Tentative Rulings for April 19, 2018 Departments 54, … · aside any void judgment or ... and ‘thus vulnerable to direct or collateral attack at ... makes in the present case to

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Tentative Rulings for April 19, 2018

Departments 54, 402, 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).)

17CECG01800 Gonzalez v. United Automotive Inc. et al. (Dept. 502)

17CECG03578 Cruz v. Beneficial State Bank et al. and related cross-action (Dept.

502)

17CECG03093 Villanueva, et al. v. Becerra, et al. (Dept. 501)

18CECG00140 Amanda Moran v. David Mugridge (Dept. 402)

11CECG00621 Exmundo v. State of California (Dept. 503)

16CECG01664 Kaprielian v. Wild, Carter & Tipton (Dept. 501)

17CECG03104 Howe v. Radtke (Dept. 501)

08CECG00316 Turner v. Mathias (Dept. 402)

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

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

13CECG03906 Arteaga v. Fresno Community Medical Center is continued to

Wednesday, May 2, 2018 at 3:30 p.m. in Dept. 402.

18CECG00406 Dansby v. Sierra Meadows Senior Living, LLC is continued to

Thursday, April 26, 2018 at 3:30 p.m. in Dept. 402.

________________________________________________________________

(Tentative Rulings begin at the next page)

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Tentative Rulings for Department 54 03

Tentative Ruling

Re: Luna v. Estate of Jean Michel Irigoyen

Case No. 17 CE CG 01454

Hearing Date: April 19th, 2018 (Dept. 54)

Motion: Third Party Pietro De Santis’ Motion to Set Aside Judgment

Tentative Ruling:

To grant De Santis’ motion to set aside the judgment entered in the present case

on September 25th, 2017. (Code Civ. Proc. § 473, subd. (d).) to order De Santis to file

and serve a motion to intervene in the action within 30 days of the date of service of

this order.

Explanation:

“The court may, upon motion of the injured party, or its own motion, correct

clerical mistakes in its judgment or orders as entered, so as to conform to the judgment

or order directed, and may, on motion of either party after notice to the other party, set

aside any void judgment or order.” (Code Civ. Proc., § 473, subd. (d).)

“[I]n the absence of valid service of process ‘the court has no jurisdiction

whatsoever over the defendant, its judgment is a complete nullity and should, after

proper proceedings, be set aside.’” (Ziller Electronics Lab GmbH v. Superior Court

(1988) 206 Cal.App.3d 1222, 1229–1230, internal citation omitted.)

“Lack of jurisdiction in its most fundamental or strict sense means an entire

absence of power to hear or determine the case, an absence of authority over the

subject matter or the parties.” (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280,

288.) “When a court lacks jurisdiction in a fundamental sense, an ensuing judgment is

void, and ‘thus vulnerable to direct or collateral attack at any time.’” (People v.

American Contractors Indem. Co. (2004) 33 Cal.4th 653, 660, internal citation omitted.)

“Section 473 empowers a trial court to set aside any judgment or order that is

void as a matter of law, for example, because the court lacked subject matter

jurisdiction, or because the summons and complaint were not properly served, so that

the court lacked personal jurisdiction over a defendant, or otherwise because the

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judgment or order violated a party's due process rights to notice and an opportunity to

be heard.” (Brown v. Williams (2000) 78 Cal.App.4th 182, 187, fn. 4, internal citations

omitted.)

Here, De Santis alleges that he is the true owner and title holder of the real

property that was the subject of plaintiff’s complaint, and that plaintiff and defendant

Kuhne-Irigoyen agreed should be adjudged to be plaintiff’s sole property. De Santis

submits a copy of the grant deed dated July 18th, 2016 and recorded July 27th, 2016, by

which Kuhne-Irigoyen transferred title of the property to De Santis. (De Santis’ Request

for Judicial Notice, Exhibit C. The court takes judicial notice of the grant deed and the

other documents attached to the request for judicial notice under Evidence Code

section 452.) De Santis was granted title to the property by Kuhne-Irigoyen after the

probate court granted a judgment declaring the property to be an asset of the Estate

of Jean Michel Irigoyen, and finding that plaintiff had no right, title, or claim to the

property. (De Santis’ Request for judicial Notice, Exhibit F, Judgment Confirming Estate’s

Ownership of Property dated April 26th, 2016.) The probate court also dissolved the lis

pendens that had been filed by plaintiff against the property in the related action, Luna

v. Estate of J.M. Irigoyen, case no. 14 CE CG 02921. (Ibid.)

Thus, De Santis clearly had a direct interest in the subject matter of the present

action, and he should have been named as a defendant and served with the

summons and complaint. However, plaintiff did not name or serve De Santis, even

though he knew that De Santis had purchased the property from Irigoyen’s estate. In

fact, plaintiff had already tried to sue De Santis and Kuhne-Irigoyen in a prior action

filed in October of 2016 that also asserted that plaintiff was the true owner of the

property due to the alleged “secret trust.” (See Exhibit H to Request for Judicial Notice,

Complaint for Quiet Title in Luna v. Fidelity National Title Company, et al., case no. 16 CE

CG 03317.) As a result, plaintiff should have sued De Santis and served him with the

complaint in the present action if he wanted to bind De Santis to the resulting

settlement and judgment. His failure to do so resulted in a denial of due process to De

Santis, and renders the ensuing judgment void and ineffective.

Plaintiff admits in his opposition that he knew De Santis had title to the property,

but nevertheless contends that De Santis had no right to be named as a defendant

and given notice of the present case because he was already on notice of the

plaintiff’s claim based on the lis pendens filed in the 2014 Superior Court action. (Mira

Overseas Consulting Ltd. v. Muse Family Enterprises, Ltd. (2015) 237 Cal.App.4th 378,

383–384.) However, while plaintiff did file a lis pendens in the 2014 Superior Court

action, the case was dismissed on April 28th, 2016 when plaintiff failed to appear for a

case management conference pursuant to an order to show cause. (Exhibit E to

Request for Judicial Notice, April 28th, 2016 Order to Show Cause Minute Order.) While

plaintiff argues that this order was simply a dismissal of the order to show cause, it does

not appear that the court merely intended to dismiss the OSC. Instead, the court

dismissed the entire action after plaintiff failed to appear at the case management

conference. The minute order states that, “[the] Court orders matter dismissed without

prejudice.” (Ibid.) This language indicates that the court intended to dismiss the entire

matter, and not just the order to show cause.

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In fact, dismissal of the action is the normal practice of the court where a plaintiff

fails to appear for a case management conference. Plaintiff had already failed to

appear for two earlier order to show cause hearings, and the court had continued the

matter each time to give plaintiff a chance to appear and show cause why he should

not be sanctioned for his failure to appear. (Luna decl., Exhibits A, and B.) Plaintiff finally

appeared by Court Call at the August 13th, 2015 order to show cause hearing, at which

time the court continued the matter to April 28th, 2016, noted that there was a probate

matter pending, and ordered the parties to file written status declarations. (Exhibit C to

Luna decl.) When plaintiff failed to appear at the April 28th, 2016 hearing and failed to

file a written status declaration, the court dismissed the action. (Exhibit D to Luna decl.)

Therefore, the 2014 Superior Court action was no longer pending when De Santis took

title to the property.

Also, by the time that De Santis purchased the property, the probate court had

already dissolved the lis pendens as part of its judgment finding that plaintiff had no

right or interest in the property, and determining that the property belonged to the

Estate. “The AMADOR Property, as an asset of the estate of decedent, is not subject to

the lis pendens recorded by Oscar Luna at document number 2014. 125214, which is

hereby dissolved, null and void. It is understood that this Order is to be recorded

evidencing that the lis pendens is dissolved, null and void.” (Exhibit F to Request for

Judicial Notice, Probate Judgment, p. 2.) The judgment was subsequently recorded on

April 29th, 2016, thus making the court’s decision expunging the lis pendens a matter of

public record. (Ibid.)

As a result, the lis pendens was no longer in effect when De Santis purchased the

property in July of 2016, nearly three months after the judgment was entered and

recorded. Consequently, the lis pendens did not encumber the property and De Santis

was not on notice of the plaintiff’s purported right or interest in the property at the time

he purchased it. Also, even if De Santis had some knowledge that plaintiff had tried to

assert a claim of ownership against the property, he was entitled to rely on the probate

court’s decision that plaintiff’s claim had no validity and purchase the property without

any fear that plaintiff might later obtain a judgment declaring the property to be his.

Consequently, plaintiff’s argument that he did not need to name or serve De Santis in

the present action because the lis pendens gave him adequate notice of the property

claim is without merit.

Nevertheless, plaintiff argues at length in his opposition that the probate court

had no subject matter jurisdiction to make any order that was binding on him or the

property because (1) plaintiff had already filed another action regarding the property

and thus another court had jurisdiction over the subject property, (2) the probate court

had no jurisdiction to overturn the lis pendens in the other case because only an

appellate court has jurisdiction to overturn another court’s order, (3) there was an

appeal pending in the probate action at the time De Santis purchased the property, so

the probate court’s order had no validity, and (4) the probate court lacked jurisdiction

to expunge another court’s lis pendens.

However, plaintiff’s arguments all seek to collaterally attack the validity of the

underlying judgment in the probate action, and they should have been raised in an

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appeal in the probate action. Indeed, plaintiff did file appeals in both the 2014 civil

action and the probate action, as well as filing a petition for writ of mandate in the civil

action. Both of the appeals were dismissed by the Court of Appeal, and the petition for

writ of mandate was summarily denied without a hearing on the merits. (Exhibit G to

Request for Judicial Notice, Court of Appeal’s May 31st, 2016 Order Denying Petition for

Writ of Mandate and Request for Immediate Stay. See also Court of Appeal Order of

February 24th, 2017 Dismissing Appeal in case no. 14 CE CG 02921 and Court of Appeal

Opinion dated May 24th, 2017 in case no. 14 CE PR 01043, which the court intends to

judicially notice as court records.)

Plaintiff’s appeal in the probate matter raised the same arguments that he

makes in the present case to attack the probate court’s judgment. (Court of Appeal’s

Opinion in case no. 14 CE PR 01043, p. 4.) However, the Court of Appeal found that

plaintiff had not provided a complete and adequate record from the proceedings in

the underlying probate action, and thus it could not evaluate the merits of his claims.

As a result, the court dismissed the appeal without reaching the merits. (Id. at pp. 6-7.)

Now plaintiff seeks to raise the same contentions again in the present case, and

essentially asks this court to overturn the judgment of another court. However, this court

does not have the power to reverse another court’s order. “One department of the

superior court cannot enjoin, restrain, or otherwise interfere with the judicial act of

another department of the superior court… A judgment rendered in one department of

the superior court is binding on that matter upon all other departments until such time

as the judgment is overturned. Appellate jurisdiction to review, revise, or reverse

decisions of the superior courts is vested by our Constitution only in the Supreme Court

and the Courts of Appeal.” (Ford v. Superior Court (1986) 188 Cal.App.3d 737, 742,

internal citations omitted.)

Here, plaintiff seeks to have this court declare that the judgment in the probate

action was void for lack of subject matter jurisdiction. However, this court may not to

reverse or modify the judgment issued by the court in the probate proceeding, as it has

no jurisdiction to interfere with the probate court’s orders. Any such attack should have

been made as part of the appeal in the underlying case, as plaintiff actually

attempted to do. The fact that his appeal was ultimately dismissed for failure to present

a complete record does not entitle him to take another bite at the apple by filing a

new action in Superior Court that seeks to overturn the probate court’s judgment.

Finally, while De Santis has also moved for relief on the alternative ground that

the plaintiff’s case is barred under the doctrine of res judicata, the court does not need

to reach this contention. The failure to join De Santis as a party to the action and serve

him with the summons and complaint resulted in a denial of due process that is more

than sufficient to support setting aside the judgment. Therefore, the court intends to

grant De Santis’ motion to set aside the judgment, and order De Santis to file and serve

a motion to intervene in the action as a defendant.

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.

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Tentative Ruling

Issued By: KCK on 04/17/18

(Judge’s initials) (Date)

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Tentative Rulings for Department 402 (29)

Tentative Ruling

Re: Marvin, et al. v. Story

Superior Court Case No. 16CECG03906

Hearing Date: April 19, 2018 (Dept. 402)

Motions: Defendant Story’s motions to compel initial responses (x2)

Tentative Ruling:

To grant Defendant Story’s motion to compel Plaintiff Baker to provide initial

verified responses to Defendant Story’s form interrogatories, set one; special

interrogatories, set one; and request for production of documents, set one. (Code Civ.

Proc. §§ 2030.290(b), 2031.300(b).) Plaintiff Baker is ordered to serve complete verified

responses to the discovery set forth above, without objection, within 10 days of the

clerk’s service of the minute order.

To grant Defendant Story’s motion to compel Plaintiff Marvin to provide initial

verified responses to Defendant Story’s form interrogatories, set one; special

interrogatories, set one; and request for production of documents, set one. (Code Civ.

Proc. §§ 2030.290(b), 2031.300(b).) Plaintiff Marvin is ordered to serve complete verified

responses to the discovery set forth above, without objection, within 10 days of the

clerk’s service of the minute order.

To impose monetary sanctions in favor of Defendant Story, against Plaintiffs Baker

and Marvin, and Plaintiffs’ counsel, jointly and severally. (Code Civ. Proc. §§

2023.010(d), 2030.290(c), 2031.300(c).) Plaintiffs and Mr. Castro are ordered to pay $652

in sanctions to the Santa Cruz, Brownwood & Cannon law firm, within 30 days of service

of this order.

Explanation:

The discovery at issue was served on Plaintiffs Baker and Marvin on November 16,

2017. Despite Defendant’s meet and confer letter, responses have not been provided.

Accordingly, Defendant Story’s motion to compel Plaintiffs Baker and Marvin to provide

verified responses to form interrogatories, set one; special interrogatories, set one; and

request for production of documents, set one, is granted. Moving party’s request for

sanctions is granted in the amount of $652.

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

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

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

will constitute notice of the order.

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Tentative Ruling

Issued By: JYH on 04/18/18


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(20) Tentative Ruling

Re: Estrada v. Frye, Superior Court Case No. 16CECG02005


Motion: Plaintiff’s Motion to Tax Costs

Tentative Ruling:

To grant in part and tax costs in the sum of $11,981.95, reducing plaintiff and

cross-complainants’ recoverable costs to $16,365.95. (Code Civ. Proc. § 1033.5.)

Explanation:

Under Code Civ. Proc. § 1032(b), “a prevailing party is entitled as a matter of

right to recover costs in any proceeding.” There is no dispute here – defendant is

clearly the prevailing party and is entitled to an award of his statutory costs.

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.) Once the party seeking to tax costs demonstrates that the costs are not

permitted under statute, not reasonably necessary to the conduct of the litigation, or

not reasonable in amount, the burden shifts to the party claiming those costs to

establish that they are proper. (Ladas v. California State Auto. Assn. (1993) 19

Cal.App.4th 761, 774.) Where the objections are based on factual matters (e.g.,

disputes as to nature or amount of particular costs), the motion to strike must be

supported by declarations under penalty of perjury. (County of Kern v. Ginn (1983) 146

Cal.App.3d 1107, 1113-1114.)

Pursuant to Code Civ. Proc. § 1033.5, recoverable costs under section 1031

include (i) filing and motion fees; (ii) costs related to “[t]aking, video recording, and

transcribing necessary depositions”, (iii) “[s]ervice of process by a . . . “registered

process service”, (iv) ordinary witness fees; (v) court reporter fees; and (vi) fees for

“[m]odels and blowups of exhibits and photocopies of exhibit [that are] reasonably

helpful to aid the trier of fact.” (Code Civ. Proc. §1033.5(a).)

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

under section 1033.5(b), still may be recoverable, subject to the court’s discretion under

section 1033.5(c) as to reasonable and necessary costs. (See El Dorado Meat15 Co. v.

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

Expert Witness Fees

Defendant seeks to recover $23,160.60 in costs for expert witness fees based on

plaintiff’s rejection of defendant's Code Civ. Proc. § 998 offer. Code Civ. Proc. §

998(c)(1) provides:

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If an offer made by a defendant is not accepted and the plaintiff fails to

obtain a more favorable judgment or award, the plaintiff shall not recover

his or her postoffer costs and shall pay the defendant's costs from the time

of the offer. In addition, in any action or proceeding other than an

eminent domain action, the court or arbitrator, in its discretion, may

require the plaintiff to pay a reasonable sum to cover postoffer costs of

the services of expert witnesses, who are not regular employees of any

party, actually incurred and reasonably necessary in either, or both,

preparation for trial or arbitration, or during trial or arbitration, of the case

by the defendant.

The policy behind the § 998 penalties is to “encourage settlement by providing a

strong financial disincentive 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.” (Bank of San Pedro v. Superior Court (1992) 3 Cal.4th

797, 804.)

There is no doubt that defendant achieved a better result (finding of no liability)

than the $3,500 offer.

Plaintiff contends that the offer was invalid because its terms are uncertain and

not capable of valuation. This is due to a provision in the offer requiring plaintiff to

satisfy all liens, and providing that any lienholders “may” be listed as payees. The court

finds that this provision does not render the offer uncertain. Plaintiff’s moving papers

show that there was only one lienholder. (Kalajian Dec. ¶ 5.) Plaintiff could have simply

paid off the lienholder, or communicated with defense counsel as to the identity of the

lienholder. Plaintiff has not shown that he would be left with an unnegotiable draft due

to having to find someone to sign for the lienholder.

Plaintiff contends that the $3,500 offer was invalid because defendant knew it

could not be accepted because at the time of the offer plaintiff had incurred $2,937.20

in medical treatment from First Health Medical Center (which had a lien), and had

already paid $800 in litigation costs (Kalajian Dec. ¶¶ 3-4), which adds up to slightly

more than the offer.

However, the court finds that where a defendant is confident it has no liability,

an offer that covers plaintiff’s litigation costs and medical expenses is reasonable.

The court finds the amount of expert witness costs incurred reasonable. But as

plaintiff points out in the motion and defendant concedes in the opposition, the memo

of costs seeks $100 too much for the deposition of plaintiff’s expert. That amount should

be taxed.

While the court finds that the 998 offer is valid, and defendant is entitled to

recover his expert witness fees as costs, plaintiff will only be required to pay half of the

expert witness fees. "Section 998 … permits the trial court, via exercise of discretion, to

consider a party's ability to pay costs." (Santantonio v. Westinghouse Broadcasting Co.

(1994) 25 Cal.App.4th l 02, 125, fn. 7.) Plaintiff earns between $10,000 and $15,000

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annually through his employment. (Kalajian Dec. Exh. B, Plaintiff's Schedule C (Form

1040).) Based upon these earnings, Plaintiff contends that he has no ability to pay any

costs, much less the $28,347.84 claimed in defendant's cost bill.

In light of plaintiff’s financial condition, the court will reduce the expert witness

fees by half, and accordingly tax $11,205.30.

Deposition costs

Defendant seeks $1,958.17 in deposition costs. Plaintiff makes no specific

objection in the moving papers, but in the reply contends that $4 per page is

unreasonable. Other than pointing out that one court reporter charged about $3 per

page. Plaintiff has failed to meet his burden of showing that these costs were not

reasonable or necessary. (See Nelson v. Anderson (1999) 72 Cal.App.4th 111, 131.) The

motion is denied as to this item.

Service of Process

Defendant claims $115 for the service of trial subopoenas to the PMK of First

Health Medical, Kristy Bowers (an employee of First Health Medical), Matt Soul (another

employee of First Health Medical), and a “RUSH fee for service.” Plaintiff points out that

nobody from First Health Medical testified at trial, and it is unclear why the fee for rush

service.

Inasmuch as none of these witnesses were called to testify, the court finds that

the costs were unnecessary and should not be allowed.

Attachment expenses

Defendant claims $211.90 in costs as Attachment Expenses charged by Rapid

Legal Court e-Filing Expenses. It is unclear why this was categorized as an “Attachment

Expenses,” because it is an expense for e-filing charged by Rapid Legal for filing. (Blake

Dec. ¶ 5.) As these are not court filing fees, they are not a category of costs allowed

under Code Civ. Proc. § 1130.5, subdivision (a). Defendant has not shown that it is a

category of costs that should otherwise be allowed under subdivision (c). Accordingly

the entire amount should be taxed.

Models, blow-ups and photocopies of exhibits

Defendant claims $85 for a DVD disk of Dr. Isaac Birchall’s video testimony for

trial. This is an item of cost that is recoverable only if reasonably helpful to aid the trier of

fact. (Code Civ. Proc. § 1033.5(a)(13).) Since it was not used at trial, it was not helpful

to the trier of fact, and therefore should be taxed.

Court reporter fees

Defendant incurred and claims $1,801.12 in court reporter fees during trial, and

provides copies of the invoices. (Blake Dec. ¶ 11, Exh. I.) Court reporter fees as

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established by statute are allowable as costs. (Code Civ. Proc. § 1033.5(a)(11).) Plaintiff

makes no showing as to why this should be disallowed, failing to address it in the reply

after documentation was provided with the opposition.

Other

Defendant claims $86 for CourtCall fees for attending the case management

conference. (Blake Dec. ¶ 13, Exh. K.) This is not an item specifically allowed under

Code Civ. Proc. § 1033.5, subdivision (a). It may fall under a category specifically

disallowed in subdivision (b)(3) – telephone expenses. But since it isn’t specifically

allowed or disallowed, the court has discretion to allow it if it is reasonable in amount

and “reasonably necessary to the conduct of the litigation rather than merely

convenient or beneficial to its preparation.” (Code Civ. Proc. § 1033.5(c).)

The opposition does not address how this was “reasonably necessary to the

conduct of the litigation rather than merely convenient or beneficial to its preparation,”

instead merely shows that the expense was incurred. Since there is no argument on this

issue, the CourtCall fee will be taxed.

Defendant also seeks $178.75 in mediation fees. Code Civ. Proc. § 1033.5 does

not provide for recovery of mediation costs. In Gibson v. Bobroff (1996) 49 Cal.App.4th

1202, the court held that court ordered mediation could be granted under §

1033.5(c)(4) because “encouraging the parties to resolve lawsuits at the earliest time

and before a costly and time-consuming trial, is a necessary part of litigation as

conducted in this state.” All costs awarded must be “reasonable in amount” and only

be for items “reasonably necessary to the conduct of the litigation rather than merely

convenient or beneficial to its preparation.” (§ 1033.5(c)(2) & (3).) The cost in Gibson

could be considered necessary since it was court ordered. In this case, defendant

does not explain how mediation was mandatory. Though alternative dispute resolution

is required, the parties can typically choose “Neutral Case Evaluation” instead. This cost

will be taxed as well.

Pursuant to Cal. Rules of Court, Rule 3.1312(a) and Code Civ. Proc. § 1019.5(a),

no further written order is necessary. The minute order adopting this tentative ruling will

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

order.

Tentative Ruling

Issued By: JYH on 04/18/18


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Tentative Rulings for Department 501

Luna v. Estate of Irigoyen, case no. 17 CE CG 01454, motion to set aside judgment will

be heard in Department 54 at 3:30 p.m. See tentative ruling posted above for

Department 54.

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Re: Williams v. Shaver Springs Homeowners Association, et al.

Court Case No. 17 CECG 04312


Motion: Shaver Springs Homeowners Association’s Motion to Strike Portions

of Complaint

Tentative Ruling:

To grant and strike the following language from the Complaint:

1. Paragraph 16 in its entirety: “The conduct of defendants, and each of them,

as described above was willful in that it was an intentional failure to act with

express knowledge that serious injury or damage to another could likely result,

and with a conscious disregard of the probable result.”

2. The following portions of paragraph 17: “… constituted willful misconduct for

which each defendant is liable. Plaintiff is therefore entitled to damages

according to proof, together with exemplary damages pursuant to the

provisions of Civil Code Section 3294.”

3. The following portion of paragraph 22: “… defendants, and each of them,

are guilty of willful misconduct and malice as defined in Civil Code Section

3294 in that allowing said dog to remain in the proximity of other tenants of

the Shaver Springs Homeowners association constituted a willful and

conscious disregard of the rights and safety of plaintiff.”

4. The following portion of paragraph 23: “… and for punitive damages

pursuant to Civil Code Section 3294.”

5. The following portion of Paragraph 2 of the prayer: “… as well as exemplary

damages pursuant to the provisions of Civil Code Section 3294;” and

6. The following portion of Paragraph 4 of the prayer: “… as well as exemplary

damages pursuant to the provisions of Civil Code Section 3294.”

An amended complaint consistent herewith shall be filed and served within 10

days of the clerk’s service of this minute order.

Explanation:

A motion to strike can be used to cut out any 'irrelevant, false or improper'

matters or “a demand for judgment requesting relief not supported by the allegations

of the complaint.” (Code Civ. Proc., § 431.10, subd. (b).) A motion to strike is the

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proper procedure to challenge an improper request for relief, or improper remedy,

within a complaint. (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166-167.)

The Homeowners Association claims that there are insufficient facts to support a

claim for punitive damages. With respect to punitive damage allegations, mere legal

conclusions of oppression, fraud or malice are insufficient (and hence improper) and

therefore may be stricken. However, if looking to the complaint as a whole, sufficient

facts are alleged to support the allegations, then a motion to strike should be denied.

(Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6.) There must be clear and

convincing evidence that the defendant is guilty of oppression, fraud or malice. (Civ.

Code, § 3294, subd. (a); Neal v. Farmers Ins. Exchange (1978) 21 Cal. 3d 910, 922.)

“[A]bsent an intent to injure the plaintiff, ‘malice’ requires more than a willful and

conscious disregard of the plaintiff’s interests. The additional component of

‘despicable conduct’ must be found.” (College Hosp. Inc. v. Superior Court (1994) 8

Cal.4th 704, 725.) “Despicable” conduct is defined as “conduct which is so vile, base,

contemptible, miserable, wretched or loathsome that it would be looked down upon

and despised by ordinary decent people.” (Ibid.) Such conduct has been described

as “having the character of outrage frequently associated with crime.” (Tomaselli v.

Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1287; Cloud v. Casey (1999) 76

Cal.App.4th 895, 912.)

A claim may be supported by showing “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, subd. (c)(1).) “ ‘"To establish conscious disregard, the plaintiff must

show ‘that the defendant was aware of the probable dangerous consequences of his

conduct, and that he willfully and deliberately failed to avoid those consequences.’ ”

(Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1055.)

An award of punitive damages in cases involving unintentional torts are rare.

(Lackner v. North (2006) 135 Cal.App.4th 1188, 1212.) However, “‘“[p]unitive damages

are appropriate if the defendant's acts are reprehensible, fraudulent or in blatant

violation of law or policy.”’” (Id. at p. 1210.) The Homeowners Association’s alleged

acts cannot be said to be reprehensible at this stage of pleading. Here, all plaintiff has

alleged is that the Homeowner Association has knowledge that the dog that ultimately

bit plaintiff was “dangerous and vicious” was “harbored” by Christina Juarez “and that

the dog was liable to bite someone at any given time,” in the opinion of the some

residents. However, there are no facts which establish that the Homeowners

Association knew Juarez was a resident of the Association, or that the Association had

any legal authority to require the dog’s removal. Thus, this conduct cannot be said to

be “vile, base, contemptible, miserable, wretched or loathsome” and “looked down

upon and despised by ordinary decent people.” (College Hosp. Inc. v. Superior Court,

supra, 8 Cal.4th at p. 725.) Moreover, because it is not specifically alleged to have

violated city, county and state law or regulations, it does not have the character

“having the character of outrage frequently associated with crime.” (Tomaselli v.

Transamerica Ins. Co., supra, 25 Cal.App.4th at p. 1287.)

16

Thus, the motion will be granted, but not to the extent requested by the

Homeowners Association. The Homeowners Association has asked for the entire

second and fourth causes of action to be stricken. Striking the second cause of action

for “willful conduct” and fourth cause of action for intentional infliction of emotional

distress, even if they fail to allege necessary elements of the claim, is an inappropriate

use of a motion to strike.

In California, a motion to strike is a distinct procedural device and is substantively

different from a demurrer. A demurrer is properly utilized to attack the sufficiency or

certainty of a pleading. (See Code Civ. Proc., §§ 430.10, 430.20.) A demurrer is also

properly directed against a whole pleading or specific causes of action within the

pleading. (See Code Civ. Proc., § 430.50.) A demurrer, rather than a motion to strike, is

the proper method of testing whether a complaint states facts sufficient to constitute a

cause of action. (Pierson v. Sharp Memorial Hospital, Inc. (1989) 216 Cal.App.3d 340,

342 [“A motion to strike does not lie to attack a complaint for insufficiency of allegations

to justify relief; that is a ground for general demurrer.]; Warren v. Atchison, Topeka &

Santa Fe Ry. Co. (1971) 19 Cal.App.3d 24, 41.)

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


Tentative Ruling

Issued By: MWS on 04/18/18


17


Tentative Ruling (2)

Re: Cardenas v. Del Montes et al.

Court Case No. 14CECG03335


Motion: Application to admit attorney Pro Hac Vice

Tentative Ruling:

To grant Douglas Smith’s application to appear as counsel pro hac vice.

Attorney Smith is ordered to pay to the superior court, on or before the

anniversary of the date this application is granted, a fee of $500 if Attorney Smith

maintains pro hac vice status in this case. Gov. Code §70617(e)(2).

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

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

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


Tentative Ruling

Issued By: DSB on 04/18/18


18


Re: Jane Doe v. Fresno Unified School District



Motion: Petition to Compromise Minor’s Claim

Tentative Ruling:

Having failed to file a petition to approve the compromise the hearing is off

calendar. Petitioner must obtain a new hearing date for consideration of any future

petition filed. Petitioner must comply with Super. Ct. Fresno County, Local Rules, rule

2.8.4.

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: DSB on 04/18/18


19


03

Tentative Ruling

Re: Cecilio v. Dominguez



Motion: Petition to Compromise Minor’s Claim

Tentative Ruling:

To grant the petition to compromise the minor’s claim. (Probate Code § 3500,

Code Civ. Proc. § 372, et seq.) The proposed order has been signed. The matter is off

calendar. No appearances by the parties are required.

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

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

service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: KAG on 04/12/18


20

(5)

Tentative Ruling

Re: Garcia v. Urology Associates of Central California Medical

Group, Inc.



In the event oral argument is requested, it will be held on

Tuesday, April 24, 2018, at 3:30 p.m. in Dept. 503.

Motion: By Defendant to Compel Arbitration

Tentative Ruling:

To grant the motion on the condition that Defendant pay all costs of the

arbitration as well as the arbitrator’s fees.

Explanation:

Nature of Proceeding

A party to an arbitration agreement may seek a court order compelling the

parties to arbitrate a dispute covered by the agreement. [See CCP § 1281.2.] The

petition must allege specific facts (rather than mere conclusions) demonstrating the

existence of an arbitrable controversy. [See Graphic Arts Int'l Union v. Oakland Nat'l

Engraving Co. (1986) 185 Cal.App.3d 775, 781.] In addition, the petition must allege

"that the opposing party refuses to arbitrate the controversy." [See Spear v. California

State Auto. Ass'n (1992) 2 Cal.4th 1035, 1041.]

Submission of Evidence

As in motion proceedings generally, factual issues should be submitted by

affidavits or declarations. Verified pleadings may not suffice. [See Strauch v. Eyring

(1994) 30 Cal.App.4th 181, 186—error to deny petition on ground of fraud alleged in

responsive pleadings.] The petition to compel must set forth the provisions of the written

agreement and the arbitration clause verbatim, or such provisions must be attached

and incorporated by reference. [See CRC Rule 3.1330.]

Burden of Proof

The moving party must prove by a preponderance of evidence the existence of

the arbitration agreement and that the dispute is covered by the agreement. The

burden then shifts to the resisting party to prove by a preponderance of evidence

grounds for denial (e.g., fraud, unconscionability, etc.). [See Rosenthal v. Great

Western Fin'l Securities Corp. (1996) 14 Cal.4th 394, 413-414.]

21

Federal Arbitration Act or California Arbitration Act

The Federal Arbitration Act (“FAA”) provides for enforcement of arbitration

provisions in any contract “evidencing a transaction involving commerce.” [9 USC § 2

(emphasis added); see Rent-A–Center, West, Inc. v. Jackson (2010) 561 U.S. 63, 130 S.Ct.

2772, 2776; see also Rogers v. Royal Caribbean Cruise Line (9th Cir. 2008) 547 F.3d 1148,

1153–1154.] The term “involving commerce” is functionally equivalent to “affecting

commerce” and “signals an intent to exercise Congress’ commerce power to the full.”

[Allied-Bruce Terminix Cos., Inc. v. Dobson (1995) 513 US 265, 277, 115 S.Ct. 834, 841

(emphasis added).] The words “evidencing a transaction” mean only that the

transaction must turn out, in fact, to involve interstate commerce, i.e., the parties need

not have intended any interstate activity when they entered into the contract. [Allied-

Bruce Terminix Cos., Inc. v. Dobson, supra, 513 US at 277, 115 S.Ct. at 841; Shepard v.

Edward Mackay Enterprises, Inc. (2007) 148 Cal.App.4th 1092, 1097.]

Additionally, the dispute need not arise from the particular part of the

transaction involving interstate commerce. The FAA applies if the underlying

transaction as a whole involved interstate commerce. [Shepard v. Edward Mackay

Enterprises, Inc., supra, 148 Cal.App.4th at 1101.] Thus, the FAA governs if the underlying

contract facilitates interstate commercial transactions or directly or indirectly affects

commerce between states. [See Bernhardt v. Polygraphic Co. of America (1956) 350

US 198, 201, 76 S.Ct. 273, 275; Prima Paint Corp. v. Flood & Conklin Mfg. Co. (1967) 388

US 395, 401–402, 87 S.Ct. 1801, 1805, fn. 7.]

The party claiming that the contract involves interstate commerce and that the

FAA preempts state law has the burden of proof. [Woolls v. Sup.Ct. (Turner) (2005) 127

Cal.App.4th 197, 211–214; Shepard v. Edward Mackay Enterprises, Inc., supra, 148

Cal.App.4th at 1101.]

MERITS

The FAA Does Not Apply

The Agreement to Arbitrate Employment Disputes (“Agreement”) in this case

states at paragraph 5: “The arbitrator shall conduct the proceedings pursuant to the

California Arbitration Act.” As argued by the Plaintiff, this means that the parties

themselves chose state law to apply. [Volt Information Sciences, Inc. v. Board of

Trustees of Leland Stanford Junior Univ. (1989) 489 US 468, 477-479, 109 S.Ct. 1248, 1255-

1256.] In addition, the law requires that the contract at issue evidence a transaction

involving commerce.” [9 USC § 2 (emphasis added); see Rent-A–Center, West, Inc. v.

Jackson (2010) 561 U.S. 63, 130 S.Ct. 2772, 2776.] Here, Plaintiff was hired to supervise

other employees at Defendant’s workplace in Fresno. Her employment had nothing to

do with interstate commerce. Therefore, the California Arbitration Act applies to the

Agreement.

22

Defense of Fraudulent Inducement

Where the claim of fraud is directed to the arbitration agreement itself (and not

an arbitration clause set in a contract bearing on other matters), the claim may be

“ground for revocation” of the agreement to arbitrate. This type of claim must be

resolved by the court, not the arbitrator, under both federal and state law. [Moseley v.

Electronic & Missile Facilities, Inc. (1963) 374 US 167, 170-171, 83 S.Ct. 1815, 1817; Engalla

v. Permanente Med. Group, Inc. (1997) 15 Cal.4th 951, 973.]

In the instant motion, Plaintiff has not made a sufficient showing of fraudulent

inducement. First, Diane Margain, Plaintiff’s Human Resources Manager, did inform her

that the Agreement would apply “if we went to court.” As for her alleged statement

that Plaintiff “should not worry because this is not going to happen and would not

apply to [Plaintiff][,]” it can be understood as conveying Margain’s confidence in

Plaintiff as a potential long term employee. Notably, Margain did not state that the

Agreement did not apply to Plaintiff. If this were so, what would be the purpose in

signing it? The Agreement itself informed Plaintiff that she was giving up her right to a

jury trial. [See ¶ 2.] There is no showing that Plaintiff asked for more time and was

refused. Therefore, the defense of fraudulent inducement fails.

Defense of Waiver

The right to compel arbitration arises by a contract signed by the parties. Along

with contractual rights, it is subject to waiver. The waiver may be express or implied

from the parties' conduct. [See CCP § 1281.2; Davis v. Blue Cross of Northern Calif.

(1979) 25 Cal.3d 418, 425.] The law favors arbitration, and waiver will not be “lightly

inferred.” The party claiming that the other waived the right to arbitrate “bears a heavy

burden of proof.” [Saint Agnes Med. Ctr. v. PacifiCare of Calif. (2003) 31 Cal.4th 1187,

1195; Iskanian v. CLS Transp. Los Angeles, LLC (2014) 59 Cal.4th 348, 375; Gloster v. Sonic

Automotive, Inc. (2014) 226 Cal.App.4th 438, 447.]

In this case, Plaintiff submits that the posting of jury fees, attending a case

management conference, and responding to discovery imply an intent to litigate and,

thus, a waiver of the right to arbitrate. Accordingly, she appears to argue that the

delay in requesting arbitration constitutes a waiver. But, if the agreement contains no

deadline for demanding arbitration, a reasonable time is allowed. After a reasonable

time has passed, the right to arbitration is deemed waived. [Spear v. California State

Auto. Ass'n (1992) 2 Cal.4th 1035, 1043; Johnson v. Siegel (2000) 84 Cal.App.4th 1087,

1099.]

The Agreement does not specify a time for demanding arbitration. The

Complaint was served via substitute service on September 29, 2017. According to the

Declaration of Eddings, Defendant’s former attorney, he sent a letter to Plaintiff’s

attorney on October 30, 2017 demanding arbitration. After an extension of time was

granted, Eddings learned on December 29, 2017 that Plaintiff would not agree. [Id. at

¶¶ 2-3.] The instant motion was filed 53 days later. No prejudice has been shown.

Although Hernandez declares that attorney time was wasted in preparing discovery

23

and attending the case management conference, this is not significant. As a result, no

waiver exists.

Defense of Unconscionability to Enforcement of Arbitration Agreement

Procedural Unconscionability

“Procedural unconscionability” addresses the circumstances under which the

contract was negotiated and the parties' situations at that time. It focuses on the

factors of “oppression or surprise due to unequal bargaining power . . . .” [Baltazar v.

Forever 21, Inc. (2016) 62 Cal.4th 1237, 1243; Sanchez v. Western Pizza Enterprises, Inc.

(2009) 172 Cal.App.4th 154, 173 (abrogated on other grounds by AT&T Mobility LLC v.

Concepcion (2011) 563 US 333, 131 S.Ct. 1740, as recognized in Iskanian v. CLS Transp.

Los Angeles, LLC (2014) 59 Cal.4th 348, 366).] If the court determines that procedural

unconscionability exists, it will scrutinize the substantive terms of the agreement to

ensure they are not one-sided or manifestly unfair. [Baltazar v. Forever 21, Inc., supra, 62

Cal.4th at 1244.]

“The oppression component arises from an inequality of bargaining power . . .

and an absence of real negotiation or a meaningful choice on the part of the weaker

party.” [Kinney v. United HealthCare Services, Inc. (1999) 70 Cal.App.4th 1322,

1329; Nyulassy v. Lockheed Martin Corp. (2004) 120 Cal.App.4th 1267, 1281.] The

surprise component usually involves the extent to which supposedly agreed-upon terms

are buried in an overly complex printed form. [See Armendariz v. Foundation Health

Psychcare Services, Inc. (2000) 24 Cal.4th 83, 114; Little v. Auto Stiegler, Inc. (2003) 29

Cal.4th 1064, 1071.]

In the motion here, the Declaration of Norma Garcia is submitted in support of

the unconscionability defense. Plaintiff states that, on March 31, 2014, she met with

Margain to sign various documents pursuant to her hire as a full time employee. She

states that there were numerous documents to sign and the signature lines were “pre-

tabbed.” She further states that she felt rushed by Margain and that she was “on a

break” from her new job duties. Plaintiff also indicates that she was not advised to seek

legal counsel prior to signing the Agreement and that the significance of signing the

document was not explained. Given that she believed that signing the document was

a condition of employment, she reluctantly signed it. [See Plaintiff’s Declaration at ¶¶ 3-

4.]

But, Plaintiff does not discuss the circumstances surrounding her signing a second

Agreement on April 5, 2016 when she had already been promoted to supervisor. Even

though this was brought to the Court’s attention in the reply, Plaintiff must have been

aware of this fact. Accordingly, the element of oppression is not present, nor is the

element of surprise. Thus, if procedural unconscionability exists, it is de minimis.

Substantive Unconscionability

Substantive unconscionability focuses on the terms of the agreement and

whether those terms are “overly harsh or one-sided.” [Armendariz v. Foundation Health

24

Psychcare Services, Inc., supra, 24 Cal.4th at 114; Little v. Auto Stiegler, Inc., supra, 29

Cal.4th at 1071.] This type of unconscionability requires a significant degree of

unfairness. A simple “bad bargain” does not qualify. [Baltazar v. Forever 21, Inc., supra,

62 Cal.4th at 1244-1245.] In evaluating the presence of substantive unconscionability,

the “paramount consideration” is mutuality of the obligation to arbitrate. [Nyulassy v.

Lockheed Martin Corp., supra, 120 Cal.App.4th at 1287; Pinela v. Neiman Marcus

Group, Inc. (2015) 238 Cal.App.4th 227, 241.]

The seminal case of Armendariz, supra, mandates that an agreement to

arbitrate public policy employment claims must satisfy five requirements: (1) The

agreement must provide for adequate discovery; (2) It must require a written decision

allowing limited judicial review; (3) The agreement must permit the types of relief that

would be available in court; (4) It must limit the employee's forum costs (see

Armendariz, supra, 24 Cal.4th at pp. 91, 102–103; Little, supra, 29 Cal.4th at p. 1081); and

(5) As with all contractual arbitration, an agreement to arbitrate a public policy claim

must provide for a neutral arbitrator. (See Armendariz, supra, 24 Cal.4th at pp. 91, 103.)

Here, Plaintiff filed suit because she was allegedly demoted for reporting alleged labor

code violations by her employer. [See Complaint.] Therefore, public policy

employment claims are involved.

A close examination of the Agreement at issue reveals that mutuality of

obligation to arbitrate is present. [See Agreement at ¶ 1.] It allows for summary

judgment/summary adjudication and the right to discovery. [See Agreement at ¶¶ 2,

5.] The Agreement states that the arbitrator shall conduct the proceedings pursuant to

the California Arbitration Act. Thus, a written decision must be issued that is subject to

limited judicial review. [Armendariz v. Foundation Health Psychcare Services, Inc.,

supra, 24 Cal.4th at 106-107; Pearson Dental Supplies, Inc. v. Sup.Ct. (Turcios) (2010) 48

Cal.4th 665, 678-679.]

Finally, the Agreement also provides that Defendant will pay for the costs of

arbitration, including the fees of the arbitrator, if required by law. [See Agreement at ¶

5.] Plaintiff argues that the Agreement is substantively unconscionable because of the

possibility of “fee shifting” given the use of the term “if the law requires.” However,

there is nothing objectionable about this qualification. If Defendant is ordered to bear

the costs and fees of the arbitrator as required by Armendariz, supra, there is no

substantive unconscionability.

Is the Agreement Unconscionable and Thus Unenforceable?

Regarding procedural unconscionability, arbitration clauses are often found in

“adhesion” contracts (standardized contracts drafted by a party of superior bargaining

power and presented to the weaker party on a take-it-or-leave-it basis).

“Unconscionable” provisions in such contracts may be unenforceable, at least under

state law. [See Armendariz, supra, v. Foundation Health Psychcare Services, Inc., supra,

24 Cal.4th at 113–115; Ontiveros v. DHL Express (USA), Inc. (2008) 164 Cal.App.4th 494,

503–505.]

25

But, the mere fact an adhesion contract is involved does not per se render the

arbitration clauses unenforceable. Such contracts are “an inevitable fact of life for all

citizens—businessman and consumer alike.” [See Graham v. Scissor–Tail, Inc. (1981) 28

Cal.3d 807, 817; Armendariz, supra, 24 Cal.4th 83 at 113.] Ultimately, a form contract

used by a party for many transactions is not necessarily a contract of adhesion and

procedurally unconscionable. Rather, the particular circumstances under which the

contract was executed must be considered. [See Crippen v. Central Valley RV Outlet,

Inc. (2004) 124 Cal.App.4th 1159, 1165–1167—absence of procedural unconscionability

in used motor home purchase agreement prevented buyer from blocking arbitration of

dispute.]

Enforceability

An arbitration agreement must be both procedurally and substantively

unconscionable in order to render it unenforceable. [See Armendariz v. Foundation

Health Psychcare Services, Inc., supra, 24 Cal.4th at 133-134.] The procedural and

substantive elements need not be present in the same degree, and a sliding scale is

used to evaluate the presence of procedural and substantive unconscionability. As a

result, the more one type of unconscionability is present, the less the other type of

unconscionability needs to exist. [See Armendariz, supra, 24 Cal.4th at 114.] But, in the

instant case, procedural unconscionability is de minimis and any substantive

unconscionability can be eliminated if Defendant pays all costs of the arbitration, as

well as the arbitrator’s fees. The other defenses have failed. Therefore, the Court

intends to grant the motion.

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

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

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

the clerk will constitute notice of the order.

Tentative Ruling

Issued By: KAG on 04/18/18


Documents

Tentative Rulings for April 19, 2018 Departments 54, … · aside any void judgment or ... and ‘thus vulnerable to direct or collateral attack at ... makes in the present case to