Superior Court, State of California



DATE: Tuesday, 1 June 2021

TIME: 9:00 A.M.

This Department prefers that litigants use Zoom for Law and Motion and for Case Management Calendars.

CourtCall is also acceptable.

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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.

VIRTUAL ACCESS INTO THE COURTHOUSE WITH THE “ZOOM” VIRTUAL PLATFORM.

PLEASE READ THIS PAGE IN ITS ENTIRETY AS SOME OF THE PROTOCOLS HAVE CHANGED.

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.)

SOCIAL DISTANCING PROTOCOLS

In light of COVID-19-related health concerns and due to the Order of the Public Health Department, Department 20 has resumed Law & Motion calendars but with safe-distancing protocols. Please check this tentative rulings page before making any appearance. 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.

Appearances.

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).

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 by 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.

Entry into the Courthouse.

As for matters which require personal appearances, protocols concerning social distancing and facial coverings in compliance with the directives of the Public Health Officer will be enforced.

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. It will help 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.

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 will be of great assistance to minimize feedback.

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.

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).

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.

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. If you fail to do any of these, your browser may pull up old information from old cookies even after the tentative rulings have been posted.

Tentative Rulings Are Continued Below. Full Orders Are On The Following Pages.

ANYONE WISHING TO CONTEST ANY TENTATIVE RULING SHOULD SEND AN EMAIL TO OPPOSING COUNSEL AND TO THE COURT AT department20@ BY 4:00 PM ON MONDAY, MAY 31, 2021. PLEASE SPECIFY THE PARTICULAR RULING TO WHICH YOU OBJECT.

|LINE # |CASE # |CASE TITLE |RULING |

|LINE 1 |8CV 331920 |Kim Meyer v. José Dominguez |Order of Examination. |

| | | |On 1 April 2021, this matter was previously set for an OEX. Plaintiff|

| | | |appeared in pro per. There was no proof of service in the file and |

| | | |Judge Monahan ordered the matter OFF CALENDAR. |

| | | |There does not appear to be a proof of service in the file. |

| | | |The matter is OFF CALENDAR WITHOUT PREJUDICE unless plaintiff appears |

| | | |with a proof of valid service. |

| | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 2 |19 CV 343429 |Peter Lim v. Bethany Liou |Order of Examination Star River LLC c/o Bethany Liou, third party. |

| | | |Continued from 29 April 2021. Bench Warrant for Bethany Liou remains |

| | | |outstanding. Ms. Liou has been order to appear in person. |

| | | |NO FORMAL TENTATIVE RULING. |

|LINE 3 |19CV347171 |James P. Wiberg, Triode Systems, Inc. v. Gary Johnson, |Hearing on OSC in re Contempt. |

| | |Hydrogen on Demand. |Continued from 29 April 2021. At that time, this Court dismissed the |

| | | |criminal aspect of the OSC but reserved the issue of attorney’s fees. |

| | | | |

| | | |The motion is opposed. |

| | | |This Court finds that Gary Johnson was aware of a lawful Court Order, |

| | | |dated 25 August 2020 to produce critical financial information within |

| | | |14 days of the Order. He produce the documents on 28 April 2021, less|

| | | |than 48 hours before the 29 April 2021 date. At no point does he |

| | | |argue that he was unable to comply with the lawful Court Order. This |

| | | |Court finds that Mr. Johnson to be in contempt of the |

| | | |This Court has reviewed papers supplied by counsel for the moving |

| | | |party. (cf. Acosta v. SI Corp. (2005) 129 Cal.App.4th 1370, where |

| | | |there was a statement by the trial court to the contrary and the |

| | | |denial of fees in its entirety was reversed by the Court of Appeal: |

| | | |“At oral argument, the trial court referred to the motion to tax and |

| | | |stated “What I don't want to do, . . . . . is go through this |

| | | |individually. I have done that too many times, and it's just as |

| | | |tedious as can be. I will do it if I have to, but I don't want to.” |

| | | |The matter was taken under submission. The trial court later denied |

| | | |the motion to tax costs in its entirety and did not specifically |

| | | |address the costs challenged by plaintiffs. Under these circumstances,|

| | | |we cannot say that the court fulfilled its obligation to determine |

| | | |whether SI was entitled to the disputed cost items. We remand for that|

| | | |determination.”) |

| | | |A verified fee bill is prima facie evidence the costs, expenses, and |

| | | |services listed were necessarily incurred. (Hadley v. Krepel (1985) |

| | | |167 Cal.App.3d 677, 682.) A declaration attesting to the accuracy of |

| | | |the fee bill is entitled to a presumption of credibility. (Horsford v.|

| | | |Board of Trustees of California State University (2005) 132 |

| | | |Cal.App.4th 359, 396.) |

| | | |A party “cannot litigate tenaciously and then be heard to complain |

| | | |about the time necessarily spent by the plaintiff in response.” |

| | | |(Serrano v. Priest (1982) 32 Cal.3d 621, 638; City of Riverside v. |

| | | |Rivera, 477 U.S. 561, 580 fn.11 (1986).) |

| | | |However, a fee request that appears unreasonably inflated is a special|

| | | |circumstance permitting the trial court to reduce the award or deny |

| | | |one altogether. (See Serrano v. Unruh (1982) 32 Cal.3d 621, 635; |

| | | |Guillory v. Hill (2019) 36 Cal.App.5th 802, 806; Chavez v. City of Los|

| | | |Angeles (2010) 47 Cal.4th 970, 989-991.) In such an evaluation, this |

| | | |Court may consider “factors such as the complexity of the case and |

| | | |procedural demands, the skill exhibited and the results achieved.” |

| | | |(Goglin v. BMW of North America, LLC (2016) 4 Cal.App.5th 462, 470.) |

| | | |This Court generally agrees with plaintiff/cross-defendant about the |

| | | |fees claimed by counsel for Mr. Pinales. However, this Court will |

| | | |allow an hourly rate of fees for Mr. Roulston’s work at $475.00 an |

| | | |hour. |

| | | |The motion of plaintiffs’ counsel for attorneys fees GRANTED as |

| | | |follows: counsel for plaintiffs is entitled to the sum of $22,145.00 |

| | | |in attorneys fees and costs. Counsel for plaintiffs to prepare the |

| | | |formal order. |

| | | |NO FORMAL TENTATIVE RULING. |

|LINE 4 |19CV347171 |James P. Wiberg, Triode Systems, Inc. v. Gary Johnson, |Continuation of Order of Examination of Gary Johnson. |

| | |Hydrogen on Demand. |Unless the parties agree otherwise, all parties are to appear in |

| | | |Department 20 at 9:00 AM. Social Distancing Protocols will be in |

| | | |effect, including the use of appropriate facial masks. |

| | | |As an alternative to appearing in Department 20, the parties are |

| | | |strongly urged to appear virtually whereby 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 (e.g., |

| | | |Zoom, conference call, etc.) on a different day. The Court will set a|

| | | |return date to make sure the OEX was completed. |

| | | |NO FORMAL TENTATIVE RULING. |

|LINE 5 |19CV347171 |James P. Wiberg, Triode Systems, Inc. v. Gary Johnson, |Motion of Plaintiffs for Attorneys Fees. |

| | |Hydrogen on Demand. |SEE LINE #3. |

|LINE 6 |20CV369688 |Charlene Lee v. Andrew Goldenkranz et al. |Demurrer of Defendants to Plaintiff’s First Amended Complaint. |

| | | |The demurrer to the FAC is SUSTAINED WITHOUT LEAVE TO AMEND for |

| | | |failure to state a claim. |

| | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 7 |20CV370193 |Wesco Insurance Company v. Marianne Cruz, et al. |The Motion of Plaintiff to Strike Answer of Defendant Friendly Care |

| | | |in-Home Services & Referral Resources. |

| | | |SEE LINE #15. |

| | | |The motion is GRANTED as this defendant cannot appear in propria |

| | | |persona. Counsel for plaintiff to prepare an appropriate order. |

| | | |NO FORMAL TENTATIVE RULING. |

|LINE 8 |19CV346692 |Hampton v. Chan |Motion of Defendants for Summary Judgment. |

| | | |OFF CALENDAR per request of moving parties. |

|LINE 9 |16CV296446 |Holly Wright et al. v. Paul Da Silva et al. |Motion of Defendant Paul Alexander Da Silva for Judgment on the |

| | | |Pleadings. |

| | | |OFF CALENDAR. The case has settled. |

|LINE 10 |19CV350586 |James Vivian v. Qingzhi Chu |Tentative Ruling will be posted by 10:00 Monday, 31 May 2021 by 10:00 |

| | | |am with additional instructions |

|LINE 11 |19CV358989 |Allan Salehi, Arclite Inc., Arclite LV v. Precision |Motion of Defendant Precision Communication Systems, Inc. for |

| | |Communications Systems, Inc. |Terminating and Monetary Sanctions against Plaintiffs. |

| | | |According to the Third Supplemental Declaration of defense counsel |

| | | |Gordon J. Finwall, counsel for plaintiffs represented remaining |

| | | |documents described in ¶¶ 4.a. and 4.b. Will be produced but no |

| | | |specific date was offered. Mr. Finwall is showing first-rates |

| | | |professionalism and restraint by suggesting that this Court continue |

| | | |the matter. |

| | | |The matter will be CONTINUED to 8 July 2021 at 9:00 AM in Department |

| | | |20. |

|LINE 12 |20CV367258 |Menachem Hahn v. Pitchayapa Chaolit |Motion of Defendant to Quash Plaintiff’s SDT for Citizenship and |

| | | |Immigration Services; Request for Monetary Sanctions against |

| | | |Plaintiff. |

| | | |The motion of defendant to quash SDT for defendant citizenship and |

| | | |immigration papers and Social Security number is GRANTED. The motion |

| | | |of defendant to quash subpoena for appearance of defense counsel and |

| | | |production of records is MOOT. The request of defendant for monetary |

| | | |sanctions is DENIED. |

| | | |SEE ATTACHED TENTATIVE RULING. |

|LINE 13 |20CV367258 |Menachem Hahn v. Pitchayapa Chaolit |Motion of Defendant to Quash Plaintiff’s SDT for testimony and |

| | | |documents of attorney Paul Rogers; Request for Monetary Sanctions |

| | | |against Plaintiff. |

| | | |SEE LINE #12. |

|LINE 14 |20CV369368 |Rabindra Chakraborty, Ruma Chakraborty v. Milestone |Motion of defendant Milestone Financial, LLC dba MERS Fund I for |

| | |Financial, LLC dba MERS Fund I, Mortgage Lender. |terminating sanctions. |

| | | |Plaintiffs did not file opposition to this motion. |

| | | |The motion is code-compliant and GRANTED as prayed for. The complaint|

| | | |is STRICKEN Plaintiffs are jointly and severally assessed $1297.50 |

| | | |payable to counsel for moving party within 20 days of the filing and |

| | | |service of this Order. |

| | | |NO FORMAL TENTATIVE RULING. |

|LINE 15 |16CV297210 |Wesco Insurance Company v. Out Of Control Swimwear, |Motion of Plaintiff for Order of Sale or Assignment by Receiver Etc. |

| | |Inc. |SEE LINE #7. |

| | | |The motion is not opposed. |

| | | |The motion of plaintiff/judgment creditor Wesco Insurance Company for |

| | | |an Order directed to Defendant/Judgment Debtor Out Of Control Swimwear|

| | | |Inc. for the appointment of a receiver in aid of enforcement of |

| | | |judgment re: sale or assignment of domain name: is |

| | | |GRANTED. |

| | | |This Court will enter an order prohibiting secured and unsecured |

| | | |creditors from taking any action in this matter without leave of |

| | | |Court. |

| | | |Counsel for plaintiff to prepare the formal order for signature by |

| | | |this Court. |

| | | |NO FORMAL TENTATIVE RULING. |

|LINE 16 |19CV349514 |Peno Pan v. Denice Deaville, Curtis Kent, Tiger Tummy |Motion of Gordon J. Finwall, Esq. to Be Relieved As Counsel for |

| | |LLC |Defendants. |

| | | |The motion is GRANTED and will take effect upon the filing and service|

| | | |The Order will take effect upon the filing and service of the executed|

| | | |order of this Court and an order that complies with Rules of Court, |

| | | |rule 3.1362(d). |

| | | |NO FORMAL TENTATIVE RULING. |

|LINE 17 |20CV369729 |A. Shirazi v. Jamie Sykora et al. |Tentative Ruling will be posted by 10:00 Monday, 31 May 2021 by 10:00 |

| | | |am with additional instructions |

|LINE 18 |20CV372413 |Vasili Stratton v. et al. v. Katherine Stratton |Tentative Ruling will be posted by 10:00 Monday, 31 May 2021 by 10:00 |

| | | |am with additional instructions |

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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.: |20CV369688 |Charlene Lee v. Fremont Union High School District., et al. |

|DATE: 1 June 2021 |TIME: 9:00 am |LINE NUMBER: 6 |

|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 28 May 2021. Please specify the|

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

|---oooOooo--- |

Demurrer to the First Amended Complaint by

Defendants Fremont Union High School District and Andrew Goldenkranz

I. Statement of Facts.

Plaintiff Charlene Lee (“Plaintiff”) filed this complaint against defendants Fremont Union High School District (“District”) and Andrew Goldenkranz (“Goldenkranz”) (collectively, “Defendants”) on 17 August 2020.[1]

On 10 October 2017, Plaintiff was engaged in a peaceful protest on a public sidewalk in front of Monte Vista High School (“MVHS”). (First Amended Complaint [“FAC”] at ¶ 7.) Plaintiff’s protest consisted of holding two signs up for 10 minutes on the public sidewalk near the MVHS parking lot. (Id. at ¶ 8.) Plaintiff’s signs protested public and religious issues. (Ibid.)

Plaintiff alleges that defendant Goldenkranz, the Assistant Principal at MVHS, observed the signs, objected to the content and went to take the signs. (FAC at ¶¶ 5, 10.) At the same time, defendant Goldenkranz also directed students to take Plaintiff’s signs. (Id. at ¶ 10.)

Thereafter, defendant Goldenkranz initiated criminal proceedings against Plaintiff by calling the Santa Clara County Sheriff’s Department and falsely claiming she was trespassing. (FAC at ¶ 11.) Plaintiff was arrested on 17 October 2017 and then released. (Id. at ¶ 13.) Plaintiff was arrested again for the same charges on or about 28 December 2017. (Ibid.) Plaintiff was charged with misdemeanor trespass and felony stalking and kept in custody. (Ibid.) The merits of the claims were never adjudicated as Plaintiff was declared mentally incompetent to stand trial. (Id. at ¶ 14.)

From 28 December 2017 through 5 December 2018, Plaintiff remained in custody, being transferred several times between various jails and medical facilities. (FAC at ¶ 14.)

On or about 8 February 2018, Plaintiff, while in custody, sent two letters to MVHS indicating that, due to actions by their staff and students giving false information, she was unjustly and wrongfully incarcerated. (FAC at ¶ 15.) Thus, Defendants had notice of her claims. (Ibid.) However, due to Plaintiff being in custody and declared incompetent, she was not able to obtain legal representation of her claims. (Ibid.)

On 17 August 2020, Plaintiff filed a Judicial Council form complaint against Defendants alleging causes of action for:

1) Negligence (against the District);

2) Deprivation of Freedom of Speech and Expression (against Defendants);

3) Conspiracy to Deprive Freedom of Speech and Expression (against Defendants);

4) Malicious Prosecution (against Defendants);

5) False Light (against the District).

On 14 October 2020, Defendants filed a demurrer to each cause of action in the complaint. The hearing was scheduled for 28 January 2021. Following oral argument, the demurrer was overruled in part and sustained in part.

On 18 February 2021, Plaintiff filed the operative FAC setting forth the same causes of action.

Currently before the court is Defendants’ demurrer to the FAC. Plaintiff filed written opposition. Defendants filed reply papers.

II. Standard on 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.”)

III. Analysis.

A. Untimely Opposition.

As a procedural matter, Plaintiff has filed and served an untimely opposition to the demurrer in violation of Code of Civil Procedure, § 1005(b), which requires all opposing papers to be filed and served at least nine court days before the hearing. No paper may be rejected for filing on the ground that it was untimely submitted for filing.  (Cal. Rules of Court, rule 3.1300(d).)  If the court, in its discretion, refuses to consider a late filed paper, the minutes or order must indicate.  (Ibid.)   

However, Plaintiff did not file and serve her opposition until 20 May 2021, two days beyond the deadline imposed by the Rules of Court .[2] Because there appears to be minimal prejudice to Defendants, the Court will address the merits of the opposition. But, with respect to future filings, Plaintiff’s counsel must comply with all applicable statutes and rules as the court may decline to consider future non-compliant papers.  

A. Grounds for Demurrer.

Defendants argue each cause of action is subject to demurrer for failure to state a valid claim. (Code of Civil Procedure, § 430.10(e).) Defendants also argue the fifth cause of action is barred by the one-year statute of limitations.

B. First Cause of Action – Negligence.

Defendants argue there is no mandatory duty or breach of any such duty to support a claim for negligence.

In opposition, Plaintiff contends a demurrer to the negligence cause of action is improper as the court overruled the demurrer to this claim in its prior order.

1. Successive Demurrers.

The court first takes up the issue of whether a successive demurrer is appropriate here.

In addressing this issue, the opposition refers the court to the doctrine of collateral estoppel.

Collateral estoppel, or issue preclusion, precludes relitigation of issues argued and decided in prior proceedings. (Gabriel v. Wells Fargo Bank, N.A. (2010) 188 Cal.App.4th 547, 556.) “Collateral estoppel precludes the relitigation of an issue only if (1) the issue is identical to an issue decided in a prior proceeding; (2) the issue was actually litigated; (3) the issue was necessarily decided; (4) the decision in the prior proceeding is final and on the merits; and (5) the party against whom collateral estoppel is asserted was a party to the prior proceeding or in privity with a party to the prior proceeding.” (Zenvik v. Superior Court (2008) 159 Cal.App.4th 76, 82.)

“The purposes of collateral estoppel are to prevent inconsistent judgments that undermine the integrity of the judicial system, promote judicial economy by minimizing repetitive litigation, and protect litigants from harassment by vexatious litigation. Collateral estoppel is not an inflexible doctrine. Even if the minimal requirements for its application are satisfied, the doctrine should not be applied if considerations of policy or fairness outweigh the doctrine’s purposes as applied in a particular case.” (Bostick v. Flex Equipment Co., Inc. (2007) 147 Cal.App.4th 80, 97, citations omitted.)

Plaintiff’s reliance on collateral estoppel is unavailing. For example, the issues are not identical as the court did not address whether a mandatory duty exists with respect to negligence in its prior order. Nor do the authorities cited in the opposition address collateral estoppel in the context of a successive demurrer as relevant here.

In fact, courts are split on whether it is proper to file a successive demurrer when a prior demurrer has been sustained as to some causes of action but overruled as to others. On the one hand, in Bennett v. Suncloud (1997) 56 Cal.App.4th 91, 96-97, the Second Appellate District found that when a trial court overrules a demurrer to a particular cause of action, the court is foreclosed from rendering a new determination on the viability of those claims absent a timely motion for reconsideration.

By contrast, both the Fourth District and Sixth District have adopted the opposite position, reasoning that the interests of all parties are advanced by avoiding a trial and reversal for defects in the pleadings. (See Pacific State Enterprises, Inc. v. City of Coachella (1993) 13 Cal.App.4th 1414, 1420; Pavicich v. Santucci (2000) 85 Cal.App.4th 382, 389, fn. 3; Berg & Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1036; Carlton v. Dr. Pepper Snapple Group, Inc. (2014) 228 Cal.App.4th 1200, 1211 [stating filing an amended complaint “opened the door to a demurrer to the entire” pleading, including causes of action that previously survived demurrer].) This court finds persuasive the cases permitting successive demurrers and will therefore consider the instant demurrer.

2. Merits.

“The elements of a negligence cause of action are duty, breach, causation and damages.” (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.)

Defendants argue there is no mandatory duty alleged against the District, a public entity, to support negligence.

“The California Tort Claims Act provides that a public entity is not liable for injury arising from an act or omission except as provided by statute.” (Dept. of Corporations v. Superior Court (2007) 153 Cal.App.4th 916, 925; Government Code, § 815, subd. (a).)

Government Code, § 815.6 contains a three-pronged test for determining whether liability may be imposed on a public entity: (1) an enactment must impose a mandatory, not discretionary duty; (2) the enactment must intend to protect against the kind of risk of injury suffered by the party asserting section 815.6 as a basis for liability; and (3) breach of the mandatory duty must be a proximate cause of the injury suffered. (State of California v. Superior Court (1984) 150 Cal.App.3d 848, 854.)

“First and foremost, application of [Government Code] section 815.6 requires that the enactment at issue be obligatory, rather than merely discretionary or permissive, in its directions to the public entity; it must require, rather than merely authorize or permit, that a particular action be taken or not taken. It is not enough, moreover, that the public entity or officer have been under an obligation to perform a function if the function involves the exercise of discretion.” (Haggis v. City of Los Angeles (2000) 22 Cal.4th 490, 498 (Haggis), citations omitted; see Walt Rankin & Associates, Inc. v. City of Murrieta (2000) 84 Cal.App.4th 605, 614 [“not every statute that uses the word ‘shall’ is obligatory rather than permissive, and there may be factors other than statutory language that may indicate that apparently obligatory language was not intended to foreclose a government entity’s exercise of discretion”]; County of Los Angeles v. Superior Court (2002) 102 Cal.App.4th 627, 639 [“The use of the word ‘shall’ in an enactment does not necessarily create a mandatory duty”].)

“Second, but equally important, [Government Code] section 815.6 requires that the mandatory duty be ‘designed’ to protect against the particular kind of injury the plaintiff suffered.” (Haggis, supra, 22 Cal.4th at p. 499.) A plaintiff must show the injury is one of the consequences which the enacting body sought to prevent through imposing the alleged mandatory duty. (Ibid.) “Our inquiry is this regard goes to the legislative purpose of imposing the duty. That the enactment ‘confers some benefit’ on the class to which plaintiff belongs is not enough; if the benefit is ‘incidental’ to the enactment’s protective purpose, the enactment cannot serve as a predicate for liability under [Government Code] section 815.6. [Citation.]” (Ibid.)

“Whether an enactment creates a mandatory duty is a question of law: ‘Whether a particular statute is intended to impose a mandatory duty, rather than a mere obligation to perform a discretionary function, is a question of statutory interpretation for the courts.’ [Citation.] The enactment’s language ‘is, of course, a most important guide in determining legislative intent, [but] there are unquestionably instances in which other factors will indicate that apparent obligatory language was not intended to foreclose a governmental entity’s or officer’s exercise of discretion.’ [Citation.]” (Haggis, supra, 22 Cal.4th at p. 499.)

Plaintiff alleges in part that the District had a mandatory duty under Education Code, § 44808. (See FAC at ¶¶ 9, 17, 19, 21.) That section provides:

Notwithstanding any other provision of this code, no school district, city or county board of education, county superintendent of schools, or any officer or employee of such district or board shall be responsible or in any way liable for the conduct or safety of any pupil of the public schools at any time when such pupil is not on school property, unless such district, board, or person has undertaken to provide transportation for such pupil to and from the school premises, has undertaken a school—sponsored activity off the premises of such school, has otherwise specifically assumed such responsibility or liability or has failed to exercise reasonable care under the circumstances.

In the event of such a specific undertaking, the district, board, or person shall be liable or responsible for the conduct or safety of any pupil only while such pupil is or should be under the immediate and direct supervision of an employee of such district or board. (Education Code, § 44808.)

Defendants persuasively argue there is no mandatory duty with respect to Education Code, § 44808. In fact, this court has been unable to locate any California legal authority holding that such a mandatory duty exists in connection with this section. Nor has Plaintiff provided any such authority in her opposition.

Even if a mandatory duty exists, no such duty would be applicable to the facts of this case. Under section 44808, the District would not be liable for injuries off campus and after school unless they were the result of the District’s negligence occurring on school grounds or were the result of some specific undertaking by the District, which was then performed in a negligent manner. (Mosley v. San Bernardino City Unified School District (2005) 134 Cal.App.4th 1260, 1264.) But, under this scenario, the District’s liability would only extend to its students, not third parties. (See Guerrero v. South Bay Union School District (2003) 114 Cal.App.4th 264, 268 [a school district owes a duty of care to its students because a special relationship exists between the students and the district]; see also Lackner v. North (2006) 135 Cal.App.4th 1188, 1206 [a school district’s duty to supervise its students does not extend to protect a nonstudent from injuries caused by a student off-campus].) As a consequence, under section 44808, the District cannot be liable for injuries suffered by Plaintiff because of actions taken by the students.

Plaintiff also alleges the District had a mandatory duty under the First Amendment Right to Freedom of Speech, Equal Protection under the Fourteenth Amendment, and the California Constitution. (See FAC at ¶¶ 9, 17, 19, 21.) Defendants persuasively argue these constitutional provisions do not establish any mandatory duty.

“Plaintiffs have not provided any cases, and the Court has not been able to locate any, where a plaintiff successfully alleged a constitutional provision provided the mandatory duty in a claim under [Government Code] Section 815.6. If constitutional provisions were found to create mandatory duties, it would turn Section 815.6 into a general civil rights statute, allowing plaintiffs to sue public entities for civil rights violations without having to satisfy the heightened requirements of 42 U.S.C. § 1983 or California Civil Code, § 52.1. There is nothing in the statutory language or case law to suggest such a broad expansion.”

(McKibben v. McMahon (C.D. Cal. 2015) 2015 U.S. Dist. LEXIS at p. *19; see Gray v. Quicken Loans, Inc. (2021) 61 Cal.App.5th 524, 528, fn. 2 [although not binding, unpublished federal district cases are citable as persuasive authority].)

Again, the opposition does not cite any legal authorities demonstrating a mandatory duty exists with respect to the constitutional provisions alleged in the FAC.

Consequently, the demurrer to the first cause of action is SUSTAINED for failure to state a claim.

C. Second Cause of Action – Deprivation of Freedom of Speech and Expression.

The second cause of action is a claim for deprivation of free speech and expression.

Plaintiff alleges in part that Defendants violated mandatory duties discussed in the first cause of action for negligence. (See FAC at ¶¶ 27-31.) As stated above, Defendants were not subject to any mandatory duties previously examined in connection with the negligence claim. Therefore, these allegations do not provide a basis for relief.

The second cause of action is also brought under 42 U.S.C. § 1983.

Title 42 U.S.C. § 1983 creates a right of action against any person who, “under color of statute, ordinance, regulation, custom, or usage, of any state or territory of the District of Columbia, “ deprives another “of any rights, privileges, or immunities secured by the constitution and laws.” (42 U.S.C. § 1983.)

To state a cause of action under section 1983, the plaintiff must plead that (1) the defendant is acting under color of state law and (2) deprived plaintiff of rights secured by the Constitution or federal statutes. (Park v. Thompson (9th Cir. 2017) 851 F.3d 910, 918.)

Plaintiff appears to allege defendant Goldenkranz was acting under of color of state law. (See FAC at ¶ 27.) As stated above, Plaintiff must also allege she was deprived of rights secured by the Constitution or federal statutes. The “deprivation” allegations are the same as those for breach of mandatory duties which the court rejected in connection with the negligence claim. (Id. at ¶¶22, 28.) As a consequence, those allegations do not provide a basis for relief under section 1983.

Accordingly, the demurrer to the second cause of action is SUSTAINED for failure to state a claim.

D. Third Cause of Action – Conspiracy to Deprive Freedom of Speech.

The third cause of action is a claim for conspiracy to deprive freedom of speech and expression. The claim is brought under 42 U.S.C. § 1985, the California Constitution and the California Education Code.

Title 42 U.S.C. § 1985 creates a private civil remedy for specific instances of conspiracy.

The elements of a section 1985 claim are: (1) the existence of a conspiracy to deprive the plaintiff of the equal protection of the laws; (2) an act in furtherance of the conspiracy; and (3) a resulting injury. (Scott v. Ross (9th Cir. 1998) 140 F.3d 1275, 1284.)

As a preliminary matter, the third cause of action is subject to demurrer for the same reasons as the second cause of action as the factual allegations in both claims appear to be identical. Also, given the court’s ruling on demurrer to the second cause of action, there is no underlying act to support a claim for conspiracy as a matter of law. Nor are there allegations showing the existence of any conspiracy to state a cause of action.

Consequently, the demurrer to the third cause of action is SUSTAINED for failure to state a claim.

E. Fourth Cause of Action – Malicious Prosecution.

A plaintiff in a malicious prosecution action must plead (and prove) that the prior action: (1) was commenced by or at the direction of the defendant and was pursued to a legal termination in plaintiff’s favor; (2) was brought without probable cause; and (3) was initiated with malice. (Paiva v. Nichols (2008) 168 Cal.App.4th 1007, 1018.)

Defendants persuasively argue that defendant Goldenkranz, as a District employee, is immune from liability for malicious prosecution. (See Government Code, § 821.6; see also Asgari v. City of Los Angeles (1997) 15 Cal.4th 744, 756-757 [California law grants immunity to any “public employee” for damages arising from malicious prosecution; section 821.6 is not restricted to legally trained personnel but applies to all employees of a public entity].) As defendant Goldenkranz is immune from liability, so too is the District. (See Government Code, § 815.2, subd. (b) [“Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.”].) Plaintiff appears to concede this argument as she fails to address it in her opposition.

Accordingly, the demurrer to the fourth cause of action is SUSTAINED for failure to state a claim.

F. Fifth Cause of Action – False Light.

Defendants argue the fifth cause of action is subject to demurrer because the claim is barred by the statute of limitations and fails to allege the essential elements for false light.

A statute of limitations prescribes the period “beyond which a plaintiff may not bring a cause of action. [Citations.]” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806.) It “strikes a balance among conflicting interests. If it is unfair to bar a plaintiff from recovering on a meritorious claim, it is also unfair to require a defendant to defend against possibly false allegations concerning long-forgotten events, when important evidence may no longer be available.” (Pooshs v. Philip Morris USA, Inc. (2011) 51 Cal.4th 788, 797.)

“A plaintiff must bring a claim within the limitations period after accrual of the cause of action. In other words, statutes of limitation do not begin to run until a cause of action accrues. Generally speaking, a cause of action accrues at the time when the cause of action is complete with all its elements.” (V.C. v. Los Angeles Unified School Dist. (2006) 139 Cal.App.4th 499, 509-510, internal citations and quotation marks omitted.)

A court may sustain a demurrer on the ground of failure to state sufficient facts if “the complaint shows on its face the statute [of limitations] bars the action.” (E-Fab, Inc. v. Accountants, Inc. Services (2007) 153 Cal.App.4th 1308, 1315 (E-Fab, Inc.).) A demurrer is not sustainable if there is only a possibility the cause of action is time-barred; the statute of limitations defense must be clearly and affirmatively apparent from the allegations in the pleading. (Id. at pp. 1315-1316.)

When evaluating whether a claim is time-barred, a court must determine (1) which statute of limitations applies and (2) when the claim accrued. (E-Fab, Inc., supra, 153 Cal.App.4th at p. 1316.)

The false light cause of action is subject to a one-year statute of limitations. (See Wiener v. Super. Ct. (1976) 58 Cal.App.3d 525 [one-year statute of limitations for libel and slander is applicable to claims for invasion of privacy].) Similar to libel, a cause of action for false light accrues when the defamatory matter is published. (See Bernson v. Browning-Ferris Industries (1994) 7 Cal.4th 926, 931.) As to this claim, Plaintiff alleges:

On or about 10 October 2017 and 18 October 2017, Defendants publicized letters in its El Estoque Magazine that showed Plaintiff in a false light by claiming that she violated the Federal Education and Privacy Rights Act, threatened the life of a student, trespassed on school property, and otherwise committed crimes.

(FAC at ¶ 44.)

Based on these allegations, Plaintiff was required to file suit within one-year of 18 October 2017. Plaintiff did not file suit until 17 August 2020, almost three years after the incident.

In opposition, Plaintiff insists the statute of limitations was tolled as she was declared incompetent from the period of 2017 until 5 December 2018. (See OPP at p. 10:15-19; FAC at ¶¶ 14, 18.) Thus, Plaintiff argues the statute of limitations was tolled until she was restored to competency and released from custody in 2018. (See OPP at p. 10:19-21.) But, even accepting this argument alongside allegations in the FAC, Plaintiff would still need to file her false light claim within one-year of December 2018. She did not and therefore the claim is deemed untimely.

Therefore, the demurrer to the fifth cause of action is SUSTAINED for failure to state a claim. Having sustained the motion on this ground, the court declines to address the alternative ground for demurrer.

G. Leave to Amend.

Should the Court sustain the demurrer, Plaintiff requests further leave to amend.

“The plaintiff bears the burden of proving there is a reasonable possibility of amendment.” (Rakestraw v. California Physicians’ Service (2000) 81 Cal.App.4th 39, 43 (Rakestraw).) To satisfy this burden, a plaintiff “must show in what manner he (or she) can amend his (or her) complaint and how that amendment will change the legal effect of his pleading.”  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.)  “Plaintiff must clearly and specifically set forth the ‘applicable substantive law’ [citation] and the legal basis for amendment, i.e., the elements of the cause of action and authority for it.  Further, plaintiff must set forth factual allegations that sufficiently state all required elements of that cause of action.  [Citations.]  Allegations must be factual and specific, not vague or conclusionary.” (Rakestraw, supra, at pp. 43-44.)  

The court here has already afforded Plaintiff an opportunity to amend and she has not yet been able to state a valid cause of action. Nor does Plaintiff explain how any such amendment will change the legal effect of her pleading. As a consequence, the court finds no basis for further amendment.    

Accordingly, leave to amend is DENIED.  

IV. Tentative Ruling.

The tentative ruling was duly posted.

V. Case Management.

There are no future dates.

VI. Conclusion and Order.

The demurrer to the FAC is SUSTAINED WITHOUT LEAVE TO AMEND for failure to state a claim.

|___________________________ |______________________________________________ |

|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. (Cal. Rules of Court, Rule 3.714(b)(1)(C) and (b)(2)(C).

[2] In reply, defense counsel agreed to a one-day extension for Plaintiff to file opposition on 19 May 2021. (See Reply at p. 1:23-24.)

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TENTATIVE RULING PROTOCOL

Law & Motion matters are heard every Tuesday and Thursday at 9:00 a.m. Tentative rulings will be accessible on after 2:00 p.m. on the court date preceding the scheduled hearing at:

https: /wvvw.online services/tentatives/tentative rulings_Dept20.shtml

Tentative rulings will become Orders of the Court unless contested. See California Rules of Court, rules 3.1308(a)(l) and 3.1312.

To arrange an appearance to contest a tentative ruling, notify the Court at (408) 808.6856 before 4:00 PM on the court dates before the hearing. You may make your notification to the Court by leaving a message when prompted to do so at the end of the recorded greeting. When you leave your message, state only the case number, case name, the name of the attorney, telephone number, and a brief statement as to the portion of the tentative ruling to which objection is taken. Messages should be brief and notify the portion of the ruling to which objection is taken. Please try to keep the message under 30 seconds.

You must also notify opposing counsel. You do not need to call or leave a message if you are not contesting the tentative ruling.

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