August 21, 2019

A A A
Civil Tentative Ruling Announcement
Print

If the Tentative Ruling in your case is satisfactory, you need not appear at the scheduled time, the ruling becomes final, and the prevailing party prepares the order.

However, if you are not satisfied with the Tentative Ruling, and wish to appear and argue the matter, YOU MUST NOTIFY the Clerk’s Office and opposing counsel of your intent before 4:00 p.m. TODAY. If a TELEPHONIC HEARING is requested per CCP §367.5, COURT CALL MUST be notified AND the Clerk’s Office MUST also be notified before 4:00 p.m. TODAY.

When doing so, you must indicate as to which issue(s) and/or motion(s) a hearing is being requested. If requesting a hearing for clarification of a tentative ruling, specify what matter(s) and/or issue(s) need clarification.

You may request a hearing by calling the calendar line at (209) 530-3162 or the main line at (209) 530-3100, prior to 4:00 p.m. - OR- by e-mailing at civil.tentatives@stanct.org Email requests must be made prior to 4:00 p.m. AND confirmed by return e-mail. If you do not receive confirmation e-mail from the clerk, you MUST call (209) 530-3162 to request your hearing.

Please refer to Local Rule of Court 3.12 concerning Court reporter fees.

If a Hearing is required or you have requested a Hearing for a Law and Motion Matter Scheduled in Department 21, 22, 23 or 24 in Modesto, please contact the Court Reporter Coordinator at (209) 530-3105 to request a reporter and determine availability. If a Staff Reporter is not available, you may need to provide your own.

Effective April 2, 2012

Staff Court Reporters may be available, though it is not guaranteed, to report law and motion matters on the following schedule:

Department 21 -- Wednesdays and Fridays only. Staff Reporters may be available on Tuesdays and Thursdays. Please call to confirm.
Department 22 -- Tuesdays and Thursdays only. Staff Reporters may be available on Wednesdays and Fridays. Please call to confirm.
Department 23 -- Wednesdays and Fridays only. Staff Reporters may be available on Tuesdays and Thursdays. Please call to confirm.
Department 24 -- Tuesdays and Thursdays only. Staff Reporters may be available on Wednesdays or Fridays. Please call to confirm.

If a Staff Reporter is not available, counsel can make arrangements to have their hearing reported by a private CSR. Please contact the Court Reporter Coordinator at (209)530-3105 to request a Staff Reporter and to determine if a Staff Reporter will be available for your hearing.

August 21, 2019

 

 

The following are the tentative rulings for cases calendared before Judge Marie S. Silveira in Department 21:

 

 

2017930 – DORADO, ORALIA IBARRA VS. CITY OF MODESTO – Defendant’s Motion to Continue Settlement Conference and Jury Trial – GRANTED.

 

The parties are to appear for a Case Management Conference on September 3, 2019, at 3:00 p.m. in Department 21, to select a new trial date.

 

 

CV-18-000290 – LOPEZ, STEPHANY VS. MEDAMERICA BILLING SERVICES, INC. – Defendant’s Motion for Summary Judgment, or in the Alternative, Motion for Summary Adjudication – DENIED.

 

Defendant’s admissible moving evidence and undisputed material facts met its moving burden and shifted the burden to Plaintiff to demonstrate a triable dispute of material fact. Plaintiff’s admissible evidence submitted in opposition demonstrates that there is a triable dispute of material fact, at a minimum, as to whether Defendant failed to reasonably accommodate Plaintiff’s disability during the relevant time period preceding Plaintiff’s termination, i.e. August 22, 2017 – August 30, 2017.  Specifically, Plaintiff presents conflicting evidence with regard to whether Defendant bears at least some of the responsibility for the breakdown in the interactive process involved in Defendant’s evaluation of Plaintiff’s accommodation request during the relevant time period. See, at least, Plaintiff’s Additional Material Facts 64-66.

 

The Court finds that Defendant’s argument and evidence relative to the claim that Plaintiff was terminated for reasons unrelated to her request for accommodations (i.e. alleged violation of Defendant’s absence policies), are not properly before the Court in connection with this motion, as Defendant’s Separate Statement failed to identify such information as material to the adjudication of the subject cause of action.  Assuming arguendo that such facts were properly before the Court, Plaintiff has identified material factual disputes with regard to whether Defendant’s action constituted a failure to engage in the interactive process in good faith under the circumstances.  See, at least, Plaintiff’s Additional Material Facts #64, 66, 70.

 

Plaintiff’s Objection #3 to Defendant’s evidence is SUSTAINED, IN PART, as to the Declaration of Desiree Felix at para. 14, page 4, lines 14-15, based on speculation.  Plaintiff’s remaining objections are OVERRULED.

 

 

CV-18-004154 – CAVALRY SPV I LLC VS. AREVALO, ESTEBAN – Plaintiff’s Motion for Order:  Truth of Matters Specified in Requests for Admissions Be Deemed Admitted – GRANTED, and unopposed.

 

 

CV-19-000208 – BAZOS, EFFIE VS. SUTTER VALLEY HOSPITALS – a) Defendant Central Valley Specialty Hospital’s Demurrer to Plaintiff’s Second Amended Complaint – OVERRULED.

 

While plaintiffs must allege their first cause of action, including the element of ratification, with specificity (see, e.g., Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795), the court finds they have adequately done so.  The court finds the first amended complaint, which alleges decedent was deprived of specific types of necessary medical care “many times each day for the entirety of decedent’s care at defendants’ facilities” during specified dates (FAC, ¶ 12), is adequately specific.  Also, because it alleges staff failed to follow doctor’s orders regarding skin breakdown despite knowledge of the harm posed to decedent, the first amended complaint pleads acts that could constitute actionable neglect of an elder.  (Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 90.)  In addition, the SAC pleads ratification by alleging plaintiffs complained about decedent’s care to “individuals who are believed to be charge nurses and/or nurses who were charged with the responsibility for overseeing the care and treatment provided to decedent reviewing and evaluating patient care policies and procedures, planning for improvement of medical care in the facility, and assuring that patient care policies and procedures and medical care policies and procedures were being followed regarding decedent and in the patient population generally.”  (SAC, ¶ 14; see White v. Ultramar, Inc. (1999) 21 Cal.4th 563, 573 [As a general rule, employees with discretion to set corporate policy qualify as managing agents.].)  The court does not find in the SAC support for the idea that plaintiffs can only have complained to “care staff” who could in no way possess discretion to set policy.  The court also does not find authority requiring plaintiffs to identify these alleged managing agents by name, as “[l]ess specificity is required when ‘it appears from the nature of the allegations that the defendant must necessarily possess full information concerning the facts of the controversy.” ’  (Committee On Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 217 [holding, among other things, that plaintiffs suing over deceptive advertising could summarize the evidence on which they based their claims because “considerations of practicality enter in.”])  Plaintiffs have alleged they cannot currently process all of the information they have because decedent’s records contain illegible handwriting.  The court finds the SAC alleges the first cause of action for elder abuse with enough specificity for defendant to meaningfully respond and for the parties to conduct discovery.  The court overrules the demurrer to the fourth cause of action for negligent infliction of emotional distress because plaintiffs have alleged they personally witnessed decedent’s suffering.  (SAC, ¶ 30; Bird v. Saenz (2002) 28 Cal.4th 910, 919–920.)

 

b) Defendant Central Valley Specialty Hospital’s Amended Motion to Strike Portions of Second Amended Complaint – GRANTED in part, DENIED in part.

 

The court GRANTS the motion to strike as to the request for treble damages under the provisions of Civil Code section 3345, as there is no authority for application of that section in the instant context.  The motion is DENIED as to all remaining grounds.

 

 

The following are the tentative rulings for cases calendared before Judge Stacy P. Speiller in Department 22:

 

 

***There are no tentative rulings for Department 22***

 

 

The following are the tentative rulings for cases calendared before Judge John D. Freeland in Department 23:

 

 

CV-18-001985 – PRESTON, ROGER D. VS. GURR, BRADY I. – Defendants’ Motion to Compel Plaintiffs’ Responses to General Form Interrogatories, Set One, Special Interrogatories, Set One, Request for Production of Documents, Set One and Request for Monetary Sanctions – GRANTED, in part; DENIED, in part; and unopposed.

 

The Court finds that Plaintiff has entirely failed to respond to the subject discovery and all objections have been waived. (Code Civ. Proc. §§2030.290(a), 2031.300(a).) Therefore, Defendant shall provide answers, without objection, and shall produce responsive documents within 30 days of service of notice of entry of the order. 

 

The Court declines to award sanctions based on the fact that the circumstances reflected in the meet-and-confer correspondence submitted with the motion appear to be such that a sanctions award would be unjust in this context. (Code Civ. Proc. §§2030.290(c), 2031.300(c).)

 

 

CV-18-004582 – EXCEL MONTE VISTA LLC VS. SARKISSIAN, EDWIN – Defendant Marina Khezri’s Motion to Set Aside Default Judgment and Return of Funds – GRANTED.

 

The Court finds that Defendant has established sufficient grounds for relief.  Plaintiff has not demonstrated that Defendant Khezri was properly served with the instant action pursuant to the provisions of Code Civ. Proc. 415.20. The burden is on the Plaintiff to prove the existence of jurisdiction due to effective service.  (Summers v. McClanahan (2006) 140 Cal.App.4th 403, 413.) Here, the proof of service does not create a presumption of validity because it was not executed by a registered process server.  Moreover, the declaration of diligence is of no evidentiary value as it was not executed by the individual (now deceased) who purportedly made the described service attempts.  Lastly, the information set forth in Plaintiff’s counsel’s declaration does not support the conclusion that substituted service was made at a location where Ms. Khezri was “most likely to receive actual notice.”  (Zirbes v. Stratton (1986) 187 Cal.App.3d 1407, 1415-17.) 

 

Therefore, the motion is GRANTED and the default judgment is set aside as void for lack of personal jurisdiction. (Code Civ. Proc. 473(d).)  As a result, the subsequent abstract of judgment and writ of execution are also invalid and Plaintiff shall promptly return the levied amount of $7,824.68 to Defendant.

 

 

The following are the tentative rulings for cases calendared before Judge Roger M. Beauchesne in Department 24:

 

 

CV-19-000409 – DOE, JANE VS. WORLD INTERNATIONAL LLC – Defendant’s Motion to Compel Plaintiff’s Deposition - HEARING REQUIRED.

 

 

CV-18-004786 – CITIBANK NA VS. DENNYS, NOEMI – Plaintiff’s Motion for Judgment on the Pleadings – GRANTED, and unopposed. 

 

The Court finds that the Complaint states facts sufficient to constitute the stated cause of action against the Defendant, and the Answer does not state facts sufficient to constitute a defense. (Code Civ. Proc. §438(c)(1)(A).)   Therefore, the motion is GRANTED.  Judgment shall be entered on the underlying debt in the amount of $3,095.29.  In addition, Plaintiff is entitled to costs pursuant to Code Civ. Proc. §1032.   However, the Court finds that Plaintiff has failed to set forth the basis for calculation of the claimed costs. Therefore, the Court declines to include the requested amount for those items at this time.  Plaintiff may file a memorandum of costs as provided by statute.

 

 

The following are the tentative rulings for cases calendared before Commissioner Jared D. Beeson in Department 19 located at the Turlock Division at 300 Starr Avenue, Turlock, CA:

 

 

***There are no tentative rulings for Department 19***