Oct 26, 2016



Wednesday, October 26, 2016, 3:00 p.m.

Courtroom 17 – Hon. William C. Harrison for the 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, October 25, 2016.   Parties in small claims cases and motions for claims of exemption are exempt from this requirement.





1.  MCV-236134, Collectronics, Inc. v. Farvardin

Plaintiff’s Motion for Appointment of a Receiver and to Appoint Michael Brewer as Receiver is GRANTED.



2.  SCV-255945, Evans v. Anglada

DROPPED; dismissal filed 10/6/16.



3.  SCV-256600, Gmeiner v. Orthofix, Inc.

Plaintiffs’ Motion to Compel Defendants Orthofix, Inc. and Water Street Healthcare Partners LLC’s Responses to Request for Production of Documents and Special Interrogatories, and Request for Sanctions is GRANTED IN FULL.  Sanctions of $2,000 awarded to Plaintiffs. 


The interrogatories and production requests all on their face seek information directly relevant to the issue of personal jurisdiction, including contacts with California and the interrelationship of the parties and are thus within the scope of the discovery which this court has allowed.  The items are clear and unambiguous.  The time scope is reasonable given that the issue in this discovery is not the events surrounding Plaintiffs’ claims and injury but the nature, duration, and extent of contacts with California.  Whether the items are “duplicative” is not, in of itself, a valid objection, particularly since nothing on their face indicates that they necessarily are “duplicative,” the responses do not explain why or how they are “duplicative,” and the responses raise this same objection to every item, none of which Defendants answered with a meaningful, substantive response.  The reference to Defendants’ declarations is inadequate as a response.  Plaintiffs met and conferred sufficiently and the court notes that Plaintiffs cooperatively provided extensions to the deadline for responding while in the end Defendants provided only repeated, uniform boilerplate objections and responses.



4.  SCV-257209, Martin v. Safeway Stores

ABM Onsite Services – West, Inc.’s Motion for Summary Judgment or in the Alternative Summary Adjudication Against Plaintiff Christina Martin is DENIED.


ABM Onsite Services – West, Inc.’s Motion for Summary Judgment or in the Alternative Summary Adjudication Against Cross-Complainant Safeway, Inc. is DENIED.


Safeway’s objections are SUSTAINED but the objections do not affect the outcome of the motion and the court would reach the same outcome even if the court were to overrule the objections.


Moving party’s objections are OVERRULED.


On both motions the arguments, issues, facts, and evidence are substantially the same.  ABM first argues that it cannot be liable for premises liability because it did not lease, own, operate, control or occupy the property or the Safeway store and did not enter into the contract to maintain the floors until the year after the incident.  However, ABM fails to meet its burden on this issue as its own evidence indicates that it entered into the contract in January 2012 and was in fact conducting the cleaning and maintenance work on the day of the incident, and that it therefore had “control” over the condition of the floor and a duty to maintain it in a safe condition.


Civil Code section 1714 states that everyone is responsible for injuries resulting from a lack of his or her exercise of ordinary care.  A possessor of land owes a duty to invitees to make property reasonably safe for the intended use and to warn of latent or concealed dangers, and guard against such dangers through reasonable inspection.  Beauchamp v. Los Gatos Golf Course (1969) 273 Cal.App.2d 20, 27.  There may be no duty to specifically warn where the danger is clearly obvious.  Ibid., 31-32.  However, if it is foreseeable that a danger, even if obvious, may well cause injury, such as when the invitees will by necessity encounter the danger, there may be a duty to remedy the danger.  Osborn v. Mission Ready Mix (1990) 224 Cal.App.3d 104, 122.  Premises liability applies to one who either owns, possesses, or controls the premises in some way.  See, e.g., Isaacs v. Huntington Memorial Hosp. (1985) 38 Cal.3d 112, 134.  This applies to one who has a duty to maintain the area even if not the owner or occupier of the property.  Jones v. Deeter (1984) 152 Cal.App.3d 798 (property owner may be liable for dangerous condition on adjacent sidewalk and parkway even if owner does not own the sidewalk because owner has a duty to maintain it, at the same time the city may be liable if the condition was caused by trees which the city maintained); Alcarez v. Vece (1997) 14 Cal.4th 1149, 1162; Morehouse v. Taubman Co. (1970) 5 Cal.App.3d 548.  Thus, one who exercises control over property, even if not the owner or occupier, has a duty to maintain it free of dangerous conditions.


Ultimately, as the court explained in Brooks v. Eugene Burger Management Corp. (1989) 215 Cal. App. 3d 1611, at 1619, “[p]remises liability is a form of negligence” and nothing more.  The elements for negligence are, of course, defendant owed a legal duty to plaintiff to use due care, defendant breached that duty, actual and proximate causation, and resulting damage to plaintiff.  See County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318.


Naturally, a party may have a duty as a result of contract and negligent performance of that duty causing injury may be a basis for negligence liability.  Eads v. Marks (1952) 39 Cal.2d 807, 810; North Amer. Chemical Co. v. Sup. Ct. (1997) 59 Cal.App.4th 764, 773.


ABM’s own evidence indicates that it may have had and breached a duty, and thus actually and proximately caused the injury.  ABM claims that it did not own, occupy, or control the property, but its own evidence demonstrates that it had a contractual duty to maintain the floors, including a nightly duty to clean them and a periodic duty to refinish the floors, apparently by stripping them and applying new finish, with concomitant duties to keep the area safe and free of debris or the like when working and not to cause dangerous conditions.  Facts 1-4; Cahn Dec., ¶¶ 3-6, Ex. A; Rosenblatt Dec., Exs. G, D (Tippet Depo.), 51-55. 


Finally, ABM’s evidence, the contract at Exhibit A, specifically shows that it had the duty to clean and maintain the floor starting in the year prior to the incident and extending through and after the time of the incident.  Facts 1-4; Cahn Dec., ¶¶  3-6, Ex. A.  ABM asserts that it did not take on the contractual duty until after the incident but the contract on which ABM relies demonstrates the contrary.  Despite the difference in name between the moving party and the party to the contract, ABM’s evidence and arguments present evidence and admissions that the entities are the same or that any liability of the party to the contract, ABM Janitorial, Inc., belongs to the moving party, ABM Onsite Services – West, Inc., apparently a successor entity or the same entity with a new name.  Nothing demonstrates the contrary.  


ABM next argues that Plaintiff only pleads premises liability and not negligence or another cause of action.  As noted above, however, premises liability is nothing more than negligence in a specific context.  Moreover, regardless of the ambit of “premises liability” and whether it could apply to a company hired to maintain premises, which the court finds it does, the fact is that Plaintiff’s complaint clearly pleads the elements of negligence, alleging a duty to maintain the floors in a clean and safe condition, breach of that duty, and injury resulting.  Finally, Plaintiff did mark the box for general negligence on her form complaint.


The court notes that this argument, or “issue,” does not really seek summary adjudication as it is based entirely on the pleadings, rather than the facts.  A party may do this but a motion for summary judgment or adjudication based on the pleadings alone instead of evidence may be treated, and granted, as a motion for judgment on the pleadings.  White v. County of Orange (1985) 166 Cal.App.3d 566, 569.


A motion for judgment on the pleadings is basically the same as a general demurrer but is brought after the time to bring a demurrer has expired.  Code of Civil Procedure section 438; Lance Camper Mfg. Corp. v. Republic Indem. Co. of America (1996) 44 Cal.App.4th 194, 198.  The grounds are thus limited to lack of subject-matter jurisdiction or failure to state facts sufficient to constitute a cause of action.  Code of Civil Procedure section 438(c). 


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.  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.


Finally, ABM argues that it owed no duty and did not cause the hazardous conditions because it did not enter into the contract to maintain the floors until after the incident while its nightly workers did not arrive to do their cleaning until a few minutes after the incident and its workers were not scheduled to refinish the floors until some days after the incident.


However, ABM’s own evidence defeats it again.  As already discussed, although ABM claims that it did not enter into the contract to maintain and clean the floors until a year after the incident, its own evidence shows that it entered into the contract the year before the incident and the contract continued to operate until at least the year after the incident while ABM also shows that its workers were in fact working at Safeway that night because it states that its employees showed up two minutes after the incident to perform their nightly cleaning.  ABM also states that its employees were supposed to have arrived and started working about 40 minutes before it claims the incident took place.  Its evidence that the incident took place before its employees arrived is also equivocal and thus insufficient to demonstrate that its employees actually started working after the incident.  In support of its claim as to when Plaintiff was injured, it relies solely on a video still of a woman near the door of the store.  Even assuming that the woman in the image is Plaintiff, which is not even established properly, all this does is show that she was near the door.  It does not, as ABM claims, show that she was leaving the store at the time, much less that she did not then return and suffer the injury afterwards.  Moreover, ABM’s only evidence as to when its workers arrived is the evidence of when they “clocked in” and the fact that they were “supposed” to clock in before working.  The court finds that while this evidence may support the finding that the workers only started working after clocking in, it does not compel such a conclusion, making it insufficient to establish this fact.


In any case, the opposing parties provide critical evidence that raises, or rather highlights, triable material factual issues.  The court notes that the opposing parties need not even reach this point since ABM’s own evidence is, even without opposition, insufficient to meet its burden on any issue or cause of action.


Plaintiff shows that ABM’s workers were already at the Safeway store before and when Plaintiff was injured, showing that ABM’s workers were in fact refinishing the floor at the time and that they appeared to have allowed a slippery puddle of fluid to accumulate on the floor, causing Plaintiff’s fall.  Facts 35, 38-39; Martin Dec.; Grasso Depo.; Grasso Dec.  Safeway’s manager, Grasso, noted the workers, who were not Safeway employees, working on and apparently refinishing the floor at the time of the incident and a puddle of liquid on the floor.


Safeway, for its part, raises similar factual points, again based on the testimony of Plaintiff and Safeway’s manager, Grasso, set forth in declarations and attached deposition testimony.  It notes that the contract ran from January 2012 to January 2014, encompassing the time of the incident (facts 4, 23); the contract requires ABM to maintain, and control, the floor and its condition (facts 8, 27); ABM’s employees were to keep the area clean and free of debris, etc. (fact 22); the Safeway manager saw the ABM employees working at the store, and refinishing the floor, before and during the incident, regardless of when they clocked in (facts 30-39); the video still of Plaintiff is inconclusive since it merely shows Plaintiff near the Safeway door and the time shown on the video is typically not fully accurate and is typically off by several minutes (fact 33).  Safeway provides its own additional facts which repeat these in an additional separate statement, with further details showing that the manager saw the puddle on the floor near the incident site and near where ABM’s employees were working.



5.  SCV-257846, Stabile v. County of Sonoma

Defendant County of Sonoma’s Motion for Order to Release Copies of and/or Reproductions of Photographs and/or Video Recordings of Body is DENIED.


The moving party relies solely on Code of Civil Procedure section 129(a)(1), which allows dissemination “[f]or use in a criminal action or proceeding in this state that relates to the death of that person.”  This is not a criminal action or proceeding.  The moving party does not rely on subdivision (a)(2), which allows dissemination “[a]s a court of this state permits, by order after good cause has been shown ….”  It also provides no analysis or evidence that could support a finding of good cause.  The court notes that the language of the statute taken as a whole indicates that (a)(1) indeed only applies to criminal actions and criminal proceedings or the additional basis for “good cause” would likely be unnecessary.  It also indicates that under (a)(1) such dissemination is automatically allowed, without court order.


The order is without prejudice to the moving party seeking the same relief on a showing of good cause in accord with subdivision (a)(2).



6.  SCV-257963, Pham v. Wetch

DROPPED from calendar at the request of counsel for moving party.



7.  SCV-258475, Treanor v. Spiers

Plaintiff’s Motion to Strike Improper Allegations, Request for Attorney’s Fees and Punitive Damages From Defendant’s Cross-Complaint is GRANTED IN PART AND DENIED IN PART.  The motion is granted, with leave to amend, as to the claim for attorney’s fees and the allegations, referenced in points 1 and 2 of the motion, in cross-complaint paragraphs 21 and 22, that Cross-Defendant is attempting to use the litigation to put pressure on, and coerce, Cross-Complainant. 


The cross-complaint provides and explains no basis, factual or legal, for attorney’s fees.  The allegations that the litigation is an attempt to coerce Cross-Complainant are, as pleaded, irrelevant and improper, as they seem only to relate potentially to possible but unstated causes of action for malicious prosecution or abuse of process or possibly another as yet unpleaded, unidentified cause of action.  The allegations as pleaded also appear to be an improper attempt to circumvent the application of the special motion to strike under Code of Civil Procedure section 425.16 and the communication or litigation privilege under Civil Code section 47 by trying to impose liability on Cross-Defendant for engaging in litigation without actually presenting any cause of action or claim or legal theory for such a contention.  While such allegations could in theory be proper and relevant, in the context of the allegations presented they are not.  The court expressly notes that this ruling is not only with leave to amend but is without prejudice to Cross-Complainant raising these such allegations as relevant support for a cause of action should he be willing and able to do so.


The cross-complaint sufficiently alleges intentional, malicious, oppressive, and fraudulent conduct that supports punitive damages, however.  The court notes that the basic and overall nature of the conduct alleged in the cross-complaint is largely the same as the conduct which Plaintiff/Cross-Defendant alleges in his own complaint against Defendant/Cross-Complainant, and for which Plaintiff also seeks punitive damages.


Cross-Complainant has leave to amend within 20 days of the service of the notice of entry of this order.  Cross-Defendant is to serve the notice of entry of this order within 5 days of this order.



8.  SCV-258633, The 26th Corp v. PNC Mortgage

Plaintiff’s Motion for Preliminary Injunction is DENIED.  Plaintiff fails to demonstrate threat of irreparable injury because its interest in the property appears to be solely monetary.



9.  SCV-258694, Hamilton v. Hamilton

DROPPED; notice of stay of proceedings filed 10/12/16



© 2016 Superior Court of Sonoma County