tentative rulings for may 7, 2009jul 22, 2020 · opposition to the summary judgment motion and...

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Tentative Rulings for July 22, 2020

Department 403

Due to the ongoing COVID-19 pandemic, parties are strongly encouraged to appear

by CourtCall for any law and motion matters for which oral argument is timely

requested.

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).)

18CECG03486 Ramirez v. Gilbert (Dept. 403, afternoon session)

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

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

________________________________________________________________

(Tentative Rulings begin at the next page)

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Tentative Rulings for Department 403 (AM)

(03)

Tentative Ruling

Re: Orozco v. Hodanu

Case No. 18CECG00965

Hearing Date: July 22, 2020 (Dept. 403)

Motion: Plaintiff’s Motion for Appointment of Counsel re:

Reconsideration of Grant of Summary Judgment to

Defendants Abolnik, Amalgam, and Nwaka, and for

Reconsideration of Plaintiff’s Cross-Motion for Summary

Judgment

Tentative Ruling:

To deny plaintiff’s motion for appointment of counsel, and the motion for

reconsideration of the order granting summary judgment in favor of defendants Abolnik,

Amalgam, and Nwaka, as well as the motion for reconsideration of plaintiff’s cross-motion

for summary judgment. (Code Civ. Proc. § 1008, subd. (a); Penal Code § 2601, subd.

(d).)

Explanation:

In Smith v. Ogbuehi (2019) 38 Cal.App.5th 453, the Fifth District Court of Appeal

held that the trial court erred when it failed to exercise its discretion in response to the

indigent prisoner plaintiff’s motion for appointment of counsel in his civil action for

medical malpractice. “The California Constitution and Penal Code section 2601,

subdivision (d) provide indigent prisoners with the right of meaningful access to the courts

to prosecute civil actions. One of the discretionary measures available to protect the

right of access to the courts is the appointment of counsel. Consequently, the trial court

had the discretionary authority to appoint counsel. The court's statement that it was

without the authority to appoint counsel did not recognize the existence and scope of

its discretionary authority.” (Id. at p. 458.)

“The exercise of a trial court's discretion is guided by a three-step inquiry

established in published appellate decisions. (Apollo v. Gyaami (2008) 167 Cal.App.4th

1468, 1485–1487, 85 Cal.Rptr.3d 127 (Apollo); Wantuch v. Davis (1995) 32 Cal.App.4th 786,

792, 39 Cal.Rptr.2d 47 (Wantuch).) First, the trial court determines whether the prisoner is

indigent. Second, the court determines whether the lawsuit involves a bona fide threat

to the inmate's personal or property interests. If both conditions are satisfied, the trial

court must consider the measures available to protect appellant's right of meaningful

access to the courts, including the appointment of counsel. Where the indigent prisoner's

civil action is bona fide and his or her access to the court is being impeded, a trial court

must provide a remedy; it may not choose to do nothing.” (Ibid.)

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“California decisions identify the appointment of counsel as one of the measures

available to a trial court to assure an indigent prisoner is provided meaningful access to

the courts. However, neither the California Constitution nor Penal Code section 2601,

subdivision (d) have been interpreted to require the appointment of counsel for indigent

plaintiff litigants as a matter of right. Instead, the choice of measures to safeguard a

prisoner's right, as a plaintiff or defendant, to meaningful access to the courts to

prosecute a civil action is committed to the trial court's discretion.” (Id. at p. 468, internal

citations omitted, italics in original.)

“[A] trial court does not have discretion to choose no remedy in cases where the

prisoner's civil action is bona fide and his or her access to the courts is being impeded.

Indeed, the California Supreme Court has suggested that, in certain cases, appointment

of counsel may be the only remedy available to protect a prisoner litigant's right of

meaningful court access: ‘In an appropriate case, and as a last alternative, appointment

of counsel may be the only way to provide an incarcerated, indigent civil defendant

with access to the courts for the protection of threatened personal and property rights.’”

(Apollo, supra, 167 Cal.App.4th at p. 1484, internal citation omitted.)

“The next two legal questions we resolve relate to the trial court's determination of

whether an inmate's ‘access to the courts is being impeded.’ First, we conclude the

determination of whether access is being impeded is committed to the trial court's

discretion… Second, we conclude a trial court must examine the totality of the

circumstances when making the discretionary determination of whether an inmate's

access is being impeded. It follows that the relevant circumstances include, without

limitation, the factors listed in the federal decisions for determining whether exceptional

circumstances exist in a particular case. Accordingly, trial courts should consider those

factors when weighing the totality of the circumstances before deciding whether an

inmate's access to the courts is being impeded.” (Smith v. Ogbuehi, supra, 38

Cal.App.5th at p. 470, internal citations and footnote omitted.)

“In determining the existence of exceptional circumstances, federal district courts

consider ‘(1) the type and complexity of the case; [¶] (2) whether the indigent is capable

of adequately presenting his case; [¶] (3) whether the indigent is in a position to

investigate adequately the case; ... [¶] (4) whether the evidence will consist in large part

of conflicting testimony so as to require skill in the presentation of evidence and in cross

examination’ and (5) ‘whether appointed counsel would aid in the efficient and

equitable disposition of the case.’” (Id. at p. 469, internal citations omitted.)

In the present case, it appears that plaintiff has met the first two requirements for

a motion to appoint counsel, since he is indigent and the case arguably presents a bona

fide threat to his personal interests, as he has alleged that he was assaulted and battered,

which resulted in serious personal injuries. However, plaintiff has not shown that his right

of meaningful access to the court has been impeded.

Plaintiff contends that his access to the court has been impeded because “there

is no indication from the record that Plaintiff had the meaningful opportunity to argue

against Defendants’ summary judgment motion nor as a proponent of his own cross-

motion for summary judgment. The Court merely adopted its tentative ruling on the

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matters, shutting Plaintiff out of consideration, even after Plaintiff request [sic] a hearing

on the matters.” (Motion for Appointment of Counsel, p. 5:16-20.)

However, plaintiff presents no evidence, such as his own declaration, to support

his assertion that he was denied access to the court at any time, including the hearing

on the summary judgment motions. He simply claims that he was “shut out of

consideration” on the motions and that he was not allowed to present oral argument.

Yet plaintiff was able to file a substantive opposition to the summary judgment motion,

as well as his own cross-motion for summary judgment in his favor. Therefore, plaintiff was

apparently able to access the court to the extent that he was able to file his opposition

and cross-motion.

Also, the court followed the normal procedures for law and motion matters when

it made its decision on the summary judgment motions, including making the tentative

ruling available to the parties the day before the hearing and giving the parties a chance

to request oral argument on the tentative ruling. Plaintiff simply never requested oral

argument, and he did not appear at the hearing telephonically to argue his opposition

or his own cross-motion for summary judgment. The court adopted its tentative ruling

when plaintiff failed to appear or request oral argument. Therefore, plaintiff has failed to

show that he was denied access to the court on the motions for summary judgment.

Nor has plaintiff shown that he has been denied access to the court in any other

way. Again, plaintiff has not filed any evidence or declarations that would tend to show

that he has been unable to access the court to prosecute his case. Indeed, the court’s

record is replete with filings by plaintiff, including subpoenas for witnesses and

documents, motions to compel compliance with deposition subpoenas, motions for a

stay of proceedings, petitions for writs of mandate to the Fifth District Court of Appeal,

opposition to the summary judgment motion and demurrer, a cross-motion for summary

judgment, a demurrer to the defendants’ answer, a motion for reconsideration of the

order granting summary judgment, etc. Plaintiff has been able to appear at various

status and case management conferences, confer with opposing counsel, and argue

his motions and oppositions to the court. Thus, it does not appear that plaintiff’s access

to the court has been meaningfully impeded.

Also, with regard to the factors considered by the courts in determining whether

the plaintiff’s access to the court has been impeded, the present case is not particularly

complex or difficult. At its core, it involves an alleged assault and battery by an employee

of Coalinga State Hospital against plaintiff, with resulting personal injuries to plaintiff.

While plaintiff does allege ongoing medical issues and damages, the basic issues of the

case will likely boil down to whether a battery occurred, whether the defendant will be

able to prove defenses such as self-defense or defense of others, and the extent of

plaintiff’s damages. Most of the facts should be established through the testimony of

only a handful of witnesses, including plaintiff, defendant Hodanu, and any other

witnesses who might have witnessed the incident and its aftermath.

These issues are not especially complex, and it appears that plaintiff is capable of

putting on his case without the help of an attorney, despite his indigent and confined

status. Plaintiff has also shown that he has been able to investigate his case, as he has

obtained subpoenas for witnesses and documents, and the depositions of several

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witnesses have been taken. He should also be able to put on the necessary evidence to

prove up his case, including presenting his own testimony as to the incident, as well as

examining Hodanu and the other witnesses to the incident. While appointing counsel for

plaintiff might possibly assist him in presenting his case, it does not appear that the issues

and facts of the case are so complex or difficult as to make appointment of counsel

necessary in order to allow plaintiff meaningful access to the court. Therefore, the court

intends to deny the motion for appointment of counsel.

Also, to the extent that plaintiff seeks reconsideration of the court’s order granting

defendants’ summary judgment motion and denying his own cross-motion for summary

judgment, the court has already previously ruled on and denied plaintiff’s motion for

reconsideration. As the court found in its order denying the last motion for

reconsideration, the court lacks jurisdiction to grant reconsideration because the court

has already entered judgment in favor of defendants. (Safeco Ins. Co. v. Architectural

Facades Unlimited, Inc. (2005) 134 Cal.App.4th 1477, 1481-1482; Ramon v. Aerospace

Corp. (1996) 50 Cal.App.4th 1233, 1236.)

Plaintiff has not presented any new arguments, facts, or law that would lead to a

different result now. Therefore, the court intends to deny the motion to the extent that

plaintiff seeks reconsideration of the order granting summary judgment in favor of

defendants and denying plaintiff’s cross-motion for summary judgment.

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: ____KCK__________________________ on __07/20/2020________________.

(Judge’s Initials) (Date)

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(03)

Tentative Ruling

Re: Patterson v. Clovis Community Medical Center

Superior Court Case No. 18CECG04476


Motion: By Defendant Clovis Community Medical Center for Summary

Judgment

Tentative Ruling:

To deny defendant Clovis Community Medical Center’s motion for summary

judgment. (Code Civ. Proc. § 437c.)

Explanation:

“The standard of care in a medical malpractice case requires that physicians

exercise in diagnosis and treatment that reasonable degree of skill, knowledge and care

ordinarily possessed and exercised by members of the medical profession under similar

circumstances. [Citations.] ‘ “The standard of care against which the acts of a physician

are to be measured is a matter peculiarly within the knowledge of experts; it presents the

basic issue in a malpractice action and can only be proved by their testimony [citations],

unless the conduct required by the particular circumstances is within the common

knowledge of the layman.” [Citations.]’ [Citation.]” (Munro v. Regents of University of

California (1989) 215 Cal.App.3d 977, 983–984; see also Landeros v. Flood (1976) 17 Cal.3d

399, 410.)

“California courts have incorporated the expert evidence requirement into their

standard for summary judgment in medical malpractice cases. 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.” (Hutchinson v.

United States (9th Cir. 1988) 838 F.2d 390, 392.)

Here, defendant Clovis Community Medical Center (CCMC) has submitted

declarations from its expert, who states that defendants did not breach the standard of

care with regard to the care and treatment of plaintiff. (Decl. of Rosemary Welde, R.N.,

¶ 9.) Nurse Welde also opines that nothing defendant CCMC’s staff or nurses did or failed

to do caused or contributed to plaintiff’s injuries. (Welde decl., ¶ 9.)

However, CCMC’s expert declaration is insufficient to meet its burden, since Nurse

Welde’s declaration merely provides unsupported conclusions that CCMC’s nurses and

staff did not breach the standard of care or cause plaintiff’s injuries. Welde does not

explain why she reached the conclusion that there was no breach of the standard of

care or causation. She simply recites the facts about plaintiff’s illness and treatment from

the medical records, and then concludes that there was no breach of the standard of

care or causation by CCMC. (Welde decl., ¶ 9.) Such unsupported conclusions are

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insufficient to meet defendant’s burden on summary judgment. (Kelley v. Trunk (1998) 66

Cal.App.4th 519, 524: [“A]n opinion unsupported by reasons or explanations does not

establish the absence of a material fact issue for trial, as required for summary

judgment.”]) Plaintiff has objected to Welde’s declaration, and the court intends to

sustain the objection. Since Welde’s declaration is inadmissible, CCMC has not met its

burden of showing that its nurses and staff did not breach the standard of care or cause

plaintiff’s damages, and the burden does not shift to plaintiff to present evidence

rebutting defendant’s motion.

Nevertheless, even if defendant had met its burden of production, plaintiff has

submitted her own expert declarations that raise triable issues of material fact with regard

to whether defendant breached the standard of care and caused her damages.

Plaintiff submits the declarations of Dr. Raul Lopez and Dr. Eric Morse, both of whom opine

that defendants breached the standard of care with regard to their care and treatment

of plaintiff.

Dr. Morse states that CCMC’s treatment or non-treatment of plaintiff on December

11, 2017 when she was in the emergency department caused her gallbladder and

infection to worsen over two days, which created a difficult cholecystectomy and an

inadvertent injury complication. (Morse decl., ¶ 7.) He also opines that Dr. Ambe failed

to be diligent in looking for signs of complications after the surgery to remove plaintiff’s

gallbladder, and at a minimum perform an ultrasound on plaintiff’s abdomen. (Ibid.) He

ignored signs and symptoms of surgical complications, including continuous pain,

elevated AST and ALT beyond 72 hours, and abdominal distension. (Id. at ¶ 10.) Dr.

Ambe ignored these symptoms and discharged plaintiff from the hospital on December

18, 2017. (Ibid.) He was obligated to investigate the origin of these symptoms by at least

performing an ultrasound. (Ibid.) By ignoring or masking these symptoms, bile was

allowed to fill her abdomen, which caused additional complications and nearly cost

plaintiff her life. (Ibid.) “But for the negligent actions and inactions of the Clovis

Community Hospital and Dr. Ambe, Ms. Patterson’s outcome would have been better.”

(Ibid.)

In addition, Dr. Lopez states that CCMC’s care and treatment of plaintiff fell below

the standard of care and caused her injuries. (Lopez decl., ¶¶ 7, 8.) He opines that nurse

practitioner Perry and the overseeing emergency room physician should have requested

a consultation with the general surgeon when plaintiff returned to the emergency room

on December 11, 2017, as her condition had worsened significantly since her prior visit on

November 13, 2017. (Id. at ¶ 8.) She reported that her pain was 10/10, and continued to

be 5/10 at discharge even after receiving pain medications. (Ibid.) Her white blood cell

count was elevated, she had a low grade temperature, she had been vomiting, the

ultrasound showed that her gall bladder wall was thickening, and the radiologist

recommended additional imaging to evaluate her condition further. (Ibid.) Thus, she

should have been given a consultation with a general surgeon, been admitted for

observation, and monitored for apparent infection and distress, as well as having fluids

administered to increase hydration. (Ibid.) At a minimum, plaintiff should have been

prescribed antibiotics and referred for a prompt follow-up with a qualified surgeon. (Ibid.)

Dr. Lopez also concludes that these departures from the standard of care resulted

in harm to plaintiff to a reasonable degree of medical probability, as they increased the

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chance of infection and complications in a potential cholecystectomy procedure. (Id.

at ¶ 9.) “Had Ms. Patterson been admitted or had appropriate and timely surgical follow

up for her brewing infection and increasing pain and distress on December 11, 2017, she

probably would not have had the same severe emergency on December 13, 2017, or

the complicated hospitalizations that were a continuation of the medical emergency

she was already experiencing on December 11, 2017. I therefore believe it is reasonable

probable that Ms. Patterson’s unfortunate clinical course could have been averted if she

had been provided with the standard-compliant care and treatment identified in the

preceding paragraph.” (Ibid.)

Thus, plaintiff has submitted sufficient expert testimony to raise a triable issue of

material fact with regard to whether CCMC’s care and treatment of her fell below the

standard of care, and whether its negligence caused her damages. Consequently, the

court intends to deny the motion for summary judgment.

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

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

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

will constitute notice of the order.

Tentative Ruling

Issued By: KCK on 07/20/2020 .

(Judge’s initials) (Date)

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(28) Tentative Ruling

Re: Fri Poutinerie v. Comm 2006-C8 Shaw Avenue Clovis LLC



Motion: By Defendant Comm 2006-C8 Shaw Avenue Clovis, LLC for

Judgment on the Pleadings on the First Amended Complaint

brought by Plaintiff Fri Poutinerie.

Tentative Ruling:

To deny the motion for judgment on the pleadings.

Explanation:

Defendant Comm 2006-C8 Shaw Avenue Clovis, LLC (Defendant) moves for

Judgment on the Pleadings on the First Amended Complaint brought by Plaintiff Fri

Poutinerie (Plaintiff). The motion is directed at the First Cause of Action for Breach of

Contract, the Second Cause of Action for Breach of the Covenant of Good Faith and

Fair Dealing, the Third Cause of Action for Intentional Misrepresentation and the Fourth

Cause of Action for Negligent Misrepresentation.

Plaintiff’s claims arise from a commercial lease agreement to rent space for a

restaurant from Defendant. The restaurant was intended to be a themed restaurant

specializing in Canadian poutine. The breach of contract causes of action are

generally based on allegations that Defendant unreasonably withheld approval of the

assignment of Plaintiff’s lease. The fraud causes of action are generally based on

allegations that a representative of Defendant made misrepresentations concerning

the success of the previous tenant of the premises, which was also a restaurant.

Defendant asserts several arguments in its motion: first, that the Lease Agreement

allowed Defendant to deny the requested assignment; second, that the Lease

Agreement foreclosed any claim for damages as a result of the failure to approve the

assignment; third, that asserted misrepresentations are not actionable because they

are immaterial or opinions, and, finally, that Plaintiff is judicially estopped from claiming

that the alleged misstatements are false. For the reasons set forth below, Defendant’s

arguments are without merit, and the motion is denied.

A motion for judgment on the pleadings has the same function as a general

demurrer but is made after the time for demurrer has expired, and so the rules

governing demurrers apply. (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th

995, 999.) As with demurrers, grounds for a motion for judgment on the pleadings must

appear on the face of the challenged pleading or on facts that the court may

judicially notice. (Saltarelli & Steponovich v. Douglas (1995) 40 Cal.App.4th 1, 5.) When

reviewing a pleading, a motion for judgment on the pleadings admits the truth of all

material allegations and a Court will “give the complaint a reasonable interpretation by

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reading it as a whole and all its parts in their context.” (People ex re. Lungren v. Superior

Court (1996) 14 Cal.4th 294, 300.)

1) The First Cause of Action for Breach of Contract and the Second Cause of

Action for Breach of the Covenant of Good Faith and Fair Dealing.

Plaintiff alleges causes of action for breach of contract, and breach of the

covenant of good faith and fair dealing, based on its allegation that Defendant

unreasonably withheld its assent to allow Plaintiff to assign the lease. (FAC ¶¶ 22-24.)

The argument expressly made in Defendant’s moving papers is that, per the

terms of the Lease Agreement, Defendant had the right to deny the assignment.

(Memo of Ps and As. at p. 10 (“FRI's request for COMM's consent to an assignment of

the Lease to Buyers did not obligate COMM to simply acquiesce to the request.”)

Defendant cites to various cases giving parties to a contract the right to refuse to

modify a contract. (Carma Developers (Cal.), Inc. v. Marathon Development California,

Inc. (1992) 2 Cal.4th 342, 374.)

However, the controlling provision of the Lease states as follows:

“Tenant shall not assign this Lease or sublet any portion of the Premises without

prior written consent of the Landlord, which consent shall not be unreasonably

withheld, provided Tenant is not in default under the Lease at the time of such

request.” (FAC, ¶ 9, citing ¶ 10.1 of the Lease.)

In its moving papers, Defendant made no argument and cited to no authority

concerning whether or the assent was “unreasonably withheld,” and did not contend

that paragraph 10.1 of the Lease was inapplicable in the present case. Simply put,

Defendant did not reference or acknowledge the Lease’s requirement that consent

could not be “unreasonably withheld.”

As noted by Plaintiff, this particular issue is unsuitable for resolution by a demurrer

or motion for judgment on the pleadings, as, by statute, “[w]hether the landlord's

consent has been unreasonably withheld in a particular case is a question of fact...."

(Cal. Civ. Code, § 1995.260.)

Therefore, because Defendant did not address this issue, and because resolution

of the withholding of consent for the assignment is a question of fact in any case, the

motion for judgment on the pleadings will not be granted on this ground as to the First

and Second Causes of Action.

In its reply brief, Defendant argues for the first time that First Amended Complaint

inadequately alleged reasonableness, because the language use was conclusory.

(Reply at pp. 3-4, citing, e.g., Norkin v. U.S. Fire Ins. Co. (1965) 237 Cal.App.3d 435, 438.)

Arguments raised for the first time in a reply brief will normally not be considered.

(Reichardt v. Hoffman (1997) 52 Cal.App.3th 754, 764-65.) Defendant did not initially

argue that the pleading was insufficient to support allegations of unreasonableness;

rather, it argued that Defendant was allowed to deny the request for assignment with

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no conditions. Because Defendant did not make the argument in its moving papers,

the motion cannot be granted on this ground.

Defendant also argues that this Court’s October 17, 2019 ruling on the demurrer

brought by the proposed assignees forecloses Plaintiff’s arguments here. The proposed

assignees, Greg Newman and the Woodmont Company, were cross-defendants in a

claim filed by Plaintiff’s principal, Raymond Prime. In its ruling, the Court sustained the

proposed assignee’s demurrer without leave to amend on several grounds. The Court’s

reasoning hinged on its interpretation of paragraph 10.3 of the lease agreement. That

provision states, in pertinent part: “All cash or other consideration received by Tenant as

the proceeds of any assignment or sublease of Tenant's interest in this Lease and/or the

Premises, whether consented to by Landlord or not, shall be paid to Landlord,

notwithstanding the fact that such proceeds exceed the Rent due hereunder.” In the

Court’s order, the Court interpreted that provision as legally foreclosing Prime from

obtaining any damages from the proposed assignees. This ruling is inapplicable here,

where the damages claims arise from the Defendant’s alleged refusal to assent to the

assignment, and not for payments made to Plaintiff for the assignment.

Defendant argues, “[t]he Court also previously held that COMM's refusal to

provide written consent to the proposed assignment was not a breach of the Lease.”

(Memo of Ps and As at p. 11.) There is language in the October 17, 2019 order that one

basis for sustaining the demurrer was that the landlord could have withheld approval

for the lease and, instead, could have negotiated directly with the proposed assignees

under Paragraph 10.2. However, there is no reference to paragraph 10.1 in that Order,

and it appears that that provision played no role in the Court’s October 17, 2019 ruling.

Regardless, reading paragraphs 10.1-10.3 of the Lease together indicate the

following: Plaintiff could request approval of the assignment and that approval could

not be unreasonably withheld (¶ 10.1); the landlord could approve the assignment,

negotiate with the proposed assignee, recapture the premises, or deny the request by

doing nothing for thirty days (¶ 10.2); and, the tenant could not profit by receiving

anything for the assignment and any such consideration would belong to the landlord

(¶10.3). Therefore, while it is true that the landlord could negotiate directly with the

proposed assignee under the lease under paragraph 10.2, it could only do so if it was

reasonable to refuse to consent to the proposed assignment under paragraph 10.1. In

other words, Plaintiff may sue for breach of paragraph 10.1, and must show it was

unreasonable for Defendant to withhold its assent to the assignment and proceed with

the other options under paragraph 10.2. Any other interpretation of the contract would

render the “unreasonable assent” provisions of paragraph 10.1 a nullity. The general

rule of contract interpretation that “[t]he whole of a contract is to be taken together, so

as to give effect to every part, if reasonably practicable, each clause helping to

interpret the other.” (Civ. Code, § 1641.) This rule is intended “to disfavor constructions

of contractual provisions that would render other provisions surplusage. [Citation.]”

(Boghos v. Certain Underwriters at Lloyd's of London (2005) 36 Cal.4th 495, 503.)

Defendant also argues that a breach of contract claim cannot be stated

because paragraph 10.3 prevents Plaintiff from gaining any compensation from any

assignment. (Memo of Ps & As at p. 12; Reply Br. at p. 5.) However, as noted above,

paragraph 10.3 is a limit on compensation for obtaining an assignment, it is not a

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limitation on damages where a landlord unreasonably withholds consent for the

assignment. Defendant’s argument strains the language of the lease and would render

any breach of the “unreasonable” provisions of 10.1 non-compensable.

The final issue raised by Defendant with respect to these causes of action

concerns Defendant’s alleged removal of banner signs. Defendant argues that its

removal of the banners cannot form the basis for a breach of contract claim because

the Lease Agreement specifically allowed Defendant to remove the particular banners.

However, a motion for judgment on the pleadings, as a form of a demurrer, cannot be

granted as to part of a cause of action. (Fire Ins. Exch. v. Superior Court (2004) 116

Cal.App.4th 446, 452.) Therefore, the motion cannot be granted as to the part of the

claims for breach of contract concerning the removal of banners. For all these reasons

the motion is denied as to the First and Second Causes of Action.

2) The Third Cause of Action for Intentional Misrepresentation and the Fourth

Cause of Action for Negligent Misrepresentation.

Plaintiff’s claims for intentional and negligent misrepresentations are based on

allegations that a representative of Defendant told Plaintiff’s representative that the

prior tenant, a restaurant, made $40,000 per month and only vacated the lease

because that lessee’s daughter did not want to manage the restaurant any longer.

(FAC, ¶¶ 35, 44.) The truth, as alleged by Plaintiff, was that the location was unsuitable

for a restaurant, and the previous tenant had been sued by the Mall and declared

bankruptcy. (FAC, ¶¶ 36, 45.)

Defendant contends that these allegations are insufficient to support the claims

for intentional or negligent misrepresentation because the misrepresentation is

immaterial. Defendant cites to no case authority for the proposition that the materiality

of a representation can be determined as a question of law on a demurrer or motion

for judgment on the pleadings. As noted by Plaintiff, the materiality of a

misrepresentation is generally a question of fact. (In re Tobacco II Cases (2009) 46 Cal.

4th 298, 327.) The materiality of a purported misrepresentation can only defeat a claim

where the alleged misstatement is “so obviously unimportant that the jury could not

reasonably find that a reasonable man would have been influenced by it."

(Charpentier v. Los Angeles Rams Football Co. (1999) 75 Cal. App. 4th 301, 313 (quoting

Rest.2d Torts (1977) § 538, com. e.).) Here, at the pleading stage, it cannot be said that

the alleged misrepresentations are immaterial as a matter of law.

Defendant also relies on the purported differences between Plaintiff’s restaurant

and the prior one; these facts are not part of the pleadings and are not facts of which

this Court can take judicial notice and will therefore not be considered.

In the Reply Brief, Defendant argues the First Amended Complaint is premised on

the prior tenant’s assertion that the space was not suitable for a restaurant, which was

a “retro-burger” restaurant. (FAC, ¶ 14.) However, this mischaracterizes the pleadings;

Plaintiff is arguing that Defendant misstated the financial health of the prior restaurant

and is citing as evidence, in part, the prior tenant’s statement. (FAC, ¶¶ 10-14.)

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Further, in the reply brief, Defendant for the first time argues that the pleadings in

the First Amended Complaint do not meet the heightened pleading standards for

fraud. (Reply Br. at p. 8.) Again, an argument made for the first time in a reply brief will

not be considered. (Reichardt, supra, 52 Cal.App.3th at pp. 764-65.)

Defendant also argues that Plaintiff is judicially estopped from asserting that the

leased premises were inappropriate for use as a restaurant. Defendant bases this

argument on the fact that Raymond Prime obtained a default against the buyers of the

business. Ostensibly, as part of the default, Prime had to take the position that the

property was a valid place for a restaurant, and is therefore estopped from relying on

Defendant’s representation that the restaurant was suitable, or the prior tenant’s

assertion that it was not. (Memo of Ps and As at p. 15.)

However, judicial estoppel applies where there are inconsistent positions that

have been adopted by a party. (The Swahn Group, Inc. v. Segal (2010) 183 Cal.App.4th

831, 844.) Defendant has presented no case authority for the proposition that a position

taken with respect to a default or default judgment can form the basis for judicial

estoppel. (Cf. Gottlieb v. Kest (2006) 141 Cal.App.4th 110, 149 [default judgment has

limited collateral estoppel effect].) As noted by Plaintiff, the gravamen of the fraud

claims is that Defendant misrepresented the reasons for the prior tenant’s departure

from the premises; Plaintiff claims Defendant told their representatives the prior tenant

was very profitable but was leaving for essentially personal reasons, despite knowing of

the tenant’s financial issues and bankruptcy. (FAC, ¶¶ 9-11, 13, 36, 39, 45 and 48.)

Whether or not the premises were actually suitable for a restaurant is not a necessary

condition for Plaintiff’s fraud claims, thus Plaintiff has not taken inconsistent positions so

as to invoke judicial estoppel.

Finally, Defendant claims that the alleged assertions are opinions and not

statements of fact. An assertion that the prior tenant was making a profit and only left

for personal reasons is a statement of fact and not of opinion. (Graham v. Bank of

America, N.A. (2014) 226 Cal.App.4th 594, 607 [To be actionable for fraud, the alleged

misrepresentation must have been made about a past or existing fact.].)

As a result, the motion for judgment on the pleadings is denied in all respects.

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



14

(24)

Tentative Ruling

Re: FRI Poutinerie v. COMM 2006-C8 Shaw Avenue Clovis, LLC

(and related cross-actions)



Motion: By Cross-Defendants Abdolreza Ghafari and Fereidoon

Ghiassi to Set Aside Defaults and Default Judgments

Tentative Ruling:

To grant and sign the order presented by cross-defendants, with cross-defendants

granted 15 days’ leave to file their responsive pleading to the cross-complaint. The time

in which said pleading can be filed will run from service by the clerk of the minute order.

The court also sets a case management conference for Friday, August 7, 2020 at

9:00 a.m. in Department 403, with all parties required to attend, in order to discuss the

current trial setting and to determine what orders should be made in light of setting aside

default and judgment as to these cross-defendants.

Explanation:

Cross-defendants have provided sufficient evidence to warrant setting aside both

the defaults and the default judgment. If papers were not served on cross-defendants,

then the court lacks personal jurisdiction over them. (Ellard v. Conway (2001) 94

Cal.App.4th 540.) Filing a proof of service that complies with statutory standards creates

a rebuttable presumption that service was proper. (Floveyor Internat., Ltd. v. Superior

Court (1997) 59 Cal.App.4th 789, 795.) A declaration of service by a registered process

server (as here) establishes a presumption that the facts stated in the declaration are

true. (Evid. Code, § 647; Rodriguez v. Cho (2015) 236 Cal.App.4th 742, 750.) However,

cross-defendants have provided evidence sufficient to overcome the presumptions, and

cross-complainant Prime did not oppose the motion, so he did not present any evidence

contradicting cross-defendants’ evidence.

There is sufficient evidence that cross-defendants did not receive actual notice of

the lawsuit in time to defend the action, and this lack of notice was not caused by cross-

defendants’ avoidance of service because they testify that they did not know about the

lawsuit. They timely filed this motion. Setting aside the default and default judgment

pursuant to Code of Civil Procedure section 473.5 is appropriate. (Tunis v. Barrow (1986)

184 Cal.App.3d 1069.)

15

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

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

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

will constitute notice of the order.

Tentative Ruling



16

(03)

Tentative Ruling

Re: Goad v. County of Fresno



Motion: Petition for Relief from Requirements of Government Code

Section 945.4

Tentative Ruling:

To deny the petition as to petitioner Kelly Goad. To grant the petition as to minor

petitioner Dakota Goad. (Govt. Code § 946.6.) Dakota Goad shall file her complaint in

Superior Court within 30 days of the date of this order. (Ibid.)

Explanation:

Petitioners move for relief from the government tort claims filing requirement

pursuant to Government Code section 946.6. They contend that their failure to file a

timely claim with the County of Fresno was due to mistake, inadvertence, surprise or

excusable neglect, and therefore the court should allow them to proceed with their civil

action against the County. However, petitioners have failed to present any evidence

showing that their failure to file a claim within six months of the accident was the result of

mistake, surprise, inadvertence or excusable neglect.

“If an application for leave to present a claim is denied or deemed to be denied

pursuant to Section 911.6, a petition may be made to the court for an order relieving the

petitioner from Section 945.4.” (Gov. Code, § 946.6, subd. (a).) “The petition shall be filed

within six months after the application to the board is denied or deemed to be denied

pursuant to Section 911.6.” (Govt. Code § 946.6, subd. (b)(1)-(3).)

“The court shall relieve the petitioner from the requirements of Section 945.4 if the

court finds that the application to the board under Section 911.4 was made within a

reasonable time not to exceed that specified in subdivision (b) of Section 911.4 and was

denied or deemed denied pursuant to Section 911.6 and that one or more of the

following is applicable: [¶] (1) The failure to present the claim was through mistake,

inadvertence, surprise, or excusable neglect unless the public entity establishes that it

would be prejudiced in the defense of the claim if the court relieves the petitioner from

the requirements of Section 945.4. [¶] (2) The person who sustained the alleged injury,

damage, or loss was a minor during all of the time specified in Section 911.2 for the

presentation of the claim.” (Gov. Code, § 946.6, subd. (c)(1), (2).)

“The legislative intent in these provisions was to alleviate the harshness of strict

compliance with the claims presentation period for minors, disabled persons, and persons

17

excusably neglectful.” (Segal v. Southern California Rapid Transit Dist. (1970) 12

Cal.App.3d 509, 511–512, internal citations omitted.)

“‘Section 946.6 is a remedial statute intended “to provide relief from technical rules

that otherwise provide a trap for the unwary claimant.” As such, it is construed in favor

of relief whenever possible. [¶] “The policy favoring trial on the merits is the primary policy

underlying section 946.6. In order to implement this policy, any doubts should be resolved

in favor of granting relief. Consequently, where uncontradicted evidence or affidavits of

the petitioner establish adequate cause for relief, denial of relief constitutes an abuse of

discretion. In light of the policy considerations underlying section 946.6, a trial court

decision denying relief will be scrutinized more carefully than an order granting relief.’”

(Cabamongan v. City of Long Beach (1989) 208 Cal.App.3d 946, 950, internal citations

omitted.)

Here, petitioners contend that their failure to submit a timely claim with the County

was to due mistake, surprise, inadvertence or excusable neglect because petitioner Kelly

Goad was unaware of the possible claim that she might have against the County based

on the alleged lack of proper signage at the intersection where the accident occurred

until the County installed new signs at the intersection. She then spoke with family and

friends, who told her that she might have a claim. However, petitioner has not presented

sufficient evidence to establish that her failure to file a timely claim was due to excusable

neglect.

“The mere recital of mistake, inadvertence, surprise or excusable neglect is not

sufficient to warrant relief. Relief on grounds of mistake, inadvertence, surprise or

excusable neglect is available only on a showing that the claimant's failure to timely

present a claim was reasonable when tested by the objective ‘reasonably prudent

person’ standard. The definition of excusable neglect is defined as ‘neglect that might

have been the act or omission of a reasonably prudent person under the same or similar

circumstances.’” (Department of Water & Power v. Superior Court (2000) 82 Cal.App.4th

1288, 1293, internal citation omitted.)

“There must be more than the mere failure to discover a fact; the party seeking

relief must establish the failure to discover the fact in the exercise of reasonable diligence.

The party seeking relief based on a claim of mistake must establish he was diligent in

investigating and pursuing the claim and must establish the necessary elements justifying

relief by the preponderance of the evidence.” (Ibid, internal citations omitted.)

There is language in some opinions indicating that a claimant must at least show

that they made an effort to retain counsel within six months of the accrual of the claim

in order to show reasonable diligence. However, other courts have found that an

attempt to retain counsel is not absolutely required, as long as the claimant has made

other reasonable efforts to determine if they have a claim.

“Claimants who have missed the claim filing deadline often argue that, as lay

individuals, they simply did not know that they had a potential cause of action against a

public entity. However, lack of knowledge alone is not considered a sufficient basis for

relief, when the claimant did not make an effort to obtain counsel. ‘It is precisely

because theories of third party liability are subtle, complex, and often not readily

18

apparent to a layman that due diligence requires at least consultation with legal

counsel.’” (Barragan v. County of Los Angeles (2010) 184 Cal.App.4th 1373, 1383, internal

citations omitted, italics in original.)

“Because of this, the Munoz court stated that there is a ‘rule[ ]’ that ‘a [claimant]

may not successfully argue excusable neglect when he or she fails to take any action in

pursuit of the claim within the six-month period. The claimant must, at a minimum, make

a diligent effort to obtain legal counsel within six months after the accrual of the cause

of action.’” (Id. at p. 1383, quoting Munoz v. State of California (1995) 33 Cal.App.4th

1767, 1778-1779.)

“The rule however, is not as absolute as Munoz appears to suggest… Thus, even

the failure to obtain legal advice will be excused when a different course of action is

reasonably prudent. Circumstances which would “trap the unwary” may suffice.’” (Id.

at pp. 1383–1384, internal citations omitted.)

On the other hand, if the claimant does nothing during the first six months after the

claim accrued, whether it is retaining the services of an attorney or taking other action

to investigate the potential claim, courts will not find reasonable diligence or excusable

neglect. “In Dept. of Transportation, we indeed noted the principle that neglect is not

excusable where a party does not take any action within six months after the accrual of

a cause of action; at the very least, the party must attempt to engage the services of an

attorney to investigate the facts to identify potential defendants in any cause of action

arising out of a damaging incident... ‘When there is a readily available source of

information from which the potential liability of a [public] entity may be discovered, a

failure to use that source is deemed inexcusable.’” (DeVore v. Department of California

Highway Patrol (2013) 221 Cal.App.4th 454, 460–46, internal citations omitted, italics in

original.) However, if the claimant has no reason to suspect based on readily available

information that the public entity might be liable for his or her injuries, then the claimant

is not required to show that he or she consulted with an attorney or took other steps to

investigate the potential claim. (Ibid, internal citations omitted, italics in original.)

In the present case, while petitioner Kelly Goad claims that she did not suspect

that she might have a claim until after the County started installing new signs at the

intersection, the evidence does not support her position. First of all, she has not presented

her own declaration stating when she first discovered the potential claim, or why she did

not suspect earlier that she might have a claim. She only presents the declaration of her

attorney, who states that “Petitioner Kelly N. Goad did not file a claim within 6-months of

the subject collision as required by Government Code § 911.2(a) because she had no

reason to believe that a claim existed. It was [not] until she noticed that the County of

Fresno had installed proper signage that she spoke with family and friends who advised

her that a potential claim might exist.” (Jones decl., ¶ 5.) However, her attorney clearly

has no direct personal knowledge of petitioner’s state of mind, her investigation, or what

facts she might have learned and when she learned them. Thus, his statements do not

establish that Ms. Goad had no reason to suspect that she might have a claim.

In any event, even assuming plaintiff’s attorney’s declaration is admissible, the

evidence still fails to show that Ms. Goad was diligent in bringing her claim. While Ms.

Goad claims that she had no reason to believe that she might have a claim before she

19

noticed that the County had put up new signs, she does not state when the County put

up the new signs or when she noticed that the signs had been installed. Nor does she

state when she spoke with her family and friends and when she learned from them that

she might have a claim. If she learned of these facts only a short time after the accident,

then her failure to file a claim with the County within six months would still be inexcusable.

Thus, there is insufficient evidence for the court to find that she was diligent in bringing

her claim.

Also, the CHP report from the accident clearly stated that the accident occurred

at an intersection that was controlled and maintained by the County of Fresno, and that

there was no stop sign at the intersection. (Exhibit A to Gallegos decl., CHP Report dated

May 9, 2018, pp. 9, 12 of 15.) The investigating officer even stated that he contacted the

manager of maintenance and operations for the County regarding the intersection and

inquired whether there was supposed to be a stop sign at the intersection. (Id. at p. 12

of 15.) The manager told him that there was no stop sign there, and there never had

been one. (Ibid.) The other factual details in the report make it clear that the lack of a

stop sign might have caused or contributed to the accident, as the report indicates that

decedent failed to yield to an oncoming car at the T intersection, which caused the

collision. (Id. at pp. 14-15 of 15.)

Ms. Goad presumably had access to the CHP report or could have readily

obtained it, as it concerned the accident that claimed her husband’s life. If she had

read the report, she would have been placed on notice that there was no stop sign at

the intersection, that the County had never installed a sign despite having responsibility

for maintaining the intersection, and that the lack of a stop sign was a likely contributing

cause of the accident. Ms. Goad never states whether she obtained or read the

accident report, or why she did not realize she might have a claim if she did read it. If

she had, she would have realized that she might have a potential claim against the

County for failing to install a stop sign at the intersection. Even if she did not read it, her

failure to consult readily available sources of information regarding the accident

indicates that she was not diligent in pursuing her potential claim.

The County also points to two news articles that were published shortly after the

accident, which referred to family and friends of the decedent being upset that there

was no stop sign or warning light to alert motorists to the intersection, which they believe

could have prevented the accident and saved the decedent’s life. (Gallegos decl., ¶¶

4, 5.) The County claims that these articles show that Ms. Goad likely had notice of the

lack of a stop sign at the intersection from her family and friends within a few days of the

accident, and therefore she was not diligent in failing to file her claim within six months.

However, the articles themselves are inadmissible hearsay. In any event, they contain no

information about Ms. Goad’s knowledge or state of mind, as they contain no quotes

from her. At most, they show what some of her family and friends knew and what their

concerns were about the intersection. The court will not assume that Ms. Goad knew

about the articles or what her family and friends had said just because the articles were

published in the media.

Nevertheless, Ms. Goad has not shown that she was diligent in investigating her

potential claims, or that her failure to file her claim with the County within six months was

reasonable and excusable neglect. She does not state when she learned of the facts

20

underlying her claim, when she retained an attorney, or why she did not conduct an

investigation of the facts underlying her claim sooner. Indeed, the information in the

CHP’s report alone should have been enough to place her on notice that there was no

stop sign at the intersection, that it was the County’s responsibility to maintain the

intersection and install proper signage, and that the lack of a stop sign might have

caused or contributed to the accident. As a result, the court intends to find that Ms.

Goad has not shown good cause for granting relief from the claims filing requirement,

and it will deny the petition as to her.

On the other hand, the court intends to grant the petition as to Dakota Goad, the

minor child of the decedent. Unlike adult claimants, minors do not need to show that

their failure to file a timely claim with the public entity was the result of mistake,

inadvertence, surprise, or excusable neglect. Instead, they only have to show that they

were a minor during the six-month period after the accident, and that they sought leave

to bring their late claim within one year. (Govt. Code §§ 911.6; 946.6, subd. (c)(2).) If

they make this showing, then relief from the claim requirement is mandatory. (Govt.

Code § 946.6, subd. (c)(2).)

“In effect, Government Code sections 911.6 and 946.6 grant minors a period of

claim filing consisting of 100 days plus a reasonable time, not exceeding one year, for

filing an application for relief. If, within the extended period fixed by section 911.4, the

minor files an application, relief is mandatory. Thus the Legislature has established a

classification supplying more lenient claim filing conditions for minors and compensating

for the disadvantages which sometimes - but not always - characterize minority status.”

(Hom v. Chico Unified School Dist. (1967) 254 Cal.App.2d 335, 339, internal citations

omitted.)

However, if the minor fails to file their application to bring a late claim within one

year of the accident, then the public entity cannot grant the application, nor can the

court grant relief from the claims filing requirement. (Ibid.)

Here, Dakota Goad was a minor throughout the entire time period between the

accident and the filing of the late claim application. (Jones decl., ¶ 6.) She also filed her

application for leave to file a late claim with the County exactly one year after the

accident. (Id. at ¶ 3.) Therefore, relief from the claims filing requirement is mandatory,

and the court must grant the minor’s petition despite the lack of evidence that the delay

in filing the claim was due to mistake, surprise, inadvertence, or excusable neglect.

(Govt. Code § 946.6, subd. (c)(2).)

The County argues that there is no evidence that Dakota actually submitted her

application to file a late claim within a year of the accident, as the only evidence

regarding the submission of the application is the declaration of petitioners’ attorney,

who does not state how the application was submitted. (Jones decl., ¶ 3.) However,

petitioner’s counsel does state that he “presented to the County of Fresno – Clerk of the

Board, a written application for leave to present a late claim for damages on behalf of

Petitioners under Government Code §§ 911.4 and 911.6.” (Ibid.) He also submits a copy

of the late claims that he submitted on behalf of the petitioners. (Exhibit A to Jones decl.)

The copies of the late claims are dated March 27, 2019, and include a USPS tracking

number, which appears to indicate that they were mailed on the same date. (Ibid.)

21

Under Government Code section 915.2, subdivision (a),

If a claim, amendment to a claim, or application to a public entity for leave to

present a late claim is presented or sent by mail under this chapter, or if any notice

under this chapter is given by mail, the claim, amendment, application, or notice

shall be mailed in the manner prescribed in this section. The claim, amendment,

application, or notice shall be deposited in the United States post office, a

mailbox, sub-post office, substation, mail chute, or other similar facility regularly

maintained by the government of the United States, in a sealed envelope,

properly addressed, with postage paid. The claim, amendment, application, or

notice shall be deemed to have been presented and received at the time of the

deposit. (Govt. Code § 915.2, subd. (a), emphasis added.)

Also, under section 915.2, subdivision (b),

Any period of notice and any duty to respond after receipt of service of a claim,

amendment, application, or notice is extended five days upon service by mail, if

the place of address is within the State of California, 10 days if the place of address

is within the United States, and 20 days if the place of address is outside the United

States.

Thus, since the minor’s application to file a late claim was mailed on March 27,

2019, the claim was deemed to have been made on that date. The time period to submit

the application was also extended by five days from the date of mailing. As a result, the

application was made within a year of the accident, and relief from the claims filing

requirement is mandatory. Consequently, the court must grant the minor’s application

for relief from the claims filing requirement and allow her to file her court action.

Pursuant to CRC 3.1312 and CCP §1019.5(a), no further written order is necessary.

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

service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: _________KCK_____________________ on __07/20/2020________________.

(Judge’s Initials) (Date)

22

(20) Tentative Ruling

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


Consolidated with

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

Case No. 15CECG00915 (lead case)


Motion: J.H. Boyd Enterprises, Inc.’s Motion for (1) Fair Value

Determination; (2) Deficiency Judgment; and (3) Order

Permitting Submission of Proposed Judgments Against

Personal Sureties

Motion to Correct Order for Judgment for Foreclosure of Real

Property for Clerical Error

Tentative Ruling:

To grant in part and enter deficiency judgment in the sum of $2,980,523.99, with

post-judgment interest accruing at the rate of $828.07 per day from December 5, 2019.

Modified proposed judgment signed. To deny without prejudice any relief as to the

personal sureties.

To deny the motion to Correct Order for Judgment for Foreclosure of Real Property

for Clerical Error.

Explanation:

Pursuant to the May 31, 2019 “Amended Order for Judgment for Foreclosure of

Real Property, etc." plaintiff J.H. Boyd Enterprises, Inc. (“JHBE”), is entitled to a deficiency

judgment against defendants Kenneth Boyd and Susan Boyd, individually and as Trustees

of the Boyd Trust dated December 23, 1999 (“defendants”), following foreclosure sale of

the property. The foreclosure sale took place on December 5, 2019, at which the property

was sold to JHBE for $675,000. The Amended Judgment provides that the recoverable

deficiency judgment “is the amount of the debt reduced by the fair value of Plaintiff

JHBE's interest in the Property, to be determined following a fair value hearing before this

Court after the foreclosure sale.” Having considered the various appraisals submitted by

the parties, the court finds that the fair value of the property at the time of the foreclosure

sale was $1,000,000. While defendants have submitted appraisals of $2,501,000 and

$2,900,000, those appraisals are based on the conclusion that the highest and best use

of the Property at the time of the foreclosure sale was as a potential residential

subdivision. Previously, in 2015 and 2017 Mr. Giomi valued the Property at $800,000 as

agricultural property with a future potential for residential development. On July 11, 2017,

in finding the value of the Property to be $1,000,000, this Court noted, "In terms of

developing the property, there haven't been any changes made to the general plan, no

23

zoning changes, no approvals, no application for approval, no reclassifications, no

annexations, no LAFCO approval, no subdivision map approval, no tentative map. So

while that may happen, it doesn't sound like it's something that the Court is going to

consider would happen any time soon.” (Reply Exh. I at p. 60.) These factors remain the

same. As of December 5, 2019, the Property was still zoned agricultural, was not in the

sphere of influence and still was not annexed into the City of Kerman. The court sees no

reason to depart from its 2017 valuation.

As of the December 5, 2019 foreclosure sale, the total amount of principal and

interest owed on the Amended Judgment to JHBE, exclusive of costs and attorney's fees,

was $3,980,523.99.

Defendants in their opposition, and in their motion to correct the judgments, argue

post-judgment (of foreclosure) interest should not accrue at the rate of 10% per annum,

but at 6% as specified in the promissory note. While the court agrees that specifying the

rate of interest at 10% per annum in the October 31, 2016 judgment for foreclosure was

a clerical error, defendant’s challenge to that error has been waived. Defendants did

not object to the 10% interest rate before the trial court. Defendants appealed the

judgment and did not raise the interest issue on appeal. In it’s March 27, 2019 Opinion

and Disposition, the Court of Appeal instructed this Court “to amend paragraph 4 [of the

judgment] to state the value of the debt owed is $3,022,448.96, as of October 4, 2016,

with legal interest at the rate of 10 percent per annum calculated on such amount

thereafter. In all other respects, the judgment is affirmed." This court complied with the

Court of Appeals’ direction and on May 31, 2019 entered an Amended Order For

Judgment, providing that “the value of the debt owed by the Boyd Trust to JHBE is

$3,022,448.96 as of October 4, 2016, with legal interest at the rate often percent (10%) per

annum calculated on such amount thereafter.”

In Arabia v. BAC Home Loans Servicing, L.P. (2012) 208 Cal.App.4th 462, 483-484,

the appellant contested the same interest rate issue in a judgment for foreclosure. The

appeals court held that "[b]ecause [appellant] did not present this argument to the

superior court and allow it the opportunity to address the issue, [he] has forfeited it." (Ibid.)

Likewise, defendants have forfeited the issue by failing to raise it before the trial

court or in their appeal of the judgment.

Moreover, the inclusion of 10% interest in the amended judgment was not a

clerical error. The Court of Appeals directed the trial court “to amend paragraph 4 [of

the judgment] to state the value of the debt owed is $3,022,448.96, as of October 4, 2016,

with legal interest at the rate of 10 percent per annum calculated on such amount

thereafter,” and this court followed that direction in the May 31, 2019 Amended

Judgment. Following an appeal and opinion, "the trial court has no discretion but to

enter the judgment called for" and a judgment entered that does not comply with the

appellate court mandate “would be void." (Hampton v. Superior Court (1952) 38 Cal.2d

652, 655-656.)

A court cannot “change an order which has become final even though made in

error if in fact the order made was that intended to be made." (Bell v. Farmers Ins. Exch.

(2006) 135 Cal.App.4th 1138, 1144.) Here, the trial court intended to enter, and did enter,

24

the amendment to the judgment as directed by the appellate court. It was no longer a

clerical error at that point. Unfortunately, the motion to correct the judgments must be

denied.

At the rate of 10% per annum, through the date of the foreclosure sale on

December 5, 2019, the interest amounts to $958,075.03, and continues to accrue at

$828.07 per day.

JHBE also requests pre-approval to submit proposed judgments against the

personal sureties in the event defendants do not pay the deficiency judgment within 30

days as authorized by the October 31, 2016 "Order for Judgment for Foreclosure of Real

Property, etc." As to the personal sureties the motion is premature, as the 30 days to pay

have not lapsed, and fails to comply with Code of Civil Procedure section 996.410 et seq.

The motion cannot be made until after final deficiency judgment has been entered.

(Code Civ. Proc., § 996.440, subd. (b).) Moreover, since the 30 days have not lapsed

without satisfaction of the judgment by defendants, the motion does not give the sureties

notice of the amount of the claim as required by subdivision (c). Finally, though the

motion was mail served on the sureties, subdivision (c) requires that service be made in

the same manner as service of a summons (i.e., personal service, substituted service, etc.)

This situation is distinguishable from Duerr v. Sloan (1920) 50 Cal.App. 512, cited in

the reply. Duerr was decided in 1920, long before the 1982 enactment of Code of Civil

Procedure sections 996.410. And the sureties in Duerr had agreed that judgment could

be entered against them without notice. There is no such provision in the personal sureties

at issue here. There is no reason why the procedure sect forth in section 996.440 should

not be applied here.

The supplemental opposition papers filed on July 9 will not be considered, as the

matter has already been fully briefed.

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



tentative rulings for may 7, 2009jul 22, 2020 · opposition to the summary judgment motion and...

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