Dec 11, 2017

TENTATIVE RULINGS                                         

LAW & MOTION CALENDAR                             

Wednesday, November 29, 2017, 3:00 p.m.            

Courtroom 17 – Hon. Peter Ottenweller

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 Ottenweller’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, November 28.  Parties in small claims cases and motions for claims of exemption are exempt from this requirement.


PLEASE NOTE:  The court no longer provides court reporters for motion hearings.  If they wish, the parties may confer and arrange for one of the parties to bring a privately retained certified shorthand reporter to serve in the matter.



1.     MCV 198673 Midland Funding v. Villalpando:

Plaintiff’s Motion to Vacate the Judgment and Dismiss the Action Without Prejudice is GRANTED.  Plaintiff shall prepare a proposed order and Dismissal consistent with this tentative ruling and deliver it to Department 17 within ten (10) days.  Once signed, the Sonoma County Court Clerk’s Office is Ordered to vacate the default and the judgment and dismiss the action without prejudice.  Plaintiff shall serve the Order and Dismissal on Defendant within five (5) days of its filing.


2.     MCV 239582 Ray Klein v. Trefry:

Plaintiff’s Motion to Vacate the Default Judgment is GRANTED.  Plaintiff shall prepare a proposed order consistent with this tentative ruling and deliver it to Department 17 chambers within ten (10) days.  Once signed, the Sonoma County Court Clerk’s Office is Ordered to vacate the default and judgment and reinstate the complaint.  Plaintiff shall serve the Order on Defendant within five (5) days of its filing.  Defendant shall respond to the Complaint within twenty-five (25) days of the filing of the signed Order.


3.     SCV 257566 Hogan v. DeAngelis:

Plaintiffs’ Motion to Tax Costs is Denied without prejudice.  The Plaintiffs attack only the claim for attorney’s fees but the opposing parties correctly point out that they have not yet sought any such fees.  Unless and until any party seeks attorney’s fees, there is nothing for the court to address and the motion is premature.  Plaintiffs may file a motion to strike or tax any claim for attorney’s fees once a party brings a motion seeking attorney’s fees.  The court is not ruling on the propriety of such fees, whether there is any basis for such fees, or whether the time for bringing a motion claiming such fees has yet passed.

Defendant shall prepare a proposed order consistent with this tentative ruling and deliver it to Department 17 within ten (10) days. 



4.     SCV 259707 Karraker-Vincent v. Santa Rosa Memorial:

            Motion for Leave to Amend Granted.

            Demurrers Overruled.

            Motion to Strike Denied.

            Motions to Compel Further Responses Granted in part, Denied in part. 


Original Complaint

The original complaint set forth Causes of Action (COAs) for 1) battery, 2) intentional concealment, and 3) breach of fiduciary duty, all against all Defendants.   The basic facts are the same as in all subsequent versions: Plaintiff was admitted to Santa Rosa Memorial Hospital (SRMH) on October 28, 2015 for back surgery and after complaining of pain for “two to three months post-surgery,” Plaintiff eventually got Santa Rosa Orthopaedic Medical Group (SROMG) to do an MRI, after which she was told “for the first time that her hip was broken.”  She claims that Defendants “made or allowed harmful physical contact with Plaintiff’s hip, without her consent and while she was unconscious” and that this is the cause of her injuries and basis of all the COAs.

First Amended Complaint (FAC)

The FAC, the version of the complaint attacked in the prior demurrer, includes the same facts and events but added a 4th COA for professional negligence.

Second Amended Complaint (SAC)

The SAC states COAs for 1) “professional negligence” in the delay of treating Plaintiff after the injuries, i.e., the broken hip, 2) “negligence” in treating Plaintiff and causing the broken hip in the first place; 3) intentional concealment of the fact that they had caused the injury; and 4) breach of fiduciary duty by failing to disclose the risk of possible hip fracture.  The first three are directed against all Defendants, COA 4 is directed against only Athanassious.  It dropped the battery COA and reorganized the COAs.  Again, the basic facts are the same.


            In the first motion, Plaintiff seeks leave to file a Third Amended Complaint (TAC).  She seeks court approval for the negligence COA which she added in the SAC and to dismiss the COAs for intentional concealment and breach of fiduciary duty.

Initially Defendants, particularly SROMG, argue that the motion to amend is defective because Plaintiff did not comply with the Rules of Court.

The “motion” must include a copy of the proposed amended complaint and state what allegations are being deleted or added, and “where, by page, paragraph, and line number, the… allegations are located….”  CRC 3.1324(a).  The moving party also must provide a declaration that explains the purpose and effect of the proposed amendments, why they are necessary and proper, when the facts leading to the changes were discovered, and why the party did not seek the amendment earlier.  CRC 3.1324(b). 

The motion is sufficient and Plaintiff provides all of this in the moving papers, reiterated for clarity in her reply papers.  She specifically sets forth in the attorney declaration and moving papers what the proposed changes are and why she is making them.  She provides a copy of the proposed TAC.

            Defendants further argue the new COA should not have been added after the demurrer, is actually professional negligence instead of merely negligence, and is untimely.

The 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, regardless of the title or what the complaint calls it.  CCP §430.10(e); Quelimane Co., Inc. v. Steward Title Guar. Co. (1998) 19 Cal.4th 26, 38; Weil&Brown, ¶¶7:39-7:41.  For example, if a party directs a general demurrer against a cause of action labelled “fraud” based on failure to state that cause of action, the demurrer will fail if the complaint sets forth a valid cause of action for malpractice.  Saunders v. Cariss (1990) 224 Cal.App.3d 905, 908; Weil&Brown ¶7:42.

A “cause of action” is defined by the “primary right” at issue.  “[T]he nature of the right sued upon, not... the form of the action or the relief” determines the actual cause of action and thus the applicable statutes of limitations.  Day v. Greene (1963) 59 Cal.2d 404, 411. 

As explained in Bay Cities Paving & Grading, Inc. v. Lawyers' Mut. Ins. Co. (1993) 5 Cal.4th 854, at 860:


“California has consistently applied the 'primary rights' theory, under which the invasion of one primary right gives rise to a single cause of action.” (Slater v. Blackwood [(1975)] 15 Cal.3d 791, 795; Big Boy Drilling Corp. v. Rankin (1931) 213 Cal. 646, 649 [3 P.2d 13]; 4 Witkin, Cal. Procedure (3d ed. 1985) Pleading, § 23, pp. 66-67.) Bay Cities had one primary right-the right to be free of negligence by its attorney in connection with the particular debt collection for which he was retained. He allegedly breached that right in two ways, but it nevertheless remained a single right.


Similarly, “[T]he 'cause of action' is based upon the harm suffered, as opposed to the particular theory asserted by the litigant. ... Even where there are multiple legal theories upon which recovery might be predicated, one injury gives rise to only one claim for relief.” Slater v. Blackwood (1975) 15 Cal.3d 791, 795.  The defendant's invasion of a single “primary right” gives rise to only a single cause of action.  Crowley v. Katleman (1994) 8 Ca.4th 666, 681-682; Hindin v. Rust (2004) 118 Cal.App.4th 1247, 1257.

            Conversely, each different type of interest invaded is a separate primary right, regardless of how the allegations or labelled or organized in the complaint and a complaint may state more than one “cause of action” and injury to more than one “primary right.”  See Crowley v. Katleman (1994) 8 Cal.4th 666, 681-682; Hindin v. Rust (2004) 118 Cal.App.4th 1247, 1257.  In other words, a “primary right” is the plaintiff's right to be free from the particular injury suffered such as bodily harm or property damage.  Crowley v. Katleman (1994) 8 Cal.4th 666, 681.

The proposed amendments basically confirm the allegations and COAs of the SAC, including the two identified negligence COAs, with the only exception being that they will dismiss and eliminate the COAs for concealment and breach of fiduciary duty. 

The only amendment at issue is the one seeking to confirm, the “second” COA for “negligence” in treating Plaintiff during surgery and causing the hip injury.

This amendment does not actually add anything new that was not already present in the FAC.  It merely re-words the allegations already present in the FAC.  Despite all parties’ apparent confusion over what constitutes a “cause of action,” how a cause of action is interpreted as being present in a complaint, the irrelevance of titles, and the nature of demurrers, the FAC did in fact have all the COAs which the SAC, and the proposed TAC, contain. 

The supposed new “cause of action” which Plaintiff calls “negligence,” is simply part of the original COA in the FAC for professional negligence.  Previously, there was just one COA for negligence and it covered both the hip injury in the first place, also raised in the battery COA, and the subsequent treatment of it.  Now, Plaintiff’s 1st COA for “professional negligence” is specifically for the subsequent treatment of the injury and the 2nd COA for “negligence” is for causing the hip injury.

            Whether the 1st and 2nd COAs are actually different causes of action depends on the transactions or injury involved, not the “type” of negligence.  Thus, if they are based on the same alleged wrongdoing and same invasion of primary right, they are the same cause of action.  Here, the COAs are arguably the same because based on the same basic allegations of wrongdoing in one series of related transactions and the primary right is to be free of injury from negligence.  Even if they could arguably be considered different causes of action because one is based apparently on negligently causing the fracture and the other on negligently treating the fracture, which could arguably be separate and discrete wrongs, the cause of action is still negligence and both were still pleaded in the prior allegations.

            The result is that Plaintiff is not adding anything new and did not improperly add a “new” COA to the complaint.  She merely clarified the labels and separated them out.  Calling one “negligence” as opposed to specifying that it is “professional” is an irrelevancy with which the court cannot concern itself aside from pointing out that all the negligence claims are “profession,” i.e., medical malpractice, for purposes of MICRA, that it’s still negligence and not a different cause of action, and that it was already pleaded factually. 

Timeliness of the 2nd COA

            The “new” COA is timely.  As explained above, the COA for negligence was clearly inherent in Plaintiff’s allegations from the start, including even in the battery COA pleaded against all Defendants starting in the original complaint and most obviously the 4th COA for professional negligence pleaded against all Defendants in the FAC.  The FAC was filed January 25, 2017, the last day to bring such a claim.  Plaintiff does set forth two different COAs for professional negligence, one for negligently causing the injury in the first place and one for negligently failing to diagnose and treat it afterwards.  That is the only distinction and Plaintiff had already pleaded both parts of the mistreatment in the FAC.  She just did not clearly identify them as two separate COAs. 


            Defendants argue its demurrer should be granted as Plaintiff made changes beyond this court’s previous leave to amend order.  Plaintiff did make changes to the complaint that could arguably be seen to go beyond the leave allowed in the demurrer order but this is asking the court to choose form over substance.  The first problem with Defendants’ arguments is that, as explained above, Plaintiff’s changes ultimately are not truly improper because they simply set forth a COA already inherent in the pleading, even if Plaintiff’s clumsy handling of the allegations and amendment make it seem like she was adding something new without court permission.  The second problem with Defendants’ arguments about the supposed procedural improprieties is that by bringing this motion to amend, Plaintiff is now trying to resolve the whole problem and the objections to her amendments in the SAC.  Thus, it does not matter, ultimately, whether she improperly made amendments or added a “new” COA since she is now seeking leave to do so.

            Plaintiff’s Motion for Leave to Amend is GRANTED.  Defendants’ Demurrers and Motions to Strike are DENIED.


Form Interrogatories

The form interrogatories at issue seek basic, standard information on the people who assisted in preparing the responses, witnesses, people interviewed, statements from witnesses, photos, videos, of the events, and the like; reports made; people who may have been involved; SRMH’s contentions regarding Plaintiff’s alleged injuries, documents on claims for the injuries, and then 17.1 seeking information about any RFA responses which was not an unqualified admission.

CCP section 2017 allows parties to discover the identity and location of possible witnesses, etc., while the court in Union Mut. Life Ins. Co. v. Sup.Ct. (1978) 80 Cal.App.3d 1, at 11, indicated that under the broad discovery rules, it is basically proper for a plaintiff to obtain discovery in order to determine  whether one should plead a cause of action, and this includes discovery of information about possible class members.  

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 Golden Gate v. Sup.Ct. (2000) 83 Cal.App.4th 347, at 359-360.  The information is thus typically discoverable, as demonstrated in its inclusion in form interrogatories and in comments in Planned Parenthood, supra, at 359-360, 364, 367, and Union Mut. Life Ins. Co., supra.

SRMH raises objections to all of the basic questions on people who assisted in preparing the responses, witnesses, people interviewed, statements from witnesses, photos, videos, of the events, and the like; reports made; people who may have been involved.  For some, it made only objections.  On a few it states simply “no” without explanation.  On two, it tells Plaintiff to see the people or information in Plaintiff’s medical records. Although some objections on attorney-client privilege or work product may apply to some of the information in question, this is not necessarily so and Plaintiff is basically entitled to the type of information on witnesses, sources of information, etc.  SRMH must provide a privilege log for any it claims is protected or seek in camera review.  The purported substantive responses are insufficient as provided and it is improper to tell Plaintiff merely to look at her medical records for the information, as explained above.

The responses to questions regarding SRMH’s contentions about the injury are incomplete and evasive.

The responses to 17.1 about the RFAs improperly do nothing other than refer to other objections or documents, stating only that the documents and witnesses are all to be found in Plaintiff’s medical records.

Plaintiff’s Motion to Compel Form is Interrogatories is GRANTED.

Special Interrogatories

In special interrogatories 1-2, Plaintiff asks SRMH to identify people involved, to which SRMH just responded that Plaintiff should see her own medical records.  This is improper, as noted above.

Question 3 asks when SRMH advised Plaintiff first that a hip fracture was a possible risk of the surgery; 4 asks when Plaintiff first complained of the hip pain to any agent or affiliate of SRMH; 5 asks when SRMH first learned of the hip injury; 6 asks if the injury was a complication of the surgery; 8 asks for identity of all who decide which health-care providers may use the facilities; 10-13 ask about lawsuits filed against SRMH.  SRMH objected to all of these, except #4, on various grounds but it also provided some substantive response to 4, 5, 6. The objections in each case are not persuasive and the substantive responses to #4 and 6 are evasive or incomplete.

The response to #5 seems appropriate since it asks SRMH when it first learned that Plaintiff had suffered a hip injury when at SRMH and it responded by stating when it learned of Plaintiff’s claim that she suffered such an injury, adding that it has no evidence of such an injury.  

Plaintiff’s Motion to Compel Special Interrogatories 1-4, 6-13 is GRANTED.  It is DENIED as to Number 5.


Plaintiff seeks a further response to RFA 11, asking SRMH to admit that it became aware in fall 2015 that Plaintiff “had injured her hip during her Fall, 2015 stay….”  SRMH objected and then denied that Plaintiff suffered a hip injury at all. This is a reasonable position and response but, as Plaintiff contends, SRMH does not actually respond to the request.  It could have responded as it did to special interrogatory #5 above but it did not.

Plaintiff’s Motion to Compel Further Response to RFA #11 is GRANTED.

Meet and confer efforts, although conducted late, were sufficient.  These motions clearly would have benefitted from the assistance of a discovery facilitator


Plaintiff’s requests for monetary sanctions are DENIED.  While many of SRMH’s responses are insufficient and its objections misplaced, the court finds SRMH did make a good faith attempt at responding to discovery.  If future discovery disputes arise, the court recommends the parties take their dispute to a discovery facilitator.

Plaintiff shall prepare a proposed order consistent with this tentative ruling and deliver it to Department 17 chambers within five (5) days.  SRMH shall provide further responses to written discovery within twenty-five (25) days of the filing of the Order.  Plaintiff shall file its TAC within five (5) days of the filing of the Order.  Defendant shall respond to the TAC within twenty-five (25) days of the filing of the TAC.


5.     SCV 259984 Blackwell v. Sonoma County:

The hearing on this motion is continued to the Law and Motion Calendar on January 10, 2018 at 3:00pm in Department 17.


6.     SCV 260175 Pineda v. Simpkins:

            Motion Granted for terminating sanctions.

            Defendant served Plaintiff with form interrogatories and a production request on March 16, 2017 and responses were due by April 20, 2017 but Plaintiff provided no responses.  Defendant then brought a motion to compel responses which this court granted on June 21, 2017.   According to the notice of entry of the order in the court file, Plaintiff’s attorney approved the order on the motion as to form and the notice of the order was served on Plaintiff by mail on July 21, 2017.  The minutes for the CMC of August 24, 2017 show that both parties’ attorneys were present and the minutes state “[d]iscovery is discussed on the record.”  According to Defendant’s attorney, he asked Plaintiff’s attorney at that CMC about complying with the order compelling responses, to which the latter stated that he would serve responses by the “upcoming Monday” and the court “cautioned” Plaintiff about the failure to comply.  Glaubiger Dec., ¶6. 

            Plaintiff has, as of September 18, 2017, still failed to provide responses.  Glaubiger Dec., ¶7.

Where a party “fails to obey” a court order compelling discovery responses, the party commits a misuse of the discovery process and the moving party may seek a number of sanctions. CCP §§2030.290, 2031.300, 2023.010, 2023.030; Weil&Brown, Cal.Prac. Guide: Civ.Pro.Before Trial ¶¶8:1203, 8:1205.[1]  The sanctions include issue sanctions establishing certain facts, terminating (or “doomsday”) sanctions striking pleadings, staying or dismissing actions, or entering defaults, and monetary sanctions for the expenses incurred in the motion and as a result of the failure to obey.  CCP §§2030.290, 2031.300, 2023.010, 2023.030; Weil&Brown ¶8:1205.  Monetary sanctions are limited to the reasonable expenses of the motion.  CCP section 2023.020; Ghanooni v. Super Shuttle of Los Angeles (1993) 20 Cal.App.4th 256, 262.

The court has discretion to impose any sanctions as may be just and may impose none or any combination of sanctions that seems warranted.  CCP §§2030.290, 2031.300, 2023.010, 2023.030.  This decision is subject to review only for abuse of discretion. Sauer v. Sup.Ct. (1987) 195 Cal.App.3d 213, 228. 

The court should consider a variety of factors as set forth in Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 796.  These include the time elapsed since the discovery was served; whether there were any extensions; the number propounded; the importance of the information; whether the responding party was aware of the duty to respond and had the ability to do so; the amount unanswered, whether the information was difficult to obtain, whether there were prior court orders that the party was unable to obey, whether more time would enable the responding party to reply, and whether less drastic sanctions are sufficient in the circumstances.  See Weil&Brown ¶8:1209.

The court should also not “stack” sanctions.  This means that the court cannot justify a severe sanction for a relatively minor violation by pointing to the offending party’s prior “history of delay and avoidance.”  Motown Record Corp. v. Sup.Ct. (1984) 155 Cal.App.3d 482, 491.  This is especially true where the offending party has already been sanctioned for the earlier violation.  Id.

The time since the discovery was first served is about 8 months.  More importantly, it has been about 5 months since the hearing on the motion to compel and 4 months since the entry of the order.

The discovery requests a broad range of basic, potentially, critical information in production requests and broad form interrogatories.

      Not only has Defendant shown that he served the order on Plaintiff, but other evidence such as Plaintiff’s attorney approving the order as to form and the evidence from the August CMC, where Plaintiff promised to respond as ordered, directly indicate that Plaintiff knew of the order and the need to comply.

Plaintiff has provided no responsive material.

All of the above factors support terminating sanctions.

Defendant shall prepare a proposed order consistent with this tentative ruling, or a Dismissal, and deliver it to Department 17 chambers within five (5) days.  The Order or Dismissal must be served on the Plaintiff and her attorney within five (5) days of the filing of the Order or Dismissal.



7.     SCV 260297 Cesena v. City of Santa Rosa:

Appearances are required.

            The Demurrers are Sustained with leave to amend.

            The Motion to Strike is Granted with leave to amend.

            The Court’s Case Management System (Odyssey) does not show that Plaintiff attached any causes of action to its First Amended Complaint.

            However, Odyssey does show that Plaintiff filed three (3) causes of action in his original complaint.  It is unclear whether Plaintiff did file the same three causes of action with his First Amended Complaint.  Assuming that he did, the court finds the complaint contains no substantive allegations.  It identifies no causes of action, pleads no facts, provides nothing to show what Plaintiff is claiming happened, how, or why.  Plaintiff also pleads no statutory basis for liability.  The complaint therefore fails to state facts sufficient to constitute a cause of action and is uncertain.

            Defendant shall prepare a proposed order consistent with this tentative ruling and deliver it to Department 17 chambers within five (5) days.  Defendant shall serve the Order on Plaintiff within five (5) days of its filing. Plaintiff has leave to amend within twenty (20) days of the filing of the Order.


8.     SCV 260553 Lyster v. Sterba:

Under CCP section 473(a)(1), amendments are left to the sound discretion of the trial court.  Judicial policy favors amendment to allow resolution of all potential claims and disputes between parties, so such motions are examined liberally.  Nestlé v. Santa Monica (1972) 6 Cal.3d 920, 939.  As long as the motion is “timely” and will not prejudice a party, it is normally an abuse of discretion to refuse to allow amendment if the denial will deprive a party of a meritorious claim or defense.  Morgan v. Sup.Ct. (1959) 172 Cal.App.2d 527, 530; Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596.         

Normally delay alone is not a sufficient reason to deny amendment, unless the delay has resulted in prejudice to another party.  Hirsa v. Sup.Ct. (Vickers) (1981) 118 Cal.App.3d 486, 490.  Prejudice exists where the amendment would require delaying trial so as to cause a loss of critical evidence, added costs of preparation, increased discovery burdens, and similar problems.  Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 486-488.  There is in fact a strong policy in favor of granting leave to amend.  Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939.  The policy of liberally allowing parties to amend pleadings applies to allowing them to amend at any time up to and including trial, absent prejudice.  Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761.

A party may add a new defendant to substitute for a “Doe” after learning the new party’s true identity.  CCP section 474.  If the SOL has not yet run, a party may not challenge an attempt to add a Doe on the ground that the plaintiff was not truly ignorant of the Doe’s identity.  Davis. v. Marin (2000) 80 Cal.App.4th 380, 387.

Plaintiff explains that the SOL against Richard has not yet run and, in any case, Plaintiff’s attorney did not discover until July 2017, after filing the original complaint and two months before filing this motion, that Richard was Olga’s husband and had an interest in the Property.  This is sufficient.

There is no apparent threat of prejudice or delay of any sort.  Plaintiff filed this motion only 5 months after filing this lawsuit and only 2 months after learning of Richard’s involvement.  Moreover, there is no trial date set, no other motions have taken place, and according to Defendant’s own CMC, discovery still has yet to take place. 

            Plaintiff shall prepare a proposed order consistent with this tentative ruling and deliver it to Department 17 chambers within five (5) days.

            Plaintiff shall file her First Amended Complaint within five (5) days of the signed Order.


9.     SCV 261330 In Re Ricky Morgan:

This motion was continued from November 1, 2017 because the moving party failed to provide the proper proof of service.  The moving party has failed to cure this defect.  The Petition is Denied, without prejudice.  The moving party shall prepare a proposed order consistent with this tentative ruling and deliver it to Department 17 chambers within ten (10) days.


[1]A dispute exists over whether the propounding party must show either simple “unintentional” failure to obey, or “willful” disobedience.  “Willful” disobedience is clearly needed to find a party in contempt, but not necessarily required for other sanctions. See Weil&Brown ¶¶8:1203-8:1203.2, 8:1205.

© 2017 Superior Court of Sonoma County