Tentative Rulings for March 22, 2017 Departments 402, · PDF fileTentative Rulings for March...

Tentative Rulings for March 22, 2017

Departments 402, 403, 501, 502, 503

There are no tentative rulings for the following cases. The hearing will go forward on

these matters. If a person is under a court order to appear, he/she must do so.

Otherwise, parties should appear unless they have notified the court that they will

submit the matter without an appearance. (See California Rules of Court, rule 3.1304(c).)

15CECG00094 Juarez v. City of Fresno (Dept. 501)

15CECG02635 Hamed v. Banuelos Aguilar (Dept. 402)

The court has continued the following cases. The deadlines for opposition and reply

papers will remain the same as for the original hearing date.

13CECG03374 Gerawan Farming, Inc. v. Calif. Agricultural Labor Relations Board,

et al. All four motions for summary judgment are continued to

Wednesday, April 5, 2017 at 3:30 p.m. in Dept. 501.

________________________________________________________________

(Tentative Rulings begin at the next page)

Tentative Rulings for Department 402 (6)

Tentative Ruling

Re: Bennett v. French

Superior Court Case No.: 16CECG03085

Hearing Date: March 22, 2017 (Dept. 402)

Motion: Demurrer to and motion to strike portions of the first

amended complaint by Defendants G. Dana French and

Wild, Carter & Tipton

Tentative Ruling:

To take off calendar Defendants’ G. Dana French’s and Wild, Carter & Tipton’s

demurrer to the complaint. (Code Civ. Proc., § 430.41, subd. (a).) The motion to strike is

denied.

The Court orders Plaintiffs’ and Defendants’ counsel to meet and confer in

person or by telephone as required by Code of Civil Procedure section 430.41,

subdivision (a). If the parties do not reach an agreement resolving the objections raised

in the demurrer, Defendants may obtain a new hearing date for the demurrer. If a new

hearing date is obtained, Defendants must file a new meet and confer declaration as

required by Code of Civil Procedure section 430.41, subdivision (a)(3), at least 16 court

days, plus any additional time as required for service of the declaration, before the new

hearing date. If, after meeting and conferring, Plaintiffs agree to amend the complaint,

Plaintiffs and Defendants may submit a stipulation and order for leave to file a second

amended complaint, which will be granted by the Court without need for a hearing.

(Cal. Rules of Court, rule 3.1207(4); Fresno County Sup.Ct., Local Rules of Court, rule

2.7.2.)

Explanation:

In the circumstance where the attorneys have not met and conferred in person

or by telephone by statute, demurring Defendants should have filed and served, on or

before the date on which the demurrer would be due, a declaration that a good faith

attempt to meet and confer was made and explaining the reasons why the parties

could not meet and confer. Upon filing of such a declaration, Defendants would have

been granted an automatic 30-day extension of time. (Code Civ. Proc., § 430.41, subd.

(a)(2).)

Concerning the motion to strike, the Court notes that Plaintiffs have filed a notice

that they do not oppose the motion to strike. However, a challenge to an entire cause

of action is only by demurrer or judgment on the pleadings, not a motion to strike.

(Quiroz v. Seventh Avenue Center (2006) 140 Cal.App.4th 1256, 1281.) The purpose of

motions to strike are to cut out “irrelevant, false or improper” matters inserted into the

complaint. (Code Civ. Proc., § 436, subd. (a).)

The Court will treat the concession that the fifth “cause of action” for attorney’s

fees has no merit, and an agreement by Plaintiffs that it will be deleted as a “cause of

action” upon the filing of any amended pleading, and thus it need not be discussed by

the attorneys at the meet and confer conference on the demurrer.

Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure

section 1019.5, subdivision (a), no further written order is necessary. The minute order

adopting this tentative ruling will serve as the order of the court and service by the clerk

will constitute notice of the order.

Tentative Ruling

Issued By: JYH on 03/21/17

(Judge’s initials) (Date)

(6)

Tentative Ruling

Re: US Bank National Association as Trustee for CRMSI REMIC Series

2007-02 – REMIC Pass-Through Certificates Series 2007-02 v. King

Superior Court Case No.: 16CECG00296


Motion: Default prove-up

Tentative Ruling:

To deny. The Court will vacate the defaults entered against Brett King, Nancy

Simms aka Nancy King, and Cynthia Lynn Adkins as successor trustee of the Georgia

Florine Rich Living Trust dated April 8, 2004, on May 26, 2016, and permit Plaintiff to file

an amended complaint.

Explanation:

A defendant who defaults admits only facts well pleaded in the complaint. Thus,

if the complaint fails to state a cause of action, a default judgment is erroneous and will

be set aside on appeal. (Molen v. Friedman (1998) 64 Cal.App.4th 1149, 1153-1154.)

The first cause of action is for judicial foreclosure is not well-pleaded. A complaint

by a beneficiary under a deed of trust for judicial foreclosure must allege: (1) the

secured obligation; (2) the trust deed securing the obligation; (3) the plaintiff’s status as

creditor; (4) acceleration clauses enabling the plaintiff to declare the entire unpaid

immediately due; (5) the defaults entitling the plaintiff to foreclosure; (6) a provision for

the recovery of reasonable attorney’s fees; (7) optional allegations if the plaintiff is

seeking a deficiency judgment or is waiving recovery of a deficiency judgment. (Code

Civ. Proc., §§728, 726, 730.) Here, there is no allegation in the first cause of action for

judicial foreclosure as to why Plaintiff is entitled to a deficiency and in fact, the loan

made to Defendants Brett King and Nancy Simms aka Nancy King (“the Kings”)

appears to be a purchase money loan. (Code Civ. Proc., § 580, subd. (a)(1), (2).) The

complaint seeks a deficiency judgment (complaint, ¶16), but doesn’t allege why

Plaintiff is entitled to a deficiency judgment.

The third cause of action for quiet title is not well-pleaded. In order to allege a

cause of action for quiet title, the complaint must be verified and must include all of the

following: (a) A description of the property that is the subject of the action. In the case

of tangible personal property, the description must include its usual location, and in the

case of real property, the description must include both its legal description and its

street address or common designation, if any. (b) The title of the plaintiff as to which a

determination is sought and the basis of the title. If the title is based on adverse

possession, the complaint must allege the specific facts constituting the adverse

possession. (c) The adverse claims to the title of the plaintiff against which a

determination is sought. (d) The date as of which the determination is sought. If the

determination is sought as of a date other than the date the complaint is filed, the

complaint must include a statement of the reasons why a determination as of that date

is sought. (e) A prayer for the determination of the title of the plaintiff against the

adverse claims. (Code Civ. Proc. § 761.020.) Here, the cause of action seeks to quiet

title in a piece of property, allegedly owned by The Georgia Florine Rich Living Trust

Dated April 8, 2004. However, the cause of action does not set forth the legal

description of that parcel which the complaint alleges was “swapped” with a parcel

belonging to the Kings. Contrary to the allegations of the complaint, that the

assignments (and presumably, the legal descriptions) of the “swapped” properties are

attached as exhibits, are not so attached. (Complaint, ¶10, exhibits 1-3.)

The second cause of action for breach of contract states facts sufficient to

constitute a cause of action. However, by suing on this cause of action without first

foreclosing on the security, Plaintiff would violate the security-first, one-action rule of

Code of Civil Procedure section 726, and waive its rights in the security by doing so.

Also, no monetary judgment can be obtained on the complaint as it is currently

alleged does not specify a dollar amount for damages in the prayer, and at times seeks

“damages…in excess of $250,000” (prayer, ¶3), “in excess of $330,877.46” owed on the

loan (complaint, ¶15), and nothing specifically for the second cause of action for

breach of contract. If damages according to proof are prayed for, the court may not

grant a money judgment. (Ludka v. Memory Magnetics Int'l (1972) 25 Cal.App.3d 316,

322.) Further, judicial foreclosure is not simply the obtaining of a money judgment; it

involves obtaining a decree of sale (Code Civ. Proc., § 726, subd. (a)); enforcement by

a writ of sale (Code Civ. Proc., §716.010, subd. (a); 712.010, 716.010, subd. (c)); sale of

the property if the right to a deficiency exists (Code Civ. Proc., §§ 726, subd, (e);

729.010, subd. (a)), with other requirements including notice to the trustor.

Also, the Court notes that the notice of recording of lis pendens does not cover

the property belonging to the trust. On the filing of a complaint, a notice that the

action is pending (lis pendens) should be recorded in each county where the property

or any part of it is located. The recordation of the lis pendens gives notices of the

proceedings to all persons who subsequently acquire an interest in or a lien upon the

encumbered premises, and all persons who acquire an interest or lien after the lis

pendens is recorded take subject to any foreclosure judgment rendered. (Dobbins v.

Economic Gas Co. (1920) 182 Cal. 616, 622; Hibernia Savings & Loan Society v. Cochran

(1904) 141 Cal. 653, 656; Johnson v. Friant (1903) 140 Cal. 260, 262.) If a notice is not

recorded, a subsequent purchaser or encumbrancer for value who has no notice of

the proceedings is not bound by any judicial decree that may be rendered. (Carpenter

v. Lewis (1897) 119 Cal. 18, 22.)





Tentative Ruling



(19) Tentative Ruling

Re: Maciel v. Bar 20 Dairy LLC

Court Case No. 15CECG00475

Hearing Date: March 22, 2017 (Department 402)

Motions: By defendant to seal Exhibit C, part 15, of Salvador Rodriguez’

declaration filed February 22, 2017.

Tentative Ruling:

To grant with directions.

Explanation:

The filing at issue contains unredacted Social Security numbers in violation of

California Rules of Court, Rule 1.201, and the request is properly made. Such filing shall

be removed from the public court file and sealed. Defendant need provide an

envelope sufficient for packaging the February 22, 2017 filing with a face page for the

filing on front of the envelope, along with the legend “UNDER SEAL PURSUANT TO COURT

ORDER.”

Defendant need also make a separate filing of Exhibit A to the Carlson

declaration filed with this motion.

The actions described above shall be completed by March 24, 2017.

Pursuant to Code of Civil Procedure section 1019.5, subdivision (a), no further written

order is necessary. The minute order adopting this tentative ruling will serve as the order

of the court and service by the clerk will constitute notice of the order.

Tentative Ruling



Tentative Rulings for Department 403

Tentative Rulings for Department 501 03

Tentative Ruling

Re: Switzer v. Flournoy Management, LLC

Case No. 11 CE CG 04395

Hearing Date: March 22nd, 2017 (Dept. 501)

Motion: Plaintiff’s Motions to Compel Further Responses to Requests

for Production of Documents, Set Two, as to Defendants

Wood and Access Medical, and Motion to Compel Further

Responses to Special Interrogatories, Set Three, as to Wood

Defendants’ Motion to Quash Subpoena for Production of

Business Records

Tentative Ruling:

To grant plaintiff’s motions to compel further responses to requests for

production of documents, set two, as to defendants Wood and Access Medical.

(Code Civ. Proc. § 2031.310.) Defendants shall serve further responses within 10 days of

the date of service of this order. Also, the court intends to order defendants and their

counsel to pay monetary sanctions of $750 and $420 with regard to the two motions to

compel within 30 days.

To grant plaintiff’s motion to compel further responses to special interrogatories,

set three, as to defendant Wood, with regard to special interrogatories 27, 28, 39, 40, 41,

and 42. (Code Civ. Proc. § 2030.300.) However, defense counsel has stated that she will

serve supplemental responses to the other disputed interrogatories, so the motion is

moot with regard to those interrogatories. To grant monetary sanctions against

defendants and their counsel in the amount of $780. Defendants shall serve further

responses within 10 days of the date of service of this order, and pay sanctions within 30

days.

To deny defendants’ motion to quash the subpoena for business records of

Alpine Medical Management, LLC served on First Madison National Bank. (Code Civ.

Proc. § 1987.1.) However, the court will grant a protective order limiting the scope of

the subpoena to only the bank records that relate to Alpine’s transactions related to

University Hospital of Augusta, Georgia and Santa Barbara Cottage Hospital, and

Alpine’s transactions related to Access, Aramat and Wood. To deny plaintiff’s request

for monetary sanctions against defendants and their counsel with regard to the motion

to quash.

Explanation:

Motions to Compel: With regard to the requests for production served on Wood

and Access, defendant objected and refused to answer, relying primarily on the

contention that the requests seek irrelevant information about companies that were not

parties to the partnership agreement and are not involved in the litigation. However,

plaintiff has alleged that Wood is using the new companies Alpine and Longhorn as

shells to conceal money from Flournoy, which is part of Wood’s alleged ongoing

scheme to defraud and steal money from Wood and Flournoy. He alleges that the new

companies have received substantial amounts of money from customers that should

have gone to Flournoy under the partnership agreement. Therefore, it does appear

that information about the formation and management of these companies is relevant

to the subject matter of the action, as the records may reveal information about

whether the companies are being used to divert and conceal money from Flournoy.

Consequently, the court intends to overrule the relevance objection.

Also, while defendants argue that the requests infringe on the third party

financial privacy rights of the companies, the right of privacy is not absolute. The court

may order discovery if there is a compelling need that outweighs the person’s right to

keep their information private. “Where objection is made to discovery of such sensitive

information in the trial court, the court must carefully weigh the competing factors in

fashioning an order, considering: '... the purpose of the information sought, the effect

that disclosure will have on the parties and on the trial, the nature of the objections

urged by the party resisting disclosure, and ability of the court to make an alternative

order which may grant partial disclosure, disclosure in another form, or disclosure only in

the event that the party seeking the information undertakes certain specified burdens

which appear just under the circumstances ....' (Greyhound Corp. v. Superior Court

(1961) 56 Cal.2d 355, 382-383.)

Here, plaintiff is not seeking detailed financial records from the companies, but

only basic information about the membership, formation, and management of the

companies. In any event, there appears to be a compelling interest in seeking the

information from the companies, as plaintiff is alleging that they are being used as shell

entities to conceal income from Flournoy. While the companies have an interest in

keeping their records private, their interest is outweighed by the plaintiff’s need to

discover relevant information regarding his claim that defendants are stealing money

from the partnership and concealing it in shell companies.

Also, there does not appear to be any other, less intrusive means of discovering

the information. While defendants contend that plaintiff can obtain the same

information by subpoenaing bank records regarding any payments to the companies,

the bank records would not give plaintiff any information about where the money goes

after it is paid to the companies. Given plaintiff’s claim that the companies are being

used to conceal money and divert it to Wood, it is necessary for plaintiff to obtain

records directly from the companies to determine who the owners and managers of

the companies are and whether they are being used to funnel money to Wood or his

other companies. Therefore, the court intends to grant the motion to compel further

responses to the requests for production.

The same rationale applies to the motion to compel further responses to special

interrogatories with regard to Alpine, Longhorn and Double Nickel. Therefore, the court

intends to grant the motion to compel as to special interrogatories 27, 28, 39, 40, 41,

and 42. However, defense counsel has represented that she will serve supplemental

responses as to the other disputed interrogatories, so the motion to compel is moot as

to them.

Finally, the court intends to grant the request for monetary sanctions as to all

three motions to compel against defendants and their counsel.

Motion to Quash: Defendants contend that the subpoena seeks irrelevant

information, as well as being overbroad, burdensome and harassing, and that Alpine is

not a party to the action or the underlying partnership agreement, and therefore there

is no good cause for requiring the bank to produce Alpine’s financial records.

However, plaintiff has presented evidence which supports his contention that Alpine is a

shell entity that defendant Wood is using to transfer and conceal money from Flournoy

as part of Wood’s alleged continuing scheme to defraud Flournoy and Switzer. The fact

that Alpine is not a party to the partnership agreement or a party to the action does

not necessarily establish that its financial records are not relevant to the issues of the

litigation or likely to lead to the discovery of admissible evidence, since Wood allegedly

created Alpine to help him conceal money and assets from Flournoy and Switzer.

Plaintiff claims that Alpine has received substantial sums of money from Wood and

Access over the last several years, and that this money should have gone to Flournoy

instead. Therefore, Alpine’s bank records appear to be relevant to the issues of the

litigation, and the court will not grant the motion to quash the subpoena for them.

Defendants contend that the subpoena violates the right of privacy of the third

party company, and that plaintiff has not shown any compelling interest that would

justify such an intrusion. Financial records are generally considered to be protected by

the constitutional right of privacy. (Valley Bank of Nevada v. Superior Court (1975) 15

Cal.3d 652.) However, this protection is not a complete bar to discovery. (Greyhound

Corp. v. Superior Court (1961) 56 Cal.2d 355, 382-383.)

Here, while the bank records of Alpine are protected under the right of privacy,

plaintiff has shown a compelling need for the information, as Alpine is allegedly being

used to conceal money from Access and other businesses controlled by Wood that

should have gone to Flournoy. Obviously, any money that has been diverted from

Flournoy in violation of the partnership agreement is directly relevant to plaintiff’s

derivative claims. Plaintiff therefore has a strong interest in obtaining this information.

Also, it does not appear that there is any other, less intrusive means for plaintiff to obtain

the information. Defendants contend that plaintiff could obtain the information from

other sources, and in fact that plaintiff has already obtained much of the information

he seeks from his subpoena to University Hospital of Augusta, Georgia. Yet it does not

appear that University Hospital would have had access to all the information plaintiff

seeks, such as payments by Santa Barbara Cottage Hospital, as well as any other

payments to and from defendants’ alleged shell companies after the hospitals made

payments to Alpine. Therefore, the court intends to find that the subpoena is the least

intrusive means of obtaining the information plaintiff seeks.

However, the court will grant a protective order limiting the disclosure of Alpine’s

bank records to only the records that show deposits, withdrawals or transfers between

Alpine and Wood’s other companies, including Access and Aramat, as well as from

University Hospital of Augusta, Georgia and Santa Barbara Cottage Hospital. This will

protect Alpine’s right of privacy as to its transactions with its other customers, while still

allowing plaintiff to obtain information relevant to the present case.

Finally, the court intends to deny plaintiff’s request for monetary sanctions

against defendants for bringing the motion to quash. As discussed above, while the

motion to quash the entire subpoena will be denied, the court does intend to issue a

protective order limiting the scope of the subpoena. Thus, the motion is not entirely

without merit. Also, while plaintiff claims that defense counsel failed to meet and

confer before bringing the motion, defense counsel claims that she tried to meet and

confer but that plaintiff’s counsel was rude and abusive to her, so further efforts to

resolve the dispute informally would have been futile. Although it is not clear which

version of events is correct, under the circumstances it does not appear that

defendants were acting in bad faith when they brought the motion, so sanctions

against them are not warranted here.

Pursuant to CRC 3.1312 and CCP §1019.5(a), no further written order is necessary.

The minute order adopting this tentative ruling will serve as the order of the court and

service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: MWS on 03/21/17


(30)

Tentative Ruling

Re: Shaw’s Structures v. Friends of the Fair

Superior Court No. 15CECG01373

Hearing Date: Wednesday March 22, 2017 (D. 501)

Motion: Defendants Brosi and Ferettas’ Motions to Compel

Tentative Ruling:

To Order motions to compel off calendar.

Explanation:

Motion to Compel

An action that originally was based on a justiciable controversy cannot be maintained

if all the questions have become moot by subsequent acts or events. Judgment would

be without practical effect, and cannot therefore proceed. (Consolidated Vultee

Aircraft Corp. v. United Auto., Aircraft & Agricultural Implement Workers (1946) 27 Cal.2d

859.)

Here, Plaintiffs have complied with Defendants’ requests. Therefore, Defendants’

motions are moot; there is nothing to compel. Motions ordered off calendar.





Tentative Ruling

Issued By: MWS on 03/21/17




Re: Wyatt v. Own A Car of Fresno



Motion: Plaintiff’s Motion to Confirm Arbitration Award

Tentative Ruling:

To grant; the court will sign the proposed order submitted.

Explanation:

Defendant Own A Car of Fresno has filed a “Notice of No Opposition” to this

motion/petition, and moving party has met the statutory requirements for moving to

have the arbitrator’s award confirmed.

Pursuant to California Rules of Court, rule 3.1312 and Code of Civil Procedure

section 1019.5(a), no further written order is necessary. The minute order adopting this

ruling will serve as the order of the court, and service by the clerk of the minute order


Tentative Ruling

Issued By: DSB on 03/20/17



Re: Smith v. Nationwide Agribusiness Ins. Co.

Case No. 15CECG02768


Motion: By Defendant Nationwide Agribusiness Insurance Company for

Summary Judgment or, Alternatively, Summary Adjudication of the

Breach of Contract, Breach of the Implied Covenant of Good Faith

and Fair Dealing, and Negligence Causes of Action of the

Complaint and Request for Punitive Damages as Alleged Against

Nationwide.

Tentative Ruling:

To deny.

Explanation:

To obtain summary judgment, “all a defendant needs to do is to show that the

plaintiff cannot establish at least one element of the cause of action.” Aguilar v.

Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853. If a defendant makes this showing, the

burden shifts to the plaintiff to demonstrate that one or more material facts exist as to

the cause of action or as to a defense to a cause of action. (CCP § 437(c),

subdivision(p)(2).)

In a summary judgment motion, the pleadings determine the scope of relevant

issues. (Nieto v. Blue Shield of Calif. Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 74.)

A defendant need only “negate plaintiff's theories of liability as alleged in the

complaint; that is, a moving party need not refute liability on some theoretical possibility

not included in the pleadings.” (Hutton v. Fidelity Nat’l Title Co. (2013) 213 Cal.App.4th

486, 493 (emphasis in original).)

Nevertheless, the burden is on the moving party to make a prima facie showing

that there are there are no triable issues of material fact; only if the moving party carries

this burden, it causes a shift and the opposing party is then subject to its own burden of

production to show that a material fact exists. (Aguilar v. Atlantic Richfield Co. (2001) 25

Cal.4th 826, 850-51.)

The court examines affidavits, declarations and deposition testimony as set forth

by the parties, where applicable. (DeSuza v. Andersack (1976) 63 Cal.App.3d 694, 698.)

Any doubts about the propriety of summary judgment are to be resolved in favor of the

opposing party. (Yanowitz v. L’Oreal USA, Inc. (2003) 106 Cal.App.4th 1036, 1050.)

A court will “liberally construe plaintiff's evidentiary submissions and strictly

scrutinize defendant's own evidence, in order to resolve any evidentiary doubts or

ambiguities in plaintiff's favor.” (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56,

64.)

Furthermore, the moving party must identify the issues and cite specific evidence

showing there is no controversy in the separate statement; “If it is not set forth in the

separate statement, it does not exist.” (United Community Church v. Garcin (1991) 231

Cal.App.3d 327, 337 (emphasis in original).)

Defendant Nationwide Agribusiness Insurance Company (“Nationwide”) brings

this motion against the operative complaint filed by Plaintiff Edwin Smith (“Plaintiff”).

Plaintiff’s complaint alleges breach of insurance contract, breach of the covenant of

good faith and fair dealing (insurance bad faith), and negligence, stemming from the

handling of an insurance claim for theft of and damage to real and personal property.

Nationwide made a payment on the claim, but Plaintiff asserts that Nationwide

delayed the resolution of the claim and underpaid. Plaintiff seeks compensatory and

punitive damages.

Breach of Insurance Contract Claim

Defendant contends that Plaintiff’s insurance claim should have been denied

because Plaintiff was not a named insured on the policies he obtained from

Nationwide: his father, Edwin Smith (“the elder Smith”) who had died several years prior

to the claim, was the named insured on the insurance policy initially purchased from

Nationwide in 2009. (Undisputed Material Fact (“UMF”) 1.) According to Nationwide’s

own documents, this apparently never changed between 2009 and 2013. (UMF 2.)

Plaintiff made the instant claim on the policy on April 16, 2014. (UMF 23.) At the

time of the claim, according to the documents in Nationwide’s possession, Plaintiff was

named as an “additional insured” and was covered only to the extent of his own

actions. (UMF 4-6.) Furthermore, the property had been transferred from the elder Smith

to the family partnership three years before the insurance was purchased. (UMF 19-22.)

Therefore, Nationwide argues, the elder Smith did not have an insurable interest at the

time the insurance was procured. (Davis v. Phoenix Ins. Co. (1896) 111 Cal. 409, 414

(insurance indemnifies a particular insured, and not the property itself).) To the extent

that the insurance policy was transferred, Nationwide contends that there is no record it

ever consented to such an assignment. (UMF 11.)

Plaintiff counters that, after the elder Smith’s death, Plaintiff directed Avakian,

Nationwide’s agent, to provide insurance for the subject property in Plaintiff’s name.

(AMF nos. 20-25.) Avakian represented that the changes had been made and Plaintiff

contends that Nationwide was bound by those promises. (Shade Foods, Inc. v.

Innovative Products Sales & Marketing, Inc. (2000) 78 Cal.App.4th 847, 974 (agents

“may bind the company by any acts, agreements or representations that are within the

ordinary scope and limits of the insurance business entrusted to him”).) If there was a

mistake in the identity of the named insured, according to Plaintiff, this mistake is the

responsibility of Nationwide. (Granco Steel, Inc. v. Workman’s Compensation Appeals

Board (1968) 68 Cal.2d 191, 197 (oral representation regarding scope of insurance by

agent is binding on insurance company).)

In the reply, Defendant argues that it is not vicariously liable for the torts of

Avakian because Avakian was the insured’s agent and not the agent for Nationwide.

(Mercury Insurance Co. v. Pearson (2008) 169 Cal.App.4th 1064, 1073.)

However, the question with respect to the contract claim is not whether

Defendant is vicariously liable for Avakian’s torts, but rather whether Avakian had

authority to bind Nationwide. The case cited by Plaintiff holds that, even when an

agent represents several insurance companies, such an oral binder can be legally

operative. (Granco Steel, Inc., supra, 68 Cal.2d at 199-200 (relying on estoppel

principles and citing with approval a compensation case in with similar facts to the

instant case, where a partnership was incorporated and a request to change the

named insured was delivered, the insurance company was estopped from denying

coverage).) Here, there is evidence from which a reasonable jury could conclude that

Plaintiff had instructed Avakian to procure the insurance in the proper name that would

cover the subject property. (See Additional Material Facts (“AMF”) 21-26.) Therefore,

there remains a question of fact as to whether the insurance contract is binding on

Nationwide.

Nationwide also cites to several cases for the proposition that a “no-oral-

modification” clause in an insurance contract prevents such an oral binder. (Northern

Assur. Co. v. Grand View Building Assoc. (1902) 183 US 308, 361; Madsen v. Maryland

Cas. Co. of Baltimore (1914) 168 Cal.204, 206; Fidelity & Cas. Co. v. Fresno Flume &

Irrigation Co. (1911) 161 Cal.466, 471; Iverson v. Metropolitan Life Ins. Co. (1907) 151 Cal.

746, 752-53.) However, aside from the fact that these cases are over a century old,

Defendant does not account for or distinguish the contrary authority in Granco Steel.

As to the issue of whether Plaintiff had an insurable interest in the property,

Nationwide points to no case law that squarely holds that Plaintiff lacks an insurable

interest as a general partner. There is also an issue as to whether Plaintiff had an

insurable interest in the property seems as a result of his status as a general partner in

the limited partnership that had an ownership interest. Resolution of this issue is factual

and will require evidence related to the communications between Plaintiff and his

affiliates and Avakian regarding ownership of the property.

Breach of Covenant of Good Faith and Fair Dealing.

Where a duty to investigate has arisen, the failure of the insurer to investigate

properly breaches the implied covenant. (Egan v. Mutual of Omaha Ins. Co. (1979) 24

Cal.3d 809, 817.) An insurer has an affirmative duty to initiate the investigation and

cannot sit back and merely find fault with the information provided by the policy

holder. (Id. at 819.)

Nationwide initially argues that there could be no insurance “bad faith” in this

case because Plaintiff was not the named insured nor did he have any insurable

interest in the subject Property. However, as noted above, there is at least a question of

fact on these issues.

Nationwide also argues that there was no bad faith because there was a

genuine issue as to the existence of coverage liability, whether a theft had occurred,

what items had been stolen, the value of the items, and whether Plaintiff had an

insurable interest in the Property. (Chateau Chamberay Homeowners Ass’n. v.

Associated Internat. Ins. Co. (2001) 90 Cal.App.4th 335, 349.) However, encompassed

within the bad faith claim are claims that Defendant conducted an incomplete and

faulty investigation and unreasonably delayed in adjudicating the claim. There are

obvious factual issues related to these claims which cannot be resolved by summary

adjudication.

Negligence

The Complaint alleges that Avakian was an authorized agent of Nationwide,

breached duties owed to Plaintiff, and Nationwide is vicariously liable. (Complaint ¶¶

39-45; Jackson v. Aetna Life & Cas. Co. (1979) 93 Cal.App.3d 838, 846-847). Defendant

argues that Avakian is an agent of Plaintiff and not of Nationwide. However,

Defendant completely ignored the issue in its Separate Statement. Since the “golden

rule” is that if it is not in the separate statement, it does not exist (United Community

Church, supra, 231 Cal.App.3d at 337), the claim cannot be summarily adjudicated in

Defendant’s favor.

Punitive Damages

Nationwide argues that there are no facts from which a jury could conclude that

it acted in a fraudulent, oppressive, or malicious manner for the purposes of awarding

punitive damages. (Taylor v. Superior Court (1979) 24 Cal.3d 890, 894 (likening such

behavior to the level of outrage associated with crime).) However, as Plaintiff notes, the

question of whether to award punitive damages is generally better left to a jury.

(Amerigraphics v. Mercury Casualty Co. (2010) 182 Cal.App.4th 1538, 1559-60

(disapproved of on other grounds by Nickerson v. Stonebridge Life Ins. Co. (2016) 63

Cal.4th 363, 377, fn.2.).) Furthermore, punitive damages have been approved in the

instance where an insurance company makes decisions that were the product of

established company practice as opposed to mere negligence, and it is the

provenience of a jury to make that determination. (Hughes v. Blue Cross of Northern

California (1989) 215 Cal.App.3d 832, 847.) Plaintiffs have submitted evidence that

would support a finding that Defendant intentionally conducted a flawed investigation

and intended to deny Plaintiffs the benefits of their insurance.

Pursuant to California Rules of Court, rule 3.1312, subdivision (a), and Code of

Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The

minute order adopting this tentative ruling will serve as the order of the court and


Tentative Ruling

Issued By: DSB on 03/21/17




Re: Tolmasoff v. Specialized Loan Servicing, LLC

Case No. 17CECG00429


Motion: Order to Show Cause Why Preliminary Injunction Should Not Issue.

Tentative Ruling:

To discharge the order to show cause and dissolve the temporary restraining

order.

Explanation:

On February 15, 2017, Plaintiff filed an ex-parte application for a temporary

restraining order and an order to show cause for a preliminary injunction to prevent the

foreclosure sale of property located in Fresno, California. The ex parte was denied.

On February 28, 2017, Plaintiff filed a second ex-parte application seeking the

same relief. This Court granted a temporary restraining order and set a hearing for

March 2, 2017.

At the March 2, 2017 hearing, the Court issued a temporary restraining order until

March 22, 2017 and set a hearing for that date on an Order to Show Cause why a

preliminary injunction should not issue for that date.

The parties have filed no papers since the Order to Show Cause was issued.

Moreover, Plaintiff has filed no proof of service on Defendant of the March 22nd, 2017

order.

When a TRO is issued, the papers must be served on the opposing party within

five days after the TRO is issued or 2 days before the hearing, whichever is earlier. (Code

Civ.Proc. §527, subd.(d)(2).) If the papers are not timely served on the opposing party,

the TRO must be dissolved. (Code Civ.Proc. §527, subd.(d)(2).) Because no proof of

service has been filed, the TRO must be dissolved and the request for a preliminary

injunction is denied. (Code Civ.Proc. §527, subd.(d)(3).)

Pursuant to California Rules of Court, rule 3.1312, subdivision (a), and Code of

Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The

minute order adopting this tentative ruling will serve as the order of the court and


Tentative Ruling

Issued By: A.M. Simpson on 03/20/17



Re: Vlahopouliotis v. Vallarta Properties LLC



Motion: 1) Defendant’s Motion to Enforce Settlement

2) Defendant’s Motion to Compel Arbitration

Tentative Ruling:

To deny defendant’s motion to enforce settlement. To grant defendant’s motion

to compel arbitration, with said arbitration to occur on Wednesday April 19, 2017, unless

the parties agree to conducting the arbitration on any of the alternate three dates

given in the moving papers (April 20, 24, or 25, 2017). Plaintiff is ordered to pay his half of

the deposit on the arbitrator’s fee in a timely fashion, and failure to do so may subject

him to being held in contempt of court. No stay of the action can be granted at this

time.

Neither of the proposed orders will be signed; the minute order adopting this

ruling suffices. (Cal. Rules of Court, Rule 3.1312; Code Civ. Proc. § 1019.5, subd. (a).)

Explanation:

Motion to Enforce Settlement:

Code of Civil Procedure Section 664.6 states as follows:

If parties to pending litigation stipulate, in a writing signed by the parties

outside the presence of the court or orally before the court, for

settlement of the case, or part thereof, the court, upon motion, may

enter judgment pursuant to the terms of the settlement. If requested by

the parties, the court may retain jurisdiction over the parties to enforce

the settlement until performance in full of the terms of the settlement.

(Id., emphasis added.)

This statute “was enacted to provide a summary procedure for specifically

enforcing a settlement contract without the need for a new lawsuit.” (Bowers v.

Raymond J. Lucia Companies, Inc. (2012) 206 Cal.App.4th 724, 732 (citation omitted).)

It allows the party to move the court for entry of judgment pursuant to the terms of the

settlement. (Id.) Then, after entry of judgment pursuant to this statute, one or more of

the parties may request the court to retain jurisdiction to enforce the settlement until it is

fully performed. (Code Civ. Proc., § 664.6, last sentence.)

This motion to enforce the “Compromise Settlement Agreement” is defective.

First, the Notice of Motion mentioned only arbitration, and did not mention that

defendant would be seeking to enforce Paragraph 3 of that agreement (regarding

amending the CC&Rs). The Notice of Motion must state in the first paragraph exactly

what relief is sought, and why. (Code Civ. Proc. § 1010; Cal. Rules of Court, Rule 3.1110,

subd. (a); People v. American Surety Ins. Co. (1999) 75 Cal.App.4th 719, 726.)

Second, the opening memorandum did not even brief the law as to Code of

Civil Procedure section 664.6 (“section 664.6”). The memorandum must “must contain a

statement of facts, a concise statement of the law, evidence and arguments relied on,

and a discussion of the statutes, cases and textbooks cited in support of the position

advanced.” (Cal. Rules of Court, Rule 3.1113, subd. (b); Quantum Cooking Concepts,

Inc. v. LV Associates, Inc. (2011) 197 Cal.App.4th 927, 934—Court not required to “comb

the record and the law for factual and legal support that a party has failed to identify

or provide.”)

Third, even had the foregoing defects not been present, the relief could not be

granted. On a motion pursuant to Section 664.6, the court, must decide whether an

agreement is enforceable under the statute. (Terry v. Conlan (2005) 131 Cal.App.4th

1445, 1454—“In ruling on a motion to enter judgment the trial court acts as the trier of

fact, determining whether the parties entered into a valid and binding settlement.”)

Under the statute’s express terms, the court can only enforce provisions of an

agreement which represents a “settlement of the case, or part thereof.” In other words,

issues that are framed by the pleadings and will be encompassed in the eventual

judgment.

Here, the agreement to arbitrate is not a “settlement of the case or part

thereof,” but is simply an agreement about the conduct of the litigation. Thus, even

though the agreement to arbitrate may be (and is here) the subject of a motion to

compel arbitration, it is not a proper subject for a motion under Section 664.6.

As to the second issue (amending the CC&Rs), this provision does appear to

represent at least a partial settlement of the issues, since this relief is expressly requested

in defendant’s Cross-Complaint (see ¶32). However, defendant’s memorandum

expressly puts this issue under the heading of “Issues Remaining for Arbitration.” Thus,

while Paragraph 3 of the agreement ostensibly appears to present this as a “settled”

issue, defendant argues instead that it is an issue remaining for arbitration, which would

appear to mean it is not settled.

Defendant may not have intended to say the issue regarding amending the

CC&Rs was not settled, but simply that it was willing for the parties to arbitrate over their

disputes in carrying out the terms of their settlement. Even if that were the case, the

motion to enforce this settlement still must be denied. While on a section 664.6 motion

the court may adjudicate disputed factual issues that have arisen regarding the

settlement (e.g., to determine what orders are necessary in order to enforce the

settlement), the memorandum is entirely too vague as to what may be in dispute on

this issue: defendant refers to “certain formalities” that remain and does not specify

what it contends are the “necessary steps” plaintiff should be ordered to take to

enforce the agreement. Neither the court nor plaintiff were put on notice of what

disputed factual issues defendant intended to be adjudicated on this motion.

Motion to Compel Arbitration:

Plaintiff appears to argue that the court should deny this motion to compel

arbitration because he already agrees to the arbitration. Even though this was the result

of his own earlier motion to compel, the ruling must be different at this juncture, given

the significant passage of time since the parties agreed to arbitrate, and the

unpersuasive arguments plaintiff made regarding his de facto forcing of a

postponement of the arbitration in December.

Plaintiff offered no reason why any of the four dates in April offered by

defendant would not accommodate his schedule, and instead he sought an order

pushing the arbitration completion back to the end of this year. On this record, an order

compelling arbitration, and setting a date certain for it, is warranted in order to move

this case to conclusion, sooner rather than later.

Even so, plaintiff is correct regarding the stay. An arbitration stay is not

“automatic,” but instead can only be ordered “upon motion of a party to such action

or proceeding.” (Code Civ. Proc. § 1281.4; Brock v. Kaiser Foundation Hospitals (1992)

10 Cal.App.4th 1790, 1796; Dial 800 v. Fesbinder (2004) 118 Cal.App.4th 32, 45.) The

Notice of Motion did not mention defendant was making a combined motion to

compel arbitration and motion for stay, nor did the memorandum mention stay at all.

Therefore, the court is without authority to order a stay of the action at this time.

Pursuant to California Rules of Court, rule 3.1312 and Code of Civil Procedure

section 1019.5(a), no further written order is necessary. The minute order adopting this

ruling will serve as the order of the court, and service by the clerk of the minute order


Tentative Ruling



(5)

Tentative Ruling

Re: Wayne Houser, Sr. through his GAL v. Kathryn Miller

Superior Court Case No. 16 CECG 00966


Motion: By Plaintiff to compel further responses to Special

Interrogatories Nos. 6, 15, 31 and 32 and Request for

Production of Documents aka Inspection Demands

Nos. 2, 3, and 4.

Tentative Ruling:

To deny the motion without prejudice.

Explanation:

Background

According to the Complaint, in 2004, the parties became involved in a personal

relationship. The Plaintiff was over 80 years old at the time and the Defendant was over

60 years of age. In 2010, Defendant drafted an agreement that purportedly provided

a “life estate” in her home to the Plaintiff in exchange for payment of certain expenses.

Miller then allegedly coerced the Plaintiff into taking $25,000 of his money and creating

a joint account for the two. In 2012, Plaintiff created a Trust Document granting power

of attorney to his son, Wayne Houser, Jr. Defendant allegedly “stepped up” her efforts

to obtain as much money as she could from the Plaintiff. At some point in time, Plaintiff

was removed from Defendant’s home and placed in an assisted living facility.

On March 29, 2016, Plaintiff through his GAL filed a Complaint alleging:

1. Elder Abuse;

2. Conversion;

3. Breach of Written Contract; and

4. Rescission.

Motion at Bench

On September 2, 2016, Plaintiff propounded and served Form Interrogatories,

Special Interrogatories, Requests for Admission and Inspection Demands upon the

Defendant. On October 11, 2016, Defendant served her Answers and objections. The

parties began to “meet and confer” without success. On November 21, 2016, Plaintiff

filed a request for a pre-trial discovery conference.

The right to privacy extends to an individual's confidential financial information in

whatever form it takes, e.g., tax returns, checks, statements, or other account

information. [SCC Acquisitions, Inc. v Superior Court (2015) 243 Cal.App.4th 741, 754;

Overstock.Com, Inc. v Goldman Sachs Group, Inc. (2014) 231 Cal.App.4th 471, 503] A

motion seeking an order compelling further responses “shall set forth specific facts

showing good cause justifying the discovery sought by the demand.” [CCP §

2031.310(b)(1) (emphasis added); Kirkland v. Sup.Ct. (Guess?, Inc.) (2002) 95

Cal.App.4th 92, 98]

To establish “good cause,” the burden is on the moving party to show both:

• Relevance to the subject matter (e.g., how the information in the documents

would tend to prove or disprove some issue in the case); and

• Specific facts justifying discovery (e.g., why such information is necessary for trial

preparation or to prevent surprise at trial). [Glenfed Develop. Corp. v. Sup.Ct.

(National Union Fire Ins. Co. of Pittsburgh, Penn.) (1997) 53 Cal.App.4th 1113, 1117;

see also Kirkland v. Sup.Ct. (Guess?, Inc.), supra

The fact that there is no alternative source for the information sought is an important

factor in establishing “good cause” for inspection. But it is not essential in every case.

[Associated Brewers Distrib. Co., Inc. v. Sup.Ct. (Jos. Schlitz Brewing Co.) (1967) 65

Cal.2d 583, 588 (decided under former law)]

Declarations are generally used to show the requisite “good cause” for an order

to compel inspection. The declarations must contain “specific facts” rather than mere

conclusions. [Fireman's Fund Ins. Co. v. Sup.Ct. (Paine Webber Real Estate Securities)

(1991) 233 Cal.App.3d 1138, 1141—P's desire to review documents for “context” is “a

patently insufficient ground” for production of sensitive commercial information] The

declarations may be on information and belief, if necessary. However, in such cases,

the “specific facts” supporting such information and belief (the sources of the

information) must also be alleged. [See Grannis v. Board of Medical Examiners (1971) 19

Cal.App.3d 551, 564—also dealing with former “good cause” requirement in affidavit

for depo subpoena duces tecum]

Here, the Plaintiff seeks the Defendant’s tax returns, banking information, and

other financial information. A right of privacy clearly exists in this information. See SCC

Acquisitions, Inc. v Superior Court, supra. Yet, the Declaration of Casheros in support of

the motion only addresses the timeline of the motion and submits documents for the

court to review. This is insufficient.

The Declaration in reply submits various pieces of evidence. But, it is not

incumbent for the Court to examine this evidence and “make the case” for the moving

party. The discovery still encompasses information protected by a right of privacy. The

moving party has the burden to overcome the protection. [CCP § 2031.310(b)(1)] The

motion will be denied without prejudice.

Pursuant to California Rules of Court, Rule 3.1312, subd. (a) and Code of Civil

Procedure section 1019.5, subd. (a), no further written order is necessary. The minute

order adopting this tentative ruling will serve as the order of the court and service by

the clerk will constitute notice of the order.

Tentative Ruling



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