Tentative Rulings
Civil Tentative Rulings and Probate Examiner Recommendations are available below. All attempts possible are made to have the information on these pages updated by 3:00pm the day prior to hearing in order to allow for any needed continuances or travel if an appearance should be required.
Civil Tentative Rulings: The court does not issue tentative rulings on Writs of Attachment, Writs of Possession, Claims of Exemption, Claims of Right to Possession, Motions to Tax Costs After Trial, Motions for New Trial, or Motions to Continue Trial. Under California Rules of Court, rule 3.1308 and Local Rule 701, any party opposed to the tentative ruling must notify the court and other parties by 4:00 p.m. today of their intention to appear for oral argument. The court's notice must be made by facsimile (fax) to 559-733-6774.
Probate Examiner Recommendations: For further information regarding a probate matter listed below you may contact the Probate Document Examiner at 559-730-5000 ext #1353; the Document Examiner (South County Justice Center ) at 559-782-3700 ext #2342. The Probate Calendar Clerk may be reached at 559-730-5000 Option 4, then Option 6.
Civil Tentative Rulings & Probate Examiner Recommendations
The Tentative Rulings for Tuesday, March 19, 2024, are (Modified as to Dept. 23 at 3:42 pm on 3-18-24):
Re: Ramos, Guadalupe H vs. General Motors, LLC
Case No.: VCU298933
Date: March 19, 2024
Time: 8:30 A.M.
Dept. 2-The Honorable Bret D. Hillman
Motion: Plaintiff’s Motion to Compel Deposition of PMQ of GM
Tentative Ruling: To grant the motion and order the deposition to take place within thirty (30) days of the date of this hearing.
Facts
In this lemon law case, Plaintiff indicates that, in response to its deposition notice as to GM’s PMQ and request to produce documents, GM agreed to produce a PMQ witness as to Categories 1-4, 7 and 10.
Plaintiff sought to schedule a mutually convenient date for the agreed upon deposition, but Defendant apparently failed to respond with available dates.
Plaintiff now brings this motion to compel GM’s production of a witness as agreed upon above and to hold the deposition within ten (10) days.
In opposition, GM seeks to support its objections to the other categories for which it did not agree to produce a witness and further provides support for its objections to production of documents, which does not appear to be at issue in the motion.
Plaintiff’s reply reiterates that Plaintiff is simply seeking a deposition date for the categories for which GM has already agreed to produce a witness as the PMQ.
Authority and Analysis
A deposition can be taken as to any non-natural entity (e.g. corporation, governmental agency, etc.) by examining an officer or agent designated and most qualified to testify on behalf of the non-natural entity. (See Code Civ. Proc §2025.010.) This deposition directed to an entity must “describe with reasonable particularity the matters on which examination is requested.” (Code Civ. Proc § 2025.230.)
If the notice of deposition served on the entity describes the matters on which questions will be asked “with reasonable particularity” the entity is under a duty to designate and produce the officers, directors, managing agents, or employees “most qualified” to testify on its behalf. (Code Civ. Proc § 2025.230) These persons or persons designated by the entity as most qualified must testify “to the extent of any information known or reasonably to the deponent entity.” (See Code Civ. Proc § 2025.230.)
Here, it appears GM has agreed to produce a witness responsive to Categories 1-4, 7 and 10, but that it has not provided an available date for the deposition.
The Court will order GM produce the witness as agreed upon between the parties.
As to Plaintiff’s request for the deposition to be set within ten (10) days, the Court will order GM to produce the witness within thirty (30) days of the date of this hearing.
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: Gonzalez, Giovanni vs. Blue Moon Farms
Case No.: VCU302469
Date: March 19, 2024
Time: 8:30 A.M.
Dept. 2-The Honorable Bret D. Hillman
Motion: Defendants’ (1) Demurrer and (2) Motion to Strike
Tentative Ruling:
(1) To overrule the demurrer as to all Demurring Defendants as to the Second, Fifth, Sixth and Seventh causes of action; to overrule the demurrer as to Defendant Ortiz to the Fourth cause of action; to sustain the demurrer to the Fourth cause of action with leave to amend as to Defendants Blue Moon, Gorzeman and Lanell; Plaintiffs shall have ten (10) days to file an amended complaint as indicated herein;
(2) To deny the motion to strike as to Nos. 1, 2 and 3; To grant the motion to strike as to Nos. 4 and 5, with leave to amend. Plaintiffs shall have ten (10) days to file an amended complaint as to the punitive damages issue.
Facts Common to (1) and (2)
Plaintiffs are the surviving son and wife of Decedent Jorge Gonzalez-Vasquez and allege that Defendant Alvaro Torres negligently operated a 2017 Ford F-250 with California license plate 4511C2 (“Subject Vehicle”) that collided with Decedent’s vehicle causing Decedent’s death. (Complaint ¶¶2, 3, 17, 19, 20.)
The complaint alleges the accident occurred June 3, 2022. (Complaint ¶16)
Relevant here, Plaintiffs allege that the Subject Vehicle was, on information and belief, registered and owned by Defendants and moving parties Blue Moon Farms, Omar Torres Ortiz, Rick Gorzeman and Lanell Gorzeman (hereinafter “Demurring Defendants”) (Complaint ¶21.) Further, that the Defendant Ortiz authorized Defendant Torres to operate the Subject Vehicle.
On that basis, one or both Plaintiffs sue Demurring Defendants for negligent infliction of emotional distress (second cause of action), negligent entrustment (fourth cause of action), wrongful death (fifth cause of action), survivorship (sixth cause of action) and willful misconduct (seventh cause of action.)
Demurring Defendants demurrer to these causes of action and seek to have portions of the complaint stricken, as set forth in greater detail below. Demurring Defendants have requested judicial notice of the section 377.2 declarations by each Plaintiff (Exhibits A and B) as well as a certified DMV Vehicle Registration Information document (Exhibit C.)
In opposition, Plaintiffs seek to attach a police report as extrinsic evidence, reference Blue Moon’s entity status, without evidence, and otherwise argue they have properly alleged each cause of action.
Request for Judicial Notice
The Court grants the request as to Exhibits A and B as records of this Court. Under Evidence Code section 452(d), judicial notice may be taken of records of any court of this state or any court of record of the United States or of any state of the United States. “[W]hile courts are free to take judicial notice of the existence of each document in a court file, including the truth of results reached, they may not take judicial notice of the truth of hearsay statements in decisions and court files.” (Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882.)
As to Exhibit C, the Court grants the request, with the same caveat as above, under section 452(c) as official acts, as to the DMV Registration of the Subject Vehicle dated December 29, 2023.
(1) Demurrer – Authority and Analysis
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.4th 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.4th 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.4th 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.
Subject Vehicle Registration Issue
As noted above, the Court has granted the request for judicial notice of Exhibit C. Demurring Defendants argue that a review of Exhibit C reveals that the Subject Vehicle, as of the date of the accident June 3, 2022, was only registered to Defendant Blue Moon and therefore any theories of liability as to Defendants Ortiz, Gorzeman, and Lanell must fail.
Exhibit C provides a blank space as to the current owner as of April 3, 2022. Ownership of the Subject Vehicle appears issued November 17, 2016 and a registration of the Subject Vehicle was issued March 5, 2023 with a “R/O” or registered owner of Blue Moon Farms.
Exhibit C does not, in any manner, conclusively establish on demurrer that other parties were not the registered owners at the time of the accident some two months later. In the Court’s view, any further review and discussion of this document leads to a contested evidentiary hearing disfavored by the court in Richtek USA, Inc. v. UPI Semiconductor Corporation (2015) 242 Cal.App.4th 651, 660. [“A demurrer is simply not the appropriate procedure for determining the truth of disputed facts. The hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of documents whose truthfulness or proper interpretation are disputable.” (internal quotations and citations omitted).]
Therefore, for purposes of demurrer, the Court does not find that Blue Moon was the sole owner of the Subject Vehicle at the time of the accident.
Additionally, this issue is further underscored by Plaintiffs’ attempt in opposition to attach extrinsic evidence of the police report and references to Blue Moon’s form of business entity. The Court disregards these arguments which improperly go beyond the four corners of the complaint.
Second Cause of Action – Negligent Infliction of Emotional Distress
Demurring Defendants argue that negligent infliction of emotional distress is not a proper, separate cause of action, but rather simply a negligence cause of action. Defendants cite to Marlene F. v. Affıliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 588 for this argument. In Marlene F, however, the Supreme Court simply treated the cause of action as one for negligence and overruled the demurrer ruling by the trial court.
Here, Plaintiffs would appear to have a negligence cause of action under the fifth cause of action for wrongful death. The Court recognizes that a demurrer may be sustained when a cause of action is duplicative of another cause of action and thus adds nothing to the complaint by way of fact or theory of recovery. (Palm Springs Villas II Homeowners Association, Inc. v. Parth (2016) 248 Cal.App.4th 268, 290.)
However, this second cause of action is only brought by Plaintiff Gonzalez and the wrongful death cause of action, though based in negligence, does not appear to seek emotional distress damages of Plaintiff Gonzalez. The Court cannot say these causes of action are duplicative and while negligent infliction of emotional distress may not be a cause of action, it appears properly interpreted as a negligence cause of action seeking emotional distress damages.
Therefore, the Court overrules the demurrer.
Fourth Cause of Action – Negligent Entrustment
"'"[I]t is generally recognized that one who places or entrusts his [or her] motor vehicle in the hands of one whom he [or she] knows, or from the circumstances is charged with knowing, is incompetent or unfit to drive, may be held liable for an injury inflicted by the use made thereof by that driver, provided the plaintiff can establish that the injury complained of was proximately caused by the driver's disqualification, incompetency, in experience or recklessness … ."'" (Flores v. Enterprise Rent-A-Car Co. (2010) 188Cal.App.4th 1055, 1063.)
"CACI No. 724 outlines the elements of the tort of negligent entrustment of a motor vehicle: ¶1. That [name of driver] was negligent in operating the vehicle; ¶2. That [name of defendant] [owned the vehicle operated by [name of driver]/had possession of the vehicle operated by [name of driver] with the owner's permission]; ¶3. That [name of defendant] knew, or should have known, that [name of driver] was incompetent or unfit to drive the vehicle; ¶4. That [name of defendant] permitted [name of driver] to drive the vehicle; and ¶5. That [name of driver]'s incompetence or unfitness to drive was a substantial factor in causing harm to [name of plaintiff].' [Footnote omitted.]" (McKenna v. Beesley (2021) 67 Cal.App.5th 552, 565-566.)
The Court has adjudicated, for purposes of demurrer, the ownership of the Subject Vehicle issue above.
Demurring Defendants next argue the complaint fails to allege facts sufficient as to the third element above: that the owners of the Subject Vehicle knew or should have known of the driver’s incompetence.
Paragraph 55 states, in a somewhat conclusory fashion: “Defendants ORTIZ, MOON, GORZEMAN, and LANELL knew or should have known that Defendant TORRES was not capable of safely operating the automobile and was driving the Vehicle in violation of various California Vehicle Code Sections and California Penal Code Section as described herein.” (Complaint ¶55.)
The complaint further alleges that “… at the time of the collision, Defendant TORRES violated California Vehicle Code sections 12500(a), 21802(a), 23152(a), 23153(a), 20003(a) and 20001(a),” and that “TORRES was authorized by ORTIZ to operate the Vehicle, despite the fact that TORRES could not do so competently and was in violation of California Vehicle Code sections 12500(a), 23152(a), 20003(a), 23153(a), 23152(a), and 21802(a) as further described herein.” (Complaint ¶¶ 20, 23.)
Defendant Ortiz is generally alleged to be “principals and/or agents, servants and employees of said principals and/or some or all of the other Defendants within the course and scope of said agency or employment.” (Complaint ¶12.)
The Court notes that “(5) 23152 (a) – driving under the influence of an alcoholic beverage” and “(6) 23153 (a) – driving under the influence of alcoholic beverage and commit an act forbidden by law” would appear to be potential evidence of Defendant Torres’s incompetence or unfitness, but it is not alleged that parties other than Defendant Ortiz (that is Blue Moon, Gorzeman or Lanell) knew or should have known of the intoxication of Defendant Torres.
The Court lacks sufficient facts that Defendants Blue Moon, Gorzeman or Lanell knew or should have known of the alleged unfitness of Defendant Torres or that such knowledge should be imputed to Defendants Blue Moon, Gorzeman or Lanell by way of Defendant Ortiz.
Therefore, the Court overrules the demurrer as to Defendant Ortiz.
The Court sustains the demurrer with leave to amend as to Defendants Blue Moon, Gorzeman and Lanell. 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.4th 1219, 1226.) Plaintiffs shall have ten (10) days to file an amended complaint as to this element of this cause of action as to Defendants Blue Moon, Gorzeman and Lanell.
Fifth Cause of Action – Wrongful Death and Sixth Cause of Action – Survivorship
As with the above, the Court has adjudicated the ownership arguments applicable to these causes of action. Demurring Defendants further argue that no causal connection is sufficient alleged. Both causes of action appear to sound in negligence.
"The elements of a cause of action for negligence are well established. They are '(a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.'" (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.)
Here, the duty, as to the alleged owners of the Subject Vehicle, appears to be set forth by Vehicle Code section 17150, which states: "Every owner of a motor vehicle is liable and responsible for death or injury to person or property resulting from a negligent or wrongful act or omission in the operation of the motor vehicle, in the business of the owner or otherwise, by any person using or operating the same with the permission, express or implied, of the owner."
Although the demurrer challenges terms such as “negligently maintained” as lacking sufficient factual support, demurrers do not lie as to only parts of causes of action, where some valid claim is alleged. (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119, ["A demurrer must dispose of an entire cause of action to be sustained."].)
Therefore, the Court overrules the demurrer to the fifth and sixth causes of action.
Seventh Cause of Action – Willful Misconduct
Here, Demurring Defendants argue that willful misconduct is not a separate cause of action and is an improper attempt to plead punitive damages.
However, Doe v. United States Youth Soccer Assn., Inc. (2017) 8 Cal.App.5th 1118, 1140 appears to recognize the cause of action as follows:
“In order to establish willful misconduct, a plaintiff must prove not only the elements of a negligence cause of action, that is, duty, breach of duty, causation, and damage, but also “‘“(1) actual or constructive knowledge of the peril to be apprehended, (2) actual or constructive knowledge that injury is a probable, as opposed to a possible, result of the danger, and (3) conscious failure to act to avoid the peril. [Citations.]”’ [Citation.]” [citation omitted] “‘[W]illful misconduct is not marked by a mere absence of care. Rather, it “‘“involves a more positive intent actually to harm another or to do an act with a positive, active and absolute disregard of its consequences.”’” [Citations.]’”
Therefore, the Court cannot find as a matter of law that willful misconduct is not a valid cause of action in California and overrules the demurrer to the seventh cause of action.
(2) Authority and Analysis – Motion to Strike
Any party may file a timely notice of a motion to strike the whole or any part of a pleading. (Code Civ. Proc., § 435, subd. (b).) The motion may seek to strike any “irrelevant, false or improper matter inserted in any pleading” or any part of the pleading “not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ. Proc., § 436.) Irrelevant allegations include allegations that are not essential to the statement of a claim, allegations that are not pertinent to or supported by the claim and demands for judgment requesting relief not supported by the allegations. (Code Civ. Proc., § 431.10, subds. (b), (c).)
The Court’s review of the motion to strike indicates it is primarily based on the argument, rejected above, that only Blue Moon owned the Subject Vehicle. The Court will not strike the entire seventh cause of action or entire paragraphs contained therein on that basis.
However, the Court will examine the punitive damages claim and support thereof, as noted in Paragraph 64, 75 and Prayer Paragraph 5.
In reviewing a motion challenging the sufficiency of punitive damages allegations, the court must consider whether the factual allegations concerning the actual conduct alleged “apprises the adversary of the factual basis of the claim. [Citations.]” (Kiseskey v. Carpenters' Trust for So. California (1983) 144 Cal.App.3d 222, 234.) The factual allegations, in addition, must support entitlement to punitive damages. “Notwithstanding relaxed pleading criteria” permissible with other claims, punitive damages “demand firm allegations.” (G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29.)
“Punitive damages are imposed as punishment for the defendant’s serious misconduct.” (5 Witkin Cal. Proc. (5th ed. 2019) Pleading, § 933.) “Although the basic principle of damages is compensation, additional damages may be given in tort actions where the defendant's conduct has been outrageous, for the purpose of punishing and deterring him or her and others from outrageous conduct in the future. Citations.]” (6 Witkin Sum. Cal. Law (11th ed. 2017) Torts, § 1727.)
Claims for punitive damages are governed by Code of Civil Procedure section 3294, which limits their availability to circumstances where “the defendant has been guilty of oppression, fraud, or malice.” Consequently, punitive damages “cannot be recovered without a pleading of malice, oppression, or fraud … .” (5 Witkin Cal. Proc. (5th ed. 2019) Pleading, § 933, citing Hall v. Berkell (1955) 130 Cal. App. 2d 800, 804.)
Relevant here, “malice” as used in section 3294, means conduct “intended … to cause injury to the plaintiff” or “despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” Section 3294’s reference to “despicable conduct” represents a “substantive limitation on punitive damage awards.” (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.) “Absent an intent to injure the plaintiff, ‘malice’ requires more than a ‘willful and conscious’ disregard of the plaintiffs' interests. The additional component of ‘despicable conduct’ must be found. [Citations.]” (Ibid.)
In reviewing a motion challenging the sufficiency of punitive damages allegations, the court must consider whether the factual allegations concerning the actual conduct alleged “apprises the adversary of the factual basis of the claim. [Citations.]” (Kiseskey v. Carpenters' Trust for So. California (1983) 144 Cal.App.3d 222, 234.)
The factual allegations, in addition, must support entitlement to punitive damages. “Notwithstanding relaxed pleading criteria” permissible with other claims, punitive damages “demand firm allegations.” (G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29.) “When the plaintiff alleges an intentional wrong, a prayer for exemplary damage may be supported by pleading that the wrong was committed willfully or with a design to injure. When nondeliberate injury is charged, allegations that the defendant's conduct was wrongful, willful, wanton, reckless or unlawful do not support a claim for exemplary damages; such allegations do not charge malice.” (Ibid., internal citations omitted.)
“A conscious disregard of the safety of others may constitute malice within the meaning of section 3294 of the Civil Code. In order to justify an award of punitive damages on this basis, the plaintiff must establish that the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences.” (Taylor v. Superior Court (1979) 24 Cal.3d 890, 895-896.) In Taylor, the defendant had previously caused a serious automobile accident while driving under the influence, had been arrested and convicted for drunken driving on numerous prior occasions, had recently completed a period of probation following a drunk driving conviction, and was presently facing an additional pending criminal drunk driving charge at the time of the accident. (Id. at 895) The California Supreme Court found a sufficiently pleaded claim for punitive damages where a plaintiff included allegations regarding the defendant’s history of driving under the influence and previous involvement in criminal legal proceedings to show that defendant was aware of the dangerousness of his driving while intoxicated. (Id. at 893.)
Subsequently, the appellate court in Dawes v. Superior Court (1980) 111 Cal.App.3d 82, clarified that “[t]he risk of injury to others from ordinary driving while intoxicated is certainly foreseeable, but it is not necessarily probable,” and punitive damages may be warranted where the circumstances surrounding the defendant’s decision to drive while intoxicated made the risk of harm to others probable. (Id. at 89.)
In Dawes, the plaintiff’s punitive damages claim was supported by allegations that “the defendant … while intoxicated, was … driving a 1967 Ferrari automobile; … made a righthand turn … without stopping at the stop sign controlling traffic and proceeded in an easterly direction on said … [s]treet, zigzagging in and out of traffic, in a designated 35 mile per hour zone, and gaining speed until he was traveling in excess of 65 miles per hour, with reckless disregard of the probable consequences of said conduct and with reckless disregard of the safety of others.” (Id., at 86.) The plaintiff had further alleged the defendant “knew that he was intoxicated and knew that he was operating said 1967 Ferrari at a speed in excess of 65 miles per hour in a 35 mile per hour zone, on a Sunday afternoon, in a marina visited by many persons, and with knowledge that probable serious injury would result to persons in the area as a result of said conduct, and with reckless disregard of the safety of others, including [the plaintiff].” (Id.) In addition the complaint alleged that, “immediately following the accident [the defendant] and his fellow employee and passenger … falsely and fraudulently informed the investigating California Highway Patrol officer that [the passenger] was operating the vehicle when it struck the minor; and that this was done for the purpose of obstructing the investigation and [defendant’s] avoiding responsibility.” (Id.)
Such facts are not before the Court. The allegation that Defendant Torres, the driver, and Defendant Mauricio, the passenger, made a deliberate decision to flee the scene of the crash as alleged does not alone support punitive damages under the law as to drunk driving accident cases. Similarly, the lack of a driver’s license, as pled, is not sufficient to support punitive damages.
The Court notes again that Plaintiffs appear to attempt to add facts in opposition to the demurrer and motion to strike that do not appear in the complaint. (Opposition to Demurrer 5:9-21; Opposition to Motion to Strike 5:19-27, 6:1-2.) Nothing about horse races, knowledge of alcohol service, failure of a licensing test or other additional facts are pled in the complaint that would support the claim for punitive damages. General allegations that the driver was “unfit” or “incompetent” and that Moon, Gorzeman, Lanell and Ortiz knew of such unfitness or incompetence are insufficient as pled for punitive damages.
Further, as to punitive damages against Blue Moon, the complaint alleges it is a “business organization.” (Complaint ¶5.) Plaintiff has chosen to plead Blue Moon as a separate defendant in this manner, despite arguments to the contrary by Plaintiff in opposition, that Blue Moon is a dba and not a separate “business organization.”
As a separately named, and served, defendant, the Court treats Blue Moon as a “business organization” from whom punitive damages are sought. With respect to employers, section 3294 provides that “[a]n employer shall not be liable for [punitive damages], based upon acts of an employee …, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.”
There are insufficient facts pled here as to employer liability for punitive damages under either a corporate or non-corporate business form by an alleged employee of the corporation.
Therefore, the Court denies the motion to strike as to Nos. 1, 2 and 3 as set forth in Defendants’ motion to strike. The Court grants the motion to strike as to Nos. 4 and 5, with leave to amend. Plaintiffs shall have ten (10) days to file an amended complaint as to the punitive damages issue.
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: Rodriguez, Erica vs. Jaripeos Trucking
Case No.: VCU296803
Date: March 19, 2024
Time: 8:30 A.M.
Dept. 2-The Honorable Bret D. Hillman
Motion: Plaintiff’s (1) Motion to Deem Admissions Admitted (2) Motion to Compel Further Form and Special Interrogatories and (3) Motion to Compel Further Responses to Request for Production of Documents
Tentative Ruling: (1): To grant the motion and deem the admissions admitted based on the lack of verification; (2), (3): To grant the motions and compel verifications to the interrogatories and production of documents; to find the motion to compel further responses to individual interrogatories and production of documents unripe at this point.
Facts Common to (1), (2) and (3)
On October 3, 2023, Plaintiff served Plaintiff’s Form Interrogatories – General (Set One), Form Interrogatories – Employment (Set One), Special Interrogatories (Set One), Requests for Admission (Set One), and Requests for Production (Set One), upon Defendant JT by mail. Responses were due November 7, 2023.
Various extensions were provided by Plaintiff as to Defendant JT’s response dates.
On November 21, 2023, Defendant JT electronically served Plaintiff with its responses to Plaintiff’s Form Interrogatories – General (Set One), Form Interrogatories – Employment (Set One), Special Interrogatories (Set One), Requests for Admission (Set One), and Requests for Production (Set One).
However, these responses, containing a mixture of factual responses and objections, were unverified.
Plaintiff’s counsel met and conferred as to the unverified responses as well as to what Plaintiff considered incomplete responses to specific interrogatories and requests for production.
To date, Defendant JT’s discovery responses remain unverified.
Plaintiff filed the instant motions to compel verifications and to compel further responses to specific interrogatories and requests for production.
Authority and Analysis Common to (1), (2) and (3)
As unverified responses are tantamount to no response at all. (Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636.) Thus, the Court considers these motions as requests to admit admissions and compel initial responses.
(1) Deem Admissions Admitted
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.
Based on the failure to verify the responses, the Court grants the motion and deems the admissions admitted.
(2) Interrogatories
Based on Defendant JT’s failure to respond to the first sets of form and special interrogatories, the Court orders under, Code of Civil Procedure section 2030.290(a), that Defendant JT provide verifications to Plaintiff’s first set of form and special interrogatories no later than thirty (30) days from the date of this hearing.
(3) Requests for Production
Based on Defendant’s failure to respond to the first set requests for production of documents, the Court orders under, Code of Civil Procedure section 2031.300(a) that Defendant provide verifications to Plaintiff’s first set of requests for production of documents no later than thirty days from the date of this hearing.
However, in the Court’s opinion, there is no motion to compel further responses absent verified responses. Therefore, the Court will not rule on the individual interrogatories and requests for which Plaintiff seeks a further response at this time. In the Court’s opinion, until verification has occurred, there is no response under the law.
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: Rivera, Liliana vs. Mendez, Maria
Case No.: PCL305669
Date: March 19, 2024
Time: 8:30 A.M.
Dept. 23-The Honorable Glade F. Roper
Motion: Defendant Max Cuevas’s (1) Motion for Judgment on the Pleadings and (2) Motion for Summary Judgment
Tentative Ruling: (1) To grant the motion without leave to amend; (2) To find this motion moot by the prior ruling.
Facts Common to (1) and (2)
This unlawful detainer matter, involving property located at 3530 Young Road, Allensworth, CA 93219 (“Subject Property”), is based upon a three day notice to pay rent or quit (“Notice”).
The Notice, dated January 29, 2024 and attached as an Exhibit to the complaint, seeks $700 in past due rent from December 20, 2023 through January 20, 2024. The notice provides that the past due rent may be paid to Plaintiff Rivera, in person, Monday through Friday, 8:00 am through 3:00 pm, but does not provide an address or location to make the past due rent payment.
Defendant Cuevas has filed a motion for judgment on the pleadings and a motion for summary judgment on the issue of adequacy of the three day notice.
(1) Motion for Judgment on the Pleadings - Authorities and Analysis
A motion for judgment on the pleadings is used to challenge a pleading in the same manner as a general demurrer. (Code Civ. Proc. 438(c)(1); Bufil v. Dollar Financial Group (2008) 162 Cal.App.4th 1193, 1202.) Like a demurrer, the grounds for the motion for judgment on the pleadings must appear on the face of the pleading or be based on facts capable of judicial notice, including court records. (Id. at 1202; Stencel Aero Engineering Corp. v. Superior Court (1976) 56 Cal.App.3d 978, 986, and fn. 6.) This motion, therefore, tests the sufficiency of a complaint as a matter of law and raises only questions of law. (Schmidt v. Foundation Health (1995) 35 Cal.App.4th 1702, 1706.)
Here, Defendant Cuevas challenges the sufficiency of the contact information provided by Plaintiff in order to cure the breach of failure to pay rent. Code of Civil Procedure section 1161(2) states, on this issue, in pertinent part, that the notice must state:
“the amount that is due, the name, telephone number, and address of the person to whom the rent payment shall be made, and, if payment may be made personally, the usual days and hours that person will be available to receive the payment (provided that, if the address does not allow for personal delivery, then it shall be conclusively presumed that upon the mailing of any rent or notice to the owner by the tenant to the name and address provided, the notice or rent is deemed received by the owner on the date posted, if the tenant can show proof of mailing to the name and address provided by the owner)….” (emphasis added.) (Code Civ. Proc. §1161(2).)
Therefore, the Court finds the Notice defective for failure to state the address of the person to whom the past due rent shall be made.
To prove a cause of action for unlawful detainer for failure to pay rent, Plaintiff is “required to establish defendants defaulted in the payment of rent and failed to comply with the three-day notice stating the amount due.” (Sleep EZ v. Mateo (2017) 13 Cal.App.5th Supp. 1, 5.) The Notice is fatally defective and cannot support this unlawful detainer action because it fails to provide the address to cure the past due rent issue.
“Strict compliance with the statutory notice requirements is a prerequisite to filing an unlawful detainer action. [citation omitted.] (DHI Cherry Glen Associates, L.P. v. Gutierrez (2019) 46 Cal.App.5th Supp. 1, 9.) However, “…this notice is valid and enforceable only if the lessor strictly complies with the specifically described notice conditions. (Code Civ. Proc., § 1162.)’ [citation omitted.] ” (Id.)
Accordingly, the motion for judgment on the pleadings must be sustained without leave to amend based upon the defective Notice. (Del Monte Properties & Investments, Inc. v. Dolan (2018) 26 Cal. App. 5th Supp. 20, 24-25.)
(2)
Based on the ruling on the motion for judgment on the pleadings, the Court finds the motion for summary judgment moot.
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.