Tentative Rulings

The Tentative Rulings for Monday, September 9, 2024, are:

Re:                 Martinez, Roy vs. General Motors, LLC

Case No.:   VCU293971

Date:            September 9, 2024

Time:            8:30 A.M. 

Dept.            7-The Honorable Gary M. Johnson

Motion:      Plaintiff’s Motion for Attorneys’ Fees

Tentative Ruling: To grant the motion and award $16,431.94 in fees and costs.

Facts

Plaintiff purchased the 2019 Chevrolet Silverado vehicle identification number 1GCPWCED6KZ322991 (“Vehicle”) on August 30, 2019, that was allegedly plagued with a number of issues. The complaint alleged, Plaintiff was forced to take the Vehicle to the dealership at least seven (7) times for repairs, but Defendant was unable to conform the Vehicle to warranty or provide Plaintiff with restitution in compliance with its affirmative obligation under the SBA.

Pursuant to a Code of Civil Procedure section 998 offer, the matter settled for $100,000.00, plus attorneys’ fees, costs, and expenses by motion.

Plaintiff notes that it engaged in what the Court considers typical litigation activities including preparing and filing the complaint, reviewing the answer, attending multiple hearings, successfully opposing Defendant’s motions to strike, filing and opposing motions, attending vehicles inspections, attending the settlement conference, propounding and responding to discovery and analyzing the 998 offer, and otherwise preparing for trial.

Plaintiff seeks $22,945.50 in fees, approximately $8,000 as a multiplier enhancement, $3,500 in anticipated fees as to this motion and $1,531.94 in costs.

No opposition appears to have been filed.

Authority and Analysis

Song-Beverly provides a method for calculating attorneys’ fees:

“If the buyer prevails . . . , [they] shall be allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses, including attorney’s fees based on actual time expended, determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.” (Civil Code § 1794(d).)

To recover attorney's fees, a prevailing party bears the burden of demonstrating that the fees were: (1) allowable; (2) reasonably necessary to the conduct of the litigation; and (3) reasonable in amount. (Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 998.) The lodestar method is applicable to calculating attorney's fees under the Song-Beverly Consumer Warranty Act.  An experienced trial judge is the best judge of the value of professional services rendered in his or her court. (Id. at p. 997.)

The Court’s analysis begins with the lodestar figure, based on the “careful compilation of the time spent and reasonable hourly compensation of each attorney . . . involved in the presentation of the case.”  (Serrano v. Priest (1977) 20 Cal.3d 25, 48.) “The reasonable hourly rate is that prevailing in the community for similar work.” (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095 [internal citation omitted].) A reasonable hourly rate reflects the skill and experience of the lawyer, including any relevant areas of particular expertise, and the nature of the work performed. (Hensley v. Eckerhart (1983) 461 U.S. 424, 433-434.) The reasonable market value of the attorney’s services is the measure of a reasonable hourly rate. This standard applies regardless of whether the attorneys claiming fees charge nothing for their services, charge at below-market or discounted rates, represented the client on a straight contingent fee basis, or are in house counsel. (PLCM Group v. Drexler, supra, 22 Cal.4th at p. 1094.)

To determine reasonable attorney’s fees, the court should consider the nature of the litigation, its difficulty, the amount involved, the skill required and employed in handling the matter, the attention given, the success of the attorney’s efforts, the intricacies and importance of the litigation, the labor and necessity for skilled legal training and ability in trying the cause, and the time consumed. (Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 659.) As to the reasonableness of the hours, “trial courts must carefully review attorney documentation of hours expended; ‘padding’ in the form of inefficient or duplicative efforts is not subject to compensation.” (Ketchum v. Moses, supra, 24 Cal.4th at p. 1132.) “[A]ny failure to maintain appropriate time records sufficient to provide a basis for determining how much time was spent on particular claims” properly permits reduction of the award. (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1320.) “In determining a fee's reasonableness, the court may also consider whether the motion itself is reasonable, both in terms of (1) the amount of fees requested and (2) the credibility of the supporting evidence.” (Guillory v. Hill (2019) 36 Cal.App.5^th 802, 811.) The court may make a downward adjustment if the billing entries are vague, “blockbilled,” or unnecessary. (569 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 441.)

Reasonableness of Hourly Rate

Here, Plaintiff claims the following hourly rates:

• Angel Baker: $595 per hour
• Eve Canton (clerk): $295 per hour
• James Carrol: $595 per hour
• Tioanna Carvalho: $550 and $575 per hour
• Valentino Duarte (clerk): $285 per hour
• Mark Gibson: $495 per hour
• Rosy Stoliker: $425 per hour
• Briant Tan: $450 per hour
• Rabiya Tirmizi: $375 per hour
• Sanam Vaziri: $610 per hour

The general rule is ‘[t]he relevant “community” is that where the court is located.’ (Altavion, Inc. v. Konica Minolta Systems Laboratory, Inc. (2014) 226 Cal.App.4th 26, 71.)” (Marshall, supra, 54 Cal.App.5^th at 285.) “The experienced trial judge is the best judge of the value of professional services rendered in his court.” (PLCM, supra, 22 Cal.4th at 1095.)  Additionally, the determination of the value of the legal services is committed to the discretion of the trial court without necessity of expert testimony. (Cordero-Sacks, v. Housing Authority (2011) 200 Cal App 4th 1267, 1286.)

The Court uniformly reduces the hourly rate of attorneys to $350 per hour, which it finds to be the value of professional services rendered in this area on this type of case.

The Court uniformly reduces the law clerk rate to $150 per hour as to the two law clerks.

Reasonableness of Hours

Plaintiff claims a total of 48.4 hours incurred on this case.

Although detailed time records are not required, courts have expressed a preference for contemporaneous billing and an explanation of work. (Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1375.) “Of course, the attorney's testimony must be based on the attorney's personal knowledge of the time spent and fees incurred. (Evid.Code, § 702, subd. (a) [‘the testimony of a witness concerning a particular matter is inadmissible unless he has personal knowledge of the matter’].) Still, precise calculations are not required; fair approximations based on personal knowledge will suffice.” (Mardirossian & Associates, Inc. v. Ersoff (2007) 153 Cal.App.4th 257, 269.)  The starting point for the determination as to hours is the attorney’s submitted time records. (Horsford v. Board of Trustees of Calif. State Univ. (2005) 132 Cal. App. 4th 359, 395-397—verified time records entitled to credence absent clear indication they are erroneous.)

 Plaintiff has the burden of showing that the fees were reasonably necessary to the conduct of the litigation and were reasonable in amount. (Morris v. Hyundai Motor Am. (2019) 41 Cal.App.5th 24, 34, as modified (Oct. 11, 2019), rev. denied (Jan. 2, 2020) [internal quotations and citations omitted].) If the party seeking fees fails to meet this burden, and the court finds the time expended or amount charged is not reasonable under the circumstances, “then the court must take this into account and award attorney fees in a lesser amount.” (Mikhaeilpoor v. BMW of N. Am., LLC (2020) 48 Cal.App.5th 240, 247 [citing Nightingale v. Hyundai Motor Am. (1994) 31 Cal.App.4th 99, 104]; see also Ketchum v. Moses (2001) 24 Cal.4th 1122, 1138 [where prevailing party fails to meet that burden, the court “has broad discretion to adjust the fee downward or deny an unreasonable fee altogether”].)  

“Plainly, it is appropriate for a trial court to reduce a fee award based on its reasonable determination that a routine, non-complex case was overstaffed to a degree that significant inefficiencies and inflated fees resulted.”  (Morris, supra, 41 Cal.App.5th at 39.)  

The Court does not find the 48.4 hours billed here to be unreasonable, despite the number of attorneys’ assigned to this case. The Court will not reduce the hours incurred.

No Anticipated Fees for Reply and Hearing

The Court declines to award $3,500 in anticipated fees for the reply and hearing on this matter.

No Multiplier

As to the 0.35 enhancement sought by Plaintiffs on the following factors:

1. The novelty and difficulty of the questions involved;
2. The skill displayed in presenting them;
3. The extent to which the nature of the litigation precluded other employment by the attorney; and
4. The contingent nature of the fee award. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.)

The Court finds Plaintiff’s justification for the multiplier is conclusory and does not set forth an adequate basis to award an enhancement. The Court does not find that overcoming a motion for judgment on the pleadings and a motion to set expert fees demonstrates such extraordinary skill to justify an enhancement to the award sought.

This case settled before trial, and the Court finds that this appears to be a standard Song-Beverly case, with no additional novelty or difficulty of issues evidenced from the supporting papers filed by Plaintiff.

As to the third factor, the Court does not find that Plaintiff’s counsel was precluded from accepting other work.

As to the fourth factor, The Court further agree that the “contingent risk” here was minimal given the mandated fee-shifting of attorneys’ fees and costs. (Ketchum v. Jones (2001) 24 Cal.4th 1122, 1141-42 [Where attorney fees are mandatory, the “contingent” risk of “establishing eligibility for the award” is not actually contingent and does not warrant an enhancement.].)

The Court will not award an enhancement in this case.

Costs

Plaintiff seeks $1,531.94 in costs.

Summary of Ruling

Therefore, the Court awards $16,431.94, consisting of 10.2 hours at the modified clerk’s rate of $150 for $15,30.00  and 38.2 at the $350 per hour rate for $13,370.00 and the costs in the amount of $1,531.94.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

Re:                Wells Fargo Bank, N.A. vs. Urtiz, Maribel

Case No.:   VCL306396

Date:            September 9, 2024

Time:           8:30 A.M. 

Dept.           7-The Honorable Gary M. Johnson

Motion:      Plaintiff’s Motion to Deem Admissions Admitted

Tentative Ruling: To grant the motion and deem the requested admissions admitted

Facts

This is a collections case. On or about May 14, 2024, Plaintiff served by mail Requests for Admissions, Set One on Defendant. The discovery was mailed to the address on Defendant’s answer. As of the date of the filing of this motion, no response has been received by Plaintiff. Plaintiff now seeks to deem Admissions Nos. 1 through 11 admitted.

Authority and Analysis

Code of Civil Procedure section 2033.280 states that if a party to whom requests for admissions have been directed fails to serve a timely response, the propounding party may move for an order that the truth of any facts specified in the requests for admissions be deemed admitted. Here, Defendant has failed to serve a timely response and Plaintiff has moved for an order to deem the admissions admitted.

Based on the foregoing, the Court grants Plaintiff’s motion. The facts and allegations alleged in Requests for Admissions Nos. 1 through 11 of Plaintiff’s First Set of Requests for Admission shall be deemed admitted.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

Re:                Martin, Sarah vs. Ota, Kyle MD et al

Case No.:   VCU309617

Date:            September 9, 2024

Time:           8:30 A.M. 

Dept.           7-The Honorable Gary M. Johnson

Motion:     (1) Plaintiff’s Motion to Deem Filing of Complaint on May 9, 2024 (2) Kaweah’s Demurrer

Tentative Ruling: (1) To grant the motion; (2) To sustain the demurrer with leave to amend; Plaintiff shall have ten (10) days from the date of this hearing to file an amended complaint.

(1) Plaintiff’s Motion to Deem Filing of Complaint on May 9, 2024

Facts

The occurrences giving rise to Plaintiff’s alleged injuries took place on May 9, 2022, at Kaweah Health Medical Center. (Complaint ¶4.)

Plaintiff indicates that Plaintiff attempted to file the complaint May 9, 2024, but that it was rejected the next day due to the summons missing from the filing. Plaintiff thereafter indicates the summons was filed the next day, when Plaintiff was notified of the rejection.

On June 5, 2024, Plaintiff inquired as to the status of the issuance of the summons. No second filing was acknowledged by the Court’s clerks and Plaintiff immediately refiled all documents, which were accepted June 6, 2024.

On June 24, 2024, Plaintiff filed this motion pursuant to California Code of Civil Procedure section 1010.6(e)(4)(E) to deem this matter filed May 9, 2024.

Authority and Analysis

Code of Civil Procedure section 1010.6(e)(4)(E) provides:

“If the clerk of the court does not file a complaint or cross complaint because the complaint or cross complaint does not comply with applicable filing requirements or the required filing fee has not been paid, any statute of limitations applicable to the causes of action alleged in the complaint or cross complaint shall be tolled for the period beginning on the date on which the court received the document and as shown on the confirmation of receipt described in subparagraph (A), through the later of either the date on which the clerk of the court sent the notice of rejection described in subparagraph (C) or the date on which the electronic filing service provider or electronic filing manager sent the notice of rejection as described in subparagraph (D), plus one additional day if the complaint or cross complaint is subsequently submitted in a form that corrects the errors which caused the document to be rejected. The party filing the complaint or cross complaint shall not make any change to the complaint or cross complaint other than those required to correct the errors which caused the document to be rejected.”

The court in UFW of Am. v. Agric. Labor Relations Bd. (1985) 37 Cal.3d 912, 918 examined the filing of a petition that lacked a verification as follows:

“It is indeed arguable that the omission of a required verification is a technical defect which is properly within the clerk's scrutiny. Nevertheless, it cannot be the rule that the timeliness of a petition depends on whether the clerk catches such technical defects. Accordingly, we conclude that ‘filing’ for purposes of compliance with the time limits of Labor Code section 1160.8 means what it does in all other contexts: actual delivery of the petition to the clerk at his place of business during office hours. [Citations omitted.] Thus, it is the filer's actions that are scrutinized in determining whether a petition was timely filed. Rejection of the petition by the clerk under rule 46 for a technical defect cannot undo a ‘filing’ that has already occurred. This is not to say, however, the reviewing court could not later order dismissal if a party has not undertaken timely correction of defects noted. We hold only that a defective petition may not be dismissed for untimeliness under Labor Code section 1160.8 when it is delivered to the appropriate clerk's office during office hours within the time limits set therein.”

The court in Carlson v. Dep't of Fish & Game (1998) 68 Cal.App.4th 1268, 1276 provided the following: “To summarize: state law is clear that a paper is deemed filed when it is presented to the clerk for filing in a form that complies with rule 201 [as to a certificate of assignment]. If a paper is thus presented, the clerk has a ministerial duty to file it.”

Additionally, Carlson noted the following federal case:

“Cinton v. Union Pacific R. Co. (9th Cir. 1987) 813 F.2d 917 was another case arising out of the central district. In Cinton, the plaintiff sent his complaint to the court for filing, but the complaint did not conform to local rules because ‘counsel had not punched two holes in the top of the complaint; counsel had not included a copy of the civil cover sheet" and the complaint was accompanied by a check for $ 99 instead of the correct filing fee of only $ 60. (Id. at p. 919.) Instead of filing the complaint, the clerk mailed it back for these reasons, and the statute of limitations period lapsed before it was returned for filing. Plaintiff's action was consequently dismissed. Although the Ninth Circuit found that the clerk had not acted  improperly, it nevertheless reversed, stating ‘At question is the definition of the word “file.” [¶] The consensus is that the “[p]apers and pleadings including the original complaint are considered filed when they are placed in the possession of the clerk of the court.” ’ (Id. at p. 920.)…As to the fee discrepancy, the court stated that the fee requirement ‘should not be raised to the level of a jurisdictional requirement. . . . The clerk's decision to handle the overpayment by returning the complaint along with the check was one based merely on the convenience and smooth operation of the clerk's office. The appellant should not be denied a forum due to his overpayment of the filing fee.’ (Id. at pp. 920-921.) The court concluded that ‘the appellant constructively filed his complaint when, on August 27, 1985, he delivered it to the clerk of the court, though he was not in compliance with local rules and though he overpaid the filing fee.’ (Id. at p. 921.)”

To start, it appears that the clerk rejected the filing of the complaint on May 9, 2024 due to the lack of the summons, an applicable filing requirement. The issue before the Court is whether it should treat the lack of a summons similarly to an incorrect filing fee, lack of verification, copy of civil filing sheet, incorrect hole punch and other defects for which filing was improperly rejected.

“ ‘A summons in an action or proceeding is issued by the clerk of the court, to be served on the defendant in a manner authorized by law. It is the usual means by which the court gives jurisdictional notice to the defendant, directs the defendant's appearance, and thus acquires jurisdiction of the defendant's person. [Citations.] A summons may be had at the simple request of the plaintiff and may be served either by a court officer or a private individual.’ (3 Witkin, Cal. Procedure (5th ed. 2008) Actions, § 960, p. 1184.)” (Torrey Hills Community Coalition v. City of San Diego (2010) 186 Cal.App.4th 429, 435) “The issuance of a summons is a routine ministerial duty of the court clerk. (Maginn v. City of Glendale, supra, 72 Cal.App.4th at p. 1107; Code Civ. Proc., § 412.10 [‘After payment of all applicable fees, the plaintiff may have the clerk issue one or more summons for any defendant.’].) ‘The clerk, as a ministerial officer of the court, is subject to the control of the judge,’ and the ‘normal remedy of a party aggrieved by an act or omission of the clerk is to apply to the court for an order directed to the clerk.’ (2 Witkin, Cal. Procedure, supra, Courts, § 362, p. 463.)” (Id. at 438.)

“The clerk has no discretion to reject a complaint that substantially conforms to the local rules. (See Dillon v. Superior Court (1914) 24 Cal. App.. 760, 765 [When a proper offer of filing has been made by a party, the party shall not suffer for the failure of the clerk to perform his duty.].)” (Rojas v. Cutsforth (1998) 67 Cal.App.4th 774, 777-778.)

The Torrey Hills court further examined Renoir v. Redstar Corp. (2004) 123 Cal.App.4th 1145, where the plaintiffs asserted they were excused from serving a summons because “a superior court clerk had informed them that a summons for an action to enforce a foreign money judgment is not required.” (Id. at 1154.) In rejecting that assertion, the court noted the plaintiffs failed to claim “they ever attempted to obtain such a summons,” and “[h]ad [they] been unable to obtain such a summons, their remedy would have been to apply to the court to require the clerk to perform this responsibility.” (Id.)

This discussion in Renoir and Torrey Hills suggests to the Court that the filing of the complaint and the issuance of the summons are two separate acts and the filing of the complaint without a summons does not compel rejection of the filing of the complaint.

Plaintiff appears to have corrected this issue by filing the summons the next day, after Plaintiff was notified of the rejection, but this second filing, for an unknown reason, did not occur.

The Court will grant the motion, finding that the filing of the complaint, without a summons, is a ministerial act and deems the complaint filed May 9, 2024. 

(2) Demurrer

Facts

Plaintiff brings this complaint against Defendant Kaweah Health, operated by Kaweah Health Care District, and Dr. Ota.

Plaintiff alleges that she, while working at Defendant Kaweah’s medical center, was physically injured during a scoping procedure assisting Dr. Ota in which a patient’s leg was pushed causing Plaintiff’s left wrist to hyperextend. (Complaint ¶¶9-16.) Plaintiff felt an immediate pain and once the colonoscopy was complete, Plaintiff advised the charged nurse on duty of the incident and injury. (Complaint ¶18.) Plaintiff was required to stay at work and not referred to Employee Health for medical assistance. (Complaint ¶18.) Plaintiff worked for five hours that day before she could no longer handle the pain and needed to be seen at Employee Health. (Complaint ¶21.) Plaintiff was placed on temporary total disability and has been receiving medical treatment. (Complaint ¶22.)

Plaintiff brings claims against Kaweah under Labor Code section 1102.5, violation of the Bane Act and civil assault and battery. Plaintiff seeks monetary damages.

Kaweah demurrers for failure to allege compliance with the presentation requirements of the Tort Claims Act, for failure to present a late claim application and for filing the complaint past the statute of limitations.

In support of the demurrer, Kaweah seeks judicial notice that it is a public entity, based on filings with the Tulare County Recorder’s office and the California Secretary of State.

The Court notes here that Kaweah states:

“The Tulare County Superior Court has repeatedly and consistently recognized the status of KAWEAH HEALTH as a local health care district and a public entity in litigation matters (e.g., medical malpractice litigation, employment litigation, etc.) throughout the period of representation of KAWEAH HEALTH by lawyers in our firm.” (Declaration of Berglund ¶6.)

The Court has recognized Kaweah as a public entity upon an independent and proper showing establishing this issue separately in each and every case involving Kaweah and its related entities, which the Court will undergo in this case based upon Kaweah’s request for judicial notice.

In opposition, Plaintiff argues that the claims presentation requirements do not apply to statutory Labor Code violations and that, in any event, Plaintiff has presented a government claim.

Authority and Analysis

Request for Judicial Notice

The request seeks judicial notice of Exhibits A, B and C.

Exhibit A is a filing with the Tulare County Recorder’s office and Exhibits B and C are filings with the Secretary of State. “A court may take judicial notice of documents in its own records and those reflecting the official acts of local and state agencies, including resolutions, minutes, and agendas. (Evid. Code, § 452, subds. (c), (d), (h); see Associated Builders & Contractors, Inc. v. San Francisco Airports Com. (1999) 21 Cal.4th 352, 375, fn. 4)” (Julian Volunteer Fire Co. Assn. v. Julian-Cuyamaca Fire Protection Dist. (2021) 62 Cal.App.5th 583, 600.)  Under Elmore v. Oak Valley Hospital Dist. (1988) 204 Cal.App.3d 716, 721, the statements filed with the Secretary of State become a public record and a document of which the court may properly take judicial notice. The Court applies the same reasoning to Exhibit A.

The Court therefore takes judicial notice of these documents, Exhibits A, B and C, as well as the “facts that can be deduced, and/or clearly derived from, its legal effect, such as the names and dates contained in the document, and the legal consequences of the document.” (Julian Volunteer Fire Co. Assn, supra, 62 Cal.App.5th at 600.) The Court, therefore, judicially notices, based on the above, that Defendant Kaweah is a public entity.

Demurrer

The purpose of a demurrer is to test whether a complaint “states facts sufficient to constitute a cause of action upon which relief may be based.” (Young v. Gannon (2002) 97 Cal.App.4^th 209, 220.  To state a cause of action, a plaintiff must allege facts to support his or her claims, and it is improper and insufficient for a plaintiff to simply plead general conclusions. (Careau v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 11371, 1390.) The complaint must contain facts sufficient to establish every element of that cause of action, and thus a court should sustain the demurrer if “the defendants negate any essential element of a particular cause of action.” (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4^th 857, 879-80)

To determine whether the complaint states facts sufficient to constitute a cause of action, the trial court may consider all material facts pleaded in the complaint and those that arise by reasonable implication therefrom; it may not consider contentions, deductions, or conclusion of fact or law (Moore v. Conliffe (1994) 7 Cal.4^th 634, 638.)

It is well-settled that all well-pled material facts in the complaint are assumed to be true for the purpose of the demurer.  (C & H Foods v. Hartford Ins. Co. (1984) 163 Cal.App.3d 1055, 1062) But “doubt in the complaint may be resolved against plaintiff and facts not alleged are presumed not to exist. (Id.)

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) No other extrinsic evidence can be considered (i.e., no "speaking demurrers"). (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.)

A demurrer cannot be sustained without leave to amend where it appears that the facts alleged establish a cause of action under any possible legal theory or it is reasonably possible that the plaintiff can amend the complaint to allege any cause of action. (Canton Poultry & Deli, Inc v. Stockwell, Harris, Widom, and Woolverton (2003) 109 Cal.App.4^th 1219, 1226.)

Government Tort Claims Act

Defendants brings the demurrer first on the grounds that Plaintiff cannot demonstrate compliance with the Government Tort Claims Act. Specifically, that Plaintiff failed to timely file a mandatory claim or application for filing a late claim regarding the incident, thereby barring this action.

California Government Code section 911.2 requires that such a claim be presented to the relevant public entity not more than six months after the accrual of the cause of action. Presentation of such a claim is a condition precedent to filing a suit against the public entity. (Cal. Govt. Code, § 945.4.) If the injured party fails to file a timely claim, “a written application may be made to the public entity for leave to present such claim.” (Cal. Govt. Code, § 911.4, subd. (a).) The deadline to apply to for leave to present a late claim is a reasonable time not to exceed one year. (Cal. Govt. Code, § 911.4, subd. (b).)

These claim presentation requirements apply to claims involving monetary damages.

“With certain exceptions (§ 905), the timely filing of a written government claim is an element that a plaintiff is required to prove in order to prevail on his or her cause of action.” (Willis v. City of Carlsbad (2020) 48 Cal.App.5th 1104, 1119.)

Additionally, compliance with the presentation requirement must be stated in the complaint. (Dilts v. Cantua Elementary School Dist. (1987) 189 Cal.App.3d 27, 31 [holding “In those circumstances in which a claim must be presented, the plaintiff must allege compliance or circumstances excusing compliance, or the complaint is subject to general demurrer.”].)

For claims for monetary damages, the presentation requirements apply to Labor Code section 1102.5 claims. In Willis v. City of Carlsbad (2020) 48 Cal.App.5th 1104, The Court of Appeal affirmed the trial court’s decision to strike portions of the officer's cause of action under Labor Code section 1102.5 on grounds they were time-barred by the six-month government claims presentation requirement set forth in Government Code section 911.2.

The complaint fails to allege compliance, even in general terms, with the claims presentation requirements.

The Court, therefore, sustains the demurrer on this ground.

Expiration of Late Claim Application

As Plaintiff’s complaint does not plead compliance with or excuse therefrom the claims presentation requirements noted above, the Court will not address this additional issue of whether the time to apply to file a late claim has expired and precludes the lawsuit from going forward.

Statute of Limitations

The Court has deemed the complaint timely filed on May 9, 2024 in its ruling above and therefore Kaweah’s argument that the complaint was filed beyond the statute of limitations that expired May 10, 2024 is moot.

Leave to Amend

A demurrer cannot be sustained without leave to amend where it appears that the facts alleged establish a cause of action under any possible legal theory or it is reasonably possible that the plaintiff can amend the complaint to allege any cause of action. (Canton Poultry & Deli, Inc v. Stockwell, Harris, Widom, and Woolverton (2003) 109 Cal.App.4^th 1219, 1226.)

Here, although Plaintiff’s opposition argues facts extraneous to the complaint as to claims presentation, continuing violations and the like, the Court finds that this demonstrates a reasonable possibility of amendment.

The Court will permit Plaintiff leave to amend. Plaintiff shall have ten (10) days to file an amended complaint.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

Re:                 Martinez, Porfiria vs. Frias, Sergio

Case No.:    VCU299037

Date:             September 9, 2024

Time:            8:30 A.M. 

Dept.            7-The Honorable Gary M. Johnson

Motion:      Defendants Raiser, LLC, Raiser-CA, LLC and Uber’s (1) Motion to Seal and (2) Motion for Terminating Sanctions under Section 128.7

Tentative Ruling: (1) To grant the unopposed motion to seal; (2) To deny the motion under Section 128.7.

(1) Defendants’ Motion to Seal

Facts

In connection with Defendants’ motion for sanctions under section 128.7, Uber seeks to seal the following: Defendants’ memorandum of points and authorities in support of the Motion contains excerpts of Exhibit A, and the following portions of Defendants’ Motion must be sealed to protect against public disclosure of Exhibit A: Page 8, lines 13-14; o Page 8, lines 17-28; and o Page 9, lines 1-11.

Exhibit A is a business contract between Uber Technology, Inc. and the City of Porterville which contains proprietary information. The terms of the Agreement characterizes the entire Agreement as confidential, and the contracting parties demonstrated a preference to keep the Agreement confidential.

No opposition appears filed to this motion to seal.

Authority and Analysis

California law authorizes the sealing of court records containing confidential information.  (NBC Subsidiary, Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1222, n. 46.) Orders to seal records in a civil proceeding implicate the First Amendment’s right of public access. (Id. at 1212.) “Unless confidentiality is required by law, court records are presumed to be open.” (Cal. Rules of Court, rule 2.550(c); In re Marriage of Tamir (2021) 72 Cal.App.5th 1068, 1079.)

“The Court may order that a record be filed under seal only if it expressly finds facts that establish: (1) There exists an overriding interest that overcomes the right of public access to the record; (2) The overriding interest supports sealing the record; (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) The proposed sealing is narrowly tailored; and (5) No less restrictive means exists to achieve the overriding interest.” Cal. Rules of Court, rule 2.550, subd. (d)(1-5).

There exists an overriding interest that overcomes the right of public access to the record

“The public has a First Amendment right of access to civil litigation documents filed in court and used at trial or submitted as a basis for adjudication.” (Savaglio v. Wal-Mart Stores, Inc. (2007) 149 Cal.App. 4th 588, 596-597.) However, “[c]ourts have found that under appropriate circumstances, various statutory privileges, trade secrets, and privacy interests, when properly asserted and not waived, may constitute overriding interests.” (In re Providian Credit Card Cases, (2002) 96 Cal.App. 4th 292, 298, fn. 3.)

Exhibit A and references thereto that are subject to this request to seal fit within such appropriate circumstances. Exhibit A contains a confidentiality provision. Exhibit A contains proprietary information that the parties agreed to keep confidential.

The overriding interest supports sealing the record

“[O]nce privileged matter has been disclosed there is no way to undo the harm which consists in the very disclosure.” (Raytheon Co. v. Superior Court (1989) 208 Cal.App. 3d 683, 686.)

Considering the nature of the information being requested to file under seal, it is necessary to place it under seal to protect the privacy interests of the Defendants.  The Court finds nothing in these documents that is inherently public or indicative of the public’s right to such information. To the contrary, this information is typically kept confidential and is only at risk of being public because of the current litigation. 

A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed

There is a substantial probability that the overriding privacy interest will be prejudiced if the records are not sealed. Specifically, the public will have access to confidential and proprietary business agreements between the parties.

The proposed sealing is narrowly tailored

 The proposed sealing is narrowly tailored because it only pertains to a single Exhibit and excerpts therefrom. Further the proposed sealing only relates to the documents whose protected information would not be public but for this case.

There are no less restrictive means to preserve the confidentiality of these records

There are no less restrictive means to preserve the confidentiality of these records because no other means will protect the private nature of this information.

Therefore, the Court grants the motion to seal Exhibit A and references thereto in the public filings.

(2) Defendants’ Motion for Terminating Sanctions under Section 128.7

Facts

In this complaint, Plaintiff alleges that she “…was a passenger and UBER rider in the vehicle driven by Defendant SERGIO FRIAS’s (“SUBJECT VEHICLE”), and Plaintiff was being transported in a wheelchair, which was known by all Defendants at all relevant times herein. (Complaint ¶16.) Further, that “On or about July 30, 2022, Defendant SERGIO FRIAS operated and drove his vehicle on or near the onramp onto northbound State Route 65 from eastbound State Route 190 in Porterville, California, in a negligent and reckless manner as to create a hazard that could cause serious injury or death to others, and at a fast rate of speed and without properly maintaining a view of the surroundings, caused a collision of their vehicles with each other, therefore causing injuries to Plaintiff…” (Complaint ¶15.)

Additionally, Plaintiff alleges “Defendants knew that Plaintiff required the accommodations, including by having her wheelchair properly secured, at all times while Plaintiff was a passenger in the SUBJECT VEHICLE. Notwithstanding, Defendants disregarded the excessive risk of danger that Plaintiff would face by not having her wheelchair properly secured, and Defendants left Plaintiff’s wheelchair unsecured” (Complaint ¶22.)

Plaintiff further alleges that “Defendants were in possession and/or control of the…” Subject Vehicle and “Defendants UBER TECHNOLOGIES, INC.; RASIER, LLC; RASIER-CA, LLC; CITY OF PORTERVILLE; TREE’S SIERRA MANAGEMENT, INC., d/b/a SM TRANSIT, and DOES 1-50, inclusive, were the employer and/or principal of the employees, agents, and driver(s) of the SUBJECT VEHICLE, and were and are legally responsible for the acts, omissions, and conduct of said employees, agents, and peace officers, within the meaning of Civil Code §§ 1714(a), 2100, 2338, and 2343, Government Code §§ 815.2(a), 815.4, 815.6, 820(a), 835, 840.2 among other provisions, and is liable to Plaintiff by reason thereof.” (Complaint ¶18.)

Plaintiff further alleges Defendant Frias was “…acting in the course and scope of employment with Defendants UBER TECHNOLOGIES, INC., RASIER, LLC, RASIER-CA, LLC, CITY OF PORTERVILLE, and TREE’S SIERRA MANAGEMENT, INC., d/b/a SM TRANSIT, as he was providing a ride for fare for Plaintiff, and as a result Defendants UBER TECHNOLOGIES, INC., RASIER, LLC, and RASIER-CA, LLC, CITY OF PORTERVILLE, and TREE’S SIERRA MANAGEMENT, INC., d/b/a SM TRANSIT, are vicariously liable for the actions and inactions of Defendant SERGIO FRIAS.” (Complaint ¶23.)

Further, that “Defendants owned, leased, rented, controlled, entrusted, maintained, managed, and/or were otherwise in possession of the vehicle driven by Defendant SERGIO FRIAS during the SUBJECT INCIDENT.” (Complaint ¶24.)

On these facts, Plaintiff alleges negligence, negligence per se and a violation of the Unruh Civil Rights Act under Civil Code section 51(b) against Defendants.

Defendants Raiser, LLC, Raiser-CA, LLC and Uber move for terminating sanctions under Code of Civil Procedure section 128.7 as to Plaintiff’s complaint and the causes of action raised therein. Defendants indicate that discovery and deposition testimony has established a number of facts rebutting these theories, to the extent that Defendants argue proceeding against them is factually and legally frivolous.

In support, Defendants present the following facts from discovery responses and depositions:

• Defendants were not present at the scene, did not operate or own any vehicle, did not employ any persons involved, and had absolutely no control of any vehicle and/or person involved. (Maloney Decl., Exh. G, Tree Depo., 85:25-87:6, 87:19-92:15, 93:20-94:13, 97:18- 98:23, 99:15-101:10, & 103:16-21.)
• The driver of the vehicle, Sergio Frias, was an employee of Tree’s Sierra and was hired, trained, managed, and controlled by Defendant Tree’s Sierra. (Maloney Decl., Exh. G, Tree Depo., 87:19-92:15; see also Maloney Decl., ¶¶ 4 & 5, Exhs. C & D, Frias FROG 2.11, Frias’ SROG 14, 18, 19, and 24.)
• Sergio Frias was not an agent or employee of Defendants. (Maloney Decl., Exh. H, Plaintiff’s Depo., 88:18-89:5 & 93:20-94:13.)
• Plaintiff was under the impression the vehicle was owned by the City and driven by a City employee. (Ex. H - Plaintiff’s Depo., 88:18-89:5.)
• The vehicle was owned by City. (Maloney Decl., Exh. G, Tree Depo., 99:22-101:10; Maloney Decl., ¶ 3, Exh. B, City’s FROG No. 20.2.
• Plaintiff confirmed that she did not utilize Defendants’ technology on the date of the accident, and did not even know if she had an Uber account. (Maloney Decl., Exh. H, Plaintiff’s Depo., 89:10-25 & 107:3-7.)
• Plaintiff testified, “I don’t know how to work the phone, so that would only be if my son downloaded it. But I don’t know how to do it.” (Maloney Decl., Exh. H, Plaintiff’s Depo., 107:3-7.)
• Plaintiff’s son contacted the City for a ride on July 30, 2022, and coordinated the ride when the accident occurred. (Maloney Decl., Exh. H, Plaintiff’s Depo., 89:19-21.)

Additionally, Defendants note the City entered into an agreement for a license to utilize Defendants’ technology for the City to enhance its already existing municipal transit system. The City gained access to technology which assisted the City in connecting with the general public for rides, collecting municipal transit fares, and efficiently creating transit routes. (Exhibit A - Agreement, sections (15)(i) - (k).) The City paid to utilize Uber’s technology to manage public transportation.

Therefore, Defendants seek to establish that a vicarious liability theory against them, including employment, agency or ostensible agency, must be deemed factually and legally frivolous on these facts and under the law. Further, that the third cause of action under the Unruh Act is also subject to terminating sanctions on these facts.

In opposition, Plaintiff argues that her ordering the vehicle through the Uber application is sufficient alone to bring causes of action for negligence, negligence per se and under Civil Code section 51(b). Plaintiff also notes that “Defendants provided training to the involved driver and collected metrics on the subject vehicle’s speed, location, travel habits, and even ranked drivers based upon their performance.” Plaintiff argues that the motion is premature and Plaintiff should be given the opportunity to depose Uber’s PMQ.

Authority and Analysis

Section 128.7, provides, in relevant part, that “[e]very pleading…shall be signed by at least one attorney of record in the attorney's individual name…” (Code Civ. Proc. § 128.7(a).) Counsel, therefore, certifies that, to the best of his or her knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that:

“(1) It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

(2) The claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.

(3) The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.

(4) The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief. (Code Civ. Proc. § 128.7(b)(1)-(4).)

For purposes of sanctions under section 128.7(b), “[a] claim is factually frivolous if it is ‘not well grounded in fact’ and it is legally frivolous if it is ‘not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law.’” (Peake v. Underwood (2014) 227 Cal. App. 4th 428, 440 (quoting Guillemin v. Stein (2002) 104 Cal. App. 4th 156, 167.) “’A claim is objectively unreasonable if ‘any reasonable attorney would agree that [it] is totally and completely without merit.’” (Id. at 440.)

The Peake court noted:

“[W]hen determining whether sanctions should be imposed, the issue is not merely whether the party would prevail on the underlying factual or legal argument. Instead, courts should apply an objective test of reasonableness, including whether ‘any reasonable attorney would agree that [the claim] is totally and completely without merit.’ [citations omitted]. Thus, the fact that a plaintiff fails to provide a sufficient showing to overcome a demurrer or to survive summary judgment is not, in itself, enough to warrant the imposition of sanctions. ([citations omitted]

…

Because our adversary system requires that attorneys and litigants be provided substantial breathing room to develop and assert factual and legal arguments, sanctions should not be routinely or easily awarded even for a claim that is arguably frivolous. Courts must carefully consider the circumstances before awarding sanctions.” (Id. at 441, 448)

“To avoid sanctions under section 128.7, ‘the issue is not merely whether the party would prevail on the underlying factual or legal argument,’ but rather whether any reasonable attorney would agree that the claim is totally and completely without merit. (Peake, supra, 227 Cal.App.4th at p. 448.) Hence, the evidentiary burden to escape sanctions under section 128.7 is light.” (Kumar v. Ramsey (2021) 71 Cal.App.5th 1110, 1126.)

A court has broad discretion to impose sanctions if the moving party satisfies the elements of the sanctions statute.” (Id. at 1120.)  This includes terminating sanctions. (Id.)

To start, the Court does not consider what Plaintiff believed at the inception of this lawsuit relevant to its determination of sanctions at this point. Discovery, based upon the current trial date, is set to close at the end of this month. The Court will focus on Plaintiff’s current knowledge after significant discovery and depositions.

The relevant testimony informing the Court’s decision on this motion is Mr. Tree’s deposition testimony that Uber provided training to Tree’s Sierra Management who in turned trained their own drivers how to log in and use the software. (Exhibit 1 – Deposition of Tree – 23:7-16) Some training from Uber occurred on multiple occasions. (Exhibit 1 – Deposition of Tree – 38:21-25, 39:1, 20-24.) Additionally, the Uber application itself scheduled the route. (Exhibit 1 – Deposition of Tree – 66:15-20.)

Plaintiff alleges a direct theory of negligence against the Uber Defendants as to “entrust, manage, maintain, drive and operate Defendants’ vehicle” that the Court cannot say, under the light evidentiary burden of this motion, this theory is legally or factually frivolous given the training by Uber and use of the application itself to schedule the route taken. (Kumar, supra, 71 Cal.App.5th at 1126.)

The Court, therefore, denies the motion.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

Examiner Notes for Probate Matters Calendared

• Visalia Division 
• South County Justice Center Division