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civil tentative rulings


The court does not issue tentative rulings on Writs of Attachment, Writs of Possession, Claims of Exemption, Claims of Right to Possession, Motions to Tax Costs After Trial, Motions for New Trial, or Motions to Continue Trial.


Under California Rules of Court, rule 3.1308 and Local Rule 701, any party opposed to the tentative ruling must notify the court, and other parties, by 4:00 p.m. on the court day before the hearing of their intention to appear for oral argument. The court's notice must be made by facsimile to 559-733-6774.


Timestamp: 02/09/2016 at 3:35am



The Tentative Rulings for Tuesday February 9, 2016 are:

Re:             Rodriguez, et al. v, Tulare Joint Union High School District

Case No.:   VCU 263243

Date:          February 9, 2016

Time:          8:30 A.M. 

Dept.          7 – The Honorable Bret Hillman

Motion:       Defendant Tulare Joint Union High School District’s Demurer to Complaint for Damages

Tentative Ruling:  Defendant Tulare Joint Union High School District’s (“TJUHSD”) demurer to complaint for damages is sustained. Plaintiff shall have thirty days’ leave to amend her complaint to cite the applicable Government Code sections upon which she bases her claims against TJUHSD.

Plaintiff Amy Alexis Rodriguez charges in her complaint that while practicing as a member of the Tulare Union High School Team, she significantly injured her ankle while sliding into third base when her cleat got caught on the uneven conditions of the field.  Ms. Rodriguez pleads causes of action for General Negligence and Premises Liability.  Ms. Rodriguez further alleges at paragraph 9a of her complaint that she has complied with all the claim filing requirement of the Government Claims Act that are required to bring an action against a public entity.

A demurrer tests whether a pleading states a cause of action or defense, and in the words of the California Supreme Court in Moore v. Regents of the Univ. of Cal. (1990) 51 Cal.3d 120, 125:“

“Accordingly, we assume that complaint’s properly pleaded material allegations are true and give the complaint a reasonable interpretation by reading it as a whole and all of its parts in their context . . . we do not, however, assume the truth of the contentions, deductions, or conclusions of fact or law . . .” (citations omitted.)

For the purpose of testing the sufficiency of a cause of action, the demurrer admits the truth of all material facts properly pleaded – no matter how unlikely or improbably the allegations may be.  See Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-967, The plaintiff’s ability or inability to prove the allegations is of no concern at the demurrer stage. See Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197-213-214

Thus, the function of a demurrer is to test the sufficiency of a pleading by raising questions of law.  See Whitcomb v. County of Yolo (1977) 73 Cal.App.3d 698,702. 

All presumptions are against the pleader and all doubts as to whether a cause of action is pled are resolved against the proponent of the pleading, since it is presumed that the pleading states the cause as favorably as possible.  See Richmond Development Agency v. Western Title Guarantee (1975) 48 Cal.App.3d 343,349.

“The demurrer tests the pleading alone and not the evidence or other extrinsic matters which do not appear on the face of the pleading or cannot be properly inferred from the factual allegations of the complaint.” See Executive Landscape Corp. v. San Vicente Country Villas IV Assn. (1983) 145 Cal.App. 3d 496, 499

The standard of review for a demurrer is based on the judicial policy that favors the resolution of cases on their merits rather than through technical defects in the pleadings.  A demurrer raises issues of law, not fact, in its challenge to the opposing party’s pleading.  See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.

Additional facts may be implied or inferred from those facts expressly pled in the complaint, and to the extent that there are factual issues in dispute, the court must assume the truth of not only all facts properly pled, but also those facts that may be implied or inferred from these expressly stated in the complaint.  See City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.

Even where the Court finds that the demurer is well taken as to any cause of action, the plaintiff should be granted leave to amend the complaint to allege any additional facts that the Court finds lacking or to clarify any unclear or ambiguous allegations. “Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.” See Angie M. v. Superior Court (Hiemstra)(1995) 37 Cal.App;.4th 1217, 1227.

Defendant TJUHSD correctly asserts in its demurrer that there is no common law cause of action for negligence against a public entity and any negligence action brought against a public entity must be based on a provision of the Government Code that specifically authorizes that action.  See Munoz v. City of Union City (2004) 120 Cal.App.4th 1077; Ross v. San Francisco Bay Rapid Transit District (2007) 146 Cal.App.4th 1507, 1514.  To that extent, the Court sustains TJUHSD’s demurrer to plaintiff’s complaint with leave to amend to plaintiff to cite the applicable Government Code sections upon which she bases her negligence claims against the TJUHSD if any exist.

TJUHSD’s assertion that plaintiff’s action is barred by the doctrine of primary assumption of the risk cannot defeat the plaintiff’s action at the demurrer stage because, except as noted above, plaintiff’s complaint sets forth specific facts to state a cause of action against the TJUHSD.  

Whether plaintiff’s recovery in this action is barred by the doctrine of “primary assumption of the risk” does not attack the allegations set forth in the plaintiff’s complaint, but constitutes “new matter,” i.e., independent grounds that would bar the plaintiff from recovery even if all the allegations in her complaint were proven as true (i.e., an affirmative defense to which TJUHSD bears the burden of proof). See Walsh v. West Valley Mission Community College District (1998) 66 Cal.App.4th 1532, 1546; Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 239; California Academy of Sciences v. County of Fresno (1987) 192 Cal.App.3d 1436, 1442.

Based on the foregoing, defendant TJUHSD’s demurrer to plaintiff’s complaint is sustained with thirty days’ leave to amend to the plaintiff.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

Re:             Exeter Engineering, Inc. v. Brito, et al.

Case No.:   VCU 262990

Date:          February 9, 2016

Time:          8:30 A.M. 

Dept.          7 – The Honorable Bret Hillman

Motion:       Demurrer of Art Lopez to the Complaint of Exeter Engineering, Inc.

Tentative Ruling:  Defendant Lopez’s demurrer to Exeter’s fifth cause of action is sustained with leave to amend and Exeter’s fifteenth cause of action for unjust enrichment is sustained without leave to amend.  Defendant Lopez’s demurrer as to Exeter’s sixteenth cause of action for accounting is overruled.

The Court notes that all necessary parties were provided adequate and timely notice of this demurrer, and that plaintiff Exeter Engineering, Inc. has filed a “Notice of Non-Opposition” to defendant Lopez’s demurer that indicates that it intends to file a first amended complaint in this action.  As of the date of this tentative ruling, the Court has not received any amended complaint from Exeter.

Defendant Lopez’s Request for Judicial Notice is granted only as to the date of filing of the plaintiff’s complaint with the Court for this action. Except for orders from the Court that appear in the Court’s file for this case, the Court must deny any request for judicial notice as to the contents of other documents in the Court’s file for this action as inadmissible hearsay.  See Day v. Sharp (1975) 50 Cal.App.3d 904, 914; Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113.

Plaintiff has filed a sixteen cause of action complaint that arises out of allegations that Lopez (a former executive at Exeter Engineering) and the other defendants started a their own business in competition with Exeter by using proprietary information obtained during their tenure with Exeter to take customers away from Exeter.  Mr. Lopez demurrers to Exeter’s fifth cause of action for commercial bribery, and plaintiff’s fifteenth and sixteenth cause of action for unjust enrichment and constructive trust-equitable lien and accounting.

A demurrer tests whether a pleading states a cause of action or defense, and in the words of the California Supreme Court in Moore v. Regents of the Univ. of Cal. (1990) 51 Cal.3d 120, 125:“

“Accordingly, we assume that complaint’s properly pleaded material allegations are true and give the complaint a reasonable interpretation by reading it as a whole and all of its parts in their context . . . we do not, however, assume the truth of the contentions, deductions, or conclusions of fact or law . . .” (citations omitted.)

For the purpose of testing the sufficiency of a cause of action, the demurrer admits the truth of all material facts properly pleaded – no matter how unlikely or improbably the allegations may be.  See Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-967, The plaintiff’s ability or inability to prove the allegations is of no concern at the demurrer stage. See Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197-213-214.

Thus, the function of a demurrer is to test the sufficiency of a pleading by raising questions of law.  See Whitcomb v. County of Yolo (1977) 73 Cal.App.3d 698,702.

All presumptions are against the pleader and all doubts as to whether a cause of action is pled are resolved against the proponent of the pleading, since it is presumed that the pleading states the cause as favorably as possible.  See Richmond Development Agency v. Western Title Guarantee (1975) 48 Cal.App.3d 343,349.

“The demurrer tests the pleading alone and not the evidence or other extrinsic matters which do not appear on the face of the pleading or cannot be properly inferred from the factual allegations of the complaint.” See Executive Landscape Corp. v. San Vicente Country Villas IV Assn. (1983) 145 Cal.App. 3d 496, 499.

The standard of review for a demurrer is based on the judicial policy that favors the resolution of cases on their merits rather than through technical defects in the pleadings.  A demurrer raises issues of law, not fact, in its challenge to the opposing party’s pleading.  See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.

In California, Exeter’s fifth cause of action for commercial bribery falls within the scope of Penal Code §641.3, and thus any violator of §641.3 is subject to criminal prosecution. Penal Code §641.3 does not provide for any civil remedy to the victim of a commercial bribery, and Exeter does cite any allegations in its original complaint beyond the language of §641.3 that sets forth sufficient facts to state a viable civil cause of action for commercial bribery.  Mr. Lopez’s demurrer to Exeter’s fifth cause of action is therefore sustained with leave to amend to the plaintiff to set forth facts from which a civil cause of action for commercial bribery would lie if available.

Defendant Lopez’s demurrer to Exeter’s fifteenth cause of action for Unjust Enrichment is sustained without leave to amend.

Simply put, there is no independent cause of action in California for unjust enrichment per se. See Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1370, quoting Melchior v. New Line Productions, Inc., (2003) 106 Cal.App.4th 779, 793; Everett v. Mountains Recreation and Conservancy Authority (2015) 239 Cal.App.4th 541. 543.

Nor can plaintiff maintain its fifteenth cause of action for unjust enrichment given that a claim for “unjust enrichment” does not describe a theory of recovery, but merely the result of a failure to make restitution under circumstances where it is equitable to do so.  See Lauriedale Assoc. Ltd v. Wilson (1992) 7 Cal.App.4th 1439, 1448.  An unjust enrichment claim arises only where the injured party shows that the adverse party wrongfully obtained a benefit at the injured party’s expense. See Peterson v. Celico Partnership (2008) 164 Cal.App.4th 1583, 1593.

Here, Exeter pleads that a cause of action for “unjust enrichment,” arises out of the defendants’ purported theft and use of confidential and proprietary information belonging to Exeter to establish a competing business with Exeter that would lure its customers away from Exeter. 

The Court finds that the defendants’ theft and use of Exeter proprietary and confidential information to establish a new business in competition with Exeter, and the damages that Exeter sustained as the result of the defendants’ conduct, is not only well-established in the other causes of action in Exeter’s complaint,  but that Exeter would clearly not deem the defendants’ conduct to be a “benefit” that Exeter provided to them that would warrant restitution under a theory of unjust enrichment.  

As such, Exeter’s fifteenth cause of action for unjust enrichment is sustained without leave to amend, as the theory of unjust enrichment is not an independent cause of action, but only a remedy to recover the same damages that Exeter has already prayed for from the other causes of action in Exeter’s complaint.

Defendant Lopez’s demurrer to Exeter’s sixteenth cause of action for accounting is overruled, as the Court deems that Exeter has plead sufficient facts in its complaint to state a cause of action for accounting at the demurrer stage of this action. 

The constructive trust and equitable lien facets of Exeter’s sixteenth cause of action are sustained without leave to amend as independent causes of action but Exeter’s right to pursue these remedies is sustained to the extent that should Exeter prevail on its accounting cause of action, the imposition of a constructive trust and/or an equitable lien on the profits obtained by the defendants’ unlawful conduct would be a proper remedy.

“Civil Code §§2223 and 2224 codify the equitable principle that one who wrongfully acquires property of another holds the property as an involuntary constructive trustee.” See Haskel Engineering & Supply Co. v. Hartford Accident and Indemnity Co. (1978) 78 Cal.3d 371, 375.  “A constructive trust is itself only a remedy.” Haskel, at 378.

To impose a constructive trust there must be a res, i.e., property, the plaintiff must have a right to the res; and the defendant must have gained the res by fraud, accident, mistake, undue influence, violation of the trust, or other wrongful act. See Kraus v. Willow Park Public County Club (1977) 73 Cal.App.3d 354, 373.

“A constructive trust is a remedy used by a court of equity to compel a person who has property to which he is not entitled to transfer it to the person entitled thereto. The trust is passive, the only duty being to convey the property.” See 13 Witkin, Summary of California Law, Trusts, §319 (10th ed. 2005 (italics in original, citing Haskins, supra., and Hartford Accident, supra.

Therefore, to the right that Exeter can establish a right under its accounting cause of action to determine the revenues and profits gained by the defendants as the direct result of their misappropriation of Exeter proprietary and confidential information, the right to impose a constructive trust and/or equitable lien on those revenues and profits may lie notwithstanding that constructive trust or equitable lien are not independent causes of action under California law.
 
If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

Re:              Gee, et al., v. Visalia Anesthesia Medical Associates, et al.

Case No.:   VCU 256053

Date:          February 9, 2016

Time:          8:30 A.M. 

Dept.          7 – The Honorable Bret Hillman

Motions:     Defendant Freddie McClendon’s Motions to Compel Further Responses First Set of Request for Admissions to (1) Bartolome C. Lee, M.D., (2) Quinn G. M.D., and (3) Gary Gibbs, M.D. and Request for Sanctions

Tentative Rulings:  There are no tentative rulings on the merits for these motions. The parties are directed to meaningfully meet and confer before the hearing of these motions to resolve the discovery disputes identified in the moving and opposition papers. If unable to resolve, counsel are directed to personally appear for the hearing. No CourtCall is permitted if the parties are unable to resolve.

Re:              Diaz, et al. v. Centex Homes, et al.

Case No.:   VCU 248289

Date:          February 9, 2016

Time:          8:30 A.M. 

Dept.          7 – The Honorable Bret Hillman

Motion:       Cross/Defendants and Cross-Complainants Travelers Property Casualty Company of America and Travelers Indemnity Company of Connecticut’s Motion for Leave to File Second Amended Cross-Complaint

Tentative Ruling:  To Grant Cross/Defendants and Cross-Complainants Travelers Property Casualty Company of America and Travelers Indemnity Company of Connecticut’s Motion for Leave to File Second Amended Cross-Complaint.  The Second Amended Cross-Complaint shall be filed within five (5) days of this motion and service completed with all diligence.

This construction defects litigation was initiated on August 6, 2012.  This is one of several cases involving Centex Homes and Travelers pending in two departments of this court.  This and the other cases pending in Tulare County include a long running dispute between Centex Homes entities and Travelers Insurance entities over defense costs, contribution, indemnity, claims for independent defense counsel (an issue consolidated with other cases and tried in Department 2 of this court in the fall of 2014) and other issues.  These disputes have complicated resolution of already complex construction defects litigation and have brought before the court, both here and elsewhere throughout the state, issues historically resolved without court intervention through negotiation and the hard work of special masters regularly appointed in these cases.

In the Cross-Complaint (filed August 21, 2013) and First Amended Cross-Complaint (filed on or about November 17, 2015) Travelers asserts claims for declaratory relief, equitable contribution, and equitable indemnity against unknown Doe insurance carriers (see paragraphs 4 and 5 as well as the First, Second and Third Causes of Action to Travelers’ First Amended Cross-Complaint).  Trial has been set on the remaining disputes between Centex Homes and Travelers, including Travelers Cross-Complaint, for April 25, 2016.

Travelers now seeks to file a Second Amended Cross-Complaint to name 30 insurance carriers previously identified as Doe Defendants in its 1st, 2nd, and 3rd causes of action.  No additions or material modifications to Travelers’ claims against Centex Homes are included in the proposed amendment.  In its moving papers, Travelers asserts identities of the insurers were only recently discovered.  Few specifics are provided.

In opposition, Centex Homes asserts Travelers has had the identities of the insurers since 2012 or at the latest, since 2014.  Centex Homes asserts Travelers has been dilatory in seeking the amendment. Centex further argues it will suffer prejudice from the amendment as new Cross-Defendants will necessarily result in a delay in the upcoming trial.

In its Reply, Travelers acknowledges the 2014 disclosure of insurer information but asserts it was required to review and verify the information provided as part of a 24,000 page document production before it could reasonably bring its motion to amend.

Leave to amend pleadings is to be liberally granted barring a showing of prejudice. Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939; Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564-565.

There are few facts provided as to what “review” necessitated a delay from 2014 (when identity of insurers appears to have been disclosed in discovery) to 2016 (little more than 2 months prior to the scheduled trial date) before bringing this motion.  However, with the information provided, the court cannot find Travelers was completely dilatory in bringing this motion.  It is clear that the insurers are necessary parties for determination of the contribution and indemnity claims asserted in Travelers Cross-Complaint.  Although trial might be delayed as a result of the amendment, Centex Homes has not shown a risk of loss of evidence or witnesses which might result from any such delay.  The court finds Centex Homes has not shown undue prejudice would result from a potential trial delay.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.


Re:              Narayan v. Sarva, et al.

Case No.:   VCU 260021

Date:          February 9, 2016

Time:          8:30 A.M. 

Dept.          7 – The Honorable Bret Hillman

Motion:       Plaintiff G.L. Narayan, M.D., Inc.’s Motion to Compel Production of Documents, Set No.1 from Ramesh Sarva and an Award of Attorney Fees of $4,260.00 Against Ramesh Sarva

Tentative Ruling:  To deny plaintiff G.L. Narayan, M.D., Inc.’s motion to compel production of documents, set no.1 from Ramesh Sarva without prejudice.
 
Plaintiff’s February 23, 2016 motion to deem request admitted plaintiff’s request for admissions, set one, to defendant Sarva is ordered advanced to today’s hearing date and this motion is also denied without prejudice as presently moot.
 
Plaintiff’s Request for Judicial Notice is granted only as to the date of filing of the Case Management Statement that plaintiff identifies in his moving papers Except for orders from the Court that appear in the Court’s file for this case, the Court must deny plaintiff’s request for judicial notice as to the contents of other documents in the Court’s file for this action as inadmissible hearsay.  See Day v. Sharp (1975) 50 Cal.App.3d 904, 914; Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113.

The Court’s record indicates that on December 31, 2015, default was entered against defendant Ramesh Savra.

This entry of default deprives the Court of jurisdiction to rule on any motion brought by or against the defaulting party (except for a motion to set aside the default) as the defaulting party has no right to participate in the proceedings until either (a) the default is set aside, or (b) a default judgment is entered against the defaulting party that it can appeal.  See Devlin v. Kearny Mesa AMC/Jeep/ Renault (1984) 155 Cal.App.3d 381, 385-86; W.A. Rose Co. v. Municipal Court (FitzSimmons) (1959) 176 Cal.App.2d 67, 71

Plaintiff’s February 23, 2016 motion to deem request admitted request for admissions, set one, to defendant Sarva is ordered advanced to today’s hearing date and this motion is denied without prejudice as presently moot because by defaulting, defendant Savra has already been deemed to have admitted the material allegations of the plaintiff’s complaint for the purposes of the action. See Vassey v. California Dance Co., Inc. (1977) 70 Cal.App.3d 742, 749; Molen v. Friedman (1998) 64 Cal.App.4th 1149, 1156

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

 


This concludes the civil tentative rulings



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