tentative rulings for may 7, 2009 - fresno superior court · 2019-05-08 · 3 (2) tentative ruling...

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Tentative Rulings for May 9, 2019

Departments 403, 501, 502, 503

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

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

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

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

10CECG03520 Hamilton v. Yates et al. (3:00 p.m. in 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.

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

al. is continued to Tuesday, May 21, 2019 at 3:30 p.m. in Dept. 503.

17CECG02954 Harold J. Smith, et al. v. Lynn Louise Margulis, et al. is continued to

Tuesday May 14, 2019 at 3:30 p.m. in Dept. 403.

18CECG04286 Best Agri-Marketing, Inc. v. Golden Star Dairy, LLC is continued to

Thursday, May 16, 2019 at 3:30 p.m. in Dept. 501.

18CECG04112 Wells Fargo Equipment Finance, Inc. v. All American Logistics &

Distribution, Inc., et al. is continued to Wednesday, May 15, 2019, at

3:30 p.m., in Dept. 503.

________________________________________________________________

(Tentative Rulings begin at the next page)

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Tentative Rulings for Department 403 (19) Tentative Ruling

Re: Ramirez v. Harris Ranch Beef Company

Court Case No. 16CECG04103

Hearing Date: May 9, 2019 (Dept. 403)

Motion: By plaintiffs for class certification and preliminary approval of class

settlement

Tentative Ruling:

To grant and order that class notice (as revised) be mailed no later than May 31,

2019. Opt-outs and objections must be postmarked/filed no later than July 15, 2019.

The status conference set for May 9, 2019 is vacated. A hearing for final approval is set

for August 28, 2019 at 3:30 p.m. in this Department. Papers for such hearing, and a

separate motion for attorneys’ fees and costs, with detailed billing records and

receipts/invoices for costs claimed, must be filed no later than August 7, 2019.

Explanation:

The parties have added the following language is added to paragraph E.l of the

Settlement “This Release of Claims does not encompass any claims for failure to pay

overtime wages, any claims for failure to provide meal periods, or any claims for failure

to provide rest periods.” The class notice is also to be changed to so reflect.

A witness from Harris Ranch Beef Company and the class representative provide

testimony to demonstrate the time spent donning and doffing personal protective

equipment is between one and three minutes for all workers.

The parties have met the evidentiary requirements of Amchem Prods., Inc. v.

Windsor (1997) 521 U.S. 591 and In re Tobacco II Cases (2009) 46 Cal. 4th 298 for

certification of the following settlement class: “all persons who, at any time between

December 27, 2012 and December 15, 2018, worked as a non-exempt employee for

Defendant in California and were required to wear protective clothing or equipment."

The parties have also provided sufficient evidence of the settlement’s fairness

and reasonableness to permit it to be preliminarily approved for presentation to the

absent class members.

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

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

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

Tentative Ruling

Issued By: RTM on 5/1/19 .

(Judge’s initials) (Date)

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(2)

Tentative Ruling

Re: In re Corbin Pruitt

Superior Court Number: 19CECG01230


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, 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: Carrillo v. GM Financial


Hearing Date: If oral argument is timely requested between 3:00 and 4:00 p.m. on

May 8th the hearing will be held on Thursday, May 16th at 3:30 p.m.

in Dept. 403

Motion: Motion by Defendant AmeriCredit Financial Services, Inc., dba GM

Financial (erroneously sued as GM Financial) to Dismiss Complaint

for Plaintiff’s Failure to Amend

Tentative Ruling:

To grant. (Code Civ. Proc., § 581, subd. (f)(2).

Explanation:

Defendant moves to dismiss the complaint, with prejudice, since plaintiff failed to

amend the complaint within the time allowed. (Code Civ. Proc., § 581, subd. (f)(2)

[defendant has right to obtain order dismissing action with prejudice once demurrer is

sustained with leave to amend and plaintiff fails to amend within time given]; Cano v.

Glover (2006) 143 Cal.App.4th 326, 330 [after time elapses, plaintiff can no longer

voluntarily dismiss without prejudice].)

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

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

will constitute notice of the order.

Tentative Ruling



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(03)

Tentative Ruling

Re: Huff v. Sierra Meadows Senior Living, LLC

Case No. 18CECG03644


Motion: Motion to Substitute Decedent’s Successor in Interest Crystal

Stansberry as Plaintiff

Tentative Ruling:

To grant the motion to substitute decedent’s successor in interest Crystal

Stansberry as plaintiff. (Code Civ. Proc. § 377.32.)

Explanation:

Ms. Stansberry moves to substitute herself into the action as plaintiff in place of

her mother, as her mother has now died. First of all, Ms. Stansberry is correct that the

plaintiff’s causes of action survive even after her death. “Except as otherwise provided

by statute, a cause of action for or against a person is not lost by reason of the person's

death, but survives subject to the applicable limitations period.” (Code Civ. Proc., §

377.20, subd. (a).) Also, “A pending action or proceeding does not abate by the death

of a party if the cause of action survives.” (Code Civ. Proc., § 377.21.) In addition,

“[t]he death of the elder or dependent adult does not cause the court to lose

jurisdiction of a claim for relief for abuse of that elder or dependent adult.” (Welf. & Inst.

Code, § 15657.3, subd. (c).) Here, plaintiff has brought claims for elder abuse and

neglect as well as negligent hiring and retention, so these claims survive her death and

do not abate.

However, in order to prosecute the causes of action, another person must be

substituted into the action in place of the deceased plaintiff. Under Welfare and

Institutions Code section 15657.3, subdivision (d),

[A]fter the death of the elder or dependent adult, the right to commence or

maintain an action shall pass to the personal representative of the decedent. If

there is no personal representative, the right to commence or maintain an action

shall pass to any of the following, if the requirements of Section 377.32 of the

Code of Civil Procedure are met:

(A) An intestate heir whose interest is affected by the action.

(B) The decedent's successor in interest, as defined in Section 377.11 of the Code

of Civil Procedure.

(C) An interested person, as defined in Section 48 of the Probate Code, as

limited in this subparagraph… (Welf. & Inst. Code, § 15657.3, subd. (d).)

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“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.” (Code Civ. Proc., § 377.31.)

“For the purposes of this chapter, ‘decedent's successor in interest’ means the

beneficiary of the decedent's estate or other successor in interest who succeeds to a

cause of action or to a particular item of the property that is the subject of a cause of

action.” (Code Civ. Proc., § 377.11.)

Under Code of Civil Procedure section 377.32,

(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. (Code Civ. Proc. 377.32.)

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“Because a trial cannot proceed without adverse parties, judgment cannot be

given for or against a decedent, or for or against the decedent’s personal

representative, until the personal representative has been made a party by

substitution.” (4 Witkin, Cal. Procedure, Pleading (5th ed. 2008) § 259, p. 334.)

In the present case, Ms. Stansberry has now filed her supplemental declaration,

which states that she is the daughter of plaintiff Addie Huff, who died on November 2,

2018 in Fresno, California. (Stansberry decl., ¶ 1.) She also attaches a certified copy of

plaintiff’s death certificate. (Exhibit 1 to Stansberry decl.) She also states that she is “the

beneficiary of the estate of my mother, ADDIE HUFF, the decedent in the above-

captioned litigation who died without a will or a trust.” (Id. at ¶ 2.)

“I am a ‘Successor in Interest’ to ADDIE HUFF as that term is defined in Code of

Civil Procedure §377.11 and I succeed to the to the [sic] decedent’s interest in the

pending action or other proceeding.” (Id. at ¶ 4, italics in original.) She goes on to

state that, “There is no other person who has a superior right to commence the action

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

proceeding.” (Id. at ¶ 5.)

“Additional beneficiaries of the Estate of ADDIE HUFF include my father Bob Huff

and four brothers, Robert Huff, Garry Huff, James Huff and Robbie Huff. My father, who I

live with, suffered a fractured hip last year and suffers from Parkinson’s disease. Given

his medical condition and advanced age, he is not suitable or interest in acting as a

Successor in Interest and would prefer to focus on his health.” (Id. at ¶ 6.)

“I am authorized to act on behalf of the decedent as the Successor in Interest as

defined in Section 377.11 of the California Code of Civil Procedure with respect to the

decedent in the action. I was the Power of Attorney for my mother’s healthcare before

her death, and after discovering the Stage IV pressure sore I called 911 and had my

mother transferred to a hospital. I also called the Fresno Police Department and filed a

report of abuse.” (Id. at ¶ 5 [sic, 7], italics in original.) Her statements are made under

penalty of perjury under the laws of the State of California.

Thus, Stansberry’s declaration now includes the statement that she “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.”

(Code Civ. Proc. § 377.32, subd. (a)(5)(A).) She also includes facts regarding her own

standing to act as successor in interest, as well as the other people who might

potentially have a right to act as successors in interest to the plaintiff. While it does

appear that there are several other people who might have the right to prosecute the

decedent’s claims, including decedent’s husband and her other children, there is no

evidence that any of the other potential successors in interest have a superior right to

prosecute the decedent’s claims here. Stansberry had the power of attorney to

manage decedent’s healthcare before her death, and she was the one who first

reported the alleged abuse. The other relatives have apparently shown no interest in

prosecuting the case in place of the decedent.

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Therefore, the court intends to find that Ms. Stansberry’s declaration is sufficient

to support her motion to be substituted in place of the decedent, and allow her to

prosecute the action as the plaintiff.

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: ___________RTM____________________ on ____5/3/19______________.

(Judge’s Initials) (Date)

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(30)

Tentative Ruling

Re: Jamie Combs v. Cesar Hernandez

Superior Court No. 16CECG02240



in Dept. 403

Motion: Plaintiff’s motion for leave to file first amended complaint

Tentative Ruling:

To grant, with plaintiff granted 10 days’ leave to file the first amended complaint.

The time in which the complaint can be amended will run from service by the clerk of

the minute order. All new allegations in the first amended complaint are to be set in

boldface type.

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.)

Where no prejudice is shown to the adverse party, “courts are bound to apply a

policy of liberality in permitting amendments to the complaint at any stage of the

proceedings, up to and including trial.” (Atkinson v. Elk Corp. (2003) 109 Cal.App.4th

739, 761; 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; see also Mabie v. Hyatt (1998) 61 Cal.App.4th

581, 596.)

Furthermore, it is generally permissible to introduce new legal theories as long as

the proposed amendments relate to the same general set of facts. (Atkinson v. Elk

Corp., supra, 109 Cal.App.4th at p. 739; Garrett v. Crown Coach Corp. (1968) 259

Cal.App.2d 647, 650-651.) This includes new theories of liability not revealed by any

factual allegations in the earlier pleading. (Garrett v. Crown Coach Corp., supra, at pp.

650-651.)

In the case at bar, plaintiff seeks leave to add causes of action for: (1)

negligence per se pursuant to California Vehicle Code section 21801 against

defendant Cesar Hernandez; and (2) general negligence against defendants Gerardo

Hernandez, Jr. and Corina Hernandez, for negligently employing, entrusting, and/or

owning the vehicle which was involved in the collision.

Both requested changes are permissible. First, regarding negligence per se – in

his initial complaint, plaintiff was already alleging that defendant Cesar Hernandez

caused the collision by failing to properly yield before turning left. Thus, adding an

allegation that in so doing, defendant Cesar Hernandez also violated Vehicle Code

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section 21801, relates to the same general set of facts because Vehicle Code section

21801 is merely a codification of such.

Regarding general negligence – again, in his initial complaint, plaintiff already

alleged that defendants Gerardo Hernandez, Jr. and Corina Hernandez were liable for

motor vehicle negligence, but that they were not the drivers. The implication then, is

that they are liable for negligently employing, entrusting, or owning the vehicle. Thus,

adding an allegation that specifies that defendants Gerardo Hernandez, Jr. and Corina

Hernandez are guilty of general negligence – based on an assertion that they

negligently employed, entrusted, and/or owned the vehicle – does not really change

anything.

Finally, no prejudice is shown and the motion is unopposed

Accordingly, plaintiff’s motion for leave to file a first amended complaint is

granted.

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


Tentative Ruling



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Re: Tosi v. Peterson, et al.




in Dept. 403

Motions: Demurrer of JMS Realtors & Lynette Baker to Second Amended

Complaint

Motion to Strike Portions of Second Amended Complaint by JMS

Realtors & Lynette Baker

Tentative Ruling:

To strike the Third Amended Complaint filed April 29, 2019.

To sustain the general demurrer to the second through seventh causes of action

with leave to amend. To grant the motion to strike references to punitive damages with

leave to amend. A Third Amended Complaint in conformity herewith shall be filed and

served within 10 days of the clerk’s service of this minute order. All new allegations shall

be in boldface type font.

Explanation:

Court’s Own Motion to Strike Third Amended Complaint:

Code of Civil Procedure section 436 provides, in relevant part, “[u]pon motion, or

at any time in its own discretion, a court may grant a motion to strike … all or any part

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

order of the court.”

Code of Civil Procedure section 472 provides, “[a] party may amend its pleading

once without leave of the court at any time before the answer, demurrer, or motion to

strike is filed, or after a demurrer or motion to strike is filed but before the demurrer or

motion to strike is heard if the amended pleading is filed and served no later than the

date for filing an opposition to the demurrer or motion to strike. A party may amend the

pleading after the date for filing an opposition to the demurrer or motion to strike, upon

stipulation by the parties. …” (Code Civ. Proc., § 472, subd. (a) (emphasis added).)

Plaintiffs amended their complaint for the first time on October 3, 2018. They

amended it a second time by stipulation and order on February 11, 2019. The third

amended complaint was filed without leave of court and is hereby stricken.

Demurrer:

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

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

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

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

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

Second & Third Causes of Action – Intentional Misrepresentation

The second cause of action states a cause of action for intentional

misrepresentation for disclosing that the property was only subject to water intrusion

damage once, from an overflowing toilet. The third cause of action is also for

intentional misrepresentation, but relates to the habitability of the lower floor.

“ ‘The elements of fraud, which give rise to the tort action for deceit, are (a)

misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge

of falsity (or “scienter”); (c) intent to defraud, i.e., to induce reliance; (d) justifiable

reliance; and (e) resulting damage.’ [Citations.]” (Lazar v. Superior Court (1996) 12

Cal.4th 631, 638.) The plaintiff must allege with particularity “ ‘ “facts which show how,

when, where, to whom, and by what means the representations were tendered.” ’ ”

(Id. at p. 645.) Against a corporate defendant, the pleading must allege the name of

the person who made the representation, his or her authority to speak, to whom he or

she spoke, and how the representation was communicated. (Tarmann, supra, 2

Cal.App.4th at p. 157.)

Plaintiffs allege misrepresentations concerning the water intrusion in paragraphs

15, 35 and 51. Paragraph 15 alleges that “prior to the close of escrow” plaintiffs asked

“Realty Concept’s agent” and the sellers questions about water intrusion and damage”

and “defendants represented to plaintiffs that there was small water damage” caused

by a one-time toilet overflow. Paragraph 35 states that plaintiffs were “shown and told”

by Baker “and therefore defendants” that the only water damage in the house was

caused by a one-time toilet overflow. Paragraph 51 simply says “defendants”

represented to plaintiffs that the subject property was not subject to water

intrusion/flooding aside from a one-time minor toilet incident. This falls short of the

specificity required. Plaintiffs should remove the “all purpose” vague allegations of the

complaint at paragraphs 15 and 51, in favor of specific identification of the

misrepresentations, including the how, when, where, to whom, and means of the

misrepresentations.

Plaintiffs allege misrepresentations regarding the habitability of the basement at

paragraph 31 and 62. Paragraph 31 states that “defendants, collectively and

individually, through Lynette Baker as the agent and by sellers individually” “made

affirmative statements” and “represented in their sales materials” the first floor was

useable as a living space. Paragraph 62 states that “defendants” represented to

plaintiffs that the basement in the subject property was part of the building permit

property subject to occupancy and useable for an in-law suite, “when they listed and

treated it as part of the habitable space” of the subject property. These allegations are

devoid of the specificity required, as it is unclear whether the third cause of action is

based on the MLS listing, other advertising materials, or simply furnishing the basement

for use.

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Fourth & Fifth Causes of Action – Negligent Misrepresentation

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

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

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

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

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

Brand, LLC (2013) 218 Cal.App.4th 1230, 1239.) In order to state a claim for negligent

misrepresentation, the “ ‘actionable misrepresentation must be made about past or

existing facts; statements regarding future events are merely deemed opinions.’ ” (Neu-

Visions Sports, Inc. v. Soren/McAdam/Bartells (2000) 86 Cal.App.4th 303, 309-310.)

“Causes of action for intentional and negligent misrepresentation sound in fraud and,

therefore, each element must be pleaded with specificity.” (Daniels v. Select Portfolio

Servicing, Inc. (2016) 246 Cal.App.4th 1150, 1166.)

The fourth cause of action for negligent misrepresentation concerning the water

intrusion adds paragraph 73: “defendants affirmatively represented to plaintiffs that the

subject property was not subjected to water intrusion/flooding besides a toilet flooding

that occurred once.” This only serves to confuse the allegations regarding who made

what representations when. The fourth cause of action lacks specificity for the reasons

set forth with respect to the second cause of action.

The fifth cause of action pertains to representations regarding the basement as

habitable space. It adds paragraph 82: “defendants impliedly represented to plaintiffs

that the basement in the subject property was part of the approved building permit

when they listed and treated it as part of the habitable space of the subject property.”

This likewise fails to clarify the how, when, where, etc. of the misrepresentations. The fifth

cause of action lacks specificity for the reasons set forth with respect to the third cause

of action.

Sixth & Seventh Causes of Action – Concealment

“[T]he elements of an action for fraud and deceit based on concealment are:

(1) the defendant must have concealed or suppressed a material fact, (2) the

defendant must have been under a duty to disclose the fact to the plaintiff, (3) the

defendant must have intentionally concealed or suppressed the fact with the intent to

defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would

not have acted as he did if he had known of the concealed or suppressed fact, and

(5) as a result of the concealment or suppression of the fact, plaintiff must have

sustained damage.” (Marketing West, Inc. v. Sanyo Fisher (USA) Corp. (1992) 6

Cal.App.4th 603, 612-613 (Marketing West).) “Mere nondisclosure is ordinarily not

actionable unless the defendant is a fiduciary with a duty to disclose, but active

concealment or suppression of facts [citation] is the equivalent of a false

representation, i.e., actual fraud.” (5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, §

722, p. 138; Civ. Code, § 1572, subd. (3) [suppression of fact “by one having knowledge

or belief of the fact” may be fraudulent].) The requirement that “[f]raud must be

pleaded with specificity” applies equally to a cause of action for fraud and deceit

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based on concealment. (Cansino v. Bank of America (2014) 224 Cal.App.4th 1462,

1472.)

The sixth cause of action for concealment alleges: “Defendants represented to

plaintiffs that the subject property has no water intrusion or flooding issues besides a

toilet that had flooded once. This was untrue and defendant knew or should have

known that it was untrue, as stated above. Defendants also failed to disclose that the

fireplace did not work, and that the exterior surfaces had been damaged and partially

repaired to cover the effects of water intrusion. …” (SAC, ¶ 91.) First, the standard for

concealment is not reckless indifference, defendants must have known and intended

to conceal the truth. (Marketing West, supra, 6 Cal.App.4th at pp. 612-613.) Second,

the concealment allegations lack specificity for the reasons set forth with respect to the

second cause of action.

The seventh cause of action simply alleges that the “defendants represented to

plaintiff that the basement in the subject property was part of the building permit when

they listed and treated it as part of the habitable space of the subject property.” First,

the standard for concealment is not reckless indifference, defendants must have known

and intended to conceal the truth. (Marketing West, supra, 6 Cal.App.4th at pp. 612-

613.) Second, the concealment allegations lack specificity for the reasons set forth with

respect to the third cause of action.

Motion to Strike:

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

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

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

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

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

Defendants seek to strike the reference to punitive damages in the prayer of the

complaint.

With respect to punitive damage allegations, mere legal conclusions of

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

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

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

Superior Court (1981) 117 Cal.App.3d 1, 6.) A plaintiff must allege specific facts showing

that defendant's conduct was oppressive, fraudulent or malicious (Smith v. Superior

Court (1992) 10 Cal.App.4th 1033, 1041-1042; Anschutz Entertainment Group, Inc. v.

Snepp (2009) 171 Cal.App.4th 598, 643.)

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

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

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

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

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

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

(College Hosp. Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.) “Despicable” conduct is

defined as “conduct which is so vile, base, contemptible, miserable, wretched or

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loathsome that it would be looked down upon and despised by ordinary decent

people.” (Ibid.) Such conduct has been described as “having the character of

outrage frequently associated with crime.” (Tomaselli v. Transamerica Ins. Co. (1994) 25

Cal.App.4th 1269, 1287; Cloud v. Casey (1999) 76 Cal.App.4th 895, 912.)

As set forth above, plaintiff’s complaint fails to state a cause of action for fraud,

thus, the motion to strike is also granted with leave to amend.

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


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


Tentative Ruling



16

Tentative Rulings for Department 501 2 Ruling

Re: Castaneda v. Yates et al.

Superior Court Case No. 15CECG01086

Hearing Date: May 9, 2019 (Dept. 501) There will be no oral argument on this

motion. Oral argument on the summary adjudication motion is

scheduled for May 23, 2019 at 3:00 p.m. in Dept. 501.

Motion: Motion to reschedule oral argument and Trial Readiness

Ruling:

Plaintiff’s request that the trial setting conference scheduled for January 23, 2109

be rescheduled is moot. That conference was rescheduled to March 21, 2019 via order

dated January 23, 2019. Plaintiff failed to appear at the March 21, 2019 hearing. The

Court has set a hearing on May 23, 2019 at 3:00 p.m. in Dept. 501 for the plaintiff to

show cause why the case should not be dismissed. At that hearing the plaintiff can

present the argument made in the declaration filed on March 29, 2019. If the Court

determines there is good cause the Court will proceed with a trial setting conference.

Plaintiff requests that the oral argument on the motion for summary adjudication

be rescheduled. The Court lacks authority to reschedule oral argument on the motion

because judgment consistent with the ruling on the motion has already been entered.

Plaintiff did not request the judgment be vacated. Defendants have consented that

the judgment may be vacated for the purpose of holding oral argument on the motion.

Based upon the consent of the defendants, the Court hereby vacates the judgment

entered on February 5, 2019 so that the Court may hold oral argument on the motion

for summary adjudication. Oral argument is scheduled for May 23, 2019 at 3:00 p.m. in

Dept. 501. The Court will set up CourtCall and will send the confirmation to the plaintiff

and the litigation coordinator.

The Court notes that the plaintiff states that he did not receive the tentative

ruling. The tentative ruling issued was identical to the one attached to the minute order

from January 23, 2019 with one exception. In the last paragraph on the second page

the tentative ruling omitted Burns when listing the defendants. At the hearing the Court

added in Burns. See handwritten correction. The evidence before the Court shows that

the plaintiff has been served with multiple copies of the tentative. An additional copy

will be included with this tentative rule which will be sent to the plaintiff.



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

constitute notice of the order.

Ruling

Issued By: ___________JYH_________________ on ___5/3/19____________.


17


Re: Gemini Trust Company, LLC v. Castiglione


Hearing Date: None.

Motion: Gemini Trust Company, LLC’s Motion to Confirm Contractual

Arbitration Award

Tentative Ruling:

To order the matter off calendar due to respondent’s removal of the action to

Federal Court on May 2, 2019. (28 USC §§ 1441, 1446, 1447.)





Tentative Ruling

Issued By: JYH on 5/6/2019 .


18

(30)

Tentative Ruling

Re: National Union Fires Ins. Co. of Pittsburg v. Prime Intermodal, Inc.

Superior Court No. 17CECG02236

Hearing Date: If oral argument is TIMELY requested on May 8th between the hours

of 3:00 p.m. and 4:00 p.m., the hearing will be held on THURSDAY

May 9, 2019 @ 3:00 P.M. (Dept. 501)

Motion: Motion for summary judgment, by cross-defendant AMK Insurance

Agency, Inc.

Tentative Ruling:

To grant cross-defendant, AMK Insurance Agency, Inc.’s, motion for summary

judgment.

Cross-defendant is directed to submit to this court, within 5 days of service of the

minute order, a proposed judgment consistent with the court's summary judgment

order.

Explanation:

A defendant moving for summary judgment or adjudication has the initial

burden of production to make a prima facie showing that there are no triable issues of

material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant

meets that burden by showing that one or more elements of the causes of action

cannot be established, or that there is a complete defense thereto. (Code Civ. Proc. §

437c, subds. (p)(2), (o)(2).)

Any matter admitted in response to a request for admission is conclusively

established against the party making the admission in the pending action and is not

subject to being contested through contradictory evidence. (Code of Civ. Proc., §

2033.410; St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 775.)

Accordingly, admissions may leave the party making them vulnerable to

summary judgment. (St. Mary v. Superior Court, supra, 223 Cal.App.4th at p. 775.; see

also Cembrook v. Superior Court (1961) 56 Cal.2d 423, 429 [Requests for admission are

aimed at setting to rest an issue so that it will not have to be tried.].)

Here, on February 6, 2019, this court issued an order deeming all admissions

propounded by AMK admitted. (UMF nos. 2, 7, 11, 15, 18, 21, 26.) The admissions are

therefore conclusively established for purposes of summary judgment. Since the

pleadings determine the scope of the relevant issues, each cause of action asserted by

cross-complainant, Prime Intermodal, Inc., within the first amended cross-complaint is

examined below to determine if Prime is able to allege the essential elements despite its

admissions.

19

Breach of Oral Contract

“The elements of a breach of oral contract claim are the same as those for a

breach of written contract: a contract; its performance or excuse for nonperformance;

breach; and damages.” (Stockton Mortgage, Inc. v. Tope (2014) 233 Cal.App.4th 437,

453.) In the absence of any of the elements, a cause of action for breach of contract

fails. (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186-1187.)

Here, pursuant to this court’s February 6, 2019 order, all admissions were deemed

admitted and conclusively established against cross-complainant. (UMF no. 2.) Among

the admissions are:

1) AMK never entered into an oral contract with cross-complainant (RFA 22); and

2) AMK did not breach a contract with cross-complainant (RFA 24). (UMF no. 3,

4.)

Each of these issues negate essential elements of cross-complainant’s cause of action

for breach of oral contract, namely, that a contract existed and that if a contract did

exist, there was no breach. The absence of either element warrants summary

adjudication as to the breach of contract claim.

Breach of Fiduciary Duty

The elements of a cause of action for breach of fiduciary duty are: (1) existence

of a fiduciary duty; (2) breach of the fiduciary duty; and (3) damage proximately

caused by the breach. (Stanley v. Richmond (1995) 35 Cal.App.4th 1070, 1086.)

Here, also among the admissions that were deemed admitted by this court on

February 6, 2019 order, was:

1) AMK fulfilled its fiduciary duties owed to cross-complainant at all times (RFA

30). (UMF no. 8.)

Hence, the element of breach has been negated, and the absence of such

warrants summary adjudication as to the breach of fiduciary duty claim.

Negligence

The elements of a cause 0f action for negligence are “(a) a legal duty to use

due care; (b) a breach of such legal duty; [and] (c) the breach [was] the proximate or

legal cause of the resulting injury.” (Walker v. Sonora Regional Medical Center (2012)

202 Cal.App.4th 948, 958.)



20

1) AMK used reasonable care, diligence, and judgment in procuring the

insurance cross-complainant requested (RFA 32). (UMF no. 12.)

Hence, the element of breach has been negated, and the absence of such

warrants summary adjudication as to the negligence claim.

Violation of Business and Professions code Section 17200 et. seq.

The Unfair Competition Law broadly prohibits “any unlawful, unfair or fraudulent

business act or practice and unfair, deceptive, untrue or misleading advertising . . .”

(Bus. & Prof. Code, § 17200; Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350,

1359.) Summary judgment may be granted where a defendant did not engage in any

prohibited conduct, whether unlawful, unfair, or fraudulent. (Klein v. Earth Elements, Inc.

(1997) 59 Cal.App.4th 965, 969-971.)



1) AMK engaged in no unfair, unlawful or fraudulent practice at any time (RFA

39). (UMF no. 16.)

Hence, all prongs of the section 17200 claim have been negated, and the

absence of such warrants summary adjudication as to the unfair business

practices/section 17200 claim.

Equitable Indemnity

The elements of a cause of action for indemnity are (1) a showing of fault on the

part of the indemnitor and (2) resulting damages to the indemnitee for which the

indemnitor is contractually or equitably responsible. (Expressions at Rancho Niguel Assn.

v. Ahmanson Developments, Inc. (2001) 86 Cal.App.4th 1135, 1139.)



1) Prime is not entitled to equitable indemnity from AMK for any damages or

attorney’s fees cross-complainant has or may incur from defending claims

brought against it by plaintiff National Union Company of Pittsburgh, PA (RFA

41). (UMF no. 19.)

Hence, the entire basis for the equitable indemnity claim has been negated.

Therefore, summary adjudication as to the equitable indemnity claim should be

granted.

Fraud - Misrepresentation

The elements of a fraud and misrepresentation claim are: (1) a misrepresentation

(false representation, concealment, or nondisclosure); (2) knowledge of falsity (or

scienter); (3) intent to defraud, i.e., to induce reliance; (4) justifiable reliance; and (5)

21

resulting damage. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) Where it is

undisputed the defendant made no misrepresentation, summary judgment is proper.

(Rios v. Scottsdale Ins. Co. (2004) 119 Cal.App.4th 1020, 1028-1029.)



1) AMK made accurate representations to cross-complainant regarding its

requested insurance (RFA 43); and

2) AMK made no misrepresentations to cross-complainant so that AMK could

collect brokers fees (RFA 44). (UMF no. 22, 23.)

Hence, the element of misrepresentation has been conclusively negated.

Therefore summary adjudication as to the fraud-misrepresentation claim should be

granted.

Accordingly, cross-defendant’s motion for summary judgment is granted.



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 5/6/2019 .


22

Tentative Rulings for Department 502


Re: Nickell v. Pacific Appliance Repair Services



Motion: Plaintiff’s Motion for Trial Preference

Tentative Ruling:

To deny. (Code Civ. Proc. § 36(a).)

If oral argument is requested it will be held at 3:30 p.m. on May 16, 2019, in

Department 502.

Explanation:

Code of Civil Procedure section 36(a) states, in relevant part:

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

court for a preference, which the court shall grant if the court makes all 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.

The motion must be supported by declaration showing good cause to grant the

motion. (Weil & Brown, California Practice Guide: Civil Procedure Before Trial (TRG 2018)

¶ 12:272.) The declaration must show facts entitling the case to priority in setting.

A vague reference to “declining health,” without more information, is insufficient.

(See Stirrup Dec. ¶ 5.)

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 5-6-19 .


23

Tentative Rulings for Department 503 (2)

Tentative Ruling

Re: Shoffner v. Beneditz


Hearing Date: May 9, 2019 (continued from April 25, 2019) (Dept. 503)

In the event oral argument is timely requested, it will be heard at

9:00 a.m. on May 9, 2019, in Dept. 503.

Motion: Compel defendant to provide initial responses to form

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

one, deem request for admissions, set one, admitted and for

monetary sanctions

Tentative Ruling:

The Court notes that the moving party properly scheduled three motions, as

there are three motions before the Court. The moving party combined all three

motions in one set of papers, which is acceptable, but when doing so in the future, the

moving party must pay the three filing fees. In this case, the moving party filed two sets

of identical papers and paid two filing fees. It is unclear why two sets of identical

papers were filed.

To grant plaintiff’s motion that the truth of the matters specified in the request for

admission, set one, be deemed admitted as to defendant John Beneditz unless

defendant serves, before the hearing, a proposed response to the requests for

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

2033.210, 2033.220 and 2033.240. (Code Civ. Proc., §2033.280.)

To grant plaintiff’s motions to compel defendant John Beneditz to provide initial

verified responses to form interrogatories, set one, and request for production of

documents, set one. (Code Civil Proc., §§ 2030.290, subd. (b), 2031.300, subd. (b).)

Defendant John Beneditz to provide complete verified responses to all discovery set

forth above, without objection, within 10 days after service of this order.

To grant plaintiff’s motion for monetary sanctions. Defendant John Beneditz is

ordered to pay $420 in sanctions to Wilkins, Drolshagen & Czeshinski, LLP within 30 days

after service of this order.

The Court notes that service of the motions was properly made at the address on

record for the defendant at the time of service. An attorney or self-represented party

whose mailing address, telephone number, fax number, or e-mail address (if it was

provided under California Rules of Court, rule 2.111(1)) changes while an action is

pending must serve on all parties and file a written notice of the change. (Cal. Rules of

Court, rule 2.200.)

24



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: KAG on 4/10/19.


25


Re: Cruz v. Finnell




9:00 a.m. on May 9, 2019, in Dept. 503.

Motion: By Defendant Finnell and Cross-Defendants Finnell and California

Conservation Corps for Summary Judgment or, in the Alternative,

for Summary Adjudication as to the Second, Third, and Fourth

Causes of Action in the Third Amended Complaint

Tentative Ruling:

To deny the motion.

Explanation:

To obtain summary judgment, “all a defendant needs to do is to show that the

plaintiff cannot establish at least one element of the cause of action.” (Aguilar v.

Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853.) If a defendant makes this showing, the

burden shifts to the plaintiff to demonstrate that one or more material facts exist as to

the cause of action or as to a defense to a cause of action. (Code Civ. Proc. § 437(c),

subd. (p)(2).)

In a summary judgment motion, the pleadings determine the scope of relevant

issues. (Nieto v. Blue Shield of Calif. Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 74.)

A defendant need only “negate plaintiff's theories of liability as alleged in the

complaint; that is, a moving party need not refute liability on some theoretical possibility

not included in the pleadings.” (Hutton v. Fidelity Nat’l Title Co. (2013) 213 Cal.App.4th

486, 493 (emphasis in original).)

The court examines affidavits, declarations and deposition testimony as set forth

by the parties, where applicable. (DeSuza v. Andersack (1976) 63 Cal.App.3d 694, 698.)

Any doubts about the propriety of summary judgment are to be resolved in favor of the

opposing party. (Yanowitz v. L’Oreal USA, Inc. (2003) 106 Cal.App.4th 1036, 1050.) A

court will “liberally construe plaintiff's evidentiary submissions and strictly scrutinize

defendant's own evidence, in order to resolve any evidentiary doubts or ambiguities in

plaintiff's favor.” (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64.)

Furthermore, the moving party must identify for the court the matters it contends

are “undisputed,” and cite the specific evidence showing why it is entitled to judgment

as a matter of law. (United Community Church v. Garcin (1991) 231 Cal.App.3d 327,

337 (“This is the Golden Rule of Summary Adjudication: if it is not set forth in the

separate statement, it does not exist.” (Emphasis in original).)

26

The moving parties seek summary judgment/adjudication on the ground that the

claim between Plaintiffs and them is foreclosed by the exclusivity provisions of the

worker’s compensation statutes. (Lab. Code § 3600 et seq.) Plaintiffs contend that the

exception contained in Labor Code section 3601, subdivision (a)(1) applies to this case.

Under that provision, the exclusivity does not apply when “the injury or death is

proximately caused by the willful and unprovoked physical act of aggression of the

other employee.” (Lab. Code §3601, subd.(a)(1).)

In this instance, Plaintiffs contend that there are facts from which a reasonable

jury could conclude that Defendant Finnell intentionally subjected the van to the

danger of collision in order to put the passengers in reasonable fear for their lives or

injury. This evidence includes an incident that occurred the day before the subject

accident, wherein Finnell accelerated quickly while an employee was attempting to fix

the van door. The evidence also includes other incidents of aggressive sudden

accelerations in order to, for lack of a better expression, “toy” with the passengers.

The moving parties rely on case law that defines “willful and unprovoked physical

act of aggression of the other employee.” Specifically, language that the California

Supreme Court has used states that the “initial physical aggressor” is defined as

someone who “first introduces an element of physical violence into the confrontation,

thus creating the risk of injury.” (Torres v. Parkhouse Tire Service, Inc. (2001) 26 Cal.4th

995, 1005-1006.) However, the moving parties ignore the definition used by the

California Supreme Court: “[W]e conclude an ‘unprovoked physical act of aggression’

(§ 3601, subd. (a)(1)) is unprovoked conduct intended to convey an actual, present,

and apparent threat of bodily injury.” (Torres, supra, 26 Cal.4th at 1005.) The Court also

concluded that, “as a general rule, . . . a ’willful and unprovoked physical act of

aggression’ includes an intent to injure requirement.” (Id. at p. 1006)

The moving parties contend that, even under Torres, there is no case law that

would suggest that Plaintiffs can bring the action, since they were not the target of the

apparent animosity.

Certainly, there is no case law to support a finding that Finnell is an initial

physical aggressor based on his driving. To be sure, no court has found a

willful and unprovoked act of physical aggression based on actions

directed toward someone other than the injured co-worker. To find a

willful and unprovoked physical act of aggression there must be intent to

injure the specific person.

(Reply at p. 3.)

But there is nothing in Torres that indicates that there must be intent to injure the

specific person. Torres merely holds that there must be an intent to injure and,

moreover, that the injurer’s state of mind is relevant to the issue of fact. (Torres, supra,

26 Cal.4th at 1009 (“In situations where employees acting within the scope of

employment commit violent, injurious acts against coemployees, triers of fact could

reasonably infer an intent to injure to take the actions outside the exclusivity rule's

protection. We reject plaintiffs' contention that the intent to injure element is an

impossible burden to meet because juries must ‘get inside a person's head.’ As with

27

other mental states, plaintiffs may rely on circumstantial evidence to prove the intent to

injure.” (Internal citation, quotations, omitted.).)

Here, Plaintiffs have presented evidence from which a jury could infer that

driving into the path of an oncoming truck was a willful decision made by Finnell and

borne of animosity and a desire to injure the passengers in his van. Therefore, since

there is a question of fact as to whether the exclusivity provisions of Labor Code section

3600 et seq. apply, the motion is denied.

The objections raised by the moving parties are overruled. To the extent that the

objections are on the grounds of relevance, the moving parties’ arguments go the

weight of the evidence and not its admissibility.

Request for Continuance Pursuant to Code of Civil Procedure Section 437c, subdivision

(h).

In the opposition, Plaintiffs make a request for a continuance in order to conduct

further discovery pursuant to Code of Civil Procedure section 437c, subdivision (h), if the

Court is not satisfied that there is a triable issue of fact. As discussed above, the Court

does make such a finding. The Court nonetheless addresses Plaintiffs’ request for a

continuance.

Where the party files a declaration showing that essential evidence “may exist

but cannot, for reasons stated, then be presented,” a court may deny the motion,

continue it for a reasonable period, or make any other order as may be just. (Code

Civ. Proc. §437c, subd.(h).) The statute requires that the opposition be accompanied

by declarations showing facts to justify that the discovery exists, or else make such a

showing on ex parte motion or before the date the opposition is due. (Combs v.

Skyriver Communications, Inc. (2008) 159 Cal.App.4th 1242, 1270.) Here, no such

declaration appears in the Court’s files.

Even so, whether to grant a continuance in the absence of such a declaration is

still within the court’s discretion. (Lerma v. County of Orange (2004) 120 Cal.App.4th

709, 716.) Usually, the court’s discretion should be exercised in favor of granting a

continuance. (Frazee v. Seely (2002) 95 Cal.App.4th 627, 734.) The difficulty here is that

Plaintiffs have provided no factual basis for this Court’s exercise of discretion. There is

no indication of what evidence Plaintiffs would seek or why it would be necessary for

their opposition. In the absence of any such showing, the Court will deny the request

for a continuance.

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: KAG on 5/6/19.


28


Re: People of the State of California v. Wright, et al.




9:00 a.m. on May 9, 2019, in Dept. 503.

Motion: Plaintiff’s petition for appointment of receiver

Tentative Ruling:

To grant Plaintiff’s petition to appoint a receiver. (Health & Saf. Code §§ 17980.6,

17980.7.)

Explanation:

“[W]hen a building is maintained in a manner that violates state or local building

maintenance regulations and the violations are so extensive and of such a nature that

the health and safety of residents or the public is substantially endangered, the local

enforcement agency may issue a notice and order requiring repair or abatement of

the unlawful conditions. If the owner of the building thereafter fails to comply with the

notice and order in a reasonable period of time, the enforcement agency can seek an

order from the trial court appointing a receiver to oversee compliance.” (City of

Crescent City v. Reddy (2017) 9 Cal.App.5th 458, 465–466, internal citations and

quotation marks omitted.)

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

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

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

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

affected residential unit.” (Health & Saf. Code §17980.6.) “In appointing a receiver, the

court shall consider whether the owner has been afforded a reasonable opportunity to

correct the conditions cited in the notice of violation.” (Health & Saf. Code

§17980.7(c)(1).)

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

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

viable financial and construction plan for the satisfactory rehabilitation of the building.”

(Health & Saf. Code §17980.7(c)(2).) In addition, a receiver appointed pursuant to

section 17980.7 shall have the power “[t]o borrow funds to pay for repairs necessary to

correct the conditions cited in the notice of violation . . . and, with court approval,

secure that debt and any moneys owed to the receiver for services performed

pursuant to this section with a lien on the real property upon which the substandard

building is located. The lien shall be recorded in the county recorder's office in the

county within which the building is located.” (Health & Saf. Code §17980.7(c)(4)(G).)

The prevailing party is entitled to reasonable attorney's fees and court costs. (Health &

Saf. Code § 17980.7(c)(11).)

29

Further, “[i]f the court finds that a building is in a condition which substantially

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

entry of any order or judgment, the court shall . . . [o]rder the owner to pay all

reasonable and actual costs of the enforcement agency including, but not limited to,

inspection costs, investigation costs, enforcement costs, attorney fees or costs, and all

costs of prosecution.” (Health & Saf. Code § 17980.7(d)(1).) Section 17980.7,

subdivision (d)(1), has been interpreted by the courts to allow an award of fees and

costs to an enforcing agency even where the building is not inhabited, if it poses a

danger to nearby residents. (City and County of San Francisco v. Jen (2005) 135

Cal.App.4th 305, 310-312.)

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

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

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

by the action or proceeding is situated[.] The notice shall be recorded at the time of

the commencement of the action or proceeding.” (Health & Saf. Code § 17985(a).)

In the instant case, Plaintiff petitions for the appointment of a receiver for the

property located at 1536 21st Avenue, in Kingsburg. Plaintiff has been attempting, both

informally (Koch Decl., i/s/o Inspect. Warrant, at ¶ 6) and formally (id. at ¶¶ 6-8, and

Exhs. C-E) to persuade Defendants to abate the condition of the property at issue.

Defendants have been unresponsive.

Plaintiff has served a notice to abate on Defendants, and posted the notice on

the property. Plaintiff also has filed a lis pendens, and provided adequate notice of the

instant petition to Defendants.

The property is in a substandard condition and presents a danger to the health

and safety of the public, particularly those in the neighboring area. (See, e.g., Koch

Decl., i/s/o Petition, at Exh. B; Koch Decl., i/s/o Inspect. Warrant, at Exh. A.) Plaintiff has

given Defendants ample opportunity to address the myriad code violations on the

property, beginning in 2016. (Koch Decl., i/s/o Inspect. Warrant, at ¶¶ 3, 6-8, Exhs. C-E.)

Defendants have failed to address any of the dangerous conditions. (Ibid.) Plaintiff has

afforded Defendants a more than reasonable opportunity to correct the problems.

There does not appear to be any other feasible remedy to correct the dangerous

condition posed by the property, as the City of Kingsburg has made multiple efforts to

obtain compliance from the owners without any success. If a receiver is not appointed

to abate the nuisance, it seems highly unlikely that the violations will ever be corrected

and the property brought into a safe and code-compliant state.

Defendants Jackson and Cauwels submit their own declarations. Defendant

Cauwels states that he is not an owner of the property at issue, and that he has been

living with his sister, Defendant Jackson, since August 2018. Defendant Jackson disputes

the validity of the notice of abatement “on the grounds of insufficient evidence.”

(Jackson Decl., at p. 2, ¶ 2.) Defendant Jackson appears to argue that Plaintiff has not

established that Defendant Jackson is a property owner in her individual capacity. (Id.

at ¶¶ 3-4; see also id. at p. 3, ¶ 5 [Plaintiff “had no way to ever prove ‘PROPERTY

OWNERS’ existed.”].)

30

Health and Safety Code section 17980.7, subdivision (c), requires that a party

seeking the appointment of a receiver include proof that notice of the petition was

served on “all persons with a recorded interest in the real property[.]” Here, it appears

that the Francis J. Cauwels Trust is the owner of the property at issue and that

Defendant Jackson is the trustee of the Trust. (See Jackson Decl., at Exh. A, p. 1.)

Accordingly, Plaintiff was required to serve Defendant Jackson, as trustee of the trust

which owns the property. It is unclear to the Court what the legal bases may be of

Defendants’ challenges to the notice of abatement.

Again, the property is in substandard, dangerous condition, and Defendants

have failed to take any steps to correct the state of the property, despite having had

many opportunities to do so. It appears to the Court that the only way to correct the

code violations is to appoint a receiver. Accordingly, the Court intends to grant the

petition.

Plaintiff nominates its Building Official/Inspector, Michael Koch to act as receiver,

and submits Mr. Koch’s declaration and curriculum vitae. Mr. Koch appears to be

qualified to “supervise a viable financial and construction plan” to rehabilitate the

property based on his background and familiarity with the property. (Health & Saf.

Code §17980.7(c)(2).) Plaintiff has established Mr. Koch’s qualifications.

Plaintiff has complied with the requirements to appoint a receiver and has shown

that Mr. Koch is qualified to act as receiver of the property. Defendants’ submissions

are inadequate to deny the petition. The petition is therefore granted, and Mr. Koch is

appointed as receiver to manage the property.





Tentative Ruling

Issued By: KAG on 5/8/19 .


tentative rulings for may 7, 2009 - fresno superior court · 2019-05-08 · 3 (2) tentative ruling...

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