Tentative Rulings for May 7, 2009...2020/06/26 · Western Union (1977) 71 Cal.App.3d 873, 879; CrossTalk Productions, Inc. v. Jacobson (1998) 65 Cal.App.4th 631, 635.) Here, the

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Tentative Rulings for June 26, 2020

Department 503

Due to the ongoing COVID-19 pandemic, parties are strongly encouraged to appear

by CourtCall for any law and motion matters for which oral argument is timely

requested.

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).)

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

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

________________________________________________________________

(Tentative Rulings begin at the next page)

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Tentative Rulings for Department 503 (AM)

(20) Tentative Ruling

Re: Thom v. USA Waste of California, Inc.

Superior Court Case No. 18CECG03190

Hearing Date: June 26, 2020 (Dept. 503)

Motion: Applications of John Ybarra and Matthew Ruza to Appear pro hac

vice

Tentative Ruling:

To grant. (Cal. Rules of Court, rule 9.40(a).)

Pursuant to Cal. Rules of Court, Rule 3.1312, 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: KAG on 3/27/2020.

(Judge’s initials) (Date)

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(03)

Tentative Ruling

Re: Vasquez v. The Neck and Back Center, et al.



Motion: Defendants’ Demurrer to Second Amended Complaint

Tentative Ruling:

To overrule defendants’ demurrer to the second amended complaint, in its

entirety. (Code Civ. Proc. § 430.10, subd. (e).) To order defendants to file and serve their

answer to the second amended complaint within 10 days of service of this order.

Explanation:

Defendants Arthur Hernandez and Hernandez Chiropractic Spinal

Decompression, Inc. demur to the entire complaint on the ground that it is barred by the

applicable statute of limitations, as they contend that plaintiff’s claims accrued on

September 26, 2016 when she was allegedly sexually assaulted by defendant Arthur

Hernandez, and she did not file her complaint until October 23, 2018, more than two

years after the assault. (See Code Civ. Proc. § 335.1 [establishing two-year statute of

limitations for actions for battery, assault, and personal injury claims].)

However, a general demurrer based on the running of the statute of limitations will

not lie unless the facts alleged on the face of the complaint show clearly and

affirmatively that the statute has run. It is not enough to show that the action might be,

but is not necessarily, barred. (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal.App.4th

1397, 1403; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter

Group 2008) ¶ 7:50, p. 7(I)-27.) If allegations within the complaint conflict as to the date

the statute accrued, the court should overrule the demurrer. (Roman v. County of Los

Angeles (2000) 85 Cal. App. 4th 316, 325.) “If the dates establishing the running of the

statute of limitations do not clearly appear in the complaint, there is no ground for

general demurrer. The proper remedy ‘is to ascertain the factual basis of the contention

through discovery and, if necessary, file a motion for summary judgment. . . .’ (Id. at pp.

324–325, internal citation omitted.) Nor is a demurrer the appropriate procedure for

determining the truth of disputed facts or what inferences should be drawn where

competing inferences are possible. (Ramsden v. Western Union (1977) 71 Cal.App.3d

873, 879; CrossTalk Productions, Inc. v. Jacobson (1998) 65 Cal.App.4th 631, 635.)

Here, the facts on the face of the second amended complaint do not clearly and

affirmatively show that the statute has run on plaintiff’s claims. Plaintiff alleges that “the

subject sexual battery incidents were ongoing on [sic] occurred on multiple dates

through approximately November 2016. Plaintiff first discovered she suffered

psychological damages as a result of the incidents in approximately February 2017 which

has proximately caused serious injury to Plaintiff after the Fresno County Police asked the

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Media in an [sic] around Fresno, CA to seek victims for Defendants [sic] conduct.” (SAC,

¶ 1.)

“Starting on an unknown date through approximately November 2016, Plaintiff

was a patient of Defendant, Arthur Hernandez, The Neck and Back Center, Hernandez

Chiropractic, Hernandez Chiropractic Spinal Decompression, Inc. and Does 1-50. As

plaintiff was being treated by Arthur Hernandez, at the medical facility owned and

operated by Defendants The Neck and Back Center, Hernandez Chiropractic,

Hernandez Chiropractic Spinal Decompression, Inc. and Does 1-50, Defendant Arthur

Hernandez inappropriately grabbed and groped plaintiff’s private areas. At no time

during the incident did plaintiff consent to the inappropriate touching.” (Id. at ¶ 11.)

Plaintiff also alleges that she started suffering significant psychological injuries and

damages in “approximately February 2017.” (Id. at ¶ 12.)

Later, she alleges that she was sexually assaulted by defendant on September 26,

2016. (Id. at ¶ 29.) “On or about, and, at least once on, September 26, 2016, Plaintiff was

sexually assaulted by Defendants, including, but not limited to, non-consented groping

of Plaintiff’s vaginal area, and, Defendants placed a penis on Plaintiff while she was

prone and vulnerable, without her consent. Afterwards, Plaintiff attempted to flee the

examination room; however, could not because she had been locked in by Defendants.

Only once the sexual assault was completed, was Plaintiff able to leave.” (Ibid.) In

addition, plaintiff alleges that, “Defendants plead Nolo Contendere to a Felony with

concurrent Misdemeanors as part of a plea deal on January 3, 2019, and Judgment was

entered on February 26, 2019.” (Id. at ¶ 31.)

Thus, the allegations of the second amended complaint are somewhat

ambiguous, and do not clearly and affirmatively show the date or dates on which the

sexual assault or assaults occurred and when plaintiff’s claims accrued. At one point,

plaintiff alleges that the assault occurred on September 26, 2019. However, at other

points, she alleges that there were multiple assaults on different dates through November

of 2016. She also alleges that she suffered injuries in February of 2017. Therefore, the court

will not sustain the demurrer based on the statute of limitations, as the court would have

to improperly resolve disputed issues of fact in order to find that the statute bars each of

plaintiff’s claims.

Nevertheless, defendants argue that the court should take judicial notice of

certain court documents in the related criminal action against defendant Arthur

Hernandez, which defendants contend show that the crime against plaintiff occurred on

September 26, 2016, and thus her civil claims are time-barred. However, while the court

may take judicial notice of court documents when ruling on a demurrer under Evidence

Code section 452, subdivision (d), the court may not take judicial notice of the truth of

the contents of those documents. (C.R. v. Tenet Healthcare Corp. (2009) 169 Cal.App.4th

1094, 1103-1104; Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th

97, 114.)

“As a general rule in testing a pleading against a demurrer the facts alleged in the

pleading are deemed to be true, however improbable they may be. The courts,

however, will not close their eyes to situations where a complaint contains allegations of

fact inconsistent with attached documents, or allegations contrary to facts which are

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judicially noticed. Thus, a pleading valid on its face may nevertheless be subject to

demurrer when matters judicially noticed by the court render the complaint meritless. In

this regard the court passing upon the question of the demurrer may look to affidavits

filed on behalf of plaintiff, and the plaintiff's answers to interrogatories, as well as to the

plaintiff's response to request for admissions.” (Del E. Webb Corp. v. Structural Materials

Co. (1981) 123 Cal.App.3d 593, 604, internal citations omitted.)

“The court will take judicial notice of records such as admissions, answers to

interrogatories, affidavits, and the like, when considering a demurrer, only where they

contain statements of the plaintiff or his agent which are inconsistent with the allegations

of the pleading before the court. The hearing on demurrer may not be turned into a

contested evidentiary hearing through the guise of having the court take judicial notice

of affidavits, declarations, depositions, and other such material which was filed on behalf

of the adverse party and which purports to contradict the allegations and contentions

of the plaintiff.” (Id. at pp. 604-605, internal citation omitted.)

Here, defendants seek to take judicial notice of not only the existence of certain

documents in the related criminal action, but also that the facts stated in those

documents are true and lead to certain conclusions. For example, defendants seek to

have the court not only judicially notice that a First Amended Information was filed

against defendant Arthur Hernandez, but also that Count 8 of the Information relates to

plaintiff’s claim. (Request for Judicial Notice, Exhibit B.) However, the victim’s name is

not listed in the First Amended Information, and she is only identified as “Jane Doe VI.”

(Id. at p. 4:14-20.) Thus, it is not clear from the First Amended Information that Count 8

relates to plaintiff, as opposed to another victim of defendant Arthur Hernandez.

Therefore, while the court will judicially notice the First Amended Information, it will not

notice that Count 8 relates to plaintiff’s claim.

Likewise, while the court will judicially notice that a transcript was lodged with the

criminal court from the preliminary hearing that contains testimony from a victim named

“Olivia,” it will not judicially notice the truth of the statements made by the victim during

the hearing. (Exhibit A to Request for Judicial Notice.) Doing so would improperly turn

the hearing on the demurrer into a hearing regarding contested issues of fact and render

it more akin to a summary judgment motion hearing than a demurrer.

The court also notes that the victim’s full name was not given during the hearing

or stated in the transcript, as she was the victim of a sexual assault, so it is not evident

from the face of the transcript that “Olivia” is the same person as plaintiff. Again, the

court may not resolve disputed issues of fact when ruling on a demurrer, so the court will

not judicially notice that the transcript contains plaintiff’s testimony, or that her testimony

establishes that her claims are barred by the statute of limitations.

Finally, while defendants argue that Code of Civil Procedure section 340.3’s tolling

provision does not apply here because defendant Arthur Hernandez was not convicted

of a felony with regard to plaintiff, the court will not judicially notice the purported fact

that he only pled to a misdemeanor with regard to plaintiff. Again, the First Amended

Information does not even identify plaintiff by her real name, so it is not obvious from the

face of that document that defendant Arthur Hernandez pled only to a misdemeanor

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with regard to plaintiff. As such, the court cannot determine at the demurrer stage that

plaintiff’s claims are time-barred.1

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


(Judge’s Initials) (Date)

1 Defendant Hernandez Chiropractic Spinal Decompression, Inc. also argues in the reply that the

court should dismiss the complaint as to it because section 340.3 would not apply to any claims

against the corporation, which was never criminally charged or convicted. However, this is an

argument that was not raised in the demurrer, and defendant will not be allowed to raise it at the

last minute on reply. In any event, as discussed above, it is not clear from the face of the

complaint that plaintiff’s claims are time-barred, so the court will not dismiss the claims against

either the corporation or the individual defendant.

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Re: Neupauer v. City of Fresno



Motion: Defendant City of Fresno’s Motion for Summary Judgment or, in the

Alternative, Summary Adjudication

Tentative Ruling:

To deny the motion in its entirety.

Explanation:

The ultimate burden of persuasion on summary judgment/adjudication rests on

the moving party. The initial burden of production is to show, by a preponderance of the

evidence, that it is more likely than not that there is no triable issue of material fact.

(Aguilar v. Atlantic Richfield (2001) 25 Cal.4th 826, 850.) In determining whether any

triable issues of material fact exist, the court must strictly construe the moving papers and

liberally construe the declarations of the party opposing summary judgment. Any doubts

as to whether a triable issue of material fact exist are to be resolved in favor of the party

opposing summary judgment. (Barber v. Marina Sailing, Inc. (1995) 36 Cal.App.4th 558,

562.)

Only if the moving party meets this initial burden does it shift to the opposing party,

who is then subject to its own burden of production to make a prima facie showing that

a triable issue of material fact exists. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th

at p. 850.) If the moving party fails to meet the burden of production, the opposing party

has no evidentiary burden to even oppose the motion. (Consumer Cause, Inc. v.

SmileCare (2001) 91 Cal.App.4th 454, 467.) The defendant establishes a right to summary

judgment by showing the plaintiff “lacks the evidence to sustain one or more elements

of the cause of action.” (Cole v. Town of Los Gatos (2012) 205 Cal.App.4th 749, 756.)

A public entity may be held directly liable for injuries caused by a “dangerous

condition” of public property, which is what plaintiff has alleged here. A dangerous

condition of public property is “a condition . . . that creates a substantial (as distinguished

from a minor, trivial or insignificant) risk of injury when such property or adjacent property

is used with due care in a manner in which it is reasonably foreseeable that it will be

used.” (Gov. Code, § 830, subd. (a); Childs v. County of Santa Barbara (2004) 115

Cal.App.4th 64, 69.) To prevail, the plaintiff must show that the entity had actual or

constructive notice of the dangerous condition in sufficient time before the incident to

have taken measures to protect against the risk of injury. (Gov. Code, § 835.2.)

Defendant presented five facts that it maintained were material and mandated

summary judgment (there were six facts on the separate statement, but the first fact

merely summarized the complaint). Fact 2 challenged defendant’s notice of the alleged

dangerous condition. Fact 3 challenged plaintiff’s ability to identify any dangerous

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condition. Facts 4-6 challenged plaintiff’s use of the property with due care in a

reasonably foreseeable manner.

Taking Fact 3 first, the core of defendant’s motion is that plaintiff will not be able

to prove a dangerous condition of public property caused her accident because she

herself is unable to identify where the accident occurred. However, to support this fact,

defendant cites to three short portions of plaintiff’s deposition testimony which fail to

meet defendant’s burden. The first citation (p. 40:9-12) shows only that plaintiff could not

identify the location on a map. A person might be able to walk or drive directly to a

particular location and still not be proficient at identifying that place on a map. The

second citation (p. 42:15-21) merely establishes that plaintiff did not know the name of

the road in the park where the accident occurred.

In the third short citation (p. 50:17-20), plaintiff was asked if she would be able to

“mark on this picture where you hit?” and plaintiff answers she was “not sure exactly

where I fell, but it was right here in this general area.” While this short quote gives no

context, the fact that defendant was asking plaintiff to mark a spot on a picture

reasonably implies plaintiff had identified a site where she claimed the accident

occurred. This is inconsistent with defendant’s assertion that plaintiff “is not sure where

the incident actually occurred in the park.” The additional pages of plaintiff’s testimony

which were included, but not cited, with defendant’s Exhibit B (pages 39-43 and 49-51)

clearly indicate that an actual accident site was being discussed, and that plaintiff

affirmed she could mark the area where the accident occurred. Just because there

were times when plaintiff was equivocal as to whether she could identify the exact spot

where she fell (i.e. the exact place on the crack in the road where her tire got stuck, or

where she landed when she fell off the scooter) does not mean she is “not sure where

the incident actually occurred.” Summary judgment should not be based solely on “tacit

admissions or fragmentary and equivocal concessions, which are contradicted by other

credible evidence. (Price v. Wells Fargo Bank (1989) 213 Cal.App.3d 465, 482.) Fact 3 is

not supported, and even if it were considered to be, the evidence supplied by plaintiff

(additional portions of plaintiff’s testimony) undermines Fact 3.

Fact 2, regarding notice, was not supported sufficiently because defendant dealt

only with actual notice and did not include facts or evidence regarding constructive

notice. A government entity’s prior notice of the dangerous condition may be either

actual or constructive. (Gov. Code, § 835, subd. (b).) The only way defendant

addressed constructive notice was by relying on Fact 3 and arguing that since plaintiff

herself cannot identify the accident location, she will be unable to establish that

defendant had constructive notice of it. (Opening brief, pp. 2:12-15, 5:10-14.) But since

Fact 3 has been found to be unsupported, defendant failed to establish it had no

constructive notice of the dangerous condition. While plaintiff’s opposition evidence

need not be considered where the moving party failed to meet its initial burden of

production, she presented several ways in which defendant could be charged with

constructive notice.

Facts 4, 5 and 6 deal with the two Fresno Municipal Code sections (“park rules”)

plaintiff violated, which defendant argues she did knowingly and willfully. Facts 4 and 5

address plaintiff’s violation of the park rules against consuming alcohol (Fact 4) and the

use of “coasters, roller skates and similar devices” (Fact 5). Fact 6 indicated that signs

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were posted at all park entrances regarding these rules, so plaintiff would be unable to

prove she did not know about these rules, making her violation of them knowing and

willful. Defendant argues that plaintiff’s illegal acts of drinking and riding a scooter in the

park established that she was not using the roadway with due care in a foreseeable

manner.

However, the evidence regarding alcohol use only establishes that plaintiff had

taken two drinks from a can of beer, amounting to probably two ounces, and this was

not rationally connected in any way with her use of the scooter, either in time (i.e., how

soon after drinking did she ride the scooter) or in her manner of using the scooter.

Therefore, her violation of the rule against consuming alcohol, without more, is immaterial

and thus need not be considered. (Cal. Rules of Court, rule 3.1350, subd. (a)(2).)

As for the violation of the rule against “coasters . . . and similar devices,” defendant

did not provide adequate authority for the proposition that disobeying a park rule

(municipal code) necessarily means plaintiff’s conduct was unforeseeable. The cases

relied on by plaintiff, Cappa v. Oscar C. Holmes, Inc. (1972) 25 Cal.App.3d 978 (“Cappa”)

and Davis v. Cordova Recreation & Park Dist. (1972) 24 Cal.App.3d 789 (“Davis”), tend to

support that a plaintiff using the property in a way unintended or “against the rules” does

not necessarily mean the plaintiff was an unforeseeable user. While defendant notes

several distinguishing factors of each case with the facts here, the point is that both cases

showed that use of the public property in a prohibited or unplanned manner does not,

ipso facto, mean the use was not foreseeable.

And even if the court were to find defendant had met its burden on this issue,

plaintiff has raised a triable issue of material fact as to whether she in fact (or whether a

park user would in fact) understand the rule prohibited riding scooters in the park. In

Jennifer C. v. Los Angeles Unified School Dist. (2008) 168 Cal.App.4th 1320, the school had

placed a bright yellow chain in front of a concrete stairway and warned the students it

was off limits during lunch. (Id. at p. 1325.) The plaintiff, a special needs student, went

into this area at the request of another student and was sexually assaulted. (Id. at p.

1324.) The court found that the plaintiff’s disobedience of the rules did not automatically

free the defendant from liability for the dangerous condition. A special needs child might

not be capable of appreciating the warnings the school had put in place. (Id. at p.

1335.) In other words, it is not just the creation and dissemination (here posting) of a rule

that must be considered when analyzing whether the property constitutes a dangerous

condition. The plaintiff’s (or more generally, the public’s) ability to understand the rule

must also be considered. Here, plaintiff has provided sufficient evidence to show that

the rule against “coasters, roller skates and similar devices” might not be understood as

a rule prohibiting the use of scooters, since the term “coasters” is not one commonly

employed. Also, plaintiff has shown a triable issue exists as to whether the manner of

posting made it difficult for plaintiff to even see the rule.

Further, defendant failed to provide any authority providing that breaking the rules

necessarily means that the crack in the road did not constitute a dangerous condition

on the reasoning that by breaking the rule plaintiff was not using due care. First, this

argument focuses solely on the plaintiff’s act of breaking a park rule, whereas cases

discussing lack of due care focus on the act which directly led to the injury, i.e., how she

operated the scooter. (See, e.g., Davis, supra at p. 796 [child using pond for swimming

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judged with lower standard of care applicable to children]; Milligan v. Golden Gate

Bridge Highway & Transportation Dist. (2004) 120 Cal.App.4th 1, 7 [plaintiff’s decedent

using bridge to commit suicide]; Mathews v. City of Cerritos (1992) 2 Cal.App.4th 1380,

1385 [child riding bicycle down very steep, wet, grassy hill].) Second, and more

importantly, a plaintiff’s negligence, or even willful disobedience, has no bearing on the

determination of the crack in the road constituting a dangerous condition in the first

instance. “The status of a condition as “dangerous” for purposes of the statutory

definition does not depend on whether the plaintiff or other persons were actually

exercising due care but on whether the condition of the property posed a substantial risk

of injury to persons who were exercising due care. (Cole v. Town of Los Gatos (2012) 205

Cal.App.4th 749, 768, emphasis in the original.) Defendant did not reach this issue.

Finally, defendant’s discussion in the reply brief regarding the crack in the

roadway constituting a trivial defect has been disregarded. Even though the evidence

tended to show that defendant knew what site plaintiff claimed was the accident

location, it chose to rest its motion on the theory that plaintiff was “not sure where the

incident actually occurred within Woodward Park,” and thus its moving papers submitted

no evidence or meaningful discussion about the accident site itself. The trivial defect

doctrine is an affirmative defense, requiring defendant to raise it in its moving papers

rather than simply piggybacking in reply off the evidence plaintiff submitted regarding

the accident site.

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



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Re: Ramirez v. Wildrose Chapel and Funeral Home, et al.



Motion: Defendant’s Motion to Strike Complaint

Tentative Ruling:

To grant the motion to strike the complaint with leave to amend. Plaintiff is

granted 30 days leave to file a first amended complaint. The time in which the complaint

can be amended will run from service by the clerk of the minute order.

Explanation:

The court takes judicial notice of the requested court records. (Evid. Code, §

452(d); see also Estate of Mitchell (1999) 76 Cal.App.4th 1378, 1384.) The judicially noticed

court records indicate that plaintiff’s nullity proceeding (Case No. 07CEFL07094) has not

proceeded to judgment. Furthermore, plaintiff’s assertions in Case No. 18CEFL01195 were

that she was married when she signed the marriage license with the decedent.

In sum, the judicially noticed court records are evidence that plaintiff was not

validly married to the decedent. (Fam. Code, § 2021.) Accordingly, plaintiff was not

entitled to priority in the handling of the decedent’s remains. (Health & Saf. Code, §

7100(a)(2); In re Cornitius’ Estate (1957) 154 Cal.App.2d 422, 442.) In light of the foregoing,

as well as the lack of an opposition, the motion to strike is granted. (Code Civ. Proc., §

436.)

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



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Re: Galvan et al. v. Specialized Loan Services, LLC



Motion: Demurrer to Complaint

Tentative Ruling:

To sustain the demurrer to the complaint, with plaintiffs granted 20 days’ leave

to file a first amended complaint. (Code Civ. Proc. § 430.41.) The time in which the

complaint may be amended will run from service of the order by the clerk. All new

allegations shall be in boldface type.

Prior to filing an amended complaint, the parties shall hold a telephonic or in-

person conference pursuant to Code of Civil Procedure section 430.41, subdivision (c).

With the amended complaint, plaintiffs shall file a declaration detailing their

compliance with this requirement.

Explanation:

The body of the complaint does not set forth or plead any distinct causes of

action. The only hint as to the legal theories advanced is the caption page of the

complaint, which references “EXTORTION: ILLEGAL FORECLOSURE ACTION, AND

FRAUD.” The court assumes these are the causes of action plaintiffs intend to allege.

The complaint as a whole is premised on the contention that there were no junior

liens recorded after the loan modification – a premise negated by records subject to

judicial notice and the attachments to the complaint.

A demurrer can be used only to challenge defects that appear on the face of

the pleading under attack; or from matters outside the pleading that are judicially

noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “Face of the complaint”

includes matters shown in exhibits attached to the complaint and incorporated by

reference, or in a superseded complaint in the same action. (Frantz v. Blackwell (1987)

189 Cal.App.3d 91, 94; Barnett v. Fireman's Fund Ins. Co. (2001) 90 Cal.App.4th 500, 505

[“we rely on and accept as true the contents of the exhibits and treat as surplusage the

pleader's allegations as to the legal effect of the exhibits”]; George v. Automobile Club

of Southern Cal. (2011) 201 Cal.App.4th 1112, 1130 [“trial court was not required to

credit plaintiff's allegations that extrinsic evidence ‘renders the insurance contract at

issue here ambiguous’” where language of policy attached to complaint showed

otherwise].)

As the moving papers point out, the court may take judicial notice of recorded

documents. (See Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007)

152 Cal.App.4th 1106, 1117; Sarale v. Pacific Gas & Electric Co. (2010) 189 Cal.App.4th

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225, 260–261.) The unopposed request for judicial notice of the recorded documents is

granted.

The recorded documents submitted by defendant show that the Second Position

Loan does exist. Plaintiffs allege that it was their understanding that the loan

modification “would be a senior mortgage, all other liens have to be paid in full, and/or

subordinated to this new senior mortgage.” However, plaintiffs do not articulate how or

why they came to this “understanding.” The complaint alleges that Exhibit A, the loan

modification agreement, is proof that there were no junior liens recorded after the loan

modification. However, the loan modification agreement says nothing of junior liens –

neither that they would be paid off, nor that the modified loan would have priority over

any other loan. Accordingly, the basic underlying premise of the complaint is shown to

be false. This alone warrants sustaining the demurrer to the complaint.

Extortion

Plaintiffs’ theory appears to be that defendant is “extorting” money from plaintiffs

by attempting to collect on a loan that does not exist. As discussed above, the cause

of action lacks merit because its factual basis is incorrect – the Second Position Loan

does exist, and the loan modification agreement did not extinguish it.

Moreover, as the moving papers note, “extortion” is more accurately a criminal

concept. However, in a civil context, extortion is “essentially a cause of action for

moneys obtained by duress, a form of fraud.” (See Fuhrman v. California Satellite

Systems (1986) 179 Cal.App.3d 408, 426.)

Adapting the “economic duress” instruction to the facts of this case, to

demonstrate “duress,” plaintiffs must allege: (1) that defendant used a “wrongful act or

wrongful threat” to pressure plaintiffs into tendering a payment on the Second Position

Loan; (2) that a reasonable person in plaintiffs’ position would have believed that he or

she had “no reasonable alternative;” and (3) that plaintiffs would not have paid money

on the Second Position Loan without the “wrongful act or wrongful threat.” (CACI No.

333; CrossTalk Productions, Inc. v. Jacobson (1998) 65 Cal.App.4th 631, 644.)

First, plaintiffs do not allege that they paid any money at all to defendant in

relation to the Second Position Loan. Second, there is no “wrongful conduct” because

the underlying premise for the complaint – that there existed no junior liens after the

loan modification – is false. Considering the attachments to the complaint and the

records subject to judicial notice, defendant does have an enforceable loan. Attempts

to collect on a debt owed is not a “wrongful act or wrongful threat.”

For these reasons the cause of action for “extortion” fails.

Illegal Foreclosure Action

The next theory that plaintiffs appear to allege is “illegal foreclosure action,” or

wrongful foreclosure. A wrongful foreclosure cause of action is an equitable action to

set aside a foreclosure sale, or an action for damages resulting from the sale, on the

14

basis that the foreclosure was improper. (Sciarratta v. U.S. Bank National Assn. (2016)

247 Cal.App.4th 552, 561–62.)

As a threshold matter, the cause of action fails because plaintiffs do not allege

that there has been a foreclosure sale. Plaintiffs only allege that defendant has

attempted to collect on a loan. The complaint alleges that allege that defendant sent

plaintiffs a Notice of Intent to Foreclose, attached as Exhibit C to the complaint.

However, no such document is found in Exhibit C. There is nothing to indicate that

defendant has even initiated foreclosure proceedings. Accordingly, this cause of

action is premature.

This cause of action is also deficient as the premise of this cause of action – that

the Second Position Loan is non-existent – is demonstrably false as it is contradicted by

judicially noticeable facts and the exhibits attached to the complaint.

The demurrer should be sustained as to this cause of action as well.

Fraud

Plaintiffs also appear to intend to allege a cause of action for fraud. Again, the

cause of action is premised on the non-existence of the Second Position Loan serviced

by defendant – an incorrect premise as noted above.

Moreover, plaintiffs fail to plead the elements of a cause of action for fraud: (1)

misrepresentation; (2) knowledge of falsity; (3) intent to induce reliance; (4) justifiable

reliance; and (5) resulting damage, with specificity. (Odorizzi v. Bloomfield School Dist.

(1966) 246 Cal.App.2d 123, 128.) Every element of a fraud claim must be alleged with

particularity, which requires the allegations to “‘show how, when, where, to whom, and

by what means the representations were tendered.’” (Stansfield v. Starkey (1990) 220

Cal.App.3d 59, 74.)

The complaint alleges no misrepresentations by defendant. Nor does it allege

“how, when, where, to whom, and by what means the representations were tendered.”

(Ibid.) Nor have plaintiffs pled “the names of the persons who made the allegedly

fraudulent representations, their authority to speak, to whom they spoke, what they said

or wrote, and when it was said or written.” (Tarmann v. State Farm Mut. Auto. Ins. Co.

(1991) 2 Cal.App.4th 153, 158.)

The fraud cause of action fails as well.

Meet and Confer and Conference of the Parties

Code of Civil Procedure section 430.41, subdivision (a), requires the demurring

party to meet and confer with the party who filed the subject pleading. Plaintiffs did

not respond to defense counsel’s attempts to meet and confer. The court expects

plaintiffs to cooperate and participate in the meet and confer process.

Under Code of Civil Procedure section 430.41, subdivision (c), the court can

order a conference of the parties before an amendment of the complaint may be

15

filed. Since plaintiffs would not participate in the pre-demurrer meet and confer, the

conference will be required prior to filing any amended pleading.

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



16


Re: In re Daniel Chavarria



Motion: By petitioner for approval of transfer of structured settlement

payments

Tentative Ruling:

To deny and dismiss the petition.

Explanation:

Notice was inadequate under Insurance Code section 10139.5(f)(2)(L), as the

required language in the notice to previous counsel is not shown, and no further filing

was made addressing this issue following the hearing on February 19, 2020.

Daniel Chavarria is 22 years old and has been attempting to sell his payments since

shortly after the settlement of his tort case over serious spinal injuries. Two judges of the

Kings County Superior Court denied his prior petitions. Those petitions and the denial

orders are not provided, although required by Insurance Code section 10139.5(c)(6), and

despite a lengthy continuance from the original February hearing date to permit

supplementation of the record. The communications provided show that they are not

complete, as required by Fresno Superior Court Local Rule 2.8.7, and no complete copy

of the annuity at issue is included, although such is available on demand from the insurer

pursuant to Insurance Code section 395.

Insurance Code sections 10137 and 10139.5(a)(1) require a proposed transfer of

structured settlement payments be fair, reasonable, and in the best interests of the person

selling them. The instant transaction fails to meet this standard. Mr. Chavarria states that

his monthly income, aside from the $1,300 structured settlement payment, is $2,000. He

proposes to sell all 21 years of $1,300 tax-free monthly payments, an additional $50,000

payment due in less than three years, and a payment of $60,659.65 due in 2027, at an

immediate loss of $65,000 of the current value. Mr. Chavarria plans to purchase a home

and save the $600 he spends on rent. Losing $1,300 a month to avoid paying $600 in rent

is not in Mr. Chavarria’s best interests, especially given that his budget shows almost half

of his $2,000 work income goes to vehicle expenses.

A mortgage would be a less expensive way to purchase a home and would leave

Mr. Chavarria with his $1,300 tax-free payment to cover his mortgage, taxes, insurance,

and maintenance costs, with money to spare. It would also create and build a valuable

asset in today’s world: a favorable credit report. A mortgage would further provide a

tax deduction.

17

Exhibit 1 to the supplemental declaration of Mr. Chavarria indicates that he lives

in Kings County, not Fresno County. His declaration also reveals that his mortgage

application was denied on the basis of inability to verify self-employment income, debt

level, and too few current accounts. (See Chavarria Supp. Decl., Exs. 1, 2.) None of those

debts or payments are reflected in the budget submitted.

Pursuant to Insurance Code section 10139.5(b)(15), should either Mr. Chavarria or

petitioner file a subsequent petition in this Court seeking approval for transfer of any of

Mr. Chavarria’s structured settlement payments, such a petition must include:

a) The entire court file for any prior petition by Mr. Chavarria in any other

California Superior court;

b) The entire annuity contract;

c) All communications required by Fresno Superior Court Local Rule 2.8.7,

without exception and with complete copies;

d) A declaration from an accountant consulted by Mr. Chavarria with a

copy of pre-transfer and proposed post-transfer budgets prepared; and

e) A bill or government communication addressed to Mr. Chavarria at his

current address.

Pursuant to 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



18

(03)

Tentative Ruling

Re: Bank of Stockton v. Garcia

Superior Court Case No. 12CECG03902 (lead case),

Consolidated with Case Nos. 13CECG00135, 15CECG01410, and

15CECG02784


Motion: Defendants John and Janie Garcia’s Motion to Quash

Subpoenas

Tentative Ruling:

To deny defendants’ motion to quash or modify the subpoenas for business

records served on Macy’s Credit and Customer Services, Bank of America Business Card

Services, Capital One Services, Cabela’s Club Visa, and Cabela’s, LLC. (Code Civ. Proc.

§§ 1985.3, 1987.1) To grant monetary sanctions against defendants in the amount of

$2,175 for bringing a motion to quash without substantial justification and without meeting

and conferring in good faith. (Code Civ. Proc. § 1987.2, subd. (a).) Defendants shall pay

monetary sanctions to plaintiffs within 30 days of the date of service of this order.

Explanation:

Defendants have not stated the statutory authority for their motion to quash the

subpoenas. However, it appears that they are moving under Code of Civil Procedure

sections 1985.3 and 1987.1.

Under section 1985.3, “[a]ny consumer whose personal records are sought by a

subpoena duces tecum and who is a party to the civil action in which this subpoena

duces tecum is served may, prior to the date for production, bring a motion under Section

1987.1 to quash or modify the subpoena duces tecum. Notice of the bringing of that

motion shall be given to the witness and deposition officer at least five days prior to

production.” (Code Civ. Proc., § 1985.3, subd. (g).)

“If a subpoena requires the attendance of a witness or the production of books,

documents, electronically stored information, or other things before a court, or at the trial

of an issue therein, or at the taking of a deposition, the court, upon motion reasonably

made by any person described in subdivision (b), or upon the court's own motion after

giving counsel notice and an opportunity to be heard, may make an order quashing the

subpoena entirely, modifying it, or directing compliance with it upon those terms or

conditions as the court shall declare, including protective orders. In addition, the court

may make any other order as may be appropriate to protect the person from

unreasonable or oppressive demands, including unreasonable violations of the right of

privacy of the person.” (Code Civ. Proc., § 1987.1, subd. (a).)

Also, under section 1987.2, “[e]xcept as specified in subdivision (c), in making an

order pursuant to motion made under subdivision (c) of Section 1987 or under Section

19

1987.1, the court may in its discretion award the amount of the reasonable expenses

incurred in making or opposing the motion, including reasonable attorney's fees, if the

court finds the motion was made or opposed in bad faith or without substantial

justification or that one or more of the requirements of the subpoena was oppressive.”

(Code Civ. Proc., § 1987.2, subd. (a).)

Here, defendants object to the subpoenas served on their bank and credit card

companies, contending that the subpoenas are overbroad as to time, since they seek

records after the sale and dissolution of the Vista Del Sol (VDS) entities, and also violate

their right of financial privacy. They ask that the court modify the subpoenas to only

require production of credit card records from January 1, 2008 to July 11, 2012. They also

ask that the subpoenas be limited to only seek records from Macy’s Visa, Macy’s

American Express, and Cabela’s Visa, as they contend that none of the other records

would be relevant to the issues of the litigation.

However, with regard to the relevancy objection, plaintiffs have alleged that

defendants breached their fiduciary duties toward plaintiffs by using VDS farms’ money

to pay defendants’ own personal credit card accounts. They also claim that defendants

have been engaging in a pattern of using VDS’s money, workforce, and assets for their

own personal gain. They have submitted bank statements from VDS which appear to

show that VDS’s money was used to pay defendants’ separate credit card accounts.

While defendants have claimed that they used their credit cards to pay VDS’s expenses,

and that VDS was simply reimbursing them for these expenses, they have not been able

or willing to identify which credit card accounts were paid with VDS funds, or to itemize

the expenses that were paid by VDS.

Therefore, it appears that the credit card records sought by plaintiffs are relevant

to the issues of the case, as plaintiffs are alleging that defendants diverted funds and

assets from VDS for their own benefit. Credit card records for the accounts used by

defendants might reflect whether VDS funds were being used to pay defendants’

personal expenses. Since defendants have not provided plaintiffs with sufficient

information to identify the accounts that were paid with VDS funds, plaintiffs are entitled

to subpoena the credit card accounts of each credit card issuing entity to determine

whether the accounts were paid with VDS’s money.

Defendants claim that only some of the credit card accounts were paid with VDS

money, and therefore plaintiffs are not entitled to obtain the records of the other

accounts. Yet they have not provided any evidence other than their own declarations

to support their assertion that VDS did not pay any of the charges for the other accounts.

In light of the allegations that defendants were misappropriating VDS’s money to pay

their personal expenses, plaintiffs should be able to subpoena the credit card records to

determine which accounts were paid by VDS, rather than having to take defendants’

word that VDS did not pay certain accounts.

Also, to the extent that defendants contend that the credit card information after

July 11, 2012 is not relevant to plaintiffs’ claims because VDS was foreclosed on in July of

2012, the court has already ruled that plaintiffs are entitled to discover information about

defendants’ financial dealings through June of 2015. (See November 21, 2019 order on

defendants’ prior motion to quash.) As the court found previously, plaintiffs lost their

20

economic interest in VDS because of the foreclosure in July of 2012, but they still had a

membership interest in VDS until 2015, when VDS was dissolved. As a result, plaintiffs have

a right to discover documents related to whether defendants diverted funds from VDS

from January of 2008 to June of 2015.

Moreover, while defendants contend that plaintiffs’ subpoenas violate their right

to keep their financial information private, financial records are generally discoverable

in cases where the plaintiff has alleged that the defendants diverted the assets of an

entity in which he had an ownership share. (See Rawnsley v. Superior Court (1986) 183

Cal.App.3d 86, 91.) “The only way petitioner can prove his case is to obtain defendants'

financial records. Where the only reason for seeking such financial information is to ‘give

a tactical edge to the party who has obtained discovery of the information by allowing

that party the benefit of pressure in settlement negotiations by threat or implication of

disclosure,’ the party against whom the discovery is sought should be afforded the full

benefit of Civil Code section 3295, including a protective order limiting access to such

information. Where, however, ‘the financial information goes to the heart of the cause

of action itself, a litigant should not be denied access so easily.’” (Ibid, internal citations

omitted.) Here, the only way that plaintiffs can prove that defendants diverted assets or

income from VDS to pay their personal credit card debt is by obtaining the financial

documents regarding their credit cards that may have been paid with VDS’s funds.

Also, the right to privacy can be outweighed where the propounding party has

shown that the requested information is directly relevant to the issues of the case and

there is no other, less intrusive means of obtaining the information. (Valley Bank of

Nevada v. Superior Court (1975) 15 Cal.3d 652, 655-656; Schnabel v. Superior Court (1993)

5 Cal.4th 704, 712.) Here, as discussed above, the requested documents are directly

relevant to the issues of the case, since they would tend to show whether or not

defendants improperly diverted funds from VDS to pay off their own personal credit card

charges, and thus caused the Bank to foreclose on plaintiffs’ economic interests in VDS,

as well as causing the eventual dissolution of VDS. Also, there does not appear to be any

other, less intrusive way of obtaining the information plaintiffs seek.

Therefore, the court finds that defendants’ right to keep their financial information

private does not outweigh plaintiffs’ interest in obtaining relevant documents regarding

defendants’ credit card accounts for the period of 2008 to 2015. As a result, the court

denies the motion to quash or modify the subpoenas for business records to defendants’

credit card companies.

Finally, the court grants plaintiffs’ request for sanctions against defendants for

bringing a motion to quash without substantial justification, and without meeting and

conferring in good faith. (Code Civ. Proc., § 1987.2, subd. (a).) It appears that defense

counsel brought the motion to quash even though there was evidence that defendants

had been using VDS funds to pay off their personal credit cards, and refused to provide

any information about the accounts that might have helped to limit the scope of the

subpoenas. Defendants have also relied on the same arguments that the court rejected

in its last order on the previous motion to quash. Therefore, it appears that the motion to

quash was brought without meeting and conferring in good faith and without substantial

justification, so sanctions are warranted.

21

However, the amount of sanctions requested by plaintiffs is excessive. Plaintiffs

seek $10,000 based on 24 hours of attorney time billed at $435 per hour. (Young decl., ¶

12.) This amount of attorney time is excessive to oppose a fairly simple motion to quash.

Instead, the court awards sanctions of $2,175 based on five hours of attorney time billed

at $435 per hour.

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


(Judge’s Initials) (Date)

22

(27)

Tentative Ruling

Re: Martinez v. Harper, et al.



Motion: Defendants Anita Harper and the Fresno County Public

Guardian’s motion for attorney fees

Tentative Ruling:

To grant in the amount of $2,052.

Explanation:

Declaration Based on Personal Knowledge

A declarant must have personal knowledge of the matter on which he or she

testifies. (Evid. Code, § 702; Osmond v. EWAP, Inc. (1984) 153 Cal.App.3d 842, 851; see

also People v. Cortez (2016) 63 Cal.4th 101, 124 [“direct proof of perception” is required

to establish personal knowledge.])

Lodestar Fees

“Any SLAPP [(strategic lawsuit against public participation)] defendant who brings

a successful motion to strike is entitled to mandatory attorney fees.” (Ketchum v. Moses

(2001) 24 Cal.4th 1122, 1131.) The “lodestar” method is used to compute an attorney fee

award under the anti-SLAPP statute. (Cabral v. Martins (2009) 177 Cal.App.4th 471, 491.)

Counsel’s time statements are the typical “starting point” for the attorney fees

determination. (Horsford v. Board of Trustees of California State University (2005) 132

Cal.App.4th 359, 396-397.) Further, “the verified time statements of the attorneys, as

officers of the court, are entitled to credence in the absence of a clear indication the

records are erroneous.” (Ibid.)

Although counsel’s time statements may be the typical starting point, the court

may nevertheless award attorney fees where only counsel declarations are submitted.

(Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1375 [“The law is clear,

however, that an award of attorney fees may be based on counsel's declarations,

without production of detailed time records.”].) In Raining Data Corp. v. Barrenechea,

supra, 175 Cal.App.4th 1363, the moving attorneys had submitted declarations,

“detailing their experience and expertise supporting their billing rates, and explain[ing]

the work provided . . . .” (Id. at p. 1375.)

Here, the motion seeks $6,116 for fees incurred by two attorneys. Only attorney

Michelle Pepper (“Pepper”) has submitted a declaration. Although her declaration does

23

not attach any time statements, the failure to attach a time statement does not preclude

an attorney fee award, provided the attorney declaration is sufficiently descriptive.

(Raining Data Corp. v. Barrenechea, supra, 175 Cal.App.4th 1363, at p. 1375.) Moreover,

Pepper’s declaration shows personal knowledge of the fees she accrued in litigating the

anti-SLAPP and attorney fees motions.

On the other hand, Pepper’s declaration does not establish direct proof of

perception of the fees incurred by attorney Joshua Milton (“Milton”). For example, there

is no evidence that Pepper reviewed Milton’s billing or time statements. Consequently,

Pepper’s declaration does not establish that she had personal knowledge of the fees

Milton incurred in litigation of the motions. Since there is insufficient evidence of the fees

incurred by Milton, the award is reduced to the amount specifically incurred by Pepper.

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



24

(27)

Tentative Ruling

Re: Plummer v. Assistance League of Fresno Thrift Boutique



Motion: Defendant’s motion for judgment on the pleadings

Tentative Ruling:

To continue the hearing to Friday, July 31, 2020, at 9:30 a.m., in Department 503.

Plaintiff shall file and serve a new opposition no later than Friday July 10, 2020.

Explanation:

For motions for judgment on the pleadings, “[t]he court can grant the motion for

judgment where the cause of action asserted is rebutted by matter established by

judicial notice.” (Kortmeyer v. California Ins. Guarantee Assn. (1992) 9 Cal.App.4th 1285,

1293.) Further, “[m]atters which are subject to mandatory judicial notice may be treated

as part of the complaint and may be considered without notice to the parties.”

(Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216 fn. 5.) However,

matters requiring permissive judicial notice “shall be specified in the notice of motion, or

in the supporting points and authorities, except as the court may otherwise permit.”

(Code Civ. Proc., § 438, subd. (d); Schabarum v. California Legislature, supra, 60

Cal.App.4th 1205 at p. 1216, fn. 5.) Court records fall within the category of documents

subject to permissive judicial notice. (Evid. Code, § 452, subd. (d); Tucker v. Pacific Bell

Mobile Services (2012) 208 Cal.App.4th 201, 219.)

Defendant made no request for judicial notice in its moving papers. Once this

error was pointed out in the opposition, defendant made a request for judicial notice

with its reply. The court has discretion to consider such additional evidence on reply “so

long as the [opposing] party . . . has notice and an opportunity to respond.” (Plenger v.

Alza Corp. (1992) 11 Cal.App.4th 349, 362, fn. 8.) Accordingly, the court will continue

defendant’s motion and grant plaintiff the ability to file an additional opposition

addressing the merits of the motion.





Tentative Ruling



25

(29)

Tentative Ruling

Re: In re: Mariah Rubalcava



Motion: Petition to compromise a minor’s claim

Tentative Ruling:

To deny without prejudice. Petitioner to file an amended petition addressing the

concerns set forth below.

Explanation:

At item 13a(1), Petitioner provides that the minor’s total medical expenses are

$3,248.74; however, the rest of item 13 has been left blank. Additionally, item 13(a)(2),

where the total outstanding medical expenses to be paid from the proceeds is to be

listed, has also been left blank, so the Court cannot determine what portion of the

minor’s settlement proceeds are intended to be used to pay any outstanding medical

expenses. At item 17, the calculations reflect a deduction only of attorney’s fees, no

medical expenses are included in the calculation. It is unclear to the Court whether this

is because no amount of the proceeds will be used to pay for the minor’s medical

expenses that are listed in item 13(a)(1), or whether the medical expenses were

inadvertently omitted from the calculations.





Tentative Ruling



26

(30)

Tentative Ruling

Re: Lynnette Bayne v. Nancy Fuller

Superior Court Case No. 17ECG02319


Motion: Defendants’ motion to compel plaintiff Lynnette Bayne to attend

an independent medical examination, and for related sanctions

Tentative Ruling:

To deny.

Explanation:

Fresno County Superior Court Local Rule 2.1.17 states, in relevant part:

Except for motions to compel the deposition of a duly noticed party or

subpoenaed person(s) who have not timely served an objection pursuant

to Code of Civil Procedure section 2025.410 or otherwise obtained the

consent of all interested parties agreeing to the non-appearance of the

party or person(s) at the deposition as noticed or subpoenaed, and

motions to compel initial responses to interrogatories, requests for

production and requests for admissions, no motion under sections

2016.010 through 2036.050, inclusive, of the California Code of Civil

Procedure shall be heard in a civil unlimited case unless the moving party

has first requested an informal Pretrial Discovery Conference with the

Court and such request for a Conference has either been denied and

permission to file the motion is expressly granted via court order or the

discovery dispute has not been resolved as a consequence of such a

conference and permission to file the motion is expressly granted after the

conference.

(Super. Ct. Fresno County, Local Rules, rule 2.1.17(A).)

Here, defendants bring the instant motion pursuant to Code of Civil Procedure

section 2032.020 et. seq., which is included within the provisions of Local Rule 2.1.17.

Thus, defendants must first comply with the pretrial discovery procedure before their

motion to compel an independent medical examination of plaintiff can be heard.




will constitute notice of the order. Tentative Ruling



27

Tentative Rulings for Department 503 (PM)

(29)

Tentative Ruling

Re: Lopez v. St. Agnes Medical Center, et al.



Motion: By Defendant Saint Agnes Medical Center for Summary Judgment

Tentative Ruling:

To grant the motion for summary judgment of Defendant Saint Agnes Medical

Center (“Defendant”). Defendant is directed to submit to this Court, within ten (10) court

days of service of the minute order, a proposed judgment consistent with this ruling.

Explanation:

Summary Judgment

A trial 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, subd. (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 the

defendant meets this initial burden, the burden shifts to the plaintiff to make a prima facie

showing of the existence of a triable issue of material fact by producing admissible

evidence. (Code Civ. Proc., § 437, subd. (c)(p)(2); Christina C. v. County of Orange

(2013) 220 Cal.App.4th 1371, 1379.) In reviewing a grant of summary judgment, an

appellate court accepts as undisputed facts those portions of the moving party's

evidence that are not contradicted by the opposing party's evidence. (A-H Plating, Inc.

v. American National Fire Ins. Co. (1997) 57 Cal.App.4th 427, 434; see Code Civ. Proc., §

437c, subd. (c).)

Individual Defendants

When a defendant in a medical malpractice action moves for summary judgment

and supports the motion with expert declarations that the defendant’s conduct fell within

the community standard of care, the defendant is entitled to summary judgment unless

the plaintiff comes forward with conflicting expert evidence. (Powell v. Kleinman (2007)

151 Cal.App.4th 112, 123; Hanson v. Grode (1999) 76 Cal.App.4th 601, 607; Munro v.

Regents of University of California (1989) 215 Cal.App.3d 977, 984-985; see Code Civ.

28

Proc., § 437c, subd. (c).) Summary judgment should not be granted where the

defendant provides an unopposed expert declaration which is conclusory, i.e., simply

states the opinion that no malpractice has occurred, and does not set forth the basis on

which the opinion is based. (Powell, supra, 151 Cal.App.4th at p. 123.)

In the present action, Defendant submits the declarations of Christopher White,

M.D., and Sheila Shea, R.N. Each declarant’s CV is attached to his/her declaration. Both

Dr. White and Nurse Shea are qualified to render expert opinions in this case.

Both Dr. White and Nurse Shea’s declarations set forth the bases of their opinions

and reflect a detailed review and analysis of the treatment received by Plaintiff at

Defendant’s facility. Dr. White and Nurse Shea conclude that Defendant met the

standard of care at all times in the treatment of Plaintiff. Dr. White further opines that no

act or omission on the part of Defendant’s nursing staff caused, contributed to, or was a

substantial factor in causing Plaintiff’s alleged injuries.

Corporate Defendant

A “[h]ospital, as an entity that is not a natural person, cannot practice medicine.

(Bus. & Prof.Code, §§ 2032, 2022; Lathrop v. HealthCare Partners Medical Group (2004)

114 Cal.App.4th 1412, 1420 . . . .) Its liability for medical malpractice . . . , therefore, must

be based upon a theory of vicarious liability.” (Ermoian v. Desert Hospital (2007) 152

Cal.App.4th 475, 501.)

“Under the doctrine of respondeat superior, the vicarious liability of an employer

or principal is not based on fault. The liability is imposed as a rule of policy, a deliberate

allocation of a risk, regardless of the employer's control or fault. The employer's liability is

wholly derived from the liability of the employee. The employer cannot be held

vicariously liable unless the employee is found responsible.” (Lathrop, supra, 114

Cal.App.4th at p. 1423, internal citations and quotation marks omitted; see also Freeman

v. Churchill (1947) 30 Cal.2d 453, 461 [“[A] judgment on the merits favorable to an

employee in an action by a third person for a tort of the employee is a bar to an action

by the third person against the employer where the latter's asserted liability for the tort

rests upon respondeat superior and not his independent tort.”].)

Here, Defendant submits evidence that the healthcare providers who attended

to Plaintiff were independent contractors, and not employees of Defendant. Defendant

submits the declaration of Walter Egerton, M.D., Defendant’s chief medical officer.

Dr. Egerton states that co-defendants Pitcher, M.D., Biltz, N.P., CEP America, and Vituity

Hospitalists were independent contractors and not acting as agents or employees of

Defendant during the applicable time period.

Defendant meets its burden of demonstrating that there is no triable issue of

material fact. Accordingly, the burden shifts to Plaintiff to make a prima facie showing

of the existence of a triable issue of material fact. Plaintiff has filed a notice of non-

29

opposition, and thus does not meet his burden. Defendant’s motion for summary

judgment is therefore granted.

Judicial notice is taken as requested by Defendant. (Evid. Code, § 452, subd. (d).)





Tentative Ruling



Tentative Rulings for May 7, 2009...2020/06/26 · Western Union (1977) 71 Cal.App.3d 873, 879; CrossTalk Productions, Inc. v. Jacobson (1998) 65 Cal.App.4th 631, 635.) Here, the

Documents