December 13, 2017

A A A
Civil Tentative Ruling Announcement
Print

If the Tentative Ruling in your case is satisfactory, you need not appear at the scheduled time, the ruling becomes final, and the prevailing party prepares the order.

However, if you are not satisfied with the Tentative Ruling, and wish to appear and argue the matter, YOU MUST NOTIFY the Clerk’s Office and opposing counsel of your intent before 4:00 p.m. TODAY. If a TELEPHONIC HEARING is requested per CCP §367.5, COURT CALL MUST be notified AND the Clerk’s Office MUST also be notified before 4:00 p.m. TODAY.

When doing so, you must indicate as to which issue(s) and/or motion(s) a hearing is being requested. If requesting a hearing for clarification of a tentative ruling, specify what matter(s) and/or issue(s) need clarification.

You may request a hearing by calling the calendar line at (209) 530-3162 or the main line at (209) 530-3100, prior to 4:00 p.m. - OR- by e-mailing at civil.tentatives@stanct.org Email requests must be made prior to 4:00 p.m. AND confirmed by return e-mail. If you do not receive confirmation e-mail from the clerk, you MUST call (209) 530-3162 to request your hearing.

Please refer to Local Rule of Court 3.12 concerning Court reporter fees.

If a Hearing is required or you have requested a Hearing for a Law and Motion Matter Scheduled in Department 21, 22, 23 or 24 in Modesto, please contact the Court Reporter Coordinator at (209) 530-3105 to request a reporter and determine availability. If a Staff Reporter is not available, you may need to provide your own.

Effective April 2, 2012

Staff Court Reporters may be available, though it is not guaranteed, to report law and motion matters on the following schedule:

Department 21 -- Wednesdays and Fridays only. Staff Reporters may be available on Tuesdays and Thursdays. Please call to confirm.
Department 22 -- Tuesdays and Thursdays only. Staff Reporters may be available on Wednesdays and Fridays. Please call to confirm.
Department 23 -- Wednesdays and Fridays only. Staff Reporters may be available on Tuesdays and Thursdays. Please call to confirm.
Department 24 -- Tuesdays and Thursdays only. Staff Reporters may be available on Wednesdays or Fridays. Please call to confirm.

If a Staff Reporter is not available, counsel can make arrangements to have their hearing reported by a private CSR. Please contact the Court Reporter Coordinator at (209)530-3105 to request a Staff Reporter and to determine if a Staff Reporter will be available for your hearing.

 December 13, 2017

 

 

The following are the tentative rulings for cases calendared before Judge Marie S. Silveira in Department 21:

 

 

2025430 – REYES, ARTEMIO ARIAS VS. COUNTY OF STANISLAUS – Defendants Demurrer to First Amended Complaint - SUSTAINED, without leave to amend for failure to state facts sufficient to constitute a cause of action.  Because Plaintiff was an employee of the County of Stanislaus at the time of the accident in question, his sole legal remedy for any injuries sustained is an action for Workers’ Compensation. (Arriaga v. County of Alameda (1995) 9 Cal.4th 1055.)  Plaintiff recognizes this in his notice of non-opposition filed with the Court on November 30, 2017.  Plaintiff cannot amend the First Amended Complaint to state a cause of action and therefore the case is DISMISSED without prejudice.

 

 

615637 – NATIONAL CREDIT ACCEPTANCE VS. MARTIN, ROBERT – Assignee of Record’s Motion for Assignment Order and Order Restraining Judgment Debtor – GRANTED, and unopposed.

 

 

2015010 – DAVIS, ANTHONY A VS. CITY OF MODESTO – a) Motion to be Relieved as Counsel forPlaintiff/Cross-Complainant Anthony A. Davis – b) Motion to be Relieved as Counsel for Plaintiff/Cross-Complainant Martina York –

RESCHEDULED at Counsel’s request, for hearing on Wednesday, December 20, 2017, at 8:30 a.m. in Department 21.

 

 

2020119 – BANK OF AMERICA VS. MENDOZA, GRICELDA - Plaintiff’s Motion to set Aside Dismissal and for Entry of Judgment Pursuant to Stipulation of the Parties – GRANTED and unopposed.  Pursuant to Code of Civil Procedure section 664.6, the dismissal entered in this matter on February 14, 2017 is hereby SET ASIDE.  Further, judgment is entered in the amount of $4,916.58 in favor of Plaintiff Bank of America and against Defendant Gricelda Mendoza.

 

 

9000509 – DEUTSCHE BANK NATIONAL TRUST COMPANY VS. LUNA, JOE A – Motion of Defendants Joe A. Luna and Vanessa M. Luna for Judgment on the Pleadings - GRANTED, without leave to amend.  After review of the moving, opposing and reply pleadings, as well as the authorities related to “sham” pleadings, it is apparent that Plaintiff cannot amend the Complaint to avoid application of the four (4) year statute of limitations set forth in Code of Civil Procedure section 337.  While there is no doubt Plaintiff possessed the right, pursuant to the terms of the Promissory Note between the parties, to accelerate the indebtedness on the note as of “July 1, 2013” -  Code of Civil Procedure section 337 required it to bring suit for that amount within four (4) years of that date.  It did not.

Subject to the so-called "sham pleading" doctrine, an amended pleading making substantive changes supersedes the original. “The purpose of the doctrine is to enable the courts to prevent an abuse of process … . The doctrine is not intended to prevent honest complainants from correcting erroneous allegations or to prevent the correction of ambiguous facts." (Hahn v. Mirda (2007) 147 Cal.App.4th 740.)

However, factual allegations disclosing a claim is barred by the statute of limitations are not ambiguous. (Kenworthy v. Brown (1967) 248 Cal.App.2d 298.)  Here, the Plaintiff’s Complaint, on its face, discloses it is barred by the applicable statute of limitations.  Any amended pleading cannot simply change the date on which Plaintiff declared the balance on the Promissory Note due and owing to avoid this bar.  The temporal allegations from the original complaint would be read into the amended complaint, rendering it subject to attack on the same grounds.  Thus, granting the Plaintiff leave to amend here would be futile.

 

 

The following are the tentative rulings for cases calendared before Judge Timothy W. Salter in Department 22:

 

 

2026657 - ASHLOCK, LAWRENCE VS. ASHLOCK, GABRIEL - Defendant Gabriel Ashlock’s Motion to Strike Plaintiffs’ Complaint Pursuant to Code of Civil Procedure Section 425.16 is DENIED. The activity which forms the basis of the Complaint – Defendant’s filing of the Notice of Judgment Lien on November 3, 2016  - is undoubtedly protected activity.  However, based on the information before the Court at this juncture, it appears the Plaintiffs have a “reasonable probability” of prevailing on the Complaint.

 

 

2004087 - NIM, KEVIN VS. PACIFIC SPECIALTY INS. CO. - Defendant Pacific Specialty Insurance Co.’s Motion for Protective Order is GRANTED.  After considering the parties’ pleadings, the relevant statutes and applicable case law, the Court finds that conducting the (further) deposition of Defendant’s “Person Most Qualified” as to the rescission defenses asserted by Defendant in its Answer to Plaintiffs’ Complaint for bad faith would be “unduly burdensome and oppressive” for two reasons: 

 

First, Defendant’s assertion of the rescission defenses – even if such assertion were false, interposed in bad faith, or for inappropriate purposes – cannot be used as the basis for “allegations of ongoing bad faith”.  California Physicians’ Services v. Superior Court (1992) 9 Cal.App.4th 1321.  And, according to their opposition, this is exactly how Plaintiffs plan to use any facts discovered regarding the rescission defenses.  (See Plaintiffs’ Opposition, page 6, lines 19-22.)  The litigation privilege set forth in Civil Code section 47(b) absolutely precludes this use.  To the extent it is contrary, the holding in White v. Western Title Ins. Co. (1985) 40 Cal.3d 870 is distinguishable in that it dealt specifically with settlement offers, not affirmative defenses set forth in a party’s pleadings.

 

Second, even if discovery related to the Defendant’s assertion of the rescission defenses were not prohibited by Civil Code section 47(b), the rescission defenses were asserted by counsel on Defendant’s behalf after the Plaintiffs filed their Complaint in this case.  Written discovery of any facts related to the rescission defenses was provided by and under the control of counsel.  The decision to “withdraw” the rescission defenses, and therefore not to argue at trial that Plaintiffs materially misrepresented the facts in their application for the insurance policy at issue here, was made by and under the control of counsel.  The topics Plaintiffs seek to pursue in the “further” deposition of Defendant’s “Person Most Qualified” – as set forth in the motion - are therefore subject to the attorney/client privilege and explicitly not discoverable.

 

The Court acknowledges the “broad scope” of discovery, but concludes that it would be unduly oppressive and burdensome – and an exercise in futility which would only increase all of the parties’ costs - to engage in discovery of information that is not discoverable.

 

Although the Court did not have time to conduct exhaustive research, it appears that the exact question presented by this motion may never have been addressed in either a reported or unreported case.  Therefore, the Court will refrain from imposing sanctions on either party here – both parties’ positions were “justified” under the facts.

 

 

The following are the tentative rulings for cases calendared before Judge John D. Freeland in Department 23:

 

 

2020564 – JUAREZ, MARISELA VS. 5.11 INC. – Defendant’s Motion to Tax Costs – DROPPED.

The parties have submitted a stipulation resolving the disputed issues in this motion.

 

 

2023344 – JORDAN, NAITTE VS. SUTTER CENTRAL VALLEY HOSPITALS – Plaintiff’s Unopposed Motion for Preliminary Approval of Class Action Settlement is GRANTED, and unopposed.

 

The Court finds the proposed settlement is “within the range or reasonableness” and deemed to be presumptively valid, subject only to any objections that may be heard at the final fairness hearing and final approval by this Court.  Good cause appearing to the satisfaction of the Court, the class is certified for settlement purposes only in accordance with rule 3.769(c) of the California Rules of Court.  The class counsel, class representative and claims administrator are hereby preliminarily approved and appointed as set forth in the motion. The Court approves the form Notice of Pendency of Class Action Settlement and Final Hearing, and authorizes the mailing of the proposed class action notice packet. The Court will sign the Proposed Order provided by Class Counsel. Consequently, a final fairness hearing in this matter shall be set for April 25, 2018, at 8: 30 a.m. in Department 23 of this Court.

 

 

9000125 – DUDEN, STEVEN VS. ENDO, CLIFFORD – a) Defendants Robert Wanklin, M.D. and Kanthi Kiran, M.D.’s Demurrer to the Third Cause of Action of Plaintiff’s Third Amended Complaint b) Defendants Robert Wanklin, M.D. and Kanthi Kiran, M.D.’s Motion for Order Striking Portions of Plaintiff’s Third Amended Complaint –

 

a) and b) CONTINUED on the Court’s own motion to January 11, 2018 at 8:30 a.m. in Department 23 to be heard with another demurrer.

 

 

The following are the tentative rulings for cases calendared before Judge Roger M. Beauchesne in Department 24:

 

 

2022683 – WILKINS, AMBER VS. OCONNOR, CAITLYN - Plaintiff’s Motion to Compel Defendants Caitlyn O’Connor and Robert O’Connor to Produce Verifications and Documents Responsive to Plaintiff’s Request for Production of Documents, Set Two is GRANTED in part and DENIED in part as follows.  Defendants shall provide the verifications not later than December 27, 2017.  The motion to compel the five (5) statements made by Defendants Kevin Huff, Caitlyn O’Connor, Robert O’Connor and Bonnie O’Connor is DENIED.  The statements are protected by attorney/client privilege pursuant to Soltani-Rastegar v. Superior Court (1989) 208 Cal.App.3d 424. Plaintiff’s arguments regarding waiver are unavailing.  Defendants’ “sharing” of the confidential statements between and among them both furthers the attorney-client relationship, and is logical as the Defendants have “overlapping interests”.  That the defendants also have some adverse interests does not change this fact.

 

 

9000393 – PORTER, CURTIS D. VS. GENERAL MOTORS LLC - Defendant General Motors, LLC's Demurrer to Plaintiff’s Third Amended Complaint is OVERRULED. Plaintiff’s Third Amended Complaint states sufficient facts to support his causes of action, and specifically sufficient facts to support “delayed discovery”. (Mexia v. Rinker Boat Co. (2009) 174 Cal.App.4th 1297.)  A demurrer on the basis of statute of limitations will not lie where the action may be, but is not necessarily barred. It must appear clearly and affirmatively upon the face of the current complaint that the right of action is necessarily barred.  (Lockley v. Law Offices of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875.) Defendant shall file its answer not later than January 3, 2018.

 

 

The following is the tentative ruling for a case calendared before Commissioner Jared D. Beeson in Department 19 located at the Turlock Division at 300 Starr Avenue, Turlock, CA:

 

 

616224 - AFFILIATED CONSUMER CONTROL ET AL VS. DEE DEE KLUGEL; MIKE KLUGEL – HEARING REQUIRED.