Superior Court, State of California · 7/30/2020 · Case Name: Garcia v. Daily, et al. Case No.: 20CV365883 Defendant Leanne H. Daily (“Daily”) moves to strike the complaint

SUPERIOR COURT, STATE OF CALIFORNIA

COUNTY OF SANTA CLARA

Department 8, Honorable Sunil R. Kulkarni Mark Rosales, Courtroom Clerk

191 North First Street, San Jose, CA 95113

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other side know before 4:00 P.M. that you plan to contest the ruling, in accordance with

California Rule of Court 3.1308(a)(1) and Local Rule 8.E. 2. The prevailing party shall prepare the order unless otherwise ordered. (See

California Rule of Court 3.1312.)

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court reporter, the appropriate form must be submitted and the reporter must be

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5. As ordered by the Presiding Judge of the Court, if the Court permits someone to

appear in person for the hearing, that person must observe appropriate social distancing

protocols and wear a face covering, unless otherwise authorized by the Court.

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without a court order. This prohibition applies while in the courtroom and while

listening in on the public access line.

LAW AND MOTION CALENDAR

DATE: OCTOBER 22, 2020 TIME: 9:00 A.M.

LINE # CASE # CASE TITLE RULING

LINE 1 19CV351013 Karla Aragon Duenas et al vs

County of Santa Clara et al

See tentative ruling. The Court will prepare the

final order.

LINE 2 19CV360490 Gregory Steshenko vs Foothill-

De Anza Community College

District et al

In light of the Sixth District’s stay of

proceedings, the Court takes this motion OFF

CALENDAR without prejudice to this motion

being resurrected if and when the Sixth District

lifts the stay.

LINE 3 19CV360490 Gregory Steshenko vs Foothill-

De Anza Community College

District et al

In light of the Sixth District’s stay of

proceedings, the Court takes this motion OFF

CALENDAR without prejudice to this motion

being resurrected if and when the Sixth District

lifts the stay.

LINE 4 19CV345863 Credit Corp Solutions Inc, vs.

Liliana Gonzalez

This demurrer is OFF CALENDAR, given the

amended answer filed by cross-defendant on

October 8.

LINE 5 17CV314826 Daniel Clemens vs Sandstorm

Development Group, Inc. et al

The Court GRANTS the motion by plaintiff’s

counsel to withdraw, good cause appearing.

The Court will sign the previously-submitted

order.























LINE 6 17CV314826 Daniel Clemens vs Sandstorm

Development Group, Inc. et al


final order.

LINE 7 20CV364134 Veronica Flores vs General

Motors, LLC [continued from

10/20]

Good cause appearing, the Court GRANTS

plaintiff’s unopposed motion. Defendant must

provide verified, Code-compliant responses

without objections (except for privilege) to

plaintiff’s form interrogatories at issue, within

30 days of today (10/22/20.)

LINE 8 20CV364134 Veronica Flores vs General Motors, LLC [continued from 10/20]





plaintiff’s special interrogatories at issue, within

30 days of today (10/22/20.)

LINE 9 18CV328574 BitClave PTE. LTD. vs Vasily

Trofimchuk


final order.























LINE 10 20CV368085 JOHNNY NGUYEN vs HANGUEN PARK

Good cause appearing, the Court APPROVES

the minor’s compromise and will sign the

previously-submitted orders. The Court sets a

date of 1/28/21 at 10 am in Department 8 for a

hearing regarding proof of the money being

deposited in the blocked account.

LINE 11 20CV364134 Veronica Flores vs General

Motors, LLC





plaintiff’s document requests at issue, within 30

days of today (10/22/20). Production of

documents must occur within 60 days of today.

LINE 12 20CV364134 Veronica Flores vs General Motors, LLC





plaintiff’s requests for admissions at issue,

within 30 days of today (10/22/20).

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Case Name: Duenas, et al. v. County of Santa Clara, et al.

Case No.: 19CV351013

Defendants County of Santa Clara (the “County”), Lily Nguyen, M.D. (“Dr. Nguyen”),

Aditi Arroway, M.D. (“Dr. Arroway”) and Elan Krojanker, M.D. (“Dr. Krojanker”)

(collectively, “Defendants”) demur to the Second Amended Complaint (“SAC”) filed by

plaintiffs Karla Aragon Duenas (“Duenas”) and Edgardo Portillo (“Portillo”) (collectively,

“Plaintiffs”).

I. Background

A. Factual

This an action for medical malpractice. According to the allegations of the SAC, at all

relevant times, Plaintiffs lived together as husband and wife and were expecting their first

child. (SAC, ¶ 4.) Defendants “entered into patient physician/health care provider

relationships” with Duenas “for her care and for the care and delivery of her baby.” (Id., ¶¶ 5-

7.)

On August 13, 2018, Duenas, then 41 weeks pregnant, came to Valley Health Care

Downtown with complaints that she had not felt her baby move since the previous day. (SAC,

¶ 12) Plaintiffs were advised to immediately report to the labor and delivery department of

Santa Clara Valley Medical Center, which is owned and operated by the County, for non-stress

tests. (Id., ¶¶ 6, 13.) After the testing was complete, Duenas was admitted to the hospital for

monitoring. (Id., ¶ 14.)

Duenas was induced in labor after several hours of monitoring. (SAC, ¶ 15.) On

August 14, at approximately 2:00 p.m. she was instructed to begin pushing. (Id., ¶ 16.)

Approximately 50 minutes later, she told her nurse that she was exhausted and could no longer

push. (Id. ¶ 17.) Plaintiffs were concerned their child was suffering harm by not being

delivered immediately, and because she still had not felt the child move. (Id.) Out of concern

for the child, Duenas asked her doctors to deliver by cesarean section, but Dr. Krojanker

refused to authorize the procedure. (Id, ¶ 18.)

Duenas continued to make efforts to push, but Plaintiffs were concerned that the child

was being harmed by not being delivered immediately. (SAC, ¶ 21.) Plaintiff allegedly

suffered severe emotional distress and anxiety because they could not feel the child moving,

and because the child’s well-being and Duenas’ requests and condition were being ignored.

(Id.)

At approximately 7:30 p.m. on August 14, Dr. Arroway authorized a cesarean section.

(SAC, ¶ 22.) At 7:48 p.m., the child’s heart stopped beating and could not be detected on the

electronic fetal monitor. (Id., ¶ 23.) Plaintiffs were emotionally distressed and filled with even

more anxiety by that point, knowing that the child would suffer further harm if not delivered

immediately. (Id.) At 8:03 p.m., the doctors instructed Duenas to push as they attempted a

vacuum procedure to deliver the child. (Id., ¶ 24.) The procedure was unsuccessful, causing

Plaintiffs to experience further emotional distress and anxiety. (Id.)

A cesarean section began at 8:08 p.m. (SAC, ¶ 25.) The child was delivered two

minutes later and was not breathing. (Id., ¶ 26.) Efforts to revive him were unsuccessful. (Id.)

Plaintiffs allege that Defendants were negligent in the provision of care to Duenas and their

child by failing to timely commence the cesarean section and unsuccessfully utilizing the

vacuum procedure, which caused the baby to unduly suffer before his death. (SAC, ¶ 27.)

B. Procedural

Plaintiff initiated this action in July 2019, and filed the First Amended Complaint

(“FAC”) approximately two months later in September 2019, asserting the following causes of

action: (1) professional medical negligence; (2) wrongful death; (3) negligent infliction of

emotional distress (“NIED”); (4) NIED; and (5) loss of consortium. Defendants subsequently

demurred to each of the foregoing claims on the ground of failure to state facts sufficient to

constitute a cause of action. (Code Civ. Proc., § 430.10, subd. (e).) The Court sustained the

demurrer without leave to amend as to the fifth cause of action and the first cause of action as

to Portillo only, sustained the demurrer with leave to amend as to the fourth cause of action,

and overruled the motion as to the remaining claims. Plaintiffs filed the SAC on June 29,

2020, asserting the same claims as the FAC.

On July 31, 2020, Defendants filed the instant demurrer to the fourth cause of action on

the ground of failure to state facts sufficient to constitute a cause of action. (Code Civ. Proc., §

430.10, subd. (e).) Plaintiffs oppose the motion.

II. Defendants’ Demurrer

The fourth cause of action for NIED is asserted by Portillo against all defendants, and is

predicated on allegations that Portillo experienced severe emotional distress as a result of their

negligence in the provision of care to his wife and baby.

As explained in the preceding order on Defendants’ demurrer to the FAC, NIED is “a

form of the tort of negligence, to which the elements of duty, breach of duty, causation and

damages apply.” (Huggins v. Longs Drug Stores California, Inc. (1993) 6 Cal.4th 124, 129.)

A plaintiff may state a claim for NIED as either a bystander or a direct victim. (Wooden v

Raveling (1968) 61 Cal.App.4th 1035, 1037.) Here, the fourth cause of action, because it is

asserted by Portillo, is based on the bystander theory of liability. A claim for NIED based on

this theory may be stated when “the plaintiff was not physically impacted or injured, but

instead witnessed someone else being injured due to [the] defendant’s negligence.” (Id.) A

plaintiff asserting a claim based on a bystander theory must allege that he or she was “present

at the scene of the injury-producing event at the time it [occurred] and [was] then aware that it

[caused] injury to the victim.” (Fortman v. Förvaltningsbolaget Insulan AB (2013) 212

Cal.App.4th 830, 832, citing Thing v. La Chusa (1989) 48 Cal.3d 644, 667-668.)

The Court previously sustained the demurrer to the this claim in the FAC because

Plaintiffs failed to plead facts demonstrating that Portillo was present at the scene of the injury-

producing event at the time it occurred and simultaneously aware that it was causing injury to

his child. Plaintiffs had alleged that Portillo was present for “both the refusals to honor

[Duenas’] request for cesarean and the delay in commencing the cesarean after the baby’s heart

beat stopped and was lost on the fetal monitor.” (FAC, ¶ 59.) However, Plaintiffs had not

alleged that Portillo was present during the cesarean section, the delivery, or the subsequent

resuscitation efforts, or that he was simultaneously aware that Defendants’ conduct was

causing harm to his son. (See Bird v Saenz (2002) 28 Cal.4th 910, 921 [“One takes a giant leap

beyond that point, however, by imposing liability for NIED based on nothing more than a

bystander’s ‘observation of the results of the defendant’s infliction of harm,’ however ‘direct

and contemporaneous.’ [Citation.] Such a rule would eviscerate the requirement … that the

plaintiff must be contemporaneously aware of the connection between the injury-producing

event and the victim’s injuries”].)

With the instant motion, Defendants maintain that Plaintiffs still have not pleaded

sufficient facts to establish liability for NIED based on the bystander theory because he has not

pleaded that he was present for the injury-producing event and was contemporaneously aware

that it was causing injury to the fetus. Defendants explain that per the allegations of the SAC,

Portillo was present for (1) the refusal to honor Duenas’ request for a cesarean section, and (2)

the delay in commencing the cesarean section after the baby’s heart stopped and was lost on

the fetal monitor, but was not present for the actual procedure and thus could not have

perceived the injury alleged to have resulted from negligence by Defendants- intrauterine

death- visually or otherwise until after the procedure was completed, when the doctors

presumably told him that the infant has been stillborn. Defendants continue that Portillo could

not have perceived the injury because, as it occurred in utero, it was not observable nor capable

of sensory perception by him, a layperson. These contentions are well taken.

Notably, in Bird v. Saenz, supra, the Supreme Court observed that in NIED cases

decided after the seminal case of Thing v. La Chusa, “courts have not found a layperson’s

observation of medical procedures to satisfy the requirement of contemporary awareness of the

injury-producing event. This is not to say that a layperson can never perceive medical

negligence, or that one who does perceive it cannot assert a valid claim for NIED. To suggest

an extreme example, a layperson who watched as a relative’s sound limb was amputated by

mistake might well have a valid claim for NIED against the surgeon. Such an accident, and its

injury-causing effects, would not lie beyond the plaintiff’s understanding awareness. But the

same cannot be assumed of medical malpractice generally.” (Bird v. Saenz, 28 Cal.4th at 917-

918.) Thus, even if the Court were to accept the contention made by Plaintiffs that the injury-

producing event is not limited to the stillbirth of his child but includes the 20 minute period

that the baby’s heartbeat could not be detected on the electronic fetal monitor, it is not

persuaded that he could have been aware of any injury-producing event during that time

because it was beyond his awareness as a layperson. Other cases involving stillborn babies

which preceded Thing are in accord. (See, e.g., Justus v. Atchison (1977) 19 Cal.3d 564, 585

[holding that neither plaintiff bystander [there being two separate cases] was entitled to recover

because they were not able to contemporaneously observe the stillbirths of their infant

children1].)

1 In reaching this conclusion, the Court explained:

Viewed realistically, therefore, each complaint paints the following picture: the

plaintiff husband witnessed certain disturbing developments in the delivery

room, including expressions of concern by the medical staff and use of

emergency procedures. Whether the described events constitute negligence is

questionable, but they no doubt induced a growing sense of anxiety on the

plaintiff’s part. Yet his anxiety did not ripen into the disabling shock which

resulted from the death of the fetus until he was actually informed of that event

There are no allegations to counter the aforementioned conclusion like, for example,

that Portillo had the medical expertise or training necessary to recognize the significance of

what he was observing on the fetal monitor, or that any treatment, or lack thereof, was the

direct cause of the baby’s death. To claim otherwise, i.e., that he could perceive that harm was

occurring to the fetus in utero, is merely speculation. As the Bird court explained (and

Defendants argue here), to hold that bystanders can sue for NIED on account of unperceived

medical errors hidden in a course of treatment would “impose nearly strict liability on health

care providers for NIED to bystanders who observe emotionally stressful procedures that turn

out in retrospect to have involved negligence.” (Bird, supra, 28 Cal4th at 921.) Such a result

cannot stand. Accordingly, the Court finds that Plaintiffs have failed to plead a viable claim for

NIED based on the bystander theory of liability, and therefore Defendants’ demurrer to the

fourth cause of action on the ground of failure to state facts sufficient to constitute a cause of

action is SUSTAINED WITHOUT LEAVE TO AMEND.

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by the doctor; prior to that moment, as a passive spectator her had no way of

knowing that the fetus had died. In short, the impact derived not from what he

saw and heard during the attempted delivery, but from what he was told after

the fact. As we have seen, however, a shock caused by “learning of the accident

from others after its occurrence” will not support a cause of action [for NIED]…

(Justus v. Atchison, supra, 19 Cal.3d at 585, internal citations omitted.)

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17CV314826

Daniel Clemens vs Sandstorm Development Group, Inc. et al

Defendants have served a subpoena to Google, seeking information on Plaintiff’s departure

from Google employment. Plaintiff moves to quash the subpoena; Defendants oppose the

motion. After review of the parties’ papers and the record, the Court provides the following

tentative ruling:

1. Given the omission of Google from a relevant interrogatory response, Plaintiff must

amend that interrogatory response to state when he started work at Google and when he

stopped work at Google. This verified amended interrogatory response must be provided

within 30 days of the date of service of this order.

2. The Court agrees with Defendants that the discovery requests at issue should be

evaluated under the standard established in Williams v. Superior Court (2017) 3 Cal.5th 531.

Under Williams, the burden of establishing the degree and gravity of any invasion of privacy is

to be put on the party asserting the privacy right, not the party seeking the information. Once

that burden is met, then a judge is to balance that privacy right against the interests identified

by the party seeking the information. Only if the discovery involves a plain invasion into

“autonomy privacy” must the party seeking discovery show a compelling interest for that

information. (See generally id. at pp. 556-557.)

3. The Google personnel records Defendants seek about Plaintiff ado not relate to

“autonomy privacy” (i.e., preventing interference with one's personal activities and decisions).

Rather, they relate to “informational privacy” (i.e., protecting the dissemination and misuse of

sensitive and confidential information.) Therefore, under Williams, Defendants need not

demonstrate a compelling interest for the information it seeks.

Defendants state they need the information to probe whether Plaintiff’s reputation is as stellar

as he claims it is (he is currently asserting a claim for defamation). In the Court’s view, this is

a plausible justification for the discovery, not a pretext for a “fishing expedition.”

Conceivably, if Google executives believed Plaintiff was untrustworthy or dishonest and

reflected their view in the documents requested, that would be circumstantial evidence of a not-

so-stellar reputation within the relevant business community, which could reduce a damage

award or prevent recovery altogether. The Court therefore finds these records to be potentially

directly relevant, depending on what they say. Whether or not these records are public isn’t

dispositive. (The Court is not convinced by Defendant’s other proffered reasons for obtaining

Plaintiff’s personnel records.)

On the other side, Plaintiff certainly has some privacy interests in his personnel records. But

where personnel records are directly relevant to claims in a case, production generally is

appropriate. These records, as stated before, do not involve autonomy privacy. The records

requested are limited in scope and time. And a protective order is in place to prevent improper

dissemination of these records.

4. For all of these reasons, the Court DENIES the motion to quash.

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18CV328574

BitClave PTE. LTD. vs Vasily Trofimchuk

The Court DENIES the motion to vacate. The Receiver has power under his appointment

order to resolve Astra’s claims in whatever way he sees fit after exercising appropriate

business judgment. Here, the Receiver exercised his business judgment to abandon Astra’s

appeal because he, like the bankruptcy trustee, did not think it had any value. Astra’s objection

really is an objection to the scope of the Receiver’s power, and that challenge is untimely.

The relevance of BitClave paying $40,000 for Trofimchuk’s appeal rights is limited, as Astra

may be in a different legal position than Trofimchuk. That issue is for the Receiver, and the

Receiver apparently has decided not to seek to vacate the abandonment of Astra’s appeal to

account for this BitClave payment development.

The Court will prepare the final order. (The Court is aware of the Sixth District’s deadline for

this order.)

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Documents

Superior Court, State of California · 7/30/2020 · Case Name: Garcia v. Daily, et al. Case No.: 20CV365883 Defendant Leanne H. Daily (“Daily”) moves to strike the complaint