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LAW & MOTION CALENDAR
Wednesday, August 12, 2020, 3:00 p.m.
Courtroom 16 – Hon. Patrick M. Broderick
3035 Cleveland Avenue, Suite 200, Santa Rosa
In accordance with the Addendum to First Amended Omnibus Order of the Presiding Judge issued May 27, 2020, only those persons with court hearings in criminal actions shall enter a Sonoma County Superior Court facility. Until further notice, all matters set for hearing in this courtroom shall be heard remotely through Zoom. No party or representative of a party may appear personally in Courtroom 16. CourtCall is not permitted for this calendar.
TO JOIN “ZOOM” ONLINE,
D16 – Law & Motion 3:00 p.m. Wednesday
Meeting ID: 823-4594-8141
TO JOIN “ZOOM” BY PHONE,
By Phone (same meeting ID and password as listed for each calendar):
+1 669 900 6833 US (San Jose)
The following tentative rulings will become the ruling of the Court unless a party desires to be heard. If you desire to appear and present oral argument as to any motion, YOU MUST notify the Court by telephone at (707) 521-6729, and all other opposing parties of your intent to appear by 4:00 p.m. today, Tuesday, August 11, 2020. Parties in motions for claims of exemption are exempt from this requirement.
PLEASE NOTE: The Court WILL provide a court reporter for this calendar. If there are any concerns, please contact the Court at the number provided above.
1. MCV-250580, Broadhead v. Babow
Demurrer of Defendants to Plaintiffs’ Third Cause of Action Within Plaintiffs’ First Amended Complaint OVERRULED. Defendants are required to answer within 10 days of service of the notice of entry of the order. California Rules of Court, rule 3.1320(g).
Defendants demur to the third cause of action, promissory fraud, in Plaintiffs’ First Amended Complaint (“FAC”), on the ground that it fails to state facts sufficient to constitute a cause of action. They argue that “there are no facts as statements of misrepresentation,” the allegations do not state who made the misrepresentation but claims that the contract itself is a fraud and “[t]his fails because its there [sic] was going to be no intention of the terms, the landlords would not have returned any funds form [sic] the deposits, as the plaintiffs admit did occur,” no facts show that Defendants “did not intend the terms they agreed to [sic],” and Plaintiffs show that “plaintiff performed and returned over half the deposit and accepted the funds instead of suing for rescission, there can not be half a fraud claim.”
Plaintiffs oppose the demurrer, arguing that Defendants’ declaration is largely improper and that they have pleaded every element of the cause of action.
In their FAC, Plaintiffs complain that Defendants, who own real property at 3997 Magnolia Avenue, Petaluma (“the Property”), leased the Property to Plaintiffs via written one-year lease agreement (“the Lease”) for which Plaintiffs paid a security deposit (“the Deposit”); the parties agreed to extend the Lease by 45 days; when Plaintiffs were finally leaving at the end of the Lease, Defendants initially refused to return Deposit or provide an itemized list of repairs which the Deposit was needed to remedy; Defendants ultimately returned part of the Deposit but kept more than half, in breach of the Lease term because Defendants improperly made deductions not “permitted by law.”
A demurrer can only challenge a defect appearing on the face of the complaint, exhibits thereto, and judicially noticeable matters. Code of Civil Procedure section 430.30; Blank v. Kirwan (1985) 39 Cal.3d 311, 318. The grounds for a demurrer are set forth in Code of Civil Procedure section 430.10. One of the grounds, in subdivision (e), is the general demurrer that the pleading fails to state facts sufficient to constitute a cause of action.
Demurrer for failure to state facts sufficient to constitute a cause of action is a general demurrer, which must fail if there is any valid cause of action. Code of Civil Procedure section 430.10(e); Quelimane Co., Inc. v. Steward Title Guar. Co. (1998) 19 Cal.4th 26, 38; Fox v. JAMDAT Mobile, Inc. (2010) 185 Cal.App.4th 1068, 1078 (“as long as a complaint consisting of a single cause of action contains any well-pleaded cause of action, a demurrer must be overruled even if a deficiently pleaded claim is lurking in that cause of action as well”).
Timeliness of Opposition
Defendants argue that the opposition was late. However, this is immaterial since the opposition has no ultimate impact on the outcome of this demurrer and the Court’s ruling would be the same regardless of the opposition. This is, after all, a demurrer, not a motion based on evidentiary showing, and the Court must base the decision on the pleadings as a matter of law. The Court cannot ignore the law, opposition or no, and is able to, and must, consider the sufficiency of the pleadings under the law regardless of opposition.
In their opposition, Plaintiffs argue that much of the Gygax declaration, accompanying the demurrer, is improper. This is simply a declaration regarding meet-and-confer efforts and the history of the case. Although it does include some argument, there is nothing improper about the declaration as providing context and delineating the meet-and-confer efforts. That said, Plaintiffs are correct that a demurrer may rest only on the content of the pleadings being attacked, the FAC in this instance, and any judicially noticeable matters. The court may not rely on extrinsic evidence in a declaration with respect to the substance of a demurrer. The declaration therefore has no ultimate impact on the outcome of this demurrer.
Authority Regarding Fraud
According to Civil Code section 1709, one who willfully deceives another with intent to induce him or her to alter position to his or her detriment is liable for any damage resulting. Civil Code section 1710 defines 4 types of deceit within the meaning of Code of Civil Procedure section 1709. These are a false factual “suggestion ... by one who does not believe it to be true”; a false factual “assertion ... by one who has no reasonable ground for believing it to be true”; concealment, or the “suppression of a fact, by one who is bound to disclose it, or who gives information of other facts which are likely to mislead for want of communication of that fact”; and a “promise, made without any intention of performing it.”
The elements of fraud are 1) misrepresentation, concealment, or false promise; 2) of a material fact; 3) knowledge of falsity or scienter; 4) intent to defraud, or induce reliance; 5) justifiable reliance; and 6) damage. Seeger v. Odell (1941) 18 Cal.2d 409, 414; 5 Witkin, Summary of Cal. Law (9th Ed.1988) Torts, section 676; California Causes of Action, section.V.1:20; see also Civil Code section 1709. This claim requires that the parties actually rely on the misrepresentation. See, Conrad v. Bank of America (1996) 45 Cal.App.4th 133, 157; Richard P. v. Vista Del Mar Child Care Serv. (1980) 106 Cal.App.3d 860.
Courts have long held that Plaintiffs must plead fraud with particularity. See, 5 Witkin, Cal. Proc. (5th Ed. 2008), Pleading, section 711; 5 Witkin, Cal. Proc. (4th Ed.1996) Pleading, section 669. Plaintiffs thus must allege not simply the legal conclusion of “fraud,” but the facts constituting it and they must plead every element factually and specifically. See, Scafidi v. Western Loan & Bldg. Co. (1946) 72 Cal.App.2d 550, 558; Woodson v. Winchester (1911) 16 Cal.App.472, 473.
However, both Witkin and a number of decisions indicate that courts still owe a duty to construe the pleadings liberally and not be too strict or technical in applying the requirement of pleading fraud with particularity. 5 Witkin, Cal. Proc. (5th Ed. 2008, March 2020 Update), Pleading, section 714; see also, Wilson v. Houston Funeral Home (1996) 42 Cal.App.4th 1124, 1139; Nevin v. Gary (1909) 12 Cal.App.1, 5 (court upheld inferential pleading of element of causation, that the fraud induced the action). In general as with showing fraud, oppression, or malice sufficient to support punitive damages, while Plaintiffs must plead facts, with respect to intent and the like, a “general allegation of intent is sufficient.” Unruh v. Truck Insurance Exchange (1972) 7 Cal.3d 616, 632.
As stated in 5 Witkin, Cal. Proc. (5th Ed.2008) Pleading § 721, “[t]he allegation of a promise, which implies an intention to perform, is equivalent to the ordinary allegation of a representation of fact. Thus, a false promise is actionable on the theory that misrepresentation of a state of mind (the intention to perform) is a misrepresentation of fact. Little difficulty is encountered in connection with this element.” The court in Cicone v. URS Corp. (1986) 183 Cal.App.3d 194, at 203, explained
A statement of what the defendant or some third person intends to do relates to an existing state of mind, and is a representation of fact. [Citation.] Thus, a promise made without any intention to perform it may constitute fraud. In other words, a promise to do something necessarily implies the intention to perform, and where such intention is absent, there is a misrepresentation of fact, which is actionable fraud.
Scienter, knowledge and lack of intent to fulfill the promise may be pleaded in a general, conclusory manner because a plaintiff is normally never going to have direct evidence or facts showing knowledge or intent. Unruh v. Truck Insurance Exchange (1972) 7 Cal.3d 616, 632. Unruh is applicable even though it dealt with punitive damages rather than a cause of action for fraud specifically, because the standards are related, similar, and intertwined. Like fraud, allegations for punitive damages have a heightened pleading, and even proof, standard requiring pleading of specific facts rather than mere conclusions. Moreover, the standard for punitive damages is specifically tied to that for fraud because punitive damages by express statutory language require evidence sufficient to show oppression, fraud, or malice.
Although Plaintiff must show some facts beyond mere breach of contract to support a claim of promissory fraud, at the pleading stage this is normally less stringent than at the trial or proof phase because, again, a plaintiff at the pleading stage is less likely to be privy to the relevant facts which will directly show scienter. Doubts as to the sufficiency of the allegations of this element should be resolved in plaintiff’s favor based on policies of lenience where a plaintiff simply is not going to possess the relevant evidence at the pleading stage and the defendant instead will be in a better position to know.
Other decisions in addition to Unruh, addressing fraud specifically, demonstrate that allegations regarding or showing scienter, knowledge, and intent, may be general and conclusory at the pleading stage, and that courts must construe such allegations liberally in light of the circumstances, even though the plaintiff will need to adduce evidence supporting such knowledge or intent. These include Universal By-Products, Inc. v. City of Modesto (1974) 43 Cal.App.3d 145, at 151; Cicone v. URS Corp. (1986) 183 Cal.App.3d 194, at 203, 206; Muraoka v. Budget Rent-A-Car (1984) 160 Cal.App.3d 107, at 118, 119; Regus v. Schartkoff (1957) 156 Cal.App.2d 382; and Douglas v. Superior Court (1989) 215 C.A.3d 155, 158. As the court in Universal stated,
in pleading a fraud action based on the alleged falsity of a representation or of a promise to perform a future act it is not necessary to allege the circumstantial evidence from which it may be inferred that the representation or promise was false - these are evidentiary matters which give rise to the misrepresentation. The only essential allegation is the general statement that the representation or promise was false and that the defendant knew it to be false at the time it was made.
The Cicone court explained
A statement of what the defendant or some third person intends to do relates to an existing state of mind, and is a representation of fact. (4 Witkin, Summary of Cal. Law, op. cit. supra., § 453, p. 2717.) Thus, a promise made without any intention to perform it may constitute fraud. In other words, a promise to do something necessarily implies the intention to perform, and where such intention is absent, there is a misrepresentation of fact, which is actionable fraud. (Civ. Code, § 1710, subd. 4.) A trier of fact may be justified in inferring from the circumstances surrounding the subsequent repudiation that defendant never intended to carry out the agreement when it was made. The subsequent repudiation relates back to the original promise.
The Muraoka court, citing, explaining, and relying on the decision in Regus, stated,
The Regus court explained that “[t]he facts essential to the statement of a cause of action in fraud or deceit based on a promise made without any intention of performing it are: (1) a promise made regarding a material fact without any intention of performing it; (2) the existence of the intent at the time of making the promise; (3) the promise was made with intent to deceive or with intent to induce the party to whom it was made to enter into the transaction; (4) the promise was relied on by the party to whom it was made; (5) the party making the promise did not perform; (6) the party to whom the promise was made was injured.”
It noted that these are the only essential facts and found the allegations sufficient. Similarly, 5 Witkin, Cal. Proc. (5th Ed.2008) Pleading § 726 states
Because knowledge is a fact, it is sufficiently pleaded by the general averment that the defendant knew the representation was false, or that the falsity of the representation was known to the defendant; or, perhaps, in connection with a recital of the true facts in the allegation of falsity (supra, § 725), adding the allegation that the defendant knew these were the true facts. How the defendant acquired that knowledge, what his or her sources were, would be evidentiary and unnecessary. (See, Crouch v. Wilson (1920) 183 C. 576, 579, 191 P. 916 [allegation that each representation was “personally known by the said plaintiffs … to be untrue,” and that the truth (recited) “was then and there well known to the said plaintiffs”]; on pleading negligent misrepresentation, see infra, § 727.)
The Douglas court found a cause of action for false promise sufficiently pleaded where the complaint alleged specific facts of a promise, reliance thereon, detriment, and the failure to fulfill that promise, but conclusory statements of intent and knowledge that the promise was false. In the court’s words,
the causes of action are sufficient as they stand. The fraud cause of action alleges Weiner knowingly made false promises Douglas would be paid commissions when Weiner received signed contracts. Douglas also pleads Weiner made these promises to induce Douglas to work for Weiner and that Douglas relied on those promises by entering into an employment relationship with Weiner. Douglas also pleads Weiner failed to pay commissions exceeding $50,000. These allegations are sufficient to state a cause of action for fraud and the demurrer to that cause of action should have been overruled.
Defendants argue that the claim for emotional-distress damages is subject to a motion to strike “[a]ssuming Plaintiffs’ Third Cause of Action for fraud is removed from the complaint ….” Given that the fraud cause of action is not being “removed,” this is immaterial. In any case, as Plaintiffs point out, Defendants would need to bring a motion to strike this claim for damages and have not done so. The Court would, therefore, not reach the merits of this argument anyway.
In this instance, Plaintiffs claim false promise and they adequately allege the elements. Plaintiffs allege that the misrepresentation is Defendants’ promise to perform under the Lease and, specifically, ¶¶3 and 3(a), in which Defendants promise to return the lessee’s deposit, less offset for damages, upon termination of the Lease. Plaintiffs allege that Defendants knew this promise to be false when they made it and had no intent to perform it. As explained above, Plaintiffs need not allege, as Defendants claim, specific evidentiary facts supporting this knowledge and intent. Plaintiffs allege that it was false because Defendants knowingly and intentionally failed to comply with the term, improperly deducting amounts from the deposit which they promised in the Lease they would not do. Plaintiffs also allege that Defendants intended to induce Plaintiffs to enter into the Lease in reliance on this promise. Again, Plaintiffs need allege no specific evidentiary facts showing such intent and, in any case, such intent seems to be inherent in the fact that they presented these terms for Plaintiff to accept. The fact that Defendants did so by definition supports a finding that they intended Plaintiffs to enter into the Lease in reliance on the terms. Plaintiffs allege that they justifiably relied on the promise, stating that Defendants provided the Lease, told Plaintiffs that these were the terms binding the parties, and that Plaintiffs understandably relied on such terms. Plaintiffs have alleged damage because they have lost the money which Defendants have refused to return.
The Court, accordingly, OVERRULES the demurrer.
The prevailing party is to prepare an order conforming with the order of the Court, submitting it to the opposing party for review five days prior to submitting it to the Court.
2. MCV-252299, Bank of America, N.A. v. Wong
Plaintiff’s Motion to Deem Requests for Admissions Admitted DROPPED. It is moot in light of that fact that Defendant has now served responses. Code of Civil Procedure session 2033.280(c).
Plaintiff moves the Court to deem requests for admission (“RFAs”) admitted but Plaintiff admits that Defendant belatedly served responses, rendering the motion now moot. Plaintiff served Defendant with the RFAs on March 18, 2020 but Defendant failed to respond by the deadline. Zide Dec. However, in a declaration which Plaintiff filed after the motion, on July 21, 2020, Plaintiff’s attorney states that Plaintiff finally received Defendant’s responses to the RFAs on July 20, 2020. Karayan Dec.
Plaintiff is not entitled to recover monetary sanctions because nowhere in the notice, motion, caption, or declaration does Plaintiff mention or request sanctions. Code of Civil Procedure section 2023.040 (in order to obtain sanctions, the moving party must request sanctions in the notice of motion, identify against whom the party seeks the sanctions, and specify the kind of sanctions).
3. SCV-260090, Dudney v. Carls
Defendants Jason Carls and Stacy Carls's Motion for Separate Trial on the Issue of the Statute of Limitations DENIED.
The Court has power to order the separate trial of any cause of action or issues “in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy ....” Code of Civil Procedure section 1048(b). According to Code of Civil Procedure section 598, the court may order some issues tried before others when doing so would promote “the convenience of witnesses, the ends of justice or the economy and efficiency of handling the litigation ....”
The decision on a motion to bifurcate is within the sound discretion of the trial court and may be reversed only for clear abuse of discretion. Grappo v. Coventry Financial Corp. (1991) 235 Cal.App.3d 496, 504.
Defendants have already raised the issue of the statute of limitations on demurrer and motion for summary adjudication. In the latest rulings, this Court determined that the claims were not untimely on the face of the pleadings and that the evidence on summary adjudication did not demonstrate as a matter of law that the clams are untimely.
Defendants put too much emphasis on the family law aspect of this lawsuit and ignore the fundamental nature of the claims, specifically the allegation that all Defendants together, particularly the moving Defendants, took property in which Plaintiff has an interest. The family law policies on which Defendants rely appear to have minimal application here, if any.
It is possible that bifurcation may simplify and expedite matters but this is uncertain, bifurcation may instead duplicate trials, money and time spent while there is little or no basis in policies or justice for bifurcating trial here. Given the intertwined nature of the claims against the Defendants and the parties’ relationships, the nature of Plaintiffs’ claims, and the uncertainty over Defendants’ arguments that the claims against them are untimely, the court finds bifurcation of the issue of statute of limitations inappropriate and unwarranted.
Accordingly the Court DENIES the motion.
The prevailing party is to prepare an order conforming with the order of the Court, submitting it to the opposing party for review five days prior to submitting it to the Court.
4. SCV-262509, Patterson v. City of Petaluma
Defendant City of Petaluma’s Motion for Summary Judgment or, in the Alternative, Summary Adjudication DENIED in full, as explained below.
Plaintiff complains that on August 12, 2017, he suffered injuries when he tripped and fell as a result of a dangerous condition on the sidewalk in front of 969 Petaluma Boulevard North, Petaluma (“the Property”). He claims that Defendants City of Petaluma (“City”), Pacific Gas & Electric Company (“PG&E”), AT&T Telecommunications Company (“AT&T”), and Pacific Bell Telephone Company (“PacBell”) negligently controlled, maintained, or caused the condition.
City moves for summary judgment, or summary adjudication, to the only identified cause of action, for “Negligence/Dangerous Condition of Public Property.” It argues that Plaintiff cannot state a cause of action for negligence, the Property was not in a dangerous condition because it did not create a substantial risk of injury for one using it with reasonable care; the risk was open and obvious; the City did not have notice in time to protect against the injury; and the City does not own or control the area with the condition.
Plaintiff opposes the motion, arguing that the area presented a dangerous condition, the City had actual or constructive knowledge, and the City owned and controlled the general sidewalk area where the accident occurred.
Authority on Summary Judgment and Adjudication
Any “party” may move for summary judgment or adjudication. Code of Civil Procedure section 437c(a), (f). A party is entitled to summary judgment if demonstrating “that the action has no merit or that there is no defense to the action or proceeding.” Code of Civil Procedure section 437c(a). For summary adjudication, the “party” may seek adjudication of one or more causes of action, affirmative defenses, claims for damages, or issues of duty. Code of Civil Procedure section 437c(f)(1).
When a defendant moves for summary judgment, it has the burden of first making a prima facie showing that plaintiffs cannot establish at least one element of any cause of action for summary judgment, or there is a complete defense to every cause of action. Code of Civil Procedure section 437c; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. For summary adjudication, the moving party has the burden of demonstrating that plaintiff cannot establish at least one elements of each cause of action at issue, each claim for punitive damages, an affirmative defense, or each issue of duty addressed in the motion, or there is a complete defense to each cause of action addressed. Code of Civil Procedure section 437c(f)(1), (o); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. The moving party thus has the burden of “persuading” the court that there is no triable material issue of fact and that it is entitled to judgment in its favor as a matter of law. Ibid.
A defendant can show that an element cannot be established only if its undisputed facts negate plaintiff’s allegations as a matter of law and would make it impossible for plaintiff to show a prima facie case. Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1597.
Once the moving party has met its burden, the party opposing summary judgment or summary adjudication has the burden of demonstrating that there is a triable material issue of fact. Code of Civil Procedure section 437c; Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. The opposing party must merely make a prima facie showing that there is such a triable issue. Ibid.
Inferences from circumstantial evidence can create a triable issue, as long as they are not based on speculation or surmise. Joseph E. DiLoreto, Inc. v. O’Neill (1991) 1 Cal.App.4th 149, 161; Aguilar v. Atlantic Richfield Corp. (2000) 78 Cal.App.4th 79, 117. These inferences must be “more likely than not.” Aguilar, 117; Leslie G. v. Perry & Assocs. (1996) 43 Cal.App.4th 472, 487. There is also a policy to liberally construe the opposition’s evidence and strictly construe the evidence of the moving party. D’Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21; Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839.
Liability for a Dangerous Condition on Public Property
The Supreme Court noted in Creason v. State Dept. of Health Services (1998) 18 Cal.4th 623, at 630, that a government entity is only liable in tort pursuant to a statute or other enactment. This limit on liability is found in Govt. Code section 815, which states that a public entity is not liable for an injury “[e]xcept as otherwise provided by statute.”
Government Code section 815.2 makes a public entity liable for injury that an employee proximately causes if the injury would have given rise to a cause of action against the employee. Generally, though, unless the injury was the result of a negligent act or omission by an employee of the entity, the entity will only be liable if its employees had actual or constructive notice of a dangerous condition in time to remedy it. State v. Superior Court (1968) 263 Cal.App.2d 396, 399.
Government Code section 835 explicitly applies this standard to conditions on the property of a public entity. It makes a public entity “liable for injury caused by a dangerous condition of its property.” The statute expressly states that the plaintiff must establish that the property was in a dangerous condition at the time of the injury; the condition proximately caused the injury; there was a foreseeable risk of the injury; and either 1) a negligent or wrongful act of an employee of the entity within the scope of his employment caused the condition, or 2) the entity had actual or constructive notice of the condition in time sufficient to have taken preventative measures. See, Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434, 439-440.
Government Code section 830 defines “dangerous condition” to be one that “creates a substantial (as distinguished from a minor, trivial or insignificant) risk of injury when such property or adjacent property is used with due care in a manner in which it is reasonably foreseeable that it will be used.” It defines public property to be “real or personal property owned or controlled by the public entity” aside from easement or the like located on public property but not owned or controlled by the public entity.
“The existence of a dangerous condition is ordinarily a question of fact but ‘can be decided as a matter of law if reasonable minds can come to only one conclusion.’ ” Cerna v. City of Oakland (2008) 161 Cal.App.4th 1340, 1347; quoted also in Mixon v. State of California (2012) 207 Cal.App.4th 124, 131.
Except where its own acts or omissions created the dangerous condition, a defendant will be liable if, but only if, it had actual or constructive notice of the dangerous condition in time to take remedial action. Government Code section 835.2; State v. Superior Court (1968) 263 Cal.App.2d 396. Section 835.2(b) explains when a governmental entity has constructive notice of a dangerous condition. It states in full, with emphasis added,
(b) A public entity had constructive notice of a dangerous condition within the meaning of subdivision (b) of Section 835 only if the plaintiff establishes that the condition had existed for such a period of time and was of such an obvious nature that the public entity, in the exercise of due care, should have discovered the condition and its dangerous character. On the issue of due care, admissible evidence includes but is not limited to evidence as to:
(1) Whether the existence of the condition and its dangerous character would have been discovered by an inspection system that was reasonably adequate (considering the practicability and cost of inspection weighed against the likelihood and magnitude of the potential danger to which failure to inspect would give rise) to inform the public entity whether the property was safe for the use or uses for which the public entity used or intended others to use the public property and for uses that the public entity actually knew others were making of the public property or adjacent property.
(2) Whether the public entity maintained and operated such an inspection system with due care and did not discover the condition.
In Carson v. Facilities Development Co. (1984) 36 Cal.3d 830, at 844, the Supreme Court ruled that because evidence could support the inference that a city’s police officers patrolled the area, this could support a finding that they should have noted and reported the sign and thus that the city had constructive notice, potentially supporting liability for a dangerous condition.
The City’s Request for Summary Adjudication of Issues
For summary adjudication, the motion must seek adjudication of specified “issues” and each issue must entirely dispose of one or more 1) causes of action, 2) claims for punitive damages, 3) affirmative defenses, or 4) issues of duty. Code of Civil Procedure section 437c(f)(1). California Rules of Court, rule 3.1350 (old Cal. Rules of court, rule 342) covers these motions.
The City purports to set forth several issues for summary adjudication but in actuality the City presents only a motion for summary judgment based on different arguments. The parties agree that Plaintiff asserts only one cause of action against each Defendant for creating or maintaining a dangerous condition, the issues which the City presents are not actual issues amenable to summary adjudication, and each issue would dispose of the entire cause of action against the City. Each purported issue presented is, accordingly, not an issue for summary adjudication but simply an argument which may support the motion for summary judgment in favor of the City.
Plaintiff posits some objections in the separate statement but these are defective, improper, and unexplained. He appears to object to the facts, not the evidence, and does not provide proper, separate objections outside the separate statement as required.
On a motion for summary judgment or summary adjudication, all “objections to evidence must be served and filed separately from the other papers in support of or in opposition to the motion.” California Rules of Court, rule 3.1354(b). Although objections “may be referenced by the objection number” in the separate statement, “the objections must not be restated or reargued in the separate statement.” Ibid., emphasis added. Moreover, objections may only be to the evidence, not to “facts” in the separate statement. California Rules of Court, rules 3.1352, 3.1354. Each objection must also “[i]dentify the name of the document in which the specific material objected to is located” as well as “the exhibit, title, page, and line number,” must quote or set forth the objectionable evidence, and must state the grounds for objection. California Rules of Court, rule 3.1354(b).
The objections are therefore OVERRULED but they, in the end, have no impact on the outcome of this motion.
The City’s Objections
In reply, the City objects to some of Plaintiff’s evidence in the Bral and Patterson declarations.
Objection #5, addressing Plaintiff’s description of the area as a “defect” and a “dangerous condition” is persuasive. The City is correct that these are arguments and improper legal conclusions. The Court SUSTAINS this objection.
The other objections are unpersuasive and the Court OVERRULES them. For example, the arguments that Plaintiff lacks personal knowledge of facts such as whether the incident occurred in the sidewalk in front of the entrance to the PPD building, or how high the Vault cover edge was are unpersuasive because these are apparently based on his personal knowledge as a percipient witness. The argument that some of these statements may conflict with the City’s own evidence also does not render the evidence subject to objection, particularly, as explained below, the City’s own evidence is often unclear and equivocal, anyway.
However, as with Plaintiff’s objections, in this instance the ruling on the objections again fails to alter the outcome of the motion, in part here because the City has not met its burden in the first place.
Note Regarding the Evidence
The City refers to Exhibit D as its request for production set one, Exhibit E as the responses thereto, and Exhibit F as the documents, but in fact these are Exhibits E, F, and G, respectively. Exhibit D is the Horner deposition transcript, apparently cited as Exhibit G.
The City establishes facts 1, 2, and 5 and Plaintiff admits that these are undisputed but adds additional facts in response. These show that Plaintiff claims he tripped and fell on or at a utility vault cover (“the Vault”) in the sidewalk directly in front of the City’s Petaluma Police Department (PPD) at 969 Petaluma Boulevard North, Petaluma (“the Property”) on August 12, 2017; the incident occurred when Plaintiff was walking northbound on the sidewalk shortly before 2:00 p.m. on a clear, bright, sunny day; and once alerted to the condition of the vault cover, officers of PPD immediately spray-painted it bright orange.
The City establishes facts 4, 8, 10, 11, 12, 13, 14, 15, but Plaintiff attempts to dispute them. Fact 4 shows that there are no bends or curves in the sidewalk at this area. Fact 8 shows that the City provides a video accurately depicting PPD interaction with Plaintiff immediately after he fell but the video shows little clear information aside from the fact that Plaintiff sitting on the ground injured, Plaintiff indicated that he was injured when he fell in the area of the Vault, the Vault area is on the sidewalk directly in front of the PPD property, the sidewalk is straight, the weather was bright and sunny, the Property area is partly in the shade, and a PPD officer painted it orange during the interaction. It does not clearly show the condition of the Vault or the property at issue. Facts 10-13 show that the City has no records or reports of other incidents at the Property location, complaints of the Property, reports of injuries at the Property, or report of misalignment of the Vault cover. Facts 14-15 show that PacBell owns the Vault, cover, and equipment inside, and that the City has no ownership or direct control over the Vault itself.
The City does not establish facts 3, 6, 9. The evidence cited in fact 3 fails to show that the Property, the sidewalk area, is in fact straight, flat, and unobstructed because at the very least the City’s evidence indicates that the Vault cover had a raised edge, with further details about it unclear. Fact 6 is based on various photographs and video which are unclear, vague, and equivocal, completely lacking in specific details or information. From this evidence it is impossible to determine, much less as a matter of law that the edge of the Vault cover was only between 1/4 and 3/8 of an inch in height above the grade of the sidewalk. The evidence cited for fact 9 similarly fails to show that “dirt and other debris at some unknown time” became trapped under the Vault lid and caused the uplifting. The evidence includes, in the Horner deposition transcript, a question asking if the deponent had “any idea whether one or more roots … may have lifted up the utility box or the lid higher than it had previously been?” The response is only a vague statement that the deponent had no idea and that “[i]f the roots were there, they would pop the sidewalk up.” He otherwise indicates “no idea.” It does not show what caused the condition.
Plaintiff submits several facts in direct response to the City’s facts. Plaintiff establishes that the incident took place on the sidewalk in front of the entrance area of the PPD building, a fact which the city’s own cited evidence such as the video Exhibit G already demonstrates (Fact 1); Plaintiff could not see the condition which caught his foot and caused him to fall because he was looking ahead to where he was walking and not looking only down at the ground (Fact 2); the Vault edge was protruding about 2 inches up when Plaintiff fell and appeared to have been put in place improperly instead of merely lifted up by dirt or debris (Facts 6-9); the City has demonstrated no inspections or repairs while the Vault and sidewalk Property are in front of the general entrance area to the PPD building, affording PPD officers a general opportunity to see it (Facts 10-13); and the Vault is in the sidewalk area located in, and maintained and controlled by, the City.
Plaintiff partially establishes his Facts 3-5, showing that the sidewalk Property was not flat or that the condition was not necessarily fully visible, since an edge of the Vault cover was sticking up and he could not see it despite looking ahead and generally watching where he was going. Plaintiff does not establish, however, that the sidewalk was not straight or that the condition was a dangerous condition, which is argument. While in Fact 5 the fact that the PPD officer painted the Vault does not necessarily mean that it was a dangerous condition as a matter of law.
In his additional facts, Plaintiff shows that the City does not have a regular protocol for inspection and maintenance of the sidewalks but merely responds to reports of problems (Fact 16) and the City repaired the area after Plaintiff’s injury (Fact 17).
Nature of Plaintiff’s Cause of Action
The City argues, correctly, that Plaintiff may only maintain the cause of action against it pursuant to, and the cause of action must be addressed according to the standards governing, Government Code section 835. As set forth above, the City, a government entity, is only liable according to statute and this is the statutory provision governing government liability of dangerous conditions on public property.
Whether the Property Was Dangerous
The City next argues that there was no dangerous condition under Government Code section 835 because a ‘less[-]than[-]three-quarters[-]of[-]an[-]inch misalignment between the Pacific Bell vault cover and the adjacent sidewalk is not a “dangerous condition” ’ within section 835. It points to the language in Government Code section 830.2 stating
A condition is not a dangerous condition within the meaning of this chapter if the trial or appellate court, viewing the evidence most favorably to the plaintiff, determines as a matter of law that the risk created by the condition was of such a minor, trivial or insignificant nature in view of the surrounding circumstances that no reasonable person would conclude that the condition created a substantial risk of injury when such property or adjacent property was used with due care in a manner in which it was reasonably foreseeable that it would be used.
The City’s argument on this point is unpersuasive in this motion. The City fails to establish, as noted above, the fact that the Vault cover was raised less than three quarters of an inch, or, indeed, how high it was raised, because the evidence the City presents is unclear. Plaintiff, moreover, raises a triable issue of fact on this point by stating directly that it was raised about 2 inches. Finally, it is not clear as a matter of law that in these circumstances an uplifting of only three quarters of an inch or less is, as a matter of law, not a “dangerous condition” as defined but instead is “minor, trivial or insignificant” and the City presents no law or explanation to support such a finding. The City notes that the Supreme Court acknowledged in Whiting v. National City (1937) 9 Cal.2d 163, 165, that
It is a matter of common knowledge that it is impossible to maintain a sidewalk in a perfect condition. Minor defects are bound to exist. A municipality cannot be expected to maintain the surface of its sidewalk free from all inequalities and from every possible obstruction to travel. Minor defects due to continued use, or action of the elements, or other cause, Will not necessarily make the city liable for injuries caused thereby. What constitutes a minor defect is not always a mere question of fact. If the rule were otherwise the city could be held liable upon a showing of a trivial defect.
The City also notes that decisions have held defects such as a crack in a sidewalk or small potholes in pavement to be, in those circumstances, trivial as a matter of law. Nicholson v. Los Angeles (1936) 5 Cal.2d 361; Caloroso v. Hathaway (2004) 122 Cal.App.4th 922, 927. However, these general statements, while both accurate statements of the decisions and logical propositions, are somewhat general while this case does not involve such mere cracks in a sidewalk or “small potholes and roadway bumps” but instead a sharp upraised ridge above otherwise flat sidewalk pavement. The court in Caloroso, in fact, noted that amount of an elevation difference alone is not dispositive, stating
The decision whether the defect is dangerous as a matter of law does not rest solely on the size of the crack in the walkway, since a tape measure alone cannot be used to determine whether the defect was trivial. A court should decide whether a defect may be dangerous only after considering all of the circumstances surrounding the accident that might make the defect more dangerous than its size alone would suggest. [Citation.] Aside from the size of the defect, the court should consider whether the walkway had any broken pieces or jagged edges and other conditions of the walkway surrounding the defect, such as whether there was debris, grease or water concealing the defect, as well as whether the accident occurred at night in an unlighted area or some other condition obstructed a pedestrian's view of the defect.
The City also notes that several cases, including Caloroso, and Huckey v. City of Temecula (2019) 37 Cal.App.5th 1092, 1107, have noted that in a number of instances courts have determined, based on the circumstances before them, that elevation differences of a half inch, or even three-quarters to one-and-a-half inches have been found trivial as a matter of law. But these note the totality of circumstances and also note that such mall height differences have sometimes been found to be trivial, based on the circumstances. They do not held, or even indicate, that such small height differences must never be a dangerous condition as a matter of law, and, indeed, as noted above, Caloroso expressly made it clear that height is only one factor to consider and is not alone dispositive.
Plaintiff points out that in some decisions, elevation differences of less than one inch were found to be sufficient enough to present a possible dangerous condition and were not as a matter of law trivial. Rodriguez v. City of Los Angeles (1963) 215 Ca1.App.2d 463, 467; Johnson v. City of Palo Alto (1962) 199 Cal.App.2d 148; Gentekos v. City of San Francisco (1958) 163 Cal.App.2d 691. In Rodriguez, the court explained that the defect was not as a matter of law trivial because the elevation difference between two slabs of sidewalk ranged “from one-half inch to approximately one inch” and “[t]his created an obstruction sufficient to cause a person to trip providing the shoe were to be caught by the vertically projecting obstruction of the higher slab ….” It added, at 472, that although a municipality “is not liable for minor defects that could not reasonably be anticipated to result in accidents, the public is nevertheless entitled to be protected from even small defects if injury is likely to result from them.” See also, Fielder vs. City of Glendale (1977) 71 Cal.App.3d 719; Barone v. City of San Jose (1978) 79 Cal.App.3d 284; Dolquist v. City of Bellflower (1987) 196 Cal.App.3d 261 (noting that a greater height difference was found trivial in Barrett v. City of Claremont (1953) 41 Cal.2d 70 but distinguished Barrett based on the different circumstances, indicating that height is not the only factor).
The City fails to meet its burden on this point and Plaintiffs raises triable material issues.
The City argues that it had no actual or constructive notice of the condition. However, its facts and evidence, as set forth above, do not demonstrate this as a matter of law. It actually provides evidence, in the declarations and video, showing that the condition at issue was in the sidewalk right in front of City’s own police department building, so its own employees had constant opportunity to encounter it. Plaintiff, moreover, provides evidence that the City has no actual, formal, inspection and maintenance program but relies merely on investigating complaints. As explained above, this may support a finding of constructive notice.
The City fails to meet its burden on this point and Plaintiffs raises triable material issues.
Whether the Condition was Open and Obvious
The City next contends that the condition was open and obvious. Its evidence, which is almost non-existent on this point, is certainly far too vague and unclear to allow the court to make any determination that this was true as a matter of law. In fact, it is impossible, based on the City’s facts and evidence, to reach any conclusion about how open and obvious it was. It is notable that both parties’ evidence makes it clear that the City’s own police officers would have had opportunity to encounter the condition due to its location right in front of the PPD building, yet the City expressly claims that they never were aware of it. This clearly conflicts with the assertion that the condition was open and obvious.
The City fails to meet its burden on this point and Plaintiffs raises triable material issues.
Liability for Property of Another
Finally, the City argues that it cannot be liable for the property of another, noting that PacBell owns and controls the Vault and the cover. However, it fails to take into account its ownership and control of the sidewalk in general and the evidence is too slim and vague to make it certain, as a matter of law, exactly what the cause of the problem or danger was, and whether it lay solely with PacBell, or the City, or both.
The City fails to meet its burden on this point and Plaintiff raises triable material issues.
The City fails to meet its burden on any point, Plaintiff raises triable material issues in any case, and, as a result, the Court DENIES the motion.
The prevailing party is to prepare an order conforming with the order of the Court, submitting it to the opposing party for review five days prior to submitting it to the Court.
5. SCV-263890, County of Sonoma v. Cochran Investments Company, Inc.
Plaintiff’s Motion for Award of Costs and Attorneys’ Fees GRANTED in part for the amount of $7,804 in attorneys’ fees plus the costs of $295. The Clerk of the Court is also ordered to release to Defendant, Maureen McKenzie Crumly (“Crumly”) the full amount of the money at issue on deposit, plus interest of $3,966.79, minus the fees and costs herein awarded to the Plaintiff.
Plaintiff filed this interpleader action to determine which of several claimants may be entitled to excess proceeds (the Proceeds) from the sale of certain real property at 21950 Timber Cove Road (the Property) for overdue property taxes. One Defendant, Maureen McKenzie Crumly (“Crumly”) filed a cross-complaint against the other two Defendants for declaratory relief, claiming that she alone is entitled to the full amount. Crumly eventually took the default of one of the other Defendants while the third stipulated for entry of judgment in Crumly’s favor, that Crumly alone is entitled to the full amount.
On March 6, 2020, Plaintiff and Crumly appeared for trial and the Court entered judgment that Crumly alone is entitled to the Proceeds plus interest, minus the Plaintiff’s recovery of reasonable attorneys’ fees and costs. The judgment adds that the court clerk is ordered to release the Proceeds to Crumly after the Court has determined Plaintiff’s attorneys’ fees and costs. The parties also filed a stipulation to discharge Plaintiff because it had deposited the full sum at issue with the Court, and award it reasonable attorneys’ fees and costs on a noticed motion.
Plaintiff now seeks its attorneys’ fees and costs pursuant to Code of Civil Procedure section 386.6. Plaintiff seeks $12,121 for $10,170 in attorneys’ fees and $295 in costs incurred prior to this motion plus another $1,656 anticipated for this motion.
Crumly opposes this motion, disputing the amount as unreasonable. She does not dispute Plaintiff’s right to recover reasonable fees and costs.
According to Code of Civil Procedure section 386.6, a party in an interpleader action pursuant to Code of Civil Procedure sections 386 or 386.5 may seek reasonable attorney’s fees and costs.
Plaintiff requests fees at $256 an hour prior to June 30, 2019, and fees at $276 an hour since then.
Crumly argues that Plaintiff unnecessarily delayed in requesting to be discharged, and had it done so earlier, the fees would be far less, the billing records show the pre-motion fees would amount to $7,666 instead of $10,170, and the amount anticipated for this motion is unreasonable.
As for the amount billed, Crumly notes that Plaintiff’s billing records show 27.25 hours at $256 an hour prior to June 30, 2019, a total of $6,976, plus 2.5 hours after June 30, 2019 at $276 an hour, or $690. This, she notes, results in a total of $7,666. Crumly is correct about the pre-July 2019 fees but miscalculates the subsequent fees which total 4.5 hours. This gives a fee amount of $1,242 after June 30, 2019, and a total fee amount of $8,218. Crumly is nonetheless correct that this is less than what Plaintiff claims.
Crumly points out that she confirmed that she would agree to discharge Plaintiff in March 2019, so Plaintiff should have sought the discharge then, reducing the expense. She notes that Plaintiff’s attorneys had spent only 23 hours up to that point, resulting in $5,888. This is logical but fails to take into account the fact that Plaintiff would still have needed to incur at least some more time in obtaining the discharge. The amount of time needed to accomplish this is not clear but at the least it seems reasonable that Plaintiff would have incurred the additional 4.25 hours incurred up through June 30, 2019. Awarding Plaintiff all the fees up through June 30, 2019, but no more aside from this motion itself, appears to the Court to be reasonable.
Crumly is also persuasive that the amount sought for this motion appears unreasonably high. Given that the parties already stipulated that Plaintiff is entitled to recover reasonable fees and costs, this is a simple motion. Plaintiff has not demonstrated the basis for the amount claimed for the motion and roughly three hours, at $276 an hour, seems reasonable. This would result in $828 for this motion and a total of $9,046. Should the Court award Plaintiff only the fees up through June 30, 2019, the total would be $6,976 plus the $828, or $7,804. The Court awards this amount, $7,804, plus the costs of $295.
In reply, Plaintiff provides a new declaration with new billing records including later billing entries which Plaintiff had failed to provide in the original motion. This is improper new evidence which was previously available to Plaintiff and clearly central to this motion. Plaintiff could, and should, have provided it originally so it is improper to consider it in the reply. Moreover, unless the Court were to award Plaintiff expenses incurred after Crumly’ offer of discharge, this evidence of later charges is immaterial. The only expenses reasonably incurred after that date are the reasonable expenses for this motion as noted.
Finally, Crumly argues that the Court release the deposited Proceeds to her in the amount of $88,845.29, apparently the Proceeds at issue minus the fees and costs but plus interest. This is not technically before the Court at the moment because the only matter on calendar is Plaintiff’s motion for attorney’s fees and costs. However, in light of the judgment that Crumly alone is entitled to the Proceeds plus interest, aside from Plaintiff’s right to attorneys’ fees and costs, and stating that the Court is to release the Proceeds to Crumly once it has determined the fees and costs, addressing this is appropriate.
Plaintiff is to prepare an order conforming with the order of the Court, submitting it to the opposing party for review five days prior to submitting it to the Court.
6. SCV-264038, Graton Community Services District v. Lescure Engineers, Inc.
Cross-Defendant U.S. Speciality Insurance Company’s Motion for Determination of Good Faith Settlement GRANTED.
Good Faith Settlement: Authority
According to Code of Civil Procedure section 877.6, a “plaintiff or other claimant” can settle with one or more joint tortfeasors or co-obligors without releasing others, provided the settlement is in “good faith.” A good faith settlement discharges the settling defendant from liability to other parties for equitable contribution or comparative indemnity.
City of Grand Terrace v. Superior Court (Boyter) (1987) 192 Cal.App.3d 1251, 1262, explained that whether the settlement is grossly disproportionate to potential liability is the “ultimate determinant of good faith ....” See also, River Garden Farms, Inc. v. Superior Court (1972) 26 Cal.App.3d, 986, 996. The determination of good faith settlement is in the discretion of the trial court. Tech-Bilt Inc. v. Woodward-Clyde & Associates (1985) 38 Cal.3d 488, 502.
There is no precise standard to determine “good faith” but the court must harmonize public policy favoring settlements with public policy favoring equitable sharing of costs among tortfeasors. To this end, Tech-Bilt Inc., supra, 38 Cal.3d 488, requires that the settlement be within the “reasonable range” of settling tortfeasor's share of liability, taking into consideration the facts and circumstances of the particular case and evaluating the settlement on the basis of information available at the time of settlement. The factors include:
1) A rough approximation of the total recovery and settlor’s proportionate liability;
2) The amount paid in settlement;
3) A recognition that a settlor should pay less in settlement than if found liable after trial;
4) The allocation of the settlement proceeds among plaintiffs;
5) Settlor's financial condition and insurance policy limits, if any; and
6) Evidence of any collusion, fraud or tortious conduct between the settlor and the plaintiffs aimed at making nonsettling parties pay more than their fair share.
A determination of good faith requires “substantial evidence” to support a “critical assumption” as to the nature and extent of a settling defendant's liability, or it is an abuse of discretion. Toyota Motor Sales U.S.A., Inc. v. Superior Court (1990) 220 Cal.App.3d 864, 871; Mattco Forge, Inc. v. Arthur Young (1995) 38 Cal.App.4th 1337, 1348.
The court must examine the relative share of liability of each party. Bay Development, Ltd. v. Superior Court (1990) 50 Cal.3d 1012, 1034. If it finds that the settling defendant has a greater share of liability, it should find the settlement in good faith only if the settlement requires the settling party to bear an appropriate share and leaves the nonsettling parties with a liability that is not grossly disproportionate to their own responsibility. Id. If the nonsettling defendant’s liability is wholly attributable to the settling defendant’s breach, the court may decline to grant good-faith status. Id.
It is less important for the settlement payment to comply with the “ballpark” rule where the settler is insolvent and uninsured or has settled for the full insurance policy. Tech-Bilt, supra, 38 Cal.3d 499; Schmid v. Superior Court (1988) 205 Cal.App.3d 1244, 1248.
The Court notes that no party has opposed this motion.
A Rough Approximation of the Total Recovery and
Settlor’s Proportionate Liability
Plaintiff’s complaint states that damages are in excess of $174,000. Speciality shows that Plaintiff’s claim for electrical issues, those which may be attributed to Cross-Defendants, amounts to $154,740, with specific itemization. This is the full liability for which Defendant, Cross-Defendants, and Speciality may be liable. Each party is potentially liable for this full amount. Speciality also shows that its liability for its insured is limited to the policy terms, there was no agreement to toll the statute of limitations for the claims against its insured and the claims appear to be untimely, and Defendant’s surviving claims apply only in the event that Defendant is found liable.
The Amount Paid and Recognition That Settlor Should
Pay Less in Settlement
Speciality has agreed to pay $50,000 in return for a full release. This is close to one third of the total liability. In addition, the Settlement includes a full release of Defendant/Cross-Complainant for liability for any of Cross-Defendants’ possible acts and omissions. Given the amount and the fact that Defendant/Cross-Complainant is also being released from liability for these claims, the settlement appears to be fair.
Allocation of Settlement Proceeds
This factor is not material in this instance.
Parties' Financial Condition and Insurance Limits
Speciality’s insureds are deceased and dissolved, limiting recovery beyond the insurance payment.
Collusion, Fraud or Tortious Conduct
There does not seem to be any issue of collusion or fraud. This is particularly true since Plaintiff has also agreed to release all claims against the only other party who could be liable, Defendant/Cross-Complainant.
The Court, accordingly, GRANTS the motion.
7. SCV-264871, Delaney v. Vantreo Insurance Brokerage
Plaintiffs Timothy and Leigh Anne Delay’s Motion to (1) Compel Further Responses to Special Interrogatories, Set One, to Defendant Vantreo Insurance Brokerage; (2) Compel Further Responses to Request for Production of Documents, Set Three to Defendant Vantreo Insurance Brokerage; and (3) Request for Monetary Sanctions GRANTED, as explained below, with sanctions of $3,560 awarded to Plaintiffs.
Plaintiffs complain that they have suffered damages as a result of Defendants’ negligent conduct in determining the appropriate amount of insurance for Plaintiffs’ real property at 1276 Wikiup Drive, Santa Rosa (“the Property”), resulting in inadequate coverage for the damage caused to the Property in the Tubbs Fire in October 2017.
Plaintiffs served Defendant with Special Interrogatories, Set One and Request for Production of Documents, Set Three on February 21, 2020; Defendant responded by e-mail on March 27, 2020; Plaintiffs found the responses deficient and attempted in vain to resolve the matter informally; the parties stipulated during their discussions to extend trial-related deadlines and the deadline for a motion to compel by 60 days. Reilley Dec.
Plaintiffs move the Court to compel Defendant to provide further responses to Special Interrogatories, Set One and Request for Production of Documents, Set Three, and to award them monetary sanctions against Defendant.
When a propounding party is dissatisfied with responses to interrogatories or production requests, that party may move to compel further responses. Code of Civil Procedure sections 2030.300, 2031.310. The moving party must make adequate attempts to meet and confer. Ibid. Generally, once a timely, proper motion to compel further responses has been made, the responding party has the burden to justify objections or incomplete answers. Coy v. Superior Court (1962) 58 Cal.2d 210, 220-221.
A party moving to compel further responses to a production request, however, must demonstrate “good cause" for seeking the items. Code of Civil Procedure section 2031.310(b)(1). This requires a showing that the items are relevant to the subject matter of the litigation and a showing of specific facts justifying discovery. Glenfed Develop. Corp. v. Superior Court (1997) 53 Cal.App.4th 1113, 1117. Whether there is an alternative source for the information is relevant though not dispositive. Associated Brewers Distrib. Co. v. Superior Court (1967) 65 Cal.2d 583, 588. Once the moving party demonstrates good cause, the responding party must justify its objections. See, Hartbrodt v. Burke (1996) 42 Cal.App.4th 168.
A party has a duty to provide “complete” responses and to make them as straightforward as possible. Code of Civil Procedure sections 2030.220; 2031.210-2031.230. Requests must be answered to the extent possible and an answer that contains only part of the information requested or which evades a meaningful response is improper. Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783.
A responding party also has a duty to make a reasonable, good faith effort to obtain the requested information and if it is unable to comply, it must state that it made a reasonable and diligent search. Code of Civil Procedure sections 2030.220 2031.230; Deyo, supra, 84 Cal.App.4th 783.
An attorney’s work product is protected, subject to absolute or qualified protection depending on the nature of the information. Code of Civil Procedure sections 2018.020, 2018.030. Section 2018.020 states that it is the policy of the state to “[p]reserve the rights of attorneys to prepare cases for trial with that degree of privacy necessary to encourage them to prepare their cases thoroughly and to investigate not only the favorable but the unfavorable aspects of those cases” and to prevent attorneys from taking unfair advantage of other attorneys’ work.
“Work product” covers “derivative” materials created by, or derived from, an attorney’s work for a client and which reflect the attorney’s evaluation or interpretation while it will not protect “nonderivative” materials which are only evidentiary, such as identity and location of physical evidence or witnesses, even if “work” went into them. See, Mack v. Superior Court (1968) 259 Cal.App.2d 7, 10; Fellows v. Superior Court (1980) 108 Cal.App.3d 55, 68-69; Aerojet-General Corp. v. Transport Indem. Ins. (1993) 18 Cal.App.4th 996, 1004. Appraisal and reports of experts employed as consultants not yet designated as experts will typically be “work product.” Williamson v. Superior Court (1978) 21 Cal.3d 829, 834; Mack, supra.
The protection afforded work product depends on the type in question. Writings containing an attorney’s impressions conclusions, opinions, and the like are absolutely protected. Code of Civil Procedure section 2018.030(a). Absolute protection only applies to “writings” showing an attorney’s mental impressions and the like. Ibid. All other work product receives limited protection and may be disclosed if the court finds that the denial of discovery will “unfairly prejudice” the party seeking discovery. Code of Civil Procedure section 2018.030(b). Roughly, this qualified work product protection applies to material that does not directly reveal an attorney’s thoughts, etc., but which is “derivative” and which reflects an attorney’s evaluations of a case, as opposed to information which is purely “evidentiary” and fully discoverable. See, Mack v. Superior Court (1968) 259 Cal.App.2d 7, 10.
In their reply, Plaintiffs object to some of Defendant’s evidence. These objections are not persuasive. The declarant appears to have personal knowledge sufficient to make the statements and provide a foundation for the documents referenced, based on the statement that he has such personal knowledge and the nature of his role with Defendant. In any case, neither the objections nor the evidence they attack changes the outcome of this motion.
The Court OVERRULES the objections but they do not alter the outcome of the motion.
Special Interrogatory No.1
The only special interrogatory at issue in the set is No. 1. This asks Defendant to provide the name and contact information for “the expert” referenced in Andrew Catell’s e-mail to Plaintiff on April 24, 2019 as having been engaged to conduct a valuation of the property to determine the insurance policy in 2016, as referenced in the attached e-mail.
Defendant objected on the bases of attorney-client privilege and work product, Evidence Code section 1152, the information is not in Defendant’s custody or control, other parties possess it and Plaintiff should seek it from them, it is not relevant, the “definitions” are not authorized, Defendant was not involved in the e-mail exchange. In the opposition, Defendant adds that it will not produce the report as evidence or call the expert as a witness at trial.
These objections are not persuasive. On the face of the discovery, the information sought is not within attorney-client privilege or work product because nothing indicates an attorney was involved, an attorney-client context, or litigation preparation in any way and instead it is solely part of the insurance application process at issue, the insurance brokerage having apparently hired the “expert” to help determine the value of the Property for determining the amount of insurance to provide. This also is not an expert hired for the litigation, so protection for information about such experts does not apply, because this is someone who was engaged in the underling transactions in which Plaintiffs sought insurance coverage. The e-mail mentioning the expert and report is from the claims management servicer acting as Defendant’s agent, indicating no attorney-client context, either, while both it and the fact that Defendant apparently engaged the “expert” indicate that Defendant possess the information. Defendant must, moreover, provide sufficient explanation showing that Defendant has made a reasonable attempt to locate the information. Evidence Code section 1152 does not apply because it governs offers to compromise whereas the information sought here relates to the evaluation of Plaintiffs’ Property for determining the amount of coverage in the context of Plaintiffs’ application for insurance. Plaintiffs complain that Defendant’s negligently relied on, or misrepresented the import of, the very report and “expert” information at issue in improperly valuating Plaintiffs’ Property, resulting in too little insurance to cover the losses. This information thus goes to the very heart of the lawsuit and is directly relevant to the core issues in this litigation.
The facts that Defendant has no intention of using the expert as a witness or introducing the report are immaterial here. This purported expert and the report go to the very heart of the alleged wrongdoing and Plaintiffs are thus entitled to obtain this information.
The Court GRANTS the motion as to the interrogatory.
Requests for Production
Request for Production No. 1
In the first request at issue, Plaintiffs seek the curriculum vitae or resume of the “expert” discussed in the special interrogatory. Defendant’s objections are largely the same as for the above interrogatory and the analysis is the same.
The Court GRANTS the motion as to this request.
Request for Production No.2
The second request at issue seeks “any DOCUMENTS RELATED TO” the report or evaluation issued by the expert discussed in the other discovery above. Defendant again posited the same objections. In large part the analysis is the same as for the interrogatory above and the objections unpersuasive for the same reasons. The only evident exception to that is that in this instance Defendant is potentially correct that some such documents may fall within attorney-client privilege or be protected work product or related to offers to compromise within Evidence Code section 1152, given the broader nature of this request. The request does not necessarily seek such documents, however, and to preserve such objections Defendant must provide a privilege log.
The Court GRANTS the motion as to this request, subject to Defendant being allowed to provide a privilege log to support the objections of attorney-client privilege, work product, or Evidence Code section 1152.
For compelling further responses, the Court shall impose monetary sanctions on the losing party unless that party acted with substantial justification, or other circumstances make sanctions unjust. Code of Civil Procedure sections 2023.030, 2030.300, 2031.31. In order to obtain sanctions, the moving party must state in the notice of motion that he is seeking sanctions, identify against whom he seeks the sanctions, and specify the kind of sanctions. Code of Civil Procedure section 2023.040. The sanctions are limited to the “reasonable expenses” related to the motion. Ghanooni v. Super Shuttle of Los Angeles (1993) 20 Cal.App.4th 256, 262.
Plaintiffs seek monetary sanctions for 15.8 spent plus 6 hours anticipated for reply and the hearing, at $450 an hour, plus the filing fee, which he claims was $90. Reilley Dec. ¶¶10-12. However, this amount of time, even with the time to meet and confer, appears unreasonably high, as does the hourly rate. Additionally, the Court may only include time actually spent. The actual motion fee is also only $60. Accordingly, reasonable sanctions would amount to a total of about 10 hours, including reply, at $350 an hour, plus the filing fee, resulting in a sum of $3,560.
8. SCV-266522, Integrated Community Development, LLC v. Balatti
Plaintiffs’ Motion to Compel Arbitration GRANTED with the modification that the Court orders all claims against all parties to be submitted to arbitration. The Court accordingly stays this litigation as to all parties. Should any outstanding claims remain against Balatti personally, which would not be subject to arbitration, it is possible that these may be litigated after the stay pending arbitration.
Plaintiffs complain that they entered into an agreement to buy from Defendants a vacant parcel of real property at 2905 Santa Rosa Avenue, Santa Rosa (“the Property”) to develop into affordable apartments but that Defendants intentionally concealed the presence of a storm drain pipe (“the Pipe”) hidden under the property and servicing Defendants’ adjacent shopping center. The Pipe impedes development of the Property and does not benefit it in any way. Plaintiffs allege that the sale has not been completed but they wish to complete it and they discovered the existence of the Pipe after the close of the due diligence period. They seek compensation for the costs associated with addressing the Pipe in their efforts to develop the Property. Plaintiffs allege that the Defendants are both sellers of the property but that Defendant Paul J. Balatti (“Balatti”) is also the principal and managing member of Defendant B&B Santa Rosa, LLC (“B&B”).
Plaintiffs now petition the Court to compel arbitration of their claims against only B&B, staying the litigation against B&B but not staying the litigation against Balatti. They note that Balatti as an individual is not a party to the arbitration agreement but is the agent of B&B, which is a party to the agreement.
Defendants oppose the petition, arguing that Plaintiffs improperly are seeking to proceed with both arbitration against B&B and the lawsuit against Balatti. They do not oppose arbitration itself but contend that Balatti also is entitled to have the claims involving him resolved through arbitration because he is involved as the agent of B&B, which did enter into the arbitration agreement. They therefore ask the Court to order all claims and all parties to arbitration or refuse to order arbitration and require all parties to resolve all claims through this court action.
Code of Civil Procedure sections 1281.2 and 1281.4 allow a party to an arbitration agreement to petition the court to compel arbitration and then to stay legal proceedings pending the outcome of the arbitration. Nathan v. French Am. Bilingual School (1969) 2 Cal.App.3d 279 states that generally it is “abuse of discretion not to stay proceedings and order arbitration unless record establishes waiver as matter of law.”
Once this Court, or another competent court with jurisdiction, has ordered the dispute to be submitted to arbitration, the court shall, upon application or motion, stay the pending litigation until the arbitration proceeding has been concluded. Code of Civil Procedure section 1281.4. Section 1281.4 states, in pertinent part, that if such a court “has ordered arbitration of a controversy which is an issue involved in an action or proceeding pending before” the court, then the court “shall, upon motion of a party …, stay the action or proceeding until an arbitration is had or until such earlier time as the court specifies.”
There is a strong public policy favoring arbitration. Marsch v. Williams (1994) 23 Cal.App.4th 238; United Firefighters of Los Angeles (1991) 231 Cal.App.3d 1576. Quite logically, however, there is no public policy in favor of arbitrating claims that the parties did not agree to arbitrate. United Public Employees v. City and County of San Francisco (1997) 53 Cal.App.4th 1021.
An arbitration provision may also cover both contract and tort claims. Merrick v. Writers’ Guild of America West (1982) 130 Cal.App.3d 212, 217-219; Vianna v. Doctors’ Management Co. (1994) 27 Cal.App.4th 1186, 1189-1190.
The Arbitration Agreement
All parties agree that Plaintiffs entered into an arbitration agreement with B&B which covers the sale contract and claims at issue. This is not in dispute.
Where Some Parties and Claims Are not Subject
to the Arbitration Agreement
The fact that one party, Balatti, is not a party to the arbitration agreement is the source of the primary dispute in this petition. As noted, Plaintiffs wish to compel arbitration of only the claims against B&B while letting the litigation proceed against Balatti but Defendants argue that the court should order either all claims to arbitration or none.
Under Code of Civil Procedure section 1281.2, if the court finds that the parties have entered into an arbitration agreement and the right to arbitration has not been waived and the agreement should not be revoked, then the court must order arbitration unless a party to the arbitration is also a party to a related pending court action. If that is the case, then under Code of Civil Procedure section 1281.2(c), the court may 1) refuse to enforce arbitration and order joinder in the court action; 2) order joinder as to only some issues; 3) order arbitration among the parties who have agreed and stay the pending court action; or 4) stay arbitration pending the outcome of the court action.
However, the court in Laswell v. AG Seal Beach, LLC (2010) 189 Cal.App.4th 1399, directly held that the presence of some non-arbitrable claims, specifically those under the Patients’ Bill of Rights, does not alone give the court discretion to deny arbitration.
Some case law also allows the court to compel certain parties who are not signatories to the arbitration provision, to arbitrate. For instance, principals or agents of a party may be bound on agency or contract principles. Harris v Superior Court (1986) 188 Cal.App.3d 475, 478 479 (an employee of defendant signatory provided services to plaintiff and forced to arbitrate); Berman v. Dean Witter & Co., Inc. (1975) 44 Cal.App.3d 999, 1004 (in dispute between husband and securities broker, where husband bought securities for wife, who signed arbitration agreement with broker, husband forced to arbitrate because acted as an agent for wife). See also, 2 Witkin, Summary of Cal. Law (9th Ed.1999 Supp.) Agency and Employment §§253, 268.
The court in Macaulay v. Norlander (1992) 12 Cal.App.4th 1 ordered arbitration when a brokerage firm requested it, even though the firm was not itself named in, or a party to, the agreement. The plaintiffs had entered into agreements with the firm’s employees and the court determined that the firm was a 3rd-party beneficiary.
Defendants also rely on Thomas v. Westlake (2017) 204 Cal.App.4th 605 to support their contention that the claims against Balatti should also be subject to arbitration. In Thomas, the trial court had denied defendants’ motion to compel arbitration on the basis that they were only agents of the party to the agreement and were not themselves parties to the agreement. The appellate court reversed, holding that the agents could also enforce the arbitration provision as to the claims against them and explaining, at 614,
There are … “exceptions to the general rule that a nonsignatory ... cannot invoke an agreement to arbitrate, without being a party to the arbitration agreement.” [Citation.] One such exception provides that when a plaintiff alleges a defendant acted as an agent of a party to an arbitration agreement, the defendant may enforce the agreement even though the defendant is not a party thereto.
Accordingly, it determined, “a plaintiff's allegations of an agency relationship among defendants is sufficient to allow the alleged agents to invoke the benefit of an arbitration agreement executed by their principal even though the agents are not parties to the agreement.”
This is the situation now facing this Court. Balatti is involved as the agent, managing member and principal of B&B. His conduct is intertwined with that of B&B and Plaintiffs allege the same wrongs and activity. Accordingly, Defendants are correct that the Court should either order all claims to arbitration or none. The Court could potentially rule either way but, given that there is no dispute that there is a binding arbitration agreement between Plaintiffs and B&B which covers the dispute, that the alleged conduct and duties of B&B and Balatti, and the resulting damage, are the same and intertwined, that Plaintiff wish to enforce the arbitration agreement at least in part, and that Defendants wish to enforce the arbitration agreement, the most appropriate result is to grant the petition by ordering all claims to arbitration.
In reply, Plaintiff argues that Balatti may be liable personally, for conduct beyond his role as B&B’s agent. This is a potentially valid argument but it is not clear from the face of pleadings and evidence presented, Plaintiff does not demonstrate that Balatti may have been involved in a personal capacity beyond his scope as B&B’s agent, and Plaintiff fails to address whether arbitration should cover such claims, anyway, given Balatti’s clear role, which even Plaintiff admits, as agent for B&B. Such potential claims in this litigation will be stayed pending arbitration.
The Court GRANTS the petition by ordering ALL claims to arbitration and staying this litigation in its entirety, pending arbitration.
Defendants are to prepare an order conforming with the order of the Court, submitting it to the opposing party for review five days prior to submitting it to the Court.