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Tentative Rulings for June 13, 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).)

15CECG03271 Wample v. Yosemite Wine & Spirit International Trade Group

(Dept. 403) Counsel to report at 3:00 p.m.

15CECG00733 Mason v. Lion Raisins, Inc. (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.

10CECG02633 Northern California Collection Service v. Rodriguez is

continued to Thursday, July 6, 2017 at 3:30 p.m. in Dept. 501.

17CECG00998 City of Fresno v. Rosene et al. is continued to Wednesday,

June 21, 2017 at 3:30 p.m. in Dept. 502.

15CECG02756 Taylor v. California Industrial Rubber Co. is continued to

Tuesday, June 27, 2017 at 3:30 p.m. in Dept. 402.

________________________________________________________________

(Tentative Rulings begin at the next page)

Tentative Rulings for Department 402 (30)

Tentative Ruling

Re: Helm Group LLC v. Seth Depiano

Superior Court Case No. 16CECG03695

Hearing Date: None. See below.

Motion: Default Prove Up

Tentative Ruling:

To Deny. Upon resubmission, Defendants must be defaulted and all supporting

documents must be submitted at least 10 days prior to the hearing.

Explanation:

Code of Civil Procedure section 585: Default is a prerequisite to default

judgment. (Code Civ. Proc., § 585.)

Here, no Defendant is yet in default, therefore Plaintiff’s request for default

judgment is premature.

Fresno County Superior Court, Local Rule 2.1.14: A default packet conforming to

California Rules of Court, rule 3.1800 should be filed with the Clerk at least 10

days prior to the hearing. (Local Rule 2.1.14.) This includes: declaration(s)

conforming to Code of Civil Procedure section 585, evidence proving-up

damages, a proposed judgment and proof of dismissal of DOE defendants.

Here, none of the required documents were submitted to This Court until June 6,

2017 and DOEs have yet to be dismissed. Nonetheless, Plaintiff’s declaration

does not comply with Code of Civil Procedure section 585 because Attorney

Gilmore lacks knowledge of the facts. (Gilmore Dec, filed: 6/6/17.)

This Court also requires a title report and proof of lis pendens in all default actions

for quiet title pursuant to Code of Civil Procedure sections 762.040, subdivision (b)

and 761.010, subdivision (b).

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 06/12/17

(Judge’s initials) (Date

(29)

Tentative Ruling

Re: Laurie Davis v. Oana Mischiu, et al.


Hearing Date: June 13, 2017 (Dept. 402)

Motion: Deem request for admissions admitted; sanctions

Tentative Ruling:

To grant Defendants Mischiu, Pope and Radisphere National Radiology

Group’s motion that the truth of the matters specified in the request for

admissions be deemed admitted as to Plaintiff, unless Plaintiff serves, before the

hearing, a proposed response to the request for admissions that is in substantial

compliance with Code of Civil Procedure sections 2033.210, 2033.220 and

2033.240. (Code Civ. Proc. §2033.280.)

To grant Defendants’ motion for sanctions, but in the reduced amount of

$142.50, as no opposition has been filed. Plaintiff is ordered to pay sanctions in

the amount of $142.50 to LeBeau ● Thelen, LLP, within 30 days after service of this

order.

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




Tentative Ruling



(6)

Tentative Ruling

Re: Baker v. Aryan

Superior Court Case No.: 14CECG01295


Motion: By Plaintiff Michael Baker to tax costs

Tentative Ruling:

To grant, in part, taxing $26,435 in costs, leaving Defendant Henry Eyad

Aryan, M.D., with $31,406.97 in recoverable in costs to be added to the

judgment; without prejudice to the corporate Defendant, Henry E. Aryan, M.D.,

Inc., filing its own memorandum of costs for the $435 filing fee, once it has been

formally dismissed from this case.

Explanation:

Court records indicate that the corporate Defendant, Henry E. Aryan,

M.D., Inc., has never been dismissed from this case, is not a party to the

judgment based on the jury verdict, and has never filed its own memorandum of

costs. Consequently, the Court taxes the $435 filing fee for the corporate

Defendant, without prejudice to it including that cost in its own memorandum of

costs once it has been dismissed from this case. The memorandum of costs here

was filed by the individual Defendant, Henry Eyad Aryan, M.D., only.

The Court will not tax the $424.74 in “ordinary witness fees” as it appears

these expenses were simply listed under the wrong heading in the memorandum

of costs and should have been listed under “deposition costs,” where they are

recoverable. (Naser v. Lakeridge Athletic Club (2014) 227 Cal.App.4th 571, 576-

577.)

The Court taxes the $26,000 in expert witness fees for travel and preparing

for testimony in the amount of 24.5 hours because Government Code section

68092.5, subdivision (a) provides, in relevant part: “The party designating the

expert is responsible for any fee charged by the expert for preparing for the

testimony and for traveling to the place of the civil action or proceeding, as well

as for any travel expenses of the expert, unless otherwise determined by the

court.” The Court does not find that this time is reasonable. The other five hours

are for the expert’s time incurred before the § 998 offer was made on September

30, 2016.





Tentative Ruling




Tentative Ruling

Re: Victoria Ruiz v. Alexander Clay

Superior Court No. 16CECG03362

Hearing Date: Tuesday June 13, 2017 (Dept. 403)

Motion: Defendant Alexander Clay’s Motion for Leave to Amend

Answer

Tentative Ruling:

To Grant.

IF ORAL ARGUMENT IS REQUESTED, IT WILL BE ENTERTAINED ON THURSDAY, JUNE 14,

2017 AT 3:00 PM.

Explanation:

Code of Civil Procedure section 473 authorizes the trial court, in its

discretion, to allow amendments in furtherance of justice. (Code Civ. Proc., §

473; Cherrigan v. City etc. of San Francisco (1968) 262 Cal.App.2d 643, 653; see

also Trower v. City and County of San Francisco (1910) 157 Cal. 762; Redlinger v.

Youle (1958) 157 Cal.App.2d 596.) Where no prejudice is shown to the adverse

party, Courts employ a liberal policy in permitting amendments at any stage.

(Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564; Congleton v. Natl. Union Fire

Ins. Co. (1987) 189 Cal.App.3d 51, 62.) It is of course proper to deny leave when

the proposed amendment or amended pleading is insufficient to state a

defense. (Congleton, supra, 189 Cal.App.3d at 62.) But the preferred course of

action is to allow an amendment to the complaint and then let the parties test its

legal sufficiency in other appropriate proceedings. (Atkinson v. Elk Corporation

(2003) 109 Cal.App.4th 739, 760 citing Kittredge Sports Co. v. Superior Court

(1989) 213 Cal.App.3d 1045, 1048.) It should be noted though, that there is no set

rule governing what should guide the court in permitting amendments to

answers; each case depends on its own peculiar facts. (Price v. Mason-McDuffie

Co. (1942) 50 Cal.App.2d 320, 325.)

Here, Defendant seeks amendment to allege eight additional defenses.

All factors weigh in his favor. First, there is no indication of prejudice. Each new

defense is legally cognizable, relates to the same general set of facts, and is

consistent with Defendant’s initial answer. Second, the case is still in the initial

phases. Discovery has only just begun and trial is not set until July 23, 2018

(Larrivee Dec, filed: 4/27/17 ¶4), so there is plenty of time for additional discovery.

Finally, Defendant offers a reasonable excuse for the delay- he was in pro per

when he filed his initial answer and only recently hired an attorney. (Id. at ¶3; see

also Sub. of Attny filed: 2/16/17.) Motion granted.





Tentative Ruling

Issued By: KCK on 06/12/17

(Judge’s initials) (Date)

(5)

Tentative Ruling

Re: Kirby et al. v. Wathen Castanos Project General

Partners, LLC et al. and related Cross-Actions

Consolidated Case No. 13 CECG 01351(Lead Case)


Motion: By Kenyon Plastering to determine the good faith of

its settlement with Wathen Castanos pursuant to CCP

§ 877.6

Tentative Ruling:

To grant the motion pursuant to CCP § 877.6. The proposed order will be

signed.

IF ORAL ARGUMENT IS REQUESTED, IT WILL BE ENTERTAINED ON THURSDAY, JUNE 14,

2017 AT 3:00 PM.

Explanation:

On May 1, 2013, Plaintiffs Michael and Cathy Kirby along with the other

213 Plaintiffs filed a complaint against Wathen Castanos, Inc. and Wathen

Castanos Hybrid Homes alleging various causes of action based upon

construction defects in 68 single-family homes located in Clovis, CA. On

December 30, 2013, the Defendant filed a Cross-Complaint seeking indemnity,

etc. against numerous subcontractors, including is Kenyon Plastering, Inc.

On April 28, 2017, Cross-Defendant Kenyon Plastering, Inc. filed a motion

seeking a determination that its settlement with Cross-Complainant Wathen

Castanos is in good faith pursuant to CCP § 877.6. Whether the settlement was

within the "good faith ballpark" is to be evaluated on the basis of information

available at the time of settlement, including:

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

proportionate liability;

2. The amount paid in settlement;

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

liable after a trial;

4. The allocation of the settlement proceeds among plaintiffs;

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

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

and the plaintiffs aimed at making the nonsettling parties pay more than

their fair share.

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

500.

The Declaration of Paul Walsh is submitted in support of the motion. He

indicates that Kenyon Plastering reached a settlement with Wathen Castanos in

the amount of $26,000 in exchange for a release of all claims and an order

determining the good faith of this settlement. See Declaration in its entirety. The

settlement as presented by the moving party falls within the Tech-Bilt factors. The

moving party has met its burden. See City of Grand Terrace v. Sup. Ct. (Boyter)

(1987) 192 Cal.App.3d 1251, 1261. No opposition has been filed. The motion will

be granted.

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

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

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

service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: KCK on 06/12/17


Tentative Rulings for Department 501

(2)

Tentative Ruling

Re: Torres v. JD Home Rentals



Motion: Petition to Compromise Minor’s Claim

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(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 06/12/17


03

Tentative Ruling

Re: Hanna v. Ruiz

Case No. 16 CE CG 03534

Hearing Date: June 13th, 2017 (Dept. 501)

Motion: Defendant Ruiz’s Demurrer to Complaint

Tentative Ruling:

To sustain defendant Ruiz’s demurrer to the entire complaint, without

leave to amend, for failure to state facts sufficient to constitute a cause of

action. (Code Civ. Proc. § 430.10, subd. (e).)

Explanation:

First, to the extent that plaintiff seeks a continuance of the hearing on the

demurrer, it does not appear that a continuance is justified here. Plaintiff claims

that he has not been served with the demurrer and that he has moved to a

different address, but he admits that he has not been successful in filing a

change of address with the court. Apparently, the clerk rejected the change of

address for various problems. Plaintiff is clearly aware of the problems with his

change of address, but he has not cured them. Thus, it does not appear that

defendant has improperly served plaintiff. Rather, defendant served plaintiff at

his address of record with the court. Indeed, plaintiff is obviously aware of the

fact that the demurrer has been filed, since he has filed the request to continue

the hearing. Therefore, it does not appear that there has been any failure to

give plaintiff notice of the demurrer.

Also, while plaintiff claims that he has not been able to view the contents

of the demurrer because of a “software problem”, the entire scanned copy of

the demurrer is available on the court’s website. It is not clear why plaintiff has

not been able to review the demurrer, which has been posted online since it was

filed. If plaintiff is having trouble viewing the documents on his present

computer, he could presumably use a different computer to see the documents.

In addition, although plaintiff contends that his job on a cruise ship will

make it impossible for him to attend the hearing on the demurrer, he has not

proposed any alternative dates in the near future that would allow him to attend

the hearing. Plaintiff states that he will be on a cruise from June 5th to late

August, and suggests that the hearing be reset for an unknown date sometime in

September. However, this would result in a roughly three-month delay in

resolving the demurrer, which seems unreasonable and unfair to the defendant.

Plaintiff still has a responsibility to prosecute his own case diligently, even if doing

so may create conflicts with his job. It would not be fair to defendant Ruiz to

require him to wait for several more months to resolve the issues raised in the

present demurrer, which could potentially result in dismissal of the claims against

him. Therefore, the court will not grant a continuance of the demurrer hearing

date.

Next, with regard to the merits of the demurrer, all three of plaintiff’s

causes of action alleged against defendant Ruiz are barred by the statute of

limitations. The statute of limitations for attorney professional negligence claims is

one year from the date the plaintiff discovers or should have discovered the

facts underlying the malpractice claim. (Code Civ. Proc. § 340.6, subd. (a).)

“Discovery of any appreciable and actual harm from the attorney's negligent

conduct establishes a cause of action and begins the running of the limitations

period.” (Laird v. Blacker (1992) 2 Cal.4th 606, citing Budd v. Nixen (1971) 6 Cal.3d

195, 201.)

Here, Ruiz’s alleged negligence occurred during the period when Ruiz

represented plaintiff in the period of April 6th, 2011 to September of 2013.

Furthermore, the plaintiff’s own complaint alleges that he became aware of the

facts underlying the alleged malpractice by Ruiz no later than September of

2013, when the trial court issued its statement of decision in the Erganian case.

(Complaint, ¶ 38.) Thus, the statute started to run on the plaintiff’s malpractice

claim no later than September of 2013, more than three years before the filing of

the present case on October 31st, 2016. As a result, the statute has run on the

malpractice claim against Ruiz.

In an effort to plead around the statute of limitations, plaintiff has alleged

that he did not exhaust his remedies with regard to his claims until September

16th, 2016, when the Court of Appeal issued its decision affirming the trial court’s

judgment. (Complaint, ¶ 39) However, the fact that there was an appeal

pending does not establish that the statute was tolled.

Under section 340.6, there are only a few circumstances that will toll the

running of the statute for attorney malpractice, including (1) the plaintiff’s need

to prove actual innocence in a criminal case, (2) plaintiff has not yet sustained

an actual injury, (3) the attorney continues to represent the plaintiff regarding

the subject matter of the malpractice, (4) the attorney willfully conceals the

wrongful act or omission, and (5) the plaintiff is under a legal or physical disability

that prevents him from filing an action. (Code Civ. Proc. § 340.6, subd. (a)(1)-

(4).) Here, there is no evidence that any of these tolling provisions apply to the

plaintiff’s malpractice claim against Ruiz. Plaintiff was not prosecuted criminally

in the Erganian case, he does not claim that his injury occurred at some time

after September of 2013, he does not claim any intentional concealment of the

wrongful act or omission by Ruiz, there is no allegation that Ruiz represented him

after September of 2013, and plaintiff has not shown that he was under any legal

or physical disability that prevented him from filing his complaint. Indeed, the

fact that plaintiff did file a prior malpractice action against Ruiz in 2014 based on

the same facts shows that he was not unable to bring a complaint before 2016.

Thus, none of the statutory tolling provisions apply here.

Plaintiff contends that his pending appeal of the trial court’s judgment

must toll the statute because, if his appeal had been successful, it would have

rendered the malpractice claims moot. However, the California Supreme Court

in Laird v. Blacker, supra, rejected this argument. In Laird, the Court held that a

claim for attorney malpractice accrues when the client suffers appreciable harm

from the malpractice, and the client discovers or should have discovered the

harm. (Laird, supra, 2 Cal.4th at 611.) The Court also held that the client suffers

“actual harm” when a final judgment is entered against him or her, not when the

appeal of the judgment is denied. (Id. at p. 615.)

Therefore, plaintiff’s contention that he could not have brought his

malpractice claims until after the appeal was decided is without merit. The

relevant date of injury for purposes of the malpractice claim was the date of

entry of the judgment, not the date on which the Court of Appeal issued its

decision affirming the judgment. (Laird, supra, at p. 615.) Here, the judgment in

the Erganian case was entered on September 4th, 2013. Plaintiff admits that he

was aware of the entry of judgment, and consequently he was aware of the

alleged injury and its cause on September 4th, 2013. (Complaint, ¶ 38.)

Therefore, the plaintiff’s claim for malpractice accrued on that date, and he had

no more than one year from September 4th, 2013 in which to file his malpractice

complaint. However, plaintiff did not actually file his present complaint until

October 31st, 2016, over three years after his claim accrued. Therefore, plaintiff’s

malpractice claim against Ruiz is time-barred.

The negligent misrepresentation claim is also time-barred. Negligent

misrepresentation falls under the two-year statute of limitations for negligence

claims, as it is considered a form of negligence rather than an intentional tort like

actual fraud. (Ventura County Nat. Bank v. Macker (1996) 49 Cal.App.4th 1528,

1531.) Here, it is not clearly alleged exactly what misrepresentations Ruiz made

that form the basis for the negligent misrepresentation claim, or when he made

them. Thus, it is difficult to determine precisely what the nature and basis for

plaintiff’s claims might be.

Regardless of which representations Ruiz made, however, the facts in the

complaint show that plaintiff suffered his injury from defendant’s alleged

negligent misrepresentations by no later than September of 2013, when the trial

court entered the judgment against him in the Erganian case. (Complaint, ¶ 38.)

However, plaintiff did not file his complaint in the present case until over three

years after the date on which he suffered harm from the alleged

misrepresentations. Also, plaintiff must have known that the judgment had been

entered against him and that it was caused by Ruiz’s alleged incompetence,

since he was actively participating in the case when the judgment was entered

and the judgment was served on him through his attorney. Thus, the negligent

misrepresentation claim is time-barred.

The breach of fiduciary duty claim against Ruiz is also time-barred. The

usual statute of limitations for breach of fiduciary duty claims is three or four

years, depending on whether the breach is alleged to be fraudulent or non-

fraudulent. (American Master Lease LLC v. Idanta Partners, Ltd. (2014) 225

Cal.App.4th 1451, 1479.) However, in attorney malpractice cases, the statute of

limitations for breach of fiduciary duty claims is one-year under Code of Civil

Procedure section 340.6, not three or four years. (Lee v. Hanley (2015) 61 Cal.4th

1225, 1236-1237; Stoll v. Superior Court (1992) 9 Cal.App.4th 1362, 1368-1369.)1

As discussed above, the plaintiff has alleged that he discovered Ruiz’s

negligence and breach of fiduciary duty when the trial court entered its

judgment against him in September of 2013. (Complaint, ¶ 38.) Plaintiff filed his

present complaint on October 31st, 2016, more than one year after the date on

which he discovered the alleged breach of fiduciary duty. Therefore, the claim

for breach of fiduciary duty is time-barred, and the court intends to sustain the

demurrer to it.

Furthermore, the court intends to sustain the demurrer to the entire

complaint as to defendant Ruiz without leave to amend, as it does not appear

that there is any way for plaintiff to cure the defect in the complaint even if he

were given leave to amend.

Finally, defendant’s request to strike the prayer for punitive damages is

moot in light of the fact that the court intends to sustain the demurrer to the

entire complaint without leave to amend. Also, the request to strike the prayer is

improper, as defendant has not brought a motion to strike under Code of Civil

Procedure section 435.

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

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

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

Tentative Ruling

Issued By: MWS on 06/12/17


1 In the motion to post security, the court reached the opposite conclusion and found

that the breach of fiduciary claim was not time-barred because the four-year statute

applied. However, on further research, the court finds that the correct statute here is

one year under section 340.6, as this is a breach of fiduciary duty claim based on

attorney malpractice. (Lee v. Hanley (2015) 61 Cal.4th 1225, 1236-1237.)

Tentative Rulings for Department 502

2 Tentative Ruling

Re: Melvin v. Hudson



Motion: Motion to compel plaintiff to provide initial verified responses

to form interrogatories, set three, special interrogatories, set

two, request for production of documents, set two and

sanctions

Tentative Ruling:

To grant Defendants’ motion to compel plaintiff Melvin Swofford to

provide initial verified responses to form interrogatories, set three, special

interrogatories, set two, and request for production of documents, set two.

Code of Civil Procedure sections 2030.290(b), 2031.300(b).) Plaintiff Melvin

Swofford to provide complete verified responses to form interrogatories, set

three, special interrogatories, set two and request for production of documents,

set two, without objection within 10 days after service of this order.

To grant defendants’ motion for sanctions. Melvin Swofford is ordered to

pay monetary sanctions to Tucker Chui Hebesha Seymour PC in the amount of

$675.00 within 30 days after service of this order. CCP §§2030.290(c), 2031.300(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: _______DSB_______ on _06/05/17

(Judge’s Initials) (Date)

(20) Tentative Ruling

Re: Osburn et al. v. Fresno Community Hospital and

Medical Center et al., Superior Court Case No.

16CECG02068


Motion: Motions for Summary Judgment by Defendants

Jennifer Conti and Fernando Macias

Tentative Ruling:

To continue the hearing to August 16, 2017, at 3:30 p.m. in Department

502 pursuant to Code Civ. Proc. § 437c(h).

Explanation:

Code Civ. Proc. § 437(h) provides:

If it appears from the affidavits submitted in opposition to a motion

for summary judgment or summary adjudication or both that facts

essential to justify opposition may exist but cannot, for reasons

stated, then be presented, the court shall deny the motion, or order

a continuance to permit affidavits to be obtained or discovery to

be had or may make any other order as may be just. The

application to continue the motion to obtain necessary discovery

may also be made by ex parte motion at any time on or before the

date the opposition response to the motion is due.

Plaintiff’s affidavits must show (1) the facts to be obtained are essential to

opposing the opposition, (2) there is reason to believe such facts may exist, and

(3) the reasons why additional time is needed to obtain these facts. (Wachs v.

Curry (1993) 13 Cal.App.4th 616, 623.)

Granting a request for continuance is “virtually mandated” when a

summary judgment opponent makes the requisite showing. (Bahl v. Bank of

America (2001) 89 Cal.App.4th 389, 395.) The Legislature intended for such

continuances to be granted liberally. (Id.) Indeed, Bahl suggests that when the

required showing is made a continuance is required even in the absence of a

showing of diligence. (Id. at 398: “But when a party submits an affidavit

demonstrating that facts essential to justify opposition may exist but have not

been presented to the court because the party has not been diligent in

searching for the facts through discovery, the court's discretion to deny a

continuance is strictly limited.”)

Plaintiffs request a continuance of the motion in order to take the

depositions of moving parties, which has not yet occurred due to a calendaring

error and the fact that the associate handling this matter left the firm. The court

will grant plaintiffs’ request for a 60-day continuance.

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

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

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

constitute notice of the order.

Tentative Ruling

Issued By: _______DSB_______ on _06/06/17



Re: Memovich v Mendoza

Court Case No. 15CECG03117

Hearing Date: June 13, 2017 (Department 502)

Motion: by defendants, cross-complainants, and cross-defendants

Moya Trucking and Mendoza for leave to file 4th Amended

Cross-Complaint

Tentative Ruling:

To grant. To require that moving parties file and serve a separately bound

Fourth Amended Cross-Complaint by June 16, 2017. Explanation:

"That trial courts are to liberally permit such amendments, at any stage of

the proceeding, has been established policy in this state since 1901." Hirsa v.

Superior Court for City of San Mateo (1981) 118 Cal. App. 3d 486 at 489-490,

emphasis in original. "A pleading may be amended at the time of trial unless the

adverse party can establish prejudice . . . and a trial court abuses its discretion

by prohibiting such an amendment when it would not prejudice another party."

Brady v. Elixir Industries (1987) 196 Cal. App. 3d 1299, 1303.

Plaza Insurance cannot bring another action against Wood to recover

money it paid to Moya Trucking. Allstate Insurance Company v. Mel Rapton, Inc.

(2000) 77 Cal. App. 4th 901. Its claim is derivative of its position as Moya’s insurer,

and dependent on Moya’s rights against Wood. No need to continue the trial is

set forth, and no prejudice otherwise appears. There is no opposition.

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: _______DSB_______ on _06/06/17


03

Tentative Ruling

Re: Warmerdam v. Bankson

Case No. 17 CE CG 00700

Hearing Date: June 13th, 2017 (Dept. 502)

Motion: Defendants’ Motion to Change Venue

Defense Counsel’s Motion to be Relieved as Counsel

Tentative Ruling:

To grant the defendants’ motion to change venue to Stanislaus County.

(Code Civ. Proc. § 396b.) To order plaintiff to pay the costs of transfer. (Code

Civ. Proc. § 399, subd. (a).)

To deny defense counsel’s motion to be relieved as counsel, without

prejudice, for failure to submit a proof of service showing service of the motion

on his clients. (Cal. Rules of Court, Rule 3.1362, subd. (d).)

Explanation:

Motion to Change Venue: Defendants have moved promptly for a

change of venue before filing an answer, demurrer, motion to strike on the

ground that the action was brought in the wrong county. (Code Civ. Proc. §

396b.) Under Code of Civil Procedure section 392, subdivision (a)(2), “Subject to

the power of the court to transfer actions and proceedings as provided in this

title, the superior court in the county where the real property that is the subject of

the action, or some part thereof, is situated, is the proper court for the trial of the

following actions: … (2) For the foreclosure of all liens and mortgages on real

property.” (Code Civ. Proc., § 392, subd. (a)(2).) Even if the plaintiff brings other

claims against the defendant, if the plaintiff seeks foreclosure of a lien against

real property, the case must be brought in the county where the real property is

located. (Case v. Kirkwood (1931) 119 Cal.App.2d 207, 210-211.)

In the present case, plaintiff has alleged a claim for foreclosure of a lien

against real property in Stanislaus County, as shown by the lis pendens plaintiff

filed with the court. Thus, the proper county for litigating the real property claim,

as well as any related claims, is Stanislaus County, not Fresno County. Plaintiff

himself does not dispute that he is seeking to foreclose on real property located

in a different county, and in fact plaintiff has filed a notice of non-opposition to

the motion for change of venue. Thus, plaintiff apparently concedes that he

brought the action in the wrong county, and that venue should be changed to

Stanislaus County, where the real property is located. Therefore, the court

intends to order the case transferred to Stanislaus County. It will also order

plaintiff to pay all costs associated with the transfer. (Code Civ. Proc. § 399,

subd. (a).)

Motion to be Relieved as Counsel: Defense counsel has not provided

sufficient evidence that he served his clients with notice of the motion before the

hearing. Under Rule of Court 3.1362, subdivision (d), “The notice of motion and

motion, the declaration, and the proposed order must be served on the client

and on all other parties who have appeared in the case. The notice may be by

personal service, electronic service, or mail.” (Cal. Rules of Court, Rule 3.1362,

subd. (d).)

Here, defense counsel has provided a form declaration stating that he

served his clients with the motion to be relieved as counsel by mail, and that he

confirmed by a conversation within the last 30 days that the address to which he

sent the notice was current. However, there is no proof of service showing when

service was actually made, or to which address the notice was sent. The proof

of service filed with the court only shows service on the plaintiff’s counsel, not

defense counsel’s own clients, so it is insufficient to establish that the clients were

given notice of the hearing.

Therefore, since it is not clear that the motion was actually served on the

clients before the hearing, the court intends to deny the motion without

prejudice.

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



Tentative Ruling

Issued By: _______DSB_______ on _06/08/17



Tentative Ruling

Re: The Neil Jones Food Company v. Gutierrez

Superior Court Case No.: 15CECG03859


Motion: Demurrer to first amended complaint by Defendant

Salvador Gutierrez dba Sal’s Construction Company

Tentative Ruling:

The Court declines to rule on the demurrer and takes it off calendar for

failure to file a proof of service of the re-notice of the motion.

Explanation:

This demurrer was originally set for hearing on May 3, 2017, but taken off

calendar to permit the parties to meet and confer as required by Code of Civil

Procedure section 430.41.

On May 4, 2017, Defendant Salvador Gutierrez dba Sal’s Construction

Company (“Defendant”) filed a meet and confer declaration and a “re-notice”

of the demurrer; however, Defendant failed to file a proof of service of the new

hearing date on Plaintiff. Proof of service must be filed no later than five court

days before the hearing. (Cal. Rules of Court, rule 3.1300(c).) As there is no

indication that Plaintiff has received notice of today’s hearing, the Court cannot

rule on the demurrer and takes it off calendar.





Tentative Ruling

Issued By: A.M. Simpson on 06/12/17



Re: Herold v. James

Case No. 14CECG03898


Motion: By Plaintiffs and Cross-Defendants Robert Herold and Kim

Herold, as Trustees of the RT and KM Herold Living Trust, to set

aside settlement agreement.

Tentative Ruling:

To grant the motion.

The Court thereby sets a trial setting conference for Tuesday, July 11, 2017,

at 3:30 p.m. in Department 503.

Explanation:

Settlement Agreements are governed by the legal principles applicable

to contracts generally. (Folsom v. Butte County Ass’n of Governments (1982) 32

Cal.3d 668, 677.) “The want of performance of an obligation, or of an offer of

performance, in whole or in part, or any delay therein, is excused by the

following causes, to the extent to which they operate: 1) When such

performance or offer is prevented or delayed by . . .the operation of law, even

though there may have been a stipulation that this shall not be an excuse.” (Civil

Code §1511.)

“A contract must be so interpreted as to give effect to the mutual

intention of the parties as it existed at the time of contracting, so far as the same

is ascertainable and lawful.” (Civil Code §1636.)

“A thing is impossible in legal contemplation when it is not

practicable; and a thing is impracticable when it can only be done at an

excessive and unreasonable cost. This does not mean that a party can

avoid performance simply because it is more costly than anticipated or

results in a loss. (Ibid.) Impracticability does not require literal impossibility

but applies when performance would require excessive and

unreasonable expense. Similarly, where performance remains possible,

but the reason the parties entered the agreement has been frustrated by

a supervening circumstance that was not anticipated, such that the

value of performance by the party standing on the contract is

substantially destroyed, the doctrine of commercial frustration applies to

excuse performance.”

(Habitat Trust for Wildlife, Inc. v. City of Rancho Cucamonga (2009) 175

Cal.App.4th 1306, 1336.)

According to the moving party, California Law prohibits the parties from

moving the lot line to the position agreed to in the settlement agreement

because moving the lot line requires the approval of the City of Fresno, which will

not provide that approval. Therefore, the moving party is not merely claiming an

increase in cost, it is claiming the actual impossibility of a condition precedent to

the settlement agreement.

This position appears to have been conceded to by Defendant who filed

a non-opposition. Because Plaintiff has made a showing that the performance of

the contract is legally impossible, and Defendant has apparently conceded that

issue without objection, the motion is granted.

To the extent Defendant objects to the motion, it is to Plaintiff’s request in

the Notice of Motion and Motion “for such other relief the Court deems proper

and/or necessary: 1. Trial [sic]; 2. The Motion for Attorney’s Fees [sic]; and 3.

Hearing on the Form and Entry of Judgment.” Since no other actions by the

Court were requested, the Court will limit its order to setting aside the settlement

agreement and setting a trial setting conference. The motion is therefore

granted.

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

of Civil Procedure section 1019.5, subdivision (a), no further written order is



Tentative Ruling



(29)

Tentative Ruling

Re: Nick Bellasis, et al. v. Fresno Land Company, et al.



Motion: Plaintiffs’ motion for leave to amend complaint

Tentative Ruling:

To deny without prejudice. (Calif. Rules of Court, rule 3.1324(b).)

Explanation:

A motion to amend must be accompanied by a separate declaration.

(Calif. Rules of Court, rule 3.1324(b).) The declaration “must” specify: (1) the

effect of the amendment; (2) why the amendment is necessary and proper; (3)

when the facts giving rise to the amended allegations were discovered; and (4)

the reasons why the request for amendment was not made earlier. (Ibid.)

Plaintiffs’ motion is accompanied by the declaration of counsel, however the

declaration fails to specify what is required by the rule. Accordingly, the motion is

denied without prejudice.





Tentative Ruling



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