tentative rulings for november 20, 2019 departments 403 ... · 11/20/2019 · motion:...

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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


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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Re: Lopez v Del Monte Corp.

Fresno Superior Court Case No. 19CECG00654


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 .


16


17


18


(2)

Tentative Ruling

Re: Villalobos et al. v. Cortez



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 .


20

(2)

Tentative Ruling

Re: Martinez v. Beasley



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



21


Re: Davis v. Fresno Unified School Dist. et al.



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



22


Re: Ball v. Tutelian & Co., Inc.



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



25


Re: Macquarie Equipment Capital, Inc. v. Sequoia Equipment Company, Inc.



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



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