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Tentative Rulings for October 12, 2017
Departments 402, 403, 501, 502, 503
There are no tentative rulings for the following cases. The hearing will go forward on
these matters. If a person is under a court order to appear, he/she must do so.
Otherwise, parties should appear unless they have notified the court that they will
submit the matter without an appearance. (See California Rules of Court, rule 3.1304(c).)
15CECG03271 Wample v. Yosemite Wine & Spirit International Trade Group (Dept.
403) at 3:00 PM
17CECG03220 In the Matter of Yare Villeda-Duenas (Dept. 403) at 3:00 PM
17CECG03222 Villeda-Duenas v. Rodriguez (Dept. 403) at 3:00 PM
15CECG03775 Eggman v. Kullberg (Dept. 402)
16CECG00180 Rivera-Diaz v. Rivera-Diaz (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.
14CECG00656 AGI Publishing Inc. v. AT&T (Dept. 402) [Hearing on motion to seal is
continued to Tuesday, October 17, 2017, at 3:30 p.m. in Dept. 402]
15CECG01501 Miranda v. Hovannisian (Dept. 403) is continued to Thursday,
October 19, 2017, at 3:30 p.m. in Dept. 403.
17CECG01824 Riddle v. Community Medical Centers (Dept. 402) is continued to
Thursday, November 2, 2017, at 3:30 p.m. in Dept. 402.
15CECG01565 Maldonado v. Fresno Community Hospital and Medical Center is
continued to Thursday, October 19, 2017, at 3:30 p.m. in Dept. 402.
________________________________________________________________
(Tentative Rulings begin at the next page)
Tentative Rulings for Department 402
(2)
Tentative Ruling
Re: Tijerina et al. v. Almeida
Superior Court Case No. 17CECG02956
Hearing Date: None. See below.
Motion: Petition to Compromise Minor’s Claim
Tentative Ruling:
To deny without prejudice. Petitioner must file an amended petition, with
appropriate supporting papers and proposed order, and obtain a new hearing date for
consideration of the amended petition. (Super. Ct. Fresno County, Local Rules, rule
2.8.4.)
Explanation:
The declaration of Landers attached to the petition states that the fees sought
are not more than 25% of the gross. This is an accurate statement as 25% of gross would
be $500.00. However, the fee agreement provided with the petition limits the fees to
25% of the net recovery. The attorney is only entitled to fees in the amount of $453.24.
The balance going to the minor should be $927.73.
Pursuant to California Rules of Court, rule 3.1312 and Code of Civil Procedure
section 1019.5(a), no further written order is necessary. The minute order adopting this
tentative ruling will serve as the order of the court and service by the clerk will constitute
notice of the order.
Tentative Ruling
Issued By: JYH on 10/10/17
(Judge’s initials) (Date)
(30)
Tentative Ruling
Re: Helm Group LLC v. Seth Depiano
Superior Court Case No. 16CECG03695
Hearing Date: Thursday October 12, 2017 @ 3:00 p.m. (Dept. 402)
Motion: Default Prove Up
Tentative Ruling:
To Grant, provided witnesses are present at the hearing and that they testify and
authenticate documents.
Explanation:
Quiet Title, Default Prove – Up: Code of Civil Procedure section 764.010 requires an
evidentiary hearing in a quiet title action after default. In quiet title actions, judgment
may not be entered by the normal default prove-up methods; the court must require
evidence of the plaintiff's title. All proof that plaintiff would have had to present at trial
must be presented at that hearing; a declaration or other summary procedure will not
be permitted. Live witnesses must testify, and complete authentication of the
underlying real property records is essential. (Yeung v. Soos (2004) 119 Cal.App.4th 576,
581.) The standard of proof is clear and convincing. (Cal. Evid. Code § 662.)
Here, Plaintiff seeks to quiet title, so a hearing is required wherein witnesses testify and
authenticate property records.
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 10/10/17
(Judge’s initials) (Date)
(30)
Tentative Ruling
Re: Naomi Smith v. Christopher Islas
Superior Court Case No. 16CECG04155
Hearing Date: None. See below
Motion: Default Prove Up
Tentative Ruling:
To obtain default judgment, Plaintiff must first: (1) properly fill out form CIV-100; (2)
comply with Fresno County Superior Court, Local Rule 2.1.14; and (3) dismiss DOEs.
Explanation:
Request for Judgment, CIV-100: To request Court Judgment, Plaintiff must file the
mandatory CIV-100 form. (Cal. Rules of Court, rule 3.1800(a); Simke, Chodos, Silberfeld &
Anteau, Inc. v Athans (2011) 195 Cal.App.4th 1275, 1287.)
Here, Plaintiff filed a form CIV-100 on 8/16/17, but they did not fill out sections 2 or 7 and
failed to provide any of the required signatures. Upon resubmission, Plaintiff must
completely fill out and sign form CIV-100.
Fresno County Superior Court, Local Rule 2.1.14: A default packet conforming to
California Rules of Court, rule 3.1800 should be filed with the Clerk at least 10 days prior
to the hearing. (Local Rule 2.1.14.) This includes: declaration(s) conforming to Code of
Civil Procedure section 585, evidence proving-up damages (e.g. ledgers, proof of
damages), and a proposed judgment.
Here, Plaintiff fails to comply with Fresno County Superior Court, Local Rule 2.1.14, as
none of the required documents have been submitted. Upon resubmission, all required
documents must be submitted at least 10 days prior to the hearing.
DOEs: In defaults, California Rules of Court section 3.1800, subdivision (a)(7) requires a
dismissal of all parties against whom judgment is not sought. Additionally, no default
judgment may be entered against someone served as a ‘Doe’ unless additional
requirements are met. (Pelayo v. JJ Lee Mgmt. Co., Inc. (2009) 174 Cal.App.4th 484,
496.)
Here, Plaintiff has not dismissed ‘Does’ 1-100; they must be dismissed before judgment
can be entered.
Plaintiff must correct the above errors/omissions prior to obtaining a new hearing date.
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 10/10/17
(Judge’s initials) (Date)
Tentative Rulings for Department 403
(20) Tentative Ruling
Re: Hamby v. Hovsepian et al., Superior Court Case No.
14CECG01784
Hearing Date: October 12, 2016 (Dept. 403)
Motion: Defendants’ Motion for Summary Judgment or Adjudication
Tentative Ruling:
To deny. (Code Civ. Proc. § 437c.)
IF ORAL ARGUMENT IS REQUESTED IT WILL BE HEARD AT 3 PM.
Explanation:
Defendants move for summary judgment. Alternatively, Michael Hovsepian
moves for summary adjudication of the first cause of action for breach of written
contract, and both defendants move for summary adjudication of the second cause of
action for fraud.
Initially, the court notes that many of the objections do not comply with Cal.
Rules of Court, Rule 3.1354(b), which requires that written objections quote or set forth
the objectionable material. Those objections are overruled. The court also overrules
Plaintiff’s objection numbers 5, 7, 9-13, 15-19 and 21 on the merits, and sustains
objection number 6, 14 and 20.
First Cause of Action
Defendants first argue that there is no agreement between the parties because
Plaintiff is not a party to the promissory note. This is not established by the evidence.
While the written promissory note does not identify the beneficiary, the evidence shows
that Plaintiff funded the loan from her personal checking accounting containing only
her separate property funds (Plaintiff’s Additional Material Fact (“AMF”) 7), and Mr.
Hovsepian prepared and delivered to Plaintiff a “Short Form Deed of Trust and
Assignment of Rents (“DOT”) which identifies Plaintiff as the beneficiary (Plaintiff’s
response to UMF 11). These facts evidence an agreement between Plaintiff and Mr.
Hovsepian.
Defendants next argue that the contract is barred by the statute of frauds
because the contract was oral, not written, and the loan was to be repaid over five
years. (UMF 56.) Civil Code section 1622 provides that “all contracts may be oral,
except such as are specially required by statute to be in writing.” Under Civil Code
§1624(a)(1) “an agreement that by its terms is not to be performed within a year from
the making thereof” violates the statute of frauds and is thus unenforceable.
However, the statute of frauds does not require a written contract; a “note or
memorandum subscribed by the party to be charged is adequate. (Civ. Code § 1624,
subd. (a); Sterling v. Taylor (2007) 40 Cal.4th 757, 765.) A memorandum satisfies the
statute of frauds if it identifies the subject of the parties’ agreement, shows that they
made a contract, and states the essential contract terms with reasonable certainty.
(Sterling, supra, 40 Cal. 4th at pg. 766 citing Rest. 2d Contracts, § 131.)
Here, the written promissory note and DOT executed by Mr. Hovsepian meet the
requirements of a valid writing pursuant to the statute of frauds.
Defendants argue that, if there is an enforceable contract, the obligations under
the contract were discharged when Plaintiff’s husband, Roger Vehrs, returned the
original note and DOT to Mr. Hovsepian. “A person entitled to enforce an instrument,
with or without consideration, may discharge the obligation of a party to pay the
instrument by an intentional voluntary act, such as surrender of the instrument to the
party...” An “Instrument” means a negotiable instrument. (Comm. Code § 3104.)
Plaintiff does not dispute that the promissory note is a negotiable instrument.
There are a number of factual disputes that prevent the court from granting the
motion on this ground.
The moving papers contend that after entering in to the loan agreement, Mr.
Hovsepian supplied the “original” executed promissory note upon which the breach of
contract claim is based. (UMF 14.) In the opposition, Plaintiff denies that she was ever
in possession of the “original” executed documents. (AMF 8-10.)
Plaintiff did respond affirmatively when asked if Mr. Hovsepian provided her the
“original” note and deed. (See Hamby Depo. 54:7-10, 71:19-23, 104:1-15.)
Plaintiff explains in her declaration in opposition to the motion that after she
provided the loan funds, Mr. Hovsepian came to her house and handed her a folder
which he stated contained the note and first deed of trust. He did not inform her that
she was required to do anything with the documents, like record the deed of trust. She
never checked to determine if the note and DOT given to her were the “original”
documents signed by him. “During my deposition, I understood the questions regarding
the term “original” relating to the note and deed of trust to mean the documents
originally handed to me by Michael Hovsepian.” (Hamby Dec. ¶¶ 7, 8.) “I was never in
possession of the note and deed of trust bearing Michael Hovsepian’s original
signature.” (Hamby Dec. ¶ 8.)
It is true that a Plaintiff “cannot create an issue of fact by a declaration which
contradicts [her] prior discovery responses.” (Shin v. Ahn (2007) 42 Cal.4th 482, 500, fn.
12.) But on the other hand, summary judgment cannot be based on “fragmentary and
equivocal concessions” made during a deposition. (Price v. Wells Fargo Bank (1989)
213 Cal.App.3d 465, 482; Scheiding v. Dinwiddie Const. Co. (1999) 69 Cal.App.4th 64,
77-78.) Admissions that are ambiguous or merely tacit may be contradicted in a party's
summary judgment declarations. (Benavidez v. San Jose Police Dept. (1999) 71
Cal.App.4th 853, 861-862.)
The court cannot say for sure that Plaintiff is contradicting her deposition
testimony. It isn’t clear that by “original” Plaintiff understood opposing counsel to be
referring to the wet ink originals signed by Mr. Hovsepian, as opposed to the documents
that he originally provided her.
The next issue is whether Plaintiff discharged the obligation by delivering it to Mr.
Hovsepian. Commercial Code §3604 requires an “intentional voluntary act,” including
surrender of the instrument, by the “person entitled to enforce [the] instrument.”
Plaintiff testified that after she learned that she did not have a deed of trust
recorded against the property, she gave the original deed of trust and note to her
husband, Mr. Vehrs. (UMF 22, Hamby Depo. 71:19-23.) Plaintiff also testified that she
gave them to her husband shortly after the payment was not made, but that she does
not know where they are now. (Hamby Depo. 104:12-15.) Following then conflict that
arose between Mr. Vehrs and Mr. Hovsepian (see UMF 23-26), Mr. Hovsepian states that
“Roger Vehrs forgave the loan and returned the original note and deed of trust to me.”
(M. Hovsepian Dec. ¶ 7.) Both Plaintiff and Mr. Vehrs claim they do not have the
original note or deed of trust, and the do not know where they are. (UMF 27B.)
This evidence does not establish that the loan has been discharged. Mr. Vehrs is
not a party to this action, and is not a party to the loan at issue. Defendants fail to
establish that he had standing or authority to discharge the loan. Despite the moving
parties’ attempts to characterize Mr. Vehrs as a party to the transaction, evidence is
submitted with the opposition that he did not loan the money, but rather the money
came from Plaintiff’s separate property checking account. (Vehrs Dec. ¶¶ 4, 5.) Nor
was Mr. Vehrs involved in the preparation of the promissory note or deed of trust. (Vehrs
Dec. ¶ 6.) And most significantly, Mr. Vehrs denies discharging the note: “At no time did
I return the “original” signed note and deed of trust to Michael Hovsepian, or anyone
else, nor did I cancel or forgive the loan made by my wife to the Hovsepians, nor did I
make any statements to that effect to Michael Hovsepian or to anyone. These
allegations are lies.” (Vehrs Dec. ¶ 9.) That at least raises a triable issue of fact.
Even if Vehrs did return the note to Mr. Hovsepian, there is no evidence showing
that he was authorized to do so by Plaintiff. Commercial Code section 3604 requires
“an intentional voluntary act” by the person entitled to enforce the instrument. There is
no evidence of such an act on the part of Plaintiff.
Finally, defendants contend that the contract is voidable at their election under
Rules of Professional Conduct, Rule 3-300, which concerns members of the State Bar
entering into business transactions with clients. The motion is premised on the
contention that Mr. Vehrs is the lender or is a party to the transaction, and since
defendants were his clients at the time of the loan (UMF 5, 6), he was required to
comply with Rule 3-300, but did not.
Defendants contend that Mr. Vehrs was responsible for the legal work with
respect to the loan and the loan papers. (UMF 8.) But the deposition testimony does
not support this contention, at least insofar as it concerns the making of the loan. The
deposition testimony cited concerned what happened after the breach of the note
and attempts to secure payment thereof. (See response to UMF 8.)
As this argument is asserted against a non-party to this action, and a non-party
to the loan, this court is not the proper forum for resolving ethical questions of Mr. Vehrs’
conduct.
Second Cause of Action
Defendants contend that act of modifying the agreement, and returning the
note, acts as a waiver as against any prior actionable fraud, if ever fraud existed.
Defendants cite to Oakland Raiders v. Oakland-Alameda County Coliseum
(2006) 144 Cal.App.4th 1175, 1185, where the court addressed the application of waiver
to fraudulent representation stating:
California law had, for more than a century, recognized that a Plaintiff
claiming to have been induced into signing a contract by fraud or deceit
is deemed to have waived a claim of damages arising therefrom if, after
discovery of the alleged fraud, he enters into a new contract with the
defendant regarding the same subject matter that supercedes the former
agreement and confers upon him significant benefits.
[Citations omitted]
But as discussed above, there is a triable issue as to whether Mr. Vehrs returned
the note to Mr. Hovsepian intending to discharge the loan. And even if Mr. Vehrs did
so, there is no evidence that this was a volitional act of Plaintiff. There is no evidence
that Plaintiff entered into a new agreement.
Defendants next argue that Plaintiff cannot state a claim for fraud based on the
failure to pay.
To state a claim for false promise without intent to perform, a party must allege
and prove: (1) Defendant made a promise to the Plaintiff; (2) a promise was important
to the transaction; (3) the defendant did not intend to perform the promise when
made; (4) Defendant intended for Plaintiff to rely on the promise; (5) Plaintiff reasonably
relied on the promise; (6) defendant did not perform the promise to act; (7) the Plaintiff
was harmed; and (8) Plaintiff’s reliance on the promise was a substantial factor in
causing the harm. (Engalla v. Permanent Medical Group, Inc. (1997) 15 Cal.4th 951,
973-974.)
A party asserting a false promise must introduce evidence of a fraudulent intent
which is more than proof of non-performance of an oral promise. (Magpali v. Farmers
Group, Inc. (1996) 48 Cal.App.4th 471, 481.)
In support of summary adjudication on this ground, defendants merely assert
that “Plaintiff cannot demonstrate that actionable fraud took place by either
Defendant because Plaintiff cannot show that either Defendant ever intended not to
follow through with the payments at the outset because Defendants did in fact make
payments, and none of the parties could have known at the outset that there would be
intervening events with Roger Vehrs giving rise to the cancellation of the loan.” (MPA
13:22-26.)
The evidence shows that Mr. Hovsepian made three interest only payments on
the loan. (UMF 27A.) He claims that he stopped paying consistent with the forgiveness
of the loan by Mr. Vehrs. Defendants contend that since three payments were made,
there is no evidence of intent to defraud.
Where a summary a judgment motion is based on the Plaintiff’s lack of evidence
on a particular element, particularly intent, the court expects to see the moving party
to either produce some affirmative evidence on the element (in this case intent), or
point to the Plaintiff’s factually-devoid discovery responses. (Union Bank v. Superior
Court (1995) 31 Cal.App.4th 573, 590.)
While the fact of some payments is some evidence of lack of intent (the making
of the first few payments), it is not conclusive, particularly in light of the allegations of
the complaint, which emphasize the promise to secure the loan by recording the deed
of trust, failure to do so, and subsequent sale of the unsecured property.
Regarding the recording of the DOT, defendants contend it was not legally
possible for them to do so since they handed original handed it over to Plaintiff. Only
the original can be recorded. (See Gov. Code § 27201(b)(1).) But again, it is not
clearly established that Plaintiff was given the wet ink original. And Plaintiff testified, “I
was promised by both Linda and Michael Hovsepian a promissory note and first deed
of trust on the house as security. Michael Hovsepian told me that he would handle all
the paperwork regarding the note and first deed of trust.” (Hamby Dec. ¶ 5.) He did
not inform Plaintiff that she was required to do anything with the note and DOT.
(Hamby Dec. ¶ 7.) This supports the contention that Mr. Hovsepian was responsible for
recording the DOT.
This is sufficient to raise a triable issue of fact as to these factual matters essential
to the resolution of this cause of action.
Pursuant to Cal. Rules of Court, Rule 3.1312(a) and Code Civ. Proc. § 1019.5(a),
no further written order is necessary. The minute order adopting this tentative ruling will
serve as the order of the court and service by the clerk will constitute notice of the
order.
Tentative Ruling
Issued By: KCK on 10/10/17
(Judge’s initials) (Date)
Tentative Rulings for Department 501
(28) Tentative Ruling
Re: Madaus v. Spivak
Case No. 15CECG03864
Hearing Date: October 12, 2017 (Dept. 501)
Motion: By Defendant Yemelyan Spivak, M.D., Moving for Summary
Judgment as to the Complaint by Plaintiff.
Tentative Ruling:
To grant the motion.
Prevailing party is ordered to submit, within five (5) court days of this order, a
judgment in accordance with the Court’s decision as set forth below.
Explanation:
(Note- as of October 6, 2017, no opposition appears to have been filed in this
case.)
To obtain summary judgment, “all a defendant needs to do is to show that the
plaintiff cannot establish at least one element of the cause of action.” Aguilar v.
Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853. If a defendant makes this showing, the
burden shifts to the plaintiff to demonstrate that one or more material facts exist as to
the cause of action or as to a defense to a cause of action. (CCP § 437(c),
subdivision(p)(2).)
In a summary judgment motion, the pleadings determine the scope of relevant
issues. (Nieto v. Blue Shield of Calif. Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 74.)
A defendant need only “negate plaintiff's theories of liability as alleged in the
complaint; that is, a moving party need not refute liability on some theoretical possibility
not included in the pleadings.” (Hutton v. Fidelity Nat’l Title Co. (2013) 213 Cal.App.4th
486, 493 (emphasis in original).)
The court examines affidavits, declarations and deposition testimony as set forth
by the parties, where applicable. (DeSuza v. Andersack (1976) 63 Cal.App.3d 694, 698.)
Any doubts about the propriety of summary judgment are to be resolved in favor of the
opposing party. (Yanowitz v. L’Oreal USA, Inc. (2003) 106 Cal.App.4th 1036, 1050.)
A court will “liberally construe plaintiff's evidentiary submissions and strictly
scrutinize defendant's own evidence, in order to resolve any evidentiary doubts or
ambiguities in plaintiff's favor.” (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56,
64.)
Furthermore, the moving party must identify for the court the matters it contends
are “undisputed,” and cite the specific evidence showing why it is entitled to judgment
as a matter of law. (United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 337
(“This is the Golden Rule of Summary Adjudication: if it is not set forth in the separate
statement, it does not exist.” (emphasis in original).)
The opposing party’s failure to provide opposing evidence does not relieve the
moving party of its burden of production. (Consumer cause v. SmileCare (2001) 91
Cal.App.4th 454, 468.) Indeed, while a Court has discretion to grant the motion for an
opposing party’s failure to file a separate statement of disputed facts, the court must
first determine whether the moving papers establish grounds for granting summary
judgment or adjudication. (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 160.)
In order to prove a case for medical malpractice, a plaintiff must plead and
prove “(1) the duty of the professional to use such skill, prudence, and diligence as
other members of his profession commonly possess and exercise; (2) a breach of that
duty; (3) a proximate causal connection between the negligent conduct and the
resulting injury; and (4) actual loss or damage resulting from the professional’s
negligence.” (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305.)
The standard of care in a medical malpractice case requires that medical
service providers exercise “that degree of skill, knowledge and care ordinarily
possessed and exercised by members of their profession under similar circumstances.”
(Barris v. County of Los Angeles (1999) 20 Cal.4th 101, 108 fn.1.) Because the standard of
care in a medical malpractice case is a matter “peculiarly within the knowledge of
experts” “expert testimony is required to prove or disprove the defendant performed in
accordance with the standard of care unless the negligence is obvious to a layperson.”
(Johnson, supra, at p. 305 (internal quotations omitted).)
Where, as here, a defendant “moves for summary judgment and supports his
motion with expert declarations that his conduct fell within the community standard of
care, he is entitled to summary judgment unless the plaintiff comes forward with
conflicting expert evidence.” (Hanson v. Grode (1999) 76 Cal.App.4th 601, 607.)
Here, Defendant has produced the declaration of Dr. Gregg Adams, M.D., who
is board certified by the American Board of Surgery since 2000 and is currently the
Chairman of the Department of Surgery at Santa Clara Valley Medical Center. (Adams
Decl. ¶1.) He therefore qualifies as a medical expert for purposes of this motion.
Based on his review of the complaint and the medical records for the plaintiff, Dr.
Adams opined that Defendant “at all times met the standard of care while rendering
treatment and care to” Plaintiff. (Adams Decl. ¶15; see also Adams Decl. ¶¶ 11-14;
Separate Statement Nos. )
Dr. Adams also opined that any action or inaction on the part of Defendant
caused Plaintiff’s injuries. (Adams Decl. ¶16.)
Since Defendant has presented the declaration of an expert on the applicable
standard of care, and who has opined with an adequate foundation that the actions
of Defendant met that standard of care, then the burden has shifted to Plaintiff to
present contrary evidence. (Powell, supra, 151 Cal.App.4th at 122.) Because Plaintiff
has not presented any evidence or argument, the motion must be granted.
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 10/11/17
(Judge’s initials) (Date)
(17) Tentative Ruling
Re: Cotner v. University Medical Center Pharmacy, et al.
Court Case No. 15 CECG 01644
Hearing Date: October 12, 2017 (Dept. 501)
Motions: Dr. Martinez’ Motion to Deem Admissions Admitted
Dr. Tevendale’s Motion to Deem Admissions Admitted
Dr. Mortimer’s Motion to Deem Admissions Admitted
Dr. Garcha’s Motion to Deem Admissions Admitted
Dr. Keenan’s Motion to Deem Admissions Admitted
Dr. Dhir’s Motion to Deem Admissions Admitted
Caroline L. Hansen’s Motion to Deem Admissions Admitted
Tentative Ruling:
To grant the seven Motions to Deem Admissions Admitted. The truth of the
matters specified in the Requests for Admission, Set Two, is to be deemed admitted,
unless plaintiff serves, before the hearing, a proposed response to the requests for
admission that is in substantial compliance with Code of Civil Procedure § 2033.220.
Explanation:
Code of Civil Procedure section 2033.280, subdivision (b) provides that if a party
fails to timely respond to requests for admission “[t]he requesting party may move for an
order that the genuineness of any documents and the truth of any matters specified in
the requests be deemed admitted ...” The court “shall” grant the motion “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 … in substantial compliance
with Section 2033.220.” (Code Civ. Proc., § 2033.280, subd. (c).)
The seven sets of requests for admissions were served on plaintiff by mail on June
12, 2017. (Hunt Decls. ¶ 8; Exhibits A.) No responses have been received (Hunt Decls. ¶
9.) Since plaintiff has made no response at all to the request for admissions, the court
must grant the motion for order deeming the matters admitted unless plaintiff serves a
proposed response that is in substantial compliance with Code of Civil Procedure
section 2033.220 prior to the hearing. (Tobin v. Oris (1992) 3 Cal.App.4th 814, 828.)
Pursuant to California Rules of Court, rule 3.1312(a) and Code of Civil Procedure
section 1019.5, subdivision (a), no further written order is necessary. The minute order
adopting this tentative ruling will serve as the order of the court and service by the clerk
will constitute notice of the order.
Tentative Ruling
Issued By: MWS on 10/11/17
(Judge’s initials) (Date)
Tentative Rulings for Department 502 (6)
Tentative Ruling
Re: Renfro v. Lopez
Superior Court Case No.: 16CECG02048
Hearing Date: October 12, 2017 (Dept. 502)
Motions: (1) By Defendant Quita Lopez for summary judgment or, in
the alternative, summary adjudication;
(2) By Defendant Quita Lopez to seal
Tentative Ruling:
To deny both motions, without prejudice.
Any new hearing date must be obtained pursuant to The Superior Court of
Fresno County, Local Rules, rule 2.2.1.
Explanation:
Defendant Quita Lopez did not follow California Rules of Court, rules 2.550-2.551
concerning sealing of court records. In particular, no unredacted court records lodged
conditionally under seal were received by the court. Without them, this Court cannot
determine whether or not Defendant has met her burden on the motion. (Code Civ.
Proc., § 437c, subd. (p)(2).) Consequently, both motions are denied, without prejudice.
Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure
section 1019.5, subdivision (a), no further written order is necessary. The minute order
adopting this tentative ruling will serve as the order of the court and service by the clerk
will constitute notice of the order.
Tentative Ruling
Issued By: RTM on 10/10/17
(Judge’s initials) (Date)
(29)
Tentative Ruling
Re: Kathy Reyburn v. Santé Health System, Inc., et al.
Case No. 14CECG01868
Hearing Date: October 12, 2017 (Dept. 502)
Motion: Summary adjudication
Tentative Ruling:
To grant Defendant Santé Health System, Inc.’s motion for summary adjudication
of Plaintiff’s punitive damages claim. Prevailing party is directed to submit to this court,
within 5 days of service of the minute order, a proposed judgment consistent with this
order.
Explanation:
Summary judgment
The court shall grant summary judgment where there are no triable issues of
material fact and the moving party is entitled to judgment as a matter of law. (Code
Civ. Proc. §437c(c); Schacter v. Citigroup (2009) 47 Cal.4th 610, 618.) The moving party
bears the initial burden of production to make a prima facie showing of the
“nonexistence of any triable issue of material fact[.]” (Aguilar v. Atlantic Richfield Co.
(2001) 25 Cal.4th 826, 850.) “[A]ll a defendant needs to do is to show that the plaintiff
cannot establish at least one element of the cause of action.” (Id. at p. 853.) Where
defendant meets this initial burden, the burden of production then shifts to plaintiff to
make a prima facie showing of the existence of a triable issue of material fact. (Code
Civ. Proc. §437c(p)(2); Christina C. v. County of Orange (2013) 220 Cal.App.4th 1371,
1379.) To meet its burden, plaintiff must set forth specific facts showing a triable issue of
material fact; plaintiff may not rely solely on its pleadings. (Code Civ. Proc. §437c(p)(2);
Salma v. Capon (2008) 161 Cal.App.4th 1275, 1290 [verified pleadings may not be used
to oppose summary judgment motion].) Plaintiff’s failure to file a separate statement
“may constitute a sufficient ground, in the court's discretion, for granting the [summary
judgment] motion.” (Code Civ. Proc. §437c(b)(3).)
Punitive damages
Punitive damages may be awarded where plaintiff proves by clear and
convincing evidence that defendant is guilty of fraud, oppression or malice. (Civ. Code
§3294(a).) An employer is not liable for punitive damages for the acts its employees
unless the employer had advance notice of the employee’s unfitness and employed
him or her with conscious disregard for the rights or safety of others, or authorized or
ratified the wrongful conduct. (Id. at (b).) In either case, punitive damages are not
available unless the evidence to support such damages is “so clear as to leave no
substantial doubt; sufficiently strong to command the unhesitating assent of every
reasonable mind.” (Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal.App.4th 306,
332, internal quotation marks and citation omitted.)
" 'Oppression' means despicable conduct that subjects a person to cruel and
unjust hardship in conscious disregard of that person's rights.” (Civ. Code §3294(c)(2).)
Malice is "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." (Civ. Code §3294(c)(1).) “Despicable”
conduct is “conduct which is so vile, base, contemptible, miserable, wretched or
loathsome that it would be looked down upon and despised by ordinary decent
people.” (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287.)
A motion for summary adjudication of plaintiff’s punitive damages claim is
properly granted where plaintiff fails to present clear and convincing evidence of
tortious conduct by defendant that would justify imposing punitive damages. (Food Pro
Intern., Inc. v. Farmers Ins. Exchange (2008) 169 Cal.App.4th 976, 995.)
In the case at bench, Defendant Santé Health System, Inc. (“Defendant”),
moves for summary adjudication of Plaintiff’s punitive damages claim. Defendant
presents evidence that Plaintiff was never terminated by Defendant and remains on
Defendant’s payroll; Defendant Rea’s decision to transfer Plaintiff from her claims
supervisor position to a special projects coordinator position was based on Plaintiff’s skill
set and changes to Defendant’s size and corporate direction; and that Plaintiff’s duties,
hours, work site, and rate of pay did not change when Plaintiff was placed in the
coordinator position. Defendant also provides evidence that Plaintiff was placed into a
“per diem” status based on multiple extended leaves of absence, and that the “per
diem” status is used to maintain an employee on Defendant’s payroll until the
employee returns to work, at which time Defendant places the employee into a
suitable open position.
Defendant having met its burden, the burden shifts to Plaintiff. As Plaintiff has
filed a notice of non-opposition, Plaintiff has not presented any evidence showing a
triable issue of material fact. Accordingly, Defendant’s motion for summary
adjudication of Plaintiff’s claim for punitive damages is granted.
Judicial notice is taken as requested by moving party.
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: RTM on 10/10/17
(Judge’s initials) (Date)
Tentative Rulings for Department 503
(20) Tentative Ruling
Re: Soto et al. v. Saint Agnes Medical Center et al., Superior
Court Case No. 15CECG01529
Hearing Date: October 12, 2017 (Dept. 503)
Motion: Saint Agnes Medical Center’s Demurrer and Motion to Strike
re Second Amended Complaint
Tentative Ruling:
To grant the motion to strike the fourth through tenth causes of action of the
Second Amended Complaint (“SAC”), with no leave to amend as to the fourth, sixth or
tenth causes of action. (Code Civ. Proc. § 430.10(e).)
To grant the motion to strike SAC ¶¶ 51, 61, 67, 78, 94, 100, 122, 136, 150 and 162.
(Code Civ. Proc. §§ 435, 436.)
Plaintiffs may file a third amended complaint within 10 days of service of the
order by the clerk. All new allegations shall be in boldface type.
Explanation:
Demurrer
The fourth cause of action is for negligence per se. The demurrer is sustained
because negligence per se is not a cause of action. (See Quiroz v. Seventh Ave.
Center (2006) 140 Cal.App.4th 1256, 1285; Millard v. Biosources, Inc. (2007) 156
Cal.App.4th 1338, 1353.) Leave to amend is not granted to permit plaintiff to attempt
to plead additional facts in support of a negligence per se claim, but to add the
statutory violations specified in the fourth cause of action to the wrongful death cause
of action.
Similarly, there is no separate cause of action for “Wanton and Reckless
Conduct.” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 625.) The demurrer to the
sixth cause of action is sustained for this reason.
The fifth cause of action for battery is based on the failure of defendants to
inform Decedent or plaintiff Gracie Soto that Dr. Cohler would be the primary surgeon
for the 5/15/14 surgery, thereby causing Decedent to undergo surgery without proper
consent. (SAC ¶ 85.) The SAC also alleges that defendants did not disclose in a
meaningful manner the risks and benefits of any procedure performed on Decedent.
(SAC ¶ 88.) It also makes various allegations amounting to mere negligence, such as
failing to make meaningful assessments and appropriate preoperative testing prior to
the surgery. (SAC ¶ 90.)
In Cobbs v. Grant (1972) 8 Cal.3d 229, the plaintiff tried to allege that a battery
occurred on the basis of a physician's failure to disclose certain risks associated with a
medical procedure. The Supreme Court rejected this claim as an intentional tort, stating
that "the facts of this case constitute a classic illustration of an action that sounds in
negligence." (Cobbs, supra, at p. 241).
The court stated that “[t]he battery theory should be reserved for those
circumstances when a doctor performs an operation to which the patient has not
consented. When the patient gives permission to perform one type of treatment and
the doctor performs another, the requisite element of deliberate intent to deviate from
the consent given is present. However, when the patient consents to certain treatment
and the doctor performs that treatment but an undisclosed inherent complication with
a low probability occurs, no intentional deviation from the consent given appears;
rather, the doctor in obtaining consent may have failed to meet his due care duty to
disclose pertinent information. In that situation the action should be pleaded in
negligence.” (Id. at pp. 240-241.)
This case is different in that Plaintiffs do not allege that Dr. Chaudhry performed a
procedure different than the one for which he obtained consent. Rather, they allege
that there was no consent for Dr. Cohler to perform the second surgery. (SAC ¶¶ 85,
86.)
The elements of a tort battery cause of action are: (1) Defendant touched
plaintiff, or caused plaintiff to be touched, with the intent to or offend plaintiff: (2)
Plaintiff did not consent to the touching; (3) Plaintiff was harmed or offended by
defendant's conduct; and (4) a reasonable person in Plaintiffs position would have
been offended by the touching. (See CACI No. 1300.) [Plaintiffs, in their recitation of
the elements, citing CACI 1300, conveniently leave out the intent to harm part.)
There is no allegation of intent to harm or offend plaintiff. Accordingly, the
demurrer should be sustained with leave to amend. Plaintiffs cite to an AMA opinion
stating that when hospitals fail to have mechanisms to ensure that disclosures of
substitute surgeons are not made, the hospital may be liable. (See Oppo. 8:5-13, citing
American Medical Association Code of Ethics: Opinion 8.16: Substitution of Surgeon
Without Patient’s Knowledge or Consent (updated June 1994).) But this is in no way
legal authority, and the quotation does not address the issue of the intentional tort of
battery.
The seventh, eighth and ninth causes of action are fraud-based causes of action
for Concealment, Intentional Misrepresentation and Negligent Misrepresentation.
In Stone v. Foster (1980) 106 Cal.App.3d 334, 345, the court determined that a
cause of action sounding in negligence could not be converted to the intentional tort
of fraud. The plaintiff sought a "tummy tuck" procedure, and alleged that before
undergoing the procedure, the surgeon guaranteed her results and did not fully inform
her of the risk. (Id. at pp. 341-344.) After experiencing complications from the
procedure and being unhappy with the result, she sued the surgeon for malpractice
and fraud. (Id.) The court stated:
Plaintiff herein by pleading fraud sought to do what the Supreme Court
refused to allow her to do by pleading battery, that is, to state a cause of
action for an intentional tort. The same policy factors which favor
treatment as negligence rather than battery also favor treatment as
negligence rather than fraud. Plaintiff's case is, as the Supreme Court held
in Cobbs, a “classic illustration of an action that sounds in negligence.”
(Id. at p. 346, quoting Cobbs v. Grant (1972) 8 Cal.3d 229, 241.)
Plaintiffs allege that defendants, including SAMC, concealed and either
intentionally or negligently misrepresented facts and information from Decedent,
including: his pre-surgical condition or the lack of pre-surgical workup and/or physical
exam; bleeding and/or blood loss that occurred during or around Decedent’s May 14,
2014 surgery; complications from and relating to surgery (SAC ¶¶ 111, 125, 130);
information about Decedent’s condition by misreporting information in the medical
records, including but not limited to Dr. Charudry’s documentation relating to the May
14, 2014 surgery (SAC ¶¶ 112, 126, 140); that defendants made those concealments
and misrepresentations with the intent that Decedent rely on them, including reliance
on the accuracy of his medical records for proper continuity of care (SAC ¶¶ 113-114,
128-128, 141-142); and that Decedent’s reliance caused him harm, resulting in his death
(SAC ¶¶ 117, 130, 144).
These causes of action and allegations plaintiffs are attempting to elevate mere
negligence to the level of fraud. The court finds that the allegations are more akin to
those in Cobbs and Stone, and therefore amount to mere negligence.
Additionally, plaintiff does not plead the facts supporting these allegations with
sufficient particularity. "[E]very element of the cause of action for fraud must be
alleged in full, factually and specifically, and the policy of liberal construction of
pleading will not be invoked to sustain a pleading that is defective in any material
respect." (Wilhelm v. Pray, Price, Williams &Russel (1986) 186 Cal.App.3d 1324, 1331.)
Plaintiffs must allege facts showing "how, when, where, to whom and by what means
the representations were tendered." (Stansfield v. Starkey {1990) 220 Cal.App.3d 59,
73.)
Plaintiffs merely assert that defendants made misrepresentations regarding
“Decedent’s pre-surgical condition,” “that a pre-surgical workup and/or physical exam
was performed prior to surgery,” “minimal amounts to bleeding and/or blood loss that
occurred during or around Decedent’s May 14, 2014 surgery” and “lack of
complications from and in relation to surgery.” (SAC ¶ 125.) Plaintiffs fail to allege any
of the specifics required as stated in Stansfield, much less what exactly was
represented. Thus, even if these allegations were sufficient to rise to the level of fraud,
the particularity requirement is not satisfied.
Finally, the tenth cause of action is for violation of the Consumer Legal Remedies
Act, Civ. Code § 1750 et seq. This cause of action is premised on the provision of
substandard medical services (SAC ¶ 155), as well as representations made to
Decedent regarding quality of services and the results of the services to be provided
(SAC ¶¶ 156, 157, 159).
Plaintiffs concede that they have not complied with the pre-litigation notice
requirements of Civ. Code § 1782(a). Accordingly, the demurrer to this cause of action
will be sustained without leave to amend.
Motion to Strike
The court may strike out any part of any pleading any irrelevant, false, or
improper matter. (Code Civ. Proc. § 435(a).) The motion to strike may be directed
against any part of a pleading. (Code Civ. Proc. § 435(b)(1).)
SAMC moves to strike the following allegation found in each cause of action:
The conduct of Defendants, and Does 1-100, inclusive, and each of them,
includes malfeasance not within the definition of “professional
negligence” under California Civil Code § 333.1.
(SAC ¶¶ 51, 61, 67, 78, 94, 100, 122, 136, 150 and 162.)
These allegations are included to exempt plaintiffs from the damages limitation
of the Medical Injury Compensation Reform Act of 1975 (“MICRA”).
MICRA provisions apply only in “professional negligence” actions against “health
care providers” as these terms are defined by the Act. (Haning, Flahavan et al., Cal.
Practice Guide: Personal Injury (TRG 2017) ¶ 3:1867.) Civil Code § 3333.1(c)(2) defines
“professional negligence” as “a negligent act or omission to act by a health care
provider in the rendering of professional services.” “[C]ourts have broadly construed
‘professional negligence’ to mean negligence occurring during the rendering of
services for which the health care provider is licensed.” (Canister v. Emergency
Ambulance Service (2008) 160 Cal.App.4th 388, 407.) The phrase “based upon
professional negligence” as used in the MICRA statutes has not been interpreted to
include intentional torts committed in the rendition of medical services. (See Barris v.
County of Los Angeles (1999) 20 Cal.4th 101, 116.) Intentional torts are excluded.
(Haning, Flahavan et al., ¶ 3:1884.)
The label applied to the cause of action by the plaintiff is not controlling. In
Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th 336, 351-352, a patient's
claim that an anesthesiologist committed battery and intentional infliction of emotional
distress was in fact an action “based upon professional negligence.” The allegation
“that the anesthesiologist handled the patient roughly during a preoperative checkup
and in administering anesthesia—amounted to no more than a claim that the
anesthesiologist “performed his professional services in an unnecessarily harsh and
forceful manner, which amounts to a claim [anesthesiologist] failed to meet the
applicable standard of care in rendering his services.” (Ibid.)
Plaintiffs contend that they have pled facts that they are informed and believe
that SAMC engaged in conduct that exceeds mere negligence by, for example,
ignoring Dr. Chaudhry’s patterns of misconduct and withholding information about that
misconduct from patients, including Decedent, for financial gain. (SAC ¶¶ 55-59 and
66.)
The court will not focus solely on the word malfeasance, but on whether the SAC
as a whole alleges facts supporting intentional tort claims against SAMC going beyond
mere professional negligence. As discussed above, plaintiffs do not allege any viable
intentional tort claims, but allege facts only rising to the level of professional negligence.
Accordingly, the motion to strike should be granted.
Pursuant to Cal. Rules of Court, Rule 3.1312(a) and Code Civ. Proc. § 1019.5(a),
no further written order is necessary. The minute order adopting this tentative ruling will
serve as the order of the court and service by the clerk will constitute notice of the
order.
Tentative Ruling
Issued By: A.M. Simpson on 10/11/17
(Judge’s initials) (Date)
(28) Tentative Ruling
Re: Quezada v. Adler Wallach & Assoc., Inc.
Case No. 16CECG02870
Hearing Date: October 12, 2017 (Dept. 503)
Motion: By Defendant Adler Wallach & Assoc., Inc. dba AWA Collections for
Terminating Sanctions Against Plaintiff Federico Quezada and for
$960.00 in Monetary Sanctions Against Plaintiff Federico Quezada.
By Defendant Kings Credit Services for Terminating Sanctions
Against Plaintiff Federico Quezada and for $960.00 in Monetary
Sanctions Against Plaintiff Federico Quezada
Tentative Ruling:
To deny the request for terminating sanctions and monetary sanctions.
To re-issue the Court’s order of July 11, 2017. Plaintiff shall have ten (10) court
days from the date of this order in which to serve responses to each First Set of Request
for Production by Defendants Kings Credit Services and Adler Wallach & associates,
respectively. Plaintiff is still required to pay the sanctions awarded in the July 11, 2017
order of $570.00 and must provide that with his responses.
Explanation:
Defendant seeks terminating sanctions pursuant to Code of Civil Procedure
§§2023.010, 2023.030, subdivision (d)(3) and 2031.320, subdivision (c).
Section 2023.010 describes activities that constitute “misuse of the discovery
process,” including, as relevant here,
“(c) Employing a discovery method in a manner or to an extent that causes
unwarranted annoyance, embarrassment, or oppression, or undue burden and
expense.
(d) Failing to respond or to submit to an authorized method of discovery. [¶¶]
(g) Disobeying a court order to provide discovery.”
Section 2023.030 provides:
“To the extent authorized by the chapter governing any particular discovery
method or any other provision of this title, the court, after notice to any affected
party, person, or attorney, and after opportunity for hearing, may impose the
following sanctions against anyone engaging in conduct that is a misuse of the
discovery process: []
(d) The court may impose a terminating sanction by one of the following
orders:
(1) An order striking out the pleadings or parts of the pleadings of
any party engaging in the misuse of the discovery process.
(2) An order staying further proceedings by that party until an order
for discovery is obeyed.
(3) An order dismissing the action, or any part of the action, of that
party.
(4) An order rendering a judgment by default against that party.”
A terminating sanction is within the Court’s discretion for a party’s violation of
discovery orders. (Lang v. Hochman (2000) 77 Cal.App.4th 1225, 1244.) Only two facts
are a prerequisite for an imposition of a sanction, “(1) there must be a failure to comply
. . . and (2) the failure must be willful.” (Liberty Mut. Fire Ins. Co. v. LcL Adm’rs, Inc. (2008)
163 Cal.App.4th 1093, 1102.)
However, the purpose of discovery sanctions is to enable the propounding party
to obtain the information sought rather than simply to punish a disobedient party or
lawyer. (Shanooni v. Super Shuttle of Los Angeles (1993) 20 Cal.App.4th 256, 262.) A
secondary purpose is to compensate the interrogating party for costs and fees incurred
in enforcing discovery. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 796.)
Moreover, before imposing terminating sanctions, courts should usually grant
lesser sanctions. (Deyo, supra, 84 Cal.App.3d at 796.)
Here, the July 11, 2017 order granted the motion to compel, but did not set a
date for compliance with the order. Therefore, the Court hereby re-issues the July 11,
2017 order granting the motion to compel responses to each First Set of Requests for
Documents served by Defendants Kings Credit and Adler Wallach and Associates,
respectively. Plaintiff shall have ten (10) court days from the date of this order in which
to serve those responses. Plaintiff is also responsible for the monetary sanctions imposed
in the July 11, 2017 order of $570.00. Plaintiff is warned that failure to comply with this
order can result in greater sanctions, up to and including terminating sanctions.
Given the non-specificity of the earlier order, the motion for terminating and
monetary sanctions is denied without prejudice to seeking further sanctions in the event
Plaintiff refuses to comply with this order.
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: A.M. Simpson on 10/11/17
(Judge’s initials) (Date)
(29)
Tentative Ruling
Re: Nick Bellasis, et al. v. Fresno Land Company, et al.
Superior Court Case No. 16CECG03219
Hearing Date: October 12, 2017 (Dept. 503)
Motion: Plaintiffs’ motion for leave to amend complaint
Tentative Ruling:
To grant the motion to amend. Plaintiffs have 10 days to file the first amended
complaint. The time in which the complaint may be amended will run from service by
the clerk of the minute order. All new allegations in the first amended complaint are to
be set in boldface type.
Explanation:
“The court may, in furtherance of justice, and on such terms as may be proper,
allow a party to amend any pleading.” (Code Civ. Proc. §473.) There is a strong policy
in favor of allowing plaintiff to amend its complaint, as judicial policy favors resolution of
all disputed matters between the parties in the same action. (Glaser v. Meyers (1982)
137 Cal.App.3d 770, 776-777.) Thus, the court’s discretion is to be exercised liberally to
allow amendment of the pleadings. (Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939;
Klopstock v. Superior Court (1941) 17 Cal.2d 13, 19; Mabie v. Hyatt (1998) 61 Cal.App.4th
581, 596; Landis v. Superior Court (1965) 232 Cal.App.2d 548, 554.)
It is error to refuse permission to amend where the motion to amend is timely and
will not prejudice the opposing party. (Morgan v. Superior Court of Cal. In and For Los
Angeles County (1959) 172 Cal.App.2d 527, 530; see Atkinson v. Elk Corp. (2003) 109
Cal.App.4th 739, 761.) It is a “rare case” that a court will be justified in denying a party
leave to amend its pleadings in order to properly present its case. (Morgan, supra, 172
Cal.App.2d at p. 530.)
Where plaintiff introduces new legal theories in the amended complaint that
relate to the same set of general facts, allowing the amendment is proper. (Bonded
Products Co. v. R. C. Gallyon Const. Co. (1964) 228 Cal.App.2d 186, 189; Klopstock,
supra, 17 Cal.2nd at p. 19 [amendment permitted at court’s discretion unless attempt is
made to present “entirely different set of facts by way of the amendment.”].) In other
words, where a party is “allowed to prove facts to establish one cause of action, an
amendment which would allow the same facts to establish another cause of action is
favored, and a trial court abuses its discretion by prohibiting such an amendment when
it would not prejudice another party.” (County Sanitation Dist. No. 2 of Los Angeles
County v. County of Kern (2005) 127 Cal.App.4th 1544, 1618, internal quotation marks
and citations omitted; see also Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 240
[leave to amend should be liberally granted as long as there is no timeliness problem or
prejudice to opposing party].) This is because, generally speaking, when the evidence
to support the new cause of action in the amended complaint is already before the
court, the opposing party will not be prejudiced by allowing the amendment. (County
Sanitation Dist. No. 2, supra, 127 Cal.App. 4th at p. 1618.)
Where plaintiff adheres to the contract or injury originally pleaded, an alteration
of the modes in which defendant is alleged to have breached the contract or caused
plaintiff’s injury is not considered a new cause of action, and amendment should be
permitted. (Hughes v. Chung Sun Tung Co. (1915) 28 Cal.App. 371, 373-374; Born v.
Castle (1913) 22 Cal.App. 282, 286.) “A variance between pleading and proof does not
justify the denial of an amendment to conform pleading to proof unless the
unamended pleading misled the adverse party to [its] prejudice in maintaining [its]
action or defense upon the merits.” (County Sanitation Dist. No. 2, supra, 127
Cal.App.4th at p. 1618, internal quotation marks and citations omitted.) As a general
matter, the court does not consider the validity of the proposed amended pleading in
deciding whether to grant leave to amend; after leave to amend is granted, the
opposing party will have the opportunity to attack the validity of the amended
pleading. (See Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048.)
In the case at bench, Plaintiffs seek leave to file a first amended complaint in
order to add a cause of action for strict products liability against Defendant
Paramount; add a cause of action for breach of contract against Defendant Fresno
Land Company; allege that Agate Holdings, LLC, is the successor of Defendant Agate
Bay Holdings, LLC; and to add a cause of action for breach of sales contract against
Agate Holdings, LLC. The proposed amendments all arise from the transactions alleged
in the original complaint. It does not appear that Defendants will be prejudiced by
allowing the amendment, as trial is over nine months away, discovery is not complete,
and the proposed causes of action arise from the same material facts alleged in
Plaintiffs’ original complaint. Moreover, allowing Plaintiffs to file the proposed amended
pleading will ensure that the complaint accurately reflects the issues to be tried, and
will further the strong judicial policy favoring liberal amendments so that all disputed
matters between the parties may be resolved in the same action. The motion meets the
requirements of California Rules of Court, rule 3.1324, and the oppositions provide
insufficient support for denial of the motion. Accordingly, Plaintiffs’ motion to file a first
amended complaint is granted.
Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure
section 1019.5, subdivision (a), no further written order is necessary. The minute order
adopting this tentative ruling will serve as the order of the court and service by the clerk
will constitute notice of the order.
Tentative Ruling
Issued By: A.M. Simpson on 10/11/17
(Judge’s initials) (Date)
Recommended