tentative rulings for february 19, 2020 departments 403 ... · 19.02.2020 · as mentioned in the...

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Tentative Rulings for February 19, 2020

Departments 403, 501, 502, 503

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

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

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

submit the matter without an appearance. (See California Rules of Court, rule 3.1304(c).)

17CECG03249 Rabbass v. Durrenberg (Dept. 403)

19CECG03142 Pena v. California Home for the Aged, Inc. (Dept. 403)

20CECG00353 In Re: Abel, Aven & Vincent Gallardo (Dept. 403)

18CECG00731 Interadvisory, LTD. v. Dolarian Capital, Inc. (Dept. 503)

19CECG02220 Estrada v. Pena (Dept. 503)

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

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

________________________________________________________________

(Tentative Rulings begin at the next page)

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Tentative Rulings for Department 403

(27) Tentative Ruling

Re: Smith v. Facebook

Superior Court Case No. 19CECG01503

Hearing Date: February 19, 2020 (Dept. 403)

Motions: Defendants Facebook, INC., Mark Zuckerberg and Priscilla Chan’s

Demurrer to the First Amended Complaint

Tentative Ruling:

To sustain the demurrer with leave to amend. Plaintiff is granted 20 days’ leave

to file the Second Amended Complaint. The time in which the complaint can be

amended will run from service by the clerk of the minute order. New allegations in the

Second Amended Complaint are to be set in boldface type.

Explanation:

The function of a demurrer is to test the sufficiency of a plaintiff’s pleading by

raising questions of law. (Plumlee v Poag (1984) 150 Cal.App.3d 541, 545.) Further, “[w]e

treat the demurrer as admitting all material facts properly pleaded, but not

contentions, deductions or conclusions of fact or law.” (Blank v. Kirwan (1985) 39 Cal.3d

311, 318.)

Here, there do not appear to be any factual allegations supporting any of the

causes of action. As mentioned in the Tentative Ruling on the previous demurrer, the

amended pleading “will need to be clear as to what causes of action are being

stated, and against whom, and it must include supporting factual allegations as to

each defendant.” Essentially, without clear factual allegations, no cognizable cause of

action is apparent. As with the original complaint, the first amended complaint does

not allege sufficient facts to support the asserted causes of action. Accordingly, the

demurrer to the first amended complaint is sustained. Additionally, given the liberality

of allowing amendment, leave to amend is granted. (Blank v. Kirwan, supra, 39 Cal.3d

311, 318.)

Pursuant to Code of Civil Procedure section 1019.5, subdivision (a), no further

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

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

Tentative Ruling

Issued By: RTM on 2/18/20 .

(Judge’s initials) (Date)

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Re: Jones v. Hiller Aircraft Corporation, et al.

Case No. 18CECG04044


Motion: Summary judgment or adjudication

Tentative Ruling:

To deny Defendant City of Firebaugh’s motion for summary judgment or

adjudication. (Code Civ. Proc. §437c(c).)

Explanation:

Summary judgment or adjudication

A trial court shall grant summary judgment where there are no triable issues of

material fact and the moving party is entitled to judgment as a matter of law. (Code

Civ. Proc. §437c(c); Schacter v. Citigroup (2009) 47 Cal.4th 610, 618.) “The [summary

judgment] procedure is drastic and should be used with caution in order that it may not

become a substitute for existing methods of determination of issues of fact. Affidavits of

the moving party must be strictly construed and those of [the] opponent liberally

construed. The opposing affidavit must be accepted as true, and need not be

composed wholly of strictly evidentiary facts. The issue to be determined by the trial

court in consideration of a motion for summary judgment is whether or not any facts

have been presented which give rise to a triable issue or defense, and not to pass upon

or determine the true facts in the case. Any doubts are to be resolved against the

moving party. The facts in the affidavits shall be set forth with particularity. The movant's

affidavit must state all of the requisite evidentiary facts and not merely the ultimate

facts or conclusions of law or conclusions of fact.” (Petersen v. City of Vallejo (1968) 259

Cal.App.2d 757, 775, internal citations omitted; see also Aguilar v. Atlantic Richfield Co.

(2001) 25 Cal.4th 826, 843 [court must view evidence in light most favorable to opposing

party].)

The moving party bears the initial burden of production to make a prima facie

showing of the “nonexistence of any triable issue of material fact;” if he or she carries

this burden, the burden shifts to plaintiff to make a prima facie showing of the existence

of a triable issue. (Aguilar, supra, 25 Cal.4th at p. 849.) “All doubts as to the propriety of

granting the motion … are to be resolved in favor of the party opposing the motion[.]”

(Hamburg v. Wal-Mart Stores, Inc. (2004) 116 Cal.App.4th 497, 502, italics and citations

omitted.)

Here, Defendant City of Firebaugh (“City”) moves for summary judgment on the

complaint or, in the alternative, summary adjudication of two issues: (1) that City owed

no duty to Plaintiff; and (2) Plaintiff cannot establish causation against City.

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Dangerous condition of public property

“An essential element of a cause of action for damages based on a dangerous

condition of public property is causation. A plaintiff must show that the dangerous

condition in question was a substantial factor in causing his or her harm. If the conduct

which is claimed to have caused the injury had nothing at all to do with the injuries, it

could not be said that the conduct was a factor, let alone a substantial factor, in the

production of the injuries. The issue of causation, like the existence of a dangerous

condition, usually presents a question of fact. However, the issue can be decided as a

matter of law where the facts of a case can permit only one reasonable conclusion.”

(Milligan v. Golden Gate Bridge Highway & Transportation Dist. (2004) 120 Cal.App.4th

1, 8–9, citations and quotation marks omitted; see also Slapin v. Los Angeles

International Airport (1976) 65 Cal.App.3d 484, 490 [governmental entity may be liable

for injuries caused by combination of dangerous condition of public property and

wrongful acts of third parties].)

“A dangerous condition exists when public property is physically damaged,

deteriorated, or defective in such a way as to foreseeably endanger those using the

property itself, or possesses physical characteristics in its design, location, features or

relationship to its surroundings that endanger users. [¶] A public entity may be liable for

a dangerous condition of public property even where the immediate cause of plaintiff's

injury is a third party's negligent or illegal act … if some physical characteristic of the

property exposes its users to increased danger from third party negligence or

criminality.” (Cerna v. City of Oakland (2008) 161 Cal.App.4th 1340, 1347–1348, internal

citations and quotation marks omitted.) “Consistent with the text of [Gov. Code]

section 835 … plaintiffs injured by a combination of a dangerous condition of property

and third party conduct need show only that the condition proximately caused their

injury; they need not show that the condition somehow caused the third party's harmful

conduct.” (Cordova v. City of Los Angeles (2015) 61 Cal.4th 1099, 1107; see Huffman v.

City of Poway (2000) 84 Cal.App.4th 975, 989 [“a public entity is liable for a dangerous

condition on property it owns even though the danger would not exist but for the

presence of privately owned equipment on or adjacent to the public property.”].) The

pertinent question is not whether the state of the public property caused the third

party’s injury-causing act, but rather is whether the injury was proximately caused by

the dangerous condition. (Lane v. City of Sacramento (2010) 183 Cal.App.4th 1337,

1348.) In other words, if it is shown that but for the condition of the public property,

plaintiff would not have sustained the alleged injury, liability may attach to the public

entity. (Ibid.)

Government Code section 835 “specifically provides that when a public entity

has actual or constructive notice of a dangerous condition, the entity's liability may be

predicated on its failure to take protective measures to safeguard the public from

dangers that may not necessarily be of the entity's own creation. This reading of section

835 is confirmed by reference to section 830, subdivision (b), which specifically defines

the ‘protect against’ language of section 835, subdivision (b) to include ‘providing

safeguards against a dangerous condition.’ [Fn. omitted.] Thus, the language of the

applicable statutes refutes the state's argument that it is under no ‘duty’ to protect the

public against dangers that are not created by physical defects in public property.

[Citation.]” (Swaner v. City of Santa Monica (1984) 150 Cal.App.3d 789, 807.)

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Accordingly, a plaintiff is “not forbidden from using third party conduct as the factor

which made public property ‘dangerous’ within the meaning of section 830.” (Id. at p.

803, italics in original; see also Callahan v. City and County of San Francisco (1967) 249

Cal.App.2d 696, 701 [“it is established that although a third person may have been

concurrently negligent with a public entity, the latter is not necessarily relieved from

liability. Foreseeability is the primary element. The question of proximate cause

essentially is one of fact.” Citations omitted.].)

In the case at bench, Plaintiff alleges that Defendant City created a dead-end

on M Street via abandonments made in the 1970s; either erected and maintained, or

allowed a third party to erect and maintain, cement barricades along M Street,

narrowing it; and failed to post any signage warning of the dead-end or narrowing of M

Street. Plaintiff alleges that but for this condition of M Street, he would not have been on

Defendant Hiller Aircraft’s property and would not have sustained his injuries.

Defendant City’s motion is focused primarily on defeating the allegation that it

was in a special relationship with Plaintiff, giving rise to a duty of care. “Another of the

grounds [public entity defendant] asserted for the motion - the absence of a ‘special

relationship’ between [defendant] and plaintiff - may also be disregarded as a distinct

basis for summary judgment. It is not an independent defense, sufficient in its own right

to defeat plaintiff's claims, but an anticipatory rebuttal to certain claims plaintiff might

make - specifically, that [defendant] owed her a heightened duty under cases

predicating such a duty on a ‘special relationship.’ [Citations.]” (Cole v. Town of Los

Gatos (2012) 205 Cal.App.4th 749, 758.) Here, the complaint does not allege a duty

arising from a special relationship. Plaintiff bases his theory of liability on a duty owed to

members of the public. Defendant City’s motion for summary adjudication of the issue

of duty is denied.

Regarding causation, City argues that there is no causal link between any

condition of public property and the act that caused Plaintiff’s harm. City characterizes

the cause of Plaintiff’s harm as Plaintiff’s co-driver running him over while Plaintiff was

involved in a physical altercation with a third party on private property, concluding that

nothing about M Street caused Plaintiff’s harm. City concludes that Plaintiff’s injuries

were caused solely by his own acts and those of third parties. However, the condition of

M Street was the only reason that Plaintiff was on the Hiller property. A reasonable trier

of fact could determine that but for City’s turning M Street into a dead-end, allowing

the cement barricades to narrow the street, and failing to post any signs informing

drivers that there is no outlet and that the street narrows so much that large vehicles

may not be able to turn around, Plaintiff would not have sustained his injuries.

Defendant City fails to submit any evidence establishing that the physical state of the

public property did not contribute to Plaintiff’s injury. Defendant City’s motion for

summary adjudication of the issue of causation is therefore denied.

“Whether a given set of facts and circumstances creates a dangerous condition

is usually a question of fact and may only be resolved as a question of law if reasonable

minds can come to but one conclusion. [Citations.]” (Bakity v. County of Riverside

(1970) 12 Cal.App.3d 24, 30.) Here, Defendant City fails to show that reasonable minds

could only come to the conclusion that here the road did not constitute a dangerous

condition. City also fails to show that it had no duty to notify the general public that M

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Street has no outlet and narrows so that large vehicles’ maneuverability is restricted.

Last, Defendant City does not establish that M Street was not a substantial factor in

causing Plaintiff’s injuries. Defendant City’s motion is therefore denied in its entirety.

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

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

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

service by the clerk will constitute notice of the order.

Tentative Ruling

Issued by: RTM on _ 2/18/20 __ .


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Tentative Rulings for Department 501 (30)

Tentative Ruling

Re: State Farm Mutual Auto Ins. Co. v. Marcos Ledesma-Sanchez

Superior Court No. 17CECG00446

Hearing Date: If either party seeks oral argument and requests on 10/18/20

between the hours of 3-4 p.m. the hearing will be held on

THURSDAY February 20, 2020 @ 3:00 p.m. (Dept. 501)

Motions: Plaintiff’s Motion to Enforce Settlement

Tentative Ruling:

To grant. The court intends to sign the order received on November 20, 2019.

Explanation:

Code of Civil Procedure section 664.6 provides: “If parties to pending litigation

stipulate, in a writing signed by the parties outside the presence of the court ... for

settlement of the case, or part thereof, the court, upon motion, may enter judgment

pursuant to the terms of the settlement.” (Code Civ. Proc., § 664.6.)

Here, plaintiff seeks entry of judgment pursuant to Code of Civil Procedure section

664.6. In support thereof, plaintiff submits a declaration from its attorney, Joseph A. Duque.

Attached to Mr. Duque’s declaration is a signed writing – a written settlement agreement. The

settlement agreement shows that the parties settled in December 2017, and that defendant

agreed to make $100 monthly payments until the balance was paid in full.

The settlement agreement also evidences an intent by the parties that – in the event of

defendant’s default – the agreement be enforceable pursuant to Code of Civil Procedure

section 664.6. Specifically, the settlement agreement provides that upon defendant’s default,

judgment can be entered against him for $3,000 plus 7% interest from 12/1/17, plus attorney’s

fees and costs, less any payments received.

The writing appears to have been signed outside the presence of the court. However,

on January 18, 2018, the court entered an order regarding the settlement agreement, in which

the case was dismissed – but jurisdiction to enforce the agreement was reserved pursuant to

Code of Civil Procedure section 664.6.

Therefore, this court has jurisdiction to enter judgment. The writing conforms to

Code of Civil Procedure section 664.6, and there is adequate evidence to support

plaintiff’s request for judgment. According to Mr. Duque, defendant has been in default

since at least July 1, 2018.

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

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

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 2/18/2020 .


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Re: Verdugo v. Fresno Imaging





Motion: Motion to Dismiss

Tentative Ruling:

To grant and dismiss the complaint with prejudice. Defendant shall submit to this

court, within seven days of service of the minute order, a proposed judgment dismissing

the action. (Code Civ. Proc., § 438.)

Explanation:

On 8/21/19 Fresno Imaging filed a motion for judgment on the pleadings, which

motion was granted on 10/23/19. Plaintiff was granted 10 days’ leave to file a first

amended complaint. With mail service of the order, the deadline to amend was

11/7/19. To date plaintiff has not filed an amended complaint.

Defendant filed a motion to dismiss on 11/15/19. At various times (including after

the filing of the motion to dismiss) plaintiff has filed additional documents, mostly

medical records, and other documents possibly indicating efforts to serve defendant,

but nothing that could be construed as a pleading or complaint.

Code of Civil Procedure section 438, subdivision (h)(4)(C) provides in pertinent

part, “… if the motion is granted with respect to the entire complaint … with leave to file

an amended complaint …, but an amended complaint … is not filed, then after the

time to file an amended complaint … has expired, judgment shall be entered forthwith

in favor of the moving party.” Subdivision (i)(1)(B) provides that “[i]f no amended

pleading is filed, then the party shall move for entry of judgment in its favor.”

As plaintiff has not filed an amended complaint despite being granted leave to

do so, the motion to dismiss should be granted.

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

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

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

order.

Tentative Ruling



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(2)

Tentative Ruling

Re: Ekelem et al. v. Hamilton et al.

Superior Court Number: 18CECG04116

Hearing Date: None.

Motion: Petition to Compromise Minor’s Claim

Tentative Ruling:

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

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

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

2.8.4.

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

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

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

the clerk will constitute notice of the order.

Tentative Ruling



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Re: Emerzian v. Wilsonart, LLC, et al.

Court Case No. 17CECG02495




Motions: Demurrer to Second Amended Complaint by Western Building

Materials Co.

Motion to Strike Portions of Second Amended Complaint by

Western Building Materials Co.

Tentative Ruling:

To overrule the special demurrer. To sustain the general demurrers with leave to

amend. To grant the motion to strike. Plaintiffs shall file and serve a Third Amended

Complaint in conformity herewith within 10 days of the clerk’s mailing of this minute

order. New allegations shall be in boldface type font.

Explanation:

Demurrer:

“ ‘We treat the demurrer as admitting all material facts properly pleaded, but

not contentions, deductions or conclusions of fact or law. [Citation.] We also consider

matters which may be judicially noticed.’ [Citation.] Further, we give the complaint a

reasonable interpretation, reading it as a whole and its parts in their context. [Citation.]”

(Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

Second Cause of Action – Fraud

Western Building demurs to the second cause of action for fraud on the grounds

it fails to state sufficient facts. “ ‘The elements of fraud, which give rise to the tort action

for deceit, are (a) misrepresentation (false representation, concealment, or

nondisclosure); (b) knowledge of falsity (or “scienter”); (c) intent to defraud, i.e., to

induce reliance; (d) justifiable reliance; and (e) resulting damage.’ [Citations.]” (Lazar

v. Superior Court (1996) 12 Cal.4th 631, 638.) The plaintiff must allege with particularity “

‘ “facts which show how, when, where, to whom, and by what means the

representations were tendered.” ’ ” (Id. at p. 645.) Against a corporate defendant, the

pleading must allege the name of the person who made the representation, his or her

authority to speak, to whom he or she spoke, and how the representation was

communicated. (Tarmann v. State Farm Mutual Automobile Ins. Co. (1991) 2

Cal.App.4th 153, 157.) Plaintiffs’ have meet this pleading standard in paragraph 20 of

the Second Amended Complaint. Paragraph 20 specifies that sales representative,

Mark Robinson, and owner, Richard Rigulatto spoke on behalf of Western Building. Thus,

this is not a case, as alleged by defendants in their reply, where the complaint simply

states “defendants” made the representations.

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,

A demurrer is proper where a complaint fails to allege how a defendant knew

representations were false. (Wilhelm v. Pray, Price, Williams & Russell (1986) 186

Cal.App.3d 1324, 1331.) Here, Western Building contends that plaintiffs have not plead

sufficient facts describing how defendants’ knew their misrepresentations were false at

the time they made them, or how they intended plaintiffs to rely on the

misrepresentations. However, the Second Amended Complaint states that defendant

knew the product was defective because “many other consumers” who used the

product “experienced the same or similar delamination problems that plaintiffs

experienced and had previously notified Wilsonart of same.” (SAC ¶ 22 (emphasis

added0.) The Second Amended Complaint does not allege with specificity that

Western Building knew the product was defective because customers had complained

to them, or that Wilsonart had told Western Building of the complaints. Absent a

specific allegation of knowledge on Western Building’s part, the second Amended

Complaint fails to state a cause of action for fraud. Leave to amend is granted.

Third Cause of Action – Negligent Misrepresentation

“ ‘The elements of negligent misrepresentation are (1) a misrepresentation of a

past or existing material fact, (2) made without reasonable ground for believing it to be

true, (3) made with the intent to induce another’s reliance on the fact misrepresented,

(4) justifiable reliance on the misrepresentation, and (5) resulting damage.’ ” (Bock v.

Hansen (2014) 225 Cal.App.4th 215, 231; see Thrifty Payless, Inc. v. The Americana at

Brand, LLC (2013) 218 Cal.App.4th 1230, 1239.) “Causes of action for intentional and

negligent misrepresentation sound in fraud and, therefore, each element must be

pleaded with specificity.” (Daniels v. Select Portfolio Servicing, Inc. (2016) 246

Cal.App.4th 1150, 1166.) Western Building alleges that plaintiffs have still failed to allege

its intent to defraud plaintiffs.

In paragraph 28 of the Second Amended Complaint, plaintiff make allegations

similar to those in paragraph 20, discussed above. Specific instructions to “use more”

product, coupled with the knowledge that using more would not work, adequately

pleads intent to cause reliance, i.e. to get plaintiff’s to buy more product. However,

paragraph 28 fails, like paragraph 20, to plead a factual basis for Western Building’s

knowledge of customer complaints. The demurrer to this cause of action will be

sustained with leave to amend.

Special Demurrer:

Western Building demurs to the second and third causes of action on the

grounds they are uncertain. However, nothing in the Memorandum of Points and

Authorities addresses this contention.

Code of Civil Procedure section 430.10, subdivision (f) authorizes a party against

whom a complaint has been filed to object by special demurrer to the pleading on the

ground that “[t]he pleading is uncertain. As used in this subdivision, ‘uncertain’ includes

ambiguous and unintelligible.” Demurrers for uncertainty are disfavored. (Khoury v.

Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.) A demurrer for uncertainty

may be sustained when the complaint is drafted in a manner that is so vague or

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uncertain that the defendant cannot reasonably respond, e.g., the defendant cannot

determine what issues must be admitted or denied, or what causes of action are

directed against the defendant. (Ibid.) Demurrers for uncertainty are appropriately

overruled where “ambiguities can reasonably be clarified under modern rules of

discovery.” (Ibid.)

The facts underlying the second and third cause of action are clear and pled in

ordinary language. Western Building should be able to determine what issues must be

admitted or denied. All other issues can be resolved in discovery. Accordingly, the

second and third cause of action are not uncertain, and the special demurrer is

overruled.

Motion to Strike:

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

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

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

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

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

Western Building moves to strike the plaintiffs’ claims for punitive damages

pursuant to Civil Code section 3294, claiming no facts are pled to establish “a willful

and conscious disregard to the rights or safety of others other than the same conclusory

language that Western Building’s “conduct was despicable and made with the intent

to cause injury to plaintiffs and to the public…” (SAC ¶ 26.)

With respect to punitive damage allegations, mere legal conclusions of

oppression, fraud or malice are insufficient (and hence improper) and therefore may

be stricken. However, if looking to the complaint as a whole, sufficient facts are

alleged to support the allegations, then a motion to strike should be denied. (Perkins v.

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

evidence that the defendant is guilty of oppression, fraud or malice. (Civ. Code, § 3294,

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

“To support punitive damages, the complaint asserting one of those causes of

action must allege ultimate facts of the defendant's oppression, fraud, or malice.”

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

(emphasis added).) Evidentiary facts are not required. “[A]bsent an intent to injure the

plaintiff, ‘malice’ requires more than a willful and conscious disregard of the plaintiff’s

interests. The additional component of ‘despicable conduct’ must be found.”

(College Hosp. Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.) “ ‘"To establish

conscious disregard, the plaintiff must show ‘that the defendant was aware of the

probable dangerous consequences of his conduct, and that he willfully and

deliberately failed to avoid those consequences.’ ” (Spinks v. Equity Residential

Briarwood Apartments, supra, 171 Cal.App.4th at p. 1055.) Here, plaintiffs have not yet

properly alleged all the elements of actual fraud, thus the motion to strike is granted

with leave to amend.

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




Tentative Ruling



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(2)

Tentative Ruling

Re: Garcia et al. v. Garabedian Brother, Inc. et al.



Motion: Petition to Compromise Claim

Tentative Ruling:

To deny without prejudice. Petitioner must file a new petition, with appropriate

supporting papers and proposed orders, and obtain a new hearing date for

consideration of the amended petition. (Super. Ct. Fresno County, Local Rules, rule

2.8.4.)

Explanation:

The petition seeks attorney fees. When attorney’s fees are sought a declaration

from the attorney explaining the basis for the request, including a discussion of

applicable factors listed in rule 7.955(1)) of the Cal. Rules of Court is to be included as is

a copy of the fee agreement. The fee agreement is provided as an exhibit to the

petition. The fee agreement provided is in Spanish. Cal. Rules of Court, rule 3.1111(g)

provides, “Exhibits written in a foreign language must be accompanied by an English

translation, certified under oath by a qualified interpreter.” There is no translation

provided.

The Court would prefer that the petition be filed after the conservatorship is

approved.

Pursuant to Code of Civil Procedure section 1019.5(a), no further written order is

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

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

Tentative Ruling

Issued By: A.M. Simpson on February 5, 2020 .


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(2)

Tentative Ruling

Re: In re Desiree D. Sandoval

Superior Court Number: 19CECG04147


Motion: Petition to compromise minor’s claim

Tentative Ruling:

To grant. Orders signed. Hearing off calendar.

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

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

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

notice of the order.

Tentative Ruling



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Re: Mays v Greyhound Lines, Inc.

Case No. 19CECG03480


Motion: By Defendant Greyhound Lines, Inc. Demurring to Plaintiffs’ First

Amended Complaint.

By Defendant Greyhound Lines, Inc. to Strike Portions of Plaintiffs’

First Amended Complaint.

Tentative Ruling:

To overrule the demurrer to the First Amended Complaint.

To grant the motion to strike Paragraphs 58, 59, 90, and prayer for relief number 3

from the First Amended Complaint with leave to amend. Plaintiffs will have ten (10)

court days from the date of service of this order to file a Second Amended Complaint

setting forth a more thorough factual basis for the punitive damages, if they can. If

Plaintiffs do not file a Second Amended Complaint, then Defendant will have twenty

(20) court days from the service of this order to file a response to the First Amended

Complaint.

Any new or amended allegations are to be set forth in boldface typeset.

Explanation:

A general demurrer admits the truth of all material allegations and a Court will

“give the complaint a reasonable interpretation by reading it as a whole and all its

parts in their context.” (People ex re. Lungren v. Superior Court (1996) 14 Cal.4th 294,

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

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

noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

The complaint need only allege ultimate facts, which is to say, “facts sufficient to

state a cause of action; each evidentiary fact that might eventually form part of

Plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School District

(2012) 53 Cal.4th 861, 872.) However, Defendant is correct that a plaintiff must plead

facts and not rely merely on legal conclusions. (E.g., Weinstock v. Eissler (1964) 224

Cal.App.2d 212, 228.) As one court put it in a related context, a plaintiff cannot state a

claim under a statute “simply by utilizing a pair of scissors and a paste pot and

transferring the language of the statute to a form complaint.” (Hawkins v. TACA

International Airlines, S.A. (2014) 223 Cal.App.4th 466, 478.)

Defendant Greyhound Lines, Inc. (“Greyhound”) demurs to the First Amended

Complaint on several grounds, but largely on the basis that Plaintiffs’ pleadings do not

adequately plead facts to support Plaintiffs’ causes of action.

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The First Cause of Action for Negligence.

Defendant cites to CACI 400 for the elements of negligence that a Plaintiff must

show: that a defendant was negligent; that the plaintiff was harmed; and that

defendant’s negligence was a substantial factor in causing the harm. Defendant

argues that the allegations in the First Amended Complaint are not sufficient to state a

cause of action for negligence because they don’t state why the behavior is negligent

on the part of Defendant.

Defendant misunderstands the applicable standard. Defendant is correct that a

plaintiff must plead facts, but a plaintiff must only plead enough facts to give a

defendant adequate “notice of the issues sufficient to enable preparation of a

defense.” (Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 549-550.) It is true that a

bare allegation that “defendant’s negligence caused plaintiff injury” is insufficient to

withstand a demurrer because a plaintiff must allege the acts or omissions giving rise to

the claim. (E.g., Berkley v. Dowds (2007) 152 Cal.App.4th 518, 527.) However, Plaintiffs

have pleaded more than just bare allegations.

Here, Plaintiffs have alleged that Defendant Castillo was acting in the scope of

his employment for Defendant Greyhound when he was negligent, thus supporting a

claim for negligence against Greyhound under the doctrine of respondeat superior.

(FAC ¶¶ 28-29.) Plaintiffs also allege that, while in the course and scope of his

employment, Castillo acted in a negligent manner. Defendant nowhere disputes that

the allegations support a finding of negligence against Castillo.

In the moving papers, Defendant cites to case law regarding when an employer

is liable for an intentional tort. (Lisa M. v. Henry Mayo Newhall Mem. Hosp. (1995) 12

Cal.4th 291, 296-97.) Plaintiff is only alleging claims for negligence, and none of the

causes of action are for an intentional tort. “Under the theory of respondeat superior,

an employer is vicariously liable for an employee's torts committed within the scope of

employment.” (Bussard v. Minimed, Inc. (2003) 105 Cal.App.4th 798, 803.) Defendant

contends that the allegations are insufficient to show that co-Defendant Castillo was in

the scope of his employment. However, Plaintiff has plead that Castillo was driving a

Greyhound bus on a Greyhound route while wearing a Greyhound uniform. (FAC ¶¶ 9,

28-29.) The cases regarding intentional torts are simply inapposite; Plaintiff has pleaded

sufficient facts to show that Defendant Greyhound is at least liable for Defendant

Castillo’s negligence under the doctrine of respondeat superior. As a result, the

demurrer is overruled as to the First Cause of Action.

The Second Cause of Action for Breach of Common Carrier Duty.

In their moving papers, Defendant Greyhound cites to CACI 902 for the law

concerning common carrier duties: common carriers must use “the highest care and

the vigilance of a cautious person,” and that they must use “reasonable skill” to provide

everything necessary for safe transportation. (Memo of Ps and As at p. 9.) Defendant

cites to no case law, but argues that Plaintiff’s allegations are “devoid of any specific

facts” to support them. However, as noted above, “specific facts” are not required,

only “ultimate facts.”

19

Here, Plaintiff has alleged facts to support the allegation that Greyhound knew

Castillo was unsafe and failed to properly train or supervise him. (FAC ¶65 and ¶¶9, 20.)

This is sufficient to withstand a demurrer, especially since Defendant has not cited to

any elements for common carrier duty. (See, e.g., Acosta v. So. Cal. Rapid Transit Dist.

(1970) 2 Cal.3d 19, 27 (“Common carriers bind themselves to carry safely those whom

they take into their vehicles, and owe both a duty of utmost care and the vigilance of a

very cautious person towards their passengers. Such carriers are responsible for any,

even the slightest, negligence and are required to do all that human care, vigilance,

and foresight reasonably can do under all the circumstances.”).) Therefore, the

demurrer is overruled as to the Second Cause of Action.

The Third Cause of Action for Negligent Entrustment.

Defendant cites to CACI 724 for the elements of negligent entrustment: (1) that

an employee was negligent in operating the vehicle; (2) that defendant owned the

vehicle operated by the employee; (3) that the defendant knew, or should have

known, that the employee was unfit to drive the vehicle; (4) that defendant permitted

the employee to drive the vehicle, and (5) that the employee’s unfitness was a

substantial factor in causing harm to the plaintiffs.

Defendant argues that Plaintiffs have not alleged any facts to “establish how or

why Greyhound knew, or should have known, of Castillo’s unfitness to drive the bus.”

(Memo of Ps and As at p. 10.) Defendant also cites to Blake v. Moore (1984) 162

Cal.App.3d 700, 706, for the proposition that “[a] plaintiff must prove defendant had

knowledge of plaintiff’s incompetence when entrusting the vehicle.” However, the

“knowledge” referred to by the Blake Court was not just actual knowledge; as the

passages before and after the quoted passage note, the Blake court also extended

possible liability to where the employer “should have known” of the infirmity on the part

of the driver. (Id.)

Here, Plaintiffs have alleged that a Greyhound safety officer knew, as of March

22, 2019, that Castillo’s commercial license had been suspended. (FAC ¶20.) The

accident occurred on March 24, 2019. (FAC ¶9.) Therefore, Plaintiffs have validly

alleged that Defendant Greyhound entrusted the Greyhound bus to an employee who

was unfit at the time of the entrustment and Greyhound knew, or should have known,

of the unfitness.

As a result, the demurrer is overruled as to this cause of action.

The Fourth Cause of Action for Negligent Hiring and Supervision.

Defendant argues here that a plaintiff must plead specific facts in order to

support a cause of action for negligent hiring and supervision. However, Defendant

cites to no case law supporting this position. Defendant then argues that “[c]ase law is

crystal clear that a claim against an employer for negligent supervision must be

supported by facts showing that the employer knew or should have known that an

employee created a particular risk or hazard and that this particular hazard

materialized.” (Memo of Ps. and As. at p.11 (emphasis omitted) (citing Doe v. Capital

20

Cities (1996) 50 Cal.App.4th 1038, 1054-55).) However, as set forth above, Plaintiffs have

alleged that Defendant Greyhound knew before the accident occurred that Castillo’s

commercial driver’s license had been suspended. (FAC ¶¶ 9, 20.) Therefore, Plaintiff

knew that Castillo posed some form of risk while driving, and that this caused the

accident. As a result, the demurrer to this cause of action is overruled.

For all these reasons, the demurrer to the First Amended Complaint is overruled.

The Court will not consider the declaration attached to the opposition as it

concerns matters beyond the scope of the pleadings.

The Motion to Strike Punitive Damages.

A motion to strike can be used to: “(a) [s]trike out any irrelevant, false, or

improper matter inserted in any pleading[;]” or “(b) [s]trike out all or any part of any

pleading not drawn or filed in conformity with the laws of this state, a court rule, or an

order of the court.” (Code Civ. Proc., §§ 431.10, subd.(b), 436, subd.(a).) A court will

“read allegations of a pleading subject to a motion to strike as a whole, all parts in their

context, and assume their truth.” (Clauson v. Sup.Ct. (Pedus Services, Inc.) (1998) 67

Cal.App.4th 1253, 1255.)

A motion to strike may lie where the facts alleged do not rise to the level of

“malice, fraud or oppression” required to support a punitive damages award. (Turman

v. Turning Point of Central Calif. (2010) 191 Cal.App.4th 53, 63.) Mere conclusory

allegations will simply not suffice. (Brousseau v. Jarrett (1977) 73 Cal.App.3d 864, 872.)

For the purposes of pleading entitlement to punitive damages, malice requires

allegations that the conduct was intended by the defendant to cause injury to the

plaintiff or “despicable conduct which is carried on by the defendant with a willful and

conscious disregard of the rights or safety of others.” (Civ. Code §3294, subd.(c)(1).)

Moreover, when alleging punitive damages against a corporate employer, “the

advance knowledge and conscious disregard, authorization, ratification or act of

oppression, fraud or malice must be on the part of an officer, director, or managing

agent of the corporation.” (Civ. Code §3294, subd.(b).)

Here, Defendant Greyhound is moving to strike paragraphs 58, 59, 90 and prayer

for relief number 3, all relating to punitive damages. Defendant indicates that it is also

seeking to strike other allegations, but those do not appear listed in the notice and

motion itself. (FAC¶¶ 57 and 89.)

Plaintiffs rely primarily on Taylor v. Superior Court (1979) 24 Cal.3d 890, 899, which

holds that punitive damages can be pleaded against one who consciously drinks and

then drives. However, this supports the allegations of punitive damages against Castillo,

and not necessarily against Defendant Greyhound.

Plaintiffs argue that they have pleaded that an officer of Greyhound knew that

Castillo’s license was suspended before the accident occurred and allowed Castillo to

remain in a position of driving the bus. (FAC¶¶ 9, 20.) What is missing from the

allegations, however, is what the basis for that suspension was, or other facts that would

21

show that Greyhound had “advance knowledge [or] a conscious disregard,

authorization, [or] ratification” of Castillo’s actions.

In other words, while it is clear from the allegations that a corporate officer had

knowledge that Castillo’s license was suspended, there is nothing in the First Amended

Complaint to indicate that this was not a matter of simple negligence, as opposed to a

conscious disregard of the safety of others. Absent such allegations, the motion to strike

the punitive damages is granted.

Therefore, the Court grants the motion to strike Paragraphs 58, 59, 90, and prayer

for relief number 3 from the First Amended Complaint with leave to amend. Plaintiffs will

have ten (10) court days from the date of service of this order to file a Second

Amended Complaint setting forth a more thorough factual basis for the punitive

damages, if they can. If Plaintiffs do not file a Second Amended Complaint, then

Defendant will have twenty (20) court days from the service of this order to file a

response to the First Amended Complaint.

Any new or amended allegations are to be set forth in boldface typeset.

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

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

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

service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: A.M. Simpson on February18, 2020 .


22


Re: O’Neal v. City of Fresno/Lead Case



Motion: Application of Defendant Courtney Marie Colby for Good

Faith Settlement Determination

Tentative Ruling:

To grant.

Explanation:

In the present application, the settlement amount appears compatible with the

Tech-Bilt factors. (Tech-Bilt, Inc. v. Woodward–Clyde & Associates (1985) 38 Cal.3d 488,

499.) Moreover, there is no opposition. The application is granted.

The City of Fresno has filed a “Notice of Confirmation and Request for

Clarification” which indicates there is no objection to the good faith determination of

the settlement entered into by Colby and Walker. The City’s Notice of Confirmation

and Request for Clarification appears to also address the contents of the parties’

previous stipulation. However, interpreting the provisions of previous stipulations does

not appear to be part of the applicable inquiry to determine the good faith of the

settlement. Essentially, requesting the Court interpret the previous stipulation in this

context equates to a request for an advisory opinion, which the Court is precluded from

entertaining. (People ex rel. Lynch v. Superior Court (1970) 1 Cal.3d 910, 912.)

Consequently, in this context, the Court will not render an advisement as to the scope

and effect of the parties’ previous stipulation.

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



23



Re: Silva v. Fresno Unified School District



Motion: Petition to Approve Compromise of Disputed Claim of Minor in

Pending Action

Tentative Ruling:

To grant. Order signed. Hearing off calendar.

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

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



Tentative Ruling

Issued By: KAG on 2/18/2020.


24


Re: In re Daniel Chavarria



Motion: By petitioner for approval of transfer of structured settlement

payments

Tentative Ruling:

To deny and dismiss petition with prejudice on the basis that the transfer is not in

the best interests of Daniel Chavarria.

Explanation:

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

required language in the notice to previous counsel is not shown.

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

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

person selling them before a court may approve such transfer. The instant transaction

fails this standard. Mr. Chavarria is 22 years old and has been trying to sell his payments

since shortly after his tort case was settled. Two judges of the County of Kings Superior

Court denied his prior petitions. Those petitions and the denial orders are not provided.

Mr. Chavarria states that his monthly income aside from the $1,300 structured

settlement payment is $2,000. He proposes that he sell all of his $1,300 tax-free monthly

payments from December 2020, an additional $50,000 payment due in less than three

years, as well as most of his last lump sum payment, at an immediate loss of $65,000 of

the payments’ current value, so that he can buy a home. The transaction he proposes

is equivalent to taking out a mortgage at 6.81 percent while also reducing his income

by over one-third. He does not state how he plans to pay for taxes, insurance, or

maintenance expenses inherent in home ownership with his reduced income;

communications asking that he submit a budget showing pre-and proposed post-

transfer expenses bore no response on his part. Current mortgage rates are far below

6.81 percent; a mortgage would be a less expensive way to purchase a home and

would leave him with his $1,300 tax-free payment to cover his mortgage, taxes,

insurance, and maintenance costs, with money to spare. It would also create and

build a valuable asset in today’s world: a favorable credit report.

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

petitioner file a subsequent petition seeking approval for transfer of any of

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

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

California Superior court;

b) The entire annuity contract;

25

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

without exception and with complete copies;

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

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

them; and

e) Surgery records and hospital discharge records related to the injuries

at issue in the tort case.

Pursuant to Code of Civil Procedure section 1019.5, subdivision (a), no further

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

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

Tentative Ruling



26

(29)

Tentative Ruling

Re: Cottrell v. Jeffers, et al.



Motions: Leave to file cross-complaint and to bifurcate

Tentative Ruling:

To grant Defendant MRO’s motion for leave to file a cross-complaint. (Code Civ.

Proc. §428.10.) Defendant MRO to file its cross-complaint within five (5) days, running

from service by the clerk of the minute order. To grant MRO’s motion to bifurcate.

(Code Civ. Proc. §598.)

Explanation:

Motion for Leave to File Cross-Complaint

A defendant may cross-complain against a third person not yet a party to the

action where the cause of action asserted “(1) arises out of the same transaction,

occurrence, or series of transactions or occurrences as the cause brought against [it] or

(2) asserts a claim, right, or interest in the property or controversy which is the subject of

the cause brought against [it].” (Code Civ. Proc. §428.10(b); see also Time for Living,

Inc. v. Guy Hatfield Homes/All American Development Co. (1991) 230 Cal.App.3d 30,

38-39.) Allowing such cross-complaints furthers the policy of avoiding a multiplicity of

actions. (Sattinger v. Newbauer (1954) 123 Cal.App.2d 365, 369.)

Here, Defendant MRO seeks leave to file a cross-complaint against Albert

Cottrell IV, for alleged damage to the real property that is at issue in the underlying

complaint. The issue of ownership forms the basis of the complaint, and it is by virtue of

its claim of ownership of the property that MRO seeks to assert its proposed cross-claims.

Plaintiff’s arguments regarding confusion due to the similarity of Plaintiff’s and Mr.

Cottrell IV’s names, the naming of a non-party, and unnecessary distraction from

Plaintiff’s complaint are unavailing. The complaint and proposed cross-complaint both

involve the same real property and issues of ownership. It appears to the Court that

allowing the cross-complaint will promote the conservation of resources, both for the

parties and the Court. There is no apparent prejudice to Plaintiff, and no bad faith or

delay on the moving party’s part. Accordingly, the motion is granted.

Motion to Bifurcate

Under Code of Civil Procedure section 598, the Court is given great discretion in

regard to the order of issues at trial:

The court may, when the convenience of witnesses, the ends of justice, or

the economy and efficiency of handling the litigation would be promoted

27

thereby, on motion of a party, after notice and hearing, make an order . .

. that the trial of any issue or any part thereof shall precede the trial of any

other issue or any part thereof in the case[.]

Similarly, Code of Civil Procedure section 1048, subdivision (b), specifies the

Court’s discretion in regard to bifurcating issues for separate trials:

The court, in furtherance of convenience or to avoid prejudice, or when

separate trials will be conducive to expedition and economy, may order

a separate trial of any cause of action . . . or of any separate issue or of

any number of causes of action or issues.

The “objective [of section 598] is avoidance of the waste of time and money

caused by the unnecessary trial of damage questions in cases where the liability issue is

resolved against the plaintiff.” (Horton v. Jones (1972) 26 Cal.App.3d 952, 955.) The

decision to grant or deny a motion to bifurcate issues, and/or to have separate trials,

lies within the court’s sound discretion. (See Grappo v. Coventry Financial Corp. (1991)

235 Cal.App.3d 496, 503-504.)

Here, it appears that bifurcating the trial of liability and damages would

significantly promote judicial economy and efficiency. Moreover, Plaintiff has not

opposed the motion as to Defendant MRO’s request to bifurcate. Defendant MRO’s

motion to bifurcate is therefore granted.

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




Tentative Ruling



28


Re: Sanchez v. Ariel Torres, DMD, Inc., et al.



Motion: Defendants’ Motion for Summary Judgment/Adjudication

Tentative Ruling:

To deny the motions for summary judgment and adjudication as to both

defendants. To grant judgment on the pleadings, with leave amend, as to Dr. Ariel

Torres, as to the entire complaint. To grant judgment on the pleadings, with leave to

amend, as to Ariel Torres DMD, Inc., as to the first through fourth causes of action only.

A First Amended Complaint consistent with this ruling shall be filed and served

within 10 days from the clerk’s service of this minute order. New allegations shall be in

boldface type font. The trial date, mandatory settlement conference, and trial

readiness conferences are vacated. A status conference is set for March 26, 2020, at

3:30 p.m. in Department 503.

Explanation:

Initial Procedural Matters:

Plaintiff claims that defendants’ motion must be denied for various procedural

and technical errors. The court finds both sides have violated the applicable Rules of

Court with regard to this motion and therefore makes the following rulings:

Defendants’ Separate Statement

Plaintiff asserts that defendants’ motion should be denied for failure to provide a

proper separate statement because defendants use the same 13 facts for the request

for summary judgment and then simply incorporate them by reference into each of the

causes of action for which summary adjudication is sought. Every motion for summary

judgment must be accompanied by a “separate statement setting forth plainly and

concisely all material facts that the moving party contends are undisputed.” (Code

Civ. Proc., § 437c, subd. (b)(1).) Each of the material facts in the statement must be

“followed by a reference to the supporting evidence.” (Ibid.) The separate statement

must separately identify each cause of action, claim, issue of duty or affirmative

defense and each supporting material fact claimed to be without dispute with respect

to that cause of action, claim, issue of duty or affirmative defense. (Cal. Rules of Court,

rule 3.1350(b) & (d)(1).) Defendants’ separate statement is formatted consistent with

section 437c, subdivision (b)(1) and Rule of Court 3.1350(b) and (d)(1).

However, defendants’ statement does not comply with Rule of Court

3.1350(d)(2). A separate statement should include “only material facts and not any

facts that are not pertinent to the disposition of the motion.” A separate statement

29

effectively concedes the materiality of whatever facts are included. (Nazir v. United

Airlines, Inc. (2009) 178 Cal.App.4th 243, 252.) It is not the court’s place to rewrite

defendants’ separate statement and determine which facts are genuinely material to

each cause of action.

Opposition Separate Statement

Plaintiff’s separate statement fails to conform to Rule of Court 3.1350(f)(2): “An

opposing party who contends that a fact is disputed must state, on the right side of the

page directly opposite the fact in dispute, the nature of the dispute and describe the

evidence that supports the position that the fact is controverted. Citation to the

evidence in support of the position that a fact is controverted must include reference to

the exhibit, title, page, and line numbers.” (Emphasis added.) Plaintiff’s “disputes” to

Fact Nos. 5-7 and 11-13 do not cite to specific relevant evidence. Each cites to

“Declaration of Maria Sanchez paragraphs 4-20 and Exhibits 1-5,” requiring the court to

find the relevant evidence without assistance.

Defendants’ Lack of Separate Statement of Evidence

Plaintiff claims that defendants did not provide a summary of evidence in

support of their motion as required by Rule of Court 3.1350(c)(4) and (g) [If evidence in

support of or in opposition to a motion exceeds 25 pages, the evidence must be

separately bound and must include a table of contents.]. Defendants have not

complied with the Rule of Court, however, there are only two exhibits, consisting of: (1)

excerpts of plaintiff’s deposition transcript; and (2) plaintiff’s payroll records and

timecards. The violation of the Rule of Court is not egregious enough to justify denying

defendants’ motion.

Objections to Evidence

Neither party has made proper written objections to the evidence. Rule of Court

3.1352 specifies that a party desiring to make objections to the evidence on a motion

for summary judgment must either: submit objections in writing under Rule of Court

3.1354, or make arraignments for a court reporter to be present at the hearing. Rule

3.1354 requires written objections to evidence to be in a separately filed and served

document and use one of two specific formats. (Cal. Rules of Court, rule 3.1354(b).)

The parties have made their evidentiary objections in their separate statement or

memoranda of points and authorities. Accordingly, the court declines to rule on the

parties’ improperly formatted objections. (Hodjat v. State Farm Mutual Automobile Ins.

Co. (2012) 211 Cal.App.4th 1, 8-9.)

Summary Judgment/Adjudication

Defendants’ Material Issue of Fact No. 11, “At the time of her termination, Maria

Sanchez was paid everything that she was owed by Ariel Torres DMD, Inc.[,]” has been

validly disputed with evidence that plaintiff was terminated by letter dated March 24,

2017, with the termination to be effective March 27, 2017, and was not paid her final

wages until March 30, 2017. (Compare Torres Decl., at ¶ 2, with Sanchez Decl., at ¶¶ 17-

30

19 and Exs. 3 & 4 to Sanchez Decl.) Accordingly, as defendants admit in their reply brief

(Reply at 2:8-10), their motion for summary judgment must be denied.

Nonetheless, defendants ask for summary adjudication on plaintiff’s first, third

and fifth causes of action. The court will not grant summary adjudication. Defendants’

inclusion of all material facts in the separate statement, in every individual cause of

action, is fatal to their motion for summary adjudication.

Judgment on the Pleadings as to Dr. Ariel Torres, Individually

Plaintiff’s complaint only pleads that the entity defendant was her employer.

6. PLAINTIFF was employed by Defendant ARIEL TORRES DMD, INC. as

registered dental assistant, manager, and dental biller up until her

termination effective March 27, 2017.

7. PLAINTIFF has worked for Defendant ARIEL TORRES DMD, INC. for over

twenty years.

(Complaint, at ¶¶ 6-7.)

The complaint alleges that Dr. Torres owns Ariel Torres DMD, Inc., but does not

plead the basis for Dr. Torres’ liability. (See Complaint, at ¶ 3.) For example, the

complaint does not allege alter ego liability. In her opposition, plaintiff claims that Dr.

Torres is individually liable under Labor Code section 558.1. This theory is not raised in

the complaint. Section 558.1 provides that a “natural person who is an owner, director,

officer, or managing agent of the employer” “who violates, or causes to be violated,

any provision regulating minimum wages or hours and days of work in any order of the

Industrial Welfare Commission, or violates, or causes to be violated, Sections 203, 226,

226.7, 1193.6, 1194, or 2802, may be held liable as the employer for such violation.”

(Lab. Code, § 558.1, subds. (a) & (b).) This provides a theory of liability, but no facts are

alleged in the complaint to support this theory.

Although, in general, the rules of pleading require only general allegations of

ultimate fact, not evidentiary facts supporting the allegation of ultimate fact

(Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 47; Committee on

Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 212), “facts in

support of each of the requirements of a statute upon which a cause of action is based

must be specifically pled.” (Fisher v. San Pedro Peninsula Hospital (1989) 214

Cal.App.3d 590, 604; Carter v. Prime Healthcare Paradise Valley LLC (2011) 198

Cal.App.4th 396, 410.) For example, in Hawkins v. TACA International Airlines, S.A. (2014)

223 Cal.App.4th 466, the appellate court found that a plaintiff pleading a violation of

Labor Code section 2810 must “do more than simply allege that ‘[a]t each of the times

[the airline defendants] entered into contracts with [Sereca] they have known, or

should have known, that each contract did not provide sufficient funds to allow

[Sereca] to comply with all applicable local, state, and federal laws or regulations

governing the labor or services provided.’” (Id. at p. 478.) The appellate court

concluded that a plaintiff cannot state a claim under the Labor Code by “simply by

utilizing a pair of scissors and a paste pot and transferring the language of the statute to

a form complaint.” (Id. at pp. 478-79.)

31

Accordingly, plaintiff was required to, but did not, plead a factual basis for her

claims against Dr. Torres. Because plaintiff’s claims are deficient on the face of the

complaint, the court will treat Dr. Torres’ motion for summary judgment as a motion for

judgment on the pleadings. “In practice, where a defect appears on the face of the

complaint, a trial court may elect to treat the hearing of the summary judgment motion

as a motion for judgment on the pleadings and grant the opposing party an

opportunity to file an amended complaint to correct the defect.” (Hobson v. Raychem

Corp. (1999) 73 Cal.App.4th 614, 625.) “When a motion for summary judgment is in

effect a motion for judgment on the pleadings, it is better practice to grant the motion

with leave to amend and, after the issues have been properly plead[ed], to renew the

motion for summary judgment.” (Wood v. Riverside General Hospital (1994) 25

Cal.App.4th 1113, 1120.) The court therefore grants judgment on the pleadings on the

entire complaint with leave to amend as to Dr. Torres.

Judgment on the Pleadings as to Ariel Torres DMD, Inc.

The court will also treat Ariel Torres DMD, Inc.’s motion for summary judgment as

a motion for judgment on the pleadings.

First Cause of Action – “Failure to Pay for all Hours Worked”

Plaintiff’s first cause of action alleges that defendants “failed to pay [plaintiff] for

all hours worked” (Complaint, at ¶ 14), and cites generally to Labor Code sections 223,

226.2, 510, and 1194. There are few factual allegations in the complaint. Paragraphs 9-

11 allege:

9. PLAINTIFF consistently worked at least six (6) hours per day with many

days exceeding ten (10) hours per day.

10. PLAINTIFF was routinely not allowed to take her meal period break until

after the fifth (5th) hour of work had passed.

11. PLAINTIFF was never granted a second meal period break on days

that she worked longer than ten hours.

Plaintiff’s first cause of action fails to state facts sufficient to constitute a claim.

Labor Code section 223 states, “[w]here any statute or contract requires an employer

to maintain the designated wage scale, it shall be unlawful to secretly pay a lower

wage while purporting to pay the wage designated by statute or by contract.” The

California Supreme Court stated that “[i]t is not at all clear that there is a private right of

action for violation of Labor Code section[] . . . 223” in Stoetzl v. Department of Human

Resources (2019) 7 Cal.5th 718. (Id., at p. 752.) The high court also observed that

“[s]ection 223 is concerned with ‘secret deductions or “kick-backs” ’ . . . .” (Ibid.)

Nothing in plaintiff’s complaint alleges secret deductions or kick-backs. Plaintiff’s Labor

Code section 223 claim is without merit.

Labor Code 226.2 applies only to employees compensated at a piece-rate, i.e.,

it does not apply to hourly employees such as plaintiff. (Lab. Code, § 226.2 [“This

section shall apply for employees who are compensated on a piece-rate basis for any

work performed during a pay period.”].) Accordingly, plaintiff’s Labor Code section

226.2 claim is without merit.

32

Labor Code section 510 provides for the payment of overtime wages:

. . . Any work in excess of eight hours in one workday and any work in

excess of 40 hours in any one workweek and the first eight hours worked

on the seventh day of work in any one workweek shall be compensated

at the rate of no less than one and one-half times the regular rate of pay

for an employee. Any work in excess of 12 hours in one day shall be

compensated at the rate of no less than twice the regular rate of pay for

an employee. In addition, any work in excess of eight hours on any

seventh day of a workweek shall be compensated at the rate of no less

than twice the regular rate of pay of an employee.

(Lab. Code, § 510, subd. (a).)

However, nothing in plaintiff’s complaint alleges she was not paid any overtime

pay. (See Complaint, at ¶¶ 9-11.) Notably absent from the complaint are any

contentions, such as those raised in plaintiff’s opposition, that she ever worked off-the-

clock. Thus, plaintiff’s Labor Code section 510 claim is without merit.

Finally, Labor Code section 1194, subdivision (a) provides: “Notwithstanding any

agreement to work for a lesser wage, any employee receiving less than the legal

minimum wage or the legal overtime compensation applicable to the employee is

entitled to recover in a civil action the unpaid balance of the full amount of this

minimum wage or overtime compensation, including interest thereon, reasonable

attorney's fees, and costs of suit.” Plaintiff has not alleged payment of less than

minimum wage, or unpaid overtime in her complaint. Accordingly, the court grants

judgment on the pleadings as to plaintiff’s first cause of action.

Second Cause of Action – “Failure to Provide Accurate Wage Statements”

Plaintiff’s second cause of action alleges that “DEFENDANTS have knowingly and

intentionally failed to provide accurate itemized wage statements to Plaintiff in

accordance with Labor Code §§ 226(a), 226.2, and 246(i)” and that “the wage

statements DEFENDANTS provided to PLAINTIFF did not reflect all hours worked, the

applicable wage rates paid and the total gross wages, nor the amount of sick leave

available.” (Complaint, ¶¶ 21-22.)

Labor Code section 226, subdivision (a) requires employers, at the time of each

payment of wages, to provide each employee with an accurate wage statement

itemizing, among other things, the total hours worked by the employee, the applicable

hourly rate, the gross and net wages earned by the employee in the pay period, and

the name and address of the legal entity that is the employer. Labor Code section 246,

subdivision (i) requires employers to provide written notice setting forth the amount of

paid sick leave available, or paid time off leave an employer provides in lieu of sick

leave, for use on either the employee’s itemized wage statement or a separate writing

provided with employee’s payment of wages.

Plaintiff has not pled an adequate claim for violation of Labor Code 226, as no

specific facts are alleged. She could amend to allege specific facts, as Plaintiff’s

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Declaration at paragraph 19, and exhibit 5 to her declaration establish that, on at least

one of plaintiff’s wage statements, the rate of overtime pay was not stated.

Accordingly, judgment on the pleadings as to plaintiff’s second cause of action

is appropriate.

Third Cause of Action – “Failure to Keep Accurate Payroll Records”

Plaintiff’s third cause of action alleges that “DEFENDANTS have violated Labor

Code § 1174(d) and Wage Order 4 by willfully failing to keep required payroll records

showing the actual hours worked each day by PLAINTIFF.” (Complaint, at ¶ 28.) Plaintiff

has been “precluded from accurately monitoring [her] number of hours worked and

thus prevented from seeking all wages owed” due to defendants’ inaccurate payroll

records. (Complaint, at ¶ 29.) The third cause of action cites generally to Labor Code

sections 226.2, 1174 and 1174.5.

Again, Labor Code 226.2 applies only to employees compensated at a piece-

rate and does not apply to plaintiff.

Labor Code section 1174, subdivision (d) provides that an employer shall:

Keep, at a central location in the state or at the plants or establishments

at which employees are employed, payroll records showing the hours

worked daily by and the wages paid to, and the number of piece-rate

units earned by and any applicable piece rate paid to, employees

employed at the respective plants or establishments. These records shall

be kept in accordance with rules established for this purpose by the

commission, but in any case shall be kept on file for not less than three

years. An employer shall not prohibit an employee from maintaining a

personal record of hours worked, or, if paid on a piece-rate basis, piece-

rate units earned.

Labor Code section 1174.5 provides the remedy for violations of section 1174:

Any person employing labor who willfully fails to maintain the records

required by subdivision (c) of Section 1174 or accurate and complete

records required by subdivision (d) of Section 1174, or to allow any

member of the commission or employees of the division to inspect records

pursuant to subdivision (b) of Section 1174, shall be subject to a civil

penalty of five hundred dollars ($500).

No facts are alleged that demonstrate plaintiff’s time worked was not accurately

tracked. For example, the complaint does not allege that she worked off-the-clock or

was given undocumented bonuses. Accordingly, the court grants judgment on the

pleadings with leave to amend as to this cause of action

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Fourth Cause of Action – “Waiting Time Penalties”

The fourth cause of action alleges that defendants have “willfully” “failed to pay

all earned wages to” plaintiff. (Complaint, at ¶ 34.) Labor Code section 201,

subdivision (a), provides, in relevant part: “If an employer discharges an employee, the

wages earned and unpaid at the time of discharge are due and payable

immediately.” The complaint fails to allege that plaintiff was not immediately paid for

all work after she was discharged, but plaintiff’s evidence in opposition to the motion

for summary judgment indicates she was paid three days after the effective date of

termination. (Sanchez Decl., at ¶ 19; Ex. 5.) Accordingly, plaintiff should be able to

amend her complaint, and the court grants judgment on the pleadings with leave to

amend.

Fifth Cause of Action – “Failure to Provide Meal Periods”

The fifth cause of action alleges that plaintiff “has worked more than six (6) hours

in a workday and somedays more than ten (10) hours in a workday. At all times

relevant hereto, DEFENDANTS failed to provide meal periods as required by Cal. Lab.

Code §§ 226.7 and 512.” (Complaint, at ¶ 40.)

Labor Code section 226.7 provides, in relevant part:

(b) An employer shall not require an employee to work during a meal or

rest or recovery period mandated pursuant to an applicable statute, or

applicable regulation, standard, or order of the Industrial Welfare

Commission, the Occupational Safety and Health Standards Board, or the

Division of Occupational Safety and Health.

(c) If an employer fails to provide an employee a meal or rest or recovery

period in accordance with a state law, including, but not limited to, an

applicable statute or applicable regulation, standard, or order of the

Industrial Welfare Commission, the Occupational Safety and Health

Standards Board, or the Division of Occupational Safety and Health, the

employer shall pay the employee one additional hour of pay at the

employee's regular rate of compensation for each workday that the meal

or rest or recovery period is not provided.

Labor Code section 512 provides for a mandatory meal break of 30 minutes per

day for employees working in excess of 6 hours and another 30 minutes if the employee

works in excess of 10 hours per day. (Labor Code § 512, subd. (a).) Plaintiff has pled

she was not granted meal breaks on days she worked longer than 10 hours.

(Complaint, at ¶ 11.) Presumably, plaintiff means she was never granted a second

meal break on days she worked 10 hours or more. This states a claim, and judgment on

the pleadings will not be granted as to this cause of action.

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




Tentative Ruling



tentative rulings for february 19, 2020 departments 403 ... · 19.02.2020 · as mentioned in the...

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