tentative rulings for may 7, 2009 - fresno superior court · tentative rulings for may 17, 2017 ......

Tentative Rulings for May 17, 2017

Departments 402, 403, 501, 502, 503

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

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

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

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

15CECG03207 Price v. Ahlin (Dept. 502)

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

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

17CECG00897 Kelton v. Coca-Cola Bottling Co., et al. is continued to Thursday,

May 25, 2017, at 3:30 p.m. in Dept. 502.

________________________________________________________________

(Tentative Rulings begin at the next page)

Tentative Rulings for Department 402

(20) Tentative Ruling

Re: Boyd v. J.H. Boyd Enterprises, Inc., et al.

Case No. 14CECG03792

Consolidated with

J.H. Boyd Enterprises, Inc. v. Boyd et al.

Case No. 15CECG00915 (lead case)

Hearing Date: May 17, 2017 (Dept. 402)

Motion: Motion for Order to Stay Enforcement of Judgment

Tentative Ruling:

To deny. (Code Civ. Proc. § 918(b).)

Explanation:

Based on the application of Code Civ. Proc. § 918(b) and 917.4, the court can

only stay enforcement of the judgment if it determines that no undertaking is required

because the value of the property is sufficient to satisfy the judgment. Defendant’s

contention on this point is based solely on his declaration, that of an interested party,

which does not even state a value for the property. No evidence of the value of the

property has been submitted, much evidence less from an uninterested appraiser. This

judgment was entered on 10/31/16. If defendant wanted a stay of enforcement,

defendant should have initiated proceedings to determine the value of the property

much earlier. Moreover, there is no evidence that any concrete steps have been

taken to foreclose on the property.

Pursuant to Cal. Rules of Court, Rule 3.1312(a) and Code Civ. Proc. § 1019.5(a),

no further written order is necessary. The minute order adopting this tentative ruling will

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

order.

Tentative Ruling

Issued By: JYH on 05/16/17

(Judge’s initials) (Date)


Re: Moreno v. Club One Casino

Court Case No. 14CECG03196


Motion: Demurrer of Defendants Juan Calderon, Carlos Quintero, Alvin

Aguirre, Shane Shepherd, and Juan Tapia to the Complaint

Tentative Ruling:

To order the special demurrer off calendar, as defective. To overrule the general

demurrers to each cause of action. (Code Civ. Proc. § 430.10, subd. (e).) Defendants

are granted 10 days’ leave to file their answer(s) to the complaint, with the time to run

from service by the clerk of the minute order.

Explanation:

Technical Defects:

No demurrer was filed. Defendants filed what purports to be a combined Notice

of Hearing and Demurrer, but there is no language on that document constituting the

demurrer. A demurrer is separate and distinct from the Notice of Hearing and the

memorandum supporting the motion. While combining the Demurrer and Notice of

Hearing is not a fatal flaw, there must be a demurrer. Code of Civil Procedure section

430.60 states that the demurrer “shall distinctly specify the grounds upon which any of

the objections to the complaint…are taken,” and if it does not “it may be disregarded.”

While the document entitled “Notice of Demurrer and Demurrer to Plaintiff’s Complaint”

provides adequate information constituting the Notice of Hearing, it does not “distinctly

specify the grounds” of demurrer, and instead states: “The basis for Defendants’

demurrer is more fully set forth in the accompanying Memorandum of Points and

Authorities in support thereof.” That is improper under section 430.60: the memorandum

is not the demurrer.

Moreover, even the memorandum itself does not provide adequate language

for demurrer. It states, “Defendants demur to each of the three causes of action in

Plaintiff’s Complaint on the basis that the Complaint is vague, uncertain, ambiguous

and "does not state facts sufficient to constitute a cause of action" under California

Code of Civil Procedure sections 430.10(e)(f).” Even if this language had been included

in the demurrer (as required), it violates California Rules of Court, Rule 3.1320, subdivision

(a), which requires that each ground of demurrer must be separately stated (i.e., not

the same statement as to “each cause of action” and not two different types of

demurrer, i.e., general and special, in the same paragraph).

These defects provide a basis for the court to disregard the motion entirely, i.e.,

order it off calendar. The court will do that as to defendants’ attempt at special

demurrer for uncertainty. However, to the extent the arguments for general demurrer to

each cause of action could be subsequently raised by a motion for judgment on the

pleadings, the court will consider the general demurrer on the merits.

Meet and Confer:

Plaintiff argues that meet and confer was insufficient since defense counsel

merely made a short, perfunctory phone call and did not attempt the collegial and

collaborative process contemplated by Code of Civil Procedure section 430.41.

Defendant argues that this motion is identical to the demurrer defendants raised before

the bankruptcy stay, which had already been fully briefed before being taken off

calendar. The reason the phone call was brief was because these concerns had

already been discussed and briefed, so there was no need to belabor the

conversation.

The court does expect meaningful meet and confer prior to a demurrer being

filed, and where this is not met it routinely orders demurrers off calendar in order for the

parties to meet further and to re-calendar the demurrer only if this is not productive.

Here, however, the court considers meet and confer sufficient since this motion

amounts to re-calendaring (albeit with added moving parties) a fully-brief motion that

was taken off calendar due to a bankruptcy stay.

Assault and Battery:

The liability of demurring defendants in the First and Second causes of action is

based on their taking part in a conspiracy to commit assault and battery on plaintiff,

rather than committing assault and battery themselves. To properly allege a

conspiracy, a plaintiff must allege: “(1) the formation and operation of the conspiracy,

(2) wrongful conduct in furtherance of the conspiracy, and (3) damages arising from

the wrongful conduct.” (Arei II Cases (2013) 216 Cal.App.4th 1004, 1022, brackets

added. See also 5 Witkin, Cal. Proc. 5th (2008) Plead, § 922, p. 336—second prong

requires allegation of “wrongful act or acts of any of the conspirators pursuant to the

conspiracy” (emphasis added).)

The cases are consistent in finding that the acts constituting the formation of the

conspiracy need not be alleged: the general averment that the defendants agreed to

a conspiracy is sufficient. (See Id. at pp. 535, 537—finding allegation that defendants

“have conspired together” sufficient; See also Farr v. Bramblett (1955) 132 Cal.App.2d

36, 47, disapproved of on other grounds by Field Research Corp. v. Superior Court of

City and County of San Francisco (1969) 71 Cal.2d 110—“Plaintiffs could not more

clearly allege the ultimate fact of conspiracy than by pleading that defendants ‘did

agree together’”.) Here, plaintiff has generally alleged that the defendants

“did…engage in an unlawful conspiracy,” which is sufficient.

The wrongful conduct of the defendants who actually committed the assault

and battery are sufficiently alleged; defendants did not argue otherwise. Contrary to

what they appear to suggest, plaintiff does not need to allege that the conduct of the

conspirator was itself independently tortious. (Greenwood v. Mooradian (1955) 137

Cal.App.2d 532, 538—“The view that defendant…must be shown to have done some

overt and independently tortious act in order to be liable as a conspirator is a mistaken

one.”) Plaintiff has sufficiently and clearly alleged that defendants took affirmative

action to support the tortious conduct of Does 1-3, in keeping with the conspiracy. This is

sufficient, since a conspirator can be held liable “regardless of whether [he] was a

direct participant in the wrongful act.” (Arei II Cases (2013) 216 Cal.App.4th 1004, 1024,

citing to and quoting from 5 Witkin, Cal. Proc. 5th (2008) Plead, § 921, p. 336.) Finally,

plaintiff has clearly alleged damages; defendants did not contend otherwise.

Negligence:

Defendants argue plaintiff fails to allege what role or capacity they held which

imposed on them a duty of care toward plaintiff as a “business invitee.” However,

plaintiff has alleged they were employees, and thus they owed the same duty of care

as their employer did. Similarly, plaintiff’s allegation that defendants were employees is

sufficient at the pleading stage to allege that they were responsible for the training,

investigation (before hiring), and supervision of employees, and for company-wide

policies towards “unruly or otherwise disruptive” patrons.

Plaintiff also adequately alleges causation. While defendant cites to Bockrath v.

Aldrich Chemical Co., Inc. (1999) 21 Cal.4th 71, 78 (“Bockrath”) for the proposition that

in pleading causation plaintiff must plead specific facts “explaining how the conduct

caused or contributed to the injury,” the California Supreme Court clearly said this only

pertained to cases where “'the pleaded facts of negligence and injury do not naturally

give rise to an inference of causation.” (Id.) Moreover, the Court said this was in

contrast to “the ordinary personal injury lawsuit, in which the complaint's factual

recitations show plainly the connection between cause and effect,” in which case “it

suffices to plead causation succinctly and generally.” (Id., emphasis added.)

Bockrath was a products liability case wherein plaintiff had named 55 different

manufacturers as being responsible for causing his cancer, but had only alleged

causation generally. This was not the “ordinary” personal injury suit, and under the then-

developing rules pertaining specifically to products liability cases, the court said plaintiff

was required to allege “that each defendant’s product was a substantial factor” in

causing his cancer, and the Court set forth a very specific five-point guideline he must

follow in alleging causation. (Id. at p. 79-80.) That is not applicable here. In the instant

case, the complaint’s recitation of what is alleged to have happened to plaintiff at the

hands of employees of Club One Casino, Inc. is clearly connected to the hiring,

training, and supervision of those employees; thus this case is in the category of the

“ordinary personal injury lawsuit” where the “complaint's factual recitations show plainly

the connection between cause and effect,” such that causation may be generally

alleged.

Demurrer to Prayer for Punitive Damages:

Prayers for punitive damages are not subject to general demurrer. (Venice Town

Council, Inc. v. City of Los Angeles (1996) 47 Cal.App.4th 1547, 1562—Demurrer “tests

the sufficiency of the factual allegations of the complaint rather than the relief

suggested in the prayer of the complaint.”) A motion to strike, not a general demurrer,

is the procedure to attack an improper claim for punitive damages. (See Grieves v.

Superior Court (1984) 157 Cal.App.3d 159, 164; Caliber Bodyworks, Inc. v. Superior Court

(2005) 134 Cal.App.4th 365, 385.)

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

Issued By: JYH on 05/15/17




Re: Biondich v. Morgan



Motion: By Defendants Brian L. Morgan, M.D., Heather Vasquez, University

Women’s Specialty Center, Central California Faculty Medical

Group and Mary McLain, M.D. for Summary Judgment or, in the

alternative, Summary Adjudication.

Tentative Ruling:

To grant the motion for summary judgment.

Prevailing party is ordered to submit, within five (5) court days of this order, a

judgment in accordance with the Court’s decision as set forth below.

Explanation:

Defendants have moved for summary judgment or, in the alternative, for

summary adjudication of Plaintiffs’ complaint for negligence in the form of medical

malpractice. On May 3, 2017, Plaintiffs filed a Non-Opposition to the motion indicating

that they do not oppose the motion.

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. (CCP § 437(c),

subdivision(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).)

The opposing party’s failure to provide opposing evidence does not relieve the

moving party of its burden of production. (Consumer cause v. SmileCare (2001) 91

Cal.App.4th 454, 468.) Indeed, while a Court has discretion to grant the motion for an

opposing party’s failure to file a separate statement of disputed facts, the court must

first determine whether the moving papers establish grounds for granting summary

judgment or adjudication. (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 160.)

Plaintiff has pleaded one cause of action for professional negligence in the form

of medical malpractice arising from Defendants’ treatment of Plaintiffs while taking an

ultrasound of Plaintiff Amber Biondich on or about April 1, 2015, as well as in their

assessment of the ultrasounds that were taken.

To establish liability in an action for medical malpractice, a plaintiff must establish

“(1) the duty of the professional to use such skill, prudence, and diligence as other

members of his profession commonly possess and exercise; (2) a breach of that duty;

(3) a proximate causal connection between the negligent conduct and the resulting

injury; and (4) actual loss or damage resulting from the professional's negligence.”

(Powell v. Kleinman (2007) 151 Cal.App.4th 112, 122.)

Moreover, when “a defendant moves for summary judgment and supports his

motion with expert declarations that his conduct fell within the community standard of

care, he is entitled to summary judgment unless the plaintiff comes forward with

conflicting expert evidence.” (Id.)

However, “[s]imply because the defendant doctor provides an unopposed

declaration by an expert does not necessarily mean the court should grant summary

judgment. In Kelley v. Trunk (1998) 66 Cal.App.4th 519, 78 Cal.Rptr.2d 122 [] Division

Seven of the Second District Court of Appeal held that ‘a defendant doctor is not

entitled to obtain summary judgment based on a conclusory expert declaration which

states the opinion that no malpractice has occurred, but does not explain the basis for

the opinion.’” (Id. at 123.)

In the Complaint, Plaintiff contends that Defendants caused them the injuries

“from on or about April 1, 2015 in the taking, reading, and reporting of a fetal

ultrasound of that date.” (Complaint, p. 4, ¶1.) Plaintiff further alleges that the

negligence “includes but is not limited to, the failure to properly read and report an

ultrasound of the fetus.” (Complaint, p. 4, ¶2.)

The Separate Statement contains proposed undisputed facts that each of the

defendants met the standard of care. (UMF Nos. 10, 12, and 14 (Defendant Dr.

Morgan); 24, 26, and 28 (Defendant Dr. McLain); 38 and 40(Defendant Vasquez); 50, 52,

53, 55, 56, 58, and 60 (Defendant Central California Faculty Medical Group); and 71,

73, 74, 76, 77, 79, and 81 (Defendant University Women’s Specialty Center).

In support of the facts in the Separate Statement, Plaintiff presents the

declaration of Joseph Ouzounian, M.D. who appears to be a qualified medical expert

on the standard of care for the treatment of pregnant women. His declaration lists,

among other things, that he is the Chief of the Division of Maternal-Fetal Medicine and

Vice Chair of the Department of Obstetrics and Gynecology at USC. (Declaration of

Ouzounian, ¶2.)

Ouzounian opines that the treatment of patient was up to the standard of care

insofar as all of the defendants involved met the standard of care in their handling of

the utlrasound of Plaintiffs’ unborn child on or about April 1, 2015. (Declaration of

Ouzounian, ¶¶ 7, 13.) Dr. Ouzounian states the basis for his conclusion that the handling

of the ultrasound met the standard of care in some detail. (Declaration of Ouzounian,

¶¶ 14-17.)

Since Defendants have presented the declaration of an expert on the

applicable standard of care, and who has opined with an adequate foundation that

the actions of Defendants met that standard of care, then the burden has shifted to

Plaintiffs to present contrary evidence. (Powell, supra, 151 Cal.App.4th at 122.) Because

Plaintiffs have not presented any evidence or argument, the motion must be granted.

Therefore, for all these reasons, the Court grants the motion for Summary

Judgment in its entirety. The Moving Party is ordered to prepare and file a judgment in

accordance with this decision within five court days of this order.

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

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

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

service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: DSB on 05/15/17


(30)

Tentative Ruling

Re: Eloisa Simancas v. Sidney Ybarra

Superior Court No. 15CECG03874

Hearing Date: Wednesday May 17, 2017 (Dept. 502)

Motion: Plaintiffs’ Motions to Compel and for Sanctions

Tentative Ruling:

To grant and to impose sanctions against Plaintiff Jesus Padilla in the amount of $1,180.

Sanctions must be paid to Attorney Ronald Gomez within 20 days after service of this

order.

Explanation:

Interrogatories: Code of Civil Procedure section 2030.290, subdivision (b) provides for a

motion to compel where the opposing party fails to respond to written interrogatories.

Further, when a party has not responded to interrogatories all a moving party need

show is that a set of interrogatories was properly served on the opposing party, that the

time to respond has expired, and that a response has not been served. (Leach v.

Superior Court (1980) 111 Cal.App.3d 902, 905-906.) Unresponsive parties waive all

objections, including privilege and work product. (Code Civ. Proc., § 2030.290, subd.

(a).)

Plaintiff Padilla was properly served with form and special interrogatories on January 11,

2017 (Gomez Dec, filed: 4/5/17 Ex.4 POS & Ex.5 POS), and the deadline passed without

compliance. (Code Civ. Proc., § 2030.260; Gomez Dec, filed: 4/5/17 ¶8; Memo filed:

4/5/17 p4 lns14-16.)

Request for Documents: Code of Civil Procedure section 2031.010, subsection (b),

allows a party to an action to demand the opposing party produce relevant,

unprivileged documents for inspection and copying. A party who has propounded a

request for documents may move for a motion to compel where the opposing party

fails to timely respond. (Code Civ. Proc., § 2031.300.) When a party has not responded

to requests for production, the opposing party waives all objections, including privilege

and work product. (Code Civ. Proc., § 2031.300.)

Here, on January 11, 2017 Plaintiff Padilla was properly served (Gomez Dec, filed: 4/5/17

Ex.2 POS), and the deadline passed without compliance. (Code Civ. Proc., § 2031.260;

Gomez Dec, filed: 4/5/17 ¶8; Memo filed: 4/5/17 p4 lns14-16.)

Request for Admissions: Where a party fails to timely respond to a propounding party’s

RFAs, the court must grant the propounding party’s motion requesting that matters be

deemed admitted, unless it finds that the party to whom the requests were directed has

served, prior to the hearing on the motion, a proposed response that is substantially in

compliance with Code of Civil Procedure section 2033.220. (Code Civ. Proc., §

2033.280, subd. (c); St. Mary v. Superior Court (2014) 223 Cal.App.4th 762, 778.)

“Substantial compliance” means compliance with respect to “every reasonable

objective of the statute.” (Id. at 779, internal quotation marks and citation omitted.)

Where the responding party serves its responses before the hearing, the court “has no

discretion but to deny the motion.” (Id. at 776.)

Here, on January 11, 2017 Plaintiffs properly propounded their Request for Admissions,

set one upon Plaintiff Padilla. (Gomez Dec, filed: 4/5/17 Ex.3 POS.) The deadline has

passed without compliance. (Code Civ. Proc., § 2033.250; Gomez Dec, filed: 4/5/17 ¶8;

Memo filed: 4/5/17 p4 lns14-16.)

Sanctions: Failing to respond or to submit to an authorized method of discovery is a

misuse of the discovery process. (Code Civ. Proc., §§ 2023.010, subd. (d).) And in these

circumstances, where The Court finds a misuse of the discovery process, it must impose

a monetary sanction ordering the person engaging in such misuse, or any attorney

advising such conduct, or both, to pay the reasonable expenses, including attorney’s

fees, incurred by the other party as a result of the offending party’s behavior. (Codes

Civ. Proc., §§ 2030.290, subd. (c); 2031.300; 2033.280.) “Reasonable expenses” include

the time moving party's counsel spent in research and preparation of the motion and

court time in connection with the motion. (Ghanooni v. Super Shuttle of Los Angeles

(1993) 20 Cal.App.4th 256, 262.)

Here, Plaintiff Padilla has failed to respond within the statutory timeframes. This is a clear

misuse of the discovery process and sanctions are therefore justified for having to bring

this motion. The court finds $1,180 is reasonable under the circumstances. The court,

however, also finds no showing has been made which would justify an award of

sanctions against counsel.

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




Re: Clowers v. County of Fresno

Court Case No. 13CECG01718


Motion: Motion for Apportionment of Verdict Funds

Tentative Ruling:

To continue to Wednesday, June 14, 2017, at 3:30 p.m. in Department 402, for

moving party to provide the court with evidence pertinent to deciding the proper

apportionment of the verdict funds.

Explanation:

Each wrongful death claimant is entitled to damages for all detriment he/she

personally suffered and is likely to suffer in the future because of decedent’s death.

(Corder v. Corder (2007) 41 Cal.4th 644, 663.) As a general rule, wrongful death

damages “are measured by the financial benefits the heirs were receiving at the time

of death, those reasonably to be expected in the future, and the monetary equivalent

of loss of comfort, society and protection.” (Id. at p. 661, internal quotes omitted.)

It is the court’s duty to apportion the wrongful death award between the various

claimants. (Code Civ. Proc. § 377.61.) An apportionment proceeding “is equitable in

character,” and thus there is no entitlement to a jury. (Corder v. Corder, supra, 41

Cal.4th at p. 654, fn 5.) While the recovery is in the form of a lump sum verdict

determined according to each heir’s separate interest in the decedent's life, “each heir

[is] required to prove his or her own individual loss in order to share in the verdict.” (San

Diego Gas & Elec. Co. v. Superior Court (2007) 146 Cal.App.4th 1545, 1551, brackets

added.) Therefore, the court may make unequal apportionment, depending on

evidence that would tend to show one claimant suffered a greater loss than another.

(See, e.g., Canavin v. Pacific Southwest Airlines (1983) 148 Cal.App.3d 512—allocation

of award between decedent’s adult daughter and his wife of eight months.) The

court’s allocation need not be based solely on the evidence admitted at trial (i.e., as to

the perceived contribution that each heir’s damages claim made to the verdict

amount), but can be based on new evidence presented in the apportionment

proceeding. (Corder v. Corder, supra at p. 660.)

The moving party has not presented the court with any evidence for the court to

evaluate. The court is aware only that the two minor children of decedent, the only

claimants, are close in age. No information has been presented as to whether they

were similarly situated with regard to decedent at the time of her death, or if there are

any other factors which would tend to show one of them suffered a greater loss than

the other (for instance, whether one child lived with decedent and the other did not, or

any other pertinent considerations).

It is possible that an equal division of the award in this situation is entirely

appropriate. (See, e.g., Canavin v. Pacific Southwest Airlines, supra, 148 Cal.App.3d at

pp. 535–536—noting that “the difficulty in ascertaining individual shares of lost

economic support when dealing with minors” was one factor making apportionment

appropriate for the court, rather than the jury, to decide.) However, the court cannot

decide this in a vacuum. Moving party must supply some evidence to support the

court’s ruling, which may also include pertinent evidence which was presented to the

jury at trial.

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


Tentative Ruling



Tentative Rulings for Department 503 03

Tentative Ruling

Re: Vang v. Hmong International New Year Foundation

Case No. 15 CE CG 03849

Hearing Date: May 17th, 2017 (Dept. 503)

Motion: Defendant’s Motions to Compel Plaintiffs Xia Vue Vang and

Mee Xiong to Respond to Defendant’s Form Interrogatories,

Set One, and Request for Production of Documents, Set

One, and Request for Monetary Sanctions

Tentative Ruling:

To grant defendant’s motions to compel plaintiffs Xia Vue Vang and Mee Xiong

to respond to defendant’s form interrogatories, set one, and request for production of

documents, set one. (Code Civ. Proc. §§ 2030.290; 2031.300.) Plaintiffs shall serve

verified responses without objections within 10 days of the date of service of this order.

Also, the court intends to grant monetary sanctions in the total amount of $500

against the plaintiffs and their attorney for their unjustified refusal to respond to

discovery. (Ibid.) Plaintiffs and their counsel shall pay sanctions to defendant within 30

days of the date of service of this order.

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: ___A.M. Simpson__ on _05/12/17

(Judge’s Initials) (Date)


Re: BMO Harris Bank, N.A. v. Singh



Motion: Application for Writ of Possession.

Tentative Ruling:

To continue the hearing on the application for writ of possession to Wednesday,

May 31, 2017 at 3:30 p.m. in Department 503 of this Court.

Moving party is to provide to the Court documentary proof of payments made

by Defendant and the last date on which Defendant made a payment. Such

documentation is to be provided to the Court by Thursday, May 25, 2017. The question

of the undertaking will be resolved at that hearing.

Plaintiff’s alternative request for a preliminary injunction is denied without

prejudice.

Explanation:

Whether a writ of possession is to be granted is governed by Code of Civil

Procedure §512.060, which states:

“a) At the hearing, a writ of possession shall issue if both of the following

are found:

(1) The plaintiff has established the probable validity of the plaintiff's claim

to possession of the property.

(2) The undertaking requirements of Section 515.010 are satisfied.”

Section 515.010 concerns the necessity of an undertaking and states:

“(a) Except as provided in subdivision (b), the court shall not issue a temporary

restraining order or a writ of possession until the plaintiff has filed an undertaking

with the court. The undertaking shall provide that the sureties are bound to the

defendant for the return of the property to the defendant, if return of the

property is ordered, and for the payment to the defendant of any sum

recovered against the plaintiff. The undertaking shall be in an amount not less

than twice the value of the defendant's interest in the property or in a greater

amount. The value of the defendant's interest in the property is determined by

the market value of the property less the amount due and owing on any

conditional sales contract or security agreement and all liens and

encumbrances on the property, and any other factors necessary to determine

the defendant's interest in the property.

(b) If the court finds that the defendant has no interest in the property, the court

shall waive the requirement of the plaintiff's undertaking and shall include in the

order for issuance of the writ the amount of the defendant's undertaking

sufficient to satisfy the requirements of subdivision (b) of Section 515.020.”

Section 515.020 allows a defendant to prevent the Plaintiff from taking possession

of the property if the defendant files an undertaking in an amount equal to the amount

of Plaintiff’s undertaking or in an amount to be determined by the Court pursuant to

Section 515.020, subsection (a).

“Probably validity” means that it is “more likely than not” that the plaintiff will

obtain judgment against defendant on the claim to possession of the property. (People

v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 919.)

In lieu of filing any affidavits or declarations, Plaintiff is relying on its verified

complaint. It is allowed to do this, so long as it otherwise satisfies the requirements of

Code of Civil Procedure §516.030:

The facts stated in each affidavit filed pursuant to this chapter shall be set forth

with particularity. Except where matters are specifically permitted by this chapter

to be shown by information and belief, each affidavit shall show affirmatively

that the affiant, if sworn as a witness, can testify competently to the facts stated

therein. The affiant may be any person, whether or not a party to the action,

who has knowledge of the facts.

The moving party has presented the declaration of Tonya Hinton, who works for

Plaintiff as a “Litigation and Bankruptcy Specialist” and has “custody and control of the

business records” for Plaintiff. (Hinton Decl. ¶1.) Ms. Hinton provides copies of the various

agreements at issue in this case. (Exhibits 1-3.) She notes that Defendant Singh has not

made payments on the Agreement since December 1, 2016. (Hinton Decl. ¶12.) Hinton

notes that the principal balance now owing is $54,801.65. (Hinton Decl. ¶13.) Finally,

Hinton avers, on information and belief, that the property at issue is in the possession of

Defendants. (Hinton Decl. ¶¶16-17.)

By this evidence, Plaintiff has mostly established the probably validity of its claim

against Defendant insofar as they’ve established the ownership of the property. What

Plaintiff has not provided, other than the statement of Hinton, is any documentary proof

that Defendant has fallen behind on the payments. The Court therefore continues the

hearing for two weeks to allow Plaintiff the chance to provide the supporting

documentation.

Plaintiff has also sought an injunction:

Cal. Civ. Proc. Sec. 526 states:

(a) An injunction may be granted in the following cases:

(1) When it appears by the complaint that the plaintiff is entitled to

the relief demanded, and the relief, or any part thereof, consists in

restraining the commission or continuance of the act complained

of, either for a limited period or perpetually.

(2) When it appears by the complaint or affidavits that the

commission or continuance of some act during the litigation would

produce waste, or great or irreparable injury, to a party to the

action.

(3) When it appears, during the litigation, that a party to the action

is doing, or threatens, or is about to do, or is procuring or suffering to

be done, some act in violation of the rights of another party to the

action respecting the subject of the action, and tending to render

the judgment ineffectual.

(4) When pecuniary compensation would not afford adequate

relief.

(5) Where it would be extremely difficult to ascertain the amount of

compensation which would afford adequate relief.

In deciding whether to issue a preliminary injunction, a court must weigh two

interrelated factors: “(1) the likelihood that the moving party will ultimately prevail on

the merits, and (2) the relative harm to the parties from issuance or nonissuance of the

injunction.” (O’Connell v. Superior Court (2006) 141 Cal.App.4th 1452, 1462 (quoting Butt

v. State of California (1992) 4 Cal.4th 668, 677-678.)

However, nothing in the declaration provided by Plaintiff indicates that there is

any irreparable harm to the Plaintiff should the injunction not be issued, and, indeed,

there is nothing before the Court to indicate that Plaintiff might improperly dispose of

the property. Therefore, the injunction is denied without prejudice should new

information or facts come to the attention of Plaintiff.

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

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

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


Tentative Ruling



(5)

Tentative Ruling

Re: ECN Financial, LLC v. Quality Carrier, LLC and Singh

Superior Court Case No. Case No: 16 CECG 04144


APPLICATIONS: (1) RTAO and Writ of Attachment Re: Quality Carrier, LLC

(2) RTAO and Writ of Attachment Re: Sandeep Singh

Tentative Ruling:

To grant the application as to Defendant Quality Carrier, LLC. The proposed

Order will be corrected re: new department and signed.

To grant the application as to Defendant Sandeep Singh. The proposed Order

will be corrected re: new department and signed.

Explanation:

Background

On or about November 13, 2015, Defendant Quality Carrier, LLC entered into a

written agreement with Plaintiff’s assignor, Volvo Financial Services for the purchase of a

2016 Volvo tractor-trailer including attachments and accessories; Model number

VNL64T780, VIN 4V4NC9EJ8GN957979. The total amount financed was $172,803.

On or about December 11, 2014, Defendant Sandeep Singh signed a

“continuing guaranty.” On or about December 3, 2015, a Certificate of Title was issued

by the Department of Motor Vehicles to the Defendant. The Certificate identified Volvo

Financial Services as a lienholder. On April 28, 2016, Defendant failed to make a

payment. This caused an acceleration such that the total amount became due.

On December 29, 2016, Plaintiff filed a Complaint alleging three causes of action

for breach of loan agreement, breach of guaranty and “unjust enrichment” and

pleading common counts for “open book” and “account stated.” On January 17,

2017, Plaintiff filed two separate notices of hearing for a right to attach order and a writ

of attachment. Proofs of service were filed showing personal service upon Sandeep

Singh in his individual capacity and as agent for service of process for Quality Carrier,

LLC. The summons, complaint and all moving papers for attachment were timely

served on each Defendant. [CCP §§ 484.040, 1005(a)(1) & (b)] No opposition was

filed.

[Note: A search of the Secretary of State’s website reveals that Quality Carrier,

LLC is a suspended limited liability company. But, a suspended limited liability company

may be sued. See Corporations Code § 17707.07]

Attachments in General

Proper Claims

Attachment is a purely statutory remedy. The attachment statutes are subject to

strict construction--i.e., unless specifically provided for by the attachment law, no

attachment procedure may be ordered by the court. See Nakasone v. Randall (1982)

129 Cal.App.3d 757, 761. Generally, an attachment may issue only if the claim sued

upon is:

· A "claim for money . . . based upon a contract, express or implied";

· Of a "fixed or readily ascertainable amount not less than $500";

· That is either unsecured or secured by personal property (including

fixtures); AND

· That is a commercial claim. See CCP § 483.010.

The money claim must be for a "fixed or readily ascertainable amount" of at least $500

(excluding costs, interest and attorney fees). See CCP § 483.010(a). Claims may be

aggregated to reach the minimum $500. The damages sought need not be liquidated,

but must be measurable by reference to the contract itself. See Lewis v. Steifel (1950)

98 Cal.App.2d 648, 650. A complaint must be filed before plaintiff may apply for an

attachment. See CCP §§ 484.010, 485.210, and 492.020.

Form of Evidence

A plaintiff’s declaration must, at the very least, show plaintiff would prevail on the

claim for which attachment is sought. In many cases, Plaintiff may be required to make

additional showings (e.g., that an individual defendant was engaged in a trade,

business or profession). The defendant must likewise present declarations to support its

claims. Unless the Code specifically authorizes facts to be shown by information and

belief, the declarant must affirmatively show that if sworn as a witness he or she could

competently testify to the facts stated in the declaration. See CCP § 482.040. At a

minimum, this means the declarant must show actual personal knowledge of the

relevant facts. See Evidence Code § 700 et seq. Thus, for example, a declaration

should not contain hearsay unless the declarant lays a foundation for an exception to

the hearsay rule based on personal knowledge.

Further, all facts must be stated "with particularity." See CCP § 482.040. This

means that attachment declarations must contain evidentiary facts, rather than the

ultimate facts commonly found in pleadings. Mere conclusions of law or fact are not

sufficient. See House v. Lala (1960) 180 Cal.App.2d 412, 416 (construing "particularity"

requirement of former summary judgment law). If matters are set forth on information

and belief (where authorized), the declarant must state the nature and reliability of the

information. CCP § 482.040.

Guarantor Liability

A guarantor or surety (there is no legal distinction between the two in California)

is one who promises to answer for the obligation or default of another or who pledges

property as security for such obligation. A “letter of credit,” however, is not a form of

suretyship obligation. [See Civil Code § 2787; American Contractors Indem. Co. v.

Saladino (2004) 115 Cal.App.4th 1262, 1268; R.P. Richards, Inc. v. Chartered Const.

Corp. (2000) 83 Cal.App.4th 146, 154]

A continuing guaranty is a guarantee of the guarantor's future liability under

successive transactions; it either continues or renews the guarantor's liability. [Civil Code

§ 2814; see Central Building, LLC v. Cooper (2005) 127 Cal.App.4th 1053, 1059] A

guaranty must be in writing and signed by the guarantor unless it is deemed to be an

original obligation of the guarantor in accordance with one of the exceptions listed in

Civil Code § 2794. [Civil Code § 2793]

A guaranty must be supported by independent consideration (i.e., consideration

distinct from the underlying obligation) unless:

The guaranty is executed at the same time as the underlying obligation; or

The creditor accepts the underlying obligation when the guaranty is entered

into; and

The guaranty forms part of the consideration to the creditor. [Civil Code § 2792]

A guaranty is presumed to be supported by valid consideration—i.e., the party seeking

to invalidate the guaranty bears the burden of proving lack of consideration. [Civil

Code § 1615] Generally, a guarantor is exonerated to the extent that it is prejudiced by

the creditor's failure to proceed against the debtor, or by the creditor's failure to pursue

any other remedy in the creditor's power that the guarantor cannot pursue. [Civil Code

§ 2845] However, a guarantor's liability under an unconditional guaranty is fixed upon

default. Thus, the creditor can pursue the guarantor without first resorting to other

remedies. [Civil Code § 2807; Ralston-Purina Co. v. Carter (1962) 210 Cal.App.2d 372,

380; Moffett v. Miller (1953) 119 Cal.App.2d 712, 713; see Gray1 CPB, LLC v. Kolokotronis

(2011) 202 Cal.App.4th 480, 488-489]

Merits

The Declaration of Eric Atherhold, Vice President of ECN Financial, LLC has been

submitted in support of each application. The Declaration meets the requirements of

CCP § 482.040 and the statutory requirements of CCP §483.010. See Declaration in its

entirety and Exhibits 1-3 attached thereto. In particular, Mr. Singh signed a continuing

guaranty. Although it states that it is governed by the law of North Carolina, the

provisions of the Guaranty are worded in such a manner as to confer enforceability in

any state. Importantly, the Guaranty states that it is direct and unconditional. See

Continuing Guaranty attached as Exhibit 1 to the Declaration of Atherhold. The

applications will be granted.

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

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



Tentative Ruling




Re: Genthner v. Liberty Mutual Fire Insurance Company et al.

Court Case No. 16 CECG 00160


Motion: Defendant Barbara Taylor’s Demurrer to First Amended Complaint

Tentative Ruling:

To sustain the general demurrer to the complaint without leave to amend.

Defendant will file an ex parte application for judgment of dismissal with this court within

10 days of the clerk’s service of notice of this minute order.

Explanation:

Meet and Confer

Defense counsel declares he called plaintiff on February 22, 2017, at her last

known telephone number and the phone simply rang without picking up. He emailed

her that day and received no response to his phone call or email. Plaintiff declares she

received no phone call or email. Section 430.41, subdivision (a)(4) provides, that even

a “determination by the court that the meet and confer process was insufficient shall

not be grounds to overrule or sustain a demurrer.” Accordingly, the court will address

the merits of the demurrer at this time.

Demurrers Generally

A demurrer is made under Code of Civil Procedure section 430.10, and is used to

test the legal sufficiency of the complaint or other pleading. (Rylaarsdam & Edmon,

Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2015) “Attacking the

Pleadings” § 7:5.) The demurrer admits the truth of all facts properly pleaded by the

plaintiffs, as well as those that are judicially noticeable. (Blank v. Kirwan (1985) 39

Cal.3d 311, 318.)

Defendant Barbara Taylor demurs generally to plaintiff’s entire complaint for

failure to state facts sufficient to state a cause of action.

First Cause of Action – “Intentional Tort”

“A demurrer may be sustained on statute of limitations grounds if the time bar

clearly and affirmatively appears on the face of the complaint.” (Doe v. Roman

Catholic Archbishop of Los Angeles (2016) 247 Cal.App.4th 953, 960.) Plaintiff does not

identify the legal theory she sues under in the first cause of action. However, a general

demurrer may be upheld “only if the complaint fails to state a cause of action under

any possible legal theory.” (Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992,

998.)

The gravamen of the allegations of this cause of action are that plaintiff was

injured when Barbara Taylor came out of a side street and hit the side of plaintiff’s car,

causing plaintiff whiplash and a concussion. The cause of action is therefore for

general negligence.

If an amended complaint brings in a new party defendant for the first time and

states a new cause of action as to that defendant and it may be held improper if the

statute of limitations has run. (Ingram v. Superior Court (1979) 98 Cal.App.3d 483, 492

[“amendment after the statute of limitations has run will not be permitted when the

result is the addition of a party who, up to the time of the proposed amendment, was

neither a named nor a fictitiously designated party to the proceeding.) “A recognized

exception to the general rule is the substitution under [Code of Civil Procedure] section

474 of a new defendant for a fictitious Doe defendant named in the original complaint

as to whom a cause of action was stated in the original complaint.” (Woo v. Superior

Court (1999) 75 Cal.App.4th 169, 176.) “If the requirements of section 474 are satisfied,

the amended complaint substituting a new defendant for a fictitious Doe defendant

filed after the statute of limitations has expired is deemed filed as of the date the

original complaint was filed.” (Ibid.) Here, plaintiff named no Does or any fictitiously

named defendants in her lawsuit at any time. Accordingly, the statute of limitations is

measured as to Barbara Taylor as of February 14, 2017 – the date the complaint first

naming her was filed.

An action based on personal injury or wrongful death caused by the wrongful

act or neglect of another, must be commenced within two years following the accrual

of the cause of action. (Code Civ. Proc., § 335.1.) A cause of action for personal injury

accrues on the date the injury is sustained. (Howe v. Pioneer Mfg. Co. (1968) 262

Cal.App.2d 330, 340.) Once a cause of action accrues, the applicable statute of

limitations begins to run (Code Civ. Proc., § 312) unless the cause of action is subject to

the “discovery rule.” The discovery rule applies where the pathological effect of a

wrongful act occurs without perceptible trauma, and the victim is blamelessly ignorant

of the cause of injury. (G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 25.)

Here, plaintiff alleges she suffered whiplash, concussion, cervical neck sprain, neck and

back injury and injuries or her right and left knees on the date of the accident. The

medical records attached to plaintiff’s complaint show that she sought medical

treatment for pain in her neck, back and knees no later than January 16, 2014, after the

accident on January 9, 2014.

Accordingly, the filing of the First Amended Complaint against Barbara Taylor

over three years later is untimely. The statute of limitations has run.

Second through Fourth Causes of Action

The second through the fourth causes of action mirror the first cause of action, as

all deal with plaintiff’s personal injuries from the automobile accident. The second

cause of action seeks compensation for her cervical neck sprain and all other neck

and back injuries sustained in the accident. The third cause of action seeks

compensation for bilateral foraminal impingement of the C5-C6 C-spine. The fourth

cause of action seeks recompense for injuries to plaintiff’s left and right knees. These

causes of action are barred for the reasons set forth with respect to the first cause of

action.

Fifth and Sixth Cause of Action

These two causes of action set forth claims of insurance bad faith as the

allegations concern the actions of Liberty Mutual and its claims adjustors in that they: 1)

did not negotiate fairly with plaintiff in settling her claim against Liberty Mutual’s insured;

2) did not offer a settlement that included the full costs of plaintiff’s medical treatment;

3) did not return her calls; and 4) did not offer fair value for her automobile. Plaintiff

seeks compensation for her pain and suffering and punitive damages.

These allegations appear to raise a claim of breach of the covenant of good

faith and fair dealing or, to put it another way, “bad faith.” Breach of this implied

covenant involves something beyond breach of the specific contractual duties or

mistaken judgment. (Chateau Chamberay Homeowners Ass'n v. Associated Int'l Ins. Co.

(2001) 90 Cal.App.4th 335, 345.) Although the duties may arise from contract, bad faith

is a tort. (Richardson v. Allstate Ins. Co. (1981) 117 Cal.App.3d 8, 13.) Typically, only an

insured may sue for bad faith.

A first party bad faith lawsuit involves an insured's claim against the insurer under

coverage written for the insured's direct benefit: “The gravamen of a first party lawsuit is

a breach of the implied covenant of good faith and fair dealing by refusing, without

proper cause, to compensate the insured for a loss covered by the policy … or by

unreasonably delaying payments due under the policy.” (Waters v. United Services

Auto. Ass'n (1996) 41 Cal.App.4th 1063, 1069-1070 (emphasis added).) A third party

“bad faith” lawsuit generally involves an insured's suit against his or her liability insurer

arising out of the insurer's alleged mishandling of a third party claim against the insured,

e.g., by unreasonably refusing to settle within policy limits or unreasonably refusing to

provide a defense. Although it is called a “third party” case, the cause of action for

breach of the implied covenant belongs to the insured –not the third party. The third

party claimant is not a party to the contract or an intended beneficiary of the insurer's

duty to settle claims against the insured. That duty is intended to protect the insured

from excess liability, rather than to benefit the third party claimant. (Murphy v. Allstate

Ins. Co. (1976) 17 Cal.3d 937, 944.)

Here, plaintiff is a third party and Liberty Mutual and its employees owe no duties

to her. Thus, the legal doctrine of bad faith will not provide a theory of recovery for the

first cause of action.

Furthermore, suits making allegations similar to plaintiff’s on a statutory basis have

been barred since the California Supreme Court issued its opinion in Moradi-Shalal v.

Fireman's Fund Ins. Cos. (1988) 46 Cal.3d 287. The Unfair Claims Settlement Practices Act

[Ins. Code, § 790 et seq.] requires insurers “to attempt in good faith to effectuate

prompt, fair and equitable settlements of claims in which liability has become

reasonably clear.” (Ins. Code, § 790.03, subd. (h)(5).) However, no private action is

created thereby; the enforcement power rests exclusively with the Insurance

Commissioner. Therefore neither the insured, nor a third-party with a claim against the

insured, can sue the insurer for violating this statute. (Moradi-Shalal v. Fireman's Fund

Ins. Cos., supra, 46 Cal.3d at 313.)

Adding Barbara Taylor to these causes of action adds nothing, as Taylor owes

plaintiff no duty to make her insurance company act in a particular way.

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




Re: Matias v. General Motors, LLC, Superior Court Case No.

16CECG01500


Motion: Plaintiff’s Motion to Compel Further Responses to Request for

Production of Documents, Set One

Tentative Ruling:

To grant. Within 30 days of service of the order by the clerk, defendant General

Motors, LLC shall serve further verified responses to Request for Production of

Documents, Set One, Nos. 7, 17, 20, 22, 23, 25, 26, & 49-52, without objection, and

produce all responsive documents (including electronic records). GM may withhold

documents subject to attorney-client privilege or work product protection, provided it

serves a privilege log clearly identifying such documents. Plaintiff and defendant shall

also meet and confer and agree on a protective order pursuant to which the records

will be produced.

Explanation:

This is a Lemon Law case. According to the Complaint, plaintiff purchased a

defective 2011 Chevy Cruze with engine defects that could not be repaired.

Defendant GM failed to repurchase the defective vehicle despite the numerous

unsuccessful repair attempts and knowledge of these defects in the same make, model

and year.

Plaintiff moves to compel further responses to his Request for Production of

Documents, Set One, Nos. 7, 17, 20, 22, 23, 25, 26, & 49-52, which are broadly divisible

into the following two categories: (1) all documents relating to GM’s internal

investigation and analysis of the alleged “Engine Defect” in both plaintiff's and other

customers’ vehicles (Nos. 17, 20, 22, 23, 25, and 26) and (2) all documents relating to

GM's warranty and vehicle repurchase policies, procedures, and practices, as well as

documents referencing plaintiff’s specific vehicle and interaction with GM (Nos. 7 and

49-52).

This motion was originally set for 2/15/17. But because there was a pending CCP

§ 998 offer from defendant, the court continued the motion to see if the action would

settle. Additionally, the court was concerned that the expense of complying with these

discovery demands might be high in relation to the value of the case. But the

opposition papers lacked any declarations or evidence substantiating the objections

that the requests are burdensome and oppressive. (See West Pico Furniture Co. of Los

Angeles (1963) 56 Cal.2d 407, 417 [“The objection based upon burden must be

sustained by evidence showing the quantum of work required, while to support an

objection of oppression there must be some showing either of an intent to create an

unreasonable burden or that the ultimate effect of the burden is incommensurate with

the result sought”].) Accordingly, the court suggested in the 2/15/17 order that

defendant obtain and file a declaration substantiating this objection. The court also

suggested that defendant provide the exhibits omitted from the request for judicial

notice. For some reason defendant opted not to file anything further in connection

with this motion.

Accordingly, the court intends to grant the motion.

The court overrules the objections that the demands are overbroad and seek

irrelevant information to the extent that they seek any information about vehicles other

than plaintiff’s specific vehicle. A party may obtain discovery regarding any matter

that is relevant and not privileged. (Code Civ. Proc. § 2017.010.) Any doubts as

relevance should generally be resolved in favor of permitting discovery. (Colonial Life

and Acc. Ins. Co. v. Super Court (1982) 31 Cal.3d 785, 790.) Plaintiff contends that his

vehicle suffered from various defects, including the “Engine Defects,” that defendant’s

authorized repair facilities have failed to repair within a reasonable number of

opportunities. Plaintiff also contends that, notwithstanding defendant’s internal

awareness and inability to repair the issues with the vehicle, defendant nevertheless

refused to repurchase plaintiff‘s vehicle. Evidence that defendant was aware, or

should have been aware, of a prevalent, unrepairable defect could show that

defendant willfully failed to abide by its obligations under the Song-Beverly Consumer

Warranty Act by either turning a blind eye to such evidence or adopting internal

policies to avoid discovery of such facts. Such evidence is relevant to plaintiff’s claim

for penalties under Civil Code § 1794(c), which requires a showing that the failure to

comply was willful.

The burden and oppression objections are overruled, as defendant has failed to

provide the court any information substantiating these objections, despite having been

giving three months to do so.

To the extent that the objection is based on the requests for electronically stored

information, has failed to provide the information required by Code of Civil Procedure §

2031.210(d).

The overbreadth objections are overruled. These objections are mainly based

on the contention that the demands would require it to compile information related to

vehicles other than plaintiff’s. Additionally, defendant fails to provide information about

its policies, procedures or systems so as to show that the requests would require the

production of documents unrelated to plaintiff’s model vehicle and year.

The attorney-client privilege / work product objections might have merit, but no

information is provided to substantiate them. “If an objection is based on a claim of

privilege or a claim that the information sought is protected work product, the response

shall provide sufficient factual information for other parties to evaluate the merits of that

claim, including, if necessary, a privilege log.” (Code Civ. Proc. §2031.240(c)(1).)

Defendant may withhold documents on the basis of this privilege, but must serve, with

the further responses, a privilege log clearly identifying any documents that it contends

fall within either privilege.

The objections that the request seeks confidential and proprietary information

are overruled. These are not appropriate objections to discovery requests. (See

Columbia Broadcasting System, Inc. v. Superior Court (1968) 263 Cal.App.2d 12, 23 [“We

know of no case holding that this is a proper objection to an otherwise proper

interrogatory.”].) The answering party should seek a protective order to excuse the

duty to answer. An objection is not the equivalent of such a motion. (Id.) Moreover,

the opposition provides no evidence in the form of declarations substantiating these

objections.

The vague and ambiguous objections are overruled. Even “where the question is

somewhat ambiguous, but the nature of the information sought is apparent, the proper

solution is to provide an appropriate response”. (Deyo v. Kilbourne (1978) 84

Cal.App.3d 771, 783.) None of the terms used in the requests are so vague that an

appropriate response cannot be given.

The “self-serving” and “assumes facts not in evidence” objections are overruled.

These are not a viable grounds for objecting to discovery.

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

