Superior Court, State of California

SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
Department 8, Honorable Maureen A. Folan, Presiding
Lorna Delacruz, Courtroom Clerk
Keith Rowan, Court Reporter
191 North First Street, San Jose, CA 95113
Telephone: 408.882.2180
To contest the ruling, call (408) 808-6856 before 4:00 P.M.
LAW AND MOTION TENTATIVE RULINGS
DATE: April 14, 2015 TIME: 9 A.M.
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CASE #
CASE TITLE
RULING
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106CV065245 National Credit Acceptnce, Order of Examination. Proof of Service
Inc. vs. M. Bejarano
Needed.
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112CV236523 M. Shekarchi vs. V.
Granucci, et al
Defendants Victoria Granucci and Michael
Kelly dba Kinetic Properties (and formerly
dba KelWest Properties) Demurrer to
Plaintiff’s Second Amended Complaint is
UNOPPOSED and SUSTAINED WITHOUT
LEAVE TO AMEND. All causes of action
asserted against moving defendants fail to
state facts sufficient to constitute a cause or
causes of action against them. Defendants’
Request for Judicial Notice is GRANTED.
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114CV273777 Herspring, Inc., et al vs.
The Sturdivant Co. et al
Click Control Line 3 for Tentative Ruling
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115CV275952 J. Roldan, et al vs. U.S.
Bank, N.A., et al
Click Control Line 4 for Tentative Ruling
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114CV270870 W. Newby vs. T. Choi
Defendant’s Motion to Strike Punitive
Damages is GRANTED. Plaintiff failed to
obtain the required pre-filing order to assert a
claim for punitive damages in this action.
See, CCP Sections 425.13, 435, 436 and 437.
The following shall be stricken from
Plaintiff’s Second Amended Complaint on
page 2 of the Judicial Council complaint
form paragraph 14(a)(2), (2) “Plaintiff
prays…for punitive damages …in the amount
of $24,000.”
SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
Department 8, Honorable Maureen A. Folan, Presiding
Lorna Delacruz, Courtroom Clerk
Keith Rowan, Court Reporter
191 North First Street, San Jose, CA 95113
Telephone: 408.882.2180
To contest the ruling, call (408) 808-6856 before 4:00 P.M.
LAW AND MOTION TENTATIVE RULINGS
LINE 6
111CV212814 M. Clarke vs. City of
Santa Clara, et al
Click Control Line 6 for Tentative Ruling
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113CV247326 D. Webster vs. City of San Click control Line 7 for Tentative Ruling
Jose, et al
LINE 8
115CV277889 Chao-Fu, Inc., et al vs. J.
Visitacion, et al
The Petition to Confirm Arbitration Award is
UNOPPOSED and GRANTED, good cause
appearing.
LINE 9
115CV277968 Jen-Tee, LLC In Re: J.
Mammini
Petitioner’s Request for Approval of Transfer
of Structured Settlement Payment Rights is
UNOPPOSED and GRANTED, good cause
appearing pursuant to California Insurance
Code Section 10139.5 and other applicable
sections of the Insurance Code. Petitioner
must submit order for Court to sign.
LINE 10 114CV271707 M. Rios vs. Mi Pueblo
Food Center
The Court does not have a Proof of Service
indicating plaintiff’s counsel has properly
served the plaintiff with the motion to
withdraw as counsel of record. Plaintiff’s
counsel contacted the clerk on 4-10-15 and
asked that this motion be taken off calendar.
LINE 11 110CV188671 M. Hager vs. National
Semiconductor
Corporation
Continued to 6-2-15 at 9 am per Stipulation
and Order
LINE 12 112CV229527 Electro Magnetic Test, Inc. Advanced to 4-2-14 at 9 am pursuant to exvs. Six9’s Reliable, LLC, parte filed 3-23-15. The Motion to Withdraw
et al
was GRANTED.
LINE 13 112CV232891 K. Borgman, et al vs.
Insphere Insurance
Solutions, Inc., et al
Off Calendar per Moving Party
LINE 14 114CV266387 S. Moualem vs.
CDNetworks, Inc., et al
Off Calendar
LINE 15 114CV266537 A. Rhodes vs. American
Media Solutions
Off Calendar; Set in Error
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SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
Department 8, Honorable Maureen A. Folan, Presiding
Lorna Delacruz, Courtroom Clerk
Keith Rowan, Court Reporter
191 North First Street, San Jose, CA 95113
Telephone: 408.882.2180
To contest the ruling, call (408) 808-6856 before 4:00 P.M.
LAW AND MOTION TENTATIVE RULINGS
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Case Name: Herspring, Inc., et al. v. Stapleton-Spence Packing Co., Inc., et al.
Case No.:
1-14-CV-273777
Demurrer and Motion to Strike by Defendants Stapleton-Spence Packing Company, Inc.,
Rio Pluma Inc., Rio Pluma Company LLC and Martin Bradley Stapleton to the First
Amended Complaint
Factual and Procedural Background
This is an action for collection and fraud. Plaintiffs and Defendants were in a business
relationship where Plaintiffs brokered Defendants products on a commission basis. The
lawsuit seeks payment of outstanding commissions and damages resulting from Defendants’
alleged statements and promises.
On February 3, 2015, Plaintiffs filed a first amended complaint (“FAC”), now the
operative pleading, asserting the following causes of action: (1) collection [by Herspring, Inc.
and Herspring-Gibbs, LLC]; (2) collection [by J.G. Neil & Company, Inc.]; (3) collection [by
Slaybaugh Associates, Inc.]; (4) collection [by The Sturdivant Co.]; and (5) fraud and deceit.
On March 3, 2015, Defendants filed a demurrer to the fifth cause in the FAC on the
grounds of uncertainty and failure to state a claim. (See Code Civ. Proc. § 430.10, subd. (e),
(f).) Defendants have also filed a motion to strike Plaintiffs’ request for punitive damages.
Plaintiffs filed written opposition to the motions. Defendants filed reply papers.
Demurrer to the Fifth Cause of Action in the FAC
1. Legal Standard
“In reviewing the sufficiency of a complaint against a general demurer, we are guided
by long settled rules. ‘We treat the demurrer as admitting all material facts properly pleaded,
but not contentions, deductions or conclusions of fact or law. We also consider matters which
may be judicially noticed.’” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “A demurrer tests
only the legal sufficiency of the pleading. It admits the truth of all material factual allegations
in the complaint; the question of plaintiff’s ability to prove these allegations, or the possible
difficulty in making such proof does not concern the reviewing court.” (Committee on
Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213–214.)
“The reviewing court gives the complaint a reasonable interpretation, and treats the
demurrer as admitting all material facts properly pleaded. The court does not, however,
assume the truth of contentions, deductions or conclusions of law. … [I]t is error for a trial
court to sustain a demurrer when the plaintiff has stated a cause of action under any possible
legal theory. And it is an abuse of discretion to sustain a demurrer without leave to amend if
the plaintiff shows there is a reasonable possibility any defect identified by the defendant can
be cured by amendment.” (Gregory v. Albertson’s, Inc. (2002) 104 Cal.App.4th 845, 850.)
2. Defendants’ Request for Judicial Notice
Defendants’ request for judicial notice is GRANTED. (Evid. Code § 452, subds. (d),
(h); see Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91
Cal.App.4th 875, 882 [while courts are free to take judicial notice of the existence of each
document in a court file, including the truth of results reached, they may not take judicial
notice of the truth of hearsay statements in decisions and court files].)
3. Uncertainty
Demurrers for uncertainty are disfavored and will only be sustained where the pleading
is so bad that the defendant cannot reasonably respond, i.e., he or she cannot reasonably
determine what issues must be admitted or denied, or what counts or claims are directed
against him or her. (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616.) “A
demurrer for uncertainty is strictly construed, even where a complaint is in some respects
uncertain, because ambiguities can be clarified under modern discovery procedures.” (Ibid.)
With respect to uncertainty, Defendants argue that Plaintiffs fail to allege sufficient
facts to support the fraud claim. (See Memo of P’s & A’s at p. 8.) However, such an argument
relates to a general demurrer for failure to state a claim which will be addressed below, not
uncertainty. Accordingly, Defendants’ demurrer to the fifth cause of action on the ground of
uncertainty is OVERRULED.
4. Failure to State a Cause of Action
“The elements of fraud are (1) the defendant made a false representation as to a past or
existing material fact; (2) the defendant knew the representation was false at the time it was
made; (3) in making the representation, the defendant intended to deceive the plaintiff; (4) the
plaintiff justifiably relied on the representation; and (5) the plaintiff suffered resulting
damages.” (West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780, 792 [citation
omitted].)
“Fraud must be pleaded with specificity rather than with general and conclusory
allegations. The specificity requirement means 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., supra, 214 Cal.App.4th at p. 793 [citation and quotation marks omitted].)
Courts enforce the specificity requirement in consideration of its two purposes. (West
v. JPMorgan Chase Bank, N.A., supra, 214 Cal.App.4th at p. 793.) The first purpose is to give
notice to the defendant with sufficiently definite charges that the defendant can meet them.
(Ibid.) The second is to permit a court to weed out meritless fraud claims on the basis of the
pleadings; thus, the pleading should be sufficient to enable the court to determine whether, on
the facts pleaded, there is any foundation, prima facie at least, for the charge of fraud. (Ibid.)
Here, Plaintiffs have not met the specificity requirement to support their fifth cause of
action for fraud and deceit. For example, Plaintiffs fail to allege facts establishing an intent to
defraud, knowing falsity, or justifiable reliance to support a fraud claim. Instead, Plaintiffs
only generally allege that Defendants made certain statements, promises, and assurances that
they relied upon. (See FAC at ¶ 29.) Contrary to Plaintiffs’ argument in opposition, neither
the prior allegations of the FAC nor the bills of particular assist them in stating a valid fraud
cause of action.
Therefore, Defendants’ demurrer to the fifth cause of action is SUSTAINED WITH 10
DAYS’ LEAVE TO AMEND for failure to state a claim.
Motion to Strike Plaintiffs’ Request for Punitive Damages
Given the court’s ruling on the demurrer, the motion to strike Plaintiffs’ request for
punitive damages is MOOT.
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Case Name: Julio Roldan and Ericka Roldan v. U.S. Bank, N.A., et al.
Case No.:
1-15-CV-275952
Demurrer by Defendants U.S. Bank, N.A., Recontrust Company, N.A., and Nationstar
Mortgage LLC to the Complaint of Plaintiffs Julio Roldan and Ericka Roldan
Factual and Procedural Background
This is a wrongful foreclosure action. Plaintiffs Julio Roldan and Ericka Roldan
(collectively, “Plaintiffs”) seek damages and injunctive relief against defendants arising out of
foreclosure activity related to property located at 15080 Llagas Avenue, San Martin, CA
95046. On January 23, 2015, Plaintiffs filed a complaint asserting causes of action for: (1)
declaratory judgment; (2) wrongful foreclosure; (3) violation of the Fair Debt Collection
Practices Act; (4) breach of the contractual duty of good faith and fair dealing; (5) cancellation
of instruments; and (6) violation of unfair competition law.
On March 3, 2015, defendants U.S. Bank, N.A., Recontrust Company, N.A., and
Nationstar Mortgage LLC (collectively, “Defendants”) filed the motion presently before the
court, a demurrer to the complaint on the ground that it fails to state a claim. (See Code Civ.
Proc. § 430.10, subd. (e).) Defendants also filed a request for judicial notice in conjunction
with their demurrer. Plaintiffs filed written opposition. 1 Defendants filed reply papers.
Demurrer to the Complaint
5. Legal Standard
“In reviewing the sufficiency of a complaint against a general demurer, we are guided
by long settled rules. ‘We treat the demurrer as admitting all material facts properly pleaded,
but not contentions, deductions or conclusions of fact or law. We also consider matters which
may be judicially noticed.’” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “A demurrer tests
only the legal sufficiency of the pleading. It admits the truth of all material factual allegations
in the complaint; the question of plaintiff’s ability to prove these allegations, or the possible
difficulty in making such proof does not concern the reviewing court.” (Committee on
Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213–214.)
“The reviewing court gives the complaint a reasonable interpretation, and treats the
demurrer as admitting all material facts properly pleaded. The court does not, however,
assume the truth of contentions, deductions or conclusions of law. … [I]t is error for a trial
court to sustain a demurrer when the plaintiff has stated a cause of action under any possible
legal theory. And it is an abuse of discretion to sustain a demurrer without leave to amend if
the plaintiff shows there is a reasonable possibility any defect identified by the defendant can
be cured by amendment.” (Gregory v. Albertson’s, Inc. (2002) 104 Cal.App.4th 845, 850.)
6. Defendants’ Request for Judicial Notice
1
The court notes that Plaintiffs filed an oversized memorandum in violation of California Rules of Court, rule
3.1113(d). Plaintiffs did so without permission from the court under California Rules of Court, rule 3.1113(e).
The court will overlook this procedural defect but admonishes Plaintiffs to adhere to court rules with respect to
future filings.
Defendants’ request for judicial notice is GRANTED. (See Evid. Code § 452, subds.
(d), (h); see Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 264 [courts may
take judicial notice of the existence and recordation of real property records].)
7. First Cause of Action: Declaratory Judgment
Defendants’ demurrer to the first cause of action [declaratory judgment] is
SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND for failure to state a claim. Plaintiffs
fail to allege an actual controversy to support their claim for a declaratory judgment. (See
Jenkins v. JPMorgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497, 513 [the fundamental
basis of declaratory relief is the existence of an actual, present controversy over a proper
subject].) In particular, Plaintiffs fail to allege how purported “gaps” in the chain of contract
relieve them of their obligation to make loan payments or prevent nonjudicial foreclosure
proceedings following a default. (See Herrera v. Federal National Mortgage Assn. (2012) 205
Cal.App.4th 1495, 1507 [“Because a promissory note is a negotiable instrument, a borrower
must anticipate it can and might be transferred to another creditor. As to plaintiff, an
assignment merely substituted one creditor for another, without changing her obligations under
the note.”]; Boyce v. T.D. Service Co. (2015) 2015 Cal.App.LEXIS 254 at pp. *12-13 [same].)
Plaintiffs’ opposition does not cite any legal authority to support this position.
8. Second Cause of Action: Wrongful Foreclosure
Defendants’ demurrer to the second cause of action [wrongful foreclosure] is
SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND for failure to state a claim. To recover
on a wrongful foreclosure claim, a borrower must demonstrate that the alleged imperfection in
the foreclosure process was prejudicial; no prejudice exists where a borrower was in default
and the assignment of the loan did not interfere with the borrower’s ability to pay. (Fontenot v.
Wells Fargo Bank, N.A., supra, 198 Cal.App.4th at p. 272.) Here, Plaintiffs fail to allege facts
showing prejudice as a result of irregularities in the foreclosure process. (See Siliga v.
Mortgage Electronic Registration Systems, Inc. (2013) 219 Cal.App.4th 75, 85 [borrowers
lacked standing to complain about loan servicer’s and assignee’s alleged lack of authority to
foreclose on deed of trust where borrowers were in default under the note, absent evidence that
the original lender would have refrained from foreclosure].)
9. Third Cause of Action: Violations of Fair Debt Collection Practices Act
Defendants’ demurrer to the third cause of action [Violations of Fair Debt Collection
Practices Act] is SUSTAINED WITHOUT LEAVE TO AMEND for failure to state a claim.
The conduct Plaintiffs complain of concern foreclosure related actions in connection with their
residential mortgage. (See Complaint at ¶¶ 61-65.) This conduct is not covered by the
FDCPA. (See Izenberg v. ETS Servs., LLC (C.D. Cal. 2008) 589 F.Supp.2d 1193, 1199; see
also Pfeifer v. Countrywide Home Loans, Inc. (2012) 211 Cal.App.4th 1250, 1264 [giving
notice of a foreclosure sale to a consumer as required by the Civil Code does not constitute
debt collection activity under the FDCPA].) Since Plaintiffs’ opposition fails to address the
third cause of action, leave to amend is denied. (See Goodman v. Kennedy (1976) 18 Cal.3d
335, 349 [plaintiff must show in what manner he can amend his complaint and how that
amendment will change the legal effect of his pleading].)
10. Fourth Cause of Action: Breach of the Implied Covenant of Good Faith and Fair
Dealing
Defendants’ demurrer to the fourth cause of action [breach of the implied covenant of
good faith and fair dealing] is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND for
failure to state a claim. “The covenant of good faith and fair dealing is imposed upon each
party to a contract.” (Carma Developers (Cal.), Inc. v. Marathon Development California, Inc.
(1992) 2 Cal.4th 342, 371.) This fundamental covenant prevents the contracting parties from
taking actions that will deprive another party of the benefits of the agreement. (Id. at p. 372.)
Here, Plaintiffs fail to allege any conduct on the part of Defendants that frustrated their ability
to receive benefits under the loan modification agreement. (See Pasadena Live v. City of
Pasadena (2004) 114 Cal.App.4th 1089, 1094 [the implied covenant of good faith and fair
dealing is limited to assuring compliance with the express terms of the contract, and cannot be
extended to create obligations not contemplated by the contract]; see also Pazargad v. Wells
Fargo Bank, N.A. (C.D. Cal. 2011) 2011 U.S. Dist. LEXIS 94850 at p. *11 [district court
determined that defendants did not act in bad faith by failing to extend to a loan modification to
plaintiffs nor did they have a legal duty to do so].)
11. Fifth Cause of Action: Cancellation of Instruments
Defendants’ demurrer to the fifth cause of action [cancellation of instruments] is
SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND for failure to state a claim. As a
threshold matter, Plaintiffs fail to identify which defendants are subject to the fifth cause of
action in their complaint. To the extent that the claim is based on Civil Code section 1558, the
court sustains the demurrer for the reasons stated above with respect to the first cause of action.
Similarly, to the extent that the claim is based on an assignment of interest after the
closing date of a pooling and servicing agreement, Plaintiffs were not parties to such an
agreement. (See Jenkins v. JP Morgan Chase Bank, N.A., supra, 216 Cal.App.4th at p. 515 [a
plaintiff lacks standing to enforce any agreements, including the investment trust’s pooling and
servicing agreement, relating to such transaction]; see also Gilbert v. Chase Home Fin., LLC
(E.D. Cal. 2013) 2013 U.S. Dist. LEXIS 74772 at p. *9 [district court found that plaintiffs were
not parties to a PSA and do not have standing to raise violations of a PSA or to otherwise bring
claims on the basis that a PSA was violated].) To the extent that Plaintiffs rely on Glaski v.
Bank of America (2013) 218 Cal.App.4th 1079 (“Glaski”) in opposition, the weight of
California state and federal district courts have soundly rejected Glaski which appears to
represent a minority view. (See Jenkins v. JPMorgan Chase Bank, N.A., supra, 216
Cal.App.4th at pp. 514-516; Newman v. Bank of N.Y. Mellon (E.D. Cal. 2013) 2013 U.S. Dist.
LEXIS 147562 at p. *9, fn. 2 [no courts have yet followed Glaski and Glaski is in a clear
minority on the issue]; Mottale v. Kimball Tirey & St. John, LLP (S.D. Cal. 2014) 2014 U.S.
Dist. LEXIS 3398 at p. *12 [the weight of authority rejects Glaski as a minority view on the
issue of a borrower’s standing to challenge an assignment as a third party to that assignment].)
12. Sixth Cause of Action: Violation of Unfair Competition Law
Defendants’ demurrer to the sixth cause of action [violation of unfair competition law]
is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND for failure to state a claim. Since
Plaintiffs’ other claims fail to state a cause of action, the UCL claim also fails. (See Krantz v.
BT Visual Images, LLC (2001) 89 Cal.App.4th 164, 178 [the viability of a UCL claim stands or
falls with the antecedent substantive causes of action].) Also, to have standing to sue under the
UCL, a private plaintiff must allege he or she “has suffered injury in fact and has lost money or
property.” (Bus. & Prof. Code § 17204.) In Kwikset Corp. v. Sup. Ct. (2011) 51 Cal.4th 310,
the California Supreme Court held to satisfy the standing requirement of section 17204, a
plaintiff must “(1) establish a loss or deprivation of money or property sufficient to qualify as
injury in fact, i.e., economic injury, and (2) show that that economic injury was the result of,
i.e., caused by, the unfair business practice or false advertising that is the gravamen of the
claim.” (Id. at p. 322.) Here, Plaintiffs fail to allege facts to establish standing to support their
UCL claim.
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Case Name: Clarke v. City of Santa Clara
Case Nos . 111CV212814 (consolidated with 111CV215167)
On 12 March 2015, the Plaintiff filed a Motion for an order striking the Defendant’s answer and
entering a default judgment for the Plaintiff, or in the alternative for issues sanctions for Defendant’s
failure to comply with a court order compelling further responses.
On 1 April 2015, the Defendant filed formal opposition to this motion.
On 8 April 2015, the Plaintiff filed a reply in response to the Defendant’s opposition.
All parties are reminded that all papers must comply with Rule of Court 3.1110(f). 2
I.
Factual and Procedural Background.
This dispute arises out of an action in which Maureen Clark (“Plaintiff”) alleges that at an intersection
owned and controlled by the State of California (“Defendant”), an accident occurred because of a
dangerous condition of public property.
On October 29, 2013 the Plaintiff served the Defendant a Request for Production of Documents, Set
Two.
After the Defendant was granted numerous extensions of time, the Defendant’s responses were served
on Plaintiff on January 6, 2014. The Defendant found the responses to be meritless and following
attempts to meet and confer and two failed mediation sessions the Defendant filed a motion to further
compel on December 23, 2014.
On January 27, 2015 this Court issued its tentative ruling granting the Plaintiff’s motion and awarding
monetary sanctions. Plaintiff agreed to waive the monetary sanctions and the Defendant agreed not to
contest the Order.
II. Dispute.
On March 10, the Defendant served the Plaintiff with supplemental responses both through electronic
communications and by hand delivery stating, “all documents responsive to this request have been
produced or are served herewithin.” (Dell’Osso Reply Decl. Ex. A.)
On March 12, 2015 the Plaintiff filed this motion and contends that the documents delivered are not
complete, are not fully responsive, and do not comply with the Court’s January 27, 2015 Order.
Since the filing of the Plaintiff’s motion, the Defendant has produced additional documents on March
12, 2015 (Def. Opp. Ex. C) and provided a supplemental response that was served on Plaintiff on
March 20, 2015 (Def. Opp. Ex. D) Furthermore, additional documents were produced at depositions of
Defendant’s witnesses on March 17, 2015. On March 30, 2015, Defendant served responses claiming
that all responsive documents have been produced. On April 2, 2015, during a deposition of the
Plaintiff’s traffic engineering expert, the Defendant disclosed an additional traffic collision report and
attempted to cross-examine the expert. (Plaintiff Reply at 4.)
On April 8, the Plaintiff filed a reply brief to the Defendant’s opposition to this motion, which included
the Declaration of Attorney Thomas Brandi (Brandi Reply Decl.) and the Declaration of Attorney
Daniel Dell’Osso (Dell’Osso Reply Decl.)
“Each exhibit must be separated by a hard 81/2 x 11 sheet with hard paper or plastic tabs extending
below the bottom of the page, bearing the exhibit designation. An index to exhibits must be provided.
Pages from a single deposition and associated exhibits must be designated as a single exhibit.”
2
The Plaintiff contends that the Defendant has withheld documents, which has severely prejudiced the
Plaintiff. The Plaintiff argues that the Defendant has consistently stated that they have produced all
responsive documents, but they keep turning over more documents, and that through the Brandi
Declaration there is evidence that the Defendants have not turned over all responsive documents.
The Plaintiff argues that because of Defendant’s alleged failure to comply with the Production of
Documents the Court should issue an order striking the Defendant’s answer and enter a default
judgment, or in the alternative, order that the intersection where this incident occurred is deemed to
have been in a dangerous condition at the time of the incident.
III. Motion for Terminating Sanctions
On March 12, 2015, the Plaintiff filed a motion for terminating sanctions pursuant to CCP § 128.
Courts generally only exercise this authority in extreme situations, such as when the conduct was clear
and deliberate, where no lesser alternatives would remedy the situation (Lyons v. Wickhorst (1986) 42
Cal.3d 911, 917), or when the court issues a directive that the party fails to obey. (See Del Junco v.
Hufnagel, 150 Cal. App. 4th 789, 799.)
a. Conduct Failing to Obey Court Directive
On January 27, 2015 this Court issued a tentative Order grating the Plaintiff’s motion to compel and
requiring the Defendant to respond to the Request for Production of Documents, Set Two. The
Defendant did not comply with this order. On March 10, 2015 the Defendant served the Plaintiff with
supplemental responses to the Plaintiff’s Request for Production of Documents, Set Two in which the
Defendant makes the same general objections that this Court ruled on in its January 27 Order. For
instance, in the March 10 responses, the Defendant argues that Requests 74 and 75 are overbroad
(Dell’Osso Reply Delc. Ex. A), yet the court expressly rejected this contention in its January 27 Order.
(Truax Decl. Ex. A). The Court specifically stated “Defendant includes clearly copy-pasted objections
on the grounds of vagueness, ambiguousness, overbreadth, burden, attorney-client privilege, workproduct privilege, and protected by 23 U.S.C. 148 and 409. These are inappropriate boilerplate
objections.” (Truax Decl. Ex. A.) (emphasis added.) The Defendant makes the same general
inappropriate objections again. The Defendant clearly failed to obey this Court’s directive.
The Defendant argues in their opposition, filed April 1, 2015, that the Court should deny the Plaintiff’s
motion because the Defendant has produced all responsive documents. (Def. Opp. p.3) This assertion
is similar to that of the Defendant’s March 10 response where the Defendant set forth as a general
objection that “all documents responsive to this request have been produced or are served herewith.”
(Dell’Osso Reply Decl. Ex. A.) However, on March 17, the Defendant produced more than 250 pages
of additional documents. (Id.) In the Defendant’s Opposition to this motion the Defendant’s statement
that all responsive documents have been filed was not true as on April 2, 2015, when the Defendant was
deposing the Plaintiff’s traffic engineering expert, the Defendant produced a traffic collision report that
had not previously been produced. (Dell’Osso Reply Decl.) Furthermore, the Defendant at no time
provides a verified response that the documents produced are all that could be located after a diligent
search.
The Plaintiff argues that there are “substantial documents requested that have not been provided.”
(Brandi Reply Decl. at 3.) For instance, the Plaintiff argues that during the deposition of Einar Acuna,
the Defendant’s PMK on signal operations, he admitted that changes had been made to the signal
timing and that there were documents detailing those changes. (Plaintiff Reply at 5; Dell’Osso Reply
Decl. at 3.) These documents would clearly fit into many of the Requests including 74 (documents
pertaining to . . . maintenance records, and maintenance reports) and 85 (. . . any changes,
modifications, improvements, or alterations to the subject intersection.) Another example cited by the
Plaintiff is that the Defendant has provided no “as-built” plans. “As-built” plans record how the actual
contractor built the project, as the actual construction of a project may have change from the initial “asawarded” plan. (Brandi Reply Decl. at 5.) Here, the Plaintiff believes these plans exist because they
are required under the CalTrans Manual and Attorney Brandi’s roadway litigation experience where the
Defendant has turned over similar records. (Id. at 2, 6.) Furthermore, the Plaintiff argues that the
Defendant has not provided an adequate response to Request 81 for “Each Photolog of the Subject
Intersection taken since 1998.” (Id. at 9-10.) According to the Plaintiff, the Defendant has a special
vehicle that takes pictures on all State roadways every tenth of a mile. These pictures have a number
system, which indicates the date and location on the highway system. (Id.) However, the Defendant
has not produced any photologs of SR 82 or the intersection at issue in this case. Again, the Defendant
at no time provides a verified response that the documents produced are all that could be located after a
diligent search.
While the Court did not address all of the Plaintiff’s contentions the Court is persuaded that documents
exists that should have been produced by the Defendants under a direct Court order. Therefore, the
Court will have to find an appropriate remedy.
b. Remedy
If a party fails to obey an order compelling a further response, the court may make those orders just,
including through the imposition of an issue or evidentiary sanction. (C.C.P. § 2031.310(i).) Here, the
Defendant has denied a Court Order, filed their March 10 supplemental responses with responses that
the Court characterized as “clearly inappropriate boilerplate objections,” continued to produce
discovery after multiple times stating that “all documents responsive to this request have been
produced,” and failed to turn over documents that according to their employees and manuals exist.
To establish a dangerous condition of public property the plaintiff has the burden of establishing that
the property was in a dangerous condition at the time of the injury. (Cal. Gov. Code § 835.) Plaintiff
claims that the Defendant has not provided documentation relating to the changing of the timing of the
traffic signal, although it exists. (See Dell’Osso Reply Decl. at 3.) Furthermore, the Defendant failed
to produce “as-built” plans or any photologs anywhere near the intersection, although they both likely
should and do exist.
The Court believes that Defendant must be sanctioned in some manner for this conduct. However,
plaintiff did not provide any expert declarations indicating that without having information regarding
the timing of the traffic signal, the as-built plans and photologs, Plaintiff is unable to establish a
dangerous condition of the subject public property. Plaintiff’s counsel may assert that is the case but
the Court needs more reliable evidence(such as a declaration from plaintiff’s expert(s) ) that without
that information, plaintiff cannot prove a dangerous condition of the subject intersection.
The Court wants counsel to appear to address this issue as well as other possible remedies such as
continuing the trial so that the subject information can be produced and imposing a monetary sanction
on defendants for the expenses incurred for the delay. Or, some type of evidentiary sanction may be
appropriate. However, the Court needs more information before deciding this issue. The Court wants
to hear from both sides before deciding.
The parties are ordered to appear to discuss the appropriate sanction.
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Case Name: Dana Webster v. City of San Jose., et al.
Case No.:
1-13-CV-247326
At issue are plaintiff Dana Webster’s (“Plaintiff”) motions to compel further responses
to requests for production of documents served upon defendants (1) Heather Hoshii3
(“Hoshii”), (2) the City of San Jose (the “City”), and (3) Gina Novello (“Novello”). Plaintiff
also requests monetary sanctions in connection with each motion.
I. Statement of Facts
In this action for employment harassment and related claims, Plaintiff alleges that she
was targeted by the City for associating with another employee who pursued employment
claims against the City.
From November 1998 until March 4, 2012, Plaintiff was assigned to the City’s Airport
Operations Department. On March 5, 2012, she was transferred to the City’s downtown
Department of Transportation (“DOT”) facility. Along with two other employees, she
participated in a month of training with a senior DOT employee and received positive feedback
regarding her progress. Along with the same two employees, she received additional training
during the next month. At the end of this time, the other two employees were given reviews by
the senior employees who trained them. Plaintiff’s review was delivered by Novello, a parking
and traffic control supervisor, and Hoshii, a manager of street parking. These individuals had
not trained Plaintiff, and Plaintiff’s review was entirely negative.
Plaintiff alleges that, following her review, she was harassed on a daily basis by
Novello and Hoshii. She was belittled by these defendants and other employees whom they
directed to distract Plaintiff from doing her job. She was required to do “make work” instead
of regular work or training, making it impossible for her to perform her duties. Employees
who were friendly to her were forbidden to assist her, and she was required to use a paper
ticketing system rather than the electronic ticketing system used by others, which all
employees were required to learn.
This harassment caused Plaintiff severe emotional distress. She was “written up” for
pretextual reasons, and was forced to go on medical leave as a result of the harassment she
suffered. The City denied her worker’s compensation claim, although her treating physician
opined that Plaintiff was on medical leave due to work-related stress. Ultimately, in August
2012, Plaintiff had no choice but to quit her job.
On May 31, 2013, Plaintiff filed this action for (1) harassment by Novello and Hoshii,
(2) harassment by the City, (3) constructive termination of employment in violation of
Government Code section 12940, subdivision (h), and (4) constructive termination of
employment in violation of public policy.
Trial in this matter is scheduled to commence on April 27, 2015 but was continued to
May 18th upon an ex parte application on April 10, 2015.
3
Ms. Hoshii was erroneously sued as Heather “Hoshi.”
II. Discovery Dispute
A. Plaintiff’s Requests for Production
On May 1, 2014, Plaintiff served the City with a first set of requests for production of
documents, comprising request nos. 1-46. On June 2, 2014, the City responded by interposing
objections and/or providing substantive responses to the requests and producing documents.
According to the City, Plaintiff did not attempt to meet and confer regarding the City’s
responses, and she did not move to compel further responses to the May 2014 requests.
On January 14, 2015, Plaintiff served the City with a second set of requests for
production of documents, comprising request nos. 47-55. She also served Hoshii and Novello
with parallel first sets of requests for production, comprising request nos. 1-57 and 1-59,
respectively. Request nos. 1-46 to Hoshii and Novello are identical to the May 2014 requests
to the City, while request nos. 47 and higher seek more specific categories of documents
already encompassed by the earlier requests. After the parties agreed to extend Defendants’
deadlines to serve responses to the January 2015 requests, Defendants responded and produced
documents on February 23, 2015.
B. The Parties’ Meet and Confer Efforts
In support of Plaintiff’s motions, her counsel submits a declaration focused largely on
reciting asserted deficiencies in Defendants’ retention of and search for documents responsive
to Plaintiff’s requests. Counsel’s discussion of the parties’ meet and confer efforts concerning
the January 2015 requests is minimal. Instead of cogently summarizing the parties’
discussions, counsel has taken the approach of simply filing a large amount of
correspondence—much of which pertains to tangential issues—and leaving it to the Court to
attempt to reconstruct the parties’ meet and confer efforts. Consequently, while the Court will
discuss the interactions reflected in the available correspondence, it may not have the full story
in this regard.
A review of the parties’ correspondence reveals that on March 3, 2015, Plaintiff’s
counsel sent a lengthy letter to Defendants’ counsel addressing a number of issues. (See Decl.
of William C. Dresser ISO Mots., Ex. U.) With respect to the January 2015 requests,
Plaintiff’s counsel stated that “[t]he formal responses to the requests by Novello and Hoshii
referred to some previously produced documents as responsive to some categories. They also
refer in several categories to ‘See generally’ then entirety of the SC stamped records are
responsive. [Sic.] The 2,000 plus documents which are newly produced are not otherwise
identified as responsive to any category.” Counsel also noted that the documents produced by
Defendants were inappropriately redacted and did not “appear to have been produced in the
manner in which they are normally maintained,” and argued that Defendants’ privacy
objections to producing documents regarding complaints by other employees lacked merit.
Counsel concluded by requesting that Defendants “withdraw the objection” and “provide
complete unredacted production.” (Sic.)
Oral meet and confer discussions apparently followed the March 3rd letter.
Specifically, on March 16, 2015, counsel met and conferred concerning the production of
documents related to claims against the City alleging constructive discharge or hostile work
environment and/or harassment based on disability. Defendant’s counsel sent a letter offering
to produce certain documents in these categories on March 17, 2015. (See Dresser Decl., Ex.
EE.)
On March 30, 2015, Defendants made an additional document production. The same
day, Plaintiff applied for and the Court issued an order shortening time for a hearing on
motions to compel further responses to the January 2015 discovery requests.
On March 31, 2015, Plaintiff’s counsel sent Defendants’ counsel a letter in which he
noted that both the February and March 2015 productions were in a security protected format
and stated that Defendants had promised but failed to provide the February 2015 production in
an unsecured format. (See Dresser Decl., Ex. XX.) Counsel also renewed his concern that the
February 2015 production was inappropriately redacted; noted that the March 2015 production
was also redacted; and stated that following depositions of the City’s employees and a review
of Defendants’ production, Plaintiff’s counsel believed that Defendants’ production was
incomplete in a number of respects. Plaintiff’s counsel “request[ed] a response immediately”
to these and other issues.
In accordance with the Court’s order shortening time, Plaintiff filed the instant motions
the following day, April 1, 2015. On April 7, 2015, Defendants filed opposition papers,
arguing that the discovery requests at issue are duplicative of the May 2014 requests and
Plaintiff failed to adequately meet and confer regarding the issues raised by her motions. The
filing of reply papers was prohibited by the Court’s order shortening time.
III. Motions to Compel Further Responses
A. Timeliness of Plaintiff’s Motions
With respect to Defendants’ first argument, motions to compel further responses to
demands for production must be filed within 45 days after the responses in question were
served. (Code Civ. Proc. (“CCP”), § 2031.310, subd. (c).) The court lacks jurisdiction to rule
on motions to compel further responses filed after the deadline provided by law, other than to
deny them. (See Sexton v. Super. Ct. (Mullikin Med. Ctr.) (1997) 58 Cal.App.4th 1403, 1410.)
A party who fails to file a motion to compel within the deadline provided by law may not avoid
the consequences of his or her delay and lack of diligence by propounding the same discovery
again. (Professional Career Colleges, Magna Institute, Inc. v. Super. Ct. (Stewart) (1989) 207
Cal.App.3d 490, 494 [hereinafter, “Professional Career Colleges”].)
Here, request nos. 1-46 to Hoshii and Novello are the same requests that were
propounded upon the City in May of 2014. These requests seek documents pertaining to
Plaintiff’s and other individuals’ employment with the City; consequently, to the extent Hoshii
and Novello even have access to responsive documents, such documents are in the City’s
possession, custody, or control and were encompassed by the May 2014 requests. 4 (See Soto
v. City of Concord (N.D. Cal. 1995) 162 F.R.D. 603, 619 [a party may be ordered to produce
documents “if that party has a legal right to obtain the document or has control over the [person
or] entity [that] is in possession of the document”].) The remaining requests seek more
4
Notably, Plaintiff does not appear to seek the production of any documents that are exclusively within Hoshii
and Novello’s individual possession, custody, or control.
specific categories of documents that were also embraced by the May 2014 requests. Plaintiff
herself acknowledges these circumstances and admits that she propounded the requests at issue
because she believes that the City failed to produce all documents responsive to the May 2014
requests. 5 This is the very strategy condemned by Professional Career Colleges, which held
that a trial court must deny a motion to compel further responses in this situation.
Accordingly, the instant motions must be denied.
The Court notes that Plaintiff’s motions, while styled as motions to compel further
responses to the January 2015 discovery requests, also seek to compel Defendants to produce
additional documents responsive to those requests and the May 2014 requests. Thus, it might
be argued that the motions should be construed as motions to compel compliance with
Defendants’ responses, which need not be filed by a particular deadline. (See Code Civ. Proc.
(“CCP”), § 2031.320.) However, it is impossible for the Court to address the City’s
compliance with its responses to the May 2014 requests given that Plaintiff does not submit
these responses or address them in her separate statements. In addition, Defendants’
substantive responses to the January 2015 requests refer to specific documents that have
already been produced, rather than stating that all or additional responsive documents will be
produced. Consequently, it appears that Defendants have complied with their responses to
those requests. Given these circumstances, construing Plaintiff’s motions as motions to
compel compliance would be fruitless.
Consequently, Plaintiff’s motions to compel further responses are untimely.
B. Failure to Meet and Confer
A motion to compel further responses to requests for production shall be accompanied
by a meet and confer declaration “showing a reasonable and good faith attempt at an informal
resolution of each issue presented by the motion.” (CCP, §§ 2016.040, 2031.310, subd.
(b)(2).) A reasonable and good faith attempt at informal resolution entails something more
than argument with opposing counsel. (Townsend v. Super. Ct. (EMC Mortgage Co.) (1998)
61 Cal.App.4th 1431, 1435, 1439.) It requires that the parties present the merits of their
respective positions with candor, specificity, and support. (Id.) The level of effort at informal
resolution that satisfies the “reasonable and good faith attempt” standard depends upon the
circumstances of the case. (Obregon v. Super. Ct. (Cimm’s, Inc.) (1998) 67 Cal.App.4th 424,
431.) Where there has been a failure to meet and confer, “[j]udges have broad powers and
responsibilities to determine what measures and procedures are appropriate in varying
circumstances.” (Id.) The court’s discretion includes the possibility of denying discovery
altogether absent efforts to meet and confer. (See Townsend v. Super. Ct., supra, 61
Cal.App.4th at p. 1439; Obregon v. Super. Ct., supra, 67 Cal.App.4th at p. 434 [court has
discretion to deny discovery absent meet and confer].)
5
See Mem. of P. & A. ISO Mot. to Compel Further Resps. by Novello, pp. 2-3 [“The categories of production to
defendant Gina Novello … are the same categories of production to the [City] propounded in May of 2014, with
an additional ten categories of requests which were essentially subsets of those previously propounded to
Defendant City ….. The subject set of requests to produce was propounded to defendant Novello because a
review of the production and discussions with the out of state client and third persons indicated that there were
substantial failures to produce known documents and things.”]; Mem. of P. & A. ISO Mot. to Compel Further
Resps. by Hoshii, p. 4 [same]; Mem. of P. & A. ISO Mot. to Compel Further Resps. by the City, p. 4 [“Defendants
should have produced all responsive documents in June of 2014.”].
Here, Plaintiff’s motions are styled as motions to compel further responses, but it does
not appear that she ever requested further written responses to the requests at issue, as opposed
to the production of additional documents. Furthermore, Plaintiff apparently failed to raise the
bulk of the issues presented by her motions until the day before she filed them on shortened
time just a few weeks before trial. Plaintiff’s counsel blames the City for this delay, declaring
that Plaintiff learned of certain deficiencies in the City’s production only after deposing Janet
Smith on March 12, 2015, three weeks after the date for which the deposition was originally
noticed. Counsel declares that he filed the instant motions on the third court day after he
received Ms. Smith’s deposition transcript. He does not, however, explain why he waited until
the end of discovery to depose Ms. Smith when he received the City’s initial document
production in June of 2014. In addition, counsel does not explain why he did not begin to meet
and confer regarding issues raised by the deposition immediately thereafter, but instead waited
for more that two weeks to receive the official transcript (which, the Court notes, was not
ultimately filed with Plaintiff’s motions).
As it appears to the Court, to the extent Plaintiff’s counsel “ran out of time” to meet and
confer, this circumstance resulted from his own lack of diligence in scrutinizing and conferring
over the City’s June 2014 discovery responses, coupled with his choice to propound
duplicative requests in an impermissible last-ditch effort to revive Plaintiff’s right to compel
further responses. Consequently, the Court denies Plaintiff’s motions on the additional ground
of failure to adequately meet and confer.
C. Conclusion
For the reasons discussed above, Plaintiff’s motions are DENIED.
IV. Requests for Monetary Sanctions
Plaintiff seeks monetary sanctions in connection with each motion pursuant to CCP
section 2031.310, subdivision (h), which provides for the imposition of a monetary sanction
where a party or attorney unsuccessfully opposes a motion to compel further responses. Here,
Defendants’ oppositions were successful. Consequently, the award of monetary sanctions is
unwarranted.
Plaintiff’s requests for monetary sanctions are thus DENIED.
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