tentative rulings for june 20, 2017 departments … rulings for june 20, 2017 departments 402, 403,...

Tentative Rulings for June 20, 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).)

14CECG02353 Acosta v. Ayala Inc. et al. (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.

14CECG01472 Gill v. Fresno Community Regional Medical Center is continued to

Thursday, June 22, 2017, at 3:30 p.m. in Dept. 402.

13CECG03350 Old Republic General Insurance Corp. v. Financial Pacific

Insurance Co., et al. is continued to Tuesday, June 27, 2017, at 3:30

p.m. in Dept. 503

________________________________________________________________

(Tentative Rulings begin at the next page)

Tentative Rulings for Department 402


(28) Tentative Ruling

Re: Colorado Boat Broker, Inc. v. Brendel

Case No. 15CECG02252

Hearing Date: June 20, 2017 (Dept. 403)

Motion: Motion to Compel Verified Amended Responses to Form

Interrogatories, Special Interrogatories, and Responses to the

Requests for Production, to Compel the Production of Documents.

Tentative Ruling:

To take the motion off calendar.

NOTE – IF ORAL ARGUMENT IS REQUESTED, IT WILL BE HEARD ON THURSDAY, JUNE

22ND, 2017 AT 3:00 P.M. IN DEPARTMENT 403.

Explanation:

On March 1, 2017, Plaintiff filed a motion to compel further responses to the

discovery served on Defendant. According to the moving papers, Defendant, although

serving timely responses, served responses that were comprised only of objections. The

opposition filed noted that Plaintiff had not complied with Local Rule 2.1.17 requiring a

request for a pretrial discovery conference.

On April 12, 2017, Plaintiff filed a “Notice of Continuance” of the motion to

compel to June 20, 2017.

On that same date, Plaintiff filed a request for pre-trial discovery. No opposition

was filed. Therefore, on May 5, 2017, this Court issued an order on the request, ordering

Defendant to “supply verified responses to the form interrogatories, special

interrogatories and document requests without objections within 15 days of this order.

Should defendant fail to do so, plaintiff may file a motion to compel and for sanctions.”

This was sent by mail to the parties on May 5, 2017. To date, neither party has

filed any paperwork indicating whether Defendant complied with the order or sought

to file a motion to compel compliance with this Court’s May 5, 2017 order. Therefore,

absent such information from the parties, the Court takes the matter off calendar.

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: KCK on 06/19/17

(Judge’s initials) (Date)

(5)

Tentative Ruling

Re: Hernandez v. Diaz

Superior Court Case No: 14 CECG 02272

consolidated with 14 CECG 02289


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

Ortiz;

(2) Approval of Compromise of Claim of Minor Isaac

Ortiz, Jr.; and

(3) Approval of Compromise of Claim of Minor Maria

Guadalupe Ortiz

Tentative Ruling:

To deny each Petition without prejudice.

If oral argument is requested, it will be heard on Thursday, June 22, 2017 in Dept.

403 at 3:00 p.m.

Explanation:

First, the case caption is incorrect on each Petition. Case No. 14 CECG 02289

Ortiz v. Diaz was consolidated with Case No. 14 CECG 02272 Hernandez v. Diaz on

February 19, 2016. The latter case is the lead case. Also, the case number is incorrect

on the Petition of Frances Ortiz.

Second, David Hernandez and Jocelyn Hernandez were not listed in Item 6 of

the Petitions of Isaac Ortiz and Maria Guadalupe Ortiz as passengers in the vehicle

driven by Christine Ledesma.

Third, Item 9c. on the Petition of Frances Ortiz states that it is unknown whether

her limp is permanent or temporary. There must be a recent letter or note from her

doctor regarding her prognosis. In addition, Item 9 must be filled out in some manner

for Isaac Ortiz, Jr. and Maria Guadalupe Ortiz.

Fourth, the “litigation expenses” for each Petitioner must be identified.

Fifth, Martin Taleisnik is identified as the attorney for Frances Ortiz and Isaac Ortiz,

Jr. But, he did not submit a Declaration in support of the amount of attorney’s fees

requested. The Declaration of Burchfield cannot substitute in this manner and thus, is

insufficient. Also, Burchfield is listed as the attorney for Maria Guadalupe Ortiz but the

bar number is that of Taleisnik. This needs to be corrected and a declaration from the

attorney who handled her case must be submitted in support of the amount of

attorney’s fees sought.

Sixth, each Petition lists settlement amounts for the other Plaintiffs that are slightly

different from each other and do not match up with the breakdown set forth in

Attachment 12. These amounts should be the same on each Petition. Therefore, each

Petition will be denied without prejudice.

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

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

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

will constitute notice of the order.

Tentative Ruling

Issued By: KCK on 06/19/17


Tentative Rulings for Department 501 (6)

Tentative Ruling

Re: CACH, LLC v. Aboelreich

Superior Court Case No.: 15CECG01483


Motions: (1) Default prove up;

(2) Court’s statutory dismissal hearing

Tentative Ruling:

Plaintiff CACH, LLC, must bring the items noted below to the hearing to prove-up

the default judgment; otherwise, the Court will dismiss the case, without prejudice, at

the hearing.

Explanation:

Plaintiff must prove-up the default either by bringing to the hearing, a

declaration of someone with personal knowledge of how the original creditor, Bank of

America, N.A., prepares its business records, or Plaintiff may bring one of its own

business records showing the assignment or purchase of the debtor’s account and

testifying that the writing was made in the regular course of its business purchasing or

being assigned debts; that the business record was made at or near the time of the

purchase or assignment; the custodian or other qualified witness testifies as to its identity

and the mode of its preparation; and the sources of information and method and time

of preparation are such as to indicate the trustworthiness of the business records. (Evid.

Code, § 1271.) In either scenario, Plaintiff must also attach to the declaration a copy of

the business records so authenticated. (See Garibay v. Hammat (2008) 161 Cal.App.4th

735, 742-743.)

Plaintiff must also bring to the hearing a completely filled out Judicial Council

form CIV-100. On box 1d on the front page, the name of Defendant Nefez A.

Aboeireich (“Defendant”) must be entered, and Plaintiff must not check box 1e. The

remainder of the Judicial Council form CIV-100 should be filled out exactly as it was on

the previous form CIV-100 filed on April 5, 2017.

Concerning the dismissal of the case for failure to bring the case to trial within

two years, the Court has reviewed the case file and found the following:

This action was filed on April 24, 2015.

Defendant was served by substitute service on August 8, 2015. A proof of service

showing such service was filed on August 19, 2015.

On August 24, 2015, Plaintiff did not appear at the case management

conference.

On October 13, 2015, Plaintiff filed a request for entry of default and a clerk’s

judgment. The default was entered that day; however, the application for clerk’s

judgment was denied.

On October 29, 2015, an attorney made a special appearance on Plaintiff’s

behalf in response to an order to show cause hearing. The hearing was continued to

January 28, 2016.

On October 30, 2015, Plaintiff again applied for a clerk’s judgment. It was denied

again.

On November 30, 2015, Plaintiff filed for a court judgment on declarations. (Cal.

Rules of Court, rule 3.1800.)

On January 28, 2016, the court denied the application, noting the following

defects: (1) box 1d of the Form CIV-100 had not been filled out [listing Defendant’s

name]; no declaration pursuant to Code of Civil Procedure § 585(d) by someone with

personal knowledge had been submitted; no clear copy of the signed contract had

been submitted.

Also on January 28, 2016, another default packet seeking a court judgment was

filed. It was denied on April 14, 2016, with the same reasons as the January 28, 2016,

denial.

On April 28, 2016, there was another order to show cause hearing; the hearing

was continued to June 30, 2016.

On June 30, 2016, there was another order to show cause hearing; the hearing

was continued to September 1, 2016.

On September 1, 2016, there was another order to show cause hearing; the

hearing was continued to October 13, 2016.

There is no minute order from any hearing on October 13, 2016. Instead, a

“notice of calendar setting” was mailed on October 7, 2016, setting an order to show

cause hearing for January 19, 2017.

On October 17, 2016, a “notice of documents returned” document was entered

noting that as of July 1, 2016, documents filed by represented parties were required to

be filed electronically.

On January 5, 2017, a “notice of documents returned” document was entered



On January 11, 2017, a “notice of calendar setting” was mailed, setting an order

to show cause hearing for March 30, 2017.

On February 6, 2017, a “notice of documents returned” document was entered



On March 30, 2017, the minute order from the order to show cause hearing

stated that “judgment submitted to the court on 3/29/17” and continued the OSC

hearing to May 4, 2017.

On April 5, 2017, Plaintiff filed a new application for court judgment on CIV-100,

along with a proposed judgment. No other papers were filed.

On April 25, 2017, the Court again denied the application for default judgment,

noting the same errors as in previous orders: (1) a declaration of someone with personal

knowledge and business records properly authenticated pursuant to Evidence Code §

1271; (2) requesting a default judgment packet to be filed 10 days before today’s

hearing; (3) entering Defendant’s name at box 1d on the front page of the CIV-100

form, and not checking box 1e; (4) alerting Plaintiff to the fact that if it cannot prove up

the judgment at today’s hearing, the court would dismiss the action for delay in

prosecution because it had not been brought to trial or “conditionally settled” within

two years after the action was commenced. (Code Civ. Proc., §§ 583.410, 583.420,

subd. (a)(2); Cal. Rules of Court, rule 3.1340; Tate v. Superior Court (1975) 45 Cal.App.3d

925, 929.) A plaintiff has a duty to exercise reasonable diligence to insure that a case is

brought to trial or other conclusion within statutory time constraints, and that duty

includes a duty to exercise reasonable diligence in obtaining a default judgment after

a clerk’s entry of default. (Hughes v. Kimble (1992) 5 Cal.App.4th 59, 70-71.) The default

judgment procedure is “designed to clear the court’s calendar and files of those cases

which have no adversarial quality.” (Jones v. Interstate Recovery Service (1984) 160

Cal.App.3d 925, 928.)

If Plaintiff fails to prove-up the default judgment at today’s hearing based on the

same failures as before, the Court will dismiss the case, without prejudice, for failure to

obtain a default judgment within two years after the action was commenced, despite

Defendant having been in default for over 18 months.

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



Tentative Ruling

Issued By: MWS on 06/19/17


(5)

Tentative Ruling

Re: Haas et al. v. ZLZR Corporation et al.

Superior Court Case No. Case No: 17 CECG 00404


Motion: Leave to file First Amended Complaint

Tentative Ruling:

To strike the First Amended Complaint filed on May 18, 2017 pursuant to CCP §

436 on the grounds that it was filed without leave.

To deny the motion seeking leave to file a First Amended Complaint without

prejudice as stated infra.

Explanation:

Plaintiffs Thomas A. Haas, Donna Haas and Jayna Haas have filed a motion

seeking leave to file a First Amended Complaint pursuant to CCP §§ 426.50, 473, 576

and CRC Rule 3.1324. See Notice of Motion at page 2 lines 1-3. But, CCP § 426.50

applies to compulsory cross-complaints. This is not the scenario at bench. More

importantly, Thomas A. Haas is deceased and a separate motion seeking leave to

substitute decedent’s representative or successor in interest pursuant to CCP §§ 377.31,

377.32 and 377.33 should have been filed.

CCP § 377.31. Pending action or proceeding; continuance states:

On motion after the death of a person who commenced an action or

proceeding, the court shall allow a pending action or proceeding that

does not abate to be continued by the decedent's personal

representative or, if none, by the decedent's successor in interest.

CCP § 377.32. Statement from successor in interest; information required states:

(a) The person who seeks to commence an action or proceeding or to

continue a pending action or proceeding as the decedent's successor in

interest under this article, shall execute and file an affidavit or a

declaration under penalty of perjury under the laws of this state stating all

of the following:

(1) The decedent's name.

(2) The date and place of the decedent's death.

(3) “No proceeding is now pending in California for administration of the

decedent's estate.”

(4) If the decedent's estate was administered, a copy of the final order

showing the distribution of the decedent's cause of action to the

successor in interest.

(5) Either of the following, as appropriate, with facts in support thereof:

(A) “The affiant or declarant is the decedent's successor in interest (as

defined in Section 377.11 of the California Code of Civil Procedure) and

succeeds to the decedent's interest in the action or proceeding.”

(B) “The affiant or declarant is authorized to act on behalf of the

decedent's successor in interest (as defined in Section 377.11 of the

California Code of Civil Procedure) with respect to the decedent's interest

in the action or proceeding.”

(6) “No other person has a superior right to commence the action or

proceeding or to be substituted for the decedent in the pending action or

proceeding.”

(7) “The affiant or declarant affirms or declares under penalty of perjury

under the laws of the State of California that the foregoing is true and

correct.”

(b) Where more than one person executes the affidavit or declaration

under this section, the statements required by subdivision (a) shall be

modified as appropriate to reflect that fact.

(c) A certified copy of the decedent's death certificate shall be attached

to the affidavit or declaration.

CCP § 377.33. Court orders states:

The court in which an action is commenced or continued under this

article may make any order concerning parties that is appropriate to

ensure proper administration of justice in the case, including appointment

of the decedent's successor in interest as a special administrator or

guardian ad litem.

Here, the Plaintiffs assume that Donna Haas can be substituted and amend the

decedent’s causes of action in a single motion. This is incorrect. She lacks standing to

do so until an order of substitution is filed. Importantly, she neglected to file the

mandatory declaration required by CCP § 377.32. Therefore, the motion will be denied

without prejudice.


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



Tentative Ruling




Re: Sanchez v. Tang, M.D., et al.

Court Case No. 14 CECG 00823


Motion: Community Regional Medical Center’s Motion for Summary

Judgment/Adjudication

Tentative Ruling:

To deny.

Explanation:

Burden on Summary Judgment

In ruling on a motion for summary judgment or summary adjudication, the court

must “consider all of the evidence' and all of the 'inferences' reasonably drawn there

from and must view such evidence and such inferences 'in the light most favorable to

the opposing party.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) In

making this determination, courts usually follow a three-prong analysis: identifying the

issues as framed by the pleadings; determining whether the moving party has

established facts negating the opposing party's claims and justifying judgment in the

movant's favor; and determining whether the opposition demonstrates the existence of

a triable issue of material fact. (Lease & Rental Management Corp. v. Arrowhead

Central Credit Union (2005) 126 Cal.App.4th 1052, 1057-1058.)

The moving party bears the burden of showing the court that the plaintiff 'has not

established, and cannot reasonably expect to establish, a prima facie case ... .'

[Citation.]" (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460.) A

defendant who seeks a summary judgment must define all of the theories of liability

alleged in the complaint and challenge each factually. (Lopez v. Superior Court (1996)

45 Cal.App.4th 705, 714.) Here there are two theories of liability raised by the complaint

direct liability under a theory of medical negligence for the staff and employees of

CRMC, (FAC, pg. 4, ¶ 1) and vicarious liability for the acts of Dr. Minh Tang, alleged to

be “an agent or employee” of CRMC. (FAC, pg. 4, ¶ 2.)

Medical Negligence

Medical providers must exercise that degree of skill, knowledge, and care

ordinarily possessed and exercised by members of their profession under similar

circumstances. (Barris v. County of Los Angeles (1999) 20 Cal.4th 101, 108, fn. 1.) Thus,

in “‘any medical malpractice action, the plaintiff must establish: “(1) the duty of the

professional to use such skill, prudence, and diligence as other members of his

profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate

causal connection between the negligent conduct and the resulting injury; and (4)

actual loss or damage resulting from the professional's negligence.” [Citation.]’”

(Hanson v. Grode (1999) 76 Cal.App.4th 601, 606.)

When defendant in a medical malpractice action moves for summary judgment

and supports motion with an expert declaration opining that his conduct fell within the

community standard of care, he is entitled to summary judgment unless plaintiff comes

forward with conflicting expert evidence. (Munro v. Regents of Univ. of Cal. (1989) 215

Cal.App.3d 977, 983-985.)

CRMC’s Notice of Motion states: “[t]his motion will be made on the grounds

there is no triable issue of material facts as to whether all agents and employees of

Community Regional Medical Center complied with the standard of care in caring for

plaintiff Grecia Sanchez and her infant, Jayden Prudente.” This expansive statement is

not supported by admissible facts.

CRMC has submitted the declaration of Dr. Michael Ross, an

obstetrician/gynecologist who specializes in maternal-fetal medicine. He was asked to

“evaluate the standard of care with respect to Ms. Sanchez’s treatment at CRMC as

well as the cause of the infant’s demise.” (Ross Decl. ¶ 2.) He has opined that “all

nursing care was within the standard of care, including but not limited to the CRMC’s

staff beginning on December 21, 2012.” (Ross Decl. ¶ 6 (emphasis added.)) He is of the

opinion that “CRMC’s staff were not negligent and did not act below the standard of

care in their care and interactions with Ms. Sanchez based upon her symptoms,

examinations, vital signs, course during labor/delivery and Jayden’s fetal heart tracing

results.” (Ibid. (Emphasis added.).) Staff is not defined. He further opined the CRMC

staff appropriately assessed, treated, and communicated their findings to the

physicians. (Ross Decl. ¶ 7.) Accordingly, staff are not physicians. Thus, only the staff

correctly provided the necessary and appropriate medical care to Ms. Sanchez at all

relevant times. In addition, the staff properly assessed and monitored Ms. Sanchez and

her infant and performed the appropriate assessments and procedures throughout the

course of treatment. (Ross Decl. ¶ 7.) Fresno Community Hospital has met its initial

burden for its nurses and staff on summary judgment on this claim, but not its agents

such as Dr. Tang.

Where a defendant in a medical malpractice action presents expert testimony

in support of a summary judgment motion showing that the defendant’s care and

treatment did not fall below the standard of care, the burden shifts to plaintiff to offer

contrary expert testimony demonstrating that the defendant’s care and treatment did

not fall below the standard of care. (Willard v. Hagemeister (1981) 121 Cal.App.3d 406,

412; Jambazian v. Borden (1994) 25 Cal.App.4th 836, 844.) CRMC would have met its

burden on summary adjudication, had its separate statement complied with California

Rule of Court, rule 3.1350 (b) & (d), by identifying the claims it sought summary

adjudication of. However, summary adjudication may not be granted.

Negligence – Vicarious Liability for Physicians

A physician providing services in a hospital may generally be found to be an

ostensible agent of the hospital for purposes of imposing liability on the hospital where

there is (1) conduct by the hospital that would cause a reasonable person to believe

that the physician was an agent of the hospital, and (2) reliance on that apparent

agency relationship by the plaintiff. (Mejia v. Community Hospital of San Bernardino

(2002) 99 Cal.App.4th 1448, 1453.) “Regarding the first element, courts generally

conclude that it is satisfied when the hospital "holds itself out" to the public as a provider

of care.” (Ibid.) “The second element, reliance, is established when the plaintiff ‘looks

to’ the hospital for services, rather than to an individual physician.” (Id. at p. 1454.)

“Thus, unless the patient had some reason to know of the true relationship between the

hospital and the physician--i.e., because the hospital gave the patient actual notice or

because the patient was treated by his or her personal physician--ostensible agency is

readily inferred.” (Id. at pp. 1454-1455.)

Here, CRMC never negated any of these facts with respect to Dr. Tang. Plaintiff’s

contention in the complaint that Dr. Tang acted as CRMC’s agent is uncontradicted.

(See FAC, pg. 4, ¶ 2.)





Tentative Ruling



Tentative Rulings for Department 502 (6)

Tentative Ruling

Re: Central Valley GMC v. Richie Iest Farms, Inc.

Superior Court Case No.: 15CECG03828


Motions: (1) By Plaintiff Central Valley GMC dba Central Valley Truck

Center for summary judgment or, in the alternative,

summary adjudication;

(2) By Plaintiff Central Valley GMC dba Central Valley Truck

Center for summary adjudication of first, third, fourth, sixth,

eighth, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth,

sixteenth, seventeenth, eighteenth, nineteenth, and

twentieth affirmative defenses

Tentative Ruling:

To deny both motions.

Explanation:

First motion—summary judgment on the complaint

Plaintiff has not met its burden on the motion for summary adjudication of the

complaint. “A plaintiff or cross-complainant has met his or her burden of showing that

there is no defense to a cause of action if that party has proved each element of the

cause of action entitling the party to judgment on the cause of action.” (Code Civ.

Proc., § 437c, subd. (p)(1).)

The moving party must address the material facts of the complaint. The moving

party’s declarations must state facts sufficient to establish each element necessary to

sustain a judgment in its favor and unless it does so, summary judgment should be

denied, even though the opposing party files no declarations at all. (Teselle v.

McLoughlin (2009) 173 Cal.App.4th 156, 169.) Here, the complaint seeks $317,141.57 in

the body, and the prayer $319,641.57.

A party’s papers on a motion for summary judgment can raise a triable issue on

their face; that is what Plaintiff Central Valley GMC (“Plaintiff”) here has done. (Mamou

v. Trendwest Resorts (2008) 165 Cal.App.4th 686, 695 [fn. 7]; Conn v. National Can

Corporation (1981) 124 Cal.App.3d 630, 637.)

Here, for the breach of contract cause of action, Plaintiff seeks $467,223.84 (Fact

#13); for the account stated cause of action, Plaintiff seeks $291,909.43 (Fact #23); for

the open book account, Plaintiff seeks both or either, by incorporating facts #13 and 31

(Fact #30 and 31), raising a triable issue on its face. (Mamou v. Trendwest Resorts, supra,

165 Cal.App.4th 686, 695 [fn. 7]; Conn v. National Can Corporation, supra, 124

Cal.App.3d 630, 637.)

Further, the evidence relied upon in the form of the declaration of Teresa Dodd,

a rental manager/leasing administrator with Plaintiff, is inadequate because no business

records are attached to her declaration. (See Garibay v. Hemmat (2008) 161

Cal.App.4th 735, 742-743.) Ms. Dodd specifically states that she is relying on Plaintiff’s

business records upon which her statements are based. (Decl. of Teresa Dodd, ¶¶2-3.)

Her declaration of the amount due at ¶¶14-15 is thus not supported by Plaintiff’s

business records, because they are not attached to her declaration.

Plaintiff’s own papers submitted in support of the motion raise a triable issue of

material fact as to the amount of damages, an element of each of the three causes of

action, requiring the motion to be denied. (Mamou v. Trendwest Resorts, supra, 165

Cal.App.4th 686, 695 [fn. 7]; Conn v. National Can Corporation, supra, 124 Cal.App.3d

630, 637.)

Second motion—summary adjudication of affirmative defenses

Plaintiff Central Valley GMC (“Plaintiff”) has not met its burden on the motion for

summary adjudication of the affirmative defenses. (Code Civ. Proc., § 437c, subd.

(p)(1).) A party moving for summary judgment need no longer disprove affirmative

defenses as part of its burden. (Code Civ. Proc., § 437c, subd. (p)(1); Oldcastle Precast,

Inc. v. Lumbermens Mutual Casualty Co. (2009) 170 Cal.App.4th 554, 565.)

“Summary judgment law in this state … continues to require a defendant moving

for summary judgment to present evidence, and not simply point out that the plaintiff

does not possess, and cannot reasonably obtain, needed evidence. … The defendant

may, but need not, present evidence that conclusively negates an element of the

plaintiff's cause of action. The defendant may also present evidence that the plaintiff

does not possess, and cannot reasonably obtain, needed evidence—as through

admissions by the plaintiff following extensive discovery to the effect that he has

discovered nothing.” (Aguilar v. Atlantic Richfield Company (2001) 25 Cal.4th 826, 854–

855, fn. omitted.) The reason is that the statutory language requires that the motion be

“supported” by evidence. (Ibid.)

A party does not satisfy its burden of proof by producing discovery responses

that do not exclude the possibility that the other party may possess or may reasonably

obtain evidence to submit their claim or defense. (Weber v. John Crane, Inc. (2006) 143

Cal.App.4th 1433, 1441-1442 [Evidence that worker with asbestos was unfamiliar with

defendant’s name, but not showing that worker was unable to recognize its products,

packaging, or logo, did not shift burden.]) “A motion for summary judgment is not a

mechanism for rewarding limited discovery; it is a mechanism allowing the early

disposition of cases where there is no reason to believe that a party will be able to

prove its case.” [Emphasis added.] (Id. at p. 1442.)

Plaintiff did not meet its burden, and the motion must be denied.

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




Tentative Ruling

Issued By: DSB on 06/19/17



Re: Cervantes v. Fuel Delivery Servs., Inc.

Cervantes v. Fuel Delivery Servs., Inc.

Case No. 15CECG01927

16CECG03130


Motion: Motion to Consolidate.

Tentative Ruling:

To grant the motion. Case number 15CECG01927 is to be consolidated with case

number 16CECG03130 for all purposes.

Explanation:

[Note- as of June 16, 2017, no opposition has been filed in this case.]

On June 15, 2015, Plaintiffs in the present case (15CECG01927 (Cervantes I)) filed

a complaint for the wrongful death of Antonio Cervantes from a January 28, 2015

motor vehicle accident. They are heirs of the decedent. Adamary Cervantes, a minor,

was named as a nominal defendant in this case.

On September 26, 2016, Adamary Cervantes filed a lawsuit (16CECG03130

(Cervantes II)) alleging the wrongful death of Antonio Cervantes from the same

accident.

By this motion, Plaintiffs in Cervantes I seek to consolidate the two cases.

Consolidation allows a Court to combine two actions when they involve

common questions of fact or law pending before the same Court. (Code Civ.Proc.

§1048, subd.(a).) The Court “may order a joint hearing or trial of any or all the matters in

issue in the actions, it may order all the actions consolidated and it may make such

orders concerning proceedings therein as may tend to avoid unnecessary costs or

delay.” (Id.) The purpose is to enhance trial court efficiency and to avoid the substantial

danger of inconsistent adjudications. (Todd-Stenberg v. Dalkon Shield Claimants Trust

(1996) 48 Cal.App.4th 976, 978-79.)

There are generally, two types of consolidation, complete and for trial only.

(Sanchez v. Superior Court (1988) 203 Cal.App.3d 1391, 1396.)

Plaintiff here seeks a “complete consolidation” which may be ordered where the

parties are identical and the causes of action could have been joined; the pleadings

are regarded as merged, one set of findings is made, and one judgment is rendered.

(Hamilton v. Asbestos Corp., Ltd. (2000) 22 Cal.4th 1127, 1147-48.)

Here, the motion does not comport with the California Rules of Court concerning

consolidation, which requires that the noticed motion must list all named parties in each

case, the names of those who have appeared and the names of their respective

attorneys of record. (Cal. Rules of Court 3.350, subd.(a).)

Nevertheless, the motion should be granted. The granting or denial of a motion

to consolidate rests in the sound discretion of the court. (Feliner v. Steinbaum (1955) 132

Cal.App.2d 509, 511.) Among the issues to be considered whether to consolidate

actions is whether the cases involve significant common issues, whether the common

issues predominate over individual issues, or whether the risks of jury confusion or the

prejudice to a party outweighed the reduction in time and expense that would result

from consolidation. (Todd-Stenberg v. Dalkon Shields Claimants Trust (1996) 48

Cal.App.4th 976, 970.)

Here, the two cases derive from the same set of facts, have mostly the same

parties (all the parties in the Cervantes II case are parties in the Cervantes I case), and it

appears likely that the individual issues, such as they are, would be identical in the two

cases. There does not appear to be any prejudice that might happen to any party, due

to the lack of any scheduled trial date in either case.

No opposition to the motion has been filed by any party in either case, and it

appears that all the parties in both cases have been served with this motion.

As a result, it appears that the motion should be granted and the cases

consolidated.

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: DSB on 06/19/17




Re: Soares et al. v. Sidhu et al., Superior Court Case No.

16CECG02999


Motion: Demurrer to Second Amended Complaint and Motion to

Strike

Tentative Ruling:

To overrule the demurrer to the second cause of action of the Second Amended

Complaint (“SAC”). (Code Civ. Proc. § 430.10(e).) To deny the motion to strike. (Code

Civ. Proc. § 436.)

Explanation:

Defendant Sidhu demurs to the second cause of action for elder abuse on the

ground that the SAC fails to allege the element of custodial care.

The Elder and Dependent Adult Civil Protection Act (Welfare & Institutions Code

§15600 et. seq.) was enacted by the California Legislature to protect elderly citizens

from egregious acts of abuse and custodial neglect. (Covenant Care v. Superior Court

(2004) 32 Cal.4th 771, 787; Delaney v. Baker (1999) 20 Cal.4th 23, 32-33.)

A claim of neglect under the Elder Abuse Act requires a caretaking or custodial

relationship with the elder. Custodial care means the physician had significant and

ongoing responsibility for attending to one or more of the basic needs of the elder.

(Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 155; Welf. & Inst. Code §

15610.57.) In Winn, the court found that physicians who treated the patient at

outpatient clinics did not have “care or custody” required for “neglect” of a patient

under the Elder Abuse Act.

Beyond the assertion that defendants treated Mrs. Cox at outpatient

“clinics” operated by defendants, plaintiffs offer no other explanation for

why defendants' intermittent, outpatient medical treatment forged a

caretaking or custodial relationship between Mrs. Cox and defendants.

No allegations in the complaint support an inference that Mrs. Cox relied

on defendants in any way distinct from an able-bodied and fully

competent adult's reliance on the advice and care of his or her medical

providers. Accordingly, we hold that defendants lacked the needed

caretaking or custodial relationship with the decedent.

(Winn, supra, at p. 165.)

Neglect based on the “failure to provide medical care for physical and mental

health needs” (Welf. & Instit. Code § 15610.57(b)(2)) assumes that the defendant is in a

position to deprive an elder of medical care. “[I]t is the defendant's relationship with an

elder or a dependent adult – not the defendant's professional standing or expertise –

that makes the defendant potentially liable for neglect.” (Id. at p. 158.)

The mere fact that Dr. Sidhu was decedent's treating physician is not sufficient to

allege a caretaking or custodial relationship. (See Winn, supra, 63 Cal.4th at p. 155.)

The SAC sufficiently alleges a custodial relationship. SAC alleges that Dr. Sidhu had

primary and ongoing responsibility to provide medical care to and to supervise the

nursing care provided to Decedent at Palm Village (SAC ¶ 5), that Dr. Sidhu accepted

responsibility for attending to Decedent’s medical needs, (SAC ¶ 6) and that as

Decedent’s attending physician, Dr. Sidhu had assumed the responsibility of ensuring

Decedent’s care plan was followed (SAC ¶¶ 11-12). The SAC alleges that Decedent

was dependent upon and relied upon Dr. Sidhu for the provision of his ongoing medical

care, medical treatment, medical evaluation, and medical diagnosis and that

Decedent was not physically able to care for his own medical needs as would an able-

bodied, fully competent, non-dependent individual, by reason of the fact Decedent

was a patient confined Palm Village. (SAC ¶ 8.) Plaintiffs allege that by reason of the

relationship between Dr. SIDHU, Palm Village and Decedent, Dr. Sidhu had a continuing

obligation to provide medical care to Decedent and had assumed a substantial care-

taking or custodial role over Decedent. (SAC ¶ 8.)

The court finds these allegations sufficient to allege the element of custodial

care.

Sidhu also moves to strike the punitive damages and heightened remedy

allegations.

“In order to obtain the remedies available in section 15657, a plaintiff must

demonstrate by clear and convincing evidence that defendant is guilty

of something more than negligence; he must show reckless, oppressive,

fraudulent or malicious conduct. The later three categories involve

'intentional’, 'willful', or 'conscious', wrongdoing of a 'despicable' or

'injurious' nature.

'Recklessness' refers to a subjective state of culpability greater than simple

negligence, which has been described as a 'deliberate disregard of a

'high degree of probability' that an injury will occur. Recklessness, unlike

negligence, involves more than mere 'inadvertence, incompetence,

unskillfulness, or failure to take precautions', but rather rises to the level of a

conscious choice of a course of action with knowledge of the serious

danger to others involved in it."

Section 15657.2 can therefore be read as making clear that the acts

proscribed by section 15657 do not include acts of simple professional

negligence, but refer to forms of abuse or neglect performed with some

state of culpability greater than mere negligence."

(Delaney, supra, 20 Cal.4th at pp. 31-32.)

To state facts sufficient to recover punitive damages, a complaint must contain

facts that would indicate evil motive and intent to injure on the part of defendant.

(Ebaugh v. Rabkin (1972) 22 Cal.App.3d 891, 894-95.) Claims for punitive damages must

be specifically pled. (G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.2d 22, 29.) It

is not enough to simply plead in a conclusory fashion that defendants acted with

recklessness, oppression, fraud, or malice. (Cyrus v. Haveson (1976) 65 Cal.App.3d 306,

316-17.) Rather, a plaintiff must specifically illustrating malice on the part of the

defendant. (G.D. Searle, supra, 49 Cal.App.2d 29.)

In Sababin v. Superior Court (2006) 144 Cal.App.4th 81, the plaintiffs were

permitted to maintain their claim for elder abuse when the care facility failed to follow

the patient’s care plan, which resulted in the patient’s injuries and death. The care

plan required checking the patient’s skin condition on a daily basis and notifying the

physician of any problems.

While defendant Sidhu in this case apparently is not an employee of the care

facility, plaintiffs have alleged that the requisite custodial care relationship. As noted

above, the SAC alleges that Sidhu had primary and ongoing responsibility to provide

medical care to and to supervise the nursing care provided to Decedent at Palm

Village (SAC ¶ 5), that Sidhu accepted responsibility for attending to Decedent’s

medical needs, (SAC ¶ 6) and that as Decedent’s attending physician, Sidhu had

assumed the responsibility of ensuring Decedent’s care plan was followed (SAC ¶¶ 11-

12).

Plaintiffs further allege in paragraph 29:

a. Dr. Sidhu had specific knowledge both as to Decedent’s medical

conditions described above and knowledge as to the care plan

developed for Decedent which specifically required checks of his skin

for redness, discoloration and breakdown “every shift” as a result of his

documented “high” risk for skin break down, pain and injury. Dr. Sidhu

also had knowledge of the care plan’s specific requirement that

Defendant’s pain be regularly assessed by “listening to resident’s

description” of his pain, as Decedent was at risk for experiencing

physical pain due to his medical conditions and his risk for skin

breakdown and related injuries;

b. Notwithstanding this knowledge, Dr. Sidhu engaged in a significant

pattern of deliberately ignoring this care plan and withholding medical

care to Decadent by failing and refusing to assess the integrity of his

skin for open wounds and evidence of serious medical conditions as

specifically required by the care plan. Decedent’s chart from Palm

Village contains not a single notation from Dr. Sidhu that reflects any

physical examination of Plaintiff’s feet, nor does it reflect any

description of the medical conditions discovered on April 24, 2015 by

Dr. Javid and documented by Kaweah Delta Hospital nor the

numerous areas of bruising, redness and discoloration on Decedent’s

body found on April 24, 2015 at Kaweah Delta Hospital. All of these

conditions developed while a patient at Palm Village and while

Decedent was under the “continuing care” of Dr. Sidhu. Instead, Dr.

Sidhu engaged in a significant pattern of ignoring, minimizing or

medicating over, Decedent’s continued complaints of pain, without

performing any physical exam or assessment to determine the origin of

such complaints. This repeated pattern and practice by Dr. Sidhu, demonstrates it was the result of a conscious choice of action not to

provide the required medical care to Decedent and/or demonstrates

deliberate indifference by Dr. Sidhu as to Decedent’s medical needs;

Plaintiffs allege that Decedent entered Palm Village and was assigned to Dr.

Sidhu for his ongoing medical needs. At the time of his admission into Palm Village,

Decedent had a physical examination including an examination of the condition of his

skin. The medical records from Palm Village note the presence of bruising on both arms

and abrasions on Decedent’s shins. No other bruise, abrasion, wound, sore or skin

condition existed at the time of his admission to Palm Village. (SAC ¶ 10.) Three weeks

later, Decadent was taken outside of the facility and it was dis covered that Decedent

had an open wound on his heel; bluish/purplish color toes, indicating the potential

development of schemic necrosis (gangrene); and significantly dry and scaley skin on

his feet. The Decedent also had a bluish middle finger and significant bruising on his

coccyx, scrotal region, hands and fingertips. None of these conditions were there prior

to his admission to Palm Village. (SAC ¶ 17.) Decedent’s condition continued to

deteriorate and he ultimately died less than two months later. (SAC ¶ 20.)

Decadent had a care plan that required that his skin be assessed for redness,

discoloration and breakdown “every shift.” It further required that Decedent’s

complaints of pain be assessed by “listening to resident’s description” of his pain. This

care plan was developed as a result of Decedent’s “impaired physical mobility,” and

his high risk for pressure ulcers and pain with his activities of daily living that could

interfere with his comfort. (See SAC ¶ 11.)

In total, the court finds the allegations sufficient to seek the heightened remedies

for elder abuse and punitive damages.

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: A.M. Simpson on 06/19/17
