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Tentative Rulings for November 20, 2019
Departments 403, 501, 502, 503
There are no tentative rulings for the following cases. The hearing will go forward on
these matters. If a person is under a court order to appear, he/she must do so.
Otherwise, parties should appear unless they have notified the court that they will
submit the matter without an appearance. (See California Rules of Court, rule 3.1304(c).)
18CECG04002 MCJ Properties, L.P. v. Re-Invent Juicery, Inc. (Dept. 503)
The court has continued the following cases. The deadlines for opposition and reply
papers will remain the same as for the original hearing date.
19CECG01722 Semper v. Castillo is continued to Thursday, December 5, 2019, at
3:30 p.m. in Department 503.
________________________________________________________________
(Tentative Rulings begin at the next page)
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Tentative Rulings for Department 403
(03)
Tentative Ruling
Re: Ramirez v. Interstate Logistics
Case No. 15CECG01733
Hearing Date: November 20, 2019 (Dept. 403)
Motion: Defendants/Cross-Complainants Interstate Home Services
and Rigoberto Meza’s Motion to Vacate Amended
Judgment
Cross-Defendant County of Fresno’s Motion for Monetary
Sanctions Under Code of Civil Procedure Section 128.7
Tentative Ruling:
To deny defendants/cross-complainants Interstate and Meza’s motion to
vacate the amended judgment. (Code Civ. Proc. §§ 473; 663.) To deny cross-
defendant County of Fresno’s motion for monetary sanctions against Interstate and
Meza. (Code Civ. Proc. § 128.7.)
Explanation:
Interstate’s Motion to Vacate Judgment: Interstate and Meza argue that the
amended judgment is void and must be vacated because it includes an award of
costs to the County based on the memo of costs that the County served by mail rather
than by electronic service. Interstate further argues that the service of the memo of
costs was defective because the California Rules of Court, Rule 2.251(c)(3), requires
electronic service of all documents in a civil case where there is a local rule requiring
electronic filing of documents. Interstate points out that the Fresno Superior Court Local
Rules require electronic filing of documents in civil cases, unless the court orders
otherwise. (See Fresno County Superior Court Local Rule 4.1.13 A.) Thus, Interstate
concludes, since the Fresno Local Rules require electronic filing of documents,
electronic service of documents is also required, and the County’s failure to serve the
memo of costs by electronic service deprived the court of jurisdiction to award costs in
the amended judgment.
First of all, the court has already heard and rejected essentially the same
argument when it ruled on Interstate’s motion to strike or tax costs. In its order on that
motion, the court found that electronic service of documents is not mandatory under
either the Fresno County Superior Court Local Rules or the Rules of Court and the Code
of Civil Procedure. (See Court’s Minute Order of August 26, 2019.) “Local Rule 4.1.13
discusses electronic filing. Nowhere does it require that electronically filed documents
must also be served electronically. Code of Civil Procedure section 1010.6(d) provides
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that a trial court may, by local rule, require electronic service in civil actions. As noted,
Fresno County Superior Court does not require electronic service, only electronic filing.
California Rules of Court, rule 2.251(a) provides that when “a document may be served
by mail/express mail, overnight delivery, or fax transmission the document may be
served electronically…” Rule 2.251(b) provides for electronic service by express
consent. There was nothing submitted showing that all parties in the action consented
to electronic service as the required means of service. Neither rule 2.251(a) nor 2.251(b)
appears to be applicable here.” (August 26, 2019 Minute Order, pp. 2-3.)
Thus, the court has already considered and rejected Interstate’s primary
contention here that the memo of costs was served improperly because it was not
served by electronic means. In effect, Interstate is seeking to have the court reconsider
its prior ruling without complying with Code of Civil Procedure section 1008, which
requires a showing of new facts, circumstances, or law that would justify
reconsideration. Interstate has not made any showing of new facts, circumstances or
law that would support its request to reconsider the court’s decision that service of the
memo of costs was proper. Therefore, the motion is improperly brought and the court
could deny it on this ground alone.
Secondly, even if the court were to consider the merits of the motion to vacate
the judgment, it would still deny the motion. As discussed above, Interstate has
contended that since the memo of costs was not served electronically, the court could
not have used it as a basis for awarding costs to the County, and therefore the
amended judgment is void. However, Code of Civil Procedure section 1010.6 does not
make electronic service of documents mandatory. “A document may be served
electronically in an action filed with the court as provided in this section, in accordance
with rules adopted pursuant to subdivision (e).” (Code Civ. Proc., § 1010.6, subd. (a),
italics added.) Also, “[f]or cases filed on or before December 31, 2018, if a document
may be served by mail, express mail, overnight delivery, or facsimile transmission,
electronic service of the document is not authorized unless a party or other person has
agreed to accept electronic service in that specific action or the court has ordered
electronic service on a represented party or other represented person under subdivision
(c) or (d).” (Code Civ. Proc., § 1010.6, subd. (a)(2)(A)(i), italics added.) Thus, electronic
service under section 1010.6 is generally only permissive, not mandatory, unless the
parties agree otherwise or the court orders electronic service.
Next, “[a] trial court may adopt local rules permitting electronic filing of
documents, subject to rules adopted pursuant to subdivision (e) and the following
conditions:…” (Code Civ. Proc., § 1010.6, subd. (b).) “When a document may be
served by mail, express mail, overnight delivery, or fax transmission, the document may
be served electronically under Code of Civil Procedure section 1010.6 and the rules in
this chapter.” (Cal. Rules of Court, Rule 2.251, subd. (a), italics added.) Again, then, the
Rules of Court indicate that electronic service is optional.
Also, under Rule 2.251, subdivisions (c)(1) and (2), the court may require the
parties and other persons to serve documents electronically by local rule or court order.
Furthermore, under Rule 2.251subdivision (c)(3),
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Except when personal service is otherwise required by statute or rule, a party or
other person that is required to file documents electronically in an action must
also serve documents and accept service of documents electronically from all
other parties or persons, unless:
(A) The court orders otherwise, or
(B) The action includes parties or persons that are not required to file or serve
documents electronically, including self-represented parties or other self-
represented persons; those parties or other persons are to be served by non-
electronic methods unless they affirmatively consent to electronic service. (Cal.
Rules of Court, Rule 2.251, subd. (c)(3), emphasis added.)
Interstate contends that Rule 2.251, subdivision (c)(3) requires all service in civil
cases to be by electronic means where the court has adopted a local rule requiring
electronic filing of documents. Here, the Fresno Superior Court has adopted a local rule
requiring electronic filing of documents, so Interstate concludes that electronic service
of documents is also mandatory. (See Fresno County Superior Court Local Rule 4.1.13
A.)
It does appear that Rule 2.251(c)(3) requires parties in civil actions to serve
documents by electronic delivery where the court has adopted a local rule requiring
electronic filing of documents, as the Fresno Superior Court has done here. However, it
does not appear that the failure to serve the memo of costs by electronic delivery in
the present case means that the court lacked jurisdiction to enter a judgment including
the costs listed in the memo. It does not appear that the failure to comply with the Rule
of Court and Local Rule regarding electronic filing and service of documents would be
sufficient to deprive the court of jurisdiction to enter a judgment, since such a holding
would effectively allow a Rule of Court or Local Rule to supersede the Code of Civil
Procedure regarding the proper means of serving documents in civil actions.
“While rules of court may facilitate its business and promote the convenience of
litigants, yet acts essential to jurisdiction as fixed by statute may not be modified by rule.
[Citation.] Any rule that operates to deprive a party of a statutory right is to that extent
void. [Citation.]” (Dikkers v. Superior Court in and for Los Angeles County (1948) 88
Cal.App.2d 816, 818; see also Helbush v. Helbush (1930) 209 Cal. 758, 763.)
Here, if the court were to interpret Rule 2.251(c)(3) and Local Rule 4.1.13 in such
a way as to make the failure to serve documents by electronic means result in a
complete failure of the court’s jurisdiction to grant relief, it would conflict with the Code
of Civil Procedure, which expressly authorizes service of motions by other means such
United States Mail. (See Code Civ. Proc. § 1005, subd. (b).) Section 1010.6, subdivision
(a), also indicates that electronic service is optional rather than mandatory, unless the
parties expressly agree to accept such service or the court orders them to serve
documents by electronic means. Interpreting Rule 2.251(c)(3) to mean that the failure
to serve documents by electronic delivery results in a complete lack of jurisdiction
would be contrary to the terms of sections 1005 and 1010.6, and would result in the
California Rules of Court and Fresno’s Local Rules being elevated above statutes
enacted by the legislature. Such a result would be inconsistent with long-established
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authorities holding that statutes take precedence over state rules of court or locally
enacted court rules.
Indeed, if the court were to adopt Interstate’s position, it would lead to absurd
results, since a finding that failure to serve documents by electronic delivery results in a
lack of jurisdiction would mean that service was invalid even in cases where service was
properly effected pursuant to statute by personal delivery, which is generally
considered to be the most reliable form of service. By contrast, electronic service is a
potentially unreliable means of giving notice, since the vagaries of electronic delivery
can result in the loss of electronic documents and the failure to give any notice. (See
Lasalle v. Vogel (2019) 36 Cal.App.5th 127, 138, discussing the potential unreliability of
electronic service.) Therefore, the court will not find that electronic service is the only
acceptable method of serving documents, even though the Fresno Local Rules require
electronic filing of documents.
Instead, the court intends to find that, while Rule 2.251(c)(3) does apparently
require parties to serve and accept documents in most civil cases by electronic delivery
where there is a local court rule requiring electronic filing of documents, the failure to
serve documents by electronic delivery does not result in a failure of jurisdiction where
service was accomplished by another statutorily authorized means. This result avoids
the conflict between the Rule of Court and the Code of Civil Procedure regarding
proper service of motions and other documents, which may generally be served by
United States Mail and other means.
Here, Interstate does not contend that it was not served by mail with the memo
of costs, and the proof of service for the memo indicates that service was properly
effected as provided under the Code of Civil Procedure. (Memo of Costs filed March
11, 2019.) Indeed, the Judicial Council form for the memo of costs does not even
provide an option for indicating that service was by electronic delivery rather than mail
or personal delivery. (See Form MC-010, approved for optional use September 1, 2017.)
In any event, Interstate has not shown that it suffered any actual prejudice from
the failure to serve it by electronic delivery, as opposed to service by mail. “‘Procedural
defects which do not affect the substantial rights of the parties do not constitute
reversible error.’ ” (Code Civ. Proc. § 475; Southern California Gas Co. v. Flannery (2014)
232 Cal.App.4th 477, 491–492.) “In order to obtain a reversal based upon such a
procedural flaw, the appellant must demonstrate not only that the notice was
defective, but that he or she was prejudiced.” (Reedy v. Bussell (2007) 148 Cal.App.4th
1272, 1289, italics in original.) Here, it appears that Interstate received adequate notice
of the memo of costs when it was served with the memo by mail, and there is no
evidence that the failure to serve it by electronic means resulted in a lack of notice or
otherwise prevented Interstate from responding to the memo. As a result, it does not
appear that Interstate suffered any prejudice from the allegedly defective service of
the memo of costs.
Therefore, since the memo of costs was served by a statutorily-authorized means,
and since Interstate has not shown that it suffered any prejudice from being served by
mail rather than by electronic delivery, the court intends to find that the fact that it was
not served by electronic delivery does not render the subsequent judgment void or
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subject to being vacated. As a result, the court intends to deny Interstate’s motion to
vacate the amended judgment.
The County’s Motion for Sanctions: The County moves for sanctions against
Interstate and Meza for bringing the motion to vacate. Code of Civil Procedure section
128.7 states, “Every pleading, petition, written notice of motion, or other similar paper
shall be signed by at least one attorney of record in the attorney's individual name, or, if
the party is not represented by an attorney, shall be signed by the party.” (Code Civ.
Proc., § 128.7, subd. (a).)
Also, under section 128.7, subdivision (b),
By presenting to the court, whether by signing, filing, submitting, or later
advocating, a pleading, petition, written notice of motion, or other similar paper,
an attorney or unrepresented party is certifying that to the best of the person's
knowledge, information, and belief, formed after an inquiry reasonable under
the circumstances, all of the following conditions are met:
(1) It is not being presented primarily for an improper purpose, such as to harass
or to cause unnecessary delay or needless increase in the cost of litigation.
(2) The claims, defenses, and other legal contentions therein are warranted by
existing law or by a nonfrivolous argument for the extension, modification, or
reversal of existing law or the establishment of new law.
(3) The allegations and other factual contentions have evidentiary support or, if
specifically so identified, are likely to have evidentiary support after a reasonable
opportunity for further investigation or discovery.
(4) The denials of factual contentions are warranted on the evidence or, if
specifically so identified, are reasonably based on a lack of information or belief.
“If, after notice and a reasonable opportunity to respond, the court determines
that subdivision (b) has been violated, the court may, subject to the conditions stated
below, impose an appropriate sanction upon the attorneys, law firms, or parties that
have violated subdivision (b) or are responsible for the violation.” (Code Civ. Proc., §
128.7, subd. (c).)
A motion for sanctions under this section shall be made separately from other
motions or requests and shall describe the specific conduct alleged to violate
subdivision (b). Notice of motion shall be served as provided in Section 1010, but
shall not be filed with or presented to the court unless, within 21 days after service
of the motion, or any other period as the court may prescribe, the challenged
paper, claim, defense, contention, allegation, or denial is not withdrawn or
appropriately corrected. If warranted, the court may award to the party
prevailing on the motion the reasonable expenses and attorney's fees incurred in
presenting or opposing the motion. Absent exceptional circumstances, a law
firm shall be held jointly responsible for violations committed by its partners,
associates, and employees. (Code Civ. Proc., § 128.7, subd. (c)(1).)
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Here, although the County contends that Interstate’s motion to vacate the
judgment is frivolous and unsupported by facts or law, it fails to explain in its motion for
sanctions why it believes that the motion to vacate is frivolous. It simply claims that the
motion is meritless without any further discussion. The supporting declaration of the
County’s attorney also does not explain the reasons why he believes the motion is
without legal or factual merit. Simply stating as a legal conclusion that the motion is
“frivolous” or “without legal or factual support” does not suffice to “describe the
specific conduct alleged to violate” section 128.7.
In any event, while the court intends to deny the motion to vacate for the
reasons discussed above, it does not appear that the motion is wholly without legal or
factual support such that sanctions against Interstate are warranted here. Interstate’s
motion does raise a novel and somewhat difficult issue regarding the interpretation of
Rule of Court 2.251(c)(3), which was recently amended to add language that arguably
supports Interstate’s position that the memo of costs was not properly served on it.
While the court has concluded that the failure to serve the memo of costs here by
electronic delivery did not deprive it of jurisdiction to award costs in the amended
judgment, the issue is not necessarily so clear-cut that Interstate’s argument was wholly
without legal support. Therefore, it does not appear that sanctions are warranted here
under section 128.7, and the court intends to deny the County’s motion for sanctions.
Pursuant to CRC 3.1312 and CCP §1019.5(a), no further written order is necessary.
The minute order adopting this tentative ruling will serve as the order of the court and
service by the clerk will constitute notice of the order.
Tentative Ruling
Issued By: ______RTM_________________ on _____11/14/19___.
(Judge’s Initials) (Date)
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(29) Tentative Ruling
Re: Gonzalez v. Dycora Transitional Health-Tenacity, et al.
Superior Court Case No. 18CECG03739
Hearing Date: November 20, 2019 (Dept. 403)
Motion: Substitute successor in interest as plaintiff
Tentative Ruling:
To grant Margarita Pena’s motion to be substituted in as plaintiff. (Code Civ.
Proc. §§ 377.31, 377.32, 377.41.)
Explanation:
“Except as otherwise provided by statute, a cause of action for or against a
person is not lost by reason of the person's death, but survives subject to the
applicable limitations period.” (Code Civ. Proc. §377.20(a); see also Code Civ. Proc.
§377.21, Welf. & Inst. Code §15657.3(d)(B).) “On motion after the death of a person
who commenced an action or proceeding, the court shall allow a pending action or
proceeding that does not abate to be continued by the decedent's personal
representative or, if none, by the decedent's successor in interest.” (Code Civ. Proc.
§377.31.)
Here, Margarita Pena moves to be substituted as successor in interest to her
deceased husband, Leonel Gonzales, who passed away on November 12, 2018. The
complaint alleges elder abuse and negligence; neither claim abated upon Plaintiff’s
death.
Code of Civil Procedure section 377.32 provides:
(a) The person who seeks to commence an action or proceeding or to
continue a pending action or proceeding as the decedent's successor in interest
under this article, shall execute and file an affidavit or a declaration under penalty of
perjury under the laws of this state stating all of the following:
(1) The decedent's name.
(2) The date and place of the decedent's death.
(3) “No proceeding is now pending in California for administration of the
decedent's estate.”
(4) If the decedent's estate was administered, a copy of the final order
showing the distribution of the decedent's cause of action to the successor in
interest.
(5) Either of the following, as appropriate, with facts in support thereof:
(A) “The affiant or declarant is the decedent's successor in interest (as
defined in Section 377.11 of the California Code of Civil Procedure) and
succeeds to the decedent's interest in the action or proceeding.”
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(B) “The affiant or declarant is authorized to act on behalf of the
decedent's successor in interest (as defined in Section 377.11 of the
California Code of Civil Procedure) with respect to the decedent's
interest in the action or proceeding.”
(6) “No other person has a superior right to commence the action or
proceeding or to be substituted for the decedent in the pending action or
proceeding.”
(7) “The affiant or declarant affirms or declares under penalty of perjury under
the laws of the State of California that the foregoing is true and correct.”
[…]
(c) A certified copy of the decedent's death certificate shall be attached to
the affidavit or declaration. (Code Civ. Proc. 377.32.)
Ms. Pena submits her own declaration in support of the motion. The declaration
complies with the requirements of section 377.32. Ms. Pena states that she was the
wife of the decedent, is the beneficiary of his estate, and is authorized to act on his
behalf as his successor in interest under section 377.11. (Pena decl., ¶2.) Ms. Pena
further states, “As Decedent’s widow, no other persons have a superior right to
commence the action or proceeding or to be substituted for the decedent in the
pending action or proceeding.” (Id. at ¶4.) Ms. Pena also states that there is no
proceeding now pending in California for the administration of Mr. Gonzalez’s estate.
(Id. at ¶3.) These assertions are sufficient to satisfy the requirements of section 377.32.
The statute only requires that Ms. Pena be “the beneficiary of the decedent’s estate”,
and that no other person has a “superior right” to be substituted in place of the
decedent. These requirements are met by Ms. Pena’s declaration. The declaration is
sufficient to demonstrate that Ms. Pena is qualified to be the successor in interest to
her deceased husband’s claims.
The motion is sufficiently supported, and is unopposed. Accordingly, Margarita
Pena’s motion to be substituted in as Plaintiff is granted.
Pursuant to California Rules of Court rule 3.1312 and Code of Civil Procedure
section 1019.5, subdivision (a), no further written order is necessary. The minute order
adopting this tentative ruling will serve as the order of the court and service by the clerk
will constitute notice of the order.
Tentative Ruling
Issued By: RTM __ on 11/19/19 .
(Judge’s initials) (Date)
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(19) Tentative Ruling
Re: Lopez v Del Monte Corp.
Fresno Superior Court Case No. 19CECG00654
Hearing Date: November 20, 2019 (Dept. 403)
Motions: Demurrer by defendant to First Amended Complaint.
Motion to Strike Portions of First Amended Complaint
Tentative Ruling:
To overrule demurrer and to deny motion to strike. To require an answer in 10
days.
Explanation:
1. Notice and Procedural Deficiencies
The instant motion does not set forth each ground for demurrer in separate
paragraphs, as required by California Rules of Court, Rule 3.1320(a), which states: “Each
ground of demurrer must be in a separate paragraph and must state whether it applies
to the entire complaint, cross-complaint, or answer, or to specified causes of action or
defenses.” It also fails to state the grounds for demurrer as set forth in Code of Civil
Procedure section 430.10 other than for the fifth cause of action, which the notice of
motion states fails to plead facts sufficient to state a claim. The basis is that the cause
of action fails to state that the plaintiffs suffered an injury from the alleged breach of
the wage statement statute.
For the motion to strike, the motion also fails to comply with California Rules of
Court, Rule 3.1322(a), which states: “A notice of motion to strike a portion of a pleading
must quote in full the portions sought to be stricken except where the motion is to strike
an entire paragraph, cause of action, count, or defense. Specifications in a notice must
be numbered consecutively.” Instead, the motion states it seeks to strike “plaintiffs’
class allegations” in the “First through Sixth Causes of Action,” without quoting the
specific language at issue or referencing paragraph and line number. Additionally,
defendants seek to strike the prayer for declaratory relief on the basis that the named
plaintiffs are former employees and are therefore not entitled to declaratory relief.
These deficiencies require that the demurrer be overruled as to the 1st, 2nd, 3rd,
4th, and 6th causes of action. They also require that the motion to strike be denied for
failure to specify what exactly is to be stricken. That does not mean that defendant
cannot attack them upon class certification. It might be able to bring a motion to
“decertify” or seek a ruling against certification on the merits of that discrete issue.
The motion to strike the declaratory relief prayer and the demurrer to the 5th
Cause of Action are made in substantial compliance with applicable law and Court
rules.
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2. Fifth Cause of Action
This cause of action starts on page 15 of the pleading. It alleges that defendant
did not place accurate information for the workers on wage statements, including 1)
the number of hours worked, 2) the gross wages truly earned, or 3) the net wages
actually earned. Labor Code section 226(a) requires this information on the wage
statement (rearranged for readability, emphasis added):
“An employer, semimonthly or at the time of each payment of
wages, shall furnish to his or her employee, either as a detachable
part of the check, draft, or voucher paying the employee’s wages,
or separately if wages are paid by personal check or cash, an
accurate itemized statement in writing showing
(1) gross wages earned,
(2) total hours worked by the employee, except as provided in
subdivision (j),
(3) the number of piece-rate units earned and any applicable piece
rate if the employee is paid on a piece-rate basis,
(4) all deductions, provided that all deductions made on written
orders of the employee may be aggregated and shown as one item,
(5) net wages earned,
(6) the inclusive dates of the period for which the employee is paid,
(7) the name of the employee and only the last four digits of his or
her social security number or an employee identification number
other than a social security number,
(8) the name and address of the legal entity that is the employer
and, if the employer is a farm labor contractor, as defined in
subdivision (b) of Section 1682, the name and address of the legal
entity that secured the services of the employer, and
(9) all applicable hourly rates in effect during the pay period and the
corresponding number of hours worked at each hourly rate by the
employee...”
It is defendants’ position that it need not provide accurate information about
wages actually earned or hours actually worked. Subsection (e)(2)(B) states, in part:
“An employee is deemed to suffer injury for purposes of this
subdivision if the employer fails to provide accurate and complete
information as required by any one or more of items (1) to (9),
inclusive, of subdivision (a) and the employee cannot promptly
and easily determine from the wage statement alone one or more
of the following:
(i) The amount of the gross wages or net wages paid to the
employee during the pay period or any of the other information
required to be provided on the itemized wage statement pursuant
to items (2) to (4), inclusive, (6), and (9) of subdivision (a).”
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The complaint in this case states that total hours worked was inaccurate,
because defendants failed to include the donning and doffing time. That counts as a
“per se” injury under this section, as item (2) requires accurate information on: “total
hours worked by the employee.”
Price does not support defendants’ position. See Price v. Starbucks Corp. (2011)
192 Cal. App. 4th 1136, 1143: “Price only speculates on the ‘possible underpayment of
wages due,’ which is not evident from the wage statements attached to the complaint.
Price's complaint, therefore, is distinguishable from complaints of the plaintiffs in the
cases he relies on who sufficiently alleged (and presented evidence) of an injury arising
from inaccurate or incomplete wage statements, which required those plaintiffs to
engage in discovery and mathematical computations to reconstruct time records to
determine if they were correctly paid.”
The Price court cited Perez v. Safety-Kleen Systems, Inc. (N.D.Cal. 2008) 253 F.R.D.
508 as an example of a proper wage statement pleading. There, the plaintiffs alleged
that they worked more hours than were shown on the wage statements, which required
them to reconstruct their hours worked and the actual wages due. The Court found
that such allegations were sufficient to show injury, because the plaintiffs could not
determine the hours worked or pay really due from the inaccurate wage statements.
That is exactly what plaintiffs allege here. It also cited the case relied on by the Perez
court, Wang v. Chinese Daily News, Inc. (2006) 435 F. Supp. 2d 1042, where the workers
were classified as exempt, and therefore the hours worked and wages due were (if
plaintiffs prevailed) inaccurate. The injury was again stated to be the need to engage
in discovery and other expense to establish what the workers were actually owed.1
Price also cited Cicairos v. Summit Logistics, Inc. (2005) 133 Cal. App. 4th 949,
where the employer provided a wage statement that included a trip summary and an
earning statement of what workers were actually paid. The Court reversed summary
judgment, because those documents did not provide accurate reports of the actual
hours worked or the actual wages earned.
Defendant cites Maldonado v. Epsilon Plastics, Inc. (2018) 22 Cal. App. 5th 1308,
1337, which holds that an employer who made a good faith mistake as to the rate of
pay due cannot be assessed a penalty under Labor Code 226(e). As explained in
Naranjo v. Spectrum Security Services, Inc. (2019) 40 Cal. App. 5th 444; 253 Cal. Rptr. 3d
248, 266, Maldonado held: “[I]an overtime case, there is no itemized wage statement
violation where the hours worked are accurate, but the wages earned are not.” Here,
plaintiffs allege that the hours are wrong, because defendants failed to include the
donning and doffing time. In Soto v. Motel 6 Operating, L.P. (2016) 4 Cal. App. 5th 385,
the Court ruled that an employer need not list wages not yet due. Here, the wages for
donning and doffing would be due at the end of the pay period; that case does not
apply.
1 The U.S. Supreme Court ordered the Ninth Circuit to review the matter in light of Wal-Mart
Stores, Inc. v. Dukes (2011) 564 U.S. 338, which did not address California’s wage statement law.
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The First Amended Complaint alleges that the employer did not count time spent
donning and doffing as work time, therefore not paying wages for it or recording that
time, or listing accurate hours worked or wages earned on the wage statements. Price,
and the cases it cites, call for a finding that the wage statement claim does allege
facts sufficient to state such a cause of action.
3. Declaratory Relief Prayer
Defendants’ arguments on the wage statement claim show that there is an
existing and ongoing controversy between it and putative class members about the
proper construction of Labor Code section 226, at least. There is no allegation that
defendants adopted plaintiffs’ construction at any time after they left employment.
The basis for defendant’s motion to strike on this issue is the statement in Walmart Stores
v. Dukes (2011) 564 U.S. 338, 364 that those who are no longer employed lack standing
to seek declaratory relief against its employment practices.
California notions of standing and federal notions are different, with the federal
system imposing stricter requirements. For example, originally even one who was
unaffected by an unlawful, unfair, or fraudulent business practice was allowed to bring
a suit under Business and Professions Code section 17200 et seq., aka the Unfair
Competition Law (“the UCL”). See, e.g., Stop Youth Addiction v. Lucky Stores (1998) 17
Cal. 4th 553, 572. That was changed in 2004 by proposition, which required that the
plaintiff (unless a government entity) show injury in fact and lost money or property as a
result of such unfair competition.
California law shows the allegations are sufficient to demonstrate injury. Unpaid
wages are considered property and subject to the restitutionary provisions of the UCL.
Cortez v. Purolator Air Filtration Prods. Co. (2000) 23 Cal. 4th 163. A wage statement by
which an employer effectively represents that hours worked do not include donning
and doffing time, coupled with the failure to pay that time, is a loss of property and
money – the actual wages due (if plaintiffs succeed). The inaccurate wage statement
is part of the course of conduct alleged to deprive the workers of their full wages.
A plaintiff with a qualifying injury under Business and Professions Code section
17200 is has standing to seek injunctive relief to halt the allegedly improper practice,
even if their personal transaction is completed. In Notrica v. State Compensation Fund
(1999) 70 Cal. App. 4th 911, the insured who had been harmed and lost money
obtained an injunction against the insurer continuing the wrongdoing with other
insureds. In Quelmaine Co. v. Stewart Title Guaranty Co. (1998) 19 Cal. 4th 26, the Court
found that the UCL permitted an order that an insurer cease conspiring to deny title
insurance in breach of statute. In Chabner v. United of Omaha Life Ins. Co. (2000) 225
F.3d 1042, the Court ordered the defendant to reopen plaintiff's application and
calculate his premium in accordance with statutory requirements.
First, of course, there has to be a declaration as to the rights of the parties with
regard to the practice in controversy. Code of Civil Procedure section 1060 states, in
part: “He or she may ask for a declaration of rights or duties, either alone or with other
relief; and the court may make a binding declaration of these rights or duties, whether
14
or not further relief is or could be claimed at the time.” Business and Professions Code
section 17203, amended by Proposition 64, states:
“Any person who engages, has engaged, or proposes to engage
in unfair competition may be enjoined in any court of competent
jurisdiction. The court may make such orders or judgments,
including the appointment of a receiver, as may be necessary to
prevent the use or employment by any person of any practice
which constitutes unfair competition, as defined in this chapter, or
as may be necessary to restore to any person in interest any money
or property, real or personal, which may have been acquired by
means of such unfair competition. Any person may pursue
representative claims or relief on behalf of others only if the
claimant meets the standing requirements of Section 17204 and
complies with Section 382 of the Code of Civil Procedure, but these
limitations do not apply to claims brought under this chapter by the
Attorney General, or any district attorney, county counsel, city
attorney, or city prosecutor in this state.”
“Proposition 64 should be read in light of its apparent purposes, i.e.,
to eliminate standing for those who have not engaged in any
business dealings with would-be defendants and thereby strip such
unaffected parties of the ability to file ‘shakedown lawsuits,’ while
preserving for actual victims of deception and other acts of unfair
competition the ability to sue and enjoin such practices. (Voter
Information Guide, Gen. Elec. (Nov. 2, 2004) argument in favor of
Prop. 64, p. 40; see also Prop. 64, § 1.) Accordingly, plaintiffs who
can truthfully allege they were deceived by a product's label into
spending money to purchase the product, and would not have
purchased it otherwise, have ‘lost money or property’ within the
meaning of Proposition 64 and have standing to sue.”
Kwikset Corp. v. Superior Court (2011) 51 Cal. 4th 310, 317.
As named plaintiffs have standing under that statute, they have standing to seek
a declaration required to obtain relief thereunder as well. Therefore the motion to strike
the prayer for declaratory relief is denied.
3. Statute of Limitations Issue
While not properly raised on these motions, the parties should be prepared to
address handling of this issue at the Case Management Conference.
15
Pursuant to Code of Civil Procedure section 1019.5, subdivision (a), no further
written order is necessary. The minute order adopting this tentative ruling will serve as
the order of the court and service by the clerk will constitute notice of the order.
Tentative Ruling
Issued By: RTM on 11/19/19 .
(Judge’s initials) (Date)
16
Tentative Rulings for Department 501
17
Tentative Rulings for Department 502
18
Tentative Rulings for Department 503
(2)
Tentative Ruling
Re: Villalobos et al. v. Cortez
Superior Court Case No. 18CECG03311
Hearing Date: November 20, 2019 (Dept. 503)
Motion: Petition to Compromise Claim
Tentative Ruling:
To deny without prejudice. Petitioner must file a new petition, with appropriate
supporting papers and proposed orders, and obtain a new hearing date for
consideration of the amended petition. (Super. Ct. Fresno County, Local Rules, rule
2.8.4.)
Explanation:
The calculations are inaccurate and inconsistent. At item 13a(2) of the petition,
petitioner asserts that the amount of outstanding medical expenses to be paid from the
proceeds is $2,595.95. At items 15b(1) and 17b, the amount of medical expenses is
listed as $2,596.35. The total of the amounts owed as set out in item 13b(4) and (5) and
Attachment 13b(5) is $2,934.07. The proposed order indicates that medical expenses in
the amount of $2,596.35 will be paid, then proceeds to list payments totaling that
amount. There is no mention of the bill for $309.21 from EMP Partners of Madera Inc.
(see petition item 13b(5)(b)(i)(F)) or the bill for $28.51 from Ajit Singh, MD (see petition
Attachment 13b(5)(b)(F)).
The petition seeks payment of a Medi-Cal lien, yet fails to attach a copy of the
final Medi-Cal demand letter.
The petition seeks attorney fees. When attorney’s fees are sought, a declaration
from the attorney explaining the basis for the request, including a discussion of
applicable factors listed in rule 7.955(1)) of the California Rules of Court is to be
included, as is a copy of the fee agreement. No declaration is provided. The fee
agreement is provided as an exhibit to the petition. The fee agreement provided is in
Spanish. California Rules of Court, rule 3.1111(g) provides: “Exhibits written in a foreign
language must be accompanied by an English translation, certified under oath by a
qualified interpreter.” There no translation provided.
The name, branch and address of the depository is to be set out in Attachment
19b(2). There is no Attachment 19b(2).
Petitioner failed to submit an Order to Deposit Money Into Blocked Account
(form MC-355).
19
Pursuant to Code of Civil Procedure section 1019.5(a), no further written order is
necessary. The minute order adopting this tentative ruling will serve as the order of the
court and service by the clerk will constitute notice of the order.
Tentative Ruling
Issued By: KAG on 11/13/19 .
(Judge’s initials) (Date)
20
(2)
Tentative Ruling
Re: Martinez v. Beasley
Superior Court Case No. 18CECG04519
Hearing Date: November 20, 2019 (Dept. 503)
Motion: Motion to compel plaintiff Richard Martinez to provide initial
verified responses to form interrogatories, set one, and sanctions
Tentative Ruling:
To grant defendant’s motion to compel plaintiff Richard Martinez to provide
initial verified responses to form interrogatories, set one. (Code Civ. Proc. §2030.290(b).)
Plaintiff Richard Martinez to provide complete verified responses to form interrogatories,
set one, without objection within 10 days of service of this order.
To grant Defendant’s motion for sanctions. Plaintiff Richard Martinez is ordered
to pay $410.00 in sanctions to Stammer, McKnight, Barnum & Bailey LLP within 30 days
after service of this order. (Code Civ. Proc. §2030.290(c).)
Pursuant to California Rules of Court, rule 3.1312 and Code of Civil Procedure
section 1019.5(a), no further written order is necessary. The minute order adopting this
tentative ruling will serve as the order of the court and service by the clerk will constitute
notice of the order.
Tentative Ruling
Issued By: KAG on 11/13/19 .
(Judge’s initials) (Date)
21
(20) Tentative Ruling
Re: Davis v. Fresno Unified School Dist. et al.
Superior Court Case No. 12CECG03718
Hearing Date: November 20, 2019 (Dept. 503)
Motion: Harris Construction Co., Inc.’s Motion for Attorney’s Fees
Tentative Ruling:
To take the motion off calendar. Given that there is a current appeal pending
which may impact analysis of the request for attorney fees under Code of Civil
Procedure section 1021.5, and in the interests of judicial economy and to conserve
court resources, the Court defers ruling on the issue. Once the remittitur is issued, Harris
Construction Co., Inc. may contact the court to have the motion returned to calendar.
Pursuant to Cal. Rules of Court, Rule 3.1312(a) and Code Civ. Proc. § 1019.5(a),
no further written order is necessary. The minute order adopting this tentative ruling will
serve as the order of the court and service by the clerk will constitute notice of the
order.
Tentative Ruling
Issued By: KAG on 11/14/19 .
(Judge’s initials) (Date)
22
(28) Tentative Ruling
Re: Ball v. Tutelian & Co., Inc.
Superior Court Case No. 19CECG03042
Hearing Date: November 20, 2019 (Dept. 503)
Motion: By Defendants to compel arbitration and stay proceedings
Tentative Ruling:
To sever the portion of the arbitration agreement that appears to limit the scope
of judicial review of any arbitration decision on the grounds of unconscionability. To
find the remainder of the arbitration agreement enforceable and, therefore, grant the
motion to compel arbitration. To stay the action pending resolution of the arbitration
proceedings.
Explanation:
There is a strong public policy in favor of arbitration agreements and “doubts
concerning the scope of arbitrable issues are to be resolved in favor of arbitration.”
(Nyulassy v. Lockheed Martin Corp. (2004) 120 Cal.App.4th 1267, 1278 (quoting Ericksen,
Arbuthnot, McCarthy, Kearney & Walsh, Inc. v. 100 Oak Street (1983) 35 Cal.3d 312,
323).) Generally, “although ‘[t]he law favors contracts for arbitration of disputes
between parties’ [citation], ‘there is no policy compelling persons to accept arbitration
of controversies which they have not agreed to arbitrate . . . .’” (Victoria v. Superior
Court (1985) 40 Cal.3d 734, 744, quoting Weeks v. Crow (1980) 113 Cal.App.3d 350, 353,
and Player v. Geo. M. Brewster & Son, Inc. (1971) 18 Cal.App.3d 526, 534.)
Determination of whether the parties agreed to arbitrate is a threshold issue that
the trial court is required to make. (Fagelbaum & Heller LLP v. Smylie (2009) 174
Cal.App.4th 1351, 1364; see also Metters v. Ralphs Grocery Co. (2008) 161 Cal.App.4th
696, 701 (“federal policy in favor of arbitration does not come into play . . . until a court
has found the parties entered into a valid contract under state law”).) The burden is on
the party seeking to compel arbitration to establish the existence of an agreement to
arbitrate. (Engalia v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972;
Banner Entertainment, Inc. v. Superior Court (Alchemy Filmworks, Inc.) (1998) 62
Cal.App.4th 348, 356-357.) The court is required to weigh, “all the affidavits,
declarations, and other documentary evidence, as well as oral testimony received at
the court's discretion, to reach a final determination on the issue of arbitrability.”
(Banner Entertainment, supra, 62 Cal.App.4th at 356-357.)
Here, the evidence does show that Plaintiff signed an arbitration agreement.
The agreement also appears to cover the claims at issue here, and Plaintiff does not
contest the scope of the agreement insofar as it encompasses the issues in her
complaint. Instead, Plaintiff argues that the arbitration agreement should not be
enforced against her because it is unconscionable.
23
It is the case that arbitration agreements may be declared unenforceable upon
such grounds as exist for the revocation of any contract. (Armendariz v. Foundation
Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 98.) A contract is unenforceable if
one of the parties lacked a meaningful choice in deciding whether to agree and the
contract contains terms that unreasonably favorable to the other party. (OTO, LLC v.
Kho (2019) 8 Cal.5th 111, 125.) Both procedural and substantive unconscionability must
be shown for the defense to be established. (Armendariz, supra, 24 Cal.4th at 114.)
Procedural and substantive unconscionability are evaluated on a sliding scale, with the
more substantively oppressive the contract term, the less evidence of procedural
unconscionability being required, while the more deceptive or coercive the bargaining
tactics employed, the less substantive unfairness that is required. (Kho, supra, 8 Cal.5th
at 125-26.)
Plaintiff argues that the employment contract at issue here is one of adhesion,
insofar as it was presented on a “take-it-or-leave-it” basis. (Baltazar v. Forever 21, Inc.
(2016) 62 Cal.4th 1237, 1245.) Arbitration agreements imposed as conditions of
employment are typically adhesion contracts. (Kho, supra, 8 Cal.5th at 126.)
In order to establish oppression, the factors to consider include, “but are not
limited to (1) the amount of time the party is given to consider the proposed contract;
(2) the amount and type of pressure exerted on the party to sign the proposed
contract; (3) the length of the proposed contract and the length and complexity of the
challenged provision; (4) the education and experience of the party; and (5) whether
the party’s review of the proposed contract was aided by an attorney.” (Id. at 126-27.)
Plaintiff submits evidence that the arbitration agreement was included as part of
a stack of papers, that she was not provided with a copy of the employee handbook,
and she was not given time to review the arbitration agreement. (Opp. at pp. 5-6.)
These facts do appear to represent some degree of procedural unconscionability
under Kho, although not to the degree of the situation in Kho, where the signor was not
a native English speaker. (Id. at p. 129 (adhesion contract with opaque language
supports finding of procedural unconscionability).)
Nevertheless, the central question here is whether Plaintiff, “through oppression
and surprise, was coerced or mislead into making an unfair bargain.” (Id. at 136.)
Plaintiff contends that the language of the arbitration agreement reduces a party’s
ability to challenge any arbitrator’s decision in court.
Code of Civil Procedure section 1286.2 provides that a court can vacate an
award if one of several factors is found to have occurred, including corruption, fraud,
misconduct, arbitrators exceeding their powers, and a failure on the part of an
arbitrator to disclose disqualifications. The arbitration agreement here limits review to
“fraud or similar misconduct or unless an error appears on the face of the award, or the
award causes substantial injustice.” Therefore, the arbitration agreement does appear
to limit the terms by which a party may seek judicial review of any arbitration decision.
As a result, this provision does appear to have both substantive and procedural
unconscionability.
24
Plaintiff also argues that the scope of the arbitration agreement to arbitrate “any
claims” occurring “after the employment relationship” is also overly broad and could
be interpreted to include worker’s compensation claims. The surrender of judicial
review of statutory claims would be evidence of some level of unconscionability. (See,
e.g., Kho, supra, 8 Cal.5th at 129 (where party gave up statutory claims, or where a
level of legal training was required to understand what claims were being surrendered
to arbitration, unconscionability may be found).) However, there is nothing in the
record to indicate that this provision applies in the present case. The claims all concern
events which occurred during or immediately subsequent to the employment.
Finally, Plaintiff also argues that the provision that allows a court to sever the
invalid agreement is itself unconscionable. However, generally speaking, a court can
sever a single offending provision. (Ajamian v. CantoCO2e, L.P. (2012) 203 Cal.App.4th
771, 803 (court has power to sever but may find an agreement permeated by
unconscionability if it contains more than one unlawful provision and refuse to consider
any severance).)
Therefore, the Court finds that the single provision that appears to limit the scope
of judicial review of the arbitration award is unconscionable. Pursuant to the arbitration
agreement, the Court orders that provision severed. The remainder of the arbitration
agreement is not substantively unconscionable on the facts before the Court. The
Court grants the motion to compel arbitration under the arbitration agreement, as
severed, and orders this action stayed.
Pursuant to California Rules of Court, rule 3.1312, subdivision (a), and Code of
Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The
minute order adopting this tentative ruling will serve as the order of the court and
service by the clerk will constitute notice of the order.
Tentative Ruling
Issued By: KAG on 11/18/19 .
(Judge’s initials) (Date)
25
(24) Tentative Ruling
Re: Macquarie Equipment Capital, Inc. v. Sequoia Equipment Company, Inc.
Superior Court Case No. 19CECG02012
Hearing Date: November 20, 2019 (Dept. 503)
Motion: 1) Hearing on Plaintiff Macquarie Equipment Capital, Inc.’s Application
for Right to Attach Order and for Issuance of a Writ of Attachment
as to Defendant Sequoia Equipment Company, Inc.
2) Hearing on Defendant and Cross-Complainant Sequoia Equipment
Company, Inc.’s Application for Right to Attach Order and for
Issuance of a Writ of Attachment as to Cross-Defendant BCJ Sand
and Rock, Inc.
3) Hearing on Defendant and Cross-Complainant Sequoia Equipment
Company, Inc.’s Application for Right to Attach Order and for
Issuance of a Writ of Attachment as to Cross-Defendant Darwin
Christ
Tentative Ruling:
To continue the hearing on all applications to Tuesday, December 17, at 3:30
p.m. in Department 503, in order to allow Plaintiff Macquarie Equipment Capital, Inc.
(“Macquarie”), and Defendant and Cross-Complainant Sequoia Equipment Company,
Inc. (“Sequoia”) to each answer the following discrete questions prior to the hearing on
their respective Applications for Writs of Attachment/Right to Attach Orders:
As to Macquarie: Since it appears that the Recourse Agreement pertaining
to Sequoia does not have an attorney fee provision, what is the basis for the
request for attorney fees in Macquarie’s Application?
As to Sequoia: Since a “release from liability” is not the same as a “guaranty
of a contract,” and Cross-Defendant Christ is not a personal party to the
agreement regarding the crusher (i.e., he did personally guaranty that debt),
how could the “release” language in the email agreement between him and
Sequoia be binding on him as to the crusher agreement?
Each of the above-mentioned parties shall file their respective responses to these
questions on or before Friday, December 6, 2019, and each response shall be no longer
than four pages in length, exclusive of any necessary exhibits.
Pursuant to California Rules of Court, rule 3.1312 and Code of Civil Procedure
section 1019.5(a), no further written order is necessary. The minute order adopting this
ruling will serve as the order of the court, and service by the clerk of the minute order
will constitute notice of the order.
Tentative Ruling
Issued By: KAG on 11/19/19 .
(Judge’s initials) (Date)