SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
Department 5, Honorable Carol Overton
J. Paura, Courtroom Clerk
Dianne Collier, Court Reporter
191 North First Street, San Jose, CA 95113
Telephone: 408.882.2150
To contest the ruling, call (408) 808-6856 before 4:00 P.M.
LAW AND MOTION TENTATIVE RULINGS
DATE:
1/13/15
TIME: 9:00 a.m.
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CASE #
113CV249725
114CV265816
112CV222533
112CV236523
113CV258284
CASE TITLE
Shaheen v. Alizadeh
O’Reilly v. Mavi
Pham v. Pham
Shekarchi v. Granucci
Montoya v.
City of Mountain View
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114CV266123
112CV231196
113CV257922
111CV214237
113CV256853
Abdo v. Nationstar
Summerfield v. Western
Belick v. Vandeweghe
Abdelrahim v. Wang
Hinojos v. Asset
RULING
OFF CALENDAR
OFF CALENDAR
See tentative ruling below.
OFF CALENDAR
Defendants City of Mountain View
and Fernando Maldonado’s
(collectively, “Defendants”) demurrer
to Plaintiff Joseph Montoya’s
(“Plaintiff”) Third Amended
Complaint (“TAC”) is unopposed and
SUSTAINED WITHOUT LEAVE
TO AMEND. (Code Civ. Proc.,
§ 430.10, subd. (e).) Defendants’
request for judicial notice is
unopposed and GRANTED. (Evid.
Code, § 452, subd (d).) In light of the
above ruling, Defendants’ motion to
strike portions of the TAC is MOOT.
See tentative ruling below.
See tentative ruling below.
See tentative ruling below.
See tentative ruling below.
Motion to be relieved as counsel
for Asset Ventures LLC and Anthony
Martinez by Attorney Michelle R.
Ghidotti-Gonsalves is unopposed and
GRANTED.
Motion to be relieved as counsel
for Asset Ventures LLC and Anthony
Martinez by Attorney Cathy A.
Knecht is unopposed and
GRANTED.
Demurrer and motion to strike
Third Amended Complaint continued
by Stipulation/Order to 2-17-15 at
9:00 a.m. in Dept. 8.
LINE 11 114CV266569
The Patio Wine v. Lexington
LINE 12 114CV271623
Tshirtguys.com v. Gonzales
Enterprises, dba Fifth Sun
Green Foods v. Kamadhenu
LINE 13 113CV255759
LINE 14 113CV255761
Green Foods v. Peacock
See tentative ruling below re: motions
to transfer/consolidate cases. Parties
to appear for hearing on OSC Re:
Preliminary Injunction. The parties
have presented conflicting
information as to whether plaintiff
The Patio Wine Company, LLC is a
company in good standing. Parties
please be prepared to address this
issue.
See tentative ruling below.
OFF CALENDAR
OFF CALENDAR
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Case Name: Thuy Pham v. Cary Pham, et al.1
Case No.:
1-12-CV-222533
Plaintiff Thuy Pham (“Plaintiff”) brings this action for professional negligence and
related claims against her former attorneys, including defendant Francisco J. Medina (“Medina”),
dba The Law Offices of Francisco J. Medina. On August 5, 2014, the Court granted Plaintiff’s
motion to add Medina as a Doe defendant pursuant to Code of Civil Procedure section 474.
Plaintiff subsequently filed the operative third amended complaint (“TAC”), in which she alleges
that Medina committed professional negligence and fraud and breached his fiduciary duties to
Plaintiff while employed as an associate by her attorney Cary Pham (“Cary”). (TAC, ¶¶ 2, 5.)
Cary, who was originally a defendant in this action, was dismissed following a settlement.
(TAC, ¶ 2.)
At issue is Medina’s demurrer to the first and third through seventh causes of action on
the ground that these claims are barred by the statute of limitations. (Code Civ. Proc., § 430.10,
subd. (e).)
I. Request for Judicial Notice
Plaintiff’s request for judicial notice of prior filings and orders in this action is
GRANTED. (Evid. Code, § 452, subd. (d).) To the extent that the request is granted, however,
the Court takes judicial notice of the existence and content of the subject documents only, and
not of the truth of statements contained therein. (See Sosinsky v. Grant (1992) 6 Cal.App.4th
1548, 1564 [a court may take judicial notice of the existence and content of each document in a
court file, but cannot take judicial notice of the truth of hearsay statements therein].)
II. Third Cause of Action
Medina indicates in his notice of motion that he demurs to the third cause of action.
However, this cause of action is not asserted against Medina, and Medina does not address it in
his memorandum of points and authorities. Accordingly, the demurrer to the third cause of
action is OVERRULED. (See Cal. Rules of Court, rules 3.1112(a) and 3.1113(a)-(b) [motion
must be supported by a memorandum stating, inter alia, “the law, evidence and arguments relied
on”; court “may construe the absence of a memorandum…, in the case of a demurrer, as a waiver
of all grounds not supported”].)
III. First and Fourth Through Seventh Causes of Action
As Medina acknowledges, an amendment to add a Doe defendant pursuant to Code of
Civil Procedure section 474 will “relate back” to the original filing date for statute of limitations
purposes so long as the requirements of that section—including that the plaintiff was genuinely
ignorant of the Doe defendant’s identity at the time the original complaint was filed—are
satisfied. (See Woo v. Super. Ct. (Zarabi) (1999) 75 Cal.App.4th 169, 177.) Medina contends
It is noted that the parties’ captions reflect the case name “Thuy Pham v. Francisco J. Medina,” et al.; however, the
correct case name is set forth above.
1
that the TAC’s allegations demonstrate that Plaintiff should have discovered Medina’s identity
by the time she fired her attorneys on April 15, 2011. (Mot., p. 10.)
However, section 474 “impose[s] no duty of inquiry on plaintiffs who never knew the
defendant’s identity” (Woo v. Super. Ct., supra, 75 Cal.App.4th at p. 180),2 and the allegations of
the TAC do not demonstrate that Plaintiff had actual knowledge of Medina’s identity prior to
filing her complaint. Allegations that Medina, as Cary’s associate, took or failed to take certain
actions that did not necessarily involve direct communications with Plaintiff do not foreclose the
possibility that Plaintiff was unaware that Medina was working on her case, or at least was
unaware of Medina’s identity, until after she fired Cary on April 15, 2011. (See TAC, ¶¶ 18-21,
25, 28-31, 37-38; see also TAC, ¶ 56 [alleging no affirmative misrepresentations by Medina].)
Contrary to Medina’s argument, the TAC does not allege that Plaintiff knew that Medina drove
with Cary to Orange County to review her file or that Medina made affirmative
misrepresentations to her, as opposed to failing to disclose information. Accordingly, Medina’s
statute of limitations argument lacks merit. (See Garrett v. Crown Coach Corp. (1968) 259
Cal.App.2d 647, 650 [demurrer by Doe defendant was improperly sustained on statute of
limitations grounds where there were no allegations demonstrating that plaintiff knew
defendant’s true name; allegation showing that plaintiff had knowledge of defendant’s trade
name did not justify defendant’s dismissal].)
Medina’s demurrer to the first and fourth through seventh causes of action is
consequently OVERRULED.
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The authority cited by Medina in support of the existence of a duty to “review readily available information that
discloses the defendant’s identity” finds such a duty only where the plaintiff had actual knowledge of the
defendant’s identity at one time prior to filing suit, but forgot his or her identity by the time of filing. (See Woo v.
Super. Ct., supra, 75 Cal.App.4th at p. 180.) The TAC’s allegations do not relate to this circumstance.
2
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Case Name: Azzam A. Abdo v. Nationstar Mortgage LLC, et al.
Case No.:
1-14-CV-266123
Currently before the Court are defendant Avo Oughourlian’s (“Avo”) demurrer to and
motion to strike portions of the complaint of plaintiff Azzam A. Abdo (“Plaintiff”).
I. Demurrer to the Complaint
Avo demurs to the first through thirteenth causes of action on the grounds of uncertainty
and failure to state facts sufficient to constitute a cause of action. (See Code Civ. Proc., § 430.10,
subds. (e), (f).)
A. Uncertainty
Avo demurs to each cause of action in the complaint on the ground of uncertainty. In
particular, Avo contends that Plaintiff improperly groups all of the defendants together in each
cause of action.
“A demurrer for uncertainty is strictly construed, even where a [pleading] 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.) Where the complaint
contains substantive factual allegations sufficiently apprising the defendant of the issues he or
she is being asked to meet, a demurrer for uncertainty should be overruled. (See Williams v.
Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139 fn. 2; Lickiss v. Financial Industry
Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135 [demurrer for uncertainty sustained
only where the pleading is so incomprehensible that the opposing party cannot reasonably
respond].)
The grouping of Avo with all other defendants does not render the pleading so
incomprehensible that Avo cannot reasonably respond and any remaining ambiguities can be
clarified in discovery. Accordingly, the demurrer on the ground of uncertainty is OVERRULED.
B. Failure to State Facts Sufficient to Allege First Cause of Action for Fraudulent
Concealment
Avo first contends that Plaintiff fails to plead this cause of action with the requisite
specificity. This argument lacks merit. While a cause of action for fraudulent misrepresentation
must be pleaded with specificity (see West v. JPMorgan Chase Bank, N.A. (2013) 214
Cal.App.4th 780, 793), this rule of specific pleading does not apply to a cause of action for
fraudulent concealment. (See Alfaro v. Community Housing Improvement System & Planning
Association, Inc. (2009) 171 Cal.App.4th 1356, 1384.)
Second, Avo argues that Plaintiff
fails to allege damages based on Avo’s conduct because the complaint does not allege that the
2007 refinance loan had a higher interest rate than his prior loan. This argument lacks merit.
Plaintiff alleges that Avo failed to provide him with the loan documents (Compl., ¶ 60) and, as a
result, Plaintiff became responsible for increased payments and increased interest on the loan.
(Compl., ¶ 58.)
Third, Avo asserts that he owes no duty to disclose any information to Plaintiff because
the complaint does not allege that he hired Avo to act as his mortgage broker. This argument is
not persuasive. While Plaintiff’s complaint is not a model of pleading, he does allege facts
indicating that Avo acted as his real estate broker by generating the uniform residential loan
application on his behalf. (Compl., ¶ 17.)
Finally, Avo claims that Plaintiff’s fraud cause of action is time-barred because it is
premised on conduct occurring at the time of the loan refinance in 2007 and the statute of
limitations for fraud is three years. (See Code Civ. Proc., § 338, subd. (d).) Thus, Avo asserts
that Plaintiff had until 2010 to file his action. In opposition, Plaintiff contends that his action is
timely pursuant to the discovery rule.
Here, Plaintiff alleges that he did not become aware of Avo’s fraudulent conduct until
2012 when he decided to review the terms of the loan. (Compl., ¶ 23.) However, Plaintiff does
not plead any facts showing that he was not negligent in making the discovery prior to 2012.
(See Community Cause v. Boatwright (1981) 124 Cal.App.3d 888, 900 [complaint must allege
that plaintiff not at fault for failing to discover fraud or had no actual or presumptive knowledge
of facts sufficient to put him on inquiry].) Thus, Plaintiff does not allege facts demonstrating that
the discovery rule applies and his fraud cause of action is therefore time-barred. Accordingly, the
demurrer to the first cause of action is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND.
C. Failure to State Facts Sufficient to Allege Second and Third Causes of Action
for Intentional Interference with Prospective Economic Advantage and
Interference with Contractual Relations
Avo argues that Plaintiff fails to allege that Avo’s conduct was designed to interfere with
or disrupt Plaintiff’s contractual relationship with his credit card companies, Bank of America, or
IndyMac. In opposition, Plaintiff asserts that he did make this allegation in paragraph 73 of the
complaint. Plaintiff’s argument lacks merit. Paragraph 73 reads, in pertinent part, as follows: “As
set forth above, Defendants, and each of them, interfered in the operation and efforts of Plaintiff
and the purposes of the relationship with loan servicers, and interfered with the original loan
agreement between Plaintiff and INDYMAC before this fraudulent documentation was created.”
Noticeably absent are any allegations that Avo’s conduct was designed to disrupt Plaintiff’s
contractual relationships with other parties. Thus, the second and third causes of action are
subject to demurrer on this ground alone.
In addition, Avo asserts that these causes of action are time-barred because they are based
on conduct occurring in 2007 and the statute of limitations for intentional interference with
prospective economic advantage and interference with contractual relations is two years. (See
Code Civ. Proc., § 339(1).) In opposition, Plaintiff again relies on the discovery rule. As
discussed more fully above in connection with Plaintiff’s first cause of action, Plaintiff does not
allege facts demonstrating that the discovery rule applies. Thus, Plaintiff’s causes of action for
intentional interference with prospective economic advantage and interference with contractual
relations are time-barred.
In light of the foregoing, the demurrer to the second and third causes of action is
SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND.
D. Failure to State Facts Sufficient to Allege Fourth Cause of Action for
Negligent Misrepresentation
Avo contends that Plaintiff does not allege that Avo ever made an affirmative
misrepresentation to him. In opposition, Plaintiff argues that the complaint alleges that Avo
generated a fraudulent loan application in order to force him into a loan to which he did not
agree. Plaintiff’s argument is not persuasive. According to the complaint, the fraudulent loan
application was submitted to a third party lender, HFL. (Compl., ¶ 14.) Thus, to the extent the
application constitutes an affirmative misrepresentation, the misrepresentation was made to HFL,
not Plaintiff. In addition, Avo asserts that this cause of action is time-barred because it is based
on conduct occurring in 2007 and the statute of limitations for negligent misrepresentation is
three years. (See Code Civ. Proc., § 338, subd. (d); Broberg v. The Guardian Life Ins. Co. of
America (2009) 171 Cal.App.4th 912, 920.) In opposition, Plaintiff again relies on the discovery
rule. As discussed more fully above in connection with Plaintiff’s first cause of action, Plaintiff
does not allege facts demonstrating that the discovery rule applies. Thus, Plaintiff’s cause of
action for negligent misrepresentation is time-barred.
In light of the foregoing, the demurrer to the fourth cause of action is SUSTAINED
WITH 10 DAYS’ LEAVE TO AMEND.
E. Failure to State Facts Sufficient to Allege Fifth Cause of Action for
Breach of the Covenant of Good Faith and Fair Dealing
Avo asserts that this cause of action is time-barred because it is based on conduct
occurring in 2007 and the statute of limitations for the breach of the covenant of good faith and
fair dealing is two years if the underlying contract is oral or four years if the contract is written.
(See Code Civ. Proc., §§ 337(1), 339(1).) In opposition, Plaintiff relies on the discovery rule and
argues that the action was instituted less than two years from the date of discovery in 2012. As
discussed more fully above in connection with Plaintiff’s first cause of action, Plaintiff does not
allege facts demonstrating that the discovery rule applies. Thus, Plaintiff’s cause of action for
breach of the covenant of good faith and fair dealing is time-barred. Accordingly, the demurrer
to the fifth cause of action is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND.
F. Failure to State Facts Sufficient to Allege Seventh Cause of Action for
Defamation
Avo first contends that, as a mortgage broker, it is unclear how he could have incorrectly
reported Plaintiff’s default to credit agencies and the allegations of the complaint are therefore
implausible. This argument lacks merit. For the purposes of ruling on a demurrer, the plaintiff’s
allegations must be accepted as true no matter how unlikely or improbable they are. (See Del E.
Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Here, Plaintiff alleges
that all defendants, including Avo, incorrectly reported that he defaulted on the loan to credit
agencies. (Compl.,
¶ 106.) Thus, absent some inconsistency with documents attached to
the complaint or judicially noticeable facts, these allegations must be taken as true. (See Del,
supra, 123 Cal.App.3d at p. 604.)
Next, Avo asserts that this cause of action is time-barred because it is based on conduct
occurring in 2007 and the statute of limitations for defamation is one year. (See Code Civ. Proc.,
§ 340, subd. (c).) This argument lacks merit. A general demurrer based on the statute of
limitations is only permissible where the dates alleged in the complaint clearly and affirmatively
show that the action is barred. (See Roman v. County of Los Angeles (2000) 85 Cal.App.4th 316,
324-325.) A cause of action for defamation accrues at the time the defamatory statement is
published. (See Shively v. Bozanich (2003) 31 Cal.4th 1230, 1247.) Here, it is not clear from the
face of the complaint when the alleged defamatory statement was published. (Compl., ¶ 106
[“After the herein described fraudulent acts by the Defendants and Defendants’ failure to
respond to Plaintiff’s enquiries, Plaintiff was deemed delinquent on his payments and was
reported to the credit bureau affecting [his] credit scores.”].) Thus, the seventh cause of action is
not subject to demurrer on this basis. As Avo does not otherwise contend that this cause of action
is subject to demurrer, the demurrer to the seventh cause of action is OVERRULED.
G. Failure to State Facts Sufficient to Allege Sixth Cause of Action for
Unfair and Unlawful Business Practices
Avo first argues that this cause of action is subject to demurrer because it is not pleaded
with the requisite specificity. This argument lacks merit. (See Quelimane Co. v. Stewart Title
Guarantee Co. (1998) 19 Cal.4th 26, 46-47 [finding no fact specific pleading required for unfair
competition cause of action].) Next, Avo argues that the cause of action is time-barred because it
is based on conduct occurring in 2007 and the statute of limitations for unfair and unlawful
business practices is four years. (See Bus. & Prof. Code, § 17208.) This argument lacks merit. A
general demurrer based on the statute of limitations is only permissible where the dates alleged
in the complaint clearly and affirmatively show that the action is barred. (See Roman v. County
of Los Angeles (2000) 85 Cal.App.4th 316, 324-325.) As discussed above in connection with
Plaintiff’s seventh cause of action for defamation, it is not clear from the face of the complaint
when some of the allegedly defamatory conduct took place. Given that this conduct could act as
a predicate for a cause of action under the unfair competition law (see Klein v. Chevron U.S.A.,
Inc. (2012) 202 Cal.App.4th 1342, 1383 [quoting Paulus v. Bob Lynch Ford, Inc. (2006) 139
Cal.App.4th 659, 681]), it is likewise unclear from the face of the complaint that Plaintiff’s cause
of action under the unfair competition law is time-barred. Thus, the sixth cause of action is not
subject to demurrer on this basis. As Avo does not otherwise contend that this cause of action is
subject to demurrer, the demurrer to the sixth cause of action is OVERRULED.
H. Failure to State Facts Sufficient to Allege Eighth Cause of Action for
Breach of Fiduciary Duty
Avo, first, argues that he did not owe Plaintiff a duty because Plaintiff alleges that no
refinancing ever took place. This argument lacks merit. Plaintiff alleges facts indicating that his
loan was refinanced in 2007 and Avo acted as his real estate broker by generating the Uniform
Residential Loan Application on his behalf. (Compl., ¶¶ 17, 19.) Next, Avo asserts that this cause
of action is time-barred because it is based on conduct occurring in 2007 and the statute of
limitations for breach of fiduciary duty is either three or four years depending on whether the
breach is fraudulent or nonfraudulent. (See American Master Lease LLC v. Idanta Partners, Ltd.
(2014) 225 Cal.App.4th 1451, 1479.) In opposition, Plaintiff relies on the discovery rule and
argues that the action was instituted less than two years from the date of discovery in 2012. As
discussed more fully above in connection with Plaintiff’s first cause of action, Plaintiff does not
allege facts demonstrating that the discovery rule applies. Thus, Plaintiff’s cause of action for
breach of fiduciary duty is time-barred. Accordingly, the demurrer to the eighth cause of action
is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND.
I. Failure to State Facts Sufficient to Allege Ninth Cause of Action for
Negligent Training
Avo asserts that the allegations in the complaint indicate that he is an employee of NWM,
not an employer. (Compl., ¶ 17.) Thus, he contends that it is unclear how he could be liable for
negligently training an employee. This argument is persuasive. While Plaintiff asserts in his
opposition that many individuals are involved in a refinancing transaction and Avo has a duty to
insure that they are properly trained, there are no allegations to this effect in the complaint. In
addition, Avo asserts that this cause of action is time-barred because it is based on conduct
occurring in 2007 and the statute of limitations for negligence is two years. (See Code Civ. Proc.,
§ 335.1.) In opposition, Plaintiff relies on the discovery rule and argues that the action was
instituted less than two years from the date of discovery in 2012. As discussed more fully above
in connection with Plaintiff’s first cause of action, Plaintiff does not allege facts demonstrating
that the discovery rule applies. Thus, Plaintiff’s cause of action for negligence is time-barred.
In light of the foregoing, the demurrer to the ninth cause of action is SUSTAINED WITH
10 DAYS’ LEAVE TO AMEND.
J. Failure to State Facts Sufficient to Allege Tenth – Twelfth Causes of Action for
Quiet Title, Declaratory Relief and Injunctive Relief
Avo contends that each of these causes of action is premised on the allegation that he
claims an interest in Plaintiff’s property. In his memorandum of points and authority, he
affirmatively states that he has never made a claim on Plaintiff’s property. However, he does not
identify any allegations or judicially noticeable matter in support of this contention. (See Ion
Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881 [“The purpose of a general
demurrer is to determine the sufficiency of the complaint and the court should only rule on
matters disclosed in that pleading.”]; Blank v. Kirwan (1984) 39 Cal.3d 311, 318.) Given that
Avo’s argument is unsupported by any allegations in the complaint or judicially noticeable
matter, these causes of action are not subject to demurrer on this basis.
As Avo does not otherwise contend that these causes of action are subject to demurrer,
the demurrer to the tenth, eleventh, and twelfth causes of action is OVERRULED.
K. Failure to State Facts Sufficient to Allege Thirteenth Cause of Action for
Violation of Privacy
Avo contends that this cause of action is time-barred because it is based on conduct
occurring in 2007 and the statute of limitations is two years. (See Code Civ. Proc., § 335.1; Cain
v. State Farm Mut. Auto. Ins. Co. (1976) 62 Cal.App.3d 310, 313.) In opposition, Plaintiff relies
on the discovery rule and argues that the action was instituted less than two years from the date
of discovery in 2012. As discussed more fully above in connection with Plaintiff’s first cause of
action, Plaintiff does not allege facts demonstrating that the discovery rule applies. Thus,
Plaintiff’s cause of action for violation of privacy is time-barred. Accordingly, the demurrer to
the thirteenth cause of action is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND.
II. Motion to Strike Portions of the Complaint
Avo moves to strike portions of the complaint on the ground that it contains irrelevant,
false, and improper matters. (See Code Civ. Proc., § 436, subd. (a).) In particular, it moves to
strike: (1) the request for attorney’s fees (Prayer, ¶ 6); (2) the request for punitive damages
(Compl., ¶¶ 62, 77, 95, 101, 110, 122, 155, 157); and (3) allegations relating to violations of
federal law (Compl., ¶¶ 2-3).
A. Request for Attorney’s Fees
Avo argues that there is no basis for Plaintiff’s request for attorney’s fees. This argument
is persuasive. A party acting in propria persona is not entitled to attorney’s fees. (See Trope v.
Katz (1995) 11 Cal.4th 274, 280 [“[T]he usual and ordinary meaning of the words ‘attorney’s
fees’ both in legal and general usage, is the consideration that a litigant actually pays or becomes
liable to pay in exchange for legal representation.”].) In opposition, Plaintiff acknowledges that
he does not currently have an attorney, but intends to retain an attorney in the future.
Nevertheless, as it is undisputed that Plaintiff does not have an attorney at the present time, the
motion to strike is GRANTED WITH 10 DAYS’ LEAVE TO AMEND.
B. Punitive Damages
Avo moves to strike allegations regarding punitive damages in Plaintiff’s first cause of
action for fraud (Compl., ¶ 62), third cause of action for interference with contractual relations
(Compl., ¶ 77), fifth cause of action for breach of the covenant of good faith and fair dealing
(Compl., ¶ 95), sixth cause of action for unfair and unlawful business practices (Compl., ¶ 101),
seventh cause of action for defamation (Compl.,
¶ 110), and ninth cause of action for
negligent training (Compl., ¶ 122). Avo also moves to strike Plaintiff’s general request for
punitive damages. (Compl., ¶¶ 155, 157.)
As a threshold matter, the demurrer to the first, third, fifth and ninth causes of action for
fraud, interference with contractual relations, breach of the covenant of good faith and fair
dealing, and negligent training, respectively, is sustained. Accordingly, the motion to strike
paragraphs 62, 77, 95, and 122 is MOOT. Thus, the only paragraphs that remain at issue are
paragraphs 101, 110, 155, and 157.
Avo argues that the request for punitive damages should be stricken because Plaintiff
fails to allege that he committed any malicious, oppressive, or fraudulent conduct. This argument
is persuasive.
First, Plaintiff’s request for punitive damages in connection with his cause of action for
unfair and unlawful business practices (Compl., ¶ 101) is improper because punitive damages are
not available in such an action. (See State Farm Fire & Casualty Co. v. Superior Court (1996)
45 Cal.App.4th 1093, 1110 [punitive damages not recoverable in unfair competition action].)
Second, Plaintiff’s request for punitive damages in connection with his cause of action for
defamation (Compl., ¶ 110) is unsupported. In this cause of action, Plaintiff alleges that all
defendants reported to credit agencies that he was behind on his loan payments even though they
knew or should have known that he was not delinquent on the payments. (Compl., ¶ 106.)
Plaintiff, however, does not allege any facts indicating that Avo intended to vex, injure, or annoy
Plaintiff by reporting this delinquency. (See Flyer’s Body Shop Profit Sharing Plan v. Ticor Title
Ins. Co. (1986) 185 Cal.App.3d 1149, 1154.) The allegations merely indicate that Avo was
mistaken. (Compl., ¶¶ 106-107.) Accordingly, Plaintiff fails to allege facts showing that Avo is
guilty of oppression, fraud or malice with respect to his defamation cause of action. Finally, the
allegations in paragraphs 155 and 157 merely state that the conduct of each defendant was
fraudulent, malicious, and oppressive. Conclusory allegations, devoid of any factual assertions,
are insufficient to support a request for punitive damages. (See Smith v. Superior Court (1992)
10 Cal.App.4th 1033, 1042.) Accordingly, Plaintiff does not allege sufficient facts to support a
request for punitive damages.
In light of the foregoing, Avo’s motion to strike paragraphs 101, 110, 155, and 157 is
GRANTED WITH 10 DAYS’ LEAVE TO AMEND.
C. Allegations Re: Violations of Federal Law
Avo moves to strike the allegations in paragraphs 2 and 3 of the complaint relating to
violations of federal law. He argues that “none of these allegations are followed up on to
determine what exactly it is that Plaintiff is alleging.” (Avo’s Mem. Ps. & As., p. 5:25-26.) In
opposition, Plaintiff contends that the allegations provide background information pertaining to
Avo’s conduct with regard to his loan.
“[W]hen a substantive defect is clear from the face of a complaint, such as a violation of
the applicable statute of limitations or a purported claim of right which is legally invalid, a
defendant may attack that portion of the cause of action by filing a motion to strike.” (PH II, Inc.
v. Superior Court (1995) 33 Cal.App.4th 1680, 1682-1683.) However, a motion to strike is not
intended to be a “line-item veto.” (Id. at
p. 1683.)
Here, Avo seeks to strike allegations which merely provide context for Plaintiff’s other
claims. Thus, the allegations are not irrelevant and the motion to strike paragraphs 2 and 3 on
this basis is unwarranted. Accordingly, the motion to strike these paragraphs is DENIED.
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Calendar Line 7
Case Name: Arthur Summerfield v. Western Athletic Clubs, et al.
Case No.:
1-12-CV-231196
In this action for negligence and premises liability, plaintiff Arthur Summerfield
(“Plaintiff”) alleges that he slipped and fell on wet tile in the whirlpool lounge located on the
premises of defendants Western Athletic Clubs, LLC and Bay Club Silicon Valley (collectively,
the “Bay Club Defendants”),3 sustaining injuries including permanent damage to his T12
vertebra and severe brain trauma. (See Complaint, p. 5.) The premises were in a dangerous and
defective condition in that there were no protective measures to protect guests from slipping (i.e.,
no grip tape or mats). (Id.)
On August 27, 2012, Plaintiff filed this action against the Bay Club Defendants, and on
March 1, 2013, he filed an amendment to his complaint naming defendants Form4 Architecture,
Inc. (“Form4”) and Orlando-Dias Azcuy Design Associates as Doe defendants. On February 5,
2014, Plaintiff filed another amendment to his complaint naming defendant Monument Pools,
Inc. (“Monument”) as a Doe defendant.
Currently at issue are the Bay Club Defendants’ motion for summary judgment and
Form4’s motion for summary judgment or, in the alternative, summary adjudication, which
initially came on for hearing on December 4, 2014. The Court’s tentative ruling was to grant
both motions. The tentative ruling would have found that Monument did not have standing to
oppose Form4’s motion because Monument is not the plaintiff in this action and the motion is
not directed to it. The tentative ruling did not address Monument’s arguments and evidence in
opposition to Form4’s motion. Following the hearing, the Court took the matter under
submission. Considering Monument’s oral argument presented on December 4, the Court issued
an order vacating the submission of the motions and finding that Monument does have standing
to oppose Form4’s motion. The Court’s order directed the parties to appear on January 13, 2014
to address the substantive issues presented in Form4’s motion.
I. The Bay Club Defendants’ Motion
A. Request for Judicial Notice and Objections to Evidence
The Bay Club Defendants’ request for judicial notice is GRANTED. (Evid. Code, § 452,
subds. (a) and (d).) To the extent that the request is granted, however, the Court takes judicial
notice of the existence and content of the complaint and answer only, and not of the truth of
statements contained therein. (See Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564 [a court
may take judicial notice of the existence and content of each document in a court file, but cannot
take judicial notice of the truth of hearsay statements therein].) It is also noted that the Louisiana
court opinion is not binding on this Court.
The objections to evidence submitted with the Bay Club Defendants’ reply brief are
OVERRULED. It is noted that the declaration of Zachary M. Moore submitted in support of
3
Defendant Bay Club Silicon Valley is owned by Bay Club Cupertino, LLC, which is owned by defendant Western
Athletic Clubs, LLC. Western Athletic Clubs, LLC was sued as “Western Athletic Clubs, a business entity form
unknown.”
Plaintiff’s opposition papers does not address the waiver issue that is the basis for the Court’s
ruling below.
B. Waiver
The Bay Club Defendants introduce evidence that Plaintiff signed a waiver upon arriving
at the premises where he was injured. Plaintiff agreed that all use of the facilities “is undertaken
at his/her sole risk” and “the Club is not liable for any injuries or damages to the guest” and “is
not subject to any claim, demand, injury or damages whatsoever, including, without any
limitation, those damages resulting from acts of active or passive negligence on the part of the
Club [or] its owners….” Through the waiver, Plaintiff “expressly release[d] and discharge[d] the
Club [and] its owners … from all such claims, demands, injuries, damages, actions, or causes of
action.” (See Bay Club Defendants’ Separate Statement of Undisputed Material Facts, no. 10.)
“A written release may exculpate a tortfeasor from future negligence or misconduct.”
(Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351, 1356.) It is well-established that
such a release is sufficient where it “constitutes a clear and unequivocal waiver with specific
reference to a defendant’s negligence …. Such an agreement, read as a whole, must clearly
notify the prospective releasor or indemnitor of the effect of signing the agreement.” (Allabach
v. Santa Clara County Fair Ass’n (1996) 46 Cal.App.4th 1007, 1015, quoting Paralift, Inc. v.
Super. Ct. (Levin, et al.) (1993) 23 Cal.App.4th 748, 755.) The release here satisfies these
conditions, and the Bay Club Defendants have consequently met their initial burden to
demonstrate that they owed no duty to Plaintiff in connection with his injury, negating an
element of both the first cause of action for negligence and the second cause of action for
premises liability. (See id., p. 1011 [a release may negate the duty element of a claim for
negligence as a matter of law]; Brooks v. Eugene Burger Management Corp. (1989) 215
Cal.App.3d 1611, 1619 [premises liability is a form of negligence with the same elements as a
claim for negligence]; Benedek v. PLC Santa Monica, supra, 104 Cal.App.4th at 1358 [broadlyworded release encompassed all personal injuries suffered on health club’s premises, including
an accident involving a falling television that was unrelated to fitness activities].)
Plaintiff does not dispute that he signed the release relied upon by the Bay Club
Defendants before he was injured (see Plaintiff’s Separate Statement of Undisputed Material
Facts in Opp. to the Bay Club Defendants’ Mot., no. 10) or that the release is effective against
claims of general negligence. He argues, rather, that liability for gross negligence and violations
of laws such as the Building Code may not be released. (See Civ. Code, § 1668 [“All contracts
which have for their object, directly or indirectly, to exempt anyone from responsibility for …
violation of law, whether willful or negligent, are against the policy of the law.”]; Health Net of
California, Inc. v. Department of Health Services (2003) 113 Cal.App.4th 224, 235 [California
courts have construed Civil Code section 1668 to invalidate contract clauses that relieve a party
from responsibility for future statutory and regulatory violations]; City of Santa Barbara v.
Super. Ct. (Janeway, et al.) (2007) 41 Cal.4th 747, 777 [release of liability for future gross
negligence is generally against public policy].) However, Plaintiff does not allege gross
negligence or Building Code violations in his complaint. (See City of Santa Barbara v. Super.
Ct., supra, 41 Cal.4th at p. 754 [gross negligence is defined as either a “want of even scant care”
or “an extreme departure from the ordinary standard of conduct”]; Complaint, p. 5 [alleging only
that Plaintiff slipped on wet tiles because no protective measures to prevent slipping had been
installed].) Contrary to Plaintiff’s argument, the Bay Club Defendants do not have the burden to
negate unpleaded theories of liability on summary judgment. (See Hutton v. Fidelity National
Title Co. (2013) 213 Cal.App.4th 486, 493 [“the burden of a defendant moving for summary
judgment only requires that he or she negate plaintiff’s theories of liability as alleged in the
complaint”; opposition papers may not create issues outside the pleadings], italics original; cf.
Eriksson v. Nunnink (2011) 191 Cal.App.4th 826, 856 [moving defendant failed to negate
material factual allegations that could rise to the level of gross negligence; a defendant must
address material facts alleged to refute an anticipated defense such as a release].)
At the December 4th hearing on this matter, Plaintiff made an oral request to amend his
complaint to include claims for negligence per se and gross negligence. However, given that he
waited until the hearing to make it, Plaintiff’s request is DENIED. (See Lopez v. Baca (2002) 98
Cal.App.4th 1008, 1019 [where plaintiff neither alleged claims for negligence per se or “willful
misconduct” in the complaint nor requested leave to amend to add these theories before the
hearing on a summary judgment motion, he was precluded from relying on either theory as a
basis for opposing summary judgment].)
In light of the above, the Bay Club Defendants’ motion for summary judgment is
GRANTED.
II. Form4’s Motion
A. Objections to Evidence
The Court issues the following rulings with respect to Monument’s objections to Form4’s
evidence: Objection nos. 1 and 5-14 are OVERRULED. Objection nos. 2-4 are SUSTAINED
for lack of foundation. (See Serri v. Santa Clara University (2014) 226 Cal.App.4th 830, 855
[declaration that certain documents were produced by opposing party during discovery was
inadequate to authenticate those documents].)
Form4’s objections to the declarations of Zachary M. Moore and Paul Swing are
OVERRULED.
B. First Cause of Action for Negligence
1. Waiver
As discussed above with respect to the Bay Club Defendants’ motion, it is undisputed
that Plaintiff signed a waiver prior to his fall, releasing the Bay Club Defendants from liability
for injuries resulting from its negligence. Form4 contends that this waiver, which encompasses
negligent acts by the Bay Club Silicon Valley’s “agents” and includes a release of liability as to
its “agents” (see Form4’s Separate Statement of Undisputed Material Facts (“FUMF”), nos. 3435), bars Plaintiff’s claims against Form4 as a third party beneficiary to the release.
“[T]o obtain summary judgment on the ground that a general release has discharged him
from liability, a third party to the release agreement must affirmatively show that the parties
intended to release him.” (Vahle v. Barwick (2001) 93 Cal.App.4th 1323, 1328-1329 [quoting
Neverkovec v. Fredericks, 74 Cal.App.4th 337, 349.) “The burden of proof is on the third party,
under both contract law and the summary judgment statute.” (Id. at p. 1329.) “Because the court
must consider the circumstances of the contracting parties’ negotiations to determine whether a
third party not named in the release was an intended beneficiary, it will seldom be sufficient for
the third party simply to rely on a literal application of the terms of the release.” (Id.; see also
Neverkovec v. Fredericks, supra, 74 Cal.App.4th at p. 350 [“even an apparently unambiguous
general release is properly interpreted in light of the surrounding circumstances”].)
As urged by Plaintiff, there is no evidence that Form4 acted as the Bay Club Defendants’
agent in dealings with him. (See Civ Code, § 2295 [“An agent is one who represents another,
called the principal, in dealings with third persons.”].) The mere fact that Form4 was hired to
provide architectural services for the Bay Club Defendants does not establish an agency
relationship relative to Plaintiff. Thus, there is no evidence that a release of Form4 is
encompassed by the literal terms of the release. Even if the “agent” language, which is
ambiguous at best, could apply to Form4, Form4 introduces no evidence that it was intended to
do so. Form4’s reliance on the literal language of the release is inadequate to meet its burden on
summary judgment, particularly where neither of the contracting parties had any discernable
motive to release Form4 from liability. (See Vahle v. Barwick, supra, 93 Cal.App.4th at p. 1329
[release of “all other persons” ambiguous under circumstances where a release of the moving
defendant would not be expected].)
Accordingly, Form4 has failed to meet its burden to show that it is a third party
beneficiary to the release.
2. Assumption of the Risk
Form4 also contends that, based upon the waiver he signed and the inherent risk of
slipping in the whirlpool lounge, Plaintiff assumed the risk of his injury. As an initial matter,
Form4’s argument based upon the waiver fails because, as discussed above, Form4 is not a party
to the waiver and has not established that it is a third party beneficiary thereto. (See Westlye v.
Look Sports, Inc. (1993) 17 Cal.App.4th 1715, 1729 [“[t]he doctrine of express assumption of
the risk is founded on express agreement,” and consequently applies only to parties and intended
beneficiaries thereto and is not “good as against the world”].)
Turning to Form4’s second argument, there are two categories of inherent assumption of
the risk: “primary” and “secondary” assumption of the risk. (Morgan v. Fuji Country USA, Inc.
(1995) 34 Cal.App.4th 127, 132.) Form4 does not address these categories in its moving papers.
While primary assumption of the risk acts as a complete bar to the plaintiff’s cause of action,
secondary assumption of the risk is subsumed into the comparative fault scheme, and does not
act as a bar to the plaintiff’s action. (Id.) Accordingly, it is inappropriate to grant summary
judgment based on secondary assumption of the risk, and Form4 must establish that the primary
assumption of the risk doctrine applies to obtain summary judgment. (See Galardi v. Seahorse
Riding Club (1993) 16 Cal.App.4th 817, 824.)
The primary assumption of the risk doctrine applies to “recreational activities ‘involving
an inherent risk of injury to voluntary participants … where the risk cannot be eliminated
without altering the fundamental nature of the activity.’ [Citation.]” (Nalwa v. Cedar Fair, L.P.
(2012) 55 Cal.4th 1148, 1156 [doctrine applies to riding bumper cars].) Form4 offers no
evidence on this point, and the Court finds that the doctrine does not apply to the use of the
whirlpool lounge, since such an activity is not inherently risky. (See Shannon v. Rhodes (2001)
92 Cal.App.4th 792, 794 [“the doctrine of primary assumption of risk does not apply to bar the
negligence claim of a passenger in a boat simply being used to ride around on a lake”]; see also
Bush v. Parents Without Partners (1993) 17 Cal.App.4th 322, 328 [recreational dancing is not a
dangerous activity subject to the primary assumption of the risk doctrine].)
Regardless, even where an activity is of a nature that triggers the primary assumption of
the risk doctrine, the Court must consider Form4’s role in the activity alleged here. (Saffro v.
Elite Racing, Inc. (2002) 98 Cal.App.4th 173, 178-179 [in evaluating whether a case comes
within the doctrine of primary assumption of the risk, a court must examine both the nature of
the activity and the defendant’s role in, or relationship to, the activity].) Cases where the
defendant owed a duty of care regarding the design and maintenance of premises used in a risky
activity are generally found to be secondary rather than primary assumption of risk cases. (See
Morgan v. Fuji Country USA, Inc. (1995) 34 Cal.App.4th 127, 134.) While the primary
assumption of the risk doctrine protects the owners, operators, and designers of premises to a
degree, it applies only to the extent that the risk at issue is inherent in the activity. As one court
explained, “jumps, and falls, are inherent to the sport [of BMX biking], and under the doctrine of
primary assumption of risk, there is no duty to eliminate the jumps entirely, and no duty to
protect from injury arising from reasonably designed jumps. However, the sport does not
inherently require jumps which are designed in such a way as to create an extreme risk of
injury.” (Branco v. Kearny Moto Park, Inc. (1995) 37 Cal.App.4th 184, 193.) Accordingly, a
case premised on the duty not to utilize dangerously designed jumps “falls under the secondary
assumption of risk category, and issues pertaining to [the plaintiff’s] comparative fault are for the
trier of fact to decide.” (Id.)
Here, Plaintiff alleges that he slipped because there were no protective measures (i.e., no
grip tape or mats) installed in the whirlpool lounge. (See Complaint, p. 5.) Thus, even if
Plaintiff’s use of the whirlpool lounge involved an inherent risk of injury, his case is premised on
the defendants’ duties not to design, install, and maintain a whirlpool lounge in a fashion that
creates an unnecessary risk of slipping. Consequently, Form4, which again offers no evidence
on this point, does not meet its burden to demonstrate that primary assumption of the risk bars
Plaintiff’s negligence claim. (See Zipusch v. LA Workout, Inc. (2007) 155 Cal.App.4th 1281,
1292 [health club patron did not assume the risk of injury when her foot became stuck to a sticky
substance on a treadmill; “Generally, defective or unnecessarily dangerous equipment is not
considered an inherent risk of a sport.”]; Capri v. L.A. Fitness International, LLC (2006) 136
Cal.App.4th 1078, 1088 [“the risk of algae growing on the pool deck causing it to become
dangerously slippery is not inherent in the sport itself, and thus is not a risk assumed by those
who utilize the swimming pool so as to relieve the pool owner of the duty to keep the deck
clean”]; Bush v. Parents Without Partners, supra, 17 Cal.App.4th at p. 330 [“Whatever fault may
be attached to plaintiff for dancing on the slippery floor, that fault does not operate as a complete
bar to her recovery.”]; but see Leon v. Family Fitness Ctr. (#107) (1998) 61 Cal.App.4th 1227,
1234 [holding that plaintiff did not assume the risk of a sauna bench collapsing under him by
virtue of waiving risks known to relate to the use of health club facilities; noting, however, that
“slipping in the locker-room shower” would be a known risk assumed by plaintiff].)
3. Form4’s Involvement in the Design and Construction of the Area Where
Plaintiff Fell
Form4 contends that it owed no duty to Plaintiff in connection with his fall for the
additional reason that it was not involved in the design or construction of the area where he fell:
the stairs leading away from the whirlpool. (See FUMF, nos. 38-42 [Plaintiff fell on the tiled
steps leading away from the whirlpool].)
Form4 introduces evidence that the project’s general contractor, San Jose Construction
Co. Inc., retained Monument to design and construct the whirlpool, deck, and stairs, and Form4
was not involved in these tasks. (FUMF, no. 17; Decl. of Ho-Man Wong ISO Mot., ¶¶ 11-14
[Monument provided several drawings for the men’s spa area including designs for the
whirlpool, deck, and stairs; Form4 did not design these areas and neither prepared nor was asked
to review or opine on the designs provided by Monument].)4 In addition, designer Orlando DiazAzcuy worked with Western Athletic Clubs, LLC to determine that an elevated whirlpool with
stairs around it would be installed in the men’s spa and to select the tile finishes that were
ultimately used. (FUMF, nos. 13, 16.) This evidence is adequate to meet Form4’s initial burden
to demonstrate that it was not responsible for the design or construction of the whirlpool stairs
where Plaintiff fell.
In opposition, Plaintiff admits that Form4 was not involved in designing and constructing
the area where he fell (see Plaintiff’s Separate Statement of Undisputed Material Facts in Opp. to
Form4’s Mot. (“PUMF”), nos. 13, 16, 17, 25-28, 38-42), and merely argues that “it is enough to
observe here that Form4 has failed to address any of the laws and regulations that it undertook to
review.” Plaintiff cites no evidence in support of his vague argument that Form4 had a duty to
review certain laws and regulations, and consequently does not establish that Form4 had any
duty to ensure that the stairs where he fell conformed to statutory and regulatory requirements.
In fact, it is undisputed by Plaintiff that Form4 agreed to “review laws, codes, and regulations
applicable to [Form4’s own] services” (PUMF, no. 7), and that Form4 did not provide any
services with respect to the whirlpool area (PUMF, nos. 13, 16, 17, 25-28). Finally, Beacon
Residential Community Assn. v. Skidmore, Owings & Merrill LLP (2014) 59 Cal.4th 568, cited
by Plaintiff for the proposition that architects are liable to third parties for their work, is
distinguishable given that the architect in that case was responsible for the design of the windows
and ventilation system at issue. Plaintiff has thus failed to raise a triable issue of material fact as
to whether Form4 owed him a duty connected to the design or construction of the whirlpool
stairs.
However, Monument also opposes Form4’s motion to the extent it depends upon
Form4’s argument that Monument designed the deck area surrounding the spa and the stairs
where Plaintiff fell. In support of its opposition, Monument submits the declaration of its
President and CEO, Paul Swing, who states that Monument’s scope of work did not include the
design or construction of the decking surrounding the spa tub or the stairs leading to and from
the decking. (Decl. of Paul Swing ISO Monument’s Opp., ¶¶ 1, 3.) Mr. Swing declares that
Form4 created the design drawings for the whirlpool lounge, including the design for the decking
and stairs. (Id., ¶ 3.) He states that Monument used Form4’s design drawings to create its
drawings for the spa tubs, and did not itself undertake any work to create design drawings for the
decking or stairs or to construct these areas. (Id., ¶¶ 3-4.) Mr. Swing’s declaration contradicts
Form4’s evidence that it was not responsible for the design of the area where Plaintiff fell, and
raises a triable issue of material fact regarding this issue.
Form4 criticizes Mr. Swing’s declaration on various grounds. It argues that the design
documents it includes with its motion contradict Mr. Swing’s testimony that Monument was not
Monument argues that Ms. Wong lacks personal knowledge to provide a declaration concerning Monument’s
involvement with the design of the spa; however, Ms. Wong’s declaration establishes her personal knowledge on
this subject. (See Wong Decl., ¶ 11 [Chris Johnston of Monument submitted design drawings regarding the
whirlpool, deck, and stairs to Ms. Wong directly].)
4
responsible for the design of the stairs, and that Monument does not submit documentation to
support Mr. Swing’s declaration. These arguments, however, go to the relative weight of the
parties’ evidence, and do not establish that Form4 is entitled to summary adjudication.
(Melorich Builders v. Super. Ct. (Serabia, et al.) (1984) 160 Cal.App.3d 931, 935 [the court
does not weigh evidence on summary judgment].) In addition, Form4 argues that Mr. Swing
does not clearly state that Form4 designed the area at issue. However, his statement that Form4
created the design drawings for the deck and stairs is adequate to create a triable issue of fact on
this point. (See Hepp v. Lockheed-California Co. (1978) 86 Cal.App.3d 714, 717 [opposing
party’s declaration must be liberally construed on summary judgment].)
Consequently, the Court will not grant Form4’s motion on the basis of its argument that it
was not involved in the design of the area where Plaintiff fell.
4. Breach and Causation
Form4 contends that the tiles selected for the spa flooring were appropriate and within the
standard of care, because their static coefficient of friction (associated with the “slipperiness” of
the tiles) exceeded the industry standard for “commercial floors.” (FUMF, nos. 18-21.) Form4’s
evidence, however, does not address whether the tiles were appropriate for use in a spa
specifically or whether other aspects of the design of the stairs where Plaintiff fell were within
the standard of care. Accordingly, Form4 does not meet its initial burden to show that there was
no breach of the standard of care.
Finally, Form4 contends that Plaintiff cannot establish the cause of his fall, because he
testified that he did not remember the details of how he descended the stairs or how he fell on
them (although he believed that his foot or feet slipped forward) and because his son, who was
present at the time, did not actually see Plaintiff fall. (FUMF, nos. 43-48.) However, the fact
that Plaintiff fell on the stairs for no apparent reason is itself some evidence that the design or
construction of the stairs caused his fall. Further, the asserted facts that neither Plaintiff nor his
son can be sure of the cause of Plaintiff’s fall do not establish that Plaintiff is unable to prove
causation using other evidence. Thus, Form4 does not meet its burden to demonstrate that
summary judgment is proper on the ground that Plaintiff cannot establish an element of his
claim. (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 855 [to obtain summary
judgment on this ground, a defendant must provide “evidence that the plaintiff does not possess,
and cannot reasonably obtain, needed evidence” from any source, such as “admissions by the
plaintiff following extensive discovery to the effect that he has discovered nothing”].)
In light of the above, each of Form4’s arguments in support of its motion as to the first
cause of action fails. Form4’s motions for summary judgment and for summary adjudication of
the first cause of action are accordingly DENIED.
C. Second Cause of Action for Premises Liability
Finally, Form4 moves for summary adjudication of the second cause of action for
premises liability on the ground that it has never owned, operated, or controlled the premises at
issue, and consequently owed Plaintiff no duties in connection with those functions. (FUMF, no.
11). Form4 meets its initial burden on this issue, and Plaintiff does not dispute Form4’s evidence
or oppose Form4’s request for summary adjudication of the second cause of action. Monument’s
opposition does not appear to address this cause of action.
Consequently, Form4’s motion for summary adjudication of the second cause of action is
GRANTED.
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Case Name: Joseph Belick v. Gary Vandeweghe, et al.
Case No.:
1-13-CV-257992
Plaintiff Joseph Belick (“Plaintiff”) is a developmentally disabled adult who brings this
action by his guardian ad litem, David Hollister, against his deceased father’s former attorney,
defendant Gary Vandeweghe (“Defendant”). (First Amended Complaint (“FAC”), ¶¶ 1, 5-9.)
Currently at issue is Defendant’s motion for summary judgment.
As an initial matter, Defendant’s request for judicial notice is GRANTED. (Evid. Code,
§ 452, subd. (d).) To the extent that the request is granted, however, the Court
takes judicial notice of the existence and content of the subject petition only, and not of the truth
of statements contained therein. (See Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1564 [a
court may take judicial notice of the existence and content of each document in a court file, but
cannot take judicial notice of the truth of hearsay statements therein].)
In the estate planning context, courts have held that an attorney has a duty to ensure that a
will or trust is drafted so that its express beneficiaries actually receive their intended benefits as
stated on the face of the document, accounting for laws and circumstances that might impact the
document’s interpretation or validity. (Chang v. Lederman (2009) 172 Cal.App.4th 67, 76-82
(hereinafter, “Chang”) [summarizing cases].) “Conversely, when the claim … is that a will or
trust, although properly executed and free of other legal defects, did not accurately express the
testator’s intent, no duty or liability to the nonclient potential beneficiary has been recognized.”
(Id. at p. 82.) “That is, where there is a question about whether the third party beneficiary was,
in fact, the decedent’s intended beneficiary—where intent is placed in issue—the lawyer will not
be held accountable to the potential beneficiary.” (Id.) This is because it would unduly burden
the legal profession to allow “any disappointed potential beneficiary”—whether “a total stranger
to the testator” or a beneficiary in a previous will—to proceed with litigation against a
decedent’s attorney merely on the strength of allegations regarding the decedent’s intent, which
would be difficult to prove and would almost always be an issue of fact. (Id. at pp. 83-86.)
As urged by Defendant, Plaintiff’s claim runs afoul of this rule that “to hold an attorney
owed a duty of care not only to his or her testator client but also to an intended beneficiary, the
testator’s intent must be ‘expressed and formalized in [a] signed will.’” (Chang, supra, 172
Cal.App.4th at p. 81, quoting Osornio v. Weingarten (2004) 124 Cal.App.4th 304, 336.) In
Chang, the rule was applied to bar a plaintiff’s claim even where, as here, the plaintiff was
named as a beneficiary in an earlier version of the document at issue. (See id. at p.84.) Plaintiff
argues that his case is distinguishable from Chang because here, Defendant’s own notes from a
conversation with David reflect David’s intent to eliminate Plaintiff’s special needs trust only
because of perceived risks with that vehicle, and to provide the Trust’s assets to Daniel “so that
Daniel could look after his brother.” (Opp., pp. 4, 8-11.) However, Plaintiff provides no legal
authority supporting the proposition that Defendant’s notes are equivalent to the “signed will”
expressly required by the case law. Reliance upon this type of evidence would raise the same
concerns that prompted the courts to adopt the signed will requirement in the first place. (See
Radovich v. Locke-Paddon (1995) 35 Cal.App.4th 946, 964 [attorney owed no duty of care to
potential beneficiary named in unexecuted will; “common experience teaches that potential
testators may change their minds” regarding how to structure their estates].)
In light of the above, Defendant has established that he did not owe a duty to Plaintiff in
connection with the Trust, and Plaintiff has failed to raise any triable issue of material fact on
this point. Defendant’s motion is thus GRANTED.
Defendant’s objections to evidence, submitted with his reply brief, are OVERRULED.
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Case Name: Ezzeldin Abdelrahim and Nagwa Mow v. Jen Te Wang
Case Number: 1-11-CV-214237
Plaintiffs Ezzeldin Abdelrahim and Nagwa Mow’s (“Plaintiffs”) bring this “Motion For
An Order Deeming Plaintiffs The Prevailing Party And To Fix Amount Of Attorney’s Fees
Awardable As An Item Of Costs.” As a preliminary matter, Plaintiffs have failed to submit any
evidence in support of their request for attorneys’ fees.5 Moreover, defendant Jen Te Wang
(“Defendant”) argues persuasively that Plaintiffs’ motion is not timely. Plaintiffs did not file a
reply brief; therefore they present no counter-argument on this point. In light of the untimeliness
of Plaintiffs’ motion and the complete lack of evidentiary support, the motion is DENIED.
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5
No attorney declaration or documentary evidence was submitted in support of the motion.
Calendar line 10
Case Name:
Case Number:
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Calendar line 11
Case Name:
The Patio Wine Company, LLC and Robert Dahl v. Lexington Street
Investments, LLC and Emad Tawfilis
Case Number:
1-14-CV-266569
Plaintiffs The Patio Wine Company, LLC and Robert Dahl’s (“Dahl”) (collectively,
“Plaintiffs”) motion to transfer venue and consolidate cases in the Santa Clara County Superior
Court is GRANTED.
Defendant Lexington Street Investments, LLC (“Lexington”) and Emad Tawfilis’s
(collectively, “Defendants”) motion to transfer case to Napa County Superior Court is DENIED.6
On June 13, 2014, Plaintiffs filed this action in the Santa Clara County Superior Court
alleging that certain loans made by Defendants to Plaintiffs were usurious. Rather than filing a
cross-complaint in this action, Lexington instead filed a Complaint in Napa County Superior
Court against Dahl, Napa Point Winery, and Napa Point Brewery. The Napa County Complaint
was filed on August 25, 2014, after the Santa Clara County Complaint had been served. Both
cases involve the same underlying loan transactions and principal capital. (See Exhibits 1 and 2
to Plaintiffs’ Mot. to Transfer and Consol. Cases.)
Plaintiffs have met the foundational requirements for transfer and consolidation of the
cases in the Santa Clara County Superior Court. Additionally, the Court finds that the evidence
submitted by Plaintiff in support of their motion establish that: (1) the cases at issue are not
complex, (2) the cases share common issues of fact and law with regard to the predominant
respective claims, and (3) transfer and consolidation of the cases will promote the ends of justice
with reference to the convenience of the parties/witnesses/counsel, efficient use of judicial
facilities and resources, avoidance of duplicative or inconsistent rulings/orders/judgments, and
other factors relevant to the coordination of cases.7 (See Code Civ. Proc., § 404.1.)
Accordingly, the case of Lexington Street Investments v. Robert Dahl, Napa County Superior
Court case number 2664849 shall be transferred to the Santa Clara County Superior Court and
consolidated with this action, case number 1-14-CV-266569.
Plaintiffs are shall comply with the requirements of California Rules of Court, rule
3.500(e) and (f) with regard to the transfer order herein.
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The Court notes that Defendants did not file a reply brief addressing the issues raised in Plaintiffs’ opposition
papers.
7
Defendants do not specifically address these factors in their opposition papers; rather, their primary argument is
that some pre-trial proceedings have already taken place in the Napa County Superior Court. The Court does not
find this argument to be compelling in terms of the appropriateness of transfer and consolidation of the cases.
6
Calendar line 12
Case Name:
Case Number:
TShirtguys.com v. Gonzales Enterprises, dba Fifth Sun
1-14-CV-271623
Defendant Gonzales Enterprises, dba Fifth Sun, a California Corporation (“Defendant”),
makes this Application for Order to Substitute Defendant’s Undertaking for Property and to
Increase Plaintiff’s Undertaking. (Code Civ. Proc., § 489.310.)
As a preliminary matter, Defendant has now withdrawn its application regarding plaintiff
TShirt Guys.com’s (“Plaintiff”) filing of an undertaking due to Plaintiff’s recent posting of a
bond. Therefore, Defendant’s application for increased undertaking is MOOT. Defendant’s
application to substitute its undertaking for property is GRANTED. Accordingly, Defendant
shall within 10 calendar days of this order deposit an undertaking in the sum of $138,005.21—
reflecting the full amount of the right to attach order.
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