Department
53
David I. Brown, Judge
C. Chambers, CA, Bailiff
E. Brown, Clerk
To request limited oral argument on any matter on this calendar, you must call the Court at (916) 874-7858
(Department 53) by 4:00 p.m. the court day before this hearing and advise opposing counsel. If no call is
made, the tentative ruling becomes the order of the court. Local Rule 1.06.
Parties requesting services of a court reporter shall advise the court at the number stated above no later than
4:00 p.m. the court day before the hearing. Please be advised there is a $30.00 fee for court reporting services,
which must be paid in Room 102 prior to the hearing unless otherwise ordered, for each civil proceeding lasting
less than one hour. Govt. Code §68086(a)(1)(A).
The Court Reporter will not report any proceeding unless a request is made and the requisite fees are paid in
advance of the hearing.
NOTICE:
Item
1
2009-00036250-CU-BC
Adil Barakat vs. Norcal Gold, Inc.
Nature of Proceeding:
Filed By:
Motion for Summary Judgment and/or Adjudication
Ullrich, Gabriel
This matter is dropped from calendar.
Item
2
2010-00092589-CU-BC
Mahar Singh Saini vs. Jaswinder Kaur
Nature of Proceeding:
Filed By:
Motion to Quash Subpoena
Bolanos, Aldon L.
This matter is dropped from calendar.
Item
3
2011-00107430-CU-FR
Christina J. Gonzalez vs. Todd William Johnson
Nature of Proceeding:
Filed By:
Motion for Order to Continue Hearing for Summary
Gonzalez, Christina
This matter is continued to 1/30/2014 at 02:00PM in this department.
Item
4
2011-00108359-CU-PA
Michelle Ann Gee vs. Nicholas Seevers
Nature of Proceeding:
Motion to Compel 1. Supplemental Interrogatories 2. Demand for
Nature of Proceeding:
Filed By:
Motion to Compel 1. Supplemental Interrogatories 2. Demand for
Smith, Thomas H.
This matter is continued to 1/30/2014 at 02:00PM in this department.
Item
5
2012-00118447-CU-PA
Kevin Kostecky vs. Carol J. Williamson
Nature of Proceeding:
Filed By:
Motion to Compel Responses to Interrogatories, set three
Beck, Dwayne S.
Motion of Juan Jose Gallegos for further responses to Interrogatories, Set 3, is
unopposed and is granted.
Plaintiff is ordered to serve verified responses to the discovery, without objections, on
or before January 24, 2014.
Sanctions are denied because the motion was not opposed. Although CRC 3.1348(a)
purports to authorize sanctions if a motion is unopposed, the Court declines to do so,
as the specific statutes governing this discovery (CCP 2030.290(c), 2031.300(c))
authorize sanctions only if the motion was unsuccessfully made or opposed. Any
order imposing sanctions under the CRC must conform to the conditions of one or
more of the statutes authorizing sanctions. Trans
-Action Commercial Investors, Ltd. v
Firmaterr Inc
. (1997) 60 Cal.App.4th 352, 355. However, repeated conduct of failing to
comply with discovery obligations may lead the Court to find an abuse of the discovery
process and award sanctions on that basis.
Laguna Auto Body v. Farmers Insurance
Exchange
(1991) 231 Cal. App. 3d 481.
The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.
Item
6
2012-00118447-CU-PA
Kevin Kostecky vs. Carol J. Williamson
Nature of Proceeding:
Filed By:
Motion to Compel Responses and Documents to Request for Production
Beck, Dwayne S.
Motion of Juan Jose Gallegos for further responses to requests for production is
unopposed and is granted.
Plaintiff is ordered to serve verified responses to the discovery, without objections, on
or before January 24, 2014.
Sanctions are denied because the motion was not opposed. Although CRC 3.1348(a)
purports to authorize sanctions if a motion is unopposed, the Court declines to do so,
as the specific statutes governing this discovery (CCP 2030.290(c), 2031.300(c))
authorize sanctions only if the motion was unsuccessfully made or opposed. Any
order imposing sanctions under the CRC must conform to the conditions of one or
more of the statutes authorizing sanctions. Trans
-Action Commercial Investors, Ltd. v
Firmaterr Inc
. (1997) 60 Cal.App.4th 352, 355. However, repeated conduct of failing to
comply with discovery obligations may lead the Court to find an abuse of the discovery
process and award sanctions on that basis.
Laguna Auto Body v. Farmers Insurance
Exchange
(1991) 231 Cal. App. 3d 481.
The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.
Item
7
2012-00118447-CU-PA
Kevin Kostecky vs. Carol J. Williamson
Nature of Proceeding:
Filed By:
Motion to Compel Responses to Interrogatories, set one
Beck, Dwayne S.
Motion of Juan Jose Gallegos for further responses to Interrogatories, Set 1, is
unopposed and is granted.
Plaintiff is ordered to serve verified responses to the discovery, without objections, on
or before January 24, 2014.
Sanctions are denied because the motion was not opposed. Although CRC 3.1348(a)
purports to authorize sanctions if a motion is unopposed, the Court declines to do so,
as the specific statutes governing this discovery (CCP 2030.290(c), 2031.300(c))
authorize sanctions only if the motion was unsuccessfully made or opposed. Any
order imposing sanctions under the CRC must conform to the conditions of one or
more of the statutes authorizing sanctions. Trans
-Action Commercial Investors, Ltd. v
Firmaterr Inc
. (1997) 60 Cal.App.4th 352, 355. However, repeated conduct of failing to
comply with discovery obligations may lead the Court to find an abuse of the discovery
process and award sanctions on that basis.
Laguna Auto Body v. Farmers Insurance
Exchange
(1991) 231 Cal. App. 3d 481.
The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.
Item
8
2012-00118447-CU-PA
Kevin Kostecky vs. Carol J. Williamson
Nature of Proceeding:
Filed By:
Motion to Compel Responses to Interrogatories, set two
Beck, Dwayne S.
Motion of Juan Jose Gallegos for further responses to Interrogatories, Set 2, is
unopposed and is granted.
Plaintiff is ordered to serve verified responses to the discovery, without objections, on
or before January 24, 2014.
Sanctions are denied because the motion was not opposed. Although CRC 3.1348(a)
purports to authorize sanctions if a motion is unopposed, the Court declines to do so,
as the specific statutes governing this discovery (CCP 2030.290(c), 2031.300(c))
authorize sanctions only if the motion was unsuccessfully made or opposed. Any
order imposing sanctions under the CRC must conform to the conditions of one or
more of the statutes authorizing sanctions. Trans
-Action Commercial Investors, Ltd. v
Firmaterr Inc
. (1997) 60 Cal.App.4th 352, 355. However, repeated conduct of failing to
comply with discovery obligations may lead the Court to find an abuse of the discovery
process and award sanctions on that basis.
Laguna Auto Body v. Farmers Insurance
Exchange
(1991) 231 Cal. App. 3d 481.
The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.
Item
9
2012-00125005-CU-FR
State Of California vs. Does 1-60
Nature of Proceeding:
Filed By:
Hearing on Demurrer (Riverside Healthcare) (Joinder by Healthpointe
Kiley, Sean M.
This matter is dropped from calendar.
The action was transferred to Los Angeles Superior Court on December 12, 2013.
(See Judge Hight Minute Order, Department 44, December 12, 2013.)
Item
10
2012-00125005-CU-FR
State Of California vs. Does 1-60
Nature of Proceeding:
Filed By:
Hearing on Demurrer (Healthpointe Medical Group, Inc.)
Gluck, Benjamin N.
This matter is dropped from calendar.
The action was transferred to Los Angeles Superior Court on December 12, 2013.
(See Judge Hight Minute Order, Department 44, December 12, 2013.)
Item
11
2012-00127088-CU-CO
Steven B. Galland vs. Karen Chandler
Nature of Proceeding:
Filed By:
Hearing on Demurrer
Buchman, Donald G.
Defendant Mary Reidarson’s Demurrer to the Complaint is sustained as follows:
Plaintiff alleges that defendant Chandler, a former employee, executed promissory
notes dated October 28, 2002 and January 24, 2003 that were to be secured by a
deed of trust on real property. Chandler’s mother is moving party. Plaintiff alleges he
never received the deed of trust from Chandler as required, which he requested in
2005
. Plaintiff alleges he has not received payment on said notes since on or about
October, 2011 and July, 2010. Plaintiff alleges that the deed of trust was conveyed
instead to moving party, the mother of defendant Karen Chandler, in
2002
.
On the face of the complaint, it appears that the statute of limitations (CCP 338) has
run, as plaintiff knew in 2005 that the deed of trust had not been conveyed, and yet
this action was not filed until 2012. Moreover, none of the charging allegations
implicate defendant Reirdarson in any unlawful conduct.
1st cause of action Breach of Written Contract
: Sustained
without
leave to amend
for failure to state facts sufficient to constitute a cause of action. Plaintiff alleges that
“defendant” entered a written contract attached as Ex. A on January 24, 2003 and that
“defendants” breached the contract on or about July 2010. Plaintiff admits in the
opposition that he is alleging only the 6th and 7th causes of action against moving
party.
2nd cause of action Breach of Written Contract
: Sustained
without
leave to amend
for failure to state facts sufficient to constitute a cause of action.
Plaintiff alleges that on October 28, 2002 plaintiff and “defendant” entered a written
contract attached as Ex. B and that “defendants” breached the contract on or about
October 20, 2011. Plaintiff admits in the opposition that he is alleging only the 6th and
7th causes of action against moving party.
3rd cause of action Breach of Oral Contract and 4th cause of action Breach of
Oral Contract
: Sustained
without
leave to amend for failure to state facts sufficient to
constitute a cause of action. Plaintiff admits in the opposition that he is alleging only
the 6th and 7th causes of action against moving party.
5th cause of action Breach of Fiduciary Duty:
Sustained
without
leave to amend
for failure to state facts sufficient to constitute a cause of action. Plaintiff admits in the
opposition that he is alleging only the 6th and 7th causes of action against moving
party.
6th cause of action Conspiracy:
Sustained with leave to amend for failure to state
facts sufficient to constitute a cause of action. Plaintiff alleges that Defendants Karen
Chandler and Roger and Mary Reidarson did the acts and things herein alleged
pursuant to, and furtherance of, the conspiracy and above-alleged agreement. Plaintiff
has not alleged any wrongdoing by moving party to support a claim for conspiracy,
which is not a tort in and of itself but must be based on an independent tort committed
by moving party.
“Conspiracy is not a cause of action,” and cannot be plead as an independent tort.
Applied Equip. Corp. v Litton Saudi Arabia Ltd
. (1994) 7 Cal.4
th
503, 510. Conspiracy
claims should be made within the sections of the complaint that contain plaintiff’s
claims for the underlying torts so that defendants are on notice of the conspiracy claim
with which they are charged.
AccuImage Diagnostics Corp. v Terarecon, Inc
. (N.D.
Cal. 2003) 260 F Supp.2d 941, 947.
The claim appears barred by the statute of limitations since plaintiff alleges that
Chandler transferred the deed of trust to moving party in 2002, and plaintiff requested
but did not obtain the deed of trust in 2005. Thus, plaintiff was on notice if 2005 of
facts that would have put him on inquiry notice that the deed of trust had not been
conveyed to him..
7th cause of action Constructive Trust
: Sustained with leave to amend for failure to
state facts sufficient to constitute a cause of action. Plaintiff alleges in this cause of
action that “plaintiffs and defendant” agreed to execute a promissory note secured by a
deed of trust to above-mentioned property. However, in the opposition plaintiff admits
moving party did not breach any contract. The Complaint is devoid of any facts to
support any wrongdoing of moving party and a constructive trust on the property. The
claim appears to be barred by the statute of limitations because plaintiff requested the
deed of trust Chandler was to have provided to him in 2005. Thus, plaintiff was on
notice if 2005 of facts that would have put him on inquiry notice that the deed of trust
was not being conveyed to him.
8th cause of action Declaratory Relief and 9th cause of action Declaratory Relief
:
Sustained
without
leave to amend for failure to state facts sufficient to constitute a
cause of action. Plaintiff admits in the opposition that he is alleging only the 6th and
7th causes of action against moving party.
10th cause of action Embezzlement/Conversion, 11th cause of action Fraud, 12th
cause of action Fraud, 13th cause of action Negligence
: Sustained
without
leave
to amend for failure to state facts sufficient to constitute a cause of action: Plaintiff
admits in the opposition that he is alleging only the 6th and 7th causes of action
against moving party.
All future motions by moving party shall be accompanied by the Tentative Ruling
Notice provided in Local Rule 1.06. The Court denies plaintiff’s request to “deny” the
demurrer based on the absence of this notice in the notice of motion.
Although plaintiff has not set forth facts in the opposition that show that the defects can
be cured, the court is allowing leave to amend since this is the first challenge to the
pleadings, and plaintiff has the absolute right to amend the complaint before the time
of the hearing. CCP 472.
Where leave to amend is granted, plaintiff may file and serve an Amended Complaint
on or before January 24, 2014. Plaintiff is directed to set forth general allegations at
the beginning of the complaint. The Complaint, as drafted, is confusing as the facts
describing the parties’ relationship are scattered throughout the complaint in a
disorganized fashion. Response to be filed and served within 20 days of service of
the Amended Complaint, 25 days if served by mail.
The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.
Item
12
2012-00131605-CU-PO
Chastine W. Castro vs. Target Corporation
Nature of Proceeding:
Filed By:
Motion for Summary Judgment and/or Adjudication
Reihl, Lori A.
This matter is dropped from calendar.
The case was dismissed on November 15, 2013.
Item
13
2012-00136741-CU-CO
Alexander Sakhanskiy vs. Farmers Insurance Group
Nature of Proceeding:
Filed By:
Hearing on Demurrer
Strong, Alissa J.
This case was continued from an earlier date for further briefing on the bankruptcy
issue, as it might relate to the statute of limitations issue. The Court has considered
the supplemental briefs filed by Midcentury on December 6, 2013 and by plaintiff on
December 13, 2013.
Defendant Mid-Century Insurance Company’s (“Midcentury”) Demurrer to the 1st
Amended Complaint is sustained without leave to amend for failure to state facts
sufficient to constitute a cause of action.
Defendant’s Reply Request for Judicial Notice is granted.
Plaintiffs allege causes of action arising from an alleged breach of a homeowner’s
insurance policy. Plaintiffs allege causes of action for breach of contract, breach of the
covenant of good faith and fair dealing, and violations of Business & Profession Code
section 17200.
Midcentury contends, and the Court agrees, that the claims against Mid-Century are
barred by the one year contractual limitations period set forth in the policy. See Ins.
Code section 2071;
Prudential-LMI v Superior Court
(1990) 51 Cal.3d 674, 678. The
one year statute commences from the time Mid-Century denied the claim.
Velasquez v
Truck Insurance Exchange
(1991) 1 Cal.App.4th 712, 722. The claim was denied on
August 9, 2011. Plaintiffs’ final decree in bankruptcy was issued on January 11, 2012.
This lawsuit was not filed until December 7, 2012.
Plaintiffs filed for Chapter 13 bankruptcy on June 16, 2011. Therefore, the claim
against Mid-Century arose after the bankrupcty petition was filed and is a post-petition,
not a pre-petition claim. The Court rejects plaintiffs’ argument that the claim for bad
faith arose on the date that the loss occurred. The Court takes judicial notice of the
bankruptcy schedule of losses that included the loss caused by the fire and an
explanation that the insurance claim was being investigated. On August 9, 2011,
Midcentury denied the insurance claim. The Court is now persuaded that the claim
for bad faith against Midcentury arose
after
the bankruptcy case was filed, because it
could not have existed before the claim was denied.
The lawsuit is barred by the one year limitations period in the policy. The bankruptcy
stay did not prevent plaintiffs from filing suit against Mid-Century – whether or not the
claim arose before or after plaintiffs filed for bankruptcy. That is because “the
automatic stay provisions of the Bankruptcy Code prohibit the continuation of a judicial
action
‘against the debtor’
that was commenced before the bankruptcy.” [emphasis
added] (
In re White
(Bankr. 9th Cir. 1995) 186 B.R. 700, 703, citing 11 U.S.C.A. § 362
(a)(1).) Further, 11 U.S.C.A. § 362 also prohibits “any act to obtain possession of
property of the estate … or to exercise control over property of the estate.” (11
U.S.C.A. § 362(a)(3).) The stay provisions did not prevent
plaintiffs
from bringing or
continuing a lawsuit as
plaintiffs
.
The Court rejects Plaintiffs’ argument that 11 USCS 108 extends the time for filing a
non-bankruptcy claim for two years from the date the Petition is filed because that
code section applies only to pre-petition claims.
11 USCS § 108 provides: “(a) If applicable nonbankruptcy law, an order entered in a
nonbankruptcy proceeding, or an agreement fixes a period within which the debtor
may commence an action, and such period
has not expired before the date of the
filing of the petition
, the trustee may commence such action only before the later of–
(1) the end of such period, including any suspension of such period occurring on or
after the commencement of the case; or (2) two years after the order for
relief.” [emphasis added]
11 USCS § 108(a) extends the prescription period only for pre-petition claims to two
years after entry of order for relief if the prescription (statute of limitations) would
otherwise have run before that date.
In re Phillip
(1991) 948 F2d 985. Plaintiffs
contend that section 108(a) tolled the one year contractual limitations period for two
years from the filing of the bankruptcy petition, until June 16, 2013, relying on
Seawinds, Ltd. v Nedlloyd Lines, B.V.
(1987, ND Cal) 80 BR 181.
However, because the claim is a post-petition claim, and the statute of limitations on
the bad faith claim did not start to accrue until August of 2011, section 108 does not
apply.
If a cause of action does not belong to the bankruptcy estate, the bankruptcy tolling
statute does not apply. Plaintiffs have provided no authority that the two-year tolling
provision applies to claims which are not a part of the bankruptcy estate. The
instances in which bankruptcy courts have applied the two-year tolling provision are
when the claim belongs to the bankruptcy estate because they arose pre-petition. See,
e,g.,
California Aviation, Inc. v. Leeds
(1991) 233 Cal.App.3d 724.
Plaintiffs claim that they “disclose[d] their lawsuit in their bankruptcy petition” by
“clearly describ[ing] the suit on the Statement of Financial Affairs.” However, Plaintiffs
could not have listed their lawsuit against Mid-Century in June of 2011 because the
claim
did not even accrue until August 11, 2011
, when Mid-Century
denied their insurance claim, and therefore the claim could not have been listed on the
bankruptcy schedules. (See FAC, Ex. A thereto;
Prudential-LMI v. Superior Court
(1990) 51 Cal.3d 674, 693;
Aliberti v. Allstate
(1999) 74 Cal.App.4th 138, 146-147;
Migliore v. Mid-Century Ins
. (2002) 97 Cal.App.4th 592, 605.) The document relied on
by plaintiffs to support their argument (Ex. B to the opposition) does not list the claim
against the insurance company, only the loss from the fire. Therefore, plaintiff has not
shown that the defects could be cured by alleging that this loss was listed. The claim
against Mid-Century did not belong to the bankruptcy estate because causes of action
which accrue post-petition are “not part of the bankruptcy estate.” (
Haley v. Dow Lewis
Motors, Inc
. (1999) 72 Cal.App.4lh 497, 506,)
Section 108(a) of the Bankruptcy Code “ensures that a trustee may pursue pre-petition
claims of the debtor within two years after the filing date or the applicable prescription
period, whichever is longer.”
Matter of Phillip
(5th Cir. 1991) 948 F.2d 985, 986.)
However, because the claim denial accrued post-petition, it did not matter that the
case had been converted to chapter 7 after the claim against the insurance company
had accrued: the court concluded that “the language of the statute, its legislative
history, and judicial precedent do not support such an extension,” and found “summary
judgment was proper because the trustee’s claim was time-barred.” (Ibid.)
Even if plaintiffs’ post-petition claim against Mid-Century could be considered a part of
the bankruptcy estate, such a result would not cure the statute of limitations problem..
This is because the tolling provision of section 108(a) no longer applies once a
bankruptcy has been discharged.
Natco Industries, Inc. v. Federal Ins. Co.
(S.D.N.Y.
1987) 69 B.R. 418.
A demurrer must be sustained without leave to amend absent a showing by plaintiff
that a reasonable possibility exists that the defect can be cured by amendment.
Blank
v Kirwan
(1985) 39 Cal.3d 311, 318. The burden of proving such reasonable possibility
rests squarely on the plaintiff.
Torres v City of Yorba Linda
(1993) 13 Cal.App.4
th
1035,
1041. Plaintiff has not met that burden.
The prevailing party shall prepare a formal order for the Court’s signature pursuant to
C.R.C. 3.1312.
Item
14
2013-00146389-CU-NP
Spare Time, Inc. vs. Anna Sierra
Nature of Proceeding:
Filed By:
Order to Show Cause Re: Contempt
Timm, Bruce M.
The OSC re contempt is denied.
The Court issued an order to show cause re: contempt on November 6, 2013, setting
the matter for hearing on December 9, 2013. On December 3, 2013, plaintiff appeared
for another ex parte appointment, requesting an order to amend the charging affidavit
regarding Defendant Anna Sierra’s (“Sierra”) alleged indirect contempt of court for
violating the TRO and preliminary injunction. The Court denied the ex parte request.
The Court continued the December 9 hearing to December 17 and ruled that it would
receive certain documents provided by plaintiff for in camera review. (See minute
order December 4, 2013.) The December 17, 2013 hearing date was continued to this
date by stipulation of the parties.
The December 17, 2013 date was continued to this date after it was discovered that
plaintiff was unavailable on the 17th.
Plaintiff contends that defendant Anna Sierra should be held in contempt for violating a
preliminary injunction that stated, in relevant part:
“enjoining Defendant from using, disclosing, altering, summarizing, or
damaging any documents or property of Plaintiff, including documents or
property containing attorney-client privileged information, confidential
personnel records, and business/proprietary information, and from disclosing or
revealing attorney-client communications Defendant had with Plaintiff’s
attorneys in her employment position with Plaintiff is warranted. This injunction
does not restrain Defendant’s participation in litigation or speech pertaining
thereto, so long as such participation does not utilize documents or property
belonging to Plaintiff or
reveal confidential or privileged information of Plaintiff.” (Order on Preliminary
Injunction, August 9, 2013)
Plaintiff’s November 6, 2013 Affidavit for Contempt sets forth ten alleged violations of
the TRO and Preliminary Injunction. These alleged violations include disclosing
attorney client information in the following manner: In her opposition to the preliminary
injunction, in a letter to the California Labor and Workforce Development Agency, to
counsel in another lawsuit against Spare Time, in her opposition to the application for
writ of possession, in a Facebook post, in written discovery responses, and in her
cross-complaint. (The Court notes that neither the Cross-complaint nor Answer were
filed, as they were rejected as defective. See ROA # 58 and 85.)
Upon further review of the underlying evidence supporting the plaintiff’s request for
TRO and Preliminary Injunction, in conjunction with the terms of the preliminary
injunction, the Court finds that the TRO and Preliminary Injunction are not sufficiently
specific to make it demonstrable beyond a reasonable doubt that it was disobeyed.
See
Board of Supervisors v Superior Court
(1995) 33 Cal.App.4th 1724, 1737. The
evidence offered in support of the injunctive relief sought did not establish that any
particular document or piece of information in defendant’s possession was protected
by the attorney client privilege. (See Declaration of John Walker filed July 10, 2013, in
which the alleged disclosure of attorney client privileged information is unspecified and
stated “on information and belief.”) Moreover, the Order on Preliminary Injunction did
not define any particular document or piece of information that was subject to the
court’s order. Therefore, although the defendant had notice of the Order, the Court
finds that due to the unspecified nature of the “attorney client privileged information,” it
is not possible to prove beyond a reasonable doubt that the defendant wilfully
disobeyed a court order, and therefore the defendant will not be arraigned on the
charge of contempt. Contempt proceedings are quasi-criminal in nature, yet the
purpose of such proceedings is to protect dignity, authority, or process of court or
tribunal and to provide the court or other tribunal with the means of controlling its
proceedings.
Crawford v. Workers’ Comp. Appeals Bd
. (1989) 213 Cal. App. 3d 156,
165.
The OSC is therefore vacated.
The documents submitted for in camera review may be retrieved by plaintiff from the
court clerk.
The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.
Item
15
2013-00148813-CU-PO
Amalia Troyer vs. Welcome Home Senior Residence Fair Oaks
Nature of Proceeding:
Filed By:
Hearing on Demurrer
Citron, Joel F.
Defendant’s Demurrer to the Complaint is ruled on as follows:
Plaintiffs allege claims for elder abuse and related causes of action arising out of the
care of decedent Amalia Troyer at Welcome Home Senior Residence. Plaintiffs allege
that decedent was admitted to the board and care facility October 1, 2012 after a
serious stroke. Defendant was allegedly made aware of decedent’s high risk of
choking before she was admitted. Defendant was told that extreme care was required
in properly feeding her. (Complaint ¶ 10). Decedent’s daughter, plaintiff Melisa
Carter, allegedly witnessed defendants putting too much food in her mother’s mouth
more than ten times and warned them that her mom would choke if fed that much. On
November 22, 2012, decedent choked, stopped breathing, and aspirated food while
being fed the Thanksgiving meal. She was taken to the hospital where it was
discovered that her throat was full of mashed potatoes and other food. She died
several days later on December 3, 2012.
Defendant challenges the allegations by disputing their truth, and referring to the
Death Certificate. Such argument goes beyond the scope of a demurrer.
Defendant contends plaintiffs lack capacity to sue defendant but has provided no
authority for this argument. Defendant is mistaken in stating that only decedent has
standing to bring the first three causes of action. Robert Troyer has alleged he is
decedent’s successor in interest. A cause of action that survives the death of a person
passes to the decedent’s successor in interest and is enforceable by the “decedent’s
personal representative or, if none, by the decedent’s successor in interest.” (Code
Civ. Proc., § 377.30.) “Successor-in-interest” is “the beneficiary of the decedent’s
estate or other successor-in-interest who succeeds to a cause of action” under
sections 6401 and 6402 of the Probate Code. (Code Civ. Proc.
§ 377.11.) Pursuant to Probate Code Section 6402: [T]he entire intestate estate if
there is no surviving spouse or domestic partner, passes as follows:(a) To the issue of
the decedent, the issue taking equally if they are all of the same degree of kinship to
the decedent, but if of unequal degree those of more remote degree taking in the
manner provided in Section 240.”
All plaintiffs have alleged they are the heirs of decedent and therefore they each have
capacity to bring a wrongful death cause of action.
The demurrers for uncertainty and failure to state facts sufficient to constitute a cause
of action are overruled.
1st cause of action Willful Misconduct
: Overruled.
Willful misconduct implies “the intentional doing of something either with knowledge,
express or implied, that serious injury is a probable, as distinguished from a possible,
result, or the intentional doing of an act with a wanton and reckless disregard of its
consequences.”
Williams v. Carr
(1968) 68 Cal.2d 579, 584. Its elements include: (1)
actual or constructive knowledge of the danger, (2) actual or constructive knowledge
that injury is a probable result of the danger, and (3) conscious failure to act to avoid
the peril.
Nazar v. Rodeffer
(1986) 184 Cal.App.3d 546, 552.
Plaintiffs allege defendant, including a managing agent, knew of the choking risk due
to Melisa Carter’s repeated warnings and information provided before decedent was
admitted to the facility. Plaintiff alleges defendant knew that they were putting too
much food in decedent’s mouth, yet continued to feed decedent too much, too fast
because defendant did not want to hire additional care givers. The Court is not
persuaded that plaintiff is required to plead more detail such as what decedent’s care
plan was, or the names of the care-givers who she warned about the choking risk.
2nd cause of action Elder Abuse
: Overruled.
Defendant is correct that this claim is not technically a “cause of action” but instead a
claim for enhanced remedies provided by Welfare & Institutions code section 15657.
To state a cause of action for conduct under Welfare & Institutions Code section
15657, the plaintiff must plead facts showing two elements: (1) that the defendant has
subjected an elder to statutorily-defined physical abuse, neglect or financial abuse;
and (2) that the defendant willfully and consciously acted with recklessness, malice,
oppression, or fraud in the commission of the abuse. (Welf & Inst. Code § 15657.)
However, for pleading purposes, the claim should be treated as a separate cause of
action to distinguish it from mere negligence, and the claim has customarily been
pleaded as a separate cause of action rather than only as a remedy. Plaintiffs allege
that defendant’s care givers and managing agent continuously fed decedent too fast
for their financial gain (so that they would not have to hire additional care givers)
knowing that she was at great risk for choking. Therefore, authorization and
ratification of the conduct of care givers is adequately alleged. For pleading
purposes, the conduct alleged is sufficiently “despicable” to support a claim for punitive
damages and enhanced remedies under W & I Code 15657.
3rd cause of action Negligence
: Overruled. The Court rejects defendant’s argument
that no duty is alleged. Duty to care for decedent is premised on the admission of the
decedent into the facility and agreement to provide her board and care. In addition to
this general duty, negligence per se can be premised on regulations that establish the
standard of care
. Norman v Life Care Centers of America, Inc.
(2003) 107 Cal.App.4th
1233, 1244.
4th cause of action Wrongful Death
: Overruled. The other causes of action form a
basis for the heirs individual claims for wrongful death.
Defendant’s Motion to Strike is denied. The facts alleged are sufficient to support a
claim for punitive damages and enhanced remedies under EDAPCA. Defendant
seeks to strike various portions of the Complaint that total six pages.
The use of the
motion to strike should be cautious and sparing. It should not be a procedural “line
item veto” for the civil defendant.
PH II, Inc. v. Superior Court
(1995) 33 Cal. App. 4th
1680, 1683.
Answer to be filed and served on or before January 24, 2014.
The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.
Item
16
2013-00148813-CU-PO
Amalia Troyer vs. Welcome Home Senior Residence Fair Oaks
Nature of Proceeding:
Filed By:
Motion to Strike
Citron, Joel F.
See ruling on the demurrer.
Item
17
2013-00153213-CU-PT
In Re: Briana Tindall
Nature of Proceeding:
Filed By:
Petition for Change of Name
Tindall, Briana
Petition for Name Changes is granted.
Item
18
2013-00153219-CU-PT
In Re: Michael Bo Lam
Nature of Proceeding:
Filed By:
Petition for Change of Name
Aung, Cynthia
Petition for Name Change is granted.
Item
19
2011-00110678-CL-CL
Northern California Collection vs. Sandoval & Johnson
Nature of Proceeding:
Filed By:
Motion to Compel Form Interrogatories
Cribb, Steven D.
Plaintiff’s Motion to Compel Responses to Form Interrogatories is unopposed and is
granted.
Defendant shall served verified responses to the discovery on or before January 24,
2014.
No sanctions were requested.
The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.
Item
20
2013-00140305-CL-CL
Midland Funding, LLC vs. Gilbert Cobos
Nature of Proceeding:
Filed By:
Motion to Deem Matters Admitted
Zide, Flint C.
Plaintiff’s Motion for Order Deeming Requests for Admission Admitted is unopposed
and is granted,
unless
defendant serves responses to the requests before the hearing
that are in substantial compliance with CCP 2033.220.
If responses are served before the hearing, moving party shall notify the court clerk
forthwith.
Sanctions pursuant to CCP 2033.280(c) are mandatory if properly requested, however
neither the notice of motion, points and authorities nor the declaration request
sanctions pursuant to this section.
Counsel did not provide the correct tentative ruling notice. The notice of motion does
not provide notice of the Court’s tentative ruling system, as required by Local Rule
1.06(D). Counsel for moving party is directed to contact defendant forthwith and
advise counsel of Local Rule 1.06 and the Court’s tentative ruling procedure. If
counsel for moving party is unable to contact defendant prior to hearing, counsel for
moving party
shall
be available at the hearing, in person or by telephone, in the event
opposing party appears without following the procedures set forth in Local Rule 1.06
(B).
The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.
Item
21
2013-00140305-CL-CL
Midland Funding, LLC vs. Gilbert Cobos
Nature of Proceeding:
Filed By:
Motion to Compel Responses to Interrogatories
Zide, Flint C.
Plaintiff’s Motion to Compel Responses to Form and Special Interrogatories is
unopposed and is granted.
Defendant shall served verified responses to the discovery on or before January 24,
2014.
No sanctions were requested.
Counsel did not provide the correct tentative ruling notice. The notice of motion does
not provide notice of the Court’s tentative ruling system, as required by Local Rule
1.06(D). Counsel for moving party is directed to contact defendant forthwith and
advise counsel of Local Rule 1.06 and the Court’s tentative ruling procedure. If
counsel for moving party is unable to contact defendant prior to hearing, counsel for
moving party shall be available at the hearing, in person or by telephone, in the event
opposing party appears without following the procedures set forth in Local Rule 1.06
(B).
The minute order is effective immediately. No formal order pursuant to CRC Rule
3.1312 or further notice is required.
Item
22
2013-90023211-CL-OE
State of California, EDD vs. Andrea C. Alderete
Nature of Proceeding:
Filed By:
Notice of Hearing on Claim of Exemption
Beil, K.
Claim of exemption is denied to the extent judgment creditor is entitled to $25 per pay
period, up to $50 per month. Any amounts being retained in excess thereof are to be
returned to the judgment debtor.
The employer may send one payment per month to reduce the administrative
expenses of the garnishment.