SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
Department 6, Honorable Theodore C. Zayner Presiding
Maggie Marin, Courtroom Clerk
191 North First Street, San Jose, CA 95113
Telephone: 408-882-2160
To contest the ruling, call (408) 808-6856 before 4:00 P.M.
LAW AND MOTION TENTATIVE RULINGS
DATE: 3/01/16
TIME: 9 A.M.
PREVAILING PARTY SHALL PREPARE THE ORDER
(SEE RULE OF COURT 3.1312)
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CASE #
CASE TITLE
2014-1-CV-266836 Bray v Intuitive Surgical,
Inc.
2015-1-CV-282077 Qualium Corporation v
Blue Shield of California
RULING
Control/Click Line 1 for tentative ruling.
Continued per Stipulation and Order to
4/7/2016.
2015-1-CV-286835 Capitol One, N.A. v Fareed Control/Click Line 3 for tentative ruling.
Sepehry-Fard
2015-1-CV-288282 Anritsu Company v
Control/Click Line 4 for tentative ruling.
Absolute Analysis, Inc.
2015-1-CV-288282 Anritsu Company v
Control/Click Line 4 for tentative ruling.
Absolute Analysis, Inc.
2015-1-CV-288282 Anritsu Company v
Control/Click Line 4 for tentative ruling.
Absolute Analysis, Inc.
2014-1-CV-268517 Jonna, et al v GBR Palm
Control/Click Line 7 for tentative ruling.
Valley Podium LLC, et al
2013-1-CV-255579 Richmond v Guzman, et al Motion for Discovery of Peace Officer
Personnel Records DENIED, without
prejudice. Court finds motion is
premature and overly broad, and further
that other avenues of civil discovery are
available to plaintiff.
16CV290330
Barron v Wholesale Motor Petition to Compel Arbitration.
Group et al
CONTINUED to April 7, 2016 at 9 a.m.
in Department 6. Court Case
Management System indicates
Opposition and Reply papers filed, but
Court has not received or reviewed
either filed or courtesy copies of any
papers filed after the Petition. Counsel
are ordered to promptly verify filings,
and provide courtesy copies to
Department 6.
SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
Department 6, Honorable Theodore C. Zayner Presiding
Maggie Marin, Courtroom Clerk
191 North First Street, San Jose, CA 95113
Telephone: 408-882-2160
To contest the ruling, call (408) 808-6856 before 4:00 P.M.
LAW AND MOTION TENTATIVE RULINGS
LINE 10 2013-1-CV-247584 Costa v Krueger
Motion to Withdraw as Counsel is
GRANTED. Trial Setting Conference
remains as set on March 8, 2016 at 11
a.m. in Department 6. Court will sign
proposed Order.
LINE 11 2013-1-CV-255867 Restivo Enterprises, Inc. v Control/Click Line 11 for tentative
D. Doan, et al
ruling.
LINE 12 2013-1-CV-255867 Restivo Enterprises, Inc. v
D. Doan, et al
LINE 13 2014-1-CV-265371 M. Avalos, et al v Balt
Extrusion, et al
Control/Click Line 12 for tentative
ruling.
Motion to Withdraw as Attorney for
Plaintiff Lopez. GRANTED. Court will
sign proposed Order. Case Management
Conference remains as set on 3/29/16 at
10 a.m. in Department 6.
LINE 14 2014-1-CV-265670 J. Velasquez v E. Mendez, Control/Click Line 14 for tentative
et al
ruling.
LINE 15 2015-1-CV-284352 J. McManis, et al v S.
Boitano
LINE 16 2015-1-CV-285795 Doe v Morgan Hill Unified
School District
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Control/Click Line 15 for tentative
ruling.
Plaintiffs’ Motion to Consolidate Cases
2015-1-CV-285795, 115CV287374 and
115CV287375. No Opposition. Motion
to Consolidate is GRANTED. Court will
sign proposed Order. Consolidated cases
are set for Case Management
Conference in 2015-1-CV-285795 on
May 3, 2016 at 10 a.m. in Department 6.
SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
Department 6, Honorable Theodore C. Zayner Presiding
Maggie Marin, Courtroom Clerk
191 North First Street, San Jose, CA 95113
Telephone: 408-882-2160
To contest the ruling, call (408) 808-6856 before 4:00 P.M.
LAW AND MOTION TENTATIVE RULINGS
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Case Name: Bray, et al. v. Intuitive Surgical, Inc., et al.
Case No.:
2014-1-CV-266836
This action arises from alleged physical injuries sustained by a hysterectomy patient,
plaintiff Kirsten Bray (“Plaintiff”),1 due to the defective design and manufacture of a “da
Vinci” surgical robot by defendant Intuitive Surgical, Inc. (“Defendant”). In the second
amended complaint (“SAC”), Plaintiff alleges the following: Defendant designed,
manufactured, tested, promoted, and sold the da Vinci surgical system. (SAC, ¶ 13.) On its
website and other websites aimed at consumers, Defendant has promoted the da Vinci system
as minimally invasive, safe, and safer than comparative methods of surgery for hysterectomies
and other procedures. (Id., ¶¶ 13-14.) In fact, the da Vinci robotic system presents substantial
risks of complications and injuries—including burns, tears, bleeding hematomas, and other
conditions—and patients have suffered severe injuries caused by the defective design and
manufacture of that device. (Id., ¶¶ 16-18, 27-28, & 30.) Despite being aware of those risks,
Defendant has not (a) provided adequate warnings of such risks and complications to
physicians and consumers; (b) adequately tested the safety of its products; (c) reported
complaints to the FDA, other regulators, and the public; or (d) properly trained or supervised
physicians using its devices. (Id., ¶¶ 19-25, 29, & 31.) Defendant has also suppressed reports of
complications, made misrepresentations that minimize the risks, over-promoted the device, and
caused hospitals to purchase and use the device through a calculated program of intimidation
and market management. (Id., ¶¶ 15, 22, & 26.) Based on Defendant’s advertisements and her
observations of chest surgery patients in her capacity as a nurse, Plaintiff consented to the use
of the da Vinci surgical robot for her hysterectomy. (Id., ¶¶ 36-42.) On June 28, 2010, Plaintiff
underwent a surgical hysterectomy using the da Vinci robot, resulting in severe physical
injuries. (Id., ¶¶ 33-34.) In September 2013, Plaintiff learned that her injuries were attributable
to Defendant’s device. (Id., ¶¶ 53-56.)
In the SAC, Plaintiff prays for compensatory and punitive damages, and asserts causes
of action against Defendant for (1) strict liability, (2) negligence, (3) breach of express
warranty, and (4) breach of implied warranty. The fourth cause of action has been dismissed
pursuant to the parties’ stipulation.
Defendant moves to strike the punitive damages claim and other portions of the SAC
on the grounds that they are irrelevant, false, or improper matter inserted into the pleading, and
they are not drawn in conformity with California law. (See Code Civ. Proc. [“CCP”], § 436.)
Plaintiff opposes the motion.2
Plaintiff was incorrectly named as “Kristen Bray” in the caption of the original complaint. Furthermore,
although she commenced this action with several co-plaintiffs, Plaintiff currently pursues this case solely on her
own behalf. This case has been coordinated with a separate lawsuit by a former plaintiff in this case—Perry v.
Intuitive Surgical, Inc., Santa Clara County No. 2015-1-CV-286375 (“the Perry Case”)—for purposes of pre-trial
discovery and case management.
1
2
In opposition, Plaintiff refers to an order from the Perry Case. Since she does not make a request for
judicial notice, the Court will not take judicial notice of that order. (See Evid. Code, §§ 452, subd. (d) & 453.) The
grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the
court is required to take judicial notice. (CCP, § 437, subd. (a).) The Court therefore will not consider the order
from the Perry Case in connection with the instant motion to strike.
I.
Motion to Strike the Punitive Damages Claim
Punitive damages are recoverable in connection with a claim for strict liability upon a
showing of malice, fraud or oppression. (Krusi v. Bear, Stearns & Co. (1983) 144 Cal.App.3d
664, 678; see also Civ. Code, § 3294, subd. (a).) To survive a motion to strike a punitive
damages claim, conclusory allegations are insufficient; rather, a plaintiff must specifically
allege facts to show oppression, fraud, or malice. (Brousseau v. Jarrett (1977) 73 Cal.App.3d
864, 872; G. D. Searle & Co. v. Super. Ct. (1975) 49 Cal.App.3d 22, 26-29; Clauson v. Super.
Ct. (1998) 67 Cal.App.4th 1253, 1255.) That being said, the trial court must read the complaint
as a whole, and conclusory allegations “when read in context with the facts alleged as to
defendants’ conduct may adequately plead the evil motive requisite to recovery of punitive
damages” (Monge v. Super. Ct. (1986) 176 Cal.App.3d 503, 510, citing Perkins v. Super. Ct.
(1981) 117 Cal.App.3d 1, 617.)
Defendant asserts that Plaintiff has not adequately alleged fraud. Even so, Plaintiff
seeks punitive damages based on malice (SAC, ¶¶ 81 & 89) and punitive damages may be
awarded when the defendant is guilty of oppression, fraud, or malice (Civ. Code, § 3294,
subd. (a)). Thus, if Plaintiff properly pleads malice, then she is not required to sufficiently
allege fraud. Malice is defined as “conduct which is intended by the defendant to cause injury
to the plaintiff or despicable conduct which is carried on by the defendant with a willful and
conscious disregard of the rights or safety of others.” (Civil Code §3294, subd. (c)(1).) A
plaintiff need only allege “that the defendant was aware of the probable dangerous
consequences of his conduct, and that he willfully and deliberately failed to avoid those
consequences.” (Lackner v. North (2006) 135 Cal.App.4th 1188, 1211; Ford Motor Co. v.
Home Ins. Co. (1981) 116 Cal.App.3d 374, 381; see also Taylor v. Super. Ct. (1979) 24 Cal.3d
890, 895-896; see also Blegen v. Super. Ct. (1981) 125 Cal.App.3d 959, 963.) Plaintiff alleges
that Defendant knew that its da Vinci robot increased the risk of serious injury and/or death.
(SAC, ¶¶ 16-19, 65, 69, & 81.) Despite its knowledge, it allegedly continued to design,
manufacture, market, and promote its product without adequately disclosing the risks, testing
the product, or training/overseeing the use of the product in order to maximize profits at the
expense of public health and safety. (Id., ¶¶ 16-32, 65-81, 83-84, & 90-111.) These factual
allegations are sufficient to plead malice.
Next, Defendant argues that Plaintiff does not adequately plead a claim for punitive
damages against a corporate entity. A corporate defendant will only be held liable for punitive
damages if, for example, its officer, director, or managing agent authorized or ratified the
conduct for which punitive damages are awarded. (Civ. Code, § 3294, subd. (b).) Contrary to
Defendant’s contention, neither Cruz v. HomeBase (2000) 83 Cal.App.4th 160, 167-168,
Scannell v. County of Riverside (1984) 152 Cal.App.3d 596, 614, nor any other legal basis
suggests that a plaintiff must specifically allege how the corporate defendant’s officer, director,
or managing agent authorized or ratified the conduct. Here, Plaintiff adequately pleads that
Defendant’s officers and directors authorized and directed the wrongful conduct at issue.
(SAC, ¶ 8.) Thus, she has sufficiently a claim for punitive damages against a corporate
defendant.
In light of the foregoing, Defendant’s motion to strike the claim for punitive damages is
DENIED.
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Case Name: Capital One, N.A., et al. v. Sepehry-Fard
Case No.:
2015-1-CV-286835
This action arises from allegedly false Uniform Commercial Code (“UCC”) financial
statements and frivolous lawsuits—including Sepehry-Fard v. Aurora Bank FSB (Super. Ct.
Santa Clara County No. 2011-1-CV-209804) (“Sepehry-Fard I”)3—filed by defendant Fareed
Sepehry-Fard (“Defendant”). In the complaint, plaintiffs Capital One, N.A. (“Capital One”)
and Greenpoint Mortgage Funding, Inc. (“Greenpoint”) (collectively, “Plaintiffs”) allege the
following: Greenpoint is Capital One’s subsidiary. (Compl., ¶ 2.) Defendant borrowed money
from Greenpoint pursuant to a promissory note (“the Note”) secured by a deed of trust against
his property (“the Property”) in 2007. (Id., ¶¶ 4-6.) In 2008, he again borrowed money from
Greenpoint under a home equity line of credit (“HELOC”) secured by a junior deed of trust
against the Property. (Id., ¶¶ 7-8.) Defendant has been in default on both loans since 2011, and
despite ongoing foreclosure activities, the Property has not yet been sold. (Id., ¶ 9.) Defendant
is a member of anti-government extremists called the Sovereign Citizens Movement who
commit “paper terrorism” based on their meritless assertion of sovereignty. (Id., ¶¶ 12-17.)
Defendant has filed an “unending stream” of fraudulent UCC financial statements and
frivolous lawsuits that have caused harm to Plaintiffs. (Id., ¶¶ 18-19, 22-52, 54, 57, 65, & Ex.
E.) Specifically, in 2011, Defendant filed 3 UCC financial statements with the Secretary of
State (“SOS”) wherein he falsely identified himself as a secured creditor of Greenpoint with a
security interest in the Note and HELOC. (Compl., ¶¶ 9, 19, 22-24, & 29-32, Exs. A-C.) The
same year, he filed two wrongful foreclosure actions in the Superior Court of Santa Clara
County. (Id., ¶¶ 54(a) & 55(a).) The court sustained demurrers without leave to amend and
entered judgment against him in both cases. (Ibid.) Thereafter, Defendant re-asserted wrongful
foreclosure claims by filing 11 cases in the U.S. District Court that were dismissed at the
pleading stage. (Id., ¶¶ 54-56, & Ex. E.) After the U.S. District Court declared that Defendant
is a vexatious litigant in March 2015, he filed 2 unsuccessful cases in the Bankruptcy Court,
and a false UCC financial statement plus 14 “amendments” with the SOS wherein he reasserted arguments from his prior lawsuits. (Id., ¶¶ 25-26, 29-33, 42, 54(e), 55(f), 54, & 61-63,
& Exs. D-E.)
Plaintiffs assert causes of action against Defendant for (1) declaratory relief;
(2) violation of Commercial Code section 9625; and (3) issuance of a pre-filing order under
Code of Civil Procedure (“CCP”) section 391.7. Defendant—a self-represented litigant4—
demurs to the complaint as a whole and to each cause of action for lack of subject matter
jurisdiction, lack of capacity, failure to state a claim, and uncertainty, and makes a request for
judicial notice in support thereof. (See CCP, § 430.10, subds. (a), (b), (e), & (f).)
3
In an unpublished decision, the Court of Appeal affirmed judgment in favor of the defendants in
Sepehry-Fard I on February 16, 2016. (Sepehry-Fard v. Aurora Bank, FSB (Feb. 16, 2016, H039052) [2016 WL
626202] [“Appellate Decision”].)
4
Self-represented litigants are entitled to the same, but no greater, consideration than other litigants and
attorneys. (County of Orange v. Smith (2005) 132 Cal.App.4th 1434, 1444; Nelson v. Gaunt (1981) 125
Cal.App.3d 623, 638-639.) Self-represented litigants “are held to the same standards as attorneys” and must
comply with the rules of civil procedure. (Kobaysahi v. Superior Court (2009) 175 Cal.App.4th 536, 543; see also
Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.)
I.
Judicial Notice
Defendant’s request for judicial notice certain recorded documents and Greenpoint’s
business entity records from the SOS and the New York Department of State (Defendant’s
RJN, Exs. 5-7 & 9-10) is GRANTED. (See Evid. Code, § 452, subds. (a), (c), & (h); see also
Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264-265; see also Gbur v.
Cohen (1979) 93 Cal.App.3d 296, 301; see also StorMedia, Inc. v. Super. Ct. (1999) 20 Cal.4th
449, 456, fn. 9; see also Aquila, Inc. v. Super. Ct. (2007) 148 Cal.App.4th 556, 569.)
Defendant’s request for judicial notice of a “Rescission Notice” with an “Affidavit of
Revocation of Signature of Good Cause” (“Revocation Affidavit”) (Defendant’s RJN, Ex. 12)
is GRANTED only as to the fact that the document exists, not the truth of the facts contained
therein or Defendant’s asserted interpretation of its legal effect. (See Evid. Code, § 452,
subd. (d); see also People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422,
fn. 2; see also Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91
Cal.App.4th 875, 882; see also Fremont Indemnity Co. v. Fremont General Corp. (2007) 148
Cal.App.4th 97, 114-115.)
Defendant’s request for judicial notice of other items (Defendant’s RJN, Exs. 1-4, 8, &
11) that are not relevant or subject to mandatory or permissive judicial notice under Evidence
Code sections 451 and 452 is DENIED. (See Evid. Code, § 450; see also Gbur v. Cohen,
supra, 93 Cal.App.3d, at p. 301.)
The Court also takes judicial notice of the Appellate Decision. (See Evid. Code, § 452,
subd. (d); see also People ex rel. Lockyer v. Shamrock Foods Co., supra, 24 Cal.4th, at p. 422,
fn. 2; see also Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort, supra, 91
Cal.App.4th, at p. 882; see also Cal. Law Revision Com. com. to Evid. Code, §§ 452-453.)
II.
Demurrer
To begin, the Court will address Defendant’s contention that, by filing this demurrer, he
is appearing only on a “special and limited” basis and reserves the right to challenge the
Court’s personal jurisdiction for improper service of process. “A defendant appears in an
action when the defendant . . . demurs” to the complaint. (CCP, § 1014; see also Serrano v.
Stefan Merli Plastering Co., Inc. (2008) 162 Cal.App.4th 1014, 1029.) Such an appearance “is
equivalent to personal service of summons.” (CCP, § 410.50, subd. (a).) Failure to make a
motion to quash “at the time of the filing of a demurrer . . . constitutes a waiver of the issues of
lack of personal jurisdiction” and inadequacy of service of process. (CCP, § 418.10,
subd. (e)(3).) Thus, by demurring to the complaint before filing a motion to quash, Defendant
has generally appeared in the action and waived any objection to personal jurisdiction.
Additionally, the Court acknowledges that, in the reply, Defendant requests an order
that directs Plaintiffs to pay him damages. A demurrer is only used to object to defects in the
complaint. (CCP, §§ 430.10 & 430.30.) No legal basis allows a court to award damages in
response to a demurrer. Defendant’s request therefore lacks merit.
Turning to the merits of the demurrer, on demurrer, courts admit “all material facts
properly pleaded,” facts subject to judicial notice, and facts appearing in exhibits attached to
the subject pleading. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Holland v. Morse Diesel
Int’l, Inc. (2001) 86 Cal.App.4th 1443, 1447; Barnett v. Fireman’s Fund Ins. Co. (2001) 90
Cal.App.4th 500, 505.) “A court will not consider facts which have not been alleged in the
complaint unless they may be reasonably inferred from the matters which have been pled or are
proper subjects of judicial notice.” (Hall v. Great Western Bank (1991) 231 Cal.App.3d 713,
719, fn.7.)
A.
Lack of Subject Matter Jurisdiction, Lack of Capacity to Sue, & Uncertainty
Article VI, Section 10 of the California Constitution confers broad subject matter
jurisdiction on the superior court. (Serrano v. Stefan Merli Plastering Co., Inc., supra, 162
Cal.App.4th, at p. 1029.) Lack of subject matter jurisdiction means that the court completely
lacks authority over a cause of action. (Cummings v. Stanley (2009) 177 Cal.App.4th 493,
503.) Defendant argues that the Court lacks subject matter jurisdiction because his assets are
subject to the Bankruptcy Court’s jurisdiction. (Defendant’s Demurrer, at p. 15:1-7.) This
argument lacks merit because Plaintiffs’ claims concern Defendant’s allegedly fraudulent and
frivolous lawsuits and UCC financial statements, not his assets. (Compl., ¶¶ 21-65.)
Defendant’s demurrer for lack of subject matter jurisdiction is accordingly OVERRULED.
Legal capacity to sue is the right to come into court, and lack of capacity usually refers
to the party being a minor, deceased, or incompetent. (Friendly Village Community Assn., Inc.
v. Silva & Hill Constr. Co. (1973) 31 Cal.App.3d 220, 224; Color-Vue, Inc. v. Abrams (1996)
44 Cal.App.4th 1599, 1604; see also Robertson v. Burrell (1895) 110 Cal. 568.) Defendant first
argues that Plaintiffs lack capacity because there was no loan. This assertion contradicts facts
alleged in the complaint and subject to judicial notice. (Compl., ¶¶ 5-9; Defendant’s RJN,
Ex. 5.) Thus, it cannot be considered on demurrer. (See Hall v. Great Western Bank, supra,
231 Cal.App.3d, at p. 719, fn.7.) In any event, even if there was no loan, the absence of a loan
would not indicate that Plaintiffs lack legal capacity to sue. Next, Defendant contends that
Greenpoint lacks capacity because and it surrendered its license to transact business in
California. (Defendant’s Demurrer, at pp. 16:11-17:1.) It is true that Greenpoint surrendered its
license. (Defendant’s RJN, Ex. 9.) Even so, no legal authority suggests that a corporation lacks
capacity by virtue of the fact that it has surrendered its license. Defendant’s arguments
therefore lack merit. Thus, Defendant’s demurrer for lack of capacity is OVERRULED.
“A demurrer for uncertainty is strictly construed, even where a complaint is in some
respects uncertain, because ambiguities can be clarified under modern discovery procedures.”
(Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) There are no
uncertainties in the complaint that cannot be clarified under modern discovery procedures.
Therefore, Defendant’s demurrer for uncertainty is OVERRULED.
B.
Failure to State a Claim
Defendant argues that Plaintiffs’ claims are barred by his affirmative defenses of
unclean hands and mitigation of damages pursuant to the federal Truth in Lending Act (15
U.S.C. §§1601, et seq.) (“TILA”), federal regulations, Jesinoski v. Countrywide Home Loans,
Inc. (2015) __ U.S. __ [135 S.Ct. 790] (“Jesinoski”), and two unpublished federal decisions. In
Jesinoski, the court held that a borrower may effect a TILA rescission by sending notice of the
rescission to the lender. (Jesinoski, supra, at p. 793.) Defendant contends that he mailed the
Revocation Affidavit and thereby rescinded the underlying loan instruments. He therefore
concludes that Plaintiffs have unclean hands because they have sought to enforce the loans, and
failed to mitigate damages by not challenging the Revocation Affidavit in earlier lawsuits.
Defendant’s argument lacks merit for several reasons. First, the defense of failure to
mitigate damages only precludes the recovery of damages that the plaintiff could have avoided.
(Henrici v. South Feather Land & Water Co. (1918) 177 Cal. 442, 449.) Here, Plaintiffs do not
seek to recover monetary damages; rather, they seek statutory damages, injunctive relief, and
declaratory relief. Thus, their claims are not barred by the doctrine of mitigation of damages.
Second, the doctrine of unclean hands only applies when the asserted inequitable
conduct relates “to the very subject matter involved in the action before the court and must
affect the equitable relations between the parties litigant.” (Germo Mfg. Co. of Missouri v.
McClellan (1930) 107 Cal.App. 532, 541; see also Fladeboe v. American Isuzu Motors Inc.
(2007) 150 Cal.App.4th 42, 56.) Plaintiffs’ claims against Defendant do not seek to enforce the
loans. Rather, they are based on Defendant’s allegedly wrongful conduct in repeatedly filing
false UCC financial statements and frivolous lawsuits seeking to declare that the loans are
unenforceable. (Compl., ¶¶ 9-65, & Exs. A-E.) Simply put, whether the loans are enforceable
is unrelated to Plaintiffs’ claims. Therefore, Defendant’s reliance on TILA, Jesinoski, and
related legal authorities is misplaced, and the claims are not barred by the doctrine of unclean
hands.
Lastly, a demurrer based on an affirmative defense may be sustained only “where the
complaint ‘has included allegations that clearly disclose some defense or bar to recovery.’
([Citation.])” (Cryolife, Inc. v. Super. Ct. (2003) 110 Cal.App.4th 1145, 1152, italics in
original.) It cannot be sustained based on facts asserted in a demurring party’s supporting
memorandum. (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.) The factual
premise of Defendant’s argument is that there is no loan. To the contrary, facts alleged in the
complaint and subject to judicial notice show that there are two loans: the Note in the amount
of $1.3 million (subsequently modified to reflect a $1.4 million balance), and the HELOC of
up to $300,000. (Compl., ¶¶ 4-5 & 7-8; Appellate Decision, p. *1; Defendant’s RJN, Exs. 5-7.)
Defendant’s assertion that the Revocation Affidavit rescinded the loans is not a fact that can be
considered on demurrer. (See, e.g., Fremont Indemnity Co. v. Fremont General Corp., supra,
148 Cal.App.4th, at pp. 114-115; see also Hall v. Great Western Bank, supra, 231 Cal.App.3d,
at p. 719, fn.7.) Thus, the Court cannot sustain the demurrer based on Defendant’s asserted
defenses.
Accordingly, Defendant’s demurrer for failure to state a claim is OVERRULED.
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Calendar lines 4, 5 and 6
Case Name: ANRITSU COMPANY v. ABSOLUTE ANALYSIS, INC.
Case No.: 2015-1-CV-288282
This is an action for breach of contracts between business entities. Currently before the
Court is the demurrer to the operative First Amended Complaint (“FAC”) by Defendant
Absolute Analysis Inc. (“Absolute”), Absolute’s motion to compel arbitration of the FAC’s 1st
cause of action and to stay the remaining claims, and the motion to enjoin or transfer a Ventura
County action between these same parties to this Court by Plaintiff Anritsu Company
(“Plaintiff”). The Court will first consider Absolute’s motion to compel arbitration of the
FAC’s 1st cause of action.
Absolute’s Motion to Compel Arbitration
“On petition of a party to an arbitration agreement . . . the court shall order the
petitioner and respondent to arbitrate the controversy if it determines that an agreement to
arbitrate the controversy exists,” unless the petitioner has waived the right to arbitration,
ground exist for the revocation of the agreement, or there is a possibility of conflicting rulings
on a common issue of law or fact where one party to the arbitration agreement is also party to
an action with a third party arising out of the same transaction or series of transactions. (Cal.
Code of Civ. Proc. §1281.2.) “If a court of competent jurisdiction, whether in this State or not,
has ordered arbitration of a controversy which is an issue involved in an action or proceeding
pending before a court of this State, the court in which such action or proceeding is pending
shall, upon motion of a party to such action or proceeding, stay the action or proceeding until
an arbitration is had in accordance with the order to arbitrate or until such earlier time as the
court specifies. . . . If the issue which is the controversy subject to arbitration is severable, the
stay may be with respect to that issue only.” (CCP §1281.4.)
“[W]hen presented with a motion to compel arbitration, the court’s first task is to
determine whether the parties have entered into an agreement to arbitrate their claims. Courts
‘apply general California contract law to determine whether the parties formed a valid
agreement to arbitrate their dispute.’ ‘General contract law principles include that ‘[t]he basic
goal of contract interpretation is to give effect to the parties’ mutual intent at the time of
contract[.]’ ‘Contract law also requires the parties agree to the same thing in the same sense.’
‘The petitioner [seeking arbitration] bears the burden of proving the existence of a valid
arbitration agreement by a preponderance of the evidence, while a party opposing the petition
bears the burden of proving by a preponderance of the evidence any fact necessary to its
defense. The trial court sits as the trier of fact, weighing all the affidavits, declarations, and
other documentary evidence, and any oral testimony the court may receive at its discretion, to
reach a final determination.’” (Ramos v. Westlake Services LLC (2015) 242 Cal.App.4th 674,
685-686, internal citations omitted, brackets in original.)
Absolute’s Motion to Compel Arbitration is GRANTED as follows:
The FAC’s 1st cause of action alleges a breach of the written Sales Channel Partner
Agreement the parties entered into on May 30, 2014. (See FAC at 7.) A copy of the
Agreement is attached as Ex. A to the declaration of Absolute counsel Christopher Adams in
support of the motion to compel arbitration. Absolute’s motion is based on paragraph 20 of
that Agreement while Plaintiff’s opposition relies on paragraph 19. These two provisions of
the Sales Channel Partner Agreement read in pertinent part as follows (brackets added):
“19. Law and International Trade Terms. The formation, validity, construction and
performance of this Agreement shall be governed by the Laws of the state of California. In the
event of any dispute arising from this Agreement the courts of California shall have exclusive
jurisdiction.”
“20. Arbitration. Except as provided in Article 15 [not relevant here], any claim or
controversy under, arising out of, in connection with or in relation to this Agreement shall be
settled by binding arbitration conducted in accordance with the rules of US Court of
International Arbitration.”
Generally, “It is . . . solely a judicial function to interpret a written instrument unless
the interpretation turns on the credibility of extrinsic evidence.” (Consolidated Theatres, Inc.
v. Theatrical Stage Employees Union (1968) 69 Cal.2d 713, 724. See also Sierra Vista
Regional Medical Center v. Bonta (2003) 107 Cal.App.4th 237, 245.)
While the tension between paragraphs 19 and 20 is more substantial than Absolute
acknowledges, the provisions are not contradictory as Plaintiff argues. The parties clearly
entered into an agreement with an express arbitration provision. Neither paragraph is
ambiguous and they can be reasonably harmonized as requiring any action to determine if the
parties validly agreed to arbitration, any action by either party to force the other to go to
arbitration, or any post-arbitration disputes, to be filed in a California court. The argument by
Plaintiff that there was no agreement to arbitrate and that Paragraph 19 should be read as
somehow canceling out Paragraph 20 (see Plaintiff’s Opp. at 7:11-14, citing the declaration of
Plaintiff’s general Counsel Stephen Vonderach) is unpersuasive and unreasonable as it would
render the express arbitration provision Plaintiff clearly agreed to by signing the contract mere
surplusage. “‘In considering expressions of agreement, the court must not hold the parties
some impossible, or ideal, or unusual standard. It must take language as it is and people as
they are. All agreements have some degree of indefiniteness and some degree of uncertainty.’
Moreover, ‘[t]he law leans against the destruction of contracts because of uncertainty and
favors an interpretation which will carry into effect the reasonable intention of the parties if it
can be ascertained.’” (Moncada v. West Coast Quartz Corp. (2013) 221 Cal.App.4th 768, 777,
internal citations omitted.)
An interpretation that would eliminate the clear language of Paragraph 20 from the
contract would also be contrary to California law specifically applicable to arbitration
provisions. “In light of California's strong public policy favoring arbitration as a method of
dispute resolution, courts should indulge every intendment to give effect to such proceedings
and order arbitration unless it can be said with assurance that the arbitration clause is not
susceptible of an interpretation that covers the asserted dispute.” (Villacreses v. Molinari
(2005) 132 Cal.App.4th 1223, 1229.) “Hence, any reasonable doubt as to whether a claim falls
within the arbitration clause is to be resolved in favor of arbitration.” (Id., citing Coast Plaza
Doctors Hospital v. Blue Cross of California (2000) 83 Cal.App.4th 677, 687.)
As the motion to compel arbitration is granted, all further litigation of the FAC’s 1st
cause of action is stayed pending the completion of the arbitration. (CCP §1281.4.) The Court
also hereby exercises its discretion and grants Absolute’s request pursuant to CCP §1281.4 to
stay the remainder of this action pending the completion of arbitration. While the FAC’s 2nd
and 3rd causes of action address a different contract between these same parties (the “Sales
Agreement”), the FAC at 19 expressly alleges that the Sales Agreement may be used to setoff
any claims under the Sales Channel Partner Agreement. Accordingly staying the 2nd and 3rd
causes of action as well until the arbitration is completed will prevent conflicting rulings on the
parties’ contractual relationship by the Court and the arbitrator. (See Cruz v. PacifiCare
Health Systems, Inc. (2003) 30 Cal.4th 303, 320 [A stay of proceedings on claims not subject to
arbitration is appropriate where, in the absence of a stay, the continuation of the proceedings in
the trial court could disrupt the arbitration proceedings and can render them ineffective.])
Absolute’s Demurrer to FAC
In light of the Court’s ruling on the Motion to Compel Arbitration, Absolute’s demurrer
to the FAC and related request for judicial notice is OVERRULED in its entirety as MOOT
pending the resolution of the arbitration.
Plaintiff’s Motion to Enjoin or, in the alternative, Transfer Ventura action
Plaintiff’s request for judicial notice of eight documents (exhibits A-H) in support of
this motion, pursuant to Evid. Code §452(d) is GRANTED. Notice is only taken of the
existence and filing dates of the various court records and not of the truth of their contents.
The Court notes that Plaintiff’s original complaint in this action (Ex. A) was filed November
19, 2015 while Absolute’s complaint in the Ventura County action was not filed until Dec. 11,
2015. The Proof of Service for the operative FAC (Ex. D) was filed Dec. 18, 2015 while the
proof of service for Absolute’s complaint in the Ventura action (Ex. F) was not filed until Jan.
20, 2016.
Plaintiff’s Motion to enjoin or transfer the Ventura County action between these same
parties to this Court pursuant to CCP §403 is DENIED. This is not a situation requiring the
coordination of multiple actions involving common questions of law or fact within the meaning
of CCP §404 and Plaintiff has not established that the Ventura action meets the criteria for
coordination of non-complex actions set forth in CCP §404.1. The Court notes that Absolute
disputes that those criteria apply. In any event all that is necessary to resolve a situation where
there are only two actions arising from the same set of facts involving identical parties yet filed
in different courts is a determination of which Superior Court has exclusive concurrent
jurisdiction.
“‘Under the rule of exclusive concurrent jurisdiction, ‘when two [California] superior
courts have concurrent jurisdiction over the subject matter and all parties involved in litigation,
the first to assume jurisdiction has exclusive and continuing jurisdiction over the subject matter
and all parties involved until such time as all necessarily related matters have been resolved.’
The rule is based upon the public policies of avoiding conflicts that might arise between courts
if they were free to make contradictory decisions or awards relating to the same controversy,
and preventing vexatious litigation and multiplicity of suits.’ Ordinarily, ‘[p]riority of
jurisdiction resides in the tribunal where process is first served.’ . . . ‘Unlike the statutory plea
[in] abatement, the rule of exclusive concurrent jurisdiction does not require absolute identity
of parties, causes of action or remedies sought in the initial and subsequent actions. If the court
exercising original jurisdiction has the power to bring before it all the necessary parties, the
fact that the parties in the second action are not identical does not preclude application of the
rule. Moreover, the remedies sought in the separate actions need not be precisely the same so
long as the court exercising original jurisdiction has the power to litigate all the issues and
grant all the relief to which any of the parties might be entitled under the pleadings.’ . . .
‘Where abatement is required, the second action should be stayed, not dismissed.’” (People ex
rel. Garamendi v. American Autoplan, Inc. (1993) 20 Cal.App.4th 760, 769-771, internal
citations omitted but quoting among others Plant Insulation Co. v. Fibreboard Corp. (1990)
224 Cal.App.3d 781, 786-792. See also Levine v. Smith (2006) 145 Cal.App.4th 1131, 1135;
County of Siskiyou v. Sup. Ct. (2013) 217 Cal.App.4th 83, 89.)
As Plaintiff’s original Complaint in this action was filed on November 19, 2015 and
Absolute failed to even file the proof of service for its original complaint in the Ventura action
until after the proof of service for the FAC in this action was filed, this Court was the first to
assume jurisdiction over the contractual disputes between these parties. Accordingly the
Ventura action should be stayed pending the final outcome of this action after the completion
of arbitration.
This Court has no authority to directly order a stay of proceedings in the Ventura
County Superior Court. Contrary to Plaintiff’s argument there is no “inherent authority to
enjoin sister courts.” (See Notice of Motion at 1:23.) The decision in Franklin & Franklin v.
7-Eleven Owners for Fair Franchising (2000) 85 Cal.App.4th 1168, cited by Plaintiff, does not
support this argument. There, the decision by one trial court (based on very different facts) to
enjoin attorneys who had participated in the action before it from prosecuting an action in a
sister court that would interfere with the first action was upheld by the Court of Appeal. The
decision does not stand for the proposition that one superior court may enjoin another as that is
not what took place. (See Lofton v. Wells Fargo Home Mortgage (2014) 230 Cal.App.4th
1050, discussing Franklin & Franklin among other decisions.)
It does not appear necessary at present for this Court to enjoin counsel for Absolute
from proceeding with the Ventura litigation. The Court does note that, having successfully
argued to this Court that arbitration is required and that Plaintiff’s 2nd and 3rd causes of action
should be stayed pending the outcome of arbitration, it would highly disingenuous for Absolute
to continue to pursue the Ventura action asserting a breach of contract based on the same or
similar purchase orders as Plaintiff’s 2nd and 3rd causes of action here. Should this occur, this
Court would entertain a properly noticed request for an injunction.
The parties should apprise the Ventura Court of this Court’s Order and this Court’s
finding that it has exclusive and continuing jurisdiction based on the filing of the initial
complaint in this action on November 19, 2015. “Since the rule of exclusive concurrent
jurisdiction and the statutory plea in abatement are mandatory and not discretionary judicial
actions, these issues should be raised by demurrer where the issue appears on the face of the
complaint and by answer where factual issues must be resolved.” (People ex rel. Garamendi,
supra, at 771.) “Prior to an appropriate pleading requesting such a stay, the trial court in the
second action properly exercises its jurisdiction.” (Id. at 769.)
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Case Name: Veronica Jonna, et al. v. GBR Palm Valley Podium, LLC, et al.
Case No.:
2014-1-CV-268517
Motion by Defendant Silicon Valley Security & Patrol, Inc. for Summary Judgment or, in
the Alternative, Summary Adjudication
This action arises from an armed robbery at the Village of Marineo apartment
community in San Jose, which is allegedly part of a larger apartment complex owned by
defendant GBR Palm Valley Podium, LLC (“Palm Valley”) and managed by defendant E&S
Ring Management Corporation (“E&S”). (First Amended Complaint (“FAC”), ¶¶ 4, 6.) Palm
Valley and E&S hired defendant Silicon Valley Security & Patrol, Inc. (“SVSP”) in December
2013, to provide security patrol services at the apartment complex. (Id., ¶¶ 6, 29.)
On February 19, 2015, plaintiffs Veronica Jonna (“Veronica”),5 Jeffrey Jonna
(“Jeffrey), and Amanda Jonna (“Amanda”) (collectively “Plaintiffs”) filed the operative FAC
against Palm Valley, E&S, and SVSP, alleging claims for: (1) negligence; (2) negligent
infliction of emotional distress (“NIED”); (3) fraud (brought only by Veronica); and (4)
negligent misrepresentation (brought only by Veronica).6
On December 17, 2015, SVSP filed the instant motion for summary judgment or, in
the alternative, summary adjudication of Plaintiffs’ claims for negligence and NIED, and the
request for punitive damages.7 Plaintiffs filed papers in opposition to the motion on February
16, 2016. SVSP filed a reply on February 25, 2016.
I.
Requests for Judicial Notice
SVSP and Plaintiffs ask the Court to take judicial notice of court records in connection
with the instant motion. Both SVSP’s and Plaintiff’s requests for judicial notice are
GRANTED. (See Evid. Code § 452, subd. (d) [permitting judicial notice of court records].)
5
Due to the multiplicity of parties with the surname Jonna, at times, the parties are referred to by their first names
for clarity. No disrespect is intended. (See Rubenstein v. Rubenstein (2000) 81 Cal.App.4th 1131, 1136, fn. 1.)
6
On March 11, 2015, Veronica filed a dismissal, without prejudice, of the claims for fraud and negligent
misrepresentation.
SVSP’s notice of motion does not state that SVSP seeks summary adjudication of Plaintiffs’ request for punitive
damages; rather, SVSP first indicates that it is seeking summary adjudication of the request for punitive damages
on page 12 of its memorandum of points and authorities. Generally, a motion can only be granted on grounds
specified in the notice of motion. (See Gonzalez v. Super. Ct. (1987) 189 Cal.App.3d 1542, 1545.) Moreover, “[i]f
summary adjudication is sought, whether separately or as an alternative to the motion for summary judgment, the
specific cause of action, affirmative defense, claims for damages, or issues of duty must be stated specifically in
the notice of motion ….” (Cal. Rules of Court, rule 3.1350(b), emphasis added.) Nonetheless, “a trial court may
overlook the failure of a notice of motion to state a ground for relief when the supporting materials discuss and
support that ground for relief so that it is clear that relief is sought on that ground. In that situation, the trial court
may treat the supporting papers as curing the defective notice.” (Luri v. Greenwald (2003) 107 Cal.App.4th 1119,
1125.) Here, the Court will overlook the defective notice of motion. SVSP’s memorandum of points and
authorities and separate statement adequately discuss and support the motion as it pertains to the request for
punitive damages. Moreover, Plaintiffs do not raise any objection based on the defective notice of motion and
their opposition substantively addresses the motion as it pertains to the request for punitive damages.
7
II.
Evidentiary Objections
A.
Plaintiff’s Objections
Plaintiffs submit evidentiary objections to the declaration of Gary Mills, which was
submitted by SVSP in support of its motion.
The Court declines to rule on the objections because Plaintiffs failed to submit a
proposed order for the objections and the objections are not material to the disposition of the
motion. (See Cal. Rules of Court, rule 3.1354(c) [stating that a party submitting written
objections to evidence must submit a proposed order]; see also Vineyard Spring Estates v.
Super. Ct. (2004) 120 Cal.App.4th 633, 642 [trial courts only have duty to rule on evidentiary
objections presented in proper format]; Hodjat v. State Farm Mut. Auto. Ins. Co. (2012) 211
Cal.App.4th 1, 8 [trial court not required to rule on objections that do not comply with Rule of
Court 3.1354 and not required to give objecting party a second chance at filing properly
formatted papers]; Code Civ. Proc., § 437c, subd. (q) [stating that “[i]n granting or denying a
motion for summary judgment or summary adjudication the court need rule only on those
objections to evidence it deems material to its disposition of the motion”].)
B.
SVSP’s Objections
SVSP submits numerous objections to Plaintiff’s evidence.
The Court declines to rule on the objections because SVSP failed to submit a proposed
order for the objections and the objections are not material to the disposition of the motion.
(See Cal. Rules of Court, rule 3.1354(c); see also Vineyard, supra, 120 Cal.App.4th at p. 642;
Hodjat, supra, 211 Cal.App.4th at p. 8; Code Civ. Proc., § 437c, subd. (q).)
III.
Motion for Summary Judgment
The only claims asserted against SVSP are for negligence and NIED. “In order to
establish liability on a negligence theory, a plaintiff must prove duty, breach, causation and
damages.” (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205.) NIED claims are a simply a
species of negligence; thus, the elements necessary to plead a claim for NIED are (1) the
existence of a duty of care owed by the defendant to the plaintiff, (2) a breach of that duty, (3)
causation, and (4) damages. (See Behr v. Redmond (2011) 193 Cal.App.4th 517, 532.)
SVSP argues that it is entitled to summary judgment of the FAC because Plaintiffs
cannot establish the elements of duty and causation, and it cannot be held liable for
nonfeasance. (See SVSP’s Sep. Stmt, pp. 2-7, 10, 12.) As explained below, the issue of
causation is dispositive and, thus, the Court need not reach SVSP’s other arguments.
A.
SVSP’s Initial Burden
SVSP argues, even assuming arguendo that it owed a duty of care to Plaintiffs, any
alleged breach on its part did not cause Plaintiffs injuries. SVSP argues that Plaintiffs cannot
establish causation because they do not have direct knowledge regarding how the assailant
accessed the apartment balcony; no one observed how the assailant gained access to the
balcony; the assailant did not tell Plaintiffs how he gained access to the balcony; Plaintiffs do
not know if the assailant gained access to the balcony via the roof, fire escape, or some other
method of entry; Plaintiffs do not know whether the assailant was not authorized to enter the
building; Plaintiffs do not know whether the assailant was living on the Village Marineo roof
prior to the incident; Plaintiffs do not know the assailant’s identity; and Plaintiffs cannot
confirm with certainty whether the assailant was homeless or a transient prior to the incident.
(See UMF Nos. 1, 17-24.) SVSP argues that, as best, Plaintiffs can show that it was possible
that the assailant accessed the balcony via the roof. SVSP contends Plaintiffs cannot present
any non-speculative facts showing that it was more likely than not the assailant accessed the
balcony via the roof and, consequently, Plaintiffs cannot show that its alleged breaches of duty
caused their harm. In support of its argument, SVSP relies heavily on Leslie G. v. Perry &
Associates (1996) 43 Cal.App.4th 472 (“Leslie G.”).
To demonstrate causation, “the plaintiff must show that the defendant’s act or omission
was a ‘substantial factor’ in bringing about the injury.” (Saelzler v. Advanced Group 400
(2001) 25 Cal.4th 763, 774.) “[T]he actor’s negligent conduct is not a substantial factor in
bringing about harm to another if the harm would have been sustained even if the actor had not
been negligent.” (Viner v. Sweet (2003) 30 Cal.4th 1232, 1240 [italics omitted].)
“[C]ausation also is ordinarily a question of fact which cannot be resolved by summary
judgment. The issue of causation may be decided as a question of law only if, under undisputed
facts, there is no room for a reasonable difference of opinion.” (Nichols v. Keller (1993) 15
Cal.App.4th 1672, 1687; see Lawrence v. La Jolla Beach & Tennis Club, Inc. (2014) 231
Cal.App.4th 11, 32 [causation is generally a question of fact for the jury’s determination].) “If
causation is lacking, the complaint cannot stand.” (Christoff v. Union Pacific Railroad Co.
(2005) 134 Cal.App.4th 118, 126; see Leslie G., supra, 43 Cal.App.4th at pp. 480-481
[appellate court affirmed summary judgment where causation was lacking].)
The case of Leslie G. is particularly instructive on the issue of causation. In Leslie G.,
the plaintiff was raped in the garage of her supposedly secure apartment building. (Leslie G.,
supra, 43 Cal.App.4th at p. 476.) She sued the building’s owners (but not the rapist, who was
never caught), contending the owners were negligent because they failed to repair a broken
security gate and that their negligence caused her rape. (Ibid.) According to the plaintiff, the
gate did not close all the way on the day of the rape. (Id. at p. 478.) Additionally, according to
the police officer who responded to the scene after the rape, the gate was open when the officer
arrived (but she could not say one way or the other whether it was broken). (Ibid.) The
plaintiff’s security expert testified that the apartment was in a high crime area; the gate should
have been maintained at all times; the fact that the assailant attacked the plaintiff in the parking
structure in her vehicle indicated that he knew that either from prior experience or prior time at
this location that he would be undisturbed during that period of time, that there was a very
small chance of being observed by anyone, and that he would have an excellent ability to
escape; the assailant selected this location because of the conditions that he found, i.e., an open
gate providing him access, the isolated and remote nature of the structure, the opportunities to
hide, and escape routes out of the building; and these factors contributed to the assailant’s
selection of this particular building and the attack on the plaintiff. (Id. at pp. 478-479.) The
expert also conceded that he did not know how the rapist gained entry into the garage or
whether he was admitted by a tenant. (Id. at p. 479.)
The landlords filed a motion for summary judgment, contending that, even assuming
duty and breach, their negligence was not the cause of the plaintiff’s rape. (Leslie G., supra, 43
Cal.App.4th at p. 476.) The trial court granted the owners’ motion for summary judgment and
the plaintiff appealed, contending the landlords owed a duty to her and that their negligence
was the cause of her rape. (Ibid.)
The Court of Appeal agreed with the landlords on the causation issue, holding that the
plaintiff’s evidence and the expert’s uncorroborated speculation was insufficient to establish
causation. (Leslie G., supra, 43 Cal.App.4th at p. 476.) The Court stated that when “deciding
whether a plaintiff has met her burden of proof, we consider both direct and circumstantial
evidence, and all reasonable inferences to be drawn from both kinds of evidence, giving full
consideration to the negative and affirmative inferences to be drawn from all of the evidence,
including that which has been produced by the defendant.” (Id. at p. 483.) The court further
stated: “We will not, however, draw inferences from thin air. Where, as here, the plaintiff seeks
to prove an essential element of her case by circumstantial evidence, she cannot recover merely
by showing that the inferences she draws from those circumstances are consistent with her
theory. Instead, she must show that the inferences favorable to her are more reasonable or
probable than those against her.” (Ibid.) Since there was “no direct evidence that the rapist
entered or departed through the broken gate (or even that the broken gate was the only way he
could have entered or departed),” the plaintiff could not survive summary judgment simply
because it was possible that the rapist might have entered through the broken gate. (Ibid.) The
Court of Appeal noted that had the gate been operating properly, the rapist still could have
entered the garage by waiting outside for a car to enter, ducking beneath the closing gate, and
hiding in the garage as he apparently did on the night of the plaintiff’s rape. (Id. at p. 484.)
Furthermore, the expert’s testimony was insufficient to establish causation because it was
based on mere circumstantial evidence and speculation. (Id. at pp. 487-488.)
Leslie G. establishes that while an opposing party will sometimes rely on circumstantial
evidence and/or inferences arising from declarations or other evidence, to defeat summary
judgment such inferences must be reasonable and cannot be based on speculation or surmise.
(Leslie G., supra, 43 Cal.App.4th at p. 487.) Moreover, it establishes that the inference a
plaintiff attempts to rely on must satisfy the “more likely than not” evidentiary standard
plaintiff will bear at trial. (Ibid.)
Here, Plaintiffs do not dispute the following material facts submitted by SVSP: they
allege that that on or about February 26, 2014, they were the victims of an armed robbery at
Village Marineo; on the day of the incident, they did not observe how the assailant gained
access to the unit balcony (UMF No. 17); the assailant did not tell them how he accessed the
balcony (UMF No. 18); they do not know if the assailant gained access to the unit balcony via
the roof, fire escape, or some other method of entry (UMF No. 19); they do not have direct
knowledge regarding how the assailant gained access to the unit balcony (UMF No. 20); they
do not know whether the assailant was living on the roof of Village Marineo prior to the
incident (UMF No. 22); and they do not know the assailant’s identity (though they point out
that the assailant told them he was homeless and there is evidence that the assailant’s entry was
unauthorized) (UMF No. 23).
These undisputed material facts, and the evidence supporting the same, are sufficient to
meet SVSP’s burden to show that Plaintiffs cannot establish that SVSP’s conduct caused their
injuries. The instant case is analogous to Leslie G. because there is no direct evidence that the
assailant accessed the balcony via the unlocked roof access point or the roof. Additionally,
there is no evidence that the roof was the only way the assailant could have reached the
balcony. Plaintiffs admit that they simply do not know if the assailant gained access to the unit
balcony via the roof, fire escape, or some other method of entry. (See UMF No. 19.)
Consequently, SVSP demonstrates that Plaintiffs cannot meet their burden to show that it was
more likely than not that the assailant accessed the balcony via the roof.
The burden now shifts to Plaintiffs to raise a triable issue of material fact.
B.
Plaintiffs’ Burden
In opposition, Plaintiffs argue that SVSP’s UMF are immaterial because “the
undisputed evidence is overwhelmingly clear that the assailant accessed the unit from the
roof.” (See Ps’ Resp. to UMF Nos. 17-19.) In essence, Plaintiffs argue that the evidence shows
it was more likely than not that the assailant accessed the balcony via the roof.
Plaintiffs assert that the evidence establishes the following facts: when they left for
dinner on February 26, 2014, they ensured that the front door to the apartment and the balcony
door were locked; they recall that the front door was still locked when they returned home
from dinner; they also recall that Jeffrey had to unlock the balcony door when they returned to
the apartment; the police report for the incident states that a small access door at the south end
of the hallway was found unlocked and slightly open; the small access door leads to a ladder
that provides rooftop access; at the time of the incident, the roof hatch in the stairwell near the
apartment had a missing padlock and the vent screen over the top of the elevator shaft was
missing; Palm Valley personnel inspected the roof after the incident and found evidence that
individuals were living in the elevator shaft; the supplemental police report states that Palm
Valley knew since December 2013 that transients were found at various on-site locations,
including rooftops; the supplemental police report also stated that the top floor of each
apartment tower had an unlocked roof access door and, once roof access is gained, an
individual could access Veronica’s apartment balcony by walking on tile roofs and onto the
balcony; E&S personnel attempted to confront the transients, but they would run away; and
E&S personnel told the police that transients were found on-site, transients were found on the
rooftop, and transients had broken into a storage room through the rooftop.
Plaintiffs’ evidence, i.e., police reports and deposition testimony, is sufficient to
establish the foregoing facts.
Nonetheless, Plaintiffs’ evidence fails to raise a triable issue of material fact with
respect to causation. At best, these facts demonstrate that it was possible that the assailant
might have accessed the balcony via the unlocked roof hatch and roof. Plaintiffs do not present
any direct evidence establishing that the assailant actually entered the roof through the
unlocked roof access hatch or accessed Veronica’s balcony from the roof. While Plaintiffs
present evidence that the assailant was homeless and transients had previously been found on
the roof, there is no evidence that the assailant was one of the transients who had used or been
on the roof. In addition, Plaintiffs do not present any evidence showing that the roof was the
only way the assailant could have accessed the balcony, or any evidence demonstrating that the
assailant could not have gained access to the unit balcony by some other method, such as a fire
escape. (See UMF No. 19.)
In their papers, Plaintiffs assert that “[t]he police … concluded that the assailant made it
onto Plaintiffs’ balcony from the adjacent roof – because there is simply no other way for the
assailant to access the balcony under these conditions.” (Opp’n., p. 17:2-4.) However, the facts
and evidence cited by Plaintiffs in support of this contention do not show that the police made
any such conclusion. In support of their assertion, Plaintiffs reference their opposing UMF No.
56, which states that “[t]he police report for the subject incident states that a small access door
at the south end of the hallway was found unlocked and slightly opened” and “[t]hat door leads
to a ladder which provides rooftop access.” This fact does not provide or otherwise establish
that police concluded the assailant accessed the balcony via the roof because there was no other
way for the assailant to access the balcony under the circumstances.
Similarly, the evidence cited in support of UMF No. 56 does not show that the police
concluded that the roof was the only way for the assailant to access the balcony. Plaintiffs cite
to a February 26, 2014 police report, which states: “Sgt. Nunes and I located a small access
door at the south end of the hallway a short distance from the victim’s apartment. The door was
not locked and appeared to be slightly open. We exited to the door which led outside onto a
roof access area of the apartment complex. The area held numerous air conditioning units and
there were steel ladders attached to the upper roof area. It appeared that the suspect may have
exited the interior access door [onto] the roof top area. There was another attached steel ladder
in close proximity to the victim’s exterior porch balcony. This appeared to be how the suspect
was able to gain access to the fourth floor balcony which belonged to the victim’s residence.”
(Ps’ Evid., Ex. 28, p. JON00073, emphasis added.) As is readily apparent, the police report
does not state or otherwise contain facts demonstrating that the police concluded that there was
no other way for the assailant to access the balcony other than the roof. Rather, the police
report merely shows that it was possible for the assailant to have done so.
Plaintiffs also cite to a San Jose Police Department “Event Details Report,” stating that
the roof hatch was open and “SUSP PROB MADE ACCESS FROM ROOF HATCH #2
THEN MADE ACCESS TO THE BALCONY.” (Ps’ Evid., Ex. 27, p. 8.) Once again, while
this evidence shows that it was possible for the assailant to access the balcony via the roof, it
does not demonstrate that it was more likely than not that the assailant accessed the balcony via
the roof.
Next, Plaintiffs cite to portions of Veronica’s deposition testimony. Veronica testified
that the police officers showed her that there was a fire escape at the end of the hallway; the
officers “opened it up;” there was no lock or alarm on it; there was a short ladder that led to the
roof; the officers took her out to where the balcony was; the officers had her peer around the
corner; and the officers showed her “how he would have just slid down the roof and stepped
right onto [her] balcony.” (Ps’ Evid., Ex. 24, p. 77:16-25.) As with the other evidence
presented, it shows that the assailant could have accessed the balcony via the roof access point
and the roof, but it does not show that such a scenario was more likely than not or that there
was no other way for the assailant to access the balcony.
Finally, Plaintiffs submit a declaration from their counsel, Paul Jonna (“Counsel”), in
which he declares that: SVSP recently took the depositions of six police officers that arrived at
the scene of the incident; Plaintiffs do not have the deposition transcripts because the last
deposition concluded on February 11, 2016; “[n]one of these depositions undermine Plaintiffs’
causation arguments in any way;” “[i]n fact, officers that were asked confirmed that, in light of
Plaintiffs’ testimony and the evidence they examined, they know of no other way that the
assailant could have accessed Veronica Jonna’s unit other than via the roof.” (Jonna Dec., ¶
33.)
As an initial matter, Counsel’s statement regarding the contents of the officers’
testimony is inadmissible hearsay. (See Evid. Code § 1200 [setting forth the hearsay rule].)
Moreover, it is unclear why Plaintiffs failed to present any deposition testimony whatsoever
from any of the officers. Counsel merely declares that the last deposition ended on February
11, 2016. Plaintiffs’ opposition was not due until February 16, 2016, five days after the last
deposition concluded, and Counsel fails to explain why Plaintiffs were unable to provide the
Court with the relevant portions of the other depositions that concluded some time prior to
February 11, 2016. Furthermore, Plaintiffs have not requested a continuance of the motion in
order to provide the Court with the officers’ testimony. For these reasons, the Court finds that
Counsel’s declaration is insufficient to raise a triable issue of material fact.
Since Plaintiffs failed to raise a triable issue of material fact regarding the issue of
causation, SVSP is entitled to summary judgment of the FAC.
Accordingly, the motion for summary judgment is GRANTED.
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Case Name: Restivo Enterprises, Inc. v. D. Doan, et al.
Case Number: 2013-1-CV-255867
Defendants’ Motion for Attorney’s Fees and Costs
Following the filing by Plaintiff of voluntary dismissals, Defendants bring this motion
for attorney’s fees and costs as prevailing parties, under California Civil Code §3426.4 and
California Code of Civil Procedure §1032.
Civil Code §3426.4 permits a discretionary award of reasonable attorney’s fees to
defendants, if prevailing parties, in an action for misappropriation under the Uniform Trade
Secrets Act – if a claim of misappropriation is made in bad faith.
As both parties accurately discuss, such an award may be made where the Court finds:
1. The claim(s) were objectively specious, unsupported by any evidence; and
2. The claim(s) were pursued in subjective bad faith.
Plaintiff’s Opposition includes a Request for Judicial Notice, which is GRANTED.
Having reviewed and considered all evidence and argument presented, the Court finds
that neither of the required elements for a finding of bad faith and an award of attorney’s fees
has been established. The motion for attorney’s fees under Civil Code §3426.4 is DENIED.
The Court does find that moving defendants are prevailing parties, and are entitled to
statutory costs under CCP §§1032 and 1033.5. The amount of recoverable costs are addressed
under calendar Line 12, Plaintiff’s Motion to Tax Costs.
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Case Name: Restivo Enterprises, Inc. v. D. Doan, et al.
Case Number: 2013-1-CV-255867
Plaintiff’s motion to tax costs.
Having reviewed and considered the moving and opposing papers, and considering the
reduction of claimed costs acknowledged by prevailing parties, the Court rules that Plaintiff’s
motion to tax costs is GRANTED – in part.
Defendants shall recover statutory costs in the total amount of $3,612.15.
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Case Name: Joel Velasquez v. E. Mendez, et al.
Case Number: 2014-1-CV-265670
Defendants’ Motion for Declaratory Relief
First, the Court will address Defendants’ objections to the claimed late filing of
Plaintiff’s Opposition papers. The Court notes that the Opposition appears to have been timely
filed, on February 16, 2016. However, Plaintiff allegedly did not serve his Opposition papers in
compliance with Code of Civil Procedure §1005(c), which requires that “all papers opposing a
motion and all reply papers shall be served by personal delivery, facsimile transmission,
express mail, or other means…reasonably calculated to ensure delivery…not later than the
close of the next business day.”
Both counsel are reminded of the importance of compliance with all statutes and rules
of court. In this instance, as Defendants have filed a substantive reply, and as it appears
Plaintiff’s counsel may have attempted email delivery to Defendants’ counsel (although there
is no written agreement for email service), the Court does not rule on Defendants’ objections.
All papers have been considered by the Court, under CCP §475, and the Court finds no
prejudice to Defendants.
The Motion for Declaratory Relief is GRANTED, in part. The Court finds that the
Shareholder Agreement is valid, binding and enforceable as to all parties. However, disputed
questions of fact remain as to several relevant issues, which precludes the Court from making
factual findings on competing evidence at this time. Specifically, the Court DENIES the
request for declaratory relief as to the valuation date, valuation, and mandatory enforcement of
the offer to purchase.
The Court shall set a future Trial Setting Conference, at the Case Management
Conference at 10 a.m. on March 1 in Department 6.
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Case Name: McManis, et al. v. Boitano
Case Number: 2015-1-CV-284352
Petitioners’ motion for attorney’s fees.
Petitioners bring this motion for attorney’s fees under Business and Professions Code
§6203(c), based upon their Petition to Confirm the Arbitration Award in the dispute between
the parties concerning Plaintiffs’ attorney’s fees.
Petitioners’ Petition was brought before the Court On January 5, 2016. The Court
issued its tentative ruling to grant the Petition, the tentative ruling was not opposed, there was
no appearance by Respondent at the hearing, and the Court adopted its tentative ruling,
granting the Petition. The Court’s Order was filed January 8, 2016.
Business and Professions Code §6203(c) provides, in pertinent part:
“(A) court confirming, correcting, or vacating an award under this section may award to
the prevailing party reasonable fees and costs incurred in obtaining confirmation,
correction, or vacation of the award including, if applicable, fees and costs on appeal.
The party obtaining judgment confirming, correcting, or vacating the award shall be the
prevailing party…”
The Court has reviewed and considered all papers filed, including the Opposition of
Respondent and Petitioners’ Reply. Respondent’s Request for Judicial Notice is DENIED, on a
number of grounds: 1) it is not contained in a separately filed document, as required by Rule of
Court 3.1113(l); 2) it is not clear on what basis judicial notice is requested, as no subsections of
§452 are identified; and 3) it does not appear that the documents presented are subject to
judicial notice. Further, even if admissible and/or the proper subject of judicial notice, the
Court finds that the proffered documents are not relevant to its determination of the issue
presented.
Good cause appearing, Petitioners’ motion for attorney’s fees is GRANTED, as set
forth herein. Petitioners shall recover $2,976 as and for reasonable attorney’s fees incurred in
obtaining confirmation of the Arbitration Award. In so ordering, the Court has deducted all
claimed fees the Court has identified as fees for inter-office conference between and among
counsel for Petitioners, which total $2,520. Petitioners’ request in its Reply memorandum, to
augment attorney’s fees claimed, is DENIED.
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