Superior Court, State of California
DATE: Thursday, 24 March 2022
TIME: 9:00 A.M.
This Department prefers that litigants use Zoom for Law and Motion and for Case Management Calendars. Court Call is also acceptable.
All Courts of California celebrate the diversity of the attorneys and the litigants who appear in our Courts. Do not hesitate to correct the Court or Court Staff concerning the pronunciation of any name or how anyone prefers to be addressed. As this Court is fond of saying, “with a name like mine, I try to be careful how I pronounce the names of others.” If your client is with you, please inform the Court how your client would prefer to be introduced. The Court encourages the use of diacritical marks, multiple surnames and the like for the names of attorneys, litigants and in court papers.
You may use these links for Case Management Conferences and Trial Setting Conferences without Court permission. Informal Discovery Conferences and appearances on Ex Parte applications will be set on Order by the Court.
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PLEASE READ THIS PAGE IN ITS ENTIRETY AS SOME OF THE PROTOCOLS HAVE CHANGED.
Please check this Tentative Rulings page before making any appearance.
Whether appearing in person or on a virtual platform, the usual custom and practices of decorum and attire apply.
For new Rules of Court concerning remote hearings and appearances, please review California Rules of Court, rule 3.672.
This Court expects all counsel and litigants to comply with the Tentative Rulings Procedures that are outlined in Local Civil Rule 7(E) and California Rules of Court, rule 3.1308. If the Court has not directed argument, oral argument must be permitted only if a party notifies all other parties and the Court at (408) 808-6856 before 4:00 p.m. on the court day before the hearing of the party's intention to appear. A party must notify all other parties by telephone or in person. A failure to timely notify this Court and/or the opposing parties may result in the tentative ruling being the final order in the matter.
Please notify this Court immediately if the matter will not be heard on the scheduled date. California Rules of Court, rule 3.1304(b). If a party fails to appear at a law and motion hearing without having given notice, this Court may take the matter off calendar, to be reset only upon motion, or may rule on the matter. California Rules of Court, rule 3.1304(d). A party may give notice that he or she will not appear at a law and motion hearing and submit the matter without an appearance unless this Court orders otherwise. This Court will rule on the motion as if the party had appeared. California Rules of Court, rule 3.1304(c). Any uncontested matter or matters to which stipulations have been reached can be processed through the Clerk in the usual manner. Please include a proposed order.
All proposed orders and papers should be submitted to this Department’s e-filing queue. Do not send documents to the Department email unless directed to do so.
APPEARANCES.
While the Court will still allow physical appearances, all litigants are encouraged to use the Zoom platform for Law & Motion appearances and Case Management Conferences. Use of other virtual platform devices will make it difficult for all parties fully to participate in the hearings. Please note the requirement of entering a password (highlighted above.)
As for personal appearances, protocols concerning social distancing and facial coverings in compliance with the directives of the Public Health Officer will be enforced. Currently, facemasks are required in all courthouses. If you appear in person, it will be helpful if you wear a disposable paper mask while using the courtroom microphones so that your voice will not be muffled.
Individuals who wish to access the Courthouse are advised to bring a plastic bag within which to place any personal items that are to go through the metal detector located at the doorway to the courthouse.
Sign-ins will begin at about 8:30 AM. Court staff will assist you when you sign in. If you are using the Zoom virtual platform, it will helpful if you “rename” yourself as follows: in the upper right corner of the screen with your name you will see a blue box with three horizontal dots. Click on that and then click on the “rename” feature. You may type your name as: Line #/name/party. If you are a member of the public who wishes to view the Zoom session and remain anonymous, you may simply sign in as “Public.”
The Santa Clara County Superior Court has established listen-only telephone Lines to allow remote access to public court proceedings. To listen to a public court proceeding in Department 20, you may dial 888-251-2909. When prompted, enter the access code number 4362730 when prompted, followed by the pound or hashtag (#) sign.
COURT REPORTERS.
This session will not be recorded. No electronic recordings, video, still photography or audio capture of this live stream is allowed without the expressed, written permission of the Superior Court of California, County of Santa Clara. State and Local Court rules prohibit photographing or recording of court proceedings whether in the courtroom or while listening on the Public Access Line or other virtual platform, without a Court Order. See Local General Rule 2(A) and 2(B); California Rules of Court, rule 1.150.
This Court no longer provides for Court Reporters in civil actions except in limited circumstances. If you wish to arrange for a court reporter, please use Local Form #CV-5100. All reporters are encouraged to work from a remote location. Please inform this Court if any reporter wishes to work in the courtroom. This Court will approve all requests to bring a court reporter. Counsel should meet and confer on the use of a court reporter. Occasionally each side will retain a court reporter which leaves this Court in a conundrum as to which reporter will be the official reporter for the purposes of the hearing.
PROTOCOLS DURING THE HEARINGS.
During the calling of any hearing, this Court has found that the Zoom video platform works very well. But whether using Zoom or any telephone, it is preferable to use a landline if possible. IT IS ABSOLUTELY NECESSARY FOR ALL INDIVIDUALS TO SPEAK SLOWLY. Plaintiff should speak first, followed by any other person. All persons should spell their names for the benefit of Court Staff. Please do not use any hands-free mode if at all possible. Headsets or earbuds of good quality will be of great assistance to minimize feedback and distortion.
The Court will prepare the Final Order unless stated otherwise below or at the hearing. Counsel are to comply with California Rules of Court, rule 3.1312.
TROUBLESHOOTING TENTATIVE RULINGS.
To access a tentative ruling, move your cursor over the line number, hold down the “Control” key and click. If you see last week’s tentative rulings, you have checked prior to the posting of the current week’s tentative rulings. You will need to either “REFRESH” or “QUIT” your browser and reopen it. Another suggestion is to “clean the cache” of your browser. Finally, you may have to switch browsers. If you fail to do any of these, your browser may pull up old information from old cookies even after the tentative rulings have been posted.
Tentative Rulings Are Continued Below. Full Orders Are On The Following Pages.
This Court's tentative ruling is just that—tentative. Trial courts are not bound by their tentative rulings, which are superseded by the final order. (See Faulkinbury v. Boyd & Associates, Inc. (2010) 185 Cal.App.4th 1363, 1374-1375.) The tentative ruling allows a party to focus his or her arguments at a subsequent hearing and to attempt to convince the Court the tentative should or should not become the Court's final order. (Cowan v. Krayzman (2011) 196 Cal.App.4th 907, 917.) If you wish to challenge a tentative ruling, please refer to a specific portion of the tentative ruling to which you disagree.
|LINE # |CASE # |CASE TITLE |TENTATIVE RULING |
|LINE 1 |19CV353339 |Louis Zemel; Liane Zemel v. Ford Motor Company; Ford |Motion of Defendants for Judgment on the Pleadings. |
| | |of Upland, LLC |The Court has a few questions for counsel about the “relation back” |
| | | |doctrine. |
| | | |NO TENTATIVE RULING. APPEARANCE REQUIRED. |
|LINE 2 |19CV353339 |Louis Zemel; Liane Zemel v. Ford Motor Company; Ford |Motion of Plaintiffs to Compel Defendants to Produce Further Responses|
| | |of Upland, LLC |to Request for Production of Documents. |
| | | |At the hearing on this matter, this Court will inquire of counsel for |
| | | |plaintiff the following question: “What documents do you think they |
| | | |have in their possession that are responsive to your requests and that|
| | | |you believe they are not producing?” |
| | | |NO TENTATIVE RULING. APPEARANCE REQUIRED. |
|LINE 3 |21CV389076 |Maria Sanchez v. Violet Elizabeth Grayson; James |Demurrer of Defendants to Plaintiff’s Complaint. |
| | |Zuegal |Defendants Zuegel and Grayson’s demurrer to plaintiff Sanchez’s |
| | | |complaint is OVERRULED. Defendants are given 20 days leave within |
| | | |which to ANSWER. |
| | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 4 |20CV371114 |Ryan Husband v. Ryker, SF, Inc.; JK Parcel, Inc.; |Motion of Defendant JK Parcel, Inc. for Summary Judgment. |
| | |Chigozie Ndekwe | |
| | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 5 |20CV371114 |Ryan Husband v. JK Parcel, Inc.; Chigozie Ndekwe; |Motion of Defendant JK Parcel Inc. to Seal Records Exhibits to the |
| | |Ryker SF, Inc.; |Declaration of Jeff Kameny. |
| | | |The motion is not opposed. |
| | | |A party may not file a record under seal without a court order. (Cal. |
| | | |Rules of Court, rule 2.551(a).) California Rules of Court, rule |
| | | |2.551(b) requires that the party seeking to file documents under seal |
| | | |must file a motion that contains a notice of motion, memorandum of |
| | | |points and authorities, and a declaration containing facts sufficient |
| | | |to justify the sealing. |
| | | |Pursuant to the Rules of Court, rule 2.551(d), a court has the |
| | | |authority to order that a record be filed under seal only if it |
| | | |expressly finds facts that establish: |
| | | |1. there exists an overriding interest that overcomes the right of |
| | | |public access to the record; |
| | | |2. the overriding interest supports sealing the record; |
| | | |3. a substantial probability exists that the overriding interest will|
| | | |be prejudiced if the record is not sealed; |
| | | |4. the proposed sealing is narrowly tailored; and |
| | | |5. no less restrictive means exist to achieve the overriding |
| | | |interest. |
| | | |(See also NBC Subsidiary (KNBC-TV) v. Superior Court (1999) 20 Cal.4th|
| | | |1178, 1218.) |
| | | |The application is GRANTED. |
| | | |NO FORMAL TENTATIVE RULING. |
|LINE 6 |19CV348624 |Long Gao; et al. v. Bethany Liou; et al. |Motion of Plaintiffs to Compel Defendant Golden California Regional |
| | | |Center, LLC to Provide Responses to Requests for Production of |
| | | |Documents, Set Two, Special Interrogatories, Set One and for Monetary |
| | | |Sanctions. |
| | | |The motion is unopposed. California Rules of Court, rule 3.1348 |
| | | |allows for the imposition of sanctions and discovery motions where no |
| | | |opposition was filed. The failure to file opposition is not deemed an |
| | | |admission that the motion was proper or that sanctions should be |
| | | |awarded. This Court is well familiar with the matter and deems that |
| | | |the motion should be granted and sanctions awarded. |
| | | |Defendant Golden California Regional Center, LLC is ordered to provide|
| | | |code-compliant, verified, and substantive responses to the foregoing |
| | | |discovery requests without objection and within 10 days of the filing |
| | | |and service of the order. |
| | | |The request of plaintiff’s for monetary sanctions is code-compliant |
| | | |and GRANTED. Golden California regional Center, LLC is to pay the sum |
| | | |of $2,130.00 in monetary sanctions (anticipated costs not awarded |
| | | |because no opposition was filed) within 10 days of the filing and |
| | | |service of this order. |
| | | |Counsel for plaintiffs is to prepare the final order and submitted to |
| | | |this Department via the clerk’s e-filing queue. |
| | | |NO FORMAL TENTATIVE RULING. |
|LINE 7 |21CV378059 |Michael DiSanto v. Anthem Builders, Inc.; Lockwood |Motion of Defendant Lockwood Hills Federal, LLC To Compel Plaintiff to|
| | |Hills Federal, LLC; Justin Baker; Patricia Moskalik |Provide Further Responses to Special Interrogatories, Set One, and |
| | | |Request for Monetary Sanctions. |
| | | |This discovery dispute involves one special interrogatory. |
| | | |Counsel for defendant Lockwood Hills Federal, LLC asked plaintiff the |
| | | |following special interrogatory number two: “if you contend you |
| | | |suffered personal injuries as a result of this incident, please |
| | | |describe how the incident occurred.” |
| | | |Counsel for plaintiff answered the interrogatory as follows: |
| | | |“plaintiff was walking down an internal stairwell on the premises. |
| | | |Unbeknownst and hidden from plaintiff, the defendants, [sic] had left |
| | | |debris from building improvements on the stairwell, presenting a |
| | | |hidden and dangerous condition to persons using the stairwell, |
| | | |including plaintiff. Plaintiff then slipped on the debris and fell, |
| | | |suffering injuries.” |
| | | |The parties disagree on whether this response was sufficient, leaving |
| | | |for this Court the interesting issue of whether plaintiff should be |
| | | |required to add a detailed description of the debris and mechanism of |
| | | |injury concerning the manner in on which he claims to have slipped. |
| | | |This Court has been of the long-standing opinion that assigning any |
| | | |faults in the breakdown in the civility of the legal profession begins|
| | | |and ends with the judges. |
| | | |A party is entitled to use multiple discovery devices to obtain |
| | | |information as long as it is not subjecting a party to unwarranted |
| | | |annoyance, embarrassment, or oppression or undue burden and expense. |
| | | |(See Code of Civil Procedure, § 2019.010; Carter v. Superior Court |
| | | |(1990) 218 Cal.App.3d 994, 997-998.) All litigants are entitled to |
| | | |exercise all tools of discovery, even those that may overlap. |
| | | |(Williams v. Superior Court (Marshalls of CA, LLC) 3 Cal.5th 531, |
| | | |541.) |
| | | |For the benefit of counsel and any reviewing court, the admonitions |
| | | |posted on the banner of this Court’s tentative ruling pages are as |
| | | |follows: |
| | | |“The Opposing Counsel on the Second-Biggest Case of Your Life Will Be |
| | | |the Trial Judge on the Biggest Case of Your Life.”—Common Wisdom. |
| | | |As Shakespeare observed, it is not uncommon for legal adversaries to |
| | | |"strive mightily, but eat and drink as friends." (Shakespeare, The |
| | | |Taming of the Shrew, act I, scene ii.)” (Gregori v. Bank of America |
| | | |(1989) 207 Cal.App.3d 291, 309.) |
| | | |Counsel is duty-bound to know the rules of civil procedure. (See Ten |
| | | |Eyck v. Industrial Forklifts Co. (1989) 216 Cal.App.3d 540, 545.)” |
| | | |APPEARANCES REQUIRED. NO FORMAL TENTATIVE RULING. |
|LINE 8 |19CV345499 |Sergey Firsov v. Yevgeniy Babichev; Ekaterina berman; |Hearing on Claim of Exemption for Defendant Yevgeniy Babichev. |
| | |Luba Chernov; Omar Kitanoff; Kitanoff Group; George |It appears that the motion is entered wrong into Odyssey as the claim |
| | |Sommers; State of California |of exemption is sought by plaintiff. |
| | | |There is a clerk’s note in Odyssey indicating that the claim of |
| | | |exemption was not filed with the Levying Officer, in this case the |
| | | |Office of the Sheriff in and for the County of Contra Costa. |
| | | |George Sommers, Assignee of Judgment Creditor, assigns all rights in |
| | | |the sum of $11,000.00 to Ekaterina Berman. |
| | | |APPEARANCES REQUIRED. NO FORMAL TENTATIVE RULING. |
|LINE 9 |19CV359811 |Siham Yamout v. Better Care, Inc.; Atlantic Ocean |Trial Setting Conference. |
| | |Holdings, Inc.; Links Healthcare Group, LLC; Links |Special Set. |
| | |Support Services, LLC. | |
|LINE 10 |19CV359811 |Siham Yamout v. Better Care, Inc.; Atlantic Ocean |Motion of Plaintiff for Leave to File First Amended Complaint and |
| | |Holdings, Inc.; Links Healthcare Group, LLC; Links |Substitute Plaintiff. |
| | |Support Services, LLC. |The motion does not appear to be opposed. |
| | | |Plaintiffs seek to amend the Complaint to identify her husband and |
| | | |surviving children, Adel El Mazboudi, an incompetent adult, by and |
| | | |through his guardian ad litem Khaireddine Mazboudi, Khaireddine |
| | | |Mazboudi and Ahmad Mazboudi, as Siham Yamout’s successors in interest |
| | | |in light of her death on 28 September 2021. |
| | | |Additionally, the proposed plaintiffs seek leave to amend the |
| | | |complaint to add a wrongful death cause of action as individuals. |
| | | |The motion is GRANTED. Plaintiffs should file the proposed amended |
| | | |complaint with the clerk through the e-filing queue and then serve a |
| | | |conformed copy upon all parties who will be given 20 days from the |
| | | |date of service of the amended complaint within which to RESPOND. |
| | | |NO FORMAL TENTATIVE RULING. |
|LINE 11 |19CV345676 |Veronica Muñoz v. Safeway, Inc. |Motion of Defendant Safeway, Inc. for Summary Judgment. |
| | | |The motion of defendant Safeway, Inc. for summary judgment is DENIED. |
| | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 12 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 13 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 14 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 15 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 16 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 17 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 18 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 19 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 20 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 21 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 22 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 23 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 24 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 25 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 26 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 27 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 28 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 29 | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 30 | | |SEE ATTACHED TENTATIVE RULING. |
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|SUPERIOR COURT, STATE OF CALIFORNIA | |
|COUNTY OF SANTA CLARA | |
| | |
|DEPARTMENT 20 | |
| | |
|161 North First Street, San Jose, CA 95113 | |
|408.882.2320 · 408.882.2296 (fax) | |
|smanoukian@ | |
| |(For Clerk's Use Only) |
|CASE NO.: |21CV389076 |Maria S. Sanchez v. James Zuegal, et al. |
|DATE: 24 March 2022 |TIME: 9:00 am |LINE NUMBER: 3 |
|This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 20 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. |
|Any party opposing the tentative ruling must call Department 20 at 408.808.6856 and the opposing party no later than 4:00 PM on 23 March 2022. Please specify |
|the issue to be contested when calling the Court and Counsel. |
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|Order on Demurrer of Defendants |
|to Plaintiff’s Complaint. |
I. Statement of Facts.
On 23 May 2015, plaintiff Maria S. Sanchez (“Sanchez”) and her daughter, S. Roe, visited the Mountain View YMCA. (Complaint, ¶¶8 – 9.)[1] Unknown to plaintiff Sanchez, an encounter occurred between defendant James Zuegel (erroneously sued as James Zuegal; hereafter, “Zuegel”) and S. Roe in the YMCA lobby area. (Complaint, ¶10.) Defendant Zuegel touched S. Roe’s buttocks while at the YMCA lobby asking, “How young are these buns?” or words to that effect. (Complaint, ¶11.)
S. Roe’s friend, J. Roe, witnessed this incident and reported it to her mother, L. Roe, who, in turn, told plaintiff Sanchez that her children did not want to return to the Mountain View YMCA because of the incident involving S. Roe. (Id.) Plaintiff Sanchez noticed something different about S. Roe’s behavior since going to the YMCA, but did not know if anything happened. (Id.) Unaware of the incident, plaintiff Sanchez asked S. Roe who tearfully confirmed what transpired on 23 May 2015. (Id.)
Plaintiff Sanchez initially reported the matter to Mountain View YMCA asking for the identity of the man present on 23 May 2015 with a service animal, but Mountain View YMCA refused to assist plaintiff Sanchez on grounds of member privacy. (Complaint, ¶12.) Plaintiff Sanchez then reported the matter to the Mountain View Police Department relaying the information provided by her daughter and making her daughter available for interview. (Complaint, ¶13.)
The Mountain View Police Department conducted its own investigation of the matter. (Complaint, ¶14.) On or about 14 June 2015, the Santa Clara County District Attorney’s office filed a criminal complaint against Zuegel arising from Zuegel’s encounter with S. Roe (“Criminal Case”). On or about 3 October 2016, Zuegel reached a plea deal in the Criminal Case pleading nolo contendere to a violation of Penal Code section 415, subdivision (2).[2]
In or about 2017, defendant Zuegel retained defendant Violet Elizabeth Grayson (“Grayson”) to bring a civil suit against plaintiff Sanchez and her daughter, S. Roe. (Complaint, ¶6.) On or about 11 September 2017, defendant Grayson caused a complaint to be filed on behalf of Zuegel and against plaintiff Sanchez and her daughter, containing a cause of action for malicious prosecution arising from the single encounter between Zuegel and S. Roe on 23 May 2015 (“Underlying Complaint”). (Complaint, ¶7.)
Defendants Zuegel and Grayson knew or should have known the Underlying Complaint was directed at plaintiff Sanchez’s constitutionally protected activity of petitioning law enforcement. (Complaint, ¶18.) Defendants Zuegel and Grayson knew or should have known a prima facie claim for malicious prosecution requires a favorable outcome on the merits. (Complaint, ¶19.)
Defendants Zuegel and Grayson knew or should have known a nolo contendere plea in the Criminal Case is not a favorable outcome on the merits. (Complaint, ¶20.) Defendants Zuegel and Grayson knew they lacked probable cause to bring and/or maintain the Underlying Complaint due to the missing element of favorable outcome in the Criminal Case. (Complaint, ¶¶21 – 22.) Defendants Zuegel and Grayson brought the Underlying Complaint with the improper purpose of coercing plaintiff Sanchez and S. Roe into a factual retraction or equivocation. (Complaint, ¶23.)
In the first conversation between defendant Grayson and plaintiff Sanchez’s defense attorney in the Underlying Complaint, defendant Grayson admitted Zuegel was not interested in collecting damages, but would just like to settle the Underlying Complaint with a favorable deposition of S. Roe to clear Zuegel’s name. (Complaint, ¶24.)
On 10 October 2017, Sanchez filed a special motion to strike (anti-SLAPP) the Underlying Complaint. (Complaint, ¶25.) On 5 March 2018, the Court issued an order granting Sanchez’s special (anti-SLAPP) motion to strike the Underlying Complaint. (Complaint, ¶26.) A judgment in favor of plaintiff Sanchez and S. Roe was entered on 25 July 2018. (Complaint, ¶27.) Plaintiff Sanchez suffered emotional distress, medical expenses, and wage loss as a result of being sued in the Underlying Complaint. (Complaint, ¶¶28 – 29.)
On 27 September 2021[3], plaintiff Sanchez filed the instant complaint (a self-entitled “SLAPPback”[4]) against defendants Zuegel and Grayson asserting a single cause of action for malicious prosecution.
On 3 January 2021, defendants Zuegel and Grayson filed the motion now before the court, a demurrer to plaintiff Sanchez’s complaint.
II. Demurrers in General.
A complaint must contain substantive factual allegations sufficiently apprising the defendant of the issues to be addressed. (See Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)
A demurrer tests the legal sufficiency of a complaint. It is properly sustained where the complaint or an individual cause of action fails to “state facts sufficient to constitute a cause of action.” (Code of Civil Procedure, § 430.10, subd. (e).) “[C]onclusionary allegations . . . without facts to support them” are insufficient on demurrer. (Ankeny v. Lockheed Missiles and Space Co. (1979) 88 Cal.App.3d 531, 537.) “It is fundamental that a demurrer is an attack against the complaint on its face, it should not be sustained unless the complaint shows that the action may not be pursued.” (Yolo County Dept. of Social Services v. Municipal Court (1980) 107 Cal.App.3d 842, 846-847.)
“It is not the ordinary function of a demurrer to test the truth of the plaintiff’s allegations or the accuracy with which he describes the defendant’s conduct. A demurrer tests only the legal sufficiency of the pleading.” (Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213.) “It ‘admits the truth of all material factual allegations in the complaint . . .; the question of plaintiff's ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.’ [Citation.]” (Id. at pp. 213-214; see Cook v. De La Guerra (1864) 24 Cal. 237, 239: “[I]t is not the office of a demurrer to state facts, but to raise an issue of law upon the facts stated in the pleading demurred to.”)
III. Analysis.
A. Defendants Zuegel and Grayson’s demurrer to plaintiff Sanchez’s complaint is OVERRULED.
“To establish a cause of action for the malicious prosecution of a civil proceeding, a plaintiff must plead and prove that the prior action (1) was commenced by or at the direction of the defendant and was pursued to a legal termination in his, plaintiff’s, favor [citations]; (2) was brought without probable cause [citations]; and (3) was initiated with malice.” (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 50; see also CACI, No. 1501.) The elements for the cause of action were also stated in Robinzine v. Vicory (2006) 143 Cal.App.4th 1416, 1422 (Robinzine), where the court wrote, “To establish a cause of action for malicious prosecution, the plaintiff must prove the prior action was: (1) brought by the defendant and resulted in a favorable termination for the plaintiff; (2) initiated or continued without probable cause; and (3) initiated with malice.” The Robinzine court, in turn, relied upon the California Supreme Court decision in Zamos v. Stroud (2004) 32 Cal.4th 958, 965 – 970, where the court concluded, “an attorney may be held liable for malicious prosecution for continuing to prosecute a lawsuit discovered to lack probable cause.”
1. Favorable termination.
In demurring to plaintiff Sanchez’s complaint, defendants Zuegel and Grayson argue first that plaintiff Sanchez did not obtain a favorable termination of the Underlying Complaint.
[The favorable termination element of malicious prosecution] can be seen as implicating two elements: termination of the entire action, and termination on the merits, reflecting innocence of the underlying defendants.
First, favorable termination requires favorable resolution of the underlying action in its entirety, not merely a single cause of action. (Crowley v. Katleman (1994) 8 Cal.4th 666, 686 [34 Cal. Rptr. 2d 386, 881 P.2d 1083].) “[I]f the defendant in the underlying action prevails on all of the plaintiff's claims, he or she may successfully sue for malicious prosecution if any one of those claims was subjectively malicious and objectively unreasonable. But if the underlying plaintiff succeeds on any of his or her claims, the favorable termination requirement is unsatisfied and the malicious prosecution action cannot be maintained.” (Lane v. Bell (2018) 20 Cal.App.5th 61, 64 [228 Cal. Rptr. 3d 605].)
Second, the action must have been terminated on a basis which reflects upon the innocence of the underlying defendant. “A ‘“favorable” termination does not occur merely because a party complained against has prevailed in an underlying action. While the fact he has prevailed is an ingredient of a favorable termination, such termination must further reflect on his innocence of the alleged wrongful conduct. If the termination does not relate to the merits—reflecting on neither innocence of nor responsibility for the alleged misconduct—the termination is not favorable in the sense it would support a subsequent action for malicious prosecution.’ [Citation.] ‘“[W]hen the underlying action is terminated in some manner other than by a judgment on the merits, the court examines the record ‘to see if the disposition reflects the opinion of the court or the prosecuting party that the action would not succeed.’” [Citations.]’ [Citation.] ‘Should a conflict arise as to the circumstances of the termination, the determination of the reasons underlying the dismissal is a question of fact. [Citation.]’ [Citation.]” (Sycamore Ridge Apartments LLC v. Naumann (2007) 157 Cal.App.4th 1385, 1399 [69 Cal. Rptr. 3d 561] (Sycamore Ridge).)
Cases have identified specific types of termination which are generally considered favorable and others which are generally considered unfavorable. A voluntary dismissal may or may not constitute a favorable termination. If the voluntary dismissal is an implicit concession that the dismissing party cannot maintain the action, it may constitute a dismissal on the merits which is a favorable termination. (JSJ Limited Partnership v. Mehrban (2012) 205 Cal.App.4th 1512, 1524 [141 Cal. Rptr. 3d 338] (JSJ).) “A voluntary dismissal is presumed to be a favorable termination on the merits, unless otherwise proved to a jury. [Citation.] This is because ‘“[a] dismissal for failure to prosecute … does reflect on the merits of the action [and in favor of the defendant] … . The reflection arises from the natural assumption that one does not simply abandon a meritorious action once instituted.”’ [Citation.]” (Sycamore Ridge, supra, 157 Cal.App.4th at p. 1400.)
In contrast, a dismissal on technical or procedural, rather than substantive, grounds is not considered favorable for purposes of malicious prosecution. (JSJ, supra, 205 Cal.App.4th at p. 1525.) These include dismissals for lack of jurisdiction, for lack of standing, to avoid litigation expenses, or pursuant to settlement. (Ibid.) Generally, a dismissal resulting from a settlement does not constitute a favorable termination because the dismissal reflects ambiguously on the merits of the action. The purpose of a settlement is specifically to avoid a determination on the merits. (Dalany v. American Pacific Holding Corp. (1996) 42 Cal.App.4th 822, 827 [50 Cal. Rptr. 2d 13].) When litigation is terminated by agreement “there is ambiguity with respect to the merits of the proceeding and in general no favorable termination for purposes of pursuing a malicious prosecution action occurs. [Citations.]” (Id. at p. 828.) Even if the action was tried to a verdict, a subsequent bilateral settlement in which each side gave up something of value (reduced payment accepted in exchange for waiving right to appeal) defeats favorable termination as a matter of law. [Footnote omitted.] (Ferreira v. Gray, Cary, Ware & Freidenrich (2001) 87 Cal.App.4th 409, 412–413 [104 Cal. Rptr. 2d 683].)
(Citizens of Humanity, LLC v. Ramirez (2021) 63 Cal.App.5th 117, 128-129.)
"Victory following a trial on the merits is not required." (Siebel v. Mittlesteadt (2007) 41 Cal.4th 735, 741) For example, a termination is considered favorable where the court grants summary judgment based on insufficient evidence to establish a triable issue of fact. (Sierra Club Foundation v. Graham (1999) 72 Cal.App.4th 1135, 1149-1150.)
Here, the court in the Underlying Complaint granted the special (anti-SLAPP) motion to strike Zuegel’s complaint noting specifically in the order[5]:
[Zuegel] fails to attach any evidence establishing a claim for malicious prosecution. In addition, there was no termination in [Zuegel’s] favor as he pled no contest in the criminal action … Upon a plea of nolo contendere the court shall find the defendant guilty, and its legal effect is the same as a plea of guilty for all purposes. It negates the element of a favorable termination, which is a prerequisite to stating a cause of action for malicious prosecution. [Citation.] Based on the foregoing, the Court finds [Zuegel] has failed to establish a probability of success on the merits of his malicious prosecution claim.
“The standard for determining the merits of a defendant's special motion to strike a complaint is similar to that for determining the merits of a defendant's motion for summary judgment. ‘Both seek to determine whether a prima facie case has been presented by the plaintiff in opposing the motions.’ [Citation.]” (Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 469.) In determining Zuegel’s probability of prevailing on the Underlying Complaint, the court made a determination on the merits and its ruling reflected on Sanchez’s responsibility/ liability[6] for the alleged misconduct. Accordingly, it is this opinion that plaintiff Sanchez has adequately alleged a favorable termination to support a claim for malicious court’s prosecution in the instant action.
2. Probable cause.
Defendants Zuegel and Grayson argue next that they had probable cause to file the Underlying Complaint.
The question of probable cause is “whether, as an objective matter, the prior action was legally tenable or not.” (Sheldon Appel Co. v. Albert & Oliker, supra, 47 Cal.3d at p. 868.) “A litigant will lack probable cause for his action either if he relies upon facts which he has no reasonable cause to believe to be true, or if he seeks recovery upon a legal theory which is untenable under the facts known to him.” (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 164–165 [80 Cal. Rptr. 2d 66].) “In a situation of complete absence of supporting evidence, it cannot be adjudged reasonable to prosecute a claim.” (Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 597 [71 Cal. Rptr. 2d 657].) Probable cause, moreover, must exist for every cause of action advanced in the underlying action. “[A]n action for malicious prosecution lies when but one of alternate theories of recovery is maliciously asserted … .” (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 57, fn. 5 [118 Cal. Rptr. 184, 529 P.2d 608]; see Crowley v. Katleman (1994) 8 Cal.4th 666, 679, 695 [34 Cal. Rptr. 2d 386, 881 P.2d 1083].)
(Soukup, supra, 39 Cal.4th at p. 292.)
“[T]he existence or absence of probable cause has traditionally been viewed as a question of law to be determined by the court, rather than a question of fact for the jury.” (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 875 (Sheldon); see also Paiva v. Nichols (2008)168 Cal.App.4th 1007, 1018 – 1019 (Paiva)—“The presence or absence of probable cause is viewed under an objective standard applied to the facts upon which the defendant acted in prosecuting the prior case.”)
An important policy consideration underlies the common law rule allocating to the court the task of determining whether the prior action was brought with probable cause. The question whether, on a given set of facts, there was probable cause to institute an action requires a sensitive evaluation of legal principles and precedents, a task generally beyond the ken of lay jurors, and courts have recognized that there is a significant danger that jurors may not sufficiently appreciate the distinction between a merely unsuccessful and a legally untenable claim. To avoid improperly deterring individuals from resorting to the courts for the resolution of disputes, the common law affords litigants the assurance that tort liability will not be imposed for filing a lawsuit unless a court subsequently determines that the institution of the action was without probable cause. [Citations.] If the court determines that there was probable cause to institute the prior action, the malicious prosecution action fails, whether or not there is evidence that the prior suit was maliciously motivated.
(Sheldon, supra, 47 Cal.3d at p. 875.)
“The question of probable cause is one of law, but if there is a dispute concerning the defendant’s knowledge of facts on which his or her claim is based, the jury must resolve that threshold question. It is then for the court to decide whether the state of defendant’s knowledge constitutes an absence of probable cause.” (Sierra Club Foundation v. Graham (1999) 72 Cal.App.4th 1135, 1154; see also CACI, No. 1503.) “A plaintiff has probable cause to bring a civil suit if his claim is legally tenable. This question is addressed objectively, without regard to the mental state of plaintiff or his attorney.” (Roberts v. Sentry Life Insurance (1999) 76 Cal.App.4th 375, 382 (Roberts); see also Wilson v. Parker (2002) 28 Cal.4th 811, 817.) “Probable cause is present unless any reasonable attorney would agree that the action is totally and completely without merit. [Citation.] This permissive standard for bringing suits, and corresponding high threshold for malicious prosecution claims, assures that litigants with potentially valid claims won’t be deterred by threat of liability for malicious prosecution.” (Roberts, supra, 76 Cal.App.4th at p. 382.) “Probable cause may be present even where a suit lacks merit. Favorable termination of the suit often establishes lack of merit, yet the plaintiff in a malicious prosecution action must separately show lack of probable cause. Reasonable lawyers can differ, some seeing as meritless suits which others believe have merit, and some seeing as totally and completely without merit suits which others see as only marginally meritless. Suits which all reasonable lawyers agree totally lack merit—that is, those which lack probable cause—are the least meritorious of all meritless suits. Only this subgroup of meritless suits present no probable cause.” (Id.)
In this current action, plaintiff Sanchez alleges, “Defendants Zuegel and Grayson knew they lacked probable cause to bring and/or maintain the Underlying Complaint due to the missing element of favorable outcome in the Criminal Case.” (Complaint, ¶¶21 – 22.) Defendants apparently argue here that they had probable cause based upon the decision of Drummond v. Desmarais (2009) 176 Cal.App.4th 439, 457 (Drummond) wherein the court held, “ ‘[a] malicious prosecution action will not lie while an appeal from the judgment in the underlying action is pending.’ [Citation.] So long as the appeal is pending, the plaintiff cannot truthfully allege a termination of the action, and a malicious prosecution action is ‘premature.’” It is not clear to this court how Drummond benefits defendants. Defendants Zuegel and Grayson were the plaintiff/plaintiff’s counsel in the Underlying Complaint pursuing a malicious prosecution action against Sanchez. Defendants Zuegel and Grayson apparently argue that because Zuegel was pursuing a writ of habeas corpus, the court in the Underlying Complaint should have stayed rather than dismissed the Underlying Complaint. However, implicit in defendants’ argument and reliance on Drummond is that, because Zuegel’s writ of habeas corpus was pending, Zuegel could not truthfully allege a termination and an action for malicious prosecution was premature. Under such circumstances, this court is of the opinion that defendants Zuegel and Grayson lacked probable cause to bring and/or maintain the Underlying Complaint.
3. Malice.
Finally, defendants contend the allegations of the complaint are inconsistent with a finding of malice. “Without actual malice, there can be no action for malicious prosecution. Negligence does not equate with malice. Nor does the negligent filing of a case necessarily constitute the malicious prosecution of that case.” (Grindle v. Lorbeer (1987) 196 Cal.App.3d 1461, 1468.)
“The ‘malice’ element … relates to the subjective intent or purpose with which the defendant acted in initiating the prior action. [Citation.] The motive of the defendant must have been something other than that of bringing a perceived guilty person to justice or the satisfaction in a civil action of some personal or financial purpose. [Citation.] The plaintiff must plead and prove actual ill will or some improper ulterior motive.” (Downey Venture v. LMI Ins. Co. (1998) 66 Cal.App.4th 478, 494 [78 Cal. Rptr. 2d 142]; see Albertson v. Raboff (1956) 46 Cal.2d 375, 383 [295 P.2d 405] [“[t]he malice required in an action for malicious prosecution is not limited to actual hostility or ill will toward plaintiff but exists when the proceedings are instituted primarily for an improper purpose”].) Malice “may range anywhere from open hostility to indifference. [Citations.] Malice may also be inferred from the facts establishing lack of probable cause.” (Grindle v. Lorbeer (1987) 196 Cal. App. 3d 1461, 1465–1466 [242 Cal. Rptr. 562].)
(Soukup, supra, 39 Cal.4th at p. 292.)
Defendants Zuegel and Grayson acknowledge plaintiff Sanchez’s allegations that, during the first meeting between counsel, Grayson admitted Zuegel was not interested in collecting damages and sought instead to settle the Underlying Complaint with a favorable deposition of S. Roe to clear Zuegel’s name. However, defendants Zuegel and Grayson contend this is a valid personal purpose. Even so, as noted above, malice may be inferred from the facts establishing a lack of probable cause. Defendants counter by citing Daniels v. Robbins (2010) 182 Cal.App.4th 204, 225 (Daniels) where the court wrote, “a lack of probable cause in the underlying action, by itself, is insufficient to show malice.”
Defendants omit, however, a subsequent statement in Daniels where the court wrote:
Additional proof of malice can consist of evidence a party knowingly brings an action without probable cause. (See Swat-Fame, Inc. v. Goldstein, supra, 101 Cal.App.4th at p. 634 [“While after Sheldon Appel a lack of probable cause, standing alone, does not support an inference of malice, malice may still be inferred when a party knowingly brings an action without probable cause.”], disapproved on other grounds in Zamos, supra, 32 Cal.4th at p. 973.) We think a corollary to this rule can be stated as follows: malice can be inferred when a party continues to prosecute an action after becoming aware that the action lacks probable cause.
(Daniels, supra, 182 Cal.App.4th at p. 226; italics original.)
In the instant action, plaintiff Sanchez makes such allegations that defendants Zuegel and Grayson knowingly brought/ maintained the Underlying Complaint without probable cause. (See Complaint, ¶¶19 – 22.) For all the reasons discussed above, defendants Zuegel and Grayson’s demurrer to plaintiff Sanchez’s complaint is OVERRULED.
IV. Tentative Ruling.
The tentative ruling was duly posted.
V. Case Management.
The Case Management Conference currently set for 5 July 2022 at 10:00 AM in this Department as well as the motion to continue that CMC, currently calendared for 14 April 2022 at 9:00 AM in this Department, are VACATED. This Court will set a new CMC for 20 September 2020 at 10:00 AM in this Department.
VI. Order.
Defendants Zuegel and Grayson’s demurrer to plaintiff Sanchez’s complaint is OVERRULED. Defendants are given 20 days leave within which to ANSWER.
|___________________________ |______________________________________________ |
|DATED: |HON. SOCRATES PETER MANOUKIAN |
| |Judge of the Superior Court |
| |County of Santa Clara |
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|SUPERIOR COURT, STATE OF CALIFORNIA | |
|COUNTY OF SANTA CLARA | |
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|DEPARTMENT 20 | |
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|161 North First Street, San Jose, CA 95113 | |
|408.882.2320 · 408.882.2296 (fax) | |
|smanoukian@ | |
| |(For Clerk's Use Only) |
|CASE NO.: |20CV371114 |Ryan Husband v. Chigozie Ndekwe, et al. |
|DATE: 24 March 2022 |TIME: 9:00 am |LINE NUMBER: 4 |
|This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 20 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. |
|Any party opposing the tentative ruling must call Department 20 at 408.808.6856 and the opposing party no later than 4:00 PM on 23 March 2022. Please specify |
|the issue to be contested when calling the Court and Counsel. |
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|Order on Motion of Defendant JK Parcel, Inc.’s |
|Motion for Summary Judgment. |
I. Statement of Facts.
On or about 21 December 2019, plaintiff Ryan Husband (“Husband”) and defendant Chigozie Ndekwe (“Ndekwe”) entered into a Stock Purchase Agreement (“Agreement”) whereby defendant Ndekwe purchased plaintiff Husband’s company, defendant Ryker SF, Inc. (“Ryker”), via a stock sale for the price of $747,517.45. (Complaint, ¶7 and Exh. A.) Ryker’s primary asset was an Independent Service Provider Contract Number 8307334 (“ISP Contract”) with Federal Express (“FedEx”) by which Ryker serviced certain FedEx ground and/or home zip codes based out of the South San Francisco terminal. (Id.)
In connection with the Agreement, defendant Ndekwe executed a Secured Promissory Note and Security Agreement (“Note”) which provided, among other things, that defendant Ndekwe would pay the balance of the purchase price ($627,517.45) pursuant to the schedule attached to the Note with the first payment due 1 April 2020. (Complaint, ¶8.) The Note further provides that the unpaid original principal shall bear interest at the rate of 5% per annum commencing 1 January 2020, that in the event of default plaintiff Husband may declare the entire outstanding principal balance immediately due and payable, and that a default occurs when defendant Ndekwe fails to pay within 30 days after a default notice. (Complaint, ¶9.) The Note is secured by a perfected security interest in all the assets of defendant Ryker and should a default occur, plaintiff Husband may (in addition to any other remedies) immediately take possession of the business until such default is cured. (Complaint, ¶10.)
Defendant Ndekwe defaulted on the Agreement and Note by failing to make the payment due on 1 April 2020 and failing to cure said default after being given notice and an opportunity to cure. (Complaint, ¶11.) As a result, plaintiff Husband declares all sums due under the Note immediately due and payable. (Id.)
On or about 28 January 2020, defendant Ryker sold the ISP Contract to defendant JK Parcel Inc. (“JKP”). (Complaint, ¶12.) Defendant JKP purchased the ISP Contract subject to the lien and interest of plaintiff Husband pursuant to the Agreement and Note with defendant Ndekwe and the filed/ recorded security interests in connection therewith. (Id.) Defendant Ryker’s sale of the ISP Contract is a further breach of the Agreement and Note. (Id.)
On 23 September 2020[7], plaintiff Husband filed a complaint against defendants Ndekwe, Ryker, and JKP asserting causes of action for:
1) Breach of Contract [against defendant Ndekwe]
(2) Claim and Delivery [against all defendants]
On 15 December 2020, defendant JKP filed an answer to plaintiff Husband’s complaint.
On 12 March 2021, defendant Ndekwe filed an answer to plaintiff Husband’s complaint and also filed a cross-complaint asserting cross-claims for:
1) Exercise of Duress and Undue Influence
2) Fraudulent Misrepresentation
3) Non-ownership of Ryker
On 12 November 2021, defendant JKP filed the motion now before the Court, a motion for summary judgment of plaintiff Husband’s complaint.
II. Standards for Summary Judgment Motions.
Any party may move for summary judgment. (Code of Civil Procedure, § 437c, subd. (a); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) The motion “shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code of Civil Procedure, § 437c, subd. (c); Aguilar, supra, at p. 843.) The object of the summary judgment procedure is “to cut through the parties’ pleadings” to determine whether trial is necessary to resolve the dispute. (Aguilar, supra, at p. 843.)
The “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…” (Aguilar, supra, 25 Cal.4th at p. 850; see Evidence Code, § 110.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Aguilar, supra, at p. 851.) A defendant moving for summary judgment may satisfy its initial burden either by producing evidence of a complete defense or by showing the plaintiff’s inability to establish a required element of the case. (Code of Civil Procedure, § 437c, subd. (p)(2); Aguilar, supra, at p. 853.) supra, at p. 853.) Allegations in the complaint alone are not enough to defeat a motion for summary judgment. (Coyme v. Krempels (1950) 36 Cal.2d 257.)
If a moving defendant makes the necessary initial showing, the burden of production shifts to the plaintiff to make a prima facie showing of the existence of a triable issue of material fact. (Code of Civil Procedure, § 437c, subd. (p)(2); see Aguilar, supra, 25 Cal.4th at p. 850.) A triable issue of material fact exists “if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar, supra, at p. 850, fn. omitted.) If the plaintiff opposing summary judgment presents evidence demonstrating the existence of a disputed material fact, the motion must be denied. (Id. at p. 856.)
Throughout the process, the trial court “must consider all of the evidence and all of the inferences drawn therefrom.” (Aguilar, supra, 25 Cal.4th at p. 856.) The moving party’s evidence is strictly construed, while the opponent’s is liberally construed. (Id. at p. 843.)
Similarly, “[a] party may seek summary adjudication on whether a cause of action, affirmative defense, or punitive damages claim has merit or whether a defendant owed a duty to a plaintiff. A motion for summary adjudication…shall proceed in all procedural respects as a motion for summary judgment.” (California Bank & Trust v. Lawlor (2013) 222 Cal.App.4th 625, 630, internal citations and quotation marks omitted.)
In addition to the facts provided by a moving defendant, the burden of production on summary judgment can shift to the plaintiff upon a showing that the plaintiff cannot factually support his claim. (See, e.g., Chavez v. Glock, Inc. (2012) 207 Cal.App.4th 1283.) Indeed, a defendant can satisfy its initial burden to show an absence of evidence through discovery responses that are factually devoid. (Id. at 1302.)
Thereafter, the plaintiff must present evidence supporting the challenged claim.
III. Analysis.
B. Defendant JKP’s motion for summary judgment is GRANTED.
A secured party wishing to repossess by judicial action, can bring an action in replevin or proceed under the statutory successor to replevin, an action of claim and delivery. [Citation.] “Claim and delivery is a remedy by which a party with a superior right to a specific item of personal property (created, most commonly, by a contractual lien) may recover possession of that specific property before judgment.” [Citation.]
California has a detailed claim and delivery law. (Code Civ. Proc., § 511.010 et seq.) A party with a claim that he is entitled to possession of property may apply for a writ of possession. (Code Civ. Proc., § 512.010.) A writ of possession directs the levying officer to levy on specified property. (Code Civ. Proc., § 512.080, subds. (b) & (d).) The court may also order the defendant to transfer possession of the property to the plaintiff. (Code Civ. Proc., § 512.070.)
(Simms v. NPCK Enterprises, Inc. (2003) 109 Cal.App.4th 233, 241; emphasis added.)
In the complaint, plaintiff Husband alleges that in the event of defendant Ndekwe’s default of the Note, “Plaintiff shall have all the rights of a secured creditor with respect to the ‘Collateral’ as said term is defined in the Note.” (Complaint, ¶18.) The Collateral, or a portion thereof, is located at the business address of defendant JKP and is being used and utilized by defendant JKP. (Complaint, ¶21.) “Plaintiff is entitled to the immediate possession and control of the Collateral…” (Complaint, ¶22.)
The Note, a copy of which is attached to the complaint, goes on to state, “This Note is secured by a security interest in favor of [plaintiff Husband] with respect to all of the assets of Ryker SF, Inc., a California corporation (the ‘Collateral’). If this Note is in default during its term or on the Maturity Date and such default is not cured within the applicable cure period specified above, [plaintiff Husband] will have the right to enforce its rights as lender and secured party against the Collateral. This Note is deemed the security agreement granting a security interest in favor of [plaintiff Husband] in the Collateral.”[8]
In moving for summary judgment against plaintiff Husband, defendant JKP explains that the only asset previously belonging to defendant Ryker which defendant JKP acquired was Ryker’s ISP Contract with FedEx.[9] Defendant JKP contends plaintiff Husband does not have an enforceable security interest in the ISP Contract for several reasons.
Initially, defendant JKP contends the security interest here is unenforceable because the security agreement does not adequately describe the ISP Contract as part of the Collateral.
a security interest is enforceable against the debtor and third parties with respect to the collateral only if each of the following conditions is satisfied:
(1) Value has been given.
(2) The debtor has rights in the collateral or the power to transfer rights in the collateral to a secured party.
(3) One of the following conditions is met:
(A) The debtor has authenticated a security agreement that provides a description of the collateral and, if the security interest covers timber to be cut, a description of the land concerned.
(Com. Code, §9203, subd. (b); emphasis added.)
In relevant part, Commercial Code section 9108, subdivision (a), states, “Except as otherwise provided in subdivisions (c), (d), and (e), a description of personal or real property is sufficient, whether or not it is specific, if it reasonably identifies what is described.” Here, defendant JKP points out, one of the noted exceptions applies. “A description of collateral as ‘all the debtor’s assets’ or ‘all the debtor’s personal property’ or using words of similar import does not reasonably identify the collateral.” (Commercial Code section 9108, subdivision (c); emphasis added.)[10]
As noted above, the Note expressly states that it is “deemed the security agreement granting a security interest in favor of [plaintiff Husband] in the Collateral.” Yet, the Note explicitly identifies the Collateral as “all of the assets of Ryker SF, Inc.” The plain language of section 9108, subdivision (c) states that such a description does not reasonably identify the collateral.
In opposition, plaintiff Husband contends an adequate description of the ISP Contract is found in the [Stock Purchase] Agreement which, plaintiff contends, was a single fourteen (14) page document. In the recitals to the Agreement, one recital states that defendant Ryker “is a party to Independent Service Provider Contract Number 8307334, dated November 16, 2019 (the ‘FedEx Contract’) with FedEx Ground Package System, Inc. (‘FedEx’) pursuant to which [defendant Ryker] operates the FedEx Contracted Service Area 301386 (‘CSA’), servicing certain FedEx ground and/or home zip codes based out of the South San Francisco, California terminal through September _10, 2021, including zip codes 94013, 94014, 94015, and 94017 (the ‘Transferred Territory’); [defendant Ryker] owns step vans, other trucks, iPads, and other assets used in connection with the operation of [defendant Ryker’s] business within the Transferred Territory (the ‘Business’);”
The Agreement goes on to state, “[Defendant Ndekwe] will deliver to [plaintiff Husband] … a secured promissory note (the ‘Note’), on the terms set forth in Section 4.2 ….” Thereafter, the Agreement continues, “The Note will be in the form of Exhibit A with an agreed upon payment and amortization schedule set forth in Exhibit C …” At section 4.3, the Agreement states, “[Defendant Ndekwe] agrees to cause [defendant Ryker] to satisfy (i) all of [defendant Ryker’s] loans payable and other accounts payable or lines of credit … and (ii) [plaintiff Husband’s] personal loans payable to CEFCU, secured by, respectively, two (2) trucks as identified in Exhibit B. The list of such open loans payable and their security, if any, is attached as Exhibit B.”
Thus, the Agreement contemplates a particular form to be used for the promissory note. That defendant Ndekwe and plaintiff Husband used the actual exhibit does not, in this court’s opinion, mean that the terms of the Stock Purchase Agreement are incorporated into the Note. The Note does not incorporate by reference the terms of the Agreement. Additionally, the reference to the ISP Contract is found in a recital[11] to the Agreement, not any of the Agreement’s operative terms. Similarly, even if the court were to accept plaintiff Husband’s assertion[12] that Exhibit B to the Agreement identifies with particularity a description of additional collateral (trucks and iPads), there is no reference to the ISP Contract. There is simply no basis, factual or legal, for plaintiff Husband to assert that the security agreement’s description of collateral includes the ISP Contract.
Since the security agreement here does not reasonably identify the collateral, the security agreement is not enforceable against the debtor or third parties including defendant JKP.
Accordingly, defendant JKP’s motion for summary judgment is GRANTED. In light of the court’s ruling, the court declines to address defendant JKP’s two additional bases for summary judgment.
IV. Tentative Ruling.
The tentative ruling was duly posted.
V. Case Management.
This Court will set a trial setting conference for 27 September 2022 at 11:00 AM in Department 20.
VI. Order.
Defendant JKP’s motion for summary judgment is GRANTED.
|___________________________ |______________________________________________ |
|DATED: |HON. SOCRATES PETER MANOUKIAN |
| |Judge of the Superior Court |
| |County of Santa Clara |
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|SUPERIOR COURT, STATE OF CALIFORNIA | |
|COUNTY OF SANTA CLARA | |
| | |
|DEPARTMENT 20 | |
| | |
|161 North First Street, San Jose, CA 95113 | |
|408.882.2320 · 408.882.2296 (fax) | |
|smanoukian@ | |
| |(For Clerk's Use Only) |
|CASE NO.: |19CV345676 |Veronica Munoz v. Safeway Inc., et al. |
|DATE: 24 March 2022 |TIME: 9:00 am |LINE NUMBER: 11 |
| |
|This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 20 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. |
|Any party opposing the tentative ruling must call Department 20 at 408.808.6856 and the opposing party no later than 4:00 PM on 23 March 2022. Please specify |
|the issue to be contested when calling the Court and Counsel. |
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|Order on Motion of Defendant Safeway Inc. |
|for Summary Judgment. |
I. Statement of Facts.
On 15 April 2017, defendant Safeway Inc. (“Safeway”) negligently and carelessly maintained, controlled, inspected, operated, managed, cleaned, and repaired their premises located at 840 Dunne Avenue in Morgan Hill so as to maintain a dirty, wet, slippery floor in an area on the premises and thereby created a dangerous condition on their premises. (Complaint, ¶Prem.L-1.) Plaintiff Veronica Munoz (“Munoz”), a customer, slipped and fell on said dangerous condition, severely injuring herself. (Id.)
On 3 April 2019[13], plaintiff Munoz filed a Judicial Council form complaint against defendant Safeway asserting causes of action for:
1) Premises Liability
2) General Negligence
On 9 October 2019, defendant Safeway filed an answer to plaintiff Munoz’s complaint.
On 12 November 2021, defendant Safeway filed the motion now before the court, a motion for summary judgment of plaintiff Munoz’s complaint.
II. Standards for Motions on Summary Judgment.
Any party may move for summary judgment. (Code of Civil Procedure, § 437c, subd. (a); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) The motion “shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code of Civil Procedure, § 437c, subd. (c); Aguilar, supra, at p. 843.) The object of the summary judgment procedure is “to cut through the parties’ pleadings” to determine whether trial is necessary to resolve the dispute. (Aguilar, supra, at p. 843.)
The “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…” (Aguilar, supra, 25 Cal.4th at p. 850; see Evidence Code, § 110.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Aguilar, supra, at p. 851.) A defendant moving for summary judgment may satisfy its initial burden either by producing evidence of a complete defense or by showing the plaintiff’s inability to establish a required element of the case. (Code of Civil Procedure, § 437c, subd. (p)(2); Aguilar, supra, at p. 853.) supra, at p. 853.) Allegations in the complaint alone are not enough to defeat a motion for summary judgment. (Coyme v. Krempels (1950) 36 Cal.2d 257.)
If a moving defendant makes the necessary initial showing, the burden of production shifts to the plaintiff to make a prima facie showing of the existence of a triable issue of material fact. (Code of Civil Procedure, § 437c, subd. (p)(2); see Aguilar, supra, 25 Cal.4th at p. 850.) A triable issue of material fact exists “if, and only if, the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof.” (Aguilar, supra, at p. 850, fn. omitted.) If the plaintiff opposing summary judgment presents evidence demonstrating the existence of a disputed material fact, the motion must be denied. (Id. at p. 856.)
Throughout the process, the trial court “must consider all of the evidence and all of the inferences drawn therefrom.” (Aguilar, supra, 25 Cal.4th at p. 856.) The moving party’s evidence is strictly construed, while the opponent’s is liberally construed. (Id. at p. 843.)
Similarly, “[a] party may seek summary adjudication on whether a cause of action, affirmative defense, or punitive damages claim has merit or whether a defendant owed a duty to a plaintiff. A motion for summary adjudication…shall proceed in all procedural respects as a motion for summary judgment.” (California Bank & Trust v. Lawlor (2013) 222 Cal.App.4th 625, 630, internal citations and quotation marks omitted.)
In addition to the facts provided by a moving defendant, the burden of production on summary judgment can shift to the plaintiff upon a showing that the plaintiff cannot factually support his claim. (See, e.g., Chavez v. Glock, Inc. (2012) 207 Cal.App.4th 1283.) Indeed, a defendant can satisfy its initial burden to show an absence of evidence through discovery responses that are factually devoid. (Id. at 1302.)
Thereafter, the plaintiff must present evidence supporting the challenged claim.
III. Analysis:
Defendant Safeway’s motion for summary judgment is DENIED.
“An action in negligence requires a showing that the defendant owed the plaintiff a legal duty, that the defendant breached the duty, and that the breach was a proximate or legal cause of injuries suffered by the plaintiff.” (Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673.) “Premises liability is a form of negligence … and is described as follows: The owner of premises is under a duty to exercise ordinary care in the management of such premises in order to avoid exposing persons to an unreasonable risk of harm. A failure to fulfill this duty is negligence.” (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619.)
“The proper test to be applied to the liability of the possessor of land . . . is whether in the management of his property he has acted as a reasonable man in view of the probability of injury to others.” (Alcaraz v. Vece (1997) 14 Cal.4th 1149, 1156.) “The question is whether in the management of his property, the possessor of land has acted as a reasonable person under all the circumstances. The likelihood of injury to plaintiff, the probable seriousness of such injury, the burden of reducing or avoiding the risk, the location of the land, and the possessor’s degree of control over the risk-creating condition are among the factors to be considered by the trier of fact in evaluating the reasonableness of a defendant’s conduct.” (Sprecher v. Adamson Companies (1981) 30 Cal.3d 358, 372.)
“Because the owner is not the insurer of the visitor’s personal safety [citation], the owner’s actual or constructive knowledge of the dangerous condition is a key to establishing its liability.” [Citation.] In the absence of actual or constructive knowledge of the dangerous condition, the owner is not liable. Moreover, where the plaintiff relies on the failure to correct a dangerous condition to prove the owner’s negligence, the plaintiff has the burden of showing that the owner had notice of the defect in sufficient time to correct it. (Moore v. Wal-Mart Stores, Inc. (2003) 111 Cal.App.4th 472, 476 (Moore).)
“Although liability might easily be found where the landowner has actual knowledge of the dangerous condition, ‘[the] landowner’s lack of knowledge of the dangerous condition is not a defense. He has an affirmative duty to exercise ordinary care to keep the premises in a reasonably safe condition, and therefore must inspect them or take other proper means to ascertain their condition. And if, by the exercise of reasonable care, he would have discovered the dangerous condition, he is liable.’” (Swanberg v. O’Mectin (1984) 157 Cal.App.3d 325, 330.)
[T]he plaintiff need not show actual knowledge where evidence suggests that the dangerous condition was present for a sufficient period of time to charge the owner with constructive knowledge of its existence. [Citation.] Whether this condition has existed long enough for a reasonably prudent person to have discovered it is a question of fact for the jury. [Citation.] There are no exact time limits. Rather, each accident must be viewed in light of its own unique circumstances. [Citation.] [¶] Thus, where … there is no direct evidence of the length of time the dangerous condition existed, the plaintiff can demonstrate the store owner had constructive notice of the dangerous condition by showing that the site had not been inspected within a reasonable period of time. [Citation.] In other words, the plaintiff may raise an inference that the condition existed long enough for the owner to have discovered it. [Citation.] “It remains a question of fact for the jury whether, under all the circumstances, the defective condition existed long enough so that it would have been discovered and remedied by an owner in the exercise of reasonable care.” [Citation.] Nevertheless, it is still the plaintiff who has the burden of producing evidence and who must prove that the owner had constructive notice of the hazardous condition. [Citation.]
(Moore, supra, 111 Cal.App.4th at p. 477. See also Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1210—“The exact time the condition must exist before it should, in the exercise of reasonable care, have been discovered and remedied, cannot be fixed, because, obviously, it varies according to the circumstances. A person operating a grocery and vegetable store in the exercise of ordinary care must exercise a more vigilant outlook than the operator of some other types of business where the danger of things falling to the floor is not so obvious.")
While it would be the plaintiff’s burden at trial to show that the owner had notice of the defect in time to correct it, defendant Safeway bears the initial burden in moving for summary judgment to demonstrate that it did not have actual or constructive notice of the purported dangerous condition in time to correct it. Here, although Safeway asserts that it did not have actual notice of the defect, Safeway has not provided any evidence to support such an assertion. Safeway also asserts that, as a matter of law, the defective condition did not exist long enough for Safeway to have discovered it, i.e., defendant Safeway did not have constructive notice of the defect. Defendant Safeway proffers only two facts to support its assertion: (1) Plaintiff Munoz shopped at the Safeway store in Morgan Hill on 15 April 2017 at approximately 2:00 or 3:00 pm[14]; and (2) On 15 April 2017, between approximately 1:00 and 4:00 pm, the produce section of the store was inspected and swept three times per hour.[15]
As defendant Safeway’s own authority makes clear, there is no fixed amount of time the condition must have existed before it should have been discovered and remedied. Defendant Safeway offers no legal authority which states that inspections and sweeps performed three times per hour is reasonable as a matter of law. Whether thrice hourly inspections/ sweeps inside of a grocery store is reasonable cannot be decided as a matter of law and is properly within the province of a jury. “Whether this condition has existed long enough for a reasonably prudent person to have discovered it is a question of fact for the jury. There are no exact time limits.” (Moore, supra, 111 Cal.App.4th at p. 477.)
Accordingly, defendant Safeway’s motion for summary judgment is DENIED.
IV. Tentative Ruling.
The tentative ruling was duly posted.
V. Case Management.
The Mandatory Settlement Conference for 13 April 2022 at 1:30 PM and the Trial Calendar date of 18 April 2022 will REMAIN AS SET.
VI. Order.
Defendant Safeway’s motion for summary judgment is DENIED.
|___________________________ |______________________________________________ |
|DATED: |HON. SOCRATES PETER MANOUKIAN |
| |Judge of the Superior Court |
| |County of Santa Clara |
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[1] This Judge has been a member of this facility for about 20 years but suspended membership since the start of the Covid pandemic. The Court does not believe this membership precludes this Court from presiding over this case.
[2] Penal Code section 415, subdivision (2) states, “Any of the following persons shall be punished by imprisonment in the county jail for a period of not more than 90 days, a fine of not more than four hundred dollars ($400), or both such imprisonment and fine: … (2) Any person who maliciously and willfully disturbs another person by loud and unreasonable noise.”
[3] This Department intends to comply with the time requirements of the Trial Court Delay Reduction Act (Government Code, §§ 68600–68620). The California Rules of Court state that the goal of each trial court should be to manage limited and unlimited civil cases from filing so that 100 percent are disposed of within 24 months. (Ca. St. Civil Rules of Court, Rule 3.714(b)(1)(C) and (b)(2)(C).)
[4] Code of Civil Procedure “Section 425.18 defines a SLAPPback as ‘any cause of action for malicious prosecution or abuse of process arising from the filing or maintenance of a prior cause of action that has been dismissed pursuant to a special motion to strike under Section 425.16.’ (§ 425.18, subd. (b)(1).)” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 281 (Soukup).)
The SLAPPback phenomenon is concisely explained in the legislative material accompanying Assembly Bill No. 1158 (2005–2006 Reg. Sess.), the bill ultimately enacted by the Legislature as section 425.18. 9 A SLAPPback suit is an action, typically for malicious prosecution “filed by the target of a SLAPP suit against the SLAPP filer after the dismissal of the SLAPP suit as a result of the target's appropriate use of the SLAPP statute.” (Assem. Com. on Judiciary, Rep. on Assem. Bill No. 1158 (2005–2006 Reg. Sess.) as introduced Feb. 22, 2005, p. 1.) The purpose of a SLAPPback is to seek compensation for damages beyond the attorney fees and costs awarded to the defendant who prevails on the special motion to strike under the anti-SLAPP statute. (See § 425.16, subd. (b)(3).) “SLAPP victims … commonly experience stress-related health issues, strained family relationships, and financial distress or even insolvency. The only way a SLAPP victim can recover for these damages is to pursue a legal claim against the person or entity that filed the original SLAPP.” (Assem. Com. on Judiciary, Rep. on Assem. Bill No. 1158 (2005–2006 Reg. Sess.) as introduced Feb. 22, 2005, p. 4.)
(Soukup, supra, 39 Cal.4th at pp. 279-280.)
[5] Defendants Zuegal and Grayson’s request for judicial notice in support of demurrer is GRANTED. (See Evidence Code, § 452, subd. (d); see also People v. Woodell (1998) 17 Cal.4th 448, 455—Evidence Code, §§ 452 and 453 permit the trial court to “take judicial notice of the existence of judicial opinions and court documents, along with the truth of the results reached—in the documents such as orders, statements of decision, and judgments—but [the court] cannot take judicial notice of the truth of hearsay statements in decisions or court files, including pleadings, affidavits, testimony, or statements of fact.”.)
Based on the same authority, the request for judicial notice in support of plaintiff’s opposition to defendants’ demurrer to verified complaint is GRANTED.
[6] In their demurrer, defendants apparently argue the favorable termination of the Underlying Complaint must establish Sanchez’s conclusive “innocence,” i.e., that Sanchez did not make a false report to the Mountain View Police Department regarding the incident. Defendants rely on Pattiz v. Minye (1998) 61 Cal.App.4th 822, 827 where the court wrote, “Thus plaintiff must establish more than that he prevailed in the underlying action. [Citation.] He must prove a termination that reflects on his innocence. [Citation.] If the resolution of the underlying action leaves some doubt concerning plaintiff’s innocence or liability, it is not a favorable termination sufficient to allow a cause of action for malicious prosecution.” (Emphasis added.) However, it is this court’s opinion that Sanchez need not establish her conclusive factual “innocence” of the alleged misconduct is not the standard. Even the court in Pattiz states only that the termination must “reflect” on the plaintiff’s innocence. In striking the Underlying Complaint, the court stated unequivocally, “[Zuegel] fails to attach any evidence establishing a claim for malicious prosecution.” This was an adjudication of the merits of Zuegel’s claim and, in this court’s opinion, leaves no doubt concerning Sanchez’s liability for malicious prosecution.
[7] This Department intends to comply with the time requirements of the Trial Court Delay Reduction Act (Government Code, §§ 68600–68620). The California Rules of Court state that the goal of each trial court should be to manage limited and unlimited civil cases from filing so that 100 percent are disposed of within 24 months. (Ca. St. Civil Rules of Court, Rule 3.714(b)(1)(C) and (b)(2)(C).)
[8] See also Defendant JK Parcel Inc.’s Separate Statement of Undisputed Material Facts in Support of JK Parcel Inc.’s Motion for Summary Judgment (“Defendant JKP UMF”), Fact Nos. 1 – 2. In opposition, plaintiff Husband filed Evidentiary Objections to the Declaration of Stephen Holmes. Objection Nos. 1 – 2 are OVERRULED. The court declines to rule on objection nos. 3 – 6. “In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.” (Code Civ. Proc., §437c, subd. (q).)
[9] See Defendant JKP UMF, Fact Nos. 4, 5, 7, 14, and 15. In opposition, plaintiff Husband filed Evidentiary Objections to the Declaration of Jeff Kameny. Objection Nos. 1 – 2 are OVERRULED. The court declines to rule on objection nos. 3 – 16. “In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.” (Code Civ. Proc., §437c, subd. (q).)
[10] In contrast, “A financing statement sufficiently indicates the collateral that it covers if the financing statement provides either of the following: (1) A description of the collateral pursuant to Section 9108. (2) An indication that the financing statement covers all assets or all personal property.” (Com. Code, § 9504; emphasis added.)
[11] "Recitals in a contract, such as 'whereas' clauses, are merely explanations of the circumstances surrounding the execution of the contract, and are not binding obligations unless referred to in the operative provisions of the contract. For example, a recital of intent in a 'whereas' clause of a contract cannot create any rights beyond those established by the operative terms of the contract. However, recitals in a contract should be reconciled with the operative clauses of the contract, and given effect, as far as possible. Thus, although 'whereas' clauses cannot be permitted to control over the express provisions of a contract, such recitals may be read in conjunction with the operative portions of the contract in order to ascertain the parties' intention." (17A C.J.S. (1999) Contracts, § 317, p. 340, fns. omitted.)
[12] The Note does not reference Exhibit B and nothing in the Agreement ties Exhibit B to the Note. Exhibit B is referenced by the Agreement and only then to identify loans/accounts payable that defendant Ndekwe was obligated to satisfy. On its face, there is nothing in the Agreement to indicate the parties intended Exhibit B to be an identification of collateral.
[13] This Department intends to comply with the time requirements of the Trial Court Delay Reduction Act (Government Code, §§ 68600–68620). The California Rules of Court state that the goal of each trial court should be to manage limited and unlimited civil cases from filing so that 100 percent are disposed of within 24 months. (Ca. St. Civil Rules of Court, Rule 3.714(b)(1)(C) and (b)(2)(C)
[14] See Safeway’s Separate Statement of Undisputed Material Facts in Support of Motion for Summary Judgment (“Safeway UMF”), Fact No. 1.
[15] See Safeway UMF, Fact No. 2.
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