Superior Court, State of California
TIME: 9:00 A.M.
This Department prefers that litigants use Zoom for Law and Motion and for Case Management Calendars. Court Call is also acceptable.
All Courts of California celebrate the diversity of the attorneys and the litigants who appear in our Courts. Do not hesitate to correct the Court or Court Staff concerning the pronunciation of any name or how anyone prefers to be addressed. As this Court is fond of saying, “with a name like mine, I try to be careful how I pronounce the names of others.” If your client is with you, please inform the Court how your client would prefer to be introduced. The Court encourages the use of diacritical marks, multiple surnames and the like for the names of attorneys, litigants and in court papers.
You may use these links for Case Management Conferences and Trial Setting Conferences without Court permission. Informal Discovery Conferences and appearances on Ex Parte applications will be set on Order by the Court.
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PLEASE READ THIS PAGE IN ITS ENTIRETY AS SOME OF THE PROTOCOLS HAVE CHANGED.
Please check this Tentative Rulings page before making any appearance.
Whether appearing in person or on a virtual platform, the usual custom and practices of decorum and attire apply.
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.
Please notify this Court immediately if the matter will not be heard on the scheduled date. California Rules of Court, rule 3.1304(b). If a party fails to appear at a law and motion hearing without having given notice, this Court may take the matter off calendar, to be reset only upon motion, or may rule on the matter. California Rules of Court, rule 3.1304(d). A party may give notice that he or she will not appear at a law and motion hearing and submit the matter without an appearance unless this Court orders otherwise. This Court will rule on the motion as if the party had appeared. California Rules of Court, rule 3.1304(c). Any uncontested matter or matters to which stipulations have been reached can be processed through the Clerk in the usual manner. Please include a proposed order.
All proposed orders and papers should be submitted to this Department’s e-filing queue. Do not send documents to the Department email unless directed to do so.
APPEARANCES.
While the Court will still allow physical appearances, all litigants are encouraged to use the Zoom platform for Law & Motion appearances and Case Management Conferences. Use of other virtual platform devices will make it difficult for all parties fully to participate in the hearings. Please note the requirement of entering a password (highlighted above.)
As for personal appearances, protocols concerning social distancing and facial coverings in compliance with the directives of the Public Health Officer will be enforced. Currently, facemasks are required in all courthouses. If you appear in person, it will be helpful if you wear a disposable paper mask while using the courtroom microphones so that your voice will not be muffled.
Individuals who wish to access the Courthouse are advised to bring a plastic bag within which to place any personal items that are to go through the metal detector located at the doorway to the courthouse.
Sign-ins will begin at about 8:30 AM. Court staff will assist you when you sign in. If you are using the Zoom virtual platform, it will helpful if you “rename” yourself as follows: in the upper right corner of the screen with your name you will see a blue box with three horizontal dots. Click on that and then click on the “rename” feature. You may type your name as: Line #/name/party. If you are a member of the public who wishes to view the Zoom session and remain anonymous, you may simply sign in as “Public.”
The Santa Clara County Superior Court has established listen-only telephone Lines to allow remote access to public court proceedings. To listen to a public court proceeding in Department 20, you may dial 888-251-2909. When prompted, enter the access code number 4362730 when prompted, followed by the pound or hashtag (#) sign.
COURT REPORTERS.
This session will not be recorded. No electronic recordings, video, still photography or audio capture of this live stream is allowed without the expressed, written permission of the Superior Court of California, County of Santa Clara. State and Local Court rules prohibit photographing or recording of court proceedings whether in the courtroom or while listening on the Public Access Line or other virtual platform, without a Court Order. See Local General Rule 2(A) and 2(B); California Rules of Court, rule 1.150.
This Court no longer provides for Court Reporters in civil actions except in limited circumstances. If you wish to arrange for a court reporter, please use Local Form #CV-5100. All reporters are encouraged to work from a remote location. Please inform this Court if any reporter wishes to work in the courtroom. This Court will approve all requests to bring a court reporter. Counsel should meet and confer on the use of a court reporter. Occasionally each side will retain a court reporter which leaves this Court in a conundrum as to which reporter will be the official reporter for the purposes of the hearing.
PROTOCOLS DURING THE HEARINGS.
During the calling of any hearing, this Court has found that the Zoom video platform works very well. But whether using Zoom or any telephone, it is preferable to use a landline if possible. IT IS ABSOLUTELY NECESSARY FOR ALL INDIVIDUALS TO SPEAK SLOWLY. Plaintiff should speak first, followed by any other person. All persons should spell their names for the benefit of Court Staff. Please do not use any hands-free mode if at all possible. Headsets or earbuds of good quality will be of great assistance to minimize feedback and distortion.
The Court will prepare the Final Order unless stated otherwise below or at the hearing. Counsel are to comply with California Rules of Court, rule 3.1312.
Troubleshooting Tentative Rulings.
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.
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 |RULING |
|LINE 1 |21CV382019 |Teresita Bernardo, Herminia Autajay, Angelita |Demurrer of Defendants to Plaintiffs’ Complaint. |
| | |Cabanlit, Herman Tabudlong, Nilo Campos Tengson v. C3 |Defendants C3 and Marcials’ demurrer to the eighth cause of action in |
| | |Care, LLC, Jaime Rafael C. Marcial, Jericho C. Marcial|Plaintiffs’ complaint on the ground that it cannot be ascertained from|
| | | |the pleading whether the contract is written, is oral, or is implied |
| | | |by conduct [Code of Civil Procedure, § 430.10, subd. (g)] is SUSTAINED|
| | | |with 10 days’ leave to amend. |
| | | |Defendants C3 and Marcials’ demurrer to Plaintiffs’ complaint on the |
| | | |ground that the pleading does not state facts sufficient to constitute|
| | | |a cause of action [Code of Civil Procedure, § 430.10, subd. (e)] is |
| | | |OVERRULED. |
| | | |Defendants C3 and Marcials’ motion to strike Plaintiffs’ complaint is |
| | | |DENIED. |
| | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 2 |21CV382019 |Teresita Bernardo, Herminia Autajay, Angelita |Motion of Defendants to Strike Plaintiffs’ Complaint. |
| | |Cabanlit, Herman Tabudlong, Nilo Campos Tengson v. C3 |SEE LINE #1. |
| | |Care, LLC, Jaime Rafael C. Marcial, Jericho C. Marcial| |
|LINE 3 |21CV382651 |Gregory Gilbert, M.D. v. Stanford Health Care, Andra |Defendant SHC’s demurrer to the seventh and eighth causes of action in|
| | |Blomkans, M.D., Board of Trustees etc. |plaintiff Dr. Gilbert’s complaint on the ground that the pleading does|
| | | |not state facts sufficient to constitute a cause of action [Code of |
| | | |Civil Procedure, § 430.10, subd. (e)] is SUSTAINED with 10 days’ leave|
| | | |to amend. |
| | | |Defendants Stanford University and Dr. Blomkalns’ demurrer to the |
| | | |twenty-third through twenty-fifth causes of action in plaintiff Dr. |
| | | |Gilbert’s complaint on the ground that the pleading does not state |
| | | |facts sufficient to constitute a cause of action [Code of Civil |
| | | |Procedure, § 430.10, subd. (e)] is SUSTAINED with 10 days’ leave to |
| | | |amend. |
| | | |Defendants Stanford University, SHC, and Dr. Blomkalns’ demurrer to |
| | | |plaintiff Dr. Gilbert’s complaint is otherwise OVERRULED. |
| | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 4 |18CV328234 |Biniyam Anbessie v. Henshaw & Henry, P.C., Timothy D. |Motion of Plaintiff For Summary Judgment/Summary Adjudication. |
| | |Henry, David S. Henshaw, Ji Wan Kim, Negine Marie |Plaintiff Anbessie’s motion for summary judgment is DENIED. |
| | |Mansour Sewitsky, |Plaintiff Anbessie’s alternative motion for summary adjudication of |
| | | |the first cause of action is DENIED. |
| | | |Plaintiff Anbessie’s alternative motion for summary adjudication as to|
| | | |issues of duty is DENIED. |
| | | |Plaintiff Anbessie’s alternative motion for summary adjudication of |
| | | |Defendants’ second and third affirmative defenses is DENIED. |
| | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 5 |18CV334657 |Platinum Roofing, Inc. v. Michael Stephenson |Motion of Plaintiff to Compel Defendant Michael Stephenson to Provide |
| | | |Further Responses to Requests for Admissions and for Sanctions. |
| | | |The motion of plaintiff to compel defendant to provide further |
| | | |responses to request for admissions and form interrogatory is DENIED. |
| | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 6 |20CV371573 |Malcolm Cobbold v. George Chiao |Motion of Defendant to Deem Requests for Admissions to Be Admitted. |
| | | |No opposition papers have been filed. |
| | | |The motions are GRANTED as follows: the request for admissions are |
| | | |deemed ADMITTED. Defendant is to provide code compliant ANSWERS to |
| | | |defendant’s request for production of documents (set number one) and |
| | | |defendants form interrogatories (set number one). The request for |
| | | |monetary sanctions against plaintiff is code compliant and is GRANTED |
| | | |as follows: defendant is to pay the sum of $235.00 for each of the two|
| | | |motions for a total of $470.00 (one hour at $175.00 and $60 for the |
| | | |filing fee for each motion). Plaintiff is to comply with this order |
| | | |within 20 days of the service and filing of this order. |
| | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 7 |20CV371573 |Malcolm Cobbold v. George Chiao |Motion of Defendant to Compel Plaintiff to Answer Form Interrogatories|
| | | |and Request for Monetary Sanctions. |
| | | |SEE LINE #6. |
|LINE 8 |20CV371573 |Malcolm Cobbold v. George Chiao |Motion of Defendant to Compel Plaintiff to Respond to Requests for |
| | | |Production of Documents and Request for Monetary Sanctions. |
| | | |SEE LINE #6 |
|LINE 9 |20CV371573 |LVNV Funding v. Tara Khinno |Motion of Plaintiff to Deem Request for Admissions to Be Admitted. |
| | | |The motion is not opposed. Moving party/plaintiff submits the matter |
| | | |on the pleadings. |
| | | |The motion is GRANTED. The request for admissions are deemed ADMITTED.|
| | | |NO FORMAL TENTATIVE RULING. |
|LINE 10 |19CV357842 |Tejinder Singh v. Foros Fund, LLC, Redfin Corporation,|Motion of James Cai, Esq. to Withdraw As Attorney for |
| | |Mark Bennett, Kimberly Douglas, and related |Defendant/Cross-Complainant Foros40’s Fund, LLC. |
| | |cross-complaint. |Mr. Cai (SBN #200189) declares that the attorney-client relationship |
| | | |has been broken down and seeks to be relieved. |
| | | |The application is in good form and is not opposed. |
| | | |The application is GRANTED. The Court will modify the proposed order |
| | | |to reflect the next court date. |
| | | |NO FORMAL TENTATIVE RULING. |
|LINE 11 |20CV364837 |John Buckholz v. Hope Services, San Andreas Regional |Motion of Plaintiff for Leave to File First Amendment to Plaintiff’s |
| | |Center |Complaint. |
| | | |The motion of plaintiff for leave to file his first amendment to |
| | | |plaintiff’s complaint is GRANTED. Plaintiff is to file a copy of the |
| | | |amended complaint through the e-filing queue and serve it on |
| | | |defendant. Defendant will have 20 days from the date of service of the|
| | | |amended complaint within which to RESPOND. |
| | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 12 |20CV367155 |Reena Johar v. Beatriz Gacusan, Leonardo A. Gacusan |Motion of David Markevitch, Esq. to Withdraw As Attorney for |
| | | |Plaintiff. |
| | | |Mr. Markevitch (SBN #256163) declares that there exists a basis for a |
| | | |permissive withdrawal pursuant to California Rules of Professional |
| | | |Conduct, rule 1.16(b). The client is not communicating with him. |
| | | |The application is in good form and is not opposed. |
| | | |The application is GRANTED. The Court will modify the proposed order |
| | | |to reflect the next court date. |
| | | |NO FORMAL TENTATIVE RULING. |
|LINE 13 |20CV369686 |Raymond Milenko, Shirley Milenko v. 899 Charleston |Motion of Defendant to Compel Arbitration and Stay Action. |
| | |etc. |OFF CALENDAR PER MOVING PARTY. |
|LINE 14 |20CV373163 |Aurelio Rosales v. Lisandro Vásquez, Jesús Zazueta, |Motion of Plaintiff for Preferential Trial Setting Pursuant to Code of|
| | |Zazueta Landscape |Civil Procedure, § 36. |
| | | |Plaintiff alleges in his moving papers that he was born on 2 October |
| | | |1950 and is currently 70 years old. He will turn 71 before a trial |
| | | |date is set. The moving papers further said that since the accident, |
| | | |he has dealt with an immense amount of pain and discomfort and that |
| | | |there is therefore a substantial likelihood that he will be unable to |
| | | |participate in the trial on this matter unless trial is set within 120|
| | | |days of the hearing. |
| | | |Defendants oppose the motion, claiming that plaintiff is not |
| | | |demonstrated that medical necessity for advancing the trial date. |
| | | |Defendants point out that there is no declaration from either the |
| | | |plaintiff or any physician that plaintiff is in poor health or that he|
| | | |is suffering from any life-threatening injury. |
| | | |Plaintiff is not currently “. . . . .over 70 years of age. . . . .” |
| | | |(Code of Civil Procedure, § 36(a)(1).) |
| | | |The Declaration of attorney Jeff Waldron in support of plaintiff’s |
| | | |motion does not shed any light on what plaintiff’s medical condition |
| | | |is, the nature of his diagnosis, prognosis or why plaintiff’s health |
| | | |entitles him to preference. (cf. Fox v. Superior Court (2018) 21 |
| | | |Cal.App.5th 529, 532; Code of Civil Procedure, § 36(a)(2).) |
| | | |The motion is DENIED WITHOUT PREJUDICE to a showing that plaintiff |
| | | |fits within the statute in question. |
| | | |NO FORMAL TENTATIVE RULING. |
|LINE 15 |21CV386099 |Bruce Williams v. Wells Fargo Bank, N. A., National |Motion of Defendant Wells Fargo Bank, N. A. For an Order Declaring |
| | |Default, World Savings |Plaintiff to Be a Vexatious Litigant and Requiring a Pre-Filing Order.|
| | | |The motion is GRANTED in part. |
| | | |SEE ATTACHED TENTATIVE RULING. |
|LINE 16 |19CV343185 |American Express National Bank v. Patricia Garcia |Motion Of Plaintiff for Order Vacating Dismissal and Entering |
| | | |Judgment. |
| | | |Plaintiff submits this matter on the pleadings pursuant to California |
| | | |Rules of Court, rule 3.1304(c). |
| | | |On or about 23 May 2019, plaintiff and defendant agreed to settle this|
| | | |matter by way of a stipulation for conditional entry of judgment. |
| | | |Defendant defaulted on the agreed-upon payment schedule and has failed|
| | | |to cure the default. Plaintiff now seeks to enter judgment pursuant to|
| | | |Code of Civil Procedure, §§ 473 and 664.6. No opposition papers have |
| | | |been filed |
| | | |The motion of plaintiff for an order vacating the dismissal and |
| | | |entering judgment is GRANTED. Plaintiff is to prepare an appropriate |
| | | |Judgment and submitted to this Department for execution via the |
| | | |e-filing queue. |
| | | |NO FORMAL 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.: |21CV382019 |Teresita Bernardo, et al. v. C3 Care LLC, et al. |
|DATE: 4 January 2022 |TIME: 9:00 am |LINE NUMBER: 1, 2 |
|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 03 January 2022. Please specify|
|the issue to be contested when calling the Court and Counsel. |
|---oooOooo--- |
|Orders on: |
|1. Demurrer of Defendants C3 Care LLC, Jericho Marcial and Jaime Marcial |
|to Plaintiffs’ Complaint; and |
|2. Motion to Strike Plaintiffs’ Complaint |
|Pursuant to Code of Civil Procedure, §§ 435, 436, 437. |
| |
I. Statement of Facts.
Defendant C3 Care LLC (“C3”) is a self-described “family owned non-medical domestic referral agency that provides home care referral services to the elderly and other adults who wish to continue living in their own homes.” (Complaint, ¶¶9 and 24.) Defendants Jaime Rafael C Marcial and Jericho Marcial (collectively, “Marcials”) own and operate defendant C3 and are partners/ managers for defendant C3. (Complaint, ¶¶1, 10 – 11, and 16 – 18.) Defendants employed plaintiffs Teresita Bernardo, Angelita (Helen) Cabanlit, Nilo Campos Tengson, Herminia Autajay, and Herman Tabudlong (collectively, “Plaintiffs”). (Complaint, ¶¶1, 4 – 8, 12, and 25.)
Plaintiffs regularly worked more than nine hours in a day and more than 45 hours in a week without being properly compensated for overtime. (Complaint, ¶26.) Due to the nature of their work, Plaintiffs were not relieved of all duty and thus, denied the opportunity to take compliant meal and rest breaks. (Complaint, ¶27.)
Plaintiffs were never provided code-complaint paystubs which reflected, among other things, an accurate itemization of total hours worked, all rates at which pay should have been paid, and paid sick leave accrued. (Complaint, ¶28.) Plaintiffs were discharged between July 2020 and September 2020. (Complaint, ¶29.)
At the time of their discharge, Plaintiffs were owed but not paid for all hours worked. (Complaint, ¶30.) Defendants have not paid Plaintiffs all earned compensation. (Id.)
On 27 April 2021[1], Plaintiffs filed a complaint against defendants C3, asserting causes of action for:
1) Failure to Pay Minimum Wage
2) Failure to Pay Overtime
3) Failure to Provide Meal Periods
4) Failure to Provide Rest Periods
5) Failure to Pay All Wages Upon Discharge
6) Failure to Provide Accurate Itemized Wage Statements
7) Unlawful Business Practices
8) Breach of Contract
9) Violation of Healthy Workplace Act
On 27 August 2021, defendants C3 and Marcials filed the motions now before the Court, a demurrer to and motion to strike Plaintiffs’ complaint.
II. Demurrers and Motions to Strike.
A. Demurrers.
A complaint must contain substantive factual allegations sufficiently apprising the defendant of the issues to be addressed. (See Gould v. Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1144[2]; Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2 (demurrers for uncertainty.)
Code of Civil Procedure, § 430.10(e) states “The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer as provided in Section 430.30, to the pleading on any one or more of the following grounds:. . . . .The pleading does not state facts sufficient to constitute a cause of action.”
Code of Civil Procedure, § 430.20(a) states: “A party against whom an answer has been filed may object, by demurrer as provided in Section 430.30, to the answer upon any one or more of the following grounds: The answer does not state facts sufficient to constitute a defense.)
A demurrer tests the legal sufficiency of a complaint. It serves to test the sufficiency of a pleading by raising questions of law. (Buford v. State of California (1980) 104 Cal.App.3d 811, 818.) While a demurrer admits all material facts that were properly plead, a demurrer does not assume the truth of the contentions, deductions or conclusions of facts or law. (Levya v. Nielson (2000) 83 Cal.App.4th 1061, 1063.[3])
“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.[4] A demurrer tests only the legal sufficiency of the pleading. (Whitcombe v. County of Yolo (1977) 73 Cal.App.3d 698, 702.) 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.)
Even though the complaint is in some respects uncertain, the courts often hold it good against demurrer on the theory that, athough not a model of pleading, “its allegations, liberally construed, are sufficient to apprise the defendant of the issues that he is to meet.” (See Krieger v. Feeny (1910) 14 Cal.App. 538, 544.) The objection that the complaint (or some part of it) is uncertain goes to a doubt as to what the plaintiff means by the facts he or she has alleged, and it is designed to require the pleader to clarify the doubtful part by more explicit averments.
A demurrer 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(e).) "Conclusionary 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.)
“In reviewing the sufficiency of a complaint against a general demurrer, we are guided by long settled rules. ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. We also consider matters which may be judicially noticed.’” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
“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. (Whitcombe v. County of Yolo (1977) 73 Cal.App.3d 698, 702.) 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; 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.”)
“The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. The court does not, however, assume the truth of contentions, deductions or conclusions of law. … [I]t is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment.” (Gregory v. Albertson’s, Inc. (2002) 104 Cal.App.4th 845, 850.)
B. Motions to Strike.
“A notice of motion to strike must be given within the time allowed to plead, and if a demurrer is interposed, concurrently therewith, and must be noticed for hearing and heard at the same time as the demurrer.” (Rules of Court, rule 3.1322(b).)
“A notice of motion to strike a portion of a pleading must quote in full the portions sought to be stricken except where the motion is to strike an entire paragraph, cause of action, count, or defense. Specifications in a notice must be numbered consecutively.” (Rules of Court, rule 3.1322(b).)
Under general rules of civil procedure, a motion to strike may be brought on the following two grounds:
a. Strike out any irrelevant, false, or improper matter inserted in any pleading.
b. Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code of Civil Procedure, § 436.)
Irrelevant matter includes “immaterial allegations.” (Code of Civil Procedure, § 431.10, subd. (c).) “An immaterial allegation in a pleading is any of the following: (1) An allegation that is not essential to the statement of a claim or defense; (2) An allegation that is neither pertinent to nor supported by an otherwise sufficient claim or defense; (3) A demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint.” (Code of Civil Procedure, § 431.10, subd. (b).)
“As with demurrers, the grounds for a motion to strike must appear on the face of the pleading under attack, or from matter which the court may judicially notice.” (Weil & Brown, et al., California Practice Guide: Civil Procedure Before Trial (The Rutter Group 2020) ¶7:168, p. 7(I)-75 citing Code of Civil Procedure, § 437.) “Thus, for example, defendant cannot base a motion to strike the complaint on affidavits or declarations containing extrinsic evidence showing that the allegations are ‘false’ or ‘sham.’ Such challenges lie only if these defects appear on the face of the complaint, or from matters judicially noticeable.” (Id. at ¶7:169, pp. 7(I)-75 to 7(I)-76.)
“A motion to strike may be used as a scalpel—to cut out any irrelevant, false, or improper matters inserted therein.” (Weil & Brown, California Practice Guide: Civil Procedure before Trial (The Rutter Group 2019) §7:177, p. 7-61 citing Code of Civil Procedure, § 436(a) (internal punctuation modified.) “This includes allegations not essential to the claim or defense; allegations neither pertinent to nor supported by an otherwise sufficient claim or defense; or a demand for judgment requesting relief not supported by the allegations of the complaint or cross-complaint.’” Id. at §7:178 citing Code of Civil Procedure, § 431.10(b).) (internal punctuation modified.)
“In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to the motion to strike as a whole, all parts in their context, and assume their truth.” (Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255.) “In ruling on a motion to strike, courts do not read allegations in isolation.” (Clauson, 67 Cal.App.4th at 1255.)
III. Analysis.
A. Defendants C3 and Marcials’ Demurrer to Plaintiffs’ complaint is OVERRULED.
Defendants C3 and Marcials demur to Plaintiffs’ complaint on the ground that a necessary prerequisite to each of the claims is that defendants are Plaintiffs’ employer, but defendants, contrary to the allegations, are NOT an employer. By Plaintiffs’ own allegation, defendant C3 is a domestic referral agency. (Complaint, ¶¶9 and 24.)
“Domestic work employer” means a person, including corporate officers or executives, who directly or indirectly, or through an agent or any other person, including through the services of a third-party employer, temporary service, or staffing agency or similar entity, employs or exercises control over the wages, hours, or working conditions of a domestic work employee.
(Labor Code, § 1451, subd. (c)(1).)
However, there are exceptions to this definition of a “domestic work employer.”
One of these exceptions is “[a]n employment agency that complies with Section 1812.5095 of the Civil Code and that operates solely to procure, offer, refer, provide, or attempt to provide work to domestic workers if the relationship between the employment agency and the domestic workers for whom the agency procures, offers, refers, provides, or attempts to provide domestic work is characterized by all of the factors listed in subdivision (b) of Section 1812.5095 of the Civil Code and Section 687.2 of the Unemployment Insurance Code.” (§ 1451, subd. (c)(2)(B).) Civil Code section 1812.5095, in turn, provides that “[a]n employment agency is not the employer of a domestic worker for whom it procures, offers, refers, provides, or attempts to provide work, if all of the following factors characterize the nature of the relationship,” including that “a signed contract or agreement between the employment agency and the domestic worker” specifies “[h]ow the employment agency's referral fee shall be paid.” (Civil Code, § 1812.5095, subd. (b).)
(Duffey v. Tender Heart Home Care Agency, LLC (2019) 31 Cal.App.5th 232, 258-259 (Duffey).)
Thus, in order to come within the exception of being a “domestic work employer,” defendant C3 must establish that a list of nine factors “characterize the nature of the relationship between the employment agency and the domestic worker for whom the agency procures, offers, refers, provides, or attempts to provide domestic work.” (Civil Code, § 1812.5095, subd. (b)(1) – (9)[5].)
In demurring, defendants proffer the declaration of defendant Jericho Marcial in an attempt to establish the nine factors enumerated in Civil Code, § 1812.5095, subdivision (b) do indeed characterize the nature of the relationship between defendant C3 and Plaintiffs. However, “[i]n reviewing the sufficiency of a complaint against a general demurrer, we are guided by long settled rules.” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “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 – 214.) “The hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of affidavits, declarations, depositions, and other such material which was filed on behalf of the adverse party and which purports to contradict the allegations and contentions of the plaintiff.” (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 605 [176 Cal.Rptr. 824].) The extrinsic evidence proffered by defendants is not a proper subject of judicial notice[6] and not contained within the four corners of the pleading so the court will not consider it in ruling on this demurrer. In relying on Duffey, defendants should recognize that whether the exception of Civil Code, § 1812.5095 applies is a question of fact. (See Duffey, supra, 31 Cal.App.5th at p. 261—finding a dispute of fact with regard to the issue of whether a domestic worker is free to renegotiate with the person hiring him or her the amount proposed to be paid for the work.)
Defendant Jericho Marcial’s declaration aside, defendants also assert the exception to “domestic work employer” applies here based on their assertion that defendant C3 was previously audited by the Department of Labor Standards Enforcement (DLSE) and the Employment Development Department (EDD) and, in February 2020, the EDD audit determined defendant C3 was not an “employer.” According to defendants, the DLSE did not find defendant C3 in violation of the Labor Code or Wage Orders.
Defendants do not proffer any judicially-noticed fact of the latter. As to the former, defendants request the court take judicial notice of an “EDD Audit and Report of Field Auditor for the audit period October 1, 2016 through December 31, 2019, finding C3 operates as a referral agency under Civil Code, § 1812.5095 and is not the employer of caregivers.”
This Court questions the authority of this Court to take judicial notice of these documents. (Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063 (truth of government reports of tobacco use not judicially noticeable); see also People v. Long (1970) 7 Cal.App.3d 586, 591 ("While the courts take judicial notice of public records they do not take notice of the truth of the matters stated therein"); Marocco v. Ford Motor Co. (1970) 7 Cal.App.3d 84, 88 (judicial notice of the authenticity and contents of an official document does not establish the truth 0f the recitals therein, nor does it render inadmissible hearsay admissible).
While the Court is aware of authority for the Court to take judicial notice of DLSE opinion letters[7], the Court is not aware of any authority allowing the Court to take judicial notice of EDD reports.[8]
Accordingly, the request for judicial notice in support of defendants’ demurrer and motion to strike Plaintiffs’ complaint, exhibit C, is DENIED. [The request for judicial notice in support of defendants’ demurrer and motion to strike Plaintiffs’ complaint, exhibits A – B, is DENIED as not necessary, helpful, or relevant. (See Duarte v. Pacific Specialty Insurance Company (2017) 13 Cal.App.5th 45, 51, fn. 6—denying request where judicial notice is not necessary, helpful or relevant.)] Without the benefit of defendant Jericho Marcial’s declaration and the EDD Report, defendants are unable to establish on the face of the pleading that they are not Plaintiffs’ employer.
Defendants demur additionally to Plaintiffs’ eighth cause of action for breach of contract on the ground that Plaintiffs have not identified the material terms of the contract(s) at issue.
“To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff's performance of the contract or excuse for nonperformance, (3) the defendant's breach, and (4) the resulting damage to the plaintiff.” (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.) If the contract is written, “the terms must be set out verbatim in the body of the complaint or a copy of the written instrument must be attached and incorporated by reference.” (Otworth v. Southern Pacific Transportation Co. (1985) 166 Cal.App.3d 452, 459.) Alternatively, “[i]n an action based on a written contract, a plaintiff may plead the legal effect of the contract rather than its precise language.” (Construction Protective Services, Inc. v. TIG Specialty Ins. Co. (2002) 29 Cal.4th 189, 199.)
In opposition, Plaintiffs contend they have pleaded the legal effect of the contract at paragraph 69 of the complaint by alleging, “Plaintiffs and Defendants entered into an employment agreement wherein Defendants agreed to provide compensation and other benefits to Plaintiffs in connection with Plaintiffs’ employment.” The Court agrees Plaintiffs have adequately set forth the legal effect of the contract with this allegation.
Defendants demur additionally to Plaintiffs’ eighth cause of action for breach of contract on the ground that it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct. (Code of Civil Procedure, § 430.10, subd. (g).) Plaintiffs do not address this particular ground for demurrer in their opposition. Accordingly, defendants C3 and Marcials’ demurrer to the eighth cause of action in Plaintiffs’ complaint on the ground that it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct [Code of Civil Procedure, § 430.10, subd. (g)] is SUSTAINED with 10 days’ leave to amend.
With regard to the ninth cause of action for unlawful business practices, defendant Marcials demur by citing to Emery v. Visa Internat. Service Assn. (2002) 95 Cal.App.4th 952, 960 where the court wrote:
"The concept of vicarious liability[9] has no application to actions brought under the unfair business practices act." (People v. Toomey (1984) 157 Cal. App. 3d 1, 14 [203 Cal. Rptr. 642] (Toomey).) A defendant's liability must be based on his personal "participation in the unlawful practices" and "unbridled control" over the practices that are found to violate section 17200 or 17500. (Toomey, supra, 157 Cal. App. 3d at p. 15.)
Based on this authority, defendant Marcials contend they cannot be individually liable. However, “corporations could speak and act only through their agents and servants.” (Mason v. Drug, Inc. (1939) 31 Cal.App.2d 697, 703.) The complaint alleges, in relevant part and among other things, that defendant Marcials are the “Partner/Manager for Defendant C3,” “owner, officer managing agent and director of Defendant C3,” and “controlled the business and affairs of C3.” (Complaint, ¶¶10, 11, 17, 18, and 21.) Thus, the complaint sufficiently alleges defendant Marcials’ personal participation in the unlawful practices and control over the alleged unlawful practices.
Accordingly, except as noted above, defendants C3 and Marcials’ demurrer to Plaintiffs’ complaint on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code of Civil Procedure, § 430.10, subd. (e)] is OVERRULED.
B. Defendants C3’s and Marcials’ Motion to Strike Plaintiffs’ complaint is DENIED.
Defendants C3 and Marcials move to strike Plaintiffs’ complaint on essentially the same grounds espoused in their demurrer. For the reasons stated above, defendants C3 and Marcials’ motion to strike Plaintiffs’ complaint is DENIED.
IV. Tentative Ruling.
The tentative ruling was duly posted.
V. Case Management.
Should this matter proceed to a hearing, the parties should be able to inform the court of the status of their discussions concerning alternate dispute resolution.
On 8 February 2022, the motion of plaintiff’s to compel defendants to provide further responses to discovery requests is set.
VI. Order.
Defendants C3 and Marcials’ demurrer to the eighth cause of action in Plaintiffs’ complaint on the ground that it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct [Code of Civil Procedure, § 430.10, subd. (g)] is SUSTAINED with 10 days’ leave to amend.
Defendants C3 and Marcials’ demurrer to Plaintiffs’ complaint on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code of Civil Procedure, § 430.10, subd. (e)] is OVERRULED.
Defendants C3 and Marcials’ motion to strike Plaintiffs’ complaint 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) | |
|smanoukian@ | |
| |(For Clerk's Use Only) |
|CASE NO.: |21CV382651 |Gregory H. Gilbert, M.D. v. The Leland Stanford Junior University, et al.[10] |
|DATE: 4 January 2022 |TIME: 9:00 am |LINE NUMBER: 3 |
|This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 20 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. |
|Any party opposing the tentative ruling must call Department 20 at 408.808.6856 and the opposing party no later than 4:00 PM on 03 January 2022. Please specify|
|the issue to be contested when calling the Court and Counsel. |
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|Order on Demurrer to Plaintiff’s Complaint. |
I. Statement of Facts.
Plaintiff Gregory H. Gilbert, M.D. (“Dr. Gilbert”) is a duly licensed physician and was employed by defendant The Leland Stanford Junior University (“Stanford University”) and/or other unknown defendant entities (collectively, “University Entities”) from 2001 through September 2020. (Complaint, ¶¶1 and 12.) Plaintiff Dr. Gilbert suspected one or more of the University Entities was engaging in illegal employment practices through a system of compensating physicians for clinical shifts worked in addition to the number of regular shifts each physician was required to work each month, known as the “Variance System.” (Complaint, ¶16.) For example, if plaintiff Dr. Gilbert was required to work five regular shifts per month, any shifts Dr. Gilbert worked in each month in addition to those five regular shifts were considered “Variance Shifts,” subject to different (often less favorable) compensation treatment. (Id.)
Plaintiff Dr. Gilbert became increasingly concerned that defendant Stanford University had illegally implemented and operated the Variance System by, among other things, inaccurately recording clinical hours worked and altering the compensation calculation for Variance Shifts worked, resulting in undercompensation for Variance Shifts worked. (Complaint, ¶17.) Plaintiff Dr. Gilbert reported his concerns to various University Entities which led to an investigation. (Complaint, ¶18.)
In the latter part of 2019, plaintiff Dr. Gilbert met with defendant Andra Blomkalns, M.D. (“Dr. Blomkalns”) for his annual performance review. (Complaint, ¶19.) Defendant Dr. Blomkalns communicated a list of five objectives plaintiff Dr. Gilbert was expected to meet in the coming 12-month period. (Id.) Dr. Blomkalns committed to Dr. Gilbert that his return to multi-year appointments would resume in 2020 assuming her objectives were met. (Id.)
However, defendants Dr. Blomkalns and Stanford University never intended to reappoint plaintiff Dr. Gilbert even if he accomplished the five objectives. (Complaint, ¶20.) Instead, defendants Dr. Blomkalns and Stanford University falsely represented such to plaintiff Dr. Gilbert to, among other things, induce plaintiff Dr. Gilbert to back off his Variance System-related complaints. (Id.) Plaintiff Dr. Gilbert met four of the five objectives and was blocked only by defendant Dr. Blomkalns’ inaction from completing the fifth. (Id.)
On information and belief, plaintiff Dr. Gilbert alleges a substantial motivating reason his employment was ended and not extended was in retaliation for reporting his concerns, and particularly Dr. Blomkalns’ involvement, with the Variance System. (Complaint, ¶21.)
In or around May 2020, defendant Dr. Blomkalns told plaintiff Dr. Gilbert that he would no longer be employed after September 2020 by any of the University Entities with whom he had been employed for a considerable number of years. (Complaint, ¶22.) The primary stated reason for termination was Dr. Blomkalns’ concerns regarding Dr. Gilbert’s handling of a site visit by the Accreditation Council for Graduate Medical Education (“ACGME”) in late 2019. (Complaint, ¶¶19 and 22.) The reason for termination proffered by Dr. Blomkalns was factually untrue and pretextual. (Complaint, ¶23.) The ACGME site visit led by plaintiff Dr. Gilbert went so well that the ACGME approved the Emergency Medicine department’s highly-acclaimed and competitive Fellowship for another 10 years. (Complaint, ¶¶14 and 23.) Defendant Dr. Blomkalns delayed communicating plaintiff Dr. Gilbert’s termination until after she had led the rollout of a somewhat improved Variance System. (Complaint, ¶23.)
On 21 August 2020, plaintiff Dr. Gilbert requesting in writing timely access to various University Entity statutory records pertaining to him but such records were not fully, timely, and accurately provided to him. (Complaint, ¶28.)
During the summer of 2020, plaintiff Dr. Gilbert sought employment as an attending physician at defendant Stanford Health Care’s (“SHC”) “Express Care” clinic. (Complaint, ¶32.) Plaintiff Dr. Gilbert received an offer which he accepted. (Id.) However, on or about 21 August 2020, Dr. Marja Atandi of defendant SHC notified plaintiff Dr. Gilbert that defendant SHC was not going to honor its employment commitment based upon what had been communicated by others to SHC. (Id.) On information and belief, plaintiff Dr. Gilbert alleges one or more University Entity management personnel disparaged plaintiff Dr. Gilbert with the intent to interfere with his career at defendant SHC. (Id.)
On 17 May 2021[11], plaintiff Dr. Gilbert filed a complaint against defendants Stanford University, SHC, and Dr. Blomkalns asserting causes of action for:
10) Retaliation in Violation of Public Policy (Labor Code §1102.5 “Whistleblower”)
11) Retaliation in Violation of Public Policy (Labor Code §98.6)
12) Retaliation in Violation of Public Policy (Labor Code §923)
13) Age-Related Discrimination
14) Breach of Contract
15) Breach of Implied Contract
16) Breach of Contract
17) Breach of Implied Contract
18) Breach of Implied Covenant of Good Faith and Fair Dealing
19) Intentional Misrepresentation
20) Negligent Misrepresentation
21) Promissory Estoppel
22) Unreimbursed Business Expenses
23) Failure to Timely Pay All Wages
24) Failure to Provide Accurate Wage Statements
25) Failure to Provide Requested Labor Code §226 Documentation
26) Violations of Labor Code §1198.5
27) Violations of Labor Code §432
28) Violations of Labor Code §2810.5
29) Intentional Interference with Prospective Economic Advantage
30) Negligent Interference with Prospective Economic Advantage
31) Intentional Interference with Contractual Relations
32) Defamation
33) False Light
34) Violation of Labor Code §§1050 et seq.
35) Unfair Business Practices – Bus. & Prof. Code §17200 et seq.
On 14 September 2021, defendants Stanford University, SHC, and Dr. Blomkalns filed the motion now before the court, a demurrer to plaintiff’s complaint.
II. Demurrers to the Complaint In General.
A complaint must contain substantive factual allegations sufficiently apprising the defendant of the issues to be addressed. (See Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)
A demurrer tests the legal sufficiency of a complaint. It is properly sustained where the complaint or an individual cause of action fails to “state facts sufficient to constitute a cause of action.” (Code of Civil Procedure, § 430.10, subd. (e).) “[C]onclusionary allegations . . . without facts to support them” are insufficient on demurrer. (Ankeny v. Lockheed Missiles and Space Co. (1979) 88 Cal.App.3d 531, 537.) “It is fundamental that a demurrer is an attack against the complaint on its face, it should not be sustained unless the complaint shows that the action may not be pursued.” (Yolo County Dept. of Social Services v. Municipal Court (1980) 107 Cal.App.3d 842, 846-847.)
“It is not the ordinary function of a demurrer to test the truth of the plaintiff’s allegations or the accuracy with which he describes the defendant’s conduct. A demurrer tests only the legal sufficiency of the pleading.” (Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213.) “It ‘admits the truth of all material factual allegations in the complaint . . .; the question of plaintiff's ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.’ [Citation.]” (Id. at pp. 213-214; see Cook v. De La Guerra (1864) 24 Cal. 237, 239: “[I]t is not the office of a demurrer to state facts, but to raise an issue of law upon the facts stated in the pleading demurred to.”)
III. Analysis.
C. Timeliness.
As a preliminary matter, plaintiff Dr. Gilbert opposes defendants Stanford University, SHC, and Dr. Blomkalns’ demurrer on the ground that defendants did not timely file the demurrer. Code of Civil Procedure, § 430.40, subdivision (a) states, “A person against whom a complaint … has been filed may, within 30 days after service of the complaint …, demur to the complaint.” Proofs of service filed with the court indicate defendants Stanford University and SHC were personally served on 15 June 2021 whereas defendant Dr. Blomkalns was personally served on 10 June 2021. Based on these dates of service, defendants had until 15 July 2021 and 10 July 2021, respectively. Plaintiff’s counsel agreed to extend defendants’ deadline to respond until 30 July 2021.[12] Plaintiff’s counsel and defendants’ counsel negotiated for a further extension but did not reach any further agreement.[13]
Defendants filed the instant demurrer on 14 September 2021. [Court records also indicate defendants attempted to file a demurrer on 9 September 2021 but the court clerk rejected the filing, apparently for defendants’ failure to pay a filing fee of $435.00 for each defendant.]
On 20 September 2021, plaintiff Dr. Gilbert filed a request for entry of default against each of the named defendants. Plaintiff Dr. Gilbert’s request for entry of default remain pending.
“Technically, defendants are ‘in default’ if they fail to file an answer, demurrer or other permitted response within the time allowed by law and without a court order excusing such filing. [¶] By itself, being ‘in default’ has no legal consequences because defendant can still appear in the action until the clerk has entered his or her default. [¶] Thus, even though the time to respond has expired, if no default yet has been entered, defendant can file a pleading or motion.” (Weil & Brown, et al., CAL. PRAC. GUIDE: Civil Procedure before Trial (The Rutter Group 2020) ¶¶5:2 – 5:3, p. 5-1 citing Goddard v. Pollock (1974) 37 Cal.App.3d 137, 141—“it is now well established by the case law that where a pleading is belatedly filed, but at a time when a default has not yet been taken, the plaintiff has, in effect, granted the defendant additional time within which to plead and he is not strictly in default.”) “An untimely demurrer may be considered by the court in its discretion.” (Id. at ¶7:24, p. 7(I)-16 citing Jackson v. Doe (2011) 192 Cal.App.4th 742, 750 (Jackson).)
Plaintiff Dr. Gilbert contends Jackson is distinguishable because plaintiff has already taken steps toward a default judgment by filing requests for entry of default. The standard actually enunciated by the court in Jackson is that the court has discretion to disregard any error or defect that does not affect the substantial rights of the parties. (Jackson, supra, 192 Cal.App.4th at p. 750.)
Here, it is this Court’s opinion that plaintiff’s substantial rights are not affected as entry of default would not be granted where defendants’ filing of a demurrer preceded plaintiff’s filing of a request for entry of default and even if default had been entered, default would, in all likelihood, be set aside. Plaintiff has not demonstrated any resulting prejudice. As such, the Court will exercise its discretion to consider defendants Stanford University, SHC, and Dr. Blomkalns’ demurrer on its merits.
D. Defendant SHC’s demurrer to plaintiff Dr. Gilbert’s complaint is OVERRULED.
Without specifically identifying which causes of action are directed against it, defendant SHC demurs generally to plaintiff Dr. Gilbert’s entire complaint by arguing that it is a “local hospital district” which, as a matter of law, cannot employ physicians so plaintiff Dr. Gilbert’s employment claims against defendant SHC are barred.
In this Court’s review of the complaint, only the seventh (breach of contract), eighth (breach of implied contract), ninth (breach of implied covenant of good faith and fair dealing), and twenty-sixth (unfair business practices) causes of action are directed against defendant SHC. Plaintiff Dr. Gilbert does not allege that defendant SHC employed him. Instead, the complaint alleges defendant Stanford University and one or more Doe defendants (collectively, “University Entities”) employed plaintiff Dr. Gilbert. (See Complaint, ¶1.)
Moreover, defendant SHC’s argument relies on an extrinsic fact, i.e., that defendant SHC is a “local hospital district.” Nowhere in the complaint is there an allegation that defendant SHC is a “local hospital district” nor is there any request by defendant SHC for the Court to take judicial notice of some fact which would establish that defendant is a “local hospital district.” “In reviewing the sufficiency of a complaint against a general demurer, we are guided by long settled rules. ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. We also consider matters which may be judicially noticed.’” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
Accordingly, defendant SHC’s demurrer to plaintiff Dr. Gilbert’s complaint on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code of Civil Procedure, § 430.10, subd. (e)] is OVERRULED.
E. Defendants Stanford University, SHC, and Dr. Blomkalns’ demurrer to plaintiff Dr. Gilbert’s complaint on the ground of uncertainty is OVERRULED.
Defendants demur to plaintiff Dr. Gilbert’s complaint on the ground of uncertainty. More specifically, defendants contend the complaint is uncertain because plaintiff Dr. Gilbert directs some of his causes of action against “the applicable University Entity(ies); at least SHC; or “all applicable defendants.”
“‘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.]’” (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.)
The Court does not find such allegations to be so uncertain that defendants cannot respond. Plaintiff Dr. Gilbert’s use of the above language is no different than a plaintiff who asserts claims against a named defendant and unnamed Doe defendants. A plaintiff may ultimately pursue liability against only one defendant (dismissing non-liable defendants) or pursue liability against multiple defendants. Each defendant, however, can and should respond as though liability is directed against them.
Defendants contend plaintiff Dr. Gilbert’s use of the defined term, “University Entities,” is uncertain because it has not been defined. However, as noted above, plaintiff Dr. Gilbert has adequately defined the term to include defendant Stanford University and one or more Doe defendants. Defendants apparently misunderstand the definition to include defendant SHC, resulting in confusion. However, a plain reading of the definition at paragraph 1 of the complaint makes clear that defendant SHC is not one of the “University Entities.”
Accordingly, defendants Stanford University, SHC, and Dr. Blomkalns’ demurrer to plaintiff Dr. Gilbert’s complaint on the ground that the pleading is uncertain [Code of Civil Procedure, § 430.10, subd. (f)] is OVERRULED.
F. Defendants Stanford University and SHC’s demurrer to the breach of contract (fifth through ninth) causes of action in plaintiff Dr. Gilbert’s complaint is SUSTAINED, in part, and OVERRULED, in part.
“To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff's performance of the contract or excuse for nonperformance, (3) the defendant's breach, and (4) the resulting damage to the plaintiff.” (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.)
In demurring, defendants Stanford University and SHC rely, in part, upon Gautier v. General Tel. Co. (1965) 234 Cal.App.2d 302, 305 where the court wrote, “If, as plaintiffs allege, they are ignorant as to whether the contract is written or oral, the law nonetheless requires that there be an allegation of such verbal agreement by setting forth the substance of its relative terms.” Defendants contend plaintiff Dr. Gilbert has not specified the terms of the purported agreement, who breached them, or how plaintiff was damaged.
In the fifth cause of action for breach of contract against defendant Stanford University, the complaint alleges, in relevant part, “A contractual relationship for employment existed between Dr. Gilbert and at least one or more of the University Entities (at least Stanford University), whereby Dr. Gilbert provided work for which he was to receive promised consideration in various forms.” (See Complaint, ¶58.) Thus, at minimum, the complaint alleges “Dr. Gilbert provided work for which he was to receive promised consideration in various forms.” This suffices to state the substance of the contract’s terms. Breach is alleged at paragraph 60 wherein the complaint states, in relevant part, defendant Stanford University breached “by ending Dr. Gilbert’s further employment … and also failing to provide promised compensation, benefits, and reimbursement.”
In the sixth cause of action for breach of implied contract, the complaint sufficiently alleges, in relevant part, defendant Stanford University “impliedly promised that Dr. Gilbert’s employment would be contractually committed to extend into multiple future years, … impliedly promised and confirmed that Dr. Gilbert would be paid at least his regular statutory compensation when due, appropriate compensation for all his Variance Shifts, certain other compensation (such as bonus compensation) and reimbursement of expenses Dr. Gilbert had incurred relating to his employment.” (See Complaint, ¶65.) Dr. Gilbert “was … not timely paid significant compensation, was denied extremely valuable benefits and was not reimbursed for certain submitted expenses. (See Complaint, ¶¶27, 63, and 66.) Any further detail can be obtained or clarified during discovery.
Accordingly, defendant Stanford University’s demurrer to the fifth and sixth causes of action in plaintiff Dr. Gilbert’s complaint on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code of Civil Procedure, § 430.10, subd. (e)] is OVERRULED.
However, as to defendant SHC, plaintiff’s claims for breach of contract and breach of implied contract are deficient. Unlike the fifth and sixth causes of action directed against defendant Stanford University, the seventh and eighth causes of action do not adequately specify defendant SHC’s breach.
Accordingly, defendant SHC’s demurrer to the seventh and eighth causes of action in plaintiff Dr. Gilbert’s complaint on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code of Civil Procedure, § 430.10, subd. (e)] is SUSTAINED with 10 days’ leave to amend.
With regard to the ninth cause of action for breach of implied covenant of good faith and fair dealing directed at both defendant Stanford University and defendant SHC, defendants contend the cause of action fails because a necessary predicate is the existence of a contractual relationship. “The prerequisite for any action for breach of the implied covenant of good faith and fair dealing is the existence of a contractual relationship between the parties, since the covenant is an implied term in the contract.” (Smith v. City and County of San Francisco (1990) 225 Cal.App.3d 38, 49.) However, the court understood defendants to argue above that plaintiff Dr. Gilbert had not sufficiently stated the terms of the respective contracts, but defendants did not make a persuasive argument that plaintiff Dr. Gilbert had not sufficiently stated the existence of the respective contracts.
Accordingly, defendant Stanford University’s demurrer to the ninth cause of action in plaintiff Dr. Gilbert’s complaint on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code of Civil Procedure, § 430.10, subd. (e)] is OVERRULED.
G. Defendants Stanford University and Dr. Blomkalns’ demurrer to the tenth and eleventh (misrepresentation) causes of action in plaintiff Dr. Gilbert’s complaint is OVERRULED.
“Fraud actions are subject to strict requirements of particularity in pleading. … Accordingly, the rule is everywhere followed that fraud must be specifically pleaded.” (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216.) “The pleading should be sufficient to enable the court to determine whether, on the facts pleaded, there is any foundation, prima facie at least, for the charge of fraud.” (Commonwealth Mortgage Assurance Co. v. Superior Court (1989) 211 Cal.App.3d 508, 518.) The court in Lazar v. Superior Court (1996) 12 Cal.4th 631, 645 did not comment on how these particular allegations met the requirement of pleading with specificity in a fraud action, but the court did say that “this particularity requirement necessitates pleading facts which ‘show how, when, where, to whom, and by what means the representations were tendered.’ A plaintiff’s burden in asserting a claim against a corporate employer is even greater. In such a case, the plaintiff must ‘allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.”
Defendants Stanford University and Dr. Blomkalns demur to the tenth and eleventh causes of action for intentional misrepresentation and negligent misrepresentation, respectively, on the ground that plaintiff Dr. Gilbert has not alleged, with specificity, what misrepresentations were made. However, as plaintiff Dr. Gilbert points out in opposition, both causes of action incorporate by reference earlier allegations made in the complaint including the allegation found at paragraph 19 which states, in relevant part, “Dr. Blomkalns committed to Dr. Gilbert that his return to multi-year appointments would resume again in 2020 (as it had been done repeatedly previously).”
Accordingly, defendants Stanford University and Dr. Blomkalns’ demurrer to the tenth and eleventh causes of action in plaintiff Dr. Gilbert’s complaint on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code of Civil Procedure, § 430.10, subd. (e)] is OVERRULED.
H. Defendants Stanford University and Dr. Blomkalns’ demurrer to the twentieth through twenty-second causes of action in plaintiff Dr. Gilbert’s complaint is OVERRULED.
The elements for the tort of intentional interference with prospective economic advantage “are usually stated as follows: (1) an economic relationship between the plaintiff and some third party, with the probability of future economic benefit to the plaintiff; (2) the defendant’s knowledge of the relationship; (3) intentional acts on the part of the defendant designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to the plaintiff proximately caused by the acts of the defendant.” (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1153.)
“The tort of negligent interference with prospective economic advantage is established where a plaintiff demonstrates that (1) an economic relationship existed between the plaintiff and a third party which contained a reasonably probable future economic benefit or advantage to plaintiff; (2) the defendant knew of the existence of the relationship and was aware or should have been aware that if it did not act with due care its actions would interfere with this relationship and cause plaintiff to lose in whole or in part the probable future economic benefit or advantage of the relationship; (3) the defendant was negligent; and (4) such negligence caused damage to plaintiff in that the relationship was actually interfered with or disrupted and plaintiff lost in whole or in part the economic benefits or advantage reasonably expected from the relationship.” (North American Chemical Co. v. Superior Court (1997) 59 Cal.App.4th 764, 786.)
The elements which a plaintiff must plead to state the cause of action for intentional interference with contractual relations are (1) a valid contract between plaintiff and a third party; (2) defendant’s knowledge of this contract; (3) defendant’s intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage. (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 55; Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1239; see also CACI, No. 2201.)
Common to all three of these claims is a requirement of an economic relationship/ contract with a third party. Defendants reiterate the earlier argument that plaintiff Dr. Gilbert cannot enter into an employment relationship with defendant SHC. As explained above, there are no allegations or judicially-noticed facts which preclude such a relationship as a matter of law. Defendants also contend that it is unclear whether defendant SHC is a third party. As explained above, this contention is based on defendants’ misunderstanding as to whether defendant SHC is one of the “University Entities.” Defendants also contend plaintiff Dr. Gilbert has not specified the wrongful conduct upon which these claims are based. However, such allegations are found at paragraph 32, i.e., illegal disparagements of plaintiff Dr. Gilbert by one or more University Entity management personnel with the intent to interfere.
Accordingly, defendants Stanford University and Dr. Blomkalns’ demurrer to the twentieth through twenty-second causes of action in plaintiff Dr. Gilbert’s complaint on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code of Civil Procedure, § 430.10, subd. (e)] is OVERRULED.
I. Defendants Stanford University and Dr. Blomkalns’ demurrer to the twenty-third through twenty-fifth (defamation, false light, violation of Labor Code §§1050 et seq.) causes of action in plaintiff Dr. Gilbert’s complaint is SUSTAINED.
Plaintiff Dr. Gilbert’s twenty-third through twenty-fifth causes of action are premised upon the allegations that defendants Dr. Blomkalns and Stanford University communicated materially false and/or otherwise defamatory statements to one or more persons associated with SHC’s hiring of Dr. Gilbert directly resulting in SHC canceling Dr. Gilbert’s start date (Complaint, ¶149); caused to be made public claimed facts about Dr. Gilbert that were injurious to his professional and personal reputations (Complaint, ¶156); and attempted to prevent, and did in fact prevent, Dr. Gilbert from starting employment with SHC by communicating various defamatory representations concerning him to SHC (Complaint, ¶164.)
Defendants Stanford University and Dr. Blomkalns demur by arguing, among other things, that plaintiff Dr. Gilbert has not alleged the specific words or substance of the defamatory statements. (See Ellenberger v. Espinosa (1994) 30 Cal.App.4th 943, 951—“As defendant correctly points out, plaintiff's complaint is defective because it " '… does not allege either the specific words or the substance of [the] statements … but instead merely alleges the conclusions of the pleader that statements were made which "intimated and suggested" that plaintiff had done certain wrongful things.' [Citation.]")
In opposition, plaintiff Dr. Gilbert cites Okun v. Superior Court (1981) 29 Cal.3d 442, 458 (Okun) where the court wrote:
Less particularity is required when it appears that defendant has superior knowledge of the facts, so long as the pleading gives notice of the issues sufficient to enable preparation of a defense. (Bradley v. Hartford Acc. & Indem. Co. (1973) 30 Cal.App.3d 818, 825 [106 Cal.Rptr. 718]; Schessler v. Keck (1954) 125 Cal.App.2d 827, 835 [271 P.2d 588] (upholding pleading on information and belief).) Nor is the allegation defective for failure to state the exact words of the alleged slander. Notwithstanding an early dictum cited here (Haub v. Friermuth (1905) 1 Cal.App. 556, 557 [82 P. 571]), we conclude that slander can be charged by alleging the substance of the defamatory statement. (See Lipman v. Brisbane Elementary Sch. Dist. (1961) 55 Cal.2d 224, 235 [11 Cal.Rptr. 97, 359 P.2d 465]; Schessler v. Keck, supra, 125 Cal.App.2d 827, 830 (sustaining allegation of statement that "plaintiff was being treated for syphilis . . . and . . . should not be employed as a cook"); cf. des Granges v. Crall (1915) 27 Cal.App. 313, 315 [149 P. 777] (requiring exact pleading of words of libel).)
However, even in Okun, the allegations were much more specific than what plaintiff Dr. Gilbert has alleged here. In Okun, the relevant allegations stated:
Defendants Does 301 through 400, inclusive, made the following oral statement (the 'Slanderous Statement'): that [plaintiff] had entered into a corrupt relationship with Councilman Stone, and Stone, pursuant to this arrangement, had improperly influenced the City Planning Commission and staff and the City Council in order to favor [plaintiff] in zoning and land trades with the City a nd had unlawfully used his influence as a City Councilman for the private gain of [plaintiff]. Defendants Does 301 through 400, inclusive, made the Slanderous Statement to members of the Beverly Hills community."
By way of innuendo it is alleged that the "Slanderous Statement" was intended and understood to mean that plaintiff "had committed the crimes of bribery and corruption."
(Okun, supra, 29 Cal.3d at pp. 457-458.)
Here, the court is of the opinion that plaintiff Dr. Gilbert has not sufficiently alleged either the specific words or the substance of the purportedly defamatory statements.
Accordingly, defendants Stanford University and Dr. Blomkalns’ demurrer to the twenty-third through twenty-fifth causes of action in plaintiff Dr. Gilbert’s complaint on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code of Civil Procedure, § 430.10, subd. (e)] is SUSTAINED with 10 days’ leave to amend.
IV. Tentative Ruling.
The tentative ruling was duly posted.
V. Case Management.
There is currently a further Case Management Conference set for 8 March 2022 at 10:00 AM in this Department. This Court will VACATE that date and reset the case management conference to 17 March 2022 at 10:00 AM in this Department but will hear the matter following the two law and motion matters currently set at 9:00 AM on that date.
VI. Order.
Defendant SHC’s demurrer to the seventh and eighth causes of action in plaintiff Dr. Gilbert’s complaint on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code of Civil Procedure, § 430.10, subd. (e)] is SUSTAINED with 10 days’ leave to amend.
Defendants Stanford University and Dr. Blomkalns’ demurrer to the twenty-third through twenty-fifth causes of action in plaintiff Dr. Gilbert’s complaint on the ground that the pleading does not state facts sufficient to constitute a cause of action [Code of Civil Procedure, § 430.10, subd. (e)] is SUSTAINED with 10 days’ leave to amend.
Defendants Stanford University, SHC, and Dr. Blomkalns’ demurrer to plaintiff Dr. Gilbert’s complaint is otherwise OVERRULED.
|___________________________ |______________________________________________ |
|DATED: |HON. SOCRATES PETER MANOUKIAN |
| |Judge of the Superior Court |
| |County of Santa Clara |
- ooOoo –
Calendar Line 4
| | |
|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.: |18CV328234 |Biniyam Anbessie v. Henshaw & Henry, et al. |
|DATE: 4 January 2022 |TIME: 9:00 am |LINE NUMBER: 4 |
|This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 20 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. |
|Any party opposing the tentative ruling must call Department 20 at 408.808.6856 and the opposing party no later than 4:00 PM on 03 January 2022. Please specify|
|the issue to be contested when calling the Court and Counsel. |
|---oooOooo--- |
|Order on Plaintiff’s Motion for Summary Judgment And/or Summary Adjudication. |
I. Statement of Facts.
Hok Yeung (“Yeung”) sued plaintiff Biniyam Anbessie (“Anbessie”) in Santa Clara County Superior Court, case number 16CV290419 (“Underlying Action”) for breach of oral contract, money had and received, and fraud, among other causes of action, arising out of monies ($271,080) invested by Yeung. (First Amended Complaint (“FAC”), ¶12.)
In the Underlying Action, Yeung alleged that, on or about 30 May 2013, he entered into an oral agreement to lend money to help Anbessie in the purchase of a home and operation of Anbessie’s business. (FAC, ¶13.) At Anbessie’s request, Yeung maintained a joint bank account with Yeung and Anbessie as signatories. (Id.) Yeung alleged that Anbessie breached the contract by failing to pay amounts by the time specified in their agreement. (Id.)
Yeung further alleged Anbessie made misrepresentations on or about 15 July 2013 that (1) Yeung would receive a secured interest in Anbessie’s home and automobiles; (2) Anbessie would sell the automobile[s] at any time Yeung wanted his money back and 20% gross profit for each automobile sold would be applied to the debt until repaid; and (3) Anbessie would not give other creditors senior positions on the automobiles. (Id.)
Yeung’s relationship with Anbessie was not as a lender/creditor but as a business partner in which Yeung invested. (FAC, ¶14.) The majority of monies Yeung provided to Anbessie was for investments into Anbessie’s automobile business. (Id.) The investments required Anbessie provide Yeung with 20% of the profits made for the sale of vehicles purchased with Yeung’s money. (Id.)
No later than 6 April 2016, plaintiff Anbessie entered into an attorney-client relationship with defendants David Samuel Henshaw; Henshaw & Henry, PC; Timothy Dalton Henry; Negine Marie Mansour-Sewitsky; Ji Wan Kim; and Henshaw Law Office (collectively, “Defendants”) through a written agreement with defendant Henshaw & Henry, PC to defend Anbessie in the Underlying Action and to advise on investment strategies concerning Anbessie’s business and cash finances. (FAC, ¶15.)
Defendants breached their duty of care to plaintiff Anbessie by, among other things, failing to oppose an application for writ of attachment brought by Yeung and, instead, allowing the application to be granted and a lien placed on plaintiff Anbessie’s home. (FAC, ¶17.) It is Anbessie’s contention that attachment was not available as a matter of law because Yeung was an investor and not a lender/creditor. (Id.)
On or about 8 November 2017, Defendants substituted out of the Underlying Action as Anbessie’s counsel. (FAC, ¶19.) As a direct and proximate result of Defendants’ wrongful acts, plaintiff Anbessie has suffered damages expected to exceed $600,000. (FAC, ¶20.)
On 14 May 2018[14], plaintiff Anbessie filed a complaint against defendant David S. Henshaw and Henshaw Law Office asserting a single cause of action for professional negligence.
On 16 May 2018, defendant David S. Henshaw dba Henshaw Law Office (“Henshaw”) filed an answer to plaintiff Anbessie’s complaint and also filed a cross-complaint alleging Anbessie failed to pay $7,481 for Henshaw’s legal services in the Underlying Action. Henshaw’s cross-complaint asserts causes of action for: (1) breach of contract; and (2) quantum meruit.
On 17 May 2018, plaintiff Anbessie filed the operative FAC against Defendants now asserting causes of action for:
36) Professional Negligence
37) Breach of Contract
On 22 June 2018, Anbessie filed a general denial to cross-complainant Henshaw’s cross-complaint.
On 27 June 2018, Defendants separately filed answers to plaintiff Anbessie’s FAC.
On 6 August 2021, plaintiff Anbessie filed the motion now before the court, a motion for summary judgment/ adjudication of the FAC.
II. Motions for Summary Judgment in General.
Any party may move for summary judgment. (Code of Civil Procedure, § 437c, subd. (a); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843 (Aguilar).) The motion “shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code of Civil Procedure, § 437c, subd. (c); Aguilar, supra, at p. 843.) The object of the summary judgment procedure is “to cut through the parties’ pleadings” to determine whether trial is necessary to resolve the dispute. (Aguilar, supra, at p. 843.)
The “party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact…” (Aguilar, supra, 25 Cal.4th at p. 850; see Evidence Code, § 110.) “A prima facie showing is one that is sufficient to support the position of the party in question.” (Aguilar, supra, at p. 851.) A defendant moving for summary judgment may satisfy its initial burden either by producing evidence of a complete defense or by showing the plaintiff’s inability to establish a required element of the case. (Code of Civil Procedure, § 437c, subd. (p)(2); Aguilar, supra, at p. 853.)
Throughout the process, the trial court “must consider all of the evidence and all of the inferences drawn therefrom.” (Aguilar, supra, 25 Cal.4th at p. 856.) The moving party’s evidence is strictly construed, while the opponent’s is liberally construed. (Id. at p. 843.)
Similarly, “[a] party may seek summary adjudication on whether a cause of action, affirmative defense, or punitive damages claim has merit or whether a defendant owed a duty to a plaintiff. A motion for summary adjudication…shall proceed in all procedural respects as a motion for summary judgment.” (California Bank & Trust v. Lawlor (2013) 222 Cal.App.4th 625, 630, internal citations and quotation marks omitted.)
III. Analysis.
A. Plaintiff Anbessie’s motion for summary judgment is DENIED.
“A party may move for summary judgment in an action or proceeding if it is contended that the action has no merit or that there is no defense to the action or proceeding.” (Code Civ. Proc., §437c, subd. (a).) “For purposes of motions for summary judgment and summary adjudication: A plaintiff or cross-complainant has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action.” (Code Civ. Proc., §437c, subd. (p)(1).)
Thus, to obtain summary judgment of the entire FAC, plaintiff Anbessie’s initial burden is to prove each element of each cause of action or show that there is no defense to each cause of action. The FAC asserts two causes of action: (1) professional negligence and (2) breach of contract. Plaintiff Anbessie focuses on the first cause of action for professional negligence, but does not address the second cause of action for breach of contract.[15] Since plaintiff Anbessie’s motion does not dispose of the entire action, plaintiff Anbessie’s motion for summary judgment is DENIED.
B. Plaintiff Anbessie’s motion for summary adjudication of the first cause of action [professional negligence] is DENIED.
“In order to establish a cause of action for legal malpractice the plaintiff must demonstrate: (1) breach of the attorney’s duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a proximate causal connection between the negligent conduct and the resulting injury; and (3) actual loss or damage resulting from the negligence.” (Carlton v. Quint (2000) 77 Cal.App.4th 690, 699; see also CACI No. 600.)
1. Breach.
In moving for summary adjudication of the professional negligence cause of action, plaintiff Anbessie proffers the declaration of his own attorney[16] who opines Defendants breached the standard of care in multiple respects.[17] Most significantly, plaintiff Anbessie asserts Defendants’ legal services fell below the standard of care “in that Defendants failed to assert their client’s [statute of frauds] Defense at any time during the Underlying Case, either in the answer they prepared on July 13, 2016 or in any other way, whether to analyze and advise Anbessie as to the merits of his defenses, in opposition to various motions made by Hok [Yeung] where the merits were a subject of the motion, or in a Motion for Summary Judgment and/or Summary Adjudication or in a counterclaim, preventing Anbessie from achieving what should have been a simple defense, but which was lost when it had not been made at the time the Underlying Case was so close to trial as a matter of law.”[18]
Plaintiff Anbessie asserts Defendants concede some of the various breaches without specifying which ones. However, plaintiff Anbessie does not direct this court to any evidence which establish Defendants’ concession that they breached the standard of care. Moreover, in opposition, Defendants dispute at least some of the underlying breaches.[19] For instance, plaintiff Anbessie proffers his attorney’s declaration to assert that “Defendants failed to properly organize and turn over their complete files to Cohn, as successor counsel, so that Cohn could have had more time to prepare the case properly for trial.”[20] Defendants proffer evidence in opposition that they turned over their whole physical file, as well as an electronic file to Anbessie when he decided to change attorneys.[21] At the very least, this presents a triable issue of material fact which would preclude summary adjudication of this cause of action.
2. Causation.
Even if the court accepted plaintiff Anbessie’s assertion that Defendants concede their breach, plaintiff Anbessie has not met his initial burden of demonstrating a proximate causal connection between Defendants’ negligent conduct and the resulting injury and/or the court finds the existence of a triable issue of material fact with regard to causation.
In a litigation malpractice action, the plaintiff must establish that but for the alleged negligence of the defendant attorney, the plaintiff would have obtained a more favorable judgment or settlement in the action in which the malpractice allegedly occurred. The purpose of this requirement, which has been in use for more than 120 years, is to safeguard against speculative and conjectural claims. (Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal.App.4th 820, 832-834 [60 Cal. Rptr. 2d 780].) It serves the essential purpose of ensuring that damages awarded for the attorney's malpractice actually have been caused by the malpractice. (Id. at p. 834.)
(Viner v. Sweet (2003) 30 Cal.4th 1232, 1241.)
Plaintiff Anbessie begins his argument regarding causation with the assertion that Defendants concede causation as to all of Yeung’s claims in the Underlying Action except Yeung’s claim for money had and received. The evidence cited by plaintiff Anbessie does not support such an assertion.[22] [The court pauses here to note that it was extremely difficult to identify and locate the underlying evidence cited by plaintiff Anbessie due to plaintiff Anbessie’s failure to properly identify the exhibits attached to the supporting declarations. See Cal. Rules of Court, rule 3.1110, subd. (f).)] In this court’s opinion, the evidence cited by plaintiff Anbessie does not establish that but for Defendants’ negligence, plaintiff Anbessie would have obtained a more favorable result in the Underlying Action. Later in their separate statement, plaintiff Anbessie and his counsel also proffer their conclusion/ opinion that, “Had Anbessie’s defenses been properly asserted, and had he thus been found not liable to Hok [Yeung] and/or had a complete defense to Hok [Yeung]’s claims, he would have received a better result than he did.”[23]
Even so, the court finds a triable issue of material fact exists with regard to the issue of causation based upon the facts proffered in opposition that plaintiff Anbessie terminated Defendants, retained different counsel, and later settled the Underlying Action for $200,000 prior to trial. Retaining different counsel and settling the Underlying Action calls into question the causal nexus between Defendants’ failure to assert defenses and any resulting harm as new counsel/ plaintiff Anbessie could have asserted the defense(s) at trial.
Furthermore, Defendants raise another triable issue regarding causation by proffering evidence that there were facts from which Yeung could have asserted estoppel to counter a statute of frauds defense.[24] (See 1 Witkin, Summary of California Law (10th ed. 2005) Contracts, §409, p. 449—“The oral agreement will be held binding … if (a) the plaintiff, in reliance upon it, has so changed his or her position that unconscionable injury would be suffered, or (b) the defendant, having accepted the benefits of the oral contract, would be unjustly enriched by nonenforcement.
Although the plaintiff’s change of position could take place without the defendant being unjustly enriched, and vice versa, both elements are so frequently present that the same decisions may be cited on both theories.” See also Monarco v. Lo Greco (1950) 35 Cal.2d 621, 623-624:
“The doctrine of estoppel to assert the statute of frauds has been consistently applied by the courts of this state to prevent fraud that would result from refusal to enforce oral contracts in certain circumstances. Such fraud may inhere in the unconscionable injury that would result from denying enforcement of the contract after one party has been induced by the other seriously to change his position in reliance on the contract [citations], or in the unjust enrichment that would result if a party who has received the benefits of the other's performance were allowed to rely upon the statute. [Citations.] In many cases both elements are present. Thus not only may one party have so seriously changed his position in reliance upon, or in performance of, the contract that he would suffer an unconscionable injury if it were not enforced, but the other may have reaped the benefits of the contract so that he would be unjustly enriched if he could escape its obligations.”
Consequently, plaintiff Anbessie’s alternative motion for summary adjudication of the first cause of action is DENIED.
[In his notice of motion, plaintiff Anbessie requests, in the alternative, partial summary adjudication of the first cause of action. The Code of Civil Procedure does authorize partial summary adjudication. “Notwithstanding subdivision (f), a party may move for summary adjudication of a legal issue or a claim for damages other than punitive damages that does not completely dispose of a cause of action, affirmative defense, or issue of duty pursuant to this subdivision.” (Code Civ. Proc., §437c, subd. (t).)
However, a motion for partial summary adjudication pursuant to subdivision (t) must be pursuant to joint stipulation and order of the court (see Code Civ. Proc., §437c, subd. (t)(1)-(2)), which did not occur here.]
C. Anbessie’s motion for summary adjudication as to issue of duty is DENIED.
In his notice of motion, plaintiff Anbessie also requests, alternatively, summary adjudication as to issues of duty. Code of Civil Procedure section 437c, subdivision (f)(1) allows a party to move for summary adjudication as to “one or more issues of duty, if that party contends … that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.”
However, plaintiff Anbessie offers no relevant argument in support of his request for summary adjudication of various issues of duty. (See Cal. Rules of Court, rule 3.1113, subd. (a) – (b)—“The court may construe the absence of a memorandum [containing evidence and arguments relied on, and a discussion of the statutes, cases, and textbooks cited in support of the position advanced] as an admission that the motion … is not meritorious.”)
Accordingly, plaintiff Anbessie’s alternative motion for summary adjudication as to issues of duty is DENIED.
D. Plaintiff Anbessie’s motion for summary adjudication of affirmative defenses is DENIED.
When a plaintiff moves for summary adjudication on an affirmative defense, the court shall grant the motion “only if it completely disposes” of the defense. (Code Civ. Proc., § 437c, subd. (f)(1), italics added.) The plaintiff bears the initial burden to show there is no triable issue of material fact as to the defense and that he or she is entitled to judgment on the defense as a matter of law. In so doing, the plaintiff must negate an essential element of the defense, or establish the defendant does not possess and cannot reasonably obtain evidence needed to support the defense. (See Securitas Security Services USA, Inc. v. Superior Court, supra, 197 Cal.App.4th at pp. 119–120; Code Civ. Proc., § 437c, subd. (f); see also Westlye v. Look Sports, Inc. (1993) 17 Cal.App.4th 1715, 1726–1727 [22 Cal. Rptr. 2d 781].)
If the plaintiff does not make this showing, “ ‘it is unnecessary to examine the [defendant's] opposing evidence and the motion must be denied.’ ” (Rehmani v. Superior Court (2012) 204 Cal.App.4th 945, 950 [139 Cal. Rptr. 3d 464].) “ ‘However, if the moving papers establish a prima facie showing that justifies a [ruling] in the [plaintiff's] favor, the burden then shifts to the [defendant] to make a prima facie showing of the existence of a triable material factual issue.’ ” (Ibid.)
(See's Candy Shops, Inc. v. Superior Court (2012) 210 Cal.App.4th 889, 899-900.)
In the alternative, plaintiff Anbessie also seeks summary adjudication of Defendants’ second and third affirmative defenses for comparative fault and unclean hands, respectively. Plaintiff Anbessie begins with the unclean hands affirmative defense. As explained above, plaintiff Anbessie must either negate an essential element of the defense or establish that Defendants do not possess and cannot reasonably obtain evidence to support the defense. Plaintiff Anbessie has not met his initial burden. Plaintiff Anbessie proffers evidence that in response to an interrogatory asking for facts in support of the third affirmative defense, Defendants provided a response which plaintiff Anbessie characterizes as “inconsistent statements.”[25] Plaintiff Anbessie goes on to argue that even if plaintiff Anbessie made inconsistent statements, it would not support a defense of unclean hands.
In Kendall-Jackson Winery, Ltd. v. Superior Court (1999) 76 Cal.App.4th 970, 978 (Kendall-Jackson), the court addressed the doctrine of unclean hands on summary judgment recognizing that, “Whether the doctrine of unclean hands applies is a question of fact.” The Kendall-Jackson court restated a three-prong test in determining whether to apply the doctrine. “Whether the particular misconduct is a bar to the alleged claim for relief depends on (1) analogous case law, (2) the nature of the misconduct, and (3) the relationship of the misconduct to the claimed injuries.” (Id. at p. 979.)
The court finds plaintiff Anbessie has not met his initial burden based on Defendants’ response to an interrogatory and has not offered any analogous case law upon which this court could determine, as a matter of law, that the doctrine of unclean hands would not apply in this case.
With regard to the second affirmative defense, plaintiff Anbessie again points to Defendants’ response to an interrogatory asking for facts in support of the second affirmative defense.[26] Plaintiff Anbessie then re-asserts he bore no liability to Yeung and, thus, had no fault. Based on this minimal evidence and argument, the court finds plaintiff has not met his initial burden.
Accordingly, plaintiff Anbessie’s alternative motion for summary adjudication of Defendants’ second and third affirmative defenses is DENIED.
IV. Tentative Ruling.
The tentative ruling was duly posted.
V. Case Management.
The matter is set for a Mandatory Settlement Conference on 9 March 2022 and a Long Cause Court Trial on 14 March 2022.
VI. Order.
Plaintiff Anbessie’s motion for summary judgment is DENIED.
Plaintiff Anbessie’s alternative motion for summary adjudication of the first cause of action is DENIED.
Plaintiff Anbessie’s alternative motion for summary adjudication as to issues of duty is DENIED.
Plaintiff Anbessie’s alternative motion for summary adjudication of Defendants’ second and third affirmative defenses is DENIED.
|___________________________ |______________________________________________ |
|DATED: |HON. SOCRATES PETER MANOUKIAN |
| |Judge of the Superior Court |
| |County of Santa Clara |
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Calendar Line 5
|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.: |18CV334657 |Platinum Roofing, Inc. v. Michael Stephenson |
|DATE: 04 January 2022 |TIME: 9:00 am |LINE NUMBER: 5 |
|This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 20 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. |
|Any party opposing the tentative ruling must call Department 20 at 408.808.6856 and the opposing party no later than 4:00 PM on 03 January 2022. Please specify|
|the issue to be contested when calling the Court and Counsel. |
|---oooOooo--- |
|Order on Motion of Plaintiff to Compel Defendant Michael Stephenson |
|to Provide Further Responses to Requests for Admissions and for Sanctions. |
Page 4 of defendant’s Memorandum of Points and Authorities is not available on Odyssey as apparently it was not properly scanned. This Court has not reviewed any reply papers filed by plaintiff. The Court would appreciate copies of these documents scanned and emailed by 5:00 PM on Monday, 3 January 2022 to
department20@
I. Statement of Facts.
Plaintiff filed this complaint on 11 September 2018.[27]
The complaint seeks damages for breach of contract and fraud associated with the purchase of a business. The complaint alleges that in May 2015, defendant sold all stock in Platinum Roofing to PRI Acquisition Corporation. Following the purchase, PRI merged into Platinum Roofing with each share converted accordingly.
Despite the requirement to disclose material information including Platinum’s liabilities during the sale process, defendant failed to disclose that Platinum filed for bankruptcy in August 2003 and still owed money to various creditors pursuant to a bankruptcy plan. Defendant also failed to produce legal documents regarding the bankruptcy, the bankruptcy plan or debts, and obligations pursuant to the plan.
As a result of the foregoing, plaintiff alleges, in the first amended complaint, six causes of action against defendant as follows:
1. breach of contract;
2. breach of the covenant of good faith and fair dealing;
3. fraud (intentional misrepresentation);
4. fraud (concealment);
5. negligent misrepresentation; and
6. securities fraud.
Defendant has filed cross-complaints against plaintiff and other third parties. The third parties are Sean Marzola, Bill Shevlin, Kelvin Khoo, and Chris O’Reilly, all in their individual capacity. Apparently defendant/cross-complainant alleges that these individuals are the “Alter Ego” of Platinum Roofing. On 12 October 2021 the parties reached an agreement concerning the deposition of defendant.
II. Motion To Compel Further Responses to Requests for Admissions
“Unless otherwise limited by order of the court in accordance with this title, any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action or to the determination of any motion made in that action, if the matter either is itself admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. Discovery may relate to the claim or defense of the party seeking discovery or of any other party to the action. Discovery may be obtained of the identity and location of persons having knowledge of any discoverable matter, as well as of the existence, description, nature, custody, condition, and location of any document, tangible thing, or land or other property.” (Code of Civil Procedure, § 2017.010.)
Discovery is allowed for any matters that are relevant to the subject matter of the action, not privileged, and reasonably calculated to lead to the discovery of admissible evidence. (See Code of Civil Procedure, § 2017.010; Calcor Space Facility, Inc. v. Superior Court (1997) 53 Cal.App.4th 216, 223.) Information is “relevant to the subject matter” if it might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement thereof. (See Gonzalez v. Superior Court (1995) 33 Cal.App.4th 1539, 1546.) These relevance standards are applied liberally with any doubt generally resolved in favor of discovery. (See Colonial Life & Acc. Ins. Co. v. Superior Court (1982) 31 Cal.3d 785, 790.)
In responding to discovery, the responding party is to make a good faith effort to determine if it is able to provide meaningful responses to the various discovery requests. This Court frowns upon a party’s “deliberate indifference to responsibility in discovery” and has “no time for such antics.” (See Collisson & Kaplan v. Hartunian, 21 Cal.App.4th 1611, 1618 (1994).)
Code of Civil Procedure, § 2033.220(a-c) and Cembrook v. Superior Court (1961) 56 Cal.2d 423, 429-430 discuss what is a proper response to a request for admission. Each answer in a response to a Request for Admission shall be as complete and straightforward as the information reasonably available to the responding party permits. Each answer shall admit so much of the matter involved in the request as is true, either as expressed in the request itself or as reasonably and clearly qualified by the responding party. Each answer shall also deny so much of the matter involved in the request as is untrue; and specify so much of the matter involved in the request as to the truth of which the responding party lacks sufficient information or knowledge. Finally, if a responding party gives lack of information or knowledge as a reason for a failure to admit all or part of a request for admission, that party shall state in the answer that a reasonable inquiry concerning the matter in the particular request has been made, and that the information known or readily obtainable is insufficient to enable that party to admit the matter.
Code of Civil Procedure, § 2033.290 concerns itself with motions to compel further responses to requests for admissions:
“(a) On receipt of a response to requests for admissions, the party requesting admissions may move for an order compelling a further response if that party deems that either or both of the following apply:
(1) An answer to a particular request is evasive or incomplete.
(2) An objection to a particular request is without merit or too general.
(b)
(1) A motion under subdivision (a) shall be accompanied by a meet and confer declaration under Section 2016.040.
(2) In lieu of a separate statement required under the California Rules of Court, the court may allow the moving party to submit a concise outline of the discovery request and each response in dispute.”
(c) Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or any specific later date to which the requesting party and the responding party have agreed in writing, the requesting party waives any right to compel further response to the requests for admission.
III. Analysis.
Plaintiff contends that defendant has failed to sufficiently respond to plaintiffs requests for admissions (set 3), requests numbered 1, 3, 4, 5, 6 and 7 as well as related form interrogatory 17.1. Defendant says that it did respond to requests for admission #2 because that one was not asked in 2018.
Defendant takes the position that these recent requests for admissions and form interrogatory are reworded discovery requests served by former counsel for Platinum Roofing on 30 October 2018. Defendant responded to those discovery requests on 18 December 2018 and eventually served amended responses. Defendant asserts that this motion is an attempt to circumvent the fact that former counsel for plaintiff missed the 45 day deadline within which to file a motion to compel further responses.
Defendant produces this chart to compare the requests for admissions served in 2018 with that which is currently at issue:
[pic]
Defendant here argues that the current motion is an attempt to Even Aid the mandatory time limit provisions concerning compelling further responses and that Code of Civil Procedure, §§ 2033.290 (request for admissions) and 2030.290 (interrogatories) are mandatory and jurisdictional, and that this Court has no power to make an order compelling further answers where the plaintiff failed to serve the necessary motions within the statutory time. (See Vidal Sassoon, Inc. v. Superior Court (1983) 147 Cal.App.3d 681; Professional Career Colleges, Magna Inst. v. Superior Court (1989) 207 Cal.App.3d 490, 492-493.)
This Court agrees with defendant.
The 45 day limitation is “jurisdictional” in the sense that it renders the court without authority to rule on motions to compel other than to deny them. (Sexton v Superior Court (1997) 5 Cal.App.4th 1403, 1410; Stanton Co. v Superior Court (1990) 225 Cal.App 3d 698: requirement for compliance by timely motion is quasi-jurisdictional in that failure limits the subsequent court order to denial of the motion to compel).)
Filing the motion to compel in a timely fashion and serving it later after the due date has passed is inadequate compliance. Motions to compel further responses pursuant to Code of Civil Procedure, §§ 2030.300(c) (interrogatories), 2031.310(c) (requests for production of documents), or 2033.290(c) (requests for admissions), must be served within 45 days of the service of the objectionable responses (or a later date under agreement in writing) or the court will lack jurisdiction to compel since a propounding party will have waived its right to move to compel further response. (See Sperber v Robinson (1994) 26 Cal.App.4th 736, 746: Motion to compel timely filed but the notice was withdrawn by the demanding party. New notice was subsequently given but after 45 days had run; resulting in a waiver of right to compel further discovery response).)
There is no basis for this Court to find a basis for the imposition of the doctrine of equitable estoppel[28] as a basis to order defendant to provide further responses.
The motion of plaintiff to compel defendant to provide further responses to request for admissions and form interrogatory is DENIED.
IV. Tentative Ruling and Hearing.
The Tentative Ruling was duly posted.
V. Case Management.
The matter is also set for a Trial Setting Conference at 11:00 AM today. Should the parties contest the ruling on the law and motion matter, the court will ask the parties to meet and confer on a trial date and the trial setting conference will be heard following the argument on this motion.
VI. Conclusion and Order.
The motion of plaintiff to compel defendant to provide further responses to request for admissions and form interrogatory 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 | |
| | |
|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.: |20CV371573 |Malcolm Francis Cobbold v. George Chihkuo Chiao |
|DATE: 04 January 2022 |TIME: 9:00 am |LINE NUMBER: 6, 7, 8 |
|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 03 January 2022. Please specify|
|the issue to be contested when calling the Court and Counsel. |
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|Orders on Motions of Defendant to: |
|1. Deem Request for Admissions to Be Admitted; |
|2. Compel Plaintiff to Answer Form Interrogatories and Request for Monetary Sanctions; and |
|3. Compel plaintiff to respond To Requests for Production of Documents and Request for Monetary Sanctions. |
I. Statement of Facts.
Plaintiff filed this complaint on 6 October 2020.[29] plaintiff claims to have been injured as a result of a motor vehicle collision between a vehicle (or was it a bicycle?) Operated by defendant and plaintiff who was a pedestrian. The accident is alleged to have occurred on 11 April 2018 on the northbound lanes of San Antonio Road in the southerly crosswalk of its intersection with Fayette Drive, apparently in the city of Mountain View.
II. Motions To Compel Plaintiff to Provide Discovery Responses.
On 24 May 2021, defendant served his form interrogatories (set number one) and request for production of documents (set number one) upon plaintiff and his attorney.
On 4 August 2021, having received no verified responses, the attorneys attended and informal discovery conference to address the overdue responses to the form interrogatories and request for production of documents and to request verified answers. To date, defense counsel has not received verified answers..
On 10 August 2021, defendant served requests for admissions upon plaintiff. To date, plaintiff has not responded.
In these motions, defendant seeks an order compelling plaintiff to provide answers to each of the three discovery devices. Defendant seeks $410.00 in attorneys fees and costs incurred in bringing each of the motions to compel responses to interrogatories and the request for production of documents. Fees and costs are not sought in the motion to deem the request for missions to be admitted.
III. Analysis.
The purpose of the civil discovery act was to do away with the sporting theory of litigation, to take the game element out of trial preparation, and eliminate surprise at trial by enabling the parties to obtain the evidence necessary to evaluate and solve their disputes beforehand.
Each of these purposes was generally expressed in the case of Hickman v. Taylor, 329 U.S., which interpreted the federal rules of discovery in 1947, and of which the California Legislature is deemed to have been cognizant when adopting those rules. (Greyhound Corp. v. Superior Court (1961) 56 Ca|.2d 355, 376.)[30]
A. Interrogatories.
1. Service of Interrogatories.
The rules and procedures governing interrogatories is set forth in Code of Civil Procedure, § 2030.010 et seq. Interrogatories may be served without leave of court any time during the action, with a few exceptions which include: (1) during the first 10 days after service of summons or defendant’s appearance in the action (whichever is first); and (2) cutoff on discovery before trial (Code of Civil Procedure, § 2030.20).) Interrogatories may be sent to any other party to the action (Code of Civil Procedure, § 2030.010(a).) The party to whom interrogatories are directed may promptly move for a protective order (Code of Civil Procedure, § 2030.090(a).)
2. Responses To Interrogatories.
Unless excused by protective order, the party to whom the interrogatories are directed is under a duty to respond to each question separately, under oath, and within the time limits. (Code of Civil Procedure, § 2030.210(a).) The response may be: (1) an answer; (2) an objection; or (3) an election to allow inspection and copying of records. (Id.)
A response that indicates an inability to respond is insufficient. If the responding party lacks personal knowledge sufficient to respond, he or she may state such only after making a reasonable good faith effort to obtain the information through other persons or organizations (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal App 4th 390, 406).) The response to the interrogatories is due within 30 days from the date the interrogatories were served. (Code of Civil Procedure, § 2030.260(a).)
The court may shorten or extend time for response by motion from one of the parties Id. Similarly, the parties may stipulate to an extension of time for responding, which must be in writing. (Code of Civil Procedure, § 2030.270).
3. Waiver of Privilege if not Timely.
Failing to respond within the time limit described above waives most objections to the interrogatories, which includes claims of privilege and work product. (Code of Civil Procedure, § § 2030.290(a); (see Leach v. Superior Court (Markum) (1980) 111 Cal App 3d 902, 905-906).) The delay in responding also waives the option to produce writings in under Code of Civil Procedure, § 2030.230 in lieu of the information contained within them (Code of Civil Procedure, § 2030.290(a).)
4. Motion to Compel Responses/Further Responses.
If a party fails to respond at all or responds with objections or incomplete answers, the propounding party’s remedy is to seek a court order compelling answers or further answers (Code of Civil Procedure, § 2030.290).) The burden to enforce discovery is on the propounding party, otherwise no penalty attaches to the responding failures inadequate responses. (Saxena v. Goffney (2008) 159 Cal.App.4th 316, 334).)
B. Requests for Admissions
1. Service of Requests for Admissions.
The rules and procedures governing requests for admissions is set forth in Code of Civil Procedure, § 2033.010 et seq. The primary purpose of RFAs is to set at rest triable issues so that they will not have to be tried, and the trial may be expedited. (Orange County Water District. v. The Arnold Eng. Co. (2018) 31 Cal App.5th 96, 115). RFAs may be served at any time during the lawsuit with a few exceptions including: (1) the first 10 days after service of summons or defendant’s appearance in the action (whichever is first); and (2) cutoff on discovery before trial (Code of Civil Procedure, § 2033.20). RFAs may be served on any other party to the action (Code of Civil Procedure, 2033.010). Instead of responding to the RFAs, the party whom was served may promptly move for a protective order (Code of Civil Procedure, § 2033.080).
2. Responses to Requests for Admissions.
The time limit for responding to Requests for Admissions (“RFAs”) is 30 days from the date the RFAs were served. (Code of Civil Procedure, § 2033.250). The Court has the power to extend or shorten the time allowed for response. Id. Additionally, the parties may agree to extend the time allowed to respond to some or all of the RFAs, but it must be confirmed in writing. (Code of Civil Procedure, § 2033.260.) The response to the RFAS must contain either an answer or an objection to the particular RFA (Code of Civil Procedure, § 2033.210(b).) If there is no objection to a particular RFA, the response must be one of the following: (1) an admission; (2) a denial; or (3) a statement claiming an inability to admit or deny. (Code of Civil Procedure, § 2033.220(b).)
3. Waiver of Privilege if not Timely.
Failure to timely respond to RFAs results in a waiver of all objections to the requests, including claims of privilege or work product protection (Code of Civil Procedure, § 2033.280(a).) The court may relieve a party who fails to file a timely response before ordering the matters to be “deemed admitted” if the court finds: (1) the party failed to serve timely responses due to mistake, inadvertence or excusable neglect; and (2) the party has subsequently served a response with is substantially compliant. (Code of Civil Procedure, § 2033.280(a).) Relief may even be granted by the court if no responses were served. (Wilcox v. Birtwhistle (1999) 21 Cal.App.4th 973, 983). Once the court orders the RFAs “deemed admitted” the party in default may file a motion to withdraw the deemed admission (Code of Civil Procedure, § 2033.300).
4. Motion to Deem RFAs to Be Admitted.
Code of Civil Procedure, § 2033.280(a) provides that if a party to whom requests for admissions have been directed fails to serve a timely response, that party thereby waives any objection to the requests, including one based on privilege or on the protection for work product under Code of Civil Procedure, § 2018.010 et seq.
Code of Civil Procedure, § 2033.280(b) provides that the requesting party may move for an order that the truth of any facts specified in the requests be deemed admitted. The Court shall make this order unless it finds that the party to whom the requests for admission have been direct and has served, before the hearing on the motion, a proposed response to the request for admissions that is in substantial compliance with Code of Civil Procedure, §§ Sections 2033.210, 2033.220, and 2033.230. (Code of Civil Procedure, § 2033.280(c).)
Failing to timely respond to RFAs does not result in automatic admissions. The propounder of the RFAs must move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted. (Code of Civil Procedure, § 2033.280(b).) There is no time limit on a motion to have matters deemed admitted, however if the motion is delayed too long, the responding party may object or seek a protective order. (Brigante v. Huang (1993) 20 Cal.App.4th 1569, 1584).
There are no specific timing restrictions in Code of Civil Procedure, § 2033.280(b) for the bringing of a motion deeming matters admitted, unlike the 45-day limitation for compelling further responses under Code of Civil Procedure, § 2033.290.
Generally a party must make a reasonable and good faith attempt at an informal resolution of any discovery dispute before bringing a motion to compel responses. However, this provision does not apply if the propounding party has received no responses whatsoever to the discovery requests. (Leach v. Superior Court of Shasta County (1980) 111 Cal.App.3d 902, 905-906.)
5. Effect of Serving Responses.
The Court shall grant the motion unless it finds that the party to whom the requests for admissions have been directed has served, before the hearing on the motion, a proposed response in substantial compliance with Code of Civil Procedure, § 2033.220. (See Code of Civil Procedure, § 2033.280(c); St. Mary v. Superior Court (Schellenberger) (2014) 223 Cal.App.4th 762, 778; see Weil & Brown, California Practice Guide, Civil Procedure before Trial, § 8:1374 (2019).)
C. Requests for Production.
1. Service of Requests for Production/Inspection.
The rules and procedures governing requests for production (also referred to as inspection demands) are governed by Code of Civil Procedure, § 2031.010 et. seq. A demand may be served on any other party to the action (Code of Civil Procedure, § 2031.010). A demand may be used to obtain inspection, copying, testing or sampling of: (1) documents, (2) tangible things, (3) land, and (4) electronically stored information in the possession, custody or control of another party. (Id.) These demands are limited to matters within the permissible scope of discovery. (Id.)
A demand may be served at any time during the lawsuit with a few exceptions including: (1) the first 10 days after service of summons or defendant’s appearance in the action (whichever is first); and (2) cutoff on discovery before trial (Code of Civil Procedure, § 2031.020). The party seeking discovery serves a demand for inspection on the party believed to be in possession, custody or control of the documents or property to be inspected (Code of Civil Procedure, § 2031.040).)
Unlike interrogatories and RFAs, there is no limit on the number of demands that can be served. Instead of responding to the demand, the party to whom it is directed, or a third party whose privacy would be infringed by disclosure of the documents, may seek a protective order (Code of Civil Procedure, § 2031.060).
2. Responses to Requests for Production/Inspection.
The party to whom a demand is served must respond within 30 days after service, unless excused by protective order. (Code of Civil Procedure, § 2031.260.) The court has the power to extend or shorten the time allowed for response. Id. Additionally, the parties may agree to extend the time allowed to respond, but it must be confirmed in writing. (Code of Civil Procedure, § 2031.270.)
3. Waiver of Privilege If Responses Are Not Timely.
Failure to timely respond to a demand results in a waiver of all objections to the requests, including claims of privilege or work product protection (Code of Civil Procedure, § 2031.300(a).) The court has the authority to grant relief from such waiver if (1) the party belatedly served a response that is in substantial compliance; and (2) the party filed a noticed motion supported by declaration showing that the delay resulted from mistake, inadvertence or excusable neglect. (Code of Civil Procedure, § 2031.300(a).)
4. Motion to Compel Responses/Further Responses.
A motion to compel may be made if: (1) there is no response at all; (2) the responses have been made but they are not satisfactory to the demanding party; or (3) where an agreement to comply has been, but compliance is not forthcoming. (CCP § 2031.300-2031.320). In ruling on a motion to compel, the court may require the party who objects to a request, on the ground of privilege, to prepare and serve a privilege log. (Best Products, Inc. v. Superior Court (Granatelli Motorsports, Inc.) (2004) 119 Cal.App.4th 1181, 1188-1189).)
5. Sanctions.
The Court shall impose a monetary sanction against whichever party loses on the motion to compel compliance unless it finds that party made or opposed the motion with substantial justification or other circumstances make the sanction unjust. (Code of Civil Procedure, § 2031.320(b).) Where the responding party fails to obey the inspection order, the court may make whatever orders are just, including imposition of an issue sanction, evidence sanction, terminating sanction, and/or additional monetary sanctions. (Code of Civil Procedure, § 2031.320(c).)
If the motion to compel responses to proper discovery requests is granted, the court shall order the party to whom the discovery was directed to pay the propounding party's reasonable expenses, including attorney fees, in enforcing discovery “unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” (Code of Civil Procedure, §§ 2030.300(d); 2031.300(c); 2023.010(d); 2023.030(a).)
Further, Code of Civil Procedure, § 2023.050, effective January 1, 2020, imposes mandatory sanctions on motions involving request for production of documents. Sanctions under this provision are mandatory should the court find, in relevant part, that the party, person, or attorney did not respond in good faith to a request for production of documents.
“A request for a sanction shall, in the notice of the motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.” (Code of Civil Procedure, § 2023.040.)
D. Waiver of Privilege if Responses Are Not Timely.
Failing to respond within the time limit described above waives most objections to the interrogatories, which includes claims of privilege and work product. (Code of Civil Procedure, § 2030.290(a); (see Leach v. Superior Court (Markum) (1980) 111 Cal.App.3d 902, 905-906).) The delay in responding also waives the option to produce writings in under Code of Civil Procedure, § 2030.230 in lieu of the information contained within them (Code of Civil Procedure, § 2030.290(a).)
There are some case law exceptions to waiver. One case holds that a party may obtain a protective order limiting discovery of objectionable information even after they have waived their right to object. (Stadish v. Superior Court (Southern Calif. Gas Co.) (1999) 71 Cal.App.4th 1130, 1144). Further, courts seem reluctant to find waiver where privacy rights are at issue. (Heda v. Superior Court (Davis) (1990) 225 Cal.App.3d 525, 530).
E. Sanctions.
Code of Civil Procedure, § 2023.040 states: “A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.”
It is mandatory that a monetary sanction be imposed on the party, or attorney, or both, whose failure to serve a timely response necessitated the filing of the deemed-admitted motion unless the court finds “substantial justification” for that party's position or other circumstances making the sanction “unjust.” (Code of Civil Procedure, §§ 2030.290(c); 2031.300(c); 2033.280(c).) Sanctions can be avoided by serving responses before the motion is filed, which eliminates the ground for the motion. (St. Mary v. Superior Court (Schellenberg) (2014) 223 Cal.App.4th 762, 784). The costs and expenses award is limited to reasonable expenses incurred which includes reasonable attorney's fees in proving matters unreasonably denied.
F. Conclusion.
The motions are GRANTED as follows: the request for admissions are deemed ADMITTED. Defendant is to provide code compliant ANSWERS to defendant’s request for production of documents (set number one) and defendants form interrogatories (set number one). The request for monetary sanctions against plaintiff is code compliant and is GRANTED as follows: defendant is to pay the sum of $235.00 for each of the two motions for a total of $470.00 (one hour at $175.00 and $60 for the filing fee for each motion). Plaintiff is to comply with this order within 20 days of the service and filing of this order.
IV. Tentative Ruling and Hearing.
The Tentative Ruling was duly posted.
V. Case Management.
The matter is set for a Trial Setting Conference on 4 April 2022 at 11:00 AM in this Department.
VI. Conclusion and Order.
The motions are GRANTED as follows: the request for admissions are deemed ADMITTED. Defendant is to provide code compliant ANSWERS to defendant’s request for production of documents (set number one) and defendants form interrogatories (set number one). The request for monetary sanctions against plaintiff is code compliant and is GRANTED as follows: defendant is to pay the sum of $235.00 for each of the two motions for a total of $470.00 (one hour at $175.00 and $60 for the filing fee for each motion). Plaintiff is to comply with this order within 20 days of the service and filing 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 | |
| | |
|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.: |20CV364837 |John Buckholz v. Hope Services |
|DATE: 04 January 2022 |TIME: 9:00 am |LINE NUMBER: 11 |
|This matter will be heard by the Honorable Judge Socrates Peter Manoukian in Department 20 in the Old Courthouse, 2nd Floor, 161 North First Street, San Jose. |
|Any party opposing the tentative ruling must call Department 20 at 408.808.6856 and the opposing party no later than 4:00 PM on 03 January 2022. Please specify|
|the issue to be contested when calling the Court and Counsel. |
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|Order on Motion of Plaintiff for Leave |
|to File First Amendment to Plaintiff’s Complaint. |
I. Statement of Facts.
Plaintiff filed this complaint on 6 March 2020.[31] Plaintiff, a now 61-year-old conserved adult appearing through his Guardian Ad Litem, is alleged to be a mentally (IQ of 40) and physically disabled person. He alleges that when he was age 57, defendants were operating a “handicap van equipped with a ramp for purposes of transporting plaintiff, who was wheelchair-bound, to and from various places and that the service was done for hire.” (Complaint, ¶ 10.) He alleges that he suffered severe physical and emotional injuries when the wheelchair he was occupying fell off of the handicap ramp with which defendants’ van was equipped.
In his original complaint, plaintiff alleged causes of action for:
1. negligence;
2. gross negligence; and
3. common carrier liability;
In this current motion, plaintiff seeks leave to file a first amendment to the complaint to add allegations of “malice, oppression, or fraud” and prayers for punitive and exemplary damages pursuant to Code of Civil Procedure, § 3294 and Welfare & Institutions Code, § 15600 et seq.
Plaintiff claims that there are recently-discovered facts per review of 1,218 pages of documents documents produced by San Andreas Regional Center on 14 May 2021. These documents, produced during discovery, revealed that plaintiff was “subjected to an odious pattern of conduct resulting in at least four prior incidents similar to the one that formed the basis of Plaintiff’s initial filing herein.” (Moving papers, page 2, lines 9-10.)
II. Motion to Amend The Complaint.
Rules of Court, rule 3.1324 states:
(a) Contents of motion
A motion to amend a pleading before trial must:
1) Include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments;
2) State what allegation in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph, and line number, the deleted allegations are located; and
3) State what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located
(b) Supporting declaration
A separate declaration must accompany the motion and must specify:
1) The effect of the amendment;
2) Why the amendment is necessary and proper;
3) When the facts giving rise to the amended allegation were discovered; and
4) The reasons why the request for amendment was not made earlier.
Motions to amend the pleadings are granted or denied at the court’s discretion. (Code of Civil Procedure, § 437(a)(1). There are a number of factors which guide the court in determining how to exercise this discretion, any one of which justifies the denial of leave to amend, this proposed amendment raises two in particular; timeliness of the motion, and failure to state a cause of action.
First, the court must “apply a policy of liberality in permitting amendments at any stage of the proceeding . . . when no prejudice to the opposing party is shown.” (Duchrow v. Forrest (2013) 215 Cal.App.4th 1359, 1377.) However, “even if a good amendment is proposed in proper form, unwarranted delay in presenting it may—of itself—be a valid reason for denial. (Huff v. Wilkins (2006) 138 Cal.App.4th 732, 736; see Bank of America Nat. Trust & Savings Ass’n v Goldstein (1938) 25 Cal.App.2d 37, 40-42 [defendant requested to amend over a year after initial complaint, and more than five months after answer].)
Second, “if the proposed amendment fails to state a cause of action, it is proper to deny leave to amend.” (Foxborough v. Van Atta (1994) 26 Cal.App.4th 217, 230.) Additionally, leave to amend should not be granted if the amendment would likely be futile. (Vaillette v Fireman’s Fund Ins. Co. (1993) 18 Cal.App.4th 680, 685.) A plaintiff may recover punitive damages if “it is proven by clear and convincing evidence that the defendant has been guilty of . . . or malice.” (Civil Code, § 3294(a).) Malice is conduct which the defendant intends to cause injury to the plaintiff or “conduct which is carried on . . . with a willful and conscious disregard for the rights of safety of others.” (Civil Code, § 3294(c)(1).)
“The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading.” (Code of Civil Procedure, § 473(a)(1).) “Any judge, at any time before or after the commencement of trial, in furtherance of justice, and upon such terms as may by proper, may allow the amendment of any pleading.” (Code of Civil Procedure, § 576.)
The Court's discretion must usually be exercised liberally to permit amendment of the pleadings. (See The Rutter Group California Practice Guide: Civil Procedure Before Trial §6:638, citing Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939; Mabie v. Hyatt (1998) 61 Cal.App.4th 1428.) If the granting of a timely motion for leave to amend “will not prejudice the opposing party, it is error to refuse permission to amend, and where the refusal also results in a party being deprived of the rights to assert a meritorious cause of action or a meritorious defense, it is not only error but an abuse of discretion.” (Morgan v. Superior Court (1959) 172 Cal.App.2d 527, 530.)
The California Supreme Court has held that under Code of Civil Procedure, § 473 there is a "strong policy in favor of liberal allowance of amendments." (Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290, 297.) The cases have established a policy of great liberality in allowing such amendments at any stage of the proceeding. (California Casualty General Insurance Company v. Superior Court (Gorgei) (1985) 173 Cal.App.3d 274, 279.)
III. Analysis.
Defendant argues that plaintiff should not be granted leave to file an amended complaint because the request comes almost 2 years from the time the initial complaint was filed and more than seven months after the documents upon which plaintiff now bases the proposed amendments were served.
Defendant argues that although courts are bound to apply a policy of great liberality in permitting amendments to the complaint at any stage of the proceedings, up to and including trial, this policy should be applied only where no prejudice is shown to the adverse party. A different result is indicated where inexcusable delay and probable prejudice to the opposing party is shown. (Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 487.)
While defendant states that a motion to amend could be denied if it is unduly prejudicial, defendant has not shown that the amendment will prejudice defendant. No supporting declaration is attached.
The motion of plaintiff for leave to file his first amendment to plaintiff’s complaint is GRANTED. Plaintiff is to file a copy of the amended complaint through the e-filing queue and serve it on defendant. Defendant will have 20 days from the date of service of the amended complaint within which to RESPOND.
IV. Tentative Ruling and Hearing.
The Tentative Ruling was duly posted.
V. Case Management.
This Court is led to believe that the parties have been through mediation and would like a status report on efforts toward resolution through alternate dispute resolution.
The matter is set for a further Case Management Conference on 1 March 2022 at 10:00 AM in this Department.
VI. Conclusion and Order.
The motion of plaintiff for leave to file his first amendment to plaintiff’s complaint is GRANTED. Plaintiff is to file a copy of the amended complaint through the e-filing queue and serve it on defendant. Defendant will have 20 days from the date of service of the amended complaint within which to RESPOND.
|____________________________________ |_________________________________________________________ |
|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@ | |
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| |(For Clerk's Use Only) |
|CASE No.: |21CV386099 |Bruce C. Williams v. Wells Fargo Bank, N. A., et al |
|DATE: 04 January 2022 |TIME: 9:00 am |LINE NUMBER: 15 |
|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 03 January 2022. Please specify|
|the issue to be contested when calling the Court and Counsel. |
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|Order on Motion of Defendant Wells Fargo Bank, N. A. |
|for an Order Declaring Plaintiff to Be a Vexatious Litigant |
|and Requiring a Pre-Filing Order. |
I. Statement of Facts.
Plaintiff filed this complaint on 23 August 2021.[32]
In 2003, plaintiff obtained two loans on two different properties from World Savings Bank, FSB. In 2008, World Savings Bank, FSB change its name to Wachovia Mortgage, FSB. This latter entity merged with Wells Fargo Bank, N. A. in November 2009.
On one property, a foreclosure was completed in October 2017.
On the second property, the one at issue in this matter, Wells Fargo caused a Notice of Default to be recorded in October 2016. In February 2017, Wells Fargo Bank caused a notice of sale to be recorded with an initial sales state of 6 March 2017. In December 2018, Wells Fargo Bank assigned its interest in this property to Wilmington Savings Fund Society, FSB.
In a strategy to avoid foreclosure, plaintiff filed for bankruptcy petitions between 2011 and 2016. Plaintiff also ultimately filed five civil actions that were all dismissed with prejudice.[33] In the latter two cases, the District Court found that plaintiff has exhibited a pattern of filing frivolous lawsuits. The dismissal with prejudice of the two previous cases was noted. The District Court further found that plaintiff attempted to evade that jurisdiction of the Court by filing a fifth action while two cases were still pending. Finally, the District Court observed that the motions by Wells Fargo Bank to dismiss the cases were dismissed with prejudice and plaintiff did not oppose the motions.
In December 2019, plaintiff filed an action in this Court bearing case number 19CV360383. Plaintiff dismissed that case voluntarily in May 2020.
II. Motion To Declare Plaintiff to Be a Vexatious Litigant.
Code of Civil Procedure, § 391(b) defines a vexatious litigant. “Vexatious litigant” means a person who does any of the following:
(1) In the immediately preceding seven-year period has commenced, prosecuted, or maintained in propria persona at least five litigations other than in a small claims court that have been (i) finally determined adversely to the person or (ii) unjustifiably permitted to remain pending at least two years without having been brought to trial or hearing.
(2) After a litigation has been finally determined against the person, repeatedly relitigates or attempts to relitigate, in propria persona, either (i) the validity of the determination against the same defendant or defendants as to whom the litigation was finally determined or (ii) the cause of action, claim, controversy, or any of the issues of fact or law, determined or concluded by the final determination against the same defendant or defendants as to whom the litigation was finally determined.
(3) In any litigation while acting in propria persona, repeatedly files unmeritorious motions, pleadings, or other papers, conducts unnecessary discovery, or engages in other tactics that are frivolous or solely intended to cause unnecessary delay.
(4) Has previously been declared to be a vexatious litigant by any state or federal court of record in any action or proceeding based upon the same or substantially similar facts, transaction, or occurrence.
The term “litigation” for the vexatious litigant statute is defined as “any civil action or proceeding, commenced, maintained or pending in any state or federal court.” (Code of Civil Procedure, § 391(a).) The term “litigation” includes an appeal or a writ proceeding. (In re Natural Gas Anti-Trust Cases (2006) 137 Cal.App.4th 387, 396; McColm v. Westwood Park Assn. (1998) 62 Cal.App.4th 1211, 1216 (each appeal or writ petition is “new” to this court when it is filed, thus qualifying as “new litigation” within the meaning of Code of Civil Procedure, § 391.7); Fink v. Shemtov (2010) 180 Cal.App.4th 1160, 1168[34], 1170 (after remand at 210 Cal.App.4th 599: litigation includes state and federal proceedings and proceedings initiated in the Courts of Appeal by notice of appeal or by writ petitions other than habeas corpus or other criminal matters). (Emphasis added).
The hallmark of a vexatious litigant has purportedly been of a nonlawyer acting in propria persona. (Code of Civil Procedure, §§ 391(b)(1), (b)(2), (b)(3), (b)(4).
III. Analysis.
A. Request of Wells Fargo Bank, N. A. for Judicial Notice.
The request of Wells Fargo Bank, N. A, for judicial notice, filed on 29 September 2021, is GRANTED in its entirety.
B. The Doctrines of Res Judicata and Collateral Estoppel Preclude the Maintenance of this Lawsuit.
“Res judicata describes the preclusive effect of a final judgment on the merits. Res judicata, or claim preclusion, prevents relitigation of the same cause of action in a second suit between the same parties or parties in privity with them.” (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 896 (Mycogen).) “Under the doctrine of res judicata, if a plaintiff prevails in an action, the cause is merged into the judgment and may not be asserted in a subsequent lawsuit; a judgment for the defendant serves as a bar to further litigation of the same cause of action.” (Id. at pp. 896-897.)
“A clear and predictable res judicata doctrine promotes judicial economy. Under this doctrine, all claims based on the same cause of action must be decided in a single suit; if not brought initially, they may not be raised at a later date.” (Mycogen, supra, 28 Cal.4th at p. 897.) (internal punctuation modified.) “Res judicata precludes piecemeal litigation by splitting a cause of action or relitigation of the same cause of action on a different legal theory or for different relief.” (Weikel v. TCW Realty Fund II Holding Co. (1997) 55 Cal.App.4th 1234, 1245.) (internal punctuation modified.)
Three elements must exist for res judicata to apply: (1) the decision in the prior proceeding is final and on the merits; (2) the present proceeding is on the same cause of action as the prior proceeding; and (3) the parties in the present proceeding or parties in privity with them were parties to the prior proceeding. (Association of Irritated Residents v. Department of Conservation (2017) 11 Cal.App.5th 1202, 1219.) Stated another way, res judicata or claim preclusion “arises if a second suit involves (1) the same cause of action (2) between the same parties [or their privies] (3) after a final judgment on the merits in the first suit.” (DKN Holdings, LLC v. Faerber (2015) 61 Cal.4th 813, 824.)
Similarly, “[c]ollateral estoppel precludes relitigation of issues argued and decided in prior proceedings. [Citation.] Traditionally, we have applied the doctrine only if several threshold requirements are fulfilled. First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding. Second, this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided in the former proceeding. Fourth, the decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding. [Citations.]” (Lucido v. Superior Court (1990) 51 Cal.3d 335, 341., fn. omitted.)
C. Applicability of the Vexatious Litigant Statutes.
In this action, on 7 September 2021 Judge Helen Williams denied plaintiff’s ex parte motion for a stay of execution/order to vacate, finding that
“[p]laintiff has submitted no admissible and competent evidence to support the ex-party application for a temporary restraining order and order to show cause re preliminary injunction. He has thus not demonstrated a likelihood of success on the merits or threat of irreparable harm with a factual showing.”
On 7 December 2021, this Department denied the request of plaintiff for a temporary restraining order against Wells Fargo Bank.
This Court believes that Wells Fargo Bank, N. A. has shown that plaintiff Bruce C. Williams is a vexatious litigant.
Wells Fargo Bank have sufficiently demonstrated to the satisfaction of this Court that plaintiff is a vexatious litigant. He has filed several actions over the same subject matter, all which were either dismissed with prejudice by a judge or, on one case, on his own volition. The doctrines of res judicata and collateral estoppel preclude the maintenance of this lawsuit.
D. Request for Relief by Wells Fargo Bank, N. A.
The only request for relief made by Wells Fargo Bank, N. A. is a determination by this Court that plaintiff Bruce C. Williams is a vexatious litigant and a request that this Court enter a prefiling order prohibiting him from filing any new litigation without permission of the Presiding Judge of this Court. There is no request for an order requiring plaintiff to post security pursuant to Code of Civil Procedure, §§ 391.1 and 391.3.[35]
In Forrest v. Department of Corporations (2007) 150 Cal.App.4th 183, the Court of Appeal held that held that a prefiling order under Code of Civil Procedure, § 391.7 “permit[s] dismissal at any point when a vexatious litigant proceeds without counsel or without the permission of the presiding judge.”
In Shalant v. Girardi (2011) 51 Cal.4th 1164, the Supreme Court overruled Forrest v. Department of Corporations and held that a plaintiff may continue to litigate a matter that was not subject to a prefiling order when it commenced. In Shalant, the plaintiff (who had previously been declared a vexatious litigant) filed his lawsuit through counsel rather than in propria persona. During the course of litigation, plaintiff’s counsel withdrew and plaintiff sought to continue the action in propria persona whereupon defendants moved to dismiss under Code of Civil Procedure, § 391.7. (Id., at pp. 1168-69.)
Looking to the legislative history of section 391.7, the Supreme Court concluded that nothing in that “section would bar vexatious litigants from filing motions or papers in pending litigation. The additional remedy provided by section 391.7 was, instead, directed at precluding the initiation of a meritless lawsuit and the costs associated with defending such litigation.” (Shalant, at p. 1175, quoting Bravo v. Ismaj (2002) 99 Cal.App.4th 211, 222.) The Court held that dismissal under § 391.7 was not an available remedy. Instead, defendants should have sought an order requiring posting of a security. (Id. at pp. 1171-72.)
The Shalant rule that pending litigation is not subject to dismissal under Code of Civil Procedure, § 391.7 has been followed where a party continues litigation initiated before being declared a vexatious litigant:
“The District moved to dismiss Gifford’s appeal resulting from his challenge to the District’s January 2017 agenda because Gifford had been adjudged a vexatious litigant a week before he filed his notice of appeal in that case. We denied this motion, which the District renews on appeal. We again deny the motion. Gifford has not initiated new litigation as prohibited by the court’s order, but continued to pursue an action he initiated when he was not a vexatious litigant. (See Shalant v. Girardi, 51 Cal.4th at pp. 172-1173.” (Olson v. Hombrook Community Services Dist. (2019) 33 Cal.App.5th 502, 528 (fn. 17.)[36]
Good cause appearing, IT IS ORDERED that this Court GRANTS the motion of defendant Wells Fargo Bank, N. A. and will enter a prefiling order which declares Bruce C. Williams to be a vexatious litigant is defined under:
1. Code of Civil Procedure, § 391(b)(1), having filed at least five litigations all in the preceding seven-year period that have been finally determined adversely to him;
2. Code of Civil Procedure, § 391(b)(2), after a litigation has been finally determined against him, by repeatedly relitigating or attempting to relitigate, in propria persona, the validity of the determination against Wells Fargo Bank, N.A.;
3. Code of Civil Procedure, § 391(b)(3), while acting in propria persona in this action, repeatedly files unmeritorious motions, pleadings, or other papers and engages in other tactics that are frivolous or solely intended to cause unnecessary delay.
IT IS FURTHER ORDERED that this Court GRANTS the motion of defendant Wells Fargo Bank, N. A. requesting this Court enter a prefiling order which prohibits Bruce C. Williams from filing any new litigation in the courts of this state in propria persona without first obtaining leave of the presiding justice or presiding judge of the court where the litigation is proposed to be filed. Disobedience of the order by a vexatious litigant may be punished as a contempt of court (Code of Civil Procedure, § 391.7(a),(c).)
IT IS FURTHER ORDERED that further hearing on this motion and any request that plaintiff furnish security for the benefit of defendant Wells Fargo Bank, N. A. (Code of Civil Procedure, §§ 391.1, 391.2) as well as any determination that there is no reasonable probability that plaintiff will prevail in this litigation [(Code of Civil Procedure, §§ 391.3(a),(b),(c)] will be CONTINUED to 3 February 2022 at 9:00 AM in this Department to be heard in connection with the demurrer of defendant Wells Fargo Bank, N. A. to plaintiff’s First Amended Complaint.
Any additional papers by defendant and plaintiff concerning the issue of whether plaintiff is a vexatious litigant and any requested security are deemed to be new matters and are to be served per Code Of Civil Procedure, 1005(b).[37]
IV. Tentative Ruling and Hearing.
The Tentative Ruling was duly posted.
V. Case Management.
There is currently a Case Management Conference set in this Department at 3:00 PM on 18 January 2022. That date will be VACATED and RESET to 3 February 2022 at 10:00 AM in this Department but will be heard at 9:00 AM immediately following the continued hearing on this motion as well as the hearing on the demurrer.
VI. Conclusion and Order.
Good cause appearing, IT IS ORDERED that this Court GRANTS the motion of defendant Wells Fargo Bank, N. A. and will enter a prefiling order which declares Bruce C. Williams to be a vexatious litigant is defined under:
1. Code of Civil Procedure, § 391(b)(1), having filed at least five litigations all in the preceding seven-year period that have been finally determined adversely to him;
2. Code of Civil Procedure, § 391(b)(2), after a litigation has been finally determined against him, by repeatedly relitigating or attempting to relitigate, in propria persona, the validity of the determination against Wells Fargo Bank, N.A.;
3. Code of Civil Procedure, § 391(b)(3), while acting in propria persona in this action, repeatedly files unmeritorious motions, pleadings, or other papers and engages in other tactics that are frivolous or solely intended to cause unnecessary delay.
IT IS FURTHER ORDERED that this Court GRANTS the motion of defendant Wells Fargo Bank, N. A. requesting this Court enter a prefiling order which prohibits Bruce C. Williams from filing any new litigation in the courts of this state in propria persona without first obtaining leave of the presiding justice or presiding judge of the court where the litigation is proposed to be filed. Disobedience of the order by a vexatious litigant may be punished as a contempt of court (Code of Civil Procedure, § 391.7(a),(c).)
IT IS FURTHER ORDERED that further hearing on this motion and any request that plaintiff furnish security for the benefit of defendant Wells Fargo Bank, N. A. (Code of Civil Procedure, §§ 391.1, 391.2) as well as any determination that there is no reasonable probability that plaintiff will prevail in this litigation [(Code of Civil Procedure, §§ 391.3(a),(b),(c)] will be CONTINUED to 3 February 2022 at 9:00 AM in this Department to be heard in connection with the demurrer of defendant Wells Fargo Bank, N. A. to plaintiff’s First Amended Complaint.
Any additional papers by defendant and plaintiff concerning the issue of whether plaintiff is a vexatious litigant and any requested security are deemed to be new matters and are to be served per Code Of Civil Procedure, 1005(b).
|____________________________________ |_________________________________________________________ |
|DATED: |HON. SOCRATES PETER MANOUKIAN |
| |Judge of the Superior Court |
| |County of Santa Clara |
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[1] This Department intends to comply with the time requirements of the Trial Court Delay Reduction Act (Government Code, §§ 68600–68620). The California Rules of Court state that the goal of each trial court should be to manage limited and unlimited civil cases from filing so that 100 percent are disposed of within 24 months. (Ca. St. Civil Rules of Court, Rule 3.714(b)(1)(C) and (b)(2)(C)
[2] “It is black-letter law a demurrer tests the pleading alone. (5 Witkin, California Procedure (3d ed. 1985) Pleading, § 895, p. 334.) When any ground for objection to a complaint or cross-complaint does not appear on the face of the pleading, the objection may be taken by answer. (Code of Civil Procedure, § 430.30 (b).) Defendants cannot set forth allegations of fact in their demurrers which, if true, would defeat plaintiff's complaint. (Fuhrman v. California Satellite Systems (1986) 179 Cal.App.3d 408, 422-423.) (Internal quotations modified, modest editing used.)
[3] While the allegations of the complaint must be accepted as generally true, this rules does not apply to allegations expressing mere conclusions of law, or allegations contradicted by the exhibits t0 the complaint or by matters of which judicial notice may be taken. (Vance v. Villa Park Mobile-home Estates (1995) 36 Cal.App.4th 698, 709.) Allegations of a complaint must be sufficiently clear to appraise the defendant of the issues which he (or she) is to meet and defend. (Butler v. Sequeira (1950) 100 Cal.App.2d 143.)
[4] In this respect, defense counsel's citation of Coyme v. Krempels (1950) 36 Cal.2d 257 is not applicable because that case concerns itself with summary judgment motions and stands for the proposition that allegations in the complaint alone cannot be used to defeat a summary judgment motion.
[5] (1) There is a signed contract or agreement between the employment agency and the domestic worker that contains, at a minimum, provisions that specify all of the following:
(A) That the employment agency shall assist the domestic worker in securing work.
(B) How the employment agency’s referral fee shall be paid.
(C) That the domestic worker is free to sign an agreement with other employment agencies and to perform domestic work for persons not referred by the employment agency.
(2) The domestic worker informs the employment agency of any restrictions on hours, location, conditions, or type of work he or she will accept and the domestic worker is free to select or reject any work opportunity procured, offered, referred, or provided by the employment agency.
(3) The domestic worker is free to renegotiate with the person hiring him or her the amount proposed to be paid for the work.
(4) The domestic worker does not receive any training from the employment agency with respect to the performance of domestic work. However, an employment agency may provide a voluntary orientation session in which the relationship between the employment agency and the domestic worker, including the employment agency’s administrative and operating procedures, and the provisions of the contract or agreement between the employment agency and the domestic worker are explained.
(5) The domestic worker performs domestic work without any direction, control, or supervision exercised by the employment agency with respect to the manner and means of performing the domestic work. An employment agency shall not be deemed to be exercising direction, control, or supervision when it takes any of the following actions:
(A) Informs the domestic worker about the services to be provided and the conditions of work specified by the person seeking to hire a domestic worker.
(B) Contacts the person who has hired the domestic worker to determine whether that person is satisfied with the agency’s referral service.
(C) Informs the domestic worker of the time during which new referrals are available.
(D) Requests the domestic worker to inform the employment agency if the domestic worker is unable to perform the work accepted.
(6) The employment agency does not provide tools, supplies, or equipment necessary to perform the domestic work.
(7) The domestic worker is not obligated to pay the employment agency’s referral fee, and the employment agency is not obligated to pay the domestic worker if the person for whom the services were performed fails or refuses to pay for the domestic work.
(8) Payments for domestic services are made directly to either the domestic worker or to the employment agency. Payments made directly to the employment agency shall be deposited into a trust account until payment can be made to the domestic worker.
(9) The relationship between a domestic worker and the person for whom the domestic worker performs services may only be terminated by either of those parties and not by the employment agency that referred the domestic worker. However, an employment agency may decline to make additional referrals to a particular domestic worker, and the domestic worker may decline to accept a particular referral.
[6] “The court will take judicial notice of records such as admissions, answers to interrogatories, affidavits, and the like, when considering a demurrer, only where they contain statements of the plaintiff or his agent which are inconsistent with the allegations of the pleading before the court.” (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604-605; emphasis added.) The declaration proffered here is that of defendant, not plaintiff or his agent.
[7] See Kao v. Holiday (2017) 12 Cal.App.5th 947, 959, fn. 4. See also Church v. Jamison (2006) 143 Cal.App.4th 1568, 1579, fn. 19.
[8] See Goldstein v. California Unemployment Ins. Appeals Bd. (2019) 34 Cal.App.5th 1006, 1023, fn. 8—taking judicial notice of EDD’s Benefit Determination Guide. (“On our own motion, we take judicial notice of section MI-15(D) of the EDD's Benefit Determination Guide, which is entitled “The ‘Lag Period’” and addresses section 1277. ( [as of Apr. 29, 2019], archived at: .) (Evidence Code, §§ 452, subd. (c), 459, subd. (a).) Pursuant to Evidence Code sections 459 and 455, we requested supplemental briefing from the parties as to the propriety of taking judicial notice of the matter. Neither party expressed opposition.”)
[9] “Alter ego is essentially a theory of vicarious liability under which the owners of a corporation may be held liable for harm for which the corporation is responsible.” (Doney v. TRW, Inc. (1995) 33 Cal.App.4th 245, 249.)
[10] This Court informs the parties that it represented Stanford University Hospital and its physicians in medical malpractice cases from 1983 up until March 1993 but sees no reason for recusal. (See Code of Civil Procedure, § 170.1(a)(2)(B)(i); California (Rules of Court, Code of Judicial Ethics, Canon 3E(2).)
[11] 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)
[12] See ¶7 and Exh. E to the Declaration of Ryan J. Greenspan in Support of Demurrer to Plaintiff’s Complaint (“Declaration Greenspan”). See also ¶2 and Exh. A to the Declaration of J. Peter Shearer in Support of Plaintiff Gregory H. Gilbert’s Opposition, etc. (“Declaration Shearer”).
[13] See ¶8 and Exh. F to the Declaration Greenspan. See also ¶3 to the Declaration Shearer.
[14] 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)
[15] Indeed, plaintiff Anbessie’s notice of motion states, in relevant part, “This motion is made on the ground that the undisputed facts establish that there is no defense to Plaintiff’s cause of action for professional negligence in the First Amended Complaint [f]iled on May 17, 2018 (‘FAC’) arising out of the Second Amended Complaint brought against Plaintiff by Hok Yeung ([‘]Yeung’) in Santa Clara County, No. 16CV294019 in the amount of $271.080.00 (‘The Underlying Case’).” (See page 2, lines 3 – 7 of the Notice of Hearing in Support of Plaintiff’s Motion for Summary Judgment and/or Summary Adjudication; emphasis added.) Thereafter, plaintiff Anbessie’s notice of motion requests summary adjudication in the alternative, but does not request summary adjudication of the second cause of action.
[16] “The general rule is that expert evidence is required to establish legal malpractice.” (O'Shea v. Lindenberg (2021) 64 Cal.App.5th 228, 236.) “There is an exception when the alleged malpractice is so utterly egregious and obvious that no expert testimony is needed. … This exception only applies to malpractice that is ‘so clear’ as to be unmistakable, or obvious malpractice resulting from an utter failure to undertake ‘basic research.’” (Id. at pp. 237 – 238.)
[17] See Separate Statement of Undisputed Material Facts in Support of Plaintiff’s Motion for Summary Judgment and/or Summary Adjudication (“Plaintiff’s UMF”), Fact Nos. 22 – 28.
[18] See Plaintiff’s UMF, Fact No. 22. In support of the motion for summary judgment/ adjudication, plaintiff Anbessie requests judicial notice of various court records from the Underlying Action. To the extent the court relied on any such court records in ruling herein, plaintiff Anbessie’s request for judicial notice is GRANTED insofar as the court takes judicial notice of the existence of the court record and statement made therein, but not necessarily the truth of anything asserted therein. (See Evid. Code, §452, subd. (d); People v. Woodell (1998) 17 Cal.4th 448, 455.) To the extent the court did not rely on any such court records in ruling herein, plaintiff Anbessie’s request for judicial notice is DENIED as not necessary, helpful or relevant. (See Duarte v. Pacific Specialty Insurance Company (2017) 13 Cal.App.5th 45, 51, fn. 6—denying request where judicial notice is not necessary, helpful or relevant.)
[19] See Separate Statement in Opposition to Motion for Summary Judgment or in the Alternative Motion for Summary Adjudication (“Defendants’ Opposition SS”), Fact Nos. 23, 24, 26, and 28.
[20] See Plaintiff’s UMF, Fact No. 28.
[21] See Defendants’ Opposition SS, Fact No. 28.
[22] Plaintiff Anbessie cited to Plaintiff’s UMF, Fact Nos. 29 – 31.
[23] See Plaintiff’s UMF, Fact No. 105. “ ‘[W]here the complexity of the causation issue is beyond common experience, expert testimony is required to establish causation.’ [Citation.]” (O'Shea v. Lindenberg (2021) 64 Cal.App.5th 228, 239.) To the extent plaintiff Anbessie proffers his opinion on causation, plaintiff Anbessie does not qualify as an expert to issue such an opinion on legal causation.
[24] See ¶¶12, 13, 15, 20, 22, 25, 26, 27, 28, 29, 41, and 43 to the Declaration of David S. Henshaw in Support of Opposition to Motion for Summary Judgment or in the Alternative Motion for Summary Adjudication.
[25] See Plaintiff’s UMF, Fact No. 111.
[26] See Plaintiff’s UMF, Fact No. 110.
[27] 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).
[28] “Under the doctrine of equitable estoppel, one may not lull a party into inaction by words or deeds that lead to a false sense of security. For the doctrine of equitable estoppel to apply, however, the party asserting estoppel must rely on the other party's conduct, to its detriment.” (Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165 Cal.App.4th 1568, 1585.) (internal citations deleted, citations omitted.) One may not lull a party into inaction by words or deeds that lead to a false sense of security. (Sears, Roebuck & Co. v. National Union Fire Ins. Co. of Pittsburgh (2005) 131 Cal.App.4th 1342, 1343.)
[29] 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).
[30] Absent contrary precedent under state law, California courts have found federal decisions “persuasive” in interpreting similar provisions of the California Act. (See Greyhound Corp. v. Superior Court of Merced County (1961) 56 Cal.2d 355, 401; Nagle v. Superior Court (1994) 28 Cal.App.4th 1465, 1468; Vasquez v. California School of Culinary Arts, Inc. (2014) 230 Cal.App.4th 35, 42-43; Weil & Brown, Civil Procedure Before Trial (The Rutter Group 2019) § 8:19, p. 8A-10.)
[31] 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).
[32] 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).
[33] Northern District Case Nos. 5: 17-CV-01505-NC; 5: 17-CV-01621-NC; 5: 17-CV-04262-NC; 5:17-CV-04280-NC; and 5: 17-CV-05848-LHK.
[34] “The court also notes that in McColm v. Westwood Park Assn. (1998), 62 Cal.App.4th 1211, the court held as follows: Litigation for purposes of vexatious litigant requirements encompasses civil trials and special proceedings, but it is broader than that. It includes proceedings initiated in the Courts of Appeal by notice of appeal or by writ petitions other than habeas corpus or other criminal matters.” (Internal quotations modified.)
[35] “[A]n order to furnish security may not be made in every action or proceeding commenced, maintained or pending on behalf of a vexatious litigant, but can only be made when the court determines that there is no reasonable probability that he will prevail in the litigation against the moving defendant." (Muller v. Tanner (1969) 2 Cal.App.3d 445, 453.) (internal punctuation modified.)
. . . . . . .
“Plaintiff has also attacked the sufficiency of the evidence to sustain that part of the court's order fixing the amount of security at $ 5,000. In upholding the constitutionality of the provisions of the statute dealing with this subject it was noted that the judge could fix the amount of the fees from his knowledge of legal practice. This, however, does not mean that he can, as was done in this case, look at a complaint and determine, without further evidence, the time and labor which will be expended to defeat the claim. Not even the nature of defendant's defense was disclosed. . . . . . From all that appears in the record of this case the sum of $ 5,000 was picked out of thin air. This part of the original order cannot be sustained. (Muller v. Tanner, supra at 465.)
[36] This Court notes that plaintiff filed his First Amended Complaint on or about 4 October 2021. This Court also notes that defendant's demurrer to the first amended complaint is said to be heard on 3 February 2022 at 9:00 AM and this Department.
In an unpublished decision, one appellate court distinguished Shalant by applying the prefiling order to an amended petition. (Hsu v. California State Personnel Board, 2014 Cal.App.Unpub. LEXIS 1052):
“Hsu relies on Shalant v. Girardi (2011) 51 Cal.4th 1164, which he contends stands for the proposition that the vexatious litigant statute does not require court permission prior to “the filing of papers in a pending action.” However, Shalant is not controlling here. As the California Supreme Court stated in a footnote in Shalant, “[w]e have no occasion here to decide whether, or under what circumstances, the filing of an amended complaint constitutes the filing of new litigation within the meaning of section 391.7.” (Id. at p. 1172, fn. 2.) Thus, our high court expressly declined to reach the issue presented in this case. [¶] We conclude Hsu's amended petition constitutes "new litigation" within the meaning of the vexatious litigant law. An amended pleading supersedes the original. (citation omitted.) When a plaintiff amends his complaint so as to change the cause of action or add a new one, it constitutes an abandonment of the original issues and requires an additional response. (citation omitted.)” (Hsu v. Cal. State Pers. Bd. (Feb. 13, 2014, No. D061979) ___Cal.App.5th___ [2014 Cal. App. Unpub. LEXIS 1052, at *13].)”
[37] 16 court days for moving papers, nine court days for opposition papers, and five court days for reply papers.
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