SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
Department 7, Honorable Beth McGowen Presiding
Gorette Ramos, Courtroom Clerk
Sonia Rogers, Court Reporter
191 North First Street, San Jose, CA 95113
Telephone: 408-882-2170
To contest the ruling, call (408) 808-6856 before 4:00 P.M.
LAW & MOTION TENTATIVE RULINGS
DATE: January 28, 2016 TIME: 9:00 A.M.
The prevailing party must prepare an order in compliance with Rule of Court 3.1312.
(SEE RULE OF COURT 3.1312)
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CASE #
CASE TITLE
2013-1-CV-250485 M. Stone vs. O. Hassan
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2014-1-CV-268728 Jeffrey Bodin, et al vs.
County of Santa Clara
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2015-1-CV-283810 N. Dhamdhere vs. Wells
Fargo Bank, NA
2015-1-CV-283810 N. Dhamdhere vs. Wells
Fargo Bank, NA
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RULING
Order for Examination continued to
February 23, 2016, by ex parte
application.
Demurrer is SUSTAINED in part and
OVERRULED in part, see tentative ruling
below.
Off Calendar
Off Calendar
2015-1-CV-283810 N. Dhamdhere vs. Wells
Off Calendar
Fargo Bank, NA
2015-1-CV-285421 Oasis Care, Inc. vs. County of Off Calendar
Santa Clara
2015-1-CV-287733 S. Estillore vs. Bank of
Demurrer is SUSTAINED, good cause
America, et al
appearing and no opposition filed.
2015-1-CV-281215 Bank of America, N.A. vs. E. Motion for Judgment on the Pleadings is
Villa
GRANTED, good cause appearing and no
opposition filed.
2014-1-CV-261455 A. Vasheresse vs. Palo Alto Motion for Summary Judgement is
Medical Foundation, et al
DENIED, see tentative ruling below.
2014-1-CV-261455 A. Vasheresse vs. Palo Alto Continued to April 26, 2016, in Dept. 7.
Medical Foundation, et al
2015-1-CV-275515 The Travelers Indemnity
Motions to Compel Discovery Responses
Company Of Connecticut vs. are GRANTED, good cause appearing
Canterbury Contractors, Inc. and no opposition filed. The court will
execute the proposed order submitted with
the December 15, 2015 motions.
2015-1-CV-275515 The Travelers Indemnity
See line 11
Company Of Connecticut vs.
Canterbury Contractors, Inc.
SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
Department 7, Honorable Beth McGowen Presiding
Gorette Ramos, Courtroom Clerk
Sonia Rogers, Court Reporter
191 North First Street, San Jose, CA 95113
Telephone: 408-882-2170
To contest the ruling, call (408) 808-6856 before 4:00 P.M.
LAW & MOTION TENTATIVE RULINGS
LINE 13
2015-1-CV-275515 The Travelers Indemnity
See line 11
Company Of Connecticut vs.
Canterbury Contractors, Inc.
LINE 14
2015-1-CV-275784 F. Del Carlo vs. G. Del Carlo Parties ordered to appear.
LINE 15
2015-1-CV-286790 Santa Clara Unified School
District vs. C. Stampolis
Motion to Compel is GRANTED, good
cause appearing and no opposition filed.
Sanctions awarded in the amount of
$2,096.
LINE 16
2004-1-CV-015775 IN RE QUALITY LOAN
SERVICE CORP.
LINE 17
2015-1-CV-282947 J. Moore vs. Pull’r Holding
Company, LLC, et al
LINE 18
2015-1-CV-284606 E. Kennard vs. CSAA
Insurance Exchange
Motion For Order Authorizing payment is
GRANTED, the court will execute the
submitted order.
Motion to Approve Settlement is
GRANTED, the court will execute the
submitted order.
Motion to Withdraw as Counsel is
GRANTED.
LINE 19
2010-1-CV-178912 P. Audet vs. J. Valia, et al
Motion for Assignment Order to
Judgement Debtor BV Technologies, Inc.
is GRANTED.
LINE 20
2014-1-CV-266361 L. Mora vs. J. Ochoa, et al
Motion to Appoint Receiver is
GRANTED, the court will execute the
submitted order.
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SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
Department 7, Honorable Beth McGowen Presiding
Gorette Ramos, Courtroom Clerk
Sonia Rogers, Court Reporter
191 North First Street, San Jose, CA 95113
Telephone: 408-882-2170
To contest the ruling, call (408) 808-6856 before 4:00 P.M.
LAW & MOTION TENTATIVE RULINGS
LINE 35
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Calendar line 1
- oo0oo -
Calendar line 2
Case Name: Jeffrey Bodin, et al. v. County of Santa Clara, et al.
Case No.:
2014-1-CV-268728
Demurrer to Plaintiffs’ Verified Complaint by Defendant County of Santa Clara
Factual and Procedural Background
Defendant County of Santa Clara (“County”) owns and operates the South County
Airport of Santa Clara County, also called the San Martin Airport (“Airport”). (Complaint, ¶14.)
Defendant County published rules and regulations which set forth the procedure for approval of
use of the Airport for skydiving onto the Airport. (Complaint, ¶15.) The process required
approval by the County Director of Airports, Carl Honaker (“Director”). (Complaint, ¶¶16 and
18.) No other approval was required. (Complaint, ¶17.)
On April 3, 2009, plaintiffs Jeffrey Bodin (“Bodin”) and Garlic City Skydiving, LLC
(“GCS”) (collectively, “Plaintiffs”) met with the Director and applied for approval to land
customer skydivers on a drop zone/ landing area on the Airport and to select an appropriate site
on the Airport from which to run the skydiving business, do training, and repack parachutes.
(Complaint, ¶18.)
During the months of April and May 2009, County told Plaintiffs that skydiving could
not be conducted safely at the Airport and would require approval from the Federal Aviation
Administration (“FAA”) before County would consider the proposal. (Complaint, ¶¶19 – 20.)
During the same time period, County refused to rent space to Plaintiffs at the airport because it
would compete with the established fixed base operator; refused to allow skydiving at the
Airport because it was not in the Airport master plan; and refused to consider renting a specific
building on the Airport for Plaintiffs’ office even though the building was being used for nonaviation activities and the lease had expired. (Complaint, ¶¶21 – 23.)
Due to County’s refusal to allow skydiving, Plaintiffs filed a 49 CFR 13 Complaint with
the FAA on May 28, 2009. (Complaint, ¶24.) After County failed to respond to the 49 CFR 13
Complaint, the FAA informed County on August 17, 2009 that it must allow Plaintiffs access to
the Airport for skydiving operations. (Complaint, ¶26.)
After August 17, 2009, The FAA reopened Plaintiffs’ 49 CFR 13 Complaint at which
time County responded by requesting the FAA conduct a Safety and Airspace Study to determine
whether skydiving could be conducted safely at Airport. (Complaint, ¶¶27 – 28.) The FAA
conducted the study and released its report (dated December 9, 2009) in February 2010
concluding skydiving could be safely conducted at Airport under specific conditions.
(Complaint, ¶¶28 – 30.)
In June 2010, the Director said Plaintiffs’ permit for Airport access would not be
approved by him, but rather the Board of Supervisors. (Complaint, ¶31.) Director assured
Plaintiffs full approval was expected after the June 8, 2010 meeting of the County Board of
Supervisors. (Complaint, ¶32.) In reliance, Plaintiffs entered into a sublease for office space and
a hangar lease at the Airport. (Complaint, ¶33.) Approval of Plaintiffs’ skydiving permit did not
make the agenda for the June 2010 County Board of Supervisors’ meeting. (Complaint, ¶34.)
On June 23, 2010, Plaintiffs received notice that the Office of County Counsel had become
involved in Plaintiffs’ skydiving permit application. (Complaint, ¶36.)
In July 2010, the FAA advised County that delay in approval of Plaintiffs’ skydiving
permit amounted to denial of Airport access. (Complaint, ¶37.) On August 13, 2010, the
County’s Director of Roads and Airports Department sent Plaintiffs a letter stating County was
going to reject the skydiving application solely on the basis of safety. (Complaint, ¶38.) The
letter made no reference to the FAA’s safety findings. (Complaint, ¶39.)
At the August 24, 2010 County Board of Supervisors’ meeting, the Board of Supervisors
denied Plaintiffs’ skydiving permit application on the basis of safety. (Complaint, ¶40.) On
August 25, 2010, the FAA informed County that by denying approval for skydiving, County was
in violation of the grant assurances it signed and the FAA gave County 30 days to comply.
(Complaint, ¶41.) The FAA further told County that its purported safety reasons for denial were
without basis and County’s delays were a tactic to deny skydiving at the Airport. (Complaint,
¶42.)
On September 22, 2010, County responded to the FAA rejecting the FAA’s conclusion
that County was in violation of the grant assurances. (Complaint, ¶44.) The FAA conducted a
second more extensive safety study that included Regional Flight Standards and Air Traffic
Control. (Complaint, ¶45.)
On April 4, 2011, the FAA sent County a letter stating that skydiving could be performed
safely at Airport based on its most recent safety study and directed County to send its
“implementation plan and schedule for negotiating reasonable operating terms for skydiving to
commence within the next 30 days.” (Complaint, ¶46.) On May 2, 2011, County sent the FAA a
letter refusing to comply with the FAA’s directive. (Complaint, ¶47.)
On June 14, 2011, Plaintiffs filed a formal complaint against County with the FAA.
(Complaint, ¶48.) After extensive briefing, the Director’s Determination of the FAA was issued
on December 19, 2011 finding County was in violation of federal Grant Assurance 22, Economic
Discrimination, of the prescribed sponsor assurances which implements the provisions of 49
USC §47107(a)(1) through (6). (Complaint, ¶50.)
On January 20, 2012, County filed an appeal of the Director’s Determination with the
FAA Associate Administrator for Airports in Washington, DC. (Complaint, ¶53.) On August 12,
2013, the FAA Associate Administrator for Airports rendered her final decision confirming
County was in violation of federal Grant Assurance 22. (Complaint, ¶54.) County had 60 days
within which to file an appeal of the FAA Associate Administrator’s final decision to the United
States Court of Appeals, but County failed to do so. (Complaint, ¶¶55 - 56.) County has not
taken the action required by the FAA Director to negotiate in good faith with Plaintiffs to
provide parachute-related commercial aeronautical services at Airport and has not issued
Plaintiffs a skydiving permit. (Complaint, ¶¶57 – 58.)
On August 1, 2014, Plaintiffs filed a complaint against County asserting causes of action
for:
(1) Breach of Contract – Third Party Beneficiary
(2)
(3)
(4)
(5)
(6)
Intentional Interference with Prospective Economic Advantage
Negligent Interference with Prospective Economic Advantage
42 U.S.C. §1983 – Violation of 14th Amendment Rights
Breach of Mandatory Duty
Injunctive Relief
On September 15, 2014, County filed a notice of removal to federal court. On or about
September 15, 2015, the United States District Court, Northern District of California, San Jose
Division (Hon. Edward J. Davila) granted County’s motion to dismiss the fourth cause of action
without leave to amend and remanded the remaining claims to Santa Clara County Superior
Court.
On November 13, 2015, County filed this demurrer to the Plaintiffs’ complaint.
I.
Request for judicial notice.
In support of its demurrer, defendant County requests judicial notice of (1) County Board
of Supervisors’ minutes for November 26, 2013; (2) Airport Commercial Operating Permit
template; (3) August 21, 2014 letter from FAA to County counsel; and (4) United States District
Court, Northern District of California order granting in part and denying in part motion to
dismiss.
With regard to the federal court order, Evidence Code section 452, subdivision (d) states
that the court may take judicial notice of “[r]ecords of any court of this state.” This section of
the statute has been interpreted to mean that the trial court may take judicial notice of the
existence of the court’s own records. Evidence Code section 452 and 453 permit the trial court
to “take judicial notice of the existence of judicial opinions and court documents, along with the
truth of the results reached—in the documents such as orders, statements of decision, and
judgments—but [the court] cannot take judicial notice of the truth of hearsay statements in
decisions or court files, including pleadings, affidavits, testimony, or statements of fact.” (People
v. Woodell (1998) 17 Cal.4th 448, 455.) Accordingly, the request for judicial notice, item
number 4, in support of defendant County’s demurrer to Plaintiffs’ verified complaint is
GRANTED.
However, the court does not deem the remaining requests to be necessary to resolution of
the issues. “We deny the request for judicial notice because the materials in question are either
irrelevant or unnecessary to our resolution of the issues.” (Coastside Fishing Club v. California
Fish & Game Com. (2013) 215 Cal.App.4th 397, 429.) Accordingly, the request for judicial
notice, item number 1 – 3, in support of defendant County’s demurrer to Plaintiffs’ verified
complaint is DENIED.
II.
Defendant County’s demurrer to Plaintiffs’ complaint is SUSTAINED, in part, and
OVERRULED, in part.
A.
Subject matter jurisdiction.
Initially, defendant County demurs to the Plaintiffs’ complaint on the ground that, “The
court has no jurisdiction of the subject of the cause of action alleged in the pleading.” (Code Civ.
Proc., § 430.10, subd. (a).) Defendant County’s argument relies upon the assertion of facts
extrinsic to those alleged in the Plaintiffs’ complaint.1 Namely, County asserts that subsequent
to the events pleaded in the complaint, on November 26, 2013, the County Board of Supervisors
adopted a Commercial Operating Permit template for Skydiving Operations at the Airport. (See
Exh. A to County’s Request for Judicial Notice.) To obtain a permit, the applicant must comply
with various terms which include providing proof of liability insurance. (See Exh. B to County’s
Request for Judicial Notice.) Specifically, section 6.1.1 requires an applicant to obtain coverage
for “commercial general liability and non-owned aircraft, covering personal injury and property
damage for all activities of the Operator arising out of or in connection with this Permit … with
policy limits of not less than $1,000,000 per occurrence….” (Id.)
According to County, on January 8, 2014, plaintiff GCS submitted a permit request to
County but did not submit proof of adequate aircraft liability and skydiving operations insurance
coverage. (See Declaration of Michael Murdter in Support of Defendant County of Santa Clara’s
Demurrer, etc. (“Declaration Murdter”), ¶5.) County further asserts that on January 14, 2014,
Plaintiffs emailed the FAA stating County’s insurance requirement for aircraft liability and
skydiving operations was patently unreasonable. (See Declaration Murdter, ¶6.) On August 21,
2014, the FAA issued a letter concluding the County’s insurance requirement was not
unreasonable. (See Declaration Murdter, ¶7.) As of November 12, 2015, Plaintiffs have not
responded to the FAA’s insurance finding or submitted the requisite insurance. (See Declaration
Murdter, ¶8.)
Based on these extrinsic facts, County invites this court to narrowly construe Plaintiffs’
complaint as a challenge to the County’s refusal to issue Plaintiffs a permit to conduct skydiving
operations, a challenge which County contends is within the exclusive jurisdiction of the United
States District Court of Appeals. County cites 49 U.S.C.A. § 46110 which states, in relevant
part:
a person disclosing a substantial interest in an order issued by the Secretary of
Transportation (or the Under Secretary of Transportation for Security with respect
to security duties and powers designated to be carried out by the Under Secretary
or the Administrator of the Federal Aviation Administration with respect to
aviation duties and powers designated to be carried out by the Administrator) in
whole or in part under this part, part B, or subsection (l) or (s) of section 114 may
apply for review of the order by filing a petition for review in the United States
Court of Appeals for the District of Columbia Circuit or in the court of appeals of
the United States for the circuit in which the person resides or has its principal
place of business.
County asserts that the reason it has not issued a permit to Plaintiffs is because Plaintiffs
have not provided the requisite proof of insurance in an amount that the FAA has explicitly
approved as reasonable. According to County, Plaintiff’s challenge is as to the amount of
insurance required (ordered) by the FAA and, thus, review is properly sought in the federal
appellate court.
“[I]f subject matter jurisdiction may be challenged at any time during the course of an action it is logical for the
court to consider all admissible evidence then before it in making its determination-whatever the procedural posture
of the case. Permitting as thorough a review by the court considering the challenge is in accord with the principle a
court's subject matter jurisdiction is so fundamental it may be attacked at any time.” (Great Western Casinos, Inc. v.
Morongo Band of Mission Indians (1999) 74 Cal.App.4th 1407, 1418.)
1
In opposition, Plaintiffs argue that County ignores the gravamen of the complaint which
takes issue not merely with the refusal to issue a permit, but the County’s repeated refusal to
approve Plaintiffs’ skydiving operations at the Airport since 2009 and the damage Plaintiffs have
incurred since that time. The court is inclined to agree with Plaintiffs. Even if the Plaintiffs’
complaint could be construed as a challenge to the FAA’s determination of the reasonableness of
County’s insurance requirement, such a challenge is only one aspect of Plaintiffs’ complaint. 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. Superior Court (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.”)
Accordingly, defendant County’s demurrer to Plaintiffs’ complaint on the ground that the
court has no jurisdiction of the subject of the cause of action alleged in the pleading [Code Civ.
Proc., § 430.10, subd. (a)] is OVERRULED.
B.
Failure to state a cause of action.
Alternatively, County demurs to each of the remaining causes of action in Plaintiffs’
complaint on the ground that the “pleading does not state facts sufficient to constitute a cause of
action.” (Code Civ. Proc., § 430.10, subd. (e).)
1.
Breach of Contract – Third Party Beneficiary.
County acknowledges Plaintiffs may assert a claim for breach of contract, but argues the
contract must be express and cannot be implied-in-law. “It is settled that ‘a private party cannot
sue a public entity on an implied-in-law or quasi-contract theory, because such a theory is based
on quantum meruit or restitution considerations which are outweighed by the need to protect and
limit a public entity's contractual obligations.’ [Citations.]” (Katsura v. City of San Buenaventura
(2007) 155 Cal.App.4th 104, 109-10.)
Defendant County contends the contract alleged by Plaintiffs here is a contract that is
implied by law and not an express contract. At paragraph 61 of the complaint, Plaintiffs allege,
“49 USC § 47107, et seq., sets forth assurances to which an airport sponsor agrees as a condition
of receiving Federal financial assistance. Upon acceptance of an AIP grant, the assurances
become a binding contractual obligation between the airport sponsor and the Federal
government.”
“The Secretary of Transportation may approve a project grant application under this
subchapter for an airport development project only if the Secretary receives written assurances,
satisfactory to the Secretary, that--(1) the airport will be available for public use on reasonable
conditions and without unjust discrimination.” (49 USC §47107, subd. (a)(1); see also
Complaint, ¶63.)
“As a recipient of federal grants for the Airport, the County provided written assurances
of compliance with its obligation to make the Airport available to the public use for all types of
FAA-recognized activities, including skydiving, without unjust discrimination.” (Complaint,
¶64.)
County argues simply that these allegations spell out a quasi-contract or one implied by
law. The court disagrees. “The acceptance of a federal grant under terms and conditions
authorized by Congress creates a binding contract.” (McDonald v. Stockton Met. Transit Dist.
(1973) 36 Cal.App.3d 436, 441; see also 1 Witkin, Summary of California Law (10th ed. 2005)
Contracts, §1009, p. 1100 citing same.) Admittedly, County accepted federal grants for the
Airport. (See p. 1, lines 5 – 10 of County’s Memorandum of Points & Authorities.) Allegedly,
County accepted such funds on the condition that the airport will be available for public use on
reasonable conditions and without unjust discrimination. (Complaint, ¶¶61 – 64.)
County argues further that even if there were a contract, Plaintiffs have not adequately
alleged that they are intended third party beneficiaries. Civil Code section 1559 states, “A
contract, made expressly for the benefit of a third person, may be enforced by him at any time
before the parties thereto rescind it.” In other words, “A person who is not a party to a contract
may nonetheless have certain rights thereunder, and may sue to enforce those rights, where the
contract is made expressly for her benefit.” (Mercury Casualty Co. v. Maloney (2002) 113
Cal.App.4th 799, 802 (Mercury).) “[A] third party beneficiary’s rights under the contract are not
based on the existence of an actual contractual relationship between the parties but on the law’s
recognition that the acts of the contracting parties created a duty and established privity between
the promisor and the third party beneficiary with respect to the obligation on which the action is
founded.” (Mercury, supra, 113 Cal.App.4th at p. 802.)
Regarding the intended beneficiary theory:
A third party should not be permitted to enforce covenants made not for his
benefit, but rather to others. He is not a contracting party; his right to
performance is predicated on the contracting parties’ intent to benefit him. The
circumstance that a literal contract interpretation would result in a benefit to the
third party is not enough to entitle that party to demand enforcement. The
contracting parties must have intended to confer a benefit on the third party. It is
not necessary for the third party to be specifically named in the contract, but such
a party bears the burden of proving that the promise he seeks to enforce was
actually made to him personally or to a class of which he is a member. In making
that determination, the court must read the contract as a whole in light of the
circumstances under which it was entered.
…
The fact that the contract, if carried out to its terms, would inure to the third
party’s benefit, is insufficient to entitle him or her to demand enforcement.
[Citation.] However broad may be the terms of a contract, it extends only to those
things concerning which it appears that the parties intended to contract.
[Citation.] Whether a third party is an intended beneficiary to the contract
involves construction of the parties’ intent, gleaned from reading the contract as a
whole in light of the circumstances under which it was entered. [Citation.]
(Neverkovec v. Fredericks (1999) 74 Cal.App.4th 337, 348 – 349 (Neverkovec).)
In a sales contract under which a buyer agrees to pay the seller for goods delivered, even
if the “seller knows the buyer intends to resell the goods to a third party, this does not establish
that the seller intends to benefit the third party.” (Eastern Aviation Group, Inc. v. Airborne
Express, Inc. (1992) 6 Cal.App.4th 1448, 1453 (Eastern Aviation).) Significantly,
there is an important difference between knowledge that a certain outcome will
occur, and an intent to bring about that result. In order to establish third-party
beneficiary status, a plaintiff must show more than that the contracting parties
acted against a backdrop of knowledge that the plaintiff would derive benefit from
the agreement. The plaintiff must show that the benefit to plaintiff was a
consequence which the parties affirmatively sought; in other words, the benefit to
plaintiff must have been, to some extent, a motivating factor in the parties’
decision to enter into the contract.
(Eastern Aviation, supra, 6 Cal.App.4th at p. 1453.)
In Prouty v. Gores Technology Group (2004) 121 Cal.App.4th 1225, 1233, the court
held, “Generally, it is a question of fact whether a particular third person is an intended
beneficiary of a contract. [Citation.] However, where, as here, the issue can be answered by
interpreting the contract as a whole and doing so in light of the uncontradicted evidence of the
circumstances and negotiations of the parties in making the contract, the issue becomes one of
law that we resolve independently.” (Emphasis added.) In Neverkovec, Eastern Aviation, and
Prouty, the courts all dealt with this issue at the summary judgment stage, not the pleading stage.
Here, it is sufficient that Plaintiffs allege, “The Contract was entered into with the intent to
benefit the public, which includes Plaintiffs.” (Complaint, ¶69.)
Accordingly, defendant County’s demurrer to the first cause of action in Plaintiffs’
complaint on the ground that the pleading does not state facts sufficient to constitute a cause of
action [Code Civ. Proc., § 430.10, subd. (e)] for breach of contract-third party beneficiary is
OVERRULED.
2.
Intentional/ Negligent Interference with Prospective Economic
Advantage.
Government Code section 815 sets forth the general rule that “a tort action may not be
maintained against a public entity unless the claim is based on a statute providing for liability.”
(Chester v. State of California (1994) 21 Cal.App.4th 1002, 1004-1005.) Section 815 effectively
“abolishes all common law or judicially declared forms of liability for public entities.” (Gov.
Code, § 815 (Legislative Committee Comments).) As such, “direct tort liability of public entities
must be based on a specific statute declaring them to be liable, or at least creating some specific
duty of care.” (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1183.)
In pleading a cause of action against a public entity, the plaintiff must specifically allege the
statutory basis for liability. (Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780,
795.)
In opposition, Plaintiffs contend there is a statutory basis for liability, i.e., Government
Code section 815.2, subdivision (a) which states, “A public entity is liable for injury proximately
caused by an act or omission of an employee of the public entity within the scope of his
employment if the act or omission would, apart from this section, have given rise to a cause of
action against that employee or his personal representative.” “This section imposes upon public
entities vicarious liability for the tortious acts and omissions of their employees.” (Legislative
Committee Comment to Gov. Code, §815.2; see also Hoff v. Vacaville Unified School District
(1998) 19 Cal.4th 925, 932—“Through this section, the California Tort Claims Act expressly
makes the doctrine of respondeat superior applicable to public employers. [Citation.] ‘A public
entity, as the employer, is generally liable for the torts of an employee committed within the
scope of employment if the employee is liable. [Citations.]’ [Citation.] Under section 820,
subdivision (a), ‘[e]xcept as otherwise provided by statute . . ., a public employee is liable for
injury caused by his act or omission to the same extent as a private person.’ Thus, ‘the general
rule is that an employee of a public entity is liable for his torts to the same extent as a private
person (§ 820, subd. (a)) and the public entity is vicariously liable for any injury which its
employee causes (§ 815.2, subd. (a)) to the same extent as a private employer (§815, subd.
(b)).’”)
However, as noted above, the plaintiff must specifically allege the statutory basis for
liability. (Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795.) Plaintiffs have
not done so in their complaint.
Accordingly, defendant County’s demurrer to the second and third causes of action in
Plaintiffs’ complaint on the ground that the pleading does not state facts sufficient to constitute a
cause of action [Code Civ. Proc., § 430.10, subd. (e)] for intentional and negligent interference
with prospective economic advantage is SUSTAINED with 10 days’ leave to amend.
3.
Breach of Mandatory Duty.
County demurs to the fourth cause of action entitled, “Breach of Mandatory Duty,” by
again arguing that Plaintiffs have not set forth a statutory basis for liability against a public
entity. The complaint refers only to various federal statutes which do not create a private right of
action in State court. In opposition, Plaintiffs contend there is a statutory basis for liability, i.e.,
Government Code section 815.6 which states: “Where a public entity is under a mandatory duty
imposed by an enactment that is designed to protect against the risk of a particular kind of injury,
the public entity is liable for an injury of that kind proximately caused by its failure to discharge
the duty unless the public entity establishes that it exercised reasonable diligence to discharge the
duty.” Again, the plaintiff must specifically allege the statutory basis for liability. (Lopez v.
Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795.) Plaintiffs have not done so in
their complaint.
Accordingly, defendant County’s demurrer to the fifth cause of action in Plaintiffs’
complaint on the ground that the pleading does not state facts sufficient to constitute a cause of
action [Code Civ. Proc., § 430.10, subd. (e)] for breach of mandatory duty is SUSTAINED with
10 days’ leave to amend.
4.
Injunctive Relief.
“Injunction is an equitable remedy available to a person aggrieved by certain torts or
other wrongful acts, on a showing of the primary condition of equitable relief: inadequacy of the
remedy at law.” (5 Witkin, California Procedure (4th ed. 1997) Pleading, §778, p. 235.)
“Injunction may be the main remedy or a provisional remedy.” (Id.)
“Injunctive relief is a remedy, not a cause of action.” (City of South Pasadena v. Dept. of
Transportation (1994) 29 Cal.App.4th 1280, 1293.) “To qualify for a permanent injunction, the
plaintiff must prove (1) the elements of a cause of action involving the wrongful act sought to be
enjoined and (2) the grounds for equitable relief, such as, inadequacy of the remedy at law.” (Id.
at p. 1293; see also 5 Witkin, California Procedure (4th ed. 1997) Pleading, §779, p. 236; see
also Shell Oil v. Richter (1942) 52 Cal.App.2d 164, 168--“Injunctive relief is a remedy and not,
in itself, a cause of action, and a cause of action must exist before injunctive relief may be
granted.”)
Witkin suggests that injunctive relief can be sought as a cause of action, albeit loosely.
“It is often loosely said that a complaint states (or fails to state) a cause of action for injunction.
If good, this means that is states a cause of action, and also states grounds for the equitable
remedy of an injunction.” (5 Witkin, California Procedure (4th ed. 1997) Pleading, §781, p.
238.)
In demurring to the sixth cause of action, County essentially restates the arguments it
made in demurring to the first, second, third, and fifth causes of action and its argument
concerning subject matter jurisdiction. Although the court sustained County’s demurrer to the
second, third, and fifth causes of action, the court overruled County’s demurrer to the first cause
of action.
County argues further that injunctive relief cannot issue compelling County to issue a
permit to the Plaintiffs. The complaint does not set forth the specific injunctive relief being
sought. The specific form of injunctive relief, if any, will be decided later and County’s
objection(s), if any, are preserved.
However, defendant County’s demurrer to the sixth cause of action in Plaintiffs’
complaint on the ground that the pleading does not state facts sufficient to constitute a cause of
action [Code Civ. Proc., § 430.10, subd. (e)] for injunctive relief is OVERRULED.
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Case Name: Adam Vasheresse v. Palo Alto Medical Foundation, et al.
Case No.:
2014-1-CV-261455
Motion for Summary Judgment by Defendant Nicholas B. Monaco, M.D.
Factual and Procedural Background
This action arises of out of the alleged negligent medical care and treatment provided to
plaintiff Adam Vasheresse (“Plaintiff”). On or about June 12, 2012, and on numerous dates
afterward, Plaintiff employed defendants Rachel L. Malina, M.D. (“Dr. Malina”), Palo Alto
Medical Foundation (“PAMF”), Seton Medical Center (“Seton”), Theodor S. Parada, M.D. (“Dr.
Parada”), and Nicholas Monaco, M.D. (“Dr. Monaco) (collectively “Defendants”) to diagnose
and treat his medical complaints and conditions. (See Third Amended Complaint (“TAC”), ¶¶ 7,
17.) Plaintiff alleges that Defendants negligently failed to exercise the proper degree of skill,
knowledge, and care by “failing to inform [him] that his blood test showed that his blood was
reactive for human immunodeficiency virus (HIV) antibodies, the virus that causes acquired
immune deficiency syndrome (AIDS)” and failing “to do further testing and treatment.” (TAC,
¶¶ 8, 18.) Due to Defendants’ negligence, “Plaintiff’s health and immune system seriously
declined until he developed pneumocystis pneumonia (PCP) and acquired immune deficiency
syndrome (AIDS), and was hospitalized on March 11, 2013.” (TAC, ¶¶ 9, 19.)
On February 28, 2014, Plaintiff filed a complaint, alleging claims for medical malpractice
against PAMF, Dr. Malina, Seton, and Does 1-15. The complaint alleged that Does 1-5 and 1115 were medical facilities and Does 6-10 were physicians and surgeons. The complaint further
alleged: “The true names and capacities of defendants named herein as Does 1 through 15 … are
unknown to plaintiff, who therefore sues such defendants by such fictitious names pursuant to
California Code of Civil Procedure section 474. Plaintiff will amend this complaint to show true
names and capacities of Doe defendants when they have been ascertained.” (Complaint, ¶ 4.)
In April 2014, Dr. Malina and Seton entered into a stipulation permitting Plaintiff to file a
first amended complaint (“FAC”) substituting the true name of Theodor S. Parada, M.D. as Doe
6. Thereafter, on May 13, 2014, the court (Hon. James L. Stoelker) granted Plaintiff leave to file
the FAC pursuant to the parties’ stipulation.
On May 14, 2014, Plaintiff filed the FAC, substituting Dr. Parada for Doe 6. The FAC
asserted that the true names and capacities of Does 1-5 and 7-10 were unknown to Plaintiff and,
therefore, he sued them by fictitious names pursuant to Code of Civil Procedure section 474.
(See FAC, ¶ 4.)
Subsequently, PAMF, Dr. Malina, and Seton entered into a stipulation permitting
Plaintiff to file a second amended complaint (“SAC”) substituting the true name of Nicholas
Monaco, M.D. for Doe 7. Thereafter, on August 14, 2014, the court (Hon. Maureen A. Folan)
granted Plaintiff leave to file the SAC pursuant to the parties’ stipulation.
On August 20, 2014, Plaintiff filed the SAC, substituting Dr. Monaco for Doe 7. (See
SAC, ¶¶ 3, 6.) The SAC asserted that the true names and capacities of Does 1-5 and Does 8-10
continued to be unknown to Plaintiff. (See SAC, ¶ 4.)
On October 23, 2014, Dr. Monaco filed a demurrer to the SAC. On November 18, 2014,
the court (Hon. Patricia M. Lucas) sustained Dr. Monaco’s demurrer with leave to amend.
On November 20, 2014, Plaintiff filed a third amended complaint (“TAC”). Plaintiff
included an allegation that, “At the time the initial Complaint was filed herein, Plaintiff was
ignorant of the facts rendering Defendants Monaco and Parada liable to Plaintiff.” (TAC, ¶ 6.)
The TAC asserts a first cause of action for medical malpractice against defendants PAMF, Dr.
Malina, Dr. Parada, and Dr. Monaco. The TAC asserts a second cause of action for medical
malpractice against defendant Seton.
On December 5, 2014, Dr. Monaco filed an answer to the TAC.
On November 9, 2015, Dr. Monaco filed this motion for summary judgment.
III.
Defendant Dr. Monaco’s motion for summary judgment is DENIED.
A.
Professional negligence/ medical malpractice.
The first and only cause of action asserted against Dr. Monaco is for professional
negligence (medical malpractice). Civil Code section 1714, subdivision (a) is the statutory
foundation for negligence law in California. That section states, in relevant part:
Everyone is responsible, not only for the result of his or her willful acts, but also
for an injury occasioned to another by his or her want of ordinary care or skill in
the management of his or her property or person, except so far as the latter has,
willfully or by want of ordinary care, brought the injury upon himself or herself.
(Civ. Code §1714, subd. (a).)
“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.)
B.
Statute of Limitations/ Relation Back Doctrine.
In moving for summary judgment, Dr. Monaco argues as he did on demurrer that
Plaintiff’s claim is barred by the statute of limitations. More specifically, Dr. Monaco contends
Plaintiff’s substitution of Dr. Monaco for a Doe defendant in the August 20, 2014 SAC does not
relate back to the filing of the original complaint because Plaintiff was not truly ignorant of Dr.
Monaco’s identity as is required by Code of Civil Procedure section 474.2
Dr. Monaco proffers evidence that Plaintiff knew of his identity because Plaintiff
obtained medical records by June 2013, prior to the filing of the original complaint, which
identified Dr. Monaco on the Discharge Summary. (See Separate Statement of Undisputed
Material Facts in Support of Defendant Nicholas B. Monaco, M.D.’s Motion for Summary
Judgment (“Dr. Monaco UMF”), Fact Nos. 1, 2, 3, and 6.) Moreover, Dr. Monaco testified that
he introduced himself to Plaintiff on June 12, 2012 and saw him each day Plaintiff was in the
hospital. (See Dr. Monaco UMF, Fact Nos. 7 – 9.) Dr. Monaco met twice with Plaintiff on the
date of discharge while Plaintiff’s mother was present. (See Dr. Monaco UMF, Fact Nos. 10 –
11.) Dr. Monaco’s name appears on the Discharge Instructions and on the prescription for
Acyclovir given to Plaintiff and/or his mother. (See Dr. Monaco UMF, Fact Nos. 12 – 13.)
The rule that applies to this case has been stated in General Motors Corp. v.
Superior Court (1996) 48 Cal.App.4th 580, 587–588, 55 Cal.Rptr.2d 871: “When
a lawsuit is first initiated after the applicable period of limitations has expired and
the plaintiff is entitled to claim the benefit of a delayed discovery rule (that is,
when for one reason or another the plaintiff is granted an extended period within
which to file suit), the relevant inquiry is what the plaintiff knew or, through the
exercise of due diligence, reasonably could have discovered at an earlier date....
[¶] But where, as here, a lawsuit is initiated within the applicable period of
limitations against someone (that is, almost anyone at all) and the plaintiff has
complied with section 474 by alleging the existence of unknown additional
defendants, the relevant inquiry when the plaintiff seeks to substitute a real
defendant for one sued fictitiously is what facts the plaintiff actually knew at the
time the original complaint was filed.”
A plaintiff can avail him or herself of section 474 if the plaintiff is ignorant of
facts that give rise to a cause of action against a person who is otherwise known to
the plaintiff. “In keeping with th[e] liberal interpretation of section 474, it is now
well established that even though the plaintiff knows of the existence of the
defendant sued by a fictitious name, and even though the plaintiff knows the
defendant's actual identity (that is, his name), the plaintiff is ‘ignorant’ within the
meaning of the statute if he lacks knowledge of that person's connection with the
case or with his injuries.” (General Motors Corp. v. Superior Court, supra, 48
Cal.App.4th at pp. 593–594, 55 Cal.Rptr.2d 871.) As put by another court: “The
phrase ‘ignorant of the name of a defendant’ is broadly interpreted to mean not
only ignorant of the defendant's identity, but also ignorant of the facts giving rise
Code of Civil Procedure section 474 states, in relevant part, “When the plaintiff is ignorant of the name of a
defendant, he must state that fact in the complaint, or the affidavit if the action is commenced by affidavit, and such
defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the
pleading or proceeding must be amended accordingly.”
2
to a cause of action against that defendant.” (Fuller v. Tucker (2000) 84
Cal.App.4th 1163, 1170, 101 Cal.Rptr.2d 776; see generally 4 Witkin, Cal.
Procedure (4th ed. 1997) §§ 445, 446, pp. 540–545.)
(McOwen v. Grossman (2007) 153 Cal.App.4th 937, 942-43 (McOwen).)
In moving for summary adjudication, Dr. Monaco contends it is of no consequence that
the Discharge Summary did not disclose that Dr. Monaco ordered an HIV test. According to Dr.
Monaco, it is sufficient that Plaintiff knew Dr. Monaco’s identity and role in treating the
Plaintiff.
If the identity of the Doe defendant is known but, at the time of the filing of the
complaint the plaintiff did not know facts that would cause a reasonable person to
believe that liability is probable, the requirements of section 474 are met. “Section
474 allows a plaintiff in good faith to delay suing particular persons as named
defendants until he has knowledge of sufficient facts to cause a reasonable person
to believe liability is probable.” [Citation.] “The fact that the plaintiff had the
means to obtain knowledge is irrelevant.” [Citation.] “In short, section 474 does
not impose upon the plaintiff a duty to go in search of facts she does not actually
have at the time she files her original pleading.” [Citation.]
(McOwen, supra, 153 Cal.App.4th at pp. 943-44.)
Dr. Monaco directs the court to a March 11, 2013 consultation report of Dr. James
Rumack (an infectious disease specialist) wherein plaintiff stated to Dr. Rumack that he “had
been tested in 2012 and found to have a positive HIV but equivocal Western Blot” (see Exh. P to
the Declaration of Elisabeth A. Madden in Support, etc.) as perhaps an admission by Plaintiff
which he cannot now attempt to contradict, but the reference itself does not establish Plaintiff’s
knowledge of Dr. Monaco’s liability. As Dr. Monaco acknowledges, Plaintiff’s theory is that
defendants “fail[ed] to inform Plaintiff that his blood test showed that his blood was reactive for
HIV antibodies” and “failed to do further testing and treatment.” (Dr. Monaco UMF, Fact No. 4.)
In view of the court’s explanation in McOwen, Dr. Monaco has not met his initial burden of
demonstrating that Plaintiff was not truly ignorant of the facts giving rise to a cause of action
against him.
C.
Breach.
As a second basis for summary judgment, defendant Dr. Monaco attempts to establish
that he did not breach his legal duty.
The standard of care in malpractice cases is also well known. With unimportant
variations in phrasing, we have consistently held that a physician is required to
possess and exercise, in both diagnosis and treatment, that reasonable degree of
knowledge and skill which is ordinarily possessed and exercised by other
members of his profession in similar circumstances.
(Landeros v. Flood (1976) 17 Cal.3d 399, 408; see also CACI, No. 501; Mann v. Cracchiolo
(1985) 38 Cal.3d 18, 36.)
Ordinarily, the standard of care required of a doctor, and whether he exercised
such care, can be established only by the testimony of experts in the field.
[Citation.] But to that rule there is an exception that is as well settled as the rule
itself, and that is where ‘negligence on the part of a doctor is demonstrated by
facts which can be evaluated by resort to common knowledge, expert testimony is
not required since scientific enlightenment is not essential for the determination of
an obvious fact.’ [Citation.]
(Gannon v. Elliot (1993) 19 Cal.App.4th 1, 6; see also CACI, No. 501; see also Alef v. Alta Bates
Hospital (1992) 5 Cal.App.4th 208, 215—“The standard of care against which the acts of a
medical practitioner are to be measured is a matter peculiarly within the knowledge of experts; it
presents the basic issue in a malpractice action and can only be proved by their testimony, unless
the conduct required by the particular circumstances is within the common knowledge of
laymen.”)
Ordinarily, if a plaintiff seeks to hold a hospital or a physician liable for a breach
of a duty as to the medical care and treatment of a patient, the courts refuse to
give a res ipsa loquitur instruction unless the plaintiff has produced some expert
testimony [footnote] which supports an inference of negligence from the fact of
the accident itself. [Citations and footnote omitted.] The reason for this
requirement appears from the following statement: “The law demands only that a
physician or surgeon have the degree of learning and skill ordinarily possessed by
practitioners of the medical profession in the same locality and that he exercise
ordinary care in applying such learning and skill to the treatment of his patient. …
Ordinarily, a doctor’s failure to possess or exercise the requisite learning or skill
can be established only by the testimony of experts.” [Citation omitted.]
(Meier v. Ross General Hospital (1968) 69 Cal.2d 420, 428 – 429; see also Johnson v. Superior
Court (2006) 143 Cal.App.4th 297, 305 (Johnson)—“Because the standard of care in a medical
malpractice case is a matter ‘peculiarly within the knowledge of experts’ [Citation], expert
testimony is required to ‘prove or disprove that the defendant performed in accordance with the
standard prevailing of care’ unless the negligence is obvious to a layperson.’ [Citation.])
In moving for summary judgment, Dr. Monaco begins by proffering a chronology of
Plaintiff’s treatment based on Plaintiff’s hospital and medical records. (See Dr. Monaco UMF,
Fact Nos. 15 – 21.) Based upon the factual chronology of Plaintiff’s treatment, Dr. Monaco
offers the opinion/declaration of Richard Liu, D.O. (“Dr. Liu”), an expert in the field of internal
medicine. (See Declaration of Richard Liu, D.O. in Support, etc. (“Declaration Liu”), ¶1.) It is
Dr. Liu’s expert opinion, based upon a review of the medical records in this case, that Dr.
Monaco did not breach and, in fact, met the applicable standard of care at all times. (See Dr.
Monaco UMF, Fact No. 22.)
In opposition, Plaintiff proffers the opinion of his own expert, Benny Gavi, M.D., M.T.S.
(“Dr. Gavi”), who is an expert in the field of internal medicine. (See Declaration of Dr. Benny
Gavi in Support of Plaintiffs’ Opposition, etc. (“Declaration Dr. Gavi”), ¶1.) Dr. Gavi’s opinion,
based on a review of Plaintiff’s medical records, is that Dr. Monaco did not act within the
appropriate standard of care in treating Plaintiff. (See Plaintiff’s Response to Defendant’s
Separate Statement of Undisputed Material Facts (“Plaintiff’s Response”), Fact No. 22.) The
expert opinions submitted by the parties are in conflict. This amounts to a triable issue of
material fact as to whether Dr. Monaco breached the standard of care.
D.
Causation.
Finally, Dr. Monaco moves for summary judgment by arguing that his conduct did not
cause Plaintiff’s injuries. As with breach, the issue of 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, punctuation, and emphasis omitted.)
In the present case, Dr. Liu further opines, based on the same set of facts, that “to a
reasonable degree of medical probability, that no actions or omissions on the party of Dr.
Monaco caused Mr. Vasheresse’s HIV status to progress to AIDS because the actual results
(‘indeterminate’) of the HIV test were sent to the primary care physician who was interacting
with, examining, and treating Mr. Vasheresse for various complaints and conditions from August
6, 2012 until Mr. Vasheresse was hospitalized in March 2013 and diagnosed with pneumocystis
pneumonia.” (See Dr. Monaco UMF, Fact No. 25.)
In opposition, plaintiffs again proffer the declaration of their own expert, Dr. Gavi, who
is of the opinion, based on a review of Plaintiff’s medical records, that “it is more likely than not
that if Dr. Monaco had conducted himself in conformity with the standard of care of a hospitalbased physician, that [Plaintiff’s] HIV diagnosis would have been known shortly after the
hospitalization discussed herein and treatment would properly have begun promptly, thus
avoiding the significant harm he suffered as a result of the delay; and that Dr. Monaco’s breach
of the standard of care was a substantial factor in that delay and the attendant harm to
[Plaintiff’s] health.” (See Declaration Dr. Gavi, ¶8.) The expert opinions submitted by the
parties are in conflict. This amounts to a triable issue of material fact as to whether Dr.
Monaco’s conduct caused Plaintiff’s injuries.
Accordingly, defendant Dr. Monaco’s motion for summary judgment is DENIED.
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