tentative rulings for june 21, 2018 departments 402, … · when a defendant challenges...

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Tentative Rulings for June 21, 2018

Departments 402, 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).)

17CECG00426 Ghanbari v. Wagner (Dept. 402)

15CECG01086 Castaneda v. Yates (Dept. 402)

16CECG01420 Valenzuela v. County of Fresno (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.

________________________________________________________________

(Tentative Rulings begin at the next page)

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Tentative Rulings for Department 402

(2)

Tentative Ruling

Re: Tillinghast v. Shenzhen IVPS Technology Co. Limited dba

SMOK et al.

Superior Court Case No: 16CECG00599

Hearing Date: June 21, 2018 (Dept. 402)

Motion: By Defendant, Shenzhen IVPS Technology Co. Limited dba

SMOK, Motion to Quash Service of Summons and Complaint

Tentative Ruling:

To grant the motion. Service of summons upon Shenzhen IVPS Technology Co.

Limited dba SMOK filed April 20, 2018 is quashed.

Explanation:

Code of Civil Procedure §418.10 authorizes a motion to quash service of

summons on the grounds that the court lacks jurisdiction. This embodies any of the

basic defects – no jurisdiction, no valid service. Plaintiff is a foreign corporation and the

method of service utilized by the plaintiff did to comply with Code of Civil Procedure

§413.10(c). Failure to comply with the Hague Convention renders service on foreign

defendant void. See Floveyor Internat., Ltd. v. Superior Court (1997) 59 Cal.App.4th 789.

When a defendant challenges jurisdiction by bringing a motion to quash, the

burden is on the plaintiff to prove the existence of jurisdiction by proving, inter alia, the

facts requisite to an effective service. Coulston v. Cooper (1966) 245 Cal.App.2d 866,

868; Dill v. Berquist Const. (1994) 24 Cal.App.4th 1426, 1439-40. Plaintiff has note met this

burden as he does not oppose the motion to quash.

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: JYH on 06/20/18

(Judge’s initials) (Date)

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(29)

Tentative Ruling

Re: Zou, et al. v. Tree of Life, LLC, et al.

Case no. 17CECG03636

Hearing Date: None.

Motion: Strike

Tentative Ruling:

To take off calendar, as no moving papers have been filed.

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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(5)

Tentative Ruling

Re: Josh Dansby, Jr. v. Sierra Meadows Senior Living, LLC

Superior Court Case No. 18 CECG 00406


Motion: Trial Preference Setting

Tentative Ruling:

To deny the motion.

Explanation:

Background

Plaintiff was a resident at Defendant’s residential care facility for elderly persons

with impaired memory. He was twice attacked by his roommate. On January 31, 2018,

he filed a Complaint alleging causes of action for elder abuse, negligent hiring and

supervision and assault and battery. On March 1, 2018, Plaintiff filed a motion seeking

trial preference. Opposition and a reply have been filed.

Trial Setting Preference

CCP § 36 states in relevant part:

(a) A party to a civil action who is over 70 years of age may petition the court for a

preference, which the court shall grant if the court makes both of the following findings:

(1) The party has a substantial interest in the action as a whole.

(2) The health of the party is such that a preference is necessary to prevent prejudicing

the party's interest in the litigation.

(c) Unless the court otherwise orders:

(1) A party may file and serve a motion for preference supported by a declaration of

the moving party that all essential parties have been served with process or have

appeared.

(2) At any time during the pendency of the action, a party who reaches 70 years of

age may file and serve a motion for preference.

(f) Upon the granting of such a motion for preference, the court shall set the matter for

trial not more than 120 days from that date and there shall be no continuance beyond

120 days from the granting of the motion for preference except for physical disability of

a party or a party's attorney, or upon a showing of good cause stated in the record.

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Any continuance shall be for no more than 15 days and no more than one

continuance for physical disability may be granted to any party.

Pursuant to CCP § 36(a), if the court finds (1) the party over the age of 70 has a

substantial interest in the action as a whole, and (2) the party's health warrants

preference to prevent prejudicing the party's interest in the litigation, the court will grant

a motion for preferential trial setting. It is irrelevant that the granting of the motion may

result in inconvenience to the court or other litigants or may prevent the completion of

discovery or other pretrial matters. [Swaithes v Superior Court (1989) 212 Cal.App.3d

1082, 1085-1086.] Cases entitled to this preference must be set for trial ahead of other

cases. See Miller v Superior Court (1990) 221 Cal.App.3d 1200, 1206-1212. An affidavit

submitted in support of the motion may be signed by the party's attorney based on

information and belief as to the party's medical diagnosis and prognosis. The affidavit is

not admissible for any purpose other than the motion for preference. [CCP §36.5.]

Merits

Plaintiff must meet two requirements for trial setting preference. First, he must

prove that he is 70 years of age or older. In support of this element, he requests judicial

notice of his senior identification card issued by the DMV. It is attached to the

Declaration of Powers as Exhibit 2. Technically, judicial notice can only be taken of the

fact that the DMV issued the card to the Plaintiff. See Evidence Code § 452(c).

However, the card appears to be a “self-authenticating” writing. See Evidence Code §

1453. Therefore, the card is sufficient as evidence of his age. The objections will be

overruled.

Second, he must prove that his “health warrants preference to prevent

prejudicing the party's interest in the litigation.” See CCP § 36(a). In support, he

submits the Declaration of Shahab Attarchi, M.D. Dr. Attarchi is a hospitalist. He is

board certified in internal medicine.

Dr. Attarchi opines that based upon “my education, training and experience, I

conclude that there exists an increased and substantial medical probability that he will

not survive more than six months.” See ¶ 12. But, as in the prior motion, Dr. Attarchi

does not describe his experience with elderly patients. He is not the Plaintiff’s physician

of record. He has examined the Plaintiff once, on February 21, 2018.

The doctor’s opinion as to Mr. Dansby’s prognosis appears to be based upon the

presence of multiple conditions. But, the Plaintiff’s heart attack occurred 28 years ago.

His stroke was 9 years ago. He received a pacemaker 4 years ago. As for the Plaintiff’s

increased risk of falling due to the removal of his right eye, this appears to be common

risk for most elderly people. Ultimately, Dr. Attarchi’s opinion is insufficient to support a

trial preference setting within 120 days. To reiterate, preference to a party over the age

of 70 is not automatic. As a policy consideration, most persons over the age of 70 will

have health conditions that adversely affect them. But, these conditions must be

serious enough to warrant a trial setting within 120 days. Here, the evidence is

insufficient. Therefore, the motion will be denied.

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

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

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

the clerk will constitute notice of the order.

Tentative Ruling



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(24) Tentative Ruling

Re: Nelson v. Northbrook Indemnity Company

Court Case No. 18CECG00476


Motion: Northbrook Indemnity Company’s Motion to Dismiss Claimant

Robert Knight’s Uninsured Motorist [Arbitration] Action, With

Prejudice, For Failure to Comply with Court Order, or in the

Alternative for Issue Sanctions, and Request for Monetary Sanctions

Tentative Ruling:

To deny. The court’s order entered on March 19, 2018, is vacated nunc pro tunc,

based on the failure of moving party to prove service of its Request for Pretrial Discovery

Conference.

Explanation:

For sake of clarity, Northbrook Indemnity Company will be referred to as

“Respondent” and Robert Knight will be referred to as “Claimant.”

Pursuant to Insurance Code section 11580.2, subdivision (f)(1), the superior court

has exclusive jurisdiction over discovery disputes for uninsured and underinsured

motorist arbitration. (Miranda v. 21st Century Ins. Co. (2004) 117 Cal.App.4th 913, 926

(“Miranda”).) That statute states that “all rights, remedies, obligations, liabilities and

procedures set forth in Article 3 [of the Civil Discovery Act] shall be available to both the

insured and the insurer,” including the power to issue sanctions, up to and including

dismissing the arbitration as a terminating sanction. (Ins. Code § 11580.2, subd. (f);

Miranda at p. 926.) In Miranda, the court also clarified that service of discovery and

motions concerning discovery via mail notice is sufficient; there is no need to serve

Claimant via personal service in order to acquire in personam jurisdiction over him in

order to make orders concerning discovery. (Id. at pp. 927-928.)

The court’s Order on Pretrial Discovery Conference issued on March 19, 2018,

was predicated on Mr. Knight having been properly served. However, on closer

inspection, the proof of service attached to the request form left both the date of

service and the date of the signature under penalty of perjury blank (“February ____,

2018”). Without adequate proof that Mr. Knight had been served, the order must be

vacated.

Another reason this motion must be denied is that there is no proof that Mr.

Knight received any notice of that order. The clerk’s proof of service attached to it

indicates service only on Gary C. Harvey, counsel for Respondent. Without any proof

that he was made aware of the order to comply within 20 days, no sanctions of any

kind are appropriate.

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Also, the Authorization form respondent has provided for Mr. Knight to sign

appears to be overbroad as to time and subject matter. As respondent points out, Mr.

Knight has put his back injuries and pain in issue, and the relevant time period would be

whatever period of time before the accident he indicated he sought treatment from

the VA for this condition, and probably a reasonable time after the accident. As it

stands now, respondent appears to seek all of his medical records, as to any and all

medical issues. On future motion, Respondent must address this issue.



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


Tentative Ruling



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(5)

Tentative Ruling

Re: Hamilton v. James Yates et al.

Superior Court Case No. 10 CECG 03520


Motion: By Plaintiff seeking appointment of trial counsel

Tentative Ruling:

To deny the motion.

Explanation:

Defendant sums up the motion at bench succinctly. “Hamilton attempts to establish a

right to appointed counsel by relying on fifteenth-century English common law and a due-

process weighing of interests under Mathews v. Eldridge (1976) 424 U.S. 319. Despite these

arguments, California and federal courts have consistently found that indigent plaintiffs in civil

actions do not have a right to appointed counsel.” See Defendant’s Memorandum of Points

and Authorities in opposition at page 8 lines 12-19 citing inter alia Turner v. Rogers (2011) 564 U.S.

431 and Storseth v. Spellman (9th Cir. 1981) 654 F.2d 1349, 1353. Plaintiff can only present policy

arguments and innovative interpretations of federal and state cases. But, the end result is the

same. There is no authority directly on point that would permit the Court to appoint counsel at

the public’s expense. The motion will be denied.

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



Tentative Ruling



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(2)

Tentative Ruling

Re: Cunha et al. v. Christy et al.

Superior Court Case No. 15CECG02554


Motion: Petition to Compromise a 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 06/20/18


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Tentative Rulings for Department 502 (29)

Tentative Ruling

Re: Cruz v. Abdelaziz



Motion: Compel

Tentative Ruling:

To continue to Tuesday, July 24, 2018.

Explanation:

It appears that Plaintiff is agreeable to producing the requested documents and

appearing for deposition. (See opp., p. 1.) Accordingly, the Court continues the hearing

on the instant motion to July 24, 2018, to allow the parties time to resolve the issues

raised in the motion to compel, without the Court’s intervention unless, ultimately, such

is needed.

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: DSB on 06/12/18


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2 Tentative Ruling

Re: Cruz v. Abdelaziz and related cross-action



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

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

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

admitted and for monetary sanctions

Tentative Ruling:

To grant defendant Mel Abdelaziz’s motion to compel plaintiff Frank Cruz to

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

set one, and request for production of documents, set one. (Code Civ. Proc., §§

2030.290, subd. (b) and 2031.300, subd. (b).) Frank Cruz to provide complete verified

responses to all discovery set out above, without objection within 10 days after service

of this order.

To deny defendant Mel Abdelaziz’s motion that the truth of the matters

specified in the requests for admission, set one, be deemed admitted as to plaintiff

Frank Cruz. The evidence before the court shows that plaintiff served, before the

hearing, a 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 Civ. Proc.,

§2033.280.)

To grant defendant Mel Abdelaziz’s motion for monetary sanctions. Frank Cruz is

ordered to pay sanctions in the amount of $1,140.00 to the Yarra Law Group within 30

days after service of this order. (Code Civ. Proc., §§2030.290, subd. (c), 2031.300, subd.

(c) and 2033.280, subd. (c).)



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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(28) Tentative Ruling

Re: Bustos v. Reed

Case No. 17CECG03107


Motion: By Plaintiff Annabell Bustos to Set Matter for Jury Trial.

Tentative Ruling:

On the Court’s own motion, the Court vacates the trial date of September 19,

2018 and all associated statutory deadlines. The Court will set a Trial Setting Conference

for Thursday, July 12, 2018 at 3:30 p.m. in Department 502 of this Court. All discovery

deadlines will be computed from the trial date set at that conference.

The motion is denied as moot.

Explanation:

On May 14, 2018, this Court issued an order setting a court trial in this matter for

September 19, 2018 and deeming the non-appearance by the parties to have waived

jury trial. Because Defendant had filed jury fees at the same time the answer was filed,

and after the date set for the initial case management conference, the right to jury was

not waived. (Code Civ.Proc. §631, subdivision (c)(4).)

Therefore, on the Court’s own motion, the Court vacates the trial date of

September 19, 2018 and all associated statutory deadlines. The Court will set a Case

Management and Trial Setting Conference for Thursday, July 12, 2018 at 3:30 p.m. in

Department 502 of this Court. All discovery deadlines will be computed from the trial

date set at that conference. The motion is therefore denied as moot.

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



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03

Tentative Ruling

Re: Allstate Northbrook Indemnity Co. v. Luna



Motion: Defendant Luna’s Demurrer to First Amended Complaint

Tentative Ruling:

To overrule defendant Luna’s demurrer to the first amended complaint, in its

entirety. (Code Civ. Proc. § 430.10, subd. (e).) To order defendant to file his answer to

the complaint within 10 days of the date of service of this order.

Explanation:

Defendant Luna demurs to the causes of action for conversion and replevin,

contending that plaintiff Allstate has not alleged sufficient facts to constitute a cause of

action. “The elements of a conversion cause of action are (1) plaintiffs' ownership or

right to possession of the property at the time of the conversion; (2) defendants'

conversion by a wrongful act or disposition of plaintiffs' property rights; and (3)

damages.” (Baldwin v. Marina City Properties, Inc. (1978) 79 Cal.App.3d 393, 410.)

Here, Allstate has alleged that Luna wrongfully acquired possession of the

subject Porsche from Irigoyen on September 25, 2017, and that Irigoyen lacked title to

the vehicle because Allstate was the vehicle’s legal owner at the time. (FAC, ¶ 13.)

Since that time, Luna has been, and now is, in wrongful possession of the property in

violation of Allstate’s right to immediate and exclusive possession. (Ibid.) Luna has

refused to surrender possession of the vehicle to Allstate, and has converted it to his

own use without Allstate’s authority and against Allstate’s rights. (Id. at ¶ 14.) Thus, Luna

has converted Allstate’s property by exercising dominion and control over it despite

having no legal authority to do so. (Ibid.) As a result, Allstate has been damaged in the

amount of $37,826.56. (Id. at ¶ 15.)

Therefore, Allstate has alleged all of the facts necessary to show the existence of

the elements of a conversion claim. Allstate has alleged that it owned the property,

that Luna has converted and wrongfully withheld the property from Allstate, and that

Allstate was damaged as a result. As a result, Allstate has stated a valid claim for

conversion.

Nevertheless, Luna argues that Allstate cannot state a claim for conversion

because Allstate has admitted that Luna obtained a “valid final judgment” from this

court stating that the car belonged to Luna, and thus Luna’s retention of the car was

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not wrongful and cannot constitute conversion. However, Luna’s argument ignores the

facts alleged earlier in the amended complaint, in which Allstate alleged that Irigoyen

had already transferred title to the car to Allstate long before the purported settlement

between her and Luna, and before the court entered the judgment declaring Luna to

be the owner of the car. (FAC, ¶¶ 8, 9.)

According to Allstate’s complaint, Irigoyen transferred title to the car to Allstate

on August 25, 2016, after Irigoyen reported the car stolen and Allstate paid Irigoyen

$37,826.56 for the value of the car. (Id. at ¶ 8.) It was not until April 20, 2017 that

Irigoyen signed the settlement agreement with Luna, stating that Luna was the sole

owner of the car. (Id. at ¶ 9.) The court then entered judgment based on the

settlement agreement on September 25, 2017. (Ibid.) Also, Allstate was not a party to

the case and was not aware of its existence. (Ibid.)

Thus, by the time Irigoyen signed the settlement with Luna that purported to

grant ownership of the car to Luna, Allstate had already become the owner of the car,

and Irigoyen had no right to grant ownership to Luna. As a result, according to the

allegations of the first amended complaint, Irigoyen’s agreement to transfer ownership

of the car to Luna was ineffective. Likewise, the court’s judgment approving the

settlement was also ineffective to transfer title to Luna.

Furthermore, because Allstate alleges that it was not joined as a party to the

action and did not have any knowledge of its existence, it appears that the judgment

may be void for lack of jurisdiction over a necessary party to the action. (Code Civ.

Proc. § 389; Alameda County. v. Clifford (1960) 187 Cal.App.2d 714, 719–720.)1

Assuming these facts are true, as the court must when ruling on a demurrer, the fact

that a judgment was entered in the other action granting Luna ownership over the car

does not mean that Luna actually had the legal right to possess the car as against

Allstate, which was the owner of title to the vehicle. Consequently, even though

Allstate has conceded that Luna has a judgment granting him ownership to the car,

Allstate has still alleged a valid claim for conversion based on the allegation that it had

a prior and superior claim to ownership of the car. Therefore, the court intends to

overrule the demurrer to the conversion cause of action.

Likewise, Allstate has also stated facts sufficient to state a claim for replevin. A

complaint that alleges that plaintiff was the owner of the property and had right to

immediate possession of the property when the action began, and that the property

was wrongfully in the possession of the defendant, states a valid cause of action for

replevin. (Stockton Morris Plan Co. v. Mariposa County (1950) 99 Cal.App.2d 210, 234.)

Here, Allstate has alleged that it has legal title and the right to immediate possession of

the Porsche, and that Luna wrongfully has possession of the Porsche and refuses to

return it to Allstate. (FAC, ¶¶ 8-11, 17, 18.) Therefore, Allstate has alleged sufficient facts

to state a claim for replevin.

1 Indeed, the court in the related action has already granted an order setting aside the

judgment based on failure to join and serve another necessary party to the action, so the

judgment in that case is no longer in effect. However, that order is now on appeal, so it is not

clear whether Luna can rely on the judgment in the interim.

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Also, while Luna contends that the existence of the judgment in the related

action means that he has not wrongfully withheld the car from Allstate and thus Allstate

cannot state a valid claim for replevin, this argument fails for the same reasons

discussed above. Allstate has alleged enough facts to show that it had legal title to the

car before the judgment was entered, and that the judgment may be void due to

Luna’s failure to join Allstate as an indispensable party to the action. As a result, the

existence of the judgment granting ownership of the car to Luna does not necessarily

mean that Allstate cannot state a claim for replevin. Consequently, the court intends

to overrule the demurrer to the second cause of action.

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: KAG on 06/15/18


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(2)

Tentative Ruling

Re: Vasquez v. Aimhigh Group LLC et al.



Motion: Aimhigh Group LLC’s motion to determine the good faith of the

settlement reached with the plaintiff

Tentative Ruling:

To grant the motion, finding that the settlement between defendant Aimhigh

Group LLC and plaintiff is in good faith.

Explanation:

The current motion is uncontested. If uncontested, the burden is slight. A

“barebones” showing of the settlement and a brief description of the dispute is

sufficient. (City of Grand Terrace v. Superior Court (1987) 192 Cal.App.3d 1251; Tech-Bilt

v. Woodward-Clyde & Assoc. (1985) 38 Cal.3d 488, 499.) Defendant Aimhigh Group

LLC has made the required barebones showing.

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




Tentative Ruling



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03

Tentative Ruling

Re: Hite v. AGI Manufacturing, Inc.



Motion: Defendants’ Motion to Transfer Venue and Request for

Monetary Sanctions

Tentative Ruling:

To grant defendants’ motion to transfer venue to San Joaquin County. (Code

Civ. Proc. §§ 395, subd. (a); 396b, subd. (a).) To grant defendants’ request for

monetary sanctions against plaintiffs’ counsel Daniel Geoulla, in the amount of $1,140.

(Code Civ. Proc. § 396b, subd. (b).) Plaintiffs’ counsel shall pay sanctions to defendants

within 30 days of the date of service of this order. Plaintiffs shall also pay the costs of

transferring the action. (Code Civ. Proc. § 399, subd. (a).)

Explanation:

Under Code of Civil Procedure section 395, subdivision (a), “[i]f the action is for

injury to person or personal property or for death from wrongful act or negligence, the

superior court in either the county where the injury occurs or the injury causing death

occurs or the county where the defendants, or some of them reside at the

commencement of the action, is a proper court for the trial of the action.” Also, under

section 396b, subdivision (a), a defendant may move to transfer venue to the proper

court where the action has been filed in the wrong court. “Upon the hearing of the

motion the court shall, if it appears that the action or proceeding was not commenced

in the proper court, order the action or proceeding transferred to the proper court.”

(Code Civ. Proc. § 396b, subd. (a).)

In addition, under section 396b, subdivision (b), “[i]n its discretion, the court may

order the payment to the prevailing party of reasonable expenses and attorney's fees

incurred in making or resisting the motion to transfer whether or not that party is

otherwise entitled to recover his or her costs of action.” “In determining whether that

order for expenses and fees shall be made, the court shall take into consideration (1)

whether an offer to stipulate to change of venue was reasonably made and rejected,

and (2) whether the motion or selection of venue was made in good faith given the

facts and law the party making the motion or selecting the venue knew or should have

known.” (Code Civ. Proc. § 396b, subd. (b).)

Furthermore, “[i]f the transfer is sought solely, or is ordered, because the action or

proceeding was commenced in a court other than that designated as proper by this

title, those costs and fees, including any expenses and attorney's fees awarded to the

defendant pursuant to Section 396b, shall be paid by the plaintiff before the transfer is

made.” (Code Civ. Proc. § 399, subd. (a).)

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Here, the action was clearly filed in the “wrong county” for the purposes of

venue. Plaintiffs are alleging claims based on personal injury arising out of a car

accident that occurred on “Highway 21 by Brannan Island Rd., San Joaquin, CA.”

However, there is no Highway 21 in Fresno or anywhere else in California, and plaintiffs’

counsel concedes that the accident actually occurred on Highway 12 near Lodi, which

is in San Joaquin County. Defendants also resided in San Joaquin County at the time

the action was commended. Therefore, the action should have been filed in San

Joaquin County Superior Court. Since defendants have raised a timely objection to

venue and moved to transfer the case to San Joaquin County, the court intends to

grant the motion to change venue.

In addition, the court intends to grant the defendants’ request for sanctions

against plaintiffs’ attorney for his unreasonable refusal to stipulate to a change of

venue. Defense counsel first contacted plaintiffs’ counsel on February 15, 2018, and

pointed out that the complaint incorrectly described the accident location and the

case should have been filed in San Joaquin Superior Court based on the actual

location of the accident and the residences of defendants. (Meyers decl., ¶ 5.)

Plaintiffs’ counsel admitted that he had made a mistake in transposing the digits of the

highway number, and that he would be willing to stipulate to a change of venue.

(Ibid.) However, plaintiffs’ counsel then failed to answer further attempts to contact

him about transferring venue. (Id. at ¶ 6.) Eventually, on April 10, 2018, defense counsel

sent plaintiffs’ counsel an email with an attached proposed stipulation to change

venue, and indicated that he needed to sign the stipulation by April 11 or defendants

would file a motion to change venue. (Ibid.) The same day, plaintiffs responded by

requesting some changes to the proposed stipulation, and requesting that the parties

split the costs of the transfer. (Ibid.) On April 11, defense counsel sent a revised version

of the stipulation as requested, but refused to split costs. (Ibid.) So far, plaintiffs’ counsel

has not signed and returned the proposed stipulation. (Id. at ¶ 7.)

Thus, sanctions against plaintiffs’ counsel are warranted. While plaintiffs’ counsel

did not affirmatively refuse to sign the stipulation to transfer venue, and in fact he

indicated that he would be willing to stipulate to the transfer, he nevertheless failed to

sign the proposed stipulation that was sent to him in April, even after defense counsel

made the requested revisions to it. He also took the position that the parties should split

the cost of transferring the case, even though it was plaintiffs’ counsel’s admitted

mistake that made the transfer necessary in the first place. It is unclear why plaintiffs’

counsel believes that defendants should pay for half the cost of transferring the action

when they had nothing to do with the decision to file the action in the wrong county.

In addition, despite plaintiffs’ counsel’s implication to the contrary, defense

counsel gave plaintiffs ample time to sign and return the revised stipulation, and in fact

defense counsel waited over a month after sending the proposed stipulation to

plaintiffs’ counsel before she filed the motion to transfer venue. Thus, it appears that

plaintiffs’ counsel effectively refused to sign the stipulation by unreasonably insisting that

the parties split costs, demanding minor revisions to the stipulation, and then failing to

sign and return the stipulation for over a month even after the revisions were made.

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Also, the decision to file the action in Fresno County rather than San Joaquin

County does not appear to have been the result of a reasonable, good faith mistake

based on the facts that plaintiffs’ counsel knew or should have known at the time of

filing. Plaintiffs’ counsel contends that the mistake in filing the action was made in good

faith based on the transposed digits of the highway number. However, the mistake in

naming the highway where the accident occurred does not explain the decision to file

the action in Fresno County. As previously discussed, there is no “Highway 21” in Fresno

County, or anywhere else in California. Nor does Highway 12 run through Fresno. Thus,

the mistake in transposing the digits does not explain why counsel believed the action

should be filed in Fresno.

Also, if counsel had done any research at all, including a simple Google search,

he would have quickly learned that the accident location was not in Fresno County.

Indeed, the accident location is about 150 miles from Fresno. Therefore, plaintiffs’

counsel’s mistake in filing the action in the wrong county was not reasonable based on

the facts that he knew or should have known if he had done even basic research, and

he is consequently subject to sanctions for filing the action in the wrong county and

refusing to stipulate to transfer the action even after the mistake was identified by

defense counsel.

However, the court intends to reduce the amount of sanctions requested to a

more reasonable amount. Defense counsel requests for up to $2,280 in sanctions if she

has to file a reply and appear at oral argument. This amount includes several hours of

time to travel to the hearing from Pleasanton, even though counsel could appear by

Court Call. Therefore, the court will only impose sanctions based on 6 hours of attorney

time billed at $190 per hour, or $1,140 in total sanctions against plaintiffs’ counsel.

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



21

(5)

Tentative Ruling

Re: Laycook v. Fresno Unified School District



Motion: By Defendant to dismiss

Tentative Ruling:

To grant the motion pursuant to CCP § 581(f)(2).

The moving party is directed to submit to this court, within 7 days of service of the

minute order, a proposed judgment dismissing the action as to Defendant.

Explanation:

On February 21, 2018, the Court sustained Defendant’s general demurrer to

Plaintiff’s complaint with leave to amend. (See Minute Order filed on February 21, 2018

and served on February 22, 2018.) The Court permitted Plaintiff to file an amended

pleading within 10 days of notice of the ruling pursuant to CRC Rule 3.1320(g). An

additional five days for mailing is allowed pursuant to CCP § 1013(a).

On May 16, 2018, Defendant filed a motion to dismiss on the ground that Plaintiff

has failed to file an amended pleading. No opposition to the motion has been filed.

When a demurrer has been sustained with leave to amend, but no amendment

has been made within the time allowed by the court, the court may dismiss the action

on motion of either party. (CCP § 581(f)(2)); see Robbins v. Los Angeles Unified School

District (1992) 3 Cal.App.4th 313, 318. Here, no amended pleading has been filed.

Therefore, the motion will be granted.

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




Tentative Ruling



tentative rulings for june 21, 2018 departments 402, … · when a defendant challenges...

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