Preview
Superior Court of California
County of Kern
Bakersfield Department 17
Date: 08/04/2020 Time: 8:30 AM - 12:00 PM
BCV-19-103005
DAVIS VS TEN WEST TOWING, INC
Courtroom Staff
Honorable: Thomas S. Clark Clerk: Linda K. Hall
Court reporter: Rubi Michaca Bailiff: Deputy Sheriff
Interpreter: Language of:
PARTIES:
Present:
DAVIS, ANTHONY Plaintiff, Not Present O'DELL, SETH N Attorney, Present
CADY, JAMES R Defendant, Not Present TIFFANY HUNTER Attorney, Present
EDWARDS, BRANDON Defendant, Not Present TIFFANY HUNTER Attorney, Present
TEN WEST TOWING, INC Defendant, Not Present ACOS, JAMESON H. Attorney, Present
Court Call
NATURE OF PROCEEDINGS: DEMURRER MOTION TO STRIKE X2, CASE MANAGEMENT CONFERENCE
Hearing Start Time: 9:14 AM
The above entitled cause came on regularly on this date and time with parties and/or counsel appearing as
reflected above.
Matter argued by counsel and submitted.
The Court makes the following findings and orders:
Defendant Brandon Edwards and James R. Cady's Demurrer to Second Amended Complaint:
(1) The Demurrer by Defendants Edwards and Cady
The Request for Judicial Notice
Defendants Edwards and Cady's Requests for Judicial Notice as granted as to the Statement of Information in Ex. A,
the Statement of Information in Ex. B and Fact 1 that Defendant James R. Cady is the Chief Executive Officer, the
Chief Financial Officer, the Agent for Service of Process, and the only Director of the Defendant Corporation, Ten
West towing, Inc., which fact can be derived as the legal effect from Exhibits. A and B.
Defendants' Request for Judicial Notice is denied as to Fact 2 that Defendant James R. Cady is the owner of the
Defendant Corporation, Ten West Towing, Inc., since nothing was submitted to support this purported fact.
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DAVIS VS TEN WEST TOWING, INC BCV-19-103005
Articles of Incorporation were referenced, but not in fact attached. However, the SAC makes this allegation,
wherefore the allegations is taken as true for Demurrer purposes.
The third cause of action for premises liability
Defendant Cady's Demurrer to the third cause of action for premises liability is overruled. The SAC sufficiently
alleges that Ten West Towing and Cady owned, occupied or controlled, etc. the property. The court does not read
the allegations for purposes of premises liability as inconsistent with the pleading allegations in prior versions of
the Complaint. Alter ego allegations are not necessary. The opposition argument that Defendant Cady can be
personally liable for premises liability based on his own actions without having to pierce the corporate veil of his
corporation, Ten West Towing, Inc., has merit.
The fifth cause of action - Ralph Act violation
The Demurrer by Defendant Edwards to the fifth cause of action is sustained, with leave to amend, for failure to
state facts sufficient to constitute a cause of action against this Defendant. While the SAC alleges that a substantial
motivating reason was race, Plaintiff's FAC previously conceded that "EDWARDS was not present for the initial
verbal confrontation between Defendant CADY and PLAINTIFF" (FAC 68), which allegation is omitted from the SAC
without explanation.
Since the FAC previously admitted that Edwards was not present for the verbal confrontation between Plaintiff and
Defendant Cady where racial slurs were allegedly voiced, and the SAC fails to explain this admission, there are
insufficient factual allegations in the SAC to support that Edwards's conduct was substantially motivated by
Plaintiff's race. The current allegations are too conclusory, especially in light of the previous concession that
Edwards was not present for the verbal confrontation. Plaintiff may be able to plead around the earlier admission
by providing a satisfactory explanation in any forthcoming third amended complaint.
The Demurrer by Defendant Cady as to the fifth cause of action is sustained, with leave to amend, for failure to
state facts sufficient to constitute a cause of action against this Defendant. The SAC makes insufficient allegations
that Cady threatened violence or committed violence. The SAC alleges Cady made racial slurs without factual
allegations that Cady threatened violence or committed violence. While the SAC does allege that Cady
"approached the gate where PLAINTIFF had attempted to enter in a physically threatening and menacing manner"
(SAC 8), this allegation is too conclusory. The court is not presently convinced that these allegations are sufficient
to state claim. Plaintiff may amend.
The sixth cause of action - Bane Act violation
The Demurrer by Defendant Edwards to the sixth cause of action is overruled. Defendant argues that a
discriminatory motive must be alleged for this cause of action. Yet, while the Ralph Act and the Bane Act are
related, the Bane Act does not require discriminatory animus as an element. Phrased differently, the Bane Act
does not require that the prohibited conduct have been committed because of Plaintiff's personal characteristics.
However, the Demurrer by Defendant Cady as to the sixth cause of action is sustained, with leave to amend, for
failure to state facts sufficient to constitute a cause of action against this Defendant. The elements of threat /
intimidation / coercion or violent acts are needed for a Bane Act claim, as they are for a Ralph Act claim, and the
SAC presently contains insufficient allegations in this regard. Plaintiff may amend.
(2) The Motion to Strike by Defendants Edwards and Cady
Regarding the motion to strike punitive damages as to Plaintiff's first cause of action (battery) and second cause of
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DAVIS VS TEN WEST TOWING, INC BCV-19-103005
action (assault) pertaining to Defendant Edwards, the motion to strike is denied.
Regarding the motion to strike punitive damages as to Plaintiff's third cause of action for premises liability
pertaining to Defendant Cady, the motion is granted, with leave to amend. Plaintiff's allegations are insufficient to
support a prayer for punitive damages against Defendant Cady. The SAC does not allege sufficient facts to support
punitive damages against Cady either as an employer of Edwards or based upon Cady's own actions. Civil Code
section 3294(b) requires certain facts to support employer liability for punitive damages, none of which are
sufficiently alleged here. Cady is alleged to have engaged in a verbal altercation and to have approached Plaintiff in
a menacing and threatening manner. These conclusory allegations provide insufficient facts to support punitive
damages against Cady.
Regarding, the moving argument that the request for attorney fees should be stricken for the first through fourth
causes of action, the court does not read the SAC as alleging an entitlement to attorney fees for those causes of
action. The opposition concedes that attorney fees rely on statute. The court reads the fifth and sixth causes of
action as the only causes of action pursuant to which Plaintiff pleads an entitlement to attorney fees.
Regarding for the motion to strike punitive damages and attorney fees as to the fifth cause of action - Ralph Act
violation.
Since the court sustains, with leave to amend, the Demurrer by both Defendants Cady and Edwards as to the fifth
cause of action for violation of the Ralph Act, this moots the motion to strike as to this cause of action.
Regarding for the motion to strike punitive damages and attorney fees as to the sixth cause of action - Bane Act
violation, the Bane Act also allows for recovery of punitive damages and attorney fees. Therefore, if Plaintiff can
state a claim for a Bane Act violation, Plaintiff is entitled to seek exemplary damages and attorney fees. Since the
court overrules the Demurrer by Defendant Edwards to this cause of action, but sustains the Demurrer by
Defendant Cady to the same cause of action (with leave to amend), the concurrent motion to strike pertaining to
punitive damages and attorney fees as to the sixth cause of action is granted for Defendant Cady only, with leave
to amend.
Defendant Ten West Towing, Inc.'s Joinder in Defendant James R. Cady and Defendant Brandon Edwards's
Demurrer and Motion to Strike as to Plaintiff's SAC is denied as to the Demurrer. The Notice of Joinder was not
filed until July 23, 2020 for a hearing on August 4, 2020. This provided Plaintiff with insufficient notice and
insufficient time to prepare an opposition as to any demurrer challenge by Ten West. The joinder is granted as to
the Motion to Strike, which motion mirrors some of the arguments raised in Ten West's own Motion to Strike.
(3) The Motion to Strike by Defendant Ten West Towing, Inc.
Defendant Ten West Towing, Inc.'s Motion to Strike the punitive damages allegations of the Second Amended
Complaint ("SAC") is granted, with leave to amend.
While Plaintiff only needs to plead ultimate facts supporting the statutory factors for punitive damages the SAC
alleges insufficient ultimate facts to support punitive damages against corporate employer Ten West Towing
pursuant to Civil Code section 3294(b) since none of the statutory factors are sufficiently alleged (neither via the
acts of Defendant Cady nor Defendant Edwards).
Plaintiff to file and serve Third Amended Complaint by 08/28/2020.
Case management conference continued to 10/16/2020, at 8:15 a.m., in Department 17.
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DAVIS VS TEN WEST TOWING, INC BCV-19-103005
(See reporter's transcript for full ruling)
Clerk's minutes will be the order of the court.
Copy of clerk's minutes emailed to all parties as stated on the attached declaration.
Minute order notice.
FUTURE HEARINGS:
October 16, 2020 8:15 AM Case Management Conference
Clark, Thomas S.
Bakersfield Department 17
Sheriff, Deputy
MINUTES FINALIZED BY: LINDA HALL ON: AUGUST 04, 2020
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DAVIS VS TEN WEST TOWING, INC BCV-19-103005
DAVIS VS TEN WEST TOWING, INC
BCV-19-103005
CERTIFICATE OF MAILING AND/OR EMAIL*******************
The undersigned, of said Kern County, certify: That I am a Deputy Clerk of the Superior Court of the State of California,
in and for the County of Kern, that I am a citizen of the United States, over 18 years of age, I reside in or am employed in
the County of Kern, and not a party to the within action, that I served the Minutes dated August 04, 2020 attached hereto
on all interested parties and any respective counsel of record in the within action by depositing true copies thereof,
enclosed in a sealed envelope(s) with postage fully prepaid and placed for collection and mailing on this date, following
standard Court practices, in the United States mail at Bakersfield California addressed as indicated on the attached
mailing list.
Date of Mailing: August 04, 2020
Place of Mailing: Bakersfield, CA
I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.
Tamarah Harber-Pickens
CLERK OF THE SUPERIOR COURT
Date: August 04, 2020
By:
Linda Hall, Deputy Clerk
Signed: 8/4/2020 03:56 PM
Certificate of Mailing
Page 5 of 6
DAVIS VS TEN WEST TOWING, INC
BCV-19-103005
MAILING LIST
SETH N ODELL BRADFORD G HUGHES/TIFFANY HUNTER
SWANSON ODELL 1055 WEST SEVENTH STREET SUITE 2400
330 H ST #2 LOS ANGELES CA 90017
BAKERSFIELD CA 93304 thunter@clarkhill.com
Seth Odell sodell@swansonodell.com
JAMESON H ACOS
SNYDER BURNETT EGERER LLP
5383 HOLLISTER AVENUE SUITE 240
SANTA BARBARA CA 93111
jacos@sbelaw.com
Certificate of Mailing
Page 6 of 6
Preview
Superior Court of California County of Kern Bakersfield Department 17 Date: 08/04/2020 Time: 8:30 AM - 12:00 PM BCV-19-103005 DAVIS VS TEN WEST TOWING, INC Courtroom Staff Honorable: Thomas S. Clark Clerk: Linda K. Hall Court reporter: Rubi Michaca Bailiff: Deputy Sheriff Interpreter: Language of: PARTIES: Present: DAVIS, ANTHONY Plaintiff, Not Present O'DELL, SETH N Attorney, Present CADY, JAMES R Defendant, Not Present TIFFANY HUNTER Attorney, Present EDWARDS, BRANDON Defendant, Not Present TIFFANY HUNTER Attorney, Present TEN WEST TOWING, INC Defendant, Not Present ACOS, JAMESON H. Attorney, Present Court Call NATURE OF PROCEEDINGS: DEMURRER MOTION TO STRIKE X2, CASE MANAGEMENT CONFERENCE Hearing Start Time: 9:14 AM The above entitled cause came on regularly on this date and time with parties and/or counsel appearing as reflected above. Matter argued by counsel and submitted. The Court makes the following findings and orders: Defendant Brandon Edwards and James R. Cady's Demurrer to Second Amended Complaint: (1) The Demurrer by Defendants Edwards and Cady The Request for Judicial Notice Defendants Edwards and Cady's Requests for Judicial Notice as granted as to the Statement of Information in Ex. A, the Statement of Information in Ex. B and Fact 1 that Defendant James R. Cady is the Chief Executive Officer, the Chief Financial Officer, the Agent for Service of Process, and the only Director of the Defendant Corporation, Ten West towing, Inc., which fact can be derived as the legal effect from Exhibits. A and B. Defendants' Request for Judicial Notice is denied as to Fact 2 that Defendant James R. Cady is the owner of the Defendant Corporation, Ten West Towing, Inc., since nothing was submitted to support this purported fact. MINUTES Page 1 of 6 DAVIS VS TEN WEST TOWING, INC BCV-19-103005 Articles of Incorporation were referenced, but not in fact attached. However, the SAC makes this allegation, wherefore the allegations is taken as true for Demurrer purposes. The third cause of action for premises liability Defendant Cady's Demurrer to the third cause of action for premises liability is overruled. The SAC sufficiently alleges that Ten West Towing and Cady owned, occupied or controlled, etc. the property. The court does not read the allegations for purposes of premises liability as inconsistent with the pleading allegations in prior versions of the Complaint. Alter ego allegations are not necessary. The opposition argument that Defendant Cady can be personally liable for premises liability based on his own actions without having to pierce the corporate veil of his corporation, Ten West Towing, Inc., has merit. The fifth cause of action - Ralph Act violation The Demurrer by Defendant Edwards to the fifth cause of action is sustained, with leave to amend, for failure to state facts sufficient to constitute a cause of action against this Defendant. While the SAC alleges that a substantial motivating reason was race, Plaintiff's FAC previously conceded that "EDWARDS was not present for the initial verbal confrontation between Defendant CADY and PLAINTIFF" (FAC 68), which allegation is omitted from the SAC without explanation. Since the FAC previously admitted that Edwards was not present for the verbal confrontation between Plaintiff and Defendant Cady where racial slurs were allegedly voiced, and the SAC fails to explain this admission, there are insufficient factual allegations in the SAC to support that Edwards's conduct was substantially motivated by Plaintiff's race. The current allegations are too conclusory, especially in light of the previous concession that Edwards was not present for the verbal confrontation. Plaintiff may be able to plead around the earlier admission by providing a satisfactory explanation in any forthcoming third amended complaint. The Demurrer by Defendant Cady as to the fifth cause of action is sustained, with leave to amend, for failure to state facts sufficient to constitute a cause of action against this Defendant. The SAC makes insufficient allegations that Cady threatened violence or committed violence. The SAC alleges Cady made racial slurs without factual allegations that Cady threatened violence or committed violence. While the SAC does allege that Cady "approached the gate where PLAINTIFF had attempted to enter in a physically threatening and menacing manner" (SAC 8), this allegation is too conclusory. The court is not presently convinced that these allegations are sufficient to state claim. Plaintiff may amend. The sixth cause of action - Bane Act violation The Demurrer by Defendant Edwards to the sixth cause of action is overruled. Defendant argues that a discriminatory motive must be alleged for this cause of action. Yet, while the Ralph Act and the Bane Act are related, the Bane Act does not require discriminatory animus as an element. Phrased differently, the Bane Act does not require that the prohibited conduct have been committed because of Plaintiff's personal characteristics. However, the Demurrer by Defendant Cady as to the sixth cause of action is sustained, with leave to amend, for failure to state facts sufficient to constitute a cause of action against this Defendant. The elements of threat / intimidation / coercion or violent acts are needed for a Bane Act claim, as they are for a Ralph Act claim, and the SAC presently contains insufficient allegations in this regard. Plaintiff may amend. (2) The Motion to Strike by Defendants Edwards and Cady Regarding the motion to strike punitive damages as to Plaintiff's first cause of action (battery) and second cause of MINUTES Page 2 of 6 DAVIS VS TEN WEST TOWING, INC BCV-19-103005 action (assault) pertaining to Defendant Edwards, the motion to strike is denied. Regarding the motion to strike punitive damages as to Plaintiff's third cause of action for premises liability pertaining to Defendant Cady, the motion is granted, with leave to amend. Plaintiff's allegations are insufficient to support a prayer for punitive damages against Defendant Cady. The SAC does not allege sufficient facts to support punitive damages against Cady either as an employer of Edwards or based upon Cady's own actions. Civil Code section 3294(b) requires certain facts to support employer liability for punitive damages, none of which are sufficiently alleged here. Cady is alleged to have engaged in a verbal altercation and to have approached Plaintiff in a menacing and threatening manner. These conclusory allegations provide insufficient facts to support punitive damages against Cady. Regarding, the moving argument that the request for attorney fees should be stricken for the first through fourth causes of action, the court does not read the SAC as alleging an entitlement to attorney fees for those causes of action. The opposition concedes that attorney fees rely on statute. The court reads the fifth and sixth causes of action as the only causes of action pursuant to which Plaintiff pleads an entitlement to attorney fees. Regarding for the motion to strike punitive damages and attorney fees as to the fifth cause of action - Ralph Act violation. Since the court sustains, with leave to amend, the Demurrer by both Defendants Cady and Edwards as to the fifth cause of action for violation of the Ralph Act, this moots the motion to strike as to this cause of action. Regarding for the motion to strike punitive damages and attorney fees as to the sixth cause of action - Bane Act violation, the Bane Act also allows for recovery of punitive damages and attorney fees. Therefore, if Plaintiff can state a claim for a Bane Act violation, Plaintiff is entitled to seek exemplary damages and attorney fees. Since the court overrules the Demurrer by Defendant Edwards to this cause of action, but sustains the Demurrer by Defendant Cady to the same cause of action (with leave to amend), the concurrent motion to strike pertaining to punitive damages and attorney fees as to the sixth cause of action is granted for Defendant Cady only, with leave to amend. Defendant Ten West Towing, Inc.'s Joinder in Defendant James R. Cady and Defendant Brandon Edwards's Demurrer and Motion to Strike as to Plaintiff's SAC is denied as to the Demurrer. The Notice of Joinder was not filed until July 23, 2020 for a hearing on August 4, 2020. This provided Plaintiff with insufficient notice and insufficient time to prepare an opposition as to any demurrer challenge by Ten West. The joinder is granted as to the Motion to Strike, which motion mirrors some of the arguments raised in Ten West's own Motion to Strike. (3) The Motion to Strike by Defendant Ten West Towing, Inc. Defendant Ten West Towing, Inc.'s Motion to Strike the punitive damages allegations of the Second Amended Complaint ("SAC") is granted, with leave to amend. While Plaintiff only needs to plead ultimate facts supporting the statutory factors for punitive damages the SAC alleges insufficient ultimate facts to support punitive damages against corporate employer Ten West Towing pursuant to Civil Code section 3294(b) since none of the statutory factors are sufficiently alleged (neither via the acts of Defendant Cady nor Defendant Edwards). Plaintiff to file and serve Third Amended Complaint by 08/28/2020. Case management conference continued to 10/16/2020, at 8:15 a.m., in Department 17. MINUTES Page 3 of 6 DAVIS VS TEN WEST TOWING, INC BCV-19-103005 (See reporter's transcript for full ruling) Clerk's minutes will be the order of the court. Copy of clerk's minutes emailed to all parties as stated on the attached declaration. Minute order notice. FUTURE HEARINGS: October 16, 2020 8:15 AM Case Management Conference Clark, Thomas S. Bakersfield Department 17 Sheriff, Deputy MINUTES FINALIZED BY: LINDA HALL ON: AUGUST 04, 2020 MINUTES Page 4 of 6 DAVIS VS TEN WEST TOWING, INC BCV-19-103005 DAVIS VS TEN WEST TOWING, INC BCV-19-103005 CERTIFICATE OF MAILING AND/OR EMAIL******************* The undersigned, of said Kern County, certify: That I am a Deputy Clerk of the Superior Court of the State of California, in and for the County of Kern, that I am a citizen of the United States, over 18 years of age, I reside in or am employed in the County of Kern, and not a party to the within action, that I served the Minutes dated August 04, 2020 attached hereto on all interested parties and any respective counsel of record in the within action by depositing true copies thereof, enclosed in a sealed envelope(s) with postage fully prepaid and placed for collection and mailing on this date, following standard Court practices, in the United States mail at Bakersfield California addressed as indicated on the attached mailing list. Date of Mailing: August 04, 2020 Place of Mailing: Bakersfield, CA I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Tamarah Harber-Pickens CLERK OF THE SUPERIOR COURT Date: August 04, 2020 By: Linda Hall, Deputy Clerk Signed: 8/4/2020 03:56 PM Certificate of Mailing Page 5 of 6 DAVIS VS TEN WEST TOWING, INC BCV-19-103005 MAILING LIST SETH N ODELL BRADFORD G HUGHES/TIFFANY HUNTER SWANSON ODELL 1055 WEST SEVENTH STREET SUITE 2400 330 H ST #2 LOS ANGELES CA 90017 BAKERSFIELD CA 93304 thunter@clarkhill.com Seth Odell sodell@swansonodell.com JAMESON H ACOS SNYDER BURNETT EGERER LLP 5383 HOLLISTER AVENUE SUITE 240 SANTA BARBARA CA 93111 jacos@sbelaw.com Certificate of Mailing Page 6 of 6