Dec 03, 2016

TENTATIVE RULINGS
LAW & MOTION CALENDAR
WEDNESDAY, NOVEMBER 30, 2016, 3:00 p.m.
Courtroom 18 – Hon. René Auguste Chouteau
3055 Cleveland Avenue, 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 the Court by telephone at (707) 521-6547, and all other opposing parties of your intent to appear by 4:00 p.m. today, Tuesday, November 29, 2016.  Parties in small claims cases and motions for claims of exemption are exempt from this requirement.

1. SCV-256594; Adams v. Healdsburg Primary Care

Defendant Adventist Health Physicians Network’s unopposed motion for summary judgment is granted.  Defendant is entitled to judgment as a matter of law because it has shown plaintiff cannot establish that defendant owed any duty of care to plaintiff.  Specifically, defendant did not provide plaintiff with any medical treatment and did not employ any of the physicians or other healthcare providers identified in plaintiff’s complaint.  (See Declaration of Hawkins.)

                                                    

Defendant shall submit an order consistent with this ruling.

 

 

2. SCV-256907; Lewis v. Ecosmart

Motion for Leave to Amend Cross Complaint is continued to January 6, 2017 at 3:00 p.m. in Department #18 per Stipulation and Order of the parties.

 

 

3. SCV-257328; Freitas v. Wells Fargo

Plaintiff’s counsel’s motion to be relieved as counsel is dropped.  A substitution of attorney was filed on October 20, 2016.

 

Defendants’ unopposed motion to compel plaintiff’s attendance at deposition is granted.

 

Plaintiff shall also pay defendants $610 in sanctions within 30 days of notice of entry of this order.

 

Defendants shall submit an order consistent with this ruling.

 

 

4. SCV-259002; Medeiros v. Macias

Defendant Abel Macias’s demurrer is overruled; defendants Avelina Macias’s and Joe Bhai’s demurrers are sustained with leave to amend; and defendant Avelina Macias’s motion to strike is granted in part.

 

Plaintiff alleges Abel Macias (“Abel”), Abel’s grandmother Avelina Macias (“Avelina”) and Abel’s friend Joe Bhai (“Joe”) are liable for negligence (1st cause of action) and premises liability (2nd cause of action).  The allegations stem from a party held at a house owned by Avelina, where Abel resided.  Plaintiff’s minor son was shot and killed by gang members attending the party.  Plaintiff also alleges causes of action for assault and battery and intentional infliction of emotional distress against two of the three gang members who allegedly shot her son.

 

The issue raised by the three demurrers to the first and second causes of action is whether moving defendants owed a duty of care to decedent Nathan Torres (“Nathan”).

 

Defendant Abel Macias’s Demurrer

 

Plaintiff has adequately alleged that Abel Macias owed a duty.

 

“A defendant may owe an affirmative duty to protect another from the conduct of third parties if he or she has a ‘special relationship’ with the other person.”  (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 235.)  “The courts in this state have held that an adult who invites a minor into his or her home assumes a special relationship with that youngster based on the minor's vulnerability to third party misconduct and dependence on the adult for protection from risks of harm while in the home.”  (Romero v. Superior Court (2001) 89 Cal.App.4th 1068, 1080–81.) 

 

Plaintiff alleges Nathan, a minor, was an invited guest to Abel’s 21st birthday party at the house where Abel lived.  (Complaint, ¶26.)  Therefore, plaintiff has adequately alleged facts supporting the existence of a special relationship between Nathan and Abel.

 

“[D]espite that special relationship, the existence of a duty still requires that the harm be reasonably foreseeable, which requires that the defendant have actual knowledge of the assaultive propensities of the assailant.”  (Margaret W. v. Kelley R. (2006) 139 Cal.App.4th 141, 153.)  

As explained in Morris v. De La Torre (2005) 36 Cal.4th 260:

 

[F]oreseeability analysis in a case such as this—involving a proprietor's duty to respond reasonably to criminal conduct that is imminent or even ongoing in his or her presence—contrasts fundamentally with the type of foreseeability at issue in cases such as Ann M., which involve a proprietor's duty to take preventative measures to guard against possible future criminal conduct.  When, as in Taylor, supra, 65 Cal.2d 114, 123–125, 52 Cal.Rptr. 561, 416 P.2d 793, Delgado, supra, 36 Cal.4th at pages 245–246, 30 Cal.Rptr.3d 145, 113 P.3d 1159, or Johnston, supra, 610 So.2d 1119, 1121–1122, assaultive conduct is imminent—or when, as in the present case, it is actually occurring in plain view—“it requires no mastery of metaphysical philosophy or economic risk analysis to appreciate the strong possibility of serious injury” to persons against whom such imminent or ongoing criminal conduct is aimed.  (Marois v. Royal Investigation & Patrol, Inc. (1984) 162 Cal.App.3d 193, 202, 208 Cal.Rptr. 384.)  Defendant's employees, like the establishments' employees in Taylor, Delgado, and Johnston, readily could foresee the immediate danger posed to plaintiff and his companions.  The question posed in the present case is whether those employees (as agents of defendant) owed any duty to plaintiff to take reasonable action for his protection at some point during that ongoing conduct.

 

(Morris v. De La Torre, supra, 36 Cal.4th at p. 271.)

 

Although Morris involved a business proprietor’s duty, the analysis is equally applicable here.  “Once a special relationship is established, the same tests apply whether the relationship is based on a business-patron or residential host-guest relationship.” (Margaret W. v. Kelley R., supra, 139 Cal.App.4th 141at p. 155, fn. 17.)

In this case, plaintiff alleges facts demonstrating ongoing criminal conduct occurring at the party in the presence of Abel  (Complaint, ¶¶28, 29-31, 42) and that Abel “did not take reasonably prudent steps under the circumstances to reduce the risk of injury or death to invited guests such as Nathan” (Complaint, ¶45).  Specifically, Abel did not contact police or warn Nathan of the risk of injury or death.  (Complaint, ¶45.)

 

“[P]lacing a 911 call is a well recognized and generally minimally burdensome method of seeking assistance…we find that as a general matter a proprietor's special-relationship-based duty to its patrons or invitees includes an obligation to make such a call, or to take other similar minimal measures.”  (Morris v. De La Torre, supra, 36 Cal.4th at p. 277.) 

 

Accordingly, plaintiff has alleged that Abel had a duty to undertake minimal measures in order to protect plaintiff once the criminal conduct began and that he failed to do so. Therefore, plaintiff has stated causes of action for negligence and premises liability against Abel and the demurrer is overruled.

Plaintiff shall submit an order consistent with this ruling.

Defendant Avelina Macias’s Demurrer and Motion to Strike

Plaintiff’s allegations regarding defendant Avelina Macias’s duty are insufficient as currently plead. 

Plaintiff has not alleged any facts demonstrating that a special relationship existed between Avelina and Nathan. Avelina did not invite 15-year-old Nathan to the party. Therefore, she did not have an affirmative duty to protect Nathan on that basis. (Romero v. Superior Court (2001) 89 Cal.App.4th 1068, 1080–81.)  Plaintiff has not alleged any other basis for a special relationship.

 

Nor has plaintiff alleged facts showing misfeasance from which a duty of ordinary care can be imposed.  “A legal duty may arise from affirmative acts ‘where the defendant, through his or her own action (misfeasance) has made the plaintiff's position worse and has created a foreseeable risk of harm from the third person.  In such cases the question of duty is governed by the standards of ordinary care.’ [Citations.]” (Melton v. Boustred (2010) 183 Cal.App.4th 521, 531, citations omitted.)  “[I]n the case of criminal conduct by a third party, an extraordinarily high degree of foreseeability is required to impose a duty on the landowner, in part because ‘it is difficult if not impossible in today's society to predict when a criminal might strike.’”  (Id. at p. 532, citation omitted.)

 

Here, Avelina was not present at the party.  There are no allegations that Avelina invited the defendant gang members or motivated the criminal conduct.  Moreover, there are no facts demonstrating that there were prior similar gang violence incidents at the house, or facts demonstrating that Avelina must have known that the defendant gang members would attend the party and that they would engage in gun violence.  The allegations regarding Avelina’s actual knowledge are simply too generalized to satisfy the requirements of heightened foreseeability.  Plaintiff’s argument in Footnote 2 of the opposition that Abel’s knowledge is imputed to Avelina under the theory that Abel was Avelina’s agent is unsupported by the authority cited.

 

It is insufficient under Melton for plaintiff to base Avelina’s liability on the theory that she created the peril merely by allowing a house she owned to be used for the party – even when it was conceivable that alcohol and drugs would be consumed and some gang members would attend.  In Melton v. Boustred (2010) 183 Cal.App.4th 521, 527, “defendant held a party at his residence featuring live music and alcoholic beverages. Defendant advertised the party using an open invitation on the social networking site, MySpace.com.  Upon arriving at the party, plaintiffs were attacked, beaten, and stabbed by a group of unknown individuals.  They sustained serious injuries.”  Plaintiffs alleged “that defendant ‘knew, and should have known, that such actions were highly likely and substantially certain to attract gang members to defendants' property, to attract violent youths to defendants' property, to create a dangerous condition on defendants' property, and to result in injuries to persons attending the party and others.’”  (Melton v. Boustred, supra, 183 Cal.App.4th 521, 532–33.)

 

The Melton court reasoned:  “Under the facts alleged here, we conclude defendant did not engage in any active conduct that increased the risk of harm to plaintiffs.  As a starting point, we accept as true plaintiffs' factual allegation that that defendant issued ‘an unlimited, unrestricted and widely broadcast’ invitation to a party at his home, which was ‘to include music and alcohol consumption.’”  (Melton v. Boustred (2010) 183 Cal.App.4th 521, 533.)  But, the Melton court found that “defendant merely invited people—including unknown individuals—to attend a party at his house.  To paraphrase Sakiyama: “To impose ordinary negligence liability on [a property owner who] has done nothing more than allow [his home] to be used for [a] party ... would expand the concept of duty far beyond any current models.”  (Sakiyama, at p. 406, 1 Cal.Rptr.3d 762.)” (Id. at p. 535.)

 

The Melton court further concluded on the facts alleged that “the criminal attack on plaintiffs was not reasonably foreseeable.”  (Id. at p. 539.)  Additionally, “[u]nder all of the circumstances presented here, the foreseeability of the criminal conduct that injured plaintiffs ‘does not outweigh the high burden the proposed duty would place’ on defendant and on other private hosts ‘to prevent such conduct.’ [Citation.] For that reason, no legal duty exists.” (Id. at p. 541.)

Similarly, here, plaintiff has failed to adequately allege that a legal duty exists.

 

Plaintiff indicates she has obtained further evidence since she filed the complaint. Assuming plaintiff may be able to allege facts supporting a special relationship and actual knowledge, or misfeasance, the demurrer is sustained with 30 days leave to amend.

 

Avelina also moves to strike portions of the complaint.  The motion to strike the prayer for punitive damages is granted as to Avelina only, and the motion to strike purportedly false and inflammatory phrases is denied.

 

Defendant shall submit an order consistent with this ruling.

 

Defendant Joe Bhai’s Demurrer

Plaintiff has not adequately alleged that Joe Bhai owed a duty.

“When analyzing duty in the context of third party acts, courts distinguish between ‘misfeasance’ and ‘nonfeasance.’  [Citation.]  ‘Misfeasance exists when the defendant is responsible for making the plaintiff's position worse, i.e., defendant has created a risk. Conversely, nonfeasance is found when the defendant has failed to aid plaintiff through beneficial intervention.’  [Citation.]”  (Melton v. Boustred (2010) 183 Cal.App.4th 521, 531, citations omitted.)  “‘[L]iability for nonfeasance is largely limited to those circumstances in which some special relationship can be established.  If, on the other hand, the act complained of is one of misfeasance, the question of duty is governed by the standards of ordinary care ....’ (Ibid., italics added.)” (Romero v. Superior Court (2001) 89 Cal.App.4th 1068, 1079.) 

Here, plaintiff has failed to allege facts supporting the existence of a special relationship between Joe and Nathan.  Again, “[t]he courts in this state have held that an adult who invites a minor into his or her home assumes a special relationship with that youngster based on the minor's vulnerability to third party misconduct and dependence on the adult for protection from risks of harm while in the home.”  (Romero v. Superior Court, supra, 89 Cal.App.4th 1068, 1080–81.)  Although the complaint alleges that Joe is now 18 years old, plaintiff fails to allege Joe was an adult on the night of the party.  In any event, the court grants Joe’s unopposed request for judicial notice of his birth certificate, which confirms that he was a minor when the party occurred. Joe is not alleged to own the home, either.  Therefore, even assuming Joe invited Nathan to the party, no special relationship existed between them under Romero.

Additionally, plaintiff alleges nonfeasance – not misfeasance – by Joe.  She alleges Joe “got the word out about the party” and acted as a “greeter” at the party.  (Complaint, ¶¶21 & 40.)   She also generally alleges Joe “did not take reasonably prudent steps under the circumstances to reduce the risk of injury or death to invited guests such as NATHAN.”  (Complaint, ¶45.)  Further, she alleges Joe breached “a duty to safeguard and protect NATHAN and other minors.”  (Complaint, ¶46.) 

However, as in Melton v. Boustred (2010) 183 Cal.App.4th at p. 534, it was not misfeasance for Joe to extend open invitations to the party.  Therefore, the allegations do not show that Joe engaged in active conduct that increased the risk of harm to Nathan.

Accordingly, Joe owed no duty of care to Nathan.  The demurrer is sustained with 30 days leave to amend to allege facts supporting misfeasance, if any.

 

Defendant shall submit an order consistent with this ruling.

 

The court appreciates the time and effort expended by the demurrer facilitator, Daphne Beletsis, Esq.

 

 

5. SCV-259143; Roche v. Ram’s Gate Winery

Defendants’ anti-SLAPP motions are denied.

 

The court declines to consider defendants’ untimely reply documents, which were all filed on the afternoon of November 23, 2016.

 

Plaintiff’s evidentiary objections to the Declaration of Thomas F. Hyde are overruled.

 

Defendant Hyde’s unopposed request for judicial notice of various filings in the underlying action and appeal is granted, but not for the truth of the matter asserted therein.

 

Defendants, including Ram’s Gate Winery LLC, Jeff O’Neill, Michael John and Thomas Hyde (hereafter Ram’s Gate, et al.), have met their initial burden of establishing that plaintiff Roche’s malicious prosecution claim arises from protected speech.  (Daniels v. Robbins (2010) 182 Cal.App.4th 204, 214–15.) 

 

In turn, Roche has met his burden of demonstrating the probability of prevailing on the merits of his claim.  To establish a cause of action for the malicious prosecution of a civil proceeding, Roche must plead and prove that the prior action: (1) was commenced by or at the direction of Ram’s Gate, et al. and was pursued to a legal termination in Roche’s favor; (2) was brought by Ram’s Gate, et al. without probable cause; and (3) was initiated by Ram’s Gate, et al. with malice.  (Bertero v. National General Corp. (1974) 13 Cal.3d 43, 50.)

Roche has made a prima facie showing that the underlying action ended in his favor by producing evidence beyond a mere voluntary dismissal.  As stated in JSJ Ltd. Partnership v. Mehrban (2012) 205 Cal.App.4th 1512:

 

The dismissal of an action does not necessarily mean that there has been a favorable termination for purposes of a malicious prosecution action.  As stated by the court in Robbins v. Blecher (1997) 52 Cal.App.4th 886, 60 Cal.Rptr.2d 815, “ ‘A voluntary dismissal may be an implicit concession that the dismissing party cannot maintain the action and may constitute a decision on the merits. [Citations.]  “It is not enough, however, merely to show that the proceeding was dismissed.”  [Citation.]  The reasons for the dismissal of the action must be examined to determine whether the termination reflected on the merits.’ [Citations.]”  (Id. at p. 893, 60 Cal.Rptr.2d 815.)  Whether that dismissal is a favorable termination for purposes of a malicious prosecution claim depends on whether the dismissal of the 2009 Lawsuit is considered to be on the merits reflecting JSJ's “innocence” of the misconduct alleged.  (See Dalany v. American Pacific Holding Corp. (1996) 42 Cal.App.4th 822, 829, 50 Cal.Rptr.2d 13 [“a favorable termination is necessary as a reflection of the malicious prosecution plaintiff's innocence in the prior proceeding”].)

 (Id. at p. 1524.)

 

Here, Ram’s Gate, et al. claimed the basis for the underlying action was the fact they were not informed of the earthquake faults on the property.  There is evidence Ram’s Gate, et al. withheld responsive discovery demonstrating they indeed had knowledge of the earthquake faults before the close of escrow.  Ram’s Gate, et al. also admit they dismissed the action in the face of a seemingly meritorious motion for terminating sanctions which was based on this withheld evidence.  Therefore, the dismissal of the underlying action is considered to be on the merits indicating Roche’s innocence.  Any negotiation regarding the total amount of attorney fees and costs due Roche based on the dismissal was an “ancillary issue.”  (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 215-16.)

 

“[T]he probable cause element calls on the trial court to make an objective determination of the ‘reasonableness’ of the defendant's conduct, i.e., to determine whether, on the basis of the facts known to the defendant, the institution of the prior action was legally tenable.”  (Sheldon Appel Co. (1989) 47 Cal.3d at p. 878.)

 

Here, again, Ram’s Gate, et al.’s apparent knowledge of the earthquake faults – even before escrow closed – undermines any claim that they had probable cause to bring and continue the underlying action.  And, while Roche ultimately did not prevail on the 2013 motion for summary judgment or adjudication in the underlying action, this does not support a finding of probable cause because Roche was improperly denied responsive discovery by Ram’s Gate, et al. up to and long after the motion was decided and appealed.

 

“[A] lack of probable cause in the underlying action, by itself, is insufficient to show malice.”  (Daniels v. Robbins (2010) 182 Cal.App.4th 204, 225.)  But, “[a]dditional proof of malice can consist of evidence a party knowingly brings an action without probable cause.” (Id. at p. 226.)  It follows that “malice can be inferred when a party continues to prosecute an action after becoming aware that the action lacks probable cause.”  (Ibid.)

The underlying action was not legally tenable and it appears the evidence Ram’s Gate, et al. refused to produce until the eve of trial supports the reasonable inference that Ram’s Gate, et al. knowingly brought and maintained the action without probable cause.  Thus, Roche has made a prima facie showing of malice.

 

Accordingly, the motions to strike are denied.

 

The court denies Roche’s request to award him attorney fees and costs pursuant to CCP §425.16(c).  Defendants’ motions were not frivolous.

 

Plaintiff shall submit an order consistent with this ruling.

 

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