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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
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
To deny. (Code Civ. Proc. 918(b).)
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
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
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.
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
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.
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