Tentative Rulings for October 12, 2017 Departments 402 ... · evidentiary hearing in a quiet title action after default. In quiet title actions, judgment ... California Rules of Court,

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


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



(30)

Tentative Ruling

Re: Naomi Smith v. Christopher Islas


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.





Tentative Ruling




(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




Re: Madaus v. Spivak

Case No. 15CECG03864


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



Re: Cotner v. University Medical Center Pharmacy, et al.

Court Case No. 15 CECG 01644


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.)





Tentative Ruling

Issued By: MWS on 10/11/17


Tentative Rulings for Department 502 (6)

Tentative Ruling

Re: Renfro v. Lopez

Superior Court Case No.: 16CECG02048


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




Tentative Ruling

Issued By: RTM on 10/10/17


(29)

Tentative Ruling

Re: Kathy Reyburn v. Santé Health System, Inc., et al.



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



Tentative Ruling

Issued By: RTM on 10/10/17




Re: Soto et al. v. Saint Agnes Medical Center et al., Superior

Court Case No. 15CECG01529


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



Re: Quezada v. Adler Wallach & Assoc., Inc.



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



Tentative Ruling



(29)

Tentative Ruling

Re: Nick Bellasis, et al. v. Fresno Land Company, et al.



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




Tentative Ruling

