Superior Court, State of California



DATE: Thursday, 06 October 2022

TIME: 9:00 A.M.

Please note that for the indefinite future, all hearings will be conducted remotely as the Old Courthouse will be closed. This Department prefers that litigants use Zoom for Law and Motion and for Case Management Calendars. Please use the Zoom link below.

“A person's name is to him or her the sweetest and most important sound in any language.”—Dale Carnegie. 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.” Please inform the Court how you, or if your client is with you, you and your client 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 might also try but that site mispronounces my name.

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.

APPEARANCES.

Whether appearing in person or on a virtual platform, the usual custom and practices of decorum and attire apply. See Jensen v Superior Court (San Diego) 154 Cal.App.3d 533.

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.

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.”

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 so that only one reporter appears and serves as the official reporter for that 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 |21CV388723 |Noor Bux v. Padma Patibandla. |Order of Examination of Defendant Padma Patibandla. |

| | |Assignee: Guadalupe C. Chipana |The file contains appropriate proofs of service. |

| | | |Unless the parties agree otherwise, both parties are to appear in |

| | | |Department 20 at 9:00 AM via the Zoom virtual platform. The |

| | | |appropriate oath will be administered by the Court and the parties may|

| | | |conduct the examination off-line and report back to the Court. The |

| | | |parties may meet and confer on how to conduct the examination |

| | | |remotely. |

| | | |NO FORMAL TENTATIVE RULING. |

|LINE 2 |20CV373364 |Henry Om’mani; Matimba Shiyanga v. Benjamin Cacao, et |The Cacao Defendants’ demurrer to the first and second causes of |

| | |al. |action in Plaintiffs’ FAC on the ground that the pleading does not |

| | | |state facts sufficient to constitute a cause of action [Code of Civil |

| | | |Procedure, § 430.10, subd. (e)] for negligence and negligent |

| | | |infliction of emotional distress, respectively, is SUSTAINED WITHOUT |

| | | |LEAVE TO AMEND. |

| | | |The Cacao Defendants’ demurrer to the fourth cause of action in |

| | | |Plaintiffs’ FAC on the ground that the pleading does not state facts |

| | | |sufficient to constitute a cause of action [Code of Civil Procedure |

| | | |430.10, subd. (e)] for breach of contract is SUSTAINED WITHOUT LEAVE |

| | | |TO AMEND. |

| | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 3 |21CV381798 |Jamie Canales et al. v. Ashley Oliver, et al. |Defendant of Defendant Ashley Oliver to the fourth cause of action in |

| |consolidated with | |Plaintiff’s first amended complaint. |

| |21CV387725 | |Defendant Ashley Oliver’s demurrer to the fourth cause of action in |

| | | |Plaintiff’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 punitive damages is SUSTAINED with 10 days’ leave to |

| | | |amend. |

| | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 4 |21CV390848 |Kathleen O’Connor; Jerome O’Connor v. Generations |Demurrer of Defendants GHC of Los Gatos, LLC d.b.a. Plum Tree Care |

| | |Healthcare; GHC of Los Gatos, LLC d.b.a. Plum Tree |Center (Erroneously Sued As Separate Entities) and Life Generations |

| | |Care Center; Good Samaritan Hospital, LP d.b.a. Good |Healthcare LLC To Plaintiff’s First Amended Complaint. |

| | |Samaritan Hospital; Life Generations Healthcare LLC; |In the interests of judicial and clerical economy, the hearing on this|

| | |Plum Tree Care Center s.d.a. Separate entities from |matter and all related matters currently set on 11 October 2022 will |

| | |“GHC of Los Gatos”; Samaritan LLC. |be RESET to 25 October 2022 at 9:00 AM in Department 20. |

|LINE 5 |19CV360464 |My Nguyen v. First Class Charter; Ali Tajalli. |Motion of Defendants First Class Charter and Ali Tajalli To Compel |

| | | |Plaintiff to Respond to Special Interrogatories and Request for |

| | | |Monetary Sanctions. |

| | | |Plaintiff did not oppose the motion. |

| | | |The motion is GRANTED. |

| | | |Moving Party makes a code-compliant request for monetary sanctions. |

| | | |Defense counsel did not declare an hourly rate but simple math |

| | | |concludes that the client is billed at $215.00 an hour. This Court |

| | | |will allow for three hours of time for a total of $645.00 for this |

| | | |motion which was not opposed. Defendant did not request the $60.00 |

| | | |filing fee so this Court will decline to award that sum. |

| | | |NO FORMAL TENTATIVE RULING. |

|LINE 6 |21CV389780 |Julie Prince v. Shannon Bruga. |Motion of Defendant to Compel Plaintiff to Provide Discovery |

| | | |Responses, for an Order Deeming Requests for Admissions to Be Deemed |

| | | |Admitted, and Request for Monetary Sanctions. |

| | | |At the hearing on 13 September 2022, this Court ordered that code |

| | | |compliant responses were due by 16 September 2022. |

| | | |NO FORMAL TENTATIVE RULING. The parties are invited to appear on the |

| | | |Zoom virtual platform and argue the matter on the merits. They may |

| | | |also use the Tentative Ruling Protocol to advise the Court if they |

| | | |wish to submit on the papers. |

|LINE 7 |21CV389780 |Julie Prince v. Shannon Bruga. |Motion of Plaintiff to Compel Defendants to Provide Further Responses |

| | | |to Form Interrogatories, Set One to Inspection Demand, Set One, and |

| | | |for Monetary Sanctions. |

| | | |At the hearing on 13 September 2022, this Court ordered that code |

| | | |compliant responses were due by 16 September 2022. |

| | | |NO FORMAL TENTATIVE RULING. The parties are invited to appear on the |

| | | |Zoom virtual platform and argue the matter on the merits. They may |

| | | |also use the Tentative Ruling Protocol to advise the Court if they |

| | | |wish to submit on the papers. |

|LINE 8 |21CV391687 |Oswald Campesato v. JiaHua Huang; Jane Wang. |Motion of Plaintiff/Cross-Defendant to Compel |

| | | |Defendant/Cross-Complainant Jane Wang to Provide Responses to Demand |

| | | |for Production of Documents and to Deem Admitted Certain Requests for |

| | | |Admissions. |

| | | |Defendant JiaHua Huang was defaulted on 23 February 2022. |

| | | |Ms. Huang did not oppose the motion. |

| | | |The motion is GRANTED as follows: its first set of requests for |

| | | |admission served on 10 May 2022 are deemed ADMITTED. Jane Wang is |

| | | |ordered to provide a complete response, without objections, to |

| | | |plaintiff’s first set of requests for production of documents. |

| | | |Code-compliant responses are due within 20 days of the filing and |

| | | |service of this Order. |

| | | |Counsel for Mr. Campesato makes a request for monetary sanctions. The |

| | | |request is code compliant and is GRANTED as follows: plaintiff is |

| | | |entitled to 5.5 hours of time at $250 an hour and $60 for the filing |

| | | |fee for this motion for a total of $1,435.00. Said sum is due counsel |

| | | |for plaintiff and payable by Ms. Wang within 20 days of the filing and|

| | | |service of this Order. |

| | | |NO FORMAL TENTATIVE RULING. |

|LINE 9 |18CV323463 |Nancy La Scola v. Theodore La Scola. |Motion of Plaintiff Nancy La Scala to Reconsider and Modify Trial |

| |consolidated with | |Court Order after 23 June 2022 Hearing. |

| |16 FL175211 | |Good cause appearing, IT IS ORDERED that the hearing on this motion is|

| | | |to be CONTINUED to 15 November 2022 at 9:00 AM in this Department to |

| | | |be heard along with the cross-motion of Defendant Theodore La Scola to|

| | | |appoint an Elisor and for an Order to Show Cause In Re Why Sanctions |

| | | |Should Not Be Imposed For Violation of the Lawful Order of This Court.|

| | | |NO FORMAL TENTATIVE RULING. |

|LINE 10 |20CV366486 |Swift Financial LLC v. Rita Ascencio, individually; |Petition of Swift Financial LLC To Confirm Arbitration Award. |

| | |Rita Ascencio d.b.a. Rita Family Day Care; Rita |No opposition has been filed by any party. |

| | |Ascencio Family Day Care Home. |Pursuant to a business loan agreement executed by defendants, the sum |

| | | |of $72,000 was loaned to respondents for business purposes. |

| | | |Respondents defaulted on the agreement. |

| | | |On 02 August 2019, an arbitration was conducted in Bay Head, New |

| | | |Jersey in front of Gerald C. Harvey. Petitioner was awarded |

| | | |$73,281.94. |

| | | |Petitioner is awarded interest from 02 August 2019 at the rate of 10% |

| | | |per year. |

| | | |Petitioner may prepare a formal order and submit it to this Department|

| | | |via the clerk’s e-filing queue. |

| | | |NO FORMAL TENTATIVE RULING. |

|LINE 11 |//2015-1-CV-286739 |Golden West Foreclosure Service Re: 808 North Jackson |Motion of Respondent Marc Unger for Order to Disperse 50% of Surplus |

| | |Avenue. |Funds (Civil Code, §2924k: Probate Code, §§ 6400 et seq.) |

| | | |The application is GRANTED. The clerk of the court is to pay one half |

| | | |of the surplus funds, or $10,089.92 and accrued interest on that |

| | | |one-half portion of the surplus funds, if any, held in this matter to |

| | | |the Client Trust Account for the Sherron Law firm, PC for disbursement|

| | | |to respondent. |

| | | |Counsel for Marc Unger may prepare a formal order and submit it to |

| | | |this Department via the clerk’s e-filing queue. |

| | | |NO FORMAL 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.: |20CV373364 |Henry Om’mani; Matimba Shiyanga v. Benjamin Cacao, et al. |

|DATE: 06 October 2022 |TIME: 9:00 am |LINE NUMBER: 02 |

|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 05 October 2022. Please specify |

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

|---oooOooo--- |

|Order on Defendants Cacaos’ Demurrer |

|To Plaintiffs’ First Amended Complaint. |

I. Statement of Facts.

Plaintiffs Henry Om’mani and Matimba Shiyanga (“Plaintiffs”) were the parents of Leonardo Giovanni Shiyanga-Om’mani (“Decedent”), born 2 July 2014. (First Amended Complaint (“FAC”), ¶¶1 – 2.)

Plaintiffs entered into a lease agreement with defendants Benjamin Cacao and Gloria Cacao to rent the Property located at 3580 Haig Street, Apartment #2 in Santa Clara (“Property”) (FAC, ¶19.) in or about December 2016 and had lived at the Property since that time up to and including 16 November 2019. (FAC, ¶20.)

The Property is owned, controlled, and maintained by defendant Benjamin Cacao Felarca Trust (“Trust”), of which defendant Benjamin Cacao is the trustee. (FAC, ¶21.) Prior to executing the rental agreement and during their rental of the Property, Plaintiffs informed defendants Benjamin Cacao and Gloria Cacao that Decedent was autistic and required special needs. (FAC, ¶22.)

Prior to 16 November 2019, Plaintiffs requested the backyard of their rental unit be secured so Decedent could be left outside in the yard. (FAC, ¶23.)

On 16 November 2019, Plaintiffs and Decedent were at home in their rental residence. On 16 November 2019, the fence boards in the backyard of the Property were loose which allowed Decedent to escape the safety of the secured backyard. (FAC, ¶24.) As of 16 November 2019, defendant Henry Cacao, individually and as trustee of the Trust, and defendant Gloria Cacao (collectively, “Cacao Defendants”) knew or should have known that the fence boards in the backyard of the Property were loose and the hazard that posed to Decedent. (FAC, ¶25.)

Despite their knowledge of the loose fence boards, the Cacao Defendants failed to take any action to correct the defect. (FAC, ¶26.) The fence boards for the adjoining property (on Lafayette Street) may also have been loose and negligently maintained which allowed Decedent access to the street. (FAC, ¶27.)

Decedent made his way through the loosened fence boards and crossed Lafayette Street by way of a designated crosswalk to the train tracks. (FAC, ¶28.) The train tracks that run parallel to Lafayette Street are not protected from trespass by any fencing. (FAC, ¶29.) Decedent had unfettered access to the train tracks nearest the Property. (FAC, ¶30.) There were no written warnings or symbols that may have alerted Decedent to the dangerous train tracks. (FAC, ¶31.)

Decedent began walking southward along the tracks. (FAC, ¶32.) On 16 November 2019, at or about 4:15 pm, Decedent was struck and killed by a northbound Amtrak train at Union Pacific mile post 42.9. (FAC, ¶33.)

On 12 November 2020[1], Plaintiffs and the estate of Decedent filed a complaint against the Cacao Defendants, City of Santa Clara (“City”), County of Santa Clara (“County”), State of California (“State”), and National Railroad Passenger Corporation (“NRPC”) asserting causes of action for:

1) Negligence

2) Negligent Infliction of Emotional Distress

3) Dangerous Condition of Public Property [against City of Santa Clara, County of Santa Clara, and State of California]

4) Breach of Contract [against Benjamin Cacao and Gloria Cacao]

On 10 June 2021, defendants Benjamin Cacao and Gloria Cacao filed a demurrer to the complaint.

On 24 June 2021, defendant County filed an answer to the complaint.

On 29 July 2021, defendant City filed an answer to the complaint.

On 31 August 2021, Plaintiffs attempted to file a FAC but the court clerk rejected the filing for lack of a court order.

Apparently under the belief that a FAC had been filed, defendants Benjamin Cacao and Gloria Cacao filed a demurrer to FAC on 18 November 2021.

On 29 November 2021, pursuant to stipulation, Plaintiffs dismissed defendant County.

On 9 March 2022, pursuant to stipulation, the court issued an order granting Plaintiffs leave to file a FAC.

On 22 March 2022, Plaintiffs filed the operative FAC which continues to assert the same four causes of action asserted in their original complaint.

On 8 June 2022, the Cacao Defendants filed the motion now before the court, a demurrer to Plaintiffs’ FAC.[2]

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. The Cacao Defendants’ demurrer to the first [negligence] and second [negligent infliction of emotional distress] causes of action in Plaintiffs’ FAC is SUSTAINED.

Plaintiffs’ first and second causes of action assert negligence and negligent infliction of emotional distress, respectively. “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.) “Negligent infliction of emotional distress [NIED] is not an independent tort in California, but is regarded simply as the tort of negligence. [Citations.] Whether plaintiffs can recover damages for NIED is dependent upon traditional tort analysis, and the elements of duty, breach of duty, causation and damages must exist to support the cause of action.” (Klein v. Children's Hosp. Medical Ctr. (1996) 46 Cal.App.4th 889, 894.)

In demurring to the first two causes of action, the Cacao Defendants argue initially that Plaintiffs have not alleged the existence of a duty. “[T]he existence of a duty is a question of law for the court.” (Kentucky Fried Chicken of California, Inc. v. Superior Court (1997) 14 Cal.4th 814, 819.) “The question of whether a duty exists is a question of law and must be decided by the court on a case-by-case basis.” (Dutton v. City of Pacifica (1995) 35 Cal.App.4th 1171, 1175.) “Whether a legal duty of care exists in a given factual situation is a question of law to be determined by the court, not the jury.” (Carleton v. Tortosa (1993) 14 Cal.App.4th 745, 754.)

All landowners, including landlords, must use reasonable care to protect people who come onto their property. (Civil Code, § 1714; CACI Nos. 1000, 1001, 1006.) For landlords, reasonable care ordinarily involves making sure the property is safe at the beginning of the tenancy, and repairing any hazards the landlord learns about later. As the court explained in Mata v. Mata (2003) 105 Cal.App.4th 1121, 1131–1132 [130 Cal. Rptr. 2d 141], disapproved in part on another ground in Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 247–250 [30 Cal. Rptr. 3d 145, 113 P.3d 1159]. “Because a landlord has relinquished possessory interest in the land, his or her duty of care to third parties injured on the land is attenuated as compared with the tenant who enjoys possession and control. Thus, before liability may be thrust on a landlord for a third party's injury due to a dangerous condition on the land, the plaintiff must show that the landlord had actual knowledge of the dangerous condition in question, plus the right and ability to cure the condition.”

(Stone v. Center Trust Retail Properties, Inc. (2008) 163 Cal.App.4th 608, 612; emphasis added.)

In determining if there is a basis for tortious liability for conditions on land, California courts modernly "have placed major importance on the existence of possession and control" (Preston v. Goldman (1986) 42 Cal.3d 108, 119 [227 Cal.Rptr. 817, 720 P.2d 476]; Uccello v. Laudenslayer, supra, 44 Cal.App.3d at p. 511), because this factor is relevant in determining if the landlord acted reasonably under the circumstances. It would not be reasonable to charge a lessor with liability if the lessor did not have the power, opportunity and ability to eliminate the danger. (Rosales v. Stewart (1980) 113 Cal.App.3d 130, 134 [169 Cal.Rptr. 660].) …

In discussing the duties of residential landlords courts consider such factors as the importance of complying with habitability requirements, the scarcity of housing leaving tenants in an unequal bargaining position, the impracticability of requiring tenants to make repairs and the burden to them, the foreseeability of harm, the burden to landlords in avoiding risks, and the fact that residential landlords have the primary responsibility to maintain properties. (Becker v. IRM Corp., supra, 38 Cal.3d at p. 468; see also Civil Code, § 1941.)

(Mora v. Baker Commodities (1989) 210 Cal.App.3d 771, 779-780; emphasis added.)

Here, Plaintiffs allege only that on the date of Decedent’s death, the Cacao Defendants knew or should have known that the fence boards in the backyard of the Property were loose and the hazard that posed to Decedent. (See FAC, ¶25.)

As the authorities cited by the Cacao Defendants make clear, a landlord cannot be liable based merely for having knowledge of a dangerous condition. A duty does not arise unless the landlord has actual knowledge of the dangerous condition and the opportunity and ability to cure the condition.

If, as alleged, the Cacao Defendants had knowledge of the loose fence boards on the date of Decedent’s death, Plaintiffs have not sufficiently alleged that the Cacao Defendants had an opportunity and ability to correct the dangerous condition. Plaintiffs do not address this particular deficiency in their opposition.

The Cacao Defendants argue additionally that Plaintiffs’ claims for negligence and negligent infliction of emotional distress are barred because Plaintiffs have not and/or cannot allege proximate causation, as a matter of law. Since the court has already determined Plaintiffs have not alleged the existence of a duty, the court need not reach the Cacao Defendants’ additional argument regarding proximate causation.

Plaintiffs have already had two opportunities to allege a claim of negligence against the Cacao Defendants. Plaintiffs have the burden to show in what manner it can amend its complaint and how that amendment will change the legal effect of the pleading. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) Plaintiffs have not met this burden.

Accordingly, the Cacao Defendants’ demurrer to the first and second causes of action in Plaintiffs’ 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 negligence and negligent infliction of emotional distress, respectively, is SUSTAINED WITHOUT LEAVE TO AMEND.

B. The Cacao Defendants’ demurrer to the fourth [breach of contract] cause of action in Plaintiffs’ FAC is SUSTAINED.

“To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff's performance of the contract or excuse for nonperformance, (3) the defendant's breach, and (4) the resulting damage to the plaintiff.” (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186; see also CACI, No. 303.)

In the fourth cause of action of the FAC, Plaintiffs allege plaintiffs Henry Om’Mani and Matimba Shiyanga entered into a residential lease agreement with the Cacao Defendants which required the Cacao Defendants to provide safe and habitable premises and maintain the subject property. (FAC, ¶¶71 and 73.) Plaintiffs allege further that the Cacao Defendants “breached their contractual obligation to provide a safe and habitable premises and to repair and maintain the fence in the backyard of the subject property.” (FAC, ¶79.)

Although a copy of the residential lease agreement is purportedly attached to the FAC, no residential lease agreement is attached to the FAC filed with the court. The original complaint does attach a copy of the residential lease agreement which the Court presumes is the same. (See Barnett v. Fireman’s Fund Ins. Co. (2001) 90 Cal. App. 4th 500, 505—“[T]o the extent the factual allegations conflict with the content of the exhibits to the complaint, we rely on and accept as true the contents of the exhibits and treat as surplusage the pleader’s allegations as to the legal effect of the exhibits.”) In reviewing the residential lease agreement attached to Plaintiffs’ original complaint, the court did not identify any provision stating the Cacao Defendants’ contractual obligation “to provide safe and habitable premises.”

With regard to maintenance obligations, the residential lease agreement states, in relevant part, “Tenant shall immediately notify Landlord, in writing, of any problem, malfunction or damage with any item including carbon monoxide devices and smoke alarms on the property.” “Tenant shall make Premises available to Landlord or Landlord’s representative for the purposes of entering to make necessary or agreed repairs … Landlord and Tenant agree that 24-hour written notice shall be reasonable and sufficient notice … “

In demurring, the Cacao Defendants contend there are no allegations that Plaintiffs notified them of loose fence boards or gave them a reasonable opportunity to repair. In this regard, the court understands the Cacao Defendants’ argument to be that Plaintiffs have not alleged their own performance. “The plaintiff cannot enforce the defendant’s obligation unless the plaintiff has performed the conditions precedent imposed on him. [Citation.] Accordingly, the allegation of performance is an essential part of his cause of action. [Citation.]” (4 Witkin, California Procedure (4th ed. 1997) Pleading, §491, pp. 581 – 582.) “But the foregoing requirement is reduced to a mere formality by [Code Civ. Proc., §457[3]] which makes it unnecessary to set forth the facts of such performance: The plaintiff may allege, in general terms, that he has ‘duly performed all the conditions on his part.’” (Id. at p. 582.) Here, however, Plaintiffs have not even made a general allegation that they have performed all the conditions imposed upon them. Plaintiffs do not address this particular deficiency in their opposition.

The Cacao Defendants make an additional argument which this court understands to be Plaintiffs’ contributory negligence. The propriety of such an argument aside, since the court has already determined Plaintiffs have not adequately alleged their own performance, the court need not reach the Cacao Defendants’ additional argument.

Plaintiffs have already had two opportunities to allege a claim of breach of contract against the Cacao Defendants. Plaintiffs have the burden to show in what manner it can amend its complaint and how that amendment will change the legal effect of the pleading. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) Plaintiffs have not met this burden.

Accordingly, the Cacao Defendants’ demurrer to the fourth cause of action in Plaintiffs’ FAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code of Civil Procedure, § 430.10, subd. (e)] for breach of contract is SUSTAINED WITHOUT LEAVE TO AMEND.

IV. Tentative Ruling.

The Tentative Ruling was duly posted.

V. Case Management.

This case is approaching two years old. At the next Case Management Conference currently set for 10 January 2023 at 10:00 AM in this Department, this Court will consider setting a trial date.

VI. Order.

The Cacao Defendants’ demurrer to the first and second causes of action in Plaintiffs’ FAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code of Civil Procedure, § 430.10, subd. (e)] for negligence and negligent infliction of emotional distress, respectively, is SUSTAINED WITHOUT LEAVE TO AMEND.

The Cacao Defendants’ demurrer to the fourth cause of action in Plaintiffs’ FAC on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code of Civil Procedure 430.10, subd. (e)] for breach of contract is SUSTAINED WITHOUT LEAVE TO AMEND.

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|DATED: |HON. SOCRATES PETER MANOUKIAN |

| |Judge of the Superior Court |

| |County of Santa Clara |

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|SUPERIOR COURT, STATE OF CALIFORNIA | |

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|161 North First Street, San Jose, CA 95113 | |

|408.882.2320 · 408.882.2296 (fax) | |

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|CASE NO.: |21CV381798 |Jaime Canales v. Ashley M. Oliver, et al. |

|DATE: 06 October 2022 |TIME: 9:00 am |LINE NUMBER: 03 |

|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 05 October 2022. Please specify |

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

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|Order on Demurrer of Defendant Ashley Oliver |

|To Plaintiff Jaime Canales’s First Amended Complaint. |

I. Statement of Facts.

On 11 May 2019, Armando Canales (“Decedent”) was a passenger in a 2003 Toyota Corolla driven by defendant Billie Lighthill southbound on Highway 17. (First Amended Complaint (“FAC”), ¶¶8 – 9.) The vehicle driven by defendant Billie Lighthill was owned by defendant Tiffany Cavanaugh, mother of defendant Collette Cavanaugh who was also a passenger in the vehicle at the time of the accident. (Id.)

At the same time, defendant Ashley Oliver was driving a 2001 Chrysler Voyager (owned and provided to her by defendant James Thomas Oliver) on the wrong side of the highway. (FAC, ¶10.) Defendant Ashley Oliver was driving northbound on the southbound side of Highway 17. (Id.)

A head-on collision occurred between the vehicles driven by defendant Billie Lighthill and defendant Ashley Oliver about 0.5 miles north of Summit Road on the southbound side of Highway 17. (FAC, ¶11.) Decedent died as a result of injuries sustained in this collision and a subsequent collision with a 2007 Audi driven by defendant Rebecca Ann Gutierrez (with the permission/ consent of its owner defendant Maria Gutierrez) behind Decedent’s vehicle which collided with the vehicle occupied by Decedent due to defendant Rebecca Ann Gutierrez’s unsafe speed. (FAC, ¶¶12 and 34.)

Defendant Ashley Oliver was intoxicated on the night of the accident while driving northbound on Highway 17 from Santa Cruz to her home in San Jose. (FAC, ¶13.) Defendant Ashley Oliver mistakenly crossed over from the northbound side of Highway 17 into the southbound side near the area called “restaurants” south of Summit Road. (FAC, ¶14.)

Highway 17 is maintained and/or owned by defendant State of California Department of Transportation (“Caltrans”) and is a mountainous road, with sharp curves, different elevations, areas of narrow lanes, and no shoulders to pull out from traffic and to stop. (FAC, ¶15.) As such, once a motorist enters the wrong side of this highway, he/she is in extreme danger of head-on collision with few, if any, opportunities to avoid a collision. (Id.) Therefore, throughout most of this mountainous highway, there exists a cement median barrier separating northbound and southbound traffic. (FAC, ¶16.)

However, in the area of the “restaurants” there is/was no cement median barrier separating northbound and southbound traffic. (Id.) Further, the “restaurants” area of the highway was not properly controlled, marked, or striped, making it confusing for motorists to separate the northbound from southbound lanes of travel and increasing the risk of entering an incorrect lane of travel. (FAC, ¶¶17 – 18 and 21.)

On 23 April 2021[4], plaintiff Jaime Canales (“Plaintiff”), the biological father of Decedent (Complaint, ¶MV-1), filed a Judicial Council form complaint against defendants asserting causes of action for:

1) Negligence—Motor Vehicle

2) General Negligence

3) Premises Liability [against defendant Caltrans]

4) Negligent Entrustment [against defendants James T. Oliver, Collette Cavanaugh, Tiffany Cavanaugh, Sven Cavanaugh, and Maria Gutierrez]

On 20 October 2021, the court clerk dismissed defendant Sven Cavanaugh at Plaintiff’s request.

On 26 October 2021, Plaintiff filed a motion to consolidate the instant action with an action filed by Decedent’s biological mother, Tina Cacilhas (“Cacilhas”). On 25 January 2022, the court granted Plaintiff’s motion to consolidate without prejudice to a motion to bifurcate at a later point, if appropriate.

On 10 January 2022, defendant Caltrans filed a demurrer to Plaintiff’s complaint. [The court record is unclear with regard to the court’s ruling on defendant Caltrans’s demurrer. A minute order dated 7 April 2022 reflects defendant Caltrans contested the tentative ruling which was then modified and adopted. A formal order was never filed.[5]]

On 13 April 2022, Plaintiff filed the operative FAC which now asserts causes of action for:

1) Dangerous Condition of Public Property [against defendant Caltrans]

2) General Negligence [against defendants Ashley M. Oliver, James T. Oliver, Billie Lighthill, Charleen Lighthill, Collette A. Cavanaugh, Tiffany Cavanaugh, Rebecca Ann Gutierrez, Maria Gutierres, and Tina Cacilhas]

3) Negligence—Motor Vehicle [against defendants Ashley M. Oliver, James T. Oliver, Billie Lighthill, Charleen Lighthill, Collette A. Cavanaugh, Tiffany Cavanaugh, Rebecca Ann Gutierrez, Maria Gutierres, and Tina Cacilhas]

4) Exemplary Damages [against defendant Ashley Oliver]

On 14 June 2022, defendant Caltrans filed its answer to Plaintiff’s FAC.

Also on 14 June 2022, defendant Collette Cavanaugh filed an answer to plaintiff Cacilhas’s FAC.

On 27 June 2022, defendant Tiffany Cavanaugh filed an answer to Plaintiff’s FAC.

On 29 June 2022, defendants Charleen Lighthill and Billie Lighthill filed an answer to Plaintiff’s FAC and also filed a cross-complaint against Ashley M. Oliver, James Thomas Oliver, Rebecca Ann Gutierrez, and Maria Gutierrez for indemnity and contribution.

On 1 July 2022, Plaintiff filed an amendment to his FAC substituting Granite Construction Company for Doe defendant, numbers 1 and 11.

On 1 July 2022, defendants Charleen Lighthill and Billie Lighthill filed an answer to plaintiff Cacilhas’s FAC and also filed a cross-complaint against Ashley M. Oliver, James Thomas Oliver, Rebecca Ann Gutierrez, and Maria Gutierrez for indemnity and contribution.

On 11 July 2022, defendant Collette Cavanaugh filed an answer to Plaintiff’s FAC.

On 12 July 2022, defendant James Thomas Oliver filed an answer to Plaintiff’s FAC.

Also on 12 July 2022, defendant Ashley Oliver filed the motion now before the court, a demurrer to the fourth cause of action in Plaintiff’s FAC.

On 29 July 2022, cross-defendants Ashley M. Oliver and James T. Oliver filed an answer to the cross-complaint of Charleen Lighthill and Billie Lighthill.

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. Code of Civil Procedure section 430.41.

Code of Civil Procedure section 430.41 states, in relevant part:

(a) Before filing a demurrer pursuant to this chapter, the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. If an amended complaint, cross-complaint, or answer is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a demurrer to the amended pleading.

(1) As part of the meet and confer process, the demurring party shall identify all of the specific causes of action that it believes are subject to demurrer and identify with legal support the basis of the deficiencies. The party who filed the complaint, cross-complaint, or answer shall provide legal support for its position that the pleading is legally sufficient or, in the alternative, how the complaint, cross-complaint, or answer could be amended to cure any legal insufficiency.

As a preliminary matter, Plaintiff argues in opposition that defendant Ashley Oliver did not comply with Code of Civil Procedure section 430.41 in that she did not inform Plaintiff of her second basis for demurrer, i.e., that Plaintiff has not pleaded sufficient facts to be entitled to punitive damages. “Any determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.” (Code Civ. Proc., §430.41, subd. (a)(4).)

In view of this statutory language and in furtherance of judicial economy, the court will consider defendant Ashley Oliver’s demurrer on the merits. The court reminds all parties that they should not treat Code of Civil Procedure section 430.41 as a procedural hurdle and should, instead, undertake the obligations set forth therein with sincerity and good faith.

B. Waiver.

As a further preliminary matter, Plaintiff argues in opposition that defendant Ashley Oliver has waived her right to assert the instant demurrer (and any objection to Plaintiff’s claim for punitive damages) because defendant Ashley Oliver submitted to the jurisdiction of this court, actively participated in this litigation as well as the action commenced by plaintiff Cacilhas, and signed a stipulation for consolidation of Plaintiff’s action and plaintiff Cacilhas’s action.

However, Plaintiff proffers no relevant legal authority to support his contention that defendant Ashley Oliver’s conduct amounts to a waiver of the right to assert the instant demurrer.[6]

C. Defendant Ashley Oliver’s demurrer to the fourth cause of action in Plaintiff’s FAC is SUSTAINED.

Plaintiff’s fourth cause of action, asserted against defendant Ashley Oliver, is entitled, “Exemplary Damages.” Defendant Ashley Oliver demurs on the ground that exemplary damages is not a cause of action.

Although not a cause of action, "[punitive] or exemplary damages are remedies available to a party who can plead and prove the facts and circumstances set forth in Civil Code section 3294, the cases interpreting this code section, or by other statutory authority. 'Punitive damages are merely incident to a cause of action, and can never constitute the basis thereof.' [Citation.]" (Hilliard v. A. H. Robins Co. (1983) 148 Cal.App.3d 374, 391 [196 Cal.Rptr. 117], fns. omitted.)

(Orient Handel v. United States Fid. & Guar. Co. (1987) 192 Cal.App.3d 684, 697; see also McLaughlin v. National Union Fire Ins. Co. (1994) 23 Cal.App.4th 1132, 1163—“In California there is no separate cause of action for punitive damages.”)

Defendant Ashley Oliver demurs additionally on the ground that the pleading is uncertain because it does not plead facts sufficient to establish that defendant’s actions amounted to malice.

“‘[D]emurrers for uncertainty are disfavored, and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.’” (Mahan v. Charles W. Chan Ins. Agency, Inc. (2017) 14 Cal.App.5th 841, 848, fn. 3 [222 Cal. Rptr. 3d 360]; accord, Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135 [146 Cal. Rptr. 3d 173].) “‘A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.’” (Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822 [245 Cal. Rptr. 3d 378], quoting Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616 [17 Cal. Rptr. 2d 708].)

(A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 695.)

On grounds of uncertainty, the court does not find the pleading of exemplary damages to be so incomprehensible that defendant Ashley Oliver could not respond. What defendant Ashley Oliver appears to be asserting is that Plaintiff’s claim for exemplary damages would be subject to a motion to strike because Plaintiff seeks relief not supported by the allegations of the complaint.[7] On a demurer, such a basis for attack is not available.

At the risk of issuing an advisory opinion, the court will nevertheless undertake an analysis of defendant Ashley Oliver’s argument.

Defendant Ashley Oliver contends the Plaintiff’s FAC does not adequately allege a factual basis for punitive damages. “‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” (Civil Code §3294, subd. (c)(1).) To plead a “willful and conscious disregard of the rights of others,” a plaintiff need only allege, “that the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences.” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1211.)

Defendant Ashley Oliver cites to Taylor v. Superior Court (1979) 24 Cal.3d 890 (Taylor) where the California Supreme Court addressed the issue of punitive damages in the context of drunk driving. “A conscious disregard of the safety of others may constitute malice within the meaning of section 3294 of the Civil Code. In order to justify an award of punitive damages on this basis, the plaintiff must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences.” (Taylor, supra, 24 Cal.3d at pp. 895-896.)

“One who voluntarily commences, and thereafter continues, to consume alcoholic beverages to the point of intoxication, knowing from the outset that he must thereafter operate a motor vehicle demonstrates, in the words of Dean Prosser, ‘such a conscious and deliberate disregard of the interests of others that his conduct may be called willful or wanton.’ [Citation.] Although the circumstances in a particular case may disclose similar willful or wanton behavior in other forms, ordinarily, routine negligent or even reckless disobedience of traffic laws would not justify an award of punitive damages.” (Id. at pp. 899-900.)

In the FAC, Plaintiff alleges, in relevant part, that “Defendant ASHLEY OLIVER was intoxicated on the night of the accident…” (FAC, ¶13.) “Defendant ASHLEY OLIVER … was driving under the influence of alcohol and was so impaired that she drove on the wrong side of the freeway…” (FAC, ¶32.) “Defendant ASHLEY OLIVER drove her father’s vehicle … on the night of May 11, 2019 after drinking alcohol and being under the influence of alcohol to such a degree that she drove northbound in a southbound direction of Highway 17…” (FAC, ¶43.) When compared to Taylor, the FAC lacks an allegation of defendant Ashley Oliver’s awareness of the probable consequences.

In opposition, Plaintiff invites this court to take judicial notice of fact asserted in a sentencing memorandum filed by the district attorney in defendant Ashley Oliver’s criminal case, case #C1909680 and defendant Ashley Oliver’s discovery responses in order to expand the facts beyond what was alleged in the FAC. The court declines to do so. (See Bounds v. Superior Court (2014) 229 Cal.App.4th 468, 477—“a court may take judicial notice of the pleading party's discovery responses (or those of the party's authorized agent) to the extent ‘they contain statements of the [party] or his agent which are inconsistent with the allegations of the pleading before the court.’ [Citation.]” The discovery responses proffered here to establish inconsistency.” See also People v. Woodell (1998) 17 Cal.4th 448, 455—Evidence Code section 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.” Although a sentencing memorandum may be a court record, the court may not take judicial notice of the truth of any statements made therein.)

Had defendant Ashley Oliver filed a motion to strike Plaintiff’s claim for exemplary damages, the court would be inclined to grant it on the ground that it requests relief not supported by the allegations of the complaint. However, the court will not do so on grounds of uncertainty. Nevertheless, since exemplary damages are not a cause of action, defendant Ashley Oliver’s demurrer is warranted.

Accordingly, defendant Ashley Oliver’s demurrer to the fourth cause of action in Plaintiff’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 punitive damages is SUSTAINED with 10 days’ leave to amend.

IV. Tentative Ruling.

The ruling was duly posted.

V. Case Management.

The current Case Management Conference currently set for 21 March 2023 at 10:00 AM will REMAIN AS SET. Given that this case will be two years old by then, this Court will consider setting a trial date at that time on concurrence of all counsel who should meet and confer and agree on a trial date commencing in September 2023.

VI. Order.

Defendant Ashley Oliver’s demurrer to the fourth cause of action in Plaintiff’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 punitive damages is SUSTAINED with 10 days’ leave to amend.

|___________________________ |______________________________________________ |

|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] Since the third cause of action is not directed against the Cacao Defendants, the Court deems the Cacao Defendants’ demurrer to be limited to the first, second, and fourth causes of action.

[3] Code of Civil Procedure, § 457 states, “In pleading the performance of conditions precedent in a contract, it is not necessary to state the facts showing such performance, but it may be stated generally that the party duly performed all the conditions on his part, and if such allegation be controverted, the party pleading must establish, on the trial, the facts showing such performance.”

[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. (Ca. St. Civil Rules of Court, Rule 3.714(b)(1)(C) and (b)(2)(C).)

[5] Should this matter proceed to a formal hearing, this Court will discuss this matter, and this Court will invite all parties to attend.

[6] (See In re Steiner (1955) 134 Cal.App.2d 391, 399 [“A point which is merely suggested by appellant’s counsel, with no supporting argument or authority, is deemed to be without foundation and requires no discussion.”]; Jones v. Superior Court (1994) 26 Cal.App.4th 92, 99 [“Issues do not have a life of their own: if they are not raised or supported by argument or citation to authority, we consider the issues waived.”]; see also Quantum Cooking Concepts, Inc. v. LV Associates, Inc. (2011) 197 Cal.App.4th 927, 934 [trial court not required to “comb the record and the law for factual and legal support that a party has failed to identify or provide”]; see Dills v. Redwoods Associates, Ltd. (1994) 28 Cal.App.4th 888, 890, fn. 1 [undeveloped argument may be treated as abandoned]; Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 (stating that “[w]hen [a party] fails to raise a point, or asserts it but fails to support it with reasoned argument and citations to authority, we treat the point as waived”); see also Schaeffer Land Trust v. San Jose City Council (1989) 215 Cal.App.3d 612, 619, fn. 2 (stating that “a point which is merely suggested by a party’s counsel, with no supporting argument or authority, is deemed to be without foundation and requires no discussion.”).)

[7] Under general rules of civil procedure, a motion to strike may be brought on the following two grounds:

a. Strike out any irrelevant, false, or improper matter inserted in any pleading.

b. Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc., §436.)

Irrelevant matter includes “immaterial allegations.” (Code Civ. Proc., §431.10, subd. (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 Civ. Proc., §431.10, subd. (b).)

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