Related Content
in Alameda County
Case
THYOR vs THYOR
Mar 26, 2024 |
Andrew A. Steckler
|
Family Law (Dissolution of Marriage/Domes...) |
Family Law (Dissolution of Marriage/Domes...) |
24FL069183
Case
NGUYEN vs PHAM
Mar 25, 2024 |
Family Law (Dissolution of Marriage/Domes...) |
Family Law (Dissolution of Marriage/Domes...) |
24FL068932
Ruling
CURRY vs AAA-CSAA
Jul 25, 2024 |
Civil Unlimited (Other Personal Injury/Propert...) |
23CV032669
23CV032669: CURRY vs AAA-CSAA
07/25/2024 Hearing on Motion to Continue Trial filed by Elizabeth Curry (Plaintiff) in
Department 25
Tentative Ruling - 07/25/2024 Jenna Whitman
The Motion to Continue Trial Date filed by Elizabeth Curry on 07/18/2024 is Denied.
This case was dismissed on February 6, 2024. Plaintiff now moves to continue trial. There is no
pending litigation before the court, much less a trial date. The motion is denied.
This ruling has been contested. Hearing has been continued to 08/02/24 at 3:30 PM.
If you plan to appear in person, the hearing will be heard in Wiley W. Manuel Courthouse 661
Washington Street, Oakland, CA 94607 5th floor Department 109.
The zoom information for this hearing is below:
Meeting ID: 161 8066 1142
Passcode: 5805
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Ruling
VAUGHN vs FLETCHER, et al.
Jul 26, 2024 |
Civil Unlimited (Other Personal Injury/Propert...) |
23CV030341
23CV030341: VAUGHN vs FLETCHER, et al.
07/26/2024 Hearing on Motion - Other Deem RFAs Admitted; filed by PATRICIA
VAUGHN (Plaintiff) in Department 520
Tentative Ruling - 07/22/2024 Julia Spain
Plaintiff's unopposed Motion to Deem Requests for Admissions Set One served on 2/29/24 to be
admitted is GRANTED. Plaintiff requests $1520 as sanctions representing a $60 filing fee and
$1460 in attorneys fees calculated at $350 per hour for four and a quarter hours. The court finds
this request to be reasonable. Defendant shall pay plaintiff's counsel $1520 as sanctions by
August 23, 2024.
NOTICE: This tentative ruling will automatically become the court’s final order on JULY 26,
2024 unless, by no later than 4pm on JULY 25, 2024, a party to the action notifies BOTH: 1) the
court by emailing Dept520@alameda.courts.ca.gov; AND 2) all opposing counsel or self-
represented parties (by telephone or email) that the party is contesting this tentative ruling.
The subject line (RE: ) of the email must state: “Request for CONTESTED HEARING: [the case
name], [number].” When a party emails to contest a tentative ruling, the party must identify
the specific holding(s) within the ruling they wish to contest via oral argument.
The court does not provide court reporters for hearings in civil departments. A party who wants a
record of the proceedings must engage a private court reporter. (Local Rule 3.95.) Any privately
retained court reporter must also participate via video conference. His/Her email must be
provided to the court at the time the Notice of Contest is emailed.
ALL CONTESTED LAW AND MOTION HEARINGS ARE CONDUCTED VIA REMOTE
VIDEO unless an in person appearance is required by the court. Invitations to participate in the
video proceeding will be sent by the court upon receipt of timely notice of contest. A party may
give email notice he/she will appear in court in person for the hearing, however all other
counsel/parties and the JUDGE MAY APPEAR REMOTELY.
Ruling
FARMERS INSURANCE EXCHANGE, A CALIFORNIA RECIPROCAL INSURANCE...
Jul 25, 2024 |
Civil Unlimited (Insurance Coverage (not complex)) |
23CV050245
23CV050245: FARMERS INSURANCE EXCHANGE, A CALIFORNIA RECIPROCAL
INSURANCE EXCHANGE vs WARREN, et al.
07/25/2024 Hearing on Demurrer DEMURRER TO PLAINTIFF FARMERS'
COMPLAINT, OR ALTERNATIVELY, MOTION TO STAY PROCEEDINGS; filed by
Andrew Warren (Defendant) + in Department 20
Tentative Ruling - 07/22/2024 Karin Schwartz
The Demurrer filed by Angela Warren, Andrew Warren, Matthew Warren on 03/01/2024 is
Overruled.
Defendants Andrew Warren, Angela Warren, and Matthew Warren’s demurrer is
OVERRULED.
Defendants Andrew Warren, Angela Warren, and Matthew Warren’s motion to strike is
DENIED.
Defendants Andrew Warren, Angela Warren, and Matthew Warren’s motion for stay is
GRANTED. The stay pending resolution of the underlying case is appropriate as the declaratory
relief complaint turns on facts to be litigated in the Sacramento personal injury action.
BACKGROUND
Plaintiff Farmers Insurance Exchange (“Plaintiff” or “Farmers”) filed a complaint for declaratory
relief on November 6, 2023 against Andrew Warren, Angela Warren, Matthew Warren
(collectively, “the Warrens” or “Defendants”), Kevin McKenney, Angel Sanchez, Daisy Ramirez
and Javier Zacharias regarding a motor vehicle accident in September 2022.
In July 2023, McKenney and Sanchez filed a complaint against Matthew Warren, Andrew
Warren, and Daisy Ramirez in Sacramento County Superior Court, McKenney, et al. v. Warren,
et al., case no. 23CV003653, for motor vehicle and general negligence.
The Warrens tendered the Sacramento case to Farmers for defense and indemnity. Farmers
agreed to defend the Warrens subject to a reservation of rights. In this matter, Farmers seeks a
judicial declaration of its rights and duties under the applicable insurance policy regarding the
September 2022 motor vehicle accident and underlying litigation.
The Warrens now demur to the complaint or in the alternative, move to stay the declaratory relief
action pending resolution of the Sacramento matter. The Warrens concurrently move to strike the
complaint.
LEGAL STANDARD
A demurrer tests the legal sufficiency of factual allegations in a complaint. (Title Ins. Co. v.
Comerica Bank-California (1994) 27 Cal.App.4th 800, 807.) A plaintiff must plead facts as are
SUPERIOR COURT OF CALIFORNIA
COUNTY OF ALAMEDA
23CV050245: FARMERS INSURANCE EXCHANGE, A CALIFORNIA RECIPROCAL
INSURANCE EXCHANGE vs WARREN, et al.
07/25/2024 Hearing on Demurrer DEMURRER TO PLAINTIFF FARMERS'
COMPLAINT, OR ALTERNATIVELY, MOTION TO STAY PROCEEDINGS; filed by
Andrew Warren (Defendant) + in Department 20
necessary to acquaint a defendant with the nature, source and extent of her claims to provide
defendant with notice of the issues sufficient to enable preparation of a defense. (Doe v. City of
Los Angeles (2007) 42 Cal.4th 531, 570.) A court should not sustain a general demurrer unless
the complaint liberally construed fails to state a cause of action on any theory. (Kramer v. Intuit
Inc. (2004) 121 Cal.App.4th 574, 578.)
The court may strike any “irrelevant, false, or improper matter inserted in any pleading,” or may
strike out all or any part of a pleading “not drawn or filed in conformity with the laws of this
state, a rule of court, or an order of the court.” (Code Civ. Proc., § 436.)
“To eliminate the risk of inconsistent factual determinations that could prejudice the insured, a
stay of the declaratory relief action pending resolution of the third party suit is appropriate when
the coverage question turns on facts to be litigated in the underlying action.” (Montrose
Chemical Corp. v. Superior Court (1993) 6 Cal.4th 287, 301-302, internal citations omitted.)
DISCUSSION
As an initial matter, there is no proof of service on file to demonstrate timely notice of the
demurrer and motion to strike to Plaintiff. However, where, as here, a timely opposition is on
file, and Plaintiff does not request a continuance of the hearing and does not claim prejudice by
reason of insufficient notice or service, any claim of inadequate service or notice is waived.
(Carlton v. Quint (2000) 77 Cal.App.4th 690, 697.) The Court notes that Defendants also failed
to file the proof of service as to its earlier motion to quash. Defendants are reminded that proofs
of service must be filed with the Court to demonstrate proper notice pursuant to C.C.P. § 1005.
Demurrer
Defendants demur to the complaint on the grounds that (1) Farmers fails to state facts sufficient
to support its claim for declaratory relief; (2) the complaint is uncertain, ambiguous; and (3)
unintelligible; and the complaint is “devoid of any undisputed facts or facts that can be judicially
noticed.”
The Complaint Adequately Alleges Declaratory Relief
A cause of action for declaratory relief needs to only set forth facts showing the existence of an
actual controversy relating to the legal rights and duties of the respective parties under a contract
and requests that these rights and duties be adjudged by the court. (Columbia Pictures Corp. v.
De Toth (1945) 26 Cal.2d 753, 760.)
The Complaint alleges that an actual, present, and justiciable controversy exists between the
parties because the Warrens are seeking defense and indemnity under an insurance policy for the
SUPERIOR COURT OF CALIFORNIA
COUNTY OF ALAMEDA
23CV050245: FARMERS INSURANCE EXCHANGE, A CALIFORNIA RECIPROCAL
INSURANCE EXCHANGE vs WARREN, et al.
07/25/2024 Hearing on Demurrer DEMURRER TO PLAINTIFF FARMERS'
COMPLAINT, OR ALTERNATIVELY, MOTION TO STAY PROCEEDINGS; filed by
Andrew Warren (Defendant) + in Department 20
Sacramento action, whereas Farmers argues that no coverage is available because of an exclusion
within the policy barring coverage for actions “[a]rising out of the use or operation by an insured
person of any car while it is being used to flee a law enforcement agent or crime scene.”
(Complaint ¶¶ 19, 27, 29.) The Complaint attaches the police report and the complaint in the
Sacramento action in support of its claim that Matthew Warren’s actions fall under the insurance
policy’s exclusion. (Complaint Exhs. 1 and 2.)
The Complaint adequately alleges a cause of action for declaratory relief. On the grounds that the
complaint fails to state facts to state a cause of action, the demurrer is OVERRULED.
The Complaint is Not Uncertain
Under C.C.P. § 430.10, subdivision (f), a complaint is subject to demurrer where the pleading is
uncertain, that is, ambiguous and unintelligible. Demurrers for uncertainty are disfavored and are
granted only if the pleading is so incomprehensible that a defendant cannot reasonably respond.
(Morris v. JPMorgan Chase Bank, N.A. (2022) 78 Cal.App.5th 279, 292.)
While the demurrer states that it is made on the grounds of uncertainty (Demurrer at p. 2),
Defendants’ memorandum of points and authorities is devoid of any factual or legal argument to
support this contention. As discussed above, the complaint adequately alleges a cause of action
for declaratory relief.
On the grounds that the complaint is uncertain, the demurrer is OVERRULED.
At the Pleading Stage, the Complaint is Adequately Pled
The Warrens argue that the complaint is subject to demurrer because it is devoid of any
undisputed facts or facts that can be judicially noticed. (Demurrer at pp. 1, 3.) Defendants
contend that the allegations in the Sacramento action and the statements in the police report are
inadmissible hearsay.
However, a complaint is not required at the pleadings stage to assert undisputed facts (as in a
motion for summary judgment or adjudication) or solely judicially noticeable facts. Generally,
the rule for pleading in civil cases is that the complaint need only set forth ultimate facts
constituting its causes of action, not the evidence by which a plaintiff proposes to prove those
facts. (Gutierrez v. Carmax Auto Superstores California (2018) 19 Cal.App.5th 1234, 1260.) A
plaintiff is only required to set forth essential facts of her cause with reasonable precision and
with particularity sufficient to acquaint a defendant with the nature, source, and extent of her
claims. (Ludgate Ins. Co. v. Lockheed Martin Corp. (2000) 82 Cal.App.4th 592, 608.) Specificity
is pleadings is generally not required in light of modern discovery procedures. (Id.)
SUPERIOR COURT OF CALIFORNIA
COUNTY OF ALAMEDA
23CV050245: FARMERS INSURANCE EXCHANGE, A CALIFORNIA RECIPROCAL
INSURANCE EXCHANGE vs WARREN, et al.
07/25/2024 Hearing on Demurrer DEMURRER TO PLAINTIFF FARMERS'
COMPLAINT, OR ALTERNATIVELY, MOTION TO STAY PROCEEDINGS; filed by
Andrew Warren (Defendant) + in Department 20
A Stay of This Action Will Avoid Potential Prejudice to the Warrens in the Sacramento
Case
As an alternative to their demurrer, the Warrens move to stay the instant insurance coverage
action pending final resolution of the underlying Sacramento action. The Warrens argue that the
stay is appropriate to avoid the risk of inconsistent factual determinations that could prejudice
them, as the insured of Plaintiff, as the coverage question at issue in this action turns on facts to
be litigated in the underlying action.
Upon review of the complaint in the Sacramento action, attached as Exhibit 2 to the Complaint
in the instant case, the Court agrees that a stay is appropriate. In the Sacramento case, plaintiffs
Kevin McKenney and Angel Sanchez allege that Matthew Warren failed to submit to a stop by
the California Highway Patrol, “attempted to flee and ran a red light when his vehicle collided
with a vehicle.” (Sacramento Complaint p. 4.) The Sacramento complaint alleges motor vehicle
negligence and general negligence against Matthew and Andrew Warren.
Here, Farmers disputes that coverage is available to the Warrens in the Sacramento action
because the insurance policy does not insure bodily injury when an insured flees law
enforcement. (Complaint at ¶¶ 19, 27-28.) Farmers alleges that the underlying incident “arose
out of Matthew Warren’s use of his vehicle to flee law enforcement agents.” (Id. at ¶ 27.) As the
issue in this declaratory relief action turns on facts to be litigated in the Sacramento case, inter
alia, whether Matthew Warren used his vehicle to flee law enforcement agents when his vehicle
collided with another vehicle, a stay is appropriate to eliminate the risk of inconsistent factual
determinations that could prejudice the Warrens. (Montrose Chemical Corp. v. Superior Court,
supra, 6 Cal.4th at 301-302.)
The Court STAYS the instant proceedings pending resolution of Sacramento Case No.
23CV003653.
Motion to Strike
Defendants move to strike the entire complaint on the grounds on the same grounds argued in
their demurrer – that the complaint relies on facts not subject to judicial notice and inadmissible
hearsay. As the Court finds that the complaint is adequately pleaded at this stage in the
proceedings, the motion to strike is DENIED.
EVIDENTIARY OBJECTIONS
On Reply, Defendants object to Plaintiff’s Exhibits 2, 3, 4, and 5 included in the Opposition
papers on the grounds that they constitute protected attorney-client communications. Exhibits 2-5
are email communications from January – February 2024 between counsel for Farmers and
SUPERIOR COURT OF CALIFORNIA
COUNTY OF ALAMEDA
23CV050245: FARMERS INSURANCE EXCHANGE, A CALIFORNIA RECIPROCAL
INSURANCE EXCHANGE vs WARREN, et al.
07/25/2024 Hearing on Demurrer DEMURRER TO PLAINTIFF FARMERS'
COMPLAINT, OR ALTERNATIVELY, MOTION TO STAY PROCEEDINGS; filed by
Andrew Warren (Defendant) + in Department 20
defense counsel.
The Court finds that the communications are not protected by attorney-client privilege as they
are communications between Farmers’ counsel and the Warrens’ independent counsel regarding
service of Farmers’ declaratory relief complaint and meet and confer regarding the Warrens’
demurrer. Andrew Warren is copied on some of the emails from defense counsel, but none of the
emails are from Mr. Warren nor directed specifically at Mr. Warren.
Pursuant to the foregoing, Defendants’ objections to Exhibits 2, 3, 4 and 5 are OVERRULED.
If a party does not timely contest the foregoing Tentative Ruling and appear at the hearing, the
Tentative Ruling will become the order of the court.
HOW DO I CONTEST A TENTATIVE RULING?
THROUGH ECOURT
Notify the Court and all the other parties no later than 4:00 PM one court day before the
scheduled hearing, and briefly identify the issues you wish to argue through the following steps:
1. Log into eCourt Public Portal
2. Case Search
3. Enter the Case Number and select “Search”
4. Select the Case Name
5. Select the Tentative Rulings Tab
6. Select “Click to Contest this Ruling”
7. Enter your Name and Reason for Contesting
8. Select “Proceed”
BY EMAIL
Send an email to the DEPARTMENT CLERK and all the other parties no later than 4:00 PM one
court day before the scheduled hearing. This will permit the department clerk to send invitations
to counsel to appear remotely.
BOTH ECOURT AND EMAIL notices are required.
Ruling
DOE vs OAKLAND UNIFIED SCHOOL DISTRICT, et al.
Jul 25, 2024 |
Civil Unlimited (Other Personal Injury/Propert...) |
22CV016839
22CV016839: DOE vs OAKLAND UNIFIED SCHOOL DISTRICT, et al.
07/25/2024 Hearing on Motion for Terminating Sanctions filed by Defendant in
Department 520
Tentative Ruling - 07/22/2024 Julia Spain
Defendant Oakland Unified School District's unopposed motion for terminating and monetary
sanctions is GRANTED.
BACKGROUND
Plaintiff filed suit in August 2022 against Defendant alleging sexual assault while a minor
student.
On April 2, 2024, Defendant filed a motion to compel further discovery seeking: (i) terminating
sanctions; or (ii) an order directing plaintiff to provide documents and amended
responses by a date certain. Vincent Decl., at ¶ 3; Exhibit A to Vincent Decl. The motion was
heard on May 2, 2024, and while the request for terminating sanctions was
denied without prejudice, plaintiff was ordered to “serve supplemental verified responses that are
code compliant to OUSD’s Form Interrogatories, Special Interrogatories, and Requests for
Production of Documents by or before May 10, 2024.” The Court noted in its order that, “as the
trial date is quickly approaching in this matter, Defendant will likely suffer prejudice due to
Plaintiff’s failure to respond” and “Plaintiff’s further failure to respond to discovery and comply
with this Order may result in terminating and/or issue sanctions.”
Defendant now seeks terminating sanctions because Plaintiff, without substantial justification,
failed to comply with the Court’s discovery Order to serve full and complete verified responses
to the above-referenced written discovery by and before May 10, 2024 and has failed to respond
to any and all efforts by defendant to communicate with plaintiff. It appears plaintiff has
effectively abandoned this action.
LEGAL STANDARD
Misuse of the discovery process includes the failure to obey a court order to provide discovery.
(CCP §§ 2023.010(g).) The court may impose the monetary, issue, evidence, or terminating
sanctions on anyone who engages in such conduct. (CCP § 2023.030(a)-(d).) Two “absolutely”
prerequisite facts to imposition of the sanction for an abuse of discovery are (1) there must be a
failure to comply, and (2) the failure must be willful. (Miranda v. 21st Century Ins. Co. (2004)
117 Cal.App.4th 913, 929.)
If it is sufficiently egregious, misconduct committed in connection with the failure to produce
evidence in discovery may justify the imposition of nonmonetary sanctions even absent a prior
order compelling discovery, or its equivalent. (New Albertsons, Inc. v. Superior Court (2008)
168 Cal.App.4th 1403, 1426.) A terminating sanction is a drastic penalty and should be used
sparingly. (Id.) A trial court must be cautious when imposing a terminating sanction because the
SUPERIOR COURT OF CALIFORNIA
COUNTY OF ALAMEDA
22CV016839: DOE vs OAKLAND UNIFIED SCHOOL DISTRICT, et al.
07/25/2024 Hearing on Motion for Terminating Sanctions filed by Defendant in
Department 520
sanction eliminates a party’s fundamental right to trial, thus implicating due process rights.
(Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566,
604.)
DISCUSSION
Failing to obey a court order is a “[m]isuse[ ] of the discovery process,” i.e., an express statutory
ground for terminating sanctions. (§§ 2023.010, subd. (g), 2023.030, subd. (d), 2025.450, subd.
(h).) An abuse of discovery procedures in one instance can imply a continuing intent to abuse in
other instances. (Obregon v. Superior Court (1998) 67 Cal.App.4th 424, 430-31.) The ultimate
sanction of terminating sanctions is permissible where the litigant persists in refusing to comply
with his discovery obligations. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 797.) Two
“absolutely” prerequisite facts to imposition of the sanction for an abuse of discovery are (1)
there must be a failure to comply, and (2) the failure must be willful. (Miranda v. 21st Century
Ins. Co. (2004) 117 Cal.App.4th 913, 929.) Lack of diligence may be deemed willful in the sense
that the party understood its obligation, had the ability to comply, and failed to comply. (Fred
Howland Co. v. Superior Court of Los Angeles (1966) 244 Cal.App.2d 605, 610-611.)
The record establishes that Plaintiff has failed to comply with the Court’s order to provide
further written discovery responses or verify the responses. The Court is sufficiently persuaded
that Plaintiff was aware of the Court’s Order and that the failure to comply was willful. Plaintiff
has failed to comply with her discovery obligations. Plaintiff did not oppose either the motion to
compel nor the instant motion for sanctions.
In light of Plaintiff’s failure to comply with the Court Order, Defendant’s motion for terminating
sanction is GRANTED. The Court strikes Plaintiff’s Complaint filed on August 25, 2022 and
vacates the jury trial date.
NOTICE: This tentative ruling will automatically become the court’s final order on JULY 25,
2024 unless, by no later than 4pm on JULY 24, 2024, a party to the action notifies BOTH: 1) the
court by emailing Dept520@alameda.courts.ca.gov; AND 2) all opposing counsel or self-
represented parties (by telephone or email) that the party is contesting this tentative ruling.
The subject line (RE: ) of the email must state: “Request for CONTESTED HEARING: [the case
name], [number].” When a party emails to contest a tentative ruling, the party must identify
the specific holding(s) within the ruling they wish to contest via oral argument.
The court does not provide court reporters for hearings in civil departments. A party who wants a
record of the proceedings must engage a private court reporter. (Local Rule 3.95.) Any privately
retained court reporter must also participate via video conference. His/Her email must be
provided to the court at the time the Notice of Contest is emailed.
SUPERIOR COURT OF CALIFORNIA
COUNTY OF ALAMEDA
22CV016839: DOE vs OAKLAND UNIFIED SCHOOL DISTRICT, et al.
07/25/2024 Hearing on Motion for Terminating Sanctions filed by Defendant in
Department 520
ALL CONTESTED LAW AND MOTION HEARINGS ARE CONDUCTED VIA REMOTE
VIDEO unless an in person appearance is required by the court. Invitations to participate in the
video proceeding will be sent by the court upon receipt of timely notice of contest. A party may
give email notice he/she will appear in court in person for the hearing, however all other
counsel/parties and the JUDGE MAY APPEAR REMOTELY.
Ruling
HESTON vs SERVICE WEST, INC., A CALIFORNIA CORPORATION.
Jul 25, 2024 |
Civil Unlimited (Other Employment Complaint Case) |
21CV002394
21CV002394: HESTON vs SERVICE WEST, INC., A CALIFORNIA CORPORATION.
07/25/2024 Hearing on Motion for Summary Adjudication filed by SERVICE WEST,
INC., a California corporation (Defendant) in Department 24
Tentative Ruling - 07/24/2024 Rebekah Evenson
The Hearing on Motion for Summary Adjudication filed by SERVICE WEST, INC., a California
corporation (Defendant) scheduled for 05/02/2024 is continued to 09/05/2024 at 09:00 AM in
Department 24 at Rene C. Davidson Courthouse .
Defendant's Motion for Summary Adjudication of PAGA Claim is CONTINUED to September
5, 2024 at 9:00 a.m. in Department 24.
Ruling
COMMUNITIES FOR A BETTER ENVIRONMENT vs MICWANE, INC
Jul 25, 2024 |
Civil Unlimited (Toxic Tort/Environmental) |
21CV004188
21CV004188: COMMUNITIES FOR A BETTER ENVIRONMENT vs MICWANE, INC
07/25/2024 Hearing on Motion to Confirm Settlement filed by PEOPLE OF THE STATE
OF CALIFORNIA (Plaintiff) in Department 24
Tentative Ruling - 07/22/2024 Rebekah Evenson
The Motion re: MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF
PLAINTIFFS UNOPPOSED MOTION FOR ENTRY OF CONSENT JUDGMENT filed by
PEOPLE OF THE STATE OF CALIFORNIA on 07/03/2024 is Granted.
Plaintiffs’ unopposed Motion for Entry of Consent Judgment is GRANTED. The penalty amount
is reasonable, and the award of attorneys’ fees is fair and reasonable.
The Court will sign the (proposed) Stipulated Consent Judgment submitted with the moving
papers.
Ruling
SORUM, et al. vs ALBERTSONS COMPANIES, INC., INDIVIDUALLY, et...
Jul 26, 2024 |
Civil Unlimited (Asbestos) |
23CV031203
23CV031203: SORUM, et al. vs ALBERTSONS COMPANIES, INC., INDIVIDUALLY, et
al.
07/26/2024 Hearing on Motion for Summary Judgment filed by KOLMAR
LABORATORIES, INC (Defendant) in Department 18
specifications required these products to meet certain requirements, the subcontractor had some
flexibility in determining what specific products to use and routinely incorporated provision of
these products into its subcontracting bids. The Court of Appeal stated that the key issue was
whether defendant subcontractor was “in a position to enhance product safety or exert pressure
on the manufacturer to promote that end, and bear the costs of compensating for injuries.” (243
Cal.App.4th 249, 262.)
Endicott is the case most favorable to Defendant. In Endicott, plaintiff alleged that the seatbelt
on his 1967 Nissan 411 broke or ruptured during a vehicle crash thereby worsening his injuries.
The plaintiff sued both the car manufacturer Nissan Motor Corp. (“Nissan” or “Datsun”) and the
independent contractor (“Installer”) who installed the seatbelts into Nissan vehicles. The
seatbelts were manufactured by Nissan, were delivered to Installer in the trunks of the vehicles
into which Installer was to install the seatbelts at locations marked by Nissan “according to
[Nissan’s] directions,” and Nissan “supplied all materials for attaching the belts.” There was no
evidence at trial to support a finding that Installer had reason to know the seatbelts supplied by
Nissan might be defective. (73 Cal.App.3d 917, 925.)
In upholding a trial verdict against plaintiff, the Endicott Court of Appeal stated in relevant part:
“[W]e find no evidence that Installer was an integral part of the overall marketing enterprise that
produces Datsun automobiles or that it played any significant role in placing Datsun’s product in
the stream of commerce that could render Installer liable in tort for defects in Datsun's
automobiles. As a mere provider of services Installer is not liable for defects in the product. Nor
is there anything in this record to indicate that Installer should have recognized the possibilities
of misadventure that might arise from proximity of seat belt and metal L-bracket,” a posited
cause of the seatbelt rupture. (73 Cal.App.3d at 930.)
Defendant presents evidence from the deposition of its employee, Ronald Yakupcin, who worked
for Defendant throughout the period of Mr. Sorum’s alleged use of Defendant’s products. (DIOE
Exh. 10.) He testified that throughout the relevant period Defendant was in the business of
“contract manufacturing” colored cosmetics for other cosmetics companies. He further testified
that:
“we would take our customer's formula, manufacture that formula, fill it into their packaging and
ship it to where they wanted us to ship it. Or, the customer purchased our formula which was
then filled into their packaging and shipped to their points of distribution.” (Id. at p. 266:15-25.)
Mr. Yakupcin further testified that Defendant did not sell any of its products under its own labels
or brand names. He also testified that typically customers would provide Defendant with the
product formula, the manufacturing instructions, the packaging, filling and packaging
instructions and the shipment instructions. (Id. at pp. 267:3-269:6; compare to p. 266:15-25
quoted above.)
SUPERIOR COURT OF CALIFORNIA
COUNTY OF ALAMEDA
23CV031203: SORUM, et al. vs ALBERTSONS COMPANIES, INC., INDIVIDUALLY, et
al.
07/26/2024 Hearing on Motion for Summary Judgment filed by KOLMAR
LABORATORIES, INC (Defendant) in Department 18
Defendant does not provide testimony from Mr. Yakupcin regarding whether customers supplied
all of the ingredients Defendant used to make the customer’s cosmetics, whether the customers
specified the specific talcs to be used in each product or if Defendant could choose among
similar talcs that met the customer’s specifications. Mr. Yakupcin testified that in some instances
customers bought Defendant’s formulas, with respect to which Defendant was implicitly
choosing what talcs or other ingredients should go into the formulas. He also testified that
Defendant shipped the finished products to customers’ “points of distribution,” indicating
Defendant was in the chain of distribution for the finished products eventually reaching
consumers like Mr. Sorum. Further, unlike Endicott, where the third-party contractor
INSTALLER was merely installing a single discreet part of a Nissan automobile furnished to it
by Nissan, here Defendant was apparently assembling, manufacturing or blending the entire, at-
issue scented cosmetic talc products. If Defendant played any role in deciding what cosmetic
talcs went into any cosmetic talc formula it sold to a customer, then this case would fall under
the rule of Hernandezcueva, rather than Endicott.
The Court finds that Defendant’s moving evidence does not create undisputed material facts
pursuant to which Defendant is entitled to summary adjudication of Plaintiffs’ Strict Liability
Cause of Action as a matter of law.
Wherefore, the Court DENIES Defendant’s MSA of Plaintiffs’ First Cause of Action for Strict
Liability.
4. MSA of Plaintiffs’ Punitive Damages Claim.
To be entitled to an award of punitive damages, a plaintiff must show by clear and convincing
evidence that the defendant is guilty of malice, oppression or fraud. (Cal. Civ. Code § 3294(a).)
The definition of “malice” includes “despicable conduct which is carried on by the defendant
with a willful and conscious disregard of the rights or safety of others.” (§ 3294(c).) “Despicable
conduct” is conduct that is so vile, base, or contemptible that it would be looked down on and
despised by reasonable people. (See CACI 3946.)
A finding of malice does not require an actual intent to cause harm. “Conscious disregard for the
safety of another may be sufficient where the defendant is aware of the probable dangerous
consequences of his or her conduct and he or she willfully fails to avoid such consequences.
Malice may be proved either expressly through direct evidence or by implication through
indirect evidence from which the jury draws inferences.” (Pfiefer v. John Crane, Inc. (2013) 220
Cal.App.4th 1270, 1299.)
Further, a defendant’s “prolonged failure” to take adequate measures to protect people who
worked with its products against a known hazard to their health and safety may justify a
conclusion that the conduct was malicious, fraudulent, or oppressive. (Bankhead v.
SUPERIOR COURT OF CALIFORNIA
COUNTY OF ALAMEDA
23CV031203: SORUM, et al. vs ALBERTSONS COMPANIES, INC., INDIVIDUALLY, et
al.
07/26/2024 Hearing on Motion for Summary Judgment filed by KOLMAR
LABORATORIES, INC (Defendant) in Department 18
ArvinMeritor, Inc.) (2012) 205 Cal.App.4th 68, 86.) However, the Cal. Supreme Court has stated
that by addition of the word “despicable” to Civ. Code § 3294(c), “the statute plainly indicates
that absent an intent to injure the plaintiff, “malice” requires more than a “willful and conscious”
disregard of the plaintiffs' interests. The additional component of ‘despicable conduct’ must be
found.” (College Hospital, Inc. v. Sup.Ct. (1994) 8 Cal.4th 704, 725.)
A clear and convincing evidentiary standard applies to evidence presented by a plaintiff in
opposition to a motion for summary adjudication of punitive damages claims. (Basich v. Allstate
Ins. Co. (2001) 87 Cal.App.4th 1112, 1118-1119.) However, the clear and convincing
evidentiary standard “does not impose on a plaintiff the obligation to ‘prove’ a case for punitive
damages at summary [adjudication].” (Pacific Gas and Electric Co. v. Sup.Ct. (2018) 24
Cal.App.5th 1150, 1158-1159.) “Summary ... adjudication ‘on the issue of punitive damages is
proper’ only ‘when no reasonable jury could find the plaintiff’s evidence to be clear and
convincing proof of malice, fraud or oppression.’” (Ibid.)
Further, a defendant moving for summary adjudication must still make an initial prima facie
showing that no disputed issues of material fact exist such that defendant is entitled to summary
adjudication as a matter of law in order to shift the burden of production to plaintiff to present
clear and convincing evidence of malice, oppression or fraud. (Aguilar v. Atl. Richfield Co.
(2001) 25 Cal. 4th 826, 850.)
Defendant seeks to meet its initial burden of production as to Plaintiffs’ punitive damages claim
by pointing to Plaintiffs’ assertedly “factually devoid” responses to Defendant’s sufficiently
comprehensive written and deposition discovery. (Andrews, supra.) Here, Defendant cites to its
SROG No. 4 seeking all facts supporting Plaintiffs’ punitive damages claim. (DIOE Exh. 5.)
Plaintiffs’ Response to SROG No. 4 incorporates by reference their prior Response to SROG No.
3, seeking all facts supporting Plaintiffs’ claims that Defendant is liable for Plaintiffs’ injuries
and damages generally. Plaintiffs’ Response to SROG No. 3 is “factually devoid” as to
Plaintiffs’ punitive damages claim because it contains no specific facts to support a punitive
damages claim. Instead, the Response states that Plaintiffs “contend” Defendant was aware of
the asbestos-related hazards of its products but did not provide warnings. The Response also
cites to historical documents supporting a claim that Defendant should have known about
possible asbestos contamination of talc and the hazards of respirable asbestos, facts supporting a
negligence theory, rather than stating any specific facts regarding what exactly Defendant knew
at any specific time. (Ibid.)
Although Defendant did not serve any SROG seeking identification of either all witnesses or all
documents, Defendant did serve Request for Production of Documents (“RFPD”) No. 4 seeking
production of all documents supporting Plaintiffs’ punitive damages claim. Plaintiffs’ Response
to RFPD No. 4 incorporates by reference Plaintiffs’ Response to RFPD No. 1, seeking
production of all documents supporting Plaintiffs’ Strict Liability Cause of Action. Plaintiffs’
SUPERIOR COURT OF CALIFORNIA
COUNTY OF ALAMEDA
23CV031203: SORUM, et al. vs ALBERTSONS COMPANIES, INC., INDIVIDUALLY, et
al.
07/26/2024 Hearing on Motion for Summary Judgment filed by KOLMAR
LABORATORIES, INC (Defendant) in Department 18
Response to RFPD No. 1, instead of providing a response complying with CCP § 2031.210(a),
provides a list of responsive documents, specifically, Mr. Sorum’s deposition testimony
transcript and exhibits thereto, Plaintiffs’ Responses to Joint Defense Interrogatories and Mr.
Sorum’s medical and billing records. (DIOE Exh. 6.) Because none of the identified documents
is reasonably likely to contain information to support a punitive damages claim, the Court finds
Plaintiffs’ Response to RFPD Nos. 1 and 4, functionally equivalent to a factually devoid
response to an SROG seeking identification of all documents supporting Plaintiffs’ punitive
damages claim.
The Court finds that Defendant has met its initial burden of production on summary adjudication
of Plaintiffs’ punitive damages claim. Because asbestos torts plaintiffs always prove their
punitive damages claims by means of the defendant’s corporate records or the deposition
testimony of the corporate defendant’s persons most qualified (“PMQ”), officers or employees,
Plaintiffs’ inability to state any specific facts in response to SROG No. 4 or to identify any
specific documents in response to RFPD No. 4 is sufficient to create an inference that Plaintiffs
do not have and cannot reasonably obtain any evidence to support their punitive damages claim.
Thus, the burden shifts to Plaintiffs to present evidence in support of their punitive damages
claim sufficient to create triable issues of material fact under a clear and convincing evidentiary
standard.
Plaintiffs present no evidence in Opposition to support Plaintiffs’ punitive damages claim.
Instead, Plaintiffs request a CCP § 437c(h) continuance to complete the depositions of
defendants Calvin Klein, Conopco and Gucci, assumably customers of Defendant.
The Court DENIES Plaintiffs’ request for a CCP § 437c(h) continuance with respect to
Plaintiffs’ punitive damages claim against Defendant. Plaintiff’s counsel’s declaration fails to
explain how the depositions of other defendants is reasonably calculated to lead to the discovery
of admissible evidence of Defendant’s senior executives’ malice, oppression or fraud. Plaintiffs
present no evidence that they have not had a full and fair opportunity to depose Defendant’s
corporate witnesses pursuant to the express terms of the Court’s 3/12/2024 Order granting
Plaintiffs’ Motion for Trial Preference. Instead, in the unlikely event that the depositions of
Calvin Klein’s, Conopco’s or Gucci’s PMQs produces evidence that Defendant’s senior
executives acted with malice, oppression or fraud toward Mr. Sorum or persons similarly
situated, the Court GRANTS Plaintiffs leave to seek reconsideration of the Court’s ruling on
Defendant’s MSA of the punitive damages claim based on later-discovered evidence.
Wherefore, the Court GRANTS Defendant’s MSA of Plaintiffs’ punitive damages claim.
The Court OVERRULES Defendant’s Opposition Objection No. 1 that Defendant’s expert
medical causation witness is not qualified to render an expert opinion regarding whether his
exposures to allegedly asbestos-contaminated talc could cause Mr. Sorum’s mesothelioma.
However, the Court disallows consideration of the Burns Declaration (Defendant’s Index of
SUPERIOR COURT OF CALIFORNIA
COUNTY OF ALAMEDA
23CV031203: SORUM, et al. vs ALBERTSONS COMPANIES, INC., INDIVIDUALLY, et
al.
07/26/2024 Hearing on Motion for Summary Judgment filed by KOLMAR
LABORATORIES, INC (Defendant) in Department 18
Exhibits (“DIOE”) Exh. 1) solely as to the present dispositive motion because the moving
Separate Statement does not comply with the requirements of CRC Rule 3.1350(d)(3).
Specifically, Defendant’s Separate Statement does not cite to the Burns Declaration by
“reference to exhibit, title, page, and line numbers.” Instead, the Burns Declaration incorporates
by reference all of her 65-page, single-spaced expert witness report with no citation to any
specific portions that are relevant to the disposition of this motion. The Court lacks the judicial
resources to review a document of this length. Further, the Court’s limited review of the Burns
expert witness report indicates that much of the content is not directly relevant to the disposition
of this Motion, for example, recitation of Mr. Sorum’s alleged exposures to products other than
talcum powder products, Burns’ rates for deposition testimony, Mr. Sorum’s use of talcum
powder products not alleged to be attributable to Defendant, and the history of smoking in his
family. The Court cannot expeditiously determine whether there is an adequate foundation for
expert Burns’ opinions relevant to this Motion, specifically, whether Mr. Sorum’s alleged
exposures to Defendant’s cosmetic talc products could have been a substantial factor in causing
his malignant mesothelioma. Pages 41-43 of the Burns expert report constitute three pages of
assumptions made by Defendant’s expert, but none of the actual source materials upon which she
bases her assumptions are attached to the report for the Court to consider. On this basis, the
Court SUSTAINS Plaintiff’s Objection No. 1 on the grounds that the Burns Declaration is too
speculative solely with respect to the present motion.
The Court OVERRULES Plaintiffs’ Objection No. 2 on the grounds of hearsay. The Court may
consider deposition transcripts on summary judgment/adjudication. (CCP § 437c(b)(1).
The Court SUSTAINS Plaintiffs’ Objection No. 3. Verified Interrogatory Responses may only
be offered in evidence against the responding party. (CCP § 2030.410.)
The Court OVERRULES Defendant’s Reply Objection Nos. 1-5.
The Court reminds Defendant that paper courtesy copies of motion papers must be provided to
Dept. 18 pursuant to Local Rule 3.30(c) not later than the day after timely filing.
CONTESTING TENTATIVE ORDERS
Notify the Court and all other parties no later than 4:00 pm the day before the scheduled hearing
and identify the issues you wish to argue through the following steps:
1. Log into eCourt Public Portal - https://eportal.alameda.courts.ca.gov
2. Case Search
3. Enter the Case Number and select Search
4. Select the Case Name
5. Select the Tentative Rulings Tab
6. Select Click to Contest this Ruling
SUPERIOR COURT OF CALIFORNIA
COUNTY OF ALAMEDA
23CV031203: SORUM, et al. vs ALBERTSONS COMPANIES, INC., INDIVIDUALLY, et
al.
07/26/2024 Hearing on Motion for Summary Judgment filed by KOLMAR
LABORATORIES, INC (Defendant) in Department 18
7. Enter your Name and Reason for Contesting
8. Select Proceed.
Ruling
KASPER vs NFHS NETWORK, LLC
Jul 23, 2024 |
Civil Unlimited (Other Commercial/Business Tor...) |
24CV080631
24CV080631: KASPER vs NFHS NETWORK, LLC
07/23/2024 Complex Determination Hearing in Department 21
Tentative Ruling - 07/17/2024 Noël Wise
COMPLEX DETERMINATION
The Court designates this case as complex pursuant to Rule 3.400 et seq. of the California Rules
of Court. Counsel are advised to be familiar with the Alameda County Local Rules concerning
complex litigation, including Rule 3.250 et seq. An order assigning the case to a judge and an
initial case management order will be issued.
COMPLEX CASE FEES
Pursuant to Government Code section 70616, any non-exempt party who has appeared in the
action but has not paid the complex case fee is required to pay the fee within ten days of the
filing of this order. The complex case fee is $1,000 for each plaintiff or group of plaintiffs
appearing together and $1,000 PER PARTY for each defendant, intervenor, respondent or other
adverse party, whether filing separately or jointly, up to a maximum of $18,000 for all adverse
parties. All payments must identify on whose behalf the fee is submitted. Please submit payment
to the attention of the Complex Litigation Clerk located in the Civil Division at the Rene C.
Davidson Courthouse, 1225 Fallon Street, Oakland, CA 94612. Please make check(s) payable to
the Clerk of the Superior Court. Documents may continue to be filed as allowed under Local
Rule 1.9. Note that for those admitted pro hac vice, there is also an annual fee. (Gov't Code
section 70617.)
PROCEDURES
Calendar information, filings, and tentative rulings are available to the public at
http://www.alameda.courts.ca.gov/domainweb/. All counsel are expected to be familiar and to
comply with pertinent provisions of the Code of Civil Procedure, the California Rules of Court,
the Alameda County Superior Court Local Rules and the procedures outlined on the domain web
page of the assigned department.
SERVICE OF THIS ORDER
Counsel for plaintiff(s) shall have a continuing obligation to serve a copy of this order on newly
joined parties defendant not listed on the proof of service of this order and file proof of service.
Each party defendant joining any third party cross-defendant shall have a continuing duty to
serve a copy of this order on newly joined cross-defendants and to file proof of service.
Pursuant to Government Code Sections 70616(a) and 70616(b), a single complex fee of one
thousand dollars ($1,000.00) must be paid on behalf of all plaintiffs. For defendants, a complex
fee of one thousand dollars ($1,000.00) must be paid for each defendant, intervenor, respondent
or adverse party, not to exceed, for each separate case number, a total of eighteen thousand
SUPERIOR COURT OF CALIFORNIA
COUNTY OF ALAMEDA
24CV080631: KASPER vs NFHS NETWORK, LLC
07/23/2024 Complex Determination Hearing in Department 21
dollars ($18,000.00), collected from all defendants, intervenors, respondents, or adverse parties.
All such fees are ordered to be paid to Alameda Superior Court, within 10 days of service of this
order.
Order has been filed.
The Initial Case Management Conference scheduled for 10/21/2024 is continued to 08/18/2025
at 01:30 PM in Department 21 at Rene C. Davidson Courthouse .
Plaintiff must file a motion for class certification prior to the August 18, 2025 hearing.
The parties shall, no later than 15 calendar days before the next case management hearing, file a
joint case management statement on pleading paper.
The Court orders counsel to obtain a copy of this order from the eCourt portal.
PLEASE NOTE: This tentative ruling will become the ruling of the court if uncontested by
04:00pm the day before your hearing. If you wish to contest the tentative ruling, then both notify
opposing counsel directly and the court at the eCourt portal found on the court’s website:
www.alameda.courts.ca.gov.
If you have contested the tentative ruling or your tentative ruling reads, “parties to appear,”
please use the following link to access your hearing at the appropriate date and time:
https://alameda-courts-ca-gov.zoomgov.com/my/department21 . If no party has contested the
tentative ruling, then no appearance is necessary.
Document
CAVALRY SPV I, LLC vs HEWITT
Jul 25, 2024 |
Civil Limited (Collections Case - Purchased ...) |
Civil Limited (Collections Case - Purchased ...) |
24CV084796