tentative rulings for july 26, 2017 departments 402, … tentative rulings for department 402 (20)...

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Tentative Rulings for July 26, 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).)

14CECG02325 Mongia v. Doe 1et al. (Dept. 402)

16CECG00180 Alvaro Rivera-Diaz v. Alejandro Rivera-Diaz, et al.

(Dept. 503) - hearing on motion to appoint receiver,

only; tentative ruling on motion for attorney’s fees and

sanctions posted – see below

17CECG01474 Westamerica Bank v. Singh (Dept. 501)

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

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

10CECG02116 Parker v. State of California is continued to Wednesday, August 9,

2017, at 3:30 p.m. in Dept. 402.

17CECG01022 Richard Best Transfer, Inc. v. Archer Daniels Midland Company, et

al. - all motions are continued to Tuesday, August 15, 2017, at 3:30

p.m. in Dept. 503.

15CECG00008 Malan v. CUSD is continued to Wednesday, August 9, 2017, at 3:30

p.m. in Dept. 502.

________________________________________________________________

(Tentative Rulings begin at the next page)

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Tentative Rulings for Department 402

(20) Tentative Ruling

Re: Patrick v. Alice Manor Convalescent Hospital et al., Superior

Court Case No. 16CECG02346

Hearing Date: July 26, 2017 (Dept. 402)

Motion: Demurrer to Second Amended Complaint

Tentative Ruling:

To sustain the demurrer to the third cause of action of plaintiff’s Second

Amended Complaint, without leave to amend, in light of plaintiff’s Statement of Non-

Opposition filed on July 13, 2017. (Code Civ. Proc. § 430.10(e).) Defendants shall file

their answer to the Second Amended Complaint within 10 days of service of the order

by the clerk.

The motion to strike is off calendar as no such motion has been filed.

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: JYH on 07/25/17

(Judge’s initials) (Date)

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Tentative Ruling

Re: Rivas v. Rivas et al.

Superior Court Number: 15CECG00405


Motion: Motion to Enforce Settlement

Tentative Ruling:

To grant Jesus Rivas’ motion to enforce settlement. The Court enters judgment in

favor of Jesus Rivas and against Abraham Gonzalez and Gonzalez Towing and

Transport in the amount of $5,000. The Court further orders Abraham Gonzalez and

Gonzalez Towing and Transport, jointly and severally, to pay attorney’s fees and costs in

the amount of $460 to the Law Offices of Henry Nunez.

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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(6)

Tentative Ruling

Re: Estillore v. Trustee’s Assistance Corporation

Superior Court Case No.: 16CECG03525


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, but to continue oral argument

to August 31, 2017, at 3:30 p.m. in Dept. 402. As no opposition to the demurrer was filed

for the current hearing date of July 26, 2017, no written opposition based on the new

hearing date will be permitted to be filed or will be considered by the Court.

To set a hearing on the Court’s own 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, to be heard on August 31, 2017, at 3:30 p.m. in Dept. 402, based on

the rationale presented below.

The Court intends, after entering the prefiling order declaring Plaintiff Gloria

Estillore vexatious, to order the clerk of the court to provide to the Judicial Council a

copy of the 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).)

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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

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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 intends to declare Ms. 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).)

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

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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

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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.

State action number three: Case No. 16CECG03525

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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

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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

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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.

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.

The Court intends to issue the final prefiling order after the August 31, 2017,

hearing.

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



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Tentative Rulings for Department 403 2 Tentative Ruling

Re: Calderon v. Inman

Superior Court Case No. 15CECG01841


Motion: Compel plaintiff to provide initial responses to form interrogatories,

set two, special interrogatories, set two, request for production of

documents, set two, deem request for admissions, set one,

admitted and sanctions

Tentative Ruling:

The court notes that the moving party scheduled 1 motion and paid for 1

motion. In actuality the moving papers consisted of three motions combined into one

set of papers. In the future the moving attorney is to properly calendar and pay for the

proper number of motions. Moving party shall pay an additional filing fee of $120.00 to

be due and payable to the court clerk within 30 days of service of the minute order by

the clerk. (Gov. Code § 70617, subd. (a).)

To grant defendant’s motion to compel plaintiff to provide initial verified

responses to form interrogatories, set two, special interrogatories, set two, and request

for production of documents, set two. (Code of Civil Procedure sections 2030.290(b)

and 2031.300(b).) Eduardo Calderon to provide complete verified responses to all

discovery set out above, without objection within 10 days after service of this order.

To grant defendant’s motion that the truth of the matters specified in the

requests for admission, set one, be deemed admitted as to plaintiff Eduardo Calderon

unless plaintiff serves, before the hearing, a proposed response to the requests for

admission that is in substantial compliance with Code of Civil Procedure sections

2033.210, 2033.220 and 2033.240. Code of Civil Procedure §2033.280.

To grant defendant Mark Inman’s motion for sanctions. Eduardo Calderon and

his attorney or record, jointly and severally, are ordered to pay sanctions in the amount

of $400 to Ericksen Arbuthnot within 30 days after service of this order. CCP

§§2030.290(c), 2031.300(c) and 2033.280(c).

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

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

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

notice of the order.

Tentative Ruling

Issued By: KCK on 07/24/17


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Tentative Rulings for Department 501


Re: Mora v. Parlier Unified School District et al., Superior Court

Case No. 17CECG01244


Motion: Demurrer to Complaint

Tentative Ruling:

To sustain the demurrer to all causes of action of the Complaint, with 10 days

leave to amend granted as to the third, fourth and sixth causes of action only. The time

in which the complaint may be amended will run from service of the order by the clerk.

All new allegations shall be in boldface type.

Explanation:

According to the supplemental declaration of defendants’ counsel, plaintiff

agreed to dismiss the first and second causes of action. Accordingly, as plaintiff has not

yet filed the dismissal, the demurrers to these causes of action will be sustained for the

reasons stated in the moving papers.

Third, fourth and sixth causes of action

These causes of action all assert claims for retaliation under various federal laws.

To assert these claims for retaliation, plaintiff must plead that (1) she engaged in

protected activity of which the recipient was aware; (2) the recipient took a

significantly adverse action against the individual; and (3) a causal connection exists

between the individual’s protected activity and the recipient’s adverse action. (Emeldi

v. Univ. of Oregon (9th Cir. 2012) 673 F.3d 1218, 1223.) The only specific alleged act of

retaliation against plaintiff is her exclusion from school for a total of 28 days. Plaintiff has

pled no causal link between her alleged complaints and this alleged act of

discrimination.

Fifth cause of action

Plaintiff alleges that PUSD and the individual defendants violated 42 USC § 1983

by not identifying her child’s disability and denying him a free and appropriate

education as required by the IDEA. (See Compliant p. 23.)

Traditionally, the requirements for relief under section 1983 have been

articulated as: (1) a violation of rights protected by the Constitution or

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created by federal statute, (2) proximately caused (3) by conduct of a

“person” (4) acting under color of state law. See, e.g., Parratt v. Taylor,

451 U.S. 527, 535, 101 S.Ct. 1908, 1912, 68 L.Ed.2d 420 (1981), overruled on

other grounds, Daniels v. Williams, 474 U.S. 327, 328, 106 S.Ct. 662, 663, 88

L.Ed.2d 662 (1986).

(Crumpton v. Gates (9th Cir. 1991) 947 F.2d 1418, 1420.)

California has enacted legislation to comply with the IDEA. A parent may initiate

a “due process hearing” regarding the provision of a free appropriate public education

for a child with a disability and that such a hearing will be conducted “at the state

level.” (Educ. Code § 56501(a), (b)(4).) The decision of the hearing officer “shall be the

final administrative determination binding on all parties” unless a party “exercise[es] the

right to appeal the decision to a court of competent jurisdiction … within 90 days of

receipt of the hearing decision.” (Educ. Code § 56505(g), (i).) “Judicial review under

the IDEA is ordinarily available only after the plaintiff exhausts administrative remedies.”

(Porter ex rel. Porter v. Board of Trustees of Manhattan Beach Unified School Dist. (C.D.

Cal. 2000) 123 F.Supp.2d 1187, 1195.)

In this case, the hearing was held on February 2-4, 2016, and an order after that

hearing was issued on April 22, 2016. (Complaint Exh. F.) Plaintiff filed this action nearly

one year later, on April 12, 2017, well beyond the 90 day statutory appeal period.

Seventh cause of action

The Complaint alleges that plaintiff suffered severe emotional distress as a result

of an assault of the student by Mr. Rosas (telling the student to move and physically

shoving him during school in 2014). (Complaint 11:18-23, 25:8-11.)

To state a cause of action for negligent infliction of emotional distress a plaintiff

must plead that he or she suffered serious emotional distress as the result of the

defendant’s breach of a duty of care owed directly to them (Potter v. Firestone Tire &

Rubber Co. (1993) 6 Cal.4th 965, 985) or that the plaintiff suffered serious emotional

distress as the result of witnessing a family member being physically injured by

defendant’s negligence (Burgess v. Superior Court (1992) 2 Cal.4th 1064, 1071-1075.) To

recover as a bystander, plaintiff must be present and aware of the injury to a family

member when it occurred. (Thing v. La Chusa (1989) 48 Cal.3d 644, 668.)

Because the Complaint does not allege that plaintiff was present when the

alleged assault occurred, plaintiff fails to allege facts sufficient to constitute a cause of

action. Additionally, the applicable statute of limitations is two years. The incident that

allegedly caused the emotional distress occurred in 2014 (Complaint 11:22-25), more

than two years prior to the filing of the Complaint.

15

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: MWS on 07/25/17


16


Re: Dhaliwal v. San Joaquin Valley Railroad Co., et al.

Case No. 17CECG01073


Motion: Demurrer by Defendants San Joaquin Valley Railroad Co. and

Genesee & Wyoming Railroad Services, Inc. to Plaintiff Dhaliwal’s

Complaint.

Tentative Ruling:

To take the hearing on the demurrer off calendar.

Explanation:

On June 8, 2017, Defendants San Joaquin Valley Railroad Co. and Genesee &

Wyoming Railroad Services, Inc. filed a demurrer to Plaintiff Dhaliwal’s Complaint.

On July 13, 2017, Plaintiff filed a First Amended Complaint nine court days before

the hearing date scheduled for the demurrer in accordance with California Code of

Civil Procedure §§ 472 and 1005. No objection or reply brief has been filed by the

Defendants.

As a result the hearing on the demurrer is ordered off calendar. (People ex rel.

Strathmann v. Acacia Research Corp. (2012) 210 Cal.App.4th 487, 506.)

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

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

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

service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: MWS on 07/25/17


17

Tentative Rulings for Department 502 03

Tentative Ruling

Re: City of Fresno v. Senner

Case No. 17 CE CG 00086

Hearing Date: July 26th, 2017 (Dept. 502)

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

Substandard Building, Appoint a Receiver, and Require

Reimbursements

Tentative Ruling:

To grant the City’s motion for an order to abate substandard building, appoint a

receiver, and require reimbursements. (Health & Safety Code §§ 17980.6, 17980.7.)

Explanation:

Under Health and Safety Code section 17980.6, “If any building is maintained in a

manner that violates any provisions of this part, the building standards published in the

State Building Standards Code relating to the provisions of this part, any other rule or

regulation adopted pursuant to the provisions of this part, or any provision in a local

ordinance that is similar to a provision in this part, and the violations are so extensive

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

endangered, the enforcement agency may issue an order or notice to repair or abate

pursuant to this part.” (Health & Safety Code § 17980.6.)

“Any order or notice pursuant to this subdivision shall be provided either by both

posting a copy of the order or notice in a conspicuous place on the property and by

first-class mail to each affected residential unit, or by posting a copy of the order or

notice in a conspicuous place on the property and in a prominent place on each

affected residential unit.” (Ibid.)

Next, “If the owner fails to comply within a reasonable time with the terms of the

order or notice issued pursuant to Section 17980.6, the following provisions shall apply:

… (c) The enforcement agency, tenant, or tenant association or organization may seek

and the court may order, the appointment of a receiver for the substandard building

pursuant to this subdivision.” (Cal. Health & Safety Code § 17980.7, subd. (c).)

Furthermore, “In appointing a receiver, the court shall consider whether the

owner has been afforded a reasonable opportunity to correct the conditions cited in

the notice of violation.” (Health & Safety Code § 17980.7, subd. (c)(1).)

Also, “The court shall not appoint any person as a receiver unless the person has

demonstrated to the court his or her capacity and expertise to develop and supervise a

18

viable financial and construction plan for the satisfactory rehabilitation of the

building...” (Health & Safety Code § 17980.7, subd. (c)(2).)

In addition, a receiver appointed pursuant to section 17980.7 shall have the

power “[t]o borrow funds to pay for repairs necessary to correct the conditions cited in

the notice of violation … and, with court approval, secure that debt and any moneys

owed to the receiver for services performed pursuant to this section with a lien on the

real property upon which the substandard building is located. The lien shall be

recorded in the county recorder's office in the county within which the building is

located.” (Health & Safety Code § 17980.7, subd. (c)(4)(G).)

Also, “The prevailing party in an action pursuant to this section shall be entitled to

reasonable attorney's fees and court costs as may be fixed by the court.” (Health &

Saf. Code, § 17980.7, subd. (c)(11).)

Furthermore, “If the court finds that a building is in a condition which substantially

endangers the health and safety of residents pursuant to Section 17980.6, upon the

entry of any order or judgment, the court shall do all of the following: (1) Order the

owner to pay all reasonable and actual costs of the enforcement agency including,

but not limited to, inspection costs, investigation costs, enforcement costs, attorney fees

or costs, and all costs of prosecution.” (Health & Safety Code, § 17980.7, subd. (d)(1).)

Section 17980.7, subdivision (d)(1) has been interpreted by the courts to allow an award

of fees and costs to an enforcing agency even where the building is not inhabited, if it

poses a danger other residents nearby. (City and County of San Franscisco v. Jen

(2005) 135 Cal.App.4th 305, 310-312.)

Lastly, “[a]ny enforcement agency which institutes an action or proceeding

pursuant to this article shall record a notice of the pendency of the action or

proceeding in the county recorder's office of the county where the property affected

by the action or proceeding is situated… The notice shall be recorded at the time of

the commencement of the action or proceeding.” (Health & Safety Code, § 17985,

subd. (a).)

Here, the City has given notice of the code violations on the property to the

property owner, and she has failed to take any steps to cure the violations. The

property has numerous code violations, including being dilapidated, being an

attractive nuisance for criminals, homeless, and children, having trash, high weeds and

debris on the premises, lacking smoke or carbon monoxide detectors, having a

damaged electrical panel and damaged wiring, having an inoperable heating system,

having a crumbling stucco exterior, and lacking secure windows and doors. The City

has sent notices to abate the nuisance to the owner, as well as posting notices on the

property, but she has done nothing to eliminate the violations or make the property

safe.

The City has also served the other entities with an interest in the property, namely

the County of Fresno Treasurer-Tax Collector and the Fresno Metropolitan Flood Control

District, with notice of the action. So far, none of the other parties or entities has

opposed the motion or raised any objections to the requested orders.

19

There also seems to be no other feasible remedy for the dangerous condition

posed by the property, since the City has made multiple efforts to obtain compliance

from the owner without success. If the court does not appoint a receiver to abate the

nuisance, it seems very unlikely that the owner will ever repair the violations on her own.

In addition, the proposed receiver appears to be qualified to manage the

property and abate the nuisance, since he has extensive experience in managing

other properties, including properties with substantial code violations. Therefore,

plaintiff has sufficiently established the receiver’s qualifications.

In addition, the City has shown that it recorded a lis pendens on the property

before filing the petition as required under Code of Civil Procedure section 17985,

subdivision (a). (Mott decl., ¶ 1, and Attachment 1 thereto.)

Therefore, the court intends to find that the City has complied with the

requirement of recording a lis pendens on the property, and it intends to grant the

petition to declare the property to be a public nuisance and appoint the receiver to

manage the property.

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


Tentative Ruling

Issued By: DSB on 07/18/17


20

Tentative Rulings for Department 503 (29)

Tentative Ruling

Re: Alvaro Rivera-Diaz v. Alejandro Rivera-Diaz, et al.

Superior Court Case no. 16CECG00180

Hearing date: July 26, 2017 (Dept. 503)

Motion: Plaintiff’s motion for attorney’s fees

Tentative Ruling:

To deny without prejudice.

Note: In the event that oral argument is requested, it will be heard on Tuesday,

August 1, 2017 at 3:30 p.m. in this Department.

Explanation:

Plaintiff has failed to fully and properly comply with Local Rule 2.1.17. The intent

of the local rule is for the Court to conduct a Pretrial Discovery Conference before a

motion under sections 2016.010 through 2036.050, inclusive, of the California Code of

Civil Procedure may be heard. The motion at bar is brought pursuant to Code of Civil

Procedure section 2025.010. Plaintiff’s motion is not a motion to compel initial responses

to interrogatories, request for production, or request for admissions, and so does not fall

within the exception to the local rule. Accordingly, Plaintiff’s motion for attorney’s fees is

denied without prejudice.

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


Tentative Ruling

Issued By: A.M. Simpson on 07/17/17


21


Re: Porter v. Community Regional Medical Center (“CRMC”)


Hearing Date: July 26, 2017 (Department 503)

Motions: By defendant Fresno Community Hospital and Medical Center to

compel further response by Kyle Porter to Form Interrogatories

Tentative Ruling:

To deny, without prejudice to service of the same form interrogatory with a

definition of the term “incident” which limits the inquiry to a discrete occurrence

rather than a years-long history of events. To deny sanctions, as plaintiff failed to

adequately meet and confer.



Explanation:

The instant case alleges a course of conduct over a period of time leading to

injury also occurring and continuing to occur over a longer period of time. Moving

party seeks to compel a further response to a form interrogatory seeking information

about persons with knowledge pertaining to the “incident,” relying on the definition of

that terms as it appears in the Judicial Council form for such discovery queries.

Moving party declined to provide its own definition, although permitted by the

Judicial Council where “where the action arises out of a course of conduct or a series

of events occurring over a period of time.” (See DISC-001, with a revision date of

January 1, 2008.)

The objection is that such form interrogatory therefore essentially asks for all

witnesses to anything having to do with the several year-long course of events at

issue. That falls within in the ambit of an impermissible “omnibus” discovery request,

and no further response need be given. The overbreadth objection is sustained. Flora

Crane Service, Inc. v. Superior Court (1965) 234 Cal. App. 2d 767.

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



22






compel further response by Kyle Porter to Special Interrogatories

Tentative Ruling:

To grant, order a further response without objections (including any

“preliminary statement”), under oath, to be served on or before August 28, 2017. To

grant sanctions in the amount of $360.00, payable by plaintiff and/or his counsel of

record, on or before August 28, 2017



Explanation:

The interrogatory seeks an itemization of damages, not any attorney/client

communication, so that objection/privilege is overruled. A statement of damages

may require some work product, but not the kind that permits an objection. See Code

of Civil Procedure section 2030.010(b):

“An interrogatory may relate to whether another party is making a

certain contention, or to the facts, witnesses, and writings on which a

contention is based. An interrogatory is not objectionable because an

answer to it involves an opinion or contention that relates to fact or the

application of law to fact, or would be based on information obtained or

legal theories developed in anticipation of litigation or in preparation for

trial.”

The work product objection is overruled as well.

As for relevancy, “[F]or discovery purposes, information is relevant to the

‘subject matter’ of an action if the information might reasonably assist a party in

evaluating the case, preparing for trial, or facilitating settlement.” Jessen v. Hartford

Casualty Ins. Co. (5th Dist. 2003) 111 Cal. App. 4th 698, 711-712. The amounts and kinds

of damages plaintiffs are seeking is central to the case, and directly relevant to the

issues tendered by them. Filing of this lawsuit waives any privacy interest in such

information for that reason. Vinson v. Superior Court (1987) 43 Cal. 3d 833; Davis v.

Superior Court (5th Dist. 1992) 7 Cal. App. 4th 1008.

On burden, there is no evidence of such. Where that is the case, the objection

must be overruled. Williams v. Superior Court (July 13, 2017) Supreme Court Case No.

S227228, slip opinion at page 18: “An objection based on burden must be sustained

23

by evidence showing the quantum of work required,” quoting from West Pico Furniture

Co. v. Superior Court (1961) 56 Cal. 2d 407, 417.

Discovery may be ongoing, but trial is in less than six months, and the case is

nineteen months old. Code of Civil Procedure § 2030.220 states: "(b) If an

interrogatory cannot be answered completely, it shall be answered to the extent

possible. (c) If the responding party does not have personal knowledge sufficient to

respond fully to an interrogatory, that party shall so state, but shall make a reasonable

and good faith effort to obtain the information by inquiry to other natural persons or

organizations, except where the information is equally available to the other party.” "A

party cannot plead ignorance to information which can be obtained from sources

under his control." Deyo v. Kilbourne (1979) 84 Cal. 3d 771, 782.

A further response, without any objections, is required.


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

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

Tentative Ruling



24






compel further response by Daniel Porter to Special

Interrogatories

Tentative Ruling:

To grant, ordering a further response without objections or any “preliminary

statement,” by August 9, 2017. To grant sanctions in the amount of $360.00, payable

by plaintiff Daniel Porter and/or his counsel of record, by August 9, 2017.



Explanation:

The names of witnesses who spoke with counsel, unless they did so in the

context of seeking his legal advice, is not protected. As there is no evidence of any

attorney/client relationship between any such witness and plaintiff’s counsel, no

communication is privileged.

The “warning” makes clear that retained experts need not be identified, which

renders the work product objection and the legal conclusion objections without merit.

See Code of Civil Procedure section 2030.010(b):

“An interrogatory may relate to whether another party is making a

certain contention, or to the facts, witnesses, and writings on which a

contention is based. An interrogatory is not objectionable because an

answer to it involves an opinion or contention that relates to fact or the

application of law to fact, or would be based on information obtained or

legal theories developed in anticipation of litigation or in preparation for

trial.”

The question has nothing to do with any financial information, therefore the

claim of financial privacy is overruled.

As for relevancy, “[F]or discovery purposes, information is relevant to the

‘subject matter’ of an action if the information might reasonably assist a party in

evaluating the case, preparing for trial, or facilitating settlement.” Jessen v. Hartford

Casualty Ins. Co. (5th Dist. 2003) 111 Cal. App. 4th 698, 711-712.

The names of any witnesses in the health care profession who voiced this

opinion is highly relevant to the defense of the case, and, as pointed out by

defendant, necessary for discovery planning.

25

On burden, there is no evidence of such. Where that is the case, the

objection must be overruled. See Williams v. Superior Court (July 13, 2017) Supreme

Court Case No. S227228, slip opinion at page 18: “An objection based on burden

must be sustained by evidence showing the quantum of work required,” quoting

from West Pico Furniture Co. v. Superior Court (1961) 56 Cal. 2d 407, 417.

The attempt to designate documents as a source of information is improper

where the response notes that such documents “possibly” have responsive

information. See Code of Civil Procedure section 2030.230:

“If the answer to an interrogatory would necessitate the preparation or

the making of a compilation, abstract, audit, or summary of or from the

documents of the party to whom the interrogatory is directed, and if

the burden or expense of preparing or making it would be substantially

the same for the party propounding the interrogatory as for the

responding party, it is a sufficient answer to that interrogatory to refer to

this section and to specify the writings from which the answer may be

derived or ascertained. This specification shall be in sufficient detail to

permit the propounding party to locate and to identify, as readily as

the responding party can, the documents from which the answer may

be ascertained.”

Admitting that the information may be in a mass of materials, or maybe not, is

an admission that the plaintiff cannot exercise the option provided for by the above

section.

Sanctions: $360.00 is awarded, based on a proportion of the total amount

sought, and the payment of a separate fee for this specific motion.


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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