tentative rulings for august 31 ... - fresno superior court rulings for august 31, 2017 departments...

Tentative Rulings for August 31, 2017

Departments 402, 403, 501, 502, 503

There are no tentative rulings for the following cases. The hearing will go forward

on these matters. If a person is under a court order to appear, he/she must do so.

Otherwise, parties should appear unless they have notified the court that they will

submit the matter without an appearance. (See California Rules of Court, rule

3.1304(c).)

13CECG03829 Madrid v. Adventist Medical et al. (Dept. 503)

13CECG03807 McDonald v. Beck (Dept. 502)

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)

Tentative Rulings for Department 402 (6)

Tentative Ruling

Re: Estillore v. Trustee’s Assistance Corporation

Superior Court Case No.: 16CECG03525

Hearing Date: August 31, 2017 (Dept. 402)

Motions: (1) Demurrer by Defendants Quality Loan Service

Corporation, Ryan McKenzie, Kevin McCarthy, and

Daniel Goulding;

(2) Court’s motion to declare Plaintiff Gloria Estillore a

vexatious litigant and prohibiting her from filing any

new litigation in the courts of this state in propria

persona without first obtaining leave of the presiding

justice or presiding judge of the court

Tentative Ruling:

To sustain the demurrers, without leave to amend, with the prevailing

party to submit directly to this Court, within 7 days of service of the minute order,

a proposed judgment dismissing the action as to the demurring defendant. As

no opposition to the demurrer was filed for the original hearing date of July 26,

2017, no written opposition based on the new hearing date was permitted to be

filed or considered by the Court.

To declare Plaintiff Gloria Estillore a vexatious litigant and prohibiting her

from filing any new litigation in the courts of this state in propria persona without

first obtaining leave of the presiding justice or presiding judge of the court, based

on the rationale presented below.

The Court orders the clerk of the court to provide to the Judicial Council a

copy of this prefiling order as required by Code of Civil Procedure section 391.7,

subdivision (f).

Explanation:

Demurrer

The complaint in this action, filed on November 2, 2016, contains causes of

action for: (1) quiet title; (2) wrongful foreclosure; (3) violation of the Fair Debt

Collection Practices Act; and (4) injunctive relief, set aside trustee’s sale.

The entire complaint is barred by the statute of limitations (Code Civ.

Proc., §430.10, subd. (e).) When fraud is the basis of the claims, the applicable

statute of limitations is three years. (Code Civ. Proc., § 338, subd. (d).)

The allegations of the complaint are that on May 15, 2012, Plaintiff Gloria

Estillore received a notice of default recorded on May 4, 2012, in the Fresno

County Recorder’s office, based on a substitution of trustee from Defendant

Quality Loan Service Corporation on the basis of a fraudulently executed

substitution of trustee recorded on May 4, 2012. (Complaint, ¶ 3.2)

The allegations are further that Ms. Estillore investigated the fraudulent

documents, speaking to employees of Wells Fargo Bank in October of 2012 and

November of 2013. (Complaint, ¶¶ 3.5, 3.6.)

The complaint alleges that the recording of the substitution of trustee, the

notice of default, the notice of trustee’s sale, were all forged and fraudulent to

feign compliance with California’s foreclosure statutes. (Civ. Code, § 2924, et

seq.) (Complaint, ¶ 3.8.)

These allegations of the complaint, taken together, make it clear that Ms.

Estillore knew about the purported forged and fraudulent documents as far back

as October of 2012, more than three years before the instant complaint was filed

on November 2, 2016, and thus are barred by the statute of limitations. (Code

Civ. Proc., § 338, subd. (d).)

Further, the complaint is not verified, as it must be for a cause of action for

quiet title. The cause of action for quiet title further does not state the title of Ms.

Estillore as to which a determination is sought and the basis of her title. It does not

allege the adverse claims to Ms. Estillore’s purported title against which a

determination is sought. It does not include a prayer for determination of the title

of Ms. Estillore against the adverse claims. (Code Civ. Proc., §§ 430.10, subd. (e);

761.020.)

The cause of action for wrongful foreclosure further fails to state facts

sufficient to constitute a cause of action because it does not allege that Ms.

Estillore tendered the amount of the secured indebtedness or why she is excused

from tendering. (Code Civ. Proc., § 430.10, subd. (e); Daniels v. Select Portfolio

Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1184-1185.)

The cause of action for violation of the Fair Debt Collection Practices Act

further fails to state facts sufficient to state a cause of action because nothing is

alleged under the heading for that cause of action. Further, the complaint

alleges that Quality Loan Service Corporation was the trustee under the deed of

trust at ¶ 1.4, and a trustee is not considered a “debt collector” under the Fair

Debt Collection Practices Act. (Ho v. ReconTrust Company, NA (9th Cir. 2016)

858 F.3d 568, 573-574.)

The “cause of action” for injunctive relief and to set aside the trustee’s

sale fail to state facts sufficient to constitute a cause of action because they are

remedies, not causes of action. (6 Witkin, Calif. Procedure (5th ed. 2008)

Provisional Remedies, § 274.)

There are no charging allegations in the complaint against Defendants

Ryan McKenzie, Kevin McCarthy, and Daniel Goulding, whatsoever. If the only

allegations in a complaint against a particular defendant are generic agency

allegations, and where the defendant is not mentioned anywhere in the body of

the complaint, the complaint fails to state facts sufficient to state a cause of

action. (Falahati v. Kondo (2005) 127 Cal.App.4th 823, 829.)

Ms. Estillore has not filed opposition to the demurrer. The Court does not

believe a potentially effective amendment of the complaint is both apparent

and consistent with Ms. Estillore’s theory of the case. (Camsi IV v. Hunter

Technology Corp. (1991) 230 Cal.App.3d 1525, 1542.) The burden is on the

plaintiff to show in what manner he or she can amend the complaint, and how

that amendment will change the legal effect of the pleading. (Hendy v. Losse

(1991) 54 Cal.3d 723, 742.) Ms. Estillore has not met her burden to show how she

can amend the complaint. Leave to amend is denied.

Vexatious litigant

The Court declares Ms. Gloria Estillore a vexatious litigant on the basis that,

after a litigation has been finally determined against her, Ms. Estillore repeatedly

relitigates or attempts to relitigate, in propria persona, the cause of action, claim,

controversy, and the same issues of fact and law, determined or concluded by

the final determination against the same defendant or defendants as to whom

the litigation was finally determined, as set forth below. (Code Civ. Proc., § 391,

subd. (b)(2).)

Since the Court set this hearing by way of tentative ruling on July 26, 2017,

no opposition to the motion to declare her vexatious has been filed by Ms.

Estillore.

Since the Court set this hearing by way of tentative ruling on July 26, 2017,

Ms. Estillore filed, in state action number two, Case No. 16CECG03419, a motion

to correct clerical mistakes pursuant to Code of Civil Procedure section 473,

subdivision (d). That motion was denied by the Hon. Alan M. Simpson on August

22, 2017. Ms. Estillore filed this motion despite the fact that the court had

previously executed a judgment of dismissal in the case on April 6, 2017.

State action number one: Case No. 12CECG03752

On November 27, 2012, Plaintiff Gloria Estillore filed an action in this court

for declaratory relief, quiet title, wrongful foreclosure, and breach of fiduciary.

Named Defendants were Wells Fargo Bank, N.A., as Trustee on behalf of the

holder of the Harbor View Mortgage Loan Trust Mortgage Loan Pass-Through

Certificates, Series 2007-1, Select Portfolio Servicing, Inc., and Quality Loan

Service Corporation. The allegations of the complaint concerned property

allegedly owned by Ms. Estillore located at 2068 West San Bruno Avenue in

Fresno, CA 93711 (“the subject property”). The allegations of the complaint were

that on May 15, 2012, Plaintiff received a notice of default recorded on May 4,

2012, from Quality Loan Service Corporation, setting a foreclosure sale of the

subject property. The complaint alleged that the deed of trust dated December

12, 2006, under which the Defendants were going forward with the foreclosure

sale, was forged. (Complaint in action entitled Gloria Estillore v. Wells Fargo Bank,

Fresno Superior Court Case No. 12CECG03752, filed November 27, 2012.)

A first amended complaint filed on April 19, 2013, contained the same

causes of action. The first amended complaint added allegations that

employees of the Defendants forged various documents relating to title

including substitutions of trustee, a limited power of attorney, and other

foreclosure-related documents. By this point, the allegations included allegations

that there were in existence two or three alleged deeds of trust allegedly

executed by Ms. Estillore that all either had different signatures or no signature.

The first amended complaint also added allegations that Ms. Estillore had

telephoned the Defendants and been told by their employees named in the

complaint that certain other named employees were not actually employees of

the Defendants, and that a mail room clerk had signed one of the foreclosure-

related documents. (First amended complaint in action entitled Gloria Estillore v.

Wells Fargo Bank, Fresno Superior Court Case No. 12CECG03752, filed April 19,

2013.)

The court dismissed the action, without prejudice, at the trial readiness

hearing on February 27, 2015, and dismissed the cross complaint which had

been filed as well. (Trial readiness minutes dated February 27, 2015.)

On March 5, 2015, Ms. Estillore filed a notice of filing of bankruptcy. (March

5, 2015, notice of filing of bankruptcy.) There were a few bankruptcy status

hearing set afterwards, but the case was never reinstated from the February 27,

2015, dismissal at the trial readiness hearing.

Then, despite the action having been dismissed more than a year

previously, on May 23, 2016, Ms. Estillore filed an ex parte application for a

temporary restraining order, alleging she had never signed the 2006 deed of trust

under which Defendants sought to foreclose on the subject property. The ex

parte application was denied. (Ex parte application and accompanying papers

filed May 23, 2016, and law and motion minute order dated May 25, 2016.)

State action number two: Case No. 16CECG03419

On October 24, 2016, Ms. Estillore filed another action in this court for

wrongful foreclosure, injunctive relief, declaratory relief, misrepresentation and

concealment, mail fraud, quiet title, and cancellation of instrument. The named

Defendants were Select Portfolio Servicing, Tammy Larsen, Randall Wessman,

and Kristen Zilberstein, as the “purported” lawyer for Select Portfolio Servicing,

and Wells Fargo Bank, N.A., as Trustee on behalf of the holder of the Harbor View

Mortgage Loan Trust Mortgage Loan Pass-Through Certificates, Series 2007-1. The

allegations of the complaint concerned the subject property and similar

allegations of forged documents being used to base the pending foreclosure

sale upon. The complaint continued to allege that Ms. Estillore’s signatures on the

2006 deed of trust were forged. Added allegations were that the assignment of

the loan and deed of trust to the pooling trust were void because they were

made after the trust had closed. The relief sought was somewhat different in that

Ms. Estillore sought to cancel the allegedly-forged instruments. (Complaint in

action entitled Gloria Estillore v. Select Portfolio Servicing, Fresno Superior Court

Case No. 16CECG03419, filed October 24, 2016.)

In a “notice of related case” filed in the 16CECG03419 case, Defendants

Wells Fargo Bank, N.A., and Select Portfolio Servicing, listed related cases

including the 12CECG03752 case in this court discussed above, but also a

federal action in the U.S. District Court, Central Division, in Santa Ana, California,

Gloria Estillore v. Wells Fargo Bank, Case No. SACV 16-1563 JVS (KESx). (Notice of

related case filed in Gloria Estillore v. Select Portfolio Servicing, Fresno Superior

Court Case No. 16CECG03419 on November 14, 2016.)

A first amended complaint filed by Ms. Estillore on December 5, 2016, in

response to a demurrer, was stricken by the court on its own motion because it

was not filed within the nine court days before the hearing as required to be filed

pursuant to Code of Civil Procedure section 472. (Minute order dated December

13, 2016.)

The first amended complaint filed on December 5, 2016, contained

causes of action for violation of the Racketeer Influenced Corrupt Organizations

Act (18 U.S.C. § 1961 et seq.), wrongful foreclosure, and misrepresentation and

concealment. The first amended complaint added new Defendants: Tim

O’Brien, Matt Hollingsworth, McCarthy & Holtus, Matthew Learned, Javonne

Phillips, Julie Molteri, Nancy Lee, Wright Finley & Zak LLP, Olivier Labarre, Jonathan

Zak, Gwen Ribar, Michael Asatourian, Nichole Glowin, Timothy Sloan, and Wells

Fargo Bank and Company. Most of the new individuals sued were attorneys with

the named law firms; one was the CEO of the bank, one of Select Portfolio

Servicing, Inc., and one of Wells Fargo Bank and Company. The allegations of

the stricken first amended complaint continued to involve the foreclosure sale or

pending foreclosure sale at the subject property at 2068 W. San Bruno in Fresno,

CA 93711. The first amended complaint contained allegations concerning the

May 14, 2012 notice of default, and that it was fraudulently executed as well as a

substitution of trustee. The allegations continued to include that Ms. Estillore

never executed the December 12, 2006 deed of trust on the subject property.

The first amended complaint also contained allegations that Ms. Estillore had

telephoned the Defendants and been told by their employees named in the

complaint that certain other named employees were not actually employees of

the Defendants. By this time, Ms. Estillore was alleging in the first amended

complaint that the debt was discharged in her Chapter 7 bankruptcy filing. (First

amended complaint in action entitled Gloria Estillore v. Select Portfolio Servicing,

Inc., Fresno Superior Court Case No. 16CECG03419, filed December 5, 2016.)

Another amended complaint, this one verified, was filed on December 27,

2016, in response to a previous demurrer and motion to strike. This complaint

contained causes of action for wrongful foreclosure and quiet title. For the first

time, Ms. Estillore alleged she was “old enough for the wrongful nature of this

case to be Financial Elder Abuse,” but no separate cause of action for financial

elder abuse was alleged. The first amended complaint indicated that the

property had been sold at a private sale. The first amended complaint alleged

that Ms. Estillore had never received the notice of trustee’s sale dated July 7,

2016. This amended complaint continued to allege that the transfer to the REMIC

trust was void. This amended complaint continued to allege that the recorded

limited power of attorney, 2006 deed of trust, substitution of trustee, notice of

default, and notice of trustee’s sale, were void because they were all forged.

(Amended complaint in action entitled Gloria Estillore v. Select Portfolio

Servicing, Fresno Superior Court Case No. 16CECG03419, filed December 27,

2016.)

On March 15, 2017, the court sustained the Defendants’ demurrer to the

amended complaint, without leave to amend, on statute of limitations grounds.

(Minute order dated March 15, 2017, in Gloria Estillore v. Select Portfolio Servicing,

Fresno Superior Court Case No. 16CECG03419.)

The court executed a judgment of dismissal on April 6, 2017.

Despite this, Ms. Estillore filed a motion to correct clerical error, which was

denied on August 22, 2017. (Minute order dated August 22, 2017, in Gloria

Estillore v. Select Portfolio Servicing, Fresno Superior Court Case No.

16CECG03419.)

State action number three: Case No. 16CECG03525

The instant case of Gloria Estillore v. Trustee’s Assistance Corporation,

Fresno Superior Court Case No. 16CECG03525, was filed on November 2, 2016.

The causes of action in the unverified complaint included quiet title, wrongful

foreclosure, violation of fair debt collection act, and injunctive relief set aside

trustee sale. Named Defendants are Trustee’s Assistance Corporation, TD Service

Financial Corporation, Quality Loan Service Corporation, Dale Dykema, Renee

Patrick, Cindy Meglynn, Ryan McKenzie, Kevin McCarthy, and Daniel Goulding.

The allegations of the complaint also concern the subject property at 2068 West

San Bruno Avenue in Fresno, CA 93711. The allegations of the complaint are that

on May 15, 2012, Plaintiff received a notice of default recorded on May 4, 2012,

concerning a foreclosure sale of the subject property. The complaint alleges that

the substitution of trustee was fraudulently executed by a mail room clerk. The

complaint alleges that the deed of trust upon which the foreclosure sale was

based dated December 12, 2006, was forged and Ms. Estillore did not sign it.

Again, the complaint alleges that there are two or three alleged deeds of trust

allegedly executed by Ms. Estillore in existence, all with different signatures and

one unsigned. This complaint alleges that the subject property was sold at a

foreclosure sale on October 27, 2016. The complaint also includes allegations

that Ms. Estillore had telephoned the Defendants and been told by their

employees named in the complaint that certain other named employees were

not actually employees of the Defendants.

The federal action No. SACB 16-1563 JVS (KESx)

In connection with their demurrer discussed separately above,

Defendants Quality Loan Service Corporation, Ryan McKenzie, Kevin McCarthy,

and Daniel Goulding, ask this court to judicially notice, among other things, the

complaint filed in federal court in the Central District of California, referenced

above, Gloria Estillore v. Wells Fargo Bank, Case No. SACV 16-1563 JVS (KESx). The

federal complaint filed on or about August 29, 2016, contains causes of action

for fraud and concealment, negligent misrepresentation, unfair unlawful and

fraudulent business practices (Bus. & Prof. Code, § 17200 et seq.), declaratory

relief, cancellation of instruments, fair debt collection practices act, and

wrongful foreclosure. Named Defendants were Wells Fargo Bank, N.A., John

Stumpf, Wells Fargo Bank, N.A., as trustee on behalf of the holders of the

Harborview Mortgage Loan Trust Mortgage Loan Pass Through Certificates, Series

2007-1, Quality Loan Service Corp., and Daniel Goulding. The allegations of the

complaint concerned the subject property located at 2068 West San Bruno

Avenue in Fresno, CA 93711. The federal complaint alleged that Ms. Estillore

never signed the promissory note that was secured by the deed of trust, and that

Ms. Estillore never signed the deed of trust. The federal complaint alleged that

the notaries’ signatures were forged and/or altered as well. The federal

complaint also alleged that the notary never took “the oath” and was never

commissioned to notarize documents. The federal complaint alleged that the

notary journal did not contain a thumb print as required. The federal complaint

alleged that the assignment of the deed of trust, the substitutions of trustee, the

deed of trust, and the promissory note were all forged. The federal complaint

also alleged that all the documents recorded with the Fresno County Recorder

were fraudulent. (Request for judicial notice, exhibit H.) The docket of the federal

case indicates that the motion to dismiss was based on an allegation that he

federal complaint failed to state a claim upon which relief could be granted,

and that it was granted on December 12, 2016. The formal order issued on

December 20, 2016, and the case was dismissed with prejudice. (Request for

judicial notice, exhibit H.)

Also in connection with their demurrer discussed, Defendants Quality Loan

Service Corporation, Ryan McKenzie, Kevin McCarthy, and Daniel Goulding, ask

this court to judicially notice, among other things, the order granting dismissal of

the complaint filed in federal court in the Central District of California,

referenced above, Gloria Estillore v. Wells Fargo Bank, Case No. SACV 16-1563

JVS (KESx). (Request for judicial notice, exhibit J.)

The federal docket, which is judicially noticed, indicates that even after

the federal district court dismissed the case, Ms. Estillore on December 22, 2016,

objected to the district court’s decision to dismiss the case. The federal docket

also reveals that Ms. Estillore attempted to appeal from the district court’s refusal

to later grant a preliminary injunction in the dismissed action. (Request for judicial

notice, exhibit H.)

Conclusion

The Court concludes that each of these three state actions and the

federal action all concern the same claim, controversy, and the same issues of

fact and law: the subject property located at 2068 West San Bruno Avenue in

Fresno, CA 93711, and the alleged fraud in connection with documents upon

which the foreclosure were based. All the actions were filed and maintained by

Ms. Estillore in propria persona. (Code Civ. Proc., § 391, subd. (b)(2).)

Further, the litigations were directed against many of the same

defendants as to whom the litigations were finally determined, as set forth below.

(Code Civ. Proc., § 391.7, subd. (b)(2).)

Wells Fargo Bank, N.A., was sued in state action number one which

concluded on February 27, 2015, and subjected to further litigation in action

number one when Ms. Estillore filed an ex parte application for a temporary

restraining order more than a year later which was denied on May 25, 2016. Wells

Fargo Bank, N.A., was also sued in state action number two, which was filed on

October 24, 2016, and concluded on March 15, 2017.

Select Portfolio Servicing, Inc., was sued in state action number one which

concluded on February 27, 2016, and subjected to further litigation in action

number one when Ms. Estillore filed an ex parte application for a temporary

restraining order more than a year later which was denied on May 25, 2016.

Select Portfolio Servicing, Inc., was also sued in state action number two, which

was filed on October 24, 2016, and concluded on March 15, 2017.

Quality Loan Service Corporation was sued in state action number one

which concluded on February 27, 2015, and subjected to further litigation in

action number one when Ms. Estillore filed an ex parte application for a

temporary restraining order more than a year later which was denied on May 25,

2016. Quality Loan Service Corporation was sued in state action number three,

filed on November 2, 2016, which will conclude on August 31, 2017, pursuant to

the demurrer analysis, above. Quality Loan Service Corporation was sued in the

federal action which concluded on December 22, 2016. Quality Loan Service

Corporation was subjected to further litigation in the federal action when after

dismissal Ms. Estillore attempted again to obtain a temporary restraining order

and then to appeal from the denial of that request. Quality Loan Service

Corporation was subjected to further litigation when after dismissal, Ms. Estillore

brought an unmeritorious motion to correct a clerical error or errors, which

motion was denied on August 22, 2017.

Daniel Goulding was sued in state action number three which will

conclude on August 31, 2017, as well as the federal action concluded on

December 22, 2016. Daniel Goulding was subjected to further litigation in the

federal action when after dismissal Ms. Estillore attempted again to obtain a

temporary restraining order and then to appeal from the denial of that request.

Pursuant to the intended prefiling order, Ms. Gloria Estillore will be

prohibited from filing any new litigation in the courts of this state in propria

persona without first obtaining leave of the presiding justice or presiding judge of

the court where the litigation is proposed to be filed. Disobedience of this order

may be punished as a contempt of court. (Code Civ. Proc., § 391.7.)

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

Issued By: JYH on 08/30/17

(Judge’s initials) (Date)

(30)

Tentative Ruling

Re: Jesse Emmett v. Pholy Tuon

Superior Court No. 17CECG01566

Hearing Date: Thursday August 31, 2017 (Dept. 402)

Motion: Defendant Pholy Tuon’s Petition to file Cross-Complaint for

Civil Conspiracy

Tentative Ruling:

To Grant.

Explanation:

An attorney may be liable for conspiring with his or her client in connection with

a claim or dispute. However a court order is normally required before such a

complaint may be filed. (Civ. Code § 1714.10, subd. (a); Favila v. Katten Muchin

Rosenman LLP (2010) 188 Cal.App.4th 189, 206-212; Central Concrete Supply Co.,

Inc. v. Bursak (2010) 182 Cal.App.4th 1092, 1103.) Leave to plead the cause of

action will be granted if the court determines there is a “reasonable probability”

plaintiff “will prevail in the action.” (Civ. Code § 1714.10, subd. (a).) But this

requirement does not mandate that plaintiff prove that she would more likely

than not prevail on the claim. (Burtscher v. Burtscher (1994) 26 Cal.App.4th 720,

725.) Rather, plaintiff is only required to make a prima facie showing. (Ibid.) “In

making such prepleading determinations, a trial court is not weighing conflicting

evidence, determining credibility, or drawing inferences. It is performing a

‘gatekeeping’ function, filtering out frivolous allegations of conspiracy but

without subjecting them to the ‘fact adjudicative screen’ that would violate the

right to a jury trial.” (Burtscher, supra, 26 Cal.App.4th at 726; see also Rickley v.

Goodfriend (2013) 212 Cal.App.4th 1136, 1166.)

Under the agent's immunity rule however, an agent is not liable for conspiring

with the principal when the agent is acting in an official capacity on behalf of

the principal. (Pavicich v. Santucci (2000) 85 Cal.App.4th 382, 394.) So the only

viable claims for an attorney's civil conspiracy with a client then, are claims that

an attorney, conspiring to cause a client to violate a statutory duty peculiar to

the client, acted not only in the performance of a professional duty to serve the

client but also in furtherance of the attorney's financial gain or claims that the

attorney violated the attorney‘s own duty to the plaintiff. (Doctors’ Co. v.

SuperiorCourt (1989) 49 Cal.3d 39, 46 - 47; Panoutsopoulas v. Chambliss (2007)

157 Cal.App.4th 297, 304.) Ironically, both are exempted from the prepleading

determination requirement under Section 1714.10, subdivision (a). (Civ. Code §

1714.10, subd. (c).) But please note that engaging in self-help tactics imposes an

independent duty where none would otherwise exist and precludes application

of Section 1714.10 because “self-help is not the practice of law.” (Burtscher,

supra, 26 Cal.App.4th 720.)

Here, Attorney Webb opposes based upon agent’s immunity. (Opposition, filed:

8/15/17 p2 ¶A, pp3-4 ¶B.) It is not convincing. Agent’s immunity does not apply

because Attorney Webb engaged in self-help, which is “not the practice of

law.” (Burtscher, supra, 26 Cal.App.4th 720.) Instead of bringing an ex parte for a

temporary restraining order and seeking appointment of a receiver during the

pendency of this action, Attorney Webb unilaterally decided that the operative

deed was fraudulent. He then informed tenants that Petitioner was no longer

entitled to rents, and he furnished deeds he knew to be outdated in support of

his misrepresentations. The application of agent’s immunity and Section 1714.10

are therefore precluded.

Nonetheless, the elements of a civil conspiracy are (1) formation and operation

of the conspiracy, (2) damage resulting to plaintiff, and (3) from an act done in

furtherance of the common design. (I-CA Enterprises, Inc. v. Palram Americas,

Inc. (2015) 235 Cal.App.4th 257, fn.2; Prakashpalan v. Engstrom, Lipscomb and

Lack (2014) 223 Cal.App.4th 1105, 1136.) And here, Petitioner adequately

supports her civil conspiracy claim with the following allegations of direct

involvement by Attorney Webb: After unilaterally deciding that the operative

deed was a fraud, Attorney Webb accompanied Plaintiff Emmett and the police

to a partnership property and informed tenants that Petitioner was no longer

entitled to rents. (Webb Dec., filed: 8/15/17 ¶¶ 6, 10, Ex. B.) Attorney Webb then

sent tenants a follow-up letter which included a copy of the outdated deed and

reiterated misrepresentations made during the earlier encounter. (Id. at Ex. D.)





Tentative Ruling



(29)

Tentative Ruling

Re: M. Paul Humphreys v. Community Behavioral Health Center,

et al.

Case No. 17CECG01068


Motions: Defendant Fresno Community Hospital and Medical Center

dba Community Behavioral Health Center’s demurrer to first

cause of action; motion to strike

Tentative Ruling:

To sustain the demurrer to Plaintiff’s first cause of action, with leave to

amend. (Code Civ. Proc. §430.10(e).) To grant the motion to strike, with leave to

amend granted solely to allow Plaintiff to seek leave to file an amended

complaint that includes a request for punitive damages. (Code Civ. Proc.

§425.13(a).)

Explanation:

Demurrer - duplicative claims

Duplicative claims is a proper ground for sustaining a demurrer. (Palm

Springs Villas II Homeowners Association, Inc. v. Parth (2016) 248 Cal.App.4th 268,

290.)

“As to any given defendant, only one standard of care obtains under a

particular set of facts, even if the plaintiff attempts to articulate multiple or

alternate theories of liability.” (Flowers v. Torrance Memorial Hospital Medical

Center (1994) 8 Cal.4th 992, 998, italics added.) Thus, the alleged breach of a

duty cannot give rise to distinct causes of action for both ordinary negligence

and professional negligence. (Id.)

In the case at bench, Plaintiff’s fifth cause of action for medical

negligence is based on the same facts as Plaintiff’s first cause of action, for

general negligence. The same set of facts cannot give rise to two distinct causes

of action. Accordingly, Defendant Fresno Community Hospital’s demurrer to

Plaintiff’s first cause of action is sustained, with leave to amend.

Motion to strike - punitive damages

“In any action for damages arising out of the professional negligence of

a health care provider, no claim for punitive damages shall be included in a

complaint or other pleading unless the court enters an order allowing an

amended pleading that includes a claim for punitive damages to be filed.”

(CCP §425.13(a).) Accordingly, where the action for damages arises out of the

professional negligence of a health care provider, a pretrial hearing must be

held before a claim for punitive damages may be included. (Ibid.; Cooper v.

Superior Court (1997) 56 Cal.App.4th 744, 749.)

Here, Plaintiff’s fifth cause of action against Defendant Fresno Community

Hospital alleges medical negligence, specifically stating the claim arises from

health care services provided by Defendant. Accordingly, Plaintiff is subject to

the provisions of Code of Civil Procedure section 425.13, subdivision (a). Plaintiff

has not obtained an order from this Court permitting Plaintiff to include a request

for punitive damages in his first amended complaint. Plaintiff’s request for

punitive damages is therefore improper. Defendant’s motion to strike is granted.

Leave to amend is granted to allow Plaintiff to file a motion for leave to file an

amended complaint that includes a proper request for punitive damages

pursuant to Code of Civil Procedure section 425.13, subdivision (a), only.

Judicial notice is taken as requested by moving party.





Tentative Ruling



Tentative Rulings for Department 403

(5)

Tentative Ruling

Re: Hernandez v. Diaz

Superior Court Case No: 14 CECG 02272

consolidated with 14 CECG 02289


Petitions: (1) Approval of Compromise of Claim of Minor David

Hernandez;

(2) Approval of Compromise of Claim of Minor

Jocelyn Hernandez

Tentative Ruling:

To deny each Petition without prejudice.

Explanation:

Regarding the Petition of David Hernandez, there was no recent doctor’s

note submitted in support of the assertion that he is completely recovered. Item

11c was not filled in as to the terms of settlement. Item 16 lists the incorrect

amount that will be delivered to the minor. Finally, Item 21 requests that

VanWagenen be given permission to deposit the funds in the bank account of

the minor, if the Petitioner is unable to do so. But, the Court would have no

means of knowing if the Petitioner is unable to do so. If this request is important,

there should be a time limit; e.g., if the Petitioner is unable to deposit the funds

within 30 days after delivery….

As for the Petition for Jocelyn Hernandez, Items 7-8 regarding the nature

of her injuries and the treatment were not completed. There was also a failure to

attach a recent doctor’s note in support of the contention that she is completely

recovered. Her medical records listed a probable concussion. This is a

significant injury. Item 11c was not filled in as to the terms of settlement. Item

13b(3) was mistakenly checked off. It deals with Medicare payments. Item 16

states the incorrect amount that will be delivered to the minor. Finally, Item 21

requests that VanWagenen deposit the funds in the bank account of the minor,

if the Petitioner is unable to do so. But, again, how would the Court know? To

reiterate, if this request is important, there should be a time limit; e.g., if the

Petitioner is unable to deposit the funds within 30 days after delivery….As a result

of the foregoing, both Petitions will be 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 adopting this tentative ruling will serve as the order of the court and

service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: KCK on 08/30/17


(20) Tentative Ruling

Re: Church v. Huges et al., Superior Court Case No.

17CECG01341


Motion: Viking Insurance Company’s Motion to Quash Service

of Summons

Tentative Ruling:

To grant.

Explanation:

Plaintiff served the insurer for defendant. But the insurer is not named in

the complaint or the summons. Accordingly, it was improperly served. The

complaint must include the name of all parties. (Code Civ. Proc. § 422.40.) The

comment section of Code Civ. Proc. § 412.10 states that a new summons is

required if the summons does not list the defendant because the court has no

jurisdiction over a nonparty. An amended complaint must be served along with

the amended summon. (Gillette v. Burbank Community Hospital (1976) 56

Cal.App.3d 430.)

If plaintiff wants to bring Viking into this action as a party, she will have to

amend the complaint and summons and re-serve it.

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

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

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

constitute notice of the order.

Tentative Ruling

Issued By: KCK on 08/30/17


Tentative Rulings for Department 501 03

Tentative Ruling

Re: Martinez v. John

Case No. 16 CE CG 01433

Hearing Date: August 31st, 2017 (Dept. 501)

Motion: Defendant Dr. Thampi John’s Motion for Summary Judgment

Tentative Ruling:

To grant Dr. John’s motion for summary judgment. (Code Civ. Proc. §

437c.)

Explanation:

In actions for medical malpractice, the defendant may meet its burden

on summary judgment by presenting the declaration of a medical expert stating

that his or her care and treatment of the plaintiff did not fall below the standard

of care, and did not cause plaintiff’s injuries. (Powell v. Kleinman (2007) 151

Cal.App.4th 112, 123, internal citations omitted.)

Here, Dr. John has met her burden of production by presenting the

declaration of her expert, Dr. Wiener, who opines that Dr. John performed within

the standard of care at all times in her care and treatment of plaintiff. (Wiener

decl., ¶ 20.) In fact, Dr. Wiener has concluded based on his review of the

medical records that Dr. John did not place the foreign body in plaintiff’s body

that was the alleged cause of plaintiff’s injuries. (Id. at ¶ 20.) The radiologist who

reviewed plaintiff’s chest CT dated March 21st, 2015, two days before the March

23rd, 2015 procedure performed by Dr. John, noticed the presence of the

retained wire in plaintiff’s body. (Id. at ¶ 19.) In other words, the retained wire

was present in plaintiff’s body before Dr. John performed the procedure on

plaintiff, and thus Dr. John could not have placed it in plaintiff. (Ibid.) Thus, Dr.

Wiener has concluded that Dr. John’s care and treatment of plaintiff did not fall

below the standard of care, and that nothing she did or failed to do was a

substantial factor in causing plaintiff’s injuries. (Id. at ¶¶ 21, 22.)

Therefore, defendant has satisfied her burden of showing that she was not

negligent and did not cause plaintiff’s injuries. The burden then shifts to plaintiff

to present his own expert declaration showing both that defendant was

negligent in caring for and treating plaintiff, and that defendant’s negligence

caused plaintiff’s injuries. Here, plaintiff has not submitted any opposition or

evidence that would tend to raise a triable issue of material fact as to whether

defendant breached the standard of care with regard to her care and

treatment of plaintiff, or whether her actions or inactions caused plaintiff’s

injuries. As a result, plaintiff has not met her burden of showing the existence of

triable issues of material fact, and defendant is entitled to summary judgment as

to the entire complaint.

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

necessary. The minute order adopting this tentative ruling will serve as the order

of the court and service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: _______MWS_______ on _08/29/17

(Judge’s Initials) (Date)

(6)

Tentative Ruling

Re: The People of the State of California v. Tran



Motion: By Defendants Minh The Tran and Nuong H. Vu for

litigation expenses pursuant to Code of Civil

Procedure section 1250.410

Tentative Ruling:

To deny.

Explanation:

The lead case was consolidated for all purposes on June 11, 2015, with

case number 14CECG02079, and later again with Defendants’ Minh The Tran’s

and Nuong H. Vu’s (“Defendants”) inverse condemnation action for trial

purposes only.

The verdict and ensuing judgment was for total compensation in the

amount of $1,380,000 in favor of Defendants in the consolidated cases; the

inverse condemnation action netted zero to the Defendants. Defendant

Riverbend MHP, LLC, which did not appear at the trial, also was awarded

compensation concerning access rights to a well on the northwest side of two of

the parcels in the amount of $20,000.

In determining whether the property owner is entitled to litigation

expenses, the court must consider the final offer and demand, and these are the

only offers and demands to be considered in determining entitlement to

litigation expenses. (Code Civ. Proc., § 1250.410, subd. (a).) The court's duty in

determining whether to award litigation expenses, however, does not merely

involve a comparison of numbers between the final offer and demand. Rather,

the court must consider all of the evidence admitted with respect to that offer

and demand. The court's determination of the litigation expense issue is a

resolution of a question of fact and will not be disturbed on appeal if it is

supported by substantial evidence. (City of Commerce v. National Starch &

Chemical Corp. (1981) 118 Cal.App.3d 1, 19-20.)

Defendants appear to take issue with the fact that a single offer was

made to cover both parcels because the case started out as two cases.

However, normally when there is a complete consolidation, consolidation occurs

where the parties are identical and the causes of action could have been

joined. The pleadings are regarded as merged, one set of findings is made, and

one judgment is rendered. (Hamilton v. Asbestoc Corp., Ltd. (2000) 22 Cal.4th

1127, 1147-1148.) That is what occurred here. Had these two actions been filed

together from the beginning, there would have been nothing untoward at all

about Plaintiff making one offer for the whole take, even if the two properties

were totally different as here they were.

The Court finds the final offer of $1,156,000 as compared to the final jury

verdict of $1,380,000, with a ratio of 83.77%, was not unreasonable. The final offer

did not lack good faith, care, and accuracy.(Tracy Joint Unified School District v.

Pombo (2010) 189 Cal.App.4th 889, 896.)





Tentative Ruling

Issued By: _______MWS_______ on _08/29/17

(Judge’s Initials) (Date)

Tentative Rulings for Department 502

(20) Tentative Ruling

Re: Cardamon et al. v. The Dominion Courtyard Villas et

al., Superior Court Case No. 16CECG01918


Motion: Defendants’ Motion for Summary Judgment

Tentative Ruling:

To deny. (Code Civ. Proc. § 473c(c).)

Explanation:

Defendants operate and/or manage nine residential apartment

complexes around Fresno County. (UMF 1.) Defendants collect security deposits

from their tenants to be used to reimburse them for repairs to units caused by

tenants, or to clean the premises upon termination of the tenancy necessary to

return the unit to the same level of cleanliness it was at the inception of the

tenancy. (UMF 2.) Defendants add on a 40% “administrative fee” to all such

charges, which defendants contend is to reimburse defendants for out-of-

pocket costs such as purchasing supplies, scheduling vendors, coordinating and

performing the labor related to making repairs and/or cleaning units, as well as

general overhead expenses such as payroll taxes, workmen’s compensation

insurance, health insurance, supervision, administration, vacation time, sick time,

non-productive time, and breaks, and for use of tools, automotive expenses, golf

carts, etc. (UMF 4-6.)

In this class action plaintiffs maintain that the 40% administrative fee

violates Civil Code section 1950.50, which governs the use of security deposits.

Defendants move for summary judgment on the ground that “the undisputed

facts establish that Defendants’ practice of charging an administrative fee to

reimburse Defendants for reasonably necessary costs to repair damages to the

premises caused by the tenants (exclusive of ordinary wear and tear) and clean

the premises upon termination of the tenancy is lawful pursuant to California Civil

Code section 1950.5.” (Notice of Motion.)

Summary judgment is properly granted if there is no triable issue of fact

and the issues raised by the pleadings may be decided as a matter of law.

(Code Civ. Proc. § 4370(c); Mero v. Sadoff (1995) 31 Cal.App.4th 1466, 1478.)

Civil Code section 1950.5 provides in pertinent part:

(a) This section applies to security for a rental agreement for

residential property that is used as the dwelling of the tenant.

(b) As used in this section, “security” means any payment, fee,

deposit, or charge, including, but not limited to, any payment, fee,

deposit, or charge, except as provided in Section 1950.6, that is

imposed at the beginning of the tenancy to be used to reimburse

the landlord for costs associated with processing a new tenant or

that is imposed as an advance payment of rent, used or to be

used for any purpose, including, but not limited to, any of the

following:

***

(2) The repair of damages to the premises, exclusive of ordinary

wear and tear, caused by the tenant or by a guest or licensee of

the tenant.

(3) The cleaning of the premises upon termination of the tenancy

necessary to return the unit to the same level of cleanliness it was in

at the inception of the tenancy. The amendments to this

paragraph enacted by the act adding this sentence shall apply

only to tenancies for which the tenant's right to occupy begins

after January 1, 2003.

***

(e) The landlord may claim of the security only those amounts as

are reasonably necessary for the purposes specified in subdivision

(b). The landlord may not assert a claim against the tenant or the

security for damages to the premises or any defective conditions

that preexisted the tenancy, for ordinary wear and tear or the

effects thereof, whether the wear and tear preexisted the tenancy

or occurred during the tenancy, or for the cumulative effects of

ordinary wear and tear occurring during any one or more

tenancies.

(g)(1) No later than 21 calendar days after the tenant has vacated

the premises, but not earlier than the time that either the landlord

or the tenant provides a notice to terminate the tenancy under

Section 1946 or 1946. 1, Section 1161 of the Code of Civil

Procedure, or not earlier than 60 calendar days prior to the

expiration of a fixed-term lease, the landlord shall furnish the

tenant, by personal delivery or by first-class mail, postage prepaid,

a copy of an itemized statement indicating the basis for, and the

amount of, any security received and the disposition of the

security, and shall return any remaining portion of the security to

the tenant. After either the landlord or the tenant provides notice

to terminate the tenancy, the landlord and tenant may mutually

agree to have the landlord deposit any remaining portion of the

security deposit electronically to a bank account or other financial

institution designated by the tenant. After either the landlord or the

tenant provides notice to terminate the tenancy, the landlord and

the tenant may also agree to have the landlord provide a copy of

the itemized statement along with the copies required by

paragraph (2) to an email account provided by the tenant.

(2) Along with the itemized statement, the landlord shall also

include copies of documents showing charges incurred and

deducted by the landlord to repair or clean the premises, as

follows:

(A) If the landlord or landlord's employee did the work, the

itemized statement shall reasonably describe the work performed.

The itemized statement shall include the time spent and the

reasonable hourly rate charged.

(B) If the landlord or landlord's employee did not do the work, the

landlord shall provide the tenant a copy of the bill, invoice, or

receipt supplied by the person or entity performing the work. The

itemized statement shall provide the tenant with the name,

address, and telephone number of the person or entity, if the bill,

invoice, or receipt does not include that information.

(C) If a deduction is made for materials or supplies, the landlord

shall provide a copy of the bill, invoice, or receipt. If a particular

material or supply item is purchased by the landlord on an ongoing

basis, the landlord may document the cost of the item by providing

a copy of a bill, invoice, receipt, vendor price list, or other vendor

document that reasonably documents the cost of the item used in

the repair or cleaning of the unit.

(Emphasis added.)

The first issue is whether the administrative fee is permissible at all under

section 1950.5.

Defendants highlight some of the broad language of the statute.

Subdivision (e) provides that the landlord may only claim from a tenant’s security

“those amounts as are reasonably necessary for the purposes specified in

subdivision (b).” “Security” is defined to include “any … fee … or charge … to

be used for any purpose, … including … (2) The repair of damages to the

premises, exclusive of ordinary wear and tear, caused by the tenant or by a

guest or licensee of the tenant” and “(3) The cleaning of the premises upon

termination of the tenancy necessary to return the unit to the same level of

cleanliness it was in at the inception of the tenancy.”

Subdivision (e) sets forth limitations on claims against the security

(preexisting defective conditions and ordinary wear and tear). Defendants point

out that this does not prohibit charging an administrative fee against the deposit

when reasonably necessary to reimburse the landlord for costs associated with

the purposes specified in subdivision (b).

However, there is no indication that the Legislature contemplated

administrative fees such as that charged by defendants. The court cannot say

that the failure to explicitly prohibit a specific charge is the same as authorizing it.

Defendants contend that these administrative fees were contemplated

by the legislature in enacting section 1950.5. “The words of the statute must be

construed in context, keeping in mind the statutory purpose, and statutes or

statutory sections relating to the same subject must be harmonized, both

internally and with each other, to the extent possible. [Citations.]” (DynaiMed,

Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1386-1387.)

Defendants contend that because subdivision (b) includes the terms “payment,

fee, deposit or charge” to define security, the Legislature intended administrative

fees to be included in security. They quote Kraus v. Trinity Management Services,

Inc. (2000) 23 Cal.4th 116, 140: “Subdivision (b) defines the term [security] and,

while it provides that its examples of securities are not exclusive, it supports a

conclusion that a security fee paid by a tenant to a landlord is an amount

intended to offset expenses incurred by the landlord as a result of tenant

conduct during the tenancy.” (Emphasis added.)

However, that begs the question whether the Legislature intended to

allow only those fees and costs directly incurred in as a result of tenant conduct

during the tenancy, or more attenuated expenses such as those encompassed

in the administrative fee charged by defendants. Kraus could just as easily be

read as supporting plaintiffs’ position that the fee is unlawful, as the security

deposit is designed to offset expenses resulting from the “conduct” of tenants,

not general overhead expenses such as a golf cart, health insurance, workers

compensation insurance, automotive expenses, etc.

Defendants then discuss the legislative history of the statute, pointing to

statements by Senator Tom Torlakson, the author of amendments requiring

documentation of claims against security deposits. (Defendants’ RJN Exh. A.)

Senator Torlakson stated that section 1950.5 “authorizes a landlord to collect a

security deposit from a tenant upon the rent of residential property and allows

the security deposit to be used to reimburse landlords for their out-of-pocket

costs for items and repairs for the unit and to cover any defaults incurred in

connection with the tenancy.” Senator Torlakson explained that section 1950.5

“specifically allows rental property owners to charge tenants for their reasonable

and customary out-of-pocket expenses, which may include, but is not limited to,

the owner and/or employees‘ reasonable hourly rate to make repairs or clean

the unit (with the exception of reasonable wear and tear).” (Ibid.) Torlakson

adds that the intent of the mandate that landlords provide tenants with copies

of bills, vendor price lists and other documents for material purchased and labor

expended for rental units is “to provide tenants with documentation to

demonstrate that the total charges deducted from their security deposit by the

landlord does not exceed the reasonable out-of-pocket costs of the landlord for

those items and/or services.” (Ibid.)

However, Senator Torlakson’s comments seem to support plaintiff’s

position more than defendants’. The court does not believe that one would

ordinarily consider general overhead to constitute an out-of-pocket expense

associated with a repair or cleaning expense. As an example of what expenses

may be recouped, Senator Torlakson refers to the “reasonable hourly rate to

make repair or clean the unit …” That is an out-of-pocket expense, and one that

can be clearly identified in the itemized statement required by subdivision (g).

How might the various expenses comprising the 40% administrative fee (UMF 4-6)

be specifically itemized in the statement? That would seem to be very difficult, if

not impossible.

Plaintiffs point out that subdivision (b)(2) and (3) specifically authorize

charges for repairing and cleaning the premises. Under subdivision (g)(2)(A) if

the landlord or its employees did the work, the itemized statement must describe

the work performed and include the time spent and the reasonably hourly rate

charged. It does not authorize charging an administration fee. A fair reading of

the two subdivisions does support the conclusion that the landlord can only

charge for the actual “time” and “work” performed to repair or clean if an

outside vendor is not used. The statute specifically authorizes landlords to

deduct actual costs; it says nothing of general overhead.

Even if charging an administrative fee were permissible under the statute,

there remains the question of whether the fee charged by defendants is

reasonable, or “reasonably necessary.” (Civ. Code § 1950.5(e).)

Addressing this requirement, in the moving papers defendants simply rely

on UMF 4-7 in describing what the 40% fee is intended to compensate – out-of-

pocket cost such as purchasing supplies, scheduling vendors, coordinating and

performing the labor related to making repairs and/or cleaning a unit after the

tenant has vacated, payroll taxes, workmen’s compensation insurance, health

insurance, supervision, administration, vacation time, sick time, non-productive

time, and breaks to compensate Defendants’ employees who are spending

their working time engaged in making repairs and cleaning recently vacated

units. (UMF 4-5; Ellis Dec. ¶¶ 10-12.) Defendants assert that these costs are

reasonably necessary to reimburse defendant for expenses related to repair

damages and cleaning the premises. (MPA 10:14-16.)

But if defendants are charging an hourly rate for work performed by their

employees, then those categories of costs would presumably be covered in the

hourly rate charged. The moving papers include no information about how the

other costs are calculated, what they encompass, or what criteria is used for

determining what costs to claim against the deposits.

A 40% fee applied for work not performed by the landlord or its

employees may very well be excessive. Hundreds of dollars may be spent on

carpet cleaning, or thousands for carpet replacement, but little work done by

the landlord’s employee beyond placing a phone call and opening up the unit.

Charging a 40% fee on such expenses might be excessive.

And as for the figures presented claiming that the Dominion operates at a

loss when it comes to restoration of the units (UMF 8-13), the moving papers are

extremely vague in regards to where the figures come from or how they are

calculated. (See Ernst Dec.) Are the “loss” figures expenses that exceed the

security deposits? Is Dominion charging less than the full security deposit and

then adding on the 40% administrative fee?

How did defendants settle on 40%? Is that a number picked out of thin

air? What criteria was utilized to determine that this percentage would

adequately compensate defendant for repair and cleaning-related overhead?

There is no discussion or analysis pertaining to the costs that the administrative

fee is designed to compensate (UMF 4, 5), or what percentage of defendants’

total operating costs and overhead are attributable to restoration of rental units.

Based on the information presented, the court has no way of assessing the

reasonableness of that percentage. The information presented is simply too

vague and incomplete to determine that this 40% fee is reasonable.

The court finds that defendants have not met their threshold burden as

the moving party (Code Civ. Proc. § 437c(p)(2)), and therefore the motion must

be denied.

Finally, the court notes that plaintiffs oppose the motion in part on the

ground that defendants failed to provide an itemized statement for the fee as

required by subdivision (g)(2)(A). However, this theory is not alleged anywhere in

the First Amended Complaint (“FAC”). The FAC simply alleges that “[t]he 40%

administration fees deducted from the security deposits violates Civil Code

section 1950.5.” (See FAC ¶ 52.) There is no allegation regarding the statement

itemizing the fees. The pleadings serve as the “outer measure of materiality” in a

summary judgment motion, and the motion may not be granted or denied on

issues not raised by the pleadings. (Laabs v. City of Victorville (2008) 163

Cal.App.4th 1242, 1258.) Plaintiffs cannot create a triable issue by raising

disputes not encompassed in the pleading.

The court notes that defendant’s objection numbers 1, 3, 6 and 7 are

sustained, and the remainder are overruled. These evidentiary objections have

no bearing on the above analysis.

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: RTM on 08/29/17


(28)

Tentative Ruling

Re: Fishinghawk v. Schuk

Case No. 17CECG01457


Motion: By Defendants Orchard Park Leasing, LLC, Orchard Park

Management, LLC and Erik Schuk for a protective order

regarding Plaintiff Christina Fishinghawk’s Special

Interrogatories, Set One, Nos. 94 and 95.

Tentative Ruling:

To take the hearing off calendar.

Explanation:

According to the Notice of Motion, Defendants are moving for a

protective order pursuant to Code of Civil Procedure §§ 2017.020, et seq.,

2019.030, 2023.010, et seq., and 2030.090, et seq.

Fresno Superior Court Local Rule 2.1.17 sets forward a procedure parties

are required to utilize before bringing discovery motions. This procedure applies

to motions under Code of Civil Procedure sections 2016.010 through 2036.050.

This motion was not brought pursuant to this procedure and therefore will not be

considered by the Court. Therefore, the motion is taken off calendar to allow the

parties the opportunity to comply with Rule 2.1.17’s requirements.

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



Tentative Ruling

Issued By: RTM on 08/29/17


Tentative Rulings for Department 503 (6)

Tentative Ruling

Re: Saint Agnes Medical Center v. Santé Community

Physicians IPA Medical Corporation



Motions: (1&2) By Edward Pacer and David Scriven Young to

appear as counsel pro hac vice on behalf of Santé

Community Physicians IPA Medical Corp.;

(3) Motion to compel Defendant Santé Community

Physicians IPA Medical Corp.’s responses to Plaintiff’s

amended notice of Santé’s person most qualified

and requests for production of documents;

(4) Motion by Santé Community Physicians IPA

Medical Corp. to quash St. Agnes Medical Center’s

deposition subpoena for production of business

records to the custodian of records for Santé Health

System, Inc.;

(5) Motion by nonparty Fresno Community Hospital

and Medical Center to quash St. Agnes Medical

Center’s deposition subpoena for production of

business records to the custodian of records for

Community Medical Centers

Tentative Ruling:

The applications to appear as counsel pro hac vice are denied, without

prejudice. Any new hearing date on the applications must be obtained pursuant

to The Superior Court of Fresno County, Local Rules, rule 2.2.1.

To grant the motion to compel, with the further responses due within four

months after service of this minute order, unless the parties extend the time due

to technical issues with conversion of the ESI necessary to produce the

documents responsive to the requests.

To grant the motions to quash.

Explanation:

Applications to appear pro hac vice

California Rules of Court, rule 9.40 provides, in relevant part [emphasis

added]:

(c) Application

(1) Application in superior court

A person desiring to appear as counsel pro hac vice in a superior

court must file with the court a verified application together with

proof of service by mail in accordance with Code of Civil

Procedure section 1013a of a copy of the application and of the

notice of hearing of the application on all parties who have

appeared in the cause and on the State Bar of California at its San

Francisco office. The notice of hearing must be given at the time

prescribed in Code of Civil Procedure section 1005 unless the court

has prescribed a shorter period.

The proof of service filed here does not mention service on the California

State Bar by mail.

Attorney Eric Gruzen states in his declaration that he “caused” the State

Bar of California to be personally served at its San Francisco office. This is

hearsay. Mr. Gruzen’s declaration does not qualify as a proof of service. The

person actually making the service must fill out a proof of service, stating, among

other things, that they are over the age of 18 and not a party to the action;

these statements are not included. The person making the service must list their

residence or business address, this statement is not included. The person making

the service must list the business or residential address where the California State

Bar was served; this statement is not included. See, in general, Code of Civil

Procedure section 1011, and Judicial Council of California form POS-040.

Attorney Edward Pacer states that he was admitted to the “Bar of the

State of Chicago in 1988.” (Decl. Edward Pacer, ¶5.) There is no state of

Chicago.

Motion by St. Agnes to compel Santé to product documents in response to

Plaintiff’s amended notice of Santé’s person most qualified and requests for

production of documents

Code of Civil Procedure section 2025.480 provides, in relevant part:

(d) In a motion under subdivision (a) relating to the production of

electronically stored information, the deponent objecting to or

opposing the production, inspection, copying, testing, or sampling

of electronically stored information on the basis that the information

is from a source that is not reasonably accessible because of the

undue burden or expense shall bear the burden of demonstrating

that the information is from a source that is not reasonably

accessible because of undue burden or expense.

…

(f) If the court finds good cause for the production of electronically

stored information from a source that is not reasonably accessible,

the court may set conditions for the discovery of the electronically

stored information, including allocation of the expense of discovery.

Preliminarily, the Court notes that Toshiba America Electronic

Components, Inc. v. Superior Court case involved the interpretation of Code of

Civil Procedure section 2031, subdivision (g)(1), now superseded by section

2031.280, which at the time of the decision did not include a provision for ESI.

Section 2025.480 provides the parameters for the Court to consider to rule on

today’s motion to compel. (Toshiba America Electronic Components, Inc. v.

Superior (2004) 124 Cal.App.4th 762, 767.)

The Court also notes that while it denied a prior motion to compel

document requests as untimely, it is well-settled that this does not preclude

asking for the same information through a deposition notice or deposition

subpoena. (Carter v. Superior Court (1990) 218 Cal.App.3d 994, 997.)

While the Court notes that there is some burden to translate the ESI into a

searchable format, Santé has not met its burden on the motion to show that the

information is from a source not reasonably accessible because of the undue

burden or expense so great that the motion should not be granted. (Code Civ.

Proc., §2025.480, subd. (d).) It is only if the responding party meets its burden

under (d), and if the propounding party makes a showing under (e), that the

Court may require the propounding party to pay the responding party’s

expenses of making the discovery. (Code Civ. Proc., § 2025.480, subd. (f).)

Motions to quash by Santé Community Physicians IPA Medical Corp. and non-

party Fresno Community Hospital and Medical Center

The Court grants the motions to quash for the same reasons as those

articulated in its December 1, 2016, order on a motion to quash a similar

subpoena directed, and incorporates that order here, with the following

distinctions and comments:

Although the instant subpoenas are not directed at a law firm bound by a

protective order preventing it from producing the documents and requiring the

law firm to destroy them, the documents are still protected by the Moffett action

protective order. St. Agnes has not shown a compelling interest sufficient to

overcome that expectation of privacy in the documents.

As noted in the opposition, St. Agnes deposed Santé’s person most

qualified, Scott Wells, who also served as CEO of Santé Health, regarding the use

of grant funds to establish a medical practice or clinic for the purpose of

recruiting physicians to Santé, testifying that Santé generally did not have plans

to recruit specific physicians or physician groups to Santé and that it had no plan

or strategy to use the payment of grant funds for recruitment. St. Agnes didn’t

ask Scott Wells any specific questions about Dr. Moffett or any grant associated

with Dr. Moffett even though Mr. Wells testified he had been deposed in the

Moffett matter. Such deposition questions would have been a non-privileged

source from which St. Agnes could have obtained such information.





Tentative Ruling

Issued By: A.M. Simpson on 08/29/17


03

Tentative Ruling

Re: Torba v. Fidelity National Title Company

Case No. 13 CE CG 03059

Hearing Date: August 31st, 2017 (Dept. 503)

Motion: Defendant Fidelity National Title Company’s Motion for

Summary Judgment, or in the Alternative, Summary

Adjudication

Tentative Ruling:

To grant defendant Fidelity’s motion for summary judgment as to all

causes of action alleged against it. (Code Civ. Proc. § 437c. )

Explanation:

Fourth Cause of Action for Negligence: The essential elements of a

negligence claim are: (1) a legal duty to use due care; (2) a breach of that duty;

and (3) the breach as the legal cause of the resulting injury. (6 Witkin, Summary

of Cal. Law, Torts, § 835, p. 52‘) The existence of a legal duty “is a question of

law to be resolved by the court.” (Bily v. Arthur Young & Co. (1992) 3 Cal. 4th

370, 397.)

Here, defendant Fidelity was the escrow company, and thus its legal duty

toward plaintiff was limited to carrying out the terms of the escrow instructions.

“‘An escrow involves the deposit of documents and/or money with a third party

to be delivered on the occurrence of some condition.’ An escrow holder is an

agent and fiduciary of the parties to the escrow. The agency created by the

escrow is limited - limited to the obligation of the escrow holder to carry out the

instructions of each of the parties to the escrow. If the escrow holder fails to

carry out an instruction it has contracted to perform, the injured party has a

cause of action for breach of contract. In delimiting the scope of an escrow

holder's fiduciary duties, then, we start from the principle that ‘[a]n escrow holder

must comply strictly with the instructions of the parties. [Citations.]’ On the other

hand, an escrow holder ‘has no general duty to police the affairs of its

depositors’; rather, an escrow holder's obligations are ‘limited to faithful

compliance with [the depositors'] instructions.’ Absent clear evidence of fraud,

an escrow holder's obligations are limited to compliance with the parties'

instructions.” (Summit Financial Holdings, Ltd. v. Continental Lawyers Title Co.

(2002) 27 Cal.4th 705, 711, internal citations omitted.)

Thus, “no liability attaches to the escrow holder for [its] failure to do

something not required by the terms of the escrow or for a loss incurred while

obediently following [the] escrow instructions.” (Lee v. Title Ins. & Trust Co. (1968)

264 Cal.App.2d 160, 163.) In other words, “‘[a]n escrow holder's fiduciary duty is

limited to compliance with the escrow instructions’”, and the escrow company’s

failure to do something that was not required by the instructions does not support

a cause of action for negligence, breach of fiduciary duty, or breach of

contract. (Tribeca Companies, LLC v. First American Title Insurance Company

(2015) 239 Cal.App.4th 1088, 1114.)

Here, plaintiff claims that Fidelity was negligent because it failed to follow

the escrow instructions when it did not include plaintiff’s address in the second

deed of trust, which resulted in a failure to give plaintiff notice of the pending

foreclosure on the first deed of trust and plaintiff’s interest in the property being

“wiped out” when the property was sold to someone else. (TAC, ¶¶ 67-69.)

However, plaintiff has not pointed to any portion of the escrow instructions that

required defendant to include plaintiff’s address in the second deed of trust. The

escrow instructions themselves do not include any such requirement. (Exhibit 1 to

Long decl.) Plaintiff himself admitted in his deposition that he reviewed and

approved the short form deed of trust and assignment of rents. (Defendant’s

Undisputed Material Fact No. 6.) He also conceded that he was unaware of

Fidelity failing to follow any written escrow instructions, and that he did not recall

making any oral instructions to Fidelity asking them to include his address in the

second deed of trust. (UMF No. 7.) In addition, he did not request that

defendant prepare a request for notice. (UMF No. 8.)

In his opposition, plaintiff does not point to any evidence that he ever

requested that Fidelity include his address on the second deed of trust or

prepare a request for notice. He claims that whether he made such requests,

and whether he read and approved the escrow instructions is, irrelevant to

whether Fidelity is liable for negligence. However, as discussed above, an

escrow company is only liable to the extent that it fails to carry out the written

and oral escrow instructions provided by the parties. (Summit Financial Holdings,

Ltd. v. Continental Lawyers Title Co., supra, 27 Cal.4th at p. 711.) Here, plaintiff

has not been able to show that Fidelity failed to follow any specific written or oral

escrow instruction from him, or that he gave any instruction that was not

included in the written escrow instructions. He apparently concedes that he

never gave any instruction with regard to including his address in the second

deed of trust or that he be given notice of any pending foreclosure proceeding

with regard to the first deed of trust. Thus, plaintiff has not shown that Fidelity

breached its duties with regard to carrying out the escrow instructions.

Plaintiff spends a considerable amount of his opposition attempting to

distinguish the holdings of Summit Financial, supra, and the other cases cited by

defendant on their facts. However, regardless of the specific factual scenarios

of the individual cases, the general rule remains that an escrow company only

has the duty to carry out the actual instructions given to it by the parties, and

that an escrow company will not be held liable for negligence unless it fails to

carry out the escrow instructions. (Summit Financial, supra, 27 Cal.4th at p. 711;

Tribeca Companies, LLC v. First American Title Insurance Company, supra, 239

Cal.App.4th at p. 1114; Amen v. Merced County Title Co. (1962) 58 Cal.2d 528,

534; Rianda v. San Benito Title Guar. Co. (1950) 35 Cal.2d 170, 173; Vournas v.

Fidelity Nat. Tit. Ins. Co. (1999) 73 Cal.App.4th 668, 674; Schaefer v. Manufacturers

Bank (1980) 104 Cal.App.3d 70, 77; Blackburn v. McCoy (1934) 1 Cal.App.2d 648,

655; Claussen v. First American Title Guaranty Co. (1986) 186 Cal.App.3d 429, 435-

436; Romo v. Stewart Title of California (1995) 35 Cal.App.4th 1609, 1618, fn. 9

Axley v. Transamerica Title Ins. Co. (1978) 88 Cal.App.3d 1, 9; Lee v. Title Ins. &

Trust Co. (1968) 264 Cal.App.2d 160, 162; 3 Miller & Starr, Cal. Real Estate (3d ed.

1989) §§ 6:1, pp. 2-3, 6:26, p. 68.) Since plaintiff has not pointed to any particular

escrow instruction that Fidelity failed to carry out, plaintiff has failed to raise any

triable issues of material fact with regard to the negligence cause of action.

In addition, while plaintiff relies on the declaration of his expert, James

Cordova, to support his position that Fidelity had a duty to include plaintiff’s

address in the second deed of trust and that it breached this duty when it

drafted the escrow instructions, the question of whether or not a legal duty exists

is not an issue that is properly established through expert testimony. The

existence of a legal duty “is a question of law to be resolved by the court.” (Bily

v. Arthur Young & Co., supra, 3 Cal. 4th at p. 397.) Nor does plaintiff’s expert

point to any legal authority for his claim that an escrow company owes its clients

a duty to not only follow the escrow instructions, but also make sure that the

lender’s address is included in the deed of trust. Again, such a contention is

contrary to the vast weight of authority, which only imposes a duty on the

escrow company to strictly follow the escrow instructions. Therefore, since

plaintiff has failed to show that Fidelity breached its duty by failing to comply

with the escrow instructions, plaintiff cannot prevail on his fourth cause of action

for negligence and the court intends to grant summary adjudication as to that

claim.

Fifth Cause of Action for Breach of Contract: The fifth cause of action is

based on Fidelity’s alleged failure to follow the escrow instructions. Again, the

undisputed facts show that Fidelity did not fail to follow any of the written escrow

instructions, and that there were no other oral instructions that plaintiff gave to

Fidelity. As a result, there is no evidence that Fidelity breached any instructions,

and in fact the evidence indicates that Fidelity followed the instructions it was

given. The alleged breach in the present case was outside the terms of Fidelity’s

contract, and cannot be used to impose liability on Fidelity. “An escrow holder

incurs no liability for failing to do something not required by the terms of the

escrow or for a loss caused by following the escrow instructions.” (Axley v.

Transamerica Title Ins. Co., supra, 88 Cal.App.3d at p. 9.) Consequently, the

court intends to grant summary adjudication of the fifth cause of action for

breach of contract based on failure to follow the escrow instructions.

Sixth Cause of Action for Breach of Contract and Breach of the Implied

Covenant of Good Faith and Fair Dealing: Plaintiff also alleges that Fidelity

breached the title insurance policy when it refused to provide insurance

coverage for plaintiff’s loss under the terms of the policy issued by Fidelity.

However, the undisputed facts show that defendant was not the issuer of the

policy. According to defendant’s evidence, it was a different corporation,

Fidelity National Title Insurance Company, not the defendant, Fidelity National

Title Company, that issued the insurance policy. (Cattau decl., ¶¶ 7-8.) Fidelity

National Title Insurance Company is a title insurance underwriter and is therefore

authorized to issue title insurance to insured. (Id. at ¶ 3.) While Fidelity National

Title Insurance and Fidelity National Title are in the same “family” of companies,

they are separate corporate entities, and Fidelity National Title Company does

not issue title insurance policies. (Ibid.) Thus, since Fidelity National Title

Company was not the issuer of the policy at issue here, it cannot be held liable

for any alleged failure to provide coverage under the terms of the policy.

Plaintiff provides no evidence to dispute the fact that Fidelity National Title

Company was not the issuer of the policy, or authorities that hold that a

company that did not issue a title insurance policy can somehow be held liable

for refusing to provide benefits under the policy. Instead, plaintiff argues that

Fidelity failed to raise the defense that it was not the issuer of the policy earlier in

the litigation, such as in a demurrer or its answer, and thus is should be estopped

from raising it now.

However, plaintiff is incorrect. Fidelity did in fact raise the defense that it

was not the issuer of the policy in its answer, which was filed on August 14th, 2014,

almost three years before it filed its summary judgment motion. The twenty-first

affirmative defense clearly states that, “Defendant did not issue any policy of

insurance to Plaintiff and owed him no duty with regard to any policy of

insurance.” (See Plaintiff’s Request for Judicial Notice, Exhibit 7, Answer to Third

Amended Complaint, p. 5, 21st Affirmative Defense.) Thus, even assuming that

the defendant needed to assert the fact that it was not the issuer of the subject

policy as an affirmative defense, it did so in a timely manner when it filed its

answer. Thus, the defense was not waived, nor is defendant estopped from

asserting it.

Plaintiff further contends that there are various Fidelity companies with

confusingly similar names, and that, in any event, plaintiff has now added Fidelity

National Title Insurance in place of a Doe defendant, so plaintiff has now sued

the correct party. However, the fact that there are several companies with

similar names within the Fidelity family does not mean that those companies are

interchangeable and that suing one is the equivalent of suing the others. Plaintiff

has provided no evidence that the various Fidelity companies are alter egos of

each other, or that they are not separate corporate entities. Therefore, plaintiff

has failed to show that he sued the correct defendant. Indeed, plaintiff

apparently concedes that he sued the wrong defendant for breaching the

insurance contract, since he has now added Fidelity National Title Insurance as a

defendant in the action.

Plaintiff’s belated addition of the title insurance company as a defendant

does not mean, however, that he can still pursue his claim for breach of the

insurance contract against Fidelity National Title Company. The fact remains

that Fidelity National Title Company is not the entity that issued the subject

policy, so it cannot be sued for breaching the policy or breaching the implied

covenant with regard to the policy. (Jones v. Aetna Casualty & Surety Co.

(1994) 26 Cal.App.4th 1717, 1722: “While an action for breach of the covenant of

good faith and fair dealing sounds in tort, the duty of good faith and fair dealing

arises from and exists solely because of the contractual relationship between the

parties.”) Therefore, the court intends to grant the motion for summary

adjudication of the sixth cause of action for breach of contract and breach of

the implied covenant.

Eighth Cause of Action for Equitable Estoppel: “The venerable doctrine of

equitable estoppel or estoppel in pais, which rests firmly upon a foundation of

conscience and fair dealing, finds its classical statement in the words of Lord

Denman: ‘[T]he rule of law is clear, that, where one by his words or conduct

wilfully causes another to believe the existence of a certain state of things, and

induces him to act on that belief, so as to alter his own previous position, the

former is concluded from averring against the latter a different state of things as

existing at the same time; ....’’” (City of Long Beach v. Mansell (1970) 3 Cal.3d

462, 488, internal citations omitted.)

“‘Generally speaking, four elements must be present in order to apply the

doctrine of equitable estoppel: (1) the party to be estopped must be apprised of

the facts; (2) he must intend that his conduct shall be acted upon, or must so act

that the party asserting the estoppel had a right to believe it was so intended; (3)

the other party must be ignorant of the true state of facts; and (4) he must rely

upon the conduct to his injury.’” (Id. at p. 489, internal citations omitted.)

Here, plaintiff has alleged that he relied on Fidelity “as part of its duties

and escrow instructions”, to include his address in the second deed of trust so

that he could be apprised of any significant event affecting the property,

including a foreclosure. (TAC, at ¶ 94.) He also alleges that Fidelity failed to

include his address in the second deed of trust, which prevented him from

receiving notice of the foreclosure and causing him to lose his interest in the

property. (Id. at ¶¶ 95, 96.)

Again, however, plaintiff cites to no authorities that would require Fidelity

to include his address in the second deed of trust. The general rule is that the

escrow company is only required to follow the escrow instructions, and nothing

more. (Summit Financial, supra, 27 Cal.4th at p. 711.) There was nothing in the

escrow instructions that required Fidelity to list plaintiff’s address in the second

deed of trust, so it had no legal duty to do so. Also, plaintiff has not alleged that

Fidelity ever made any express representations that it would list his address in the

second deed of trust, and he admits that he never asked them to do so.

Therefore, plaintiff has failed to show that there are any triable issues of material

fact with regard to the equitable estoppel claim, and the court intends to grant

summary adjudication of the eighth cause of action.

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



Tentative Ruling



(5)

Tentative Ruling

Re: Miller v. Benner

Superior Court Case No. 16 CECG 00040


Motion: By Plaintiff seeking entry of dismissal with prejudice

pursuant to acceptance of CCP § 998 offer

Tentative Ruling:

To deny the motion.

Explanation:

Plaintiff cites Sanford v. Rasnick (2016) 246 Cal.App.4th 1121 as authority for

the premise that a 998 offer cannot require the entry of a settlement agreement.

This is correct. Id. at 1132. In that case, the matter was appealed after the trial

court granted the defendants’ motion to tax costs and awarded costs to the

defendants under the “cost-shifting” procedure pursuant to CCP § 998. Id. at

1123-1124. But, the case does not stand for the proposition that a trial court can

adjudicate a dispute regarding the terms of an offer pursuant to CCP § 998.

Instead, the opposite is true. The Court does not have the power to adjudicate a

dispute over the terms of a “settlement” and enter judgment. See Bias v. Wright

(2002) 103 Cal.App.4th 811 at 814 and 822. See also Saba v. Crater (1998) 62

Cal.App.4th 150. Therefore, the motion must be denied.

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.



Tentative Ruling



(5)

Tentative Ruling

Re: Dani Jolene Alldredge and Continental Divide

Insurance Company

Superior Court Case No. 17 CECG 02410


Petition: Relief from the Claims Filing Provisions of Gov. Code §

945.4

Tentative Ruling:

To deny.

Explanation:

Background

On July 27, 2016, Petitioner Alldredge while in the course and scope of her

employment was a passenger in a vehicle that was involved in a multi-vehicle

collision that began when a vehicle driven by Maria Elizabeth Guzman Robles, a

City of Fresno Police cadet during the course and scope of her employment

“rear-ended” a Land Rover. The Land Rover then struck a Dodge van. Ms.

Robles was operating a marked 2007 black Dodge Charger. Ms. Robles was

determined to have caused the accident. See Traffic Collision Report attached

to the Petition.

Ms. Alldredge, a resident of Oregon tore the meniscus in her left knee as a

result. She required surgery. She received workers’ compensation from

Continental Divide Insurance Company. The amount received to date is

$7,341.02. On January 5, 2017, Jamison Smith, a recovery specialist for

Continental submitted a claim pursuant to Gov. Code§ 945.4 to the County of

Fresno. See Exhibit 1 attached to the Declaration of Smith attached to the

Petition as Exhibit C. The claim was denied on March 17, 2017 on the grounds

that no employee of the County was involved in the accident. See Exhibit D

attached to the Petition.

After receiving the denial, Continental obtained an attorney in California

to represent it regarding its subrogation rights. On April 18, 2017, Continental

through its attorney filed an application with the City of Fresno seeking leave to

present a late claim. In addition, the attorney filed an application on behalf of

Ms. Alldredge. See Exhibits E and F attached to the Petition. On or about June

27, 2017, the Petitioners learned that their applications had been denied. See

Exhibit G,

On July 17, 2017, Alldredge and Continental filed a Petition seeking relief

from the claims filing requirement. Opposition and a reply were filed.

Merits

Gov. Code § 946.6 “Judicial relief from bar to sue because of

nonpresentation of claim”

(a) If an application for leave to present a claim is denied or deemed to be

denied pursuant to Section 911.6, a petition may be made to the court for an

order relieving the petitioner from Section 945.4. The proper court for filing the

petition is a superior court that would be a proper court for the trial of an action

on the cause of action to which the claim relates. If the petition is filed in a court

which is not a proper court for the determination of the matter, the court, on

motion of any party, shall transfer the proceeding to a proper court. If an action

on the cause of action to which the claim relates would be a limited civil case, a

proceeding pursuant to this section is a limited civil case.

(b) The petition shall show each of the following:

(1) That application was made to the board under Section 911.4 and was

denied or deemed denied.

(2) The reason for failure to present the claim within the time limit specified in

Section 911.2.

(3) The information required by Section 910.

The petition shall be filed within six months after the application to the board is

denied or deemed to be denied pursuant to Section 911.6.

(c) The court shall relieve the petitioner from the requirements of Section 945.4 if

the court finds that the application to the board under Section 911.4 was made

within a reasonable time not to exceed that specified in subdivision (b) of

Section 911.4 and was denied or deemed denied pursuant to Section 911.6 and

that one or more of the following is applicable:

(1) The failure to present the claim was through mistake, inadvertence, surprise,

or excusable neglect unless the public entity establishes that it would be

prejudiced in the defense of the claim if the court relieves the petitioner from the

requirements of Section 945.4.

(2) The person who sustained the alleged injury, damage or loss was a minor

during all of the time specified in Section 911.2 for the presentation of the claim.

(3) The person who sustained the alleged injury, damage or loss was physically

or mentally incapacitated during all of the time specified in Section 911.2 for the

presentation of the claim and by reason of that disability failed to present a

claim during that time.

(4) The person who sustained the alleged injury, damage or loss died before the

expiration of the time specified in Section 911.2 for the presentation of the claim.

(d) A copy of the petition and a written notice of the time and place of hearing

shall be served before the hearing as prescribed by subdivision (b) of Section

1005 of the Code of Civil Procedure on (1) the clerk or secretary or board of the

local public entity, if the respondent is a local public entity, or (2) the Attorney

General, if the respondent is the state. If the petition involves a claim arising out

of alleged actions or inactions of the Department of Transportation, service of

the petition and notice of the hearing shall be made on the Attorney General or

the Director of Transportation. Service on the Attorney General may be

accomplished at any of the Attorney General's offices in Los Angeles,

Sacramento, San Diego, or San Francisco. Service on the Director of

Transportation may be accomplished only at the Department of Transportation's

headquarters office in Sacramento. If the petition involves a claim arising out of

alleged actions or inactions of a judicial branch entity, service of the petition

and notice of the hearing shall be made in accordance with the following:

(1) If the petition involves a claim arising out of alleged actions or inactions of a

superior court or a judge, court executive officer, or trial court employee, as

defined in Section 811.9, of the court, service shall be made on the court

executive officer.

(2) If the petition involves a claim arising out of alleged actions or inactions of a

court of appeals or a judge thereof, service shall be made on the

Clerk/Administrator of the court of appeals.

(3) If the petition involves a claim arising out of alleged actions or inactions of

the Supreme Court or a judge thereof, service shall be made on the Clerk of the

Supreme Court.

(4) If the petition involves a claim arising out of alleged actions or inactions of

the Judicial Council or the Administrative Office of the Courts, service shall be

made on the secretariat of the Judicial Council.

(e) The court shall make an independent determination upon the petition. The

determination shall be made upon the basis of the petition, any affidavits in

support of or in opposition to the petition, and any additional evidence received

at the hearing on the petition.

(f) If the court makes an order relieving the petitioner from Section 945.4, suit on

the cause of action to which the claim relates shall be filed with the court within

30 days thereafter.

The procedural requirements have been met. See Exhibits D and E

attached to the Petition. Relief is sought pursuant to Gov. Code § 946.6(c)(1) --

mistake, inadvertence, surprise, or excusable neglect. See Declaration of Smith

at ¶ 8. As a matter of law, the showing required is the same as required for

discretionary relief from default under CCP § 473(b). [Lutz v. Tri-City Hosp. (1986)

179 Cal.App.3d 807, 810; Munoz v. State of Calif. (1995) 33 Cal.App.4th 1767,

1783-1784] For relief on any or all of these grounds “it must be shown that one's

misconception was reasonable … Plaintiff must show more than that she did not

discover a fact until too late; she must establish that in the use of reasonable

diligence she failed to discover it.” [Cole v. City of Los Angeles (1986) 187

Cal.App.3d 1369, 1376; Department of Water & Power v. Sup.Ct. (Dzhibinyan)

(2000) 82 Cal.App.4th 1288, 1294]

The court will make an independent determination as to whether the

claimant has shown grounds for relief (i.e., minority, disability, “excusable

neglect,” etc.) based on the petition, attached affidavits and any evidence

received at the hearing. [Gov. Code § 946.6(e); Bettencourt v. Los Rios Comm.

College Dist. (1986) 42 Cal.3d 270, 275] Upon examination of the claim filed with

the County of Fresno on January 5, 2017, it is noted that in response to the

question “how did the injury or damage occur”, Smith answered: “Maria

Elizabeth Guzman Robles caused automobile collision while operating a City of

Fresno vehicle and driving too fast for roadway conditions. CHP Police Report

16048792-1. [boldface added]” See Exhibit 1 attached to the Declaration of

Smith. Accordingly, Mr. Smith was aware of the fact that a City of Fresno vehicle

was involved in the accident. Therefore, Petitioners cannot establish that

reasonable diligence was used in the failure to discover the mistake.

[Department of Water & Power v. Sup.Ct. (Dzhibinyan), supra.] The Petition must

be denied.

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.



Tentative Ruling



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