Jul 24, 2016



Wednesday, July 20, 2016, 3:00 p.m.

Courtroom 17 – Hon. Gary Nadler

3035 Cleveland Avenue, Suite 200, Santa Rosa


CourtCall is available for all Law & Motion appearances, EXCEPT parties in small claims cases and motions for claims of exemption which are mandatory appearances.   Please contact CourtCall directly at (888) 882-6878.


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 Judge Nadler’s Judicial Assistant by telephone at (707) 521-6725, and all other opposing parties of your intent to appear by 4:00 p.m. today, Tuesday, July 19, 2016.   Parties in small claims cases and motions for claims of exemption are exempt from this requirement.




1.  MCV-197992, Ford Motor Credit Company, LLC v. Scobey

Appearance required.



2.  MCV-235416, Discover Bank v. McDermand

Appearance required.



3.  SCV-255892, De La Riva v. Kaiser Foundation Health Plan, Inc.

Defendant’s demurrer is overruled.


Defendant’s motion to strike is denied.


The request for judicial notice is granted.


Plaintiff now adequately alleges that he was a “dependent adult” within the meaning of Welfare and Institutes Code section 15610.23.  These allegations include that severe depression limited his ability to function; “unremitting pain” impaired his ability to walk, and generally to physically do things for himself; large doses of pain medication limited his ability, mentally and physically, to do things; his AIDS-related problems render him weak; he was admitted to Defendants’ 24-hour health facility, the Kaiser hospital, and he was “totally dependent on [Defendants] to provide all counseling and advise and care and treatment.”  All of this facially appears to be sufficient both with respect to his ability to care for himself and with respect to being admitted to a 24-hour facility as defined in sections 1250, 1250.2, and 1250.3 of the Health and Safety Code. 


The allegations also adequately allege both “neglect” and recklessness, with callous disregard for his well-being and condition.  The allegations include conclusory statements and adjectives such as acting “intentionally” and “recklessly” but also state that Defendants knew that the surgery had a known risk of loss of blood flow, compounded by the insertion of a long pin in a toe, stretching an artery and reducing blood flow; and post-operation casting which also increased this risk if too tight.  Plaintiff further alleged that despite knowing that Plaintiff’s complaints over the phone could indicate lack of circulation or embolism, Defendants told Plaintiff only to use medication without investigating the possible problems; Defendants failed to schedule an appointment or investigate the causes; and Defendants abandoned Plaintiff by refusing to see him until 16 days after the operation; by the time Defendants did see Plaintiff, gangrene had set in but Defendants incorrectly told Plaintiff it was a blood blister and made no referral; only after family and friends told Plaintiff to seek immediate care did he go to Santa Rosa Memorial Hospital, where he was immediately properly diagnosed and treated.  Plaintiff now seems to have added sufficient allegations to demonstrate reckless behavior. 


Winn v. Pioneer (2016) 63 Cal.4th 148 was recently decided, and was addressed by both parties.  Plaintiff argues that Winn “distinguishes care in an ongoing institutional system, such as [Defendant] KAISER, as opposed to private individual doctors.”  Opposition, 3:10-12.  Plaintiff asserts that the doctors in Winn “were in a small, private medical group” and that although the “court found that the nature of that relationship was insufficient for the enhanced remedies to apply,” that relationship lacked “any institutional care [or] any inpatient … [or] ongoing care” as in this case.


Defendants argue that Winn “explicitly overruled Mack v. Soung to the extent that claims of neglect under the Act may be brought irrespective of the caretaking or custodial relationship ….”  Reply, 4:3-5.  The Supreme Court in Winn, at 155, made it clear that it was considering a narrow issue, expressly stating that it granted review to consider whether a claim of neglect under the Elder Abuse Act requires a caretaking or custodial relationship – where a person has assumed significant responsibility for attending to one or more of those basic needs of the elder or dependent adult that an able-bodied and fully competent adult would ordinarily be capable of managing without assistance.  It ruled that “it does,” and thus ruled that a claim of neglect requires such a custodial relationship.


The court repeated the long-clear distinction between two different types of claim of Elder Abuse, stating that a “plaintiff must prove, by clear and convincing evidence, that a defendant is liable for either physical abuse … or neglect ….”  Winn, 156, emphasis added.  It noted, as has long been clear, that the “abuse” must be done with “recklessness, oppression, fraud, or malice” but that the neglect only requires the “negligent failure” to exercise either the degree of care that would be expected of a person in a like position of having “care or custody of an elder or a dependent adult” or the degree of self-care expected of a person.  Winn, 156.  The court limited its review to the first definition of neglect, that based on the expectations of a reasonable person having care and custody of another, because “plaintiffs allege neglect arising in the context of medical care and not self-care ….”  The court went on to state that no provisions “flatly preclude the statute’s applicability to outpatient medical treatment” and that “[c]ertain in-home health care relationships … may satisfy the caretaking or custodial relationship requirement,” but that the ultimate “focus” is “on the nature and substance of the relationship” and that the relationship which the Act here requires “entails more than casual or limited interactions.”  Winn, 156, 158.  Thus, the court explained, “it is the defendant’s relationship with an elder or a dependent adult – not the defendant’s professional standing or expertise – that makes the defendant potentially liable for neglect.”  Winn, 158.


The Winn court also determined that the required relationship is not necessarily present “whenever the definition of ‘care custodian’ is met,” referring to the definition in Welfare and Institutions Code section 15610.17, explaining that someone meeting the definition of a “care custodian” only might have the requisite “care and custody” of an adult.  It ultimately concluded that the allegations did not demonstrate the required “care and custody” relationship because plaintiffs only showed that defendant treated decedent at some outpatient clinics and offered “no other explanation for why defendants’ intermittent, outpatient medical treatment forged a caretaking or custodial relationship ….”  Winn, 165.


Here, as the other Defendants before, Wiles attacked the Elder Abuse claim on the following grounds as set forth in her points and authorities: (1) Plaintiff fails to allege that he was a dependent adult; (2) Plaintiff fails to show neglect because nothing shows recklessness, oppression, fraud, or malice, and/or culpability greater than negligence; and (3) no facts show “abandonment.”  Aside from attacking any unclear claim of “abandonment,” all of Wiles’ arguments attack one of two elements: whether Plaintiff was a “dependent adult” and whether Wiles’ conduct was worse than mere negligence.  Wiles’ arguments fail to recognize the distinction between abuse involving recklessness on the one hand, and neglect on the other.  As addressed above, “neglect” involves a specific type of conduct based on care and is not necessarily tied to a medical provider or one exercising such skill, but instead requires a custodial relationship of some sort.  It does not, however, require recklessness or similarly egregious conduct.  The other types of abuse require conduct that is greater than negligence and must at least rise to the level of recklessness but does not require the same type of “custody and care” required for neglect.  Plaintiff is arguably asserting separate claims for neglect and reckless abuse. First, Winn is not really relevant to the claim of reckless abuse as distinct from “neglect.”  Winn, as explained, expressly stated that it dealt only with the kind of relationship it required to make a party potentially liable for neglect.  Plaintiff here alleges treatment and conduct resulting abuse that involved clearly what could be seen as egregious, reckless, oppressive conduct, for the reasons already discussed, and Winn touches on none of that.


Second, despite the parties again blurring the issues and analysis, Winn does not touch on the key point of contention here of whether Plaintiff was a “dependent adult.”  The discussion of the type of relationship that gives rise to the “care and custody” required for neglect does not go to the issue of whether one is a “dependent adult” even if the two involve certain common ideas.  Third, even to the extent that Plaintiff is claiming that the conduct was neglect, Plaintiff’s allegations do differ from those in Winn.  Here, Plaintiff alleges more than mere “intermittent” outpatient treatment, and instead alleges that he was admitted to the hospital, 24-hour care facility for the operation; Defendants thus have control and custody over Plaintiff and his care; Defendants knew that Plaintiff was suffering from severe pain and issues related to his treatment and surgery, Defendants knew that they should not release him, and yet Defendants knowingly chose to disregard Plaintiff’s condition and released him when they should not have done so.  Thus, although Defendants after releasing Plaintiff may have had the same sort of “care and custody” found in Winn to be inadequate to impose liability for neglect, here Plaintiff alleges that Defendants did initially have that care and custody and yet they callously and knowingly chose to end it.  A party having the sort of “care and custody” which Winn says is required for liability for neglect cannot avoid that liability by intentionally ending the relationship despite knowing of the problems that would cause injury and thus give rise to liability had they maintained the relationship.  In Winn, the Supreme Court, as explained above, made it very clear that the plaintiffs there had alleged only “intermittent, outpatient medical treatment” and had offered no other additional explanation.  Here, Plaintiff alleges otherwise.


Defendant Sharon Marie Wiles shall file an answer to the third amended complaint within 20 days.



4.  SCV-256275, Rivinius v. Lee

Defendant Franklin Lee argues that that there are new facts, law, or circumstances because after this court issued its ruling on April 25, 2016 allowing Plaintiff to file the second amended complaint, the appellate court stayed the execution of the order for victim restitution after Defendant appealed on the ground that it was unauthorized as a matter of law.  He also argues that it is unconstitutional, per the U.S. Supreme Court case of Luis v. United States (2016) 136 S.Ct. 1083.


This court agrees with Plaintiff that Luis v. United States is not new law as it was issued before the hearing on this motion and, moreover, Defendant fails to demonstrate that it presents anything actually “new” for purposes of this motion.


The stay of the restitution order, originally issued by Judge LaForge, is a new development and must be considered.  As such, the court must then determine whether reconsideration is warranted resulting in a modified order.


Plaintiff is persuasive that the subject stay has little or no bearing on the propriety of allowing Plaintiff leave to file the second amended complaint with the Uniform Fraudulent Transfer Act (“UFTA”) claims.  The stay was only issued pending Defendant’s appeal and has no bearing on the validity of any claims or issues.  Moreover, the stay and the issues it raises go only to the possible impropriety of the restitution order as issued, and the injunction on Defendant’s assets, but it does not change the fact that Plaintiff is an alleged creditor of Defendant with some valid claim to Defendant’s assets.  The appeal is unlikely to have any direct bearing on Plaintiff’s alleged claims to Defendant’s assets.  The order allowing the amendment in the second amended complaint to add the UFTA claim is merely a claim by a creditor against a debtor on the grounds that the debtor has fraudulently transferred away property to prevent it from being taken by the creditor.  It seems clear that the new facts or circumstances are certainly not “new” facts or circumstances having any direct bearing on the claims allowed in the second amended complaint. 


Finally, the court, in deciding a motion for leave to amend, should not normally consider the validity of an amendment or new cause of action or claim, and in any case cannot deny an amendment unless it is unequivocally clear that the amendment is entirely invalid.  See Kittredge Sports Co. v. Superior Court (1989) 213 Cal.App.3d 1045, 1048; California Casualty General Ins. Co. v. Superior Court (1985) 173 Cal.App.3d 274, 280-281. Thus, even if the new facts or circumstances were to have any possible material bearing on Plaintiff’s claims, it would be improper to bar the amendment to the second amended complaint and the UFTA claim merely because it might possibly be invalid, and which in any event is not shown here.


Defendants’ motion for reconsideration of order granting Plaintiff leave to file second amended complaint is denied with respect to changing this court’s order granting Plaintiff leave to file a second amended complaint. 


The court does grant reconsideration based on new facts or circumstances, but finds no basis for changing the order on the motion for leave to amend and thus denies the motion with respect to issuing a new or different order.  The court recognizes that there is presently a stay as to the restitution, and that this constitutes a new fact or circumstance. However, the changed circumstance here has no direct bearing on the validity of Plaintiff’s claims as creditor. The stay has even less direct bearing on the validity of the new claims added in the second amended complaint.  Even if it might have any such impact, the court, in deciding a motion for leave to amend, finds it improper to deny the leave to amend simply because the new fact or circumstance might possibly affect the validity of the amendment absent circumstances demonstrating that the amendment is, as a matter of law, invalid.



5.  SCV-256895, Holman v. Safeway, Inc.

Defendant’s motion for terminating sanctions and for monetary sanctions is granted.


Plaintiff sued Defendant on March 23, 2015.  The complaint was answered on November 19, 2015.  Defendant served a first set of form interrogatories and for production of documents on November 19, 2015.  No responses were received.  Defendant attempted to meet and confer, but there was no response from Plaintiff to these efforts.  Defendant filed a motion to compel on February 5, 2016 to which there is no opposition.  Various efforts to meet and confer were to no avail; Plaintiff never responded.  Defendant’s motion was granted on May 3, 2016.  The court's order required responses to be provided by June 2, 2016.  Despite numerous attempts by Defendant to contact Plaintiff, Plaintiff never communicated to Defendant.  Despite this instant motion, nothing has been received from Plaintiff in response to the various attempts by Defendant to obtain discovery.


With regard to the instant motion, there is no response from Plaintiff.


The court notes that Plaintiff was provided notice of the tentative ruling on May 3, 2016 and was provided correspondence by Defendant on multiple occasions which explain the court's ruling, Plaintiff's obligation, and the possible result of failing to respond.  Plaintiff certainly received notice on numerous occasions of the court's ruling and the potential effect of failing to respond.  It appears that Plaintiff does not intend to respond, and in light of circumstances the court finds this failure to be willful.  Plaintiff has taken no active part in the litigation since the Case Management Conference which occurred on December 17, 2015.  The court does not feel that further imposition of monetary sanctions would lead to Plaintiff responding.  As such, the court grants the motion for terminating sanctions.


The court awards additional monetary sanctions in the amount of $940, for 4 hours at $220 per hour, plus the filing fee.



6.  SCV-257911, Mancini v. Roux

Richard Sax’s motion to be relieved as counsel has been withdrawn by moving counsel.



7.  SCV-257947, Taylor v. Interstate Group, LLC

Plaintiff’s motion to compel Defendant’s further responses to Special Interrogatories, Set One, Nos. 1-2 is granted.


In this class-action complaint, Plaintiff moves for an order compelling Defendant to further respond to special interrogatories and for sanctions.  To be clear, the discovery has been served and Defendant has already responded.


A motion for change of venue was pending until it was denied on July 13, 2016.  In responding to this motion, Defendant argues that the motion was premature as Sonoma County lacked jurisdiction due to the pending venue transfer motion.  Defendant argues that by virtue of filing that motion for change of venue, this matter was automatically stayed.  A motion for transfer does operate as a stay of any other motion or proceeding then pending or thereafter filed.  See, for example, Pickwick Stages System v. Superior Court (1934) 138 Cal.App.448.  Although court proceedings were stayed pending determination of that motion, there was no bar on the provision of further responses to the pending discovery by Defendant.


Plaintiff seeks further responses to two special interrogatories, one seeking identification information of all Defendant’s managers, and the other the same information of all sales employees, in California for the relevant time period, needed for the purposes of determining class-certification issues.  Defendant objected to these on the grounds that they are conjunctive, making it the equivalent of more than 35 special interrogatories; class certification is not appropriate (without explanation); Plaintiff did not know or interact with other similar employees; and the information is private while notice must first be given to the employees in question.


The court first addresses objection on the grounds that the interrogatories are conjunctive, making them the equivalent of more than 35 special interrogatories.  There is no basis for this objection, and it borders on being frivolous.  Although no specially prepared interrogatory may contain “subparts” or be “compound, conjunctive, or disjunctive,” this was addressed in Clement v. Alegre (2009) 177 Cal.App.4th 1277 at 1291.  The court noted that the bar should be applicable where an interrogatory covers “more than a single subject,” citing questions that seek the responder’s “first name, middle name and last name, and … current address and telephone number” as an example of a question that contains “and” or similar conjunctions but covers a single subject, and thus not contrary to this rule.  Each interrogatory requests identification information for one group of employees or witnesses for the time in question.  This is not conjunctive such that the interrogatory is impermissible.  The interrogatories comport with the purpose of the discovery requirements.


Objection that the matter is not appropriate for class certification is without any basis whatsoever, for purposes of the discovery sought.  Discovery such as this is expressly conducted in order to determine if a class action is appropriate.  Defendant does, in opposition, argue that the information that is sought is not discoverable as a matter of right. Defendant contends that Mr. Taylor “does not have standing to pursue his claims against Interstate and that he is an inappropriate class representative due to his theft of company opportunity, property, and materials that led to his termination and the termination of other employees who engaged in those activities at his behest and with his blessing.”  Defendant alleges that Mr. Taylor's attorneys are seeking information concerning other employees in order to find a suitable class representative plaintiff to substitute in place of Mr. Taylor.  Plaintiff vehemently denies this.  Defendant argues that there is a potential for abuse of the class-action procedures.  Defendant argues that Mr. Taylor seeks to represent various classes or subclasses of which he is not a member: “this includes store managers from November 2014 to the present; sales associates from April 1, 2014 to the present; store managers anywhere but Fresno; and sales associates anywhere but Fresno.”  Defendant argues that since Mr. Taylor was terminated for theft, this factor is one which would not be shared with any other potential class members.


Plaintiff correctly notes that Defendant presented no evidence whatsoever to support its allegations that Mr. Taylor’s employment was terminated for theft.  In reply, Mr. Taylor produced a document showing that he was not terminated for theft, but instead, was terminated for failing to obtain payment for a tire he left in a customer’s trailer.


As shown by the pleadings, Mr. Taylor’s standing is alleged as to two classes which he seeks to represent: (1) Class A includes “all current and former nonexempt hourly-paid employees of Defendant in California from October 28, 2011 to the present; and (2) Class B: All current and former employees of Defendant in California from October 28, 2011 to the present.”  Plaintiff argues that his membership in these categories is admitted by the Defendant, and that he has standing to pursue this action.


Plaintiff argues that even if he were not a class member whom he seeks to represent, there would still be good cause for compelling precertification discovery due to prejudice that would be suffered by the putative class members if the class action was not allowed to continue.  This includes the potential bar of the statute of limitations; and a failure of potential class members to bring suit because of their being unaware that their legal rights have been violated.


Apart from the foregoing, the primary objection is that of employee privacy.  Before class certification, plaintiffs are entitled to conduct discovery into information needed to support certification.  Bartold v. Glendale Fed’l Bank (2000) 81 Cal.App.4th 816, 836.  A party may seek discovery of matters such as the names and addresses of potential class members, but the court must weigh the possible abuses and danger of such discovery with the need for the information under the circumstances.  Parris v. Superior Court (2003) 109 Cal.App.4th 285, 301.  In class-action discovery, potential class members’ possible affirmative desire to be identified is particularly strong given that identification may result in them receiving the benefits of the class action.  See Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360, 371-372; Puerto v. Superior Court (2008) 158 Cal.App.4th 1242, 1253.  Home addresses are considered protected private information.  Planned Parenthood Golden Gate v. Superior Court (2000) 83 Cal.App.4th 347, 358-359. A party must therefore “do more than satisfy the [CCP] section 2017 standard.”  Ibid., citing other authority.  However, such information may be disclosed where the public interest in obtaining the information outweighs privacy concerns.  Generally, the need to obtain witness identities is a strong interest and supported by public policy enshrined in section 2017.  See, e.g., Planned Parenthood, supra, at 359-360.  The information is thus typically discoverable.  The court in Planned Parenthood did find the addresses of members of Planned Parenthood to be non-discoverable under the circumstances simply because there the information directly impacted the right to freely associate in organizations, and because the party seeking the information failed to demonstrate any actual need for it.  Planned Parenthood, 358-364, 367-369.  Thus, there was a great, specific, interest in protecting the information and little interest in discovering it.


The Supreme Court in Pioneer Electronics (USA), Inc. v. Superior Court (2007) 40 Cal.4th 360 at 370-374, stated that in addressing privacy issues such as those here, the court should follow a 4-step analysis.  In Pioneer, a named plaintiff consumer sought information from the defendant company about potential class members who were other consumers of defendant’s goods.  The Supreme Court ruled that it was proper to allow the plaintiff to obtain contact information to communicate with the potential members, so long as the potential members were first given a chance to opt out, without first requiring the potential members to opt in.


The court, upon balance, is guided by the analysis in Pioneer.  The court will require the discovery and overrule the privacy objection in part, and grant it in part.  Defendant shall notify those from whom disclosure is sought of the discovery request; those receiving such notice shall be given a fair opportunity to object, or to opt out, of the potential class action. Belaire-West Landscape, Inc. v. Superior Court (2007) 149 Cal.App.4th 554, 562.


Plaintiff’s request for judicial notice filed on July 13, 2016 is denied.  The request is untimely.  In addition, the court would otherwise decline to take judicial notice, as the matters sought to be judicially noticed are inadmissible.


Both sides seek monetary sanctions.  Given the procedural posture and the uncertainties associated with that, and the assertion of privacy rights which must be balanced by the court, the requests for sanctions are denied as to both parties.  An award of sanctions would be unjust under the circumstances presented.  The court determines that, at the time the motion papers were filed, there was substantial justification for the positions taken by the parties.  The court does, however, note what appears to be an elevated level of acrimony as exhibited by the various supplemental papers filed by the parties.  The parties are reminded of their obligations to reasonably attempt to resolve issues here and in the future to the extent required by law.



8.  SCV-259034, Ramirez v. Wells Fargo Bank, N.A.

Plaintiff’s motion for preliminary injunction and temporary restraining order will be continued to a new date and time pursuant to the pending stipulation and order.  

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