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Tentative Rulings

Friday, June 21, 2024 at 8:30 a.m. AND 3:00 p.m. calendar listed below!

6/21 8:30 A.M. LAW & MOTION CALENDAR/5327

6/21 3:00 P.M. LAW & MOTION CALENDAR/5328

8:30 A.M LAW & MOTION CALENDAR
1.         SCV-267521, The Design Build Company, LLC v. De Arkos

This case springs from a construction contract dispute between homeowner Eduardo De Arkos (“De Arkos”) and contractor The Design Build Company, LLC (“DBC”).  One of DBC’s bond sureties, American Contractor Indemnity Company (“ACIC”), has interpleaded the full amount of its bond, $15,000, and has deposited that amount with the Court. 

This matter comes on calendar for the second time for De Arkos’s motion to release the full bond amount to him.  The hearing was initially set for May 24, 2024.  On the afternoon of May 23, counsel for De Arkos notified the Court that he had not received DBC’s opposition papers in time to draft a reply, and that he and counsel for DBC had stipulated to continuing the motion.  It was accordingly continued to June 21.  De Arkos filed his reply on June 13.

The motion is DENIED.  Counsel for DBC shall submit a written order to the Court consistent with this tentative ruling and in compliance with Rule of Court 3.1312(a) and (b).

I.                   Background

In March 2020, De Arkos and DBC entered into a contract for the construction of a single-family residence on De Arkos’s property.  The project did not go well.  DBC alleges that De Arkos “elected to terminate the Agreement for his convenience” in October 2020; De Arkos, for his part, declares that he terminated the contract because DBC had lost its contractors’ license.  (De Arkos Reply Dec., ¶ 2.)

DBC filed the complaint in this matter on December 9, 2020, alleging causes of action for breach of contract, foreclosure of a mechanic’s lien, quantum meruit, and violation of prompt payment statutes.  De Arkos cross-complained on February 17, 2021.  The cross-complaint alleged seven causes of action against DBC, as well as one against four of DBC’s sureties, one of whom was ACIC.  As relevant here, that cause of action alleged that ACIC had issued a $15,000 bond with DBC as the bonded principal, and that DBC had committed violations which mandated payment of the bond amount to De Arkos.  The cross-complaint has been amended twice, once on November 18, 2021 (“FACC”), and again on August 1, 2022 (“SACC”).  The cause of action against ACIC regarding the $15,000 bond, and the associated prayer for full payment of the face amount, appear in substantially identical form in each version.  (FACC Sixth Cause of Action; SACC Fifth Cause of Action.)

DBC filed for Chapter 7 bankruptcy on August 25, 2021.  On November 17, 2021, the bankruptcy court granted De Arkos’s request for relief from the automatic stay but prohibited him from attempting to enforce any judgment other than against insurance proceeds.

On May 15, 2023, ACIC filed an interpleader cross-complaint against De Arkos and DBC, and deposited the $15,000 face value of its surety bond with the Court.  By the instant motion, De Arkos asks the Court to release the full $15,000 to him.  De Arkos also asks the Court to order DBC to produce an accounting of all funds he has paid to them.

II.                Rule compliance

De Arkos’s counsel is reminded that each page of a document filed with the court “must be numbered consecutively at the bottom.”  (CRC 2.109.)  The reply memorandum does not comply with this rule.

III.             Analysis

A.    Release of the bond

At the outset, the Court notes DBC’s comment that “De Arkos filed the present First Amended Cross-Complaint (“FACC”) on November 18, 2021 . . . .”  The FACC was indeed filed on that date, but the FACC is not “the present” cross-complaint.  The presently operative cross-complaint is the SACC filed on August 1, 2022.  In the SACC, the cause of action seeking payment of ACIC’s $15,000 bond is the fifth, not the sixth.

As relevant here, that cause of action alleges that ACIC issued a $15,000 bond with DBC as the principal; that DBC violated “one or more” provisions of the Contractor’s License Law; and that because these violations are grounds for discipline, ACIC is obligated to pay the bond amount to De Arkos pursuant to Bus. & Prof. Code § 7000 et seq.  (SACC ¶¶ 157.1, 158.)  The pleading then describes in detail the statutes De Arkos alleges that DBC has violated.  (¶¶ 160.1-164.)

The operative word is “allege.”  At the moment, these are allegations, not proven facts.  (Notably, several of them are on information and belief; see SACC ¶¶ 157.1, 157.3, 160.2, 165.)  De Arkos notes that he is the only claimant to the bond (De Arkos Reply Dec., ¶ 3), but that does not mean that he is ipso facto entitled to all of it, or indeed any of it.  If this matter goes to trial (as it is currently scheduled to do in under two months), or if the fifth cause of action is adjudicated in a motion for summary judgment or summary adjudication, a trier of fact will have the opportunity to assess whether the supporting evidence proves the allegations in the SACC’s fifth cause of action by the applicable quantum of evidence.  For example, the trier of fact will decide whether DBC violated any provision of the Contractor’s License Law, and if so which one or ones, whereupon the Court can determine if the violation or violations so determined mandate a release of the bond as a matter of law, and if so how much of the bond.   

A noticed motion is not a substitute for that process.  De Arkos and his counsel both state in no uncertain terms that DBC has engaged in conduct that rises to statutory violations that justify the release of the entire bond amount to De Arkos.  (See, e.g., Reply Memo [“Cost-Plus” billing before work performance violated CSLB requirement that billing be after work is performed]; De Arkos Reply Dec., ¶ 9 [“I have been damaged undoubtedly in excess of $100,000”]; Nellessen Dec., ¶ 2 [“there is no doubt that [De Arkos] suffered damages . . . exceeding $300,000”].)  The Court does not question De Arkos’s sincerity in making these statements.  Still, the fact remains that De Arkos has filed a cross-complaint alleging that ACIC “is obligated to pay the full amount of the face value of the bond to Mr. De Arkos” (SACC ¶ 157.1), and praying for relief in the form of “direct and consequential property damages in the sum of not less than $15,000.00 from American Contractors Indemnity Company” (SACC p. 85, ¶ 1).  The instant motion asks the Court to hold that the former is true and order the latter.  The Court may or may not do either or both of those things at some future point in this litigation, but will do neither outside of the proper procedures for securing a judgment.

(De Arkos has also provided the declaration of Sheena Czekaj, the former controller of the company that became DBC, detailing a number of questionable business practices by cross-defendants Auger and Currier.  This is an excellent example of why the Court insists on following the proper procedures: DBC should have an opportunity to object to Ms. Czekaj’s account.  The Court expresses no opinion as to how it would rule on such an objection.)

In his reply memorandum, De Arkos posits that “the Surety Bond Company has itself made the conclusive determination of the wholesale fraud of DESIGN BUILD COMPANY LLC and its other numerous violations of the contractor’s license law.  No other adjudication is necessary.”  Neither sentence is correct.  What ACIC has done is file an interpleader cross-complaint, in which it asked that De Arkos and DBC “be ordered to interplead and to litigate their respective rights against all other Cross-Defendants” (that is to say, against each other) “to the sums of money which ACIC may deposit into Court to satisfy its obligation under the bond.”  That is how interpleaders work, broadly speaking: a party who controls an item in dispute, called a “res,” turns the res over to the court and steps away from the litigation, permitting the other parties to argue about how to divide it up.  That is not at all the same as “a conclusive determination.”  It is, rather, an acknowledgment that making the conclusive determination is the court’s job, which is another way of saying that an adjudication is most definitely necessary.  This case is currently set for trial on August 2; the issue can be adjudicated then.

In his declaration accompanying his reply memorandum, De Arkos declares that he “cannot begin to understand how the bankrupt DESIGN BUILD COMPANY LLC and the other Defendants can prevent my recovery as the only claimant, of the very Bond funds intended to make me, the Homeowner less injured.”  (De Arkos Reply Dec., ¶ 3.)  Nobody is preventing De Arkos’s recovery.  De Arkos initiated the recovery process by filing a cross-complaint against DBC and its sureties.  If he can prove that he is entitled to the amount of the ACIC bond using the appropriate procedures, the Court will turn it over to him.  However, the appropriate procedures do not include simply asking the Court for it and declaring that he is entitled to it, which is fundamentally what he is doing in the instant motion.  The Court will not, in effect, summarily adjudicate the SACC’s fifth cause of action on the basis of the instant motion.

B.     Accounting

The bankruptcy court’s November 17, 2021 Final Ruling on De Arkos’s motion to lift the automatic stay did so in these terms:

“IT IS ORDERED that the motion is granted to the extent specified in this order.  The automatic stay is vacated to allow the movant to pursue through judgment the pending state court litigation described in the motion.  The movant may also file post-judgment motions and appeals.  But the movant shall not take any action to collect or enforce any judgment, or pursue costs or attorney’s fees against the debtor, except (1) from applicable insurance proceeds; or (2) by filing a proof of claim in this case.”  (Emphasis supplied.)

DBC interprets this as “the order of the bankruptcy court was to lift the stay to permit the litigation to proceed against available insurance policies.”  That is not quite accurate.  The order was to lift the stay to permit the litigation to proceed “through judgment” against all parties – and indeed beyond judgment, as De Arkos is permitted to file an appeal.  The restriction is that De Arkos may not seek to enforce the judgment against anyone other than an insurer.  DBC argues that “[t]he accounting requested by De Arkos has no relationship to available insurance, which only covers consequential property damage.  As such the prayer for an accounting violates the terms of the relief from stay.”  That is not as self-evident as DBC appears to believe.  Again, the crucial phrase is “through judgment.”  Since the SACC requests an accounting in its prayer for relief (SACC p. 84, ¶ 4), a judgment in this matter would, of necessity, either grant or deny De Arkos that relief.  The bankruptcy court’s order allows De Arkos to get that far.

However, if the accounting were granted after trial or summary adjudication, and if DBC did not then voluntarily produce it, De Arkos would have to seek a court order compelling it to do so.  That, at least arguably, would constitute “enforc[ing] the judgment.”  That is almost certainly not what the bankruptcy court had in mind; bankruptcy courts are primarily interested in the movement of money, not spreadsheets.  But the wording of the order would appear to preclude De Arkos from seeking, following judgment, a court order compelling DBC to produce the accounting.  Therefore, it makes a certain amount of sense to suppose that he is equally precluded now.  To that extent, the Court agrees with DBC’s argument about the bankruptcy stay.

The more important point, however, is that an accounting is one of the types of relief sought in the SACC as a remedy for the torts alleged in the fourth cause of action, which is headed “FRAUD AND CONVERSION AND DEMAND FOR AN ACCOUNTING.”  De Arkos may very well be legally entitled to an accounting; if so, and if DBC refuses to produce one, he has taken the appropriate action to compel them to do so: he has sued them.  But just as with the bond payment, De Arkos is attempting to accomplish through a simple noticed motion what would otherwise be accomplished by a trial or summary adjudication.  If one of those proceedings occurs and results in a conclusion by the trier of fact that the elements of the SACC’s fourth cause of action are met, then the Court can award De Arkos the accounting he has requested in the prayer for relief associated with that cause of action.  Doing so now would be premature.

In his reply memorandum, De Arkos points out that he “is not precluded from exploring the DESIGN BUILD COMPANY LLC’s liability foundation from which other Bonds or insurance proceeds are recoverable.”  Indeed he is not, but in the first place, it is not clear that the accounting he requests would contain that information.  More importantly, such exploration typically takes place through discovery process. 

IV.             Conclusion

The motion is DENIED. 

2.         SCV-268365, Mogalian v. Addington

Appearances required. 

3.         SCV-273861, Waterbug Corporation v. Berryman Health, Inc.

Defendant’s request for judicial notice is GRANTED.  The motion is DENIED with respect to the request for admissions and DENIED AS MOOT with respect to the document production.  Sanctions are awarded in the amount of $1,635.00.  Plaintiff’s counsel shall submit a written order consistent with this tentative ruling, in compliance with California Rules of Court, rule 3.1312.

I.       Background

On January 26, 2024, Plaintiff propounded Requests for Admissions, Set One and Request for Production of Documents, Set One on Defendant Pacifica SL Grove Street (added as defendant by Doe amendment on November 20, 2023).  Defendant did not respond to the requests by the due date, February 27.  On February 29, Plaintiff’s counsel contacted Defendant’s counsel, asking about the discovery responses, but no responses were served.  Plaintiff’s counsel made a follow-up phone call on March 5, 2024, but again received no response. 

Plaintiff filed the instant motion to compel responses on March 18, 2024.  It was set for hearing on May 31, 2024.  Opposition was therefore due on May 17, 2024.  (CCP § 1005(b) [nine court days before hearing; May 27 was a court holiday].)  On May 28, Defendant filed late opposition, asserting that the motion was moot because the parties had settled the matter on May 16.  Plaintiff filed a reply the next day, asserting that there had been no settlement.  The parties appeared at oral argument and reiterated their positions regarding settlement.  The Court put the matter over to June 21 to give them an opportunity to complete their settlement discussions.

On June 10, Defendant filed new opposition, accompanied by its counsel’s declaration (“Smith 6/10 Dec.”).  Exhibits A and B to the declaration are copies of the discovery responses, with proofs of service indicating that they were served on June 9.

II.    Request for judicial notice

Defendant requests judicial notice of Plaintiff’s counsel’s declaration filed in this Court on May 24, 2024 (“Lavine 5/24 Dec.”).  The Court notes that the declaration is part of the moving papers in the instant motion, and that judicial notice is therefore unnecessary.  However, the request is granted pursuant to Evid. Code § 452(d). 

III. Analysis

The instant motion purports to be, in part, a motion to compel initial responses to a request for admissions.  However, there is no statutory basis for such a motion; the propounding party’s only recourse when no response is received to a request for admissions is to “move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted.”  (CCP § 2033.280(b).)  Plaintiff filed such a motion on June 7.  That motion is not presently before the Court. 

What is before the Court is Plaintiff’s motion to compel initial responses, without objection, to Plaintiff’s request for production of documents, and for sanctions.  (CCP § 2031.300.)  That motion is partially moot, as Defendant has now served responses.  The question of the completeness of those responses is not at issue in the instant motion.  If Plaintiff finds them incomplete, Plaintiff should attempt to resolve that issue informally with Defendant and move to compel further responses pursuant to CCP § 2031.310 if unable to do so. 

The issues of waiver of objections and sanctions, however, remain in dispute.  While both are ordinarily mandatory, a responding party can be excused from waiver of objections if its “failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect,” and from sanctions if the court finds that it “acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”  (CCP § 2031.300(a)(2) and (c).) 

Defendant argues that these exceptions apply because its failure to serve timely responses resulted from its counsel’s good-faith belief that the case settled on May 16.  In support of that argument, counsel declares that his first clue that the case had not in fact settled was Plaintiff’s counsel’s declaration, served on May 24, which stated that “Absent settlement reached and noticed to the Court in the meantime, plaintiff persists in seeking adjudication of its motion to compel at the specified hearing.”  (Smith 6/10 Dec., ¶ 4; Lavine 5/24 Dec., ¶ 4.)  Defendant’s counsel declares that his “understanding this action had settled on May 16, 2024 is the sole reason why discovery responses and opposition to Plaintiff’s pending discovery motion, due by May 17, were not served or filed with this Court prior to the May 31st hearing date.  Absent said settlement, they would have been timely filed and served.”  (Smith 6/10 Dec., ¶ 3.) 

There are two problems with this argument.  First, there is a bit of tension between Defendant’s counsel’s assertions of good-faith belief that the case had settled and the emails he has provided in support of those assertions.  The emails reflect that on May 16, Defendant’s counsel emailed Plaintiff’s counsel that “The $32,000 settlement is accepted,” and that Plaintiff’s counsel responded that he would “draft a straightforward settlement agreement.”  (Smith 5/28 Dec., Exh. A.)  A few hours later, Plaintiff’s counsel sent a copy of what he had drafted and added “Let me know promptly if you have any revisions.”  (Ibid.)  The tension arises because it appears that Defendant’s counsel did have revisions.  On May 30 – that is, the day before the previous hearing on this motion – Plaintiff’s counsel sent Defendant’s counsel an email that began “Really?  I have not seen the revisions – how can I agree?  We never even discussed another two weeks for payment.”  (Smith 6/10 Dec., Exh. C, p. 2.)  An email the following day suggests that Defendant had also proposed adding a non-disparagement clause to the agreement.  (Ibid.)  The emails exchanged by counsel between May 16 and 30 strongly suggest that Defendant’s counsel was unwilling to accept the May 16 agreement drafted by Plaintiff’s counsel without negotiating additional terms.  That is difficult to square with Defendant’s counsel’s professed belief that the settlement was a done deal.

The second and more important problem is that Defendant’s counsel’s good-faith belief does not matter at this point.  His declaration that “discovery responses and opposition to Plaintiff’s pending discovery motion . . . would have been timely served filed” if he had realized the case had not settled conflates two distinctly different things.  (Smith 6/10 Dec., ¶ 3.)  The opposition was due on May 17, so a good-faith belief that the case had settled the previous day might reasonably justify not bothering to oppose a pending discovery motion.  But the discovery responses themselves were due much earlier than that.  The requests were served by email on January 26, 2024.  (Lavine 3/18 Dec., ¶ 2, Exhs. A and B.)  The responses were due 30 days after that (CCP § 2031.260(a) and the deadline was extended by two days because of the email service.  (CCP § 1010.6(a)(3)(B).)  The Court takes counsel’s point to be that, had he realized in time that the case had not settled and that the instant motion would be going forward, he would have “timely served” the discovery responses in the sense of serving them prior to the motion hearing, thereby rendering the motion moot, as he has now done by serving them 12 days before the new hearing date.  Serving responses is certainly preferable to not serving them, but that is not what “timely” means.

The Court is unpersuaded by Defendant’s argument that its “failure to serve a timely response was the result of mistake, inadvertence, or excusable neglect.” (CCP § 2031.300(a)(2).)  The Court is also unpersuaded that Defendant “acted with substantial justification” in failing to serve timely responses to Plaintiff’s discovery requests.  (CCP § 2031.300(c).)  Therefore, the Court will not relieve Defendant from the waiver of objections to the document production request and will impose sanctions. 

IV. Waiver of objections

It does not appear that Defendant has made any objection to the request for production.  (Smith 6/10 Dec., Exh. B.)  However, Defendant purports to “reserve[] the right to object to any request for production.”  (Id. at p. 2, ¶ 1.)  Due to the tardiness of the service of this response, Defendant has no such right.  (CCP § 2031.300(a).)

V.    Sanctions

“[T]he court shall impose a monetary sanction . . . against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a response to a demand for inspection.”  (CCP § 2031.300(a).)  As noted above, Plaintiff’s motion to compel is largely moot, and the Court will deny it for that reason.  However, that denial does not mean that Defendant has opposed the motion successfully.  The motion is denied, not because of Defendant’s opposition, but because Defendant served the disputed discovery responses 12 days before the hearing on the instant motion.  Plaintiff is the successful party to this motion in the sense that filing the motion induced Defendant to serve the responses, which was the point of filing it.  Thus, the Court finds that Defendant has unsuccessfully opposed the instant motion.  Defendant has also “unsuccessfully assert[ed] that [Plaintiff] has engaged in the misuse of the discovery process.”  (CCP § 2023.030(a); see, e.g., 6/10 opposition memorandum at p. 5 [“Plaintiff’s continued misuse of discovery devices”].)  Accordingly, sanctions are appropriate.

Plaintiff’s counsel requests sanctions in the amount of $1,762.50, representing 4.7 hours of work at $375/hour.  The Court finds the $375/hour figure reasonable.  Counsel attributes the work to “following up the delinquent discovery responses and seeking to meet and confer with opposing counsel and researching and preparing this motion.”  As counsel points out in his memorandum of points and authorities, there is no meet-and-confer requirement in the case of discovery responses that are not served at all.  Counsel notes that Civil Procedure Before Trial recommends meeting and conferring even in that case “to save the time and expense of a motion.”  (Rutter Group, Civil Procedure Before Trial ¶ 8:1143.)  The Court agrees but does not agree that the time spent doing so should be compensated by sanctions.  The Court will accordingly deduct .5 hours from the time counsel claims in his declaration.  On its own motion, the Court will award an additional $60 to cover the filing fee for the instant motion.  Accordingly, sanctions will be awarded in the amount of $1,635.00. 

VI. Conclusion

The motion is DENIED with respect to the request for admissions.  It is DENIED AS MOOT with respect to the document production.  Sanctions are awarded in the amount of $1,635.00.

3:00 P.M. LAW & MOTION CALENDAR
1-2.      SCV-273886, Evans v. City of Petaluma

This is a joint ruling on the demurrers filed by Defendant City of Petaluma and Defendant Sonoma-Marin Area Rail Transit (“SMART”) to Plaintiff’s First Amended Complaint (“FAC). Both demurrers are SUSTAINED. Leave to amend is GRANTED as to the Second Cause of Action only. Leave to amend is DENIED as to the Third Cause of Action as it is alleged against the moving defendants. Defendants’ counsel shall submit a written order consistent with this tentative ruling and in compliance with Rule 3.1312 for their respective motions.

As an initial matter, the Court notes that SMART demurs to the First Cause of Action of the FAC. However, that cause of action is not alleged against SMART. It is only alleged against the Doe Defendants. Therefore, SMART does not have standing to raise a demurrer as that cause of action.

Analysis:

I.                    Standards on Demurrer

A demurrer tests whether the complaint sufficiently states a valid cause of action. (Hahn v. Merda (2007) 147 Cal.App.4th 740, 747.) Complaints are read as a whole, in context and are liberally construed. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; see also, Stevens v. Superior Court (1999) 75 Cal.App.4th 594, 601.) In reviewing the sufficiency of a complaint, courts accept as true all material facts properly pleaded, but not contentions, deductions, or conclusions of fact or law, or the construction of instruments pleaded, or facts impossible in law. (Rakestraw v. California Physicians’ Service (2000) 81 Cal.App.4th 39, 43; see also, South Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732.) Matters which may be judicially noticed are also considered. (Serrano v. Priest (1971) 5 Cal.3d 584, 591.)

It is an abuse of discretion for the court to deny leave to amend where there is any reasonable possibility that plaintiff can state a good cause of action. (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349.) However, “Leave to amend should be denied where the facts are not in dispute and the nature of the claim is clear, but no liability exists under substantive law.” (Lawrence v. Bank of Am. (1985) 163 Cal.App.3d 431, 436.) The burden is on the plaintiff to show in what manner plaintiff can amend the complaint, and how that amendment will change the legal effect of the pleading. (Goodman, supra, at 349.)

II.                 Second Cause of Action – Premises Liability

“The limited and statutory nature of governmental liability mandates that claims against public entities be specifically pleaded.” (Brenner v. City of El Cajon (2003) 113 Cal.App.4th 434, 439.) “Accordingly, a claim alleging a dangerous condition may not rely on generalized allegations but must specify in what manner the condition constituted a dangerous condition.” (Ibid. Internal citation omitted.) “[B]ecause ‘all governmental tort liability is based on statute, the general rule that statutory causes of action must be pleaded with particularity is applicable. Thus, ‘to state a cause of action against a public entity, every fact material to the existence of its statutory liability must be pleaded with particularity.’” (City of Los Angeles v. Superior Ct. (2021) 62 Cal.App.5th 129, 138.) “‘[A] claim alleging a dangerous condition may not rely on generalized allegations [citation] but must specify in what manner the condition constituted a dangerous condition.’” (Cerna v. City of Oakland (2008) 161 Cal.App.4th 1340, 1347.) “A dangerous condition exists when public property “is physically damaged, deteriorated, or defective in such a way as to foreseeably endanger those using the property itself,” or possesses physical characteristics in its design, location, features or relationship to its surroundings that endanger users.” (Id. at 1347–48.)

Here, the allegations regarding the conditions of the roadway that created a dangerous condition (dangerous curvature, dangerous median/barrier, etc.) are still generally pleaded. Plaintiff provided some specific facts in her opposition to the demurrers, but these facts are not alleged in the FAC. Moreover, Plaintiff does not explain how the facts alleged in her opposition created a dangerous condition. These general allegations regarding the condition of the roadway are insufficient. Furthermore, while Plaintiff has amended to add additional allegations that the conditions of the roadway complained of “created vision limitations, obscure elevation variances, and otherwise constituted hidden traps” (FAC, p.  & 7), Plaintiff has alleged no facts supporting these general allegations. Plaintiff must plead this cause of action with specificity. General allegations of vision limitations, obscure elevation variances, and otherwise hidden traps will not suffice. Plaintiff has failed to explain exactly how the specific defects in the roadway complained of create the hazards complained of. There are also no facts alleged regarding the nature of the relationship between the condition of the roadway and the injuries suffered by Plaintiff’s father. Plaintiff has merely provided general allegations in this regard.

Though Plaintiff has not explained how these defects can be cured by amendment, Plaintiff has requested leave to amend if the Court sustains the demurrer. Because it is not entirely apparent that these defects cannot be cured by amendment, the Court grants leave to amend. However, since a demurrer has already been sustained to this cause of action in the past and Plaintiff has never explained to the Court how the defects could be cured by amendment, this is the final time the Court will grant leave to amend.

The Court notes that both defendants raise arguments regarding Plaintiff’s allegations of inadequate lighting and signage. It is not apparent at this point in the proceedings that Government Code §§ 830.4 and 830.8 bar Plaintiff’s action. “…[T]he statutory scheme precludes a plaintiff from imposing liability on a public entity for creating a dangerous condition merely because it did not install the described traffic control devices.” (Mixon v. Pac. Gas & Elec. Co. (2012) 207 Cal.App.4th 124, 135. Italics added.) “…[A] public entity may be liable where a dangerous condition ‘exists for reasons other than or in addition to the ‘mere[ ]’ failure to provide such controls or markings.’” (Ibid.) Plaintiff has not alleged that the mere absence of traffic control devices or lighting constituted the dangerous condition.

III.              Third Cause of Action – General Negligence

“[G]ranting of leave to amend must be construed as permission to the pleader to amend the cause of action which he pleaded in the pleading to which the demurrer has been sustained.” (People By & Through Dep't of Pub. Works v. Clausen (1967) 248 Cal.App.2d 770, 785.)

Following an order sustaining a demurrer or a motion for judgment on the pleadings with leave to amend, the plaintiff may amend his or her complaint only as authorized by the court's order. (People ex rel. Dept. Pub. Wks. v. Clausen (1967) 248 Cal.App.2d 770, 785, 57 Cal.Rptr. 227 [leave to amend complaint does not constitute leave to amend to add new defendant].) The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend.

(Harris v. Wachovia Mortg., FSB (2010) 185 Cal. App. 4th 1018, 1023.)

 It is the rule that when a trial court sustains a demurrer with leave to amend, the scope of the grant of leave is ordinarily a limited one. It gives the pleader an opportunity to cure the defects in the particular causes of action to which the demurrer was sustained, but that is all. (People ex rel. Dept. Pub. Wks. v. Clausen (1967) 248 Cal.App.2d 770, 785–786, 57 Cal.Rptr. 227.) “The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend.” (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023, 111 Cal.Rptr.3d 20.)

(Cmty. Water Coal. v. Santa Cruz Cnty. Loc. Agency Formation Com. (2011) 200 Cal.App.4th 1317, 1329.)

The Court granted Plaintiff leave to amend the complaint after sustaining the previous demurrers. However, the general negligence cause of action was not a subject of the previous demurrers because it was not alleged against either of the moving defendants. The Court did not grant Plaintiff permission to amend the general negligence cause of action to allege it against the public entity defendants. As such, adding the City of Petaluma and SMART as defendants to the general negligence cause of action was outside of the scope of the order granting leave to amend. Plaintiff must have sought an order granting leave to allege the cause of action against these defendants and did not. Plaintiff has also made no argument in support of alleging this cause of action against these defendants in her opposition. Accordingly, the demurrer is sustained and leave to amend is denied. Plaintiff is not barred from filing a motion for leave to amend this cause of action to allege it against these defendants if Plaintiff wishes. However, if such request is made, it must be supported with authority allowing Plaintiff to allege general negligence against a public entity. 

3.         24CV00309, Rocky Top Rentals, LLC v. Duarte Roman

Plaintiff’s application for writ of possession is DENIED without prejudice. Plaintiff has failed to file a proof of service of this application upon the defendant. The Court also notes that there is no proof of service of process in the Court’s record. This same motion has been denied once before for the same reason.

The Court notes that Plaintiff’s most recent Case Management Statement represents that Plaintiff has been unable to effectuate service of process and Plaintiff intends to continue service efforts, including if necessary, filing an application for effecting service by publication. Such application has not yet been made. The Court will not grant this motion until process has been served upon the defendant, whether personally or through an approved alternative service method. 

4-5.      SCV-266409,  Jaffee v. Lawton Construction and Restoration, Inc.

Defendant CSAA Insurance Exchange’s motion for summary judgment is DENIED without prejudice. Plaintiffs’ counsel shall submit a written order consistent with this tentative ruling and in compliance with Rule 3.1312.

“If it appears from the affidavits submitted in opposition to a motion for summary judgment or summary adjudication, or both, that facts essential to justify opposition may exist but cannot, for reasons stated, be presented, the court shall deny the motion, order a continuance to permit affidavits to be obtained or discovery to be had, or make any other order as may be just.” (CCP § 437c(h).) “…[I]n cases in which the opposing party (usually the plaintiff) has been thwarted in the attempt to obtain evidence that might create an issue of material fact, or discovery is incomplete, the motion for summary judgment should not be granted.” (Krantz v. BT Visual Images, L.L.C. (2001) 89 Cal.App.4th 164, 174.) “Where the opposing party submits an adequate affidavit showing that essential facts may exist but cannot be presented timely, the court must either deny summary judgment or grant a continuance.” (Dee v. Vintage Petroleum Inc. (2003) 106 Cal.App.4th 30, 34–35.)

Plaintiffs have made a sufficient showing that this motion should be denied or continued because discovery is incomplete. While Plaintiffs have not detailed the specific facts that would establish the existence of controverting evidence (see Lerma v. County of Orange (2004) 120 Cal.App.4th 709), Plaintiff’s representation that they have noticed the deposition of Defendant’s person most qualified 5 times and have yet been able to depose that person is sufficient to show that this motion should not be ruled upon at this juncture. At the very least, the Court must first rule on Plaintiffs’ pending motion to compel depositions set to be heard on July 5, 2024.

Even further telling that this motion is not ripe for determination is the fact that the defendant has joined in a motion to appoint a discovery referee for this matter. This is further evidence that essential facts may yet be discovered. Defendant’s motion to appoint a discovery referee is being heard concurrent with this motion for summary judgment.

The Court finds that denial of the instant motion is more appropriate than a continuance because it cannot be determined how much more time is needed to complete discovery in this matter. While the trial date is currently set for July 12, 2024, with the appointment of the discovery referee being less than one month before this trial date, it is unlikely that the current trial date will stand. Furthermore, if further evidence is discovered that supports this motion, Defendant would need to supplement its briefing. Rather than receiving supplemental briefing from the parties after discovery is completed, the Court prefers to receive new briefs stating the parties’ entire arguments.

Defendant may file a renewed motion for summary judgment based on the statutory deadlines as they relate to the newly set trial date.

MOTION TO APPOINT DISCOVERY REFEREE

This matter comes on calendar for the second time for defendant Lawton Construction’s motion to appoint a discovery referee. The motion is GRANTED. Tad Shapiro of the Arbitration and Mediation Center is appointed as discovery referee. The parties shall divide the costs of the referee equally unless the referee apportions them differently. 

Lawton’s counsel shall submit a written order consistent with this tentative ruling and compliant with California Rules of Court, Rule 3.1312.

I.                   Background

This is a construction defect and insurance bad faith lawsuit by plaintiff homeowners Morgan and Nicole Jaffee (“Plaintiffs”) against Lawton Construction and its principals Brett Lawton and Michael Massa (collectively “Lawton”) and insurer CSAA (“CSAA”). The action arises from repairs performed by Lawton on Plaintiffs’ home after the hardwood floors in their kitchen sustained water damage from a leaking dishwasher. The operative First Amended Complaint, filed on February 11, 2021, alleges causes of action against CSAA for bad faith and breach of contract, against Lawton for breach of implied warranty, breach of contract, and conversion, and against all defendants for negligence and fraud. CSAA filed a cross-complaint for indemnity against Lawton on April 21, 2021.

A.    Discovery motions

On February 28, 2022, Plaintiffs served discovery demands on Lawton consisting of form interrogatories, special interrogatories, requests for admission, and requests for production of documents. When they received no responses on July 22, 2022, Plaintiffs filed two motions: the first to compel responses to the discovery demands, and the second to deem the requests for admissions to be admitted. On August 9, the Court ordered the parties to participate in the discovery facilitator program. On November 30, the facilitator filed a report stating that he “was unable to resolve the dispute.” Nevertheless, Lawton served Plaintiffs with verified responses to the discovery demands on November 29. After a hearing on December 14, the Court denied the motions as moot because the responses had been served, but imposed sanctions in the amount of $2,380.

Shortly before that hearing, on December 5, 2022, CSAA served construction-related form interrogatories on Plaintiffs. After several extensions, Plaintiffs responded in early February of 2023. CSAA’s counsel deemed the responses insufficient, and a lengthy meet-and-confer process ensued. CSAA moved to compel further responses on August 7, 2023. The motion was heard on December 6, 2023. The Court denied the motion as moot based on Plaintiffs’ representation that they had provided amended responses to CSAA. The Court found that Plaintiffs had not misused the discovery process and imposed no sanctions. In their reply memorandum, CSAA argued that the amended responses were insufficient. The Court noted that the sufficiency of the responses was not at issue, and urged the parties to informally resolve their discovery disputes. 

CSAA moved for summary judgment on March 23, 2024. The motion is set for hearing on the same calendar as the instant motion.

On May 2, 2024, Plaintiffs filed a motion to compel the depositions of CSAA’s employee April Wagner and CSAA’s Person Most Knowledgeable (“PMK”); that is, either one or two depositions depending on whether or not Ms. Wagner is the PMK. On May 14 – that is, on the day before the prior hearing on the instant motion –  Plaintiffs moved to compel either two or three depositions: those of Brett Lawton, Michael Massa, and Lawton’s PMK. Both motions are currently pending.  The former is set for hearing on July 5, 2024, the latter on July 31. Trial in this matter is presently set for July 12.

B.     Previous ruling on this motion

The instant motion was previously set for hearing on May 15.  The tentative ruling posted in advance of that hearing stated, in pertinent part:

The Court is inclined to grant the instant motion.  However, for the reasons described herein, the hearing is CONTINUED to June 21, 2024. Within two weeks of the entry of this order, Plaintiffs and defendant Lawton shall each submit up to three names of potential discovery referees. Each party may file objections to the other one’s nominations within one week after that.  The Court will rule on the instant motion at the June 21 hearing, and if it grants the motion, will select a referee from the parties’ lists.

The parties have duly filed nominations and objections.

 II.                Analysis

 A.    Exceptional circumstances justify the appointment of a discovery referee.

 “A [discovery] referee may be appointed upon the agreement of the parties . . . .”  (CCP § 638.) If the parties do not agree, “the court may, upon the written motion of any party, or of its own motion, appoint a referee” under several conditions. As relevant here, one such condition is when the court “determines that it is necessary.” (CCP § 639(a)(5).) When the court appoints a referee for that reason, the court’s order must describe “the exceptional circumstances requiring the reference, which must be specific to the circumstances of the particular case.” (CCP § 639(d)(2).) 

The Court finds that the appointment of a discovery referee is justified by three exceptional circumstances: (1) the multiplicity of discovery motions in this matter to date; (2) the fact that a prior referral to the Court’s Discovery Facilitator program was unable to achieve resolution of the parties’ discovery disputes; (3) the fact that over four years into this litigation, with trial set for three weeks away, and after one party has moved for summary judgment, Plaintiffs are still seeking court intervention in their attempts to take up to five different depositions. These circumstances lend substantial credibility to Lawton’s prediction of an “increased likelihood that the parties will require repeated court intervention on order for the myriad of issues to be addressed and resolved before trial – or any other resolution – can be completed.” (MPA at p. 5.) The Court agrees with Lawton that “appointing a discovery referee will aid [in] having discovery issues resolved in an expeditious manner that saves the Court’s time and resources.”  (Ibid.)

B.     Choice of discovery referee

Plaintiff has expressed a preference for referral to the Discovery Facilitator program. The Court has ordered such a referral once already, on August 9, 2022. It resulted in the facilitator reporting that “[u]nfortunately, [he] was unable to resolve the dispute.” Because the Court lacks confidence that the result would be any different this time, it will not take that approach.

In the alternative, Plaintiffs have nominated three attorneys who work with the Arbitration and Mediation Center in Santa Rosa: Robert Murray, Philip Kelly, and Tad Shapiro. Lawton has nominated three attorneys: Grant Woodruff, Peter Dekker, and Melissa Aliotti. 

III.             Conclusion

The motion is GRANTED. Tad Shapiro of the Arbitration and Mediation Center is appointed discovery referee. The Court will initially order the parties to equally split the cost of the referee.  However, the Court will be amenable to modifying that order upon Mr. Shapiro’s recommendation. 

6.         SCV-259857, Woodland State Theatre, LLC v. Ritchey

Plaintiff’s motion to compel Defendants to complete arbitration or, in the alternative, to enter judgment pursuant to the interim arbitration award is GRANTED in part and DENIED in part. The motion to compel Defendants to complete arbitration is DENIED. The motion to enter judgment pursuant to the interim arbitration award is GRANTED. The previous order entered on this motion is VACATED (entered August 23, 2023). Plaintiff’s counsel shall submit a written order consistent with this tentative ruling and a proposed judgment in compliance with Rule 3.1312.

This motion was filed on April 5, 2023 and ultimately heard on August 23, 2023. At that time, the Court found that the motion should be denied for various reasons explained in the Court’s tentative ruling. At the recent April 23, 2024 hearing on an order to show cause, the Court heard compelling argument for placing the instant motion back on calendar for further argument. After reviewing the matter once more and considering the lengthy period of time within which Defendants have failed to pay the remaining arbitration fees, the Court has been compelled to issue the instant ruling on Plaintiff’s motion.

The Court finds, based on the record before the Court and based on the length of time that has elapsed without payment by Defendants, that Defendants’ failure to pay the remaining arbitration fees is done in bad faith. After receiving an adverse interim arbitration award, Defendants stopped paying their share of the arbitration fees. The Court finds that Defendants did so deliberately in order to avoid the issuance of a final arbitration award. The interim arbitration award was entered on September 24, 2021. Defendants subsequently failed to pay their final JAMS fees of $2,800. It has been over two and a half years since the interim arbitration award was entered and over a year since the instant motion was filed, yet Defendants have still failed to pay the remaining balance. Given that the remaining balance is a minimal amount, it is implausible that Defendants would have been unable to accumulate the funds for the payment in over two years. It is the Court’s conclusion that Defendants refrained from paying in order to avoid a final arbitration award.

Defendants’ opposition provides no explanation for their refusal to pay and provides no evidence that the final arbitration award would be anything different than the interim arbitration award. The interim arbitration award disposes of every issue necessary to determine the controversy. (CCP § 1283.4.)

“California's Constitution provides the courts, including the Courts of Appeal, with inherent powers to control judicial proceedings. [Citations.] To the same effect, Code of Civil Procedure section 128, subdivision (a)(8) authorizes every court ‘[t]o amend and control its process and orders so as to make them conform to law and justice.’ This provision is consistent with and codifies the courts' traditional and inherent judicial power to do whatever is necessary and appropriate, in the absence of controlling legislation, to ensure the prompt, fair, and orderly administration of justice.”

(Kinney v. Clark (2017) 12 Cal.App.5th 724, 740.) Pursuant to the Court’s inherent authority over the proceedings (CCP § 128), the Court finds it is in the interest of promptness, fairness, and orderly administration of justice to regard the interim arbitration award as the final arbitration award. Accordingly, judgment shall be entered pursuant to the terms of the interim arbitration award.

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