Superior Court, State of California



DATE: Tuesday, 26 April 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.

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 |21CV384206 |William Wortz v. Julie Eagleton, Individually and As |Motion of Plaintiff to Compel Deposition. |

| | |Trustee of the Eagleton Family Trust. |It appears that the defendant Ms. Eagleton was deposed on 22 February |

| | | |2022. The motion is MOOT. |

| | | |According to the reply papers of plaintiff, “[t]he remaining issue for|

| | | |the Court is sanctions.” (page 1, line 24.) |

| | | |The request of plaintiff for monetary sanctions is DENIED. The request|

| | | |of defendant for monetary sanctions is DENIED. |

| | | |NO FORMAL TENTATIVE RULING. |

|LINE 2 |21CV384206 |William Wortz v. Julie Eagleton, Individually and As |Motion of Defendant to Strike Portions of the First Amended Complaint.|

| | |Trustee of the Eagleton Family Trust. |Defendant Eagleton’s demurrer to plaintiff Wortz’s FAC on the ground |

| | | |that the pleading does not state facts sufficient to constitute a |

| | | |cause of action [Code Civ. Proc., §430.10, subd. (e)], i.e., the |

| | | |claims are barred by the applicable statutes of limitation, is |

| | | |OVERRULED. |

| | | |Defendant Eagleton’s demurrer to plaintiff Wortz’s FAC on the ground |

| | | |that the pleading does not state facts sufficient to constitute a |

| | | |cause of action [Code Civ. Proc., §430.10, subd. (e)], i.e., the |

| | | |claims are barred by the statute of frauds, is OVERRULED. |

| | | |Defendant Eagleton’s demurrer to the [third] cause of action of |

| | | |plaintiff Wortz’s FAC on the ground that the pleading does not state |

| | | |facts sufficient to constitute a cause of action [Code Civ. Proc., |

| | | |§430.10, subd. (e)] for breach of fiduciary duty is OVERRULED. |

| | | |Defendant Eagleton’s motion to strike portions of plaintiff Wortz’s |

| | | |FAC is DENIED. |

| | | |Defendant Eagleton shall file an answer to plaintiff Wortz’s FAC |

| | | |within 10 days. |

| | | |SEE ATTACHED TENTATIVE RULING. |

| | | |The unofficial order of this Court following the discovery heard by |

| | | |the Court and taken under submission on 15 March 2022 is attached at |

| | | |Line #20 below. An executed and file-endorsed copy of the order will |

| | | |be sent to counsel under separate cover. |

|LINE 3 |21CV384206 |William Wortz v. Julie Eagleton, Individually and As |Demurrer of Defendant to the First Amended Complaint. |

| | |Trustee of the Eagleton Family Trust. |SEE LINE #2. |

|LINE 4 |21CV391202 |Yvonne Kerrigan v. Sandra Frances Kerrigan |Demurrer of Defendant to Plaintiff’s First Amended Complaint. |

| | | |This Court has reviewed a copy of the proposed second amended |

| | | |complaint filed on 13 April 2022. This Court appreciates the ample |

| | | |“heads up” email dated 20 to April 2022. |

| | | |The hearing on the demurrer tomorrow will be taken OFF CALENDAR |

| | | |WITHOUT PREJUDICE. |

| | | |At the current time, there is no protocol by which demurrers are taken|

| | | |off calendar if an amended complaint is filed on or before the date |

| | | |that the opposition is due. |

| | | |NO FORMAL TENTATIVE RULING. |

|LINE 5 |20CV364178 |Sharon Richmond v. City of Sunnyvale |Motion of Defendant City of Sunnyvale for Summary |

| | | |Judgment/Adjudication. |

| | | |The motion for summary judgment is DENIED. |

| | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 6 |20CV366093 |Elizabeth H. Misich v. Thomas Misich et al. |Motion of Plaintiff/Cross-Defendant Elizabeth H. Misich for Summary |

| | | |Judgment/Adjudication. |

| | | |This Court has not had the opportunity to read all of the papers |

| | | |involved with this motion. Good cause appearing, IT IS ORDERED that |

| | | |this hearing is to be continued to 26 May 2022 at 9:00 AM in this |

| | | |Department |

| | | |NO FORMAL TENTATIVE RULING. |

|LINE 7 |21CV382651 |Gregory Gilbert v. Stanford Healthcare; Andra |Motion of Defendants to Compel the Deposition of Plaintiff and Request|

| | |Blomkalns, M.D.; Board of Trustees etc. |for Monetary Sanctions. |

| | | |By the agreement of counsel, the hearing on these motions is VACATED |

| | | |and the matter will be heard in an Informal Discovery Conference on 27|

| | | |April 2022 at 2:00 PM via the Tentative Ruling Zoom link. |

|LINE 8 |21CV382651 |Gregory Gilbert v. Stanford Healthcare; Andra |Motion of Defendants for a Protective Order. |

| | |Blomkalns, M.D.; Board of Trustees etc. |By the agreement of counsel, the hearing on these motions is VACATED |

| | | |and the matter will be heard in an Informal Discovery Conference on 27|

| | | |April 2022 at 2:00 PM via the Tentative Ruling Zoom link. |

|LINE 9 |21CV382651 |Gregory Gilbert v. Stanford Healthcare; Andra |Motion of Plaintiff to Compel defendants to prove Complete Sets of |

| | |Blomkalns, M.D.; Board of Trustees etc. |Responses to Discovery Requests and Request for Monetary Sanctions. |

| | | |By the agreement of counsel, the hearing on these motions is VACATED |

| | | |and the matter will be heard in an Informal Discovery Conference on 27|

| | | |April 2022 at 2:00 PM via the Tentative Ruling Zoom link. |

|LINE 10 |21CV389418 |Debt Management Partners, LLC v. Catherine Montoya |Motion of Plaintiff to Deem Requests for Admissions to Be Admitted. |

| | | |The motion is unopposed. |

| | | |On 03 December 2021, plaintiffs served Requests for Admissions upon |

| | | |defendant. The defendant never responded. Plaintiff filed this motion |

| | | |on 31 January 2022. |

| | | |Good cause appearing, IT IS ORDERED that the Requests for Admissions |

| | | |are deemed ADMITTED. (Code of Civil Procedure, § 2033.280(b).) |

| | | |NO FORMAL TENTATIVE RULING. |

|LINE 11 |20CV370223 |Steven Lewis v. Rapid Recon, Inc. |Joint Motion for Extension of Trial Setting Conference in Discovery |

| | | |Deadline. |

| | | |On 11 January 2022, this Court set the Trial Setting on 19 July 2022 |

| | | |11:00 am in Department 20. Counsel were ordered to meet and confer on|

| | | |trial dates within 120 days from the date of the TSC. Is this matter |

| | | |MOOT? |

| | | |The parties are to use the Tentative Ruling Protocol to advise the |

| | | |Court of their intentions. |

|LINE 12 |2011-1-CV-211988 |Meriwest Credit Union v. Lamuel B. Quiwa |Motion of Plaintiff to Amend an Abstract of Judgment (Code of Civil |

| | | |Procedure, § 680.135.) |

| | | |The motion is not opposed. |

| | | |The motion is supported by factual recitations contained in the |

| | | |declaration of Bret A. Yaple, Esq., counsel for plaintiff. The motion |

| | | |is GRANTED. Counsel for plaintiff may submit a proposed order to this |

| | | |Department via the e-filing queue. |

| | | |NO FORMAL 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 |21CV384206 |William Wortz v. Julie Eagleton, Individually and As |Plaintiff’s Motion to Compel Defendant To Provide Further Responses to|

| | |Trustee of the Eagleton Family Trust. |Form Interrogatories and Request for Production of Documents, (Sets |

| | | |One) (erroneously entitled “Motion to Compel Discovery”). |

| | | |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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Calendar Line 1

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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) | |

|department20@ | |

| |(For Clerk's Use Only) |

|CASE NO.: |21CV384206 |William Wortz v. Julie Eagleton, et al. |

|DATE: 26 April 2022 |TIME: 9:00 am |LINE NUMBER: 2, 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 25 April 2022. And Please |

|specify the issue to be contested when calling the Court and Counsel. |

|---oooOooo--- |

|Orders on Defendant’s: |

|1. Demurrer to First Amended Complaint; and |

|2. Motion to Strike Portions of Plaintiff’s First Amended Complaint. |

I. Statement of Facts.

Defendant Julie Eagleton (“Eagleton”) was formerly married to Jerry Feemster (“Feemster”). (First Amended Complaint (“FAC”), ¶¶2 and 9.) Defendant Eagleton’s marriage to Feemster was dissolved and subject to an Interlocutory Judgment of Dissolution (“Judgment”) entered on 23 August 1977. (FAC, ¶9.) Pursuant to the Judgment, real property located at 10395 Rivercrest Court in Cupertino (“Property”) was awarded to defendant Eagleton. (Id.)

However, also pursuant to the Judgment, defendant Eagleton was to provide a promissory note to Feemster and pay sums and interest to Feemster as well as assume indebtedness on the Property. (Id.) Pursuant to the Judgment, Feemster deeded his interest in the Property to defendant Eagleton on 20 September 1977. (FAC, ¶10.) Title to the Property [at present] is in the name of defendant Eagleton, as trustee of the Eagleton Family Trust (“Trust”). (FAC, ¶5.)

Defendant Eagleton is [currently] in possession of the Property. (FAC, ¶6.)

From 1975 through approximately 1992, plaintiff William Wortz (“Wortz”) and defendant Eagleton cohabitated together at the Property, remained in joint possession thereof, and maintained an intimate relationship. (FAC, ¶8.) During that period, defendant Eagleton was employed in retail sales, largely working part time. (Id.) During that period, plaintiff Wortz and defendant Eagleton pooled their resources, with plaintiff Wortz largely providing the support. (Id.) From 1975 through April 2020, plaintiff Wortz and defendant Eagleton had a relationship of trust and confidence in the integrity and fidelity of each other. (Id.)

In or about 1982 to 1984, plaintiff Wortz and Eagleton entered into an oral agreement while cohabitating together at the Property. (FAC, ¶11.) Pursuant to that agreement, plaintiff Wortz would pay off defendant Eagleton’s monetary obligations to Feemster and, in exchange, defendant Eagleton agreed plaintiff Wortz would receive Feemster’s former one-half interest in the Property, together will all the benefits of ownership of the Property. (Id.) Plaintiff Wortz and defendant Eagleton agreed they would split the property tax obligations and insurance obligations; and plaintiff Wortz would maintain the Property. (Id.) Subsequently, plaintiff Wortz and defendant Eagleton agreed plaintiff Wortz would service a joint debt obligation plaintiff Wortz believed was secured by the Property. (Id.)

Pursuant to and in furtherance of the agreement, plaintiff Wortz paid the sum of $65,000 to Feemster in or about 1982 to 1984. (FAC, ¶12.) Since then, plaintiff Wortz regularly paid one-half of the property taxes on the Property by alternating payments, paid one half of the insurance obligations on the Property through 2019, and assumed the principal role in maintaining the Property through approximately March 2020, although regularly conferring with defendant Eagleton about necessary maintenance. (FAC, ¶13.) Plaintiff Wortz last paid the sum of $1,166.66 on 10 April 2018 toward property taxes. (Id.)

Plaintiff Wortz also paid a joint debt obligation through December 2019. (FAC, ¶14.) The joint debt obligation was first incurred in or about 1991. (Id.) Plaintiff Wortz believed the joint debt obligation was secured by the Property. (Id.) Plaintiff Wortz and defendant Eagleton incurred the debt obligation in part to jointly invest in a separate property and in part to pay defendant Eagleton’s debt. (Id.) Plaintiff Wortz and defendant Eagleton referred to themselves as partners in making the joint investment in the separate property in 1991. (Id.)

Within the first two years of making the agreement and until in or about April 2020, defendant Eagleton repeatedly assured plaintiff Wortz that his interest in the Property would be protected. (FAC, ¶15.) Defendant Eagleton initially told plaintiff Wortz she was not comfortable putting his name on title to the Property, but led Plaintiff to believe his name would be added on title to the Property at a later time. (Id.) Later, defendant Eagleton repeatedly assured plaintiff Wortz he had been named [as a beneficiary] in her trust to receive his share of the Property. (Id.)

On or about January 2020, defendant Eagleton encumbered the Property with a Deed of Trust in favor of American Advisors Group (“AAG”) for the approximate full value of the Property (“Encumbrance”), and thereafter concealed this transaction from Plaintiff. (FAC, ¶16.)

In January 2020, plaintiff Wortz went to the bank to pay the monthly payment toward the joint debt obligation as he had in the past for many years. (FAC, ¶17.) Plaintiff Wortz learned from the bank that the debt had recently been paid in full by defendant Eagleton. (Id.) Plaintiff Wortz inquired about the payoff which defendant Eagleton confirmed explaining she paid the loan in full because plaintiff Wortz had made late payments in the past. (Id.) This explanation did not make sense to plaintiff Wortz as he had not been late in making payments. (Id.) Defendant Eagleton did not mention the Encumbrance. (Id.)

Shortly after learning defendant Eagleton had paid off the joint debt obligation, plaintiff Wortz was at the Property and observed papers which appeared to be related to refinancing. (FAC, ¶18.) When plaintiff Wortz picked up the papers, defendant Eagleton became agitated, told plaintiff Wortz to put the papers down, and represented to plaintiff Wortz that the papers pertained to property in London, England. (Id.) Defendant Eagleton did not mention the Encumbrance. (Id.)

On 13 April 2020, plaintiff Wortz discovered the Deed of Trust in favor of AAG, a reverse mortgage purportedly encumbering the approximate entire value of the Property. (FAC, ¶19.)

On 11 June 2021[1], plaintiff Wortz filed a complaint against defendant Eagleton, individually and as trustee of the Trust asserting claims for:

1) Breach of Agreement

2) Breach of Fiduciary Duty

3) Common Count

4) Constructive/ Resulting Trust

5) Declaratory Relief

On 22 October 2021, defendant Eagleton filed a demurrer and motion to strike portions of plaintiff Wortz’s complaint.

On 2 November 2021, plaintiff Wortz filed the operative FAC which now asserts claims for:

1) Breach of Property Agreement

2) Breach of Partnership Agreement[2]

3) Breach of Fiduciary Duty

4) Common Count

5) Constructive/ Resulting Trust

6) Declaratory Relief

On 28 January 2022, defendant Eagleton filed the two motions now presently before the court: (1) a demurrer to plaintiff Wortz’s FAC; and (2) a motion to strike portions of plaintiff Wortz’s FAC.

II. Demurrers and Motions to Strike in General

A. Demurrers.

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.”)

B. Motions to Strike.

A court may strike out any irrelevant, false, or improper matter asserted in a pleading. (Code of Civil Procedure, § 436, subdivision (a).) A court may also strike out all or any part of a pleading not filed in conformity with the laws of the State of California. (Code of Civil Procedure, § 436, subdivision (b).) The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice. (Code of Civil Procedure, § 437, subdivision. (a).)

Irrelevant matter includes “immaterial allegations.” (Code of Civil Procedure, § 431.10, subdivision (c).) “An immaterial allegation in a pleading is any of the following: (1) An allegation that is not essential to the statement of a claim or defense; (2) An allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense; (3) A demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint.” (Code of Civil Procedure, § 431.10, subdivision (b).)

“As with demurrers, the grounds for a motion to strike must appear on the face of the pleading under attack, or from matter which the court may judicially notice.” (Weil & Brown, et al., California Practice Guide: Civil Procedure Before Trial (The Rutter Group 2021) ¶ 7:168, p. 7(l)-75 citing Code of Civil Procedure, § 437.) “Thus, for example, defendant cannot base a motion to strike the complaint on affidavits or declarations containing extrinsic evidence showing that the allegations are ‘false’ or ‘sham.’ Such challenges lie only if these defects appear on the face of the complaint, or from matters judicially noticeable.” (Id. at ¶ 7:169, pp. 7(l)-75 to 7(l)-76.)

“In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to the motion to strike as a whole, all parts in their context, and assume their truth.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) “In ruling on a motion to strike, courts do not read allegations in isolation.” (Ibid.)

III. Analysis.

A. Defendant Eagleton’s demurrer to plaintiff Wortz’s FAC is OVERRULED.

1. Statute of limitations.

“Where the complaint discloses on its face that the statute of limitations has run on the causes of action stated in the complaint, it fails to state facts sufficient to constitute a cause of action.” (ABF Capital Corp. v. Berglass (2005) 130 Cal.App.4th 825, 833.) However, “[t]he running of the statute must appear ‘clearly and affirmatively’ from the dates alleged. It is not sufficient that the complaint might be barred. If the dates establishing the running of the statute of limitations do not clearly appear in the complaint, there is no ground for general demurrer. The proper remedy ‘is to ascertain the factual basis of the contention through discovery and, if necessary, file a motion for summary judgment.’” (Roman v. County of Los Angeles (2000) 85 Cal.App.4th 316, 324 – 325; internal citations omitted.)

“In assessing whether plaintiff's claims against defendant are time-barred, two basic questions drive our analysis: (a) What statutes of limitations govern the plaintiff's claims? (b) When did the plaintiff's causes of action accrue?” (E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1316.) In demurring to plaintiff Wortz’s FAC, defendant Eagleton suggests that, at most, a four year statute of limitation applies. Defendant Eagleton focuses on the accrual date by arguing that each and every claim in plaintiff Wortz’s FAC is premised upon the allegation that defendant Eagleton “agreed that Plaintiff [Wortz] … would receive one-half interest in the Property.” (See FAC, ¶11.)

According to defendant Eagleton, all of the claims accrued when plaintiff Wortz knew or should have known that he was not provided a one-half interest in the Property. In making this argument, plaintiff Eagleton implicitly acknowledges accrual of a cause of action may be subject to the delayed discovery rule.[3] Plaintiff Eagleton herself explicitly acknowledges the following principle:

“When a plaintiff reasonably should have discovered facts for purposes of the accrual of a case of action or application of the delayed discovery rule is generally a question of fact, properly decided as a matter of law only if the evidence (or, in in this case, the allegations in the complaint and facts properly subject to judicial notice) can support only one reasonably conclusion.”

(Stella v. Asset Management Consultants, Inc. (2017) 8 Cal.App.5th 181, 193.)

Defendant Eagleton invites this court to reach the conclusion, as a matter of law, that plaintiff Wortz reasonably should have discovered the relevant facts (i.e., that defendant Eagleton did not provide plaintiff Wortz with a one-half interest in the Property) at some time in the last 40 years, but more than four years prior to the filing of the complaint on 11 June 2021). However, defendant Eagleton points to no allegations of the complaint or any judicially-noticed facts which would lead the court to this conclusion, instead suggesting plaintiff Wortz could have learned he was not made an owner of the Property by “checking the county recorder’s office, or any number of other [unspecified] documents to see whether he had the promised interest in the Property.”

To the contrary, the allegations of the FAC lead the court to a different conclusion. For instance, the FAC alleges “Plaintiff was initially led to believe that his name would be added to title at a later time. Later, Defendant Eagleton repeatedly assured Plaintiff he had been named in her trust to receive his share in the Property.” (FAC, ¶15.) “Beginning within the first two years of the making of the Agreement, and until on or about April 2020, Defendant Eagleton repeatedly assured Plaintiff that his interest in the Property was and would be protected.” (FAC, ¶15.) Since title to the Property was held by the trust, plaintiff Wortz would not be able to verify his ownership merely by “checking the county recorder’s office.” Nor is it clear what other unspecified documents Plaintiff had access to from which he could verify his ownership. In short, the running of the statute of limitations does not appear “clearly and affirmatively” from the FAC or any judicially-noticed matter.

Accordingly, defendant Eagleton’s demurrer to plaintiff Wortz’s FAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)], i.e., the claims are barred by the applicable statutes of limitation, is OVERRULED.

2. Statute of Frauds.

“Where the complaint seeks to enforce an agreement required to be in writing under the statute of frauds, but nonetheless alleges the agreement was oral, a general demurrer lies. The complaint on its face discloses a bar to recovery.” (Weil & Brown et al., CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2020) ¶7:58, p. 7(I)-34 citing Parker v. Solomon (1959) 171 Cal.App.2d 125, 136 and Rossberg v. Bank of America, N.A. (2013) 219 Cal.App.4th 1481, 1503.)

The statute of frauds requires any contract subject to its provisions to be memorialized in a writing subscribed by the party to be charged or by the party's agent. (§ 1624; Secrest v. Security National Mortgage Loan Trust 2002-2 (2008) 167 Cal.App.4th 544, 552 [84 Cal. Rptr. 3d 275].) An agreement for the sale of real property or an interest in real property comes within the statute of frauds.

(Rossberg v. Bank of America, N.A. (2013) 219 Cal.App.4th 1481, 1503.)

Defendant Eagleton contends that since the agreement here involves the transfer of an interest in real property, it falls within the statute of frauds. In opposition, plaintiff Wortz initially argues the statute of frauds does not apply here because the agreement here does not involve the “sale” of real property or an interest in real property. However, various decisions have interpreted this to include any type of conveyance or transfer of interest in real property, not merely a sale. “An agreement for the transfer of an interest or estate in real property must be in writing.” (Updeck v. Samuel (1954) 123 Cal.App.2d 264, 267.)

Nevertheless, plaintiff Wortz argues further that the agreement here is not for the transfer of property but a partnership agreement. “An oral agreement to create a partnership or joint venture is not subject to the statute of frauds. An oral agreement to form a partnership or joint venture is enforceable even though the practical effect of the agreement may be to transfer an interest in real property by the owner to the other partner.” (1 Miller & Starr, California Real Estate (3rd ed. 2003) Contracts, §1:70, pp. 222 – 223.)

One such example is where “the parties agree to purchase real property, but title is taken in the name of one joint venturer—the statute of frauds does not apply because the parties are in a confidential relationship and title is held by the one joint venturer as constructive trustee.” (Id. citing Koyer v. Willmon (1907) 150 Cal. 785, 786 – 788; Coward v. Clanton (1889) 79 Cal. 23, 26 – 27; Sadugor v. Holstein (1962) 199 Cal.App.2d 477, 480 – 481; Jaffe v. Heffner (1959) 173 Cal.App.2d 512, 516; Lasry v. Lederman (1957) 147 Cal.App.2d 529, 538; Fitzgerald v. Provines (1951) 102 Cal.App.2d 529, 538.)

“A joint venture resembles a partnership in that its members associate together as coowners of a business enterprise, agreeing to share profits and losses.” (9 Witkin, Summary of California Law (10th ed. 2005) Partnership, §9, p. 583 citing Stodd v. Goldberger (1977) 73 Cal.App.3d 827, 836.) “The existence of a partnership or joint venture is a question of fact that must be proved by the preponderance of the evidence. A joint venture requires joint participation in the management and control of the business. A mere receipt of benefits for a contribution of services or capital, or the sharing of profits from a sale, does not create a joint venture.” (Id. at pp. 226 – 227 citing Kaljian v. Menezes (1995) 36 Cal.App.4th 573, 586 – 587; emphasis added.)

Since the existence of a partnership or joint venture is a question of fact, the court cannot determine as a matter of law that the agreement here is subject to the statute of frauds. Whether the agreement is subject to the statute of fraud or not, plaintiff Wortz argues further that various exceptions to the statute of frauds also apply. One such exception is the doctrine of estoppel.

The doctrine of estoppel to assert the statute of frauds has been consistently applied by the courts of this state to prevent fraud that would result from refusal to enforce oral contracts in certain circumstances. Such fraud may inhere in the unconscionable injury that would result from denying enforcement of the contract after one party has been induced by the other seriously to change his position in reliance on the contract [citations omitted], or in the unjust enrichment that would result if a party who has received the benefits of the other's performance were allowed to rely upon the statute. [Citations omitted.] In many cases both elements are present. Thus not only may one party have so seriously changed his position in reliance upon, or in performance of, the contract that he would suffer an unconscionable injury if it were not enforced, but the other may have reaped the benefits of the contract so that he would be unjustly enriched if he could escape its obligations. [Citations omitted.]

(Monarco v. Lo Greco (1950) 35 Cal.2d 621, 623-624.)

Here, plaintiff Wortz has alleged facts which could support application of the doctrine of equitable estoppel. (See FAC, ¶¶12 – 14—allegations plaintiff Wortz paid defendant Eagleton’s debt ($65,000) to Feemster; paid property taxes; and paid the joint debt obligation.) Significantly, “Whether the doctrine of equitable estoppel should be applied in a given case is generally a question of fact.” (Byrne v. Laura (1997) 52 Cal.App.4th 1054, 1068.) As such, the court cannot determine as a matter of law whether the statute of frauds would operate as a bar.

For the above stated reasons, defendant Eagleton’s demurrer to plaintiff Wortz’s FAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)], i.e., the claims are barred by the statute of frauds, is OVERRULED.

3. Fiduciary Duty – Lack of Confidential Relationship.

“The elements of a cause of action for breach of fiduciary duty are: (1) existence of fiduciary duty; (2) the breach of that duty; and (3) damage proximately caused by that breach.” (Mosier v. Southern California Physicians Insurance Exchange (1998) 63 Cal.App.4th 1022, 1044; see also Shopoff & Cavallo LLP v. Hyon (2008) 167 Cal.App.4th 1489, 1509—“To establish a cause of action for breach of fiduciary duty, a plaintiff must demonstrate the existence of a fiduciary relationship, breach of that duty and damages.”)

“Whether a fiduciary duty exists is generally a question of law.” (Marzec v. California Public Employees Retirement System (2015) 236 Cal.App.4th 889, 915.) “‘[B]efore a person can be charged with a fiduciary obligation, he must either knowingly undertake to act on behalf and for the benefit of another, or must enter into a relationship which imposes that undertaking as a matter of law.’ [Citation.]” (City of Hope National Medical Center v. Genentech, Inc. (2008) 43 Cal.4th 375, 386.)

In demurring to plaintiff Wortz’s breach of fiduciary duty cause of action, defendant Eagleton selectively quotes Maglica v. Maglica (1998) 66 Cal.App.4th 442, 448 (Maglica) for the proposition that “without entrustment of property, or an oral agreement to purchase property together, there can be no fiduciary relationship no matter how ‘confidential’ a relationship between an unmarried, cohabiting couple.” Presumably, defendant Eagleton’s citation to Maglica is aimed at plaintiff Wortz’s allegation at paragraph 8 which states, “On and after 1975 and continuing until on or about April 2020, Plaintiff William Wortz and Defendant Eagleton had a confidential relationship with each other of trust and confidence in the integrity and fidelity of each other.”

More accurately, the Maglica court began with the principle that “fiduciary duties are either imposed by law or are undertaken by agreement.” (Maglica, supra, 66 Cal.App.4th at p. 447.) Having found neither, the court held there could be no basis for a breach of fiduciary duty. Here, however, plaintiff Wortz has alleged an agreement between the parties. In opposition, plaintiff Wortz characterizes the agreement as a partnership. “The fiduciary duties a partner owes to the partnership and the other partners are the duty of loyalty and the duty of care.” (Corp. Code, §16404.) As discussed above, the existence of a partnership is a question of fact.

Accordingly, defendant Eagleton’s demurrer to the [third] cause of action of plaintiff Wortz’s FAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for breach of fiduciary duty is OVERRULED.

B. Defendant Eagleton’s motion to strike portions of plaintiff Wortz’s FAC is DENIED.

Defendant Eagleton moves to strike plaintiff Wortz’s claim for punitive damages. “In California the award of damages by way of example or punishment is controlled by Civil Code section 3294, which authorizes that kind of award against a tortfeasor who has been guilty of ‘oppression, fraud or malice, express or implied.’” (G.D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 26.) “Notwithstanding relaxed pleading criteria, certain tortious injuries demand firm allegations. Vague, conclusory allegations of fraud or falsity may not be rescued by the rule of liberal construction.

When the plaintiff alleges an intentional wrong, a prayer for exemplary damage may be supported by pleading that the wrong was committed willfully or with a design to injure. When nondeliberate injury is charged, allegations that the defendant’s conduct was wrongful, willful, wanton, reckless or unlawful do not support a claim for exemplary damages; such allegations do not charge malice.” (Id. at p. 29; internal citations omitted.) Defendant Eagleton contends plaintiff Wortz has not sufficiently alleged malice, oppression, or fraud to support an award of punitive damages.

In opposition, plaintiff Wortz contends the breach of a fiduciary duty is tantamount to constructive fraud. Constructive fraud is defined by Civil Code section 1573 to consist of, “any breach of duty which, without an actually fraudulent intent, gains an advantage to the person in fault, or anyone claiming under him, by misleading another to his prejudice, or to the prejudice of anyone claiming under him; or, any such act or omission as the law specially declares to be fraudulent, without respect to actual fraud.”

“In addition to the traditional liability for intentional or actual fraud, a fiduciary is liable to his principal for constructive fraud even though his conduct is not actually fraudulent. Constructive fraud is a unique species of fraud applicable only to a fiduciary or confidential relationship.” (Salahutdin v. Valley of California, Inc. (1994) 24 Cal.App.4th 555, 562.) “[A]s a general principle constructive fraud comprises any act, omission or concealment involving a breach of legal or equitable duty, trust or confidence which results in damage to another even though the conduct is not otherwise fraudulent. Most acts by an agent in breach of his fiduciary duties constitute constructive fraud. The failure of the fiduciary to disclose a material fact to his principal which might affect the fiduciary’s motives or the principal’s decision, which is known (or should be known) to the fiduciary, may constitute constructive fraud. Also, a careless misstatement may constitute constructive fraud even though there is no fraudulent intent.” (Ibid.) A “court could properly award punitive damages for the constructive fraud.” (Stokes v. Henson (1990) 217 Cal.App.3d 187, 198.)

Since plaintiff Wortz has stated a claim for breach of fiduciary duty, it may also serve as the basis for constructive fraud for which a court could properly award punitive damages. Accordingly, defendant Eagleton’s motion to strike portions of plaintiff Wortz’s FAC is DENIED.

IV. Tentative Ruling.

The tentative ruling was duly posted.

V. Case Management.

The motion of defendant to compel plaintiff to compel code compliant responses to discovery requests is currently set for 17 May 2022 to be heard by Judge Arand.

The Court has written its order following the hearing of the discovery motion calendared for 15 March 2022 and can be found on Line #20 on today’s posted Tentative Rulings.

The parties should have, by now, the pleading settled and an outline for discovery. The Court will set this matter for trial setting on 20 September 2022 at 11:00 AM in this Department. The parties should commence discussions about alternate dispute resolution as well as agreeing on a trial date within 4 to 6 months after the date of the TSC.

VI. Order.

Defendant Eagleton’s demurrer to plaintiff Wortz’s FAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)], i.e., the claims are barred by the applicable statutes of limitation, is OVERRULED.

Defendant Eagleton’s demurrer to plaintiff Wortz’s FAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)], i.e., the claims are barred by the statute of frauds, is OVERRULED.

Defendant Eagleton’s demurrer to the [third] cause of action of plaintiff Wortz’s FAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code Civ. Proc., §430.10, subd. (e)] for breach of fiduciary duty is OVERRULED.

Defendant Eagleton’s motion to strike portions of plaintiff Wortz’s FAC is DENIED.

Defendant Eagleton shall file an answer to plaintiff Wortz’s FAC within 10 days.

|___________________________ |______________________________________________ |

|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.: |20CV364178 |Sharon Richmond v. City of Sunnyvale |

|DATE: 26 April 2022 |TIME: 9:00 am |LINE NUMBER: 5 |

|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 25 April 2022. And Please |

|specify the issue to be contested when calling the Court and Counsel. |

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|Order on Motion Of City of Sunnyvale |

|for Summary Judgment to the Complaint. |

I. Statement of Facts.

This is a slip and fall case.

On 12 April 2019, plaintiff Sharon Richmond (“Plaintiff”) was walking on the sidewalk near 415 N. Mathilda Avenue, in the City of Sunnyvale (“City”) when she fell on a raised sidewalk causing her to suffer severe injuries. (Complaint at Prem. L-1.)

On 25 February 2020, Plaintiff filed the operative judicial council form complaint against the City alleging a single cause of action for premises liability. [4]

On 27 March 2020, the City filed its judicial council form answer generally denying allegations of the complaint and alleging various affirmative defenses.

On 3 December 2021, the City filed the motion presently before the court, a motion for summary judgment to the complaint. Plaintiff filed written opposition. The City filed reply papers and evidentiary objections.

A trial setting conference is also set for 26 April 2022.

II. Motions for Summary Judgment in General.

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.)

If the moving party makes the necessary initial showing, the burden of production shifts to the opposing party 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 party 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.)

III. Analysis.

A. City’s Evidentiary Objections.

In reply, the City filed objections to evidence submitted in Plaintiff’s opposition. The Court declines to rule on the objections which are not material to the outcome of the motion for reasons stated below. “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 of Civil Procedure, § 437c, subdivision (q).)

B. Premises Liability.

The City seeks an order for summary judgment on the following grounds: (1) the City did not create the alleged condition on the raised sidewalk; and (2) the City did not have actual or constructive notice of the alleged dangerous condition.

“In order to prove negligence, plaintiff must establish duty, breach of that duty, causation, and damages.” (WFG National Title Ins. Co. v. Wells Fargo Bank, N.A. (2020) 51 Cal.App.5th 881, 893.)    

Premises liability is a form of negligence. (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619.) To prevail on a claim for premises liability, a plaintiff must prove that defendants owned, leased, occupied, or controlled the property, defendants were negligent in the use or maintenance of the property, plaintiff was harmed, and defendants’ negligence was a substantial factor in causing plaintiff’s harm.  (See CACI 1000.)  

C. Liability for Dangerous Condition on Public Property.

Under the Government Claims Act (the “Act”), a public entity is not liable for an injury, except as otherwise provided by statute. (Hampton v. County of San Diego (2015) 62 Cal.4th 340, 347 (Hampton); see Guzman v. County of Monterey (2009) 46 Cal.4th 887, 897 [noting “there is no common law tort liability for public entities in California”]; see also Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1179 [“the intent of the Tort Claims Act is to confine potential government liability, not expand it”].)

The Act declares a general rule of immunity (Government Code, § 815) and then set out exceptions to that rule. (Cole v. Town of Los Gatos (2012) 205 Cal.App.4th 749, 757 (Cole).) Plaintiff invokes the exception for a dangerous condition on public property. (Complaint at Prem. L-4.)

The Act “provides for direct liability on the part of public entities for injuries caused by maintaining dangerous conditions on their property when the condition ‘created a reasonably foreseeable risk of the kind of injury which was incurred’ and either an employee’s negligence or wrongful act or omission caused the dangerous condition or the entity was on ‘actual or constructive notice’ of the condition in time to have taken preventative measures. [Citations.]” (Hampton, supra, 62 Cal.4th at pp. 347-348.)

As set forth in Government Code section 835, the cause of action for dangerous condition of public property consists of the following elements: “(1) a dangerous condition of public property; (2) a foreseeable risk, arising from the dangerous condition, of the kind of injury the plaintiff suffered; (3) actionable conduct in connection with the condition, i.e., either negligence on the part of a public employee in creating it, or failure by the entity to correct it after notice of its existence and dangerousness; (4) a causal relationship between the dangerous condition and the plaintiff’s injuries; and (5) compensable damage sustained by the plaintiff.” (Cole, supra, 205 Cal.App.4th at p. 758.)

“In order to recover under Government Code section 835, it is not necessary for plaintiff to prove a negligent act and notice; either negligence or notice will suffice.” (Curtis v. State of California ex rel. Dept. of Transportation (1982) 128 Cal.App.3d 668, 693 (Curtis).)

D. Creation of Dangerous Condition.

A “dangerous condition” is defined as “a condition of property that creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.” (Government Code, § 830, subdivision (a).) As further explained in Government Code section 830.2, “[a] condition is not a dangerous condition within the meaning of this chapter if the trial or appellate court, viewing the evidence most favorably to the plaintiff, determines as a matter of law that the risk created by the condition was of such a minor, trivial or insignificant nature in view of the surrounding circumstances that no reasonable person would conclude that the condition created a substantial risk of injury when such property or adjacent property was used with due care in a manner in which it was reasonably foreseeable that it would be used.”

A “dangerous condition” is one that creates a substantial risk of injury. (Government Code, § 830, subdivision (a).) This requirement “means that a condition is dangerous when the risk that an injury will result from the condition is substantial; a condition that creates only a remote possibility of injury is not dangerous even if the extent of injury that may occur is substantial.” (Cordova v. City of Los Angeles (2015) 61 Cal.4th 1099, 1110.) In other words, the substantiality of the risk addresses the probability that an injury will occur, not the extent of any such injury. (Fredette v. City of Long Beach (1986) 187 Cal.App.3d 122, 130, fn. 5.)

Here, the City argues it did not create the dangerous condition on the sidewalk. In support, the City submits a declaration from Jim Burch (“Burch”), a Superintendent of Public Works Operations for the City who manages and oversees the City’s sidewalks and curb maintenance projects. (See Burch Decl. at ¶¶ 2-3.) On this issue, Burch testifies that (1) the sidewalk condition was not created by the City or its employees and (2) the sidewalk was most likely raised by tree roots. (Id. at ¶¶ 7-8.)

In opposition, Plaintiff, citing Burch’s deposition testimony, asserts the City may have played a role in causing tree roots to interfere with the concrete. (See OPP at p. 3:26-4:2; Plaintiff’s Additional Fact No. 30.) With this argument, Plaintiff appears to suggest the City was responsible for tree roots which may have impacted the sidewalk and ultimately caused her accident. But, there are no allegations or supporting evidence demonstrating that Plaintiff’s accident was the result of tree roots affecting the sidewalk.

Nor is it clear from Plaintiff’s evidence whether the tree roots were the responsibility of the City or the adjacent landowner. Instead, Plaintiff’s belief in this instance amounts to speculation which cannot raise a disputed material fact on summary judgment. (See McHenry v. Asylum Entertainment Delaware, LLC (2020) 46 Cal.App.5th 469, 479 [“Because speculation is not evidence, speculation cannot create a triable issue of material fact.”]; see also Pipitone v. Williams (2016) 244 Cal.App.4th 1437, 1453 [“A triable issue of fact can only be created by a conflict of evidence, not speculation or conjecture.”].)

Nevertheless, this argument is not enough for summary judgment as the City must still demonstrate that it did not have actual or constructive notice of the dangerous condition on the sidewalk. (Curtis, supra, 128 Cal.App.3d at p. 693.)

E. Actual or Constructive Notice of Dangerous Condition.

Before the City can be subjected to liability, it must be shown that its employees had either actual or constructive notice of the dangerous condition in sufficient time to effectuate a remedy. (State v. Super. Ct. of San Mateo County (1968) 263 Cal.App.2d 396, 399 (State).) To establish “actual notice,” there must be some evidence that the City had knowledge of the particular dangerous condition in question. (Ibid.)

In support, the City contends it did not have actual or constructive notice of the dangerous condition because: (1) the City was unaware of the alleged condition of the sidewalk involved in Plaintiff’s trip and fall prior to her accident on 12 April 2019; and (2) the City has no records of prior claims or notice of lawsuits regarding a dangerous condition of the sidewalk at the location where Plaintiff fell down. (See City’s Separate Statement of Undisputed Facts at Nos. 15-16.)

Although this evidence is sufficient to meet the City’s initial burden with respect to actual notice, it does not demonstrate that the City lacked constructive notice of the alleged condition of the sidewalk. Constructive notice is where the dangerous condition was present for a sufficient period of time and was of such an obvious nature that the owner should have discovered its existence. (See Government Code, § 835.2 [“A public entity had constructive notice of a dangerous condition within the meaning of subdivision (b) of Section 835 only if the plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character.”]; see also Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1206-1207.) “The primary and indispensable element of constructive notice is a showing that the obvious condition existed a sufficient period of time before the accident.” (State, supra, 263 Cal.App.2d at p. 400.) The City’s evidence does not address: how long the alleged dangerous condition was present prior to Plaintiff’s accident or whether the condition was of such an obvious nature that is should have been discovered in the exercise of due care. Therefore, the City fails to demonstrate that it lacked constructive notice of the condition of the sidewalk.[5]  

As the City fails to meet its initial burden on the motion, the court does not need to consider whether Plaintiff raises any triable issue of material fact. (See Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840 [“A responding plaintiff has no evidentiary burden unless the moving defendant has first met its initial burden.”].)  

Accordingly, the motion for summary judgment to the complaint is DENIED.

IV. Tentative Ruling.

The tentative ruling was duly posted.

V. Case Management.

The matter is set for a Trial Setting Conference today at 11:00 AM. The parties should meet and confer and agree upon a trial date within 6 to 8 months of today’s date.

VI. Conclusion and Order.

The motion for summary judgment is DENIED.

|___________________________ |______________________________________________ |

|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) | |

|department20@ | |

| |(For Clerk's Use Only) |

|CASE NO.: |21CV384206 |William Wortz v. Julie Eagleton, et al. |

|DATE: 15 March 2022 |TIME: 9:00 am |LINE NUMBER: 7 |

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|Order on Submitted Matter. |

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|Orders on Plaintiff’s Motion to Compel Defendant |

|To Provide Further Responses to |

|Form Interrogatories and Request for Production of Documents, (Sets One) |

|(erroneously entitled “Motion to Compel Discovery”). |

I. Statement of Facts.

Defendant Julie Eagleton (“Eagleton”) was formerly married to Jerry Feemster (“Feemster”). (First Amended Complaint (“FAC”), ¶¶2 and 9.) Defendant Eagleton’s marriage to Feemster was dissolved and subject to an Interlocutory Judgment of Dissolution (“Judgment”) entered on 23 August 1977. (FAC, ¶9.) Pursuant to the Judgment, real property located at 10395 Rivercrest Court in Cupertino (“Property”) was awarded to defendant Eagleton. (Id.)

However, also pursuant to the Judgment, defendant Eagleton was to provide a promissory note to Feemster and pay sums and interest to Feemster as well as assume indebtedness on the Property. (Id.) Pursuant to the Judgment, Feemster deeded his interest in the Property to defendant Eagleton on 20 September 1977. (FAC, ¶10.) Title to the Property [at present] is in the name of defendant Eagleton, as trustee of the Eagleton Family Trust (“Trust”). (FAC, ¶5.)

Defendant Eagleton is [currently] in possession of the Property. (FAC, ¶6.)

From 1975 through approximately 1992, plaintiff William Wortz (“Wortz”) and defendant Eagleton cohabitated together at the Property, remained in joint possession thereof, and maintained an intimate relationship. (FAC, ¶8.) During that period, defendant Eagleton was employed in retail sales, largely working part time. (Id.) During that period, plaintiff Wortz and defendant Eagleton pooled their resources, with plaintiff Wortz largely providing the support. (Id.) From 1975 through April 2020, plaintiff Wortz and defendant Eagleton had a relationship of trust and confidence in the integrity and fidelity of each other. (Id.)

In or about 1982 to 1984, plaintiff Wortz and Eagleton entered into an oral agreement while cohabitating together at the Property. (FAC, ¶11.) Pursuant to that agreement, plaintiff Wortz would pay off defendant Eagleton’s monetary obligations to Feemster and, in exchange, defendant Eagleton agreed plaintiff Wortz would receive Feemster’s former one-half interest in the Property, together will all the benefits of ownership of the Property. (Id.) Plaintiff Wortz and defendant Eagleton agreed they would split the property tax obligations and insurance obligations; and plaintiff Wortz would maintain the Property. (Id.) Subsequently, plaintiff Wortz and defendant Eagleton agreed plaintiff Wortz would service a joint debt obligation plaintiff Wortz believed was secured by the Property. (Id.)

Pursuant to and in furtherance of the agreement, plaintiff Wortz paid the sum of $65,000 to Feemster in or about 1982 to 1984. (FAC, ¶12.) Since then, plaintiff Wortz regularly paid one-half of the property taxes on the Property by alternating payments, paid one half of the insurance obligations on the Property through 2019, and assumed the principal role in maintaining the Property through approximately March 2020, although regularly conferring with defendant Eagleton about necessary maintenance. (FAC, ¶13.) Plaintiff Wortz last paid the sum of $1,166.66 on 10 April 2018 toward property taxes. (Id.)

Plaintiff Wortz also paid a joint debt obligation through December 2019. (FAC, ¶14.) The joint debt obligation was first incurred in or about 1991. (Id.) Plaintiff Wortz believed the joint debt obligation was secured by the Property. (Id.) Plaintiff Wortz and defendant Eagleton incurred the debt obligation in part to jointly invest in a separate property and in part to pay defendant Eagleton’s debt. (Id.) Plaintiff Wortz and defendant Eagleton referred to themselves as partners in making the joint investment in the separate property in 1991. (Id.)

Within the first two years of making the agreement and until in or about April 2020, defendant Eagleton repeatedly assured plaintiff Wortz that his interest in the Property would be protected. (FAC, ¶15.) Defendant Eagleton initially told plaintiff Wortz she was not comfortable putting his name on title to the Property, but led Plaintiff to believe his name would be added on title to the Property at a later time. (Id.) Later, defendant Eagleton repeatedly assured plaintiff Wortz he had been named [as a beneficiary] in her trust to receive his share of the Property. (Id.)

On or about January 2020, defendant Eagleton encumbered the Property with a Deed of Trust in favor of American Advisors Group (“AAG”) for the approximate full value of the Property (“Encumbrance”), and thereafter concealed this transaction from Plaintiff. (FAC, ¶16.)

In January 2020, plaintiff Wortz went to the bank to pay the monthly payment toward the joint debt obligation as he had in the past for many years. (FAC, ¶17.) Plaintiff Wortz learned from the bank that the debt had recently been paid in full by defendant Eagleton. (Id.) Plaintiff Wortz inquired about the payoff which defendant Eagleton confirmed explaining she paid the loan in full because plaintiff Wortz had made late payments in the past. (Id.) This explanation did not make sense to plaintiff Wortz as he had not been late in making payments. (Id.) Defendant Eagleton did not mention the Encumbrance. (Id.)

Shortly after learning defendant Eagleton had paid off the joint debt obligation, plaintiff Wortz was at the Property and observed papers which appeared to be related to refinancing. (FAC, ¶18.) When plaintiff Wortz picked up the papers, defendant Eagleton became agitated, told plaintiff Wortz to put the papers down, and represented to plaintiff Wortz that the papers pertained to property in London, England. (Id.) Defendant Eagleton did not mention the Encumbrance. (Id.)

On 13 April 2020, plaintiff Wortz discovered the Deed of Trust in favor of AAG, a reverse mortgage purportedly encumbering the approximate entire value of the Property. (FAC, ¶19.)

On 11 June 2021[6], plaintiff Wortz filed a complaint against defendant Eagleton, individually and as trustee of the Trust asserting claims for:

1) Breach of Agreement

2) Breach of Fiduciary Duty

3) Common Count

4) Constructive/ Resulting Trust

5) Declaratory Relief

On 22 October 2021, defendant Eagleton filed a demurrer and motion to strike portions of plaintiff Wortz’s complaint.

On 2 November 2021, plaintiff Wortz filed the operative FAC which now asserts claims for:

1) Breach of Property Agreement

2) Breach of Partnership Agreement[7]

3) Breach of Fiduciary Duty

4) Common Count

5) Constructive/ Resulting Trust

6) Declaratory Relief

On 28 January 2022, defendant Eagleton filed the two motions now presently before the court: (1) a demurrer to plaintiff Wortz’s FAC; and (2) a motion to strike portions of plaintiff Wortz’s FAC.

II. Discovery Dispute.

On 27 July 2021, Plaintiff served Form Interrogations, Set One and a Demand for Production, Set One.

After reasonable extensions of time within which to respond were requested and which were granted, on 15 October 2021, by email, Plaintiff received Defendant Eagleton's Responses.

When this Court rejects any type of motion, it tries to assemble a proper analogy of facts asserted by all parties. Doing so in this case has been difficult.

Not satisfied with the responses, on 25 October 2021, plaintiff sent what is represented to be a “detailed meet and confer letter” concerning objections and responses that counsel deemed to be noncompliant/deficient as well as a statement concerning the deposition of defendant. Plaintiff states that “[no] response was received to either effort.” (Plaintiff’s Memorandum of Points and Authorities, page 5, lines 8-15.) In general, plaintiff claims that defendant made objections and then provide responses subject to the objections.

On the other hand, the defense points (and that this Court believes) that the “meet and confer” was virtually nonexistent. Defense counsel points out that he was in several trials, was ill with the Covid virus, no deadline within which to further respond was provided, and that substantive responses were provided.

As this Court pointed out at the hearing, the “meet and confer” was more akin to a drive-by shooting rather than an attempt to work out the otherwise-simple discovery requests in a reasonable manner.

The purpose of the “Meet & Confer” requirement is to force lawyers to reexamine their positions, and to narrow their discovery disputes to the irreducible minimum, before calling upon the court to resolve the matter. It also enables parties and counsel to avoid sanctions that are likely to be imposed if the matter comes before the court. (Stewart v. Colonial Western Agency, Inc. (2001) 87 Cal.App.4th 1006, 1016-1017.)

Failing to engage in a proper “Meet & Confer” session is a misuse of the discovery process. (Code of Civil Procedure, § 2023.010(i).)

Failing to make a "reasonable and good faith attempt" to resolve the issues informally before a motion to compel is filed constitutes a "misuse of the discovery process." Monetary sanctions can be imposed against whichever party is guilty of such conduct even if that party wins the discovery motion in question. (Code of Civil Procedure, § 2023.020; Obregón v. Superior Court (Cimm's, Inc.) (1998) 67 Cal.App.4th 424, 434-435.)

In some cases, monetary sanctions may be imposed against both counsel at the same time. (See Volkswagenwerk Aktiengesellschaft v Superior Court (Golsch) (1981) 122 Cal.App.3d 326, 331-334[8].)

As to how to rule on the merits of the motion when the judge finds that “Meet & Confer” efforts were unsatisfactory, the courts have traditionally taken two approaches.

Some courts automatically deny discovery, reasoning that any other order would be "in excess of the trial court's jurisdiction." (Townsend v. Superior Court (EMC Mortg. Co.) (1998) 61 Cal.App.4th 1431, 1439.)

Other courts are more flexible, and may specify additional efforts at informal resolution before turning to the merits of the discovery dispute, depending on the circumstances of the case. (Obregón v. Superior Court (Cimm's, Inc.) (1998) 67 Cal.App.4th 424, 434-435.)

This Court will adopt a third method.

The current motion of plaintiff to compel defendant to produce further discovery responses is DENIED for failure to properly meet and confer concerning the merits of the instant motion.

The foregoing order is WITHOUT PREJUDICE to this Court hearing the matter in An Informal Discovery Conference on the afternoon of Thursday, 28 April 2022 at 1:30 PM. At that time the Court will conduct discussions with counsel on this motion, the discovery motions currently set for 17 May 2022 at 9:00 AM, as well as the discovery referenced in ¶ 7 of defense counsel’s declaration in opposition to plaintiff’s motion to compel deposition, filed on 13 April 2022.

Any request for monetary sanctions is DENIED.

|___________________________ |______________________________________________ |

|DATED: |HON. SOCRATES PETER MANOUKIAN |

| |Judge of the Superior Court |

| |County of Santa Clara |

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[1] 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).)

[2] The FAC identifies both Breach of Partnership Agreement and Breach of Fiduciary Duty as the Second Cause of Action resulting in a mis-numbering of the causes of action.

[3] “With respect to torts, generally speaking, a claim accrues and the statute of limitations begins to run upon the occurrence of the last event essential to the cause of action, even if the plaintiff is unaware that a cause of action exists. The infliction of actual and appreciable harm will commence the limitations period. However, the discovery rule postpones commencement of the limitation period until the plaintiff discovers or should have discovered the facts essential to his cause of action. Under this rule, possession of ‘presumptive’ as well as ‘actual’ knowledge will commence the running of the statute. A plaintiff is charged with ‘presumptive’ knowledge so as to commence the running of the statute once he or she has notice or information of circumstances to put a reasonable person on inquiry, or has the opportunity to obtain knowledge from sources open to his investigation.” (Shamsian v. Atlantic Richfield Co. (2003) 107 Cal.App.4th 967, 979 – 980; internal citations and punctuation omitted.)

[4] 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. (California Rules of Court, Rule 3.714(b)(1)(C) and (b)(2)(C).)

[5] The court notes that in Plaintiff’s judicial council form complaint, she checked the box for “Dangerous Condition of Public Property” under the premises liability cause of action, but failed to check either or both boxes that immediately follow within that section for either (1) the defendant having actual or constructive notice of the dangerous condition in sufficient time prior to the injury to have corrected it, or (2) that the condition was created by employees of the defendant. Thus, it is not entirely clear what the basis of Plaintiff’s dangerous condition of public property count is predicated on. But, Plaintiff’s failure to completely fill out this portion of her complaint is of no import for reasons stated above.

[6] 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).)

[7] The FAC identifies both Breach of Partnership Agreement and Breach of Fiduciary Duty as the Second Cause of Action resulting in a mis-numbering of the causes of action.

[8] Because of personal dislike for each other, counsel failed to make any real effort to negotiate the disputed issues. The Court could have refused to rule on the motion to compel because of moving party's counsel's failure to "meet and confer." But in order to resolve the matter, it heard the motion, found both lawyers to have violated the requirement, and ordered each to pay $150.00 out of his own pocket to the other lawyer's client.

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