Superior Court, State of California
DATE: Tuesday, 09 May 2023
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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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) (1984) 154 Cal.App.3d 533.). Counsel should use good quality equipment and with sufficient bandwith. Cellphones are very low quality in using a virtual platform. Please use the video function when accessing the Zoom platform. The Court expects to see the faces of the parties appearing on a virtual platform as opposed to listening to a disembodied voice.
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 8(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 malke 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.”
CIVILITY.
In the 48 years that this Judge has been involved with the legal profession, the discussion of the decline in civility in the legal profession has always been one of the top topics of continuing education classes.
This Court is aware of a study being undertaken led by Justice Brian Currey and involving various lawyer groups to redefine rules of civility. This Judge has told Justice Currey that the lack of civility is due more to the inability or unwillingness of judicial officers to enforce the existing rules.
The parties are forewarned that this Court may consider the imposition of sanctions against the party or attorney who engages in disruptive and discourteous behavior during the pendency of this litigation.
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 |22CV402522 |Teresa Guandulain v. Town Taxi, Inc. et al. |Order On Defendants Planet Auto Wholesale And Planet Auto Self Serve’s|
| | | |Demurrer To Plaintiff Teresa Sandra Guandulain’s Form Complaint. |
| | | |Defendant’s demurrer is OVERRULED in its entirety. Defendants are to |
| | | |ANSWER the complaint within 10 days of the filing and service of this |
| | | |order. |
| | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 2 |22CV402699 |David Kissner v. Lisa Fraser et al. |Special Motion to Strike the Seventh and Eighth Causes of Action in |
| | | |the Complaint by Defendants Lisa Fraser, Ben Abeln, Deana A. Arnold, |
| | | |Erin Asheghian, Ron Bourque, Kevin Grier, Charlotte Khandelwal, Billy |
| | | |Martin, and Loma Prieta Joint Union School District. |
| | | |Defendants’ special motion to strike the seventh and eighth causes of |
| | | |action is GRANTED in its entirety. Plaintiff’s request for attorney’s|
| | | |fees is DENIED. |
| | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 3 |22CV404883 |Imelda Jiminez v. Robert T. Bledsoe; Bledsoe Family |Demurrer Of Defendant Bledsoe Family Properties, LLC To Plaintiff’s |
| | |Properties, LLC. |First Amended Complaint. |
| | | |Plaintiff has not filed opposition. |
| | | |The demurrer is SUSTAINED with 10 days leave to amend. |
| | | |NO FORMAL TENTATIVE RULING. |
|LINE 4 |22CV404883 |Imelda Jiminez v. Robert T. Bledsoe; Bledsoe Family |Motion Of Defendant Bledsoe Family Properties, LLC To Strike Portions |
| | |Properties, LLC. |of Plaintiff’s First Amended Complaint. |
| | | |Plaintiff has not filed opposition. |
| | | |The motion to strike is GRANTED with 10 days leave to amend. |
| | | |NO FORMAL TENTATIVE RULING. |
|LINE 5 |22CV394071 |Lynda Lazar v. Mitzi Buchannan; Agnes Neasham; Darin |Motion of Defendants for Summary Judgment. |
| | |Neasham. |Continued from 06 April 2023. |
| | | |At the last hearing, the Court did not post the tentative ruling. The |
| | | |Court observed that there was no opposition on file and questioned the|
| | | |sufficiency of the notice of the motion. Mr. Wintle appeared for |
| | | |Plaintiff and Ms. Korte appeared for the Defendants. |
| | | |Plaintiff still has not filed opposition to the motion. The motion |
| | | |otherwise appears to be in good form and is GRANTED. |
| | | |NO FORMAL TENTATIVE RULING. |
|LINE 6 |21CV379114 |Vahid Assadi v. Mahsa Manavi; Eric Sadahi |Motion Of Eric Sadati Erroneously Sued As Eric Sadati) To Compel |
| | | |Plaintiff To Serve Verified Responses To Defendant’s Second Set Of |
| | | |Special Interrogatories And For Monetary Sanctions. |
| | | |On 05 April 2023 counsel for plaintiff filed a dismissal with |
| | | |prejudice as to defendant Eric Sadahi. Is the motion MOOT? |
| | | |NO TENTATIVE RULING. |
|LINE 7 |22CV396794 |Marina Tallis v. Missy Morris |Motion Of Plaintiff To Compel Defendant To Provide Further Responses |
| | | |To Request For Production Of Documents. |
| | | |The request of plaintiff to compel defendant to provide herself for |
| | | |records of her telephone calls for the 9 hour period of time from 2 |
| | | |hours prior to the accident 2 to 7 hours subsequent is DENIED as |
| | | |irrelevant. Defense counsel has agreed to provide defendant’s cell |
| | | |phone records from one hour before the accident and one hour after the|
| | | |accident. |
| | | |The motion to compel defendant to provide further responses to request|
| | | |number 6 is MOOT. |
| | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 8 |16CV301003 |RSR Unlimited, Inc. v. Technology Resource Group, Inc.|Motion Of John F. Bradley, Esq. To Be Relieved As Counsel. |
| | | |The motion of Mr. Bradley to be relieved as counsel for plaintiffs is |
| | | |GRANTED. The Order will take effect upon the filing and service of |
| | | |the executed order of this Court and an order that is written on Form |
| | | |MC-053 and that otherwise complies with California Rules of Court, |
| | | |rule 3.1362(e). Counsel should note that there are no future court |
| | | |dates in ¶ 8 pf the proposed order form. Therefore, the date of the |
| | | |renewal of judgment should be noted. Counsel should submit the |
| | | |proposed order to this Department via the Clerk’s efiling queue. |
| | | |NO FORMAL TENTATIVE RULING. |
|LINE 9 |20CV367514 |Absolute Resolutions in Investments, LLC v. Zhuo Cui. |Motion Of Plaintiff For Entering Judgment Pursuant To Defendant’s |
| | | |Default Under Settlement And Release Agreement. |
| | | |Defendant did not oppose the motion. |
| | | |The motion is GRANTED. This Court will enter judgment in favor of |
| | | |plaintiff and against defendant as follows: principal in the amount |
| | | |of$15,448.24 and court cost[s] in the amount of $505.00 for the total |
| | | |amount of $15,953.24). |
| | | |Counsel for moving party is to prepare an appropriate judgment and |
| | | |submitted to this Department through the clerk’s e-filing queue for |
| | | |execution. |
| | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 10 |21CV379978 |Bank of America, N.A. v. Ana María García García. |Motion Of Plaintiff For Entering Judgment Pursuant To Defendant’s |
| | | |Default Under Settlement And Release Agreement. |
| | | |Defendant did not oppose the motion. |
| | | |The motion is GRANTED. This Court will enter judgment in favor of |
| | | |plaintiff and against defendant as follows: total debt of $2,780.77, |
| | | |costs in the amount of $314.47, and $60.00 for the filing of this |
| | | |motion, less $1,513.00 for the payments made to date, for a total |
| | | |judgment sum of $1,642.24. |
| | | |Counsel for moving party is to prepare an appropriate judgment and |
| | | |submitted to this Department through the clerk’s e-filing queue for |
| | | |execution. |
| | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 11 |21CV386953 |María Del Carmen Ríos Rodríguez; Alejo Velasco |Motion Of Plaintiffs For Entering Judgment Pursuant To Defendant’s |
| | |Carrillo v. Guadalupe Villalobos-Vega, a.k.a. Lupe |Default Under Settlement And Release Agreement. |
| | |Villalobos. |Defendant has opposed the motion. |
| | | |Is the matter moot? |
| | | |NO TENTATIVE RULING. The parties are to use the Tentative Ruling |
| | | |Protocol to advise this Court if they wish to submit on the papers |
| | | |presented or appear and argue the matter on the merits |
|LINE 12 |22CV396629 |Susan Abdallah v. SOL Healthcare LLC |Defendant’s Petition to Compel Arbitration and Stay Court Proceedings.|
| | | |Counsel are reminded about the rules concerning page limits and proper|
| | | |titles to documents. |
| | | |In opposition, plaintiff argues Susan Abdallah did not have authority |
| | | |to enter into the purported Arbitration Agreement on behalf of |
| | | |Georgette Abdelmessih because she did not obtain Power of Attorney |
| | | |over Georgette Abdelmessih until exactly three and a half years after |
| | | |the purported Arbitration Agreement was signed. |
| | | |Plaintiff also argues that the Agreement at issue is nenforceable, and|
| | | |Defendant has not presented competent evidence 0f a binding |
| | | |arbitration agreement. |
| | | |NO FORMAL TENTATIVE RULING. The parties should use the Tentative |
| | | |Ruling Protocol to advise this Court if they wish to submit on the |
| | | |papers presented or appear to argue the merits of the motion. |
|LINE 13 |2014-1-CV-266164 |American Contractors Indemnity Co. v. Tracey A. Roman;|Motion of Judgment Creditor for an Order to Garnish Wages of Judgment |
| | |Vincent Roman, Jr. |Creditors. |
| | | |Continued from 04 April 2023. |
| | | |No opposition to the motion has been filed. |
| | | |The motion is GRANTED. Counsel for judgment creditor is to submit a |
| | | |proposed order to this Department via the clerk’s e-filing queue. |
| | | |NO FORMAL 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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Calendar Line 1
| | |
|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.: |22CV402522 |Teresa Guandulain v. Town Taxi, Inc. et al. |
|DATE: 09 May 2023 |TIME: 9:00 AM |LINE NUMBER: 01 |
|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 08 May 2023. Please specify the |
|issue to be contested when calling the Court and Counsel. |
|---oooOooo--- |
|Order On Defendants Planet Auto Wholesale And Planet Auto Self Serve’s |
|Demurrer To Plaintiff Teresa Sandra Guandulain’s Form Complaint. |
I. Statement of Facts.
On 5 August 2022,[1] plaintiff Teresa Sandra Guandulain (“Plaintiff”) filed a form complaint against defendants Town Taxi, Inc., S.F. Town Taxi, Inc., Rafael Machkovsky, Planet Auto Wholesale, Planet Auto Self Serve, Melissa Delores Troche (“Troche”), and Does 1-100.
According to the allegations in the form complaint, Town Taxi, Inc., S.F. Town Taxi, Inc., and Rafael Machkovsky (“Employer Defendants”) employed Troche, who operated a motor vehicle in the course of her employment. (See Compl. ¶ MV-2, subd. (b).) The Employer Defendants and Planet Auto Wholesale and Planet Auto Self Serve owned the subject motor vehicle and negligently entrusted Troche with the operation of said motor vehicle. (See Compl. ¶ MV-2, subd. (c)-(d); see also Compl. p. 6, ¶ 3.)
Plaintiff alleges on 27 August 2020, Troche was incompetent and/or unfit to operate the subject vehicle, resulting in harm to Plaintiff. (See Compl. ¶ MV-2, subd. (a); see also Compl. p. 6 ¶¶ 4, 6.)
Plaintiff’s complaint states causes of action for:
1) Motor Vehicle Collision;
2) General Negligence; and
3) Negligent Entrustment of a Motor Vehicle.
On 30 January 2023, Planet Auto Wholesale and Planet Auto Self Serve (collectively, “Defendants”) filed a demurrer to each cause of action on the grounds of misjoinder, uncertainty, and failing to allege sufficient facts.
II. Demurrers In General.
A. Introduction.
In ruling on a demurrer the Court treats it “as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Piccinini v. Cal. Emergency Management Agency (2014) 226 Cal.App.4th 685, 688, citing Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “A demurrer tests only the legal sufficiency of the pleading. 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.” (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213-214.) The only issue involved in a demurrer is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action. (Griffith v. Department of Public Works (1956) 141 Cal.App.2d 376, 381.)
B. Defendants’ Request for Judicial Notice.
“Judicial notice is the recognition and acceptance by the court, for use by the trier of fact or by the court, of the existence of a matter of law or fact that is relevant to an issue in the action without requiring formal proof of the matter.” (Poseidon Development, Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117.)
In support of their demurrer, Defendants request the Court take judicial notice of the following items:
1) Plaintiff’s Complaint, filed 5 August 2022 (Ex. 1);
2) Articles of Organization for KDCGlobal, Inc. (Ex. 2);
3) Sacramento County Fictitious Business Name Search Results: Planet Auto Wholesale (Ex. 3); and
4) Sacramento County Fictitious Business Name Search Results: Planet Auto Self-Serve (Ex. 4).
The request for judicial notice (“RJN”) of Ex. 1 is GRANTED. The exhibit is a court document and subject to judicial notice under Evidence Code section 452, subd. (d). (See Stepan v. Garcia (1974) 43 Cal.App.3d 497, 500 [the court may take judicial notice of its own files].)
The RJN of Ex. 2 is DENIED. A court may take judicial notice of the official acts of the legislative, executive, and judicial departments of the United States and any state pursuant to Evidence Code section 452, subd. (c). However, a court may not take judicial notice of “materials prepared by private parties and merely on file with state agencies,” such as articles of incorporation. (See People v. Thacker (1985) 175 Cal.App.3d 594, 598-599.)
Here, the articles of organization constitute material prepared by a private party and merely on file with the Secretary of State and are thus, not subject to judicial notice.
The RJN of Ex. 3 is DENIED. A court need not take judicial notice of a matter unless it “is necessary, helpful, or relevant.” (See Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 748, fn. 6; see also Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301 [judicial notice is confined to those matters which are relevant to the issue at hand].) Defendants have not cited to Ex. 3 in their demurrer and the Court does not find it to be relevant to resolving the issues raised by demurrer.[2]
The RJN of Ex. 4 is DENIED. The Court does not find it to be noticeable under any provision of Evidence Code section 451 or 452. The document is neither certified nor an official act of the legislative, executive, or judicial departments of this state. Additionally, it is not a fact or proposition that is not reasonably subject to dispute. (See Gould v. Md. Sound Indus. (1995) 31 Cal.App.4th 1137, 1145 [“[j]udicial notice under Evidence Code section 452, subdivision (h) is intended to cover facts which are not reasonably subject to dispute and are easily verified. These include, for example, facts which are widely accepted as established by experts and specialists in the natural, physical, and social sciences which can be verified by reference to treatises, encyclopedias, almanacs and the like or by persons learned in the subject matter”].)
Moreover, the opposition disputes the authenticity of the document as Plaintiff contends “there may be similarly named fictitious names in other counties across California.” (Plaintiff’s Opposition (“Opp.”), p. 2:20-22; see also Unruh-Haxton v. Regents of University of California (2008) 162 Cal.App.4th 343, 365 [judicial notice of matters upon demurrer will be dispositive only in those instances where there is not or cannot be a factual dispute concerning that which is sought to be judicially noticed].) Thus, the Court declines to take judicial notice of Ex. 4.
III. Analysis.
A. Defect of Parties.
Defendants argue the names used to sue KDCGlobal, Inc. (“KDCGlobal”) are defective because Plaintiff used KDCGlobal’s fictitious names Planet Auto Wholesale and Planet Auto Self-Service. (Defendant’s Memo of Points & Authorities in Support of Demurrer (“Dem. MPA”), p. 4:24-27.) Defendants also assert the fictitious name Planet Auto Self-Service was not used in August 2020 making “liability impossible under this name or the real name of defendant.” (Id. at pp. 4:28-5:2.)
In opposition, Plaintiff contends fictitious business records outside of a county of Santa Clara should not be considered and “Plaintiff’s investigation has revealed that one or both Defendants were the named owner of the subject vehicle, not KDCGlobal, Inc.” (See Opp., p. 2:26-28.)
A party may bring a special demurrer on the ground that there is a defect or misjoinder of parties. (See Code Civ. Proc. § 430.10, subd. (d).) However, “[d]emurrers on the ground of misjoinder lie only when the defect appears on the face of the complaint or matters judicially noticed.” (Royal Surplus Lines, Inc. v. Ranger Ins. Co. (2002) 100 Cal.App.4th 193, 198.)
The Court declines to address Plaintiff’s argument because evidence of any investigation conducted by Plaintiff does not appear on the face of the complaint and is not attached to the complaint as an exhibit. However, Defendants’ argument relies solely on Ex. 4 of their RJN. As stated above, the Court has declined to take judicial notice of Ex. 4 and a demurrer tests only the pleadings and not evidence or other extrinsic matters. (See Verizon California Inc. v. Board of Equalization (2014) 230 Cal.App.4th 666, 680 [“‘demurrer lies only for defects appearing on the face of the pleadings and a defendant may not make allegations of defect or misjoinder of parties in the demurrer if the pleadings do not disclose the existence of the matter relied; such objection must be taken by plea or answer’”]; see also SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905 [a demurrer “lies only where the defects appear on the face of the pleading or are judicially noticed”]; see also Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 114-115 [court cannot by means of judicial notice convert a demurrer into an incomplete evidentiary hearing in which the demurring party can present documentary evidence and the opposing party is bound by what that evidence appears to show].) As such, the Court will not sustain the demurrer for defect of parties.
For the foregoing reasons, the demurrer on the ground of misjoinder is OVERRULED.
B. Uncertainty.
Defendants specially demur to all causes of action on the ground the allegations are uncertain because Plaintiff has not provided a description of the subject vehicle. (See Dem. MPA p. 5:3-4.)
“‘A demurrer for uncertainty will not lie where the ambiguous facts alleged are presumptively within the knowledge of the demurring party. [Citations.] A special demurrer should not be sustained if the allegations are sufficiently clear to apprise the defendant of the issues that must be met, even if the allegations of the complaint may not be as clear and as detailed as might be desired. [Citations.] . . . [a] demurrer for uncertainty will not lie as to even uncertain and ambiguous allegations, if such allegations refer to immaterial matters. In such event, they will be treated as surplusage and disregarded. [Citations.]’” (Gonzales v. State of California (1977) 68 Cal.App.3d 621, 631.)
“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.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616; see also Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135 [“demurrers for uncertainty are disfavored and are granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond”].)
In this case, while the complaint does not contain a description of the subject vehicle, it alleges Defendants owned the vehicle and entrusted Troche with the vehicle. (See Compl. ¶¶ MV-2, subd. (c)-(d); p. 6 ¶ 3.)
While the allegations in the complaint are stated generally, they are sufficient to apprise Defendants of the nature of each cause of action. (See Berkley v. Dowds (2007) 152 Cal.App.4th 518, 527 [“negligence may be alleged in general germs”]; see also Guilliams v. Hollywood Hospital (1941) 18 Cal.2d 97, 101.)
Moreover, it is clear from Defendants’ arguments they are aware of what each cause of action at least attempts to allege and there is no true uncertainty sufficient to sustain a demurrer. The test on such a demurrer is whether the cause of action states any valid claim entitling the plaintiff to relief. Thus, the plaintiff may be mistaken as to the nature of the case, or the legal theory on which she can prevail, but if the essential facts of some valid cause of action are alleged, the cause of action survives a general demurrer. [See Weil & Brown (2002) Civil Procedure Before Trial, sec. 7:41, p. 7-18 (citing Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38; Adelman v. Associated international insurance Company (2001) 90 Cal.App.4th 352, 359).]
Any ambiguity concerning the specific facts of the vehicle can be clarified through discovery. (See e.g., Chen v. Berenjian (2019) 33 Cal.App.5th 811, 822 [allegation defendant owned stereo speakers “sufficiently alleges the stereo speakers belonged to [defendant]. Any ambiguity can be clarified through discovery”].)
Accordingly, the demurrer on the ground the causes of action are uncertain is OVERRULED.
C. Contradictory Facts.
Defendants argue Plaintiff’s complaint is contradictory because she alleges Defendants “operated a motor vehicle on the roadway” and that Defendants entrusted or employed the defendant. (Dem. MPA p. 5:9-12.)
Plaintiff alleges Troche was the defendant who “operated and/or controlled” a motor vehicle (see Compl. ¶¶ MV-2(a) & (e); p. 6 ¶¶ 2, 6) and that defendants Town Taxi, Inc., S.F. Town Taxi, Inc., Rafael Machkovsky, Planet Auto Wholesale, and Planet Auto Self Service entrusted defendant Troche with the vehicle (see Compl. ¶¶ MV-2(c)-(d); p. 6 ¶¶ 3, 5). In other words, one named defendant operated the vehicle while other named defendants entrusted or employed the vehicle-operating defendant. These allegations are not inconsistent or contradictory.
Therefore, the demurrer on the ground the complaint’s allegations are contradictory is OVERRULED.
IV. Tentative Ruling.
The tentative ruling was duly posted.
V. Case Management.
The parties should get discovery underway and start discussions concerning alternate dispute resolution.
A case management conference is scheduled for 27 June 2023 at 10:00 AM in this Department. This Court is considering at that CMC the setting a trial date in February of 2024.
VI. Conclusion and Order.
Defendant’s demurrer is OVERRULED in its entirety. Defendants are to ANSWER the complaint within 10 days of the filing and service of this order.
|___________________________ |______________________________________________ |
|DATED: |HON. SOCRATES PETER MANOUKIAN |
| |Judge Of The Superior Court |
| |County Of Santa Clara |
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|SUPERIOR COURT, STATE OF CALIFORNIA | |
|COUNTY OF SANTA CLARA | |
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|DEPARTMENT 20 | |
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|161 North First Street, San Jose, CA 95113 | |
|408.882.2320 · 408.882.2296 (fax) | |
|smanoukian@ | |
| |(For Clerk's Use Only) |
|CASE NO.: |22CV402699 |David M. Kissner v. Loma Prieta Joint Union School District, et al. |
|DATE: 9 May 2023 |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 8 May 2023. Please specify the issue to be contested when calling the Court and Counsel.
Order on Special Motion to Strike the Seventh and Eighth Causes of Action in the Complaint by Defendants Lisa Fraser, Ben Abeln, Deana A. Arnold, Erin Asheghian, Ron Bourque, Kevin Grier, Charlotte Khandelwal, Billy Martin, and Loma Prieta Joint Union School District.
I. Statement of Facts.
This case involves constitutional, employment, and defamation-related claims by a teacher against a school district and various individuals affiliated with the district.
Defendant Loma Prieta Joint Union School District (“District”) serves over 400 students in grades TK-8 and administers just two schools, Loma Prieta Elementary School (K-5) and CT English Middle School (“CT Middle”) (6-8). (Complaint at ¶ 25.)
Defendant Lisa Fraser (“Fraser”) was the former Superintendent of the District’s Board of Trustees, succeeded later by defendant Kevin Grier in that position. (Complaint at ¶¶ 14-15.)
Defendant Billy Martin (“Martin”) is the current principal of the District. (Complaint at ¶ 16.)
Defendants Deana A. Arnold, Ben Abeln, Ron Bourque, and Erin Asheghian are current members of the District’s Board of Trustees. (Complaint at ¶¶ 17-20.) Defendant Charlotte Khandelwal was a former member of the District’s Board of Trustees.[3] (Id. at ¶ 21.)
Beginning in 2012, plaintiff David M. Kissner (“Plaintiff” or “Kissner”) was employed as a math and science teacher at CT Middle in Los Gatos, California. (Complaint at ¶ 7.) Plaintiff also volunteered his time to coach wrestling. (Id. at ¶ 26.)
On 14 February 2018, Marjory Stoneman Douglas High School in Parkland, Florida, became the scene of a deadly mass shooting carried out by a 19-year old former student. (Complaint at ¶ 51.) In the wake of the tragedy, an anti-gun campaign aimed at staging nationwide student walkouts throughout America’s schools was organized. (Ibid.)
On 14 March 2018, the date of the first nationwide walkout, the District announced it would allow students to participate in the political demonstration without consequence. (Complaint at ¶ 61.) Plaintiff had planned a quiz for his class that day and informed his students that leaving class would result in a failing grade on the quiz. (Id. at ¶ 62.) Plaintiff believed any such absence from class to be a “class cut” in violation of District policy, state law, and other requirements.[4] (Ibid.) Despite giving warnings to students and parents, Plaintiff entered failing grades to three students who walked out and participated in the demonstration. (Id. at ¶ 82.) Thereafter, Plaintiff and his wife were criticized and subjected to harassment, threats, and vulgar messages. (Id. at ¶¶ 87-90.)
In late March 2018, the District launched an investigation into Plaintiff’s opposition to the student walkout to determine whether he had violated District policy. (Complaint at ¶ 104.)
On 20 March 2018, just days after the walkout and public uproar over Plaintiff’s grading decision, the District received an anonymous letter falsely accusing him of child “grooming” behavior.[5] (Complaint at ¶ 106.)
On 19 April 2018, the District began a formal investigation “to determine the facts and circumstances regarding how the District and District staff conducted themselves” related to the walkout. (Complaint at ¶ 129.) The District retained Patricia Elliot, an independent investigator and attorney to examine Plaintiff’s role in the controversial walkout. (Ibid.) She later prepared a report of her investigation that is dated 23 June 2018. (Id. at ¶ 130.) Plaintiff alleges the investigation’s real objective was to provide the District with a rationale for terminating or discipling him in some manner. (Id. at ¶ 132.)
On 30 April 2018, the District notified Plaintiff he was being placed on paid administrative leave pending an investigation into “inappropriate interactions with minors.” (Complaint at ¶ 108.) Plaintiff denies ever singling out minors for sexual, immoral, unethical or otherwise improper interactions. (Id. at ¶ 110.)
As a result of hostility and attacks on his character following the walkout, Plaintiff developed anxiety that included nausea, headaches, and a sense of despair. (Complaint at ¶¶ 119-120.) As a consequence, his doctor diagnosed him with “Adjustment Disorder with Anxious and Depressed Mood” and prescribed him to remain on medical leave until the end of the school year. (Id. at ¶ 122.) On 23 May 2018, Plaintiff submitted his request for medical leave. (Ibid.)
Also, on 23 May 2018, Plaintiff filed a workplace retaliation complaint with his employer. (Complaint at ¶ 123.) The complaint alleged, among other things, that staff had shunned and ostracized Plaintiff after the walkout; attacked his moral character; sought to shame and embarrass him; proclaimed they would never forgive him; demanded his resignation; and solicited the board for harsh discipline against him. (Id. at ¶ 124.) Ultimately, the District hired an investigator to look into Plaintiff’s retaliation complaint. (Id. at ¶ 128.) During the next school year, following multiple requests for information, the District told Plaintiff that they found his complaint to be unsubstantiated. (Ibid.)
On 12 February 2021, the District and Individual Defendants (collectively, “Defendants”) served Plaintiff with a Notice of Proposed Intent to Dismiss with Statement of Charges (“Statement”). (Complaint at ¶ 180.) The Statement alleged five statutory causes for dismissal, including (1) immoral conduct, (2) unprofessional conduct, (3) unsatisfactory performance, (4) persistent violation of rules or regulations of the board, and (5) evident fitness. (Id. at ¶ 203.) In particular, the Statement falsely asserted as fact that Plaintiff was guilty of “Potential grooming behavior, such as: singling out a minor and being alone with a minor … asking about sex/sexual encounters; and posting images of youth partially unclothed on the internet.” (Id. at ¶ 181.) The allegations derived exclusively from the anonymous letter sent to the District in the heat of the 2018 walkout controversy, which were investigated, and where no evidence was found to substantiate the allegations. (Ibid.)
On 22 March 2021, Plaintiff, through his counsel, demanded the District dismiss the false statement accusing him of potential grooming behavior. (Complaint at ¶ 183.) But, counsel for the District never responded to the demand, never sought to meet and confer regarding it, and authorized the false and defamatory Statement’s release to the public. (Id. at ¶ 184.) The charges were promptly republished by members of the public and subjected Plaintiff to shame and humiliation, threats, intimidation, mockery and derision by the community. (Id. at ¶ 191.)
On 11 June 2021, Defendants served Plaintiff with an Amended Notice of Proposed Intent to Dismiss with Statement of Charges once again falsely stating Plaintiff engaged in potential grooming behavior. (Complaint at ¶ 192.) These charges were also republished by members of the public and subjected Plaintiff to further shame, humiliation, threats, intimidation, mockery and derision by the community. (Id. at ¶ 198.)
Subsequent to the release of the defamatory charges, the Individual Defendants testified during dismissal proceedings that they had no evidence supporting such charges, and that they were aware of the statutory protections preventing their publication. (Complaint at ¶ 199.) The District dropped the unfounded allegations at the dismissal proceedings. (Id. at ¶ 200.)
On 12 February 2021, the District notified Plaintiff of its decision to terminate him. (Complaint at ¶ 202.) On 22 April 2021, Plaintiff requested a hearing. (Ibid.) The hearing concluded in December 2021. (Ibid.)
Plaintiff’s loss of employment and harm to his reputation has forced him to move out of California to avoid the stigma imposed on him by the grooming allegations. (Complaint at ¶ 239.) But, despite leaving the state, the stigma follows him wherever he goes. (Ibid.)
On 29 July 2022, Plaintiff filed a complaint against Defendants alleging causes of action for:
1) First Amendment Free Speech Clause (42 U.S.C., § 1983); California Constitution Free Speech (Art. I, § 2);
2) Fourteenth Amendment Due Process (42 U.S.C., § 1983); California Constitution Due Process (Art I, § 7);
3) Fourteenth Amendment Equal Protection (42 U.S.C., § 1983); California Constitution Equal Protection (Art. I, § 7);
4) Civil Rights Conspiracy (42 U.S.C., § 1983);
5) Civil Rights Defamation (42 U.S.C., § 1983);
6) Wrongful Termination;
7) Defamation Per Se;
8) False Light Invasion of Privacy;
9) Negligence;
10) Intentional Infliction of Emotional Distress;
11) Breach of Contract;
12) Discrimination and Retaliation for Engaging in Protected Activity (Lab. Code, §§ 98.6 & 1101-1102).[6]
Currently before the court is Defendants’ special motion to strike the seventh and eighth causes of action in the complaint. Plaintiff filed written opposition. Defendants filed reply papers and evidentiary objections.
A further case management conference is set for 6 July 2023.
II. Defendants’ Evidentiary Objections.
In reply, Defendants filed objections to evidence submitted in Plaintiff’s opposition. The court SUSTAINS Objection Nos. 1-6 to Plaintiff’s declaration on the grounds of speculation, lack of foundation and hearsay. The court declines to address the remaining objections which are not material to the outcome of the motion for reasons explained below.
III. Special Motions to Strike in General.
Code of Civil Procedure section 425.16 provides for a “special motion to strike” when a plaintiff’s claims arise from certain acts constituting the exercise of the constitutional rights of freedom of speech and petition for the redress of grievances, “unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (Code of Civil Procedure, § 425.16, subdivisions. (a) & (b)(1).)
“Consistent with the statutory scheme, ruling on an anti-SLAPP motion involves a two-step procedure. First, the moving defendant must identify ‘all allegations of protected activity’ and show that the challenged claim arises from that activity. [Citations.] Second, if the defendant makes such a showing, the ‘burden shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated.’ [Citation.] Without resolving evidentiary conflicts, the court determines ‘whether the plaintiff’s showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment.’ [Citation.]” (Bel Air Internet, LLC v. Morales (2018) 20 Cal.App.5th 924, 934.)
IV. Analysis.
A. First Prong: Protected Activity.
“A defendant meets his or her burden on the first step of the anti-SLAPP analysis by demonstrating the acts underlying the plaintiff’s cause of action fall within one of the four categories spelled out in [Code of Civil Procedure] section 425.16, subdivision (e).” (Collier v. Harris (2015) 240 Cal.App.4th 41, 50-51 (Collier).) That section provides that an “act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” (Code of Civil Procedure, § 425.16, subdivision (e).) “These categories define the scope of the anti-SLAPP statute by listing acts which constitute an ‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue.’ ” (Collier, supra, at p. 51, citing Code of Civil Procedure, § 425.16, subdivision (e).)
“A claim arises from protected activity when that activity underlies or forms the basis for the claim. [Citations.] Critically, ‘the defendant’s act underlying the plaintiff’s cause of action must itself have been an act in furtherance of the right of petition or free speech.’ [Citations.] ‘[T]he mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute.’ [Citations.] Instead, the focus is on determining what ‘the defendant’s activity [is] that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning.’ [Citation.]” (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1062-1063 (Park).)
“[A] claim may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted.” (Park, supra, 2 Cal.5th at p. 1060.) To determine whether the speech constitutes the wrong itself or is merely evidence of a wrong, “in ruling on an anti-SLAPP motion, courts should consider the elements of the challenged claim and what actions by defendant supply those elements and consequently form the basis for liability.” (Id. at p. 1063.)
“In deciding whether the ‘arising from’ requirement is met, a court considers ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’ ” (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 670 (Peregrine Funding).) “[I]f the defendant does not demonstrate this initial prong, the court should deny the anti-SLAPP motion and need not address the second step.” (Baharian-Mehr v. Smith (2010) 189 Cal.App.4th 265, 271.)
Defendants contend the seventh and eighth causes of action arise from protected activity under Code of Civil Procedure section 425.16, subdivision (e)(4).
“The fourth category is a ‘catch-all’ that makes the anti-SLAPP statute applicable to claims based on ‘ “any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” ’ [Citations.] Accordingly, this category extends the protection of the anti-SLAPP statute beyond actual instances of free speech to ‘all conduct in furtherance of the exercise of the right of free speech in connection with a public issue.’ [Citation.] In 1997, the Legislature added this category to section 425.16, along with the directive that ‘this section shall be construed broadly,’ to overcome earlier appellate decisions that narrowly construed the statute’s scope. [Citations.]” (Collier, supra, 240 Cal.App.4th at p. 51.)
“ ‘A cause of action arises from protected activity within the meaning of section 425.16, subdivision (e)(4) if the plaintiff’s claims are predicated on conduct that is (1) in furtherance of the right of free speech, and (2) in connection with a public issue or issue of public interest.’ [Citations.] ‘ “An act is in furtherance of the right of free speech if the act helps to advance that right or assists in the exercise of that right.” ’ [Citations.]” (Collier, supra, 240 Cal.App.4th at p. 51.)
For example, in Lieberman v. KCOP Television, Inc. (2003) 110 Cal.App.4th 41 (Lieberman), the Second Appellate District concluded a television station acted in furtherance of its free speech rights when it illegally recorded a doctor’s conversations with two patients as part of the station’s investigation and news report on doctors who improperly prescribe controlled substances. In doing so, the Court of Appeal explained:
“Reporting the news is free speech. [Citation.] Reporting the news usually requires the assistance of newsgathering, which therefore can be construed as undertaken in furtherance of the news media’s right to free speech. Because the surreptitious recordings here were in aid of and were incorporated into a broadcast in connection of a public issue, we conclude that Lieberman’s complaint fell within the scope of section 425.16.” (Lieberman, supra, 110 Cal.App.4th at p. 166.)
The Lieberman court nonetheless affirmed the trial court’s ruling denying the station’s special motion to strike as the doctor presented evidence establishing a probability of prevailing on his claims against the station. (Lieberman, supra, 110 Cal.App.4th at p. 170.)
Here, Defendants argue the defamation and false light invasion of privacy causes of action arise from the District’s disclosure of the original and amended statements of charges, in response to public records requests under the California Public Records Act (“CPRA”). (See Complaint at ¶¶ 180-181, 185, 192, 193, 336, 340, 350, 352, 387; Modafferi Decl. at ¶¶ 10-11, Exs. 7-8.) In particular, during the pendency of the termination proceedings, the District received two separate public records requests, in which members of the public requested copies of the statements of charges against Plaintiff. (See Memo of P’s & A’s at p. 1:26-28; Modafferi Decl. at ¶¶ 10-11, Exs. 7-8.) Such conduct constitutes protected activity and satisfies the first prong of the analysis. (See Collondrez v. City of Rio Vista (2021) 61 Cal.App.5th 1039, 1049-1050 [complaint alleging city had wrongfully disclosed a policer officer’s personnel information in response to public disclosure requests under the CPRA arose from protected speech under the anti-SLAPP statute because each cause of action was premised on release of information to journalists, which qualified under § 425.16, subdivision (e)(3), (4), as newsgathering activity]; see also Cal. Const., Art. I, § 3, subdivision (b), ¶ 7 [compliance with CPRA ensures public access to writings of public officials].) Plaintiff does not challenge the first prong analysis in opposition to the motion.
Having satisfied the first prong, the burden shifts to Plaintiff to establish a probability of success on the merits of the seventh and eighth causes of action.
B. Second Prong: Probability of Success on the Merits.
“If the court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached. There, the burden shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated. The court, without resolving evidentiary conflicts, must determine whether the plaintiff’s showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment. If not, the claim is stricken. [Citation.]” (Simmons v. Bauer Media Group USA, LLC (2020) 50 Cal.App.5th 1037, 1043.)
1. Seventh Cause of Action: Defamation Per Se.
“Defamation is an invasion of the interest in reputation. The tort involves the intentional publication of a statement of fact that is false, unprivileged, and has a natural tendency to injure or which causes special damage.” (Smith v. Maldonado (1999) 72 Cal.App.4th 637, 645.)
As relevant here, “[l]ibel is a type of defamation based on written or depicted communication.” (Balla v. Hall (2021) 59 Cal.App.5th 652, 675 (Balla).)
“ ‘A statement is defamatory when it tends “directly to injure [a person] in respect to his office, profession, trade or business, either by imputing to him general disqualification in those respects which the office … peculiarly requires, or by imputing something with reference to his office … that has a natural tendency to lessen its profits.” [Citation.] Statements that contain such a charge directly, and without the need for explanatory matter, are libelous per se if … a listener could understand the defamatory meaning without the necessity of knowing extrinsic exculpatory matter.’ [Citation.] If the false statement is not libelous per se, a plaintiff must prove special damages. [Citation.]” (Balla, supra, 59 Cal.App.5th at pp. 675-676.)
The defamation allegations are primarily set forth in paragraphs 336-337 and 348-349 as follows:
¶ 336: On or about 12 February 2021, Defendants District and Defendants served Kissner with a Notice of Proposed Intent to Dismiss with Statement of Charges (“Statement”). The Statement falsely asserted as fact that Kissner was guilty of “Potential grooming behavior, such as: singling out a minor and being alone with a minor; … asking about sex/sexual encounters; and posting images of youth partially unclothed on the internet (“statement”).”
¶ 337: The defamatory statement of fact is false, unprivileged, and has a natural tendency to injure Kissner, including and especially at his place of work, in the education world where he might be required to seek employment, and even, as alleged herein, at his church.
¶ 348: The communication of the false and defamatory information was made with malice, i.e., with a state of mind arising from hatred or ill-will, evidencing a willingness to vex, annoy, or injure Kissner as described throughout this complaint.
¶ 349: The charges were promptly republished by members of the public and predictably subjected Kissner to shame and humiliation, threats, intimidation, mockery and derision by members of the public throughout the community.
a) Individual Defendants.
As to defendant Martin, Plaintiff agrees to dismiss the seventh and eighth causes of action against him without prejudice and subject to discovery and further investigation. (See OPP at p. 13:18-20.) The court construes this statement as a concession and will grant the motion as to defendant Martin.[7]
As to the remaining individual defendants, Plaintiff agrees to dismiss them in their personal capacity without prejudice and subject to further discovery and investigation. (See OPP at p. 13:13-17.) Thus, the motion is granted as to defendants Fraser and Khandelwal who are being sued only in their individual capacities. (See Complaint at ¶¶ 14, 21.) This concession however does not resolve the issue as the other individuals are also being sued in their official capacities. (Id. at ¶¶ 15, 17-20.)
But, as the moving papers point out, none of the Board members personally participated in the disclosure of the Statement of Charges in response to the CPRA requests. (See Memo of P’s & A’s at p. 7:8-18.) Instead, such disclosures were made through the District Superintendent’s office without any action on the part of the Board. (Ibid.) Along those lines, Defendants contend the Board members are immune from liability under Government Code section 820.9 which provides:
Members of city councils, mayors, members of boards of supervisors, members of school boards, members of governing boards of other local public entities, members of locally appointed boards and commissions, and members of locally appointed or elected advisory bodies are not vicariously liable for injuries caused by the act or omission of the public entity or advisory body. Nothing in this section exonerates an official from liability for injury caused by that individual’s own wrongful conduct. Nothing in this section affects the immunity of any other public official.
Plaintiff does not dispute this point in opposition. Nor does Plaintiff offer any rebuttal to the defense raised under Government Code section 820.9. (See Peregrine Funding, supra,133 Cal.App.4th at p. 676 [the special motion to strike should be granted if the defendant presents evidence that defeats the plaintiff’s claim as a matter of law]; see also Kashian v. Harriman (2002) 98 Cal.App.4th 892, 926-927 [where the plaintiff’s defamation action was barred by Civil Code section 47, subdivision (b), the plaintiff cannot demonstrate a probability of prevailing under the anti-SLAPP statute].)
Therefore, the special motion to strike the seventh cause of action against the Individual Defendants is GRANTED.
b) The District.
The second step has been described as a “summary-judgment-like procedure.” (Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 940 (Sweetwater).) “The court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff’s evidence as true, and evaluates the defendant’s showing only to determine if it defeats the plaintiff’s claim as a matter of law.” (Ibid.) Thus, “claims with the requisite minimal merit may proceed.” (Ibid.)
“As to the second step inquiry, a plaintiff seeking to demonstrate the merit of the claim, ‘may not rely solely on its complaint, even if verified; instead, its proof must be made upon competent admissible evidence.’ [Citations.]” (Sweetwater, supra, 6 Cal.5th at p. 940.)
“When evaluating an affirmative defense in connection with the second prong of the analysis of an anti-SLAPP motion, the court, following the summary-judgment-like rubric, generally should consider whether the defendant’s evidence in support of an affirmative defense is sufficient, and if so, whether the plaintiff has introduced contrary evidence, which, if accepted, would negate the defense. [Citations.]” (Bently Reserve LP v. Papaliolios (2013) 218 Cal.App.4th 418, 434.)
In challenging the second prong, Defendants raise the following defenses: (1) Defendants are immune under Government Code, § 820.4; (2) the allegations about Plaintiff’s behavior were true; and (3) the characterization of the behavior as “Potential Grooming” is non-actionable opinion.
As to the District, the court need not consider these defenses as Plaintiff fails, as a threshold matter, to address whether the defamation claim is legally sufficient. Instead, Plaintiff’s opposing memorandum only disputes the merits of the defenses raised by Defendants in the moving papers. (See OPP at pp. 7-13.) The opposition does not direct the court to any allegations or supporting admissible evidence establishing that the defamation per se cause of action is legally sufficient. Nor is it this court’s role to supply such arguments to the Plaintiff. (See Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 52 [courts are not required to examine undeveloped claims or supply arguments for the litigants]; see also Quantum Cooking Concepts, Inc. v. LV Assocs., 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”]; Collins v. Hertz Corp. (2006) 144 Cal.App.4th 64, 75 [It is a party’s “duty to direct the court to evidence that supports their claims. It is not the court’s duty to rummage through the papers to construct or resuscitate their case.”].) And, to the extent that Plaintiff relies on his declaration submitted in opposition, the court has sustained objections to that evidence for reasons stated above. (See Court’s Ruling on Evidentiary Objections Nos. 1-6.)
Therefore, having failed to satisfy the second prong, the special motion to strike against the District is GRANTED.
2. Eighth Cause of Action: False Light Invasion of Privacy.
“ ‘ “False light is a species of invasion of privacy, based on publicity that places a plaintiff before the public in a false light that would be highly offensive to a reasonable person, and where the defendant knew or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the plaintiff would be placed.” ’ [Citation.] To establish a false light claim based on a defamatory publication, a plaintiff ‘must meet the same requirements’ as for a defamation claim. [Citation.]” (Balla, supra, 59 Cal.App.5th at p. 687.)
“In order to be actionable, the false light in which the plaintiff is placed must be highly offensive to a reasonable person. [Citation.] Although it is not necessary that the plaintiff be defamed, publicity placing one in a highly offensive false light will in most cases be defamatory as well.” (Fellows v. Nat’l Enquirer (1986) 42 Cal.3d 234, 238-239.)
Furthermore, “[w]hen a false light claim is coupled with a defamation claim, the false light claim is essentially superfluous, and stands or falls on whether it meets the same requirements as the defamation cause of action.” (Eisenberg v. Alameda Newspapers, Inc. (1999) 74 Cal.App.4th 1359, 1385, fn. 13; see Mitchell v. Twin Galaxies, LLC (2021) 70 Cal.App.5th 207, 224 [“Because we conclude Mitchell’s defamation claim survives the anti-SLAPP motion, his false light claim stands as well.”].)
The false light allegations are primarily asserted in paragraphs 387-389 as follows:
¶ 387: Defendant District, Defendant Fraser, and, on information and belief, other individuals disclosed or caused to be disclosed to the public the unfounded and false accusation that Plaintiff was capable of “potential grooming” of children. This accusation was likely to and in fact did cause members of the public to draw the false conclusion that Plaintiff is a child predator and a danger to children. Such an accusation would be objectionable to a reasonable person.
¶ 388: Defendants’ extreme and outrageous conduct, as alleged herein and incorporated by reference, is imputed to Defendants, and each of them.
¶ 389: As a proximate result of Defendants’ conduct, Kissner has suffered and continues to suffer from severe emotional distress including embarrassment, humiliation, disappointment, anxiety, and anger, all to Kissner’s damage in an amount to be proved and which is within the jurisdiction of this court.
As stated above, the false light claim stands and falls for the same reasons as the defamation claim. Thus, the special motion to strike is GRANTED as to Defendants.
C. Plaintiff’s Request for Attorney’s Fees.
“If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney’s fees to a plaintiff prevailing on the motion, pursuant to [Code of Civil Procedure] Section 128.5.” Thus, the imposition of sanctions for a frivolous anti-SLAPP motion is mandatory. [Citation.]” (Moore v. Shaw (2004) 116 Cal.App.4th 182, 198-199 (Moore).)
“A determination of frivolousness requires a finding the anti-SLAPP ‘motion is “totally and completely without merit” [citation], that is, “any reasonable attorney would agree such motion is totally devoid of merit.” [Citation.]’ [Citation.]” (Moore, supra, 116 Cal.App.4th at p. 199.) “This is an objective standard. Whether the sole purpose of the motion is to harass an opposing party or the motion is solely intended to cause unnecessary delay, in contrast, concerns the subjective motivation of the moving defendant. [Citation.] The moving defendant’s subjective motivation can be inferred from the absence of any arguable merit. [Citation.]” (Chitsazzadeh v. Kramer & Kaslow (2011) 199 Cal.App.4th 676, 684.) “An evil motive is not required; subjective bad faith may be inferred from the prosecution of a frivolous action.” (Campbell v. Cal-Gard Surety Services, Inc. (1998) 62 Cal.App.4th 563, 574.)
Here, the special motion to strike is not frivolous as the court grants the motion for reasons explained above.
Therefore, the request for attorney’s fees is DENIED.
V. Conclusion and Order.
Defendants’ special motion to strike the seventh and eighth causes of action is GRANTED in its entirety.
Plaintiff’s request for attorney’s fees is DENIED.
|___________________________ |______________________________________________ |
|DATED: |HON. SOCRATES PETER MANOUKIAN |
| |Judge of the Superior Court |
| |County of Santa Clara |
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|SUPERIOR COURT, STATE OF CALIFORNIA | |
|COUNTY OF SANTA CLARA | |
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|DEPARTMENT 20 | |
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|161 North First Street, San Jose, CA 95113 | |
|408.882.2320 · 408.882.2296 (fax) | |
|department20@ | |
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| |(For Clerk’s Use Only) |
|CASE NO.: |22CV396794 |Marina Tallis v. Missy Morris |
|DATE: 09 May 2023 |TIME: 9:00 am |LINE NUMBER: 07 |
|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 08 May 2023. Please specify the |
|issue to be contested when calling the Court and Counsel. |
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|Order on Motion Of Plaintiff To Compel Defendant |
|To Provide Further Responses To |
|Request For Production Of Documents. |
I. Statement of Facts.
Plaintiff filed this complaint on 19 April 2019.[8]
In this personal injury action, plaintiff claims she was injured as a result of personal injury action stemming from an SUV versus pedestrian accident on September 15, 2021 in Palo Alto, California. Due to a pre-existing physical ailment, plaintiff was in a wheelchair.
As far as this Court can tell, defendant does not seem to be disputing liability for the accident.[9]
II. Motion.
Plaintiff seeks in her request for production number 4 to obtain the cell phone records of defendant for the period of time beginning 2 hours before the accident and ending 7 hours after the accident. Plaintiff also seeks in her request for production number 6 certain foundational data concerning photographs of defendant’s vehicle.
Defendant is willing to provide her cell phone records for the period of time beginning one hour before the accident and ending one hour after. She claims that she has also provided the foundational information concerning the photographs and did not do so originally because of oversight due to the sudden need of defense counsel to relocate firms after the involuntary closure of their then-current firm.
III. Analysis.
Request No. Four:
This Court has reviewed the authorities cited by plaintiff and agrees that plaintiff is entitled to defendant cell phone records for a certain period of time. The first question presented is, for how long of a period?
In Mintz v. Mark Bartelstein & Assocs. (C.D.Cal. 2012) 885 F.Supp.2d 987, plaintiff claimed that defendant, his former employer, improperly accessed his work telephone records. Defendant had filed a counterclaim alleging theft of trade secrets. The case does not discuss the time frame subject to the subpoena for the phone records. The cases discussed in the Mintz opinion do not provide any guidance.
Counsel for plaintiff refers to a case he tried a year ago wherein the defendant telephoned a body repair shop 3 hours after the accident and had the vehicle repaired.
The 2nd question is, so what? Counsel for plaintiff suggests that the defendant may have been distracted by thoughts of personal problems and the like. This Court wonders if anyone drives an automobile without thinking of anything else, whether unpleasant or pleasant.
Request No. 6:
This Court is under the impression that the issue is MOOT.
Conclusion:
Good cause appearing, the request of plaintiff to compel defendant to provide herself for records of her telephone calls for the 9 hour period of time from 2 hours prior to the accident 2 to 7 hours subsequent is DENIED as irrelevant.
The motion to compel defendant to provide further responses to request number 6 is MOOT.
IV. Tentative Ruling and Hearing.
The Tentative Ruling was duly posted.
V. Case Management.
The date set for the trial setting conference will REMAIN AS SET.
VI. Conclusion and Order.
The request of plaintiff to compel defendant to provide herself for records of her telephone calls for the 9 hour period of time from 2 hours prior to the accident 2 to 7 hours subsequent is DENIED as irrelevant. Defense counsel has agreed to provide defendant’s cell phone records from one hour before the accident and one hour after the accident.
The motion to compel defendant to provide further responses to request number 6 is MOOT.
|____________________________________ |_________________________________________________________ |
|DATED: |HON. SOCRATES PETER MANOUKIAN |
| |Judge of the Superior Court |
| |County of Santa Clara |
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|SUPERIOR COURT, STATE OF CALIFORNIA | |
|COUNTY OF SANTA CLARA | |
| | |
|DEPARTMENT 20 | |
| | |
|161 North First Street, San Jose, CA 95113 | |
|408.882.2320 · 408.882.2296 (fax) | |
|department20@ | |
| | |
| |(For Clerk’s Use Only) |
|CASE NO.: |20CV367514 |Absolute Resolutions Investments, LLC v. Zhuo Cui |
|DATE: 09 May 2023 |TIME: 9:00 am |LINE NUMBER: 09 |
|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 08 May 2023. Please specify the |
|issue to be contested when calling the Court and Counsel. |
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|Order on Motion of Plaintiff For Entering Judgment |
|Pursuant to Defendants’ Default |
|Under Settlement and Release Agreement |
|(Code of Civil Procedure, § 664.6.) |
Plaintiff filed this action on 23 June 2020. Plaintiff served defendant who did not file an answer.
This matter settled between the parties and memorialized in a Stipulation for Conditional Entry of Judgment. Defendant defaulted by not complying with the stipulation.
Pursuant to the terms of the resolution, defendant should have paid to plaintiff the sum of $5471.28. However, plaintiff has not as yet received any payments from defendant. Plaintiff’
see s attempts to contact defendant through his attorney went unrequited.
Plaintiff now brings this motion requesting from this Court for an order vacating the dismissal pursuant to Code of Civil Procedure, § 473 and entering of judgment against the Defendant pursuant Code of Civil Procedure, § 664.6, a term agreed upon by the parties in the stipulation. (See also Skulnick v. Roberts Express, Inc. (1992) 2 Cal.App.4th 884, 889, review denied; see Witkin, California Procedure (4th ed.) § 94, pp. 499-500.)
Code of Civil Procedure, § 664.4 states: “If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.”
This section requires this Court to determine whether the parties entered into a valid and binding settlement. (Osumi v. Sutton (2007) 151 Cal.App.4th 1355, 1360.) “A trial court, when ruling on a section 664.6 motion, acts as a trier of fact.” (Skulnick v. Roberts Express, Inc. (1992) 2 Cal.App.4th 884, 889.) The “express authorization for trial courts to determine whether a settlement has occurred is an implicit authorization for the trial court to interpret the terms and conditions of settlement.” (Fiore v. Alvord (1985) 182 Cal.App.3d 561, 565.)
“A settlement agreement, like any other contract, is unenforceable if the parties fail to agree on a material term or if a material term is not reasonably certain.” (Lindsay v. Lewandowski (2006) 139 Cal.App.4th 1618, 1622.) However, this has nothing to do with whether a term of the settlement agreement is ambiguous. Where language of a settlement agreement is ambiguous, the Court “is required to consider extrinsic evidence of the parties’ intent.”) (Stiller v. Sears Roebuck & Co. (2010)189 Cal.App.4th 175,183.)
Here, the parties entered into the Stipulation For Conditional Entry of Judgment, with the expressed intent to have the court retain jurisdiction over the parties pursuant to Code of Civil Procedure, § 664.6 which is evidenced by ¶ 5 which states that if payments are not received according to the agreement, then plaintiff may immediately file an ex parte application or notice motion for entry of judgment plus costs.
The motion is GRANTED. This Court will enter judgment in favor of plaintiff and against defendant as follows: principal in the amount of$15,448.24 and court cost[s] in the amount of $505.00 for the total amount of $15,953.24).
Counsel for moving party is to prepare an appropriate judgment and submitted to this Department through the clerk’s e-filing queue for execution.
|____________________________________ |_________________________________________________________ |
|DATED: |HON. SOCRATES PETER MANOUKIAN |
| |Judge of the Superior Court |
| |County of Santa Clara |
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|SUPERIOR COURT, STATE OF CALIFORNIA | |
|COUNTY OF SANTA CLARA | |
| | |
|DEPARTMENT 20 | |
| | |
|161 North First Street, San Jose, CA 95113 | |
|408.882.2320 · 408.882.2296 (fax) | |
|department20@ | |
| | |
| |(For Clerk’s Use Only) |
|CASE NO.: |21CV379978 |Bank of America, N.A. v. Ana María García García |
|DATE: 09 May 2023 |TIME: 9:00 am |LINE NUMBER: 10 |
|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 08 May 2023. Please specify the |
|issue to be contested when calling the Court and Counsel. |
|---oooOooo--- |
|Order on Motion of Plaintiff For Entering Judgment |
|Pursuant to Defendants’ Default |
|Under Settlement and Release Agreement |
|(Code of Civil Procedure, § 664.6.) |
Plaintiff filed this action on 07 April 2021. Plaintiff served defendant by personal service, and defendant apparently did not file an answer.
This matter settled between the parties on 20 May 2021 and was memorialized in a Stipulation for Conditional Entry of Judgment. Defendant defaulted and 27 November 2022 by not complying with the stipulation.
Plaintiff now brings this motion requesting from this Court for an order vacating the dismissal pursuant to Code of Civil Procedure, § 473 and entering of judgment in the sum of $1,642.24[10] against the Defendant pursuant Code of Civil Procedure, § 664.6, a term agreed upon by the parties in the stipulation. (See also Skulnick v. Roberts Express, Inc. (1992) 2 Cal.App.4th 884, 889, review denied; see Witkin, California Procedure (4th ed.) § 94, pp. 499-500.)
Code of Civil Procedure, § 664.4 states: “If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.”
This section requires this Court to determine whether the parties entered into a valid and binding settlement. (Osumi v. Sutton (2007) 151 Cal.App.4th 1355, 1360.) “A trial court, when ruling on a section 664.6 motion, acts as a trier of fact.” (Skulnick v. Roberts Express, Inc. (1992) 2 Cal.App.4th 884, 889.) The “express authorization for trial courts to determine whether a settlement has occurred is an implicit authorization for the trial court to interpret the terms and conditions of settlement.” (Fiore v. Alvord (1985) 182 Cal.App.3d 561, 565.)
“A settlement agreement, like any other contract, is unenforceable if the parties fail to agree on a material term or if a material term is not reasonably certain.” (Lindsay v. Lewandowski (2006) 139 Cal.App.4th 1618, 1622.) However, this has nothing to do with whether a term of the settlement agreement is ambiguous. Where language of a settlement agreement is ambiguous, the Court “is required to consider extrinsic evidence of the parties’ intent.”) (Stiller v. Sears Roebuck & Co. (2010)189 Cal.App.4th 175,183.)
Here, the parties entered into the Stipulation For Conditional Entry of Judgment, with the expressed intent to have the court retain jurisdiction over the parties pursuant to Code of Civil Procedure, § 664.6 which is evidenced by ¶ 7 which states that if payments are not received according to the agreement, then plaintiff may immediately file an ex parte application or notice motion for entry of judgment plus costs.
The motion is GRANTED. This Court will enter judgment in favor of plaintiff and against defendant as follows: total debt of $2,780.77, costs in the amount of $314.47, and $60.00 for the filing of this motion, less $1,513.00 for the payments made to date, for a total judgment sum of $1,642.24.
Counsel for moving party is to prepare an appropriate judgment and submitted to this Department through the clerk’s e-filing queue for execution.
|____________________________________ |_________________________________________________________ |
|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 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] This Court wonders if these facts are even disputed.
[3] Except for the District, the remaining defendants are referred to collectively as the “Individual Defendants.”
[4] A class cut is a disciplinary matter while an unexcused absence is not. A class cut is a “purposeful choice to miss class,” or “a student attends school for part of the day then misses part, or all, of one or more classes without being signed out by a parent.” (Complaint at ¶ 144, fn. 18.)
[5] “Grooming” generally describes conduct or actions by an offender that are undertaken to develop a bond between the victim and offender and, ultimately, make the victim more receptive to sexual activity with the offender. (Complaint at ¶ 106, fn. 17, citing cases.)
[6] This Department intends to comply with the time requirements of the Trial Court Delay Reduction Act (Government Code, §§ 68600-68620). The California Rules of Court state that the goal of each trial court should be to manage limited and unlimited civil cases from filing so that 100 percent are disposed of within 24 months. (California Rules of Court, Rule 3.714(b)(1)(C) and (b)(2)(C).)
[7] According to court records, Plaintiff has not filed voluntary dismissals without prejudice as to any of the Individual Defendants. Even so, the court notes a defendant who is voluntarily dismissed, with or without prejudice, after filing an anti-SLAPP motion, is nevertheless entitled to have the merits of such motion heard as a predicate to a determination of the defendant’s motion for attorney’s fees and costs. (Wong v. Jing (2010) 189 Cal.App.4th 1354, 1365; see Kyle v. Carmon (1999) 71 Cal.App.4th 901, 917-919 [party has absolute right to voluntarily dismiss an action before a section 425.16 motion has been heard, but dismissal does not preclude the trial court from addressing whether the prevailing party should be awarded attorney fees].)
[8] 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).
[9] “Ms. Morris does not dispute that her vehicle impacted with plaintiff s wheelchair and that plaintiff was in the crosswalk at the time 0f the collision. In short, there are no mysteries as to what happened in this case and no legitimate reason why any of her cell phone records would be material.” (Opposition papers, page 03, lines 15-18.)
[10] This figure is computed as follows: total debt of $2,780.77, costs in the amount of $314.47, and $60.00 for the filing of this motion, less $1,513.00 for the payments made to date, for a total judgment sum of $1,642.24.
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