Tentative Rulings for June 13, 2019 Departments 403, 501 ... · 6/13/2019 · Stephen Slesinger, Inc. v. Walt Disney Co. (2007) 155 Cal.App.4th 736, the Court of Appeal held that

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Tentative Rulings for June 13, 2019

Departments 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).)

12CECG01636 Ramsey et al. v. Isaacs et al. (Dept. 501 at 3:00 p.m.)

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

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

15CECG02741 Capriola v. Express Services, Inc. is continued to July 2, 2019 at

3:30 p.m. in Dept. 503.

16CECG00051 Edward Medina v. Craig Aaronson DPM all motions are continued

to June 18, 2019 at 3:30 p.m. in Dept. 503.

18CECG02984 Shiralian Enterprises, Inc. v. Richard Herzog Construction, Inc. is

continued to June 20, 2019 at 3:30 p.m. in Dept. 403.

________________________________________________________________

(Tentative Rulings begin at the next page)

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Tentative Rulings for Department 403

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Tentative Rulings for Department 501 (30)

Tentative Ruling

Re: Matthew Perry v. Wade Bamberger

Case No. 18CECG01666

Hearing Date: June 13, 2019 (Dept. 501) @ 3:00 p.m.

Motion: Plaintiffs’ motion to set aside dismissal, entered March 7, 2019

Tentative Ruling:

To deny, without prejudice.

Explanation:

The court may, on any terms as may be just, relieve a party or its legal

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

through its mistake, inadvertence, surprise, or excusable neglect. (Code Civ. Proc., §

473, subd. (b).)

“[W]henever an application for relief is made no more than six months after entry

of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit

attesting to his or her mistake, inadvertence, surprise or neglect, (the court shall) vacate

any … resulting default judgment or dismissal entered against his or her client …” (Code

Civ. Proc., § 473, subd. (b) [parentheses and emphasis added].)

Here, plaintiffs’ attorney, Griselda Torres, failed to submit a sworn affidavit which

complies with Code of Civil Procedure section 2015.5. Specifically, her declaration lacks

the required language stating that she “[certifies or declares] under penalty of perjury

that the foregoing is true and correct.” (Code Civ. Proc., § 2015.5.)

Accordingly, plaintiffs’ motion to set aside the dismissal entered March 7, 2019, is

denied without prejudice.

Pursuant to California Rules of Court, rule 391(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: JYH on 6/10/2019.

(Judge’s initials) (Date)

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(03)

Tentative Ruling

Re: Samrai v. Samrahi


Hearing Date: June 13, 2019 (Dept. 501) @ 3:00 p.m.

Motion: Plaintiffs’ Motion for Terminating Sanctions against

Defendant/Cross-Complainants Harjit Samrahi and/or

Evidentiary Sanctions, and/or to Re-Open Discovery, and/or

to Re-Open Discovery and for Discovery Sanctions

Tentative Ruling:

To deny plaintiffs’ motion for terminating sanctions against defendant/cross-

complainant Harjit Samrahi, and the alternative motion for evidentiary sanctions,

monetary sanctions, and/or to re-open discovery and continue trial, as well as the

alternative motion to disqualify defense counsel. To deny defendants’ request for

monetary sanctions against plaintiffs and their counsel.

Explanation:

First of all, this is not a normal motion for terminating, issue, evidentiary or

monetary sanctions based on the opposing party’s abuse of the discovery process

under the Discovery Act. There is no indication that the defendants have refused to

respond to discovery, appear for depositions, provide documents, or engaged in any

other failure to comply with the requirements of the Discovery Act. Thus, the usual rules

about motions for terminating, issue, or evidence sanctions do not apply here.

Instead, plaintiffs are alleging that defendants engaged in a scheme with

plaintiff’s ex-wife, Devinder Sahota, to steal documents, destroy evidence, spy on

attorney-client conferences, and give confidential information and documents to

defendant Harjit Samrahi in an effort to undermine plaintiffs’ case. In essence, plaintiffs

are alleging that defendants’ conduct was so egregious that it warrants striking their

answer and entering default judgment against them without any prior history of

misconduct.

The Courts of Appeal have upheld imposition of severe sanctions, including

terminating sanctions, where a party has been guilty of extreme and pervasive

misconduct, even if that party has not violated a court order regarding discovery. In

Stephen Slesinger, Inc. v. Walt Disney Co. (2007) 155 Cal.App.4th 736, the Court of

Appeal held that “when the plaintiff has engaged in misconduct during the course of

the litigation that is deliberate, that is egregious, and that renders any remedy short of

dismissal inadequate to preserve the fairness of the trial, the trial court has the inherent

power to dismiss the action. Such an exercise of inherent authority is essential for every

California court to remain ‘“a place where justice is judicially administered.”’” (Id. at

pp. 764–765, internal citations omitted.)

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Here, the conduct alleged by plaintiffs is certainly the kind of egregious

misconduct that might justify terminating sanctions, or other less severe sanctions.

However, it is unclear from the evidence presented which party is telling the truth here.

Plaintiffs rely primarily on the video statement of Devinder Sahota, which is not

supported by any other documents or physical evidence. While plaintiffs have now

offered to submit further testimony from Ms. Sahota, as well as her daughter and an

expert witness, most of the detailed facts regarding the alleged scheme are based on

the statements of Ms. Sahota herself. Not surprisingly, defendants vigorously deny that

they engaged in the alleged scheme to undermine plaintiffs’ case, steal documents, or

destroy evidence. It is not possible to assess the credibility of the witnesses based on

the declarations and transcripts presented at this time.

Therefore, the court intends to deny the motion for terminating, evidentiary, or

monetary sanctions, as it is impossible to determine whether defendants actually

engaged in the alleged scheme to undermine plaintiffs’ case. Nor will the court grant

the motion to disqualify defense counsel, as there is no way to be certain that counsel

has been given access to any privileged or confidential information.

On the other hand, the court also intends to deny the defendants’ request for

monetary sanctions against plaintiffs and their counsel, as there is no evidence that the

motion was brought in bad faith or purely for the purposes of delay or harassment.

Finally, while plaintiffs request a further trial continuance and to re-open

discovery in order to investigate the allegations of misconduct, the court intends to

deny the request. The trial has already been continued several times, and it does not

appear that another continuance is warranted to investigate the new allegations,

which are, at best, tangentially related to the central issues of the case. Therefore, the

court intends to deny the motion to continue the trial and re-open discovery.

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



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(5)

Tentative Ruling

Re: Jaclyn Olvera v. Polaris Industries, Inc. et al.

Superior Court Case No. 17CECG03825

Hearing Date: June 13, 2019 (Dept. 501 @ 3:00 pm)

Motion: By Western Power Sports, Inc. to contest the application

for determination of the good faith of settlement

between Plaintiff and Defendant Ernie Hernandez

Tentative Ruling:

The moving party has not met its burden of showing that the settlement is “so far

‘out of the ballpark’ in relation to these (Tech-Bilt) factors as to be inconsistent with the

equitable objectives of the statute.” (Tech-Bilt, Inc. v. Woodward-Clyde & Assocs. (1985)

38 Cal.3d 488, 499-500) The application will be granted and the settlement between

Mr. Hernandez and the Plaintiff will be determined to be in “good faith” pursuant to

CCP § 877.6(a)(2).

Explanation:

Background

On May 27, 2017, Plaintiff was driving a 2016 Polaris Crew XP Utility Task Vehicle

(aka UTV). She was wearing a helmet and using the seatbelt. She was driving the UTV

in a manner consistent with advertisements by its manufacturer when the vehicle

“came off” all four of its wheels and rolled over. Plaintiff suffered severe injuries to her

left arm resulting in amputation below the elbow and a “degloving” of her left leg.

The UTV was owned by Defendant/Cross-Defendant Ernie Hernandez. He

purchased the vehicle at Central California Implemental Company, Inc. dba Tulare

Polaris. The UTV was manufactured and designed by Defendants Polaris Industries, Inc.,

Polaris Sales, Inc. and Polaris Industries, Inc. It had been serviced and modified by

Tulare Polaris using parts manufactured and sold by Defendants Western Power Sports,

Inc., Extreme Products, Inc., XPATV and XPATV.com.

Plaintiff filed a Complaint on November 8, 2017 alleging causes of action for

negligence against all Defendants; strict products liability against Polaris and failure to

warn against Polaris. There are four Cross-Complaints. All Defendants and Cross-

Defendants have filed Answers except for Extreme Products, Inc., XPATV and

XPATV.com.

On April 11, 2019, Defendant Ernie Hernandez filed a notice of settlement with

the Plaintiff and application for determination that the settlement is in good faith

pursuant to CCP § 877.6(a)(2). It was properly served via certified mail upon each party

and a proposed order was submitted. On May 1, 2019, Western Power Sports, Inc. filed

a motion to contest. Opposition was filed along with a reply

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Merits

When a motion for determination of good faith settlement is contested, the party

seeking a good faith determination must provide the court with declarations or other

evidence demonstrating the facts necessary to evaluate the settlement in terms of the

Tech-Bilt factors. (City of Grand Terrace v. Superior Court (1987) 192 Cal.App.3d 1251,

1261.) The showing may be made in the initial notice and application or in

counterdeclarations filed after the nonsettling defendant has filed an opposition

challenging the good faith of the settlement. Id. At 1262. After an initial showing of the

Tech-Bilt factors by the moving party, the burden of proof then shifts to the nonsettling

defendant to demonstrate the settlement lacks good faith. (CCP § 877.6(d); Abbott

Ford, Inc. v. Superior Court (1987) 43 Cal.3d 858, 895.

The party seeking a good faith settlement determination has the burden of

explaining to the court and to all other parties the evidentiary basis for any allocations

and valuations made sufficient to demonstrate that a reasonable allocation has been

made. (L. C. Rudd & Son, Inc. v. Superior Court (1997) 52 Cal.App.4th 742, 750; Abbott

Ford, Inc. v. Superior Court (1987) 43 Cal.3d 858, 879) This rule applies even when the

payment is contingent and difficult to value. (Arbuthnot v. Relocation Realty Service

Corp. (1991) 227 Cal.App.3d 682, 689–690; see also Brehm Communities v. Superior

Court (2001) 88 Cal.App.4th 730, 736)

Expert declarations may be used to address valuation or allocation issues.

(Erreca’s v. Superior Court (1993) 19 Cal.App.4th 1475, 1497; United Services Auto. Ass'n

v. Superior Court (2001) 93 Cal.App.4th 633, 644) All declarations relied upon must show

facts and circumstances from which the ultimate fact sought to be proved may be

deduced by the court. Declarations setting forth only conclusions, opinions, or ultimate

facts are insufficient. Even an expert’s opinion cannot rise to the dignity of substantial

evidence if it is unsubstantiated by facts. (Greshko v. County of Los Angeles (1987) 194

Cal.App.3d 822, 834)

Here, Hernandez bears the initial burden of providing facts from which the Court

can apply the Tech-Bilt factors. See The City of Grand Terrace v. Superior Court, supra.

Whether the settlement was within the "good faith ballpark" is to be evaluated on the

basis of information available at the time of settlement, including:

1. A rough approximation of plaintiffs' total recovery and the settlor’s proportionate

liability;

2. The amount paid in settlement;

3. A recognition that a settlor should pay less in settlement than if found liable after

a trial;

4. The allocation of the settlement proceeds among plaintiffs;

5. The settlor's financial condition and insurance policy limits, if any, and;

6. Evidence of any collusion, fraud, or tortious conduct between the settlor and the

plaintiffs aimed at making the nonsettling parties pay more than their fair share.

See Tech-Bilt, Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 499-500.

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In the initial application, the Tech-Bilt factors are not discussed per se but the

Declarations of Ernie Hernandez and his attorney, Ms. Yates submitted in the opposition

to the motion to contest provide enough facts to meet his initial burden as the settling

Defendant. Mr. Hernandez indicates that he has offered his policy limits in settlement.

Id. At ¶ 22. The arguments offered by the objecting Defendant, Western Power Sports,

Inc. are based upon speculation; i.e., whether Hernandez ensured that the Plaintiff

could safely operate the Ranger, etc. See Memorandum of Points and Authorities in

Reply at page 2 lines 20-22. In fact, Hernandez states in his Declaration that the day

before the accident, the Plaintiff drove the Ranger for over 6 hours without incident.

See Declaration of Hernandez at ¶11.

As for the financial condition of Mr. Hernandez, it appears to be irrelevant to the

good faith determination. (L.C. Rudd & Son, Inc. v. Sup. Ct. (Krystal) (1997) 52

Cal.App.4th 742, 749-750.) Mr. Hernandez was not driving the UTV at the time that it

“rolled over.” As for his duties regarding the Plaintiff’s ability to drive, to reiterate, he

stated that she drove the day before the accident without incident. Therefore, the

Court declines to continue the hearing to enable the moving party to serve discovery.

As stated supra, the nonsettling tortfeasor has the burden of demonstrating that

the settlement is “so far ‘out of the ballpark’ in relation to these (Tech-Bilt) factors as to

be inconsistent with the equitable objectives of the statute.” (Tech-Bilt, Inc. v.

Woodward-Clyde & Assocs. (1985) 38 Cal.3d 488, 499-500) The moving party has not

met its burden. The application will be granted and the settlement between Mr.

Hernandez and the Plaintiff will be determined to be in “good faith” pursuant to CCP §

877.6(a)(2).

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

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

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

the clerk will constitute notice of the order.

Tentative Ruling



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(20) Tentative Ruling

Re: City of Fresno v. Padilla, Superior Court Case No.

19CECG01208

Hearing Date: June 13, 2019 (Dept. 502)

Motion: Petitioner City of Fresno’s Motion for Order to Abate

Substandard Building and Appoint a Receiver

Tentative Ruling:

To grant. (Health & Safety Code §§ 17980.6, 17980.7.)

Explanation:

The State Housing Law includes a comprehensive enforcement procedure for

abatement by demolition or correction of any violation of the building standards

published in the California Building Standards Code, the State Housing Law, and other

rules and regulations adopted pursuant to the State Housing Law. (Health & Saf. Code,

§§ 17980 to 17982.) When the violations or conditions of the property involve

noncompliance with the requirements of the State Housing Law, or with the

requirements of the published State Building Standards Code that implement the State

Housing Law, or with local ordinances and rules and regulations enacted pursuant to

either of them, and the violations are “so extensive that the health and safety of

residents or the public is substantially endangered,” the law includes more detailed

provisions for a receiver to be appointed to take over the collection of rents and

management and operation of the property, including the abatement or corrective

efforts, in the event the owner fails to do so after a reasonable period of time where the

property is identified as one that substantially endangers residents. (Health & Saf.

Code, §§ 17980.6, 17980.7.)

There is ample evidence that the property in question is maintained in a manner

that violates the State Housing Law and applicable building standards, rules,

regulations, as well as local ordinances, and that the violations are so extensive and are

of such a nature that the health and safety of residents or the public is substantially

endangered. (Health & Saf. Code, § 17860.6.) There is also admissible evidence

showing that the property owner has received notice of all violations and has taken no

steps to remedy any violation 47 specified violations. The Notice to Repair or Abate was

mailed to the owner, and was posted at the property. The City gave the owner ample

opportunity and a reasonable period of time to correct the violations, and she failed to

do so.

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The appointment of a receiver is necessary to take control of the property and

remedy the situation. The information supplied regarding the nominated receiver’s

credentials is sufficient.

The receiver should be granted the powers listed in Health & Safety Code section

17908.7, subdivision (c)(4), including the power to borrow funds to pay for necessary

repairs to correct the cited conditions. The receiver should be allowed to secure this

debt, along with the debt for moneys owed for the receiver’s services, by recording the

certificates he issues as a priority lien on the subject real property. Likewise, the City’s

reasonable and actual costs for inspection, investigation, enforcement, attorney fees

and costs, and all costs of prosecution, will be entitled to priority status. (Winslow v.

Harold G. Ferguson Corp. (1944) 25 Cal.2d 274, 285.)

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: DSB on 6-11-19 .


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Re: Ligotti v. Labiak



Motion: By Defendant Labiak to quash service of summons and complaint.

Tentative Ruling:

To deny the motion.

Explanation:

“When a defendant challenges the court's personal jurisdiction on the ground of

improper service of process the burden is on the plaintiff to prove … the facts requisite

to an effective service.” (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413.)

However, strict compliance with statutes is not required; the statutes are to be

liberally construed to effectuate service if actual notice is received by the defendant.

(Gibble v. Car-Lene Research, Inc. (1998) 67 Cal.App.4th 295, 313.)

Here, the initial proof of service, to which this motion is directed, was filed on

March 15, 2019. That proof of service stated that Defendant Labiak was personally

served at 11433 E. Herndon Ave., Clovis, CA on March 3, 2019 at 8:08 a.m.

A second proof of service was filed on May 21, 2019, in response to this motion.

The first page still indicates that Defendant was served personally, even though some of

the supporting documentation indicates that the service was by “Substituted Service.”

This second proof of service lists the papers as being served at11433 E. Herndon Ave.,

Clovis, CA on March 3, 2019 at 8:08 p.m.

The documents in support of the motion include a declaration by defendant,

Dawn Labiak, denying that she was served at that time, or, indeed, at any time on the

date in question. However, the declaration, which is the only evidentiary information

submitted with the motion, also states that had there been a visitor, the declarant’s

husband would have answered the door. No declaration is submitted by declarant’s

husband and no explanation is provided as to how the moving party learned of the

lawsuit in enough time so that 29 days after the process server says she was served, the

declarant filed a motion to quash service.

The opposition includes a declaration by the process server which details his

work attempting to serve defendant and explaining the discrepancy in the time of

service.

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The court discounts the declaration testimony of defendant, who has an interest

in the outcome of the lawsuit. The process server is a professional who has no interest in

the outcome of the lawsuit.

The court therefore finds that defendant had actual knowledge of the lawsuit.

Given the fact that strict compliance with the service statutes is not required and the

statutes are to be liberally construed if actual notice is received by defendant, the

court denies the motion.

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: DSB on 6-11-19 .


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(2)

Tentative Ruling

Re: In re Andrew Wysotski



In the event oral argument is timely requested, it will be

heard on June 14, 2019, at 8:30 a.m. in Dept. 503.

Motion: Motion to Seal

Tentative Ruling:

To deny claimant/plaintiff Andrew Arthur Wysotski’s motion to seal.

Explanation:

The motion was not timely filed or served pursuant to Code of Civil Procedure

section 1005(b). Andrew Arthur Wysotski has failed to properly comply with California

Rules of Court, rule 2.551(b) and (d) and has failed to make the showing required by

California Rules of Court, rule 2.550(d). A written motion or application is required,

accompanied by points and authorities and by declarations stating facts supporting

the findings required for a sealing order. (Cal. Rules of Court, rule 2.551(b); see H.B.

Fuller Co. v. Doe (2007)151 Cal.App.4th 879, 894.)

Moving party must present “specific enumeration of the facts sought to be

withheld and specific reasons for withholding them.” (Id.) Admissible evidence is

required to support a sealing motion; generally, declarations of counsel relating to

trade secrets or other overriding interest to justify sealing are inadmissible hearsay. The

evidence must support the sealing of all materials or facts in issue. Proper authority is

not cited in this motion and no proper evidence is presented to support the motion.

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: KAG on 6/7/19.


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(30)

Tentative Ruling

Re: Gregory Cody v. David Scott





Motion: Defendant’s demurrer

Tentative Ruling:

To order off calendar for failure to comply with Code of Civil Procedure section

430.41.

Explanation:

Before filing a demurrer, the demurring party must meet and confer in person or

by telephone with the party that filed the pleading which is subject to the demurrer for

the purpose of determining whether an agreement can be reached that would resolve

the objections to be raised in the demurrer. (Code Civ. Proc., §430.41, subd. (a).) As

part of the meet and confer process, the demurring party must identify all of the

specific causes of action that it believes are subject to demurrer and identify with legal

support the basis of the deficiencies. (Code Civ. Proc., § 430.41, subd. (a)(1).)

The party that filed the complaint, cross-complaint, or answer must provide legal

support for its position that the pleading is legally sufficient or, in the alternative, how the

pleading could be amended to cure any legal insufficiency. (Code Civ. Proc., §430.41,

subd. (a)(1).) Where the parties are unable to meet and confer as required, the

demurring party may obtain an automatic 30-day extension of the response deadline,

upon the filing of a declaration as set forth in Code of Civil Procedure section 430.41,

subdivision (a)(2). (See also Judicial Counsel form CIV-141.)

Here, defendant failed to meet the requirements set forth in Code of Civil

Procedure section 430.41. On February 25, 2019, defendant did attempt to contact

plaintiff’s counsel, but his efforts fall short of the statutory requirement. He left a single

voicemail on the office answering machine stating that he intended to file a demurrer,

without specifying why. He then waited only five hours for a response before filing his

moving papers. This is inadequate. Parties are required by statute to meet and confer

regarding a demurrer. In so doing, the demurring party must identify all of the specific

causes of action that it believes are subject to demurrer and identify with legal support

the basis of the deficiencies. The 30-day extension is available where, as here, the

parties were not able to successfully meet and confer.

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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



Tentative Ruling



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(5)

Tentative Ruling

Re: Adrian Porter, by and through his Guardian Ad Litem,

Erica Boland v. Stephen DeBenedetto and Julie DeBenedetto,

individually and as trustees of the Stephen W. and Julie E.

DeBenedetto Family Trust; Mountain Property Services;

Raymond Slocum and Matthew Marvin





Motion: Leave to File a Cross-Complaint

Tentative Ruling:

To deny the motion without prejudice.

Explanation:

Background

On July 1, 2017, Plaintiff, then 10 years of age, fell into a smoldering pile of debris

on the property of Defendants Stephen and Julie DeBenedetto. Plaintiff sustained

severe injuries. It is alleged that Defendants Mountain Property Services, Raymond

Slocum and Matthew Marvin had been hired by the couple to perform tree cutting

services on the property. These defendants allegedly allowed the debris to burn

unattended and without warnings.

Plaintiff, by and through his grandmother as guardian ad litem, filed a complaint

on January 12, 2018. A first amended complaint was filed on July 12, 2018. It alleges a

cause of action for premises liability via negligence and failure to warn. All Defendants

have filed answers.

On March 26, 2019, the DeBenedetto Defendants filed a motion seeking leave to

file a cross-complaint for indemnity against the other defendants. Trial is set for

February 10, 2020.

Merits

A defendant may file a cross-complaint against any person from whom he/she

seeks equitable indemnity. The defendant need only allege that the harm for which

he/she is being sued is attributable, at least in part, to the cross-defendant. (American

Motorcycle Ass'n v. Sup.Ct. (Viking Motorcycle Club) (1978) 20 Cal.3d 578, 607; Paragon

Real Estate Group of San Francisco, Inc. v. Hansen (2009) 178 Cal.App.4th 177, 182.)

Thus, “[c]ross complaints for comparative equitable indemnity would appear virtually

17

always transactionally related to the main action.” (Time for Living, Inc. v. Guy Hatfield

Homes/All American Develop. Co. (1991) 230 Cal.App.3d 30, 38.)

Code of Civil Procedure section 428.50 provides:

(a) A party shall file a cross-complaint against any of the parties who filed

the complaint or cross-complaint against him or her before or at the same

time as the answer to the complaint or cross-complaint.

(b) Any other cross-complaint may be filed at any time before the court

has set a date for trial.

(c) A party shall obtain leave of court to file any cross-complaint except

one filed within the time specified in subdivision (a) or (b). Leave may be

granted in the interest of justice at any time during the course of the

action.

In the instant motion, the moving Defendants seek leave to file a Cross-

Complaint alleging causes of action for indemnification, apportionment of fault, and

declaratory relief. (See Park Decl. at Ex. A.) Thus, it is transactionally related to the main

action. (See Time for Living, Inc., supra.)

Defendants Mountain Property Services, Raymond Slocum and Matthew Marvin

oppose the motion on the grounds that it is untimely given that the moving Defendants

filed an answer on July 27, 2018. They also submit that the motion was brought only

when the moving Defendants learned that the insurer for Mountain Property Services

had filed suit in federal court to determine if it owned a duty to indemnify. (See Ornelas

Decl. at ¶¶ 5-6.)

The opposition cites Crocker National Bank v. Emerald (1990) 221 Cal.App.3d

852. It holds, inter alia, that the court may deny leave where the moving party fails to

explain any delay in seeking permission to file a cross-complaint. (Id. at pp. 862-864.) In

the case at bench, the Declaration of Park is silent as to the reasons for the delay.

Therefore, the motion is denied without prejudice.

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

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



Tentative Ruling



18

(5)

Tentative Ruling

Re: Aguilar, Jr. v. Baggie Farms Express, Inc.





Motion: By Constitution State Services Seeking Leave to File a

Complaint-In-Intervention

Tentative Ruling:

To grant the motion pursuant to Labor Code section 3853. The complaint-in-

intervention is to be filed within five (5) days of notice of the ruling. Notice runs from the

date that the Minute Order is mailed plus five (5) days for service via mail. (Code Civ.

Proc., § 1013.)

Explanation:

Labor Code section 3853 provides:

If either the employee or the employer brings an action against such third

person, he shall forthwith give to the other a copy of the complaint by

personal service or certified mail. Proof of such service shall be filed in

such action. If the action is brought by either the employer or employee,

the other may, at any time before trial on the facts, join as party plaintiff or

shall consolidate his action, if brought independently.

Where an employer has paid workers' compensation benefits to an employee

injured on the job, it has the right to intervene in the employee's lawsuit against the

person causing such injury to recover these payments. A judgment rendered in the

employer’s absence might impair that interest. (Lab. Code, § 3853; Bailey v. Reliance

Ins. Co. (2000) 79 Cal.App.4th 449, 454.) Pursuant to Labor Code section 3850,

subdivision (b), the insurer has the same right to intervene as the employer. (Hodge v.

Kirkpatrick Develop., Inc. (2005) 130 Cal.App.4th 540, 556.) It has been held that the

statute permits a complaint-in-intervention to be filed even after the statute of

limitations has run on any independent action on the employer's or employee's claim.

(See Jordan v. Sup.Ct. (Associated Indem. Corp.) (1981) 116 Cal.App.3d 202, 207-208;

Home Ins. Co. v. Southern Calif. Rapid Transit Dist. (1987) 196 Cal.App.3d 522, 525-526—

action against governmental tortfeasor.)

In the instant case, on August 24, 2018, Constitution State Services, the workers’

compensation insurer for Plaintiff’s employer filed a notice of lien. On March 28, 2019, it

filed a motion seeking leave to intervene. The Declaration of Larres sets forth the

grounds for the motion. (Western Heritage Ins. Co. v. Sup. Ct. (Parks) (2011) 199

Cal.App.4th 1196, 1206.) A copy of the proposed complaint-in-intervention was

19

submitted. The requirements for intervention have been met. Therefore, the motion will

be granted.

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

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



20


Re: Placencia v. General Motors LLC





Motions: (1) Defendant General Motors LLC’s Demurrer to the Complaint

(2) Defendant General Motors LLC’s Motion to Strike Punitive

Damages from Complaint

Tentative Ruling:

To order both motions off calendar for failure of moving party to properly comply

with the meet and confer requirements of Code of Civil Procedure sections 430.41 and

435.5. The court grants defendant twenty (20) days within which to comply with the

statute. Defendant must meet and confer “in person or by telephone” with plaintiffs

regarding the issues raised by the demurrer and motion to strike, or attempt to do so

and provide sufficient evidence of the attempt and plaintiffs’ failure to meet and

confer in good faith. If the parties cannot agree on the purported deficiencies in the

complaint, defendants may file a new motion.

Explanation:

Defense counsel’s declaration, filed with the motions on March 18, 2019, does

not clearly state whether the parties met and conferred; counsel simply states that

despite the parties’ best efforts, they “were unable to come to an agreement that

resolved GM’s objections” as set forth in a letter, which was not attached to the

declaration. While this statement appears to imply both that a letter was sent and a

meeting took place, it fails to clearly state that in-person or telephone contact was

made. On the other hand, plaintiffs argue (i.e., not based on a supporting declaration)

that they have never received any letter, email, or phone call from defendant in an

effort to meet and confer.

Despite the lack of supporting declarations from plaintiffs, defendant’s

declaration is insufficient to show compliance with the statutory requirement for meet

and confer. The court will not hear these motions on their merits until defendant

provides a declaration which clearly states that meet and confer took place, or at least

that there was a good faith attempt at it.

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

will constitute notice of the order. Tentative Ruling



21


Re: Rose v. County of Fresno





Motions: Defendant’s Motion to Tax Costs of Plaintiff Melissa Rose

Defendant’s Motion to Tax Costs of Plaintiff David Bray

Tentative Ruling:

To grant the motion to tax plaintiff Melissa Rose’s costs, in part, and tax the sum

of $1,938.00 from plaintiff Rose’s Cost Memorandum of $30,128.75. To grant the motion

to tax plaintiff David Bray’s costs, in part, and tax the sum of tax $6,130.00 from plaintiff

Bray’s Cost Memorandum of $16,502.45. To deny the motions in all other respects.

Explanation:

Items of allowable costs are set forth in Code of Civil Procedure section 1033.5,

subdivision (a), and disallowed costs are set forth in subdivision (b). Items not expressly

mentioned in the statute “upon application may be allowed or denied in the court’s

discretion.” (Code Civ. Proc., § 1033.5, subd. (c)(4).) All allowable costs must be

reasonably necessary to the conduct of the litigation rather than merely convenient or

beneficial to its preparation, and they must be reasonable in amount and actually

incurred. (Code Civ. Proc., § 1033.5, subd. (c)(1), (2) and (3).)

On motion to tax costs, the initial burden depends on the nature of the costs that

are being challenged.

[T]he mere filing of a motion to tax costs may be a “proper objection” to

an item, the necessity of which appears doubtful, or which does not

appear to be proper on its face. However, if the items appear to be

proper charges, the verified memorandum is prima facie evidence that

the costs, expenses and services therein listed were necessarily incurred

by the defendant, and the burden of showing that an item is not is

properly chargeable is upon the objecting party.

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

In order to meet this burden, where the objections are based on factual matters,

the motion should be supported by a declaration. (County of Kern v. Ginn (1983) 146

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

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Motion to Tax Costs – Plaintiff Rose

Subpoenaed Records:

Defendant objects to the charges to subpoena records from the Fresno County

Fire District and plaintiff Rose’s mental health counselor, claiming the costs were not

necessary, as they were not introduced in evidence and no witnesses testified about

them. However, subpoenaed records need not be introduced at trial for their costs to

be recoverable. The standard for recovering costs of subpoenaed records is whether

they “were reasonably necessary to the conduct of the litigation” rather than “merely

convenient or beneficial to its preparation.” (Code Civ. Proc., § 1033.5, subd. (c)(1),

(2).) The “conduct of the litigation” includes pre-trial discovery, as well as trial.

It was reasonably necessary to obtain records of the first responders to the

accident scene. These records would, in turn, disclose the names of specific witnesses

who might be deposed. It was also reasonably necessary to obtain the dispatch tape,

as the 911 call and dispatch may reveal key facts about the accident, 911 calls and

dispatches are made close in time to the incident and relate details from incident

reporters. Obtaining statements of witnesses is a valid goal of discovery.

Likewise, it was reasonably necessary for plaintiff Rose to have obtained

subpoenaed copies of her own therapist’s records. Earlier in the case, plaintiff Rose

had a claim for extraordinary emotional distress damages. The defense subpoenaed

plaintiff Rose’s records. It is reasonably necessary to obtain a formal, authenticated

copy of the records obtained by the opposition instead of obtaining an unknown

quantity of unauthenticated records informally.

Accordingly, the court will not tax any of plaintiff Rose’s fees and costs to

subpoena records.

Process Server Fees:

Defendant argues that certain witnesses, who were nonetheless deposed, Belloli,

Hanson, Gularte, Pha, Dowell and Jones, were peripheral with minimal knowledge of

the facts and therefore were not necessary to the conduct of the litigation; thus, the

fees incurred in serving them with subpoenas are not recoverable. The court disagrees.

Defendant has not met its burden of showing that the costs were “merely beneficial” or

“unnecessary.” Defendant’s own description of the witnesses make it clear that it was

incumbent of plaintiffs to ascertain the scope of their knowledge. Pha, the lead rider,

was a witness with an unobstructed view of to the sand pile as the bicyclists came upon

it. Belloli was the first responder and could have easily witnessed a relevant statement

or scene. Hanson responded to the scene and spoke with plaintiff Bray. Gularte was

disclosed as the PMQ on bicycle safety tips; defendant contended that plaintiffs Rose

and Bray were not riding safely. Dowell was the station chief for Cal Fire when the

incident occurred. He responded to the incident and could have knowledge of other

similar incidents. Officer Jones of the California Highway Patrol was an investigating

officer for the incident.

The court will not tax any of plaintiff Rose’s process server fees.

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Various Deposition Fees:

The necessity of expenditures for depositions not used at trial is a question for the

trial judge. (Moss v. Underwriters’ Report (1938) 12 Cal.2d 266, 276.) The fact that a

party did not offer the depositions as evidence at trial does not necessarily indicate

that he or she could have safely proceeded to trial without them. (Id. at pp. 275-276.)

Defendant contests the reporter fees for the depositions of Ferriera, Hanson,

Belloli, Gularte, Cal Fire’s PMK, Ishii, Bookwalter, Rocha, Dowell and Pha. Defendant has

failed to show that the depositions of Belloli, Hanson, Gularte, Pha, Dowell and Jones

were unnecessary or “merely beneficial,” as set forth above. Ferriera was a paramedic

who responded to the accident and treated plaintiff Rose. Ishii was, at the time of the

incident, the County manager for road maintenance and operations, and testified as

to policies and procedures. Bookwalter was the County road maintenance supervisor

for area 11, including the incident site. His deposition excerpts were read to the jury.

Rocha was a road operations lead supervisor for Area 11, where the incident occurred.

He testified regarding the duties of journeyman road crew members to keep a lookout

for hazardous conditions when driving on the roads in area 11. Each witnesses

possessed relevant information.

Defendant also objects to the cost of the videotaping of plaintiff Bray’s

deposition as unnecessary. However, costs of videotaping depositions may be

awarded even though they were not used at trial. (Seever v. Copley Press, Inc. (2006)

141 Cal.App.4th 1550, 1557, 1560.) Plaintiff Bray was an important witness. Only he

observed plaintiff Rose’s fall. It was not unnecessary to videotape his deposition.

Defendant further challenges the deposition witness fees for Belloli, Hanson,

Gularte, and Officer Jones as unnecessary, as previously discussed, and supported by

the fact that they were not called to testify at trial. However, as set forth above, it was

necessary to take the depositions of these witnesses, and the witness fees for each

should not be taxed.

Finally, defendant challenges the expert witness fees for Toby Johnson, M.D.

($1,500.00) and Kris Haycock ($438.00). This objection is meritorious. Ordinary witness

fees do not include treating physician's expert witness fees incurred to take depositions.

(See Baker-Hoey v. Lockheed Martin Corp. (2003) 111 Cal.App.4th 592, 598-602.) The

sum of $1,938.00 will be taxed.

Trial Expenses:

Defendant objects to charges of $225.00 for exhibit preparation by Kamotion

Marketing, and $1,366.00 for equipment rental from P.E.S. Video. Plaintiff Rose’s counsel

explains that the Kamotion exhibits were blow-ups of the accident scene used at trial

by all parties. The PES Video charges are plaintiff Rose’s share of the costs incurred by

all plaintiffs for the use of the audio and visual equipment utilized by all parties to

display exhibits and demonstratives throughout the trial.

Allowable costs include “[m]odels and blowups of exhibits and photocopies of

exhibits” if they were “reasonably helpful to aid the trier of fact.” (Code of Civ. Proc., §

24

1033.5, subd. (a)(12).) Additionally, expenses for computerized forms of exhibits, such as

imaged documents and video and graphic exhibits, are recoverable. In American

Airlines, Inc. v. Sheppard, Mullin, Richter & Hampton (2002) 96 Cal.App.4th 1017, the

court rejected the defendants' argument that the trial court abused its discretion by

allowing $19,307.33 for imaging documents and deposition transcripts and for display

equipment rental. (Id. at p. 1057.) The court explained that “[w]hile admittedly ‘high-

tech,’ the methods defendants used to display documents to the jury were specifically

approved by the trial court, which found them to be highly effective, efficient, and

commensurate with the nature of the case.” (Ibid.) The court finds the P.E.S. Video

equipment and technicians to be effective, efficient, and commensurate with the cost

of the case.

Accordingly, the court will not tax any of plaintiff Rose’s trial expenses.

Motion to Tax Costs – Plaintiff Bray

Filing Fees:

Defendant objects to plaintiff Bray’s claiming a filing fee of $65.25 for an ex parte

application to continue trial which was ultimately denied. There is precedent for the

recovery of fees for an unsuccessful motion. “Litigation often involves a succession of

attacks upon an opponent's case; indeed, the final ground of resolution may only

become clear after a series of unsuccessful attacks. Compensation is ordinarily

warranted even for unsuccessful forays.” (City of Sacramento v. Drew (1989) 207

Cal.App.3d 1287, 1303 [permitting the recovery of attorney fees associated with a

withdrawn motion pursuant to Code of Civil Procedure section 1021.5].) “A litigant

should not be penalized for failure to find the winning line at the outset, unless the

unsuccessful forays address discrete unrelated claims, are pursued in bad faith, or are

pursued incompetently, i.e., are such that a reasonably competent lawyer would not

have pursued them.” (Ibid.)

Here, trial counsel for plaintiff Bray had a conflict between trial in the instant case

and trial in another matter. It was reasonably prudent to ask for a continuance when

the parties would not stipulate to one, even if the court ultimately declined to grant the

application.

Expert Fees:

Defendant takes exception to the claimed costs of $6,850.00 as a witness fee for

Randi Galli, M.D., plaintiff Bray’s treating hand surgeon. Again, ordinary witness fees do

not include treating physician's expert witness fees incurred to take depositions. (Baker-

Hoey v. Lockheed Martin Corp., supra, 111 Cal.App.4th at pp. 598-602.) In return,

plaintiff Bray agrees to reduce the costs claimed for Dr. Galli’s deposition to $720.00

representing $35.00 for an ordinary witness fee and $685.00 for defendant’s pro rata

share of Dr. Galli’s deposition fee of $6,850.00 based on defendant’s time questioning

the witness. Defendant accepts this compromise. Accordingly, $6,130.00 will be taxed.

25

Trial Equipment:

Defendant objects to the charge of $2,417.93.00 for trial equipment rental, and

questions why plaintiff Bray paid more than plaintiff Rose. The discrepancy is due to

P.E.S. re-editing Dr. Galli’s videotaped deposition “per court rulings” and for “separating

plt’f/defense” portions of the testimony to be played to the jury. (Fowler Decl., at ¶ 6,

Ex. C.) Both sides relied on Dr. Galli’s testimony at trial. Accordingly, as discussed

above, the P.E.S. charges were reasonably necessary to the presentation of trial and

helpful to the jury.

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



Tentative Ruling



Tentative Rulings for June 13, 2019 Departments 403, 501 ... · 6/13/2019 · Stephen Slesinger, Inc. v. Walt Disney Co. (2007) 155 Cal.App.4th 736, the Court of Appeal held that

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