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  • 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. Defendants

    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

    (Judges initials) (Date)

  • (24) Tentative Ruling

    Re: Moreno v. Club One Casino

    Court Case No. 14CECG03196

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

    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 complaintare taken, and if it does not it may be disregarded.

    While the document entitled Notice of Demurrer and Demurrer to Plaintiffs 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

    Plaintiffs 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. 336second 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, 537finding 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 110Plaintiffs 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

    didengage 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, 538The view that defendantmust 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, plaintiffs allegation that defendants were employees is

    sufficient at the pleading sta

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