SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
Department 2, Honorable Patricia M. Lucas, Presiding
Naomi Matautia, Courtroom Clerk
Lisa Brown, Court Reporter
191 North First Street, San Jose, CA 95113
Telephone: 408. 882.2120
To contest the ruling, call (408) 808-6856 before 4:00 P.M.
LAW & MOTION TENTATIVE RULINGS
DATE: Thursday, October 23, 2014 TIME: 9:00 A.M.
The prevailing party must prepare an order in compliance with Rule of Court 3.1312.
(SEE RULE OF COURT 3.1312)
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CASE TITLE
RULING
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105CV034521 Columbia Credit v. Negus Order of examination
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113CV255284 Vidillion v. Skylite
Order of examination
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113CV245057 Chen v. US-Sino Invest.
Off calendar
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114CV268711 Pena v. AMC Construction Ctrl/click on Line 4 for tentative ruling
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111CV197744 McVay v. Nelson, et al
Ctrl/click on Line 5 for tentative ruling
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114CV265935 Gonzalez v. Furuta, et al
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114CV267173 McKay v. B&S Plastics
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114V268043
Off calendar
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114CV270574 Parreno v. OAH
Off calendar: no proof of service timely filed
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112CV228440 Evergreen Document v.
Evergreen Global
Off calendar
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112CV230687 Muhn v. Omni Law Group Off calendar
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Kumagai v. A R
Automotive, et al.
SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
Department 2, Honorable Patricia M. Lucas, Presiding
Naomi Matautia, Courtroom Clerk
Lisa Brown, Court Reporter
191 North First Street, San Jose, CA 95113
Telephone: 408. 882.2120
To contest the ruling, call (408) 808-6856 before 4:00 P.M.
LAW & MOTION TENTATIVE RULINGS
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Case Name: Modesto Pena dba Modesto Plumbing v. AMC Construction and Mold
Remediators, Inc., et al.
Case No.:
1-14-CV-268711
Demurrer and Motion to Strike by Defendant AMC Construction and Mold Remediators,
Inc., to the Complaint of Plaintiff Modesto Pena dba Modesto Plumbing
Request for Judicial Notice
Defendant’s request for judicial notice is GRANTED. (See Evid. Code § 452, subd. (d);
see also Oiye v. Fox (2012) 211 Cal.App.4th 1036, 1055 [court may take judicial notice that
pleadings were filed containing certain allegations and arguments, but may not take judicial
notice of the truth of the facts alleged].)
Demurrer to the Complaint
Defendant’s demurrer to the first and second causes of action for breach of oral contract
on the ground of uncertainty is OVERRULED. Demurrers for uncertainty are disfavored and
will only be sustained where the pleading is so bad that the defendant cannot reasonably respond,
i.e., he or she cannot reasonably determine what issues must be admitted or denied, or what
counts or claims are directed against him or her. (Khoury v. Maly’s of Calif., Inc. (1993) 14
Cal.App.4th 612, 616.) “A demurrer for uncertainty is strictly construed, even where a
complaint is in some respects uncertain, because ambiguities can be clarified under modern
discovery procedures.” (Ibid.)
With respect to the first cause of action, Plaintiff alleges that Defendant made an oral
promise to pay $37,000 to Plaintiff in exchange for the remedial sewage repair work summarized
in the Project One agreement. (See Complaint at ¶¶ 14-17, 38, and 39.) Plaintiff claims that it
completed performance under the contract and that Defendant breached by failing to pay as
agreed upon by the parties. (Id. at ¶¶ 41-42.) Similarly, with respect to the second cause of
action, Plaintiff alleges that Defendant made an oral promise to pay $80,000 to Plaintiff in
exchange for remedial sewage repair work summarized in the Project Two agreement. (Id. at ¶¶
29, 30, 46, and 47.) Plaintiff alleges that it also completed performance under this contract and
Defendant breached by failing to pay as agreed upon by the parties. (Id. at ¶¶ 49-50.) Plaintiff
has alleged sufficient facts to put Defendant on notice of the issues it is being asked to address in
the first and second causes of action. (See Williams v. Beechnut Nutrition Corp. (1986) 185
Cal.App.3d 135, 139 [under our liberal pleading rules, where the complaint contains substantive
factual allegations sufficiently apprising defendant of the issues it is being asked to meet, a
demurrer for uncertainty should be overruled].)
Defendant’s demurrer to the fourth cause of action for breach of implied covenant of
good faith and fair dealing is SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND for failure
to state a claim. Here, the complaint states that both Plaintiff’s causes of action for breach of
contract and its cause of action for breach of the implied covenant of good faith and fair dealing
are based on the allegation that Defendant failed to make payments under the two oral
agreements. (See Complaint at ¶¶ 26, 34, 42, 50, 61 and 63.) Therefore, Plaintiff’s breach of
implied covenant claim based on this theory is simply duplicative of the breach of contract
causes of action and thus may be disregarded. (See Careau & Co. v. Security Pacific Business
Credit, Inc. (1990) 222 Cal.App.3d 1371, 1392; see also Diaz v. Fed. Express Corp. (C.D. Cal.
2005) 373 F.Supp.2d 1034, 1066 [district court dismissed plaintiff’s breach of covenant claim
because it was duplicative of his breach of contract claim].)
With respect to the sixth cause of action for fraud and the seventh cause of action for
negligent misrepresentation, Defendant argues that Plaintiff fails to allege fraud with the required
specificity to state a cause of action. “The elements of fraud are (1) the defendant made a false
representation as to a past or existing material fact; (2) the defendant knew the representation
was false at the time it was made; (3) in making the representation, the defendant intended to
deceive the plaintiff; (4) the plaintiff justifiably relied on the representation; and (5) the plaintiff
suffered resulting damages.” (West v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 780,
792 [citation omitted].)
Fraud must be pleaded with specificity rather than with general and conclusory
allegations. The specificity requirement means a plaintiff must allege facts showing how, when,
where, to whom, and by what means the representations were made, and, in the case of a
corporate defendant, the plaintiff must allege the names of the persons who made the
representations, their authority to speak on behalf of the corporation, to whom they spoke, what
they said or wrote, and when the representation was made.” (West v. JPMorgan Chase Bank,
N.A., supra, 214 Cal.App.4th at p. 793 [citation and quotation marks omitted]; see also Charnay
v. Cobert (2006) 145 Cal.App.4th 170, 185, fn. 14 [fraud and negligent misrepresentation must be
pled with specificity].)
Courts enforce the specificity requirement in consideration of its two purposes. (West v.
JPMorgan Chase Bank, N.A., supra, 214 Cal.App.4th at p. 793.) The first purpose is to give
notice to the defendant with sufficiently definite charges that the defendant can meet them.
(Ibid.) The second is to permit a court to weed out meritless fraud claims on the basis of the
pleadings; thus, the pleading should be sufficient to enable the court to determine whether, on the
facts pleaded, there is any foundation, prima facie at least, for the charge of fraud. (Ibid.)
Here, Plaintiff has not met the specificity requirement to support its fraud and negligent
misrepresentation causes of action. Instead, Plaintiff reiterates many of the same allegations
which are the subject of its breach of contract claims. However, Plaintiff fails to allege the
names of the persons to whom he spoke, their authority to speak, along with the specific
representations that were made to state a fraud claim.
Therefore, Defendant’s demurrer to the sixth and seventh causes of action is
SUSTAINED WITH 10 DAYS’ LEAVE TO AMEND for failure to state a claim.
Motion to Strike Portions of the Complaint
Defendant’s motion to strike punitive damages is GRANTED WITH 10 DAYS’ LEAVE
TO AMEND. “In order to state a prima facie claim for punitive damages, a complaint must set
forth the elements as stated in the general punitive damage statute, Civil Code section 3294.
These statutory elements include allegations that the defendant has been guilty of oppression,
fraud, or malice.” (Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th
53, 63 [citations omitted].) Here, Plaintiff has not alleged sufficient facts to support allegations
that Defendant acted with malice, oppression or fraud, as required by statute.
Defendant’s motion to strike the request for attorney’s fees is GRANTED WITH 10
DAYS’ LEAVE TO AMEND. In the absence of some special agreement, statutory provision, or
exceptional circumstances, attorneys’ fees are to be paid by the party employing the attorney.
(Code Civ. Proc. § 1021; Reid v. Valley Restaurants, Inc., (1957) 48 Cal.2d 606, 610.) Here,
Plaintiff’s complaint fails to allege any contract, statute or law under which it can recover its
attorney’s fees.
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Case Name: McVay v. Nelson
Case No.:
1-11-CV-197744
Motion by Craig Hulse to Intervene
Craig Hulse’s motion was timely filed and served. The last day to file opposition was
October 9, 2014, and no opposition was timely filed.
Plaintiff Steven McVay filed late opposition on October 14, 2014, but provided no
explanation for the untimeliness of the opposition. Although the court has considered the
opposition, Plaintiff is admonished that he must comply with all applicable rules and deadlines,
and that the court may in its discretion disregard untimely or noncompliant filings in the future.
The motion is granted.
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Case Name: Gonzalez v. Furuta, et al.
Case No.:
1-14-CV-265935
Motion by Defendant Laura Furuta for Change of Venue
Furuta, one of three defendants, asserts that Plaintiffs have filed this action in the wrong
court. Furuta therefore has the burden to overcome the presumption that Plaintiffs have selected
a proper venue and to show that the venue is not proper on any statutory ground. (Fontaine v.
Superior Court (2009) 175 Cal.App.4th 830, 836.)
The complaint alleges that the defendants had a law office in Santa Clara County.
Furuta’s declaration in support of the motion admits that: defendant Augusto Rodriguez was an
employee of attorney Samantha Harris from whom Furuta purchased all office files and
equipment; Rodriguez worked in a San Jose law office; Furuta employed several of Harris’s
employees; and Rodriguez “reported” (presumably to Furuta) that Plaintiffs wanted
representation.
Furuta has failed to meet her burden. The motion is denied.
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Case Name: McKay v. B&S Plastics, Inc., et al.
Case No.:
1-14-CV-267173
The motion by Defendant B&S Plastics, Inc., for pro hac vice admission of Bradley Barmen is
unopposed and granted.
No proof of service has been timely filed in connection with the motion by Liberty Insurance
Corporation for leave to intervene, and it is off calendar.
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