Jan 16, 2017

LAW & MOTION TENTATIVE RULINGS              

WEDNESDAY, JANUARY 11, 2017, 3:00pm            

COURTROOM 19 – Judge Allan D. Hardcastle         

3055 Cleveland Avenue, Santa Rosa, CA  95403

Court Call is available for all Law and Motion appearances, EXCEPT parties in small claims cases and motions for claims of exemption which are mandatory appearances.

** To set up Court Call- Please call them 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 contact the Judicial Assistant by telephone at (707) 521-6730 by 4:00 p.m. on TUESDAY, JANUARY 10, 2017.  Any party requesting an appearance must notify all other parties of their intent to appear.

 

1.      MCV-235933 American Express v. Delgado:

This case is on calendar for plaintiff American Express Bank, FSB’s (“Plaintiff”) motion for all matters stated in its requests for admissions, set one, to defendant Jose P. Delgado (“Defendant”) to be deemed admitted.  Plaintiff’s motion is DENIED, without prejudice,  based on insufficient service.  (See, Code Civ. Proc. §1005 [all moving papers must be served “at least 16 court days before the hearing.”]  When service is made by U.S. Mail and the address is within the State of California, the time for service is extended by “five calendar days…”  (Ibid.)  Here, Plaintiff’s Proof of Service states that the notice of motion and motion were served to Defendant by U.S. Mail on December 14, 2016, for a hearing date on January 11, 2017.  Thus, Plaintiff’s motion does not comply with the notice requirements of the Code and therefore, the motion is DENIED.  Plaintiff’s request for sanctions is also DENIED.

Plaintiff’s counsel shall submit a written order to the Court that is consistent with this tentative ruling and in compliance with Rule of Court 3.1312.

 2.      SCV-254201 Golub v. US Security Associates:

Plaintiff Michael Golub (“Plaintiff”) brings this motion to enforce the terms of a settlement agreement entered into with defendants U.S. Security Associates (“USSA”); Steven Garcia; Maria Carmen Gutierrez; William Thomas; James Clawson; and James Stryker (collectively “Defendants”).  Plaintiff brings this motion pursuant to Code of Civil Procedure section 664.6 and on the grounds that defendants Clawson and Stryker have failed to comply with the terms of the settlement agreement.  Defendants do not oppose the motion and accordingly, Plaintiff’s motion is GRANTED.  The Court will sign the proposed Judgments submitted with this motion. 

 3.      SCV-255831 Landry v. Davenport:

This case is on calendar for defendants Shavon Davenport’s, Patricia Davenport’s, and Alvin Davenport’s (“Defendants”) demurrer to the fourth cause of action for malicious prosecution in plaintiff Diane M. Landry’s (“Plaintiff”) Fourth Amended Complaint (“FAC”).  Defendants’ demurrer is SUSTAINED.  Plaintiff shall have ten days leave to amend to assert a cause of action for False Arrest against defendant Shavon Davenport only.

“[I]n order to establish a cause of action for malicious prosecution of either a criminal or civil proceeding, a plaintiff must demonstrate ‘that the prior action (1) was commenced by or at the direction of the defendant and was pursued to a legal termination in plaintiff’s favor; (2) was brought without probable cause; and (3) was initiated with malice.”  (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 871–872, quoting Bertero v. National General Corp. (1974) 13 Cal.3d 43, 50; see also; Cedars-Sinai Medical Center v. Superior Court (1988) 206 Cal.App.3d 414, 417 [“Malicious prosecution consists of initiating or procuring the arrest and prosecution of another under lawful process, but from malicious motives and without probable cause.”] (emphasis added); Centers v. Dollar Markets (1950) 99 Cal.App.2d 534, 540.)

However, “[a] mere investigation which does not lead to the initiation of proceedings before an [official body] having the power to take action adversely affecting legally protected interests of the accused is not a sufficient basis upon which to found a malicious prosecution action ....”  (Chen v. Fleming (1983) 147 Cal.App.3d 36, 41, quoting Brody v. Montalbano (1978) 87 Cal.App.3d 725, 736; Merlet v. Rizzo (1998) 64 Cal.App.4th 53, 60 [Courts have generally refused to permit malicious prosecution claims when they are based on a prior proceeding that involved an investigation that did not result in a formal proceeding.]; Imig v. Ferrar (1977) 70 Cal.App.3d 48, 58 [accusation prompting official investigation that does not lead to the initiation of proceedings is insufficient basis for malicious prosecution action.].)

In the present case, Plaintiff’s FAC fails to state facts sufficient to constitute a cause of action for malicious prosecution for several reasons.  To start, the FAC does not sufficiently allege that there was a prior formal proceeding commenced against her.  Instead, Plaintiff alleges that “[t]he Sheriff Deputies believed [Defendant’s] lies and told Plaintiff she was being detained due to a battery complaint by the driver of the Jeep and Plaintiff was arrested and detained, for an appreciable amount of time unrelated to any accident investigation and made to wait outside in the cold while the [Defendants] were allowed to wait together inside their vehicle comfortably.”  (FAC at ¶76.)  However, Plaintiff then alleges “in order to not be detained, transported and booked at the Sonoma County jail, [Plaintiff] provided identification and other information to the SCSD and was eventually cited for assault and battery after signing an agreement to appear in court some weeks later.”  (Id. at ¶80.)  Because the initiation of a criminal investigation, without further formal legal proceedings, such as a criminal charge or indictment, does not trigger a cause of action for malicious prosecution, Plaintiff’s claim fails to state a valid cause of action.

Additionally, Plaintiff cannot escape the allegation in her verified Third Amended Complaint that “her attorney contacted the District Attorney’s office “to prevent a formal complaint from being filed.”  (Third Amended Complaint at ¶91.)  Although Plaintiff removed this allegation from her FAC, the Court cannot disregard the allegation simply because it is omitted from a subsequent complaint.  (See, Hendy v. Losse (1991) 54 Cal.3d 723, 742 [“Where a verified complaint contains allegations destructive [to] a cause of action, the defect cannot be cured in subsequently filed pleadings by simply omitting such allegations without explanation.”]; see also, Vallejo Develop. Co. v. Beck Develop. Co. (1994) 24 Cal.App.4th 929, 946 [court not bound to accept as true allegations contrary to facts alleged in former pleadings]; Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 426.)

Furthermore, Plaintiff has not pleaded that any prior action was “terminated” in Plaintiff’s favor.  Instead, Plaintiff alleges only that Plaintiff’s counsel “resolved the criminal citizen’s complaint in [Plaintiff’s] favor” but Plaintiff does not allege how the case was “resolved” or if in fact it has been terminated.  Such vague and uncertain allegations are not sufficient to support a cause of action.

Finally, because Plaintiff has not sought leave to amend her malicious prosecution cause of action and not demonstrated that the defects addressed above can be cured by further amendment, Defendants’ demurrer is sustained, without leave to amend, as to this cause of action.  (See, Saterbak v. JPMorgan Chase Bank, N.A. (2016) 245 Cal.App.4th 808, 813 [“The plaintiff has the burden of proving that an amendment would cure the defect.”].)  However, Plaintiff has requested leave to assert a cause of action for False Arrest against defendant Shavon Davenport only.  Because the Court believes there is a “reasonable possibility” that Plaintiff can allege a valid cause of action for False Arrest against Shavon Davenport, the Court will grant Plaintiff leave to amend to add this cause of action only.  Plaintiff shall make no other changes to her complaint.  Plaintiff shall have ten (10) days from the Court’s final ruling on this demurrer to file and serve a Fifth Amended Complaint.  

Defendants’ counsel shall submit a written order to the Court consistent with this tentative ruling and in compliance with Rule of Court 3.1312.

 

4.      SCV-256943 Bordessa v. So Co Open Space:

            This case is on calendar for three motions.  Defendant Sonoma County Agricultural Preservation and Open Space District (the “District”) demurrers and moves to strike portions of plaintiffs Alfred Bordessa and Joseph Bordessa, as Successor Trustees of the Bruno Bordessa and Dorothy Bordessa Revocable Intervivos Trust’s (“Plaintiffs”) First Amended Complaint (“FAC”).  Defendants Howard Levy; Howard Levy Appraisal Group, Inc.; and Ward Levy Appraisal Group, Inc. (collectively “Levy”) also demurrer to the FAC.     

The District’s Request for Judicial Notice is GRANTED.  Plaintiff’s Request for Judicial Notice is DENIED.  (See, Appel v. Superior Court (2013) 214 Cal.App.4th 329, 342, fn. 6 [judicial notice denied where materials are not “relevant or necessary” to the court’s analysis].) 

The District’s Demurrer is OVERRULED and its Motion to Strike is GRANTED in part and DENIED in part.  Levy’s Demurrer is SUSTAINED in part and OVERRULED in part.

I.                   The District’s Demurrer to the fIRST AMENDED COMPLAINT

A.    The District’s Demurrer to the Entire FAC Based on Uncertainty

The District demurrers to the entire FAC pursuant to Code of Civil Procedure section 430.10(f) on the grounds the FAC is “uncertain.”  The Code defines “uncertain” to include “ambiguous and unintelligible.”  (Ibid.)  However, a demurrer based on uncertainty is disfavored and will be strictly construed, even when the pleading is uncertain in some respects, because ambiguities can be clarified under modern discovery practices.  (See, Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)  A demurrer for uncertainty is properly sustained only where the complaint is so confusing that the defendant’s ability to understand the complaint is impaired.  (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139; see also, Craig v. City of Los Angeles (1941) 44 Cal.App.2d 71, 73.)

In the present case, while Plaintiff’s FAC is not the model of clarity and contains multiple allegations that are uncertain, ambiguous, and redundant, the FAC is not so uncertain, ambiguous or confusing that the District’s ability to understand the claims asserted against it is impaired.  Accordingly, the District’s demurrer pursuant to section 430.10(f) is OVERRULED. 

B.     The District’s Demurrer to the Seventh Cause of Action for Rescission

The District demurrers to the seventh cause of action for Rescission on the grounds that the Court lacks jurisdiction and because the FAC fails to state a valid cause of action.  The District argues that under Public Resource Code section 5540, et seq., an easement can only be conveyed through (1) voter approval; and (2) resolution of the Legislature or a resolution of the Board of Directors.  (Demurrer at 4:21-6:13.)  Thus, the District concludes that the easement cannot be rescinded by this action because it would violate Public Resource Code.  However, the District’s reasoning is not persuasive.  To start, although the District is correct that Code prohibits the conveyance of an interest in any real property dedicated and used for open-space except by voter approval or by vote of the Board of Directors, the Code does not prohibit the Court from rescinding or otherwise adjudicating such a conveyance that was procured or induced by fraud or other illegal means.  Indeed, were the Court to interpret the Code as the District suggests, the District would have a free hand to conduct such improper and/or illegal activities without any review or recourse in the judiciary.  This Court does not believe this was the intent of the Legislature in enacting this Code section.

Additionally, in this case, Plaintiff is seeking rescission of the conveyance.  The Civil Code provides that a party to a contract may rescind the agreement if “the consent of the party rescinding, or of any party jointly contracting with him, was given by mistake, or obtained through duress, menace, fraud, or undue influence, exercised by or with the connivance of the party as to whom he rescinds, or of any other party to the contract jointly interested with such party.”  (Code Civ. Proc. §1689.)  “Rescission extinguishes a contract, rendering it void ab initio, as if it never existed.”  (DuBeck v. California Physicians' Serv. (2015) 234 Cal.App.4th 1254, 1264, citing, Little v. Pullman (2013) 219 Cal.App.4th 558, 568 and Imperial Casualty & Indemnity Co. v. Sogomonian (1988) 198 Cal.App.3d 169, 182 [explaining that rescission is “retroactive,” effectively rendering a contract “totally unenforceable from the outset…”].)  Thus, if Plaintiff prevails on its cause of action for rescission, the subject easement will not be “re-conveyed” in violation of the Code but the original conveyance would be rendered “void ab initio,” i.e., as if it never happened and therefore, would not be in violation of the District’s reading of the Code.  Accordingly, the District’s demurrer to the seventh cause of action is OVERRULED.

C.    The District’s Demurrer to the Eighth Cause of Action for Taxpayer’s Suit

The District demurrers to Plaintiff’s eighth cause of action for a taxpayer’s suit on the grounds that Plaintiff is not entitled to use a taxpayer action to challenge a CEQA process and the only procedure Plaintiff can use is a mandamus proceeding under Public Resources Code section 21168, et seq.  In its opposition, Plaintiff argues that this action is not a CEQA lawsuit and this cause of action is not based on the CEQA process.  Instead, Plaintiff argues this cause of action is based on the allegations that Defendant illegally used taxpayer funds to improperly influence appraisers to devalue property interests and fraudulently conceal information. 

The taxpayer statute is found in Code of Civil Procedure section 526a, which states in relevant part that “[a]n action to obtain a judgment, restraining and preventing any illegal expenditure of, waste of, or injury to, the estate, funds, or other property of a county, town, city or city and county of the state, may be maintained against any officer thereof, or any agent, or other person, acting in its behalf, either by a citizen resident therein, or by a corporation, who is assessed for and is liable to pay, or, within one year before the commencement of the action, has paid, a tax therein.  (Code Civ. Proc. §526a.) 

Here, Plaintiff’s taxpayer’s cause of action does not appear to be based on the CEQA process but is instead based on its allegations that the District did not purchase the property from a “willing seller;” that the District did not review the appraisals to be in compliance with USPAP; that the District improperly influenced the appraisers; that the District did not properly determine the fair market value of the property; that the District did not provide full and accurate information to the Fiscal Oversight Commission regarding the appraisals, interests acquired or fair market value of the property.  (FAC at ¶AS84.)  Additionally, Plaintiff alleges that the District’s actions are a “fraud and injury on the FOC, the District’s Board, the Sonoma County Board of Supervisors, the Sonoma County Taxpayers who enacted Measures A, C and F, the Plaintiffs who were not willing sellers, [and] other past sellers of property interests to the District.”  (Ibid.)  Therefore, the District’s demurrer to Plaintiff’s eighth cause of action is OVERRULLED.

D.    The District’s Demurrer to the Ninth Cause of Action for Inverse Condemnation

The District demurrers to Plaintiff’s ninth cause of action for inverse condemnation on the grounds that Plaintiff has failed to sufficiently plead that any property rights were “taken” in and that “the mere allegation of some ‘taking’ to support a claim of inverse condemnation is not sufficient [and] Plaintiffs must allege something more than ‘taking’ some property value by the action of the public entity.”  (Demurrer at 8:9-19.)  In its opposition, Plaintiffs argue that the District has “taken or damaged the Plaintiff’s property beyond what was appraised, paid for, and conveyed” and that the District did not pay for the interests it obtained because “it fraudulently forced a lower appraisal (meaning it did not pay just compensation), and manipulated the interests being appraised (it fraudulently changed the assignment to the appraiser, changed the assumptions, changed the interests, and after the improper appraisal was obtained, it changed the deal with the grantors, without obtaining a further appraisal.”  (Opp. at 11:10-16.)    

“An inverse condemnation cause of action derives from article I, section 19 of the California Constitution, which states in relevant part: ‘Private property may be taken or damaged for public use only when just compensation ... has first been paid to, or into court for, the owner.’”  (Dina v. People ex rel. Dep’t of Transp. (2007) 151 Cal.App.4th 1029, 1048.)  “Property is ‘taken or damaged’ within the meaning of article I, section 19 of the California Constitution, so as to give rise to a claim for inverse condemnation, when: (1) the property has been physically invaded in a tangible manner; (2) no physical invasion has occurred, but the property has been physically damaged; or (3) an intangible intrusion onto the property has occurred which has caused no damage to the property but places a burden on the property that is direct, substantial, and peculiar to the property itself.”  (Oliver v. AT&T Wireless Services (1999) 76 Cal.App.4th 521, 530.)  Thus, “[w]hen there is incidental damage to private property caused by governmental action, but the governmental entity has not reimbursed the owner, a suit in ‘inverse condemnation’ may be brought to recover monetary damages for any ‘special injury,’ i.e., one not shared in common by the general public.”  (Locklin v. City of Lafayette (1994) 7 Cal.4th 327, 362.)  

Here, Plaintiffs have stated facts sufficient to constitute a valid cause of action for inverse condemnation based on their allegations that they were not “justly compensated” for the subject easement because the District fraudulently obtained a lower appraisal by fraudulently changing the assignment to the appraiser, changing the assumptions consider by the appraiser, changing the interests, and based on this fraudulently obtained appraisal, the District changed the deal with Plaintiffs.  Additionally, the cause of action is supported by Plaintiffs’ allegations that the District has “taken or damaged the Plaintiff’s property beyond what was appraised” and has burdened the property in excess of the rights the District was granted under the easement.  Accordingly, the District’s demurrer to Plaintiff’s ninth cause of action is OVERRULED.   

II.                The District’s motion to strike THE FIRST AMENDED COMPLAINT

“The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: (a) Strike out any irrelevant, false, or improper matter inserted in any pleading[;] (b) Strike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.”  (Code Civ. Proc. §436.)  “The grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.”  (Code Civ. Proc. §437(a).)

In this case, the District seeks to strike thirty separate matters from the FAC, including entire causes of action that the District has already addressed in its demurrer.  The primary bases for the District’s motion to strike are that the allegations are (1) redundant, repetitive and superfluous; (2) an improper attempt at collateral attack of the CEQA process; (3) argumentative and conclusory; (4) state allegations for which the District has immunity under Government Code section 818.8; and (5) improper causes of action which are addressed in the Districts demurrer.  The District’s motion to strike is GRANTED in part and DENIED in part as follows:

·         Page 3, ¶3, first sentence, lines 8-10:   Granted;

·         Page 6-7, ¶11 and subparts:  Denied;

·         Page 7, ¶12:  Denied;

·         Page 10, ¶¶24, 25: Denied; 

·         Page 11-12, ¶31, 33: Denied; 

·         Page 12-13, ¶35, 35a-35j: Denied; 

·         Page 15, ¶41:  Denied;

·         Page 16-18, ¶¶43-43i:  Denied;

·         Page 18, lines 20-21:  Granted;

·         Page 19, lines 14-16: Granted;

·         Page 20, ¶50:  Denied;

·         Page 21-23, ¶¶51-55:  Denied;

·         Page 23-24, ¶57:  Denied;

·         Page 25, caption lines 1-3: Granted;

·         Page 25-30, ¶¶AS57.3-AS57.10: Granted;

·         Page 31, ¶AS57.14, lines 21-26: Denied;

·         Page 32, ¶AS57.17, line 23: Denied;

·         Page 33, ¶AS57.17, lines 19-22: Denied;

·         Page 35, lines 2, 3, 6, 7, 15, 17: Denied;

·         Page 36, lines 5, 10: Denied;

·         Page 37, ¶AS57.22, lines 19, 20, 21: Denied;

·         Page 38-39, ¶¶AS57.25-AS57.26: Denied;

·         Page 39-40, ¶AS57.27: Denied;

·         Page 40-43, ¶AS57.28: Denied;

·         Seventh Cause of Action, pages 49-50, ¶¶AS77-AS81: Denied (See, Weil & Brown, et al. Cal. Prac. Guide: Civ. Proc. Before Trial (Rutter 2016) §7:188.5, p.7(I)-77 [“A pleading challenge to an entire cause of action is by demurrer rather than a motion to strike under CCP § 436.”] citing Quiroz v. Seventh Avenue Center (2006) 140 Cal.App.4th 1256, 1281.)

·         Eighth Cause of Action, pages 50-52, ¶¶AS82-AS85: Denied (See, Weil & Brown, et al. Cal. Prac. Guide: Civ. Proc. Before Trial (Rutter 2016) §7:188.5, p.7(I)-77 [“A pleading challenge to an entire cause of action is by demurrer rather than a motion to strike under CCP § 436.”] citing Quiroz v. Seventh Avenue Center (2006) 140 Cal.App.4th 1256, 1281.)

·         Ninth Cause of Action, pages 52-53, ¶¶AS86-AS88: Denied (See, Weil & Brown, et al. Cal. Prac. Guide: Civ. Proc. Before Trial (Rutter 2016) §7:188.5, p.7(I)-77 [“A pleading challenge to an entire cause of action is by demurrer rather than a motion to strike under CCP § 436.”] citing Quiroz v. Seventh Avenue Center (2006) 140 Cal.App.4th 1256, 1281.)

·         Prayer, pages 55-56 as to the Seventh, Eighth and Ninth Causes of Action: Denied.

III.             levy’s demurrer to the first amended complaint`

Levy demurrers to Plaintiffs’ fifth cause of action for negligent misrepresentation and the sixth cause of action for breach of contract on the grounds that Plaintiffs have failed to state facts sufficient to support these causes of action.  Additionally, Levy demurrers to Plaintiffs’ “malpractice action” on the grounds it is time barred.  

A.    Levy’s Demurrer to the Fifth Cause of Action for Negligent Misrepresentation 

Levy demurrers to Plaintiff’s fifth cause of action for negligent misrepresentation on the grounds that Levy’s contract was with the District, not with Plaintiff, and therefore, Levy did not have a duty of care to Plaintiff.  However, courts in California have held that professionals, including appraisers, can be held liable to third parties for negligent misrepresentations under certain circumstances, i.e., where the professional “intends to supply the information for the benefit of one or more third parties in a specific transaction or type of transaction identified to the supplier.”  (Soderberg v. McKinney (1996) 44 Cal.App.4th 1760, 1763-1764, quoting Bily v. Arthur Young & Co. (1992) 3 Cal.4th 370, 392; see also, Nutmeg Sec., Ltd. v. McGladrey & Pullen (2001) 92 Cal.App.4th 1435, 1443.) 

Here, Plaintiffs have sufficiently alleged that Levy entered into the appraisal contract with the District “with the knowledge and intent, and could foresee, that information supplied to them in their professional capacity…would be supplied to and was being provided for the benefit of and would be used by and relied upon by multiple third parties…specifically including Plaintiff…”  (FAC at ¶AS69.)  Based on these allegations, which must be accepted as true for the purposes of this demurrer, the case law stated in Soderberg and Bily applies and the fact that Plaintiffs did not directly contract with Levy does not preclude the cause of action.  

Levy’s second argument in support of its demurrer to this cause of action is that Plaintiffs have not alleged that Levy made a misrepresentation.  This argument is well taken.  The elements of a claim for negligent misrepresentation are (1) the defendant’s misrepresentation of a material past or existing fact without reasonable grounds for believing that fact to be true, and with intent to induce reliance, (2) the plaintiff’s ignorance of the truth and justifiable reliance on the misrepresentation, and (3) the resulting damages.  (Fox v. Pollack (1986) 181 Cal.App.3d 954, 962.)  Negligent misrepresentation must be pleaded with specificity rather than with general and conclusory allegations and a plaintiff “must allege facts showing how, when, where, to whom, and by what means the representations were made, and, in the case of a corporate defendant, the plaintiff must allege the names of the persons who made the representations, their authority to speak on behalf of the corporation, to whom they spoke, what they said or wrote, and when the representation was made.”  (West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 793.)  Plaintiffs pleading fraud or deceit must also “specifically allege their damages and how their reliance on [the misrepresentation] caused those damages.”  (Rossberg v. Bank of America, N.A. (2013) 219 Cal.App.4th 1481, 1501.)

Here, Plaintiffs have not alleged with sufficiently specificity all necessary elements for a cause of action for negligent misrepresentation.  Specifically, Plaintiffs have not alleged that Levy made a misrepresentation without reasonable grounds for believing it to be true, how, when, where, to whom, and by what means the representations were made, and, because Levy includes a corporate defendant, the plaintiffs must allege the names of the persons who made the representations, their authority to speak on behalf of the corporation, to whom they spoke, what they said or wrote, and when the representation was made. 

Accordingly, Levy’s demurrer to Plaintiff’s fifth cause of action is SUSTAINED, with leave to amend. 

B.     Levy’s Demurrer to the Sixth Cause of Action for Breach of Contract 

Levy demurrers to Plaintiffs’ sixth cause of action for breach of contract on the grounds that Plaintiffs are not a party to the contract and are not expressly identified as a third party beneficiary.  (Demurrer at 9:20-10:10.)  In their opposition, Plaintiffs argue that even though they are not “expressly” identified in the contract as an intended third party beneficiary, they “belong to a class for whose benefit the contract was made.”  (Opp. at 7:21-26.)    

The Civil Code provides that “[a] contract, made expressly for the benefit of a third person, may be enforced by him at any time before the parties thereto rescind it.”  (Civ. Code §1559.)  Intended beneficiaries may demand enforcement of the contract; incidental beneficiaries may not.  (Spinks v. Equity Residential Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1022.)  A third party is an ‘intended’ beneficiary if the contract expresses an intent to benefit the third party.  (Ibid.)  It is not enough that the third party would benefit incidentally from contract performance and “[t]he contracting parties must have intended to confer a benefit on the third party.”  (Ibid.) The third person need not be named or identified in the contract to qualify as an intended beneficiary and it is not necessary that both contracting parties intended the third party to benefit from the contract.  (Id. at 2023.)  “[I]t is sufficient that the promisor must have understood that the promisee had such intent.”  (Ibid.)

Ascertaining whether there was intent to confer a benefit on plaintiff as a third party beneficiary is a question of ordinary contract interpretation.  (H.N. & Frances C. Berger Found. v. Perez (2013) 218 Cal.App.4th 37, 44–45.)  In interpreting a contract, the court gives effect to the parties’ intent as it existed at the time of contracting.  (Civ. Code §1636; see also, H.N. & Frances C. Berger Found., supra, 218 Cal.App.4th at 44–45, citing Spinks, supra, 171 Cal.App.4th at 1023.)  “Intent is to be inferred, if possible, solely from the language of the written contract.”  (Ibid.)  However, in construing a contract, the court looks to “the circumstances under which it was made, and the matter to which it relates.”  (Civ.Code §1647.)  “In determining the meaning of a written contract allegedly made, in part, for the benefit of a third party, evidence of the circumstances and negotiations of the parties in making the contract is both relevant and admissible.”  (H.N. & Frances C. Berger Found., supra, 218 Cal.App.4th at 44–45, citing Spinks, supra, 171 Cal.App.4th at 1024.)  “Additionally, a court may consider the subsequent conduct of the parties in construing an ambiguous contract.”  (Ibid.)  “In determining intent to benefit a third party, the contracting parties’ practical construction of a contract, as shown by their actions, is important evidence of their intent.”  (Ibid.)  A party asserting third-party beneficiary status “carries the burden of proving that the contracting parties’ intended purpose in executing their agreement was to confer a direct benefit on the alleged third party beneficiary.”  (Alling v. Universal Manufacturing Corp. (1992) 5 Cal.App.4th 1412, 1439.)

Here, although there is nothing expressly stated in the District’s contract with Levy that indicates Plaintiffs were intended to be a third party beneficiary and notwithstanding the fact that contract expressly states that “[n]othing contained in this agreement shall be construed to create and the parties do not intend to create any rights in third parties,”

C.    Levy’s Demurrer Based on the Statute of Limitations 

Levy demurrers to both causes of action FAC based on the argument that Plaintiffs’ claims are essentially for “appraiser malpractice” and that the two year statute of limitations on a malpractice claim expired before this complaint was filed.  (Demurrer at 10:11-12:4.)  In opposition, Plaintiffs appear to agree that a two year statute of limitations applies but they argue that the accrual of the statute was postponed based on the delayed discovery rule.  Specifically, Plaintiffs argue that the statute of limitations did not begin to run until February 2016 when Levy was deposed in this action and Plaintiffs discovered that Levy’s draft appraisal, which had appraised the property at nearly twice the final value, was disregarded and a subsequent appraisal was created that improperly reduced the appraised value.   

Plaintiffs seeking to rely on the delayed discovery rule must specifically plead facts showing the time and manner of discovery of their claim, and their inability to have made earlier discovery despite reasonable diligence. (See, Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal.4th 797, 808 [“A plaintiff whose complaint shows on its face that his claim would be barred without the benefit of the [delayed] discovery rule must specifically plead facts to show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence.”].) 

Here, it does not appear that Plaintiffs have alleged delayed discovery with the required specificity to avoid the statute of limitations defense.  In particular, Plaintiffs have not alleged that their inability to have made an earlier discovery despite reasonable diligence.  Accordingly, the demurrer is sustained, with leave to amend. 

 

5.      SCV-258977 Ross v. Gray:

            Defendant Gayle Diane Gray (“Defendant”) moves to compel plaintiff Josephine Ross (“Plaintiff”) to provide verified responses to Defendant’s form interrogatories, set one and requests for production of documents, set one.  Defendant also seeks an award of monetary sanctions against Plaintiff for the reasonable expenses and attorney’s fee incurred to bring this motion.  Defendant brings this motion pursuant to Code of Civil Procedure sections 2030.250 and 2031.250 and on the grounds that Plaintiff’s daughter, Frances L. McChesney, who signed the verifications on Plaintiff’s behalf under a “Springing Durable General Power of Attorney,” did not have authority to sign the verifications as an attorney-in-fact and was required to obtain appointment as a “guardian ad litem” before signing the verifications.  Plaintiff opposes the motion and argues that the authority held by an attorney-in-fact under a durable power of attorney are “identical” to those of a guardian ad litem or conservator, including the ability to pursue legal matters on behalf of an incompetent person.  Plaintiff also seeks an award of monetary sanctions against Defendant for Plaintiff’s expenses to oppose the motion.

Defendant’s motion is DENIED and Defendant’s request for sanctions is also DENIED.  Plaintiff’s request for sanctions is DENIED.

The question at issue in this motion is whether the applicable “Springing Durable Power of Attorney” which Plaintiff executed on October 18, 2010 gives her daughter, Frances L. McChesney, the assigned attorney-in-fact, sufficient authority to sign discovery verifications on Plaintiff’s behalf, based on the fact that Plaintiff has been determined to be “incapacitated” by two separate medical professionals.  The relevant provisions of the Power of Attorney state that “I hereby grant to my attorney-in-fact full power and authority to act for me and in my name, in any way in which I myself could act, if I were personally present and able to act, with respect to the following matters as each of them is defined in the California Probate Code, and to the extent that I am permitted by law to act through an attorney-in-fact with respect to each:…[t]o commence and prosecute any suits or actions or other legal equitable proceedings in my name or on my behalf…and to prosecute, maintain and discontinue the same, as my attorney shall determine proper.”  (Wolff Dec. at Ex. E.)  Additionally, the Power of Attorney states “[m]y attorney-in-fact’s signature under the authority granted in this power of attorney may be accepted by any third party or organization with the same force and effect as if I were personally present and acting on my own behalf.”  (Ibid.)   

In its motion, Defendant relies entirely on the Code of Civil Procedure sections 2030.250 and 2031.250 which state that a party to whom interrogatories or requests for documents have been directed shall personally sign the verifications, and only when the responding party is an entity may an agent sign on that party’s behalf.  (Code Civ. Proc. §§2030.250 and 2031.250.)  For the first time in her reply brief, Defendant cites to In re Marriage of Caballero (1994) 27 Cal.App.4th 1139, stating that this issue was specifically addressed in that case.  However, In re Marriage of Caballero held that a representative operating under a power of attorney did not have authority to file a dissolution petition on behalf of the principal without first being appointed a guardian ad litem.  However, those facts are clearly distinguishable from the circumstances in the present case, which involves a verification for discovery responses.  Moreover, based on the personal nature of a dissolution action, courts have generally distinguished these cases to hold that an attorney-in-fact cannot initiate a dissolution action on behalf of an incapacitated principal without some indication of the principal’s intent and approval.  Defendant has not cited any authority for the proposition that an attorney-in-fact, acting pursuant to an effective durable power of attorney, cannot sign a discovery verification on the principal’s behalf in a general personal injury action.  Indeed, Probate Code section 4300 specifically states that “[a] third person shall accord an attorney-in-fact acting pursuant to the provisions of a power of attorney the same rights and privileges that would be accorded the principal if the principal were personally present and seeking to act.”  (Prob. Code §4300.)  The Law Revision Comments on the statute also say: “This section provides the basic rule concerning the position of an attorney-in-fact: that the attorney-in-fact acts in place of the principal, within the scope of the power of attorney, and is to be treated as if the principal were acting.”  (Ibid.) 

Accordingly, the Court finds in this case that the verifications for the subject discovery were property and effectively executed by Plaintiff’s attorney-in-fact, pursuant to the “Springing Durable Power of Attorney.” Plaintiff is directed to provide full and complete verified responses to all of Defendant’s previously propounded discovery responses. Those verifications shall be given the same force and effect as if they had been provided by Plaintiff herself.  Therefore, Defendant’s motion is denied.  

Plaintiff’s counsel shall submit a written order to the Court that is consistent with this tentative ruling and in compliance with Rule of Court 3.1312.

 

6.      SCV-259505 Buhrz v. Brasa:
            The demurrers in this matter have been dropped from calendar by the moving parties.

 

7.      SCV-259568 Anesthesia v. McKean:
            By stipulation of the parties, the motion in this matter has been continued to the Law and Motion calendar on February 8, 2017 at 3:00pm in Department 19.

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