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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: 02/15/2019 at 10:10pm



Re:              Eckels v. Mainland Skate and Surf Inc.

Case No.:  VCU 275501

Date:          February 19. 2019

Time:          8:30 A.M. 

Dept.          7-The Honorable Bret D. Hillman

Motion:     Motion to Compel Arbitration

Tentative Ruling: To grant defendant Mainland Skate and Surf’s motion to compel arbitration.

Defendant’s Request for Judicial Notice is granted only as to the date of filing of the documents identified in defendant’s request for judicial notice. Except for orders from the Court that appear in the Court’s file for this case, the Court cannot take judicial notice as to the contents of documents in the Court’s file for this action as the contents of these documents constitute 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 has considered the response in this matter despite moving party’s contention it was untimely. Defendant had adequate time to review the response and file a reply.

OPERATIVE FACTS

This is a wrongful termination action where plaintiff Sarah Eckels pleads causes of action for: (1) Retaliation in Violation of FEHA (Government Code §12900 et seq.); (2) Failing to Take Reasonable Steps to Prevent Retaliation; and (3) Wrongful Termination (Government Code §12900 et seq.)

In April 2013, plaintiff Sarah Eckels began working for defendant Mainland Skate and Surf as an employee-keyholder in one of Mainland’s clothing stores.  At the outset of her employment with Mainland, Ms. Eckels was required to sign a one-page form titled “Mainland Skate and Surf Inc., Arbitration Agreement.” At no time before or during her employment was Ms. Eckels provided with any arbitration rules to review or informed where she could find any applicable arbitration rules.

Ms. Eckels worked for Mainland until early May of 2014 when she resigned to pursue other opportunities. Nine months later in late January of 2015, Mainland rehired Ms. Eckels as a store manager at a different store from where she previously worked.  Ms. Eckels was not required to sign a new arbitration agreement when Mainland rehired her.

In February of 2015, another Mainland employee approached Ms. Eckels with a complaint of harassment from Mainland’s District Manager Kwong Lee who was the brother of owner Fung Lee.

As a store manager, Ms. Eckels had the responsibility to report the employee’s complaint to human resources (which she did). After Ms. Eckels reported the employee’s harassment complaint, she contends that Mainland began treating her differently, with nitpicking and overly scrutinizing her.

This course of conduct culminated in owner Fung Lee telling Ms. Eckels that he “did not want her around anymore.” Ms. Eckels’ employment with Mainland ended on March 21, 2015.

Mainland petitions this court to compel arbitration based on the aforementioned one page “Mainland Skate and Surf, Inc. Arbitration Agreement.” Ms. Eckels contends that this arbitration agreement as drafted is both procedurally and substantively unconscionable in contradiction to the findings of the Supreme Court in Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.App.4th 83.  This contention arises out of Ms. Eckels’ position that signing this arbitration form was a mandatory condition of employment with no opportunity for her to negotiate the terms of this arbitration agreement.

Ms. Eckels further opines that even if this arbitration agreement was enforceable for her first period of employment with Mainland, the scope of this agreement does not extend to her second period of employment – and if Mainland wanted an enforceable arbitration agreement for Ms. Eckels’ second round of employment with Mainland, Mainland should have requested that she sign a new arbitration agreement.

AUTHORITY AND ARGUMENT

Generally, where an employer maintains a compulsory arbitration program and requires each employee to sign an acknowledgement that employment will be deemed as the employee’s consent to binding arbitration of any future disputes. Moreover, by continuing to work after signing acknowledgment of notice, the employee has manifested assent to the terms of the arbitration agreement (May v. Higbee, 372 F.3d 759, 764-765 (5th Cir. 2004)

When reviewing mandatory arbitration provisions in an employment contract, the court looks to general contract law to determine whether the arbitration clause is enforceable (Armendariz v. Foundation Health Psychcare (2000) 24 Cal.4th 83, 114-115)

Most employment agreements are contracts of adhesion because the employee has no ability to negotiate the terms and must usually “take it or leave it” i.e. not accept employment or terminate employment if the proposed agreements is unacceptable.  These agreements are procedurally unconscionable to some extent except for those that have been negotiated. (Farrar v. Direct Commerce Inc. (2017) 9 Cal.5th 1257, 1266)

Where an employment agreement requires binding, mandatory arbitration, and the employer moves for a court order under CCP §1281.2 and 9 USC §2 to compel an unwilling employee to arbitrate his or her claims against the employer, the court must evaluate (1) whether the employee’s agreement was knowing and voluntary and (2) whether the terms of the arbitration agreement are unconscionable.

A contract is unconscionable when, examining the totality of the agreement’s substantive terms and the circumstances of its formation, the agreement reflects “an absence of meaningful choice” on the part of one of the contracting parties “together with contract terms which are unreasonably favorability to the other party.” (Sonic-Calabasas A. Inc. v. Moreno, (2013) 57 Cal.4th 1109, 1133) The Sonic court further ruled that: “Unconscionability doctrine ensures that contracts, particularly contacts of adhesion, do not impose terms that have been variously described as overly harsh”…”unduly oppressive…so one-sided as to shock the conscience…or unfairly one-sided… Sonic, at 1145. In this case plaintiff willingly signed the agreement when she went to work for Mainland and came back months later knowing of the agreement. Plaintiff provides no authority for the proposition that she is not bound by the agreement when she returned to employment with Mainland.   

The  U.S. Supreme Court in AT & T Mobility LLC v. Concepcion (2011) 563 U.S. 333, 342-343 states that the Federal Arbitration Act preempts a categorical rule to invalidate as unconscionable provisions in employment contracts that waive employees’ rights to an administrative hearing.  But unconscionability “remains a valid defense” in California following Concepcion. This is because the presence of such a waiver can be considered as a factor in a totality-of-circumstances test to determine whether the agreement is “unreasonably one-sided” and thus unconscionable.  Sonic, at 1142-1143, 1145.

The court also notes the provision in Mainland’s “Arbitration Agreement” that: “The employee and Mainland Skate and Surf, Inc. hereby agree that nothing contained herein shall preclude either party from obtaining injunctive or other equitable relief to restrain violations of this agreement or applicable law or to preserve the status quo pending the arbitration of any disputes subject to this section.”  Plaintiff argues that this language lacks mutuality, but, by its own terns it applies to both employee and employer.

An  arbitration agreement may be substantively unconscionable when it compels arbitration of claims that employees are most likely to bring against the employer (e.g., contract, tort, and discrimination claims) but exempts from arbitration claims that the employer is likely to bring against its employees (e.g. injunctive or other equitable relief for intellectual property violations, unfair competition, and/or the use and/or unauthorized disclosure of trade secrets or confidential information.  (Mercuro v. Superior Court (Countywide Secur. Corp.) (2002) 96 Cal.App.4th 167, 175-176) But that case also looked to the difficulty presented to employees in arbitrating their claims due to an insufficient number of available NAF arbitrators. That arbitration agreement also forced employees to bear part of the arbitration fees. The Mercuro court found that an employee could not be forced to bear fees it would not incur in court. Although plaintiff argues that each side bears their own fees under the agreement here, that is no different from any contract suit without an attorney’s fees provision.

Also, unlike Mercuro, the record is silent as to any objections to the arbitration agreement. Here plaintiff apparently signed willingly and came back to work for defendant knowing of the mandatory arbitration requirement.

Based on the foregoing, the court concludes that Mainland’s arbitration agreement is not both procedurally and substantively unconscionable.  The agreement is not unreasonably one sided as it does provide for a mutuality of remedies to both the plaintiff and Mainland. The court finds Mainland’s arbitration agreement is enforceable.

Accordingly, defendant Mainland Skate and Surf’s motion to compel arbitration is granted.

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:              Rodgers v. California Highway Patrol

Case No.:     VCU273278

Date:           February 19, 2019

Time:          8:30 A.M. 

Dept.           7-The Honorable Bret D. Hillman

Motion:       Defendant’s Motion for Summary Judgment

Tentative Ruling:  To Deny Defendant’s Motion for Summary Judgment

Plaintiff seeks recovery for injuries received when an unmarked CHP vehicle, traveling in the opposite direction, collided with her vehicle on Highway 198 near Road 180.  Defendant submits 25 material facts in support of its summary judgment motion.  Although Plaintiff asserts a number of the submitted facts are disputed, Plaintiff submits no evidence or case authority to support her assertions.  As a result, the majority of Defendant’s submitted facts are undisputed.

Summary judgment is granted when no triable issue exists as to any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) "[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) The moving party bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law. (Ibid.)

Based on Defendant’s submitted material facts, a CHP officer was driving an unmarked CHP vehicle east-bound on highway 198.  The officer was traveling the 65 mph speed limit as he approached the turn off to Road 180.  The officer was in the left hand of two traffic lanes.  The officer observed a pickup truck in front of him turning onto highway 198 (also heading east-bound) from road 180 into the right hand lane.  The truck was going about 30 mph – much less than the posted speed limit for the highway.  As the officer, still in the left hand lane, approached the truck, the slowly moving truck suddenly and without signaling or other warning moved into the left hand lane directly in front of the officer.  In order to avoid colliding with the truck, the officer took evasive action.  He swerved to the right hand lane where his right side tires went off the pavement onto the dirt shoulder.  This caused the officer to lose control of his vehicle.  The officer swerved back across both lanes of east-bound highway 198, across the dirt center divider, and across both lanes of west-bound highway 198 before coming to rest in the dirt shoulder off the right hand lane of west-bound highway 198.  The officer’s out of control vehicle collided with two vehicles going west-bound on highway 198, one of which was Plaintiff’s.

The above is a summary of Defendant’s submitted facts numbered 1-18.  Supporting evidence for these facts comes from the driver/CHP officer’s declaration. The majority of these facts are undisputed.  Plaintiff offers no different or additional facts relating to the accident.

Defendant asserts that it is entitled to summary judgment because its officer was not negligent in the operation of his vehicle at the time of the accident.  Defendant argues the officer’s responses to the movement of the pickup truck were reasonable and not negligent.  Defendant further argues the movements of the pickup truck constituted a sudden emergency and that Defendant is immune from liability under the sudden emergency doctrine/imminent peril doctrine citing Shiver v. Laramee (2018) 24 Cal.App.5th 395.

The Shiver case was a “rare” instance when the doctrine of imminent peril applied on a summary judgment motion. The court stated. “The doctrine of imminent peril is properly applied only in cases where an unexpected physical danger is presented so suddenly as to deprive the driver of his power of using reasonable judgment. [Citations.] A party will be denied the benefit of the doctrine of imminent peril where that party's negligence causes or contributes to the creation of the perilous situation. Here there is a question of fact as to whether the officer’s conduct resulted or contributed to the accident, given that he admitted that just prior to the accident he had been travelling at a high rate of speed to an emergency situation, but claimed only to be travelling at the posted speed limit when the accident occurred, even though it caused him to lose control of his car, cross the median, 4 lanes of traffic and collide with two vehicles.    

As Defendant notes, a driver has the right to expect another driver will obey the traffic laws.  A driver will not necessarily be negligent in failing to anticipate another driver’s improper movements.  However, a driver may not be indifferent to the actions of other drivers.  A driver is required to conform his actions to “standards of common prudence and caution.” (Beseau v. George (1952) 111 Cal.App.2d 807, 809-810.)

Defendant asks the court to find the CHP officer’s actions were not negligent as a matter of law.  The court cannot so find.  The actions by the CHP officer resulted in his out of control vehicle crossing 4 lanes of paved highway and a dirt center divider before coming to a stop.  In the process, the officer collided with two vehicles traveling in the opposite direction.  Whether the CHP officer’s actions complied with standards of common prudence and caution is a question for determination by the trier of fact after hearing the evidence and testimony of witnesses.

Similarly, the emergency doctrine requires the CHP officer to have acted as a reasonably prudent person would have acted under similar circumstances. Whether the officer acted prudently and whether the officer was in imminent danger are both questions of fact for the jury.  (Kehlor v. Satterlee (1940) 37 Cal.App.2d 116.)  The court cannot find Defendant is immune from liability under the emergency doctrine as a matter of law.

The court finds Defendant’s submitted facts numbered 19, 20 and 24 are legal conclusions not necessarily supported by the above uncontested facts and that submitted facts 6-10 are reasonably disputed such that they should be determined by the trier of fact.  Defendant has failed to meet its initial burden of production to show the lack of triable issues of material fact.  As a result, the motion must be denied.

If no one requests oral argument, Plaintiff shall submit a proposed order in compliance with CCP section 437c(g) and prepared and served in compliance with CRC, rule 3.1312.

Re:              Garcia v. Pacific Bell Telephone Company

Case No.:     VCU276232

Date:           February 19, 2019

Time:          8:30 A.M. 

Dept.           7-The Honorable Bret D. Hillman

Motion:       Demurrer/Plea in Abatement by Defendant Pacific Bell Telephone Company to Plaintiff’s Corrected First Amended Complaint

Tentative Ruling:  To Overrule the Demurrer/Plea in Abatement by Defendant Pacific Bell Telephone Company to Plaintiff’s Corrected First Amended Complaint.  To Order Plaintiff’s claims brought under Labor Code 226(a)(9) stayed pending resolution of the litigation in the Kern County Superior Court action Dave Meza v. Pacific Bell Telephone Co., Case Number BCV-15101572.  Defendant shall file its answer to the Corrected First Amended Complaint within ten (10) days of this order.

Defendant asserts Plaintiff’s action is barred due to a prior certified class action pending in Kern County Superior Court against Defendant in which Plaintiff is a class member and which asserts the same claims for relief.  Plaintiff acknowledges the Kern County action and acknowledges claims for relief in Kern County include a claim for failure to provide accurate itemized wage statements under Labor Code 226(a)(9) – for failure to include all hourly rates during the pay period and the number of hours the employee worked at each hourly rate.  Plaintiff asserts his current action includes a claim for relief under Labor Code 226(a)(6) - failure to provide inclusive dates of the period for which the employee is paid.  Plaintiff asserts there was no Labor Code 226(a)(6) claim asserted in the Kern County Case as a result of which Defendant’s demurrer should be overruled.

Defendant argues that the nine (9) subsections of Labor Code 226(a) involve the same primary right – accurate itemized wage statements.  However, in wage and hour practice, courts have determined violations of Labor Code 226(a) by specific subsection.  Violations are specifically alleged and litigated separately for each subsection.  Most of Defendant’s authorities do not involve wage and hour claims.  The cases cited by Defendant do not discuss specific statutory requirements as set forth in Labor Code 226(a).  The wage an hour case cited by Defendant involved an action brought on Labor Code violations and a subsequent action brought under PAGA for the same violations.  (Villacres v. ABM Industries (2010) 189 Cal.App.4th 562.)  Defendant has not shown that violations of Labor Code 226(a)(6) and Labor Code 226(a)(9) would result in only a single remedy for class action Plaintiffs.  Each subsection requires specific and separate items to be included in employee wage statements.  A violation of each subsection would be a separate and additional violation requiring different evidence to support the claim and subjecting employers to different or additional penalties for each proven violation.   Two distinct, separate wrongs against one primary right results in two causes of action, not one.  (Branson v. Sun-Diamond Growers (1994) 24 Cal.App.4th 327, 341-342.)  The court finds Defendant’s argument that Plaintiff’s action is barred because Plaintiff seeks recovery for the same underlying misconduct unpersuasive.

The court cannot find that Plaintiff’s claims under Labor Code 226(a)(6) assert the same primary right as is asserted in the Kern County litigation.

It appears undisputed that the Kern County litigation did not involve claims brought under Labor Code 226(a)(6).  As a result, the court cannot find that the Kern County court has exclusive jurisdiction over such claims asserted in Plaintiff’s action.  Claims for violation of Labor Code 226(a)(9) are included in the Kern County action.  Accordingly, the court stays Plaintiff’s claims brought under that section pending the resolution of the litigation in the Kern County Superior Court action Dave Meza v. Pacific Bell Telephone Co., Case Number BCV-15101572.

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:              DVP, LP v. Correa

Case No.:     VCL187664

Date:           February 19, 2019

Time:          8:30 A.M. 

Dept.           7-The Honorable Bret D. Hillman

Motion:       Defendant’s Demurrer to Plaintiff’s Complaint

Tentative Ruling:  To Overrule Defendant’s Demurrer to Plaintiff’s Complaint.  Defendant shall file her answer to the Complaint on or before February 25, 2019.

For purposes of a demurrer all properly plead facts and those reasonably arising by implication must be accepted as true.  Couglas v. E. & J. Gallow Winery (1977) 69 Cal.App.3d 103, 114.  An exception, however, is that the general rule is limited to those material facts properly pleaded, and does not apply to conclusions of fact or law.  Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.  For example, a bare allegation that an act is illegal, unlawful, unauthorized, wrongful, or fraudulent is a conclusion of law that need not be accepted as true.  4 Witkin, Cal. Procedure (4th Ed. 1997) Pleading section 345, pp. 444-445.  Additionally, matters which are improperly pleaded are not provisionally admitted, and contentions and conclusions are not admitted for purpose of a general demurrer.  Blank v. Kirwan (1985) 39 Cal.3d 311, 319.

Plaintiff’s Complaint asserts Plaintiff is the holder of title to the subject real property by way of non-judicial foreclosure sale held on January 4, 2019.  Plaintiff asserts it is entitled to possession of the property and Defendant, the prior owner, is improperly holding over after a 3-day notice was served on January 16, 2019 in compliance with CCP 1161.  Plaintiff also provided a Notice of New Ownership and Letter to Occupant.  Copies of the notices are attached to the Complaint.

Defendant demurs asserting several deficiencies.  None of Defendant’s assertions have merit.  (1) Plaintiff is not required in his Complaint for Unlawful Detainer to establish a “foundation” for ownership beyond the assertion title was acquired at a non-judicial foreclosure sale.  Defendant has no authority to support a claim that other documents are required.  (2) The Complaint is facially brought by DVP, LP, alleged to be the current owner of the property.  Defendant has no authority to support a claim that more is required.  (3) Defendant complains the underlying foreclosure proceeding was improper and asserts she will be filing a separate civil action to contest the foreclosure.  Defendant has not yet filed such a civil action. Alleged deficiencies in the foreclosure process are not properly the subject of demurrer.  Defendant provides no authority to the contrary. (4) Plaintiff’s complaint facially states Plaintiff is the current owner of the property.  Defendant has no authority to support her claim that other documents are required because the “Deed and Note are In the Name of the Lender and payee of the Note and Not this Plaintiff.” (5) There is nothing in Plaintiff’s Complaint to assert Plaintiff was the foreclosure trustee.  Defendant’s contention that DVP, LP “as Trustee” lacks standing has no merit on demurrer.

The court finds Plaintiff’s Complaint adequately states a cause of action for unlawful detainer.  Defendant’s demurrer is overruled.

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:              Ramsey v. County of Tulare

Case No.:     VCU 274130

Date:           February 19. 2019

Time:          8:30 A.M. 

Dept.           7-The Honorable Bret D. Hillman

Motion:       Demurrer to Amended Complaint

Tentative Ruling: To sustain the demurrer of County of Tulare, Cass Cook, Stacy Mawhiny, Jorge Garcia, Kaitlyn Garcia, and Tulare County Tax Assessor, Collectors to plaintiff’s amended complaint with twenty days’ leave to amend.

OPERATIVE FACTS

Plaintiff Karl Edward Ramsey, Sr.’s alleges in his amended complaint that he attempted to pay his overdue property taxes by giving various documents to the Tulare County Tax Assessor.  Plaintiff identifies these documents in his complaint as “the discharging instrument packet.” But plaintiff’s amended complaint does not state that the documents in this packet included cash on any of the other statutorily acceptable procedures required to pay his property taxes.

Mr. Ramsey also asserts in his complaint that the defendants were required to provide him with a signed receipt and adjust the balance owed on his property taxes to zero.

The County did not accept the packet of documents that plaintiff delivered to it as payment of the property taxes, and subsequently scheduled his property to be sold at auction.  Before the date of this auction, plaintiff paid the overdue taxes in cash and as a result the sale at auction of the plaintiff’s property was cancelled.  The defendants provided plaintiff with a receipt for the payment of the overdue taxes.

Plaintiff contends that the County of Tulare and the other defendants violated his civil rights when they placed his property up for auction for unpaid property taxes.  Mr. Ramsey further asserts that his rights were violated when the defendants refused to sign his receipt once he paid his property taxes, and that his rights were further violated when County staff called law enforcement because of his conduct at a County facility.

STANDARD OF REVIEW

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

Where the facts alleged in a cause of action are inadequate or impermissible as a matter of law to sustain that cause of action, a demurrer is appropriate.  See CCP §430.10; Rakestraw v. California Physician’s Service (2000) 81 Cal.App. 39, 42, 43.

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.

CCP 430.10(f) further provides that “A special demurrer should not be sustained if the allegations are sufficiently clear to appraise the defendant of the issues that must be met, even if the allegations of the complaint may not be as clear and as detailed as might be desired. See People v. Lim (1941 ) 18 Cal.2d 872; Gonzales v.
State of California
(1977) 68 Cal.App.3d 621, 631.

A demurrer for uncertainty will be sustained where “the pleading is so incomprehensible that a defendant cannot reasonably respond.  See Lickiss v. Beechnut Nutrition Corp (1986) 185 Cal.App.3d 135, 139, n.2.  A demurrer for uncertainty will also lie where the facts alleged in the complaint are inadequate or impermissible as a matter of law to state the cause of action asserted.  See CCP §430.10; Rakestraw, at 42-43. But a demurrer for uncertainty is strictly construed even where the complaint is in some respects uncertain because these uncertainties or ambiguities could be clarified under modern discovery procedures.  See Khoury v. Maly’s of California (1993) 14 Cal.App.4th 612, 616.

AUTHORITY AND ANALYSIS

In his Amended Complaint, plaintiff sets forth the traditional allegations that are plead to support a cause of action, but does not specify which allegations support each of the various causes of actions that plaintiff has stated in his amended complaint.  The only specific conduct that plaintiff has identified in his complaint was the circumstances under which the defendants refused to accept the packet of information that the plaintiff provided to them as payment of the overdue taxes.

But as detailed below, this conduct was lawful as the defendants were not required to accept this “packet," as payment of the overdue taxes nor were they statutorily authorized to do so.

The information that the plaintiff provided to the Tulare County Tax Assessor did not meet the statutory requirements for payment of his property taxes.  California law provides that the tax collector has the discretion to accept “negotiable paper” that here is specifically limited to checks, drafts, and money orders. (Revenue and Taxation Code §2504)

The taxpayer may also pay taxes by electronic fund transfer (Revenue and Taxation Code §2503.1) as to the payment of any tax or assessment, or on a redemption (Revenue and Taxation Code §2511.1).  Plaintiff does not state in his amended complaint that the packet of information that he supplied to the defendant contained any documentation that he had paid these overdue taxes by any of these authorized methods.

Nor is there any merit to plaintiff’s assertion that the receipt that the defendants gave to him when he did indeed pay the overdue taxes was defective.

Under Revenue and Taxation Code §2615, whenever taxes are paid in cash or whenever the taxpayer requests a receipt, the tax collector must give a receipt without charge to the paying taxpayer that states (a) the amount paid; (b) the fiscal year; (c) the description of the property. 

As such, the plaintiff was not entitled to a receipt for the “packet” because it did not constitute payment of the taxes – and when he actually paid the property taxes, he did receive a receipt that complied with §2615.

Mr. Ramsey also erroneously pleads that under CCP §2075 the receipt that he received from the defendant must be signed by Kaitlyn Fitzgerald (identified in the plaintiff’s complaint as Kaitlyn Garcia).

Section 2075 states that “Whoever pays money, or delivers an instrument or property, is entitled to a receipt therefor from the person to whom the payment is made, may demand a proper signature from the person to whom the payment or delivery is made, and may demand a proper signature to such receipt as a condition of the payment or delivery.”  But even if a trier of face concluded that the defendants violated the provisions of §2075, this violation does not authorize the plaintiff to maintain a cause of action based on this violation.

The violation of a statute only creates a private right of action where “the legislature has manifested an intent to create such a private cause of action under the statute.” (Lu v. Hawaiian Gardens Casino, Inc. (2010) 50 Cal.4th 592, 596.

Moreover, even if §2075 authorized a cause of action based on a violation of this section, plaintiff has not plead any damages that he suffered as a result of this violation (i.e., damages that resulted from the lack of a personal signature on the receipt that the defendants provided to the plaintiff.                                             

Plaintiff also adds in his amended complaint that when defendant Jorge Garcia called the Tulare County Sheriff “to try to have them great bodily harm to Plaintiff,” in violation of 18 U.S.C. 241 and 242.  But the mere conclusion that Mr. Garcia’s conduct intended to cause bodily harm to plaintiff is not supported by any factual allegations as to how or why calling the Tulare County Sherriff would cause great bodily harm to the plaintiff.

In sum, plaintiff’s amended complaint amounts to little more than his dissatisfaction with how the Tulare County Tax Assessors office handled the payment of his property.  His amended complaint consists of a series of conclusions and citations to what he believes to be the applicable law without any facts to support these conclusions and citations.

As to whether plaintiff should be granted leave to amend his amended complaint, the court has discretion “in furtherance of justice” to grant leave to amend a party’s complaint (CCP §§473(a)(1); 576) Leave to amend should be liberally granted “at any stage of the proceedings, up to and including trial” absent prejudice to the adverse party (Atkinson v. Elk. Corp. (2003) 109 Cal.App.4th 739, 761)

The court should not ordinarily evaluate the merits of the proposed amended complaint to decide whether to grant leave to amend (Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048) It is the legal sufficiency of the amended complaint that should be tested by demurrer of other appropriate proceedings (Kittredge, at 1048, citing California Casualty General Insurance Co. v. Superior Court (1985) 173 Cal.App.3d 274, 281.

The court finds that the plaintiff’s amended complaint is deficient as to any factual support for any of the claims raised in this amended complaint and/or the damages that the plaintiff sustained as the result of the defendants’ conduct. 

Given that the possibility exists that there may be factual support for the plaintiff’s claims and the damages that he sustained, the court sustains the defendants’ demurrer with twenty 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:              Great American Insurance v. Kampen

Case No.:     VCL 182720

Date:           February 19. 2019

Time:          8:30 A.M. 

Dept.           7-The Honorable Bret D. Hillman

Motion:       Motion to Compel Responses to Form Interrogatories Against Floyd Kampen and for Sanctions

Tentative Ruling: To grant plaintiff’s motion to compel responses against defendant Floyd Kampen.  Defendant shall provide full and complete verified responses to plaintiff’s first set of form interrogatories within twenty days from the notice of this ruling.

Defendant Kampen shall also pay monetary sanctions in the amount of $600.00 under CCP §2023.010, §2023.030(a) and CCP §2030.290(c) to plaintiff’s counsel within thirty days from the notice of this ruling.

The court’s file indicates that proper and timely notice of this motion was given.  There has been no response to this motion.

Exhibit “A” to the declaration of Ron Chow filed in support of this discovery motion indicates that on June 7, 2018 plaintiff served its first set of form interrogatories on the defendant at the address identified in defendant’s answer to the plaintiff’s complaint. Mr. Chow further testifies in his declaration that his office has not received any response whatsoever from defendant to plaintiff’s first set of form interrogatories.

Based on the defendant’s failure to response to these form interrogatories, the Court orders under CCP §2030.290 that defendant provide full and complete verified responses without objection to plaintiff’s first set of form interrogatories, within twenty days from the notice of this ruling.

The Court further orders under CCP §2023.010; §2023.030(a) and §2030.290(c) that defendant Kampen shall pay monetary sanctions to plaintiff’s counsel in the amount of $600.00 within thirty days from the hearing date of this discovery motion.

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:              Lopez v. Carrillo

Case No.:     VCU 274531

Date:           February 19. 2019

Time:          8:30 A.M. 

Dept.           7-The Honorable Bret D. Hillman

Motion:       Defendant Jose Manuel Carrillo’s Motion to Set Aside Entry of Default.

Tentative Ruling: To deny defendant Jose Manuel Carrillo’s motion to set aside entry of default.

This is a personal injury action for negligence, negligence per se, and statutory liability that arises out of a traffic accident between a 2000 Lincoln LS sedan and automobile driven by plaintiff Ludvin Gonzalez Lopez and a 2007 flatbed freight vehicle driven by defendant Jose Manuel Carrillo. Plaintiff filed his complaint on June 29, 2018.

At the time of the accident, defendant Carrillo was acting in the course and scope of employment with defendant Ramco Enterprises, LP.  Defendant Carrillo states in his declaration that the plaintiff’s summons and complaint for this action was first accidently served on his father Jose Maria Carrillo and subsequently given by Mr. Carrillo to defendant Carrillo. When defendant Carrillo received the plaintiff’s summons and complaint he forwarded it to his employer Ramco who randomly put this summons and complaint in a file under the misunderstanding that because Ramco was not named in the complaint that it had no duty to provide a defense for defendant Carrillo.

Plaintiff entered the default of defendant Carrillo on November 16, 2018.  Then on November 19, 2018 defendant Carrillo’s wife picked up their mail at his parents’ home (defendant’s mother and father were out of the country at that time) and at that time discovered that plaintiff had entered a default against him. 

Defendant then contacted the attorney who represented defendant Carrillo in a prior action between the parties that arose out of the same accident that is the subject of this present action. Defendant Carrillo was the plaintiff in the prior action that had been settled before the plaintiff filed this present action.

Defendant’s prior counsel then wrote to Ranco to advise it that because defendant Carrillo was acting in the course and scope of his employment with Ramco at the time of the accident that Ramco was obligated to provide defendant Carrillo with a defense.

Defendant Carrillo now seeks to set aside the default against him based on his failure to timely respond to the plaintiff’s complaint due to Ramco’s misunderstanding as to its obligation to provide defendant Carrillo with a defense. But where the defendant’s moving papers are procedurally defective the Court cannot grant to defendant the relief that he seeks.

CCP §473(b) specifies that: “The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.

Defendant’s moving papers in the court’s file for this matter do not contain the defendant’s proposed responsive pleading to the plaintiff’s complaint. 

Accordingly, based on the strict requirement of CCP §473(b) that the moving party attach to the moving papers a copy of its responsive pleading to the plaintiff’s complaint, defendant Carrillo’s motion to set aside default is denied without prejudice.

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:              Flores v. Borges

Case No.:     VCU 271411

Date:           February 19. 2019

Time:          8:30 A.M. 

Dept.           7-The Honorable Bret D. Hillman

Motion:       Motion to Quash Defendants’ Subpoena for Plaintiffs’ Medical and Psychiatric Records

Tentative Ruling: There is no tentative ruling for this matter.  The parties are directed to meaningfully meet and confer in good faith to resolve the issues raised in this discovery dispute. If unable to resolve, the parties are directed to personally appear at the hearing for this motion.  No Court Call will be permitted if unable to resolve.

 


This concludes the civil tentative rulings



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