Mar 05, 2015


TUESDAY, MARCH 3, 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 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, 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, MARCH 2, 2015.  Any party requesting an appearance must notify all other parties of their intent to appear.

1.  SCV-253694 Benton v. Engert:

This case arises from an incident that occurred on January 4, 2012 at 5:30 in the evening, when Defendant Engert was involved in a motor vehicle accident with the Plaintiffs. At the scene of the accident, Defendant Engert was arrest for driving under the influence, his blood alcohol level was tested by the CHP and determined to be between .18 and .21.

Prior to the accident, Defendant Engert had finished his shift as the manager of Defendant Lucas Wharf, Inc.’s (Lucas), a restaurant located just off Highway 1 in Bodega Bay. Defendant Engert’s shift ended at approximately 4:00pm, and the undisputed evidence indicates that Defendant Engert consumed one glass of wine and one “shot” of tequila. Defendant Engert, however, told the probation officer, prior to his sentencing, that he had consumed two glasses of wine and a shot of tequila prior to leaving Lucas at 4:00pm. Further, the undisputed evidence establishes that after leaving Lucas, Defendant Engert drove home, and had a 10-15 minute conversation with Mr. Ball. After the conversation, Defendant Engert changed his clothes and walked his dog. Defendant Engert admits that while at home he drank an additional glass of wine, and smoked marijuana. Thereafter he drove to Doran State Beach to “watch the sunset.” At approximately 5:20pm Defendant Engert left Doran State Beach and proceeded north on Highway 1. As discussed above, Defendant Engert was involved in a motor vehicle accident thereafter.

On May 17, 2013, the Plaintiffs filed suit against Defendant Engert and Defendant Lucas. The instant lawsuit alleges that Defendant Engert acted negligently when he hit the Plaintiffs’ car. Further, the lawsuit alleges that Defendant Lucas should be held vicariously liable for Defendant Engert’s actions because his impairment (which allegedly contributed to the accident) occurred while he was in the scope and course of his employment, and with the permission of his employer.

This is on calendar for Defendant Lucas Wharf, Inc.’s (Lucas) motion for summary judgment. Lucas contends that the undisputed evidence demonstrates that Defendant Matthew Engert was not intoxicated at the time he left his employment with Lucas. Further, Lucas argues that Defendant Engert was not acting in the course or scope of his employment at the time of the incident. Lucas avers Defendant Engert was driving in his personal vehicle at the time of the incident, for his own personal purposes—and not acting in his capacity as an employee of Lucas.

The Plaintiffs oppose, arguing that there is a disputed issue of fact as to the amount Defendant Engert drank while still on the clock at Lucas. Further, the Plaintiffs contend that Defendant Engert’s alcohol consumption while employed at Lucas was well known and condoned. Plaintiff argues that Defendant Engert’s own testimony regarding the amount he drank while still on the clock at Lucas on the day of the incident is contradictory, and itself presents issues of fact that preclude summary judgment. The Plaintiffs enlist the opinion of a forensic toxicologist, who opines that Defendant Engert must be withholding the true amount of his alcohol consumption—and that a reasonable inference can be made that Defendant Engert had consumed more alcohol at Lucas than he has admitted.

A summary judgment may be granted where it is shown that the entire “action has no merit or that there is no defense to the action or proceeding.” (CCP §437c(a).) In ruling on the motion, the court must consider all of the evidence and all of the inferences reasonably drawn therefrom.  Inferences from circumstantial evidence can create a triable issue, as long as they are not based on speculation or surmise.  (Joseph E. DiLoreto, Inc. v. O’Neill (1991) 1 Cal.App.4th 149, 161.)  These inferences must be "more likely than not." (Leslie G. v. Perry & Assocs. (1996) 43 Cal.App.4th 472, 487. )

Once the moving party has met its burden, the burden shifts to the other side to show that a triable issue of one or more material facts exist precluding grant of the motion. (See CCP §437c(p); Aguilar, supra at 850; Saelzler v. Advanced Group 400 (2001) 25 Cal. 4th 763, 780. There is a policy to liberally construe the opposition’s evidence and strictly construe the evidence of the moving party.  (D’Amico v. Bd. of Medical Examiners (1974) 11 Cal.3d 1, 21; Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839.)

It is well settled that evidence offered in opposition to a motion for summary judgment must be liberally construed, while the moving party's evidence must be construed strictly, in determining the existence of a “triable issue” of fact. (See D'Amico v. Board of Medical Examiners (1974) 11 Cal.3d 1, 21,; Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839; Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 64.)

The holding in the case Purton v. Marriott Internat., Inc. (2013) 218 Cal.App.4th 499, 502–503 (Purton) focuses the analysis of the case and helps answer for the purposes of the instant motion whether Lucas, as Defendant Engert’s employer, may be held vicariously liable for Defendant Engert’s alleged negligence.

In Purton, the court held that there was a triable issue as to whether a hotel was liable when its employee struck another driver after becoming intoxicated at the hotel's holiday party. Although the accident occurred after the employee arrived home safely and then decided to get back on the road, the court found that a jury could find he had become an “instrumentality of danger” at the party with the hotel's permission. (Id. at pp. 504, 509–510.) The court stated that “the employer's potential liability under these circumstances continues until the risk that was created within the scope of the employee's employment dissipates.” (Id. at 511.)

Here, the issue is two-fold. First, was Defendant Engert acting within the scope of his employment when he drank alcohol on the date of the incident. Second, does Defendant Engert’s consumption of alcohol during his shift at Lucas make him “an instrumentality of danger to others”; or more specifically, “an instrumentality of danger” that caused the Plaintiffs’ damages.

Scope of Employment

Under Purton “respondeat superior liability attaches if the activities ‘that cause[d] the employee to become an instrumentality of danger to others’ were undertaken with the employer's permission and were of some benefit to the employer or, in the absence of proof of benefit, the activities constituted a customary incident of employment.” (Purton, supra, at 509, quoting Childers v. Shasta Livestock Auction Yard, Inc. (1987) 190 Cal.App.3d 792, 805.)

Here, the undisputed facts clearly indicate that Defendant Engert’s consumption of alcohol while on duty at Defendant Lucas had become a customary incident of employment, and was done with the tacit permission of Defendant Lucas.  The evidence shows that Defendant Engert was allowed to consume alcohol while on shift to taste wines, and to acknowledge customers who purchased drinks for him. Indeed, it is undisputed that the shot of tequila that Defendant Engert drank on the date of the incident was purchased by a customer for him, which he consumed while on duty. Defendant Lucas contends that it had a written policy that prohibited drinking while on duty. The evidence before the court demonstrates that this policy, however, was never enforced against Defendant Engert—whose drinking was well-known to many of Defendant Lucas’s employees. Compare Defendant Lucas’s written alcohol policy with the attempt by the defendant in Purton to limit each employee to two drinks each—a rule that was ignored by management. (Purton, supra at 509-510.) Here, Defendant Engert was managing Defendant Lucas, and therefore his drinking on duty was, in essence, condoned by management. Whether the owner of Defendant Lucas, Ms. Lucas, ever saw Defendant drink on duty is a disputed fact. She was aware of his drinking, and even confronted him about it.

Further, there are undisputed facts that indicate that a fringe benefit of Defendant Engert’s employment with Defendant Lucas was the ability to “comp” himself and customers food and drinks, including alcohol. Indeed, the evidence suggests that Defendant Engert often “comped” himself alcoholic drinks while on duty. At the very least, the evidence is in dispute at to whether Defendant’s drinking alcohol was “undertaken with the employer's permission and w[as] of some benefit to the employer or, in the absence of proof of benefit, the activities constituted a customary incident of employment.” (Purton, supra, at 509.)

Instrumentality of Dangerousness

The second question posed is whether Defendant Engert’s drinking while on duty at Defendant Lucas caused Defendant Engert to “become an instrumentality of danger to” the Plaintiffs. (Purton, supra, 218 Cal.App4th at 508.) In other words, Defendant Lucas is liable for negligence under a respondeat superior theory only where the “the risk [that] is created within the scope of the employee's employment ... acts proximately to cause injury.” (Childers, supra, 190 Cal.App.3d at 805.)

Defendant Lucas contends that the undisputed evidence establishes that Defendant Engert was not intoxicated by the time he left Defendant Lucas, and therefore cannot be held liable.  Defendant Lucas relies on the observations of the incoming manager, who saw Defendant Engert immediately prior to his departing Defendant Lucas, and did not see any observable signs of intoxication.

The Plaintiffs oppose, introducing the testimony of an expert who opines that Defendant Engert’s admitted consumption of alcohol could not have yielded a BAC of .21 after the accident. The Plaintiffs’ expert surmises that Defendant Engert drank more while on duty, and more at home than he has admitted. Further, the Plaintiffs present evidence from Defendant Engert’s past co-workers that Defendant Engert had a drinking problem and, according to them, he drank every day.

Much of the evidence provided by the Plaintiffs is simply speculation. The Plaintiffs’ speculation regarding when Defendant Engert may have drank a sufficient amount of alcohol to arrive at a BAC of .21 at 6:15pm on the day of the incident is simply not admissible evidence. That being said, there are a disputed issues of fact with respect to Defendant Engert’s level of intoxication attributable to his consumption of alcohol at Defendant Lucas and whether that impairment acted proximately to cause the Plaintiffs’ injuries. Indeed, Defendant Engert provides one of the disputed facts where he stated in discovery responses that he consumed a single glass of wine and a shot of tequila; but, on another occasion, stated to a probation officer that he had actually consumed two glasses of wine and a shot of tequila. Further, Defendant Engert’s own recollection of his consumption of alcohol is disputed by the findings of the CHP in their accident report.

There is evidence that Defendant Engert drank additional alcohol and smoked marijuana between the time he left work and the accident. The amount of alcohol and marijuana Defendant Engert consumed between leaving work at Defendant Lucas and the accident remains unknown and presents a disputed issue of fact. Further, as discussed below, the time between Defendant Engert’s consumption at Defendant Lucas and the time of the accident (approximately 1.5 hours) did not provide a sufficient amount of time for the alcohol consumed on duty (whatever that amount may have been) to have completely dissipated from Defendant Engert’s system.

Defendant Lucas points to evidence supplied by Ms. Casey-Junge that she saw Defendant Engert as he left Defendant Lucas and did not observe any signs of intoxication. This fact does not conclusively close the door on whether Defendant Engert was impaired by the alcohol he consumed during his shift at the time of the accident. Indeed, Ms. Casey-Junge’s evidence suggests that perhaps the effects of the alcohol consumed by Defendant Engert had not had its full effect by the time they parted ways. Further, there is evidence in the record that Defendant Engert was a habitual abuser of alcohol for 40 years. The evidence submitted indicates that habitual users of alcohol, like Defendant Engert, might not display objective signs of intoxication until their BAC levels are extremely elevated. Further, there is evidence in the record that suggests that two glasses of wine and a shot of tequila may have raised Defendant Engert’s BAC to .09.[1] Looking to the evidence, the issue of Defendant Engert’s ultimate BAC at the time of the collision creates an issue of fact. Moreover, using the formula provided by the evidence, Defendant Engert could have had a BAC level around .06 at the time of the collision. This evidence conflicts, as noted above, with the both the evidence from the CHP tests and Defendant Engert’s own recollection of the amount of alcohol he consumed (either on duty or at his home). This presents a question of fact as to whether Defendant Engert’s consumption of alcohol during his shift created a risk that proximately caused the Plaintiffs’ injuries. (Childers, supra, 190 Cal.App.3d at  805.)

Accordingly, and for the foregoing reasons Defendant Lucas’s motion for summary judgment is denied. The Plaintiffs’ evidentiary objections numbers 1 and 5 are sustained; the balance of the Plaintiffs’ objections are overruled.


2.  SCV-254820 Hogan v. Cenlar:

The 3/3/15 and 3/10/15 demurrer hearings are being moved to the 3/17/15 Law and Motion calendar, so that all of the demurrers in this matter may be heard at the same time.


3.  SCV-250316 Gevirtz v. Codding:

            This is on calendar for the Defendant’s motion to dismiss on the basis of the Plaintiff’s failure to sign the settlement papers, or to bring the case to trial. The Defendant argues that the matter was settled with the Plaintiff on May 6, 2013, but the Plaintiff has refused to sign the settlement agreement. On October 23, 2013, the court denied the Plaintiff’s motion to vacate the settlement, and granted the Defendant motion to enforce the settlement pursuant to CCP § 664.6.

The Defendant has filed three opposition to the instant motion and written two letters to the court. The substance of the oppositions is that the settlement relied on by the Defendant was fraudulently obtained. The Plaintiff also seeks a continuance of the instant motion. The Plaintiff avers that she suffers from several medical issues that have prevented her from filing a “renewed motion to rescind.”

Here, the Plaintiff has had sufficient time to oppose the instant motion, and has filed no fewer than three separate oppositions. Despite the oppositions, the Plaintiff provides no cogent argument as to why this court should not dismiss the action for lack of prosecution. Further, the court has already found that the settlement is binding on the parties and the Plaintiff was not entitled to vacate the settlement she reached with the Defendant. 

In Finley v. Perry (1962) 24 Cal.Rptr. 308, the appellate court found that dismissal for failure to prosecute was not abuse of discretion where plaintiff, who sued for specific performance of oral agreement to leave property by will, for money due under oral agreement, and for compensation on quantum merit basis for services rendered, at first agreed to settlement, then refused to sign papers involved, and later refused cash settlement offer, and more than two years elapsed without bringing action to trial after it was filed.

The facts in the instant case are that the Plaintiff settled with the Defendant and the Plaintiff has refused to perform under that settlement agreement. Further, the Plaintiff has failed to perform under this court’s order enforcing the terms of the settlement.

Accordingly, the court will grant the Defendant’s motion to dismiss for failure to prosecute the action. The Defendant shall draft an order consistent with this ruling.


4.  SCV-253801 Hurley v. Comcast:

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


5.  SCV-254623 Gruchawka v. Atherstone Foods:

This is on calendar for Defendants/Cross-Complainants Atherstone Foods, Inc. and Trader Joe’s Company motion for leave to respectively file a Second Amended Cross-Complaint and First Amended Complaint. Both parties seek to add additional Roe defendants, and to seek the “recovery of costs and expenses incurred in the recall and destruction of product….”The motions have not drawn opposition.

CCP §473 and CRC 3:1324 set forth the legal and  procedural requirements for a motion for leave to amend a pleading.  Motions for leave to amend pleadings are directed to the sound discretion of the court which may, upon any terms that may be just and proper, allow an amendment to any pleading.  (CCP §§473(a)(1).)

There is a policy of great liberality in permitting amendments to the pleadings at any stage of the proceeding, up to and including trial, when no prejudice is shown to the adverse party. ( Huff v. Wilkins (2006) 138 Cal. App. 4th 732, 746; Atkinson v. Elk Corp. (2003) 109 Cal. App. 4th 739, 761.)  Thus, the court's discretion will usually be exercised liberally to permit amendment of the pleadings. (See Nestle v. Santa Monica (1972) 6 Cal. 3d 920, 939.)

Here, the unopposed motions meet the procedural requirements of CRC 3.1324, and there has been no showing of any prejudice. Accordingly the motions are granted. Each moving party shall draft an order consistent with this ruling.


6.  SCV-255209 Nova Casualty v. Longoria:

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


7.  SCV-256202 McConkey v. Castro:

            This is a motor vehicle negligence case.  The Plaintiff alleges that the Defendant negligently operated his automobile, and in doing so struck the Plaintiff’s vehicle causing injuries. The Complaint alleges that the Defendant was under the influence of alcohol at the time of the accident. The complaint also alleges that the Defendant was convicted of driving under the influence of alcohol and failing to stop at the scene of the accident. The complaint seeks damages for the Plaintiff’s injuries and punitive damages.


Defendant has moved to strike the request for punitive damages. The Defendant contends that the Plaintiff has failed to allege facts sufficient to establish the necessary malice for punitive damages.

In unintentional tort cases, such as the one at issue here, conclusory allegations that defendant acted “wilfully,” “maliciously,” etc., or with “conscious disregard,” are insufficient to support a claim for punitive damages. Plaintiff must plead facts to support such conclusion. (See Brousseau v. Jarrett (1977) 73 Cal.App.3d 864.) Generally speaking, a motor vehicle accident which causes bodily harm due to the defendant’s intoxication can result in exemplary damages. (See Taylor v Superior Court (1979) 24 Cal.3d 89.)

Here, the Complaint offers facts to support a causal relationship between the alleged intoxication and the injuries of the Plaintiff. The complaint alleges that the Defendant drank alcohol knowing he would then drive his automobile. The compliant then alleges that the Defendant operated his automobile at excessive speeds hitting the Plaintiff’s vehicle head on. Further, the Complaint alleges that the Defendant, after causing the accident, failed to stop—further aggravating his negligence.

Accordingly, the Defendant’s motion to strike is denied. The Plaintiff shall draft an order consistent with this ruling.

[1] The court notes that one’s BAC is often used in criminal law to provide a presumption of intoxication. (See Cal. Vehicle Code § 23152(b).) However, the Vehicle Code also recognizes that “[i]t is unlawful for a person who is under the influence of any alcoholic beverage to drive a vehicle” without reference to a BAC level. (See Cal. Vehicle Code § 23152(a) [emphasis added].) One’s BAC level is not the sine qua non of impairment.

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