Filed 10/9/19 Bakour v. Bilbeisi CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

NAELA BAKOUR et al.,

Plaintiffs and Respondents,

v.

WATHIQ BILBEISI et al.,

Defendants and Appellants.

G056402, G056485

(Super. Ct. No. 30-2015-00814565)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Frederick Paul Horn, Judge. (Retired judge of the Orange Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed as modified.

Law Offices of Majorie G. Fuller and Marjorie G. Fuller for Defendants and Appellants.

Law Offices of David T. Moutoux and David T. Moutoux for Plaintiffs and Respondents.

* * *

Plaintiffs Naela and Luai Bakour (collectively, plaintiffs) filed the complaint underlying this case against defendants Wathiq and Sharon Bilbeisi (collectively, defendants), based upon a sale of foreign land belonging to Naela. Wathiq received the sale proceeds as an intermediary for Naela, but did not deliver them to Naela. The trial court found in favor of plaintiffs on their conversion claim and awarded both general and special damages. We find most of the special damages awarded were not supported by substantial evidence and affirm the judgment as modified.

I

FACTS AND PROCEDURAL HISTORY

A. Land Sale Proceeds Withheld

By June 2015, Naela and Wathiq agreed that Wathiq would assist Naela with handling the proceeds of her sale of land in the country of Jordan. Specifically, Wathiq and his business associate were to act as intermediaries and receive the proceeds of the sale for transfer to Naela. There was no written agreement specifying how the sale proceeds would be transferred to Naela. The proceeds were received by Wathiq but not delivered to Naela, despite numerous communications between the two.

Plaintiffs filed their complaint against defendants in October 2015 and amended it in February 2016. Plaintiffs alleged causes of action for conversion and quantum meruit. Among other things, their request for relief sought compensatory, emotional distress, and punitive damages. In May 2016, Wathiq filed a cross-complaint (no copy has been provided in the record before this court) and, three days later, he deposited the land sale proceeds with the court. Shortly thereafter, plaintiffs filed a motion to release the proceeds, which the court denied. The parties then proceeded to litigate this case for the next two years.

B. Court Trial

This case was tried during a two-day court trial in January 2018. Naela testified that the land sale proceeds were initially made payable through a check to Wathiq’s business associate, with her agreement. However, without her specific agreement, Wathiq then transferred the proceeds to a bank account opened in his name. Naela testified that Wathiq thereafter proposed making specific amounts of money available to Naela upon terms she had not agreed to.

Wathiq did not dispute Naela was the rightful owner of the proceeds but testified he did not release the proceeds because Naela did not comply with his requests to either provide sufficient documentation of the underlying transactions or add herself as an owner of the account where the proceeds were being held. Wathiq testified the purpose of his requests was to prevent any potential tax liability for himself in the future.

As to plaintiffs’ claimed injuries, Naela testified that, as a result of Wathiq’s withholding of the land sale proceeds, she had to secure five loans from friends and family (collectively, the personal loans). Naela testified the personal loans included an interest rate of 6 percent based upon oral terms. Next, Naela’s husband Luai testified that in February 2016, one month before he lost his employment of 20 years as an engineer and manager, he had to take out a $50,000 loan from his 401k retirement plan, which was shortly thereafter converted into income and resulted in a penalty and tax liability being incurred. Luai also testified that due to the lack of having the proceeds, he lost a business opportunity to purchase a FedEx shipping business.

The trial court found in favor of plaintiffs on all issues. Specifically, the court found that Wathiq had not been justified in withholding the sale proceeds and was therefore liable on plaintiffs’ conversion claim for both general and special damages pursuant to Civil Code section 3336. In an amended judgment following defendants’ motion for a new trial, the court awarded a total of $380,613.36. Specifically, the court ordered the payment of $213,862.36 as general damages directly caused by Wathiq’s withholding of the proceeds. This category included the $196,815.00 Wathiq had deposited with the court, $16,347.36 in accrued interest, and an additional $700 for money being held by Wathiq.

As to special damages, the trial court awarded $166,751.00, for three categories of injuries presented at trial. First, the court awarded $951 in interest obligations incurred by Naela, based upon the personal loans. Second, the court awarded $15,800 for interest, penalty, and tax liabilities incurred as result of Luai’s 401k loan. Third, the court awarded $150,000 in business venture damages, finding that “defendant’s failure to timely deliver the funds to plaintiff resulted in the loss of [plaintiffs’] significant business opportunity.” No statement of decision was requested by the parties and defendants timely appealed.

II

DISCUSSION

A. Standard of Review

On appeal, defendants do not dispute the trial court’s ruling regarding liability issues but claim the court committed errors in its award of damages. First, defendants claim section 3336 authorized the court to award either general damages or special damages, but not both. Second, defendants claim plaintiffs were precluded from being awarded special damages based upon inadequate pleading. Third, defendants claim that, in any case, there was insufficient evidence to support all three categories of special damages awarded.

A plaintiff’s challenge of the amount of damages awarded is reviewed for substantial evidence (Virtanen v. O’Connell (2006) 140 Cal.App.4th 688, 709-710), whereas entitlement to a particular measure of damages is reviewed de novo. (El Centro Mall, LLC v. Payless ShoeSource, Inc. (2009) 174 Cal.App.4th 58, 62.) Defendants, as the appellants, have the burden of demonstrating the trial court erred. (State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th 600, 610.) We begin our discussion with our review for substantial evidence.

B. Substantial Evidence Review of Special Damages

We find merit in the majority of defendants’ arguments that substantial evidence did not support the special damages awarded. Under substantial evidence review, “the general rule [is] that an appellate court must affirm the decision of a trial court if, after resolving all evidentiary conflicts and indulging all reasonable inferences in support of the judgment, there is substantial evidence to support it.” (County of Riverside v. City of Murrieta (1998) 65 Cal.App.4th 616, 620.)

At the same time, “[a] damage award must not be “‘“‘speculative, remote, imaginary, contingent, or merely possible.’”’” (Atkins v. City of Los Angeles (2017) 8 Cal.App.5th 696, 738.) Incompetent evidence which is received by a trial court without objection can support a judgment. (Id. at pp. 739-740.) However, even “[c]ompetent evidence is not necessarily substantial evidence.” (Ibid.) Damages awarded must be proved to be reasonably certain. (Toscano v. Greene Music (2004) 124 Cal.App.4th 685, 696-697 [“An expert’s opinion must not be based upon speculative or conjectural data. If the expert’s opinion is not based upon facts otherwise proved or assumes facts contrary to the only proof, it cannot rise to the dignity of substantial evidence”].) We review each of the three challenged categories of special damages in turn.

1. Personal loans

Defendants contend the trial court erroneously awarded $951 as damages for interest incurred on Naela’s personal loans because it was not supported by substantial evidence. We disagree. At trial, Naela testified that she had received five loans from friends and family members, without any written notes prepared. Naela testified that the five loans totaled $8,950 and when asked by her counsel, “Over what period of time?” she responded, “September 2015 to March 2016.” Naela testified that for each loan she had agreed to an interest rate of “about six percent.” Naela identified the specific lender and loan amounts for three of the five loans and did not specify any dates of the loans. Defendants did not object to any portion of Naela’s testimony on this subject and did not present any contradicting evidence of their own. Defendants did object to Naela’s attempt to admit into evidence documents related to the loans, which was sustained by the trial court.

We indulge all reasonable inferences in support of the judgment and find substantial evidence supports the $951 awarded for Naela’s personal loans. (County of Riverside v. City of Murrieta, supra, 65 Cal.App.4th at p. 620.) The admitted evidence of Naela’s testimony supported a theoretical award of more than what was actually awarded. Assuming the smallest window of time allowed for accrued interest was March 31, 2016 to the date of the amended judgment, June 18, 2018, applying a simple interest rate of 6 percent to the total loan principal of $8,950 (both components testified to by Naela and uncontradicted by defendants) would have yielded accrued interest in the amount of $1,190.23. Since this amount was more than the $951 the trial court awarded, we find substantial evidence supports the award. (See Myers v. Stephens (1965) 233 Cal.App.2d 104, 118 (Myers) [affirming the trial court’s damages award amount based upon appellate court’s independent calculation of damages awardable based upon facts in record].)

2. Business venture damages

Defendants also contend the trial court’s award of $150,000 based upon Luai’s claim of business venture damages was not supported by substantial evidence. We agree. Generally, the basis of opinion testimony regarding the extent of damages must be ascertainable to qualify as substantial evidence. (See Toscano v. Greene Music , supra, 124 Cal.App.4th at pp. 695-697 [although record supported an establishment of fact of damage, plaintiff’s expert’s conclusions as to the extent of lost employment damages was “wholly conjectural” and appellate court could not “ascertain with any certainty” how the plaintiff’s expert reached an assumption underlying her opinion].) Furthermore, “[t]he plaintiff has the burden to produce the best evidence available in the circumstances to attempt to establish a claim for loss of profits.” (S. C. Anderson, Inc. v. Bank of America (1994) 24 Cal.App.4th 529, 536.)

Defendants cite to case law to argue the evidence was insufficient because it was too speculative. In response, plaintiffs cite to their own case law, asserting that evidence can be found insufficient only if no reasonable interpretation of the record supports the amount awarded. Plaintiffs then cite to Luai’s testimony regarding his opinion that the FedEx business he had been pursuing would have yielded him a net annual income of $150,000. Luai prefaced his opinion by stating the then current owner of the business had opined the amount was higher, at $160,000 to $180,000. Regarding the basis for his opinion, Luai testified that in performing his analysis of the business’s value, he spent about three months going through the business’s books with his agent. In support of Luai’s testimony, plaintiffs proffered to the trial court 12 pages of documents related to Luai’s analysis of the business. The documents included purported financial records of the business and a purported e-mail from an individual Luai identified as the owner of the business. Defendants did not object to Luai’s oral testimony but did object to the admissibility of the documents as hearsay. After plaintiffs’ counsel attempted to develop foundation for the documents, the court partially overruled the objection and admitted the documents as evidence only for the purpose of demonstrating plaintiffs’ effort to buy the business, but not for the truth of the information contained in them.

In her cross-examination testimony, Naela testified she believed her and Luai’s joint offer to purchase the business had been “90 percent” accepted but plaintiffs had been unable to proceed with a necessary loan. Naela testified that she believed there was documentation of an acceptance of the offer but she had never looked for it.

Even crediting plaintiffs’ oral testimony about lost business profits—which almost exclusively consisted of Luai’s lay opinion about what he would have earned—we do not find the evidence admitted by the trial court sufficed as substantial evidence supporting the court’s award. The absence of foundational information, such as whether the business was an established or new business (see Parlour Enterprises, Inc. v. Kirin Group, Inc. (2007) 152 Cal.App.4th 281, 288 [discussing differing frameworks for analyzing lost profit damages between established and new businesses]), and how the proffered amount was calculated, rendered the evidence speculative as a matter of law.

In Toscano v. Greene Music, supra, 124 Cal.App.4th at pages 695-697—one of the two cases cited to by plaintiffs—the court reviewed an employee’s damages award and concluded the expert opinion supporting it was too speculative to constitute substantial evidence. Specifically, the plaintiff in Toscano had alleged a defendant was liable under a theory of promissory estoppel for promising him employment as a sales manager, which caused the plaintiff to resign from his then current job. (Id. at pp. 689-690.) Following a bench trial, the trial court’s total award of $536,833 included “lost wages based on what Toscano[, i.e., the plaintiff] would have earned from his former employer to the time of his retirement” based upon his accountant-expert’s opinion testimony. (Id. at p. 689.)

On review, the Toscano appellate court held that, “even giving deference to the trial court’s ruling and drawing all inferences in Toscano’s favor,” the future lost earnings awarded in that case had been too speculative. (Toscano v. Greene Music, supra, 124 Cal.App.4th at pp. 695-696.) In its analysis, the court analogized to case law regarding lost profit awards (id. at p. 696), and found that the evidence failed to prove lost future earnings with reasonable certainty because there was no demonstration of what the former employer’s expectations were regarding Toscano’s employment situation. (Id. at p. 695.) Specifically, the court stated “[w]e cannot ascertain with any certainty how [Toscano’s expert] reached her assumption as to Toscano’s continued employment.” (Toscano v. Greene Music, supra, 124 Cal.App.4th at pp. 696-697.)

Similarly in this case, there is no way of ascertaining with reasonable certainty how Luai reached his assumptions underlying his lost profit opinion. It is apparent plaintiffs’ strategy at trial was to support the opinion with the 12-page document exhibit proffered. But because that exhibit was admitted only on a limited basis, it offered no foundational support for the lay opinion that Luai would have earned a net income of $150,000 if he had been able to purchase the FedEx shipping business. Not only is the record devoid of how Luai’s opinion was reached, it provides no meaningful basis showing what amounts it was based upon. For example, the record does not establish what costs and revenues were reviewed in arriving at the Luai’s opinion. While it is true Luai testified that the then current owner believed $160,000 to $180,000 would have been earned, that purported opinion (not challenged by defendants), suffered from the same foundational issue in that it was simply a conclusion without a demonstrated basis. Accordingly, even under the deferential standard of substantial evidence review, there is a lack of reasonable certainty in the assumptions of Luai’s opinion, rendering the business venture damages speculative. (Toscano v. Greene Music, supra, 124 Cal.App.4th at pp. 696-697.)

Moreover, given that it appears better evidence could have been presented—such as documentation of the business’s financial performance history—we find plaintiffs did not meet their “burden to produce the best evidence available in the circumstances to attempt to establish a claim for loss of profits.” (S. C. Anderson, Inc. v. Bank of America, supra, 24 Cal.App.4th at p. 536.) In sum, the trial court’s award of $150,000 for business venture damages was not supported by substantial evidence.

3. Damages arising from 401k loan

Defendants also contend the trial court’s award of $15,800 based upon Luai’s loan from his 401k retirement fund was not supported by substantial evidence because the admitted evidence on that subject was also speculative. We partially agree. Based upon the testimony of Luai, the amount of the award was comprised of three components: interest, penalty, and taxes. According to plaintiffs’ counsel’s trial argument and briefing, the component amounts were $1,800 for two months of interest at 4.5 percent, a $4,000 penalty for Luai’s early withdrawal of the 401k money, and $10,000 in tax liability for the loan being converted into income.

The actual evidence did not align with the argument. The two sources of evidence at trial regarding Luai’s 401k loan related damages were his own testimony and a single page document which appears to be a screenshot of some basic information regarding his loan. Luai testified he had not yet paid the claimed penalty or tax—even after approximately 19 months had elapsed since he had failed to repay the loan. Notwithstanding, Luai testified he would pay 20 percent of the $50,000 as a tax liability and that he was going to incur a penalty of 25 percent for taking money out of his 401k account early. Luai testified he did not pay any interest related to his 401k account and no other evidence was admitted regarding it. Defendants did not object to or present any contradicting evidence disputing Luai’s testimony on these points.

In contrast to the business venture damages discussed above, the foundational assumptions needed to support Luai’s claims regarding his 401k related damages was logically simpler than proving lost profits. This made the claims inherently less susceptible to being found speculative and more appropriate subjects of appellate deference to the trier of fact under substantial evidence review. That being said, there was still a material difference in foundational basis between Luai’s claimed penalty and his estimated tax liability. Specifically, Luai testified that his opinion he was going to incur a 25 percent penalty was based upon a communication from his previous employer’s “401k plan person.” In contrast, with respect to his claimed tax liability, Luai expressly stated he was estimating the applicable tax rate and he did not identify any third party or objective source regarding that information. “Speculation or conjecture alone is not substantial evidence.” (Roddenberry v. Roddenberry (1996) 44 Cal.App.4th 634, 651.)

We credit Luai’s testimony and draw all reasonable inferences in favor of affirming the judgment (County of Riverside v. City of Murrieta, supra, 65 Cal.App.4th at p. 620), but reject speculation. (Atkins v. City of Los Angeles, supra, 8 Cal.App.5th at p. 738.) Accordingly, we find there was substantial evidence to support a damages award in an amount equal to the claimed 25 percent penalty on the $50,000, but not for interest nor the claimed tax liability. The evidence supported an award of $12,500 for damages related to Luai’s 401k loan.

C. Statutory Interpretation of Damages Awardable Under Section 3336

With respect to our de novo review of this appeal, we reject defendants’ contention that the trial court committed legal error by awarding both general and special damages. Section 3336 provides: “The detriment caused by the wrongful conversion of personal property is presumed to be: [¶] First—The value of the property at the time of the conversion, with the interest from that time, or, an amount sufficient to indemnify the party injured for the loss which is the natural, reasonable and proximate result of the wrongful act complained of and which a proper degree of prudence on his part would not have averted; and [¶] Second—A fair compensation for the time and money properly expended in pursuit of the property.”

Defendants contend the trial court committed error by misreading the “or” in the section as an “and” in awarding both types of damages. Although the precedents they cite to stand for other well established aspects of awarding “indemnity” damages under section 3336, defendants’ discussion does not persuade us that the “or” in section 3336 must be read as a mutually exclusive disjunctive. For example, Myers v. Stephens, supra, 233 Cal.App.2d 104, 116, is primarily known for the proposition that a trial court’s award of “indemnity” (special) damages under section 3336 should only be resorted to if awarding the presumptive “value of the property” (general) damages would be “manifestly unjust.” Myers also stands for a well-established proposition that “indemnity” damages should be awarded only where special circumstances are pleaded and proven that “‘it was reasonably forseeable [sic] to a prudent person, having regard for the accompanying circumstances, that injury or damage would likely result from his wrongful act.’” (Krueger v. Bank of America, supra, 145 Cal.App.3d at p. 215, quoting Myers, at pp. 119-120; Lueter v. State of California, supra, 94 Cal.App.4th at p. 1301.)

While section 3336’s use of the word “or” is susceptible to defendants’ proffered conclusion, it does not compel it. Indeed, rejecting defendants’ restrictive interpretation, and instead applying a more flexible interpretation that would allow for case-by-case basis discretion, is more consistent with this state’s general policy interest of making plaintiffs whole through tort damages. (Erlich v. Menezes (1999) 21 Cal.4th 543, 550.) We are not persuaded by defendants that special damages could not be awarded in addition to the value of the property as a matter of statutory interpretation.

D. Challenge to Plaintiffs’ Pleadings

Next, defendants contend plaintiffs should have been precluded as a matter of law from being awarded special damages because plaintiffs failed to plead the basis for special damages pursuant to Myers, supra, 233 Cal.App.2d at pages 120-121, 123. Plaintiffs counterargue that at no time relevant to the case did defendants claim surprise or prejudice due to plaintiffs’ claims for the special damages at issue in this appeal. Plaintiffs also counterargue that defendants waived argument on this issue by not raising it at the trial court level when they moved for a new trial. Particularly given that defendants do not respond to these counterarguments in their reply, we find the issue forfeited for failure to object at trial (see Little v. Amber Hotel Co. (2011) 202 Cal.App.4th 280, 303, fn. 13), which comports with the principle that theories not raised in the trial court cannot be asserted for the first time on appeal, as a matter of general fairness. (Nellie Gail Ranch Owners Assn. v. McMullin (2016) 4 Cal.App.5th 982, 997.)

E. Conclusion

Finally, we reject defendants contention that based upon the insufficiency of the evidence in this case, this court should direct the trial court to enter judgment for defendants. Insofar as defendants are arguing that any portion of the judgment that is reversed for lack of substantial evidence must be reversed without remanding the case back to the trial court for relitigation, we agree. Plaintiffs “had [a] full and fair opportunity to present the case, and the evidence is insufficient as a matter of law to support” the specific damages discussed above. (Frank v. County of Los Angeles (2007) 149 Cal.App.4th 805, 833.) The judgment is to be modified to vacate only those portions of the damages award that were not supported by substantial evidence, as discussed above.

III

DISPOSITION

The judgment is modified to award $ 227,313.36 to plaintiffs. In all other respects, the judgment is affirmed. Defendants are entitled to costs in this appeal.

MOORE, ACTING P. J.

WE CONCUR:

THOMPSON, J.

GOETHALS, J.

Filed 10/9/19 Broussard v. Abrams CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

JIA BROUSSARD,

Plaintiff and Respondent,

v.

GEORGE LAWRENCE ABRAMS, JR.,

Defendant and Appellant.

A156158

(Alameda County

Super. Ct. No. HF18921871)

On September 24, 2018, respondent Jia Broussard filed a request for a domestic violence restraining order in the Alameda County Superior Court seeking personal conduct and stay away orders against appellant, George Lawrence Abrams, Jr. On November 6, 2018, after a hearing, the court issued the orders. A timely notice of appeal was filed on January 3, 2019.

FACTS AND PROCEEDINGS BELOW

Respondent’s request for restraining orders, which sought protection not only for herself but also her father, Edmound Broussard, and her friend, Desmond Walker, described appellant as an “ex-partner.” The request alleged that appellant had spray-painted her and her father’s cars, and the front of their house and adjacent sidewalk with messages stating “Jia has herpes,” “Jiaslut.com,” “cheater,” “bitch,” “find your man,” and that he had also vandalized Desmond Walker’s car by slashing all four tires, breaking a window, and “throwing sewage in his front seat.” The request also stated that appellant “has a history of stalking me.”

Respondent appeared in propria persona at the scheduled hearing on October 15, 2018, but appellant did not appear and the hearing was continued to November 6, at which respondent again represented herself. Appellant was represented by counsel, who failed to serve respondent with appellant’s answer to her petition. The court continued the case to provide respondent time to review the document.

Appellant’s defense focused almost entirely on respondent’s assertion that the spray-painting of her car and her father’s car took place between 5:00 p.m. Saturday, September 22, 2018, and 11:00 a.m. the following day. To refute this allegation, appellant provided a receipt from a hotel in Napa assertedly showing he had checked out of the hotel at 11:00 a.m. on Sunday, September 23, at the end of the period during which respondent claimed the spray-painting took place.

Respondent answered that the receipt did not establish appellant checked out of the hotel at 11:00 a.m. but only that 11:00 a.m. was the checkout time, and he could have left Napa earlier Sunday and arrived back in Berkeley well before 11:00 a.m. Respondent also pointed out that the spray-painting was far from the only evidence of appellant’s abusive conduct: “I have flowers that he sent, and the date and time stamp of that picture [of the flowers]. I have text messages that also demonstrate his behavior and the proof that I have told him repeatedly to end contact with me and that we are not in a relationship.” Respondent also noted that the vandalizing of her male friend’s car took place a week after the spray-painting of the two cars, and she produced photographs of the damage to all three cars. Respondent emphasized that most of the hostile texts and other conduct she complained of took place between April and July 2018, before the spray-painting on September 22 or 23, which was “an escalation of things that had happened from April to July.”

The trial court found respondent sustained her burden of proof by a preponderance of the evidence and issued a one-year restraining order to November 6, 2019. Among other explanations, the court stated that it did not find appellant credible. “When [appellant] described the relationship [as ending] amicably, that they went their separate directions and he sent flowers because of how great the relationship was, that is completely inconsistent with the text messages that have been provided to the court. What is clear from the text messages before the court is that [respondent] consistently, in almost every message, told you, ‘[s]top contacting me. Stop contacting my dad . . . because he makes you feel good. I don’t care if my sister is your sissy and she’s like a sister you never had. Stop contacting my family.’ [¶] And you persisted. You wanted to continue talking about where the relationship went wrong. You wanted to continue talking about what a great partner you were and how you are as fit as people half your age. You were not getting the message.” Indeed, the court declared, some of appellant’s texts “actually express anger about the fact that [respondent] did not want to speak with you.”

The court allowed that appellant may have been in Napa on Sunday, September 23, but “[i]t is not inconceivable that you, nonetheless, made the trip [to Berkeley within respondent’s timeline].”

DISCUSSION

The two arguments advanced in appellant’s six-page opening brief, which in violation of rule 8.204(b)(7) of the California Rules of Court, is unpaginated, are set forth in two brief paragraphs.

The first argument is that “there is absolutely no evidence” that appellant spray-painted respondent’s car. “There was no witness, no video, nothing. There was, however, evidence that [appellant] was some 50+ miles away for the weekend. The trial court mentioned this fact, . . . however, the trial court shifts the burden from [respondent] to establish her case to [appellant]. Not only does [appellant] have to show that he was out of town for the weekend (which he did) he had to demonstrate that he was actually physically present out of town during specified hours, the assumption being that he came back to Berkeley to vandalize her car and then go back to Napa to check out of his hotel[;] this is not reasonable.” According to appellant, respondent was required by the court merely “to speculate” that appellant was the perpetrator.

This argument is frivolous. First of all, as we have explained, respondent’s case hardly relied solely on the allegation that appellant spray-painted her car, as appellant erroneously assumes. She also alleged numerous other acts over a period of three months that appellant totally ignores. Additionally, appellant clearly did not satisfactorily establish that he was in Napa when respondent’s car was spray-painted. Finally, the court’s reasoning, and particularly its credibility determination, make clear it would grant the petition even if not fully convinced appellant spray-painted respondent’s car.

Putting aside the fact that appellant ignores most of the evidence respondent presented and the court relied upon, his primary argument wholly ignores the principle that all evidence must be viewed most favorably to respondent and in support of the judgment. (Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 925–926.) Appellant’s “ ‘ “attempt to reargue on appeal those factual issues decided adversely to it at the trial level, contrary to established precepts of appellate review . . . is doomed to fail.” ’ ” (Hjelm v. Prometheus Real Estate Group, Inc. (2016) 3 Cal.App.5th 1155, 1166, quoting Hasson v. Ford Motor Co. (1982) 388, 398–399.)

The only other argument in appellant’s opening brief—which was the only brief he filed because respondent did not submit a reply—is that appellant’s text messages to respondent stopped in June 2018. So that “[f]rom June 2018 to September 23, 2018 (the date of the vandalism) [appellant] and [respondent] ran into each other on July 1, 2018 by chance where there are numerous restaurants [sic] without incident and without texting and without a restraining order being filed.” Appellant’s point is that “[w]hat we have here is [appellant’s] attempt to boots strap [sic] the more serious vandalism claim into other normal incautious breakup communication [sic] in order to obtain a domestic violence restraining order.”

Appellant’s attempt to normalize his numerous angry and threatening text messages to respondent as merely “incautious breakup communication” is also reargument of facts unsuccessfully relied upon in the trial court. The texts appear to have carried more weight with the court than the spray-painting of respondent’s and her father’s cars. By establishing appellant’s anger and repeated rejection of respondent’s constant pleas that he stop contacting her and others in her family, the texts powerfully contradicted appellant’s foundational claim: that the breakup of the parties was “amicable.” Because they devastated appellant’s credibility, the text messages (and appellant’s inability to suggest who else might have vandalized respondent’s car and those of her father and male friend) also undermined appellant’s denial that he was the spray-painter and vandal. Appellant’s request that we retry this case cannot succeed.

As we believe this opinion demonstrates, appellant’s assertion that the trial court failed to make an adequate record cannot be taken seriously.

Appellant’s opening and only brief closes with the observation that the trial court has a great deal of discretion to grant or deny a protective order under the Domestic Violence Prevention Act (DVPA), “however, judicial discretion to grant or deny an application for a protective order is not unfettered.” In support of the conventional proposition that judicial discretion “is not unfettered,” appellant cites In re Marriage of Evilsizor & Sweeney (2015) 237 Cal.App.4th 1416, 1424, which is the only judicial citation contained in appellant’s entire brief. The statement that “judicial discretion to grant or deny an application for a protective order is not unfettered” does not, however, appear either at the page of Evilsizor appellant cites or anywhere else in that opinion. But the page counsel cites does vigorously reaffirm principles applicable to this appeal to which appellant appears oblivious: that in considering whether substantial evidence, contradicted or uncontradicted, supports an order under the DVPA, “ ‘ “ ‘[w]e must accept as true all the evidence . . . tending to establish the correctness of the trial court’s findings . . . , resolving every conflict in favor of the judgment.’ ” [Citation.]’ ” (Evilsizor, at p. 1424, italics added, citing Burquet v. Brumbaugh (2014) 223 Cal.App.4th 1140, 1143.)

The contradicted and uncontradicted evidence supporting the challenged order is overwhelming.

As indicated, this appeal appears frivolous; we decline to consider sanctions only because respondent has not asked us to do so.

DISPOSITION

For the foregoing reasons, the trial court’s order is affirmed.

_________________________

Kline, P.J.

We concur:

_________________________

Stewart, J.

_________________________

Miller, J.

Broussard v. Abrams (A156158)

Filed 10/11/19 Ly-Carter v. Macagy CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

TUYEN LY-CARTER,

Plaintiff and Appellant,

v.

IAN MACAGY,

Defendant and Respondent.

F076715

(Super. Ct. No. 16CECG03828)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Rosemary T. McGuire, Judge.

Tuyen Ly-Carter, in pro. per., for Plaintiff and Appellant.

White Canepa, Mark B. Canepa and Adam Garth for Defendant and Respondent.

-ooOoo-

Two weeks after the delivery of her baby, plaintiff underwent emergency surgery for a postpartum hemorrhage. She subsequently sued the physician who delivered the baby, alleging medical negligence. Defendant moved for summary judgment, supporting the motion with an expert declaration opining that defendant’s care and treatment of plaintiff was appropriate, within the standard of care, and did not cause or contribute to any injury allegedly sustained by plaintiff. Plaintiff opposed the motion, submitting a letter from a physician who opined that plaintiff’s alleged injuries were due to vaginal lacerations that were not properly repaired at the time of delivery. The trial court excluded plaintiff’s expert’s letter, which was not in the form of an admissible declaration. It granted summary judgment in favor of defendant. Plaintiff appeals, contending the trial court should have admitted her expert’s letter, or should have permitted her to file a corrected declaration in proper form. We conclude the trial court did not abuse its discretion by excluding the inadmissible letter or denying plaintiff the opportunity to file a corrected declaration. The trial court properly granted the motion for summary judgment, and we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff sued defendant, the on-call obstetrician and gynecologist who delivered her baby, for medical malpractice. She alleged defendant successfully delivered her baby, then discharged her from the hospital. About two weeks later, plaintiff was admitted to a different hospital with severe pain and bleeding. She alleged she was diagnosed with severe postpartum hemorrhage caused by retained placenta from the vaginal delivery. Dr. Lola J. Loeb performed a dilation and curettage (D and C), and plaintiff remained hospitalized for three days. Plaintiff alleged defendant ignored obvious signs of a retained placenta and failed to investigate or ensure the treatment of plaintiff was within the acceptable standard of care. She allegedly suffered damage as a result.

Defendant moved for summary judgment. He supported the motion with plaintiff’s medical records and the expert declaration of an obstetrician and gynecologist, who opined plaintiff experienced a delayed postpartum hemorrhage, not caused by retained placenta, which is a recognized complication of pregnancy that could not have been predicted or prevented. Defendant’s expert concluded defendant was not negligent in his care of plaintiff, and no negligent act or omission by defendant caused or contributed to plaintiff’s alleged injuries.

Plaintiff, acting in propria persona, filed opposition to the motion. Defendant filed a reply brief and objections to plaintiff’s evidence. Defendant objected to the purported declaration of plaintiff’s expert witness, Dr. David L. Berry, on the ground it was not in fact a declaration; it was presented in the form of a letter rather than as a declaration under penalty of perjury and was therefore inadmissible. Defendant also contended Dr. Berry’s letter, even if accepted as a declaration, contained only speculative conclusions without foundation in any cited facts or specific information in the medical records, and was therefore insufficient to create a triable issue of material fact.

When the trial court posted its tentative ruling, plaintiff discovered the supporting evidence, including Dr. Berry’s letter, which she had attempted to electronically file along with her opposition, had not been received and filed by the trial court. At the hearing of the motion, defendant conceded he had been timely served with plaintiff’s opposition, including the supporting evidence, and had replied to it. The trial court afforded plaintiff additional time to file with the court the same documents that had been timely served on defendant. The trial court denied plaintiff’s request to file a corrected declaration of Dr. Berry.

Defendant subsequently filed a letter with the court, advising that on October 25, 2017, plaintiff filed her opposition documents with the court, but again omitted the supporting evidence. Defendant noted that, on October 30, 2017, plaintiff untimely filed the evidence missing from her previous filings. He asked that plaintiff not be afforded a third opportunity to file evidence, and that defendant’s motion be granted.

Plaintiff submitted a responsive letter to the court, which stated she electronically filed her documents on October 24, 2017, but some of them, including Dr. Berry’s letter, were rejected because they were not in the correct format. Immediately upon learning of the problem, she corrected it and resubmitted the papers on October 30, 2017. She asserted defendant received Dr. Berry’s letter twice.

The trial court accepted plaintiff’s October 30, 2017 filing as timely. It concluded defendant met his initial burden by presenting expert evidence that defendant’s care and treatment of plaintiff met the applicable standard of care and did not cause her any injury. The burden shifted to plaintiff to raise a triable issue of material fact.

The trial court sustained defendant’s objection to Dr. Berry’s letter, finding it was deficient as a declaration and therefore inadmissible. It also found, even if the information it contained had been set forth in a proper declaration, it would not have defeated defendant’s motion because of shortcomings in its content. The trial court granted defendant’s motion for summary judgment, and subsequently entered judgment in favor of defendant. Plaintiff appeals from the judgment.

DISCUSSION

I. Standard Applicable to a Party In Propria Persona

Plaintiff contends the trial court applied the wrong standard to her case, because, as a self-represented party, she was entitled to “a less stringent standard.” In support of this argument, plaintiff cites federal cases addressing pleading requirements in federal court. They state, for example, “a pro se complaint, ‘however inartfully pleaded,’ must be held to ‘less stringent standards than formal pleadings drafted by lawyers’ and can only be dismissed for failure to state a claim if it appears ‘ “beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” ’ ” (Estelle v. Gamble (1976) 429 U.S. 97, 106.) Federal pleading standards, however, generally do not apply in California courts. (See, Diodes, Inc. v. Franzen (1968) 260 Cal.App.2d 244, 250.) Further, the issue involved in this case does not involve the sufficiency of a self-represented party’s pleadings to state a viable cause of action.

In state courts in California, “[i]t is the duty of a trial judge to see that a cause is not defeated by the mere inadvertence of a lay litigant, but such litigant is restricted to the same rules of procedure as is required of those qualified to practice before our courts. [Citation.] ‘ “A litigant has a right to act as his own attorney [citation] ‘but, in so doing, should be restricted to the same rules of evidence and procedure as is required of those qualified to practice law before our courts; otherwise, ignorance is unjustly rewarded.’ [Citations.] … ” ’ [Citation.] [¶] Plaintiff’s argument that, as a litigant who appeared in propria persona he was somehow entitled to a more indulgent application of the rules than other litigants or attorneys is without merit. His propria persona status afforded him no special treatment. ‘When a litigant is appearing in propria persona, he is entitled to the same, but no greater, consideration than other litigants and attorneys.’ ” (Harding v. Collazo (1986) 177 Cal.App.3d 1044, 1055–1056.) “ ‘The fact that a layman elects to represent himself “certainly does not excuse him from a failure of proof” of his cause of action.’ ” (Doran v. Dreyer (1956) 143 Cal.App.2d 289, 290.)

The trial court held plaintiff to the same standard as other litigants, requiring that she comply with the same rules of evidence and procedure and meet the same deadlines as other litigants. The trial court allowed plaintiff to resubmit documents she had attempted to timely file electronically, which apparently were rejected or not received and filed by the trial court due to technical issues. It did not, however, allow her a second chance to submit a sufficient expert declaration after her time for filing opposing evidence had passed and after deficiencies in the original submission were identified by defendant. Plaintiff has not established that the trial court applied an incorrect standard to her as a party appearing in propria persona.

II. Summary Judgment

A. Standard of review

Summary judgment is properly granted when no triable issue exists as to any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) In moving for summary judgment, a “defendant … has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action … cannot be established, or that there is a complete defense to the cause of action.” (§ 437c, subd. (p)(2).) Once the moving defendant has met this initial burden, “the burden shifts to the plaintiff … to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.)

On appeal, “we apply the same three-step analysis required of the trial court: We first identify the issues framed by the pleadings, since it is these allegations to which the motion must respond. Secondly, we determine whether the moving party has established facts which negate the opponents’ claim and justify a judgment in the movant’s favor. Finally, if the summary judgment motion prima facie justifies a judgment, we determine whether the opposition demonstrates the existence of a triable, material factual issue.” (Torres v. Reardon (1992) 3 Cal.App.4th 831, 836.)

“The declarations in support of a motion for summary judgment should be strictly construed, while the opposing declarations should be liberally construed.” (Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 761.) However, “[t]he same rules of evidence that apply at trial also apply to the declarations submitted in support of and in opposition to motions for summary judgment.” (Ibid.) Consequently, “[o]nly admissible evidence is liberally construed in deciding whether there is a triable issue.” (Ibid.) “We review the trial court’s decision de novo, considering all of the evidence the parties offered in connection with the motion (except that which the court properly excluded) and the uncontradicted inferences the evidence reasonably supports.” (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476.)

B. Defendant’s showing

Defendant’s motion was supported by the expert declaration of Dr. Scott Serden. It reflected Dr. Serden reviewed plaintiff’s medical records from the hospital where defendant delivered her baby, from the hospital where Dr. Loeb treated her two weeks later, and from other providers. Dr. Serden set out the facts, derived from the medical records, on which he based his opinions. He stated the pathologist’s report after the birth of plaintiff’s baby indicated the placenta had been successfully delivered; the pathologist’s report after Dr. Loeb’s surgery did not find retained products of conception, and the findings were compatible with a delayed postpartum bleed. Dr. Serden stated:

“A delayed post-partum hemorrhage is a recognized complication of pregnancy. That is precisely what occurred in this case. It could not be predicted or prevented. There was nothing [defendant] should have done differently in the delivery and there was no reason to suspect this particular patient would have a post-partum hemorrhage weeks after she was released from the hospital. [Defendant] was not negligent in the pre-delivery, delivery, or post-delivery actions he took with [plaintiff].”

Dr. Serden stated his opinion that defendant’s care and treatment of plaintiff was at all times appropriate and within the standard of care, and set out the reasons for his opinion. He also stated that, to a reasonable degree of medical probability, no negligent act or omission of defendant caused or contributed to any injury sustained by plaintiff. Dr. Serden added that plaintiff “had an unforeseen and unpredictable post-partum bleed. The fact that this bleed occurred does not suggest that the delivering physician, or any other health care provider, caused harm to” plaintiff.

Plaintiff does not challenge the sufficiency of defendant’s showing to meet his initial burden of negating one or more elements of her cause of action. Accordingly, the only issue in this appeal is whether plaintiff’s showing in response was sufficient to raise one or more triable issues of material fact.

III. Admissibility of Dr. Berry’s Letter

A. Not made under penalty of perjury

A motion for summary judgment “shall be supported by affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.” (§ 437c, subd. (b)(1).) Likewise, opposition to a motion for summary judgment “shall consist of affidavits, declarations, admissions, answers to interrogatories, depositions, and matters of which judicial notice shall or may be taken.” (§ 437c, subd. (b)(2).) “Supporting and opposing affidavits or declarations shall be made by a person on personal knowledge, shall set forth admissible evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated in the affidavits or declarations.” (§ 437c, subd. (d).)

In a medical malpractice action, when “the conduct required of a medical professional is not within the common knowledge of laymen, a plaintiff must present expert witness testimony to prove a breach of the standard of care. [Citations.] Plaintiff also must show that defendants’ breach of the standard of care was the cause, within a reasonable medical probability, of his injury.” (Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 509 (Bushling).) “When a defendant health care practitioner moves for summary judgment and supports his motion with an expert declaration that his conduct met the community standard of care, the defendant is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence.” (Borrayo v. Avery (2016) 2 Cal.App.5th 304, 310.)

The declarations submitted in support of and opposition to a motion for summary judgment must be presented in the proper form.

“Whenever, under any law of this state … , any matter is required or permitted to be supported, evidenced, established, or proved by the sworn statement, declaration, … or affidavit, in writing of the person making the same … , such matter may with like force and effect be supported, evidenced, established or proved by the unsworn statement, declaration, … in writing of such person which recites that it is certified or declared by him or her to be true under penalty of perjury, is subscribed by him or her, and (1), if executed within this state, states the date and place of execution, or (2), if executed at any place, within or without this state, states the date of execution and that it is so certified or declared under the laws of the State of California.” (§ 2015.5.)

A declaration executed outside California conforms to the requirements of section 2015.5 if the signature is preceded by the language: I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. (§ 2015.5.)

The certification or declaration under penalty of perjury is not a mere formality. “Section 2015.5 seeks to enhance the reliability of all declarations used as hearsay evidence by disclosing the sanction for dishonesty. Thus, the statute requires some acknowledgement on the face of the declaration that perjured statements might trigger prosecution under California law.” (Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601, 606.) Declarations signed outside California “must invoke ‘the laws of the State of California.’ [Citation.] Indeed, when lawmakers added this phrase to section 2015.5 in 1980, it was deemed necessary to alert out-of-state declarants that California’s perjury laws—which were made extraterritorial at the same time—might apply.” (Ibid.) A declaration is defective under section 2015.5 in the absence of this required language; it is inadmissible and cannot be used as evidence. (Kulshrestha, at pp. 612, 618.)

Dr. Berry’s initial statement took the form of a letter to plaintiff’s husband, dated September 20, 2017, on the letterhead of Austin Perinatal Associates. His curriculum vitae, which was submitted with the letter, reflected an office address in Austin, Texas and a Texas medical license. The letter was simply signed by Dr. Berry; it did not indicate the place of execution or contain a statement under penalty of perjury (under the laws of the State of California, if it was signed out of state) that the information contained in the letter was true and correct. Consequently, it did not comply with the requirements of section 2015.5 for an admissible declaration.

“We review the trial court’s ruling on the admissibility of expert testimony for abuse of discretion.” (Sanchez v. Kern Emergency Medical Transportation Corp. (2017) 8 Cal.App.5th 146, 154 (Sanchez).) “[E]videntiary objections based on lack of foundation, qualification of experts, and conclusory and speculative testimony are traditionally left to the sound discretion of the trial court.” (Alexander v. Scripps Memorial Hospital La Jolla (2018) 23 Cal.App.5th 206, 226.) “A court abuses its discretion if its ruling is ‘ “so irrational or arbitrary that no reasonable person could agree with it.” ’ [Citation.] ‘When applying the deferential abuse of discretion standard, “the trial court’s findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious.” ’ [Citation.] ‘It is the appellant’s burden on appeal to show the trial court abused its discretion.’ ” (Sanchez, at p. 154.)

The trial court found Dr. Berry’s letter to be technically deficient as a declaration, because of its failure to comply with section 2015.5; therefore, it was held inadmissible. Substantial evidence supports its implied finding that the letter did not contain the information required by section 2015.5. The trial court’s conclusion of law that a purported declaration not containing the information required by section 2015.5 is inadmissible was correct. Consequently, exclusion of the letter was not arbitrary or capricious and was not an abuse of discretion.

B. No factual basis for opinion

“A properly qualified expert may offer an opinion relating to a subject that is beyond common experience, if that expert’s opinion will assist the trier of fact. [Citation.] Even so, the expert opinion may not be based on assumptions of fact that are without evidentiary support or based on factors that are speculative or conjectural, for then the opinion has no evidentiary value and does not assist the trier of fact. [Citation.] Moreover, an expert’s opinion rendered without a reasoned explanation of why the underlying facts lead to the ultimate conclusion has no evidentiary value because an expert opinion is worth no more than the reasons and facts on which it is based.” (Bushling, supra, 117 Cal.App.4th at p. 510.) “ ‘[T]he trial court acts as a gatekeeper to exclude speculative or irrelevant expert opinion.’ ” (Sanchez, supra, 8 Cal.App.5th at p. 156.)

“ ‘An expert who gives only a conclusory opinion does not assist the jury to determine what occurred, but instead supplants the jury by declaring what occurred.’ [Citation.] Regarding causation, ‘the plaintiff must offer an expert opinion that contains a reasoned explanation illuminating why the facts have convinced the expert, and therefore should convince the jury, that it is more probable than not the negligent act was a cause-in-fact of the plaintiff’s injury.’ [Citation.] [¶] These rules apply to expert witness declarations submitted in connection with a motion for summary judgment.” (Sanchez, supra, 8 Cal.App.5th at p. 155.)

In its ruling on the motion for summary judgment, the trial court concluded that, even if Dr. Berry were allowed to sign his expert opinion letter under penalty of perjury under the laws of the State of California, bringing it into compliance with section 2015.5, the declaration would still fail to defeat defendant’s motion for summary judgment. The trial court found: (1) Dr. Berry’s opinion was based on inadmissible hearsay, which was insufficient to prove causation or failure to meet the applicable standard of care; (2) the letter did not explain how or why any facts convinced Dr. Berry that defendant’s negligence caused plaintiff’s harm, or how defendant failed to meet the standard of care; and (3) the letter did not refer to any evidence that formed the basis of his opinion, and the opinion was based on speculation.

Dr. Berry’s letter stated he reviewed plaintiff’s medical records from the hospital where defendant delivered plaintiff’s baby, the hospital where Dr. Loeb treated plaintiff for postpartum bleeding, and other providers. He stated that, after delivery of her baby, plaintiff “underwent a repair of her vaginal lacerations including a second degree perineal and right vaginal sulcus laceration repaired with 3-0 Vicryl.” Approximately two weeks postpartum, plaintiff was admitted by Dr. Loeb with a diagnosis of delayed postpartum hemorrhage; plaintiff underwent an emergency D and C and vaginal laceration repair. Dr. Berry expressed the following opinion:

“Operative pathology revealed no retained products of conception. Subsequent discussions with Dr. Loeb revealed that the vaginal lacerations could have, ‘ … very likely been the source of the postpartum hemorrhage.’

“In my opinion, it is more likely than not that [plaintiff’s] postpartum hemorrhage, emergency admission, emergency surgery, ICU admission and blood transfusion was due to severe bleeding from her vaginal lacerations. Had her vaginal lacerations been properly and adequately repaired at the time of her delivery, she would not have undergone these complications and suffered the trauma of re-admission, emergency surgery and blood transfusion.”

Dr. Berry’s first statement, “[o]perative pathology revealed no retained products of conception,” agrees with the declaration of Dr. Serden and appears to refute the manner of injury alleged in plaintiff’s first amended complaint.

The statement regarding “discussions with Dr. Loeb” does not disclose who had discussions with her, or who “revealed” vaginal lacerations could have been the source of the postpartum hemorrhage. In her opening brief, plaintiff states the discussion mentioned was between her husband and Dr. Loeb, and her husband provided the information to Dr. Berry. Thus, she confirms the information was at least double hearsay. As the trial court found, this “fails as independent proof of causation or failure to meet the standard of care.”

“An expert may rely upon hearsay and other inadmissible matter in forming an opinion. [Citation.] But that matter relied upon must ‘provide a reasonable basis for the particular opinion offered.’ ” (Howard Entertainment, Inc. v. Kudrow (2012) 208 Cal.App.4th 1102, 1115.) The expert’s opinion must be based on matter “perceived by or personally known to the witness or made known to him at or before the hearing, whether or not admissible, that is of a type that reasonably may be relied upon by an expert in forming an opinion upon the subject to which his testimony relates.” (Evid. Code, § 801, subd. (b).) An opinion apparently expressed by a doctor to a third person, who related it to the expert, which does not disclose any factual basis for that opinion or any reasoning leading to it, does not appear to provide a reasonable basis for an expert’s opinion regarding the cause of an alleged medical injury, nor does it appear to be the type of matter on which an expert would reasonably rely in forming an opinion about the cause of such an injury.

Dr. Berry expressed his opinion it was “more likely than not that [plaintiff’s] postpartum hemorrhage … was due to severe bleeding from her vaginal lacerations.” He did not identify any information in the medical records supporting his assumption that plaintiff had “severe bleeding from her vaginal lacerations.” Dr. Loeb’s description of the surgery she performed, which was contained in one of the pages of medical records plaintiff submitted with Dr. Berry’s declaration, did not attribute “severe” bleeding to the vaginal lacerations, did not indicate the lacerations were the source of the bleeding that brought plaintiff to the hospital that day, and seemed to indicate there was substantial bleeding from other areas. An expert opinion may not be based on assumptions of fact that are without evidentiary support. (Bushling, supra, 117 Cal.App.4th at p. 510.) Dr. Berry did not cite any evidence supporting his factual assumption.

Dr. Berry’s letter also did not indicate whether his conclusion that the postpartum hemorrhage and resulting treatment were due to severe bleeding from vaginal lacerations was based on the hearsay opinion he seemed to attribute to Dr. Loeb or on something else. Dr. Berry did not cite the facts on which that conclusion was based, support those facts with any evidence in the medical records or elsewhere, or explain how the facts and evidence convinced him his conclusion was more likely than not.

Further, Dr. Berry’s final statement, which implies omissions in defendant’s care and treatment of plaintiff at the time of the delivery of her baby caused the conditions that required further treatment by Dr. Loeb, was founded on his assumption that the “postpartum hemorrhage … was due to severe bleeding from her vaginal lacerations,” which, as we have stated, he failed to support with any evidentiary basis. He also failed to provide reasoned analysis connecting any facts that were supported by the evidence to his opinion regarding causation. As a result, his conclusion regarding causation was speculative and conjectural.

Dr. Berry’s letter also failed to address Dr. Serden’s opinion that plaintiff experienced a delayed postpartum hemorrhage, which was a recognized complication of pregnancy that could not be predicted or prevented. He failed to provide a reasoned explanation illuminating why, contrary to Dr. Serden’s opinion, he concluded it was more likely than not plaintiff’s bleeding was the result of unrepaired or poorly repaired vaginal lacerations.

Although the evidence submitted in opposition to a motion for summary judgment must be liberally construed, and therefore the reasoned explanation required in an opposing party’s expert declaration need not be as detailed or extensive as that required in an expert declaration filed in support of a summary judgment motion, these principles in no way eliminate the need for some form of reasoned explanation of the opposing expert’s opinions. (Fernandez v. Alexander (2019) 31 Cal.App.5th 770, 782; Garrett v. Howmedica Osteonics Corp. (2013) 214 Cal.App.4th 173, 189.) Dr. Berry’s letter contained only conclusory opinions about what he thought occurred. It did not identify the facts, as shown by the evidence, that led him to conclude defendant was negligent in plaintiff’s care or give some reasoned explanation regarding why the facts led him to conclude defendant was negligent. The letter also did not explain why the facts and evidence convinced Dr. Berry it was more probable than not that defendant’s negligence was a cause of plaintiff’s injury. Thus, the letter did not inform the trial court of the facts, identify the evidence establishing them, and assist the trial court to understand why Dr. Berry believed the facts showed defendant was negligent and his negligence caused or contributed to plaintiff’s injuries. Rather, the letter stated only conclusory opinions.

We conclude the trial court did not abuse its discretion by excluding Dr. Berry’s letter and determining even if Dr. Berry’s letter had been filed in the form of a declaration in compliance with section 2015.5, it would not have been sufficient to raise a triable issue of material fact and defeat defendant’s summary judgment motion because his opinions rested on conjecture and speculation. Consequently, the trial court also did not abuse its discretion by denying plaintiff an opportunity to resubmit the expert opinion letter in declaration form, executed by Dr. Berry under penalty of perjury.

IV. Denial of Leave to Correct Declaration

Plaintiff asserts that, during the initial oral argument of the motion for summary judgment, she offered the trial court a corrected declaration of Dr. Berry, which was in proper declaration form and provided more specific information in support of his opinions. The trial court refused to allow her to file it in opposition to defendant’s motion. She contends the trial court abused its discretion in doing so.

A. Summary judgment statute

A motion for summary judgment must be served and filed at least 75 days before the date set for the hearing. (§ 437c, subd. (a)(2).) Opposition papers must be served and filed at least 14 days before the hearing. (§ 437c, subd. (b)(2).) Thus, the opposing party has approximately 60 days in which to conduct any necessary discovery, collect any further evidence, and prepare and file opposition papers.

If the opposing party files a declaration in opposition to the motion, indicating “facts essential to justify opposition may exist but cannot, for reasons stated, be presented,” the trial court must deny the motion or grant a continuance to permit the opposing party to obtain further evidence. (§ 437c, subd. (h).) Alternatively, the opposing party may submit an ex parte application for a continuance on the same ground, if the application is brought on or before the date the opposition is due. (Ibid.) An oral request for a continuance in order to provide an expert declaration in opposition to a motion for summary judgment, which is made at the hearing of the motion, is untimely. (Ambrose v. Michelin North America, Inc. (2005) 134 Cal.App.4th 1350, 1352, 1353.)

Plaintiff did not, at the time she filed opposition to defendant’s motion, request additional time to obtain or present evidence in opposition. Rather, on the day of the hearing of the motion, she requested leave to file a corrected declaration, to address the deficiencies identified by defendant in his reply. Although plaintiff requested leave to file the corrected declaration, rather than requesting a continuance, the effect was the same. A continuance would have been needed to allow defendant to respond to the corrected declaration on the merits, and to allow the trial court time to review both the corrected declaration and defendant’s response.

Plaintiff’s request was made after her time for filing opposition and presenting opposing evidence had passed. She made no showing to justify extending that time; she did not assert anything prevented her from filing timely and proper evidence in support of her opposition. We conclude the trial court did not abuse its discretion by denying plaintiff’s request to file a corrected declaration, which was first made orally at the hearing of the motion for summary judgment.

B. Expert designation statute

Plaintiff seems to argue the trial court should have allowed her to file the corrected expert declaration pursuant to section 2034.610. That statute, however, addresses expert witness designations for trial. When a demand for exchange of expert witness lists is made (§ 2034.210), each party must serve on the other parties a list of the experts the party expects to call at trial (§ 2034.260, subd. (b)) and an attorney’s declaration stating the qualifications of each expert, the general substance of the expert’s expected testimony, and specified other information (§ 2034.260, subd. (c)). Section 2034.610, the section cited by plaintiff, authorizes the trial court to grant a party leave to augment the expert witness list by adding an expert or to amend the declaration describing the substance of the testimony an expert is expected to give at trial. (§ 2034.610, subd. (a).) This section has no application to requests to amend or correct expert declarations filed in support of or opposition to motions for summary judgment.

C. Federal rules

Plaintiff seems to contend she should have been allowed to correct her expert declaration pursuant to rule 56 of the Federal Rules of Civil Procedure. That rule governs summary judgment motions in federal courts, and provides, “[i]f a party fails to properly support an assertion of fact or fails to properly address another party’s assertion of fact … the court may … give an opportunity to properly support or address the fact.” (Fed. Rules Civ. Proc., rule 56(e)(1), 28 U.S.C.) Summary judgment motions in California state courts are not governed by the federal rules; they are governed by section 437c, which we discussed previously. Plaintiff has not demonstrated the trial court committed error by failing to apply federal rules to the motion in issue.

D. Section 473 and Evidence Code section 356

In her reply brief, plaintiff asserts she should have been permitted to file a corrected expert declaration pursuant to section 473 or Evidence Code section 356. Points raised for the first time in a reply brief on appeal will not be considered in the absence of a showing of good cause for failure to present them earlier. (REO Broadcasting Consultants v. Martin (1999) 69 Cal.App.4th 489, 500; Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764–765.) This is a matter of fairness to the defendant, because “[t]o withhold a point until the closing brief deprives the [defendant] of the opportunity to answer it or requires the effort and delay of an additional brief by permission.” (Campos v. Anderson (1997) 57 Cal.App.4th 784, 794, fn. 3.)

Plaintiff raised these arguments for the first time in her reply brief. She gave no explanation for the failure to raise them in her opening brief. Consequently, we will not consider them.

DISPOSITION

The judgment is affirmed. Defendant is entitled to his costs on appeal.

HILL, P.J.

WE CONCUR:

DETJEN, J.

PEÑA, J.

Filed 10/11/19 Marriage of Keel CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

In re the Marriage of MARIE and GREG G. KEEL.

GREG G. KEEL,

Respondent,

v.

MARIE KEEL,

Appellant.

G055720

(Super. Ct. No. 14D007669)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Franz E. Miller, Judge. Affirmed. Request for sanctions. Denied.

Merritt McKeon for Appellant.

The Law Offices of Patrick A. McCall and Patrick A. McCall for Respondent.

* * *

INTRODUCTION

Greg G. Keel and Marie Keel were married in October 2004. Ten years later, Greg filed a petition for dissolution of marriage. The primary issue presented for trial was whether a house, the only marital real property asset, was separate or community property. The trial court found that the house was community property because it was purchased before the date of separation and Greg and Marie had intended to purchase the house as community property. The court did not accept Marie’s argument that the house was separate property.

Marie appealed from the judgment of dissolution, which incorporated the trial court’s ruling and findings from trial. In her appellant’s opening brief, Marie asserts the trial court erred by (1) failing to provide her the opportunity to correct the trial court’s errors, (2) refusing to reopen discovery, (3) denying as untimely her request for a statement of decision, (4) violating her constitutional rights to her separate property, and (5) overruling her objections to the admission of several e mail messages. In her appellant’s reply brief, Marie argues the trial court erred by denying her “the opportunity to support her clear testimony that the funds used to purchase the home . . . were inherited funds.”

We affirm. The arguments made in the appellant’s opening brief have no merit, and the argument raised in the appellant’s reply brief was forfeited. Greg has requested monetary sanctions. We deny that request.

FACTS/RELEVANT TRIAL TESTIMONY

Escrow on the house (sometimes called the house and sometimes called the Fareholm residence) closed in September 2010. At the time of trial, the house had an appraised value of $1,325,000. The evidence at trial was directed primarily to three issues: (1) whether the house was purchased before or after the date of separation, (2) whether the down payment for the house came from separate or community property, and (3) whether Marie and Greg intended the house to be separate or community property.

A large amount of testimony and evidence at trial was devoted to the date of separation. Marie claimed that she and Greg separated in April 2010 (before escrow closed) but had no documents to support that claim. Greg claimed he and Marie separated sometime in May 2011 (after escrow closed). The trial court found they had separated after the house was purchased. Since Marie does not challenge that finding on appeal, we will not go over evidence on the date of separation.

It was stipulated that $30,000 of the down payment for the house was a gift from Marie’s mother. The explanations of Marie and of Greg on the source of the rest of the down payment and Greg’s involvement in the purchase were in direct contradiction.

Marie (originally from Japan) has a degree in mathematics from Imperial College, London, United Kingdom, and has been a CPA since 2000. Marie testified that Greg was not involved in purchasing the house except to do the final walkthrough in August 2010. She testified that over $232,000 used for the down payment came from an inheritance from her father, she deposited the inheritance money into her bank account in Japan, that account was in her name only, and joint bank accounts do not exist in Japan. The money was transferred to Marie’s separate property bank account in the United States, and then deposited into escrow. Marie testified she used inheritance money and money from her mother to make the mortgage payments.

In the original information sheet provided to escrow, Marie identified herself as a married person. She later instructed escrow to change married person to single person for title vesting. She took title to the house as a single woman. The inspection report had the name of both Marie and Greg on it. Marie testified that was a mistake.

Greg testified he was the one who found the house and visited it three times before the close of escrow. Before deciding to purchase the house, he had looked at no fewer than 25 houses. In March 2010 Marie sent Greg an e mail stating, “I want you to see the house; otherwise, I was going to make an offer without seeing it.” In June 2010, Greg sent Marie an e mail stating, “What houses do you want me to go see? Please let me know, so I can look them up.” In June and July 2010, Marie sent Greg e mails asking him to look at several houses, including the one they eventually purchased. Greg sent Marie e mails about various houses for sale.

Greg testified he did not sign escrow documents but did sign loan documents and title papers. He believed he and Marie had purchased the house as a married couple and he was on title. He never discussed with her the possibility he would not be on title. He learned he was not on title only during the dissolution proceedings.

Greg testified that while he and Marie were married, they maintained joint bank accounts in Japan and Thailand, while Marie had a separate account at Chase Bank in the United States. The joint account in Japan was used to pay their living expenses when they lived in Japan. Greg testified that money acquired over their years of marriage (including profits from Marie’s gem business) was deposited into Marie’s Chase Bank account and used for the down payment on the house. He had no documentation regarding any bank account in Japan. He testified that other than the $30,000 from Marie’s mother, the down payment on the house came from income acquired during the marriage that had been deposited into the Chase account.

Marie testified that from April through May 2011 she and Greg communicated only by telephone and e mail. She testified she filed a divorce action in Japan and advised Greg of it by e mail in April or May of 2010. Marie did not bring any of the Japanese divorce papers with her to trial.

THE TRIAL COURT’S RULINGS

The court issued a ruling and made findings in the minutes for June 20, 2017. The trial court found the house was community property subject to a $30,000 credit under Family Code section 2640 to Marie and found, by a preponderance of the evidence, the intent to end the marriage was not expressed until after the house was purchased. On the issue of the date of separation, the court stated it had “no confidence” in Marie’s testimony.

Because the house was purchased before the date of separation, it was subject to the community property presumption. The court found that Marie had failed to rebut that presumption, stating: “In the Court’s view, [Marie] intentionally embarked on a course of conduct to make [Greg] believe that the house was being purchased as part of the marital property. [¶] The Court believes [Marie] kept [Greg] in the dark as to her plan to purchase the property alone. [¶] The Court finds [Marie]’s conduct is sufficient to invoke Family Code Section 1101. [Marie]’s conduct is not so egregious to consider awarding [Greg] the entire community interest in the property.” The court found the house to have a value of $1,325,000.

Marie filed a request for a statement of decision on June 29, 2017. The trial court denied the request as untimely. In the minute order denying Marie’s request for a statement of decision, the trial court found it was “more likely than not” the date of separation was “sometime in May 2011.”

A judgment on reserved issues was filed on September 13, 2017. The judgment includes a more detailed version of the findings recited in the June 20 minutes. The judgment includes this finding: “The Court finds that it was the intention of the parties to jointly purchase the Fareholm residence, i.e., as community property, but [Marie] intentionally manipulated the transaction so as to only place her name on title on the Fareholm residence. The Court notes that [Marie] is a CPA. The documentation regarding the loan and other documents involving the residence concludes that [Marie] intentionally embarked on a course of conduct to make [Greg] believe that the Fareholm residence was being purchased as part of the marital property. [Marie] kept [Greg] in the dark about the transaction. Said actions on the part of [Marie] are found to be a breach of fiduciary duty which is in violation of Family Code Section 1101.” (Underscoring omitted.)

Marie moved for a new trial on the grounds of irregularity in the proceedings, abuse of discretion, and error of law. (See Code Civ. Proc., § 657, subds. (1) & (7).) The trial court denied the motion.

DISCUSSION

I. The Trial Court Did Not Deny Marie the Opportunity to Correct Error.

Marie contends the trial court failed her to give her an opportunity to correct errors made at trial. This contention is based on the following statement made by the trial court at the end of trial: “[Y]ou have remedies within the trial court to try to point my attention to things you thought I got wrong before you go up and get me reversed. I’m always pleased to give opportunity ahead of time.” Marie claims the trial court failed to follow through on this offer.

The trial court’s comments were made in response to a statement by Marie’s counsel about bringing a motion for reconsideration under Code of Civil Procedure section 1008. The court advised counsel a motion for reconsideration was appropriate for a motion, but “[n]ot for a trial.” Given this context, the court’s reference to “remedies within the trial court” meant a motion for a new trial and whatever other postjudgment remedies might be available. The trial court did not deny Marie the opportunity to bring a motion for a new trial or any other postjudgment relief.

II. Marie Was Not Denied Her Right to Discovery Under Family Code Section 218.

Marie argues the trial court erred by denying her right to discovery under Family Code section 218. It reads, in relevant part: “With respect to the ability to conduct formal discovery in family law proceedings, when a request for order or other motion is filed and served after entry of judgment, discovery shall automatically reopen as to the issues raised in the postjudgment pleadings currently before the court.” (Fam. Code, § 218.)

After Marie filed her motion for a new trial, she had subpoenas duces tecum issued to Yahoo, Inc., Google, Inc., and Mizuho Bank of Japan. She argues the purpose of the subpoenas was to obtain evidence bearing on Greg’s credibility and the source of the down payment on the house. Greg filed a motion to quash the subpoenas. A hearing on the motion was scheduled for January 5, 2018.

When Marie’s motion for a new trial was heard on October 27, 2017, Marie’s counsel made an ex parte request to advance the hearing date on the motion to quash the subpoenas. Her counsel asked the court to grant the motion for a new trial and deny the motion to quash. After hearing argument, the trial court took the matters under submission.

By signed order entered on October 30, 2017, the trial court denied the motion for a new trial and deemed moot the motion to quash. The trial court reasoned that when a motion for a new trial is made on the grounds of irregularity in the proceedings, abuse of discretion, or error of law, Code of Civil Procedure section 658 requires the motion be made upon affidavits or the court minutes. The only affidavit presented by Marie in support of her new trial motion was a declaration of her counsel (Merritt McKeon). But as McKeon was not trial counsel, the statements in her declaration about the conduct of trial and authenticating portions of the trial transcript were hearsay. The trial court also considered the statutory grounds for a new trial not identified in Marie’s motion and concluded none of those had merit. The order states, “The court’s ruling moots petitioner’s motion to quash the various subpoenas.”

Marie argues the trial court’s ruling denied her the right to reopen discovery under Family Code section 218 and her ability to prove the source of the down payment on the house. We disagree. Discovery was reopened when Marie filed her motion for a new trial. When discovery reopened, she had subpoenas duces tecum served. But reopening discovery did not mean Marie was entitled to the discovery sought: Greg could, and did, move to quash the subpoenas. (Code Civ. Proc., §§ 1987.1 [authorizing motion to quash subpoenas], 2017.010 [matters subject to discovery], 2017.020 [court imposed limits on scope of discovery].) When the trial court denied Marie’s motion for a new trial, discovery under Family Code section 218 closed. As the trial court concluded, denying the motion for a new trial rendered moot the motion to quash. At that point, whatever documents might have been obtained by the subpoenas would not have been relevant because they could not be used for the postjudgment motion that had reopened discovery under Family Code section 218. (Code Civ. Proc., § 2017.010 [party may obtain discovery of relevant matters].)

Nothing in Family Code section 218 states or suggests a trial court must grant a new trial to allow one party to obtain discovery. To interpret section 218 in that manner would in effect amend Code of Civil Procedure section 657, which identifies the permissible grounds for granting a new trial. Permitting one party to obtain discovery is not one of those grounds.

We note too the trial court’s finding that “[Marie] has not shown that with reasonable diligence that she could not have discovered and produced the alleged new evidence, e.g., erased emails, information from [the] Japanese Bank regarding whether Japan prohibits joint accounts for married persons.” Marie has not identified anything in the record to suggest that finding was in error.

Marie might be arguing the stated grounds on which the trial court denied her motion for a new trial were erroneous. It is difficult to tell from her appellate briefs. She does not challenge the court’s stated reasons for denying her new trial motion under a separate heading, as required by the California Rules of Court, rule 8.204(a)(1)(B) (further citations to rules are to the California Rules of Court). “This is not a mere technical requirement.” (In re S.C. (2006) 138 Cal.App.4th 396, 408.) “Failure to provide proper headings forfeits issues that may be discussed in the brief but are not clearly identified by a heading.” (Pizarro v. Reynoso (2017) 10 Cal.App.5th 172, 179.)

III. Marie’s Request for a Statement of Decision
Was Untimely.

Marie filed a request for a statement of decision on June 29, 2017, which was nine days after the trial court made its posttrial ruling in the court minutes. The court found that trial lasted 4.5 hours and denied Marie’s request for a statement of decision as untimely.

A request for a statement of decision “must be made within 10 days after the court announces a tentative decision unless the trial is concluded within one calendar day or in less than eight hours over more than one day in which event the request must be made prior to the submission of the matter for decision.” (Code Civ. Proc., § 632; see rule 3.1590(n).) If counsel do not present opening statements, trial is deemed to commence “at the time of the administering of the oath or affirmation to the first witness, or the introduction of any evidence.” (Code Civ. Proc., § 581, subd. (a)(6).)

“[T]he eight-hour rule in section 632 requires a simple and obvious mode of timekeeping that everyone, including attorneys, can keep track of. This means that, for purposes of keeping time of trial under section 632 in civil proceedings other than administrative mandamus . . . , the time of trial means the time that the court is in session, in open court, and also includes ordinary morning and afternoon recesses when the parties remain at the courthouse.” (In re Marriage of Gray (2002) 103 Cal.App.4th 974, 979 980.)

The court minutes for June 15, 2017 reflect that in open court at 2:27 p.m. the court heard an opening statement from Greg’s counsel, after which Marie was sworn and testified. Thus, trial began no earlier than 2:27 p.m. Proceedings ended that day at 4:18 p.m. Trial time on June 15 therefore was one hour and 51 minutes.

The court minutes for June 16, 2017 reflect that trial began at 1:45 p.m. and ended at 3:59 p.m. Trial time on June 16 therefore was two hours and 14 minutes.

The court minutes for June 20, 2017 reflect that trial began at 11:07 a.m. The matter was trailed for a lunch recess from 11:42 a.m. to 1:40 p.m. The lunch recess is not included in calculating the length of trial because it is not an “ordinary morning and afternoon recess[] when the parties remain at the courthouse.” (In re Marriage of Gray, supra, 103 Cal.App.4th at p. 980.) The minutes reflect that at 3:27 p.m. the court invited additional argument from counsel and then placed its decision on the record. The minutes do not reflect the time at which trial ended. A generous estimate is that trial concluded at 4:27 p.m., which allows a full hour for what amounts to 16 pages of the reporter’s transcript. Trial time on June 20 therefore was no more than 3 hours and 22 minutes.

The length of trial was: one hour and 51 minutes (June 15) + two hours and 14 minutes (June 16) + 3 hours and 22 minutes (June 20) = 7 hours and 27 minutes.

Because trial was completed within eight hours over more than one day, Marie was required to file a request for statement of decision before that matter was submitted. (Rule 3.1590(n).) Her request for a statement of decision, filed on June 29, 2017, was therefore untimely.

Marie requested an extension of time under rule 3.1590(m) to file a request for a statement of decision. The trial court denied the request. The court believed that rule 3.1590(m) does not apply to trials falling within rule 3.1590(n) but, even if it did, opted to exercise its “discretion not to excuse a noncompliance.” The trial court did not abuse its discretion by denying Marie’s request for an extension of time.

IV. Marie Was Not Denied Her Constitutional Right to Her Separate Property.

Maries argues the trial court’s ruling denied her right, guaranteed by the California Constitution, that property acquired during a marriage by gift, will, or inheritance is separate property. (Cal. Const., art. I, § 21; see Fam. Code, § 752.) In effect, this is a sufficiency of the evidence argument. She contends her rights were denied because she testified that she had received an inheritance from her father, the inheritance had been deposited into her separate property bank account in Japan, and funds from that separate property bank account had been used to pay all but $30,000 of the down payment on the house.

Greg, however, offered conflicting testimony. He testified that earnings acquired over the years of marriage were deposited into Marie’s Chase Bank account, and community property funds from that account were used to make the down payment on the house. At the hearing on the motion for a new trial, the court commented that neither Greg nor Marie was particularly credible, but that Marie was less credible on the issue of the source of the down payment. In addition, the trial court found that Marie had engaged in a course of conduct intended to cause Greg to believe the house was purchased as community property, and this conduct constituted a breach of fiduciary duty under Family Code section 1101.

Substantial evidence therefore supports the trial court’s finding the house was community property. Because the house was community property, Marie was not denied her constitutional right to her separate property.

V. Marie Forfeited Her Challenge to the Admission in Evidence of E mail Messages.

Marie argues the trial court erred by overruling her objections to the admission in evidence of e mail messages between Greg and her. She does not provide record citations to support her argument and does not identify the challenged e mails, other than to say they were admitted during the first day of trial. The argument is forfeited. (Alki Partners, LP v. DB Fund Services, LLC (2016) 4 Cal.App.5th 574, 589; Chicago Title Ins. Co. v. AMZ Ins. Services, Inc. (2010) 188 Cal.App.4th 401, 424.) In addition, the trial court exhibits have not been transmitted to us so we have no means to examine the challenged e mail messages.

VI. Arguments Made for the First Time in the Reply Brief Are Forfeited.

Marie’s appellant’s reply brief has a point heading with the title “Factual and Procedural Background.” (Some capitalization omitted.) There are two subparts (A and B) within this heading. Before subpart A, Marie addresses fact statements and legal arguments made in Greg’s respondent’s brief and cites several cases regarding separate property and tracing that were not cited in her appellant’s opening brief. She then argues the trial court erred by denying her “the opportunity to support her clear testimony that the funds used to purchase the home . . . were inherited funds.”

It is unclear whether this argument differs from any argument made in the appellant’s opening brief. To the extent it does, the argument is forfeited. (Chicago Title Ins. Co. v. AMZ Ins. Services, Inc., supra, 188 Cal.App.4th at pp. 427-428 [arguments raised for the first time in the appellant’s reply brief are forfeited].) The argument also is forfeited for failure to comply with rule 8.204(a)(1)(B). (Pizarro v. Reynoso, supra, 10 Cal.App.5th at p. 179.)

REQUEST FOR SANCTIONS

Greg requests monetary sanctions against Marie under Code of Civil Procedure section 907. He makes the request in his respondent’s brief and did not serve and file a separate motion under the rules governing appellate motion procedure, as required by rules 8.54(a) and 8.276(b). We therefore deny the request for sanctions. (Saltonstall v. City of Sacramento (2014) 231 Cal.App.4th 837, 858 [respondent’s request for sanctions made in brief denied because the respondent did not file a separate motion for sanctions].) In addition, it does not appear to us the appeal was “frivolous or taken solely for delay.” (Code Civ. Proc., § 907; see In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.)

DISPOSITION

The judgment is affirmed. The request for sanctions is denied. Respondent Greg to recover costs on appeal.

FYBEL, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

IKOLA, J.

19-CIV-00171 MAYURENDRA P.V. BAUGH VS. WILLIAM W. BACON, JR., ET AL.

MAYURENDRA P.V. BAUGH WILLIAM W. BACON
JOHN J. HUGHES DEVEREAUX RENDLER

PLAINTIFF’S MOTION TO COMPEL FURTHER RESPONSES FROM DEFENDANT WILLIAM BACON AND DEFENDANT KAREN MURPHY TENTATIVE RULING:

Plaintiff’s motion to compel further responses from Defendant William Bacon and Defendant Karen Murphy is granted. Plaintiff’s request for sanctions is granted in the amount of $1,560.00, against Defendants and their counsel.

Defendant William Bacon shall serve verified supplement responses to Form Interrogatory 17.1, as to Request for Admissions 1, 2, 3, 4, 11, and 12. Defendant Karen Murphy shall serve verified supplement responses to Form Interrogatory 17.1 as to Request for Admissions 1, 2, 4, 5, 8, and 12 through 17. Defendants shall serve their verified supplemental responses no later than November 1, 2019, or two weeks after service of written notice of this ruling, whichever date is later.

Defendants William Bacon and Karen Murphy, and their counsel Devereaux Rendler shall jointly and severally pay a monetary sanction of $1,560.00 to Plaintiff Mayurendra P. V. Baugh, no later than October 25, 2019, or one week after service of written notice of this ruling, whichever date is later.

If the tentative ruling is uncontested, it shall become the order of the Court, pursuant to Rule 3.1308(a)(1), adopted by Local Rule 3.10, effective immediately, and no formal order pursuant to Rule 3.1312 or any other notice is required as the tentative ruling affords sufficient notice to the parties.

Filed 10/15/19 Rosenstiel v. Alpha Beta Gamma Trust CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

SCOTT ERIC ROSENSTIEL,

Plaintiff and Appellant,

v.

ALPHA BETA GAMMA TRUST,

Defendant and Respondent.

B286688

(Los Angeles County

Super. Ct. No. BC615215)

APPEAL from an order of the Superior Court of Los Angeles County, Gregory W. Alarcon, Judge. Appeal dismissed.

Law Office of Robert L. Bachman and Robert L. Bachman for Plaintiff and Appellant.

No appearance for Defendant and Respondent.

____________________________

Scott Eric Rosenstiel appeals from an order after entry of default judgment against Alpha Beta Gamma Trust. We dismiss the appeal for lack of jurisdiction.

FACTUAL AND PROCEDURAL BACKGROUND

1. Rosenstiel’s and the Zielkes’ Actions
2.
On January 27, 2016 Rosenstiel filed a derivative action (L.A. No. BC608565) on behalf of Federal Homeowners Relief Foundation, a trust, seeking, among other relief, to quiet title to real property located in Sunland. His operative first amended complaint, filed July 15, 2016, named as defendants Gunter Zielke and his wife, Prapapun Zielke; Sunland Financial Services; Marsha Stern, Rosenstiel’s grandmother, as managing trustee of Federal Homeowners Relief Foundation; and Maximilian Joachim Sandor.

On March 29, 2016 Rosenstiel filed another action (L.A. No. BC615215) to quiet title to the Sunland property—this time as Federal Homeowners Relief Foundation’s lessee to protect his leasehold interest—and to assert additional causes of action. Alpha Beta Gamma Trust was the sole defendant.

On July 28, 2016 the Zielkes filed their own action (L.A. No. BC628570) to quiet title to the Sunland property, as well as to bring other claims. The Zielkes named as defendants Rosenstiel, Stern in her individual capacity and as trustee of Federal Homeowners Relief Foundation, Randall Alan Alford and Andrew J. Stern.

3. Entries of Default and Default Judgment Against Alpha Beta Gamma Trust
4.
On August 5, 2016, in L.A. No. BC615215, Rosenstiel filed a request for entry of default against Alpha Beta Gamma Trust, and the court clerk entered its default on the same day. On September 22, 2016 the trial court held a default prove-up hearing and heard Rosenstiel’s testimony. Alpha Beta Gamma Trust did not appear. After taking the matter under submission, the court, on September 26, 2016, entered a default judgment against Alpha Beta Gamma Trust. The court’s findings included that Gunter was the settlor-beneficiary of Alpha Beta Gamma Trust and Prapapun its trustee.

3. The Zielkes’ Motion To Relate and Consolidate Cases; Sandor’s Motion To Set Aside the Default and Default Judgment Against Alpha Beta Gamma Trust; and Gunter’s Motion To Dismiss

On February 17, 2017, in L.A. No. BC608565, the Zielkes moved to relate eight cases and to consolidate several of them, all involving Rosenstiel or Stern and ownership of the Sunland property. The Zielkes subsequently identified eight additional cases as related to Rosenstiel’s case.

On March 21, 2017 the trial court heard the Zielkes’ motion to relate and consolidate cases. The court granted the Zielkes’ motion to relate cases and ordered all 16 cases, including L.A. No. BC615215, be deemed related and reassigned to its department. It also granted the motion to consolidate and ordered Rosenstiel’s case, L.A. No. BC608565, “to be the lead case number and case caption.” The parties were also “ordered to file all future documents as to any of the above cases using that case number and caption.”

On April 25, 2017 Sandor, in both his individual capacity and as trustee of the Alpha Beta Gamma Trust, moved, pursuant to Code of Civil Procedure section 473, subdivision (b), to set aside the September 26, 2016 default judgment that had been entered in L.A. No. BC615215 against Alpha Beta Gamma Trust. Among other reasons, he asserted, although he was Alpha Beta Gamma Trust’s trustee, he had not been named a defendant or served with the summons and complaint.

Rosenstiel filed an opposition in L.A. No. BC615215 to Sandor’s motion to set aside the default and default judgment against Alpha Beta Gamma Trust; his arguments included the motion was untimely filed on April 25, 2017. He also filed a motion to strike Sandor’s motion on the ground Alpha Beta Gamma Trust was a business trust and could not appear in any California court until it paid all outstanding franchise taxes.

On September 1, 2017 Gunter moved to dismiss L.A. No. BC608565 for delay in prosecution and to allow the Zielkes’ case, L.A. No. BC628570, to become the lead case.

4. The Trial Court’s November 1, 2017 Order and the Instant Appeal

On November 1, 2017 the trial court heard Gunter’s motion to dismiss for failure to prosecute; Sandor’s motion to set aside the September 26, 2016 default judgment entered against Alpha Beta Gamma Trust pursuant to section 473, subdivision (b); Rosenstiel’s motion to strike the motion to set aside the default judgment against Alpha Beta Gamma Trust; and other matters, including an order to show cause as to the propriety of a section 170.6 peremptory challenge by Stern. Rosenstiel did not appear. As indicated by the November 1, 2017 minute order, the trial court ruled as follows: “Motion to dismiss is GRANTED”; “Motion to set aside default and default judgment, if entered, is GRANTED pursuant to CRC 3.110(h) for failure to proceed/prosecute”; “The Court orders the CCP 170.6 Peremptory Challenge stri[c]ken this date. . . .”; “Pursuant to the above rulings, all other matters set for hearing today are placed off calendar as moot”; and “Ms. Murphy [counsel for the Zielkes and for Sandor, in his individual capacity and as trustee of Alpha Beta Gamma Trust] to give notice.”

On November 8, 2017, in L.A. No. BC608565, the attorney for the Zielkes and for Sandor filed a notice of ruling for the November 1, 2017 hearing. According to the notice of ruling, Gunter “made an oral motion to dismiss Plaintiff’s request for Default against any and all parties in the instant case pursuant to California Rule of Court 3.110h”; Gunter’s motion was
“granted by the Court and Plaintiff Eric Rosenstiel’s default against any and all parties was dismissed by the Court.” The notice continued, “The request for default being dismissed, the motion by Maximilion Sandor as Trustee of the Alpha Beta Gamma Trust, pursuant to California Code of Civil Procedure § 473(b) to set aside the default judgment entered against Alpha Beta Gam[m]a Trust became moot.” It also stated, “Defendant Gunter Zielke’s Motion to Dismiss for Failure to Prosecute was granted and the case dismissed.”

Rosenstiel filed in L.A. No. BC615215 a notice of appeal of an order after judgment, which attached a copy of the court’s November 1, 2017 minute order.

DISCUSSION

1. We Have No Jurisdiction To Consider Rosenstiel’s Appeal of the Trial Court’s Order Relating to Sandor’s Section 473, Subdivision (b), Motion To Set Aside Default
2.
On appeal Rosenstiel urges us to reverse the trial court’s order granting Sandor’s motion to set aside the default judgment entered against Alpha Beta Gamma Trust because the motion was filed outside the six-month “limitation period” set forth in section 473, subdivision (b), and was not timely served. He also challenges Sandor’s assertion the default judgment should be set aside because he, as Alpha Beta Gamma Trust’s trustee, had not been named a defendant or served with the summons and complaint. Rosenstiel contends Alpha Beta Gamma Trust is a business trust, which can sue and be sued independently of its trustee.

Because Rosenstiel’s appeal is not based on an appealable order after judgment, we lack jurisdiction to consider the appeal. (See Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 21 [“a reviewing court lacks jurisdiction on direct appeal in the absence of an appealable order or judgment”]; accord, Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 696.)

Rosenstiel’s arguments on appeal incorrectly assume the trial court granted Sandor’s section 473, subdivision (b), motion to set aside the default judgment against Alpha Beta Gamma Trust, which would be an appealable order under section 904.1, subdivision (a)(2). (Younessi v. Woolf (2016) 244 Cal.App.4th 1137, 1143.) As established by the record, however, the trial court did not grant Sandor’s section 473, subdivision (b), motion; it placed it off calendar as moot. A postjudgment order placing a motion off calendar is not appealable. (See Lakin v. Watkins Associated Industries (1993) 6 Cal.4th 644, 651-652 [to be appealable, a postjudgment order “‘must either affect the judgment or relate to it by enforcing it or staying its execution’”]; Guardianship of Walters (1951) 37 Cal.2d 239, 244 [“[a]n off-calendar order . . . does not divest the court of the jurisdiction which it has acquired”]; M.G. Chamberlain & Co. v. Simpson (1959) 173 Cal.App.2d 263, 281 & fn. 1 [concluding order made after entry of judgment and placing motion off calendar is nonappealable]; see also Barnes v. Litton Systems, Inc. (1994) 28 Cal.App.4th 681, 685 [“an essential element of an appealable postjudgment order is one which is not preliminary to later proceedings”]; R & A Vending Services, Inc. v. City of Los Angeles (1985) 172 Cal.App.3d 1188, 1193-1194 [off calendar “‘is not synonymous with “dismissal”’” and “‘merely means a postponement’”].)

3. The Trial Court’s November 1, 2017 Order Did Not Dismiss Rosenstiel’s Case Against Alpha Beta Gamma Trust
4.
In addition to challenging the nonexistent ruling granting Sandor’s section 473, subdivision (b), motion to set aside the default judgment entered against Alpha Beta Gamma Trust, Rosenstiel argues the court erred in dismissing his action against the trust pursuant to California Rules of Court, rule 3.110(h). No such dismissal of L.A. No. BC615215 occurred. As discussed, the trial court on November 1 granted Gunter’s motion to dismiss, which requested dismissal only of L.A. No. BC608565, not all the cases related to and/or consolidated with it (including L.A. No. BC615215). Indeed, the Los Angeles Superior Court case summary included in the clerk’s transcript on appeal shows the status of L.A. No. BC615215 as of July 9, 2018—eight months after the court’s November 1, 2017 order—as “Default Judgment after Prove-up 09/26/2016.” Once again, Rosenstiel has failed to establish an appealable postjudgment order.

DISPOSITION

The appeal is dismissed for lack of jurisdiction.

PERLUSS, P. J.

We concur:

SEGAL, J. FEUER, J.

Filed 10/15/19 Bray v. Jackson CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

LAURACK D. BRAY,

Defendant and Appellant,

v.

DIANNE JACKSON,

Petitioner and Respondent.

B292049

(Los Angeles County

Super. Ct. No. TS019800)

APPEAL from an order of the Superior Court of Los Angeles County, A. Veronica Saucedo, Temporary Judge. Affirmed.

Laurack D. Bray, in pro. per., for Appellant.

Heather Shook and Mallory Sepler-King for Respondent Dianne Jackson.

_________________________

Appellant Laurack Bray appeals from the extension of the restraining order issued to protect respondent Dianne Jackson. Because the record supports the trial court’s decision to extend the order, we affirm.

FACTUAL AND PROCEDURAL HISTORY

Laurack Bray (Bray) and Dianne Jackson (Jackson) are brother and sister. They have been involved in a series of disputes over a period of years, resulting in litigation.

In 2016, Jackson sought and obtained a restraining order, on behalf of herself as a protected elder, as well as her mother. (Welf. & Inst. Code, § 15657.03.) Bray did not oppose the entry of the order as to Jackson, but did oppose the order as to their mother. Bray did not appeal the order.

The 2016 order expired by its terms in June 2018. In May 2018, Jackson filed a request to renew the order. Although the initial order had limited the stay-away provisions to two yards, as the parties were then living in the same house, the renewal requested that the stay-away be extended to 200 yards. In support of the extension request, Jackson supplied information outlining events she believed to be violations of the prior order, as well as the circumstances supporting her belief that the behavior she described would continue to cause her distress and harm.

Bray opposed the renewal. He asserted that both the prior order and the renewal request were predicated on lies. He also requested that the trial court conduct a factual investigation with respect to one of Jackson’s allegations, but did not provide any evidence, other than his denial, that the allegation was incorrect.

The matter came before the trial court for a hearing on July 2, 2018. Both parties testified and the court renewed the order, increasing the stay-away to 100 yards, and extending its effective date until July 2, 2023. Bray appealed.

DISCUSSION

1. We Review the Extension for Abuse of Discretion
2.
Protective orders for elder adults are governed by Welfare and Institutions Code section 15657.03, which provides, in subdivision (b)(4)(A), that the court may enjoin a party “from abusing, intimidating, molesting, attacking, striking, stalking, threatening, sexually assaulting, battering, harassing, telephoning, including, but not limited to, making annoying telephone calls as described in Section 653m of the Penal Code, destroying personal property, contacting, either directly or indirectly, by mail or otherwise, or coming within a specified distance of, or disturbing the peace of, the petitioner, and, in the discretion of the court, on a showing of good cause, of other named family or household members or a conservator, if any, of the petitioner.”

“[T]he issuance of a protective order under the Elder Abuse Act is reviewed for abuse of discretion, and the factual findings necessary to support such a protective order are reviewed under the substantial evidence test. [¶] We resolve all conflicts in the evidence in favor of respondent, the prevailing party, and indulge all legitimate and reasonable inferences in favor of upholding the trial court’s findings. [Citation] Declarations favoring the prevailing party’s contentions are deemed to establish the facts stated in the declarations, as well as all facts which may reasonably be inferred from the declarations; if there is a substantial conflict in the facts included in the competing declarations, the trial court’s determination of the controverted facts will not be disturbed on appeal. [Citation.]” (Bookout v. Nielsen (2007) 155 Cal.App.4th 1131, 1137-1138 [because language of 15657.03 is identical to language in the Domestic Violence Protection Act (Fam. Code, § 6200 et seq.), the same standard of review applies].) The challenging party must show that the trial court abused its discretion in issuing the order. (Bookout, supra, 155 Cal.App.4th at p. 1140.)

A protective order under this statute “may issue on the basis of evidence of past abuse, without any particularized showing that the wrongful acts will be continued or repeated.” (Gdowski v. Gdowski (2009) 175 Cal.App.4th 128, 137; Rodriguez v. Menjivar (2015) 243 Cal.App.4th 816, 823.) The trial court’s findings are to be made by a preponderance of the evidence. (Gdowski, supra, 175 Cal.App.4th at p. 137, see also Bookout, supra, 155 Cal.App.4th at p. 1138.)

Here, the trial court heard the testimony of both parties, and found Jackson to be credible, and her apprehension of continued harassment reasonable. We defer to the trial court’s findings on credibility. We analyze whether “there is any substantial evidence, contradicted or uncontradicted, which supports the finding.” (Kimble v. Board of Education (1987) 192 Cal.App.3d 1423, 1427.) An appellate court is “without power to judge the effect or value of the evidence, weigh the evidence, consider the credibility of witnesses, or resolve conflicts in the evidence or in the reasonable inferences that may be drawn therefrom.” (Ibid.) Here Jackson’s testimony, despite Bray’s assertion that she was untruthful, provides substantial evidence that supports the trial court’s decision.

3. Jackson Was Not Required to Prove New Facts to Obtain an Extension of the Order
4.
Renewal of a previous order does not require a showing of further abuse after the initial order was issued. (§ 15657.03, subd. (i)(1).) In Gordon B. v. Gomez (2018) 22 Cal.App.5th 92, the trial court refused to renew a section 15657.03 protective order because the behavior of the restrained person had improved, and there had been no incidents since the service of the order. The Court of Appeal reversed, relying on cases interpreting the “virtually identical” language of the domestic violence law, and holding that no showing of additional abuse since the issuance of the original order was required to obtain a renewal. (Gomez, supra, 22 Cal.App.5th at pp. 207-208.)

To make the required finding that the protected party’s fear is reasonable, the trial court must determine that the risk of future abuse is more probable than not. To do so, the court looks to the findings underlying the original order, and “whether there have been ‘any significant changes in circumstances’ by asking, for example, ‘have the restrained and protected parties moved on with their lives so far that the opportunity and likelihood of future abuse has diminished to the degree they no longer support a renewal of the order?” (Gomez, supra, 22 Cal.App.5th at p. 208, quoting Ritchie v. Konrad (2004) 115 Cal.App.4th 1275, 1291.) (See also Lister v. Bowen (2013) 215 Cal.App.4th 319, 333; Cueto v. Dozier (2015) 241 Cal.App.4th 550, 559-560.)

Jackson’s testimony, found credible by the trial court, provided substantial evidence that the parties have not moved on with their lives. Jackson demonstrated that Bray violated the prior order, and that he continued to spend time near the house in which Jackson was working, at the facility where their mother lived when Jackson was present, and even in line at the courthouse. Based on that evidence, a reasonable person would conclude, as did the trial court and Jackson, that the opportunity and likelihood of future abuse had not diminished.

This case stands in contrast to In re Marriage of Martindale & Ochoa (2018) 30 Cal.App.5th 54, on which Bray relied. There, the evidence at the hearing showed that the restrained person not only had not violated the prior order, but had intentionally avoided contact with the protected person, even leaving promptly when he became aware that he was inadvertently near the protected person. (Id. at p. 61.) The facts here show that the opposite is true; Bray has not shown any abuse of discretion.

5. Bray Cannot Challenge the Prior Order in This Proceeding
6.
Both in the trial court, and in his briefing to this Court, Bray argues that the order should not have been renewed, as the prior order was based on lies. He cannot do so. As a matter of law, a party to renewal proceedings cannot challenge the evidence or findings on which the prior order was based. (Lister, supra, 215 Cal.App.4th at p. 333.)

7. Bray Was Not Denied Due Process Because of a Biased Adjudicator
8.
Bray argues that he was denied due process because the trial court was biased against him. He cites as evidence that the trial court failed to challenge Jackson on what Bray characterizes as her lies, and failed to do the investigation he requested concerning one of Jackson’s allegations. In addition, he claims the extension of the stay-away zone from two yards to one hundred yards was without any evidentiary support and therefore demonstrated bias.

The record does not support these arguments. The trial court questioned both parties during their presentations, in an apparent attempt to clarify and understand that testimony. The trial court also explained to Bray that the trial court did not conduct independent investigations of matters challenged by a party.

Moreover, the arguments, even if supported by the record, do not establish bias. “Potential bias and prejudice must clearly be established [citation] and statutes authorizing disqualification of a judge on grounds of bias must be applied with restraint. [Citation.] ‘Bias or prejudice consists of a “mental attitude or disposition of the judge towards [or against] a party to the litigation. . . .”’ [Citations.] Neither strained relations between a judge and an attorney for a party nor ‘[e]xpressions of opinion uttered by a judge, in what he conceived to be a discharge of his official duties, are . . . evidence of bias or prejudice.’” (Roitz v. Coldwell Banker Residential Brokerage Co. (1998) 62 Cal.App.4th 716, 724.) Thus, a party cannot premise a claim of bias on a judge’s statements made in his or her official capacity (Jack Farenbaugh & Son v. Belmont Construction, Inc. (1987) 194 Cal.App.3d 1023, 1031); a judge’s substantive opinion on the evidence (Kreling v. Superior Court (1944) 25 Cal.2d 305, 312); or the judge’s ruling—even erroneously—against him. (McEwen v. Occidental Life Ins. Co. (1916) 172 Cal. 6, 11.)

DISPOSITION

The order is affirmed. Respondent is to recover her costs on appeal.

ZELON, J.

We concur:

PERLUSS, P. J.

SEGAL, J.

Filed 10/15/19 McMillan v. Exir Co., Inc. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

RICHARD V. MCMILLAN,

Plaintiff and Appellant,

v.

EXIR CO., INC., et al.,

Defendants and Respondents.

G056576

(Super. Ct. No. 30-2012-00564599)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, David R. Chaffee, Judge. Affirmed.

Richard V. McMillan in pro. per., for Plaintiff and Appellant.

Law Office of Victor W. Luke and Victor W. Luke for Defendants and Respondents.

* * *

Plaintiff Richard V. McMillan prevailed in a private nuisance action against defendants Exir Co., Inc., and Abraham Nassiri Mourshaki for erosion of land on plaintiff’s property due to water flow from defendants’ property. In a prior opinion, we affirmed the jury’s finding of liability in favor of plaintiff, but determined the verdict form was fatally ambiguous because the jury awarded $655,000 in damages against each defendant, but it was not clear whether they jointly owed $655,000, or whether each severally owed $655,000. We reversed the damages award and remanded for a new trial solely on the issue of damages. (McMillan v. Exir Co., Inc. (Nov. 8, 2016, G051982, G051985) [nonpub. opn.].)

On retrial, defendants introduced new evidence—which the court described as “dramatically revealing”—that most of the water damage to plaintiff’s property was from a different source. As a result, after a bench trial the court awarded plaintiff substantially less than the award in the first trial: $53,524. The sole issue on appeal is whether the court properly admitted evidence on defendants’ new theory of causation.

The court did not err. We remanded for a completely new trial on damages. A defendant is liable for only those damages the defendant caused, and thus it is impossible to have a trial on damages without addressing causation. In a completely new trial on damages, the defendants were free to argue they should be liable for less than the amount awarded by the first jury. Accordingly, we affirm the judgment.

FACTS

We begin with a note about the record. In the prior opinion we observed that the story of this case—the various water flows, streams, creeks, contiguous land parcels, trenches, walls, culverts, etc.,—was largely a visual story told with the assistance of maps and photographs. Neither party provided us those visual aids on appeal, which hampered our ability to reconstruct the facts. (McMillan v. Exir Co., Inc., supra, G051982, G051985.) Notwithstanding our prior admonishment, the parties have once again failed to provide any visual aids to help us reconstruct the facts. In particular, the second trial seemed to turn largely on exhibit No. 108, which the court described as “dramatically revealing” and placed at the center of its analysis. From various places in the record we have pieced together that exhibit No. 108 is a video taken by a neighbor of a flood event at the heart of this case. However, we do not have a copy of the video in our record. So we are once again hamstrung in our ability to reconstruct the details of what occurred. Given the absence of a helpful record, together with the fact that the issue on appeal does not turn on a detailed factual account, we provide here only a very general overview of the facts.

This case concerns three contiguous parcels of land on a hill. At the highest elevation was the Lin property (the owner of which is not a party to this lawsuit). Defendants’ property was below the Lin property. Plaintiff’s property was below defendants’ property, toward the bottom of the hill. Williams Canyon Creek ran across plaintiff’s property. Historically, water from the higher properties would flow sheet-style at a gentle gradient down the hill, ultimately draining into the creek. (McMillan v. Exir Co., Inc., supra, G051982, G051985.)

In 2007 and 2008 a double-whammy hit: a brush fire destroyed much of the vegetation on the Lin property (the highest elevation), followed by abnormally heavy rainfall. The increased water flow to defendants’ property apparently prompted them to make certain changes to their property that interrupted the historic sheet-flow of the water down the hill to plaintiff’s property. This, according to plaintiff, had dramatic consequences two years later when, in December 2010, the rainfall was so heavy that it created a 100-year flood (i.e., a flood so intense that it is likely to occur only once in 100 years). The gist of plaintiff’s claim is that the changes defendants made to their property altered the natural drainage of water so as to concentrate the flow of water onto plaintiff’s property, resulting in erosion of the creek bank (i.e., widened the creek), which deprived plaintiff of available land. Also, plaintiff claimed defendants erected a concrete wall that encroached on his property. (McMillan v. Exir Co., Inc., supra, G051982, G051985.)

Plaintiff sued defendants for private nuisance and trespass. A jury found in favor of plaintiff and against both defendants, awarding the identical amount of $655,000 in damages against each defendant for private nuisance. It also awarded an identical $1,750 in trespass damages against each defendant. On appeal, we generally affirmed the judgment as to the liability finding, but we determined the verdict was hopelessly ambiguous as to whether the defendants were each liable for $656,750, for a total of $1,313,500, or whether they were jointly and severally liable for a total of $656,750. Although plaintiff suggested that the jury likely meant the defendants were jointly and severally liable for $1,313,500, we concluded we could not correct the award in that manner under our high court’s holding in Aynes v. Winans (1948) 33 Cal.2d 206. Accordingly, we reversed the judgment and remanded the cause “for a new trial on the issue of damages only.” In all other respects, we affirmed the judgment. (McMillan v. Exir Co., Inc., supra, G051982, G051985.) Plaintiff did not petition for rehearing or petition for review to the California Supreme Court.

On remand the parties agreed to a bench trial. Defendants introduced the testimony of Jamie Davis, an owner of land upstream from plaintiff along the Williams Canyon Creek. She apparently did not testify in the first trial. She was present for the catastrophic flood in December 2010 and took a video of it, which was played at trial. Although we do not have the video, it apparently shows an enormous amount of water rushing down Williams Canyon Creek—which is not on defendants’ property—toward plaintiff’s property. Moreover, Davis testified that she did not see any water coming down the hill from defendant’s property toward plaintiff’s property, and that she would have noticed any such flows because they would have been so unusual. Davis testified that the water she observed on plaintiff’s property was “largely, if not exclusively, from . . . Williams Canyon.” Plaintiff objected to the video on relevance grounds, but the court overruled it. Based on this evidence, defendants’ expert opined that damage to plaintiff’s property along the Williams Canyon Creek bank was largely caused by water from upstream rather than water from defendants’ property.

Ultimately, the court agreed, describing exhibit No. 108 as “a dramatically revealing exhibit regarding the course of the water flow in the December 2010 rainstorms that devastated the area.” The court concluded, “From the evidence, it is clear that a substantial amount of the damages to [plaintiff’s] property was caused by the upstream flow of water coming down Williams Canyon Creek during the December 2010 rainstorm. Again, see exhibit [No.] 108.”

However, recognizing our prior opinion limited the issue to damages, the court found that defendants damaged a more limited area of plaintiff’s property. The court ultimately concluded it would cost $53,524 to repair those damages and entered judgment on that amount against defendants jointly and severally. Plaintiff timely appealed.

DISCUSSION

Did the court err in admitting causation evidence that was not presented in the first trial? No. The law on this issue is well settled.

“The effect of an unqualified reversal . . . is to vacate the judgment, and to leave the case ‘at large’ for further proceedings as if it had never been tried, and as if no judgment had ever been rendered.” (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 869, p. 928.) “An unqualified partial reversal has the same effect on the part reversed as an unqualified general reversal.” (Id. § 888, p. 950, italics added.) “The parties are entitled to retry the issues anew—meaning they can present any evidence in support of or against the allegations in the complaint. An unqualified reversal cannot restrict the presentation of evidence on remand.” (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2018) § 14:143, p. 14-47.) “The reversal and remand also reopens the time for discovery so that the last date for completing discovery as of right (pursuant to [Code of Civil Procedure section] 2024.020) is 15 days before the date initially set for the new trial of the action.” (Id. § 14:144.1, p. 14-47.) As our high court explained, “In the typical case, when a new trial is required, the nature and scope of the issues will have been affected, requiring substantial investigation of new points or issues that were not adequately addressed in the original proceedings. The parties are afforded a trial de novo, along with ‘“the right to introduce any evidence on the issue involved, not only the evidence introduced at the prior trial but also any additional and new evidence.”’” (Fairmont Ins. Co. v. Superior Court (2000) 22 Cal.4th 245, 253.)

Although the rules above are subject to an exception where the appellate court’s clear intent is to disallow any further trial (Stromer v. Browning (1968) 268 Cal.App.2d 513, 518-519), here we explicitly ordered a new trial on damages without limitation. If plaintiff thought we should have issued a more tailored remand order, he could have sought such an order in a petition for rehearing, but he did not. (See English v. Olympic Auditorium, Inc. (1935) 10 Cal.App.2d 196, 201 [“If a court of review inadvertently omits to include in its instructions to a trial court upon the reversal of a judgment essential elements within the issues necessarily determined on the appeal, the aggrieved party has his remedy in a petition for rehearing. A trial court may not exceed the specific directions of a court of review in remanding a cause after a reversal of the judgment on appeal and add thereto conditions which it assumes the reviewing court should have included”].) Given our disposition, based on the principles above, the court correctly held an entirely new trial on damages. Plainly, this entitled defendants to argue that the damages they caused were less than the amount award by the first jury. (See Gararden v. Olinger (1960) 177 Cal.App.2d 309, 311 [“in granting the retrial as to damages, the court did not curtail its power to determine, either upon additional evidence or upon fresh consideration of the evidence already produced, the causal connection between defendants’ acts and damages”].) On the other hand, it also entitled plaintiff to seek more than awarded by the first jury. Ultimately, the court was required to make its determination based on evidence properly admitted in the second trial, which it did.

Plaintiff’s only response to this is to argue that our partial affirmance enshrined the jury’s prior factual findings on causation, resulting in law of the case. But we find nothing in our prior opinion to support that reading. Moreover, it has long been held that the law-of-the-case doctrine applies only to legal principles, not factual findings. (Sneed v. Osborn (1864) 25 Cal. 619, 629 [“If this Court states the evidence in a cause, whether correctly or incorrectly, the statement in no manner controls the Court below, and cannot prejudice the parties, where a new trial is had. It is upon questions of law, that the decision of the appellate Court becomes the law of the case, and not upon questions of fact”]; Investors Equity Life Holding Co. v. Schmidt (2015) 233 Cal.App.4th 1363, 1368-1369 [“The doctrine of law of the case applies only to legal principles applied on appeal; it has no application to factual determinations”].) There was no error.

DISPOSITION

The judgment is affirmed. Defendants shall recover their costs incurred on appeal.

IKOLA, J.

WE CONCUR:

O’LEARY, P. J.

FYBEL, J.

Case Name: Seyed Sadeghi v. Geico General Insurance Company
Case No.: 2019-CV-349725

Demurrer to the Complaint by Defendant Geico General Insurance Company

Factual and Procedural Background

This is a declaratory relief action. Plaintiff Seyed Sadeghi (“Plaintiff”) and defendant Geico General Insurance Company (“GEICO” or “Defendant”) entered into an insurance contract concerning GEICO’s promise to pay uninsured motorist benefits. (Complaint at ¶¶ 7-8.) In particular, the contract promised that “[GEICO] will pay damages for bodily injury to an insured, caused by accident which the insured is legally entitled to recover from the owner or operator of an uninsured motor vehicle, underinsured vehicle, or a hit-and-run motor vehicle arising out of the ownership, maintenance or use of that motor vehicle.” (Id. at ¶ 8.)

In addition, the contract provides that if the parties “do not agree that [the insured] is legally entitled to recover damages under this Coverage from the owner or operator of an uninsured/underinsured motor vehicle because of bodily injury to the insured, or do not agree as to the amount payable, either party will have the right to demand arbitration.” (Complaint at ¶ 9.) The contract concludes that “[t]he matter(s) in dispute shall then be settled according to American Arbitration Association (“AAA”) rules. One neutral arbitrator will conduct the arbitration.” (Ibid.) The arbitrator shall decide Plaintiff’s damages caused by the third party without knowledge of the applicable policy limits. (Id. at ¶ 14.)

On November 30, 2016, Plaintiff sustained injuries in a hit and run incident. (Complaint at ¶¶ 15-23.) On April 3, 2018, GEICO sent a letter stating it found no liability on the hit and run vehicle and denied Plaintiff’s claim. (Id. at ¶ 26.)

On April 1, 2019, Plaintiff demanded arbitration be conducted by a single neutral arbitrator selected jointly by the parties. (Complaint at ¶ 28.) GEICO however stated the terms of the contract mandate that arbitration be conducted using AAA. (Id. at ¶¶ 29, 34.) Plaintiff is not agreeable to using AAA and insists the policy provision is void and must be ignored in favor of the terms of the Insurance Code and California Arbitration Act. (Id. at ¶¶ 30-31.)

Plaintiff also demands that GEICO not disclose available policy limits to any arbitrator selected per the terms of the policy and prevailing law. (Complaint at ¶ 35.) Conversely, GEICO insists it will disclose policy limits to the selected arbitrator and not allow the issue to be resolved by motion in limine. (Ibid.)

On June 7, 2019, Plaintiff filed a Complaint against GEICO alleging a cause of action for declaratory relief.
Demurrer to the Complaint

Currently before the Court is a demurrer by defendant GEICO to the Complaint on the grounds of uncertainty and failure to state a cause of action. (Code Civ. Proc., § 430.10, subds. (e), (f).) GEICO filed a request for judicial notice in conjunction with the motion. Plaintiff filed written opposition. GEICO filed reply papers.

Meet and Confer

As a preliminary matter, the Court notes defendant GEICO did not meet and confer with Plaintiff with respect to issues regarding the demurrer before filing the motion.

Before filing a demurrer, a demurring party must “meet and confer in person or by telephone” with the opposing party to determine “whether an agreement can be reached that would resolve the objections to be raised in the demurrer.” (Code Civ. Proc., § 430.41, subd. (a).) This conference should occur at least five days before the deadline to file. (Code Civ. Proc., § 430.41, subd. (a)(2).)

When filing the demurrer, the demurring party must include a declaration stating either “the means by which the demurring party met and conferred with [the other party] and that the party did not reach an agreement resolving the objections raised in the demurrer” or “[the other party] failed to respond to the meet and confer request of the demurring party or otherwise failed to meet in good faith.” (Code Civ. Proc., § 430.41, subd. (a)(3).) A court’s determination that the meet and confer process was insufficient is not a ground to sustain or overrule a demurrer. (Code Civ. Proc., § 430.41, subd. (a)(4).)

Here, counsel for GEICO did not submit any declaration to the Court showing efforts to meet and confer with Plaintiff on issues related to the demurrer. However, because a deficient meet and confer process is not a ground to sustain or overrule a demurrer, the Court will consider the merits of the motion. Counsel for GEICO is admonished to comply with court rules and procedures with respect to future filings.

Request for Judicial Notice

In support of the motion, defendant GEICO requests judicial notice of the American Arbitration Association’s Consumer Arbitration Rules, which are available online at https://www.adr.org/activerules. (See Request for Judicial Notice at Ex. A.) The request for judicial notice is unopposed. The Court may take judicial notice of these rules under Evidence Code section 452, subdivision (h). (See Boghos v. Certain Underwriters at Lloyd’s of London (2005) 36 Cal.4th 495, 505, fn. 6 [California Supreme Court takes judicial notice of AAA’s commercial arbitration rules under Evidence Code section 452, subdivision (h); see also Century City Medical Plaza v. Sperling, Isaacs & Eisenberg (2001) 86 Cal.App.4th 865, 869-870 [appellate court takes judicial notice of AAA Rules under Evidence Code section 452, subdivisions (g) and (h)].) Furthermore, the request appears relevant to issues raised in the demurrer. (See Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 748, fn. 6 [a court need not take judicial notice of a matter unless it “is necessary, helpful, or relevant”].)

Accordingly, the request for judicial notice is GRANTED.

Legal Standard

“In reviewing the sufficiency of a complaint against a general demurer, we are guided by long settled rules. ‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. We also consider matters which may be judicially noticed.’” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “A demurrer tests only the legal sufficiency of the pleading. It admits the truth of all material factual allegations in the complaint; the question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court.” (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213–214.)

“The reviewing court gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded. The court does not, however, assume the truth of contentions, deductions or conclusions of law. … [I]t is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. And it is an abuse of discretion to sustain a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment.” (Gregory v. Albertson’s, Inc. (2002) 104 Cal.App.4th 845, 850.)

Complaint for Declaratory Relief

Defendant GEICO demurs to the Complaint on the grounds of uncertainty and failure to state a cause of action.

Uncertainty

Defendant GEICO demurs to the Complaint for declaratory relief on the ground of uncertainty.

Uncertainty is a disfavored ground for demurrer; it is typically sustained only where the pleading is so unintelligible and uncertain that the responding party cannot reasonably respond to or recognize the claims alleged against it. (See Khoury v. Maly’s of Cal., Inc. (1993) 14 Cal.App.4th 612, 616.) “[T]he failure to specify the uncertain aspects of a complaint will defeat a demurrer based on the grounds of uncertainty.” (Fenton v. Groveland Community Services Dist. (1982) 135 Cal.App.3d 797, 809, overruled on other grounds by Katzberg v. Regents of University of California (2002) 29 Cal.4th 300, 328, fn. 30.)

Here, defendant GEICO’s memorandum of points and authorities fails to directly address the ground of uncertainty. Defendant does not present any argument demonstrating the declaratory relief cause of action is so unintelligible and uncertain that it cannot reasonably respond to or recognize the claim asserted against it. Instead, defendant GEICO challenges the declaratory relief claim on the ground that it fails to state a valid cause of action. The law however is settled that “[a] special demurrer for uncertainty is not intended to reach the failure to incorporate sufficient facts in the pleading but is directed at the uncertainty existing in the allegations actually made.” (Butler v. Sequeira (1950) 100 Cal.App.2d 143, 145-146.)

Accordingly, the demurrer to the Complaint on the ground of uncertainty is OVERRULED.

Failure to State a Cause of Action

The Complaint alleges a single claim for declaratory relief.

“Code of Civil Procedure section 1060 authorizes actions for declaratory relief under a ‘written instrument’ or ‘contract.’ Declaratory relief generally operates prospectively to declare future rights, rather than to redress past wrongs. [Citations.] It serves to set controversies at rest before they lead to repudiation of obligations, invasion of rights or commission of wrongs. In short, the remedy is to be used in the interests of preventative justice, to declare rights rather than execute them. [Citations.]” (Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 909 (Jolley).)

To qualify for declaratory relief, a party must present two essential elements: (1) a proper subject of declaratory relief; and (2) an actual controversy involving justiciable questions relating to the party’s rights or obligations. (Jolley, supra, 213 Cal.App.4th at p. 909.)

“A complaint for declaratory relief is legally sufficient if it sets forth facts showing the existence of an actual controversy relating to the legal rights and duties of the parties under a written instrument or with respect to property and requests that the rights and duties of the parties be adjudged by the court. [Citations.] If these requirements are met and no basis for declining declaratory relief appears, the court should declare the rights of the parties whether or not the facts alleged establish that the plaintiff is entitled to favorable declaration. [Citations.]” (Wellenkamp v. Bank of America (1978) 21 Cal.3d 943, 947.)

Here, the Complaint alleges there is an actual controversy between Plaintiff and Defendant: (1) relating to the legal rights and duties of each party under the motor vehicle insurance contract that Plaintiff entered with Defendant on July 1, 2016; (2) concerning their respective rights, duties, and obligations in the insurance contract with regard to the parties submitting the underlying matters to arbitration only through AAA services and not through a joint selection of a neutral arbitrator as required by Insurance Code section 11580.2; and (3) concerning their respective rights, duties, and obligations in the insurance contract with regard to whether GEICO can disclose to the selected arbitrator the applicable policy limits. (Complaint at ¶¶ 38-40.)

“A judicial determination of these issues and of the respective duties of Plaintiff and Defendant is necessary and appropriate at this time under the circumstances because this uninsured motorist matter does not appear likely to resolve without arbitration and Plaintiff desires to arbitrate this matter without delay before a jointly selected single neutral arbitrator.” (Complaint at ¶ 41.)

Defendant GEICO argues there is no actual controversy to support declaratory relief. In particular, GEICO contends that, by invoking the policy’s arbitration provision, Plaintiff agreed to be subject to arbitration through AAA and has thus waived any right to challenge the provision’s mandate. By contrast, Plaintiff argues the contractual provision requiring him to submit to AAA arbitration is void and violates Insurance Code section 11580.2(f). Plaintiff therefore claims the parties are required to select a neutral arbitrator and if not seek Court intervention to do so.

But, the Court does not need to consider this argument as it is directed only at a portion of a cause of action. A defendant cannot demur to a portion of a cause of action. (See Financial Corp. of America v. Wilburn (1987) 189 Cal.App.3d 764, 778 [“[A] defendant cannot demur generally to part of a cause of action”] see also PH II, Inc. v. Super. Ct. (1995) 33 Cal.App.4th 1680, 1682 [“A demurrer does not lie to a portion of a cause of action”]; Pointe San Diego Residential Community, L.P. v. Procopio, Cory, Hargreaves & Savitch, LLP (2011) 195 Cal.App.4th 265, 274 [“A demurrer challenges a cause of action and cannot be used to attack a portion of a cause of action”].) As stated above, Plaintiff also alleges an actual controversy exists relating to the legal rights and duties of each party under the motor vehicle insurance contract that Plaintiff entered with Defendant on July 1, 2016. (Complaint at ¶ 38.) The moving papers fail to address this allegation in its entirety in support of the demurrer. Furthermore, Plaintiff alleges an actual controversy exists concerning their respective rights, duties, and obligations in the insurance contract with regard to whether GEICO can disclose to the selected arbitrator the applicable policy limits. (Id. at ¶ 40.) As to this allegation, defendant GEICO argues only that Plaintiff fails to provide any legal basis for this demand. (See Memo of P’s & A’s at p. 7:25-26.) However, as the moving party, it is GEICO’s burden to show this allegation fails to state a cause of action. GEICO does not carry this burden as it fails to present any legal authority in support of its position. (See In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830 [“absence of cogent legal argument or citation to authority allows this court to treat the contentions as waived”]; see also T.P. v. T.W. (2011) 191 Cal.App.4th 1428, 1440, fn. 12 [court may decline to consider argument that is not sufficiently developed and is unsupported by citation to authority].)

Accordingly, the demurrer to the Complaint on the ground that it fails to state a claim is OVERRULED.

Disposition

The request for judicial notice is GRANTED.

The demurrer to the Complaint on the ground of uncertainty is OVERRULED.

The demurrer to the Complaint on the ground that it fails to state a claim is OVERRULED.

Case Name: Ron Bunten, et al. v. Regional Medical Center of San Jose, et al.

Case No.: 18CV325712

Defendant Regional Medical Center of San Jose’s Motion for Summary Judgment, or in the Alternative, Summary Adjudication

Factual and Procedural Background

On or about March 22, 2017, plaintiff Ron Bunten (“Bunten”) employed defendants Regional Medical Center of San Jose (“RMCSJ”), Minimally Invasive Surgical Solutions, Arash M. Padidar, M.D. (“Dr. Padidar”), Raul Guisado, M.D. (“Dr. Guisado”), Scott W. Benninghoven, M.D. (“Dr. Benninghoven”), and Physicians Medical Group of San Jose, Inc. to provide plaintiff Bunten with adequate and complete care and attention as well as with other necessary medical services. (Complaint, ¶15.) Defendants promised and undertook to care for, treat, and advise plaintiff faithfully, skillfully, and carefully. (Id.) Defendants, in their respective care and treatment, failed to exercise that degree of skill and care required of physicians and surgeons, nurses, nurse practitioners, medical technicians and/or assistants, in that said defendants negligently and carelessly, after a diagnosis of vertebral artery dissection, failed to administer IV heparin in a timely manner resulting in severe stroke. (Id.) Once plaintiff had declined neurologically there was a delay in diagnosing he was suffering from an embolic stroke with a corresponding delay in treatment resulting in severe and permanent neurological deficits. (Id.)

On March 28, 2018, plaintiff Bunten, through his guardian ad litem Debra J. Bunten, and plaintiff Cheryl Burgess (“Burgess”), Bunten’s wife, filed a complaint against defendants asserting causes of action for: (1) medical negligence; and (2) loss of consortium.

On May 2, 2018, defendant Dr. Guisado filed an answer to the plaintiffs’ complaint.

On May 9, 2018, defendant Dr. Benninghoven filed an answer to the plaintiffs’ complaint.

On May 17, 2018, defendants Minimally Invasive Surgical Solutions Medical Corporation (erroneously sued as Minimally Invasive Surgical Solutions; hereafter, MISSMC) and Dr. Padidar filed an answer to the plaintiffs’ complaint.

On May 23, 2018, plaintiffs amended their complaint to strike the name Physicians Medical Group of San Jose, Inc. from the complaint and replace it with San Jose Surgical Group (“SJSG”) and to strike the name Minimally Invasive Surgical Solutions from the complaint and replace it with MISSMC.

On June 21, 2018, defendants Dr. Benninghoven and SJSG filed an answer to the plaintiffs’ complaint.

On July 23, 2018, defendant RMCSJ filed its answer to the plaintiffs’ first amended complaint.

On April 23, 2019, plaintiffs dismissed, with prejudice, the complaint against defendants Dr. Padidar and MISSMC.

On July 25, 2019, defendant RMCSJ filed the motion now before the court, a motion for summary judgment/ adjudication of plaintiffs’ complaint.

On August 7, 2019, plaintiffs stipulated, among other things, to the dismissal of defendants Dr. Guisado, Dr. Benninghoven, and SJSG from the complaint with prejudice. The court issued an order to that effect.

Discussion

II. Defendant RMCSJ’s motion for summary judgment/ adjudication is DENIED.

“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 (Ladd).) Medical negligence is still negligence.

With respect to professionals, their specialized education and training do not serve to impose an increased duty of care but rather are considered additional “circumstances” relevant to an overall assessment of what constitutes “ordinary prudence” in a particular situation. Thus, the standard for professionals is articulated in terms of exercising “the knowledge, skill and care ordinarily possessed and employed by members of the profession in good standing ….” [Citation.]

(CACI, No. 500; Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 997 – 998.)

The second cause of action by plaintiff Burgess is for loss of consortium. “While the losses for which damages are sought in a consortium action may properly be characterized as ‘separate and distinct’ from the losses to the physically injured spouse [Citation.], the former are unquestionably dependent, legally as well as causally, on the latter. One spouse cannot have a loss of consortium claim without a prior disabling injury to the other spouse.” (Snyder v. Michael’s Stores, Inc. (1997) 16 Cal.4th 991, 999; see also Danieley v. Goldmine Ski Associates (1990) 218 Cal.App.3d 111, 119.) Plaintiff Burgess’s loss of consortium claim is, therefore, dependent upon plaintiff Bunten’s claim for medical negligence.

In moving for summary judgment, defendant RMCSJ attempts to establish that it did not cause plaintiff Bunten’s injuries. Causation in a medical malpractice case requires expert testimony. “The law is well settled that in a personal injury action causation must be proven within a reasonable medical probability based on competent expert testimony. Mere possibility alone is insufficient to establish a prima facie case. That there is a distinction between a reasonable medical ‘probability’ and a medical ‘possibility’ needs little discussion. There can be many possible ‘causes,’ indeed, an infinite number of circumstances that can produce an injury or disease. A possible cause only becomes ‘probable’ when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action. This is the outer limit of inference upon which an issue may be submitted to the jury. [¶] Thus, proffering an expert opinion that there is some theoretical possibility the negligent act could have been a cause-in-fact of a particular injury is insufficient to establish causation. Instead, the plaintiff must offer an expert opinion that contains a reasoned explanation illuminating why the facts have convinced the expert, and therefore should convince the jury, that it is more probable than not the negligent act was a cause-in-fact of the plaintiff’s injury.” (Jennings v. Palomar Pomerado Health Systems, Inc. (2004) 114 Cal.App.4th 1108, 1117 – 1118; internal citations and punctuation omitted; emphasis original.)

In moving for summary judgment/ adjudication, defendant RMCSJ begins by proffering the following facts: Ronald Bunten presented to the Emergency Room at San Jose Regional via ambulance on March 22, 2017 at 7:03 am. Mr. Bunten fell to the ground at home due to a seizure and lost consciousness. He was alert and oriented on initial presentation in the ER, and complained of neck and left shoulder pain. Mr. Bunten was placed in c-spine precautions with collar.

A CT of the head and cervical spine was completed at approximately 7:20 a.m. and demonstrated a C7 cervical fracture.

Dr. Benninghoven, trauma surgeon, Dr. Yeh, neurosurgeon, and Dr. Guisado, neurologist, were consulted within twenty minutes of the CT being completed.

Dr. Guisado noted equal movements of all four extremities and no sensory loss. He ordered Keppra to manage the seizures.

A CT Angio was completed at approximately 9:20 a.m.

At 11:15 am, Neuro-Interventional Radiology, Adrianna Gutierrez PA, working under Dr. Padidar, noted a vertebral artery dissection with question of possible thrombus on the CT. Ms. Gutierrez recommended IV heparin.

Dr. Yeh documented at noon that if Mr. Bunten has a clot, anticoagulation therapy may be warranted. However, he requested a “better imaging study like an MRI of his head to make sure there is no sort of contusion or injury to his brain that would preclude him from having anticoagulation therapy.”

An MRI was completed and the findings dictated at 1:19 pm stated “no acute intracranial findings.”

At 1:53 pm, Ms. Gutierrez ordered stat a heparin bolus to be followed by a heparin drip. Pharmacy completed verification of this order at 2:51 pm.

At this same time, at approximately 3:00 pm, Mr. Bunten was transferred to the ICU. He complained of nausea and vomited. Due to the c-spine precautions in place, including a collar, cleaning the area and changing linens was a complex task that took significant time to complete.

At 4:00 pm, Mr. Bunten was still being cleaned from vomiting, when he vomited again profusely. He then began seizing with Nurse Gabriel Sarmiento at bedside. Nurse Sarmiento noted protecting his airway during the seizure. He called for Ativan and assistance. Dr. Benninghoven was called to the bedside, ordered Ativan and Nurse Sarmiento administered the dose. The seizure subsided after the second dose of Ativan. Mr. Bunten was immediately intubated by anesthesia and neurology was paged to bedside.

Mr. Bunten was given propofol per Dr. Guisado’s order, cleaned and an EEG was ordered. The EEG confirmed ongoing seizure activity.

At 6:00 pm, Nurse Sarmiento scanned the heparin bolus via IV and the heparin drip in to the electronic record system.

Hourly neurologic checks were completed throughout the night on Mr. Bunten. Several nurses documented he withdrew to painful stimuli, but no other movement noted. Due to his ongoing seizure activity, the propofol was not turned off until the next morning.

In the 8:00 am neurological assessment, Nurse Shelby Key RN noted trace reflexes in all four extremities and that he withdrew to painful stimuli. At approximately 8:14 am, Nurse Key turned off the propofol.

The 9:00 am neurologic assessment demonstrated no reflexes in the upper extremities and Mr. Bunten did not withdraw to pain, which was a change from the prior neurologic assessments.

At 9:24 am, Ms. Gutierrez noted in her physical exam that Mr. Bunten was able to open his eyes spontaneously, but they did not track nor was he able to follow commands. His gaze was fixed at the midline. Ms. Gutierrez noted after an MRI/MRA of the brain, the findings of a large pons infarct with left vertebral extensive occlusion. She stated Mr. Bunten likely had locked-in syndrome and his prognosis for functional recovery was poor. Mr. Bunten was discharged on March 29, 2017 with a diagnosis of locked-in syndrome.

In support of its motion for summary judgment/ adjudication, defendant RMCSJ offers the opinion/declaration of Jerome Barakos, M.D. (“Dr. Barakos”), an expert in the field of radiology and neuroradiology. It is Dr. Barakos’s expert opinion, based upon a review of the medical records in this case, that Bunten’s CT imaging demonstrates multiple clots at the site of the vertebral artery dissection, including a large clot sitting in the basilar artery at the juncture of the brainstem; the MRI demonstrates an infarct/stroke in the pons (upper section of the brainstem). The site of the stroke is in line with the location of the large clot seen in the prior day’s CT imaging. It is Dr. Barakos’s opinion, to a reasonable degree of medical probability, that the cause of Mr. Bunten’s stroke was the existing large clot seen on the CT imaging taken on the morning of admission the day prior, March 22, 2017. Further, based on Dr. Barakos’s education, training and experience, the anticoagulation medication, Heparin, does not eliminate existing clots; Heparin only prevents future clots from forming. Therefore, based on his review of the medical records and imaging, his education training and experience, to a reasonable degree of medical probability, it is Dr. Barakos’s medical opinion the care and treatment at RMCSJ did not cause or contribute to Mr. Bunten’s stroke as administration of Heparin would not have eliminated the existing clot, nor prevented the clot from travelling up the brainstem, causing Mr. Bunten’s stroke.

In opposition, plaintiffs submit the declaration of their own expert, Todd E. Lempert, M.D. (“Dr. Lempert”), an expert in the field of radiology and neuroradiology, who opines precisely the opposite from Dr. Barakos. To a reasonable degree of medical probability, had plaintiff Bunten received state heparin therapy as ordered, it is highly unlikely he would have suffered a posterior circulation stroke. It is Dr. Lempert’s experience in treating many patients over the years for both vertebral artery and carotid artery dissections, that when anticoagulation therapy is started immediately with heparin, the risk of stroke is significantly reduced. The medical literature further confirms that the risk of stroke in this setting is reduced to below 5% when patients are treated with an anticoagulant and go on to have an excellent prognosis. To a reasonable degree of medical probability, the failure of the employees of RMCSJ to comply with the accepted standard of care in the stat administration of heparin therapy to Bunten was a substantial factor in causing his stroke.

The expert opinions submitted by the parties are in conflict. This amounts to a triable issue of material fact as to whether defendant RMCSJ caused plaintiff Bunten’s injuries. Accordingly, defendant RMCSJ’s motion for summary judgment, or in the alternative, summary adjudication is DENIED.

Case Name: Timothy Weaver v. Carden Rose, Inc.
Case No: 18CV339311

I. Background

Plaintiff Timothy Weaver (“Plaintiff”) brings this action against defendant Carden Rose, Incorporated (“Defendant”) for damages associated with breach of an employment contract.

According to the allegations of the complaint, Defendant is a corporation that provides computer forensics services. (Complaint, ¶ 2.) In May 2015 Plaintiff entered into an independent contractor agreement with Defendant. (Id. at ¶ 6.) He was subsequently hired as a regular employee. (Id. at ¶ 9.) Defendant promised to compensate Plaintiff 33 1/3 percent of the gross fees collected from projects assigned to him. (Ibid.) Plaintiff accepted the employment terms, but it immediately became clear that his position required substantial administrative work that did not directly lead to fee generation. (Id. at ¶ 11.) Consequently, Defendant modified his compensation agreement to include a minimum salary of $2500 per bi-monthly pay period. (Ibid.)

Plaintiff was underpaid for his contract work and he was not provided any itemization or basis for how his paychecks were calculated, despite repeated requests. (Complaint, ¶ 12, 13.) In March 2018, he resigned. (Id. at ¶ 14.) He was not paid for work on four invoices from April to June of 2018. (Id. at ¶ 16.) He has repeatedly requested documents necessary to show the work he performed, the fees he generated, and how his pay checks were calculated, but Defendant has refused. (Ibid.)

Furthermore, despite being a shareholder with a 7.5 percent interest in Defendant, Plaintiff has not been given notice of shareholder meetings, and it has held meetings and votes without him present. (Complaint, ¶ 18.) Defendant had Plaintiff sign a “receipt” for his stock certificate that was in fact a signature page for a multi-page shareholder Buy-Sell Agreement that imposed restrictions on his rights as a shareholder, but he was not provided the actual agreement until after he left his employment. (Ibid.)

Based on the foregoing, Plaintiff brings the complaint asserting causes of action for: (1) & (2) breach of contract; (3) breach of the duty of good faith and fair dealing; (4) fraud; (5) negligent misrepresentation; (6) quantum meruit; (7) failure to pay wages on time; (8) failure to provide itemized wage statements; (9) unfair business practices; (10) declaratory relief; and (11) failure to comply with Corporations Code sections 1600-1601.

Presently before the Court is Plaintiff’s motion to compel.

Discovery Dispute

Plaintiff served his first set of special interrogatories (“SI”) and requests for production (“RPD”) on March 11, 2019. Defendant responded on April 25, 2019, but Plaintiff requested further responses. On June 5, 2016, the Court signed a protective order at the request of Defendant allowing them to designate matters produced in discovery as either confidential or highly confidential. After a meet and confer, Defendant served supplemental responses on June 21, 2019. After further meet and confer, Defendant served unverified further supplemental responses on July 24, 2019. Defendant provided verification on August 22, 2019. Plaintiff contends that the answers to eight SI’s and one RPD remain insufficient. Consequently, he moves to compel further responses.

II. Motion to Compel

Plaintiff moves to compel further responses to set one SI Nos. 10, 11, 13, 14, 15, 16, 17, 18, and 19 and further compliance with RPD No. 25.

a. Notice of Motion

Defendant argues that the motion should be denied as procedurally defective because it was not served 16 court days prior to the hearing, in violation of Code of Civil Procedure section 1005. In particular, it notes that the supplemental declaration was served and filed ten court days before the hearing.

Code of Civil Procedure section 1005, subdivision (b) states that all moving and supporting papers must be filed and served 16 court days before the hearing. (See Cal. Rules of Court, rule 3.1300(a) [all moving and supporting papers must be served and filed in accordance with Code of Civil Procedure section 1005].) This time is extended by 5 calendar days if the notice of motion is served by mail. However, a party’s opposition to the merits of a motion is a waiver of any defects in the sufficiency of the notice period. (See Carlton v. Quint (2000) 77 Cal.App.4th 690, 697-699.)

Here, despite its procedural objection, Defendant opposed the motion on its merits. It also did not argue that it lacked adequate time to prepare a response or was prejudiced by the inadequate notice period, nor is it requesting a continuance. (See Carlton v. Quint, supra, 77 Cal.App.4th 690, 697-699.) Therefore, the Court concludes that Defendant has waived the notice defect and will reach the merits of the motion.

b. Special Interrogatories

Plaintiff moves to compel further response to eight special interrogatories.

If a party demanding a response to an interrogatory deems: (1) an answer to an interrogatory as evasive or incomplete; (2) an exercise of the option to produce documents under 2030.230 in response to an interrogatory as unwarranted or devoid of the requisite specification of documents; or (3) an objection in the response to be without merit or too general, that party may move for an order compelling a further response. (See Code Civ. Proc., § 2030.300, subd. (a).)

i. SI Nos. 10 and 11

Plaintiff argues that the responses to SI Nos. 10 and 11 are incomplete and non-responsive.

SI No. 10 asks Defendant to “Describe how the $7133.00 amount of Mr. Weaver’s paycheck dated October 5, 2017 was calculated.” Defendant answered without objection, the substance of which is that (1) Defendant was owed $39,300 for projects assigned to Plaintiff; (2) Defendant does not always immediately collect funds; (3) some of the money due for the pay period was subject to client trust accounts; (4) upon distribution, payments are made; (5) one invoice payment was received on the last day of the month, and the check did not clear immediately; (6) Plaintiff may not have properly submitted his time for these projects as he was struggling inputting his hours correctly which affected collections for projects and Defendants may not have been aware that he worked on some of the projects; and (7) Plaintiff was paid 33 1/3 percent of $21,400 during this pay period which represented reported and collected time, and the remaining portion was paid out in subsequent pay periods.

Plaintiff argues that Defendant fails to explain how the $39,300 was reduced to $21,400, the figure upon which his pay was calculated. This argument has merit. The answer suggests that some calculation was made, which ultimately resulted in the $21,400 figure. However, the SI seeks information regarding how that figure was calculated in the first place. Given that the figure is reduced by $17,900 in a conclusory way and without explanation the answer is incomplete. Therefore, the motion to compel further response to SI 10 will be granted.

SI No. 11 asks Defendant to “Describe how the $5,600.00 amount of Mr. Weaver’s paycheck dated October 20, 2016, was calculated.” Defendant answered without objection, the substance of which is: (1) during that period Defendant collected $2000 for projects assigned to Plaintiff for invoice number 1320; (2) Plaintiff was already paid for invoice number 1320 in September; and (3) therefore Plaintiff’s pay represents 33 1/3 percent of $16,980 due for the remainder of the time he spent but had yet to properly report and/or funds to be collected from the prior pay period.

Again, the response is incomplete as to the information sought and not straightforward as the provided information is internally inconsistent. On the one hand, Defendant’s answer suggests the pay should be calculated based on $2000 in paid invoices. However, it then goes on to conclude without explanation that his pay was calculated on $16,980 due. Therefore, the answer is an incomplete response and the motion to compel will be granted.

ii. SI Nos. 13, 14, 16, 17, 18, and 19

Plaintiff moves to compel further responses to SI Nos. 13, 14, 16, 17, 18 and 19 . SI No. 13 requests that Defendant identify all project Plaintiff worked on in 2016-1018. SI No. 14 asks for the number of hours Plaintiff worked on each project. SI No. 15 seeks the amount of income received by Defendant on each project Plaintiff worked. SI No. 16 asks Defendant to identify how much Plaintiff was paid for each project on which he worked. SI No. 17 asks Defendant to identify every project assigned to Plaintiff as an employee. SI No. 18 asks Defendant to identify the number of hours worked on each project to which he was assigned. SI No. 19 asks Defendant to identify the income it received for each project Plaintiff was assigned.

Defendant objected to each of these interrogatories on varying grounds, and also directed Plaintiff to the “Accelo produced in response to RPD, Bates numbers CR000909 through CR000933… [which] includes all projects Mr. Weaver worked on… in 2016-2018.” Plaintiff argues that each of the responses which reference Code of Civil Procedure section 2030.230, lack requisite specificity as to the writings from which the answers may be ascertained and because it is heavily redacted, some of the information is not in the report. In opposition, Defendant adds new objections, including the privacy of third party clients and concerns that Plaintiff will harass clients and scare off Defendant’s business.

Preliminarily, the Court observes that none of Defendant’s objections are supported by legal arguments justifying its failure to answer. (See Coy v. Super. Ct. (Wolcher, et al.) (“Coy”) (1962) 58 Cal.2d 210, 220-221 [the burden is on the responding party to justify any objections].) The objections that the questions are alternatively vague, ambiguous, compound, asked and answered are merely stated without support. Furthermore, given the protective order issued by the Court at Defendant’s request whereby it can label documents as confidential or highly confidential, objections raised regarding client confidentiality or third party privacy are not persuasive. And similarly, these arguments are not supported by legal authority. Consequently, the Court overrules all objections to SI Nos. 13, 14, 16, 17, 18 and 19.

With respect to the answers themselves, Code of Civil Procedure section 2030.230 provides that “if the answer to an interrogatory would necessitate the preparation or the making of a compilation, abstract, audit, or summary of or from the documents of the party to whom the interrogatory is directed, and if the burden or expense of preparing or making it would be substantially the same for the party propounding the interrogatory as for the responding party,” the responding party may refer to Section 2030.230 and specify the writings from which the answer may be ascertained. This specification must be in “sufficient detail to permit the propounding party to locate and identify, as readily as the responding party can, the documents from which the answer may be ascertained.” “A broad statement that the information is available from a mass of documents is insufficient.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 784.)

The Court finds that Defendant’s responses to SI Nos. 13, 14, 16, 17, 18 and 19 referencing section 2030.230 are not code-compliant. It does not establish that a compilation, abstract, audit or summary of the records is necessary in order to answer the request, or show that no such compilation, abstract, or summary exists. Nor does it demonstrate that the burden or expense of preparing or making a compilation, abstract, or summary would be the same for both parties. (See Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783-84.) Instead, section 2030.230 is invoked as part of a list of general objections to all the set one SI and Defendant states:

“This means that the answer to the interrogatory may be derived or ascertained, in whole or in part, from a compilation, abstract, audit or summary of or from CRI’s records, that the burden of deriving or ascertaining such answer is substantially the same for Weaver as it is for CRI, and that CRI will make the specified records identified in the response to the interrogatory, from which the answer may be ascertained or derived, available upon reasonable notice at a mutually convenient time and date in accordance with the provisions of section 2030.230 of the California Code of Civil Procedure.”

Thereafter, the responses to SI Nos. 13, 14, 16, 17, 18 and 19 reference the “Accelo” report, along with the Bates stamp numbers, produced in response to RPD as the source of the information. However, the responses do not establish that a compilation, abstract, audit or summary is necessary for each SI, and rather than state that a compilation doesn’t exist, it points to the Accelo report as the compilation. It likewise does not demonstrate that the burden or expense of creating such compilation, abstract or summary would be substantially the same for Defendant as it is for Plaintiff or offer to make the records available from which Plaintiff can generate its own compilation. The Court also observes that as Plaintiff argues, Defendant has produced redacted paper records of a digital file. While the digital format may allow Defendant to examine data and generate reports, as produced in discovery, the paper Accelo report is much more burdensome for Plaintiff to utilize and discern the answers for the SI as requested. And in some instances, the information has been purposely redacted.

Consequently, the motion to compel further response to SI Nos. 10, 11, 13, 14, 16, 17, 18 and 19 is GRANTED. Accordingly, within 20 calendar days of the date of the filing of the order, Defendant shall serve verified, code-compliant further responses to these SI without objection.

c. RPD

Plaintiff moves to compel compliance with RPD No. 25, pursuant to Code of Civil Procedure sections 2031.310 and 2031.280. The RPD requested that Defendant “produce all Accelo records that relate to work performed by Mr. Weaver in connection with his work as an employee of Carden Rose in 2016-2018.”

Pursuant to section 2031.310, if a responding party agrees to comply with an inspection demand sought pursuant to Code of Civil Procedure section 2031.010, but then fails to do so, the propounding party may file a motion compelling compliance. There is no fixed time limit on such a motion and no attempt to informally resolve the dispute need be shown. All that must be demonstrated is that the responding party failed to comply as agreed. (Code Civ. Proc., § 2031.320, subd. (a); see Standon Co., Inc. v. Superior Court (1990) 225 Cal.App.3d 898, 903.)

Defendant agreed to comply with RPD No. 25 and thereby provided a 25-page document it labels “Accelo report” and which it describes as an “excel spread sheet that contains responsive information exported from the Accelo software, plus information it manually added to the report.” It also argues that because the RPD did not specify a format for production, it was at liberty to choose the format, citing Code of Civil Procedure section 2031.280 subdivisions (c) and (d).

Any documents produced in response to a demand for inspection, copying, testing, or sampling shall either be produced as they are kept in the usual course of business, or be organized and labeled to correspond with the categories in the demand. (Code Civ. Proc., § 2031.280, subd. (a).) Unless the parties otherwise agree or the court otherwise orders, where a demand for production does not specify a form for producing a type of electronically stored information, the responding party shall produce the information in the form it is ordinarily maintained or in a form that is reasonably usable. (Code Civ. Proc., § 2031.280, subd. (d)(1).)

Given the statutory requirements, Defendant has not complied as it has not produced records as they are kept in the regular course of business, or produced them in a usable format. Defendant concedes that the report was generated from a software program where its business records are kept. Likewise, though Defendant chose its own format for the production request, the demand specifically sought the “Accelo records” which are apparently routinely maintained in an electronic format, so to the extent the “format” for the demand was not described as electronic, it need not be. Defendant contends that it had to add information to make the data “usable,” further confirming that it is not a usual business record, but one it generated for the litigation.

Furthermore, the document does not appear to be “labeled to correspond with the categories in the demand.” Instead, the report is heavily redacted and labeled only by client numbers and dates. It also does not appear to be in any discernable order, though it is roughly by date payment was received, but that is inconsistent. Also, Plaintiff cannot reorganize the data to analyze it in different ways to make it usable, as it was produced in a paper format. As a result, Plaintiff cannot correspond the amounts received by Defendant for work with the amounts he was paid per pay period, or should have been paid as he alleges. Therefore, the Court fails to see how the data is reasonably “usable” for Plaintiff.

Consequently, the request to compel compliance with RPD No. 25 is GRANTED. Accordingly, within 20 calendar days of the date of the filing of the order, Defendant shall comply with this RPD without objection.

Case Number: 19STCV10991 Hearing Date: October 16, 2019 Dept: 4B

[TENTATIVE] ORDER RE: DEFENDANT’S MOTION TO COMPEL PLAINTIFF’S RESPONSES TO DISCOVERY AND MONETARY SANCTIONS

On March 29, 2019, Plaintiff Herbert Hakimianpour (“Plaintiff”) filed this action against Defendant Srinivasan Venkatesh (“Defendant”) for injuries arising out of a June 13, 2017 motor vehicle collision. On July 19, 2019, Defendant served a Demand for Identification and Production and Inspection of Documents and Other Tangible Things (Set One) and Form Interrogatories (Set One) on Plaintiff. Plaintiff has failed to serve responses to this discovery. Defendant seeks to compel Plaintiff’s responses to discovery and monetary sanctions.

Where a party fails to serve timely responses to discovery requests, the court may make an order compelling responses. (Code Civ. Proc., §§ 2030.290, 2031.300; Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 403.) A party that fails to serve timely responses waives any objections to the request, including ones based on privilege or the protection of attorney work product. (Code Civ. Proc., §§ 2030.290, subd. (a), 2031.300, subd. (a).) Unlike a motion to compel further responses, a motion to compel responses is not subject to a 45-day time limit and the propounding party has no meet and confer obligations. (Sinaiko Healthcare Consulting, Inc., supra, 148 Cal.App.4th at p. 404.)

Plaintiff filed no opposition to these Motions and it is undisputed Plaintiff failed to serve responses to Defendant’s requests for discovery. Accordingly, the Motions to compel Plaintiff’s responses are GRANTED. Plaintiff is ordered to serve verified responses, without objection, to Defendant’s Demand for Identification and Production and Inspection of Documents and Other Tangible Things (Set One) and Form Interrogatories (Set One) within twenty (20) days of the date of this Order.

Where the court grants a motion to compel responses, sanctions shall be imposed against the party who unsuccessfully makes or opposes a motion to compel, unless the party acted with substantial justification or the sanction would otherwise be unjust. (Code Civ. Proc., § 2030.290, subd. (c), 2031.300, subd. (c).) Defendant’s request for monetary sanctions is GRANTED and imposed against Plaintiff and counsel of record, jointly and severally, in the reduced amount of $600.00 for three hours at defense counsel’s hourly rate of $160.00 and $120.00 in filing fees, to be paid within twenty (20) days of the date of this Order.

Moving party to give notice.

Filed 10/16/19 Martinez v. Northgate Gonzalez, LLC CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

NANCY MARTINEZ,

Plaintiff and Appellant,

v.

NORTHGATE GONZALEZ, LLC,

Defendant and Respondent.

G055924

(Super. Ct. No. 30-2015-00803293)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Gregory H. Lewis, Judge. Affirmed.

Raymond Ghermezian and Bahman Mehdizadeh for Plaintiff and Appellant.

Wesierski & Zurek, Brent Gerome and Lynne Rasmussen for Defendant and Respondent.

* * *

Nancy Martinez sued Northgate Gonzalez, LLC, alleging liability for a dangerous condition of property, after she was injured when she slipped on a puddle of unknown origin near the meat counter in one of Northgate’s grocery stores. Martinez contends the trial court erred by instructing the jury—contrary to the opinion of her expert witness, Brad Avrit—that “[a] retail store owner is not negligent for failing to use slip resistant flooring” and that “[i]n the context of this case, the dangerous condition was the liquid substance on the floor and not the floor itself.” We find no error and affirm the judgment.

Martinez argues that Northgate’s choice of flooring and whether it satisfied its duty to exercise reasonable care to keep its premises reasonably safe raised issues of fact, and that Avrit’s testimony provided the jury with sufficient evidence to find in her favor on them. We disagree.

Contrary to Martinez’s contention, Avrit’s testimony reflected that Northgate’s choice of flooring complied with the existing standard of reasonable safety; the testimony provided no evidentiary basis for the jury to conclude otherwise. Avrit testified that the flooring—which he agreed was safe and slip-resistant when dry—was consistent with the flooring choices made by other grocery store owners. Avrit made no claim there were any special circumstances in Northgate’s store that would subject its customers to a greater risk of liquid spills than would be expected in other stores, and thus might require Northgate to take additional precautions to ensure reasonable flooring safety.

Rather than opining that Northgate’s flooring choice fell below the current standard of care in the industry, Avrit testified that in his opinion all grocery store owners should be subjected to a new and different standard. He opined that because slip-resistant flooring was effective in preventing liquid slip and fall accidents, all grocery store owners should be required to use it, and any store which did not have it was, by definition, “unsafe.” He acknowledged there were “literally tens of thousands of retail markets in California alone that don’t meet that [standard],” but argued that “they’re taking a risk” by not using slip-resistant flooring; “if somebody then falls because they chose to save money on the flooring, then they have to pay that claim.”

By opining that slip-resistant flooring should be required in all grocery stores, regardless of their individual circumstances, Avrit was in effect advocating for the imposition of a new legal duty, rather than suggesting Northgate’s conduct had fallen below the existing standard of care for reasons particular to this case. The standard of care posited by Avrit is inconsistent with that imposed by our Supreme Court. The trial court therefore correctly refused to instruct the jury in accordance with this theory.

FACTS

While walking from the meat counter to the seafood counter at a Northgate grocery store in Santa Ana, Martinez slipped on a puddle of clear liquid. Adrian Mota, the store’s meat manager, was standing nearby and caught Martinez as she fell to one knee.

Both the origin of the spilled liquid and its duration on the floor are unknown. Northgate’s janitor testified that he makes regular rounds of the store, completing one every thirty minutes, to check for spills, debris or other dangerous conditions, and cleans up any problems that he finds. He testified other employees are also instructed that if they see any spills on the floor, they must either clean them up or call the janitor on duty.

Although Mota had been standing in the area for some time prior to Martinez’s fall, handing out numbers to customers who wanted service at the meat counter, he did not see the puddle; had he seen it, he would have cleaned it up. In the moments leading up to the accident, Mota’s attention had been focused on another meat department employee’s improper use of a saw, rather than on the condition of the floor.

Martinez filed suit against Northgate in August of 2015, alleging a single cause of action for damages based on negligence and premises liability. Although the allegations of the complaint are terse, Martinez contended that Northgate’s negligence had caused her fall in two ways: first, Northgate was negligent because it failed to install flooring that remained slip-resistant when wet, despite knowing that spills occur; and second, Northgate was negligent because it failed to reasonably inspect the flooring where Martinez fell and therefore failed to discover and clean up the spill before she slipped on it.

Martinez retained Avrit as her expert witness, to support both theories of negligence. Avrit had the floor in Northgate’s market tested to determine its slip resistance. The tests revealed that the floor was slip-resistant and, therefore, it was safe, when dry. However, the floor became slippery when it was wet.

Prior to trial, Northgate filed a motion in limine to preclude Avrit from opining about the slip-resistance of its flooring and whether its choice of this particular flooring was negligent. Northgate argued Avrit was unqualified to testify about the slip resistance of its flooring because he had conducted no testing and had no expertise in the industry; he had no knowledge about the flooring generally used in grocery stores; he had gathered no data to suggest that the flooring in Northgate’s store fell below any industry or governmental standards; and his opinion about the use of slip-resistant flooring was a personal recommendation rather than a reflection of existing standards.

Martinez opposed the motion, arguing that Avrit’s expertise would be demonstrated during his direct examination, stating Northgate’s complaints were nothing more than a preview of its cross-examination which “goes more to the weight of the evidence than its admissibility.” Counsel also claimed that Northgate’s characterization of Avrit’s anticipated testimony was based on hearsay, rather than his own statements. Finally, Martinez asserted that Northgate could not assail Avrit’s testimony on the ground it did not reflect industry standards because Northgate itself had not designated an expert and, therefore, had no basis for claiming knowledge of industry standards.

In its reply brief, Northgate argued that Avrit’s testimony about the flooring should be excluded for an additional reason, i.e., that it was an effort to establish liability based on Northgate’s “mode of operation” (its decision to install potentially slippery floors), in lieu of proving Northgate had actual or constructive notice of the particular dangerous condition (the puddle) that had caused Martinez to fall, an effort that had already been rejected under California law. (See, Moore v. Wal-Mart Stores, Inc. (2003) 111 Cal.App.4th 472 (Moore).)

At the hearing on the motion in limine, Northgate’s counsel focused his argument on similarities between this case and the Moore case. The trial court denied the motion without significant comment, other than pointing out that “notice and slip resistance [are] not the same thing.”

At trial, Avrit testified that in the past 25 years, he had investigated “dozens” of slip and fall accidents in Northgate’s 40 stores, and “several hundreds, probably more than a thousand different cases” in retail stores both inside and outside California. He claimed that “the no. 1 cause of accidental injury or death in a store is from a slip-and-fall event,” which is “the most common type of accident that they have.”

Avrit failed to quantify the number of slip and fall accidents that occur in grocery stores—either overall or on a per-store basis—over any given period of time, or to determine how likely such incidents were to cause significant injury when they did occur. He acknowledged he had no data about how many spills “get[] on the floor, where, [or] with what frequency, in any store.” Avrit had no knowledge as to “the frequency of falls or foreign substances on the floor in front of the meat department” in any Northgate store, including the one where Martinez fell.

Avrit described the testing that his associate had conducted to determine the slip resistance of the vinyl flooring in Northgate’s store. As a result of that testing, Avrit concluded that Northgate’s flooring was “safe” when it was dry. However, when the floor became wet, it fell below the level of slip-resistance that Avrit deemed safe. He did not claim the floor’s slipperiness when it was wet was caused by anything Northgate had done to it, or any lack of maintenance. Rather, it was a feature of the flooring itself.

Avrit then explained that a well-known flooring manufacturer makes a floor tile similar to the one used in Northgate’s store, which has a textured surface that maintains slip-resistance even when wet. He reported the cost of the slip-resistant tile is roughly $1.10 per square foot installed, as compared to a cost of about 40 cents per square foot for the flooring used in Northgate’s store. According to Avrit, Northgate was aware that such slip-resistant flooring existed, and it was using that flooring in select areas of some stores, and as the entire flooring in other stores.

Avrit opined that if that slip-resistant flooring had been used by Northgate in its Santa Ana store, Martinez would not have slipped and fallen. Further, he opined that “from a risk management standpoint, . . . the cost of using a proper floor rather than relying solely on hoping that an employee will see a spill before a customer encounters it, is really minimal,” and “if you can avoid just one accident, you can redo the floor in the entire store many times over.” Thus, “it doesn’t make sense to not change the floor, particularly in the high risk-areas, where the manufacturers of the tile that supply both types of tile recommend the slip-resistant tile.”

Avrit acknowledged that Northgate invests in training to prevent accidents at the store where Martinez fell, and that they conduct regular inspections of the premises, using a “Gleason” system, to look for spills, debris or other dangerous conditions, but he opined that “they’re not investing [their resources] wisely, because they can—they have an engineering control that can eliminate this type of a fall and they’re not utilizing that.”

When asked if the use of slip-resistant flooring was “the standard of care,” Avrit responded, “that’s what should be used.” At another point, Avrit stated that the standard of care requiring a store owner to make the premises “reasonably safe for the expected use” meant that the owner was required to “make the store as safe as possible.” In his opinion that standard of care mandated storewide slip-resistant flooring because a store owner “can make [the store] reasonably safe if they follow the standard using slip resistant floors in their store. If they choose not to, then they’re taking a risk. And if [a customer] then falls because [the store owner] chose to save some money on the flooring, then they have to pay that claim.”

Under cross-examination, Avrit agreed that the use of slip-resistant flooring in grocery stores was not required by any regulation or law, and it was also not an established practice in the industry. Some stores use it—at least in certain areas—while others do not. Avrit claimed he knew of “entire chains of stores that use slip-resistant flooring throughout their entire sales floor,” although he didn’t name them. He also acknowledged that several large chains, including Kroger, Ralphs, and Northgate use it in some stores, but not others. Food 4 Less does not use slip-resistant flooring, while Walmart uses it in the grocery area of its stores, but not other areas. According to Avrit, there were many retail stores, including grocery stores, “that are now, over time, replacing their floors with slip-resistant flooring throughout the entire store, rather than just in sections of the store . . . .”

When asked how prevalent the use of slip-resistant flooring was in stores within a five-mile radius, Avrit said he did not know. He claimed instead that the number of stores that are currently using slip-resistant flooring was “not relevant as to whether or not it’s reasonable to prevent accidents that are preventable by using . . . a different type of floor.” He conceded there were “literally tens of thousands of retail markets in California alone that don’t meet” the safety standard he was advocating, but he argued that those stores were “taking a risk” and thus should be held liable if a customer falls as a consequence of a liquid spill.

As to the Northgate store where Martinez slipped and fell, Avrit stated “it’s no different than other grocery stores where there’s a high likelihood over time of liquid spills getting on the floor. If you know that, then you know what an appropriate floor surface would be for that store.”

Although the bulk of Avrit’s testimony focused on the contention that Northgate’s choice of flooring was negligent, he also supported Martinez’s contention that Mota, Northgate’s meat manager, was negligent for failing to inspect the floor in the moments before Martinez slipped and fell.

After the close of evidence, Northgate renewed its effort to preclude a finding of liability based on Avrit’s theory that any grocery store owner that fails to use slip-resistant flooring is negligent. Specifically, Northgate proposed a special jury instruction stating that “[a] retail store owner is not negligent for failing to use slip resistant flooring” and that “[i]n the context of this case, the dangerous condition was the liquid substance on the floor and not the floor itself.”

In support of its request for the instruction, Northgate again cited the Moore case, arguing that Martinez’s attempt to establish liability based on the floor itself was an improper attempt to establish liability without proving Northgate had constructive notice of the puddle she slipped on. Northgate also challenged the substance of Avrit’s testimony, stating that “Avrit said we’re negligent, just like all store owners. His testimony was, everybody who doesn’t have a non-skid floor is negligent . . . if they don’t have a non-skid floor. [¶] That was his testimony. That was allowed. And that’s wrong. So the law is completely opposite of that.”

The court then acknowledged it might have earlier misconstrued Avrit’s testimony, noting it had been thinking of “the slip resistance of the floor” as something distinct from the floor itself. The court asked if Martinez’s counsel agreed that Avrit’s objection was to “the floor substance, not the stuff that’s on it,” and Martinez’s counsel confirmed that was the case, that “just having that floor is an act of negligence.” Again, the court sought to clarify the plaintiff’s theory: “Your argument on that is that they did not properly maintain the floor?” (Italics added.) Martinez’s counsel responded, “[t]hey had the wrong floor.” (Italics added.)

Ultimately, the court rejected Martinez’s theory that the floor itself created a dangerous condition, stating “it’s not the flooring, it’s the water.” The court then stated to Martinez’s counsel: “I assume you’re going to argue that the floor—that the store placed water or water accumulated in an area under observation by [store employees] within the last minutes and that because it was not cleaned up, that [Martinez] slipped on that and fell and injured herself. [¶] That part, I have no problem with. None. But to say that the store is negligent simply because they did not have a certain type of flooring, . . . I’m inclined to agree with [Northgate], so I am precluding you from arguing that to the jury.”

When Martinez’s counsel inquired whether “hypothetically, in my closing, I say . . . there were other options available, other flooring available that the store could have used, that would have prevented this accident even with liquid on it,” the court cut him off, noting the argument would be “kind of duty of care backwards.”

The court then instructed the jury that “[a] retail store owner is not negligent for failing to use slip resistant flooring,” and that “[i]n the context of this case, the dangerous condition was the liquid substance on the floor and not the floor itself.” The court also instructed the jury on a store owner’s duty to exercise ordinary care by making reasonable inspections of the premises to discover any dangerous conditions that exist, and then either remedying such conditions or protecting patrons from them.

DISCUSSION

1. Duty of Store Owners to Make Their Premises Reasonably Safe

“[A] plaintiff bringing an action for premises liability based on a negligence theory must plead and prove that the defendant breached a duty of care owed to the plaintiff that proximately caused injury and damages.” (Annocki v. Peterson Enterprises, LLC (2014) 232 Cal.App.4th 32, 37.)

The duty of care imposed on store owners is “well established in California.” (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205.) “[A]lthough a store owner is not an insurer of the safety of its patrons, the owner does owe them a duty to exercise reasonable care in keeping the premises reasonably safe.” (Ibid.) What constitutes reasonable care is inherently situational and will depend on the circumstances of each case. (Evans v. Hood Corp. (2016) 5 Cal.App.5th 1022, 1050 [‘“as a general proposition one “is required to exercise the care that a person of ordinary prudence would exercise under the circumstances.” [Citations.] Because application of this principle is inherently situational, the amount of care deemed reasonable in any particular case will vary”’].)

Where the negligence of a store owner or employee directly causes a dangerous condition, the owner will be held liable for any resulting injuries without regard to whether there is evidence the owner had notice of it. (Hatfield v. Levy Brothers (1941) 18 Cal.2d 798, 806 (Hatfield) [“Where the dangerous or defective condition of the property which causes the injury has been created by reason of the negligence of the owner of the property or his employee acting within the scope of the employment, . . . knowledge thereof is imputed to him”]; Getchell v. Rogers Jewelry (2012) 203 Cal.App.4th 381, 386 [jewelry store owner liable for spill caused by employee, without regard to whether it was aware the spill existed].)

However, the owner’s duty of care also extends to dangerous conditions on the premises “which are not due to the negligence of the owner,” such as those caused “by natural wear and tear, or third persons, or acts of God or by other causes.” (Hatfield, supra, 18 Cal.2d at p. 806; See Bridgman v. Safeway Stores, Inc. (1960) 53 Cal.2d 443, 447 (Bridgman).) In such cases, the owner’s liability turns on whether it has made reasonable efforts to discover and remedy those dangerous conditions. “[T]o impose liability the owner must have either actual or constructive knowledge of the dangerous condition or have been able by the exercise of ordinary care to discover the condition, which if known to him, he should realize as involving an unreasonable risk to invitees on his premises.” (Hatfield, supra, 18 Cal.2d at p. 806; Ortega v. Kmart Corp., supra, 26 Cal.4th at p. 1206 [“the owner’s actual or constructive knowledge of the dangerous condition is a key to establishing its liability”].) Thus, the store owner’s “negligence in such cases is founded upon his failure to exercise ordinary care in remedying the defect after he has discovered it or as a man of ordinary prudence should have discovered it.” (Hatfield, supra, 18 Cal.2d at p. 806.)

As explained by our Supreme Court in Ortega v. Kmart Corp., supra, 26 Cal.4th at p. 1205, “[a] store owner exercises ordinary care [to discover defective or dangerous conditions] by making reasonable inspections of the portions of the premises open to customers, and the care required is commensurate with the risks involved.” “If the owner operates a self-service grocery store, where customers are invited to inspect, remove, and replace goods on shelves, ‘the exercise of ordinary care may require the owner to take greater precautions and make more frequent inspections than would otherwise be needed to safeguard against the possibility that such a customer may create a dangerous condition by disarranging the merchandise’ and creating potentially hazardous conditions.”’ (Ibid.) The owner’s constructive notice of a dangerous condition can be inferred from its failure to conduct reasonable inspections. (Id. at p. 1212.)

Once it is established that the owner “knows of, or by the exercise of reasonable care could discover” the dangerous condition caused by a third party, he “is under a duty to exercise ordinary care either to make the condition reasonably safe for [patrons’] use or to give a warning adequate to enable them to avoid the harm.” (Bridgman, supra, 53 Cal.2d at p. 446.)

2. Claim of Negligence Based on Flooring

In this case, Martinez argued that Northgate was liable for her injuries in two ways: first, Northgate’s choice of flooring in the store where she fell was negligent; and, second, Northgate was negligent in failing to reasonably inspect the floor and discover the spilled liquid before she slipped on it. The jury found against her on the latter claim, and she does not challenge that finding on appeal.

Instead, Martinez contends the trial court erred by refusing to let the jury decide the negligent flooring issue because, in her view, Avrit’s testimony was sufficient to support a finding that Northgate’s choice of flooring breached its duty to make its premises reasonably safe for customers. She also claims the court erroneously relied on Moore as a basis for precluding her negligent flooring claim, arguing the case is inapplicable.

Although we are not convinced the trial court actually relied on Moore in making its ruling, we agree the case is inapplicable to Martinez’s negligent flooring claim.

In Moore, the plaintiff sought to hold a store owner liable for injuries she suffered after slipping on a french fry dropped by a third party (presumably another patron.) But rather than proving the owner had actual or constructive knowledge of the particular dangerous condition caused by the third party (i.e., the existence of the specific french fry she slipped on), the plaintiff in Moore claimed that because the store incorporated a fast food restaurant within its premises, it could “reasonably anticipate that such a dangerous condition would regularly arise.” (Moore, supra, 111 Cal.App.4th at p. 475.) Thus, the plaintiff claimed the store could be held liable for resulting injuries without “having either actual or constructive knowledge of the particular spill.” (Id. at p. 476.)

The Moore court rejected that theory, explaining that “under current California law, a store owner’s choice of a particular ‘mode of operation’ does not eliminate a slip-and-fall plaintiff’s burden of proving the owner had knowledge of the dangerous condition that caused the accident.” (Moore, supra, 111 Cal.App.4th at p. 479.) Further, the court reasoned “it would not be prudent to hold otherwise. Without this knowledge requirement, certain store owners would essentially incur strict liability for slip-and-fall injuries, i.e., they would be insurers of the safety of their patrons. For example, whether the french fry was dropped 10 seconds or 10 hours before the accident would be of no consequence to the liability finding. However, this is not to say that a store owner’s business choices do not impact the negligence analysis. If the store owner’s practices create a higher risk that dangerous conditions will exist, ordinary care will require a corresponding increase in precautions.” (Ibid.)

We have no quibble with Moore’s reasoning. But because the case turns on the requirement that a store owner have actual or constructive notice of a dangerous condition, it has no application in situations where the dangerous condition is allegedly caused by the store owner’s own negligence, or that of its employees. As we have already explained, in such cases, knowledge of the dangerous condition is “imputed” to the store owner. (Hatfield, supra, 18 Cal.2d at p. 806; Getchell v. Rogers Jewelry, supra, 203 Cal.App.4th at p. 385.)

Thus, to the extent Martinez is asserting that Northgate’s own negligence caused a dangerous condition, she would not be required to separately establish Northgate had knowledge of that condition to establish liability.

Our determination that Moore is inapplicable does not assist Martinez in this appeal because we also reject her assertion that Avrit’s testimony supported a finding that Northgate’s flooring choice was negligent. Avrit’s testimony reflected that Northgate’s choice of flooring complied with the industry’s existing standard of care and provided no legal basis for the jury to conclude otherwise.

Specifically, Avrit testified that Northgate’s flooring—which he agreed was safe and slip-resistant when dry—was consistent with the flooring choices made by many other grocery store owners. While he contended that flooring which remained slip resistant even when wet would be the better choice from a “risk management” standpoint, he acknowledged there were “literally tens of thousands of retail markets in California alone” that did not use it, including several large grocery chains. Consequently, Avrit’s testimony did not support the conclusion that Northgate’s flooring choice fell below the industry standard of care as to what “a reasonably prudent [store owner] under like circumstances” would install. (Ramirez v. Plough, Inc. (1993) 6 Cal.4th 539, 546.)

Avrit made no claim there were any special circumstances in Northgate’s store that would subject its customers to a greater risk of liquid spills than would be encountered in other stores. Such testimony might require Northgate to take additional precautions, beyond what other grocery stores were doing, to ensure reasonable flooring safety. But this record contains no such evidence.

Rather than opining that Northgate’s flooring choice fell below the current industry standard of care, Avrit’s claim was that all grocery store owners should be subjected to a higher standard—one which would obligate them to eliminate any risk that a customer might ever slip on a liquid spill. Avrit opined that because liquid spills were inevitable in grocery stores, the only way to make a store reasonably safe was to install flooring that remained slip resistant even when wet, and that any store which did not have it was, by definition, “unsafe.”

This testimony does not reflect the current state of the law. The inevitability of liquid spills in grocery stores is not a new phenomenon. Such spills occur with some regularity. That is why there is a well established duty of care in California that requires store owners to conduct reasonable inspections of their premises and to remedy or remove any hazards they find. When the store owner does so in a manner commensurate with the relevant circumstances, it has fulfilled its obligation to maintain premises that are “reasonably safe” with respect to such hazards. Avrit cannot persuasively point to that very same risk as a justification for changing the standard of care.

By suggesting that slip-resistant flooring should be required in all grocery stores, regardless of their individual circumstances, Avrit was advocating for the imposition of a new and different legal duty, rather than suggesting Northgate’s conduct in this case had fallen below the existing standard of care. (Regents of University of California v. Superior Court (2018) 4 Cal.5th 607, 629, 632 [“the duty analysis is categorical, not case-specific,” whereas “[w]hat constitutes reasonable care will vary with the circumstances of each case”].)

Both “the existence and scope of a defendant’s duty is an issue of law, to be decided by a court, not a jury.” (Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 161.) As such, issues of duty are not a proper subject of expert testimony, and the trial court here was correct in rejecting it. (Summers v. A. L. Gilbert Co. (1999) 69 Cal.App.4th 1155, 1178 [“There are limits to expert testimony, not the least of which is the prohibition against admission of an expert’s opinion on a question of law”].)

Given the substance of Avrit’s testimony on the subject of negligent flooring, we find no error in the trial court’s decision to, in effect, instruct the jury to disregard it.

3. Denial of a Fair Trial

Finally, Martinez suggests she was denied a fair trial because the court initially rejected Northgate’s motion to exclude Avrit’s opinion that its flooring choice was negligent, but later concluded, after Avrit testified, that the opinion could not be relied upon to establish liability. She contends this operated unfairly because after the court ruled on the motion in limine, her counsel emphasized Avrit’s flooring opinions in his opening statement to the jury.

We agree the timing was awkward. We nonetheless conclude the insult was to efficiency, not fairness. Martinez does not contend the trial court erred in denying the motion in limine, and we note its ruling was in accordance with her opposition in which she argued that the court should not preclude expert testimony before hearing it.

But once the court did hear Avrit’s testimony, its inconsistency with the applicable legal standards became apparent. Once the evidence had closed, the court’s obligation was to instruct the jury properly regarding the legal standards applicable to Martinez’s case. That obligation cannot be altered by the trial court’s earlier rulings, which are not ultimately binding. (Case v. Lazben Financial Co. (2002) 99 Cal.App.4th 172, 183.) The doctrine of law of the case does not apply to trial court rulings. (Sciborski v. Pacific Bell Directory (2012) 205 Cal.App.4th 1152, 1165, fn. 4.)

Finally, to the extent Martinez complains that Northgate’s counsel took unfair advantage of the court’s jury instruction on the flooring issue, and argued improperly to the jury that it should consequently disregard Avrit’s opinions—plural—rather than merely his single opinion regarding Northgate’s choice of the flooring, the contention is waived. Martinez does not contend she objected to the improper argument, and when such an error can be easily corrected in the trial court, it cannot be raised for the first time on appeal. (People v. Visciotti (1992) 2 Cal.4th 1, 79 [“A defendant who does not object and seek an admonition to disregard improper statements or argument by the prosecutor is deemed to have waived any error unless the harm caused could not have been corrected by appropriate instructions”].)

DISPOSITION

The judgment is affirmed. Northgate is to recover its costs on appeal.

GOETHALS, J.

WE CONCUR:

MOORE, ACTING P. J.

FYBEL, J.

Filed 10/16/19 Genthner v. Taylor CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

DEBBY GENTHNER,

Plaintiff and Appellant,

v.

BARBARA TAYLOR,

Defendant and Respondent.

F076233

(Super. Ct. No. 16CECG00160)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. Alan M. Simpson, Judge.

Debby Genthner, in pro. per., for Plaintiff and Appellant.

Yempuku, Wetters & McNamara and Daniel T. McNamara for Defendant and Respondent.

-ooOoo-

In January 2016, plaintiff Debby Genthner, in propria persona, filed a complaint for personal injuries she sustained in a January 2014 automobile accident, which she alleged was caused by Liberty Mutual Fire Insurance Company’s (Liberty Mutual) insured, Barbara Taylor (Taylor). Genthner named Liberty Mutual and three of its claims adjustors as defendants, but did not name Taylor or any fictitious defendants. Over a year later, in February 2017, she filed a first amended complaint which added Taylor as a defendant. Taylor demurred on the ground the first amended complaint was time-barred, as it was not filed within the two-year statute of limitations applicable to claims for personal injuries and did not relate back to the original complaint. The trial court sustained the demurrer without leave to amend.

On appeal from the resulting judgment, Genthner contends the trial court erred in sustaining the demurrer because the trial court previously had granted her leave to add Taylor to her first amended complaint and Taylor’s attorney failed to follow court procedures and rules. She also contends she should have been given leave to amend. Finding no merit to Genthner’s arguments, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On January 12, 2016, Genthner filed a complaint for compensatory and punitive damages arising from a January 9, 2014, automobile accident allegedly caused by Liberty Mutual’s insured. Genthner named as defendants Liberty Mutual, Greg Williams, Ricki Light and John Graham, but did not name any Doe defendants or name Taylor as a defendant. In five causes of action, Genthner essentially alleged Liberty Mutual and its adjustors were not willing to negotiate a fair settlement for her injuries.

On August 19, 2016, Genthner filed a motion to amend the complaint, asking for leave to file a first amended complaint to add Taylor as a defendant. On August 26, 2016, Liberty Mutual and the claims adjustors filed a demurrer to the complaint on the grounds it was barred by the two-year statute of limitations for personal injuries and Genthner, who was not Liberty Mutual’s insured, could not maintain a private right of action against them for third party bad faith. On September 22, 2016, the trial court sustained the demurrer with leave to amend. The trial court concluded the complaint failed to state any cause of action against the named defendants but since it was impossible to tell what causes of action were intended, the court granted Genthner an opportunity to amend. The trial court granted Genthner’s motion for leave to amend the complaint to add Taylor as a defendant, noting “[a] trial court will not ordinarily consider the validity of a proposed amended pleading because grounds for demurrer or motion to strike are premature.”

On January 6, 2017, Genthner filed a motion to extend the time to file an amended complaint, which the trial court granted on February 9. On February 14, Genthner filed her first amended complaint (FAC), which added Taylor as a named defendant. The FAC contains six causes of action for “Intentional Tort,” which are alleged against all defendants. The first through fourth causes of action allege Taylor came out of a side street and hit the side of Genthner’s car, causing Genthner whiplash and a concussion, as well as a cervical neck sprain, other neck and back injuries, and injuries to both knees. The fifth and sixth causes of action set forth claims of insurance bad faith, alleging Liberty Mutual and its claims adjustors (1) did not negotiate fairly with Genthner in settling her claim against Liberty Mutual’s insured, (2) did not offer a settlement that included the full cost of Genthner’s medical treatment, (3) did not return her calls, and (4) did not offer fair value for her automobile.

Genthner had the Fresno County Sheriff’s Department personally serve the FAC on Taylor, which it did on February 22. On March 9, the trial court granted Genthner’s oral motion to dismiss all defendants except Taylor from the action without prejudice.

On March 27, Taylor filed a demurrer to the FAC on the ground it did not state facts sufficient to constitute a cause of action. Taylor argued the original complaint was not filed within the two-year statute of limitations for personal injuries (Code Civ. Proc., §§ 335, 335.1), as Genthner alleged the accident occurred on January 9, 2014, but she filed her complaint more than two years later, on January 12, 2016. Taylor further argued that even if the original complaint was timely filed, it did not name any Doe defendants and the FAC naming Taylor was not filed until February 14, well beyond the statute of limitations. Taylor asserted the FAC was time-barred and should be dismissed with prejudice. Taylor’s attorney filed a declaration in which he stated he called Genthner on February 22 at her last known telephone number and the phone simply rang without picking up. He also emailed her that day, but he received no response to his phone call or email.

In her opposition to the demurrer, filed on April 7, Genthner argued she met the statute of limitations and was allowed extended time to file her amended complaint to add Taylor as a defendant. Genthner declared she did not see the email from Taylor’s attorney on February 22 or receive any calls from him. She asserted opposing counsel should be making an effort to contact her and negotiate a reasonable offer for the damages she suffered due to the accident. She further asserted neither Taylor nor her attorney responded to the summons and complaint within 30 days, and asked why they did not respond by March 22. Genthner stated she asked the Fresno County Sheriff’s Department to serve a statement of damages on Taylor on March 24 and was waiting for that proof of service before filing a request for default. Genthner filed an amended opposition on April 12, which contained the same arguments, but to which was attached a statement of damages that was personally served on Taylor on March 29.

Genthner and Taylor’s attorney appeared at the May 17 hearing on the demurrer. The trial court adopted its tentative ruling to sustain the demurrer without leave to amend as its order. In the ruling, the trial court first discussed the meet and confer process. The trial court noted defense counsel declared he called and emailed Genthner, while Genthner declared she did not receive a phone call or email, but because insufficiency of the meet and confer process is not grounds to overrule or sustain a demurrer (§ 430.41, subd. (a)(4)), it would address the demurrer’s merits.

On the merits, the trial court found the first through fourth causes of action were barred by the statute of limitations because: (1) the statute of limitations as to Taylor was measured as of February 14, the date the amended complaint first naming her was filed, since Genthner failed to name any Doe or fictitiously named defendants in her lawsuit at any time; (2) an action based on personal injury caused by another’s wrongful act must be commenced within two years following accrual of the cause of action, which for a personal injury claim accrued on the date the injury was sustained; (3) since the medical records attached to Genthner’s FAC show she sought medical treatment for her injuries no later than January 16, 2014, she was aware of her injuries by that date; and (4) therefore, the filing of the FAC against Taylor over three years later was untimely and the statute of limitations had run.

As for the fifth and sixth causes of action, the trial court found that while Genthner appeared to be raising claims of breach of the covenant of good faith and fair dealing, or bad faith, Liberty Mutual and its employees did not owe a duty to Genthner, since she was not Liberty Mutual’s insured. The trial court explained that adding Taylor to these causes of action added nothing, as Taylor did not owe Genthner a duty to make her insurance company act in a particular way.

Judgment subsequently was entered in Taylor’s favor on July 19.

DISCUSSION

Standard of Review

“On appeal from a judgment dismissing an action after sustaining a demurrer without leave to amend, the standard of review is well settled. We give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] Further, we treat the demurrer as admitting all material facts properly pleaded, but do not assume the truth of contentions, deductions or conclusions of law. [Citation.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse.” (City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 865.)

Since the function of a demurrer is to test a pleading’s sufficiency as a matter of law, we apply the de novo standard of review. (California Logistics, Inc. v. State of California (2008) 161 Cal.App.4th 242, 247.) We must affirm the judgment if it is correct on any ground stated in the demurrer, independent of the trial court’s stated reasons. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.) However, it is Genthner’s burden to demonstrate the trial court sustained the demurrer erroneously. (Smith v. County of Kern (1993) 20 Cal.App.4th 1826, 1829‒1830.) It is also Genthner’s burden to show that further amendment could cure the complaint’s defects. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.)

The Statute of Limitations Bars the Negligence Claims

The first through fourth causes of action in the FAC allege negligence claims arising from injuries Genthner sustained in the January 9, 2014, automobile accident. The statute of limitations for injury caused by another’s wrongful act is two years. (§ 335.1.) The two-year limitations period starts to run when the cause of action accrues, which occurs when it “ ‘is complete with all of its elements.’ ” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 806.) Here, that occurred when Genthner was injured on January 9, 2014. Genthner does not contend otherwise. Since the first complaint that named Taylor was filed on February 14, 2017, which is more than two years after Genthner’s January 9, 2014 accident, the FAC against Taylor was filed too late.

Genthner relies on the relation back doctrine. “The general rule is that an amended complaint that adds a new defendant does not relate back to the date of filing the original complaint and the statute of limitations is applied as of the date the amended complaint is filed, not the date the original complaint is filed. [Citations.] A recognized exception to the general rule is the substitution under section 474 of a new defendant for a fictitious Doe defendant named in the original complaint as to whom a cause of action was stated in the original complaint. [Citations.] If the requirements of section 474 are satisfied, the amended complaint substituting a new defendant for a fictitious Doe defendant filed after the statute of limitations has expired is deemed filed as of the date the original complaint was filed.” (Woo v. Superior Court (1999) 75 Cal.App.4th 169, 176 (Woo).)

Among the requirements for application of the relation back doctrine under section 474 is that the new defendant in an amended complaint be substituted for an existing fictitious Doe defendant named in the original complaint. (Woo, supra, 75 Cal.App.4th at p. 176.) “[A]mendment after the statute of limitations has run will not be permitted when the result is the addition of a party who, up to the time of the proposed amendment, was neither a named nor a fictitiously designated party to the proceeding.” (Ingram v. Superior Court (1979) 98 Cal.App.3d 483, 492.)

Here, Genthner failed to name Taylor in the original complaint and did not designate any Doe or fictitious defendants. Thus, her attempt to amend the complaint to add Taylor as a defendant over three years later, after the cause of action accrued, is improper.

Genthner contends her original complaint was timely filed because she submitted it to the superior court, along with her request to file new litigation by a vexatious litigant, on January 6, 2016. Even if the original complaint was timely, however, it did not name either Taylor or a fictitious defendant. Genthner asserts she named Taylor as a fictitious defendant because she alleged in the first cause of action that Liberty Mutual’s “insured” hit her and Taylor’s name appears in some of the exhibits attached to the complaint. Genthner, however, never stated in her complaint that she was “ignorant of the name of a defendant” and never designated that defendant “by any name” as required by section 474. Moreover, no cause of action was stated against Taylor in the original complaint.

Genthner points out the trial court granted her leave to amend to add Taylor as a defendant on September 22, 2016. As the trial court noted in its order, it “will not ordinarily consider the validity of a proposed amended pleading because grounds for demurrer or motion to strike are premature,” citing Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048. Thus, merely granting Genthner’s motion for leave to amend the complaint to add Taylor as a defendant did not mean the trial court had decided the validity of such an amendment. Instead, that was left for decision on Taylor’s demurrer to the FAC.

Since the statute of limitations barred the negligence claims against Taylor, the trial court did not err when it sustained the demurrer without leave to amend. Genthner asserts she should have been given leave to amend because she filed her causes of action on incorrect forms labeled “CAUSE OF ACTION—Intentional Tort,” and she should have been given the opportunity to file her claims “under general negligence on the correct claim forms.” Changing the forms, however, would not have saved Genthner’s claims against Taylor, which were untimely. Genthner fails to explain how she could have amended the FAC to avoid the bar of the statute of limitations.

Lateness and Failure to Meet and Confer

Genthner contends Taylor’s attorney did not follow court procedures and court rules. She claims the demurrer was untimely, because it was filed after expiration of the 30-day period set forth in section 430.40. (See § 430.40, subd. (a) [“A person against whom a complaint … has been filed may, within 30 days after service of the complaint …, demur to the complaint.”].) Genthner personally served Taylor with the FAC on February 22 and Taylor demurred to the complaint on March 27, three days after the 30 day time period set forth in section 430.40 expired. The 30-day deadline in section 430.40, subdivision (a), however, is not mandatory. (McAllister v. County of Monterey (2007) 147 Cal.App.4th 253, 280.) A trial court, therefore, has discretion to consider an untimely demurrer. (Jackson v. Doe (2011) 192 Cal.App.4th 742, 749.) We review a trial court’s exercise of discretion for abuse of that discretion. “The abuse of discretion standard affords considerable deference to the trial court, provided that the court acted in accordance with the governing rules of law.” (New Albertsons, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1422.) “An abuse of discretion occurs if, in light of the applicable law and considering all of the relevant circumstances, the court’s decision exceeds the bounds of reason and results in a miscarriage of justice.” (Ibid.)

Genthner argued in her opposition below that the demurrer was untimely. She stated in her declaration she was in the process of attempting to take Taylor’s default when the demurrer was filed on March 27, as she had asked the sheriff’s department to serve Taylor with a statement of damages and was waiting for the proof of service so she could file her request for default. The trial court presumably read Genthner’s opposition papers, and nevertheless decided to consider the demurrer’s merits. Genthner does not assert the trial court abused its discretion in considering the untimely demurrer (on appeal, she asks only why Taylor did not respond by March 22), and the record does not support a finding the trial court abused its discretion in hearing the demurrer. Since default had not been entered, Taylor still was permitted to file pleadings and motions with the court. (See Goddard v. Pollock (1974) 37 Cal.App.3d 137, 141; see also Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2019) ¶¶ 5:2 to 5:3, p. 5-1.) Accordingly, the trial court did not abuse its discretion in considering Taylor’s demurrer.

Genthner also contends Taylor’s attorney failed to meet and confer before filing Taylor’s demurrer, as required by section 430.41, subdivision (a). Taylor’s attorney apparently tried to call Genthner and when she did not answer, he emailed her. Genthner, however, denied receiving either a call or email. As the trial court stated in its ruling, any failure to meet and confer is not a basis to overrule or sustain a demurrer. (§ 430.41, subd. (a)(4) [“Any determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.”] Thus, it was not error for the trial court to decline to overrule the demurrer because Taylor’s attorney’s meet-and-confer efforts did not meet the specific requirements of section 430.41, subdivision (a).

DISPOSITION

The judgment is affirmed. Costs on appeal are awarded to Taylor.

Filed 10/16/19 Marriage of McKean CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

In re Marriage of SCOTT E. McKEAN and TANYA McKEAN.

SCOTT E. McKEAN,

Appellant,

v.

TANYA McKEAN,

Respondent.

G055601

(Super. Ct. No. 09D004987)

O P I N I O N

Appeal from an order of the Superior Court of Orange County, Lon F. Hurwitz, Judge. Reversed.

Masson & Fatini, Richard E. Masson, Susan M. Masson, for Appellant.

Scott E. McKean, in pro. per.; and J. Michael Jacob for Respondent.

Tanya McKean appeals from the trial court’s order granting sole legal and physical custody of her two younger children in favor of their father, Scott McKean. Tanya claims the court abused its discretion by modifying the parties’ custody order absent sufficient evidence of changed circumstances. Specifically, Tanya asserts the court erred when it determined that by granting her sole legal and physical custody of her severely disabled daughter, she was rendered incapable of maintaining joint legal and physical custody of her two younger children. We agree with Tanya, reverse the court’s order, and remand the matter for proceedings consistent with this opinion.

FACTS

We incorporate from our prior opinion the following summary of the underlying facts: “In June 2009, Scott filed a petition for dissolution of his 12-year marriage to Tanya. In 2004, Tanya and the couple’s three young children were in a horrible car accident when another driver ran a red light. Their oldest daughter, Cheyenne, was killed. Their daughter Sierra suffered massive head injuries and was left with permanent major brain damage that necessitates constant medical attention and therapy. The couple had another daughter, Savannah, and their son, Wyatt, was born in March 2006. In the legal action following the car accident, Sierra received a settlement that provides $20,000 a month for her treatment, therapy, and caregivers. Tanya received a settlement of $2.4 million, and Scott received a settlement of $1.2 million. [¶] Sadly, the accident did more than take the life of one child and devastate the life of another—it left in its wake the eventual destruction of Scott and Tanya’s marriage. The record is replete with accusations and recriminations leveled by each demonstrating the parties are utterly unable to agree on even the smallest of matters when it comes to Sierra’s care, and to the parenting and custody of the children.” (In re Marriage of McKean (Apr. 27, 2012, G045511) [nonpub. opn.].)

The parties have been engaged in litigation for more than a decade. There have been numerous orders made, challenged, and modified with regard to custody and visitation issues. As pertinent to this appeal, in 2015 the trial court issued a custody order (2015 order). The 2015 order granted Tanya sole legal custody of Sierra, but granted Tanya and Scott joint physical custody of Sierra. It further granted joint legal and physical custody of Savannah and Wyatt. The court noted “there seems to be a bond with all three (3) minor children, and the court thinks it should be equal time with [Scott] and [Tanya].”

In 2016, Tanya filed an application and request for order seeking modification of the time share for all of the children (2016 request). Specifically, Tanya sought sole physical custody of Sierra, reasonable visitation with Sierra for Scott, and visits with Savannah and Wyatt for Scott on alternate weekends and a mid-week dinner visit. Scott’s response to Tanya’s 2016 request (2016 response) sought to maintain the current physical custody order as to all three children, maintain the current legal custody order as to Savannah and Wyatt, and award Scott sole legal custody of Sierra or in the alternative appoint a medical guardian to make decisions as to Sierra’s healthcare. Neither party sought to change the 2015 order as to the legal or physical custody of Savannah and Wyatt.

After trial, the court issued its findings and order after hearing (2017 order). It awarded custody as follows: sole legal and physical custody of Sierra to Tanya; sole legal and physical custody of Savannah and Wyatt to Scott; visitation with Sierra by Scott, as arranged between the parties in writing; and visitation with Savannah and/or Wyatt by Tanya, as arranged between the parties in writing.

In support of its decision to grant Tanya sole legal and physical custody of Sierra, the trial court found that “[t]he parties cannot co-parent.” It further determined “parallel parenting” was not possible given Sierra’s medical needs, and the parties’ inability to communicate was “terribly deleterious to the best interest of Sierra.”

The trial court identified three primary factors in support of its decision to grant Scott sole legal and physical custody of Savannah and Wyatt. First, the court concluded granting Tanya sole legal and physical custody of Sierra rendered her incapable of being “sole custodial or even joint custodial of Savannah and Wyatt when she is the sole custodial . . . of Sierra.” It explained, “The [c]ourt finds the notion of [Tanya] being sole custodial or even joint custodial of Savannah and Wyatt when she is the sole custodial or if she is the sole custodian of Sierra is a real problem. That is not going to work.” In support of this, the court identified one specific event, where Tanya left Savannah’s dance team workshop in Las Vegas early when Sierra suffered a seizure while under Scott’s care. “At the first sign that Sierra may have a problem [Tanya] abandons Savannah, and the [c]ourt can come up with no other word but abandonment.” The court determined this isolated event mandated that Tanya could not serve as joint custodian of Savannah and Wyatt, while sole custodian of Sierra. Testimony about the incident demonstrated Tanya left Savannah in the care of her trusted dance teacher to ensure she would not miss the rest of the workshop.

Second, the trial court found Sierra’s extraordinary emotional, medical, and educational needs created compelling circumstances requiring the court to separate the siblings in terms of custody and visitation. Third, the court negated any bond between the children on the grounds that “bonding runs two ways,” and Sierra’s handicap rendered her incapable of recognizing Savannah and Wyatt, and incapable of providing Savannah and Wyatt with any emotional support. The court expressed concern that any such “bonding” would simply be the result of Savannah and Wyatt’s parentification, i.e., the requirement they “parent” Sierra while in Tanya’s care.

The trial court acknowledged neither party supported or requested separating the three children. It further stated the “orders are harsh” and “not optimum for all of the children . . . [b]ut, in this situation the court must look to what is least deleterious for the children.”

DISCUSSION

Tanya appeals from the 2017 order granting Scott sole legal and physical custody of Savannah and Wyatt. She contends the 2017 order constituted an abuse of discretion because it was unsupported by evidence of changed circumstances. We agree. The 2017 order must be reversed and remanded.

Family Code section 3087 allows a parent to request modification of a joint custody order. “An order for joint custody may be modified . . . if it is shown that the best interest of the child requires modification . . . of the order.” (§ 3087.)

“California’s statutory scheme governing child custody and visitation determinations is set forth in the Family Code . . . . Under this scheme, ‘the overarching concern is the best interest of the child.’ [Citation.] [¶] For purposes of an initial custody determination, section 3040, subdivision (b), affords the trial court and the family ‘“the widest discretion to choose a parenting plan that is in the best interest of the child.”’ [Citation.] When the parents are unable to agree on a custody arrangement, the court must determine the best interest of the child by setting the matter for an adversarial hearing and considering all relevant factors, including the child’s health, safety, and welfare, any history of abuse by one parent against any child or the other parent, and the nature and amount of the child’s contact with the parents. [Citations.] [¶] Once the trial court has entered a final or permanent custody order reflecting that a particular custodial arrangement is in the best interest of the child, ‘the paramount need for continuity and stability in custody arrangements—and the harm that may result from disruption of established patterns of care and emotional bonds with the primary caretaker—weigh heavily in favor of maintaining’ that custody arrangement. [Citation.] In recognition of this policy concern, we have articulated a variation on the best interest standard, known as the changed circumstance rule, that the trial court must apply when a parent seeks modification of a final judicial custody determination. [Citations.] Under the changed circumstance rule, custody modification is appropriate only if the parent seeking modification demonstrates ‘a significant change of circumstances’ indicating that a different custody arrangement would be in the child’s best interest. [Citation.] Not only does this serve to protect the weighty interest in stable custody arrangements, but it also fosters judicial economy. [Citation.]” (In re Marriage of Brown & Yana (2006) 37 Cal.4th 947, 955-956.)

“The changed-circumstance rule . . . provides, in essence, that once it has been established that a particular custodial arrangement is in the best interests of the child, the court need not reexamine that question. Instead, it should preserve the established mode of custody unless some significant change in circumstances indicates that a different arrangement would be in the child’s best interest[s].” (F.T. v. L.J. (2011) 194 Cal.App.4th 1, 15.) We review a custody order for abuse of discretion. (In re Marriage of Burgess (1996) 13 Cal.4th 25, 32.) “This discretion may be abused by applying improper criteria or by making incorrect legal assumptions.” [Citation.] (Jane J. v. Superior Court (2015) 237 Cal.App.4th 894, 901.)

In order to demonstrate a change in circumstances warranting modification of a final custody order, the moving party bears the burden of persuasion to show how the circumstances have changed and why the modification is in the children’s best interests. (Burchard v. Garay (1986) 42 Cal.3d 531, 536-537.) The moving party must make a “‘threshold showing of detriment’” before an existing final custody order may be modified in the children’s best interest. (Christina L. v. Chauncey B. (2014) 229 Cal.App.4th 731, 738.) The court’s decision must be based on the standards governing all custody determinations. (§§ 3011, 3020, 3040.) For the children’s best interests, the primary concerns are the children’s health, safety, and welfare. (Ibid.) Furthermore, so long as consistent with the children’s best interest, the preference is for “frequent and continuing contact” with both parents. (Ibid.)

The crux of the custody battle in this tragic case was the legal and physical custody of Sierra. However, Sierra’s custody is not the subject of this appeal. Curiously, while neither party requested a custody modification as to Savannah and Wyatt, the trial court sua sponte awarded sole legal and physical custody of the pair to Scott. The court explained by granting Tanya sole legal and physical custody of Sierra, Tanya was incapable of being “sole custodial or even joint custodial of Savannah and Wyatt when she is the . . . sole custodian of Sierra.” In support of its decision, the court cited to one specific event when Tanya returned early from Savannah’s dance workshop in Las Vegas when Sierra suffered a seizure while in Scott’s care.

The trial court, without legal or evidentiary support, referred to the event as “abandonment” of Savannah. It apparently equated the event as posing a detriment to Savannah sufficient to warrant a modification of the 2015 order. We sympathize with Tanya’s difficult choice of staying with Savannah or returning home to check on Sierra’s serious medical condition. Contrary to the court’s description of the event, however, it appears Tanya did everything a parent could be expected to do under the circumstances. Tanya did not simply leave Savannah behind, or even make her miss her workshop. Instead, Tanya arranged for Savannah to be cared for and brought home by her trusted dance instructor. This isolated incident lends no support for the court’s conclusion Tanya is unable to maintain custody of Savannah and Wyatt while she is the sole custodian of Sierra. There was no threshold showing of detriment warranting a modification. This is not surprising because there was no moving party—neither side requested a modification as to the custody of Savannah and Wyatt.

Contrary to the trial court’s finding of detriment warranting modification, the record is replete with Tanya’s commendable achievements as a mother to all three children. The evidence at trial demonstrated Tanya appropriately, and indeed admirably, balanced time constraints posed by Sierra’s severe disabilities with the needs of her able bodied younger children. Tanya does not attempt to provide Sierra’s required 24-hour care. She hired two to three nurses to assist with caring for Sierra and her medical needs. This assistance with Sierra allows Tanya to be involved with Savannah and Wyatt. It was undisputed that Savannah and Wyatt are healthy, happy, and well-adjusted children. Testimony showed Tanya spends “alone time” with Savannah and Wyatt and she tries to find time for each of the children for a “one-on-one” every single day. Tanya participated at school with all three children, and was room mom every year for the children in elementary school. She has taken all children on family trips and sleep overs with friends. She attended baseball games for Wyatt, dance classes and recitals for Savannah, took Savannah shopping, hosted Cub Scout activities for Wyatt, and more. Tanya ensured the younger children participated in family activities and spent time with their friends. Scott did not argue otherwise.

Nothing in the record demonstrates the trial court weighed Savannah’s and Wyatt’s interests in the stability of their current custodial arrangement. The court did not address the potential harm to Savannah and Wyatt from losing Tanya as a custodial parent. The court lacked any evidence Tanya’s care for Sierra and her serious medical needs resulted in deficient care of Savannah and Wyatt.

Tanya also contends the trial court erred because it failed to properly consider the siblings’ bond before separating the children. We agree.

We recognize California public policy that “the sibling bond should be preserved whenever possible.” (In re Marriage of Heath (2004) 122 Cal.App.4th 444, 449-450 (Marriage of Heath).) Absent evidence of compelling circumstances, including extraordinary emotional, medical or educational needs, an order separating siblings between custodial households ordinarily will be reversed as detrimental to the children’s best interest. (Marriage of Williams (2001) 88 Cal.App.4th 808, 814-815 (Williams).) The trial court must consider the children’s interest in having a meaningful opportunity to share each other’s lives and the potential detriment to them from being separated. (Marriage of Heath, supra, 122 Cal.App.4th at pp. 449-450.)

‘“Children are not community property to be divided equally for the benefit of their parents. . . . At a minimum, children have a right to the society and companionship of their siblings.”’ (Marriage of Heath, supra, 122 Cal.App.4th at p. 449.) Furthermore, a developmental disability is not a per se compelling circumstance warranting separation. “[T]he bond between siblings should not be severed without a careful analysis of the actual impact of one child’s condition on the other, as well as the impact of separation on both children.” (Id. at pp. 450-451.)

The trial court determined Sierra’s medical condition was evidence of compelling circumstances warranting separation of the siblings. It ignored established precedent that a disability is not automatically evidence of compelling circumstances. The court determined because Sierra could not recognize her siblings as such, the sibling bond was inapplicable. It further expressed concerns about the “parentification” of Savannah and Wyatt. However, the evidence did not support these concerns. To the contrary, Sierra’s neurologist testified she has the cognitive ability to appreciate her social surroundings, recognize her parents, and the ability to feel emotions such as fear and happiness. Ample testimony supported the children’s bond with one another. The evidence also showed both Savannah and Wyatt do funny things for Sierra just to make her laugh. Similarly, there was no evidence presented as to the “parentification” of Savannah and Wyatt. No custody evaluation was ordered. The 2017 order instead appeared to be supported by the court’s speculation about the dynamics between the siblings. This was insufficient.

In Marriage of Heath, the father in a dissolution proceeding sought to separate custody of the couple’s two sons. (Marriage of Heath, supra, 122 Cal.App.4th at p. 448.) One son had autism and the other mimicked his brother’s behavior. (Id. at pp. 447-448.) The trial court ordered the sons separated, even though the record was silent as to the relationship between the children, the true impact, if any, of one brother’s autism on the other, and the impact of losing the sibling bond. (Ibid.) “No testimony was taken, no custody evaluation was ordered [citation], no expert analysis was undertaken. Instead, the court relied on speculation by the father and children’s counsel, and the court’s ‘hunch.’ The law, however, requires proof of compelling circumstances, based on evidence that the family law court can evaluate and this court can review. [Citation.] Speculation by lawyers, conflicting argument on behalf of parents, and ‘hunches’ of judges do not suffice. Even on the deferential abuse of discretion standard, this order cannot be affirmed.” (Id. at p. 450.)
Similar to Marriage of Heath, the record is devoid of any negative impact on Savannah and Wyatt caused by Sierra and her medical conditions. Instead, there are numerous references to the strong bond between the three children. Contrary to the trial court’s comments, there was no evidence Sierra could not participate in a sibling relationship. Admittedly, such a relationship would not function as a “traditional” older sister with her younger siblings, but that is not, and should not, be the test. The court is not to judge a familial relationship based upon a preconceived notion of what a “normal” sibling relationship looks like. Testimony demonstrated the siblings had mutual bonds and Sierra’s cognitive state was akin to that of a one-year-old to 18-month-old child. Children of that age indeed have relationships with their families, and dismissing the impact of separating the siblings based purely on Sierra’s disability was error. Furthermore, there was insufficient evidence of the supposed “parentification” of Savannah and Wyatt. Given the court’s failure to apply the proper legal standards and its application of assumptions unsupported by the evidence, we reverse the 2017 order.

DISPOSITION

The trial court’s 2017 order granting sole legal and physical custody of Savannah and Wyatt to Scott is reversed. The 2015 order is reinstated as it pertains to Savannah’s and Wyatt’s custody, without prejudice to either party seeking modification of the 2015 order based upon any changed circumstances that may have arisen during the pendency of this appeal. Tanya shall recover her costs on appeal.

O’LEARY, P. J.

WE CONCUR:

FYBEL, J.

IKOLA, J.

Case Name: Herriot v. Diep, et al.
Case No.: 17CV308646

Defendant/cross-complainant/cross-defendant Jeannette D. Kennedy, as Trustee of the Jeannette D. Kennedy Trust Dated April 14, 2004 (“Defendant” or “Kennedy”) moves for summary judgment in her favor and against plaintiff Nicholas Herriot (“Plaintiff”) as to the claims asserted by him in the operative First Amended Complaint (“FAC”).

I. Background

A. Factual

This is a personal injury action. On or about April 24, 2015, Plaintiff was riding his bicycle northbound on Middlefield Road near the intersection of Lowell Avenue in Palo Alto. (FAC, ¶ 8.) As Plaintiff was riding his bicycle, he was struck by a 2005 Gray Acura TL that was “owned, controlled, maintained, entrusted, handled, managed, supervised, operated and/or possessed” by defendants Diep Diep (“Diep”) and Ching-Pei Hu (“Hu”). (Id. at ¶¶ 4 & 8.) As a result of the accident, Plaintiff suffered serious and permanent injuries. (Id. at ¶ 8.)

Plaintiff alleges that Diep and Hu caused his injuries by “negligently and carelessly driving, owning, operating, controlling, entrusting, handling, possessing, managing and maintaining” the 2005 Gray Acura TL. (FAC, ¶¶ 10-12.)

Plaintiff further alleges that Kennedy “owned, leased, rented, occupied, possessed, designed, constructed, developed, landscaped, operated, inspected, repaired, maintained, modified, managed, controlled, failed to adequately landscape and/or supervised” real property located at the intersection of Middlefield Road and Lowell Avenue. (FAC, ¶¶ 5-6 & 16.) At the time of the accident, the subject property “contained trees, shrubs, plants, hedges and the like that either partially or completely obstructed the view of motor-vehicle traffic that was merging onto Middlefield Road from Lowell Avenue.” (Id. at ¶¶ 7 & 17.) Kennedy “negligently and carelessly owned, leased, rented, occupied, possessed, designed, constructed, developed, landscaped, operated, inspected, repaired, maintained, modified, managed, controlled and/or supervised the [property], permitted or created the dangerous condition, increased the risk of harm or created a false sense of safety (i.e., reliance on the undertaking) at or near the [property] so as to cause Plaintiff to encounter a dangerous and deceptive condition, and thereby directly causing the injuries and damages to [Plaintiff].” (Id. at ¶ 19.) More specifically, Kennedy “failed to adequately landscape … bushes, plants, trees and hedges located in the front portion of the property … .” (Id. at ¶ 5.)

Lastly, Plaintiff alleges that Kennedy was “subject to and violated … Section 8.04.050(a)(3) and (6) of Chapter 8.04, Section 9.56.030(a)(5), (8) and (21) of Chapter 9.56 and Sections 1624.020, 16.24.040, 16.24.080 of Chapter 16.24 of the Palo Alto Municipal Code,” regarding “sight visibility at intersections and public safety.” (FAC, ¶ 24.) These violations allegedly “caused Plaintiff’s injury, the occurrence resulting in the injury was of a nature that the regulations were designed to prevent[,] and Plaintiff was among the class of persons for whose protection the regulations were adopted.” (Id. at ¶ 24.)

B. Procedural

Based on the foregoing allegations, Plaintiff filed the operative FAC on January 24, 2019, against Diep, Hu, and Kennedy, alleging causes of action for: (1) negligence (against Diep and Hu); (2) premises liability/negligence (against Kennedy); and (3) negligence per se. Kennedy’s subsequent demurrer to the third cause of action on the ground of failure to state facts sufficient to constitute a cause of action was sustained by the Court without leave to amend in April 2019, leaving a single claim remaining against her. On August 29, 2019, Defendant filed the instant motion for summary judgment. Plaintiff opposes the motion.

II. Plaintiff’s Request for Judicial Notice

In support of his opposition to Defendant’s motion, Plaintiff requests that the Court take judicial notice of the following: (1) various provisions of the Palo Alto Municipal Code (Exhibit A); (2) various provisions of the California Vehicle Code (Exhibit B); (3) the City of Palo Alto’s Visibility Project (Exhibit C); (4) various deposition exhibits (photographs) (Exhibit D); and (5) Google Earth photographs taken of the subject intersection before the incident took place (Exhibit E).

The Court will take judicial notice of Exhibits A and B. (See Evid. Code, § 452, subd. (b).) It is not appropriate to take judicial notice of photographs, so the Court will not take judicial notice of Exhibits D and E. And Exhibit C is a city document. Thus, it is not an “[o]fficial act[] of the legislative, executive, and judicial departments of the United States and of any state of the United States.” The Court hence will not take judicial notice of Exhibit C.

III. Defendant’s Motion for Summary Judgment

Given the Court’s prior order sustaining Defendant’s demurrer, one cause of action remains against her: premises liability/negligence. Premises liability is a form of negligence. (Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619.) She seeks judgment in her favor as to this claim.

A. Burden of Proof

“A defendant seeking summary judgment [or adjudication] must show that at least one element of the plaintiff’s cause of action cannot be established, or that there is a complete defense to the cause of action … The burden then shifts to the plaintiff to show there is a triable issue of material fact on that issue.” (Alex R. Thomas & Co. v. Mutual Service Casualty Ins. Co. (2002) 98 Cal.App.4th 66, 72 [internal citations omitted].)

“The ‘tried and true’ way for defendants to meet their burden of proof on summary judgment motions is to present affirmative evidence (declarations, etc.) negating, as a matter of law, an essential element of plaintiff’s claim.” (Weil & Brown, Cal. Prac. Guide; Civ. Proc. Before Trial (The Rutter Group 2014) ¶ 10:241, p. 10-104, citing Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) “The moving party’s declaration and evidence will be strictly construed in determining whether they negate (disprove) an essential element of plaintiff’s claim ‘in order to resolve any evidentiary doubts or ambiguities in plaintiff’s (opposing party’s) favor.’” (Id., ¶ 10:241.20, p. 10-105, citing Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64.)

“Another way for a defendant to obtain summary judgment is to ‘show’ that an essential element of plaintiff’s claim cannot be established. Defendant does so by presenting evidence that plaintiff ‘does not possess and cannot reasonably obtain, needed evidence’ (because plaintiff must be allowed a reasonable opportunity to oppose the motion).” (Id., ¶ 10:242, p. 10-105, citing Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854-855.) “Such evidence usually consists of admissions by plaintiff following extensive discovery to the effect that he or she has discovered nothing to support an essential element of the cause of action.” (Id.)

B. Analysis

With the instant motion, Defendant maintains that she is entitled to summary judgment for the following reasons: (1) she owed Plaintiff no duty of care because the landscaping on her property did not contribute to his accident; and (2) even if she did owe Plaintiff a duty of care, Plaintiff cannot establish that her property was improperly maintained or that it violated municipal codes and thus was a cause of the accident.

1. Defendant’s Duty of Care

The existence of a duty of care is an essential element of Plaintiff’s claim for negligence/premises liability. (Sprecher v. Adamson Companies (1981) 30 Cal.3d 358, 362.) As relevant here, a landowner “owes a duty to exercise reasonable care to maintain his or her property in such a manner as to avoid exposing others to an unreasonable risk of injury.” (Barnes v. Black (1999) 71 Cal.App.4th 1473, 1478, internal citations omitted.) The existence of a duty in the first instant is an issue of law for the court to decide. (Alcarez v. Vece (1997) 14 Cal.4th 1149, 1162, fn. 4.)

The following factors, often referred to as the “Rowland factors,” are used to determine the scope of the landowner’s duty of care under the relevant circumstances: “the foreseeability of harm to the injured party; the degree of certainty he or she suffered an injury; the closeness of the connection between the defendant’s conduct and the injury suffered; the moral blame attached to the defendant’s conduct; the policy of preventing future harm; the extent of the burden to the defendant and the consequences to the community of imposing a duty of care with resulting liability for breach; and the availability, cost, and prevalence of insurance for the risk involved.” (Barnes v. Black, supra, citing Rowland v. Christian (1968) 69 Cal.2d 108, 113.)

Here, the injuries suffered by Plaintiff are not alleged to have occurred directly on Defendant’s property, but rather adjacent to it. However, “[a] landowner’s duty of care to avoid exposing others to risk of injury is not limited to injuries that occur on premises owned or controlled by the landowner. Rather, the duty of care encompasses a duty to avoid exposing persons to risks of injury that occur off site if the landowner’s property is maintained in such a manner as to expose persons to an unreasonable risk of injury off-site.” (Barnes v. Black, 71 Cal.App.4th at 1478, citing McDaniel v. Sunset Manor Co. (1990) 220 Cal.App.3d 1, 7-8.) The aforementioned Rowland factors determine the scope of a duty of care whether the risk of harm is situated on site or off site. (McDaniel v. Sunset Manor Co., 220 Cal.App.3d at 7-8.)

With the foregoing in mind, Defendant first endeavors to negate the element of a duty of care by establishing that the injury to Plaintiff was not foreseeable and that the condition of her landscaping was not the cause of, i.e., closely connected to, Plaintiff’s accident. In support of these assertions, Defendant submits the following undisputed material facts: Defendant’s property, which she has owned since 1963, is regularly maintained by Moffett Landscaping Services. (Defendant’s Separate Statement of Undisputed Material Facts in Support of Motion for Summary Judgment (“UMF”) Nos. 1, 2.) Defendant has never received any notices, warnings, or citations regarding the landscaping of her property from the City of Palo Alto. (UMF No. 3.)

On the morning of April 24, 2015, Plaintiff, whose bicycle was his main form of transportation and was ridden by him daily, was riding his bicycle from his home to work. (UMF Nos. 4, 6.) Plaintiff was riding his bicycle northbound on the sidewalk abutting the southbound side of Middlefield Road (“Middlefield”). (UMF No. 7.) Plaintiff approached the intersection of Middlefield and Lowell Avenue (“Lowell”) intending to cross the street and did not believe that he was required to stop at the intersection because there was a stop sign for vehicles proceeding from Lowell onto Middlefield. (UMF No. 8.) Plaintiff reached the wheelchair ramp on the sidewalk prior to entering the roadway and observed Diep’s vehicle. (UMF No. 9.)

Diep was in his vehicle intending to turn right onto Middlefield and stopped at the limit line and was able to see if there were any pedestrians on the sidewalk to his right. (UMF No. 11.) Witness Janie Larios (“Larios”) was driving northbound on Middlefield intending to make a left turn onto Lowell when she observed Plaintiff on his bicycle travelling on the sidewalk in the same direction she was traveling. (UMF Nos. 12, 13.) Larios further observed Diep stopped on Lowell waiting to turn right onto Middlefield. (UMF No. 14.)

Plaintiff’s bicycle and Diep’s vehicle collided, resulting in Plaintiff suffering a fracture to his lower left leg. (UMF Nos. 15, 19.) Following the collision, Diep did not move his vehicle from its place of rest. (Id.) Palo Alto police officers arrived at the accident scene and a photograph they took show that Diep’s vehicle had started its turn when hit by Plaintiff and the accident occurred beyond the landscaping on Defendant’s property. (UMF No. 16.)

Based on the foregoing facts, Defendant contends that Plaintiff failed to use reasonable care while approaching the intersection on his bicycle and that she could not foresee such a failure on his part. She notes that he was riding his bicycle on the wrong side of the street in violation of Section 21650.1, which provides that “[a] bicycle operated on a roadway, or the shoulder of a highway, shall be operated in the same direction as vehicles are required to be driven upon the roadway.” While this statute does not require bicycles to travel with the flow of traffic when ridden on a sidewalk because a sidewalk is not a “shoulder of a highway” (see Spriesterbach v. Holland (2013) 215 Cal.App.4th 255), at the time he was struck, Plaintiff was no longer on the sidewalk but rather in the roadway crossing the street.

Defendant asserts that Plaintiff was obligated to use reasonable care in approaching the intersection and failed to do so in entering it at full speed, in the wrong direction, rather than slowing down to observe if it was safe to cross. If his view was indeed obstructed by the hedge, Defendant maintains, all the more reason that Plaintiff should have approached the intersection with caution. She also contends that the photograph of the scene taken by the police shows that (1) the hedges are well maintained and do not encroach on the sidewalk; (2) the sidewalk is visible from the limit line; and (3) the intersection is viewable from the sidewalk. (Defendant’s Exhibit G.) It also shows, she continues, that the collision occurred after the limit line and well beyond the hedges of her property, and when Diep had already started to turn. (Id.) Indeed, the picture shows the vehicle in mid-turn, and nearly halfway past the limit line when the collision occurred. Plaintiff struck the side of the vehicle. Defendant notes that when asked at his deposition whether he saw Diep’s vehicle in the time leading up to the collision Plaintiff responded, “very briefly,” and then explained that that meant as follows: “So, hedge, me, barely past, saw him turning.” (Defendant’s Exhibit C at 43:18-25.) He further explained that he saw the vehicle when he arrived at the wheelchair ramp. (Id. at 48: 3-19.)

The foregoing evidence, Defendant explains, clearly demonstrates that not only did Plaintiff not approach the intersection in a reasonable way and collided with Diep’s vehicle as a result, but that the landscaping of her property was not the cause of the accident. Therefore, she explains, she did not owe Plaintiff a duty of care, or breach any duty if one existed.

The Court finds the foregoing sufficient to meet Defendant’s initial burden. The evidence submitted by Defendant shows that Plaintiff approached and entered into the intersection of Middlefield and Lowell in a wholly unreasonable way- in the wrong direction and at full speed despite an inability to see the entirety of the intersection- so as to be unforeseeable by Defendant. The photographs submitted by Defendant of the accident scene (and in fact the photographs submitted by Plaintiff as well) establish that Diep’s vehicle was well over the limit line when Plaintiff collided with the side of it at full speed. (Defendant’s Exhibit G; Declaration of Megan Irish in Support of Opposition to Motion for Summary Judgment (“Irish Decl.”), ¶¶ 8, 9 and Exhibits D and E.) The hedges on Defendant’s property did not encroach on the sidewalk, nor did they obstruct the view of the street crossing from one side of Lowell to the other. Further, the sidewalk was viewable from the limit line such that when vehicle was stopped there, the driver would be able to see pedestrians, etc. coming down the sidewalk ramp. Plaintiff testified that he was able to briefly see the vehicle before colliding with it; had he operated his bicycle in a more cautious manner as he approached the intersection, i.e., not at full speed and in the wrong direction, it seems likely he would have had have time to either lesson the resulting impact with the vehicle or avoid it completely.

Defendant’s evidence also establishes the lack of a close connection between the landscaping on her property and Plaintiff’s collision with Diep’s vehicle, with Plaintiff’s actions being the primary cause, and the moral blame attached to her “conduct,” as it were, is not significant, with Defendant noting that she has never received any notices, warning or citations from the City of Palo Alto regarding the landscaping of her property, and both Diep and Plaintiff testified to having been able to view the sidewalk/street.

Defendant addresses allegations that she violated Palo Alto Municipal Code sections 8.04.050(a)(3), 9.56.030(a)(5), (8) and 21, 16.24.020, 16.24.020, 16.24.040 and 16.24.080, which relate to sight visibility at intersections and public safety and pertain to Plaintiff’s claim for negligence per se. However, given that the Court sustained Defendant’s demurrer to this cause of action without leave to amend, and that the foregoing allegations were contained entirely within that claim, Defendant need not address these particular municipal code provisions in order to meet her initial burden on this motion (contrary to what Plaintiff contends in his opposition) because they no longer exist in the operative pleading.

Nevertheless, Defendant appears to address these provisions in anticipation of Plaintiff relying on a negligence per se theory. Defendant argues that Plaintiff cannot establish that she violated the aforementioned provisions because none actually apply to her property. The first section at issue, 8.04.050, defines public nuisances. Subdivision (a)(3), which Plaintiff insists Defendant’s landscaping was in violation of, specifically reads as follows:

(a) The following are, for the purposes hereof, defined to be public nuisances:
(3) Any tree limb, shrub, hedge, or plant reaching a height more than three feet above the curb grade adjacent thereto, except tree trunks having no limbs lower than nine feet above curb grade, within the thirty-five foot triangle of public or private property, measured from the projected curb lines, at the intersections of any street improved for vehicular traffic where either traffic signals, stop signs, or yield signs are not installed, or at any intersections which are determined by the chief transportation official to contain tree limbs, shrubs, hedges, or plants that obscure an impair the view of passing motorists, cyclists or pedestrians to as to create a safety hazard.

(Emphasis added.)

As Defendant notes, the foregoing section is clearly inapplicable to the intersection where the subject incident took place because it is controlled by a stop sign on Lowell. In an effort to demonstrate the existence of a triable issue of material fact, Plaintiff nevertheless argues that it does apply because there was no stop sign or signal on Middlefield, but this section applies to intersections and not individual streets. The intersection in question was controlled by a stop sign, and thus this section is inapplicable to the circumstances at bar. Plaintiff asserts that road users traveling up and down Middlefield have no controls and therefore no obligation to stop, giving them the right of way. This argument, however, ignores the fact that when the collision occurred Plaintiff was traveling in the wrong direction in the roadway per Vehicle Code section 21650.1 and had a duty to approach the intersection with due care.

Plaintiff also take pains in his opposition to establish that he was legally permitted to ride on the sidewalk. While it is true that he was permitted to do so, the subject collision did not occur when he was on the sidewalk, but rather when he was in the roadway. Upon entering the roadway, Plaintiff was obligated to comply with the Vehicle Code section 21650.1 which, as stated above, requires a bicycle operated on the road to “be operated in the same direction as vehicles are required to be driven upon the roadway.” (Emphasis added.) He did not do so. Further, merely because Plaintiff was permitted to ride on the sidewalk does not mean that he did not have a duty to operate his bicycle in a reasonable manner when he approached the intersection of Middlefield and Lowell travelling at full speed, entering into the roadway from the wrong direction. Contrary to Plaintiff’s assertions, the Court does not agree that it is foreseeable that a bicyclist will enter the intersection of Middlefield and Lowell at full speech travelling the wrong way.

Palo Alto Municipal Code sections 9.56.030(a) describes conditions that constitute a nuisance and require abatement once an enforcement officer determines that such conditions exist upon a premise and that abatement is necessary. The subsections of this subdivision cited by Plaintiff as being violated by Defendant’s landscaping, (5), (8) and (21), simply spell out nuisances that an enforcement officer has the authority to demand abatement of by a property owner. Here, however, nothing on Defendant’s property was ever identified as a public nuisance by the City of Palo Alto that she was required to abate. (UMF No. 3.)

Plaintiff additionally argues that Defendant’s hedges violated the height requirements set forth in Municipal Code sections 16.24.020, 16.24.040 and 16.24.080, but these sections apply to “fences” and, as Defendant persuasively argues, the Municipal Code distinguishes “fences” and “hedges” by listing both within definitions articulated in other portions of the code. In any event, even if these sections do apply, Plaintiff offers nothing which establishes that the hedges actually obstructed Diep and Plaintiff’s view of each other. Diep testified that he was able to see the sidewalk ramp to his right and Plaintiff that he was able to (briefly) see Diep’s vehicle before the collision.

Plaintiff also insists that a triable issue of material fact exists with respect to Diep and Defendant as contributing factors to his accident and thus whether they are concurrently liable. He argues that that in addition to the question of whether Defendant’s foliage exceeded permissible height regulations provided by the Palo Alto Municipal Code, there is also a dispute as to whether Diep fully checked the sidewalk before he proceeded from a stop on Lowell to making a right onto Middlefield. However, even if the latter is true, it has no bearing on the issue of whether Kennedy bears any culpability for the subject collision, only on whether Diep does.

In sum, Plaintiff fails to establish the existence of a triable issue of material fact with respect to Kennedy’s culpability for his injury. Consequently, Defendant’s motion for summary judgment is GRANTED.

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Case Name: Helen Theresa Givens v. Roy Anthony Givens, et al.
Case No: 17CV311029

I. Background

Plaintiff Helen Givens (“Plaintiff”) brings this action against her former husband, Roy Givens (“Husband”) and several other defendants for damages associated with domestic violence and financial abuse.

According to the allegations of the third amended complaint (“TAC”), and relevant here, defendant Banner Bank (“Banner”) is a Washington state chartered bank headquartered in Walla Walla, Washington. (TAC, ¶ 17.) Plaintiff and Husband purchased property in Newport, Washington and Banner issued home equity lines of credit (“HELOC”), secured by the property. (Id. at ¶ ¶177, 179, 180.) The loans was sought by Husband, who caused a third person to fraudulently notarize the bank documents. (Id. at ¶ ¶ 179, 181.) The lines of credit exceeded the value of the property, and Plaintiff was unaware of their existence. (Id. at ¶¶ 179, 182.) The terms of the loan were subsequently modified two times in 2013 and 2015, but Plaintiff did not sign the documents. (Id. at ¶¶184, 186.)

Banner sold the loans to Bank of New York, who hired Sellpoint, a mortgage servicer, to foreclose on the loan. (TAC, ¶ 187.) At the time of the foreclosure, Plaintiff was in discussions to modify the loans at issue. (Ibid.)

In December 2014, Plaintiff’s family law attorney discovered the HELOC and contacted Banner alleging that the signature on the application purported to be Plaintiff’s was a forgery. (TAC, ¶¶ 190, 191.) Banner did not respond. (Ibid.) However, Banner reported Plaintiff’s default on the account to the credit reporting agencies. (Id. at ¶ 193.) Though Plaintiff tried to dispute her liability for the HELOC, Banner did not conduct a reasonable investigation and did not instruct the credit reporting agencies to delete the fraudulent account. (Id. at ¶ 196.)

As a result of the foregoing, Plaintiff asserts three causes of action against Banner for: (13) Breach of Duty; (14) violations of the Fair Credit Reporting Act; and (15) violations of the California Consumer Credit Reporting Agencies Act.

Presently before the Court is Banner’s motion to quash the third amended summons.

II. Judicial Notice

In support of its motion to quash, Banner seeks judicial notice of six court records from this action, and three court records from a federal action in case number 3:18-cv-02374.

Judicial notice may be taken of any matter authorized or required by law. (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113, citing Evidence Code §§ 451 & 452.) Any matter judicially noticed must be relevant to a material issue. (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2.)

A court may take judicial notice of court records. (Evid. Code, § 452, subd. (d).) However, the court does not take judicial notice of the truth of the facts as stated, but may take notice that documents “say what they say.” (Hamilton v. Greenwich Investors XXVI, LLC (2011) 195 Cal.App.4th 1602, 1608, fn. 3.)

As a result, the Court will take judicial notice of the six documents from the present action, which include the original complaint, a proof of service on Husband, Plaintiff’s Case Management Statement filed on January 8, 2018, Plaintiff’s Ex Parte Application to file the TAC, the TAC itself and the Third Amended Summons issued in this action on December 18, 2018 as they are all court documents relevant to the material issue of proper service of summons.

Likewise, the Court will take judicial notice of the three documents in the federal case including the Complaint for violations of the Fair Credit Reporting Act and the California Civil Code filed in April 2018, a declaration filed by Plaintiff in that action in June 2018, and the Clerk’s Notice of Trial filed in that action. These are also relevant to the material issue of proper service of summons.

Consequently, Banner’s request for judicial notice is GRANTED.

III. Motion to Quash

Banner moves to quash service of summons pursuant to Code of Civil Procedure section 418.10 subdivision (a)(1) on the ground of lack of personal jurisdiction on the basis that it was wrongfully served as a “Doe” defendant.

A. Legal Standard

In a motion to quash summons on the ground of lack of jurisdiction, though defendant is the moving party, the burden of proof is upon the plaintiff to establish the facts of jurisdiction by a preponderance of the evidence. (Evangelize China Fellowship, Inc. v. Evangelize China Fellowship, Hong Kong (1983) 146 Cal.App.3d 440, 444 (Evangelize).) That burden may be met by declarations, verified complaint or other evidence. (2 Witkin, California Procedure (4th ed. 1996) Jurisdiction, §211, p. 775 – 776.)

B. Noncompliance with Code of Civil Procedure section 474

Code of Civil Procedure section 474 allows a plaintiff who is ignorant of a defendant’s identity to designate the defendant in a complaint by a fictitious name, and then to subsequently amend the pleading to state the defendant’s true name when he or she discovers it. However, the procedure is only available when the plaintiff is actually ignorant of the facts establishing a cause of action against the party to be substituted for a Doe defendant. (McClatchy v. Coblentz, Patch, Duffy & Bass, LLC (2016) 247 Cal.App.4th 368, 372 (“McClatchy”) citing Optical Surplus, Inc. v. Superior Court (1991) 228 Cal.App.3d 776, 783.) Improper service of a defendant under section 474 may be attacked by a motion to quash service of summons. (Id. at 375.) The question is whether the plaintiff knew, or reasonably should have known that he or she had a cause of action against the defendant. (Id. at 372.)

In McClatchy a trust beneficiary sued a law firm partner and “Does 1 through 2” for breach of trust and two years later amended the pleading to name the law firm as a defendant pursuant to section 474. (McClatchy v. Coblentz, Patch, Duffy & Bass, LLC, supra, 247 Cal.App.4th 368, 372.) However, with its motion, the law firm produced evidence that the partner had conducted business at the law firm’s offices, and utilizing its stationery in administering the trust, sufficient to show that plaintiff knew or should have known of his cause of action against it.

Here, Plaintiff submits a declaration in opposition to the motion. Banner raises several evidentiary objections, including that the declaration lacks relevance pursuant to Evidence Code section 210. The Court agrees and notes the declaration is devoid of statements regarding Plaintiff’s late discovery of Banner as a defendant in this action. The Court also observes that the declaration conspicuously omits the dates of discovery of the Banner HELOC referenced in the TAC rendering those statements that may tend to prove or disprove a material facts irrelevant. (Pl. Dec in Opp. to Def. MTQ at ¶¶ 6, 13, 16.) It also misstates the date of filing of the action in Plaintiff’s federal case as April 19, 2019, when the actual date of filing was April 18, 2018. (Id. at ¶ 20; Def. RJN, Exhibit 7.) This is particularly concerning given the materiality of dates and timelines required in amending a pleading to add a newly discovered “Doe” defendant. Consequently, the Court sustains Banner’s objection to Plaintiff’s declaration on the ground of relevance.

Attached to her declaration, Plaintiff also submits numerous documents but offers no basis for the Court to consider them beyond a statement that they are “true and correct copies.” These documents are: (1) a confidential financial statement; (2) IRS form regarding innocent spouse finding; (3) a Deed of Trust; (4) a letter from the California Secretary of State regarding participation in the “Safe at Home” program; (5) a customer identification worksheet provided to Banner; (6) medical records (specifically endoscopic pictures); (7) Deed of Trust; (8) Deed of Trust; (9) Equity Line Agreement; (10) a statement labeled “Form 1040”; (11) Schedules “A and B” from tax form 1040; (12) Tax form 1040, 2009; (13) a promissory note; (14) a stock transfer agreement in shares of Pantrol, Inc.; (15) emails related to debt consolidation; (16) a loan history print out; (17) an email from lender regarding amount past due; (18) an unlabeled/unsigned timeline of events; (19) an opinion letter from a forensics expert; (20) an undated letter from Plaintiff’s counsel to Banner Bank; (21) a mortgage statement from Shellpoint; (22) a notice of postponement of Trustees’ sale; (23) a loan history print out from Banner; (24) a TransUnion credit report; (25) a change in terms agreement for a loan; (26) a property tax bill; (27) print out from social media or website; (28) a declaration submitted by Banner in the federal lawsuit; (29) interrogatories propounded in the federal lawsuit; (30) request for documents propounded in the federal lawsuit; (31) report of forensic document examiner and various documents she considered, labeled as “Exhibit Y”; (32) an illegible document on Banner Bank stationery; (33) an illegible “amendment to business loan agreement”; and (34) financial documents produced by Banner in discovery in the federal lawsuit (including appraisal documents, loan applications, financial statements; underwriters’ report, title insurance documents, deed of trust; HELOC application).

Banner objects to the admission of these documents on many grounds, including hearsay, lack of foundation, vague and ambiguous, and relevance. The Court sustains Banner’s objections on the basis of hearsay as a mere prefatory statement that the documents, which were not prepared by the declarant, are “true and correct” does not render them admissible. Furthermore, Plaintiff offers no argument that they are either not hearsay, or that some exception applies. (Evid. Code § 1200 et seq.)

In any event, to the extent that any of the documents are not submitted for the truth of the matter asserted, the court sustains the objection on the ground of relevance as to each of the documents. None is specifically directed at Plaintiff’s late discovery of Banner having possible liability in this action. In fact, to the extent they are considered by the Court at all, the Court observes that numerous of the documents, dating back into the early 2000’s, name Banner as Plaintiff and Husband’s mortgage lender, including on the original deed of trust, tending to disprove her ignorance of its relationship to her family and possible claims against it.

Therefore, the Court relies on statements in the verified TAC as well as matters of which it takes judicial notice. The preponderance of this evidence shows that while Plaintiff complied with section 474 by designating “Doe” defendants in her original complaint, her amendment to the pleading in December 2018 adding Banner as a named defendant is not compliant. In fact, the TAC itself defeats any claim that Plaintiff did not know Banner’s name and needed to initially designate it as a “Doe” defendant. As alleged, “It was not until December 2014, that [P]laintiff’s family law attorney discovered that [P]laintiff’s ex-husband had obtained the HELOC.” (TAC, ¶ 190.) It if further alleged that “On January 26, 2015, [P]laintiff’s family law attorney sent Banner Bank a letter informing it that… ex-husband had obtained the HELOC without her knowledge.” (Id. at ¶ 191.) Therefore, when the original complaint was filed in May of 2017, as her facts assert, Plaintiff was aware of the loans obtained by Husband from Banner and had been for two years.

The facts also allege that in January and March of 2018, Plaintiff sent dispute letters to the credit reporting agencies, informing them that the “Banner Bank HELOC account was opened fraudulently…” (TAC, ¶ 194.) Furthermore, the Court takes judicial notice of the complaint filed in federal court on April 19, 2018, wherein Plaintiff has sued Banner for violations of the Fair Credit Reporting Act and the California Civil Code. (Def. RJN, Exhibit 7.) Even assuming that Plaintiff was not aware of Banner’s name at the time she filed the original complaint in the present action, the evidence shows that she became aware of Banner, and her claims against them at least in January of 2018 and no later than April 2018. Therefore, her amendment was not compliant with section 474 in that she did not amend the pleading “when she discovered” Banner’s true name as she waited up to eleven months to amend accordingly.

Thus, the preponderance of the evidence shows that Plaintiff knew or should have known of possible liability by Banner in 2017 when she originally filed her complaint in this action. To the extent she did not, she knew or should have known many months before she amended her pleading to add Banner. Consequently, her amendment does not comply with Code of Civil Procedure section 474.

Consequently, Banner Bank’s motion to quash service of summons on the ground of lack of jurisdiction is GRANTED.

The Court will prepare the order.

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Calendar line 5
Case Name: Helen Theresa Givens v. Roy Anthony Givens, et al.
Case No: 17CV311029

IV. Background

Plaintiff Helen Givens (“Plaintiff”) brings this action against her former husband, Roy Givens (“Husband”) and several other defendants for damages associated with domestic violence and financial abuse.

According to the allegations of the third amended complaint (“TAC”), and relevant here, First Interstate Bancsystem, Inc. (“Interstate”) is a financial holding company based in Billings, Montana. (TAC, ¶ 15.) It is the successor in interest by merger to Inland Northwest Bank (“Inland”), whose principal place of business is in Spokane, Washington. (Ibid) Plaintiff was a customer of Inland. (Id. at ¶ 138.)

Following Plaintiff and Husband’s divorce, Inland issued a debit card, used by Husband’s new wife, wrongfully giving her access to funds that were Plaintiff’s. (Id. at ¶ 139.) In so doing, Inland distributed Plaintiff’s income and funds from the sale of Solaris Power Cells, Inc. (“Solaris”) to an unauthorized person. (TAC, ¶ ¶ 140, 141, 142.) As a result, Plaintiff sustained losses of the funds from the sale of Solaris, and from income from Solaris. (TAC, ¶ 145.)

Based on the foregoing, Plaintiff brings causes of action for breach of “fiduciary and contractual duties” against Inland through its successor, Interstate.

Presently before the Court is Interstate’s motion to quash the third amended summons.

V. Judicial Notice

In support of its motion to quash, Interstate seeks judicial notice of six court records from this action, and three court records from a federal action in case number 3:18-cv-02374.

Judicial notice may be taken of any matter authorized or required by law. (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113, citing Evidence Code §§ 451 & 452.) Any matter judicially noticed must be relevant to a material issue. (People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422, fn. 2.)

A court may take judicial notice of court records. (Evid. Code, § 452, subd. (d).) However, the court does not take judicial notice of the truth of the facts as stated, but may take notice that documents “say what they say.” (Hamilton v. Greenwich Investors XXVI, LLC (2011) 195 Cal.App.4th 1602, 1608, fn. 3.)

As a result, the Court will take judicial notice of the six documents from the present action, which include the original complaint, a proof of service on Husband, Plaintiff’s Case Management Statement filed on January 8, 2018, Plaintiff’s Ex Parte Application to file the TAC, the TAC itself and the Third Amended Summons issued in this action on December 18, 2018 as they are all court documents relevant to the material issue of proper service of summons.

Interstate also seeks judicial notice of the three documents in the federal case including the Complaint for violations of the Fair Credit Reporting Act and the California Civil Code filed in April 2018, a declaration filed by Plaintiff in that action in June 2018, and the Clerk’s Notice of Trial filed in that action. However, only the declaration is cited by Interstate in its arguments, as it includes a statement by Plaintiff that she considers Washington her home state. The other two documents are not cited by Interstate and therefore are not relevant, so the Court will not take judicial notice of them.

Consequently, Interstate’s request for judicial notice is DENIED in part and GRANTED in part.

VI. Motion to Quash

Interstate moves to quash service of summons pursuant to Code of Civil Procedure section 418.10 subdivision (a)(1) on the ground of lack of personal jurisdiction on the basis that it was wrongfully served as a “Doe” defendant, and on the basis that it lacks sufficient minimum contacts in California.

A. Legal Standard

In a motion to quash summons on the ground of lack of jurisdiction, though defendant is the moving party, the burden of proof is upon the plaintiff to establish the facts of jurisdiction by a preponderance of the evidence. (Evangelize China Fellowship, Inc. v. Evangelize China Fellowship, Hong Kong (1983) 146 Cal.App.3d 440, 444 (Evangelize).) That burden may be met by declarations, verified complaint or other evidence. (2 Witkin, California Procedure (4th ed. 1996) Jurisdiction, §211, p. 775 – 776.)

B. Evidentiary Objections

Interstate objects to Plaintiff’s evidence on various grounds.

Plaintiff’s evidence consists of the TAC, a declaration by Plaintiff , and exhibits attached to the declaration.

Interstate raises numerous evidentiary objections to Plaintiff’s declaration including hearsay, lack of personal knowledge, lack of foundation and the secondary evidence/best evidence rule. The Court sustains the objection on the ground of hearsay and lack of personal knowledge to all but the following relevant statements , as they are facts known to Plaintiff, and statements to which she can personally attest: (1) “I found out through a subpoena responded to in November of 2017 that a debit master card… was taken out in about January of 2016 at INB Bank;” (2) “the addresses on the banking statements were no (sic) known to me;” (3) “Emily Brooks Marion Krolic was unknown to me;” (4) “I found out about the bank deposits, alterations to the account, identity theft, debit card and stolen money when attorneys representing me subpoenaed the bank for records;” (5) “I have lived in Washington in the 2000s;” (6) “I moved with my now ex-husband Roy Givens to the Palm Springs/Riverside County area;” (7) “Roy Givens and I were living in the Palm Springs area from 2011 through 2014;” (8) “I have been living in the San Francisco Bay Area since 2014.”

Attached to her declaration, Plaintiff also submits numerous documents. These include: (1) undated and unsigned documents submitted in conjunction with an identity theft claim with the IRS in 2017; (2) results of a Lexis-Nexis search; (3) bank statements; (4) invoices documenting use of a credit card; (5) a bill from a veterinary clinic; (6) a document hand labeled “Roy Givens Wedding Package;”(7) a real estate license; (8) photocopies of checks drawn on Plaintiff and Husband’s checking account at Interstate; (9) an email exchange between Husband and River Bank; (10) personal financial statement submitted to River Bank; (11) financial statement submitted to Banner Bank; (12) bank statements from Interstate; (13) a letter from the California Secretary of State regarding Plaintiff’s participation in the Safe at Home program; and (14) medical records (specifically an endoscopic scan); and (15) a report of debit card transactions.

Interstate objects to the admission of these documents on various grounds, including hearsay, lack of foundation, vague and ambiguous, and relevance. The Court sustains Interstate’s objection on the basis of hearsay. Plaintiff offers a mere prefatory statement in her declaration that the attached documents are “true and correct” but this alone does not render them admissible. Plaintiff does not argue that they are either not hearsay, or that some exception applies. (Evid. Code § 1200 et seq.) Furthermore, Plaintiff offers no other basis for the Court to consider them, such as through a request for judicial notice.

Consequently, Interstate’s objection to the documentary evidence is sustained.

C. Noncompliance with Code of Civil Procedure section 474

Code of Civil Procedure section 474 allows a plaintiff who is ignorant of a defendant’s identity to designate the defendant in a complaint by a fictitious name, and then to subsequently amend the pleading to state the defendant’s true name when he or she discovers it. However, the procedure is only available when the plaintiff is actually ignorant of the facts establishing a cause of action against the party to be substituted for a Doe defendant. (McClatchy v. Coblentz, Patch, Duffy & Bass, LLC (2016) 247 Cal.App.4th 368, 372 (“McClatchy”) citing Optical Surplus, Inc. v. Superior Court (1991) 228 Cal.App.3d 776, 783.) Improper service of a defendant under section 474 may be attacked by a motion to quash service of summons. (Id. at 375.) The question is whether the plaintiff knew, or reasonably should have known that he or she had a cause of action against the defendant. (Id. at 372.)

In McClatchy a trust beneficiary sued a law firm partner and “Does 1 through 2” for breach of trust and two years later amended the pleading to name the law firm as a defendant pursuant to section 474. (McClatchy v. Coblentz, Patch, Duffy & Bass, LLC, supra, 247 Cal.App.4th 368, 372.) However, with its motion, the law firm produced evidence that the partner had conducted business at the law firm’s offices, and utilizing its stationery in administering the trust, sufficient to show that plaintiff knew or should have known of his cause of action against it. Therefore, the McClatchy court found that the plaintiff had not complied with section 474.

Here, while Plaintiff’s initial complaint properly names “Doe” defendants, the preponderance of Plaintiff’s own evidence shows that she knew or should have known of Interstate and its connection to her family’s finances a year before she amended the complaint. Plaintiff alleges that she “was a customer of Inland Northwest Bank.” (TAC, ¶ 138.) Likewise, her declaration states that she “found out through a subpoena… in November of 2017 that a debit master card… was taken out in about January of 2016 at INB Bank” using her identity and utilized by someone whose name she did not recognize. (Dec. of T. Givens, ¶ 3, emphasis added.) The TAC also alleges that she “became aware of the fraud and forgery” during her dissolution of marriage proceedings through documents received November 17, 2016.” (TAC, ¶ 55.) Her declaration buttresses this assertion by stating “I found out about the… identity theft, debit card and stolen money when attorneys representing me subpoenaed the bank for records” in apparent reference to the attorneys representing her in the dissolution proceedings. (Dec. of T. Givens, ¶ 12.)

Despite this earlier knowledge, the complaint in the present action was not amended until over a year later, on December 4, 2018, to add Interstate as a “Doe” defendant. Therefore, she did not add Interstate’s name “when she discovered it.” For this reason alone, Plaintiff’s amendment does not comply with section 474.

Furthermore, Interstate has produced evidence to show Plaintiff’s knowledge of her family’s association with Interstate well before even the original complaint was filed. It submits the declaration of Chad Burchard, its Market President, who is familiar with the checking account and bank transactions at issue here and reviewed its records prepared and maintained in the regular course of business. (INB Dec. of Chad Burchard, ¶¶ 1, 2, 10.) His declaration states that Plaintiff and Husband opened their account in 2004. (Id. at ¶ 3.) Interstate mailed statements each months, and the statements were also available online. (Id. at ¶¶ 5, 8.) The declaration also states that deposits from Solaris were made in 2014 and appeared on the statements. (Id. at ¶ 7.) Finally, the declaration attests to a fraud report made on the account in May of 2016, which led to both debit cards being cancelled. (Id. at ¶ 9.)

Therefore, the evidence shows that even beyond Plaintiff’s one year delay in amending the complaint, she was on notice of Interstate’s connection to her family’s finances, and its name was known to her since 2004. She knew or should have known of the transactions on the account through Interstate’s online portal, or as a named owner of the account she could have otherwise accessed the information. She knew or should have known that the jointly owned proceeds from the Solaris sale were deposited in 2014 into her account at Interstate. Finally, the debit card fraud she alleges was known to Interstate in 2016, and it cancelled the debit cards associated with the account, information to which she had access and knew or should have known about. Since the original complaint was filed in May 2017, the evidence shows that Plaintiff knew or should have known of Interstate’s possible liability for financial fraud before this, and her reliance on section 474 is unavailing.

Consequently, the amendment to the complaint to add Interstate as a previously unknown “Doe” defendant is not compliant with Code of Civil Procedure section 474. Therefore, the motion to quash service of summons will be granted.

D. Lack of Sufficient Minimum Contacts

Interstate also brings its motion on the basis that it does not have sufficient minimum contacts for a California court to assert jurisdiction over it.

When a defendant moves to quash service of process on jurisdictional grounds, the plaintiff has the initial burden of demonstrating facts to support that defendant has sufficient minimum contacts with the state. (Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 449 (Vons).) The burden then shifts to defendant to demonstrate that the exercise of jurisdiction would be unreasonable. (Ibid.)

A defendant may be subject to the general jurisdiction of the forum if its contacts are “substantial, continuous and systematic.” (Vons, supra, 14 Cal.4th 434, 445.) Where no such substantial contacts are found, a defendant may still be subject to the specific jurisdiction of the forum if it has purposefully availed itself of forum benefits and the “controversy is related to or arises out of a defendant’s contacts with the forum.” (Id. at 446, citations omitted.)

In the Vons case, specific jurisdiction was found, sufficient to deny a motion to quash service of summons, over meat suppliers whose place of business was Washington. The Vons court relied on the defendant’s own behavior in entering into contracts with California businesses to supply meat. (Vons, supra, 14 Cal.4th 434, 451.) Since the cause of action was one based on allegations that the meat was contaminated and sickened California consumers, there was a nexus between the business contracts and the tort claims sufficient to find defendant availed itself of the forum. (Id. at 456.)

Here, Plaintiff fails to meet the initial burden of demonstrating that Interstate availed itself of forum benefits through its activities in California. In fact, her evidence tends to show the contrary. Specifically, it shows that that Plaintiff was a Washington resident at the time she and Husband opened the account with Inland. (Dec. of T. Givens, ¶ 15.) She and Husband subsequently moved to the “Palm Springs/Riverside County area.” (Ibid.) She also states that she has been “living in the San Francisco Bay Area since 2014.” (Ibid.) Also, by Plaintiff’s own allegations, Interstate “is a financial holding company based in Billings, Montana” and it is a successor in interest to Inland Northwest Bank, whose “principal place of business at 421 W. Riverside Avenue, Spokane, WA…” (TAC, ¶ 15.)

Therefore, the evidence is that while residing in Washington State, Plaintiff opened an account with a bank whose principal place of business is Washington State, and that bank was subsequently sold to a holding company whose principal place of business is Montana. Plaintiff and Husband moved to California, and apparently kept the account open. However, there is no evidence that a contract was entered for business with Plaintiff and Husband once they moved to California, or that it was Interstate that availed itself of the forum by seeking out business relationships here. In fact, unlike in the Vons case, the record is devoid of evidence of voluntary business activity in which Interstate engaged to show sufficient minimum contacts.

Furthermore, there is no nexus between the wrongful conduct alleged and Interstate’s behavior in the forum. Plaintiff alleges, for example, that Interstate wrongfully “distributed funds from the sale of Solaris Power Cells Inc.” (TAC, ¶ 141.) However, she also alleges that Solaris is a “Nevada Corporation” (TAC, ¶ 10.) and as previously mentioned that the bank was either a Washington or Montana corporation. Thus, there are no facts to support an inference that any wrongful conduct was related to Interstate’s own choice to conduct business in California.

Therefore, Plaintiff has not met her burden to show that Interstate has sufficient minimum contacts with the state to confer either general or specific jurisdiction over it.

Consequently, Interstate’s motion to quash the third amended summons is GRANTED.

The Court will prepare the order.

Case Number: BC689458 Hearing Date: October 17, 2019 Dept: 4B

[TENTATIVE] ORDER RE: DEEFENDANT’S MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

Plaintiff Allison Nichols filed this suit against defendant Sephora USA, Inc. (“Defendant”) and Dr. Dennis Gross Skincare, LLC (“Dr. Gross Skincare”) for rashes she sustained after purchasing a product on September 10, 2017. Plaintiff went to Defendant’s store and asked for assistance with skincare products for her sensitive skin. Plaintiff alleges she was told by a Sephora employee that Dr. Gross Skincare’s products Alpha Beta Peel and a Ferulic Acid and Retinol product were suitable for her sensitive skin. Subsequently, Plaintiff suffered burns, rashes, and blisters. When she visited the emergency room, the doctor diagnosed her with shingles. Plaintiff asserts causes of action for products liability and general negligence.

After Defendant filed this motion for summary judgment, Plaintiff filed a request for dismissal on August 26, 2019, but the Court did not enter the dismissal because Plaintiff owes court fees. Plaintiff did not oppose this motion.

II. FACTUAL BACKGROUND

Plaintiff purchased Dr. Dennis Gross’s Skincare products “Alpha Beta Peel” and “Ferulic & Retinol” (collectively, “Skincare Products”) from one of Defendant’s stores on September 10, 2017. (Defendant’s Undisputed Material Fact (“UMF”) No. 1.) Plaintiff alleges she told Defendant’s employee that she had sensitive skin and asked what products were safe to use. Plaintiff claims she was told that the Skincare Products were suitable for her sensitive skin. (UMF No. 2.) After Plaintiff tested the Skincare Products and observed no reaction, she then used the Skincare Products twice a day (once in the morning, and once a night) for three and a half days on her face, neck, and collar regions, and wiped the residue on her shoulders and arms. (UMF Nos. 5-7.) Plaintiff was aware she was supposed to wear sunscreen and avoid sunlight while using the Skincare Products (UMF No. 8.) Plaintiff spent hours a day in the sun, either in her car or walking from her car to and from delivery locations (UMF No.9.) Plaintiff then suffered burns where she applied the Skincare Products, but not on her face. (UMF Nos. 10-11).

III. LEGAL STANDARDS

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.)

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages . . . or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).) A motion for summary adjudication shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc., § 437c, subd. (f)(2).)

“[T]he initial burden is always on the moving party to make a prima facia showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) A moving defendant need not conclusively negate an element of plaintiff’s cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)

To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar, supra, 25 Cal.4th at p. 854.) It is insufficient for the defendant to merely point out the absence of evidence. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.” (Ibid.) The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken. (Aguilar, supra, 25 Cal.4th at p. 855.)

“Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

IV. DISCUSSION

Defendant argues the warning on the product was adequate and bars Plaintiff’s claims. “An adequate warning is a sufficient defense to a strict liability action,” and it “would also negate any negligence or willful misconduct.” (Temple v. Velcro USA, Inc. (1983) 148 Cal.App.3d 1090, 1094.) Interpretation of a warning in a written document is a question of law for the trial court to determine. (Id. at p. 1095.) While an adequate warning is not “invariably ‘a sufficient defense to a strict liability action’” (Springmeyer v. Ford Motor Co. (1998) 60 Cal.App.4th 1541, 1557), it may be where there is evidence of “conscious, deliberate disregard of a safety notice or measure.” (Id. at p. 1560.)

Here, the warning stated “Sunburn Alert,” that the use of the product could increase the possibility of sunburn, and that the user should use sunscreen. Plaintiff testified she read the box about being susceptible to sunburn when using the product. Defendant argues Plaintiff was exposed to sun outside and when driving with the car window down. Plaintiff testified that she was in and out of the car during the day delivering packages and drove with the window down at times. Plaintiff’s daughter testifed Plaintiff would drive with the windows down if there was a breeze. Defendant points out the blisters occurred only on Plaintiff’s left side of the neck and shoulder and back of the neck. Plaintiff testified the blisters occurred where the sun was shining in the window of her car.

Defendant has established a prima facie case that Plaintiff disregarded the safety notice about the possibility of sunburn on the areas of her body exposed to the sun when she was driving and out of the car. Plaintiff did not oppose the motion or dispute any of Defendant’s facts.

V. CONCLUSION

In light of the foregoing, Defendant’s unopposed motion for summary judgment is GRANTED.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT4B@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court’s website at www.lacourt.org. The Court will be dark on October 17, 2019. A party requesting a hearing should contact Department 4B for an alternate hearing date.

Case Number: BC652456 Hearing Date: October 17, 2019 Dept: 5

Superior Court of California
County of Los Angeles
Department 5

cassie jackson,

Plaintiff,

v.

beverly jackson,

Defendants.

Case No.: BC652456

Hearing Date: October 17, 2019

[TENTATIVE] order RE:

motion to compel deposition

NOTICE

The hearing on this motion, set for October 17, 2019, will start at 2:30 p.m. rather than 1:30 p.m.

TENTATIVE ORDER

Plaintiff Cassie Jackson (“Plaintiff”) moves to compel Deponent Devin Exnicious (“Deponent”) to comply with a deposition subpoena. Code of Civil Procedure § 1987.1 provides, “[i]f a subpoena requires the attendance of a witness or the production of books, documents, electronically stored information, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion . . . may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders.” (Code Civ. Proc., § 1987.1.)

Plaintiff personally served Deponent a deposition subpoena for his appearance at a deposition on May 7, 2019. Personal service of this deposition subpoena compels Deponent to appear for deposition. (See Code Civ. Proc., § 2020.220, subds. (b)-(c).) Plaintiff personally served this motion on Deponent as required. (Cal. Rules of Court, rule 3.1346.) Accordingly, the Court grants the motion to compel Deponent to appear for deposition.

Plaintiff seeks sanctions in connection with the motion. The Court concludes that Deponent’s failure to comply with Plaintiff’s deposition subpoena is an abuse of the discovery process, and awards sanctions. The Court imposes sanctions against Deponent in the amount of $1,060 which represents five hours of attorney time at $200 per hour, plus the filing fee. However, this award of sanctions is stayed. If Deponent complies with this order and submits to a deposition, he does not have to pay the sanctions.

CONCLUSION AND ORDER

Plaintiff’s motion to compel the deposition of Deponent Devin Exnicious is granted. Devin Exnicious shall appear for deposition within 30 days of notice of this order, unless Plaintiff stipulates otherwise.

Deponent Devin Exnicious is to pay sanctions in the amount of $1,020 to Plaintiff, by and through counsel. However, this award of sanctions is stayed. If Deponent complies with this order and submits to a deposition, he does not have to pay the sanctions. This award of sanctions will automatically be vacated on the trial date unless Plaintiff seeks to lift the stay and require payment of the sanctions.

Plaintiff shall provide notice, and shall serve Deponent Devin Exnicious with a copy of this order personally, and shall file proof of such with the Court.

DATED: October 17, 2019 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court

Case Number: BC690179 Hearing Date: October 17, 2019 Dept: 5

Superior Court of California
County of Los Angeles
Department 5

Thomas hickman, et al.,

Plaintiffs,

v.

wash multifamily laundry systems, et al.,

Defendants.

Case No.: BC690179

Hearing Date: October 17, 2019

[TENTATIVE] order RE:

motions to compel discovery responses

NOTICE

The hearing on this motion, set for October 17, 2019, will start at 2:30 p.m. rather than 1:30 p.m.

TENTATIVE ORDER

Defendant Wash Multifamily Laundry Systems (“Defendants”) moves to compel responses from Plaintiffs Thomas Wayne Hickman and Angela Barnett (“Plaintiffs”) to Form Interrogatories, Set Two (“FROG”). Defendant also moves to deem admitted matters specified in Requests for Admissions, Set One (“RFA”) that Defendant served on Plaintiffs. After Defendant served these motions, Plaintiffs served responses to the discovery at issue. Accordingly, the motions are moot except as to sanctions.

The Court concludes that Plaintiffs’ failure to timely respond to the discovery is an abuse of the discovery process. The court awards sanctions against Plaintiffs and their counsel of record, the Law Offices of Jacob Emrani, in the amount of $920, based upon four hours of attorney time at $200 per hour plus two filing fees of $60 each.

CONCLUSION AND ORDER

Defendant’s motions to compel are moot except with respect to sanctions. The Court orders Plaintiffs and their counsel-of-record, the Law Offices of Jacob Emrani, jointly and severally, to pay sanctions in the amount of $920 within thirty (30) days of notice of this order. Defendant shall provide notice and file proof of such with the Court.

DATED: October 17, 2019 ___________________________

Stephen I. Goorvitch

Judge of the Superior Court