted.

Tentative Rulings for Thursday, August 31, 2023, for Department 8, Judge Chrissakis presiding

Housing Authority of County of Kings v Deshazor Case No. 23UD0197

Tenant’s motion for judgment on the pleadings was served by overnight mail on 8/23/23. Opposition was filed without objection to the 8 day notice given. Reply has not been filed to date.

Friedman et al., Cal. Practice Guide: Landlord-Tenant (The Rutter Group 2022) ¶¶ 7:107 to 7:108. Pp 7-73 to 7-74 states “rent” excludes damages suffered or late charges and thus a §1161 (2) notice ordinarily cannot demand these items. The section then discusses an exception where the lease defines late charges as “additional rent.” The landlord relies on these cases due to a provision in the subject lease that does define the $15 late charge as additional rent.

However, a review of the cases reveal that a commercial/ business lease was at issue. Notice of rent due in commercial leases is governed by Code of Civil Procedure section 1161.1, which allows estimates of rent due in the notice. (WDT-Winchester v Nilsson (1994) 27 Cal App.4th 516, 526.) Other objections to the inclusion of late charges in a notice are that they consist of invalid liquidated damages. (Del Monte Properties & Investment Inc v Dolan (2018) 26 Cal.App.5th Supp 20, 24.) The treatise advises that a separate notice under Code of Civil Procedure section 1161 (3) be given for late charges.

Because the notice at issue in this case included late charges and ambiguous and undefined “maintenance and repair charges,” the motion for judgment on the pleadings is granted without leave to amend. (Ernst Enterprises v Sun Valley Gasoline (1983) 139 Cal.App.3d 355, 359 [A notice to pay rent or quit which overstates the rent due is ineffective and will not support an action for unlawful detainer]; Levitz Furniture Co v Wingtip Communications Inc (2001) 86 Cal.App.4th 1035, 1038.) The case is dismissed without prejudice.

Tentative Rulings for Tuesday, August 22, 2023, for Department 2, Judge Edwards presiding

Jimenez Jr. v. Central Valley Meat Co., Inc. 22C 0377

The sanction order was filed on 2/28/23. It recited in detail the basis for the sanction award of $4000 against plaintiff law firm, to be delivered to AAA within 60 days of service of the order.

The award of sanctions to non-party AAA may be promptly set forth in a judgment against plaintiff law firm and AAA may promptly seek payment as any creditor would on a money judgment. AAA is hereby authorized to obtain a money judgment against the plaintiff law firm in the sum of $4000.

The court declines to award an additional $3500 in attorney fees. Case law supports executing on a judgment, as a way to collect a sanction award. (Newland v Sup Ct (Sugasawara) (1995) 40 Cal.App. 4th 608, 615.) These orders have the force and effect of a money judgment, and are immediately enforceable through execution.

Case No. 22C 0332

Alec T. Hiben v. Subaru of America, Inc.

Defendant’s Motion for Summary Adjudication of Plaintiff’s First, Fourth, and Fifth Causes of Action

August 22, 2023 at 10:30 a.m. in D-2, J. Edwards

The motion for summary adjudication is granted as to the first, fourth, and fifth causes of action. The court is persuaded by the analysis in Rodriguez v. FCA US, LLC (2022) 77 Cal.App.5th 209, 222-223, review granted, 512 P.3d 654, and agrees that the definition of “new motor vehicle” set forth in Civil Code section 1793.22(e)(2) does not include a used car purchased from a retail seller simply because there is some balance remaining on the manufacturer’s warranty. Here, the parties do not appear to dispute that the vehicle was previously owned at the time of sale with 11,521 miles on the odometer. As such, it does not fall within the definition of a “new motor vehicle” under the Song-Beverly Act.

Plaintiff does not alter the court’s conclusion with his reliance on Kiluk, which involved the sale of a certified preowned Mercedes Benz “accompanied by an additional used vehicle warranty issued by the manufacturer.” (43 Cal.App.5th 334, 336.) Plaintiff contends there exists a triable issue of fact as to whether Subaru extended a warranty to Plaintiff upon the sale of the certified pre-owned vehicle at issue. (Opp. at pp. 4-6.) Plaintiff relies on his own declaration for the assertion that Defendant offered a certified pre-owned designation, together with the terms of the service agreement which provides for an additional 7-year/100,000-mile warranty with his vehicle as part of the sale package. (Id. at 5.) Plaintiff argues that the use of the term “service agreement” does not preclude the issuance of a warranty and it should be left to the trier of fact to determine whether a warranty was created. (Id. at 6.)

However, in reviewing the “Certified Pre-Owned Service Agreement and Registration Application,” to which Plaintiff has not objected to or otherwise disputed its truth or correctness, the court notes the “Acknowledgment” portion which explicitly states: “I understand that this Certified Pre-Owned Service Agreement is a service contract, and not an insurance policy, warranty, or guarantee[.]” [Emphasis added.] Such evidence is sufficient in the court’s view to demonstrate that there exists no triable issue as to whether an express warranty was issued—at least by virtue of the service agreement—in connection with the sale of the subject vehicle. (See generally Gavaldon v. DaimlerChrysler Corp. (2004) 32 Cal.4th 1246 [addressing the distinction between a service contract and an express warranty and concluding that Section 1794 does not provide a replacement/restitution remedy for breach of a service contract].) Plaintiff’s declaration that the “additional coverage . . . included a warranty” is conclusory and otherwise unsupported by the evidence such that it is insufficient to raise a material issue of fact.

Because the foregoing analysis is applicable to the bases for Plaintiff’s first, fourth, and fifth causes of action, the court grants Defendant’s motion for summary adjudication as to the same.

Case No. 22C 0158

Heather Lee Mallard v. Patti Diane Bookwalter

Plaintiff’s Motion for An Order Imposing Monetary, Evidentiary, and Issue Sanctions Against Defendants and/or Their Counsel for Failure to Obey This Court’s Discovery Orders

August 22, 2023 at 10:30 a.m. in D-2, J. Edwards

The motion is granted in part. Generally, the court “may make those orders that are just” if a party fails to obey prior orders and the order for sanctions lies entirely within the court’s sound discretion. (Weil & Brown, Civil Procedure Before Trial § 8:2200; Pember v. Sup.Ct. (Young) (1967) 66 Cal.2d 601, 604; Sauer v. Sup.Ct. (Oak Indus., Inc.) (1987) 195 Cal.App.3d 213, 228 [trial court’s choice of sanctions subject to appellate review only for abuse of discretion].) The following factors may be relevant: the time that has elapsed since the discovery was served, whether the party received extensions of time to answer or respond, the number discovery requests and the burden of replying, the importance of the information sought, whether the answering party acted in good faith and with reasonable diligence, the number of questions remaining unanswered, the existence of prior court orders compelling discovery and the answering party’s compliance with them, whether an order allowing more time to respond would enable the responding party to supply necessary information, and whether some sanction sort of dismissal or default would be appropriate to the dereliction. (Deyo v. Kilbourne (1978) 84 CA3d 771, 796, 149 CR 499, 518; Manzetti v. Sup.Ct. (Fitzgerald) (1993) 21 CA4th 373, 379, 25 CR2d 857, 861; Deyo v. Kilbourne, supra, 84 CA3d at 796, 149 CR at 518.)

However, numerous cases hold that severe sanctions (i.e., evidence or terminating sanctions) for failure to comply with a court order are allowed only where the failure was willful. (Weil & Brown, §§ 8:2147; Juarez v. Boy Scouts of America, Inc. (2000) 81 Cal.App.4th 377, 389, disapproved of on other grounds by Brown v. USA Taekwondo (2021) 11 Cal.5th 204; Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th 1202, 1219.) The appellate courts have agreed with trial court determinations of willfulness in the context of repeated violations of prior orders or requests for discovery and those circumstances in which the responses were “willfully false.” (Lopez, supra, 246 Cal.App.4th at 605-606 [“no question” of willfulness after court required defendant to produce documents, repeated the order and several subsequent hearings, and defendant made no effort to comply with the order and instead continued to repeat its previously unsuccessful objections]; Vallbona, supra, 43 Cal.App.4th at 1545 [the record supported a finding of willful failure to comply with discovery where defendant failed to formally reply to plaintiffs’ timely and duly-served document requests, later brought documents to his deposition after testifying they had been stolen, the court twice ordered defendant to complete his deposition, and ultimately had to appoint a referee to mediate the final deposition session].) Thus, before imposing an evidentiary sanction, courts should usually grant lesser sanctions. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 796; Lopez, supra, 246 Cal.App.4th at 604 [discovery statutes evince an incremental approach, starting with monetary sanctions and ending with ultimate terminating sanction].)

In this case, no opposition has been filed and thus Defendants do not appear to dispute that they failed to timely comply with the court’s April 13, 2023 Orders. However, because the court has issued only one order for compliance with respect to these specific requests and based on the representations at the prior hearing that Defendants may be seeking new counsel, Defendants’ conduct does not appear to rise to level of “willful failure to obey” as recognized by the courts to usually include persistent failures to comply with repeated orders for compliance. (Deyo, supra, 84 Cal.App.3d at 796; Vallbona, supra, 43 Cal.App.4th at 1545; Lopez, supra, 246 Cal.App.4th at 604.) Here, therefore, the court declines to enter those evidentiary sanctions requested by Plaintiff at this time. The court denies Plaintiff’s request without prejudice to a renewed motion based on Defendants’ continued misuse of the discovery process.

As for issue sanctions, no such showing of willfulness is required. Instead, where the responding party fails to produce information relevant to the propounding parties’ claims, it is appropriate for the court to impose an issue sanction with respect to those matters. (Kuhns v. State of California (1992) 8 Cal.App.4th 982, 989 [upon defendant’s failure to produce information relevant to plaintiffs’ claim of the dangerous condition of the property and defendant’s notice thereof, it was appropriate for the court to impose an issue sanction deeming those matters admitted]; Sauer v. Superior Court (1987) 195 Cal.App.3d 213, 228-229 [plaintiff’s failure to produce information relevant to his economic loss justified sanction deeming that plaintiff suffered no economic loss from defendant’s conduct]. Here, the court previously entered its order deeming certain matters admitted, including those matters Plaintiff seeks to have established as fact by way of issue sanctions. The court grants this request and enters the following orders: (1) it shall be taken as established that Defendant Bookwalter was negligent on July 6, 2020, when Bookwalter rear-ended Plaintiff on the 11th Avenue off ramp of the SR-198 highway; (2) it shall be taken as established that Plaintiff suffered harm on July 6, 2020, when Bookwalter rear-ended Plaintiff on the 11th Avenue off ramp of the SR-198 highway; (3) it shall be taken as established that Defendant Bookwalter’s negligence was a substantial factor in the harm suffered by Plaintiff on July 6, 2020.

With respect to monetary sanctions, Plaintiff requests $1,122.50 in attorney fees and costs. The Court may impose a monetary sanction, ordering the “one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct,” unless the person subject to the sanctions acted with substantial justification. (Code Civ. Proc. §2023.030(a).) The court finds that Defendants’ failure to produce the requested discovery as set forth above constitute misuse of the discovery process without substantial justification. Accordingly, monetary sanctions are warranted and the court orders sanctions in the amount of $1,122.50 in favor of Plaintiff as against Defendants and their counsel, joint and severally, within thirty (30) days of service of this order.

Tentative Rulings for Thursday, August 10, 2023, for Department 2, Judge Edwards presiding

Garcia v General Motors 22C-0151

Plaintiff’s motion to compel further responses to requests ##1-39 is granted. Further verified responses are due within 10 days of service of notice of ruling. The court finds that defendant has not supplied declarations that support their burden/ overbroad objections or the trade secret objections. The defense attorney’s objections were conclusory and inadequate to support these objections. Any specific attorney client privilege objection shall be set forth in a privilege log. (CCP §2031.240.)

The document requests related to : GM’s policies and procedures as to how a request for repurchase or replacement of a vehicle will be deemed eligible and the customer relation procedures and practices relating to the subject vehicle [1-6]. The document requests also sought documents reflecting communications to other repair dealers relating to the same defects in the same year, make and model vehicle, as reflected in the warranty repair history of plaintiff’s 2020 Malibu. Those defects were described in the requests in three categories: [electrical [7-17], steering [18-28] and suspension defects [29-39]. The specific customer type complaints as to these categories of defects were described on the definitions page.

The court finds that the document requests are relevant and discoverable for the reasons set forth in case law. ( Donlen v Ford Motor Company (2013) 217 Cal. App.4th 138, 154], Jensen v. BMW of North America, LLC (S.D. Cal. 2019) 328 F.R.D. 557, 564.; Krotin v Porsche Cars N Am (1995) 38 Cal.App.4th 294, 303; Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 973-974, 813, 993.)

Case No. 23CU 0198

Mia Rubio ex rel. Alma Rubio v. Ana Urrutia

Motion for Trial Preference

August 7, 2023 at 10:30 a.m. in D-8, J. Edwards

The motion is denied without prejudice. Plaintiff correctly recognizes the mandatory nature of Section 36, subdivision (b), which states in pertinent part: “A civil action to recover damages for wrongful death or personal injury shall be entitled to preference upon the motion of any party to the action who is under 14 years of age unless the court finds that the party does not have a substantial interest in the case as a whole.” Plaintiff has established that she is under 14 years of age and the court declines to find that she does not have a substantial interest in the case as a whole.

However, the court disagrees with Plaintiff that there are no other considerations to be made in the court’s determination on the motion. “The underlying assumption behind section 36 is that the plaintiff has diligently engaged in preparation for trial or settlement; in those circumstances the plaintiff clearly is entitled to priority based on his or her age.” (Landry v. Berryessa Union Sch. Dist. (1995) 39 Cal.app.4th 691, 696-697.) Additionally, the Peters court did not hold that due process concerns would have no effect on the mandatory nature of section 36(b). Instead, the court declined to consider the due process argument based on lack of standing and the party’s failure to claim they would have inadequate time to prepare for trial. (Peters v. Sup. Ct. (1989) 212 Cal.App.3d 218, 227.)

The court finds it appropriate here—especially in light of the date of the incident nearly two years prior to the filing of the complaint, the service of the motion together with the service of the summons and complaint, and Defendant’s arguments as to the inability to conduct proper discovery and adequately prepare for trial, including the potential for Plaintiff’s actual damages to be unknown at the time of trial—to consider those due process concerns in ruling on the instant motion. Plaintiff has presented no authority (other than the Peters case) to support the court’s complete lack of consideration of the due process concerns presented by Defendant. (See Rose v. Sup. Ct. (Sheldon) (1990) 224 Cal.App.3d 642, 643 n.2 [recognizing that the due process implications of mandatory trial preference were not decided under Peters].)

The court reserves the right to reconsider its ruling based on evidence presented to the court that Defendant has been dilatory in efforts to move the case along, adequately respond to discovery requests, or otherwise delay proceedings in order to hamper Plaintiff’s efforts to seek trial preference. Similarly, the motion is denied without prejudice if, upon renewed motion, Plaintiff can demonstrate that trial preference will not result in inadequate time for Defendant to prepare for trial such that it denies Defendant due process.

Case No. 23CV 0230

Citibank, N.A. v. David Ballinger

Plaintiff’s Motion for Order that Matters in Request for Admission of Trust of Facts Be Admitted

August 3, 2023 at 10:30 a.m. in D-2, J. Edwards

Plaintiff’s motion is granted. Plaintiff counsel’s declaration establishes that the Requests for Admission were properly served and that no response was timely made to those requests. Additionally, no opposition has been made to the motion. The truth of all matters specified in the requests for admission are hereby deemed admitted by Defendant Ballinger. (Code Civ. Proc. §2033.280(b).) As set forth in Code of Civil Procedure section 2033.280, subdivision (c), the court may modify this ruling if, before the hearing on the motion, Defendant has served a proposed response to the requests for admission that is in substantial compliance with Code of Civil Procedure section 2033.220.

Case No. 22C 0340

Louise Alice Andermatt ex rel. Yvonne Silva v. Kings Nursing & Rehabilitation Hospital et al.

Defendant Kings Nursing & Rehabilitation Hospital, Inc.’s Motion to Strike Portions of Plaintiffs’ Complaint

July 24, 2023 at 10:30 a.m. in D-2, J. Edwards

The motion to strike is denied. As an initial matter, the motion appears to be directed to the Complaint, while a First Amended Complaint was filed prior to the filing of the motion to strike and is therefore the operative pleading to which the motion should be directed. Furthermore, the basis for the motion is that the “only statutory authority for an award of pre-judgment interest is Civil Code section 3287” and that such an award is only available where there is no dispute as to the basis of computation of damages. However, the First Amended Complaint prays for prejudgment interest based on Civil Code section 3291, which provides, in pertinent part:

In any action brought to recover damages for personal injury sustained by any person resulting from or occasioned by the tort of any other person, corporation, association, or partnership, whether by negligence or by willful intent of the other person, corporation, association, or partnership, and whether the injury was fatal or otherwise, it is lawful for the plaintiff in the complaint to claim interest on the damages alleged as provided in this section.

If the plaintiff makes an offer pursuant to Section 998 of the Code of Civil Procedure which the defendant does not accept prior to trial or within 30 days, whichever occurs first, and the plaintiff obtains a more favorable judgment, the judgment shall bear interest at the legal rate of 10 percent per annum calculated from the date of the plaintiff’s first offer pursuant to Section 998 of the Code of Civil Procedure which is exceeded by the judgment, and interest shall accrue until the satisfaction of judgment.

(See also Cal. Practice Guide: Personal Injury ¶3:62; Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 656-661; McKinney v. California Portland Cement Co. (2002) 96 Cal.App.4th 1214, 1229-1232.) Defendant’s motion does not cite or otherwise address the inapplicability of section 3291 to the case at bar and thus has presented no basis for the court to strike the prayer for prejudgment interest under that statute. The motion is denied without prejudice as to the filing of a motion to strike, directed at the First Amended Complaint and with respect to Civil Code section 3291.

Case No. 22C 0412

Martin Medina Perez et al. v. Gro-Frow, Inc. dba Visalia Buick Pontiac GMC et al.

Plaintiffs’ Motion to Compel Further Responses to First Set of Requests for Production of Documents from Defendant GM LLC, and Request for Sanctions

July 20, 2023 at 10:30 a.m. in D-2, J. Edwards

The motion to compel is continued for sixty (60) days for additional meet and confer efforts and for Defendant GM to provide Plaintiffs with supplemental responses—amended where applicable—to RFPs 16, 19-32 and 45-46. GM represents it is willing to provide, and has provided, documents responsive to these requests. However, GM does not appear to contest Plaintiffs’ assertions that GM has not identified the responses with the specific request number to which the documents respond, such that the responses do not comply with Code of Civil Procedure section 2031.280, subdivision (a). Accordingly, GM is ordered to serve verified supplemental responses identifying the specific request(s) to which the documents previously served respond, as well as an index that identifies the documents it has produced, within fourteen (14) days of service of this order.

The parties are ordered to engage in meaningful meet and confer discussions with respect RFP Nos. 37-41. To aid in the parties’ deliberative discussions, the court notes that any objection based on excessive burden or overbreadth must be supported by adequate evidence and that, in the absence of an applicable privilege, the right to discovery is broad and liberally construed. (See CCP §§2017.010, 2017.020(a); Williams v. Super. Ct. (2017) 3 Cal.5th 531, 541, 549-550; West Pico Furniture Co. v. Super. Ct. (1961); see also CCP §§2031.060, 2031.240.) The parties should also address in their discussions the extent to which the Stipulation and Protective Order adopted by the court on May 12, 2023 would or would not adequately protect the responses to these requests.

The parties are ordered to file separate declarations regarding the status of the discovery disputes no later than ten (10) days prior to the continued hearing on the motion.

The court reserves its ruling with respect to sanctions.

Tentative Rulings for Friday, July 14, 2023, for Department 2, Judge Edwards presiding

Hernandez v General Motors Case No 22C 0175

Plaintiff’s motion to compel the PMK deposition is granted. The parties should be prepared to have a deposition date set at the hearing on the motion.

Plaintiff has produced exhibits that demonstrate that a notice of PMK deposition was served on General Motors for a deposition a month away. This date was extended to June 6, 2023 by an amended notice. The plaintiff offered to set another date for the deposition if defendant’s PMK was unavailable. The plaintiff’s exhibit reflects that defendant failed to send an objection in good faith under Code of Civil Procedure section 2025.410. Instead, the defendant refused to produce a PMK, refused to produce any of the documents requested and demanded that plaintiff agree to a “coordinated efficient discovery plan across all your cases.” (Ex 4 Letter date May 17, 2023.) Defendant repeated the refusal to participate in a PMK deposition in an email dated May 23, 2023. Defendant’s opposition asserts that they objected to the deposition which was unilaterally set. However this objection ignores the fact that plaintiff was always open to discussion of a different deposition date. (EX 3 Letter dated May 22, 2023.)

A PMK deposition date will be selected at the hearing on this motion. Objections to specific questions or documents requested based on excessive burden, privilege and trade secrets may be asserted at the deposition. General Motors will be required to support the objections with declarations should plaintiff bring a motion to compel a further deposition response. (CCP §§ 2025.460, subd. (d), 2025.480, subd. (d) and Bridgestone/Firestone Inc v Superior Court (1992) 7 Cal.App.4th 1384, 1393 [the party claiming the privilege has the burden of establishing its existence].)

Tentative Rulings for Tuesday, July 11, 2023, for Department 2, Judge Edwards presiding

Galvan v State of California Department of Corrections and Rehabilitation 19C0121

CDCR brought a motion for summary judgment based on immunity for injury to an inmate. (Gov. Code §844.6 (a) Notwithstanding any other provision of this part, except as provided in this section and in Sections 814 [contract liability], 814.2 [workers compensation], 845.4 [judicial review of conviction], and 845.6 [need for immediate medical care], or in Title 2.1 (commencing with Section 3500) of Part 3 of the Penal Code [biomedical research], a public entity is not liable for: (1) An injury proximately caused by any prisoner. (2) An injury to any prisoner.].)

Plaintiff’s First Amended Complaint was filed on 9/27/2019. The first cause of action was for failure to summon medical care for a serious and obvious medical condition requiring immediate medical care. (Gov Code § 845.6.) The second cause of action was for negligence based on a special duty of care arising from the jailor-inmate relationship. (Gov Code §815.2 [liability for acts of employees], 15 CCT § 3004 [rights and respect of others] and Giraldo v CDCR (2008) 168 Cal.App. 4th 231, 248.)

Plaintiff did not object to the fact that defendant did not seek summary adjudication of each cause of action. (Code Civ, Proc. §437c, subd. (f )(1) [summary adjudication of a cause of action may be brought on the issue of duty].) Instead, plaintiff responded to defendant’s separate statement with facts to support recovery based on the failure of prison personnel to follow the state’s suicide prevention protocol and plaintiff’s inability to recall speaking to anyone prior to his suicide attempt.

Defendant’s motion directed to the second cause of action argued that the FAC did not allege medical malpractice and even if the FAC had alleged medical malpractice, there is no liability to CDCR due to the immunity to a public entity set forth in Government Code section 844.6.

This court agrees that as a matter of law, CDCR is not liable for medical malpractice, or negligence stemming from the relationship of jailor and inmate. Employees/ independent contractors employed by CDCR may be held liable for medical malpractice or negligence, but a plaintiff may not sue CDCR directly for medical malpractice/negligence. (Castaneda v Department of Corrections & Rehabilitation (2013) 212 Cal.App.4th 1051, 1070-1071 [Although the State is required to pay the judgment assessed against its employees for medical malpractice

committed against a prisoner, the State is immune from suit directly; Gov Code §844.6, subd. (d ) [ Nothing in this section exonerates a public employee from liability for injury proximately caused by his negligent or wrongful act or omission. The public entity may but is not required to pay any judgment, compromise or settlement, or may but is not required to indemnify any public employee, in any case where the public entity is immune from liability under this section; Lawson v Superior Court (2010) 180 Cal.App.4th 1372, 1383 [Although a public entity may be vicariously liable for the acts and omissions of its employees (Gov. Code, § 815.2), that rule does not apply in the case of injuries to prisoners.]

Because defendant’s motion directed to the second cause of action asserted immunity to CDCR as a matter of law, this court is considering treating the motion directed to the second cause of action as a motion for judgment on the pleadings. ( Taylor v Lockheed Martin Corp (2000) 78 Cal.App.4th 472, 478-479; Los Angeles Unified School Dist v Torres Construction Corp (2020) 57 Cal.App.5th 480, 493-494 [a summary judgment motion may be treated as a motion for judgment on the pleadings when the motion challenges the sufficient of the pleadings, rather than the evidence to support the allegations therein].) The court will entertain argument as to whether leave to amend should be granted to name individual defendants in connection with the second cause of action for negligence.

If the court construes the summary judgment motion as a motion for judgment on the pleadings as to the second cause of action, the question arises if the summary judgment motion may be construed as a motion for summary adjudication directed to the first cause of action. The court will also entertain argument on whether this court has the ability to construe the summary judgment motion as a motion for summary adjudication of the first cause of action based on the statutory exception to CDCR immunity set forth in Government Code section 844.6. (Gov Code §845.6)

Should the parties find that supplemental pleadings are in order, the parties should be prepared to have a briefing schedule and hearing dates selected, which by necessity would vacate the trial and trial related dates and require new dates to be selected.

Case No. 22C 0046

TLCC v. Stratford Public Utility District et al.

TLCC’s Motion to Compel Deposition of Angiola Water District’s Person Most Qualified

July 5, 2023 at 10:30 a.m. in D-8, J. Chrissakis

The motion to compel is granted. Angiola objects to the deposition on the basis of relevance, privilege, overbreadth, and undue burden. (Opposition at pp. 3-4.) As for relevance, the issue is whether the proposed discovery would be of a matter that “it itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence.” (CCP §2017.010.) Based on the court’s most recent ruling sustaining Angiola’s demurrer to the TAP with leave to amend, Angiola remains a party to the action. TLCC’s theory with respect to Angiola’s liability under CEQA centers on whether Angiola’s previous General Manager was authorized to execute the hold harmless letter on behalf Angiola, such that the repudiation of the project may have been ineffective. In response, Angiola asserts that “[e]ven if the previous manager had the authority to make the offer, Angiola’s subsequent decision to not participate in any way in the “project” puts an end to this CEQA case.” (Opp. at p. 5.)

However, in the ruling on demurrer, the court relied in part on the fact that the TAP lacked specific factual allegations with respect to the Board’s involvement at the time of the Hold Harmless letter as well as the fact that the basis of the repudiation was the former manager’s lack of actual authority from Angiola to execute the letter in the first instance. (Order Re: Motion a 2.) Accordingly, discovery directed to Angiola’s knowledge of and authorization for the Hold Harmless Letter meets the standard for relevance in discovery with respect to TLCC’s CEQA claims against Angiola. Moreover, and especially in light of the court’s ruling to sustain the demurrer with leave to amend based in part on the recently issued order from the appellate court, the court finds that TLCC’s motion satisfies Code of Civil Procedure section 2025.450, subdivision (b)(1) by setting forth specific facts showing good cause justifying the production of documents for inspection at the deposition.

With respect to privilege and confidentiality, the court agrees with TLCC that while Angiola’s objections may be suited to particular questions at the deposition, Angiola has not demonstrated the applicability of attorney-client privilege or of the confidentiality of closed sessions under Government Code §54950 to the entire notice such that the court could deny the motion to compel on these bases. As for overbreadth, this objection appears to be rooted in Angiola’s privilege and relevance concerns, which the court rejects based on the foregoing. Angiola does not further argue the basis of its objection on the basis of undue burden and thus does not establish this as a grounds for denying the motion.

Although TLCC’s motion does not request monetary sanctions, the court notes that if a motion under §2025.450(a) is granted, the court shall impose a monetary sanction in favor of the party who noticed the deposition, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust. The court declines to enter sanctions here. The court finds that the circumstances of this case, including in particular, the court’s initial tentative ruling to sustain the demurrer without leave to amend and the issuance of a published appellate decision during the pendency of the motion, which arguably creates new law of the case, make the imposition of a sanction unjust under these circumstances.

Case No. 21C 0394

Ayala v. General Motors LLC

Plaintiff’s Motion to Compel Deposition of GM’s Person Most Qualified

June 21, 2023 at 10:30 a.m. in D-2, J. Edwards

The motion to compel is denied for failure to comply with Code of Civil Procedure section 2025.450, subdivisions (a) and (b)(2). Section 2025.450(a) provides that a party giving a deposition notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice “[i]f, after service of a deposition notice, a [party-affiliated deponent] without having served a valid objection under Section 2025.410, fails to appear for examination.” [Emphasis added.] Section 2025.410(a) provides that a party may serve a written objection to a deposition notice, specifying the error or irregularity at least three calendar days prior to the date for which the deposition is scheduled. Here, it appears to be undisputed that Defendant served its written objections to the deposition notice on April 3, 2023, which is at least three calendar days prior to the scheduled date of the deposition on April 13, 2023. (Thomas Decl., Exh. B.) Thus, Plaintiff may not invoke section 2025.450(a) for an order compelling the deposition under these circumstances.

Additionally, when a deponent fails to attend the deposition, a motion pursuant to section 2025.450 shall be accompanied by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance. (Code Civ. Proc. §2025.450, subd. (b)(2).) Implicit in this statute is a requirement that the attorney making the inquiry must listen to the reasons offered for the nonappearance and make a good-faith effort to resolve the issue. (Leko v. Cornerstone Bldg. Inspection Serv. (2001) 86 Cal.App.4th 1109, 1123-1124 [sanctions upheld against attorney where deponent’s nonappearance was inadvertent, and attorney ignored opponent’s offer to reschedule deposition at a mutually convenient time].) Here, while Plaintiff presents a copy of his lengthy response to Defendant’s objections prior to the date and time of the noticed deposition, Plaintiff’s correspondence with defense counsel following the nonappearance is devoid of any inquiry, discussion, or deliberation with regards to the reasons for nonappearance or any efforts—good-faith or otherwise—to resolve the issue. (Thomas Decl. Exhs. C, E.) It further appears that in the same correspondence Plaintiff allowed Defendant until April 18, 2023 to provide an additional meet and confer response and concurrently conditioned the postponement of the April 13, 2023 deposition on Defendant’s offering of alternative dates. (Thomas Decl. Exh. D.) In the court’s view, this cannot constitute meeting and conferring in good faith. Finally, and as Defendant recognizes, Plaintiff seeks an order to compel attendance at the deposition and production of documents for categories to which Defendant has already agreed to respond, such that it is inappropriate to request such an order from the court. Based on the foregoing and Plaintiff’s failure to comply with the statutory requirements for the motion to compel, the motion is denied.

Case No. 23C 0054

Mario Donez, Jr. v. G & G Medical Transport, LLC et al.

Defendant G & G Medical Transport LLC’s Motion to Quash Service of Summons for Lack of Personal Jurisdiction

Defendant Sukhpal Kaur’s Motion to Quash Service of Summons for Lack of Personal Jurisdiction

June 15, 2023 at 10:30 a.m. in D-8, J. Chrissakis

The motions to quash service of summons are granted. Code of Civil Procedure section 415.20 subdivision (a) provides that when service is effected by leaving a copy of the summons and complaint at a mailing address, “it shall be left with a person at least 18 years of age, who shall be informed of the contents thereof.” Here, Defendants present evidence in the form of sworn declarations from Defendant Kaur and her son, that the summons and complaint were left with her son, who is only sixteen years of age. This is sufficient to rebut the presumption that a registered process server’s declaration is true. (Evid. Code §§ 604, 647.) Accordingly, Defendants were not properly served with the summons and complaint in accordance with §415.20(a) and the motion to granted. Plaintiff is permitted the opportunity to obtain valid service until the action becomes subject to dismissal for failure to prosecute. (Roberts v. Home Ins. Indem. Co. (1975) 48 Cal.App.3d 313, 317; California Judges Benchbook: Civil Proceedings—Before Trial §8.92.)

Case No. 22C 0358

Jennifer Perez et al. v. GM LLC

Plaintiffs’ Motion to Compel Further Discovery Responses from Defendant, and Request for Sanctions

June 5, 2023 at 10:30 a.m. in D-2, J. Edwards

The motion to compel further discovery responses is granted. GM does not appear to object to providing responses to RFP Nos. 16, 19-32, and 45-46. The parties dispute, however, whether GM has met its obligation under the Code with its responses. Plaintiffs assert that GM’s responses fail to identify the documents produced and thus Plaintiffs are unable to determine whether they are responsive to the subject requests. Under Code of Civil Procedure section 2031.280, subdivision (a), “[a]ny documents . . . produced in response to a demand for inspection . . . shall be identified with the specific request number to which the documents respond.” GM does not appear to contest Plaintiffs assertions and instead asserts it has already produced, pursuant to the stipulated protective order, documents in response to RFP Nos. 16, 19-32, and 45-46 and thus there is “nothing for this Court to compel.” (Opp. at 6.) However, the Code requires actual identification of the responsive documents. (Code Civ. Proc. §2031.280, subd. (a).) Accordingly, GM is ordered to serve verified supplemental responses identifying the specific request(s) to which the documents previously served respond, as well as an index that identifies the documents it has produced, within ten (10) days of service of this order.

With respect to RFP Nos. 37-41, Defendant has not demonstrated a valid objection. These requests include: (1) documents sufficient to identify all of GM’s OBDII codes for the same year, make, and model as the subject vehicle (No. 37); (2) documents sufficient to show all of GM’s vehicle symptom codes for the same year, make, and model as the subject vehicle (No. 38); (3) documents sufficient to show all of GM’s vehicle component repair codes for the same year, make, and model as the subject vehicle (No. 39); (4) documents sufficient to show all of GM’s customer complaint codes from 2021 to present (No. 40); and (5) documents sufficient to show all labor operation codes provided by GM to GM’s authorized dealerships from 2021 to present (No. 41). GM objects to these requests on the basis that the requests are overbroad, burdensome, and irrelevant to the subject matter of the litigation, to wit: whether a vehicle conformed to warranty within a reasonable numbers of attempts. (Opp. at pp. 6-9; Separate Statement in Opp. at pp. 19-21.) GM further objects to these requests to the extent they seek confidential, proprietary, and trade secret information. As an initial matter, GM has not presented supporting evidence of its objections on the basis of excessive burden and thus cannot assert an objection based on overbreadth either. (See Code Civ. Proc. §§2017.010, 2017.020, subd. (a); Williams v. Super. Ct. (2017) 3 Cal.5th 531, 549-550 [objection based on burden must be supported by evidence showing the amount of work required to furnish the requested discovery]; West Pico Furniture Co. v. Super. Ct. (1961) 56 Cal.2d 407, 417 [“The objection of burden is valid only when that burden is demonstrated to result in injustice.”].) GM has also not contested Plaintiffs assertion that the documents responsive to RFP Nos. 37-41 consist of approximately two pages per request, taken from a certain manual appendix, such that no significant burden exists for Defendant to produce these documents. (Memorandum at 8.)

As for relevance, the court notes that in the absence of privilege, the right to discovery is broad and this right is liberally construed. (Williams, supra, 3 Cal.5th at 538, 541.) Plaintiffs assert that the requested discovery is necessary to understand the shorthand codes used in various other responsive documents and thus are essential to generally interpreting the repair orders and internal GM documents produced in this litigation. (Memorandum in Support at 8.) The court agrees with Plaintiffs as to the relevance of these documents, under the liberal and flexible standard in discovery, as useful to provide insight into any instruction GM provides its authorized dealerships regarding the handling of particular repairs and complaints and as relevant to an analysis of GM’s potentially willful violation of the Song-Beverly Act.

With respect to GM’s objection that Plaintiffs demand production of confidential, proprietary, and commercially sensitive information that contains trade secret material, it argues that the documents sought: (1) may contain discussions of engineering, warranty, manufacturing, testing, and related financial forecasts set forth in internal communications, (2) may related to and contain confidential communications between GM employees and its suppliers, and sub-suppliers pertaining to technical, mechanical, and commercial issues and analyses, which is commercially sensitive business information that is not made available to the general public, and the disclosure of which would cause GM competitive harm, and (3) may include Personally Identifiable Information (“PII”), e.g., financial transactions, employment information, and information which can be used to distinguish or trace an individual’s identity. GM argues that wholesale disclosure of GM’s internal, confidential materials would cause GM competitive harm as well as harm in the marketplace. In support, GM provides the declaration of Huizhen Lu, the Senior Manager/Senior Technical Consultant of Engineering Analysis for GM since 2015. In his declaration, he states that “[s]ome of the engineering information GM LLC anticipates may be produced in this case describes components of the Subject Vehicle, the Subject Vehicle subparts, and vehicle performance. This information includes, among other items, design specifications, evaluations, and performance analysis relative to specifications, material selection, cost, and quality. Such information is not generally available to the public. GM LLC derives value from this information’s confidentiality and would be harmed by the loss of confidentiality.” (Lu Decl. ¶11.) Lu then addresses certain specific categories of documents that may be produced—including (1) specifications, test documents, test reports, engineering analysis and reports, compliance testing and evaluations, (2) design and assembly information, and (3) product investigation and warranty materials, and (4) meeting minutes—and states these documents contain confidential or commercially sensitive business information that is not made available to the general public, the disclosure of which would cause GM LLC competitive harm. (¶¶15-38.)

Assuming without deciding that Lu’s Declaration establishes that the categories of information discussed therein constitute trade secret or other confidential or proprietary information, GM has failed to demonstrate how the specific requests it issue, RFP Nos. 37-41—those seeking the production of documents sufficient to identify various codes used in GM’s internal documents—fall within any of the categories of information either describing components of the vehicle or engineering specifications or analysis, personally identifiable information, or information relating to confidential internal or supplier communications. GM does not appear to dispute that the codes are used as a shorthand throughout the documents it has already produced. To the extent any documents necessary for identifying the various codes might include protected information, GM has acknowledged its intent to file a Motion for Protective Order with respect to these documents and thus tacitly acknowledges that such an order would adequately protect its information. (Opp. at 9 n.1; Code Civ. Proc. §2031.060, subd. (b)(5).) Defendant has not otherwise asserted any specific privilege applicable to these documents or produced a privilege log. (See Code Civ. Proc. §§2031.060, 2031.240.) Based on the foregoing, the court orders Defendant to produce documents responsive to RFP Nos. 37-41, in compliance with section 2031.280, within ten (10) days of service of the order.

As for the requested sanctions, the imposition of monetary sanctions is mandatory against the party or attorney who unsuccessfully opposes a motion to compel, unless the court finds that the person subject to sanctions acted with substantial justification or that other circumstances make the imposition of sanctions unjust. (Code Civ. Proc. §2031.310, subdivision (h).) The court finds that Defendant’s protected information-related objection was misplaced and without substantial justification. As outlined above, Defendant’s arguments and supporting declaration do not support their objection to the specific RFP Nos. 37-41 at issue. To the extent GM asserts this objection was directed to the remaining categories it appears to have abandoned this objection by agreeing to produce documents responsive to those RFP requests. (Opp. at 6.) Instead, GM appears to have repeated various boilerplate objections to the requests—again, without tailoring the arguments to the specific documents being sought—which the court does not find to constitute substantial justification for failing to provide timely discovery responses. Thus, based on Defendant’s failure to successfully oppose the motion or otherwise demonstrate it acted with substantial justification or that other circumstances make the imposition of sanctions unjust, the court finds monetary sanctions must be entered against Defendant and its attorney. The court orders sanctions in the amount of $3,210.00 as requested in Plaintiffs’ motion, payable by Defendant GM and its attorney, jointly and severally, payable to Knight Law Group LLP within thirty (30) days of service of the Order.

Case No. 22C 0288

Leticia Adriana Smith v. General Motors, LLC

Plaintiff’s Motion to Compel the Deposition of Defendant’s Person Most Qualified

May 24, 2023 at 10:30 a.m. in D-7, J. D’Morias

The motion is denied for failure to comply with Code of Civil Procedure section 2025.450, subdivisions (a) and (b)(2). Section 2025.450(a) provides that a party giving a deposition notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice “[i]f, after service of a deposition notice, a [party-affiliated deponent] without having served a valid objection under Section 2025.410, fails to appear for examination.” Under the Code, a party may serve a written objection to a deposition notice, specifying the error or irregularity at least three calendar days prior to the date for which the deposition is scheduled. (Code Civ. Proc. §2025.410, subd. (a).) Here, it appears undisputed that Defendant served its written objection to the deposition notice on October 26, 2022, at least three calendar days prior to the scheduled date of the deposition on November 2, 2022. (Kowalski Decl. Exh. C.) Plaintiff also does not appear to dispute the objections were valid by stating the parties “are in agreement in terms of categories.” (Kowalski Decl. Exh. H; Reply at 2:3-5.) Thus, Plaintiff may not invoke section 2025.450(a) for an order compelling the deposition under these circumstances.

Case No. 22C 0258, Related Case Nos. 22C 0327, 22C 0379

Javod Barnes v. D.H. Blattner & Sons, Inc. et al

Defendants’ Motion to Consolidate

May 22, 2023 at 10:30 a.m. in D-8, J. Chrissakis

A copy of the motion must be filed in 22C 0327 and 22C 0379. (CRC 3.350(a)(1)(C) [copy must be filed in each case to be consolidated]. Otherwise, the motion to consolidate can be granted. Pursuant to Code of Civil Procedure, section 1048, subdivision (a), actions involving a common question of law or fact that are pending may be consolidated as may tend to avoid unnecessary costs or delay. Because both actions arise out of related wage and hour claims and involve overlapping time periods, and based on the lack of opposition and prejudice, the actions are consolidated, with Case No. 22C 0258 designated as the lead case for all purposes. (CRC 3.350(b) [unless ordered otherwise, the lowest numbered case is the lead case].)

Case No. 22C 0046

TLCC v. Stratford Public Utility District et al.

Angiola Water District’s Demurrer to the Third Amended Petition

May 3, 2023 at 10:30 a.m. in D-8, J. Chrissakis

The demurrer is sustained without leave to amend. The TAP continues to lack a specific factual allegation of direct activity by Angiola—as an entity or by a person supported by Angiola—and/or its support by contract, grant, subsidy loan, or other form of assistance such that CEQA-related obligations can be imposed on Angiola. (Cal. Pub. Resources Code §21065; Cal. Code Regs., tit. 14, §15378, subd. (a).) The TAP alleges that Angiola “has engaged in sustained, direct support of and assistance to the Project, including, without limitation, the offer to Petitioner of complete indemnity, as clearly expressed in [the hold harmless letter signed by former Angiola General Manager Mark Grewal].” (¶44.) However, the TAP recognizes, as did the prior iterations of the petition, that Angiola “voted to rescind its prior commitment to the Project with a resolution passed on or about March 9, 2022.” (¶45.)

Petitioner does not appear to dispute that CEQA does not apply to “[p]rojects which a public agency rejects or disapproves.” (Opp. at 7; Cal. Pub. Resources Code §21080, subd. (b)(5).) Instead, Petitioner alleges that the resolution was effectively meaningless because Angiola “has been behind [the Project]” since at least November 2021, numerous board members who voted on the resolution have financial ties to RPIs, and the Project continues to exist to Angiola’s continued benefit and enjoyment. (¶46.) The TAP also alleges that Carlo Wilcox, the current General Manager, is being compensated by Angiola for his services and that he is the “main negotiator” on the Pipeline Project. (¶47.) In opposition to the Demurrer, Petitioner focuses heavily on the timing of the resolution, arguing that the withdrawal from the project “came too late” since construction of the pipeline was already underway and the case involves Angiola’s “active commitment of funds to the ongoing construction of the project that was only taken back after they were named in a CEQA suit.” (Opp. at 5.) Petitioner asserts that Angiola did not in fact deny the project and that “through its own employees’ or agents’ prior actions committed the District’s resources to the project’s completion and future use.” (Opp. at 7.)

The court is unpersuaded. While the TAP purports to allege Angiola’s extensive involvement in the project since 2021 or earlier, the only specific factual allegation with respect to the Board’s involvement is the Hold Harmless Letter signed by its former general manager. This letter and the conduct of the former manager was directly repudiated and rejected by the Angiola Board, as having been executed without actual authority, once the matter was brought to its attention by way of, inter alia, the instant litigation. The court does not find that such a repudiation is ineffective on the basis that construction on the project had already begun, especially considering it has not yet been completed. Additionally, the allegations with respect to Mr. Wilcox do not establish any direct involvement in or support of the project by Angiola, i.e., the TAP does not establish that Mr. Wilcox’s prior actions as a private individual constitute support or assistance by Angiola solely based on his subsequent appointment as general manager. Thus, based on Angiola’s rejection of the Project, demonstrated by the March 9, 2022 Resolution, the court finds the TAP fails to state a claim for violation of CEQA by Angiola. (Cal. Pub. Resources Code §21080(b)(5); see, e.g., Las Lomas Land Co., LLC v. City of Los Angeles (2009) 177 Cal.App.4th 837, 850 [“[W]e conclude that if an agency at any time decides not to proceed with a project, CEQA is inapplicable from that time forward.”[1]].) The demurrer is sustained without leave to amend based on Petitioner’s failure to adequately amend the petition after being afforded a final opportunity to do so. (Feb. 3, 2023 Order Re: Motion at 3.)

[1] The court recognizes that Las Lomas addressed a project which had not yet begun but which was rejected before completion of a draft environmental impact report. (177 Cal.App.4th at 842.) The court therefore does not construe this holding so broadly that it would absolve an entity of its CEQA-mandated duties for projects that have already been previously approved and completed. However, where, as here, an entity repudiates any involvement in an ongoing project for which it never authorized its involvement in the first instance, the court relies on the Las Lomas for the proposition that CEQA cannot be held to apply once the entity decides not to proceed with the project.

Case No. 21C 0087 (Lead), Consolidated with 21C 0142

Pannu v. De La Cruz (21C 0087), Pannu v. Malta (21C 0142)

Plaintiff’s Motion for Preliminary Injunction

April 28, 2023 at 10:30 a.m. in D-8, J. Chrissakis

The motion is granted in part; the request for a stay away order is denied. In its April 14, 2022 Preliminary Injunction, the court declined to find that Plaintiff had demonstrated a likelihood of success on the merits of the underlying claims. (Order at p. 4, ¶6.) The court also determined that a temporary restraining order evicting Defendant from the Property would not serve to preserve the status quo until a final determination of the merits could be had. (Order at 4.) The court did find, however, that the interim harm each party was likely to sustain was significant for both parties and issued the following orders, in relevant part: (1) Defendant was restrained from dumping trash/toxic waste and/or storing old tires and other items on the property in an unlawful manner; (2) Defendant was restrained from excluding Plaintiff/his agents from entry onto the Property so long as Plaintiff entered the Property for the purpose of remediation of the toxic waste and Plaintiff via counsel provided 48 hours’ notice to Defendant, as well as other conditions relating to removal of property and temporary blockages of access; and (3) Defendant was permitted to be present so long as he did not attempt to frustrate or interrupt Plaintiff’s remediation efforts. (Id. at 4-5.)

Plaintiff now requests an order that Defendant not interfere with Plaintiff’s implementation of certain interim corrective and stabilization measures on the Property as detailed in Plaintiff’s submitted Current Conditions Report, that Defendant not accept, collect, store, and/or stockpile certain waste materials, that Defendant not dismantle automobiles or erect barriers on the Property to prevent Plaintiff from accessing the Property, that Defendant not access the Property and that he be ejected therefrom, clearing the premises of all personal work related possessions within seventy-two hours.

As previously recognized in deciding on Plaintiff’s initial motion for preliminary injunction, the court must consider: (1) the likelihood that the plaintiff will prevail on the merits, and (2) the interim harm that the plaintiff is likely to sustain if the injunction were denied as compared to the harm that the defendant is likely to suffer if the injunction were issued. (Amgen Inc. v. Health Care Servs. (2020) 47 Cal.App.5th 716, 731.) With respect to the likelihood of Plaintiff’s success on the merits, Plaintiff has not demonstrated new evidence or authority to support a different determination than previously reached by the court, i.e., that Plaintiff has not—at this point—demonstrated a likelihood of success on the merits. Accordingly, the court declines to issue an order ejecting Defendant from the premises or the other requested injunctive relief based on Plaintiff’s assertion that it is likely to prevail on the underlying claim that Defendant is not entitled to possess the Property and that Plaintiff.

With respect to harm, the court finds that the interim harm Plaintiff is likely to sustain if additional injunctive relief is denied and Defendant is permitted to commit additional unregulated waste on the Property, i.e., the further inhibition and increase of costs of Plaintiff’s remediation efforts and potential civil penalties, is significant. In comparison, the harm Defendant will suffer if he is ordered to immediately vacate the premises, including the removal of all business possessions on the Property, and enjoined indefinitely from operating his business thereon, resulting in the loss of income and goodwill, remains equally significant.

However, Defendant has not contested he has been generating hazardous waste without being a registered hazardous waste generator. While Defendant has attested to his updated “re-registration” as such, he is still awaiting formal certification. Further, it is not clear whether he is or has been complying with applicable obligations for generating such waste in the absence of such certification, which would violate the court’s prior order that any waste on the Property be committed in a lawful manner. (Order at 5, ¶1.) Thus, to ensure the Property is protected from additional unlawful waste by Defendant on the Property, the court enjoins Defendant’s generation of any hazardous waste on the Property until such formal certification is received by Defendant and subsequently submitted to the court and opposing counsel for review.

Defendant also does not appear to contest that he has been conducting automobile dismantling activities on the Property without proper licensing, which would appear to violate Vehicle Code sections 220 and 11500 and thus constitute an additional violation of the preliminary injunction. (Ibid.) Defendant is therefore ordered to cease any automobile dismantling activities on the Property until evidence of proper licensing has been obtained and submitted to the court and opposing counsel for review.

There are significant factual disputes as to Defendant’s other alleged conduct, including threats of violence against Plaintiff, his alleged unlawful cultivation of marijuana plants, and erecting barriers, as well as the presence of certain waste prior to Malta’s possession of the Property. Additionally, Plaintiff has failed to adequately specify how certain of these alleged actions make it “impossible” for him to implement his remediation efforts on the Property. Thus, the court declines to issue an order ejecting Defendant from the Property on these bases with the admonishment that Defendant’s presence on the Property shall not form an attempt to frustrate, impede, or otherwise interrupt Plaintiff’s or his agent’s efforts to implement the necessary clean-up measures, including, but not limited to, those set forth in Section 8.0 of the Current Conditions Report and as approved by the California Department of Toxic Substance Control in its February 9, 2023 Letter to Plaintiff. (See Exh. D to Plaintiff’s Request for Judicial Notice.)

With respect to Plaintiff’s conduct, it is similarly uncontested that he has failed to give the requisite 48 hours’ notice, as set forth in Page 5, Paragraph 2.B., of the court’s 4/14/22 preliminary injunction, prior to any entry by Plaintiff or his agents onto the Property. Thus, Plaintiff is again ordered to comply with these notifications requirements prior to any efforts to implement any remediation efforts, including those outlined in the immediate remediation efforts set forth in the Current Conditions Report.

The orders set forth in the court’s April 14, 2014 Preliminary Injunction remain in full force in effect and in addition to those orders issued herein. An undertaking shall be posted by Plaintiff in an amount to be determined at the hearing on the motion.

Case No. 21C 0086

Cervantes v. Hyundai Motor America (HMA)

Defendant’s Demurrer to Plaintiff’s Third Amended Complaint

Defendant’s Motion to Strike Portions of Plaintiff’s Third Amended Complaint

April 26, 2023 at 10:30 a.m. in D-8, J. Chrissakis

Demurrer

The demurrer is sustained without leave to amend as to the second cause of action. The court previously found the unpublished Ninth Circuit disposition in Schick v. BMW of North America LLC (2020) to be persuasive and to follow it in sustaining the demurrer to the SAC. (801 F. App’x 519, 521 [“[U]nder any reasonable reading of the statute, §1793.2(b) requires only that [the facility] complete any single repair attempt within 30 days.”].) Plaintiff has made no changes from the SAC in the TAC’s allegations with respect to this claim and again fails to allege a single repair facility visit lasting longer than thirty days. Instead, Plaintiff now argues that because the repair facility visits in September and October of 2019 were close in time and resulted in replacement of one of the same parts (ignition coils), these allegations support the reasonable inference that the repair attempts must be considered together to constitute a single repair attempt. (Opposition at 3.) While the court accepts the abstract possibility that two visits to a repair facility could constitute a “single repair attempt” even under Schick, Plaintiff has failed to allege so here. Plaintiff cites the reasons for the visit in September as “various concerns including the CEL coming on” and cites “with various concerns including the CEL coming on and the engine making a knocking noise” as the basis for the October visit. (TAC ¶¶19, 20.) Without additional allegations to indicate that the repair in September was unsuccessful at the time the vehicle left the repair facility and that the visit in October was a continuation of that visit, the court cannot conclude that the allegations meet the heightened pleading standard for statutory cases or otherwise state a claim under Civil Code section 1793.2, subdivision (b). (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790 [noting the general rule that statutory causes of action must be pleaded with particularity].) Leave to amend is not granted based on Plaintiff’s failure to make any alterations to the allegations relating to this claim after being afforded a final opportunity to do so. (Order Re: Motion at 3.)

With respect to the sixth cause of action for fraudulent inducement by concealment, the demurrer is overruled. The court recognizes that the relevant allegations have not been materially modified following the court’s previous ruling on demurrer. (See, e.g., TAC ¶¶106, 110.) However, in light of Plaintiff’s more developed argument on this point, the court finds that Plaintiff has adequately pled the necessary elements of a cause of action for fraudulent inducement by concealment. Plaintiff relies heavily on the analysis in Dhital v. Nissan North America, Inc. (2022) 84 Cal.App.5th 828, 843-844, which held, in part, that plaintiffs had pleaded a cause of action for fraudulent inducement by concealment based on substantially similar allegations to the instant TAC. Dhital, which was not cited previously by Plaintiff for this proposition and was not final at the time the court previously ruled on the demurrer to the SAC, is now pending review at the supreme court as of February 1, 2023. (304 Cal.Rptr.3d 82.) It is unclear whether review is limited to the applicability of the economic loss rule such that the remaining portions of the opinion are binding. In any event, the supreme court denied the request for an order directing depublication of Dhital and thus may be cited here for its persuasive value. (Ibid.; Cal. Rules of Ct. Rule 8.115, subd. (e)(1).)

In the relevant portion of the Dhital opinion, the court determined that Plaintiff had adequately pled the elements for a claim of fraudulent inducement by concealment by alleging the following: the alleged transmissions installed in numerous Nissan vehicles (including the one plaintiffs purchased) were defective; Nissan knew of the defects and the hazards they posed through premarket testing and consumer complaint that were made both to NHTSA and to Nissan and its dealers; Nissan had exclusive knowledge of the defects but intentionally concealed and failed to disclose that information; Nissan intended to deceive plaintiffs by concealing known transmission problems; plaintiffs would not have purchased the car if they had known of the defects; and plaintiffs suffered damages in the form of money paid to purchase the car. (84 Cal.App.5th at 844-845.) The court also noted that Plaintiffs alleged they bought the car from a Nissan dealership, that Nissan backed the car with an express warranty, and that Nissan’s authorized dealerships are its agents for purposes of the sale of Nissan vehicles to consumers. (Id. at 844.)

The operative TAC here contains substantially similar allegations: the alleged engines installed in certain Hyundai vehicles, including the subject vehicle, were defective (¶15); Defendant knew of the defects as early as 2012 through testing data, early consumer complaints, and data received from its network of dealers (¶¶24-25, 104a); Defendant had exclusive knowledge but intentionally concealed and failed to disclose (¶¶40, 104b-c, 105); Defendant intended to deceive plaintiffs by concealing the defects (¶44); Plaintiff would not have purchased the car if she had known of the defect (¶¶41, 109); and Plaintiff suffered damages in the form of money paid to purchase the car (¶¶13, 109). Plaintiff also adequately alleges that she purchased the vehicle from an authorized Hyundai dealership, that Hyundai backed the car with an express warranty, and that the representations of Hyundai’s authorized dealerships were authorized or ratified by an officer, director, or managing agent of Defendant. (¶¶56, 110.) Accordingly, based on the analysis in Dhital and the cases cited therein with respect to fraud by concealment, the court finds that the TAC adequately pleads its sixth cause of action for fraudulent inducement. (Hoffman v. 162 North Wolfe LLC (2014) 228 Cal.App.4th 1178, 1185-1187; Linear Technology Corp. v. Applied Materials, Inc. (2007) 152 Cal.App.4th 115, 132.)

With respect to Defendant’s argument that the allegations in the TAC are merely “repurposed” allegations with respect to the Theta II, the court is unpersuaded. The TAC—not any of the previous complaints—is the operative complaint and the allegations of fact contained in the complaint must be taken as true. (See, e.g., Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 998.) Defendant has not raised an argument of sham pleading or presented any other argument or authority for why the allegations in the TAC should be disregarded as “repurposed” or otherwise irrelevant to the claims asserted. Looking to the allegations in the operative TAC and under the analysis in Dhital, the court finds that a cause of action for fraudulent inducement by concealment has been stated.

Finally, with respect to the economic loss rule, the court again declines to rule on the issue at this time based on Defendant’s failure to raise this issue in its demurrer to the TAC, as opposed to merely asserting the argument on reply. (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial ¶7:122.9 [citing Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010].)

Motion to Strike

The motion is granted with respect to paragraph 86, since the court previously ordered this paragraph stricken without leave to amend. The motion is also granted, without leave to amend, with respect to paragraph 87 based on Plaintiff’s failure to cure the defects addressed in the ruling on demurrer to the SAC and the court’s determination above that the demurrer is sustained with respect to the second cause of action without leave to amend. The motion to strike is denied with respect to paragraph h of the prayer for relief, based on the court’s ruling on the demurrer that Plaintiff has adequately alleged facts to state a claim for fraud.

Case No. 21C 0034

Navarro et al. v. GM, LLC

Defendant’s Renewed Motion for Summary Adjudication

April 19, 2023 at 10:30 a.m. in D-8, J. Chrissakis

The motion for summary adjudication is granted. As addressed in greater detail in the court’s ruling on GM’s initial motion for summary adjudication, the court remains persuaded by the analysis in of Rodriguez v. FCA US, LLC (2022) 77 Cal.App.5th 209, review granted July 13, 2022, and agrees that the definition of “new motor vehicle” set forth in Civil Code section 1793.22, subdivision (e)(2), does not include a used car purchased from a retail seller unaffiliated with the manufacturer simply because there is some balance remaining on the manufacturer’s warranty. To the extent Jensen can be construed as presenting conflicting authority, the court views Jensen’s view in light of the particular facts surrounding the vehicle at issue in that case and the affiliation of the manufacturer with the sale and finds it readily distinguishable from the case at bar. Here, therefore, the resolution of GM’s motion turns on whether there exist disputed material facts with respect to the nature of the subject vehicle.

Again, as noted previously, the parties do not dispute that the vehicle was previously owned at the time of sale to Plaintiffs, with 61,471 miles on the odometer. (Response to SSUMF ¶2.) The parties also do not appear to dispute that the vehicle was purchased from Keller Ford Lincoln with a remaining balance on the 100,000-mile powertrain warranty and that certain repairs were conducted pursuant to the warranty. (Id. at ¶11.) The parties do, however, dispute—as they did previously—whether there exists an affiliation between Keller Ford Lincoln and Defendant GM, the manufacturer. (Id. at ¶¶3, 4.) The parties also appear to dispute whether Plaintiff received any written or other express or implied warranties from Defendant GM at the time of sale. (Id. at ¶12.)

Unlike with its prior motion, Defendant GM now presents a declaration from Mark Szymanski, Dealer Organization Manager for GM since 2004. Szymanski states that he assists in managing the contractual relationship between GM and GM-authorized dealerships across the United States, including in GM’s Western Region, i.e., California. (Szymanski Decl. ¶2.) According to the Declaration, in the normal course of business, GM generates and maintains electronic records identifying each person or entity with whom GM has entered into a “Dealer Agreement” and utilizes a system called DNPS. (Id. at ¶3.) It is through a Dealer Agreement that an automobile dealership, owned and operated independently of GM, becomes authorized to sell new GM brand vehicles and perform warranty repairs on GM brand vehicle. (Ibid.) Szymanski routinely utilizes the DNPS system and, in connection with this action, was asked to determine whether Keller Ford Lincoln is or was a GM-authorized dealership. (Id. at ¶¶4-5.) Upon querying DNPS for information, Szymanski’s search did not return any Dealer Agreements or other evidence indicating Keller Ford Lincoln had such a Dealer Agreement with GM before, in, or after June 2017. (Id. at ¶7.) Szymanski concludes that Keller Ford Lincoln is not currently a GM-authorized dealership and was not such in June 2017. (Id. at ¶8.)

While Plaintiffs appear to directly object to the Szymanski Declaration, the bases for this objection are not clearly articulated. (See Response to Separate Statement of Undisputed Material Facts ¶¶3, 4.) In any event, the court finds that such evidence is admissible and sufficient to demonstrate the lack of affiliation between GM and Keller Ford Lincoln. As such, there is no issue of fact as to whether GM, as the manufacturer, was affiliated with the seller of the subject vehicle in order to incur liability under Rodriguez or Jensen. Based on the evidence presented, the court finds that Defendant has demonstrated there exists no triable issue of material fact with respect to whether the vehicle at issue constitutes a “new motor vehicle” under Civil Code section 1793.22, subdivision (e)(2). Accordingly, Plaintiffs’ claim for breach of express warranty under the Song-Beverly Act cannot stand.

Similarly, with respect to the cause of action for breach of implied warranty of merchantability, Defendant has established that because GM did not sell directly to Plaintiffs—taking on the role of a retailer—it is not bound by the Song-Beverly Act. (Nunez v. FCA US LLC (2021) 61 Cal.App.5th 385, 399 [“[O]nly distributers and retail sellers, not manufacturers, are liable for breach of implied warranties in the sale of a used car.”]; cf. Kiluk v. Mercedes-Benz USA, LLC (2019) 43 Cal.App.5th 334, 340 [citing Civil Code §1795.5 and holding that by “partnering” with the dealership, the manufacturer “was subject to the obligations of a retailer under section 1795.5].) Based on the foregoing, the court finds that Defendant has met its burden to demonstrate that lack of affiliation and involvement of the manufacturer with Keller Ford Lincoln or the actual sale of the subject vehicle. Accordingly, summary adjudication in Defendant’s favor is also warranted with respect to the cause of action for breach of implied warranty.

Based on the court’s determination, it is not necessary to address Defendant’s request for a “cap” on damages with respect to the Song-Beverly causes of action.

Case No. 22C 0019

Tulare Lake Canal Company v. Sandridge Partners LP et al.

Demurrer to Second Amended Complaint

Motion to Strike Portions of Second Amended Complaint

April 17, 2023 at 10:30 a.m. in D-8, J. Chrissakis

The demurrer is overruled. Defendants argue that the first, second, and fourth causes of action (for permanent injunction, declaratory relief, and quiet title, respectively) cannot stand because they each incorporate the following allegation:

Tulare Lake Canal also alleges in the alternative and cumulatively, that trenching through the canal without having first secured permits for the entire project and without having completed environmental review as required by state and local statutes [including CEQA as set forth in both California’s Codes and the California Code of Regulations] is an undue burden on the easement regardless of what effect the trenching will have on Tulare Lake Canal’s use of the easement and operation of the canal itself.

(¶¶32, 42, 56.) Defendants argue that by raising CEQA non-compliance, Plaintiff’s failure to allege exhaustion of administrative remedies deprives the court of jurisdiction over these causes of action. Defendants also argue that the allegations are barred because the same issue is pending in the CEQA matter, and that the causes of action are not ripe.

A demurrer challenging the court’s power to grant relief is functionally similar to a demurrer for failure to state a cause of action, and therefore is deemed a “general demurrer.” (Weil & Brown, §7:64 [citing Buss v. J.O. Martin Co. (1966) 241 Cal.App.2d 123, 133; Holiday Matinee, Inc. v. Rambus, Inc. (2004) 118 Cal.App.4th 1413, 1421].) If the facts in the complaint state a cause of action under any legal theory, the general demurrer must be overruled. (Sheehan v. San Francisco 49ers, Ltd. (2009) 45 C4th 992, 998, 89 CR3d 594, 599 [general demurrer may be upheld “only if the complaint fails to state a cause of action under any possible legal theory” (emphasis added)]; Cellular Plus, Inc. v. Superior Court (1993) 14 Cal.App.4th 1224, 1231.) The court must liberally construe a pleading’s allegations and whether the allegations are subject to different reasonable interpretations, the court must draw inferences that are favorable to the plaintiff. (Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1238-1239.)

In this case, the demurrer itself recognizes that the first, second, and fourth causes of action rely only in part only in part on the allegation of a CEQA violation. (Points and Authorities at 9.) Defendants do not purport to negate an essential element of the challenged causes of action, nor does it appear they would be successful in doing so. The case centers around TLCC’s rights as the holder of the dominant tenant of the Canal and the alleged actions of Defendants to interfere with TLCC’s right of way. (SAC ¶14-16.) With respect to each cause of action, the SAC alleges TLCC holds an exclusive, or alternatively ordinary easement, and that it owns the canal itself. (¶8.) In support of the first cause of action for permanent injunction, the SAC further alleges that: (1) the pipeline project will render the easement unusable for its intended purposes of delivering water, (2) the operation and maintenance of the pipeline will pose a constant and continued threat to the easement’s function, (3) installation of a pipeline without cognizance and mitigation of its effect on TLCC’s water delivery requirements is an undue burden on the easement, (4) trenching through the right of way held by TLCC without either permission or bonds and insurance protecting the features of the right of way is an undue burden on the easement, (5) the operation and maintenance of a pipeline through the easement and under the easement’s purpose poses a perennial threat to the easement’s function, (6) the potential use of replacement water poses a further threat of irreparable harm by requiring use of groundwater, and (7) an injunction is necessary to prevent the undue interference with the easement’s purpose caused by the installation of the pipeline and the clear threat of multiple actions that will be made against TLCC for which Sandridge can simply breach its hold harmless agreement. (¶¶27, 29-31, 33-36.) The court finds that these allegations, if true, state a cause of action for permanent injunction based on Defendants’ alleged interference with TLCC’s rights with respect to the use of the canal. The allegation that trenching through the canal without having first secured necessary permits or environmental review is, on its own, an undue burden on the easement, does not negate an essential element of this cause of action to support sustaining the demurrer.

Similarly, with respect to the second cause of action for declaratory relief, the SAC adequately alleges facts to state such a claim, since, in addition to incorporating the allegations in each paragraph of the SAC, it states that “[a]n actual controversy has arisen between Tulare Lake Canal and Roller Land Co. about the rights and obligations of the parties under the [grant] documents creating and defining the right of way” for purposes of installing, operating, and maintaining the canal and that actual steps have been taken towards implementing the pipeline project in a manner violative of TLCC’s rights. (¶¶12-15, 22-24, 38, 39.) For the fourth cause of action for quiet title, the SAC alleges that Sandridge and Roller Land Co. are asserting rights they do not have to TLCC’s right of way and that trenching through the right of way held by TLCC is an undue burden on its right of way and on its ownership of the Canal, whether or not the easement is exclusive. (¶¶54, 55.) The court finds that TLCC has alleged facts sufficient to state a cause of action for both declaratory relief and quiet title and declines to adopt the view that the inclusion of an allegation of CEQA noncompliance negates essential elements of either claim.

As for Schmid v. City and County of San Francisco (2021) 60 Cal.App.5th 470, as relied on by Defendants, that case does not stand for the proposition that a demurrer to a cause of action that includes an allegation of a CEQA violation must be sustained for failure to allege exhaustion of administrative remedies. The claim at issue in Schmid was claim for writ relief under CCP §1094.5 resting, in part, on Defendant’s alleged failure to conduct CEQA review. (Id. at 485.) In addressing whether the Complaint could assert such a cause of action based on an alleged CEQA violation, the court agreed with the trial court’s conclusion that Schmid had ignored the administrative review requirements and presented his CEQA objections only to an appellate board lacking jurisdiction over a CEQA appeal. (Id. at 492.) The court did not, however, address or determine whether a cause of action for injunctive relief, declaratory relief, or quiet title, which rests only in part on an allegation of purported non-compliance with CEQA, is vulnerable to demurrer for failure to allege exhaustion of administrative remedies. Del Cerro Mobile Estates v. City of Placentia (2011) 197 Cal.App.4th 173 is similarly distinguishable in that the “non-CEQA” claims in the subject complaint do not appear to have rested on facts other than the City’s alleged violations of CEQA, including, as relevant here, the purported easement rights of the parties. (197 Cal.App.4th at 422-423.)

The demurrer also cannot be sustained for lack of ripeness or based on the related CEQA action. In contrast to Del Cerro, supra, as cited by Defendants and wherein the court found that only a potential course of action was “float[ed]” by the defendant, TLCC alleges here the particular steps taken toward implementing the project in a manner allegedly inconsistent with TLCC’s rights. (¶¶12-15, 22-24.) Further, the related action does not bar these causes of action since the parties does not stand in the same relationship in both suits, i.e., Sandridge and Roller Land are not Defendants in case number 22C 0046 as they are in this case. (Plant Insulation Co. v. Fibreboard Corp. (1990) 224 Cal.App.3d 781, 787.) Further, even if the demurrer could be sustained on this ground, the proper order is not dismissal but an abatement of further proceedings pending termination of that action. (Id. at 788.)

Based on the foregoing, the demurrer is overruled.

-o0o-

The motion to strike is granted with leave to amend. The motion seeks to strike from the SAC the same paragraph(s) giving rise to the demurrer, i.e., nos. 32, 42, and 56, based on their “suggestion” that Defendants failed to complete any sort of environmental review. (Points & Authorities at 2.) Defendants argue that the allegations are “false”, “improper”, and “irrelevant” within the meaning of Code of Civil Procedure §436, subdivision (a).

The grounds for a motion to strike a false matter inserted in a pleading are limited to matters appearing on the face of the challenged pleading or matters which must or may be judicially noticed. (Code Civ. Proc. §§436, 437, subd. (a); Evid. Code §§451, 452.) Irrelevant matter includes an allegation that is not essential to the claim, that is neither pertinent to nor supported by an otherwise sufficient claim, or that is requesting relief that is not supported by the allegations of the complaint. (Code Civ. Proc. §431.10, subdivisions (b)(1), (b)(2), (b)(3).) A motion to strike may be made to challenge a portion of a cause of action where the purported claim of right is legally invalid. Motions to strike for this purpose should be used sparingly, however, and not to afford parties a procedural “line item veto.” (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682-1683; Cal. Benchbook, Civil Proceedings—Before Trial, §12.92.)

The challenged paragraphs allege that any trenching through the canal “without having first secured permits for the entire project” and “without having completed environment review as required by state and local statutes [including CEQA . . .]” would constitute an undue burden on TLCC’s easement. (¶32, 42, 56.) While Defendants correctly identify that “private action is not subject to CEQA unless the action involves governmental participation, financing, or approval,” (San Diego Citizenry Group v. County of San Diego (2013) 219 Cal.App.4th 1 [quoting CEQA Guidelines, 14 CCR §15002, subd. (c)]), Defendants’ argument does not actually address whether the failure of a private actor to secure permits and comply with regulations for a project ahead of its construction could result in an undue burden on another party’s easement. Without reaching the merits of such a claim, the court recognizes that, if Defendants’ purported failure to comply with necessary requirements prior to the construction of the pipeline resulted in the installation and subsequent removal of the pipeline, such events could constitute an undue burden on TLCC’s easement of the canal.

However, the challenged paragraphs of the SAC allege that the undue burden that would result constitutes an undue burden “regardless of what effect the trenching will have on Tulare Lake Canal’s use of the easement and operation of the canal itself.” (¶32, 42, 56.) The allegation therefore focuses not on the effect that Defendants’ alleged conduct, if proven, would have on TLCC’s easement but instead on the allegedly violative conduct itself (e.g., failure to secure permits or to obtain environmental review). Accordingly, the court finds that such an allegation is not essential or otherwise pertinent to the statement of the claims for permanent injunction, declaratory relief, or quiet title. (Code Civ. Proc. §431.10, subds. (b)(1), (b)(2).) Paragraphs 32, 42, and 56 are hereby stricken from the SAC and Plaintiff is granted leave to amend these portions of the SAC within thirty (30) days of service of this order.

Case No. 22C 0158

Mallard v. Agler, Bookwalter

Plaintiff’s Motions to Compel Responses to Form Interrogatories, Special Interrogatories, and Request for Production of Documents and to Have Requests for Admissions Deemed Admitted against Agler

Plaintiff’s Motions to Compel Responses to Form Interrogatories, Special Interrogatories, and Request for Production of Documents and to Have Requests for Admissions Deemed Admitted against Bookwalter

April 13, 2023 at 10:30 a.m. in D-8, J. Chrissakis

The motions are granted. Plaintiff counsel’s declaration establishes that the discovery requests were properly served and that no response was timely made to those requests even after an agreement to extend the time to respond by more than six months. Additionally, no opposition has been made to the motions. Defendant Agler’s and Defendant Bookwalter’s verified responses without objection to the Form Interrogatories, Set One, Special Interrogatories, Set One, and Request for Production of Documents, Set One are due within thirty (30) days of service of the order granting the motions. (CCP §§2030.290(a) [waiver of objection to interrogatories for failure to timely respond], 2031.300(a) [waiver of objection to document demand for failure to timely respond].) The truth of all matters specified in the requests for admission is hereby deemed admitted by Defendants Agler and Bookwalter. (CCP §2033.280(b).)

As for the requested sanctions, the imposition of a monetary sanction is mandatory against the party or attorney whose failure to timely responds to the requests for admission necessitated the propounding party’s motion under CCP §2033.280(b). (Stover v. Bruntz (2017) 12 Cal.App.5th 19, 31-32.) Accordingly, sanctions as to those motions will be awarded. With respect to the motions to compel responses to form interrogatories, special interrogatories, and requests for production of documents, the court must impose a monetary sanction against any party, person, or attorney who unsuccessfully opposes such a motion, unless the judge finds that the person subject to sanctions acted with substantial justification or that other circumstances make the imposition of sanctions unjust. (CCP §§2030.290(c), 2031.300(c).) Based on Defendants’ failure to oppose the motions or otherwise demonstrate they acted with substantial justification or that other circumstances make the imposition of sanctions unjust, the court finds that monetary sanctions must be entered against Defendants and their attorney.

In each of its four discovery motions against Defendant Agler, Plaintiff seeks attorney fees against both Defendant Agler and his attorney in the amount of $1,122.50. A declaration in support of such request is attached to each of the motions. However, in reviewing the discovery motions and supporting pleadings, it appears there is significant overlap of argument and legal authority contained therein. In addition, there was not a separate hearing scheduled for each motion, separate communications to opposing counsel were not drafted, nor are the services of separate court reporters required for each motion. To this end, the court awards a total of $1,500 sanctions payable by Defendant Agler and his attorney, joint and severally, payable to Law Offices of Arash Khorsandi P.C. within thirty (30) days of service of the Order.

In its four discovery motions against Bookwalter, Plaintiff seeks attorney fees against both Defendant Bookwlater and her attorney in the amounts of $3,885.00 for the motion to compel responses to form interrogatories, $2,610.00 for the motion to compel responses to special interrogatories, and $3,460.00 each for the motion to have RFAs admitted and the motion to compel responses to request for production of documents. However, for those similar reasons cited above with respect to the motions against Defendant Agler, the court declines to award the full amounts sought for each motion against Defendant Bookwalter. Instead, the court awards a total of $3,000 sanctions payable by Defendant Bookwalter and her attorney, jointly and severally, payable to Law Office of Arash Khorsandia P.C. within thirty (30) days of service of the Order.

Case No. 22C 0246, Related Case No. 22C 0264

Maestas v. Muniz

Defendants’ Motion to Consolidate

April 6, 2023 at 10:30 a.m. in D-8, J. Chrissakis

A copy of the motion must be filed in 22C 0264. (CRC 3.350(a)(1)(C) [copy must be filed in each case to be consolidated]. Otherwise, the motion to consolidate can be granted. Pursuant to Code of Civil Procedure, section 1048, subdivision (a), actions involving a common question of law or fact that are pending may be consolidated as may tend to avoid unnecessary costs or delay. Because both actions arise out of the same motor vehicle collisions, and based on the lack of opposition or prejudice, the actions are consolidated, with Case No. 22C 0246 designated as the lead case for all purposes. (CRC 3.350(b) [unless ordered otherwise, the lowest numbered case is the lead case].)

Case No. 22C 0046

Tulare Lake Canal Company v. Stratford Public Utility District et al.

Petitioner’s Motion to Open Discovery

March 22, 2023 at 10:30 a.m. in D-8, J. Chrissakis

TLCC’s motion to open discovery is denied.

To the extent the motion is properly construed as a motion to compel, the court agrees with Respondents and RPI that such a motion is procedurally premature where there are no pending discovery requests for which Petitioner seeks an order compelling a response and no demonstration is made as to whether the propounding party has complied with the pre-motion requirements under the Discovery Act. (Code Civ. Proc. §§2016.040 [meet and confer declaration required in support of discovery motion], 2025.480 [motion to compel answers if deponent fails to answer or produce], 2030.300 [motion to compel further responses to interrogatories], 2033.290 [untimely responses to interrogatories].)

Without deciding the propriety of these discovery requests here, the court notes that deposition notices and document requests were propounded in those CEQA cases cited by Petitioner without a preceding order to “open” discovery. (See, e.g., Golden Door Properties, LLC v. Superior Ct. of San Diego County (2020) 53 Cal.App.5th 733, 747; No Slo Transit, Inc. v City of Long Beach (1987) 197 Cal.App.3d 241, 261.) Petitioner has, however, presented no authority—and the court finds none—for a blanket order “opening discovery” in a CEQA-related case where no specific evidence is identified or alleged to have been excluded from the administrative record. Any determinations with respect to the adequacy of the record or the admissibility of extra-record evidence are premature at this stage. (See Manderson-Saleh v. Regents of University of California (2021) 60 Cal.App.5th 674, 694 [addressing the evidentiary standard for review of a quasi-judicial administrative decision after decision denying death benefit]; Western States Petroleum Ass’n v. Superior Court (1995) 9 Cal.4th 559, 570 [addressing the admissibility of extra-record evidence following adoption of air quality regulations].)

In any event, the argument in Petitioner’s motion that “extra-record evidence must be obtained” with respect to the agency Respondents’ participation in the Project is directly contradicted by Petitioner’s statement on reply that “[t]here can be no ‘extra-record evidence’ because there is no record of an administrative hearing under CEQA.” (Golden Door, supra, 53 Cal.App.5th at 765-767 [recognizing the distinction between writings properly included in the record of proceedings under section 21167.6 and those outside the record, which constitute extra-record evidence and citing Madera Oversight Coalition, Inc. v. County of Madera (2011) 199 Cal.App.4th 48, 62, disapproved on other grounds by Neighbors for Smart Rail v. Exposition Metro Line Construction Authority (2013) 57 Cal.4th 439, 512].) Because the court is unable to glean the stated purpose of Petitioner’s discovery request, the motion must be denied. (See, e.g.; Consolidated Irrigation Dist. v. Superior Court (2012) 205 Cal.App.4th 697, 713 [motion to conduct limited discovery in CEQA case was not frivolous but was denied based on stated purpose to obtain records that the court previously determined were not part of the administrative record under Public Resources Code section 21167.6, subdivision (e)].)

Case No. 23UD 0028

Edgewater Isle Apartments LLC v. Soren Brunges-Turl et al.

Defendants Soren Brunges-Turl and Severin Brunges-Turl’s Demurrer to Complaint

March 14, 2023 at 10:30 a.m. in D-8, J. Chrissakis

The demurrer is sustained without leave to amend. Based on the length of the tenancy as alleged in the Complaint, it appears the Tenant Protection Act of 2019 (“TPA”) applies. Pursuant to the TPA, where a notice to terminate a tenancy is based on a “curable” lease violation, “the owner shall first give notice of the violation to the tenant with an opportunity to cure the violation.” (Code Civ. Pro. § 1946.2, subd. (c).) Once the violation is not cured, a three-day notice to quit without an opportunity to cure may thereafter be served to terminate the tenancy. (Ibid.)

Here, the 3-day notice attached to the Complaint includes a statement that the tenants have been previously notified of an alleged breach and that the breach is the failure to maintain housekeeping and sanitary living conditions. (Exh. 2.) While the notice also asserts a roach infestation exists that cannot be cured while the unit is occupied, the nature and specific facts of the breach itself indicate that the breach at issue is curable. No notice to cure appears in the record; accordingly, the 3-day notice to quit does not constitute a valid notice to quit based on the protections set forth by the TPA.

Even if the TPA did not apply, the 3-day notice fails to provide Defendants with an opportunity to cure as required by Code of Civil Procedure section 1161, subdivision (3). (Delta Imports, Inc. v. Municipal Court (1983) 146 Cal.App.1033, 1036 [“Where the condition or covenant allegedly violated is capable of being performed, the notice must give the tenant the alternative of performing or quitting possession.”]; Hinman v. Wagon (1959) 172 Cal.App.2d 24, 27-28 [notice required under subdivision 3, where the condition or covenant assertedly violated is capable of being performed, must be framed in the alternative, and a notice which merely directs the tenant to quit is insufficient to render such tenant guilty of unlawful detainer upon his continued possession].) As a result, the notice is defective. Because a defective notice to quit cannot be amended, the demurrer must be sustained without leave to amend as to Defendants Severin and Soren.

Case No. 21C 0394

Ayala v. General Motors, LLC

Plaintiff’s Motion to Compel Further Discovery Responses from Defendant, and Request for Sanctions

March 10, 2023 at 10:30 a.m. in D-8, J. Chrissakis

Per the court’s prior ruling, it remains unclear what discovery responses the parties continue to dispute, including the status of the proposed protective order. The only supplemental filing (Plaintiff’s second reply) does not show that any additional meet and confer efforts occurred in the interim in compliance with the court’s order or demonstrate the parties’ current respective positions regarding the discovery requests following such efforts. Accordingly, the matter is continued thirty (30) days to April 10, 2023 to allow for additional meet and confer efforts.

The parties shall file a joint statement regarding the discovery requests at issue in the instant motion no later than five (5) days prior to the next hearing. Such statement must include whether the motion is withdrawn with respect to any of the above requests, the status of the protective order, and whether any supplemental responses have been provided, as well as the specific arguments, individually tailored to each requests, addressing any remaining defects in Defendant’s responses to those requests for which an order to compel further responses is still being sought. Failure to file such statement may result in the motion being taken off calendar.

Case No. 21C 0394

Ayala v. General Motors, LLC

Plaintiff’s Motion to Compel Deposition Attendance of a Person Most Knowledgeable and Custodian of Records of Defendant General Motos LLC, and Request for Sanctions

March 10, 2023 at 10:30 a.m. in D-8, J. Chrissakis

The motion is denied for failure to comply with Code of Civil Procedure section 2025.450, subdivisions (a) and (b)(2). Section 2025.450(a) provides that a party giving a deposition notice may move for an order compelling the deponent’s attendance and testimony, and the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice “[i]f, after service of a deposition notice, a [party-affiliated deponent] without having served a valid objection under Section 2025.410, fails to appear for examination.” Section 2025.410(a) provides that a party may serve a written objection to a deposition notice, specifying that error or irregularity at least three calendar days prior to the date for which the deposition is scheduled. Here, it appears to be undisputed that Defendant served its written objection to the deposition notice on October 7, 2022, at least three calendar days prior to the scheduled date of the deposition on October 14, 2022. (Kreymer Decl. Exh. B.) Thus, Plaintiff may not invoke section 2025.450(a) for an order compelling the deposition under these circumstances.

Case No. 21C 0252

Vidales v. Hacienda Post-Acute Inc. et al.

Demurrer to Third Amended Complaint

Motion to Strike Portions of Third Amended Complaint

March 8, 2023 at 10:30 a.m. in D-8, J. Chrissakis

The demurrer is sustained without leave to amend as to the first cause of action for elder abuse.

As an initial matter, the court agrees that the TAC includes amendments outside the scope of the court’s prior order sustaining the demurrer to the SAC. Following an order sustaining a demurrer or a motion for judgment on the pleadings with leave to amend, a plaintiff may amend his or her complaint only as authorized by the court’s order. (Harris v. Wachovia Mortg., FSB (2010) 185 Cal.App.4th 1018, 1023; People ex rel. Dept. Pub. Wks. v. Clausen (1967) 248 Cal.App.2d 770, 785.) In the order, the court specifically directed Plaintiff to amend the complaint “in order to include allegations that give rise to a theory of liability for elder abuse based on Dr. Nagavalli’s failure to report reasonably suspected elder abuse.” (December 27, 2022 Order at 4.) Plaintiff now includes additional allegations relating to an alleged custodial and caretaking relationship between Decedent and Dr. Nagavalli and purported medical negligence. As these amendments exceed the scope of the court’s order, they are impermissible and will not be considered by the Court with respect to whether the TAC alleges a cause of action for Elder Abuse against Dr. Nagavalli on that basis.

In any event, the additional allegations do not state a cause of action against Dr. Nagavalli for Elder Abuse. With respect to his alleged failure to report reasonably suspected elder abuse, Plaintiff neglects to present any authority, as directed, to support the proposition that such failure gives rise to a cause of action for elder abuse against the physician. Further, the allegations related to Dr. Nagavalli’s failure to intervene or provide more robust instruction to the care home, even if permissible, do not establish the existence of a caretaking or custodial relationship or rise to the level of egregious neglect constituting elder abuse under the act. (Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 160 [specifying that “neglect [under the Act] requires a caretaking or custodial relationship that arises where an elder or dependent adult depends on another for the provision of some or all of his or her fundamental needs.”; Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 405-406 [summarizing examples of conduct sufficiently egregious to warrant the award of enhanced remedies under the Elder Abuse Act.) Because the TAC does not allege facts sufficient to state a cause of action for elder abuse against Dr. Nagavalli, the demurrer is sustained without leave to amend.

The motion to strike is granted without leave to amend with respect to ¶¶8, 13, 14, 67, 28 in part, 71, 72, 73, 85(d) on the basis that such allegations exceed the scope of the court’s prior order sustaining the demurrer to the SAC. Additionally, based on Plaintiff’s failure to allege facts to state a cause of action for Elder Abuse against Dr. Nagavalli, ¶¶64-78 [the cause of action for Elder Abuse against Dr. Nagavalli] and the request for costs of suit, interest, and enhanced penalties in ¶¶77-78 and page 10 lines 8-11 and 15-16 are stricken. Finally, the request for punitive damages, page 10 line 5, is also stricken based on Plaintiff’s failure to allege facts to support a showing of oppression, fraud, or malice on the part of Dr. Nagavalli such that enhanced remedies are warranted.

Tentative Rulings for Thursday, March 2, 2023, for Department 7, Judge D’Morias presiding

Pham v Hyundai Motor America Case No 22C 0453

The demurrer to all three causes of action is sustained. The complaint in a civil action serves to frame and limit the issues and to apprise the defendant of the basis upon which the plaintiff is seeking recovery (Committee on Children’s Television Inc v General Foods Corp (1983) 35 Cal.3d 197, 211-212; Lim v The TV Corp Internat. (2002) 99 Cal.App.4th 684, 690 [ California law emphasizes ultimate fact pleading (with some exceptions, notably for fraud and related torts) "in ordinary and concise language," and the test for adequacy is not absolute but whether the pleading as a whole apprises the adversary of the factual basis of the claim].) The general rule is that a plaintiff need only allege ultimate facts, not evidentiary facts. (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.) The court treats the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.)

The first cause of action for breach of express warranty and the second for breach of implied warranty do not allege any facts related to the performance of the 2022 Hyundai Kona EV at issue in this case after plaintiff’s purchase thereof. Only conclusory allegations were made, not ultimate facts. Plaintiff alleged in paragraph 39, in connection with the third cause of action for violation of B&PC §17200, that the vehicle suffered from defects to the EV Battery and the charging port door, which caused the vehicle to lose power. This defect was not alleged in connection with the first or second causes of action under the Song Beverly Act. Complaints brought under this act typically set forth a general repair history of the vehicle from the plaintiff/ consumer point of view. The allegation of the alleged defects then directs the scope of discovery, summary judgment and trial in the case. At present, the first and second causes of action only allege conclusory allegations of “defects, malfunctions and nonconformities” at ¶16 of the first cause of action and “malfunctions and nonconformities” at paragraph 26 in the second cause of action. A plaintiff may not simply parrot the language of a statute to plead statutory liability. (Hawkins v TACA Intern, Airlines (2014) 223 Cal.App.4th 466, 478-79.)

Because the first and second causes of action do not adequately set forth facts to support a breach of the Song Beverly Act, the cause of action for violation of B&PC §17200 likewise does not set forth facts sufficient to state a cause of action. (Cel-Tech Communications Inc v Los Angeles Cellular Telephone Co (1999) 20 Cal.4th 163, 180.) Moreover, the plaintiff recited conclusions in Paragraph 42. Plaintiff did not allege that defendant manufacturer knowingly or negligently failed to provide repair services close to where the vehicle was sold, or in fact took actions which violated the remaining allegations in paragraph 42.

The demurrer to all three causes of action is sustained with 15 days leave to amend from service of the notice of ruling.

Case No. 22C 0338

D.R. v. County of Kings

Demurrer to Complaint and Motion to Strike Portions of Plaintiff’s Complaint

March 1, 2023 at 10:30 a.m. in D-8, J. Chrissakis

The demurrer is sustained with leave to amend. First, the Complaint fails to allege with adequate specificity the basis for the County’s liability. (Mittenhuber v. City of Redondo Beach (1983) 142 Cal.App.3d 1, 5; Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795-796; People ex rel. Dep’t of Transportation (1992) 5 Cal.App.4th 1480, 1486.) In particular, the Complaint fails to include adequate facts with respect to the alleged disclosure to the social worker, the perpetrator’s “propensity” for the conduct which caused injury to Plaintiff and the foreseeability of the abuse, as well as the nature of the social worker’s visits with Plaintiff and the alleged “chronic, unmitigated, systematic, and pervasive problem” of sexual assaults and abuse of juveniles placed in foster care. Without more, the Complaint does not adequately allege the applicable duties or specific actions the County should have taken to protect Plaintiff from injury. (See, e.g., Lopez, supra, 40 Cal.3d at 795-796.).

With respect to immunity, the Complaint alleges that mandatory, non-discretionary duties arise on the following bases: Welfare & Institutions Code (“W&I Code”) §§328 [investigation as to whether child welfare services should be offered to family and whether proceedings should be commenced], 16501(f) [reports of imminent danger to a child within 10 calendar days], and 16504 [reports to the county welfare department of child abuse, neglect, or exploitation], Health & Safety Code §1522, et seq. [requirement for criminal history information for certain individuals], and Penal Code §§11165.7 [defining “mandated reporter”], 11165.9 [agencies to which reports of suspected child abuse or neglect must be made], and 11166 [requirements for mandated reporters], and Department of Social Services Child Welfare Services Manual §§31-320 [social worker contacts with the child], 31-401, et seq. [general requirements for placement], and 31-501 [child abuse and neglect reporting requirements].

As for W&I Code section 328, the statute requires immediate investigation that “the social worker deems necessary” only when the social worker “has cause to believe” that there was or is a child who has suffered or is at risk of suffering certain harm. This provision does not present a mandatory duty independent of any discretionary determination. With respect to the duty under W&I Code section 16501(f), the appellate court has previously determined that the purported duty to respond immediately to reports of imminent danger to a child “arises only if a prior determination has been made that imminent danger exists—a discretionary determination expressly entrusted” to the County and its employees. (Jacqueline T. v. Alameda Cnty. Child Protective Servs. (2007) 155 Cal.App.4th 456, 477 [citing Newton v. County of Napa (1990) 217 Cal.App.3d 1551, 1559-1561 and noting that the statute to does not define “respond” or mandate a particular response].) Similarly, with respect to W&I Code section 16504 the court of appeal has concluded that county officials are immune from liability for their determination regarding whether an “emergency situation” exists that would trigger a mandatory duty to conduct an immediate in-person response under this section. (Newton, supra, 217 Cal.App.3d at 1560.) Likewise, Penal Code section 11165.7, which merely defines “mandated reporter” does not purport to impose a duty. (Jacqueline T., supra, 155 Cal.App.4th at 475.)

Regarding the remaining sections relied on in the Complaint as imposing a mandatory duty, the court finds as follows: Health & Safety Code §1522 imposes a mandatory duty to secure certain criminal record information pertaining to enumerated individuals. Here, however, the Complaint alleges no facts to indicate that Defendant failed to comply with this statute or its applicability to the alleged perpetrator in this case. Thus, the Complaint fails to allege a breach of such a mandatory duty. Penal Code sections 11165.9 and 11166 appear to state mandatory duties for mandated reporters to report suspected child abuse or neglect. However, as addressed above, the Complaint fails to adequately specify the nature of the disclosure to Plaintiff’s social worker or specify the conduct which allegedly breached this duty. Finally, the Department of Social Services Child Welfare Services Manual §§31-320 [social worker contacts with the child], 31-401, et seq. [general requirements for placement], and 31-501 [child abuse and neglect reporting requirements] include regulatory language amounting to an order leaving the County no choice but to comply with policy in a certain manner, including the requirement for certain periodic visits, the requirement to be present at the time of placement, and the requirement to notify the licensing office of any report of suspected child abuse. (See Jacqueline T., supra, 155 Cal.App.4th at 467, 477-478 [citing Scott v. County of Los Angeles (1994) 27 Cal.App.4th 125, 141.) Again, however, the Complaint does not adequately allege facts constituting a breach of any of these mandatory duties such that it can state a cause of action of liability by the County.

Based on the foregoing the demurrer is sustained with leave to amend. The motion to strike those portions of the Complaint which recite irrelevant “non-delegable duties” owed by Defendant is similarly granted with leave to amend. The amended complaint shall be filed within 30 days of service of this order.

Case No. 21C 0008

Philip Verwey et al. v. Oso Vega, Inc. et al.

Ex Parte Application for an Order Issuing Terminating Sanctions Against Defendants Jeffrey McPhee and Marc Ferguson

February 22, 2023 at 10:30 a.m. in D-8, J. Chrissakis

The applications for terminating sanctions are granted. The answers of Defendants McPhee and Ferguson filed on March 22, 2021 and July 12, 2021, respectively, are stricken and their defaults hereby entered.

Terminating sanctions for failure to comply with a court order are allowed where the failure was willful. (Weil & Brown, § 8:2147; Aghaian v. Minassian (2021) 64 Cal.App.5th 603, 618-619 [“absent unusual circumstances, nonmonetary sanctions are warranted only if a party [acts] willfully”]; Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 605-606; Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1545.) The appellate courts have agreed with trial court determinations of willfulness in the context of repeated violations of prior orders and those circumstances in which the responses were “willfully false.” Lopez, supra, 246 Cal.App.4th at 605-606 [“no question” of willfulness after court required defendant to produce documents, repeated the order and several subsequent hearings, and defendant made no effort to comply with the order and instead continued to repeat its previously unsuccessful objections]; Vallbona, supra, 43 Cal.App.4th at 1545 [the record supported a finding of willful failure to comply with discovery where defendant failed to formally reply to plaintiffs’ timely and duly-served document requests, later brought documents to his deposition after testifying they had been stolen, the court twice ordered defendant to complete his deposition, and ultimately had to appoint a referee to mediate the final deposition session].) Before imposing a terminating sanction, courts should usually grant lesser sanctions. (Weil & Brown, supra, § 8:2235 [“It is only when a party persists in disobeying the court’s orders that the ultimate (‘doomsday’) sanctions of dismissing the action or entering default judgment, etc. are justified.”; Deyo v. Kilbourne, supra, 84 Cal.App.3d at 796; Lopez, supra, 246 Cal.App.4th at 604 [discovery statutes evince an incremental approach, starting with monetary sanctions and ending with ultimate terminating sanction].)

Here, Verwey has established through counsel’s declarations that McPhee and Ferguson have repeatedly failed to comply with the court’s orders, including two orders to serve discovery responses, an order to pay previously-ordered sanctions amounts, and an additional order for monetary sanctions. Defendants failed to respond to Plaintiff’s initial motions and have similarly failed to respond to Plaintiff’s instant application for terminating sanctions, including a failure to present any explanation of current status of efforts to comply with the orders or their reasons for missing the discovery request deadlines and the like. Accordingly, the conduct of McPhee and Ferguson appears to rise to the level of a “willful failure to obey” as recognized by the courts to usually include persistent failures to comply with repeated orders for compliance, and it is appropriate here for the court to grant the request for terminating sanctions. (Deyo, supra, 84 Cal.App.3d at 796; Vallbona, supra, 43 Cal.App.4th at 1545; Lopez, supra, 246 Cal.App.4th at 604.) McPhee’s and Ferguson’s Answers are hereby stricken from the record and default entered against them.

Case No. 22C 0019

Tulare Lake Canal Company v. Sandridge Partners LP et al.

Motion for Leave to Amend and File Second Amended Complaint

February 15, 2023 at 10:30 a.m. in D-8, J. Chrissakis

The hearing on the motion was previously continued and no additional reply has been filed.

The motion for leave to amend and to file a Second Amended Complaint is granted. The court’s discretion will usually be exercised liberally to permit amended of the pleadings based on the “basic rule of pleading in this state that amendments shall be liberally allowed.” (Weil & Brown, Civil Procedure Before Trial ¶6:636; Vogel v. Thrifty Drug Co. (1954) 43 Cal.2d 184, 188; Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939; California Cas. Gen. Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 278.) The policy favoring amendment is so strong that denial of leave to amend can rarely be justified: “If the motion to amend is timely made and the granting of the motion will not prejudice the opposing party, it is error to refuse permission to amend.” (Weil & Brown, supra, ¶6:639; Morgan v. Superior Court (Morgan) (1959) 172 Cal.App.2d 527, 530.) Ordinarily, the court does not consider the validity of the proposed amended pleading in deciding whether to grant leave to amend, as grounds for demurrer or motion to strike are premature. Absent prejudice or misleading of the other side, delay alone is not grounds for denial. (Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564-565.)

Here, Defendants do not demonstrate prejudice in allowing an amended pleading. Prejudice exists where the amendment would result in a delay of trial, along with loss of critical evidence, added costs of preparation, and increased burden of discovery, etc. (Magpali v. Farmers Group, Inc. (1996) 46 Cal.App.4th 471, 486-488; P&D Consultants, Inc. v. City of Carlsbad (2010) 190 Cal.App.4th 1332, 1345 [leave to amend properly denied where plaintiff knew for over five months claims had not been properly pleaded and took no action to amend until after summary judgment granted against it].) Defendants do not argue any delay in trial will result. To the extent Defendants argue they have conducted discovery “understanding that they were dealing with a regular easement”, the court notes that its April 2022 order granting the preliminary injunction directly addressed issues relating to the potential exclusivity of the easement. Thus, the court is unpersuaded by Defendants’ belief that exclusivity was not an issue and their attendant decision not to make any efforts to discover facts relating to the exclusivity of the easement as a basis for prejudice resulting from the proposed amendments.

Similarly, Defendants have also failed to adequately demonstrate that the proposed amended pleading omits or contradicts harmful facts in the original pleading or that it presents new and substantially different issues to be introduced in the case. (Vallejo Develop Co. v. Beck Develop. Co. (1994) 24 Cal.App.4th 929, 946; Pinter-Brown v. Regents of University of California (2020) 48 Cal.App.5th 55, 99.) As to the proposed allegations relating to CEQA, Defendants have again not shown that prejudice in the instant action will result from allowing the amendments but argue primarily that the separate CEQA litigation may be affected by any findings reached in the instant action. Further, the court notes that, after leave to amend is granted, the opposing party will have the opportunity to attack the validity of the amended pleading. (Kittredge Sports Co. v. Superior Court (Marker, U.S.A.) (1989) 213 Cal.App.3d 1045, 1048.) Because Defendants do not appear to argue that the proposed amendments are deficient as a matter of law or barred by res judicata or statute of limitations such that leave to amend is inappropriate, the motion cannot be denied on this basis. (See Yee v. Mobilehome Park Rental Review Bd. (1998) 62 Cal.App.4th 1409, 1429 [leave to amend properly rejected where proposed amendment was subject to demurrer as being barred by res judicata and statute of limitations]; California Cas. Gen. Ins. Co. v. Superior Court (Gorgei) (1985) 173 Cal.App.3d 277, 280-281 (disapproved of on other grounds in Kransco v. American Empire Surplus Lines Ins. Co. (2000) 23 Cal.4th 390, 407 n.11) [discretion to deny leave to amend exists where a proposed amendment fails to state a valid cause of action or defense].)

Tentative Rulings for Tuesday, February 7, 2023, for Department 7, Judge D’Morias presiding

Alves et. al. v Eleanore Alves Case No. 22 CV 0187

The demurrer to the first amended cross-complaint is sustained with 15 days leave to amend after service of the notice of ruling. The first amended cross-complaint does not allege that cross-complainant substantially performed all her obligations under the contract, or that facts existed to excuse such performance. This is an allegation needed to state a cause of action for breach of contract. (Code Civ. Proc. §457; Consolidated World Investments Inc v Lido Preferred Ltd (1992) 9 Cal App 4th 373, 380 [It is elementary a plaintiff suing for breach of contract must prove it has performed all conditions on its part or that it was excused from performance].)

The motion is strike portions of the first amended cross-complaint is denied. After the demurrer to the original cross-complaint was sustained with leave to amend, cross-complainant added the sentence, “Legal fees and expenses related directly to the lack of notice that were incurred as a sole result of the failure to provide notice.” The court does not find this language irrelevant, false or improper and accordingly denies the motion to strike. (Code Civ. Proc. § 436.) The allegation that damages were incurred that can be traced to the lack of proper notice prior to the property inspection do relate to the allegations within the complaint and cross-complaint. (Code Civ. Proc. §431.10, subd. (b).)

Case No. 22C 0082

Perez v. Providence Administrative Consulting Services, Inc., et al.

Plaintiff’s Motion to Compel Further Responses From Defendant Hanfordidence OPCO, LLC to Request for Identification and Production of Documents, Set One

February 7, 2023 at 10:30 a.m. in D-8, J. Chrissakis

The motion is continued to allow the parties to meet and confer for the preparation and filing of a joint statement of the outstanding issues regarding the subject discovery requests. The court is unable to determine with any certainty which responses to production remain outstanding as of the date of this ruling and whether there is any need for any further order by the court in regard to such matters.

To aid in the parties’ discussions, the court—with the exception of Request for Production of Documents No. 5—rejects Plaintiff’s contention that Defendant Hanfordidence fails to provide the requisite statement of compliance. Except for Request for Production of Documents No. 5, Defendant adequately states that all documents in the demanded category that are in the possession, custody, or control of that party will be included in the production or that any inability to comply is because a particular item has never existed, had been destroyed, lost, or misplaced. (Code Civ. Proc. §§2031.220, 2031.230.) Regarding Request for Production of Documents No. 5, which merely refers Plaintiff to an exhibit, Defendant should be prepared to provide the code-compliant statement.

As for inspection of original documents, Defendant asserts that the responsive documents exist in electronic format only and thus have been produced in full in this same format. Further, the deposition testimony cited by Plaintiff does not clearly demonstrate to the court the existence of additional responsive documents, and Defendant represents that all responsive documents have been provided.

The hearing is continued thirty (30) days to Monday, March 6, 2023 at 10:30 a.m. in Department 8. The parties are ordered to prepare and file a joint statement regarding the discovery requests at issue in the instant motion, to wit: Request for Production of Documents, Set One, Nos. 2, 4-11, 13, 14, 16-20, 23, 24, 30-37, 40-45, 48-52, no later than five (5) days prior to the hearing. Such statement must include whether the motion is withdrawn with respect to any of the above requests and whether any supplemental responses have been provided, as well as the specific arguments, individually tailored to each request, addressing any remaining defects in Defendant’s responses to those requests for which an order to compel further responses is still being sought.

The court reserves its ruling with respect to sanctions.

Case No. 22C 0019

Tulare Lake Canal Company v. Sandridge Partners LP et al.

Motion for Leave to Amend and File Second Amended Complaint

February 3, 2023 at 10:30 a.m. in D-8, J. Chrissakis

Case No. 22C 0046

Tulare Lake Canal Company v. Stratford Public Utility District

Demurrer of Stratford Irrigation District’s Notice of Demurrer

Demurrer of Angiola Water District to the Second Amended Petition

February 3, 2023 at 10:30 a.m. in D-8, J. Chrissakis

The demurrers are sustained with leave to amend.

In its Order Re: Demurrers, the court determined that “lacking some specific factual allegation of direct activity by Angiola and/or its support by contract, grant, subsidy, loan, or other form of assistance, the FAP fails to state sufficient facts to impose CEQA-related obligations upon Angiola.” (¶12.) With respect to Angiola, the SAP alleges that Sandridge informed Petitioner that the Project was for use by Angiola. (¶8.) The SAP further alleges that Angiola board members have financial ties to John Vidovich and Sandridge and that such members have at various times communicated with Sandridge. (¶¶15, 21.) The SAP also alleges: (1) Angiola decided to commit public funds to support the Project and Angiola intends to receive the benefits of the Project despite its feigned retraction; (2) Angiola has been behind the Project since November 2021 at the latest; (3) Mr. Wilcox, General Manager of Angiola, Angiola voted to rescind its “prior commitment” to the Project with the Resolution that “no Angiola employees, equipment, funds, materials, or resources are to be employed in the Pipeline Installation”; (4) Mr. Wilcox, General Manager for Angiola is the main negotiator on the Pipeline Project and recent documents show that Mark Grewal, former GM for Angiola, contacted Mr. Wilcox and asked for his assistance in the installation of the pipeline on 10/11/21; and (5) an email indicates that Angiola’s general manager was emailing Vidovich in February 2022 to “get this bill paid and off AWD books.” (¶¶43-44.)

The court finds that the SAP does not state sufficient facts to impose CEQA-related obligations on Angiola. As with the FAP, the SAP alleges that Angiola rescinded its hold-harmless agreement with respect to the project. As the court previously determined, CEQA does not apply to projects which a public agency rejects or disapproves. (Pub. Resources Code §21080(b)(5).) The allegations that Angiola board members “have financial ties” to and have at various times communicated with Sandridge RPI do not constitute specific facts of direct activity by the entity of Angiola Water District to support or assist in the Project. Additionally, the conclusory allegations that Angiola decided “to commit the public funds to support the Project” and that Angiola’s General Manager is the “main negotiator” on the project are not supported by specific facts of Angiola’s participation or assistance with the Project such that CEQA obligations would be triggered. With respect to any written communications, the SAP does not contain specific facts that such communications demonstrate Angiola’s actual support of or assistance with the project beyond mere awareness of the project or even of its potential benefit to and use by Angiola. Accordingly, Angiola’s demurrer is sustained.

With respect to SID, the court previously instructed Petitioner to address any statutes or law that it claims impose a duty on respondents to engage in a CEQA analysis. (Order at 7, ¶3.) The court noted that Petitioner previously failed to cite any statute or regulations imposing a mandatory duty on SID to control its property in a specific manner and also failed to allege any affirmative conduct or duty by SID, which could be construed as a commitment of public funds to the PRI pipeline. (Order at 5-6, ¶10.) The court finds that the SAP fails on the same basis. The SAP again alleges that the Project constitutes a trespass on SID’s property and that SID “made the decision to do nothing” thereby providing the benefit of public lands to Real Parties in Interest and without complying CEQA. Petitioner cites 14 CCR §15357 and Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, disapproved of by Kowis v. Howard, 3 Cal.4th 888, in support.

The cited regulation, 14 CCR §15357, presents the definition of “discretionary project”, which, as SID points out in its demurrer, does not itself define “project” and does not support the SAP’s conclusory statement that “where subjective judgments affect whether or how a project is carried out, CEQA applies.” To the contrary, the SAP has not alleged sufficient facts to establish that SID’s inaction, i.e., its “decision to do nothing”, itself meets the regulatory definition of a “project.” (14 CCR §15378(a).) Further, the court does not read the decision in Friends of Mammoth v. Board of Supervisors to mandate CEQA review of any action where a permit may be necessary, especially in light of the supreme court’s further qualification in its decision that “before an environmental impact report becomes required the government must have some minimal link with the activity, either by direct proprietary interest or by permitting, regulating, or funding private activity.” (8 Cal.3d at 262-263 [emphasis added].) Unlike Friends of Mammoth, the SAP does not involve allegations that SID affirmatively approved the project or otherwise participated in allowing it to go forward without completing an environmental impact report.

Furthermore, the SAP asserts that SID has violated its mandatory duty not to make a gift of public resources by exercising its discretion to give Sandridge continued access and the use of public land. The SAP alleges that the board has decided to allow the pipeline to cross Stratford’s Main Canal and that this gift was made by public official who at the time were receiving financial benefits from Sandridge. (¶45.) However, such allegations are conclusory only and lack any specific facts relating to the board’s purported decision or the receipt of financial benefits. The allegations that SID “explicitly authorized and permitted certain crossings of the pipeline over sections of its canal,” are similarly conclusory without specific factual allegations relating to such purported approval.

Based on the SAP’s continued failure to allege any approval of or other affirmative conduct relating to the Project, SID’s demurrer must be sustained. The demurrers are sustained with leave to amend to allow Petitioner a final opportunity to include specific factual allegations relating to Angiola’s direct activity, as an entity, by way of assistance with or support of the installation of the project, and SID’s affirmative acts or mandatory duty to act after learning of the project.

Consolidated Case Nos. 21C 0247, 21C 0277

Insurance Company of the West v. Bickner and Related Action

Defendants’ Motion for Summary Judgment

January 30, 2023 at 10:30 a.m. in D-7, J. D’Morias

The motion for summary judgment is denied.

“In order to prevail on a motion for summary judgment where, as here, the standard of proof at trial is a preponderance of the evidence, a defendant ‘must present evidence that would require a reasonable trier of fact not to find an[] underlying material fact [alleged by plaintiff] more likely than not’—that is, evidence that would prevent a finding of that material fact. (Barber v. Southern California Edison Co. (2022) 80 Cal.App.5th 227, 242 [quoting Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851].) The moving party must satisfy this initial burden before the opposing party must controvert anything. (Id. [quoting Y.K.A. Industries, Inc. v. Redevelopment Agency of City of San Jose (2009) 174 Cal.App.4th 339, 353].) Thus, a plaintiff opposing the motion bears no burden to establish any element of his or her case unless and until the defendant presents evidence “either affirmatively negating that element (proving its absence in fact), or affirmatively showing that the plaintiff does not possess and cannot acquire evidence to prove its existence.” (Id. [citation omitted].) A moving defendant has two means by which to shift the burden of proof under the summary judgment statute: “The defendant may rely upon factually insufficient discovery responses by the plaintiff to show that the plaintiff cannot establish an essential element of the cause of action sued upon. [Citation.] [Or a]lternatively, the defendant may utilize the tried and true technique of negating (‘disproving’) an essential element of the plaintiff's cause of action.” (Leyva v. Garcia (2018) 20 Cal.App.5th 1095, 1103 [quoting Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1598, 50 Cal.Rptr.2d 431].)

Because a summary judgment motion is directed to the issues framed by the pleadings, the burden of a defendant moving for summary judgment only requires that the defendant negate a plaintiff’s theories of liability as alleged in the complaint. (Leyva, supra, 20 Cal.App.5th at 1102.) Here, the complaint alleges that Defendant Bickner made an unsafe lane change and without warning, collided with Plaintiff’s vehicle, such that the force of the impact caused Plaintiff to collide with another vehicle, resulting in severe injuries and damages to Plaintiff. (21C-0277 Complaint ¶GN-1; 21C 0247 Complaint ¶GN-1.)

Defendants move for summary judgment on the grounds that the witnesses present at the time of the incident do not recall the presence of Bickner’s vehicle prior to the incident and that two of the witnesses recall hearing a popping sound before Rodriguez’s truck suddenly veered to the left and eventually struck the median. Specifically, Defendants present undisputed testimony from Rodriguez that he heard a popping sound, that he did not see Bickner’s vehicle on the on ramp prior to the incident, and that he did not recall any contact with Bickner’s vehicle. (Rodriguez Tr. 18:16-20, 20:17-21:2.) Defendants also present deposition testimony from Daniel Salas, a driver who was located approximately 1500 feet behind the scene, who testified that he did not recall seeing Bickner’s vehicle at the scene and saw Rodriguez’s truck veer to the left and crash into the median for no apparent reason. (Salas Tr. 10:2-6, 10-17; 14:2-3, 5-17; 16:4-10.) Finally, Defendants present testimony from Jared Camerlo, another driver present at the time of the incident, who heard a loud popping sound from Rodriguez’s truck, which immediately preceded the truck’s movement into the center median. (Camerlo Tr. 7:11-16; 8:15-19; 10:10-21.) According to Defendants, “in the absence of any competent evidence that Mr. Bickner forced Ezekiel Rodriguez off the road, summary judgment is appropriate.” (Memorandum at 2.)

The court disagrees. Defendants’ argument that summary judgment is appropriate based on the “absence of competent evidence” of Bickner’s involvement in the collision misstates the parties’ respective burdens on a motion for summary judgment. Specifically, summary judgment law in California requires a defendant to do more than merely point out through argument that plaintiff does not possess the needed evidence. (Levya v. Garcia (2018) 20 Cal.App.5th 1095, 1102 n.2.) Instead, Defendants are required to present evidence that prevents a finding of a material fact or that affirmatively establishes that plaintiff does not possess or cannot acquire evidence to prove its existence. (Barber, supra, 80 Cal.App.5th at 242.)

Here, however, nothing in the evidence presented by Defendants forecloses a finding that a collision occurred between Rodriguez’s truck and Bicker’s vehicle such that Bickner may have breached the duty of care. The testimony of a popping sound and that the witnesses did not recall seeing Bickner’s vehicle prior to the incident do not prevent a finding of the material fact that Bickner was present or that his vehicle was involved in the collision. The court notes that the parties appear to dispute whether Rodriguez testified that the popping sound was “from his front left tire”; however, even if the court were to accept this fact as undisputed, it does not prevent a finding of the material fact of Bickner’s involvement in the collision. Without more, Defendants have not presented evidence to affirmatively negate the essential element of breach of the duty of care. (See Leyva, supra, 20 Cal.App.5th at 1103 [defendant may either rely upon factually insufficient discovery responses by plaintiff or disprove an essential element].)

Further, with respect to causation, the court looks to those cases involving a defendant’s efforts to negate the element of causation on summary judgment by establishing an alternative cause of the plaintiff’s injury or accident. (See Union Pacific Railroad Co. v. Ameron Pole Products LLC (2019) 43 Cal.App.5th 974, 983 [“The causation inquiry thus focuses on the nexus between the defendant’s conduct and the plaintiff’s harm. [Citations] The causation analysis does not require a nexus between the defendant’s conduct and the accident that produces the harm, rather than the harm itself.”]; Cole v. Town of Los Gatos (2012) 205 Cal.App.4th 749, 769 [defendant “could not establish an entitlement to summary judgment merely by showing that [a driver’s inebriation was a cause of plaintiff’s injuries” and instead had to establish . . . that plaintiff would be unable to present evidence that any condition of the public property where the accident occurred was also a substantial causative factor in bringing about her injuries”].)

Here, while Defendants present evidence that may support a finding that a tire puncture somehow contributed to the incident, they have presented no evidence to prevent a finding that Bickner’s conduct was not a cause in fact of Rodriguez’s injuries. (Cf. Barber v. Southern California Edison Co. (2022) 80 Cal.App.5th 227, 242 [defendant presented uncontested expert evidence that certain conditions must be present for stray voltage to cause perceptible shocks and that such conditions did not exist at the subject location]; Leyva, supra, 20 Cal.App.5th at 1105 [defendant’s uncontested expert testimony that the cause of fire could not be determined was sufficient to negate the element of causation on summary judgment].) Accordingly, Defendants have not adequately negated the element of causation.

Having failed to negate any of the essential elements of the theories of causation set forth in the complaints, Defendants failed to shift the burden to Plaintiffs to come forward with evidence in opposition to the motion and summary judgment must be denied. (Union Pacific Railroad Co., supra, 43 Cal.App.5th at 983 [citations omitted].)

Case No. 22C 0082

Pete Perez v. Providence Administrative Consulting Services Inc. et al.

Plaintiff’s Motion for Terminating, Issue, and Evidentiary Sanctions Against Defendant Providence Administrative Consulting Services, Inc. and Request for Monetary Sanctions Against Defendant and Its Attorneys of Record for Failure to Comply with the October 12, 2022 Court Order

January 13, 2023 at 10:30 a.m. in D-8, J. Chrissakis

Plaintiff’s motion is granted, in part. As an initial matter, the court notes that its October 12, 2022 Order allowed for the filing of a motion to compel further responses upon Defendant’s failure to timely comply. For the reasons addressed below, Plaintiff’s motion for terminating, issue and/or evidentiary sanctions is premature and unwarranted. However, the court finds that further responses to the discovery requests should be ordered and monetary sanctions are warranted.

Generally, the court “may make those orders that are just” if a party fails to obey prior orders and the order for sanctions lies entirely within the court’s sound discretion. (Weil & Brown, Civil Procedure Before Trial § 8:2200; Pember v. Sup.Ct. (Young) (1967) 66 Cal.2d 601, 604; Sauer v. Sup.Ct. (Oak Indus., Inc.) (1987) 195 Cal.App.3d 213, 228 [trial court’s choice of sanctions subject to appellate review only for abuse of discretion].) The following factors may be relevant: the time that has elapsed since the discovery was served, whether the party received extensions of time to answer or respond, the number discovery requests and the burden of replying, the importance of the information sought, whether the answering party acted in good faith and with reasonable diligence, the number of questions remaining unanswered, the existence of prior court orders compelling discovery and the answering party’s compliance with them, whether an order allowing more time to respond would enable the responding party to supply necessary information, and whether some sanction sort of dismissal or default would be appropriate to the dereliction. (Deyo v. Kilbourne (1978) 84 CA3d 771, 796, 149 CR 499, 518; Manzetti v. Sup.Ct. (Fitzgerald) (1993) 21 CA4th 373, 379, 25 CR2d 857, 861; Deyo v. Kilbourne, supra, 84 CA3d at 796, 149 CR at 518.)

However, numerous cases hold that severe sanctions (i.e., evidence or terminating sanctions) for failure to comply with a court order are allowed only where the failure was willful. (Weil & Brown, § 8:2147; Aghaian v. Minassian (2021) 64 Cal.App.5th 603, 618-619 [“absent unusual circumstances, nonmonetary sanctions are warranted only if a party [acts] willfully”]; Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 605-606; Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1545.) The appellate courts have agreed with trial court determinations of willfulness in the context of repeated violations of prior orders and those circumstances in which the responses were “willfully false.” Lopez, supra, 246 Cal.App.4th at 605-606 [“no question” of willfulness after court required defendant to produce documents, repeated the order and several subsequent hearings, and defendant made no effort to comply with the order and instead continued to repeat its previously unsuccessful objections]; Vallbona, supra, 43 Cal.App.4th at 1545 [the record supported a finding of willful failure to comply with discovery where defendant failed to formally reply to plaintiffs’ timely and duly-served document requests, later brought documents to his deposition after testifying they had been stolen, the court twice ordered defendant to complete his deposition, and ultimately had to appoint a referee to mediate the final deposition session].) Thus, before imposing an evidentiary or terminating sanction, courts should usually grant lesser sanctions. (Weil & Brown, supra, § 8:2235 [“It is only when a party persists in disobeying the court’s orders that the ultimate (‘doomsday’) sanctions of dismissing the action or entering default judgment, etc. are justified.”; Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 796; Lopez, supra, 246 Cal.App.4th at 604 [discovery statutes evince an incremental approach, starting with monetary sanctions and ending with ultimate terminating sanction].)

In this case, Providence does not appear to dispute that it failed to timely comply with the court’s order, including the fact that Providence requested an extension from Plaintiff only after the court’s deadline for service had expired and then subsequently failed to provide verified responses within the agreed-upon extended deadline. (Appleton v. Superior Court (Cook) (1988) 206 Cal.App.3d 632, 636 [“Unsworn responses are tantamount to no responses at all.”] However, because the court has issued only one order for compliance with respect to these specific requests, Providence’s conduct does not appear to rise to level of “willful failure to obey” as recognized by the courts to usually include persistent failures to comply with repeated orders for compliance. (Deyo, supra, 84 Cal.App.3d at 796; Vallbona, supra, 43 Cal.App.4th at 1545; Lopez, supra, 246 Cal.App.4th at 604.)

As for issue sanctions, no such showing of willfulness is required. Instead, where the responding party fails to produce information relevant to the propounding parties’ claims, it is appropriate for the court to impose an issue sanction with respect to those matters. (Kuhns v. State of California (1992) 8 Cal.App.4th 982, 989 [upon defendant’s failure to produce information relevant to plaintiffs’ claim of the dangerous condition of the property and defendant’s notice thereof, it was appropriate for the court to impose an issue sanction deeming those matters admitted]; Sauer v. Superior Court (1987) 195 Cal.App.3d 213, 228-229 [plaintiff’s failure to produce information relevant to his economic loss justified sanction deeming that plaintiff suffered no economic loss from defendant’s conduct]. Here, while Plaintiff argues a connection between the subject discovery requests and the alter ego and single enterprise allegations, Plaintiff has not adequately demonstrated Providence’s failure to produce any information relevant to those claims such that an issue sanction, as broad as Providence has drafted, is commensurate with Defendant’s failure to provide verified responses to the subject Requests for Production of Documents.

However, the Court does not take lightly Providence’s failure to comply not only with the Court’s order but with those deadlines agreed upon by the parties during their extensive meet-and-confer discussions and Plaintiff’s generous deadline extensions. Thus, the Court grants Plaintiff’s alternative request for an order for further responses and for monetary sanctions. If any verified responses from Defendant Providence to Requests for Production Nos. 4, 5, and 6 remain outstanding, Providence is ordered to produce such verified supplemental responses, with redactions of other resident names as instructed in the original discovery requests, as well as an adequate privilege log with respect to the same, to be served within fourteen (14) days of service of this order. Failure to do will result in the imposition of further sanctions, including, but not limited to issue, evidentiary, and terminating sanctions, upon Plaintiff’s motion for which shortened notice may be requested.

With respect to monetary sanctions, Plaintiff requests $5,660.00 in attorney fees payable within ten (10) days of the hearing on this motion. The Court may impose a monetary sanction, ordering the “one engaging in the misuse of the discovery process, or any attorney advising that conduct, or both pay the reasonable expenses, including attorney’s fees, incurred by anyone as a result of that conduct,” unless the person subject to the sanctions acted with substantial justification. (Code Civ. Proc. §2023.030(a).) The court finds that Providence’s failure to produce the requested discovery as set forth above constitute misuse of the discovery process without substantial justification. Accordingly, monetary sanctions are warranted. However, based on Plaintiff’s partial withdrawal of the instant motion with respect to seven out of the ten discovery requests, as well as the length of the memorandum in support and the complexity of the issues presented, the court orders sanctions in the amount of $2,830.00 in favor of Plaintiff as against Defendant Providence and its counsel, joint and severally, within ten (10) days.

Case No. 22C 0082

Pete Perez v. Providence Administrative Consulting Services Inc. et al.

January 13, 2023 at 10:30 a.m. in D-8, J. Chrissakis

However, numerous cases hold that severe sanctions (i.e., evidence or terminating sanctions) for failure to comply with a court order are allowed only where the failure was willful. (Weil & Brown, § 8:2147; Aghaian v. Minassian (2021) 64 Cal.App.5th 603, 618-619 [“absent unusual circumstances, nonmonetary sanctions are warranted only if a party [acts] willfully”]; Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 605-606; Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1545.) The appellate courts have agreed with trial court determinations of willfulness in the context of repeated violations of prior orders and those circumstances in which the responses were “willfully false.” Lopez, supra, 246 Cal.App.4th at 605-606 [“no question” of willfulness after court required defendant to produce documents, repeated the order and several subsequent hearings, and defendant made no effort to comply with the order and instead continued to repeat its previously unsuccessful objections]; Vallbona, supra, 43 Cal.App.4th at 1545 [the record supported a finding of willful failure to comply with discovery where defendant failed to formally reply to plaintiffs’ timely and duly-served document requests, later brought documents to his deposition after testifying they had been stolen, the court twice ordered defendant to complete his deposition, and ultimately had to appoint a referee to mediate the final deposition session].) Thus, before imposing an evidentiary or terminating sanction, courts should usually grant lesser sanctions. (Weil & Brown, supra, § 8:2235 [“It is only when a party persists in disobeying the court’s orders that the ultimate (‘doomsday’) sanctions of dismissing the action or entering default judgment, etc. are justified.”; Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 796; Lopez, supra, 246 Cal.App.4th at 604 [discovery statutes evince an incremental approach, starting with monetary sanctions and ending with ultimate terminating sanction].)

As for issue sanctions, no such showing of willfulness is required. Instead, where the responding party fails to produce information relevant to the propounding parties’ claims, it is appropriate for the court to impose an issue sanction with respect to those matters. (Kuhns v. State of California (1992) 8 Cal.App.4th 982, 989 [upon defendant’s failure to produce information relevant to plaintiffs’ claim of the dangerous condition of the property and defendant’s notice thereof, it was appropriate for the court to impose an issue sanction deeming those matters admitted]; Sauer v. Superior Court (1987) 195 Cal.App.3d 213, 228-229 [plaintiff’s failure to produce information relevant to his economic loss justified sanction deeming that plaintiff suffered no economic loss from defendant’s conduct]. Here, while Plaintiff argues a connection between the subject discovery requests and the alter ego and single enterprise allegations, Plaintiff has not adequately demonstrated Providence’s failure to produce any information relevant to those claims such that an issue sanction, as broad as Providence has drafted, is commensurate with Defendant’s failure to provide verified responses to the subject Requests for Production of Documents.

Case No. 21 0394

Ayala v. General Motors LLC

Plaintiff’s Motion to Compel Further Discovery Responses from Defendant, and Request for Sanctions

January 5, 2023 at 10:30 a.m. in D-8, J. Chrissakis

It remains unclear to the court as to what documents have already been provided, as well as the parties’ positions with respect to the entry of protective order and its impact on Defendant’s willingness to provide supplemental responses. Specifically, Plaintiff’s letters indicate he is amenable to entering a protective order but he asserts in his reply that Defendant has not moved for one and that Defendant thus cannot assert objections based on commercially sensitive, trade secret, or private information. However, Plaintiff has not stated any objections to the entry of a protective order and has not addressed Defendant’s contention that Plaintiff’s review of and response to the draft protective order remains outstanding. Neither party has presented copies of additional correspondence regarding the protective order beyond Plaintiff’s August 30, 2022 letter in which he indicates his willingness to agree to the entry of a protective order. Defendant appears to agree to produce almost all of the documents Plaintiff seeks—at least in response to Requests for Production Nos. 16-17, 18, 19-32, 37-41, and 45-46—if Plaintiff agrees to a protective order. However, Defendant also argues its objections to some of those same requests to which it agrees it would provide further responses if covered by a protective order, to wit: Nos. 37-41 and 45-46. Plaintiff has also not addressed Defendant’s statements in its opposition that it has already produced certain responsive documents regarding Request for Production Nos. 33-36.

On this basis, the court continues the motion for sixty (60) days (March 10, 2023 at 10:30 a.m. in D-8) to allow for additional meet and confer efforts between the parties with respect to each of the Requests for Production, including whether the parties intend to file a joint protective order. To aid in the parties’ deliberative process, the court notes that any objections based on relevance must include detailed discussions tailored to the specific request to which the objection is being made and should not be based on a boilerplate or an identical set of reasons applied uniformly to all requests. The burden is on the Defendant to demonstrate why a particular responsive document is irrelevant and should therefore not be disclosed. The court also notes that case law supports a finding that policies or procedures with regard to repairs and repurchase of vehicles is relevant to the civil penalty sought by Plaintiff in this lawsuit under the Song-Beverly Act. (Jensen v. BMW of North America Inc. (1995) 35 Cal.App.4th 112, 136.) Also, to the extent Defendant seeks to assert an objection on the basis of attorney-client, work-product, or trade secret privilege, such a response shall include setting forth the basis of the objection in a privilege log. (CCP §2031.240; Bridgestone/Firestone Inv. v. Superior Court (1992) 7 Cal.App.4th 1384, 1393.) Further, any objection based on burden must include a declaration in support. (West Pico Furniture Co. v. Superior Court (1961) 56 Cal.2d 407, 417.)

The court reserves its ruling with respect to sanctions.

Case No. 21C 0252

Vidales v. Hacienda Post-Acute Inc. at al.

Demurrer to Second Amended Complaint

Motion to Strike Portions of Second Amended Complaint

December 20, 2022 at 10:30 a.m. in D-8, J. Chrissakis

The demurrer is sustained without leave to amend as to the first cause of action for elder abuse.

The basis of Plaintiff’s claim for elder abuse against Dr. Nagavalli rests on the allegations that Dr. Nagavalli was made aware of the care home’s neglect and abuse of Martinez and that he failed to adequately intervene or effectively care for Martinez by either providing additional care instructions to Hacienda Post-Acute, reporting the abuse and neglect to Adult Protective Services, in order to prevent further falls. As with the FAC, the allegations in the SAC are not adequately specific with respect to the alleged manner in which Dr. Nagavalli is supposed to have been made actually aware of the care home’s purported neglect and abuse as it related to Martinez’s frequent falls. (Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790 [where statutory remedies are involved, the facts must be pleaded with particularity].) The SAC points to Dr. Nagavalli’s first-hand knowledge of Martinez’s repeated falls over the course of three years. The SAC also alleges that Martinez’s hospital medical records noted that “she was potentially a victim of elder abuse.” (¶53.) Without more, the court does not equate Dr. Nagavalli’s alleged knowledge of Martinez’s several falls and the presence of a vague statement of potential elder abuse in Martinez’s medical records with Dr. Nagavalli’s actual knowledge that Martinez was suffering abuse and neglect at the care home and that any abuse and neglect were the cause of her repeated falls, such that Dr. Nagavalli’s failure to further intervene goes beyond professional negligence to constitute egregious neglect for which can be held liable under the Elder Abuse Act. (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 405-406 [summarizing examples of conduct sufficiently egregious to warrant the award of enhanced remedies under the Elder Abuse Act]; see also Covenant Care, Inc., supra, 32 Cal.4th at 778 [nursing facility failed to provide elderly man suffering from Parkinson’s disease with sufficient food, water, medication, left him unattended and unassisted for long periods of time, left him in his own excrement so that ulcers became infected, and misrepresented and failed to inform his children of his true condition]; Delaney v. Baker (1999) 20 Cal.4th 23, 34 [elderly woman with a broken ankle frequently left lying in her own urine and feces for extended periods of time].) While Dr. Nagavalli’s alleged conduct sounds in professional negligence, i.e., that his medical treatment of Martinez was purportedly inadequate, the SAC does not adequately allege that the conduct “rises to a level of a ‘conscious choice of a course of action . . . with knowledge of the serious danger to others involved in it.’ ” (Carter, supra, 198 Cal.App.4th at 405 [quoting Delaney, supra, 20 Cal.4th at 31-32]; Covenant Care, Inc., supra, 32 Cal.4th at 784 [“[T]he statutory definition of ‘neglect’ speaks not of the undertaking of medical services, but of the failure to provide medical care.”] [italics in original].)

In any event, the court further notes that the SAC does not adequately allege the existence of a caretaking or custodial relationship between Dr. Nagavalli and Martinez such that Dr. Nagavalli can be held liable for elder abuse of Martinez. (Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 160 [specifying that “neglect [under the Act] requires a caretaking or custodial relationship that arises where an elder or dependent adult depends on another for the provision of some or all of his or her fundamental needs.”]; see also Oroville Hospital v. Superior Court (2022) 74 Cal.App.5th 382 [applying Winn].) Here, the SAC alleges that Dr. Nagavalli assessed Martinez on a regular basis but does not contain allegations that sufficiently establish a relationship where a certain party has assumed a significant measure of responsibility for attending to one or more of Martinez’s basic needs. (Winn, supra, 63 Cal.4th at 158.) In the absence of allegations establishing that Dr. Nagavalli’s treatment forged a caretaking or custodial relationship with Martinez, the SAC does not sufficiently state a claim for elder abuse against him. (Id. at 165.)

Because Plaintiff has failed to allege facts sufficient to state a cause of action for elder abuse against Dr. Nagavalli, the demurrer is sustained without leave to amend.

-o0o-

Defendant’s motion to strike the enhanced remedies for elder abuse is granted without leave to amend. As set forth in the ruling on the demurrer, the SAC fails to allege facts sufficient to support a cause of action for elder abuse and hence the enhanced remedies of punitive damages, attorney fees and costs, and pre-death pain and suffering sought in the SAC pursuant to the elder abuse cause of action are subject to a motion to strike under Code of Civil Procedure sections 435 and 436.

Defendant’s motion to strike the punitive damages claim pursuant to Civil Code section 3294, subdivision (1) in the prayer of the SAC is granted without leave to amend. Plaintiff has failed to allege facts to support a claim for punitive damages under the Code for failure to allege any facts to support a showing of oppression, fraud, or malice on the part of Dr. Nagavalli.

Case No. 20C 0336

Barragan v. Hanford Community Hospital dba Adventist Health Hanford et al.

Defendants’ Motion for Summary Judgment, or in the Alternative, Summary Adjudication

December 16, 2022 at 10:30 a.m. in D-8, J. Chrissakis

The motion is denied.

Defendants argue in their motion that there is no triable issue of fact with respect to a breach of the standard of care and whether the alleged negligence resulted in a HIE brain injury as Plaintiff claims. Defendants concede in their reply that Plaintiff’s evidence in opposition to the motion creates a triable issue of fact with respect to whether Defendants breached the standard of care. (Reply at 2, 3 n.1.) Accordingly, the court does not address this issue further in its ruling but accepts, for purposes of this order, that there exists a triable issue of fact as to whether Defendants breached the standard of care during labor and delivery.

As for causation, Defendants present the declaration of Dr. Jerome Barakos, MD. Dr. Barakos is a licensed medical doctor in the State of California since 1986 with added qualifications in neuroradiology since 1992 and 1996. According to Dr. Barakos’ declaration, he has “read and interpreted thousands, if not tens of thousands, of neuroimaging studies, including neonatal cerebral ultrasounds, and the diagnoses that are established.” (Barakos Decl. at ¶5.) Dr. Barakos states that he has reviewed the Complaint and various medical documents in this case, specifically the cerebral ultrasound performed on Plaintiff at Valley Children’s Hospital on August 29, 2016. He opines that he “agrees with the findings and impression of the radiologist of no acute intracranial process” and that “the cerebral ultrasound was a normal study.” (Id. at ¶11.) He further explains that because Plaintiff “exhibited no clinical symptoms of a hypoxic-ischemic injury, such as seizures, hypotonia, breathing problems, systemic metabolic acidosis, or changes in mental status, both during and following her hospitalization,” there was “no clinical evidence to support or suggest a hypoxic-ischemic event or injury.” (Ibid.) Further, he asserts that if there had been clinical concerns “of a suspected injurious process, then further imaging would have been performed.” (Ibid.) Dr. Barakos concludes that there is no evidence, to a reasonable medical certainty, that Samantha suffered a hypoxic-ischemic brain injury at or around that time of birth that would cause of contribute to any long-term neurological problems or developmental delays.

Without issuing specific rulings as to Plaintiff’s objections to the Barakos Declaration, the court finds the declaration is not sufficient to establish there is no triable issue of fact with respect to causation of Plaintiff’s alleged brain injury. First, Dr. Barakos’ declaration limits the nature of his qualifications and expertise to the reading and interpretation “of neuroimaging studies, including neonatal cerebral ultrasounds, and the diagnoses that are established.” (Barakos Decl. at ¶5 [emphasis added].) However, Dr. Barakos’ ultimate opinion—i.e., that Plaintiff did not suffer an HIE brain injury around the time of birth—is not based on his reading or interpretation of the neuroimaging study in the record or assessing the diagnosis therefrom. Instead, it is based on the results of the imaging study in conjunction with his evaluation of Plaintiff’s medical records and the lack of further brain imaging ordered by subsequent treating healthcare providers. He specifically acknowledges that a single postnatal cerebral ultrasound performed shortly after birth is generally “not used by itself to detect [HIE]” due to the possibility of a delayed onset of symptoms, but that a normal study “can be used to rule out a suspected HIE when it is correlated with a history of no clinical features of HIE.” (Id. at ¶11.) Dr. Barakos’ declaration does not, however, demonstrate his expert qualifications with respect to making such correlations or in applying this methodology in clinical practice to diagnose neonatal HIE brain injuries in infants. Dr. Barakos’ ultimate opinion on causation therefore does not rest on his interpretation of Plaintiff’s postnatal imaging study—the limited arena in which his declaration establishes his expertise—but on the result of the imaging study when construed in conjunction with other factors, including clinical observations of Plaintiff around the time of birth. Thus, his statements in this regard exceed the scope of his expertise as presented in his own declaration and constitute inadmissible lay opinion. (Jennings v. Palomar Pomerado Health Systems, Inc. (2003) 114 Cal.App.4th 1108, 1119-1120 [conclusory expert testimony is not competent evidence raising issue of fact on causation in a medical negligence case].)

Furthermore, even if Dr. Barakos had demonstrated such expertise, his own declaration recognizes that Plaintiff exhibited “seizure-like” symptoms and was transferred to Valley Children’s Hospital “with an admitting diagnosis of respiratory distress,” the absence of which he relies on in opining that “there was no clinical evidence to support or suggest a hypoxic-ischemic event or injury.” (Id. at ¶¶9.B., 11 [“The medical records indicate Plaintiff exhibited no symptoms of a hypoxic-ischemic injury, such as seizures, hypotonia, breathing problems, systemic metabolic acidosis, or changes in mental status . . . . As such, there was no clinical evidence to support or suggest a hypoxic-ischemic event or injury.”] [emphasis added].) Finally, Dr. Barakos’ statements that “none of her treating healthcare providers ordered any further brain imaging” and that “[i]f there had been clinical concerns of a suspected injurious process, then further imaging would have been performed” are wholly without foundation and speculative as to the basis of the subsequent physicians’ decisions in treating Plaintiff and declining to order further imaging. (Jennings, supra, 114 Cal.App.4th at 1117 [“[A]n expert’s opinion based on assumptions of fact without evidentiary support or on speculative or conjectural factors has no evidentiary value and may be excluded from evidence.”] [citations omitted].) Based on these evidentiary defects, the court finds that the Barakos Declaration is not sufficient to demonstrate there is no issue of triable fact as to causation, and Defendants cannot meet their burden on the motion. (Lawrence v. La Jolla Beach & Tennis Club, Inc. (2014) 231 Cal.App.4th 11, 33 [“The issue of causation may be decided as a question of law only if, under undisputed facts, there is no room for a reasonable different of opinion.”].)

Alternatively, the court finds that Plaintiff has presented sufficient evidence to rebut the Barakos Declaration and create a triable issue of fact as to causation. Plaintiff presents the declaration of Lorne Sheldon Label, MD, MBA, FAAN, CPE. Dr. Label’s declaration states that he is expressing his opinions “based on a reasonable medical probability” and concludes that the care and treatment provided by Defendants were substantial factors in causing harm to Plaintiff, as noted in her subsequent medical records and that but for these negligent acts, Plaintiff’s outcome would have been better and she would not be the delayed and impaired child she has become. (Label Decl. at ¶¶7, 10.) Dr. Label attests that Plaintiff immediately upon birth exhibited signs of HIE including potential seizures prior to her transfer to Valley Children’s, including that she was described as acrocyanotic (blue in color from lack of oxygen) twenty minutes after birth and has shown signs of HIE as a toddler. (Id. at ¶11.) Given the more liberal standard for assessing evidence in opposition to a motion for summary judgment, the court finds that Plaintiff has presented sufficient evidence of causation, giving rise to a triable issue of fact. (Powell v. Kleinman (2007) 151 Cal.App.4th 112, 125-126 [when considering the declarations of the parties’ experts, the court is to liberally construe the declarations for the plaintiff’s experts and resolve any doubts as to the propriety of granting the motion in favor of the plaintiff]; compare Hanson v. Grode (1999) 76 Cal.App.4th 601, with Kelley v. Trunk (1998) 66 Cal.App.4th 519].) Accordingly, Defendants motion for summary judgment is denied.

Tentative Rulings for Wednesday, December 14, 2022, for Department 7, Judge D’Morias presiding

Alvarado v Central Valley Meat Co 19 C 0026

The court stands by its tentative ruling filed on November 15, 2022. According to the River Cruise case, because the plaintiff therein did agree to arbitrate any dispute with her employer, the employer has the right to seek arbitration of the plaintiff’s individual PAGA claims. (Viking River Cruises, Inc. v Moriana (2022) 596 U.S. ; 142 S. Ct 1906.)

The court cannot give plaintiff advice or assurances that if plaintiffs dismiss their individual PAGA claims that the representative claims can successfully go forward. Given the Kim decision and the reasoning in Gavriiloglou, there are strong arguments presented why the California Supreme Court should find that plaintiffs retain standing to proceed with the representative PAGA claims. (Kim v Reins International California Inc (2020) 9 Cal.5th 73, 91-92; Gavriiloglou v Prime Healthcare Management Inc (2022) 83 Cal. App.5th 595.) But if this case does go forward after dismissal of individual PAGA claims, plaintiff more or less invites appellate review of any judgment entered. Absent settlement by the parties, waiting for the decision in Adolph case most likely will be in the future of plaintiffs, no matter which course of action is taken. (Adolph v Uber Technologies Inc No G059860 2022 WL 1073583 (Cal. Ct App Apr 11, 2022)

The court rejects defendant’s request to dismiss the representative PAGA claims. Defendant’s request does not give enough recognition to the fact that River Cruise did not hold that the FAA eliminates PAGA actions. (River Cruise, supra at 1921[ But we have never held that the FAA imposes a duty on States to render all forms of representative standing waivable by contract. Nor have we suggested that single-agent, single-principal representative suits are inconsistent the norm of bilateral arbitration as our precedents conceive of it. ….. these principles do not mandate the enforcement of waivers of representative capacity as a categorical rule. ] Nor does defendant give recognition to the fact that River Cruise’s citation to Kim was dicta and the Kim decision is supportive of a continued standing argument. Some federal courts have said that the trial court should refer the entire PAGA case to arbitration and let the arbitrator decide if the arbitrator has jurisdiction over the representative PAGA case. Others federal courts have cited to the concurring opinion of Justice Sotomayor in River Cruise, acknowledge that the representative PAGA claim is a creature of statute, and find that the California Supreme Court should decide standing. This court still believes staying the representative PAGA claims until the Adolph decision is the better approach, rather than to order dismissal, or ordering the entire PAGA action to arbitration.

Rawls v Adventist Health California Medical Group, Inc , Prolink Healthcare LLC

22C 0221

The Pro Hac Vice motions are granted.

Licea v Neal et.al. 21C0195

Plaintiffs’ motion to compel further responses to the request for production of documents was timely served by overnight mail on 11/16/22. The UPS tracking numbers confirm receipt at defendant’s service address on 11/17/22. The hearing today was properly noticed in accordance with CCP §1005.

The motion to compel further responses to plaintiff’s document request was served on July 13, 2022. Responses were due on August 17, 2022. After this deadline had passed, defendant sought an extension of time due to illness. Counsel sent an email on 8/30/22 extending the time to respond by three weeks (which plaintiff says meant three weeks from the August 17 due date, making responses due September 7, 2022) Plaintiff counsel sent an email on September 28, 2022 seeking responses and noting that “technically all objections have been waived.” Defendant served responses, which consisted only of objections, on September 30, 2022.

The court agrees with plaintiff that all objections had been waived by the time defendant sought an extension of time to respond due to illness and at no time did plaintiff grant extensions of time to respond that included reviving defendant’s right to assert objections. The emails do reflect that defendant was ill during the discovery discussions. The court finds that objections have been waived pursuant to Code of Civil Procedure section 2031.300 (a.) A party may seek relief from the waiver of objections under Code of Civil Procedure section 2031.300. However here, defendant has not sought this relief and has not served responses in substantial compliance with the discovery codes.

Plaintiff’s first request was for all electronic documents reflecting communications between defendant and any person (except any counsel consulted about this case) regarding the incident. Defendant’s objections were based on lack of relevance, ambiguity, overbroad, burden, and harassment. Defendant asserted the communications with the property owner’s insurance carrier to determine if there was coverage available to him was privileged. As noted by plaintiff, communications with regard to insurance coverage are not privileged. (Code Civ. Proc. §2017.210.) Defendant has failed to submit a declaration to support his burden objection. Defendant did not assert a privacy/ trade secret objection, but if one had been asserted, a privilege log would be required under Code of Civil Procedure section 2031.240 ( c)(1). Nor has defendant sought a protective order restricting the disclosure of the documents produced to this lawsuit.

Plaintiff’s second document request was for electronic communications reflecting “who paid you for any work you did for Lorenzo Neal, Darlene Neal and for any work you did at 245 Smith Ave, Lemoore.” Defendant asserted essentially the same objections, i.e. lack of relevance, burden, harassing, overbroad. No declaration was filed to support the burden objection. The court finds the request relevant to this personal injury lawsuit. The objections are overruled.

Defendant is ordered to provide a further verified response to the two document requests. This response is due 20 days after service of the notice of ruling.

Tentative Rulings for Tuesday, December 13, 2022, for Department 7, Judge D’Morias presiding

Sandridge Partners, Wilbur Reclamation v J.G. Boswell Case No. 22C 0172

Demurrer to Second Amended Complaint

Plaintiffs were given leave to amend in order to allege facts reflecting a present, non-speculative injury, not derived from the 1981 agreement, that would support the nuisance and trespass claims. The second amended complaint added allegations that by having increased the 200 foot water level in the earthen levee (allowed under the 1981 agreement) by two and a half feet, Boswell had: 1) interfered with plaintiffs’ space; 2) unnaturally altered the upstream property, which threatened down stream property from the flow of surface waters; 3) increased the water level due to storage of underground water pumped to the surface; 4) and that this excess water damaged the levee in ways not obvious to the naked eye and has caused increased seepage of water. It was alleged, “This condition results in a decreased ability to farm this agricultural land, which decreases its value. It was further alleged that the increased seepage “is both harmful to the lands’ ability to grow crops and also harmful to any crops’ yield.” It was also alleged that “Plaintiff Sandridge’s lands are cultivated in part, and intended or used for the raising of livestock. (This language tracks Code of Civil Procedure section 1021.9, which was first alleged in the SAC.). Actual crop/livestock loss was not alleged. The 1981 agreement charged Boswell with the duty of maintaining the levee to “reduce the possibility of seepage” and required Boswell to pay two-thirds the cost of such maintenance. (Agreement page 4-5). The second cause of action for trespass and the third for nuisance incorporated by reference all allegations underlying the breach of the 1981 contract claim.

The demurrer to the second cause of action for trespass and third for nuisance is sustained without leave to amend on the ground that plaintiffs have failed to allege breach of a duty that does not derive from the 1981 agreement. Boswell asserts it owns the airspace above and below the levee, as the owner of the land on which the levee is built. (Civil Code §829.) The agreement, attached to the SAC alleged that Wilbur owned the South Wilbur Levee, but it did not specify ownership of the land on which the levee was built. Even if Wilbur asserts an interest in the airspace above the maximum water level allowed under the agreement, the claim would derive from the contract.

Sandridge relies on Civil Code §1708 as the basis for a legal duty that would support the trespass and nuisance claims. Boswell notes that case law has not relied on this statute as a basis for a tort cause of action and, case law has rejected the concept of a universal duty stemming from this code section. (County of San Luis Obispo v Abalone Alliance (1986) 178 Cal.App.3d 848, 865; Katzberg v Regents of University of California (2002) 29 Cal.4th 300, 327-328 [Civil Code §1708 is a general principle of law, but not a basis for a tort damage action].) As noted in the reply, the cases relied on by plaintiffs stem from alteration of the flow of surface waters, or from water overflowing a canal. The cases were not presented with the more recent case law that holds tort claims cannot be based on breach of contract, but must stem from an independent duty. (Erlich v Menezes (1999) 21 Cal.4th 543, 551 [ conduct amounting to a breach of contract becomes tortious only when it also violates a duty independent of the contract arising from principles of tort law…… An omission to perform a contract obligation is never a tort, unless that omission is also an omission of a legal duty].; Applied Equipment Corp v Litton Saudi Arabia Ltd (1994) 7 Cal 4th 505, 515 )

The demurrer to the second cause of action for trespass and the third cause of action for nuisance is sustained without leave to amend on the grounds that plaintiffs have failed to allege a present non-speculative injury adequate to support these causes of action. The SAC alleges future damage to crops and livestock from “excess seepage” due to the water level exceeding by 2.5 feet the contractual limit of 200 feet. No actual crop or livestock damage was alleged. On demurrer, the court is required to accept the facts as pleaded and is not to be concerned with how a plaintiff will prove the facts alleged. (Committee on Children’s Television Inc v General Foods Corp (1983) 35 Cal.3d 197, 213-214.) However, this acceptance is not extended to conclusory allegations of damage. (Small v Fritz Companies, Inc (2003) 30 Cal.4th 167, 202 [allegations of damages without allegations of fact to support them are but conclusions of law, which are not admitted by demurrer]; Aubry v Tri-City Hosp Dist. (1992) 2 Cal.4th 962, 966-67 [in reviewing a demurrer, the court does not assume the truth of contentions, deductions or conclusions of law].)

Case law states that to recover on a nuisance theory, proof that the invasion of the plaintiff’s interest in the use and enjoyment of the land caused the plaintiff to suffer substantial actual damage. (San Diego Gas & Electric Co v Superior Court (1996) 13 Cal.4th 893, 938.) Case law has also held that a trespass action in tort requires damages, even if nominal, since a trespass case is essentially an action for damages. (Costerisan v Melendy (1967) 255 Cal.App.2d 57, 60.) Attorney fees for the prevailing party in a trespass action also requires actual damage. ( Belle Terre Ranch, Inc v Wilson (2015) 232 Cal.App.4th 1468, 1476.) Here, plaintiffs have not alleged a present claim for actual, non-speculative damages.

Motion to strike portions of Second Amended Complaint

Boswell’s motion to strike seeks to strike portions of ¶¶ 17, 26-28, 32, 33 and the fourth and fifth prayers for relief.

The motion to strike ¶17 is denied. In all other respects, given the ruling on demurrer, the motion to strike is moot.

Licea v Neal 21C0195

Lowes Home Center’s motion for summary judgment

Plaintiffs have filed a notice of non-opposition to the summary judgment, or alternatively summary adjudication motion filed by Lowe’s Home Centers. Based on lack of opposition, the summary judgment motion in favor of Lowes Home Center is granted. Plaintiffs’ request for a statement under Code of Civil Procedure section 437c (l) is granted. The court intends to sign plaintiff’s proposed order on this motion, unless objection to the same is raised by defendant.

Tentative Rulings for Monday, December 12, 2022, for Department 7, Judge D’Morias presiding

Salazar v Virgen, trustee 22 C 0265

Defendant trustee’s demurrer is overruled. The complaint alleges that the living trust is a co-owner of real property with plaintiff. Defendant Virgen has been sued in her capacity as trustee of the living trust. Plaintiff seeks a partition action and an accounting and alleged that the property has historically been rental property and that plaintiff has not received any rents from the real property since 2017. The trustee is the named defendant in a suit against the trust. (Powers v Ashton (1975) 45 Cal App.3d 783, 787; Han v Hallberg (2019) 35 Cal.App.5th 621, 632 [a trust cannot sue or be sued or otherwise act in its own name, instead the trustee acts on behalf of the trust].) The complaint alleges all facts to state a cause of action for partition under Code of Civil Procedure section 872.230. The demurrer to the cause of action for an accounting is overruled. A co-ownership of real property was alleged; suit on a fixed sum would not be practical. (Herrejon v Ocwen Loan Servicing LLC (2013) 980 Fed.Supp. 2d 1186, 1207 [An accounting cause of action is equitable and may be sought where the accounts are so complicated that an ordinary legal action demanding a fixed sum is impracticable

Case No. 21C 0034

Navarro et al. v. GM, LLC

Defendant’s Motion for Summary Judgment or, Alternatively, for Summary Adjudication

December 9, 2022 at 10:30 a.m. in D-8, J. Chrissakis

The motion for summary judgment is denied.

As an initial matter, the court denies Plaintiffs’ request for a stay on its ruling of the motion for summary judgment pending the supreme court’s review of Rodriguez v. FCA US, LLC (2022) 77 Cal.App.5th 209, review granted July 13, 2022. Additionally, the court recognizes that the parties’ arguments with respect to Plaintiffs’ motion for leave to amend the complaint and its purported effect of mooting the instant motion are themselves mooted by the court’s recent order on Plaintiffs’ motion and the court does not address those arguments further here.

Defendant relies primarily on Rodriguez for its argument that the subject vehicle—purchased from Keller Ford Lincoln with 61,471 miles and a remaining balance on the manufacturer’s powertrain warranty—does not meet the definition of a “new motor vehicle” and therefore does not enjoy the protections of the Song-Beverly Act. (Civ. Code §§1793.22(e)(2), 1793.2(d)(2).) Plaintiffs, in opposition, cite to Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 123, for its holding that “cars sold with a balance remaining on the manufacturer’s new motor vehicle warranty are included within [the] definition of ‘new motor vehicle’” under Civil Code section 1793.22.

In Rodriguez, the plaintiffs purchased a truck with 55,000 miles on the odometer from Pacific Auto Center. The truck originally came with basic bumper-to-bumper and powertrain warranties, the latter of which had an unspecified remaining balance at the time of sale to the plaintiffs. After several trips to the dealer to repair purported engine defects, plaintiffs sued the manufacturer, FCA, alleging, inter alia, violation of Civil Code section 1793.2, subdivision (d)(2). Upon FCA’s motion for summary judgment, wherein the manufacturer presented evidence that Pacific Auto Center was an unaffiliated, third party reseller and therefore was not one of its representatives at the time of sale, and that no warranties were issued at the time of sale, the trial court concluded the vehicle did not qualify as a “new motor vehicle” under the Act.

On appeal, the court affirmed, recognizing that “no California court has addressed whether a used car purchased from a retail seller unaffiliated with the manufacturer qualifies as a ‘new motor vehicle’ simply because there is some balance remaining on the manufacturer’s warranty.” (Rodriguez, supra, 77 Cal.App.5th at 223.) Upon its analysis of the language, context, and statutory framework of the Song-Beverly Act, the court concluded that the phrase “other motor vehicle sold with a manufacturer’s new car warranty” unambiguously refers to cars that come with a new or full express warranty. (Id. at 217-225.)

In finding Jensen “easily distinguishable”, the Rodriguez court noted the Jensen “involved a lease by a manufacturer-affiliated dealer who issued a full new car warranty along with the lease. . . . Though we think Jensen was correctly decided, . . . its statements about ‘the Act’s coverage for subsequent purchasers of vehicles with a balance remaining on the express warranty must be read in light of the facts then before the court and are limited in that respect.’” (Ibid. [italics in original] [citing Jensen, supra, 35 Cal.App.4th at 119 and Dagher v. Ford Motor Co. (2015) 238 Cal.App.4th 905, 923 for its discussion of Jensen].) The Rodriguez court also recognized two additional appellate decisions that—while addressing separate issues under the Song-Beverly Act—called into question the breadth of Jensen’s holding with respect to vehicles sold with a portion of a new-vehicle warranty remaining. (Dagher, supra 238 Cal.App.4th at 923; Kiluk v. Mercedes-Benz USA, LLC (2019) 43 Cal.App.5th 334, 340 n. 4 [recognizing it was more likely the phrase at issue refers to “cars originally sold with a new motor vehicle warranty, not subsequent sales].) The court in Rodriguez determined that “[g]iven that those facts [in Jensen] included a car leased with a full manufacturer’s warranty issued by the manufacturer’s representative, the court was not asked to decide whether a used car with an unexpired warranty sold by a third party reseller qualifies as a ‘new motor vehicle.’” (77 Cal.App.5th at 224.)

The court is persuaded by the analysis in Rodriguez and agrees that the definition of “new motor vehicle” set forth in Civil Code section 1793.22(e)(2) does not include a used car purchased from a retail seller unaffiliated with the manufacturer simply because there is some balance remaining on the manufacturer’s warranty. To the extent Jensen, can be construed as presenting conflicting authority, the court views Jensen’s view in light of the particular facts surrounding the vehicle at issue in that case and the affiliation of the manufacturer with the sale. The court therefore turns to whether there exist disputed material facts with respect to the nature of the subject vehicle. The parties do not dispute that the vehicle was previously owned at the time of sale, with 61,471 miles on the odometer. (See Response to Separate Statement of Undisputed Material Facts (“UMF”) ¶2.) The parties also do not appear to dispute that the vehicle was purchased from Keller Ford Lincoln with a remaining balance on the 100,000 mile powertrain warranty and that certain repairs were conducted pursuant to the warranty. (UMF ¶¶11, 13-16.)

However, the parties dispute whether there exists an affiliation between Keller Ford Lincoln and Defendant GM, the manufacturer. (¶¶3, 4.) The parties also appear to dispute whether Plaintiff received any written or other express or implied warranties from Defendant GM at the time of sale. (UMF ¶12.) In support of Defendant’s contentions that Keller Ford Lincoln is not a GM-authorized dealership and that GM was not a party to the transaction between Plaintiffs and Keller Ford Lincoln its contention, Defendant presents a copy of the purchase contract for the subject vehicle, which is purportedly devoid of any indication that GM was involved in the sale, as well as the following statement in counsel’s declaration: “To my knowledge, Keller Ford Lincoln is not a GM-authorized dealership.” (Major Decl. ¶3.)

Plaintiffs assert such evidence is insufficient to meet Defendant’s burden on the motion, and the court agrees. Neither the sales contract nor counsel’s statement of “knowledge” regarding GM’s affiliation with the dealership or the particular sale at issue is sufficient to demonstrate the lack of affiliation. Contrary to Defendant’s argument that Plaintiffs cannot defeat summary judgment because they “have no evidence establishing any relationship” between Keller Ford Lincoln and GM, it is not incumbent on Plaintiffs, in opposition to Defendant’s motion, to present evidence affirmatively establishing such an affiliation. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 845, 850 [the moving party bears the burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact].) Based on the evidence presented by Defendant, the court finds that, as the movant, it has not met its burden to demonstrate there exists no triable issue of material fact as to Plaintiffs’ claim for breach of express warranty under the Song-Beverly Act.

With respect to the cause of action for breach of implied warranty of merchantability, Defendant argues that Plaintiffs cannot maintain such a cause of action against a manufacturer whether the vehicle was purchased used. (Nunez v. FCA US LLC (2021) 61 Cal.App.5th 385, 399 [“[O]nly distributers and retail sellers, not manufacturers, are liable for breach of implied warranties in the sale of a used car.”].) Defendant’s argument, however, fails to recognize controlling authority that “[w]here the manufacturer sells directly to the public . . . it takes on the role of a retailer” and is bound by the Song-Beverly Act. (Kiluk, supra, 43 Cal.App.5th at 340 [citing Civil Code §1795.5 and holding that by “partnering” with the dealership, the manufacturer “was subject to the obligations of a retailer under section 1795.5].) Based on the court’s analysis above, that Defendant has not met its burden to demonstrate a lack of affiliation or involvement of the manufacturer with Keller Ford Lincoln or the actual sale of the subject vehicle—e.g., with a declaration from a person with knowledge of GM’s dealer affiliations or of the subject sales contract—the court further finds that summary judgment is not warranted with respect to the cause of action for breach of implied warranty.

Finally, with respect to a “cap” on damages, the court reserves this issue for a later ruling. Based on Plaintiffs’ prayer in the complaint for an unspecified amount “according to proof”, Defendant’s request is better suited to the context of a motion in limine to exclude evidence of certain damages at trial.

Case No. 21C 0262

Rivas v. Bill Idsinga Dairy

Motion for Leave to Amend Complaint

December 12, 2022 at 10:30 a.m. in D-8, J. Chrissakis

The motion for leave to amend the complaint is granted. The court considers five factors before granting leave to amend: (1) the policy regarding amendment; (2) the nature of the proposed amendment(s); (3) the validity of the proposed amendment(s); (4) the proximity to trial; and (5) the effect of prejudicial delay in seeking the amendment(s). (Weil & Brown, Civil Procedure Before Trial ¶¶6:637-6:655.) Here, all factors weigh in favor of granting leave to amend, consistent with the “basic rule of pleading in this state that amendments shall be liberally allowed.” (Vogel v. Thrifty Drug Co. (1954) 43 Cal.2d 184, 188; see also California Cas. Gen. Ins. Co. v. Superior Ct. (1985) 173 Cal.App.3d 274, 278.) Further, Defendants have failed to demonstrate any prejudice that would exists from the amendment, including delay of trial, loss of critical evidence, added costs of preparation, increased burden of discovery, etc. Thus, because the motion to amend was timely made and the granting of the motion will not prejudice the opposing party, the court grants the motion for leave to amend. (Morgan v. Sup. Ct. (Morgan) (1959) 172 Cal.App.2d 527, 530 [where such a refusal also results in a party being deprived of the right to assert a meritorious cause of action, it is not only error but an abuse of discretion].)

The First Amended Complaint shall be filed within twenty (20) days of service of this order.

Case No. 22C 0019

TLCC v. Sandridge Partners LP et al.

Motion for Trial Setting Preference (cont.)

December 12, 2022 at 10:30 a.m. in D-8, J. Chrissakis

The parties appear to share the position that bifurcation is unnecessary and that it will create a duplication of evidence and also appear to agree that a jury trial is warranted with respect to, inter alia, the factual issues underlying the causes of action for trespass and nuisance. However, the parties do not present any authority to contradict the established policy and practice in California to try the equitable claims before the legal claims. (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1242 [citing 7 Witkin, Cal. Procedure (4th ed. 1997) Trial, §163, p.191].) While the parties correctly recognize the existence of certain legal causes of action within the amended complaint (nuisance) and amended cross-complaint (trespass and nuisance), the nature of the action itself rests in equity. (See Am. Compl. ¶¶ 32-33, 39, 45, 48, 50, Prayer for Relief; Nwosu, supra, 122 Cal.App.4th at 1238 [“‘In determining whether the action was one triable by a jury at common law, the court is not bound by the form of the action but rather by the nature of the rights involved and the facts of the particular case—the gist of the action.’” [citing People v. One 1941 Chevrolet Coupe (1951) 37 Cal.2d 283, 299; Walton v. Walton (1995) 31 Cal.App.4th 277, 291 [“ ‘gist’ of the action is ordinarily determined by the mode of relief to be afforded, though the prayer for relief is not conclusive.].].) Defendants’ argument with respect to the court’s discretion to regulate the order of proof is inapposite to the issue of whether the claims in equity must first be tried by the court. Further, neither party presents authority or argument that the well-settled principle that trial of equitable issues first is proper on the basis that it promotes judicial economy should not apply in this case. (Nwosu, supra, 122 Cal.App.4th at 1238 [“‘When an action involves both legal and equitable issues, the equitable issues, ordinarily, are tried first for this may obviate the necessity for a subsequently trial of the legal issues.’”] [citation omitted].)

Case No. 20C 0324

Navarro et al. v. State of California et al.

Defendant State of California’s Demurrer to Plaintiffs’ Third Amended Complaint

December 8, 2022 at 10:30 a.m. in D-8, J. Chrissakis

The demurrer is overruled. The TAC asserts a single cause of action against the State for wrongful death. The complaint does not allege any wrongful acts on the part of the State but instead appears to assert vicarious liability. (TAC ¶¶5, 8, 9.) The State is statutorily immune from liability for injuries to prisoners with certain statutory exceptions. (Gov. Code §844.6 [a public entity is not liable for an injury to any prisoner]; Lawson v. Superior Court (2010) 180 Cal.App.4th 1372, 1383 [“Although a public entity may be vicariously liable for the acts and omissions of its employees (Gov. Code §815.2), that rule does not apply in the case of injuries to prisoners.”].) Among these exceptions is the liability of a public entity where an employee acting within the scope of his employment knows or has reason to know that a prisoner is in need of immediate care and fails to take reasonable action to summon such medical care. (Gov. Code §845.6.) Thus, under Government Code section 845.6, both a public entity and its employees are immune from claims based on injuries to prisoners caused by a failure to provide medical care, except when a prisoner pleads facts to demonstrate that an employee, acting within the scope of his employment, fails to provide medical care to a prisoner and has reason to know that need for medical care is immediate. (Lawson v. Superior Court (2010) 180 Cal.App.4th 1372, 1383-84.)

Here, although not pled as a separate cause of action, the TAC plainly states facts showing that employees acting within the scope of their employment, failed to provide medical care to Joseph, a prisoner, and had reason to know that his need for medical care was immediate. Specifically, the TAC alleges that Joseph, while shackled to a gurney, suffered trauma to the head in the presence and at the hands of prison staff, after which he showed various signs of head trauma and brain injury, including swelling and bruising of his head, scalp, face, and eyes, and dizziness, disorientation, and nausea. (¶¶17, 18.) The TAC further alleges that prison officials learned of these symptoms through observation, through Joseph’s complaints, and through notification from other inmates at the prison but that they failed to provide proper medical care for Joseph, eventually resulting in his death. (¶18.) Based on these allegations, the court concludes that the TAC demonstrates an exception to the statutory immunity of a public entity for injuries to prisoners. (Hart v. County of Orange (1967) 254 Cal.App.2d 302, 304-307 [public entity is not given immunity from liability for the death of a prisoner allegedly caused by failure to summon medical care for him]; ) see also Zeilman v. County of Kern (1985) 168 Cal.App.3d 1174, 1187 [“[I]ssues of the governmental entity’s actual or constructive knowledge of an individual’s immediate need for medical care and of the reasonable action of the governmental entity to provide such care are questions of fact.”].) Accordingly, the demurrer is overruled.

Case No. 21C 0284

Marquez et al. v. Danell Custom Harvesting LLC

Plaintiffs’ Motion for Evidentiary, Issue, and Further Monetary Sanctions Against Defendant and Its Attorney of Record in the Amount of $7,045.20

December 7, 2022 at 10:30 a.m. in D-8, J. Chrissakis

The motion is granted in part as to monetary sanctions and denied as to evidentiary and issue sanctions.

As an initial matter, Plaintiffs’ meet and confer efforts were satisfactory prior to the filing of the instant motion. Counsel specifically addressed the issues needed for supplemental responses, demonstrated willingness to address privacy concerns through a confidentiality stipulation, and provided extensions and additional time. Plaintiff allowed approximately a full six weeks from the most recent communication from defense counsel before filing the motion. Additionally, the parties appear to have engaged in additional meet and confer efforts as ordered by the court on November 7, 2022 and as evidenced by the filing of the protective order on November 9, 2022 and the initiation of Belaire-West notice procedures.

With respect to Special Interrogatory No. 1, the motion is denied with respect to all requested sanctions. The confidentiality stipulation appears to have been originally intended by both parties (as evidenced through meet and confer correspondence between Attorneys Brown and Chapple) to displace the need for Belaire-West notice procedures. The protective agreement covers all requested information but allowed for disclosure to certain enumerated entities and individuals. The protective order was then recently revised to include both plaintiffs. Further, the parties acknowledge that Defendant has presented Plaintiffs a list of names of putative class members and that Defendant is in the process of presenting an updated class information list to Defendant following their additional meet and confer efforts (as ordered by the court) and the recently-filed protective order. In any event, the parties appear to be proceeding with the Belaire-West notice process. (Opp. re Special Interrogatories at 3.) Thus, sanctions are not warranted with respect to Special Interrogatory No. 1 requesting additional putative class member information. With respect to Special Interrogatory Nos. 6, 9, 12, and 16, the motion is denied, the court finds Defendant has provided complete responses.

Regarding the Requests for Production of Documents, the limiting language of the preliminary statement does not comply with the code, which sets forth the valid responses to a document demand and requires Defendant to respond “separately to each item or category of item.” (See Code Civ. Proc. §§2031.210-2031.240.) As to the specific requests the court rules as follows: as to Requests Nos. 5 and 7, regarding wage statements and payroll records, monetary sanctions are appropriate to the extent the documents consist of electronically stored information. Such information must be produced in the format “in which it is ordinarily maintained” or one that is “reasonably usable” and must state in the response the format it intends to provide. (Code Civ. Proc. §2031.280, subds. (c), (d)(1).) Defendant has had since October 2021 to produce the electronic information and has already been ordered by the court to do so. Defendant is required to produce this information, in electronic format, within 14 days of service of this order. Defendant is also ordered to provide Plaintiffs its estimate of the paper volume of the non-electronic records within 14 days of service of this order and both parties are ordered to set a date for inspection and copying. Monetary sanctions, as addressed below, are entered against Defendant’s counsel.

As to Requests Nos. 14 and 15, to produce all documents including internal memoranda and emails, as well as any memoranda, letters, or documents provided to employees, pertaining to the allegations in the lawsuit, the court agrees that Defendant has clearly responded that no documents exist in response to the request.

With respect to Request No. 16 to produce any documents pertaining to class action or collective lawsuits that have been filed against Defendant in the last 8 years, Defendant does not appear to dispute that at least some of the documents exist at electronically stored information. Thus, to the extent Defendant has failed to provide such documents, especially after the court’s order to compel responses, monetary sanctions are appropriate. Further, any electronically stored information in response to this request must be provided, in electronic format, within 14 days of service of this Order.

Regarding Requests Nos. 18 and 38 through 40 (policies relating to overtime rate calculations, receipts for providing supplies to employees, and documents pertaining to Special Interrogatories), the Defendant has adequately responded that all responsive documents have been produced.

As for monetary sanctions, Plaintiffs request an amount of $7,045.20. In light of Plaintiffs’ withdrawal of several of its grounds for the motion, the satisfactory amended supplemental responses provided by Defendant, and the court’s prior order regarding the need for additional meet and confer efforts, the court enters an award of monetary sanctions against counsel for Defendant in the amount of $3,522.60, payable within thirty (30) days of service of this Order.

Tentative Rulings for Wednesday, December 7, 2022, for Department 7, Judge D’Morias presiding

Jones et. al. v City of Lemoore Case No. 22C 0041

The court sustains Lemoore’s objections ##3-6 to the declaration of the attorney on the basis of hearsay, lack of foundation and unsupported opinion. The court takes judicial notice of the signed contract between the parties attached to the cross-complaint of Filanc and the city’s request for judicial notice in support of the motion. (CCP §425.16 (b )(2) [in making its determination, the court shall consider the pleadings].) Section 10.5.3 of the contract between the parties is entitled “Indemnification by Owner for Hazardous Material Not Caused by Design-Builder.” This is the indemnification clause which forms the basis of Filanc’s second cause of action for contractual indemnity. It is this cause of action that Lemoore seeks to strike in its motion brought pursuant to CCP §425.16.

Lemoore’s special motion to strike is denied. The second cause of action for contractual liability arises from the contract requirement that the city of Lemoore indemnify and hold Filanc harmless from damages and claims related to work performed in the area affected by hazardous materials not caused by Filanc. (Agreement section 10.5.3) The contractual indemnity cause of action does not arise from the cross-complaint brought by the city against Filanc, but instead it arises from a contract provision. (C.W. Howe Partners Inc v Mooradian (2019) 43 Cal.App.5th 688, 700-701 [ the first step of the anti-SLAPP analysis, care must be taken “to respect the distinction between activities that form the basis for a claim and those that merely lead to the liability-creating activity or provide evidentiary support for the claim….. As discussed, the Supreme Court in both Park and Wilson made clear “the speech or petitioning activity itself” must constitute “the wrong complained of.”] The court noted therein, “ The filing of the Mooradians' first amended complaint is not the wrongful act forming the basis for the Mooradians' liability as alleged in the Howes' cross-claims. Rather, the alleged wrongful act that forms the basis for the express indemnity cause of action is the Mooradians' failure to indemnify, defend and hold harmless the Howes in breach of section 4(b) of the Howe agreement….” (Id. at 701.)

The distinction between the cross-complaint following the filing of a complaint (a “but for” analysis) versus an analysis of the wrongful act forming the basis of the cross-complaint was also discussed in Wong v Wong (2019) 43 Cal.App.5th 358, 364- 365 [ The Tang Estate has not been sued for pursuing the Asian Square litigation but for breaching its obligation to indemnify the Wong Estate for expenses incurred in that litigation] and in Joslin v Third Laguna Hills Mutual (2020) 49 Cal App.5th 366, 374 [a cross-complaint will ordinarily not be considered a SLAPP suit because a cross-complaint usually arises from the underlying dispute alleged in the complaint, and not out of the litigation process itself….].)

The court finds that the second cause of action does not arise from the city’s exercise of its right to commence litigation. Instead, the second cause of action arises from an indemnity provision in a contract between the parties. Since Lemoore has not met the first prong on the special motion to strike, the court need not address whether Filanc is likely to succeed on the merits of its claims. (Joslin, supra 49 Cal.App.5th 366, 374-374; Okorie v Los Angeles Unified School Dist (2017) 14 Cal.App.5th 574, 586.)

Case No. 22C 0019

Tulare Lake Canal Company v. Sandridge Partners LP et al.

Motion for Trial Setting Preference

December 6, 2022 at 10:30 a.m. in D-8, J. Chrissakis

The motion for trial setting preference is granted and the court will discuss with the parties at the hearing on the motion the earliest possible date for trial. Pursuant to Code of Civil Procedure section 527, subdivision (e), a case involving the issuance of a preliminary injunction “shall be set for trial at the earliest possible date and shall take precedence over all other cases, except older matters of the same character, and matters to which special precedence may be given by law.” Cross-Defendants have presented no persuasive or binding authority that the appeal of the preliminary injunction precludes Cross-Complainants from trial preference. Further, the court notes that even where preference is granted, the right to preference may expire if the case is mooted as to the injunction issue by facts occurring later. (Weil & Brown, Civil Procedure Before Trial ¶12:243.2.) Thus, any appellate determination—or other changed facts—that might moot the injunction issue will result in expiration of the preference and, on motion of any party or the court, the case will be returned to its normal place on the civil active list. (Ibid.)

Tentative Rulings for Monday, December 5, 2022, for Department 5, Judge Ciuffini presiding

City of Fresno v Pinedale County Water District Case No. 18 C0051

Fresno’s motion for attorney fees as costs

Fresno’s motion for attorney fees on appeal as costs is granted. The appellate court found that the city was the prevailing party in its audit lawsuit, was entitled to attorney fees and costs due to the attorney fee provision in the agreement, and that the city was the prevailing party in the writ of mandate proceeding filed to collect the judgment and was entitled to its attorney fees on appeal. The appellate court affirmed the award of attorney fees awarded in accordance with Civil Code §1717, CCP §1032 and CCP 685.040 at pages 40-41 of its opinion. This decision is the law of the case; it controls the award of attorney fees on appeal. (MBNA America Bank NA Gonnman (2006) 147 Cal.App.4th Supp 1, 13-14 [Where a contract or a statute creates a right for the prevailing party to recover attorney fees, the prevailing party is also entitled to attorney fees on appeal].)

The court does not find that the attorney fees requested are excessive. The city does admit a billing error and has reduced the fee request by $1,155. However, the city seeks attorney fees for services provided in connection with this motion. The city seeks a total award of attorney fees on appeal in the sum of $45,961.

Pinedale’s motion to strike or tax the memorandum of costs

The initial cost memo was timely filed and served on 10/24/22. (CRC 8.278 [cost bill is to be filed 40 days from issuance of remittitur. Here, the deadline was 10/31/22]. Due to an error, the $646 figure was placed in line #2 (clerk transcript) rather than on line #3 (reporter transcript). The city filed an amended cost memo on November 14, 2022, after this error was noted in the motion to tax or strike the initial cost memo.

Counsel for the city has offered to file a formal motion for relief based on excusable mistake and neglect. This court has authority to consider such a motion. ( Lee v Wells Fargo Bank (2020) 88 Cal.App.4th 1187, 1198.) Moreover, the court has authority to extend the time to file a motion for attorney fees as costs for good cause shown. (CRC 3.1702 ( d).) (The motion and cost memo are both due 40 days from issuance of remittitur.)

Given the declaration of counsel for the city on file that explains the mistake made on the memo of costs and the fact that the motion for attorney fees is to be held on the same date as the motion to strike/ tax the memo, the court finds the motion to strike moot. As noted above, the memo of costs has since been amended and corrected. The motion for attorney fees as costs was timely filed on October 25, 2022. Accordingly, the motion to tax and strike the initial cost memo is now moot and ordered off calendar.

Case No. 21C 0086

Cervantes v. Hyundai Motor America, Inc.

Defendant’s Motion to Compel Responses to Defendant’s Request for Production Documents (Set One) and for Monetary Sanctions

Defendant’s Motion to Compel Responses to Defendant’s Form Interrogatories (Set One) and for Monetary Sanctions

Defendant’s Motion for Order Establishing Admissions to Defendant’s Requests for Admission (Set One) and for Mandatory Monetary Sanctions

Defendant’s Motion to Compel Responses to Defendant’s Special Interrogatories (Set One) and for Monetary Sanctions

November 29, 2022 at 10:30 a.m. in D-8, J. Chrissakis

Defendant’s motions to compel are granted. Plaintiff is ordered to provide verified responses, without objections to Defendant’s Form Interrogatories (Set One), Special Interrogatories (Set One), and Request for Production of Documents (Set One) within thirty (30) days of service of this Order. Additionally, if verified responses to Defendant’s Requests for Admissions have not been served, they are hereby deemed admitted. Finally, the court awards monetary sanctions against Plaintiff and her counsel in the total amount of $1,560.00 to be paid within thirty (30) days of service of this Order.

With respect to the Requests for Admissions, California Code of Civil Procedure section 2033.280, subdivision (b), provides that upon the failure of a responding party to provide timely response to a request for admissions, a propounding party may move for an order that the genuineness of any documents and the truth of any matters specified in the same, be deemed admitted. Subdivision (c) of the section 2033.280 states: “[T]he court shall make this order, unless it finds that the party to whom the requests for admission have been directed has served, before the hearing on the motion, a proposed response to the requests for admission that is in substantial compliance with Section 2033.220.” [Emphasis added.] Where a party fails to serve such responses prior to the hearing, the court must grant the motion. (St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 776 [citing Code Civ. Proc. §2033.280(c)].)

Based on the declaration provided in support of the motion, Plaintiff failed to serve responses to Defendant’s Requests for Admissions by the August 12, 2022 deadline. Thus, Defendant has appropriately moved for an order deeming such matters admitted. (CCP §2033.280(b).) If verified responses have not been served as of the date of today’s hearing, the motion is granted. If verified responses have been served—but Defendant contends they are not in substantial compliance with CCP §2033.220—the motion is denied, and Defendant may file a motion to compel further responses under CCP §2033.290. (St. Mary, supra, 223 Cal.App.4th at 776.)

As to Defendant’s Request for Production of Documents (Set One), Form Interrogatories (Set One), and Special Interrogatories (Set One), Plaintiff failed to timely serve any objections or responses thereto. As a result, Plaintiff has generally waived any right to exercise such objections at a later time. (See, e.g., CCP §§2031.300(a), 2030.290(a), 2033.280(a).) Plaintiff is therefore ordered to provide substantive responses to Defendant’s Request for Production of Documents (Set One), Form Interrogatories (Set One), and Special Interrogatories (Set One), without objection, within thirty (30) days of the date of service of this Order.

CCP §§2030.290(c), 2033.280(c), and 2031.300(c) direct that the court “shall impose a monetary sanction” against any party or attorney who “unsuccessfully makes or opposes a motion to compel a response” to a production request or written interrogatory “unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” [Emphasis added.] Plaintiff presented no objections to the discovery responses, has presented no opposition to the noticed motions, and has thus failed to present any authority to demonstrate Plaintiff acted with substantial justification. The court also does not find any other circumstances to make the imposition of monetary sanctions unjust.

In each motion, Defendant seeks attorney fees and costs against both Plaintiff and her counsel in the amount of $1,560.00 within fourteen (14) days. A declaration in support of such request is attached to each of the Motions. However, in reviewing the discovery motions and supporting pleadings, it appears there is a significant overlap of argument and legal authority contained in each pleading. In addition, there was not a separate hearing scheduled for each Motion, no meet-and-confer letters were necessary or drafted, nor were the services of separate court reporters required for each motion. To this end, the court awards a total of $1,560.00 in sanctions payable by Plaintiff Cervantes and her attorney, joint and severally, to Theta Law Firm, LLP within thirty (30) days of service of this Order.

Case No. 22UD 0328

Hanford Plaza, LLC v. Jefferson et al.

Plaintiff’s Motion for Summary Judgment

November 28, 2022 at 10:30 a.m. in D-8, J. Chrissakis

The court grants the motion for summary judgment with respect to possession, if defendants remain in possession of the premises. After Does are dismissed, judgment will enter in favor of Plaintiff. If possession is not at issue, the motion is denied as to possession but granted as to holdover damages, to be calculated from the date defendants are shown to have vacated the premises.

Plaintiff has demonstrated that the requisite notice to terminate the subject tenancy was provided. A thirty-day written notice is adequate to terminate a month-to-month commercial tenancy. (Civ. Code §1946.) A thirty-day notice does not have to state the reason for the eviction and may be without cause. (Ibid.) Here, the notice was provided by mail on July 13, 2022, indicating the tenancy was to be terminated no earlier than August 31, 2022. Accordingly, at least thirty days’ notice was provided in compliance with Civil Code, section 1946.

Plaintiff has further demonstrated that service of the notice was proper. Civil Code section 1946 provides that a thirty-day notice terminating a month-to-month commercial tenancy may be given by sending a copy by certified or registered mail addressed to the other party. Here, Plaintiff has submitted evidence that the notice was sent by certified mail on July 13, 2022.

Finally, Plaintiff appears to have demonstrated that defendants remain in possession of the subject premises. Plaintiff presents a declaration from another tenant in the same shopping center, attesting to seeing Defendant Keith at the premises within the prior month, i.e., October, which would be after the tenancy had terminated pursuant to the notice. (Suvunnachuen Decl. ¶4.) Additionally, counsel’s declaration in support indicates that Keith communicated he had not completely vacated the premises by the end of August 2022. (Premo Decl. ¶¶15-17.) This evidence is not disputed by Defendant Keith who stated in his own answer that he needed until December 1, 2022 to vacate the premises. (Answer ¶4(c).)

The court notes that Defendant Keith’s answer sought to have until December 1, 2022 to vacate the premises and that the hearing on plaintiff’s motion is to occur on November 28, 2022. If defendants have vacated the premises, summary judgment is denied as to the issue of possession, and the court is left to determine the amount for holdover damages. In that regard, Plaintiff has presented sufficient evidence to establish that the holdover rate for damages of $50.00 reflects the fair rental value of the premises. Specifically, Plaintiff presents a declaration from its sole member, who is familiar with the premises and similar units and has received offers in excess of $50.00 per day. (Dedhashti Decl. ¶¶1, 11-12.) Calculated from September 1, 2022, the court will determine the date defendants vacated the premises (if at all) to determine the number of days applicable for the calculation of holdover damages.

Tentative Rulings for Monday, November 28, 2022, for Department 7, Judge D’Morias presiding

Lofgren v City of Hanford 21C 0188

The objections to the declarations of Forcey and Wallen are overruled. These declarations present a prima facie case that the deletion of the emails sought by plaintiff was inadvertent and unintentional. Plaintiff has failed to present evidence that the loss was knowing or intentional. The motion for terminating, issue and monetary sanctions is denied without prejudice to renew should plaintiff discover evidence that the emails were willfully removed from the email archiving system (or a cloud storage) by IT without preservation of any emails sought by plaintiff, knowing this would compromise plaintiff’s lawsuit.

Here, plaintiff counsel sought emails, but did not take the precaution of sending a notice to preserve the emails. Defense counsel denies any knowledge about the city’s IT decision to switch email archiving systems. Defense counsel met and conferred with plaintiff counsel about search terms and connectors to assist in an email search, but failed to expressly notify the city’s IT department to preserve the emails by downloading them on an external hard drive, storage device, or by printing them out. The dates of when plaintiff received responses to discovery from defendant (9/16/21) and the date plaintiff counsel forwarded suggested search terms (5/5/22) indicate that defense counsel had many months to prepare documents to be produced in response to plaintiff’s request to produce documents. (Decl. Prainito ¶6 (odyssey page 108) and ¶8 (Odyssey page 110).) The emails to the declaration of the city’s third party investigator were not attached to his declaration, but the court will accept the offer of proof that the emails would favor the city and would constitute an unfair planning field should plaintiff not have access to any emails to rebut or respond to the emails offered by the city.

Subject to a protective order, the city has offered plaintiff the opportunity to have its expert determine if there is a means by which the emails could be retrieved, or to confirm that the deletion was inadvertent and unintentional. Plaintiff states the city had access to a large cloud storage system. Plaintiff has an interest in determining when and how this cloud storage system was not utilized to prevent the loss of past emails, which allegedly also compromised city employees in their own management of their departments.

The plaintiff complains of the cost of hiring an expert to confirm its belief the archived emails were intentionally lost. However, statutory and case law supports waiting for proof of intentional loss, before imposing terminating, issue or monetary sanctions. (CCP 2023.030 (f )(1) [ Notwithstanding subdivision (a) [monetary sanctions], or any other section of this title, absent exceptional circumstances, the court shall not impose sanctions on a party or any attorney of a party for failure to provide electronically stored information that has been lost, damaged, altered, or overwritten as the result of the routine, good faith operation of an electronic information system ; New Albertson v Superior Court (2008) 168 Cal.App.4th 1403, 1430[ Rather than decide the facts with respect to the intentional destruction of evidence and impose a nonmonetary sanction on a pretrial motion in circumstances not contemplated by the discovery statutes, we believe that in most cases of purported spoliation the facts should be decided and any appropriate inference should be made by the trier of fact after a full hearing at trial]; CACI 204 [willful suppression of evidence]; Moofly Productions, LLC v Favila (2020) 46 Cal.App.5th 1, 11 [In general, a court may not impose issue, evidence, or terminating sanctions unless a party disobeys a court order]; Lee v Lee (2009) 175 Cal.App.4th 1553, 1559 [ absent unusual circumstances, such as repeated and egregious discovery abuses, two facts are generally prerequisite to the imposition of a nonmonetary sanction. There must be a failure to comply with a court order and the failure must be willful.].)

The motion for terminating, issue, evidentiary and monetary sanctions is denied without prejudice. The declarations do reflect a failure to preserve evidence by the city that may compromise plaintiff’s case. The court may determine at a future hearing that the documents that have been produced by the city (and the depositions to be taken in this case) are inadequate to level the playing field. The court may determine that sanctions are appropriate under the facts presented. However, at the present time, facts to support a finding of willfulness to compromise plaintiff’s lawsuit have not been presented. Accordingly, the motion for terminating, issue, evidence and monetary sanctions is denied without prejudice to renew at a future time.

Case No. 22C 0067

J&D Wilson & Sons Dairy, LP et al. v. J.G. Boswell Co. et al.

Amount of Undertaking Following Preliminary Injunction

November 23, 2022 at 10:30 a.m. in D-8, J. Chrissakis

The court sets bond in the amount of $1,000, since Defendants would need to demonstrate that the court wrongfully issued an injunction that narrowly restrains only unlawful, harassing, careless, or reckless flying. The purpose of the bond is to cover any damages that issuance of the injunction might cause the restrained party if the final determination is that the plaintiff was not entitled to the injunction. (Code Civ. Proc. § 529; see also TopCat Productions, Inc. v. Michael’s Los Feliz (2002) 102 Cal.App.4th 474, 478.) “[T]he trial court’s function is to estimate the harmful effect which the injunction is likely to have on the restrained party, and to set the undertaking at that sum.” (ABBA Rubber Co. v. Seaquist (1991) 235 Cal.App.3d 1, 14; Weil & Brown, Civil Procedure Before Trial §9:641.) The estimate is an exercise of discretion and will not be disturbed on appeal absent a clear abuse of discretion. (ABBA Rubber Co., supra, 235 Cal.App.3d at 14; Greenly v. Cooper (1978) 77 Cal.App.3d 382, 390.) The court recognizes the split of authority with respect to whether the court should consider the defendant’s likelihood of prevailing on the merits. (ABBA Rubber Co., supra, 235 Cal.App.3d at 16 n.8 [irrelevant because a preliminary injunction cannot issue absent a finding that plaintiff is likely to prevail]; Oiye v. Fox (2012) 211 Cal.App.4th 1036, 1062 [“The greater the likelihood of the plaintiff prevailing, the less likely the preliminary injunction will have been found to be wrongfully issued. That factor may not be controlling of the amount of bond, but we consider it relevant.”].) However, in light of the narrowness of the injunctive relief granted and the low likelihood of successfully vacating an injunction that only restrains unlawful, harassing, careless, or reckless flying, the court sets the nominal bond.

Tentative Rulings for Wednesday, November 16, 2022, for Department 7, Judge D’Morias presiding

Alvarado v Central Valley Meat Co 19 C 0026

Defendant’s motion to compel the four plaintiffs to arbitrate their individual PAGA wage and hour claims is granted. Signed arbitration agreements from all four plaintiffs were attached to the declaration of Mike Casey. The declarant stated it was his responsibility to manage and maintain the arbitration agreements in the defendant’s records and that they were true and correct copies of such records. The court overrules the lack of foundation objections to the declaration of Mike Casey.

The court finds that the arbitration agreements signed by the four plaintiffs are not substantively or procedurally unconscionable. (Armendariz v Found Health Psyhcare Services Inc (2000) 24 Cal.4th 83, 114.) The agreements all preceded enactment of Labor Code §432.6 (effective 1/1/20), which is not applied retroactively. (Labor Code §432.6, subd (h) [ This section applies to contracts for employment entered into, modified, or extended on or after January 1, 2020].) The court also finds that under the terms of the agreement, all claims are to be arbitrated under the Federal Arbitration Act. (Agreement ¶10.)

Arbitration agreements that are a condition of employment may be upheld provided that they are not substantively unconscionable. (Graham v Scissor-Tail Inc (1981) 28 Cal.3d 807, 819-20.) Here the agreement provided for binding arbitration under AAA rules, which allow for discovery and require a written decision by the arbitrator. The employer pays the arbitration fees. Case law cited by defendant rebuts the assertion of unconscionability due to a confidentiality clause. (Poublon v C.H. Robinson Co (9th Cir. 2017) 846 Fed. 3d 1251, 1265-67.). The failure to attach the AAA rules to the agreement also does not prevent enforcement of the arbitration agreement. (Peng v First Republic Bank (2013) 219 Cal. App. 4th 1462, 1470-72.) Two of the plaintiffs do not recall signing the arbitration agreement, but they do not deny that their signatures are on the agreement. Case authority exists that an arbitration agreement will be enforced even if one party claims not to have read the agreement. (Marin Storage & Trucking Inc v Benco Contracting & Engineering Inc. (2001) 89 Cal.App.4th 1042, 1049.) The court finds that plaintiffs have not met their burden of proof of showing procedural and substantive unconscionability by a preponderance of the evidence. (Peng, supra 219 Cal.App.4th 1462, 1468.)

The court does not find merit to plaintiffs’ argument that defendant waived its right to compel arbitration. The consolidated cases are PAGA cases. At the time defendant withdrew its initial motion to compel arbitration, the law did not allow arbitration of PAGA cases, and plaintiff withdrew the claim for wages as a result of a case decision announced before the hearing on the motion. ( ZB, NA v Superior Court (2019) 8 Cal.5th 175, 197-98.) Waiver requires a voluntary relinquishment of a known right, loss of a right due to a party’s failure to perform an act it is required to perform, or taking action inconsistent with the right to compel arbitration. (Iskanian v CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 377-378, reversed on another point in the Viking River Cruise case.) The defendant had no legal basis for seeking arbitration of plaintiffs’ individual PAGA wage and hour claims until the U.S, Supreme Court’s Viking River Cruise case was decided in June of 2022. (Viking River Cruises, Inc v Moriana (2022) 596 U.S____.) Defendant immediately sought arbitration and a stay on discovery. One plaintiff counsel in this consolidated PAGA action filed 29 individual arbitration claims, which led defense counsel to believe plaintiffs had accepted the applicability of the Viking River Cruise case to this lawsuit. Under such circumstances, the court finds that defendant has not waived its right to seek arbitration of plaintiffs’ individual PAGA claims.

The court denies defendant’s request to dismiss the collective PAGA claims pending the decision of the California Supreme Court in Adolph v Uber Technologies Inc. No G059860 2022 WL 1073583 (Cal. Ct App. Apr 11, 2022) The California Supreme Court has strongly suggested PAGA representative claims may be pursued even when individual claims have been disposed of. (Kim v Reins International California, Inc., (2020) 9 Cal.5th 73, 91 [true to PAGA's remedial purpose, the Legislature conferred fairly broad standing on all plaintiffs who were employed by the violator and subjected to at least one alleged violation. Reins's narrower construction would thwart the Legislature's clear intent to deputize employees to pursue sanctions on the state's behalf].)

A status hearing will be set to determine if the arbitration has been completed and to determine the status of the stay.

Case No. 22C 0253

Joe Sanchez v. City of Lemoore

Demurrer to Complaint

November 16, 2022 at 10:30 a.m. in D-8, J. Chrissakis

The demurrer is overruled. Defendant’s position that the allegations support the affirmative defense of exclusive remedy and bars the instant action is without merit. “It has long been established in this jurisdiction that, generally speaking, a defendant in a civil action who claims to be one of that class of persons protected from an action at law by the provisions of the Workers’ Compensation Act bears the burden of pleading and proving, as an affirmative defense to the action, the existence of the conditions of compensation set forth in the statute which are necessary to its application.” (Doney v. Tambouratgis (1979) 23 Cal.3d 91, 96.) “An exception to this general rule of pleading and proof by the defendant appears in the situation where the complaint affirmatively alleges facts indicating coverage by the act. Then, unless the complaint goes on to state additional facts which would negative the application of the act, no civil action will lie and the complaint is subject to a general demurrer.” (Id. at 97 [emphasis added].)

With respect the Plaintiff’s relationship with the City, the complaint solely states that Plaintiff “was working” on the subject tank at the time of the explosion. The complaint does not allege that Plaintiff was an employee of the city of Lemoore. Additionally, the allegations with respect to the City’s failure to implement an Injury and Illness Prevention Plan (IIPP) do not affirmatively demonstrate Plaintiff’s status as an employee. As such, the allegations of the complaint in the instant action do not, on their face, affirmatively establish an employer-employee relationship with the City. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [A demurrer is used only to challenge defects that appear on the face of the complaint or from matters outside the pleading that are judicially noticeable]; S.G. Borello & Sons, Inc. v. Dep’t of Indus. Relations (1989) 48 Cal.3d 341, 349 [“The determination of employee or independent-contractor status is one of fact if dependent upon the resolution of disputed evidence or inferences[.].) Accordingly, the demurrer cannot be sustained on the basis that the action is barred by the exclusive remedy rule. (Doney, supra, 23 Cal.3d at 98-99 [proper demonstration of the exclusive remedy rule “may occur in one of two ways—i.e., either by the plaintiff through alleging facts indicating coverage under the act in his pleadings, or by the defendant through setting up the affirmative defense of coverage in responsive pleadings and proceeding to prove the existence of the requisite conditions”].)

Case No. 22C 0114

Myron Fagundes et al. v. Johnny L. Fagundes et al.

Defendant’s Motion to Set Aside Default

November 16, 2022 at 10:30 a.m. in D-8, J. Chrissakis

Defendants’ motion to set aside default is granted as to John and Bruce but denied as to Johnny. As explained in the court’s prior tentative ruling, relief under CCP § 473(b) must be based on declarations or other admissible evidence showing “mistake, inadvertence, surprise or excusable neglect.” Declarations must be made on the basis of personal knowledge by one who is competent to testify as to the facts involved. (Kendall v. Barker (1988) 194 Cal. App. 3d 619, 624.)

Regarding John, he contests proper service of the Complaint and Summons and further attests that he was not required to respond based on lack of service. John states in his declaration that he was never personally served with the Complaint and Summons and instead found a copy in his mailbox, without postage, outside his gated community to which the public does not generally have access. This is sufficient to rebut the presumption that a registered process server’s declaration is true. (Evid. Code §§ 604, 647.) Service of the Complaint and Summons therefore was attempted by substituted service (i.e., delivery of the summons to a private mailbox); however, there is no declaration of diligence or other evidence of a good-faith effort at personal service. (Code Civ. Pro. § 415.20, subd. (b); Rodriguez v. Cho (2015) 236 Cal. App. 4th 742, 751 [service may be accomplished by substitute service when they cannot be personally served with reasonable diligence]; see also Code Civ. Pro. § 415.21 [regarding service of process in circumstances involving gated community].) Accordingly, proper service has not occurred, and John is entitled to relief from the entry of default. (Abers v. Rohrs (2013) 217 Cal. App. 4th 1199, 1209 [proper service of process is the means by which a court obtains personal jurisdiction over a party, and defective service not cured by the party’s actual notice of the action].)

As to Bruce, his declaration is sufficient to establish a reasonable mistake of law as a valid ground for relief. (State Farm Fire & Cas. Co. v. Pietak (2001) 90 Cal.App.4th 600, 611.) The motion to set aside default is granted as to Bruce.

With respect to Johnny, Defendants do not dispute that no declaration or other admissible evidence has been submitted in support of his motion. Defendants do not present any argument or authority for the court to set aside default with respect to Johnny in light of the absence of any admissible evidence or declaration from him as to his individual mistaken belief that he was not required to answer the complaint. Accordingly, the motion to set aside default is denied as to Johnny.

Case No. 22C 0344

Hansen v. Gordon, Director of the Department of Motor Vehicles

Petition for Judicial Review/Administrative Writ of Mandate

November 7, 2022 at 10:30 a.m. in D-8, J. Chrissakis

The petition has not been served on the Department and the Department has not appeared in the action. (See Code Civ. Proc. §§ 1088, 1088.5, 1107.) Accordingly, the Department has not been made a party to the action and no relief can be granted. The court vacates the hearing on the petition until proof of service of the petition and request for stay on the Department has been filed. A new hearing date for the petition will be set upon the court’s receipt of a proper proof of service.

Case No. 21C 0284

Marquez et al. v. Danell Custom Harvesting LLC

Plaintiffs’ Motion for Evidentiary, Issue, and Further Monetary Sanctions Against Defendant and Its Attorney of Record in the Amount of $7,045.20

November 7, 2022 at 10:30 a.m. in D-8, J. Chrissakis

The hearing on the motion is continued for thirty (30) days to allow for the filing of a separate statement in support. (CRC Rule 3.1345(a)(7), (c) [separate statement required for motions for evidentiary and issue sanctions].) The parties are also directed to engage in additional meet and confer efforts with respect to Defendant’s October 3, 2022 Amended Supplemental Responses, as well as the asserted requirement for Belaire West notice procedures for putative class members.

The hearing is continued to December 7, 2022, at 10:30 a.m. in Department 8.

Case No. 22C 0082

Perez v. Providence Administrative Consulting Services Inc. et al.

Plaintiff’s Motion for Summary Adjudication of Issues Against Defendant Providence Administrative Consulting Services, Inc.

November 7, 2022 at 10:30 a.m. in D-8, J. Chrissakis

Due to court congestion, Plaintiff’s motion is continued to the date and time of the hearing on Plaintiff’s discovery motions set for November 9, 2022 at 10:30 a.m. in Department 8.

Case No. 22C 0244

Eichinger v. Tractor Supply Company

Defendant’s Motion to Compel Contractual Arbitration

November 1, 2022 at 10:30 a.m. in D-8, J. Chrissakis

The motion to compel arbitration is denied, because the PAGA waiver is invalid and the provision is not severable.

The FAA applies due to Defendant’s involvement in interstate commerce. (Henley Decl. ¶¶ 2, 3; Guilano v. Inland Empire Personnel, Inc. (2007) 149 Cal.App.4th 1276, 1286-89.) The FAA provides that a written agreement to arbitrate disputes “shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” (9 U.S.C. § 2; AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333, 339.) The court’s role under the FAA is limited to determining (1) whether a valid agreement to arbitrate exists and, if so, (2) whether the agreement encompasses the dispute at issue. (Chiron Corp. v. Ortho Diagnostic Systs., Inc. (9th Cir. 2000) 207 F.3d 1126, 1130.)

The parties address the enforceability of both the Mandatory Arbitration Agreement (“MAA”) executed by Plaintiff in February 2019 as well as the subsequent Dispute Resolution Policy (“DRP”) as part of the updated employment handbook, executed by Plaintiff in December 2019. Because Plaintiff does not appear to raise any factual issues with respect to her execution of the subsequent DRP, that agreement constitutes the operative agreement for purposes of addressing Defendant’s motion to compel arbitration. The DRP is attached as Exhibit 2 to the Williamson Declaration in support of Defendant’s motion.

Here, as Defendant addresses in its Motion, the agreement meets the standard for substantive conscionability: (1) neutral arbitrators (DRP at 18); (2) more than minimal discovery (DRP at 18); (3) written award (DRP at 21-22); (4) all remedies provided by California law may be awarded by arbitrator (DRP at 21-22); and (5) employer is to pay the arbitrator’s fees and costs and plaintiff’s attorney fees if she prevails (DRP at 8). (Armendariz, supra, 24 Cal.4th 83.)

With respect to procedural unconscionability, Plaintiff argues that the DRP is a contract of adhesion because it was on a standardized form offered by the employer, who has superior bargaining power, as condition of employment. (Opp. at 10-11.) However, in the same paragraph Plaintiff recognizes that the DRP contains an opt-out provision. Considering that even mandatory arbitration agreements do not, by themselves, render an agreement unenforceable, the court is unpersuaded that the DRP at issue here supports of finding of a high level of procedural unconscionability. (See Giuliano v. Inland Empire Personnel, Inc. (2007) 149 Cal.App.4th 1276, 1292 [“[T]he compulsory nature of a predispute arbitration agreement does not render the agreement unenforceable on the grounds of coercion or lack of voluntariness.”]; Lagatree v. Luce Forward Hamilton & Scripps LLP (1999) 74 Cal.App.4th 1105, 1122-1123.) Additionally, Plaintiff cannot assert “surprise” as to the terms, since Plaintiff was a store manager who was integrally involved in the communication and implementation of the agreement with respect to her employees. (Williamson Decl. ¶5.)

In regard to whether the claims asserted are covered by the agreement, the language therein broadly encompasses all claims arising out of or relating to Plaintiff’s employment with Defendant, and names only limited exceptions not applicable here. (DRP at 15.) Plaintiff only raises PAGA claims, based on failure to pay wages and overtime, noncompliant rest and meal periods, failure to furnish compliant wage statements, and failure to pay all wages due at the time of termination or resignation. (Compl. at ¶¶4-8.) Thus, those claims fall squarely within the scope of the agreement.

With respect to PAGA, however, the agreement contains an invalid PAGA waiver. The relevant language in the DRP provides:

As used in this DRP, “PAGA” means and refers to the California Labor Code Private Attorneys General Act of 2004, which is enacted as California Labor Code section 2698 et seq., and a “PAGA Action” means and refers to any claims, action or proceeding brought or sought to be brought against Company pursuant to PAGA to recover civil penalties for the benefit—in whole or in part—of the State of California and allegedly aggrieved employees (as defined under PAGA) based on violations of the California Labor Code allegedly suffered by the allegedly aggrieved employee bringing the action as well as based on violations allegedly suffered by other allegedly aggrieved employees. Except as expressly set forth below, a Covered Individual is not permitted to bring or participate in such a PAGA Action under this DRP in connection with any Covered Disputes, and there is no agreement, right, or authority under this DRP for any Covered Disputes to be heard, arbitrated, or decided as such a PAGA action. Accordingly, a Covered Individual waives any and all rights to bring or participate in such a PAGA Action to resolve, decide, or adjudicate any Covered Disputes, either now existing or arising in the future, and is prohibited from doing so.

. . . .

However, without limiting the applicability or effect of the foregoing PAGA Action Waiver Provisions in any way: (a) a Covered Individual retains the right to individually arbitrate Covered Disputes under PAGA pursuant to this DRP, but only with respect to recovering civil penalties for any violations of the California Labor Code allegedly suffered solely by that Covered Individual personally and not any violations allegedly suffered by any other allegedly aggrieved employees[.]

(DRP at 19-21 [emphasis added].)

The PAGA waiver is invalid, because it aims to abrogate the right of the Plaintiff to bring a PAGA action in a representative capacity. (Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 384; see also Securitas Sec. Servs. USA, Inc. v. Super. Ct. (2015) 234 Cal.App.4th 1109, 1121-22 (Securitas) [concluding that an agreement’s representative PAGA waiver violated public policy, notwithstanding the agreement’s opt-out provision].) Defendant argues that because the DRP expressly allows for Plaintiff to proceed with her individual PAGA claims in arbitration and only waives “representative” (i.e., non-individual) PAGA claims, the PAGA waiver is not invalid. (Id. at 3.) Defendant asserts that Viking River Cruises, Inc. v. Moriana (2022) 142 S.Ct. 1906, 1924 compels this conclusion. However, Viking River Cruises addressed (1) the state’s power to determine whether certain PAGA waivers were invalid; and (2) the state’s power to preclude the division of PAGA actions into its “constituent claims,” i.e., its individual and non-individual claims. (slip op. at 7, 18, 20-21.) Upon addressing those issues, the court determined that it was within the state’s right to determine that “wholesale waivers” of PAGA actions were unenforceable but that the state was not permitted to preclude the division of PAGA actions for determining whether non-individual claims may be separately arbitrated. (Id. at 18, 20-21.) However, Viking River Cruises did not address whether an arbitration agreement may waive non-individual PAGA claims entirely. For that, the courts continue to look to state law, which makes clear that “employers cannot compel employees to waive their right to enforce the state’s interests when the PAGA has empowered employees to do so.” (Z.B. NA v. Superior Court (2019) 8 Cal.5th 175, 197 [citing Iskanian, supra, 59 Cal.4th at 384] [emphasis added]; see also Securitas, supra, 234 Cal.App.4th at 1121-22 [an opt-out provision does not render a PAGA waiver enforceable].) Nothing in Viking River Cruises bars this conclusion.

Having determined the PAGA waiver is invalid, the court must determine whether the provision is severable. “Whether a contract is entire or separable depends upon its language and subject matter, and this question is one of construction to be determined by the court according to the intention of the parties. If the contract is divisible, the first part may stand, although the latter is illegal. . . . Thus, the rule relating to severability of partially illegal contracts is that a contract is severable if the court can, consistent with the intent of the parties, reasonably relate the illegal consideration on one side to some specified or determinable portion of the consideration on the other side.” (Securitas, supra, 234 Cal.App.4th at 1125-1126 [quoting Keene v. Harling (1964) 61 Cal.2d 318, 320-321].)

The DRP contains two relevant provisions with respect to the intent of the parties as to severability.

Should any PAGA Action claims (as defined above) brought by a Covered Individual in breach of the foregoing PAGA Action Waiver Provisions be held by a court of competent jurisdiction not to be subject to such Waiver Provisions (including holding that the provisions are not enforceable), then such PAGA Action claims will be stayed by the court, including without limitation pursuant to California Code of Civil Procedure Section 1281.4 and/or other applicable law. While the PAGA Action claims are stayed, the issue of whether the Company violated any provisions of the California Labor Code properly at issue in the stayed PAGA Action claims as to the Covered Individual, along with the Covered Individual’s asserted individual claims and/or Representative Action claims held to be subject to the Representative Action Waiver Provisions of this DRP (if any), will be arbitrated solely on an individual basis.

(DRP at 20-21 [emphasis added].) This provision evidences an intent to bifurcate the arbitral and judicial proceedings with respect to the individual and non-individual PAGA claims in the event the non-individual PAGA waiver provision is rendered illegal and unenforceable. But the DRP also provides that “[i]f any provision of this DRP, other than the Waiver Provisions and the Mass Arbitration provisions, is deemed invalid or unenforceable, it will be severed and the remainder of this DRP will not be affected. Absent Company’s express written consent given while enforcing this DRP, the Waiver provisions . . . are not severable.” (DRP at 27, ¶26 [emphasis added].) This provision unambiguously reflects an intent to exclude the Waiver Provision (which would include the PAGA waiver provision) from the severability clause.

When read together with the former provision—purporting to stay non-individual PAGA claims in the court—the severability clause becomes ambiguous. A court should construe ambiguous language against the interest of the party that drafted it. (Securitas, supra, 234 Cal.App.4th at 1126-1127.) Thus, the court concludes that the illegal PAGA waiver provision is not severable, and the DRP is unenforceable. Accordingly, the motion to compel arbitration is denied.

Case No. 22C 0246

Maestas v. Muniz

Motion to Quash Service of Summons

October 19, 2022, at 10:30 a.m. in D-8, J. Chrissakis

Defendant Muniz’s Motion to Quash is mooted by Plaintiff’s filing of the October 3, 2022 Proof of Service by personal service on Defendant Muniz. The proof of service indicates that Defendant Muniz was personally served at an address in Puerto Rico on September 29, 2022. Service of the summons and complaint by personal service is deemed complete at the time of such delivery. (Code Civ. Pro. §§ 415.10 [personal service], 415.40 [a person outside California may be served in any manner provided by this article].) Accordingly, Defendant Muniz has been properly served with the summons and complaint since the time of filing his motion to quash, and the motion is denied for mootness.

Defendant Muniz has thirty (30) days from the date of service of this order to file a responsive pleading to the Complaint.

Case No. 21C 0316

Littlejohn v. Caldera

Defendant Tahler’s Motion for Summary Judgment

October 18, 2022 at 10:30 a.m. in D-8, J. Chrissakis

The Court continues the hearing on the Defendant Tahler’s Motion for Summary Judgment for purposes of conducting additional discovery. The disputed fact is whether Tahler was a renter of the subject vehicle at the time of the subject collision. Defendants argue that the receipt from Enterprise, submitted as evidence by both parties, listing “Caldera, Corey” under the heading “Renter” is sufficient to establish Defendant Corey as the exclusive renter, while Plaintiff asserts that this receipt is insufficient to demonstrate a lack of rental relationship or liability on Tahler’s behalf.

In the court’s view, the receipt appears to relate primarily to the payment for the claim arising from the subject collision and does not establish the parties to the rental agreement or the terms with respect to liability for either defendant for purposes of the causes of action raised in this matter. The court notes that neither party has cited any authority as to whether common law liability for negligence and negligent entrustment would extend to Tahler under these circumstances. Thus, the terms of, and parties to, the rental agreement is of paramount importance in determining Tahler’s potential liability for damages arising from the subject collision. Accordingly, the court continues the hearing on the motion in order for the parties to conduct additional discovery with respect to Tahler’s purported liability under the rental agreement. (Code Civ. Pro. § 437c(h) [permitting the court to order a continuance to allow for further discovery].)

Case No. 22UD 0269

Four Seasons Estates, LLC

Defendant’s Motion to Quash Service of Summons and Complaint

October 10, 2022 at 10:30 a.m. in D-7, J. D’Morias

The motion to quash is denied. Defendant argues that he has not been properly served because service was not accomplished by personal service and that he instead discovered the papers in his door after returning from a trip out of town. Defendant correctly recognizes that personal service is an acceptable method of service of the summons and complaint. (CCP § 415.10.) However, under section 415.20(b) of the California Code of Civil Procedure, service may also be accomplished, in lieu of personal delivery, by leaving a copy of the summons and complaint at the person’s dwelling house or usual place of abode in the presence of a competent member of the household and subsequently mailing a copy to the place where the summons and complaint were left, also known as substituted service. (Id. § 415.20(b).) This method of service may only be used after a good-faith effort at personal service has first been made. (Ibid.)

Here, Plaintiff has filed a proof of service of summons, signed by a registered process server, indicating that Defendant Poloschan was served by way of substituted service in that the summons and complaint were left on September 6, 2022, with an unnamed co-occupant at Defendant Poloschan’s usual place of abode, i.e., the subject premises, and that a copy of the summons and complaint were thereafter mailed to the same place on September 7, 2022. The proof of service of summons is accompanied by a Declaration of Diligence, enumerating four instances in which personal service was attempted. The actions effectuate proper substituted service on Defendant Poloschan, notwithstanding the fact that the papers were also posted on the premises as service to “All Other Unknown Occupants In Possession.” Defendant Poloschan’s motion and declaration in support do not address or dispute that the summons and complaint were left with a co-occupant and subsequently mailed and thus do not rebut the presumption of truthfulness to which the proof of service by a registered process server is entitled. (Evid. Code § 647.) Service of the summons and complaint were proper under Code of Civil Procedure, section 415.20(b).

Case No. 22UD0073

Maldonado v. Clarke

Defendant’s Demurrer to Unlawful Detainer Complaint

October 6, 2022 at 10:30 a.m. in D-7, Judge D’Morias

The demurrer is sustained with leave to amend. Pursuant to California Code of Civil Procedure, section 1166, subdivision (d)(2), where a plaintiff fails to attach the requisite notice to the Complaint, the court shall grant leave to amend the complaint for the five-day period in order to include the required attachments.

The court declines to address at this time the additional grounds for demurrer, since the relevant statute imposes a requirement for leave to amend the complaint on the aforementioned basis alone, and Defendant may raise additional grounds in a demurrer to Plaintiff’s amended complaint.

The amended complaint must be filed within 5 days of service of the court’s ruling.

There are no tentative rulings for Wednesday, October 5, 2022

Case No. 22C0114

Myron Fagundes et al. v. Johnny L. Fagundes et al.

Defendants’ Motion to Set Aside Default

October 6, 2022 at 10:30 a.m. in D-8, J. Chrissakis

Tentative Ruling: Defendant’s motion to set aside default is granted in part and denied in part. Relief under CCP § 473(b) must be based on declarations or other evidence showing “mistake, inadvertence, surprise or excusable neglect.” The party moving for relief on one of these bases must show specific facts demonstrating that one of these conditions was met. (Hopkins & Carley v. Gens (2011) 200 Cal. App. 4th 1401, 1410.) Declarations must be made on the basis of personal knowledge by one who is competent to testify as to the facts involved. (Kendall v. Barker (1988) 194 Cal. App. 3d 619, 624.)

Defendants seek relief on the basis of mistake, i.e., that they believed there was no requirement to respond until all defendants had been served with the Complaint and Summons. With respect to Defendants Johnny Fagundes (“Johnny) and Bruce Fagundes (“Bruce”), they have provided no declarations in support of their contention that they individually held a mistaken belief that they were not required to answer. Moreover, Johnny and Bruce do not appear to contest proper service of the Complaint and Summons. The declaration provided by Defendant John Fagundes IV (“John”), attesting to his own understanding of the circumstances is not sufficient to establish Johnny and Bruce’s state of mind with respect to their individual obligations to respond to the Complaint and Summons. (Kendall v. Barker, supra, 197 Cal. App. 3d at 624 [counsel’s declaration consisting entirely of conclusory statements that the previous attorney “excusably neglected” to answer to a complaint was not competent to establish excusable neglect].) By failing to present any competent evidence in support of their motion, Johnny and Bruce have not established grounds for relief from default and the motion is denied in this respect.

Case No. 22C0182

George v. Cisneros et al.

Defendant Cisneros’ Demurrer to Complaint

September 30, 2022 at 10:30 a.m. in D-8, J. Chrissakis

The demurrer is sustained, with leave to amend, with respect to all claims against Defendant Cisneros, based on Plaintiff’s failure to timely file the instant action following rejection of a government claim. The documents attached to the Complaint, and judicially-noticeable documents presented by Defendant Cisneros, indicate that Plaintiff’s government claims arising from the alleged conduct in the instant action were rejected on July 3, 2020 (Claim No. 20005164) and July 30, 2020 (Claim No. 20006348). (A third claim, relating to rodents in the prison (Claim No. 20003286) was rejected on August 13, 2020.) The instant action was filed on May 18, 2022 and thus appears to fall outside the requisite filing period. (Gov. Code § 945.6(d); Moore v. Twomey (2004) 120 Cal.App.4th 910, 918 [“[A] civil complaint by a pro se prisoner litigant should be deemed filed when it is delivered to prison authorities for forwarding to the superior court”].) Failure to comply with this six-month time limitation mandates dismissal of the action. (County of Los Angeles v. Superior Court (2005) 127 Cal.App.4th 1263, 1267-68.) The court recognizes exceptions to this requirement under Government Code section 945.6 and thus sustains the demurrer with leave to amend for Plaintiff to address the issue of timeliness.

The court declines to address the additional grounds raised in the demurrer at this time, since failure to timely file the action following the rejection of the government claim would bar the action on that ground alone, and defendants may raise additional grounds in a demurrer to Plaintiff’s amended complaint.

Case No. 21C0252

Manuel Vidales v. Hacienda Post Acute, Inc., et. al.

Demurrer to Plaintiffs First Amended Complaint and Motion to Strike September 29, 2022 at 10:30 a.m. in D-8, J. Chrissakis

Tentative Ruling: Defendant's demurrer to the first cause of action for elder abuse is sustained, with leave to amend, for failure to state facts sufficient to state a cause of action. Causes of action for elder abuse under W&IC § 15657 must be pied with specificity. (Covenant Care v. Superior Court (2004) 32 Cal.4th 771, 790.) A plaintiff must demonstrate that defendant is guilty of something more than negligence; he must show reckless, oppressive fraudulent or malicious conduct. (Delaney v. Baker (1999) 20 Cal.4th 23, 31 [recklessness refers to a subjective state of culpability, which has been described

as a "deliberate disregard" of the "high degree of probability" that an injury will occur].) "Recklessness, unlike negligence involves something more than 'inadvertence, incompetence, unskillfulness, or a failure to take precautions." (Ibid.) Recklessness instead refers to a state of culpability greater than simple negligence; reckless neglect only includes acts of "egregious abuse" and requires a showing of significant pattern of withholding care. (Covenant Care, supra, 32 Cal.4th at 785; Sababin v. Superior Court (2005) 144 Cal.App.4th 81, 90.)

Plaintiff's cause of action for Elder Abuse directed at Dr. Nagavalli consists of allegations that Dr. Nagavalli was aware of Martinez's frequent falls at the facility, and was aware of her various medical conditions, but made no orders to intervene or otherwise protect Martinez from the allegedly poor care at Hacienda Post-Acute, leading to additional falls. Even taking these allegations as true, Plaintiff has not alleged facts rising to the level of "egregious abuse" or involving a significant pattern of withholding care. (Covenant Care, supra, 32 Cal.4th at 785.) Plaintiff essentially alleges that Dr. Nagavalli's failure to provide additional direction of Hacienda's custodial functions constitutes recklessness, but there are no allegations that Dr. Nagavalli was made aware that Plaintiff's falls resulted from poor care at Hacienda such that Dr. Nagavalli acted with "conscious disregard" of Martinez's safety in connection with his care of Martinez or his alleged "failure" to administer a more thorough care plan or that this constituted

a significant pattern of withholding care. (Covenant Care, supra, 32 Cal.4th at 785.) Accordingly, Plaintiff has not sufficiently alleged facts for the cause of action of elder abuse.

Defendant's Demurrer as to the second cause of action is overruled. Plaintiff has pied

facts specifically directed at Dr. Nagavalli, alleging that Dr. Nagavalli breached a duty to provide adequate care and treatment when he failed to intervene in her care and supervision at Hacienda. Such facts could give rise to a triable claim for negligence. (Hanson v. Grode (1999) 76 Cal.App.4th 601, 606 [enumerating the elements for medical negligence actions); Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463,467 ["Both the standard of care and defendants' breach must normally be established by expert testimony in a medical

malpractice case."].)

Defendant's motion to strike the enhanced remedies for elder abuse is granted, with leave to amend. As set forth in the ruling on demurrer, the complaint failed to allege facts sufficient to support a cause of action for elder abuse and hence the enhanced remedies of punitive damages, attorney fees

and costs, and pre-death pain and suffering sought in the complaint pursuant to the elder abuse cause of action are subject to a motion to strike under CCP §§ 435 and 436.

Defendant's motion to strike the punitive damages claim pursuant to Civil Code§ 3294(a) in the prayer of the complaint is granted, with leave to amend. Plaintiff has failed to allege facts to support a claim for punitive damages under Civil Code§ 3294(a) for failure to allege any facts to support a showing of oppression, fraud, or malice on the part of Dr. Nagavalli.

The amended pleading must be filed within 15 days of service of the court's ruling.