tentative rulings for february 22, 2018 departments 402 ... · section 1019.5, subdivision (a), no...

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Tentative Rulings for February 22, 2018

Departments 402, 403, 501, 502, 503

There are no tentative rulings for the following cases. The hearing will go forward on

these matters. If a person is under a court order to appear, he/she must do so.

Otherwise, parties should appear unless they have notified the court that they will

submit the matter without an appearance. (See California Rules of Court, rule 3.1304(c).)

16CECG03443 Wilshusen v. Advance Auto Parts, Inc. (Dept. 501)

18CECG00437 Rabobank, N.A. v. Gregory Te Velde (Dept. 502)

16CECG04058 Fire & Security Integrations, Inc. v. Smith (Dept. 503)

The court has continued the following cases. The deadlines for opposition and reply

papers will remain the same as for the original hearing date.

13CECG03503 Munoz v. Tarlton & Son, Inc. et al., is continued to Thursday, March

1, 2018 at 3:30 p.m. in Dept. 501.

17CECG03536 Bridge v. Guarantee Real Estate, is continued to Thursday, March 1,

2018, at 3:30 p.m. in Dept. 501.

16CECG03537 Gutierrez v. Singh is continued to Tuesday, March 6, 2018, at 3:30

p.m. in Dept. 502.

18CECG00376 In The Matter of Adam Mitchell is continued to Thursday, March 22,

2018 at 3:30 p.m. in Dept. 502.

18CECG00377 In The Matter of Adam Mitchell is continued to Thursday, March 22,

2018 at 3:30 p.m. in Dept. 502.

18CECG00378 In The Matter of Braxton Mitchell is continued to Thursday, March

22, 2018 at 3:30 p.m. in Dept. 502.

15CECG00915 Boyd v. J.H. Boyd Enterprises, Inc., et al. is continued to Thursday,

March 1, 2018 in Dept. 503.

________________________________________________________________

(Tentative Rulings begin at the next page)

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Tentative Rulings for Department 402 (17)

Tentative Ruling

Re: Stidham v. Minhas, et al.

Court Case No. 15 CECG 02636

Hearing Date: February 22, 2018 @ 3:00 p.m. (Dept. 402)

Motion: Defendants’ Motion to Reopen Discovery for Limited Purposes

Plaintiff’s Motion to Reopen Discovery for All Purposes

Tentative Ruling:

To grant the motion to reopen discovery for limited purposes. Discovery is

reopened for purposes of conducting inquiry into plaintiff’s damage claims and

conducting expert discovery only. To deny the motion to reopen discovery as to all

purposes.

Explanation:

Code of Civil Procedure section 2024.020 provides: "(a) Except as otherwise

provided in this chapter, any party shall be entitled as a matter of right to complete

discovery proceedings on or before the 30th day, and to have motions concerning

discovery heard on or before the 15th day, before the date initially set for the trial of the

action. [P] (b) Except as provided in Section 2024.050, a continuance or postponement

of the trial date does not operate to reopen discovery proceedings."

Section 2024.050 provides in part:

(a) On motion of any party, the court may grant leave to complete discovery

proceedings, or to have a motion concerning discovery heard, closer to the

initial trial date, or to reopen discovery after a new trial date has been set. This

motion shall be accompanied by a meet and confer declaration under Section

2016.040.

(b) In exercising its discretion to grant or deny this motion, the court shall take into

consideration any matter relevant to the leave requested, including, but not

limited to, the following:

(1) The necessity and the reasons for the discovery.

(2) The diligence or lack of diligence of the party seeking the discovery or the

hearing of a discovery motion, and the reasons that the discovery was not

completed or that the discovery motion was not heard earlier.

(3) Any likelihood that permitting the discovery or hearing the discovery

motion will prevent the case from going to trial on the date set, or

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otherwise interfere with the trial calendar, or result in prejudice to any

other party.

(4) The length of time that has elapsed between any date previously set, and

the date presently set, for the trial of the action.

Meet & Confer:

The Motion to Reopen Discovery for Limited Purposes is accompanied by a

faxed letter dated December 22, 2017, which plaintiff’s counsel demonstrates he did

not receive. (January 23, 2018 Milligan Decl. ¶¶ 10-12.) However, after the filing of the

motion, the attorneys spoke by telephone with respect to the competing motions and

could not reach a resolution as to the scope of reopening discovery. (January 23, 2018

Milligan Decl. ¶¶ 14-15.) The court is satisfied the both the letter and the spirit of the

meet and confer requirements were complied with.

Necessity:

Because the trial continuance was granted due to plaintiff’s continuing medical

treatment, additional discovery is clearly warranted. The question is how much

discovery the court should allow.

The court finds that the discovery concerning the subject of plaintiff’s damages

of any kind is necessary. The court also finds that expert discovery is also necessary.

Liability discovery is not necessary, however. Any discovery confirming an admission of

liability should have been completed with respect to the first trial date.

Diligence or Lack of Diligence:

Defendants cannot have discovered what had not yet occurred. Accordingly,

information relating to plaintiff’s current damage status and injuries could not have

been discovered with any due diligence prior to the first trial date. Likewise, expert

discovery is typically begun after all damage discovery is completed. The parties were

reasonable is postponing expert discovery to run with the second trial date.

Defendants’ liability contentions, however, could and should been explored with

respect to the first trial date and plaintiff offers no reason the desired discovery was not

completed sooner.

Likelihood of Interference with Trial Date:

Records subpoenas, a short deposition of plaintiff, and even depositions of new

treaters and expert witnesses are unlikely to interfere with the current trial date of

October 15, 2018.

Time Elapsed Since Resetting of Trial Date:

Approximately four months have elapsed since the current trial date of October

15, 2018, was assigned on October 22, 2017.

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California law favors trying cases on their merits. (Salas v. Sears, Roebuck & Co.

(1986) 42 Cal.3d 342, 347.) A denial of the motion to reopen discovery for a limited

purpose would likely preclude the disposition of this case on its merits. However, no

good cause had been shown for opening all discovery.

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

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

adopting this tentative ruling will serve as the order of the court and service by the clerk

will constitute notice of the order.

Tentative Ruling

Issued By: JYH on 02/21/18

(Judge’s initials) (Date)

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(5)

Tentative Ruling

Re: Ulises Rodriguez et al. v. Segundo Sanchez Espinoza

Superior Court Case No: 16 CECG 03726

Hearing Date: None. See below

Petitions: (1) Approval of Compromise of Claim of Minor Ulises

Rodriguez;

(2) Approval of Compromise of Claim of Minor Allison

Rodriguez; and

(3) Approval of Compromise of Claim of Minor Shayla

Rodriguez

Tentative Ruling:

To deny without prejudice.

Explanation:

No explanation is provided regarding whether the Defendant is paying out of

pocket or is insured. In addition, no records were submitted in support of the costs of

counselling treatment. Also, a recent doctor’s note in support of the assertion that the

minors are completely recovered is also needed. Finally, Item 21 requests permission to

deposit the funds in a Los Angeles bank account. But, if the parents live in Fresno

County, why is this money to be deposited in another county?

Before reapplying for an approval or hearing date, the above deficiencies

should be addressed, corrected and filed with the court.

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

section 1019.5, subd. (a), no further written order is necessary. The minute order



Tentative Ruling



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(29)

Tentative Ruling

Re: Arax, et al. v. Watershed Investments, Inc., et al.

Superior Court Case No. 16CECG03415

Hearing Date: February 22, 2018 (Dept. 402)

Motion: Attorney’s fees

Tentative Ruling:

To grant. (Civ. Code §1717.)

Explanation:

Easements are generally acquired by grant or prescription (Weller v. Brown

(1911) 160 Cal. 515, 519); grants are to be interpreted in like manner with contracts in

general (Schmidt v. Bank of America, N.A. (2014) 223 Cal.App.4th 1489, 1499).

“In any action on a contract, where the contract specifically provides that

attorney's fees and costs, which are incurred to enforce that contract, shall be

awarded either to one of the parties or to the prevailing party, then the party who is

determined to be the party prevailing on the contract…shall be entitled to reasonable

attorney's fees in addition to other costs.” (Civ. Code §1717(a).) The prevailing party is

entitled to recover its fees pursuant to Civil Code section 1717, regardless of whether

the contract is upheld, the prevailing party was not a signatory or party to the contract,

or the contract is found to be unenforceable. (Manier v. Anaheim Business Center Co.

(1984) 161 Cal.App.3d 503, 507; see Civ. Code §1717(a).) The statute is applied in favor

of the party prevailing on a contract claim whenever that party would have been

liable under the contract for attorney’s fees had the other party prevailed. (Hjelm v.

Prometheus Real Estate Group, Inc. (2016) 3 Cal.App.5th 1155, 1168.) The reciprocity

provision of section 1717 has been applied in cases not technically based on a

contract, but contractual in nature. (MacKinder v. OSCA Development Co. (1984) 151

Cal.App.3d 728, 739; see Hjelm, supra, 3 Cal.App.5th at p. 1168 [breach of warranty of

habitability claim “can be a contract action with contract damages”]; Huntington

Landmark Adult Community Assn. v. Ross (1989) 213 Cal.App.3d 1012, 1023

[supplemental declaration of easements, CC&Rs, sufficient to constitute “contract”

under §1717, citing MacKinder, supra]; Schoolcraft v. Ross (1978) 81 Cal.App.3d 75, 82

[action based upon deed of trust “is a contract action within Civil Code section

1717.”].)

Even in circumstances where neither party receives a net recovery, there may

still be a “prevailing party” under section 1717. (Sears v. Baccaglio (1998) 60

Cal.App.4th 1136, 1152.) A “procedural victory that finally disposes of the parties'

contractual dispute, such as an involuntary dismissal with prejudice…may merit a

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prevailing party award of fees under section 1717.” (DisputeSuite.com, LLC v.

Scoreinc.com (2017) 2 Cal.5th 968, 981; see Civ. Code §1717(b)(1).) Moreover, “a

dismissal ordered as a discovery sanction constitutes a judgment on the merits.” (Kahn

v. Kahn (1977) 68 Cal.App.3d 372, 387.)

In the case at bench, Defendants seek $18,456.92 in attorney’s fees and costs,

based on a provision in the easement agreement, and on Defendants’ alleged status

as the prevailing party. Plaintiffs’ late-filed opposition was not considered in ruling on

the instant motion.

Plaintiffs’ action was based on an easement agreement, which is “contractual in

nature.” (MacKinder, supra, 151 Cal.App.3d at p. 739.) Plaintiffs sought attorney’s fees

pursuant to the agreement, and would arguably have received these fees had Plaintiffs

prevailed. However, the action was dismissed with prejudice as the result of a

termination sanction imposed for Plaintiffs’ failure to abide by the Discovery Act and this

Court’s orders. Plaintiffs did not prevail. The Court finds that Defendants are the

prevailing party, and thus entitled to the fees and costs requested. Accordingly,

Defendants’ motion for attorney’s fees and costs is granted.

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




Tentative Ruling



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Tentative Rulings for Department 403 (2)

Tentative Ruling

Re: In re Royell Montes



Motion: Petition to Compromise a Minor’s Claim

Tentative Ruling:

To deny without prejudice. Petitioner must file an amended petition, with

appropriate supporting papers and proposed orders, and obtain a new hearing date

for consideration of the amended petition. (Super. Ct. Fresno County, Local Rules, rule

2.8.4.)

Explanation:

The attorney seeks fees in the amount of 25% of gross. Absent exceptional

circumstances, the attorney is entitled to 25% of the net settlement (gross settlement

minus costs).

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

section 1019.5(a), no further written order is necessary. The minute order adopting this

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

notice of the order.

Tentative Ruling

Issued By: KCK on 02/20/18


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(30)

Tentative Ruling

Re: Priscilla A. Diaz v. Fitness Evolution

Superior Court No. 16CECG02822

Hearing Date: Thursday February 22, 2018 (Dept. 403)

Motion: Defendant Fitness Evolution’s Motion for Summary Judgment of

Adjudication

Tentative Ruling:

To Grant Summary Judgement.

Explanation:

A defendant moving for summary judgment has the initial burden of production to

make a prima facie showing that there are no triable issues of material fact. (Aguilar v.

Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant meets that burden by

showing that one or more elements of the cause(s) of action cannot be established, or

that there is a complete defense thereto. (Code Civ. Proc. § 437c, subds. (p)(2), (o)(2).)

To “show” a complete defense, defendant must present admissible evidence of each

essential element of the defense upon which it bears the burden of proof at trial.

(Anderson v. Metalclad Insulation Corp. (1999) 72 Cal.App.4th 284, 289.)

Regarding negligence and contractual release of liability, “[e]xpress assumption occurs

when the plaintiff, in advance, expressly consents … to relieve the defendant of an

obligation of conduct toward him, and to take his chances of injury from a known risk

arising from what the defendant is to do or leave undone. … The result is that … being

under no duty, [the defendant] cannot be charged with negligence.” (Saenz v.

Whitewater Voyages, Inc. (1990) 226 Cal.App.3d 758, 764.) Moreover, “parties may

contract for the release of liability for future ordinary negligence so long as such

contracts do not violate public policy.” (Anderson v. Fitness Internat., LLC (2016) 4

Cal.App.5th 867, 877.) Regarding premises liability, it is based in negligence, so it too is

subject to contractual release. (Salinas v. Martin (2008) 166 Cal.App.4th 404, 411.)

Whether plaintiff’s injuries are within the scope of the release is a matter of law, the

determination of which is proper for this Court. (Lombardo v. Santa Monica Young

Men's Christian Assn. (1985) 169 Cal.App.3d 529; see also Kitty-Anne Music Co. v. Swan

(2003) 112 Cal.App.4th 30, 37.)

Here, Defendant claims that Plaintiff may not recover any damages because she

agreed before the incident that she would not hold Defendant responsible for any

damages. To prove that there was such an agreement and that it applies to Plaintiff’s

claim, Defendant submits the agreement itself (SOE, filed: 12/8/17 Ex.2 [UMF 4-6; 10-12]),

as well as the declaration of Manager Jesse Sanchez wherein he authenticates it, and

states that all members are required to sign. (Ibid.)

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The agreement itself is clear and explicit and the relevant terms are not “buried in a

lengthy document, hidden among verbiage, or so encumbered with other provisions as

to be difficult to find.” (Leon v. Family Fitness Center (#107), Inc. (1998) 61 Cal.App.4th

1227, 1232; see also Bennett v. United States Cycling Federation (1987) 193 Cal.App.3d.

1485, 1490.) Plaintiff’s injuries are also reasonably related to the purpose for which the

release was signed. “[A]n individual who understandingly entered into the membership

agreement at issue can be deemed to have waived any hazard known to relate to the

use of the health club facilities. These hazards typically include the risk of a sprained

ankle due to improper exercise or overexertion, a broken toe from a dropped weight,

injuries due to malfunctioning exercise or sports equipment, or from slipping in the

locker-room shower (Leon, supra, 61 Cal.App.4th at 1234 emphasis added; see also

Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351, 1361; Lund v. Bally’s

Aerobic Plus, Inc. (2000) 78 Cal.App.4th 733, 739.) Finally, the agreement does not

violate public policy. (YMCA of Metro. Los Angeles v. Superior Court (1997) 55

Cal.App.4th 22, 27; see also Hulsey v. Elsinore Parachute Center (1985) 168 Cal.App.3d

333, 342-343.) Particularly, Courts have upheld liability releases and waiver provisions in

fitness club agreements. (Sanchez v. Bally’s Total Fitness (1998) 68 Cal.App.4th 62; see

also Benedek, supra, 104 Cal.App.4th 1351, 1356.)



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

notice of the order.

Tentative Ruling



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(30) Tentative Ruling

Re: UC Construction Co. v. The Schussing Co., Inc.


Hearing Date: Thursday February 22, 2018 (Dept. 403)

Motion: Plaintiff’s Writ of Attachment

Tentative Ruling:

To deny.

Explanation:

1. Proof of service of the moving papers must be filed no later than five court days

before the time appointed for the hearing. (Cal. Rules Court, rule 3.1300, subd.

(c); see also Code Civ. Proc., § 484.040.)

Here, the file contains no proof of service showing that the Application or

notice was served on opposing party.

2. An undertaking in the amount of $10,000.00 is required. (Code Civ. Proc.,

§489.220.)

Here, the required undertaking has not been posted. (App. Filed: 12/19/17 ¶15.)

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


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

minute order will constitute notice of the order.

Tentative Ruling



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Re: Padron v. City of Parlier

Court Case No. 16CECG00211


Motion: Defendants’ Motion for Attorney Fees

Tentative Ruling:

To grant attorney fees in the amount of $28,231.00.

Explanation:

Defendant moves for attorney fees based on Code of Civil Procedure section

1038, which provides that a governmental entity can recover the costs of defending

against unmeritorious and frivolous tort claims. (Kobzoff v. Los Angeles County

Harbor/UCLA Medical Center (1998) 19 Cal.4th 851, 857.) Such an award is authorized

only if the judgment was granted based on a motion for summary judgment or at trial

on the granting of a motion for nonsuit, directed verdict or motion under Code of Civil

Procedure section 631.8 (motion at close of plaintiffs case in nonjury trial). (Code Civ.

Proc. § 1038, subd. (d).) A separate motion is required. (Kobzoff, supra, at p. 856.) To

support the award, the court must find that either that plaintiff lacked good faith or that

he/she lacked “reasonable cause.” (Code Civ. Proc. § 1038, subd. (a); Kobzoff, supra,

at p. 854 (finding award of fees proper where trial court found lack of reasonable

cause); see also Gamble v. Los Angeles Dept. of Water and Power (2002) 97

Cal.App.4th 253, 259—“costs are recoverable if the trial court finds either that Gamble

lacked reasonable cause or lacked a good faith belief that the case was justified”

(emphasis in the original).)

Here, the court granted defendant’s motion for nonsuit and found that the

lawsuit was not brought with reasonable cause or a good faith belief that there was a

justifiable controversy, and thus the requirements of the statute have been met to justify

an award of attorney fees. It remains for the court to determine that the defense costs

set out on this motion were “reasonably and necessarily incurred” by defendant. (Code

Civ. Proc., § 1038, subd. (a)-(b) [“defense costs” include attorney’s fees].)

Defendant asks for fees in the amount of $30,136.60. Mr. Myers submits the

redacted invoices he has submitted to the defendant, City of Parlier, throughout the

course of this litigation. His hourly rate is reasonable: it started at $170/hour and in July

2017 it was raised to $180/hour.

However, there is a slight discrepancy in the total attorney fees requested with

what the court calculates from the invoices. Several of the invoices have entire charges

redacted, and it appears defendant does not intend to charge for these. But even with

these charges not included, by the court’s computations the unredacted attorney fee

charges on the invoices total $29,863.00, and not $30,136.60, as Mr. Myers states in his

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declaration. Therefore, the court’s analysis starts with assuming a total attorney fee

request of $29,863.00.

Of this amount, the charges appear “reasonable and necessary defense costs,”

except for two categories of fees which must be deducted from the amount

requested. First, the amounts already awarded as sanctions on the various discovery

motions must be deducted. This involves: 1) $340.00 for plaintiff’s motion for protective

order (which was denied); 2) $340.00 for plaintiff’s motion to compel (also denied); 3)

$510.00 for defendant’s motion to compel continuation of plaintiff’s deposition

(granted). Thus, in this category, a total of $1,190.00 must be deducted from the fees

requested.

Second, the charges for defendant’s motion for terminating sanctions will be

deducted, as this motion was not warranted: the only basis for the request was that

plaintiff had not paid the monetary sanctions that had been awarded to defendant,

and this is not a proper ground for terminating sanctions. This includes charges on the

February 2017 invoice totaling $425.00, and a charge on the March 2017 invoice of

$17.00, for a total deduction of $442.00.

Therefore, a total of $1,632.00 must be deducted from the $29,863.00 requested

(as adjusted pursuant to the discussion above), making the total attorney fee which will

be awarded $28,231.00



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


Tentative Ruling



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03

Tentative Ruling

Re: Alfaro v. Barrett Business Services, Inc.

Case No. 17 CE CG 02182

Hearing Date: February 22nd, 2018 (Dept. 403)

Motion: Defendant’s Petition to Compel Arbitration of Individual

Plaintiff and Dismiss Class Claims

Tentative Ruling:

To deny defendant’s petition to compel arbitration of plaintiff’s individual claims,

to dismiss the class claims, and to stay litigation of the PAGA claim. (Code Civ. Proc. §

1281.2.)

Explanation:

“[W]hen a petition to compel arbitration is filed and accompanied by prima

facie evidence of a written agreement to arbitrate the controversy, the court itself must

determine whether the agreement exists and, if any defense to its enforcement is

raised, whether it is enforceable. Because the existence of the agreement is a statutory

prerequisite to granting the petition, the petitioner bears the burden of proving its

existence by a preponderance of the evidence. If the party opposing the petition

raises a defense to enforcement - either fraud in the execution voiding the agreement,

or a statutory defense of waiver or revocation (see § 1281.2, subds. (a), (b)) - that party

bears the burden of producing evidence of, and proving by a preponderance of the

evidence, any fact necessary to the defense.” (Rosenthal v. Great Western Fin.

Securities Corp. (1996)14 Cal. 4th 394, 413.)

In ruling on a motion to compel arbitration, the court must first determine

whether the parties actually agreed to arbitrate the dispute, and general principles of

California contract law guide the court in making this determination. (Mendez v. Mid-

Wilshire Health Care Center (2013) 220 Cal.App.4th 534.) A petition to compel

arbitration is in essence a suit in equity to compel specific performance of a contract.

(Frog Creek Partners, LLC v. Vance Brown, Inc. (2012) 206 Cal.App.4th 515.) Arbitration

is a matter of contract and a party cannot be required to arbitrate a dispute he has not

agreed to submit. (Villacreses v. Molinari (2005) 132 Cal.App.4th 1223, review denied.)

Here, the court previously denied the petition to compel arbitration without

prejudice, finding that defendant had not met its burden of presenting evidence that

plaintiff, who does not speak or read English, had been given an accurate Spanish

translation of the agreement before he signed it. Plaintiff also presented the

declaration of his own translator, stating that the Spanish language translation of the

agreement that defendant eventually presented was unintelligible to the average

Spanish speaker due to errors and mistakes in terminology. Thus, the court concluded

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that defendant had not met its burden of showing that the parties formed an

agreement to arbitrate their dispute.

Now defendant has presented additional evidence in support of its renewed

petition, including the declaration of both the translator who prepared the Spanish

translation of the agreement and also another translator who has read an analyzed the

Spanish translation. Both of defendant’s translators conclude that the Spanish

translation is accurate and adequately conveys the meaning of the English version of

the agreement, despite a few minor grammatical errors. (Ovalle decl.; Green decl.)

Ms. Green also provides a “back translated” copy of the agreement, i.e. translated it

back from Spanish into English, and purports to represent the meaning of what the

Spanish version states. (Exhibit D to Defendant’s Evidence.)

In opposition, plaintiff has presented his own translators’ declarations, stating that

the Spanish version is so full of errors in grammar, word choice, and syntax as to be

completely unintelligible, and that it is not an accurate translation of the English text of

the agreement. (Almada decl.; Benavides decl.) Ms. Almada also presents her own

“back translation” of the Spanish version of the agreement, which she claims more

accurately states the meaning of the version that was read by plaintiff. (Exhibit 3 to

Almada decl.) The back translation provided by Ms. Almada contains numerous errors

in grammar, syntax and word choice that make it virtually incomprehensible.

It is difficult to assess the credibility of the conflicting experts based on their

declarations and brief excerpts of their depositions alone. However, plaintiff’s experts

do raise some serious and credible concerns about the accuracy of the Spanish version

of the agreement, including the mistranslation of legal terms such as “waiving a jury”

and “class action” that are central to the issues raised in the petition to compel

arbitration.

The “back translated” version of the agreement provided by Ms. Almada also

garbles much of the language of the agreement, and even changes the overall effect

of the agreement in some places. For example, the back translation states that “the

arbitrator shall not have the authority to grant additional findings or to limit the findings

that the arbitrator would consider appropriate in regards to the nature and extent of

the claim[s] asserted.” (Exhibit 3 to Almada decl., p. 3, second paragraph, emphasis in

original.) The original English version states that “the arbitrator shall have authority to

grant additional discovery or to restrict discovery as the arbitrator deems appropriate

based on the nature and extent of the claim(s) asserted.” (Id., p. 3, first paragraph,

emphasis added.)

Thus, the court finds that plaintiff’s experts are credible, and that their

declarations point to numerous serious changes, omissions, and errors in the Spanish

language version of the arbitration agreement. Plaintiff himself claims that he does not

understand what the agreement says, and that no one explained it to him. He also

claims that he has no recollection of reading or signing the agreement. (Alfaro decl.)

While plaintiff’s statements may be self-serving, it does appear that the agreement may

not have been accurately translated into Spanish, and thus even if plaintiff did sign the

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agreement, he should not be deemed to have read and understood it before he

signed it.

Therefore, the court intends to find that the defendant has failed to meet its

burden of showing that the parties formed an agreement to arbitrate their dispute.

Consequently, the court intends to deny the petition to compel plaintiff to attend

arbitration, as well as the motion to dismiss the class action claims and stay the PAGA

claims.

Also, as defendant has not met its burden of showing that an agreement to

arbitrate exists, the court does not have to reach the other arguments raised by plaintiff

in opposition to the petition. Finally, the court intends to overrule plaintiff’s objections to

defendant’s evidence.

Pursuant to CRC 3.1312 and CCP §1019.5(a), no further written order is necessary.

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

service by the clerk will constitute notice of the order.

Tentative Ruling



17

(29)

Tentative Ruling

Re: Esajian, et al. v. Holland, et al.



Motions: Plaintiff Esajian’s motion to strike or tax costs; Defendant Holland’s

motion to strike or tax costs

Tentative Ruling:

To grant Plaintiff’s motion to tax Defendant’s costs. (Code Civ. Proc. §1032(a).)

Defendant’s costs are taxed in the amount of $6,253.04. To grant Defendant’s motion to

tax Plaintiff’s costs. (Code Civ. Proc. §§ 998, 1032(a).) Plaintiff’s costs are taxed in the

amount of $37,486.53.

Explanation:

Except as otherwise expressly provided by statute, a prevailing party is entitled as

a matter of right to recover costs in any action or proceeding. (Code Civ. Proc.

§1032(b).) A “prevailing party” is a party with a net monetary recovery, a defendant in

whose favor a dismissal is entered, a defendant where neither the plaintiff nor the

defendant obtains any relief, and a defendant as against those plaintiffs who do not

recover any relief against that defendant; when any party recovers other than

monetary relief and in situations other than as specified, the prevailing party will be as

determined by the court, and under those circumstances, the court, in its discretion,

may allow costs or not and, if allowed, may apportion costs between the parties on the

same or adverse sides. (Code Civ. Proc. §1032(a)(4).)

Recoverable costs include filing and motion fees; costs related to taking, video

recording, and transcribing necessary depositions; service of process by a registered

process service; ordinary witness fees; court reporter fees; and fees for models and

blowups of exhibits and photocopies of exhibits that were reasonably helpful in aiding

the trier of fact. (Code Civ. Proc. §1033.5(a).)

A cost that is not compulsory or specifically prescribed under section 1033.5

subdivisions (a) or (b), may nonetheless be recoverable, subject to the court’s discretion

under section subdivision (c) if it is shown that the costs were reasonable in amount and

reasonably necessary to the conduct of litigation, but not where the costs were “merely

convenient or beneficial to” preparation for litigation. (See El Dorado Meat15 Co. v.

Yosemite Meat and Locker Service, Inc. (2007) 150 Cal.App.4th 612, 616.) The party

seeking to tax costs bears the burden of showing that the requested costs were

unreasonable or unnecessary. (Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131.)

Recoverable costs do not typically include expert witness fees where the

witnesses were not ordered by the court. (Code Civ. Proc. §§ 1032, 1033.5(b)(1).) Unlike

18

other costs to which a prevailing party is entitled as a matter of right, an award of

expert fees under section 998, subdivision (c) is discretionary, and may be recoverable

where, e.g., a more favorable judgment for defendant follows plaintiff's rejection of a

valid pretrial section 998 settlement offer. (Kahn v. The Dewey Group (2015) 240

Cal.App.4th 227, 237; Chaaban v. Wet Seal, Inc. (2012) 203 Cal.App.4th 49, 55; see

Code Civ. Proc. §998.) “[A] non-settling plaintiff is at least potentially liable under

[section 998] subdivision (c) for the all of the expert fees a defendant was required to

pay. The policy underlying section 998, subdivision (c) is plain. It is to encourage

settlement by providing a strong financial incentive to a party -whether it be a plaintiff

or a defendant- who fails to achieve a better result than that party could have

achieved by accepting his or her opponent's settlement offer. This is the stick. The carrot

is that by awarding costs to the putative settler the statute provides a financial

incentive to make reasonable settlement offers.” (Chaaban, supra, 203 Cal.App.4th at

p. 54, internal citation, quotation marks, and brackets omitted.) Where defendant

makes a section 998 offer, and plaintiff rejects it then obtains a less favorable judgment,

“plaintiff shall not recover his or her postoffer costs and shall pay the defendant's costs

from the time of the offer. In addition…the court…in its discretion, may require the

plaintiff to pay a reasonable sum to cover postoffer costs of the services of expert

witnesses…actually incurred and reasonably necessary in…preparation for trial…or

during trial…of the case by the defendant.” (Code Civ. Proc. §998(c)(1).)

A section 998 offer made to multiple parties is generally valid only if it is expressly

apportioned among the parties, and is not conditioned on acceptance by all of them.

(Menees v. Andrews (2004) 122 Cal.App.4th 1540, 1544.) However, this general rule does

not apply where the parties to whom the offer is made have a unity of interest, resulting

in a single indivisible injury. (Peterson v. John Crane, Inc. (2007) 154 Cal.App.4th 498,

505-506; Vick v. DaCorsi (2003) 110 Cal.App.4th 206, 211-213.) Put another way, where a

party sues in various capacities, a section 998 offer to “plaintiffs” is valid even where it is

presented on an all or nothing basis, and not apportioned between or among the

plaintiffs, as “plaintiffs” in such a situation are really only one person, prosecuting the

action in different capacities. (Id. at pp. 506-507.) In such an instance, the singular

party, though acting in various capacities, is the sole person who has to decide

whether or not to accept a section 998 offer, so any potential conflict regarding

multiple parties’ ability to agree whether or not to accept a section 998 offer, is absent.

(Peterson, supra, 154 Cal.App. 4th at p. 508, 510.) Last, where a section 998 offer is

presented without apportioning it between or among the offerees, “it would be

consistent with the settlement purposes of section 998 for an offeree to clarify any

perceived ambiguity of an offer with the offeror.” (Id. at p. 506, fn. 8.)

In the case at bench, Plaintiff Esajian seeks to strike or tax costs sought by

Defendant Holland; Defendant Holland seeks to strike or tax costs sought by Plaintiff

Esajian. Each party argues he is the “prevailing party,” entitled to recover his costs.

Plaintiff argues that Defendants Holland and Fransen & Sawyer, LLP’s section 998

offers were invalid because both were presented jointly to Plaintiff Esajian and Plaintiff

Westhaven, were conditioned on both plaintiffs accepting the offer, and were not

apportioned. Defendant Holland sufficiently shows a unity of interest between Plaintiffs

Esajian and Westhaven to support a single section 998 offer presented to Plaintiffs

19

jointly, e.g., all decisions regarding Westhaven’s participation in the action were made

exclusively by Mr. Esajian; the complaint states plainly that Westhaven was formed for

Plaintiff Esajian to hold his membership interest in Kindred Island Holdings, LLC, and that

Mr. Esajian was the sole member and owner of a 100% interest in Westhaven; during

trial, Mr. Esajian stated that he was seeking a single verdict for himself and Westhaven;

Plaintiffs’ injuries appeared to be single, and indivisible; and there was no potential for

disagreement with regard to accepting or rejecting Defendants’ section 998 offers.

Moreover, if Plaintiff was unclear as to the intended apportionment of the section 998

offers, Plaintiff was in a position to seek clarity from Defendants. Defendants’ section 998

offers to Plaintiffs were valid.

Though the jury here found that Plaintiff failed to mitigate his damages, the

verdict was still in Plaintiff’s favor. Plaintiff received a net monetary recovery.

Accordingly, Plaintiff is the “prevailing party” under section 1032, subdivision (b).

However, as Plaintiff’s net recovery is less than either of Defendants’ section 998 offers,

Plaintiff “shall not recover his…postoffer costs and shall pay” Defendant’s costs

accruing from the time of Defendant’s section 998 offer.

Plaintiff seeks to strike or tax Defendant’s costs for filing and motion fees,

deposition costs, service of process costs, witness fees, travel expenses, and trial tech

costs. Item 1 is taxed in the amount of $1,025.00, as the amounts sought before

Defendant’s June 12, 2017, section 998 offer are improper, and the $120 filing fees are

double the actual filing fee of $60. Item 4 is taxed in the amount of $3,558.80, and item

16 is taxed in the amount of $1,669.24, as these costs appear to have been incurred

prior to June 12, 2017. The remaining costs are allowable.

Defendant seeks to strike or tax Plaintiff’s costs for exhibits for depositions, legal

research, and Plaintiff’s trial technician. As section 998 clearly provides that Plaintiff may

not recover his postoffer costs, Defendant’s motion to tax Plaintiff’s costs is granted as to

all costs incurred after June 12, 2017. Plaintiff’s costs are taxed in the amount of

$37,486.53.

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




Tentative Ruling



20

Tentative Rulings for Department 501


Re: Mendoza v. Campos Apartments

Case No. 15CECG00904


Motion: By Plaintiff for Summary Adjudication against Defendants.

Tentative Ruling:

To deny the motion in its entirety.

Explanation:

Plaintiff filed a complaint alleging several causes of action for back wages and

penalties stemming from her employment with Defendants Campos Apartments and

the family running Campos Apartments. In general, and as relevant here, her claims are

that she was treated as an exempt employee, even though she should not have been,

and is therefore owed overtime pay and penalties for late payments and incomplete

wage statements. She also claims to be owed reimbursements for travel and cell phone

use.

In this motion, Plaintiff moves for summary adjudication as to four of her claims,

her Second Cause of Action for failure to pay overtime compensation, her Sixth Cause

of Action for failure to provide adequate wage statements, her Eighth Cause of Action

for failure to reimburse business expenses, and her Ninth Cause of Action for failure to

pay all wages upon dismissal. Because there is a dispute of fact as to whether Plaintiff

was an exempt employee, and because there are disputes of fact as to the amounts

allegedly owed to Plaintiff for the various wage, hour, and reimbursement

discrepancies, summary adjudication is inappropriate for each of the claims at issue in

this motion.

Length of Notice

Defendants initially argue that this motion should not be considered because it

was not served in a timely fashion.

Seventy-five days’ notice is required on a motion for summary judgment. (Code

Civ.Proc. §437c, subd.(a).) But for motions served by fax, express mail, “or another

method of delivery providing for overnight delivery,” the 75-day notice period is

21

extended by only two court days. (Code Civ.Proc. §437c, subd.(a)(2).) The applicable

notice period is computed by counting backwards from the hearing date, excluding

the day of the hearing. (Code Civ.Proc. §12c.)

This motion was calendared for February 22, 2018. Seventy-five days before that

date would be Saturday, December 9, 2018. Two days before that, would be Thursday,

December 7, 2018.

Defendants argue that the Sunday date is not a valid date, insofar as the

Plaintiffs would have had to serve notice two days before Friday, December 8, 2018

(which would mean notice had to be provided by December 6, 2018) the next week

day before Saturday, December 9, 2018. However, research has found no case law

that supports this. Indeed, the statute states that the notice “shall be served on all other

parties to the action at least 75 days before the [hearing]” and that for overnight

delivery, “the required 75-day notice shall be increased by two court days.” Therefore,

notice had to be received on or before Thursday, December 7, 2017.

Defendants argue that Code of Civil Procedure 12a, subdivision (a) requires that

because the “75 day” deadline falls on the Saturday, the period is extended to the

previous day, Friday. However, in the interests of justice, it seems clear that the proper

interpretation is that this should be considered as one overall deadline of 75 days plus

two court days, and not as two separate deadlines.

The proof of service indicates that the motion was served on December 7, 2018

by overnight delivery. Therefore, the notice of motion is timely.

The Merits

Where a plaintiff seeks summary judgment, the burden to produce admissible

evidence on each element of a cause of action entitling them to judgment. (Code

Civ.Proc. §437c, subd.(p)(1).) A plaintiff must produce evidence that would require a

reasonable trier of fact to find any underlying material more likely than not. (Aguilar v.

Atlantic Richfield Co. (2001) 25 Cal.4th 826, 851.)

If the plaintiff meets that threshold, the burden shifts to defendant to show that a

triable issue of one or more material facts exists as to that cause of action or a defense

thereto. (Code Civ.Proc. §437c, subd.(p)(1).)

Second Cause of Action for Failure to Pay Overtime

Labor Code §515, subdivision (a) provides that an employee is exempt from its

overtime provision if they are “primarily engaged” in select duties and customarily and

regularly exercises independent judgment and earns a monthly salary equivalent to no

less than two times the state minimum wage for full-time employment. (CACI no. 2702.)

The minimum wage was $8.00 over the time in question. The monthly salary for a

minimum wage would be $2,773.33. The undisputed facts indicate that she earned less

than that ($2,200.00) during the time in question. (UMF 7.) She has presented facts that

22

support her contention that her duties involved clerical activities and manual labor,

which do not fit either the administrative, executive, or professional classes of exempt

employee. (UMF 9; Labor Code §515; 8 Cal.C.Regs. §11010, et seq.) Finally, she

presents evidence that she worked over 56 hours each week. (UMF 15-17.)

She notes that, where, as here, an employer fails to keep adequate records, an

employee can meet her burden of proof in wage actions by her own testimony

showing that she in fact performed the work for which she was not properly

compensated. (Hernandez v. Mendoza (1988) 199 Cal.App.3d 721, 727.) The burden

then shifts to the employer to come forward with evidence of the precise amount of

work performed or that negates the reasonableness of the inference the evidence

supports. (Anderson v. Mt. Clemens Pottery Co. (1946) 328 U.S. 680, 687-88.)

Plaintiff has presented her own declaration to indicate that she worked over 56

hours per week. (UMF 15.)

In opposition, Defendants first argue that Plaintiff is, in fact, an administrative

employee, since she was designated a “building manager” with the authority to market

and rent apartments to tenants. She also supervised at least one maintenance worker.

(UMF 11.) Defendants also provide evidence to show that, at least on some occasions,

Plaintiff did not work before 9 a.m. or after 6 p.m., and deny that several of the “after

hours” work she did was done contrary to employer directives. (UMF 16.) The on-site

maintenance worker, for example, says that Plaintiff was not seen after 6 pm with

potential tenants. (UMF 16.) Notably, Defendants did not produce evidence to counter

Plaintiff’s claims that she was paid less than the minimum required to find her to be an

exempt employee. Therefore, based on the evidence in this motion, there does seem

to be no dispute that she was an overtime-eligible employee.

However, as noted above, Defendants have presented evidence from which a

jury could conclude that she did not work more than 40 hours in any week, and, in any

event, there is no undisputed evidence as to the exact number of overtime hours she

worked in order to entitle her to a precise judgment. While it seems that Plaintiff may

have shown that she worked overtime at least once, and is therefore entitled to

damages and penalties, the question as to the exact number of hours of overtime

worked, and therefore the consequent damages and penalties, foreclose summary

adjudication. (DeCastro West Chodorow & Burns, Inc. v Superior Court (1996) 47

Cal.App.4th 410, 412 (summary adjudication as to one or more components of

compensatory damages is inappropriate where it does not dispose of the entire cause

of action). As a result, summary adjudication cannot be granted on this ground.

Sixth Cause of Action for Failure to Provide Adequate Wage Statements

Labor Code §226 requires employers to furnish each employee with an

accurate, itemized written wage statement semimonthly or at the time of each wage

payment. There are various specific requirements as well as various penalties

associated with the failure to provide these statements, as well as costs and attorney’s

fees. (Labor Code §226, subd.(e).)

23

Plaintiff maintains that she did not receive any accurate wage statements, and

that what statements she did receive did not contain the required showing of

deductions and so forth. (UMF 36-42.)

However, as noted above, there is a dispute of fact as to how many overtime

hours she may have worked, and the fact that there are missing wage statements

would, almost by definition, raise a question of fact as to whether those missing

statements satisfied the Labor Code §226 requirements. As a result, the full measure of

damages to which Plaintiff is entitled is in dispute and summary adjudication cannot be

granted as to this cause of action. (DeCastro West Chodorow & Burns, Inc. supra, 47

Cal.App.4th at 412, 422-23.)

Eighth Cause of Action for Failure to Reimburse

Labor Code §2802, subdivision (a) requires employers to pay all necessary

expenditures or losses incurred by the employee in direct consequence of the

discharge of her duties. Plaintiff has evidence that she ran regular errands and used her

cell phone on a daily basis and was not reimbursed for same. (UMF 44-54.)

Defendants argue that summary adjudication should be denied since (a) Plaintiff

did not log her driving miles (UMF 47), (b) there is a dispute as to the number of miles

Plaintiff was required to drive (insofar as Defendants say she was not required to drive

any other than to and from work) (UMF 44-46), and (c) there is a question of fact as to

the amount owed for the cellular service and whether Plaintiff was required to use a

cellular phone in her duties (UMF 48-54). The second and third issues noted by

Defendants raise disputes of material fact as to the nature and amount of damages

claimed by Plaintiff. (DeCastro West Chodorow & Burns, Inc. supra, 47 Cal.App.4th at

412, 422-23.)

For these reasons, summary adjudication is not appropriate for this cause of

action.

Ninth Cause of Action for Failure to Pay All Wages upon Discharge.

Labor Code §201 requires an employer to pay all wages due upon discharge

and sets a penalty for failure to do so. Plaintiff maintains that she is owed for 736 hours

of overtime and that this was not paid on discharge (UMF 88). Therefore, she contends

that the applicable penalties attach such that she is owed $5,083.90 in penalties.

(Memorandum of Points and Authorities, at pp. 13-14.)

As noted above, however, there is a question of fact as to whether and to what

extent she worked more than 40 hours per week, meaning that there is at least a

dispute as to the nature and extent of her damages making summary adjudication

inappropriate. (DeCastro West Chodorow & Burns, Inc. supra, 47 Cal.App.4th at 412,

422-23.)

For all the above reasons, the motion for summary adjudication as to the

Second, Sixth, Eighth, and Ninth Causes of Action is denied in its entirety.

24

Objections by Plaintiff

The objections raised by Plaintiff to Defendants’ evidence largely go to the

weight, and not the admissibility of the evidence and are therefore overruled.

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

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

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

service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: MWS on 02/21/18


25

Tentative Ruling

Re: Carrillo v. J & J Ranch

Superior Court Case No: 14CECG00774

Hearing date: February 22, 2018 (Dept. 501)

Motion: Motion for default

Tentative Ruling:

Motion to enter default as to Farm Fresh Fruit, Co. is moot. Plaintiff correctly

points out that the dismissal entered on November 7, 2017 was only as to Aslan Cold

Storage, LLC. Therefore the entire case should not have been dismissed and the

request for default as to Farm Fresh Fruit, Co. submitted on December 15, 2017 should

not have been denied for the reason stated. The Court has corrected the case status to

show that the entire case is not dismissed.

The Court sua sponte strikes the second amended complaint filed on March 6,

2017.

Explanation:

Plaintiff correctly points out that the dismissal entered on November 7, 2017 was

only as to Aslan Cold Storage, LLC. Therefore the entire case should not have been

dismissed and the request for default as to Farm Fresh Fruit, Co. submitted on

December 15, 2017 should not have been denied for the reason stated. The Court has

corrected the case status to show that the entire case is not dismissed. The Court has

reevaluated the request for default submitted on December 15, 2017. Default has

been entered. However, upon the Court’s review of the case it was discovered that

the second amended complaint was filed without leave of court. The Court sua sponte

strikes the second amended complaint filed on March 6, 2017. Plaintiff failed to obtain

court permission prior to filing the second amended complaint. The operative pleading

in this case is now the first amended complaint filed on November 12, 2014 along with

the amendment filed April 11, 2016. The corrected default entered on February 20,

2018 is void as it was based upon the service of the now stricken second amended

complaint. The default entered on September 15, 2015 remains in effect.

Pursuant to California Rules of Court, rule 391(a), and Code of Civil Procedure




Tentative Ruling



26

(5)

Tentative Ruling

Re: Magdaleno et al. v. Fresno Community Hospital and

Medical Centers, Inc. dba Community Regional

Medical Center et al.

Superior Court Case No. 16 CECG 01934


Motion: Leave to file Second Amended Complaint and Add

Punitive Damages Claim pursuant to CCP § 425.13

Tentative Ruling:

To overrule all objections. To deny the motion seeking leave to add a claim for

punitive damages with prejudice.

To deny the motion seeking leave to file a second amended complaint without

prejudice on the grounds that the proposed Second Amended Complaint adds new

causes of action rather than simply punitive damages. This type of amended pleading

must be addressed separately and not jointly. There must be compliance with CRC

Rule 3.1324 via the initial motion not in reply. A separate filing fee must be paid.

Explanation:

CCP § 425.13. Negligence actions against health care providers; claims for punitive

damages; amended pleadings states:

(a) In any action for damages arising out of the professional negligence of a health

care provider, no claim for punitive damages shall be included in a complaint or other

pleading unless the court enters an order allowing an amended pleading that includes

a claim for punitive damages to be filed. The court may allow the filing of an amended

pleading claiming punitive damages on a motion by the party seeking the amended

pleading and on the basis of the supporting and opposing affidavits presented that the

plaintiff has established that there is a substantial probability that the plaintiff will prevail

on the claim pursuant to Section 3294 of the Civil Code. The court shall not grant a

motion allowing the filing of an amended pleading that includes a claim for punitive

damages if the motion for such an order is not filed within two years after the complaint

or initial pleading is filed or not less than nine months before the date the matter is first

set for trial, whichever is earlier.

(b) For the purposes of this section, “health care provider” means any person licensed

or certified pursuant to Division 2 (commencing with Section 500) of the Business and

Professions Code, or licensed pursuant to the Osteopathic Initiative Act, or the

Chiropractic Initiative Act, or licensed pursuant to Chapter 2.5 (commencing with

Section 1440) of Division 2 of the Health and Safety Code; and any clinic, health

dispensary, or health facility, licensed pursuant to Division 2 (commencing with Section

27

1200) of the Health and Safety Code. “Health care provider” includes the legal

representatives of a health care provider.

Civil Code § 3294. Exemplary damages; when allowable; definitions states in relevant

part:

(a) In an action for the breach of an obligation not arising from contract, where it is

proven by clear and convincing evidence that the defendant has been guilty of

oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may

recover damages for the sake of example and by way of punishing the defendant.

(b) An employer shall not be liable for damages pursuant to subdivision (a), based

upon acts of an employee of the employer, unless the employer had advance

knowledge of the unfitness of the employee and employed him or her with a conscious

disregard of the rights or safety of others or authorized or ratified the wrongful conduct

for which the damages are awarded or was personally guilty of oppression, fraud, or

malice. With respect to a corporate employer, the advance knowledge and conscious

disregard, authorization, ratification or act of oppression, fraud, or malice must be on

the part of an officer, director, or managing agent of the corporation.

(c) As used in this section, the following definitions shall apply:

(1) “Malice” means conduct which is intended by the defendant to cause injury to the

plaintiff or despicable conduct which is carried on by the defendant with a willful and

conscious disregard of the rights or safety of others.

(2) “Oppression” means despicable conduct that subjects a person to cruel and unjust

hardship in conscious disregard of that person's rights.

(3) “Fraud” means an intentional misrepresentation, deceit, or concealment of a

material fact known to the defendant with the intention on the part of the defendant

of thereby depriving a person of property or legal rights or otherwise causing injury.

(d) Damages may be recovered pursuant to this section in an action pursuant to

Section 377 of the Code of Civil Procedure or Section 573 of the Probate Code based

upon a death which resulted from a homicide for which the defendant has been

convicted of a felony, whether or not the decedent died instantly or survived the fatal

injury for some period of time. The procedures for joinder and consolidation contained

in Section 377 of the Code of Civil Procedure shall apply to prevent multiple recoveries

of punitive or exemplary damages based upon the same wrongful act.

(e) The amendments to this section made by Chapter 1498 of the Statutes of 1987

apply to all actions in which the initial trial has not commenced prior to January 1,

1988.9

Filing Deadline and Request for Judicial Notice

The Plaintiff filed the motion on December 4, 2017, the last day to meet the nine

month deadline set forth in CCP § 425.13(a). The evidence submitted by the Plaintiff in

support of the initial motion is the Declaration of Carlos Avila, one of the nurses who

cared for Santillan, portions of the depositions of Rosalina Peyegrin and Alexandra

Lewis, two of the nurses who cared for the decedent, and various discovery responses.

See Exhibits 2-8 attached to the Declaration of Davidson. Finally, the Declaration of

Mariann F. Cosby, Plaintiff’s expert on the standard of care for nurses is submitted.

28

There is a request for judicial notice of Jennifer Bodine’s doctoral thesis entitled

“A Comparison of Educational Approaches to the End-of—Life-Nursing Education

Consortium (ELNEC).” It was “approved” by “Christine Swift”, an employee of

Community Regional Medical Center. The Plaintiff requests judicial notice pursuant to

Evidence Code § 452(h). The request will be denied.

First, the material was not submitted on December 4, 2017 with the request itself.

This is mandatory. See Evidence Code § 453 and CRC 3.1306(c). Second, Evidence

Code § 452(h) applies to “facts and propositions that are not reasonably subject to

dispute and are capable of immediate and accurate determination by resort to

sources of reasonably indisputable accuracy.” A third party’s doctoral thesis may

contain facts that can be verified but the thesis itself is not subject to judicial notice.

See by analogy People v. Ramos (1997) 15 Cal.4th 1133, 1167 and McKelvey v. Boeing

North American, Inc. (1999) 74 Cal.App.4th 151, 162, 652-653 & fn. 13.

As for the evidence itself, the Court is disinclined to consider any evidence

submitted in reply, sur-reply or the trial brief. CCP § 425.13(a) limits the evidence to

supporting and opposing affidavits. It has a deadline for filing and specifically prohibits

the granting of the motion in violation of the deadline. See Brown v. Superior Court

(1990) 224 Cal.App.3d 989. “Practitioners would know they must move quickly after

filing a complaint to prepare a showing for punitive damages, or lose the claim. The

practitioners have the ability to control and accelerate discovery to prepare for trial.”

Id. At 993. See also Freedman v. Superior Court (2008) 166 Cal.App.4th 198, 206. As a

policy consideration, a plaintiff could file the motion “to get its foot in the door” with

only a modicum of evidence in support and then “sandbag” the opposition with

evidence submitted in reply. This explains why a party is rarely allowed to submit new

evidence in reply on a motion for summary judgment. [San Diego Watercrafts, Inc. v.

Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316]

Plaintiffs’ Argument

Plaintiffs argue that the evidence submitted establishes that the Defendants

acted with “malice”; i.e., “[a] conscious disregard of the safety of others may constitute

malice within the meaning of statute governing punitive damages; in order to justify an

award of punitive damages on such basis, plaintiff must establish that defendant was

aware of probable dangerous consequences of his conduct, and that he willfully and

deliberately failed to avoid those consequences.” (Taylor V. Superior Court (1979) 24

Cal.3d 890.) See Plaintiffs’ initial Memorandum of Points and Authorities in support at

page 17 lines 12-18. [Note: Taylor, supra involved a plaintiff injured by an intoxicated

motorist. It was not a medical malpractice case.] Plaintiffs go on to state that “this

latter definition most appropriately characterizes a sequence of failures to provide

proper medical care on the part of both Defendants in this case that can best be

described as apathetic, uncaring, and despicable.” Id. At lines 19-21.

“The cases interpreting section 3294 make it clear that in order to warrant the

allowance of punitive damages the act complained of must not only be wilful in the

sense of intentional, but it must also be accompanied by aggravating circumstances,

29

amounting to malice. The malice required implies an act conceived in a spirit of

mischief or with criminal indifference towards the obligations owed to others. There must

be an intent to vex, annoy or injure. Mere spite or ill will is not sufficient; and mere

negligence, even gross negligence is not sufficient to justify an award of punitive

damages. (Citations.)” (Italics omitted; Ebaugh v. Rabkin (1972) 22 Cal.App.3d 891, 894,

99 Cal.Rptr. 706, 708.) The only form of malice contemplated by section 3294, which

creates the right to exemplary damages, is malice in fact. Malice in fact denotes ill will,

or desire to do harm for the mere satisfaction of doing it. *669 (Id., at pp. 894-895, 99

Cal.Rptr. at p. 708.) “The central spirit of the exemplary damage statute, the demand

for evil motive, is violated by an award founded upon recklessness alone.” (G. D. Searle

& Co. v. Superior Court, supra, 49 Cal.App.3d 22, 32, 122 Cal.Rptr. 218, 224.) [Tresemer v.

Barke (1978) 86 Cal.App.3d 656, 668–669]

Evidence in support and in opposition

The Declaration of Avila fails to state his credentials to support his determination

that the decedent should not have been placed in the hallway on a gurney without

any monitors. He fails to provide any qualifications for his determination that the

decedent should not have been moved to the “green zone” from the “red zone.”

Much of his declaration is made on “information and belief.”

The opposition requests judicial notice of an accusation filed on October 20,

2017 regarding Nurse Avila. The Court will grant the request pursuant to Evidence Code

§ 457(c) but only as to the fact that it was filed.

The opposition submits the Declaration of Alexandra Ramirez, R.N. She

contradicts Avila’s statement that the decedent was “handed off” to Avila without any

history, etc. See ¶¶ 6-7. The Declaration of Wade contradicts Mr. Avila’ statement that

he was terminated due to his involvement in the care of the decedent. In addition,

Wade indicates that Mr. Avila had been hired in April of 2015 and was on a probation

period of six months when he was terminated. See Declaration of Wade at ¶¶ 4-6. The

Declaration of Jill Emmi is submitted by the Defendants and contradicts the assertion of

Nurse Avila that there was a state investigation after the death of the decedent. Id. At

¶5.

The Declaration of Cosby is submitted. She does qualify as an expert in nursing

care. See ¶ 3 and her CV attached as Exhibit 1. The Declaration of Cosby may be

sufficient to support Plaintiffs’ position that there was a breach in the standard of care.

But, the Declaration does not provide “clear and convincing” evidence that any

breach in the standard of care rises to the level of “malice.” See Civil Code § 3294(a).

Notably, Ms. Cosby relies upon a transcript of an interview with Nurse Avila. Apparently,

this is the interview conducted by a private investigator. See Declaration of Davidson

at ¶ 11. This was not a deposition taken under oath with cross-examination. As stated

supra, the assertions of Nurse Avila have been contradicted.

As for the discovery responses, there are mechanisms in the Discovery Act to

deal with incomplete responses. See CCP §§ 2030.300; 2031.300 and 2033.290. As a

policy consideration, it is unwise to conclude that incomplete responses are

30

tantamount to a “conspiracy” to withhold evidence. Notably, there are sanctions that

can be imposed for denials proved false at trial. See CCP § 2033.420.

Finally, even if the evidence submitted in reply, sur-reply and the joint trial brief

were considered, it does not establish by the “clear and convincing” standard that the

Defendants’ treatment constituted “malice.” In the end, the Plaintiffs have not met

their burden of presenting “clear and convincing” evidence that establish there is a

“substantial probability” that they will prevail on their claims for punitive damages. See

Aquino v. Superior Court (1993) 21 Cal.App.4th 847. In so finding, the Court makes no

determinations regarding credibility. The motion seeking to add a claim for punitive

damages will be denied.

Pursuant to California Rules of Court, Rule 3.1312, subd. (a) and Code of Civil

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

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

the clerk will constitute notice of the order.

Tentative Ruling



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Re: LeDuc, et al. v. Guerra, et al.

Superior Court Case no. 13CECG03811


Motion: Modify order

Tentative Ruling:

To grant. (Code Civ. Proc. §473(b); Prob. Code §3601.) Moving parties to submit

a proposed order that is consistent with the Court’s ruling below, within 10 days of the

clerk’s service of the minute order.

Explanation:

“The court may, upon any terms as may be just, relieve a party or his or her legal

representative from a judgment, dismissal, order, or other proceeding taken against him

or her through his or her mistake, inadvertence, surprise, or excusable neglect.” (CCP

§473.) “The court making the order or giving the judgment [regarding the compromise

of a minor’s claim], as a part thereof, shall make a further order authorizing and

directing that…attorney's fees, as the court shall approve and allow therein, shall be

paid from the money…to be paid or delivered for the benefit of the minor[.]” (Prob.

Code §3601.)

Here, Plaintiffs state they inadvertently failed to include in the petition to

compromise the minor’s claim, a request that the minor’s proportionate share of the

legal fees be taken out of the minor’s recovery. Plaintiffs now move, pursuant to section

473(b), to correct that mistake. The motion is unopposed, and is sufficiently supported.

Accordingly, Plaintiffs’ motion to modify the order on the minor’s compromise that was

entered March 7, 2017, is granted. The Court did not find a proposed order in its file;

Plaintiffs to provide a proposed modified order within 10 days of the clerk’s service of

the minute order.

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


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

minute order will constitute notice of the order.

Tentative Ruling



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tentative rulings for february 22, 2018 departments 402 ... · section 1019.5, subdivision (a), no...

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