1. law, govt and politics

SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
Department 9, Honorable Mary E. Arand
Henry Keniston, Courtroom Clerk
Tina White, Court Reporter
191 North First Street, San Jose, CA 95113
Telephone: 408.882.2200
To contest the ruling, call (408) 808-6856 before 4:00 P.M.
LAW AND MOTION TENTATIVE RULINGS
DATE:
December 16, 2014
TIME:
9:00 A.M.
PREVAILING PARTY SHALL PREPARE THE ORDER OR AS STATED
OTHERWISE BELOW.
(SEE RULE OF COURT 3.1312)
TROUBLESHOOTING TENTATIVE RULINGS
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LINE #
CASE #
CASE TITLE
RULING
LINE 1
105CV052009 V. Adams vs. J. Osborne, IV
Order of examination of John Osborne and Sarat Osborne
continued from November 20, 2014. John Osborne and
Sarat Osborne are ordered to appear.
LINE 2
113CV250071 Esteson Corporation vs. L.
Smotherman, et al
Order of examination of Kevin Smotherman. No Proof of
service has been filed.
LINE 3
114CV267229 A. Cremona vs. M. Chiocca
Off calendar. First Amended Cross-complaint filed
12/3/2014.
LINE 4
114CV270302 C. Miller vs. D. Narajowski, et al
Ctrl/click on Line 4 for tentative ruling.
LINE 5
112CV226063 B. Taylor vs. Los Gatos Community Ctrl/click on Line 5 for tentative ruling.
Hospital, et al
LINE 6
113CV246314 M. Glintzer, et al vs. CDNetworks,
Inc., et al
LINE 7
113CV255459 S. Brashear vs. City of San Jose, et al Ctrl/click on Line 7 for tentative ruling
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111CV206732 C. Meddings vs. P. Hogan, et al
Plaintiff’s motion for judgment on the pleadings was not
timely or properly served. The motion was served by mail
on the last day to personally deliver the motion (November
20, 2014). Also, as noted in the Declaration filed in
opposition, Plaintiff apparently served the motion on
counsel at an old address, who did not receive the motion.
The declaration filed by counsel for Defendant/Crosscomplainant CDNetworks indicates an agreement that the
motion will be removed from the December 16 calendar.
Even though Plaintiff was aware of the defects in service
more than ten days ago, Plaintiff has not requested from the
clerk, or sought or obtained an order from this Court to
continue this hearing at least three court days before the
hearing as required by Local Rules of Court, Rule 7D., and
accordingly, the motion is ordered OFF CALENDAR.
Off calendar. Set in error.
SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
Department 9, Honorable Mary E. Arand
Henry Keniston, Courtroom Clerk
Tina White, Court Reporter
191 North First Street, San Jose, CA 95113
Telephone: 408.882.2200
To contest the ruling, call (408) 808-6856 before 4:00 P.M.
LAW AND MOTION TENTATIVE RULINGS
LINE 9
113CV242928 Silicon Genesis Corporation vs.
Trademarkia, Inc., et al
The Petition by Plaintiff Silicon Genesis Corporation’s
Petition to Confirm Arbitration Award is unopposed and
GRANTED, except that it is unnecessary for any judgment
to include a provision or calculation for post-judgment
interest because all judgments earn post-judgment interest at
the rate of 10% per annum. (CCP § 685.010.) The Court
will modify the order already submitted by moving party to
delete paragraph 2.b., and will sign the judgment.
LINE 10 114CV260369 N. Lee vs. A. Rezaee, et al
The motion by Defendant Les St. Clair for approval of good
faith settlement was properly noticed and served, is
unopposed, has merit and is GRANTED. The Court will
sign the proposed form of order.
LINE 11 114CV262556 T. Hernandez, et al vs. R. Cabotje
The motion by attorney Richard Staskus to be relieved as
counsel for Plaintiffs Teofila Hernandez and Enrique
Montiel is unopposed, but is DENIED without prejudice.
For the second time, Counsel did not use the mandatory
Judicial Council Form MC-052 declaration in support of the
motion. The pleading format declaration provided is not
adequate, as it does not include mandated information found
on Form MC-052, such as notices to client, the required
confirmation of current address and notifications to clients,
and other mandated information.
This same defect was noted by the Court in denying
Counsel’s prior motion to withdraw that was set for hearing
on September 25, 2014. Any further motion to withdraw
shall fully comply with C.C.P. sec. 284 and Cal. Rules of
Court, Rule 3.1362.
LINE 12 114CV263874 S. Qian vs. L.Tu
Counsel are ordered to personally appear on this matter.
Telephone or CourtCall appearance is not allowed for this
hearing.
No tentative ruling.
LINE 13 114CV272500 Northern California Collection
Service, Inc. vs. M. Mossadeghian
Plaintiff’s Counsel and Defendant shall appear.
LINE 14 113CV245868 J. Berman vs. C. Martina, et al
Ctrl/click on Line 14 for tentative ruling.
LINE 15 114CV266598 Limo Stop Inc. vs. D. Ganguly, et al
The motion by attorney Donald J. DeVries, Esq. to be
relieved as counsel for Defendants Arun Ganguly and Dolly
Ganguly was timely and properly served, is unopposed, and
is GRANTED. The Court will sign the proposed form of
order.
SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
Department 9, Honorable Mary E. Arand
Henry Keniston, Courtroom Clerk
Tina White, Court Reporter
191 North First Street, San Jose, CA 95113
Telephone: 408.882.2200
To contest the ruling, call (408) 808-6856 before 4:00 P.M.
LAW AND MOTION TENTATIVE RULINGS
LINE 16 700CV396255 Ford Motor Credit Co. vs. J. Bigelow, Claim of exemption. Judgment Debtor Kavon Bigelow is
et al
ordered to appear and provide proof of all household income
(six months paystubs; 2013 tax return); and proof of all
expenses.
LINE 17 114CV259980 B. Zahnstecher vs. Emerson Network Off calendar.
Bower-Embedded Computing, Inc., et
al
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Case Name: Miller v. Narajowski, et al.
Case No.:
1-14-CV-270302
After full consideration of the arguments and authorities submitted by each party, the court
makes the following rulings:
Plaintiff Clint Miller (“Plaintiff”) alleges the following:
Plaintiff owns a residence in Los Gatos (“the Property”), and defendants David
Narajowski and Megan Narajowski (collectively, “Defendants”) agreed to lease the Property
pursuant to the terms of a written lease agreement (“the Lease”). (Compl., ¶¶ 1-3 & Ex. A.)
The Lease prohibits Defendants from making “repairs or improvements or alterations” to the
Property without Plaintiff’s prior written consent. (Id., Ex. A at p. 2.) The Lease does not
expressly state that any pets not identified in the Lease cannot reside at the Property, and it has
blank spaces for the identification of pets. (Id., Ex. A at p. 3.) Sometime before May 15, 2014,
Defendants informed Plaintiff that they had removed a cabinet from the kitchen and placed it in
the garage, and they had two pets at the Property. (Id., ¶¶ 4-7.) Plaintiff inspected the Property
on July 28, 2014, and found that Defendants had also “poorly” painted two rooms. (Id., ¶¶ 8 &
11.)
Plaintiff asserts a cause of action against Defendants for “injunction,” and sets forth
two counts. Count One seeks declaratory relief that (a) Plaintiff is allowed to make necessary
repairs, including repairs to the kitchen ceiling and replacing the cabinet, (b) Plaintiff is
allowed to charge Defendants for the costs of those repairs, repainting, and replacing of the
cabinet, and (c) Defendants must pay Plaintiff “his normal pet security deposit.” Count Two
seeks an order enjoining Defendants from (a) making any alternations, repairs, or
improvements to the Property, (b) preventing Plaintiff from conducting repairs to the Property,
and (c) having pets at the Property “without adequate security payments.”
Defendants generally demur to the complaint for failure to state a claim and move to
strike portions of the complaint. (See Code Civ. Proc., §§ 430.10, subds. (e)-(f) & 435-436.)
They also make a request for judicial notice in support of their demurrer.
Defendants’ request for judicial notice of the complaint, answer, and judgment filed in
a prior unlawful detainer action between the parties, Miller v. Narajoswki, et al. (Santa Clara
County Super. Ct. Case No. 1-14-CV-267821) (“UD Action”), is GRANTED, but only as to
the existence of those documents and facts that are the result of an adversarial hearing that
involved the question of their existence or nonexistence. (See Evid. Code, § 452, subd. (d); see
also People ex rel. Lockyer v. Shamrock Foods Co. (2000) 24 Cal.4th 415, 422 [relevant court
records are subject to judicial notice]; see also Lockley v. Law Office of Cantrell, Green,
Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882 [“courts are free to take judicial notice
of the existence of each document in a court file,” but “may not take judicial notice of the truth
of hearsay statements”; courts may only take notice of facts stated in court records that are the
result of an adversarial hearing that involved the question of their existence or nonexistence].)
Defendants insist that Plaintiff cannot state a claim for “injunction” based on an alleged
breach of the Lease because this claim is barred by the judgment in the UD Action. A general
demurrer lies where the facts alleged in the complaint or matters judicially noticed show that a
plaintiff’s claim is barred by res judicata/collateral estoppel. (Boeken v. Philip Morris USA,
Inc. (2010) 48 Cal.4th 788, 792.) Res judicata bars a second lawsuit based on the same claim
between the parties; and collateral estoppel bars the re-litigation of a claim or issue that was
litigated where (1) a claim/issue in the present action is identical to a claim/issue in the prior
proceeding, (2) the prior proceeding resulted in a final judgment on the merits, and (3) the
party against whom the doctrine is being asserted was a party to the prior proceeding. (Id., at
pp. 792 & 797.) Since an unlawful detainer action litigates “claims bearing directly upon the
right of immediate possession” of the premises, a judgment in an unlawful detainer action has a
limited preclusive effect, but an unlawful detainer judgment is preclusive to any other issue
fully litigated in the unlawful detainer action. (Vella v. Hudgins (1977) 20 Cal. 3d 251, 255227; Gombiner v. Swartz (2008) 167 Cal.App.4th 1365, 1371.)
In the UD Action, Plaintiff sought possession of the Property, forfeiture of the Lease,
and damages on the ground that Defendants breached the Lease by, e.g., removing cabinets
without prior approval and “[f]ail[ing] to inform [Plaintiff] that they had” pets which “may
have required additional deposits.” (RJN, Ex. 1, ¶ 17 & Attach. 1.) The judgment states that
Judge Woodhouse considered the evidence at a bench trial on August 18, 2014, and entered
judgment for Defendants, finding that they are entitled to possession of the Property and
Plaintiff is entitled to receive nothing. (RJN Ex. 3.)
Although both the UD Action and the claim for “injunction” are both based on the
alleged breach of the Lease by the same conduct, there is no statement of decision in the UD
Action. Thus, the Court cannot determine whether the UD Action fully litigated the breach of
Lease issue, as the judgment only indicates that the alleged breach was insufficient to give
Plaintiff the right to immediate possession of the Property. Plaintiff’s “injunction” claim is
therefore not barred by the judgment in the UD Action.
That being said, the Court notes that Plaintiff’s only claim is for “injunction.”
“Injunctive relief is a remedy and not, in itself, a cause of action, and a cause of action must
exist before injunctive relief may be granted.” (Shell Oil v. Richter (1942) 52 Cal.App.2d 164,
168.) Thus, Plaintiff cannot state a claim for “injunction” as a matter of law. Nevertheless, it
appears reasonably possible that Plaintiff could amend the complaint to state a claim for breach
of contract and/or declaratory relief as to the parties’ rights or obligations under the Lease.
Therefore, Defendants’ general demurrer to the complaint is SUSTAINED WITH 10
DAYS’ LEAVE TO AMEND. In light of the foregoing, the motion to strike portions of the
complaint is MOOT.
The Court will prepare the order.
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Case Name: Taylor v. Community Hospital of Los Gatos, et al.
Case No.:
1-12-CV-226023
After full consideration of the evidence, the separate statements submitted by each party, and
the authorities submitted by each party, the court makes the following rulings:
Plaintiff Benjamin J. Taylor (“Plaintiff”), through his mother and guardian ad litem
Aleatha Taylor (“Aleatha”), asserts a medical malpractice claim against defendant Steven N.
Batanides (“Dr. Batanides”) and others, alleging Dr. Batanides’ acts/omissions in the treatment
of Aleatha’s preterm labor on June 14-15, 2006, caused Plaintiff to be deprived of oxygen,
resulting in periventricular leukomalacia (“PVL”) brain damage, which in turn caused cerebral
palsy and quadriplegia. Dr. Batanides moves for summary judgment. (See Code Civ. Proc.,
§ 437c.)
Plaintiff’s request for judicial notice is GRANTED IN PART and DENIED IN PART.
(Evid. Code, § 452, subds. (b)-(c) & (h).) The request is GRANTED as to regulations, but it is
DENIED as to the records from the Medical Board regarding Dr. Batanides’ surrender of his
medical license in December 2012. (See Gbur v. Cohen (1979) 93 Cal.App.3d 296, 301
[judicial notice is “confined to those matters which are relevant to the issue at hand”].)
Plaintiff’s evidentiary objections lack merit and are OVERRULED. Likewise, Dr.
Batanides’ evidentiary objections lack merit and are OVERRULED.
Dr. Batanides argues that Plaintiff cannot establish the breach of duty and causation
elements of his medical malpractice claim. Medical malpractice is a form of negligence;
however, “a physician is required to possess and exercise, in both diagnosis and treatment, that
reasonable degree of knowledge and skill which is ordinarily possessed and exercised by other
members of his profession in similar circumstances.” (Landeros v. Flood (1976) 17 Cal.3d
399, 408.) To establish the elements of breach of duty and causation, the plaintiff must proffer
testimony from an expert witness. (Gannon v. Elliot (1993) 19 Cal.App.4th 1, 6 [breach];
Jennings v. Palomar Pomerado Health Systems, Inc. (2004) 114 Cal.App.4th 1108, 1117-1118
[causation requires expert testimony showing that there is a reasonable medical probability that
the defendant’s acts or omissions could have been a cause-in-fact of the alleged injury].)
“When a defendant moves for summary judgment and supports his motion with expert
declarations that his conduct fell within the community standard of care, he is entitled to
summary judgment unless the plaintiff comes forward with conflicting expert evidence.”
(Hanson v. Grode (1999) 76 Cal.App.4th 601, 606.)
With respect to the breach of duty element, Dr. Batanides meets his initial burden by
proffering evidence from an expert witness, Dr. Richard Sweet, M.D. (“Dr. Sweet”), stating
that Dr. Batanides’ treatment/care of Aleatha on June 14-15, 2006, conformed to the applicable
standard of care for a physician specializing in obstetrics and gynecology (“OB-GYN”). (Dr.
Batanides’ Undisputed Material Fact [“UMF”] No. 21, citing Dr. Sweet decl. ¶ 8.) Notably,
Dr. Sweet opines that it was reasonable for Dr. Batanides not to transport Aleatha via
intrauterine transport from defendant Community Hospital of Los Gatos a.k.a. Los Gatos
Community Hospital (“LGCH”) to defendant Good Samaritan Hospital (“GSH”)—but rather
to administer drugs to Aleatha to promote fetal lung development and stop preterm labor—
because Aleatha was in active labor when she presented at LGCH on June 15, 2006. (Id.,
¶ 8(d)-(e).) “Active labor” is defined as “a labor at a time at which either of the following
would occur: [¶] (1) There is inadequate time to effect safe transfer to another hospital prior to
delivery. [¶] (2) A transfer may pose a threat to the health and safety of the patient or the
unborn child.” (Health & Saf. Code, § 1317.1, subd. (c).) Thus, Dr. Batanides’ evidence is
sufficient to demonstrate that he did not breach the standard of care when he treated Aleatha’s
preterm labor.
Plaintiff meets his burden to demonstrate the existence of a triable issue of material fact
by proffering a declaration from his expert witness, Dr. Ira L. Lott, M.D. (“Dr. Lott”). Dr. Lott
states his expert opinion that Dr. Batanides breached the standard of care while treating
Aleatha on June 14-15, 2006, by instructing Aleatha to present to LGCH and give preterm birth
at that facility despite knowing that it was not equipped to handle a high risk birth. (Dr. Lott
decl., ¶ 7.) It is Dr. Lott’s opinion that Dr. Batanides breached the standard of care by failing
to advise Aleatha to appear at GSH to give birth preterm and by subsequently failing to order
an intrauterine transport of Aleatha to GSH after she appeared at LGCH in non-active labor on
June 15, 2006, since Dr. Batanides knew that GSH had a High Risk Birth Tertiary Level III
NICU (“NICU Level III”) and a preterm birth such as Plaintiff would require treatment at a
NICU Level III. (Id., ¶ 8.) Therefore, Plaintiff has established that triable issues of material
fact exist as to whether Dr. Batanides breached the applicable duty of care.
Turning to causation, Dr. Batanides first relies on evidence from Dr. Sweet’s
declaration wherein Dr. Sweet opines that Dr. Batanides’ acts/omissions, as a matter of
medical probability, did not cause Plaintiff’s injuries because he did not cause Aleatha to go
into labor prematurely or cause Plaintiff to be born preterm, PVL sometimes occurs in the
absence of medical negligence, and the errors in Aleatha’s and Plaintiff’s medical charts
caused by Dr. Batanides were not a substantial factor in causing any injury to Plaintiff. (Dr.
Sweet decl., at ¶ 9.) However, Dr. Sweet does not indicate that Dr. Batanides’s acts/omissions
of keeping Aleatha at LGCH—rather than transfer her to GSH when she became stable
(between 5:30AM and 7:30AM) or advising her to go to GSH before she presented at LGCH
on June 15, 2006—were not a substantial factor in causing Plaintiff’s injury. Thus, Dr.
Sweet’s expert opinion is insufficient for Dr. Batanides to meet his initial burden to negate the
causation element or present evidence showing that Plaintiff does not possess and cannot
reasonably obtain necessary supporting evidence. (See Aguilar v. Atlantic Richfield Co. (2001)
25 Cal.4th 826, 854-855 [defendant moving for summary judgment must show evidence
negating an essential element or evidence that the plaintiff cannot obtain the necessary
evidence to establish a prima facie case].) Nevertheless, Dr. Batanides meets his initial burden
by proffering the expert opinion of Dr. Paul Fisher, M.D. (“Dr. Fisher”) that, as a matter of
medical probability, the cause of Plaintiff’s injury occurred before June 13, 2006, since the
injury did not occur in ultrasound images until June 27, 2006, and PVL typically appears in
imaging studies two weeks after injury. (Dr. Fisher decl., ¶ 6.) This evidence is sufficient to
negate the causation element because it suggests that Plaintiff’s injury occurred one or two
days before Dr. Batanides allegedly cared for Aleatha on June 14-15, 2006.
In opposition, Plaintiff meets his burden to show the existence of a triable issue of
material fact by proffering the declaration of his expert witnesses, Dr. Lott and Dr. James J.
Ingaglio, M.D. (“Dr. Ingaglio”). Dr. Lott expresses his expert opinion about Plaintiff’s cranial
imaging records, and disagrees with Dr. Fisher’s opinion that the cause of Plaintiff’s injury
occurred before June 13, 2006. (Dr. Lott decl., ¶ 4.) Dr. Lott believes that there is no rigid 14-
day rule applicable to the manifestation of PVL in ultrasound images, and therefore, there is no
clinical evidence supporting Dr. Fisher’s opinion. (Id.) This evidence is sufficient to raise a
triable issue of material fact as to whether Plaintiff’s injury could have been caused by an
injury sustained after June 13, 2006. In addition, Dr. Ingaglio declares his expert opinion that
Dr. Batanides’ acts/omissions resulted in Plaintiff being born at LGCH, rather than a hospital
with the requisite NICU Level III, and “as a matter of medical probability” Dr. Batanides’
conduct “was a substantial factor causing serious harm and injury to [Plaintiff].” (Dr. Inglagio
decl., ¶¶ 7-9.) This evidence is sufficient to raise a triable issue of material fact as to whether
Dr. Batanides’ acts or omissions caused Plaintiff’s injuries.
In light of the foregoing, Dr. Batanides has not demonstrated that he is entitled to
summary judgment as a matter of law. The motion for summary judgment is therefore
DENIED.
The Court will prepare the order.
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Case Name: Brashear v. City of San Jose, et al.
Case No.:
1-13-CV-255459
After full consideration of the evidence, the separate statements submitted by each party, and
the authorities submitted by each party, the court makes the following rulings:
This is a personal injury action. On February 9, 2013, plaintiff Steve Brashear
(“Plaintiff”) was riding his Trek 15 speed bicycle in the bike lane on N. Tenth Street in San
Jose. (See complaint, ¶ 7.) As he was riding, Plaintiff’s bike tires got caught in uneven asphalt
surrounding railroad tracks, owned and maintained by defendant Union Pacific Railroad
Company (“UPRR”). (See complaint, ¶ 8.) On October 31, 2013, Plaintiff filed a complaint,
asserting a claim for dangerous condition of public property against City of San Jose (“City”)
and a claim for dangerous condition of public property/easement against UPRR. Defendants
City and UPRR separately move for summary judgment.
Requests for judicial notice
Plaintiff’s request for judicial notice is GRANTED as to the existence of the answer.
(See Evid. Code § 452, subd. (d).) Plaintiff’s request of judicial notice is GRANTED as to the
fact that North 10th Street is a public roadway in the City of San Jose and Public Utilities
Commission General Order 72 B. (Evid. Code § 452, subds. (c), (g), (h).) Plaintiff’s request
for judicial notice is DENIED as to the “bikeways map” as posted on the internet in September
2005 as it is not a proper subject of judicial notice.
City’s request for judicial notice is GRANTED in its entirety. (See Evid. Code § 452,
subds. (c), (g), (h).)
UPRR’s motion for summary judgment
UPRR contends that it is entitled to judgment because it is immune from suit under the
recreational use immunity provided by Civil Code section 846. Section 846 states:
An owner of any estate or any other interest in real property,
whether possessory or nonpossessory, owes no duty of care to
keep the premises safe for entry or use by others for any
recreational purpose or to give any warning of hazardous
conditions, uses of, structures, or activities on such premises to
persons entering for such purpose, except as provided in this
section.
A "recreational purpose," as used in this section, includes such
activities as… riding, including… all other types of vehicular
riding….
An owner of any estate or any other interest in real property,
whether possessory or nonpossessory, who gives permission to
another for entry or use for the above purpose upon the premises
does not thereby (a) extend any assurance that the premises are
safe for such purpose, or (b) constitute the person to whom
permission has been granted the legal status of an invitee or
licensee to whom a duty of care is owed, or (c) assume
responsibility for or incur liability for any injury to person or
property caused by any act of such person to whom permission
has been granted except as provided in this section.
This section does not limit the liability which otherwise exists (a)
for willful or malicious failure to guard or warn against a
dangerous condition, use, structure or activity; or (b) for injury
suffered in any case where permission to enter for the above
purpose was granted for a consideration other than the
consideration, if any, paid to said landowner by the state, or
where consideration has been received from others for the same
purpose; or (c) to any persons who are expressly invited rather
than merely permitted to come upon the premises by the
landowner.
Nothing in this section creates a duty of care or ground of
liability for injury to person or property.
(Civ. Code § 846.)
It is undisputed that Plaintiff was riding his bike at the time of the accident, exploring a
new bike route with his partner. (See Pl.’s opposing separate statement of undisputed material
facts to UPRR, nos. (“UPRR UMF”) 1-3, 14.) It is also undisputed that Plaintiff asserts that
his injury was caused by the area adjacent to the railroad tracks—in between the first and
second set of railroad tracks—an area owned by UPRR. (UPRR UMFs15-17; see also
complaint, ¶ 7 (alleging that “the tires of his bicycle struck an area of uneven asphalt and
surrounding tracks owned and maintained by Union Pacific Railroad Company in the bike
lane… [t]he front wheel of his bike… got caught in the railroad track and/or it’s [sic] adjacent
channel in the road surface”).)
It is clear that bike riding is one of the enumerated activities to which recreational use
immunity applies, as stated by section 846. It is also clear that Plaintiff was riding his bike for
a recreational purpose. Finally, it is also clear that UPRR owns the real property that is the
subject of Plaintiff’s complaint. (See UPRR UMF 7 (stating that “[a]t the time of the incident,
the railroad track, or “right of way”, that crossed North Tenth Street was owned by Union
Pacific”).) Defendant UPRR meets its initial burden to demonstrate that there is a complete
defense to the cause of action. Accordingly, the burden shifts to Plaintiff to demonstrate a
triable issue of material fact. (See Code Civ. Proc. § 437c, subd. (p)(2).)
In opposition, Plaintiff argues that: section 846 applies solely to private landowners and
not public property; Defendant’s argument ignores Public Utilities Commission’s General
Order 72B; and, there is a triable issue of material fact as to whether UPRR willfully
disregarded the dangerous condition, rendering section 846 inapplicable.
As to Plaintiff’s first argument, Plaintiff relies largely on Nelsen v. City of Gridley
(1980) 113 Cal. App. 3d 87, arguing that “the legislative purpose of Civil Code § 846 is to
protect private property owners… [and t]he location of Mr. Brashear’s accident, irrespective of
whether it be described as a city street or the portion of a city street devoted to bicycle traffic, it
is not private property.” (Pl.’s opposition to UPRR’s motion for summary judgment
(“Opposition to UPRR”), p.7:23-27.)
However, Nelsen involved a public entity defendant landowner and the accident
occurred on that public entity’s land when the plaintiff motorcyclist struck a cable barrier
stretched across the road that was placed by city employees. In contrast, UPRR is not a public
entity. In Lostritto v. Southern Pac. Transportation Co. (1977) 73 Cal.App.3d 737, the Court
determined that section 846 applied to a railroad company, precluding the possibility of
negligence against it. (Id. at p.746.) Thus, Lostritto suggests that, in applying the recreational
use immunity, there is a distinction between a private railroad company and a public entity.
The Nelsen court itself stated that the intent of section 846’s immunity was “to encourage
private landowners to allow the general public to recreate free of charge on their property.”
Plaintiff asserts that “Lostritto is distinguishable because the railroad (Southern Pacific) owned
the railroad trestle from which plaintiff dove, as well as the streambed of the San Lorenzo
River, the river into which plaintiff dove… and sustained a quadriplegia injury… [h]ere, by
contra[s]t, U P owned nothing but its railroad tracks.” (Pl.’s opposition to UPRR’s motion for
summary judgment (“Opposition to UPRR”), p.3-11.) However, Plaintiff requests judicial
notice of Public Utilities Commission General Order 72 B, ¶ VII, which states that:
It shall normally be the responsibility of the each railroad
corporation to maintain the crossing area between lines two (2)
feet outside of the rails of each track. When two or more tracks
are involved, the railroad shall maintain the area between the
tracks where the distance between the center lines of tracks is
fifteen (15) feet or less measured at the center line of the road or
highway normal to the tracks.
(Pub. Utilities Commission General Order 72 B, ¶ VII.)
Moreover, Plaintiff’s proposed basis for liability on the dangerous condition of property relies
on his assertion that UPRR owns the area that purportedly caused his injury. Plaintiff asserts
that UPRR owned nothing but its railroad tracks; however, if UPRR did not own the subject
property, it could not be liable for a dangerous condition of property. The complaint even
alleges that “the tires of his bicycle struck an area of uneven asphalt and surrounding tracks
owned and maintained by Union Pacific Railroad Company in the bike lane.” (See Hejmadi v.
AMFAC, Inc. (1988) 202 Cal.App.3d 525, 536 (stating that “[o]n summary judgment motions,
the pleadings always define the issues”); see also Nieto v. Blue Shield of California Life &
Health Ins. Co. (2010) 181 Cal.App.4th 60, 74 (stating that “[i]t is well established that the
pleadings determine the scope of relevant issues on a summary judgment motion”).) Plaintiff
fails to provide any evidence to counter UPRR’s evidence that it owned the subject area.
Plaintiff’s attempt to distinguish the instant case from Lostritto fails.
Instead, the instant case is most akin to Hubbard v. Brown (1990) 50 Cal.3d 189, in
which the defendant, Brown, was the holder of a federal grazing permit in the El Dorado
National Forest. Brown erected a barbed wire fence and gate across a road in the National
Forest—publicly owned and already open to the public for recreational purposes. (Id. at
pp.191-192, 197.) The California Supreme Court determined that Brown, as the holder of a
permit to graze on federal lands in California, was immune from suit pursuant to section 846.
(Id. at p.197.)
Similarly, in Miller v. Weitzen (2005) 133 Cal.App.4th 732, the Weitzens were
homeowners who held an encroachment permit issued by the County that allowed them to
construct a driveway across an equestrian trail. (Id. at p.735.) The injured equestrian plaintiff
argued that the Weitzens were not protected by section 846 “because the portion of their
driveway at issue is on County-owned property already open to the public, and the Weitzens
cannot ‘exercise control’ over it ‘in terms of allowing persons to use the equestrian trail.’” (Id.
at p.737.) Citing Hubbard, the Miller court noted that “an improved right-of-way over a public
trail” was clearly subject to recreational use immunity as provided by section 846. (Id. at
pp.737-739.)
Here, the case authority states that section 846 clearly provides immunity for UPRR as
“an owner of any estate or any other interest in real property.” Plaintiff’s first argument lacks
merit.
As to Plaintiff’s second argument that UPRR is attempting to sidestep application of
Public Utility Commission’s General Order 72 B, there is no indication that the Public Utility
Commission’s General Order was intended to negate any immunity as against recreational
uses, or otherwise provide for liability by individuals. In fact, General Order 72 B merely
allows the Public Utility Commission to commence an action in superior court to seek relief by
mandamus or injunction to compel a railroad entity to comply with acts required by law. (See
Public Utilities Com. v. Super. Ct. (Millan) (2010) 181 Cal.App.4th 364, 368-369.) Plaintiff’s
argument is without basis and does not demonstrate the existence of a triable issue of material
fact.
Plaintiff’s final argument is that there is a triable issue of material fact as to whether
UPRR willfully disregarded the dangerous condition, thereby taking the matter outside of the
protection of recreational use immunity. However, as a matter of law, Plaintiff’s provided
evidence—taken in a light most favorable to Plaintiff—does not demonstrate UPRR’s willful
disregard of a dangerous condition. (See New v. Consolidated Rock Products Co. (1985) 171
Cal.App.3d 681, 689.) Plaintiff presents a draft of an unsigned November 30, 2012 letter on
letterhead of Silicon Valley Leadership Group, but there is no indication that the draft was
received by UPRR and Plaintiff does not provide any evidence so demonstrating. Plaintiff fails
to meet his initial burden to demonstrate a triable issue of material fact as to UPRR’s willful
disregard of a dangerous condition.
Accordingly, UPRR’s motion for summary judgment is GRANTED.
City’s motion for summary judgment
Defendant City moves for summary judgment on the ground that it does not own or
control the subject area. As previously noted, the complaint alleges and Public Utilities
Commission General Order 72 B states that the subject area is subject to UPRR’s control and
ownership. (See complaint, ¶ 7 (alleging that “the tires of his bicycle struck an area of uneven
asphalt and surrounding railroad tracks owned and maintained by Union Pacific Railroad
Company in the bike lane, approximately 750-800 feet north of Hedding Street”); see also
Hejmadi v. AMFAC, Inc. (1988) 202 Cal.App.3d 525, 536 (stating that “[o]n summary
judgment motions, the pleadings always define the issues”); see also Nieto v. Blue Shield of
California Life & Health Ins. Co. (2010) 181 Cal.App.4th 60, 74 (stating that “[i]t is well
established that the pleadings determine the scope of relevant issues on a summary judgment
motion”).) Moreover, City provides evidence showing UPRR’s acquisition of the right of way.
(See City’s separate statement of undisputed material facts, no. 3.) Defendant City meets its
initial burden to demonstrate that the claim for dangerous condition of public property lacks
merit against it. (City UMFs 1-4.)
In opposition, Plaintiff asserts that City created a bikeway across North Tenth Street
without consulting UPRR and that “a reasonable inference exists that the City exercised some
control over the tracks.” (See Pl.’s opposition to City’s motion for summary judgment (“City
Opposition”), pp.3:15-28, 4:1-4.) However, the evidence to which Plaintiff points, a portion of
deposition testimony by John Brazil, does not support Plaintiff’s assertion. (See Pl.’s response
to City’s separate statement of undisputed material facts in support of motion for summary
judgment, no. 3, citing to Public Utilities Commission’s General Order 72B and Feeney decl.,
exh. B (“Brazil depo”), p.50:1-16.) Rather, the cited portion of deposition testimony discusses
whether Mr. Brazil contacted UPRR regarding complaints from bicyclists—not whether City
created a bikeway across North Tenth Street without consulting UPRR. This lone piece of
evidence fails to demonstrate the existence of a triable issue of material fact. Accordingly,
City’s motion for summary judgment is GRANTED.
In reply, City requests judicial notice of Union Pacific’s UF6. The request for judicial
notice is DENIED.
Plaintiff also objects to evidence presented by City in reply. The Court did not consider
this evidence. Plaintiff’s objection to evidence offered for the first time in reply is
SUSTAINED.
The Court will prepare the order. After service of notice of entry of this order signed
by the Court, the defendants shall prepare judgments consistent with this order.
The trial setting conference scheduled for 11:00 a.m. on December 16, 2014 is off
calendar. The Court sets a case review hearing regarding the status of entry of judgment on
February 19, 2015 at 10:00 a.m.
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Case Name: John Berman v. Catherine Martina, et al.
Case No:
1-13-CV-245868
The hearing on the motion by Plaintiff John Berman (“Plaintiff”) to “reclassify” this
consolidated action (case no. 1-13-CV-245868, “Case No. 1”) from limited to unlimited
jurisdiction was continued from November 20, 2014 by the Court to allow Plaintiff the
opportunity to respond to the Court’s indication that it intended to reclassify this case to limited
jurisdiction on its own motion. The Court ordered that any supplemental pleadings by Plaintiff
should be filed by December 1, and any further reply pleadings by Defendants should be filed
no later than December 8. On December 1, 2014, Plaintiff filed a “Memorandum of Points and
Authorities in Support of Plaintiff’s Further Opposition to the Court’s Reclassification Motion
and Order,” and Defendants Catherine Martina and Michael Hayden (“Defendants”) filed their
Memorandum of Points and Authorities in Support of the Court’s Order on Classification.
For the reasons stated, the Court DENIES Plaintiff’s motion to reclassify the case from
limited to unlimited jurisdiction, and ISSUES AN ORDER ON ITS OWN MOTION to
reclassify the entire case from unlimited to limited civil.
History of the Consolidated Cases:
Plaintiff filed Case No. 1 on May 6, 2013 as a limited civil case, seeking damages for
(1) breach of contract; (2) fraud; and (3) constructive fraud, arising out of monies allegedly
wrongly deducted from a security deposit on premises he leased from Defendants. The FAC
filed on July 2, 2013 sought to recover $2,555.75 in actual damages, plus statutory damages,
punitive damages, and attorney’s fees and costs. On August 30, 2013, the Court (Honorable
Mark Pierce) issued its order sustaining demurrer to the second and third causes of action
without leave to amend, leaving only the first cause of action for breach of contract intact. On
August 30, 2013, Defendants filed a cross-complaint seeking damages of just over $16,000,
alleging a breach of the lease by Plaintiff. On September 3, 2013, Plaintiff filed a dismissal of
the complaint, in order to preserve his right to appeal as to the demurred causes of action,
citing the case of Ashland v. Chemical Co. v. Provence (1982) 129 Cal.App.3d 790.
Case No. 1 was filed as and has remained a case of limited civil jurisdiction. The
Cross-complaint filed by the Defendants/Cross-complainants does not seek damages that
exceed the jurisdictional limit of $25,000.
Case No. 2 was filed on October 3, 2013, and amended on December 3, 2013, alleging
claims against defendants Catherine Martina (“Ms. Martina”) and Michael Hayden
(collectively “Defendants”) arising out of the same lease and security deposit, and essentially
the same claims, as were alleged in Case No. 1. On May 30, 2014, Plaintiff applied for and
was granted leave to file a Second Amended Complaint (“SAC in Case No. 2”). The SAC in
Case No. 2 asserted causes of action for: breach of contract; fraud; constructive fraud; breach
of the implied covenant of good faith and fair dealing; and, willful and malicious misconduct.
On September 11, 2014, the Court heard the demurrer to the SAC in Case No. 2. The
Court sustained demurrer without leave to amend to the second, third and fifth causes of action
(for fraud; constructive fraud; and, willful and malicious misconduct), and overruled the
demurrer to the first (breach of contract) and fourth (breach of implied covenant) causes of
action.
To summarize the remaining claims at issue in this consolidated action: in Case No. 1,
only the Cross-complaint seeking damages of $16,000 remains, as the Complaint was
dismissed by the Plaintiff after demurrer was sustained to the fraud and constructive claims
without leave to amend; in Case No. 2, after demurrer was sustained without leave to amend to
causes of action in the SAC for fraud, constructive fraud, and “willful and malicious
misconduct,” Plaintiff’s claims for breach of contract and breach of the implied covenant of
good faith and fair dealing remain in the case.
On September 11, 2014, the Court also granted Plaintiff’s motion to consolidate the two
actions, leading to Plaintiff’s current motion to reclassify the entire case to unlimited civil
jurisdiction. By virtue of the consolidation, the cases now stand in essentially the same
procedural posture as if Plaintiff had never dismissed the FAC in Case No. 1, except that
Plaintiff now has an additional claim for breach of the covenant of good faith and fair dealing,
a claim not originally alleged in Case No. 1.
Plaintiff’ Motion to Reclassify to Unlimited Civil Jurisdiction:
Plaintiff had originally claimed that the Court “sua sponte” reclassified the case when,
at Plaintiff’s request, the Court ordered Case No. 1 consolidated with a second case filed by
Plaintiff (Case No. 1-13-CV-254103, “Case No. 2”), and designated Case No. 1 as the lead
case. Plaintiff is mistaken. The Court made no such order to reclassify Case No. 2 (originally
filed as an unlimited civil case). All that the Court ordered was consolidation.
Until this motion, neither party has requested reclassification. Case No. 1 has always
been a case filed under and subject to limited civil jurisdiction. Plaintiff designated Case No. 2
as unlimited civil jurisdiction when he filed the case. Plaintiff has not provided any legal
authority that establishes that his assumption that the designation of the limited civil case, Case
No. 1, as the lead case when his motion to consolidate was granted, thereby automatically
reclassifies the consolidated Case No. 2 to limited civil.
The Court first notes that Plaintiff spends a great deal of time apparently rearguing the
Court’s ruling on a number of prior matters, such as the propriety of the demurrer, or that he
does not understand why a default was not entered for one of the defendants, etc. The Court
will not allow argument on any issues that are extraneous to the present motion to reclassify.
Plaintiff is mistaken in his claim that the Court does not have authority to reclassify a
case “sua sponte.” In fact, Code of Civil Procedure section 403.040(1) provides that “[t]he
court, on its own motion, may reclassify a case at any time.” (Emphasis added.)
The Court must find that the verdict in this case will necessarily fall below $25,000 and
that level of damages is virtually unobtainable before the Court will reclassify a case to limited
jurisdiction. In considering the amount in controversy, the Court looks to the prayer or the
amount of the demand or recovery sought, not including attorney fees, costs or interest. See
CCP sec. 85(a). A party is entitled to a reclassification to unlimited civil if he “demonstrates”
a possibility that the damages will exceed $25,000. See Ytuarte v. Superior Court (2005) 129
Cal.App.4th 266, 274. However, despite the additional opportunity and time given by the
Court, Plaintiff has provided no evidence to support his argument that it is “possible” that he
may recover more than $25,000. Accordingly, the Court will turn to the pleadings to analyze
the scope of “possible” recovery in this action.
In Case No. 1, the Cross-complaint seeks damages of $16,000, below the limited civil
jurisdictional limits. Case No. 1 is properly subject to limited civil jurisdiction. In Case No. 2,
Plaintiff has alleged causes of action for breach of contract and breach of the covenant of good
faith and fair dealing. Plaintiff seeks recovery of the portion of the unpaid security deposit in
the approximate amount of $2500. Plaintiff has also asked for statutory penalties, and punitive
damages. Under Civil Code Section 1950(l), Plaintiff could recover up to twice the amount of
the security deposit if he proves that the deposit was retained in bad faith or in violation of
section 1950. As the original security deposit was $4000, and his out of pocket loss was
approximately $2500, Plaintiff’s maximum recoverable contract and statutory damages as
pleaded in the SAC is about $10,500 (twice the $4000 security deposit plus the $2500).
Plaintiff argues that because he has alleged punitive damages, the possibility of punitive
damages brings his potential damages above $25,000. However, law is clear that Plaintiff
cannot recover punitive damages for either of the contract based causes of action remaining in
the case. Except in cases involving bad faith breach of insurance contracts, damages in a case
alleging breach of contract or breach of the covenant of good faith and fair dealing is limited to
contract damages, and punitive damages are not available. Spinks v. Equity Residential
Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1054-1055.
Accordingly, Plaintiff’s maximum recovery as alleged in this Complaint would be
approximately $10,500, and the Court finds that a verdict in this case will necessarily fall
below $25,000 and that a level of damages above $25,000 is virtually unobtainable. The
Court has considered the authorities cited by Plaintiff, and none of the cases cited alter the
Court’s original analysis as reflected in the November 19 tentative ruling posted by the Court,
to reclassify the case on the Court’s own motion.
Plaintiff’s motion to reclassify the case to unlimited civil jurisdiction is DENIED, and
on the Court’s own motion, the case is classified as a limited civil case.
Motion to Stay Pending Appeal
Plaintiff’s motion to stay the case pending appeal is DENIED. The Court is not aware
of any order issued in this case that is a final or appealable order, and in fact, an order to
reclassify a case as limited civil is not appealable. See Garau v. Torrance Unified Sch. Dist.
(2006) 137 Cal.App.4th 1902, 198-199.
The Court will prepare the order.
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