Aug 30, 2015

LAW & MOTION TENTATIVE RULINGS

TUESDAY, AUGUST 25, 2015 - 8:30 a.m.

COURTROOM 19 –Judge Arthur Wick

3055 Cleveland Avenue, Santa Rosa, CA  95403

 

Court Call is now 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, it will be necessary for you to contact Judge Wick’s Judicial Assistant by telephone at (707) 521-6730 by 4:00 p.m., MONDAY, AUGUST 24, 2015.  Any party requesting an appearance must notify all other parties of their intent to appear.

 

 

1.  SCV-255148 Redwood Health v. Anthem Blue Cross:

            The hearing on this motion has been continued by stipulation of the parties.  The hearing is continued to the law and motion calendar on December 1, 2015 at 8:30am in Department 19.

 

2.  SCV-256183 Creative Pathways v. Icore:

            The motions in this matter have been dropped by the moving party.

 

3.  SCV-256741 Doe v. Morrow:

            This is on calendar for Defendant Morrow’s demurrer to the Second, Third, and Fifth causes of action, and motion to strike the requests for punitive damages and attorneys’ fees. The Defendant contends that the Second Cause of Action for negligence per se is defective in that it fails to identify or allege what statute or law was violated by the Defendant. The Defendant further contends that the Third Cause of Action for premises liability fails to allege a defective or dangerous condition existed on the premises that cause the Plaintiff’s injuries. The Defendant also argues that the Complaint fails to allege facts sufficient to support the Fifth Cause of Action for defamation/libel/slander. In the motion to strike, the Defendant argues that the Complaint fails to allege facts sufficient to support either an award of attorney fees or punitive damages.

The Plaintiff opposes both the demurrer and the motion to strike. The Plaintiff argues that the Complaint allege sufficient facts to establish a violation of several statutes related to the annoyance of minors and clandestine video and audio recording. The Plaintiff further argues that the Complaint alleges sufficient facts to support premises liability, as the allegations describe how the Defendant was negligent in the use of the property, i.e. planting recording devices throughout the home. With respect to the Fifth Cause of Action, the Plaintiff contends that she believes that the Defendant may have shared inappropriate photos and video with others. The Plaintiff asks that she be allowed to conduct discovery to develop facts to support this cause of action. With respect to the motion to strike, the Plaintiff argues that the Defendant was convicted of a felony, and therefore attorney fees are recoverable under CCP § 1021.4. Further, the Plaintiff argues that the allegations in the Complaint sufficiently describe “despicable” behavior that warrants punitive damages. 

The Defendant’s request for judicial notice is granted.

Second Cause of Action—Negligence Per Se

The Complaint adequately alleges that the Defendant violated “various regulations, statutes, and ordinances.” (Complaint ¶ 10.) Further, the Complaint alleges that the Plaintiff was harmed by the Defendant’s violations of those laws. (Id. at ¶¶ 11-12.) The Plaintiff is not required to provide the level of specificity that the Defendant demands.

Accordingly, the demurrer is overruled as to this cause of action.

Third Cause of Action—Premises Liability

The Defendant contends that there can be no premises liability without a “dangerous condition.” The Defendant is mistaken; a “dangerous condition” is not the sine qua non of premises liability.  The elements of a cause of action for premises liability are the same as those for negligence: duty, breach, causation, and damages. (Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205; see CC § 1714(a).) Indeed, there are many examples of premises liability being imposed on defendants where no dangerous condition was present. (See Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 235.)

Here, the Complaint alleges that the Defendant had a duty to the Plaintiff, that he breached that duty by secretly recording the Plaintiff, and that the Plaintiff was injured by that conduct. Indeed, the Complaint alleges that the Defendant willfully took actions, e.g. setting up recording devices on the premises, which injured the Plaintiff.

Accordingly, the demurrer is overruled as to this cause of action.

Fifth Cause of Action—Defamation/Libel/Slander

The Defendant’s demurrer to the Fifth Cause of Action is well-taken. The cause of action itself seek liability based on three separate grounds, but fails to allege facts that support any one of the grounds. The Plaintiff essentially concedes that she has failed to allege facts, and seeks time to develop evidence through discovery. Despite this, the Plaintiff identifies a factual basis in her opposition which is not pled. (Plaintiff’s Opposition, 5:1-10.) The issue on demurrer is whether the facts alleged in the Complaint support the cause of action pled. Here, the Complaint is devoid of any facts that would support a cause of action for defamation, libel, or slander. Indeed, the Fifth Cause of Action’s reliance on three separate torts creates uncertainty as to what is being alleged.

Accordingly, the demurrer to this cause of action is sustained, with leave to amend.

Motion to Strike 

The Complaint fails to allege either a sufficient basis for punitive damages or attorney fees.  Punitive damages are “available to a party who can plead and prove the facts and circumstances set forth in Civil Code section 3294.” (Hilliard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 392.) “To support punitive damages, the complaint ... must allege ultimate facts of the defendant's oppression, fraud, or malice.” (Cyrus v. Haveson (1976) 65 Cal.App.3d 306, 316–317; see also G.D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29.) Here, the Complaint alleges both intentional wrongs, and unintentional wrongs—but fails to allege sufficient facts to support punitive damages on either grounds. 

Further, while the Plaintiff identifies a basis for attorney fees in her opposition, the Complaint fails to allege the same basis—namely CCP § 1021.4. The Complaint does not allege that the Defendant was convicted of a felony, and the commission of that felony is basis for the Plaintiff’s injuries. These are necessary allegations to support an award of attorney fees.

Therefore the Defendant’s motion to strike is granted, in its entirety, with leave to amend.

The Defendant shall draft an order consistent with this ruling.

 

4.  MCV-229520 CACH v. Kurrus:

This is on calendar for Plaintiff’s motion to enforce settlement pursuant to CCP § 664.6. This action is a collections matter that the parties had settled. The terms of the settlement were laid out in a settlement agreement.  The motion is unopposed.

Section 664.6 permits the trial court judge to enter judgment on a settlement agreement without the need for a new lawsuit. (See Weddington Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 809–810.)

Here, the declaration submitted by the Plaintiff establishes that the parties entered into the settlement agreement, and that the Defendant failed to fulfill her obligation thereunder. (Ayers Dec. ¶¶ 4-5.)  The Plaintiff contends that the Defendant is in default of the agreement. (Id. at ¶¶ 6-7.)

The Plaintiff is likely entitled to relief under CCP § 664.6, however the Plaintiff has failed to provide a proof of service of the instant motion. Accordingly, the motion is denied unless the Plaintiff provides proof of service of the instant motion at the hearing.

The Plaintiff is to draft an order consistent with this ruling.

 

5.  SCV-254911 Husary v. Husary:

            The motion in this matter has been dropped by stipulation of the parties.

 

6.  SCV-256264 Rivkin v. Maib:

            The motion in this matter has been dropped by the moving party.

 

7.  MCV-187042 Genesis v. Denison:

            In this matter, the Judgment Debtor filed a Claim of Exemption.  The Judgment Creditor filed an Opposition to Claim of Exemption.  The Judgment Debtor is ordered to appear.  The Judgment Debtor is ordered to bring with her to the hearing all income and expense documents for the year 2015.

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