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civil tentative rulings


The court does not issue tentative rulings on Writs of Attachment, Writs of Possession, Claims of Exemption, Claims of Right to Possession, Motions to Tax Costs After Trial, Motions for New Trial, or Motions to Continue Trial.


Under California Rules of Court, rule 3.1308 and Local Rule 701, any party opposed to the tentative ruling must notify the court, and other parties, by 4:00 p.m. on the court day before the hearing of their intention to appear for oral argument. The court's notice must be made by facsimile to 559-733-6774.


Timestamp: 05/25/2016 at 7:40pm



Tentative Rulings for Thursday, May 26, 2016 are:

Re:                   Amezcua, et al. v. Orisio, et al.

Case No.:        VCU 262847

Date:               May 26, 2016

Time:               8:30 A.M. 

Dept.                2– The Honorable David Mathias

Motion:            Defendant Cruz Orisio’s Motion to File Compulsory Cross-Complaint After Answer is Filed

Tentative Ruling:  To grant defendant Cruz Orisio’s motion to file compulsory cross-complaint after answer is filed

The Court’s file indicates that timely and proper notice was given to plaintiffs Jose Amezcua, Erik Ramirez, and Adan Vasquez, and defendants Cruz Osorio and Mt. View Farming, Inc. at the offices of their respective counsel at the address specified for plaintiffs’ counsel in their complaint and at the address specified for defendants’ counsel in the answer to the plaintiff’s complaint.

This is a personal injury action that arose when a tractor owned by defendant Cruz Orisio’s employer and being operated by Mr. Orisio was rear ended by an automobile operated by plaintiff Jose Amezcua. Plaintiffs Erik Ramirez and Adan Vasquez were passengers in the Amezcua car at the time of the collision.

Mr. Orisio retained his current counsel to represent him in a workers’ compensation claim and a third party claim against Mr. Amezcua for injuries that Mr. Orisio sustained due to this traffic accident.  In August of 2015, Mr. Orisio’s counsel notified the workers’ compensation carrier of his job-related claim for damages.

In October of 2015, Messrs. Amezcua, Ramirez, and Vasquez filed a complaint that named Mr. Orisio and his employer Mountain View Farming, Inc. as defendants based on the position that Mr. Orisio was responsible for the accident and was in the course and scope of his employment with Mt. View at the time of the accident.  Different counsel was subsequently retained to defend Mr. Orisio and Mt. View as to the Amezcua complaint.

Mr. Orisio brings this motion for leave to file a compulsory cross-complaint against Mr. Amezcua for apportionment of fault and motor vehicle negligence on the grounds that he was unaware of either the Amezcua complaint, that independent counsel had been retained to defend Mr. Orisio in the Amezcua action, until this independent counsel had already filed an answer to the Amezcua complaint without a concurring cross-complaint.

CCP §426.50 states that any party who fails to plead a cause of action in a cross complaint when it serves its answer to the complaint, “whether through oversight, inadvertence, mistake, neglect, or other cause, may apply to the court for leave . . . to file a cross-complaint, to assert such cause at any time during the course of the action.   Section 426.50 adds that “The court, after notice to the adverse party, shall grant, upon such terms as may be just to the parties, leave to . . . file the cross-complaint, to assert such cause if the  party who failed to plead the cause acted in good faith.” (italics added)

Where the defendant’s cause of action is related to the subject matter of the complaint, then it must be raised by cross-complaint, and the failure to do so will bar the defendant from asserting it in any subsequent lawsuit.  See AL Holding Co. v. O’Brien & Hicks, Inc. (1999) 75 Cal.App.4th 1310, 1313-1314.  “Related” in the context of a cross-complaint means that it “arises out of the same transaction, occurrence, or series of transactions or occurrences as the causes of action in the (plaintiff’s) complaint,”  where the factual or legal issues are logically related to the extent that judicial economy warrants that the plaintiff’s complaint and the cross-complaint be litigated concurrently to avoid the duplication of time and effort.  See Currie Medical Specialties v. Bowen (1982) 136 Cal.App.3d 774, 747; Align Tech, Inc. v. Bao Tran (2009) 179 Cal. App.4th 949, 965.

Further, a compulsory cross-complaint requires that the related cause of action must have existed when the defendant served its answer to the complaint.  See AL Holding, at 1313-1314; Align Tech, at 970, Chao Fu, Inc. v. Chen (2012) 206 Cal.App.48, 56-57 (“the first requirement of section 426.30 is that the party has the claim at the time she files her answer.”)

Moreover, the Court retains discretion at any time during the course of the action to permit the defendant to file or amend a cross-complaint to avoid forfeiture of the defendant’s “related” claim.  The Court “shall grant” leave as long as the defendant is acting in good faith”  See CCP §426.50; Silver Organizations Ltd. v. Frank (1990) 217 Cal.App.3d 94, 98-99.

In this present case, the Court finds that the causes of action set forth in Mr. Orisio’s complaint arise out of the same collision between the tractor and the Amezcua vehicle that resulted in both his workers’ compensation claim and his third party action.  Nor does the Court find any evidence of bad faith by Mr. Orisio, given that it is logical to presume that had Mr. Amezcua sought to recover damages based on the presumed negligence of Mr. Orisio that he would simply filed a cross-complaint in the Orisio action rather than in a separate action.

The Court is persuaded that Mr. Orisio has acted in good faith as to this matter to the extent that he should be permitted to file his compulsory cross-complaint in the Amezcua action because (1) his workers’ compensation and third-party action counsel were unaware that Mr. Amezcua had filed a separate lawsuit against Mr. Orisio based on exactly the same facts as Mr. Orisio’s workers compensation claim and his third-party action; (2) that Mr. Orisio was represented by defense counsel to defend him in the Amezcua action; and (3) that an answer was filed on behalf of defendants by Mr. Orisio’s defense counsel.

The Court further finds that the cross-complaint that Mr. Orisio seeks leave to file to seek personal injury damages against defendant Amezcua would be timely filed within the two-year limitation period to bring this personal injury cross-complaint that arises out of an accident that occurred on May 31, 2015.   Nor will granting leave to Mr. Orisio cause substantial prejudice to defendant Amezcua given that he was aware of Mr. Orisio’s claim against him when his claim for damages was presented to Mr. Amezcua in August of 2015, two months before Mr. Amezcua filed his complaint.

Based on the foregoing, the Court finds good cause to permit defendant Cruz Orisio to file a cross complaint in this action, and accordingly grants Mr. Orisio’s motion that seeks leave to do so.  Mr. Orisio shall file his cross-complaint with the Court within ten days from the date of service of the notice of this ruling.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

 

Re:                   Oliver v. Pacific Real Estate Holdings, et al.

Case No.:         VCU 217841

Date:                May 26, 2016

Time:               8:30 A.M. 

Dept.                2– The Honorable David Mathias

Motions:           (1) Motion by Defendant Rune Kraft Related to Funds Remaining on Deposit with Court and Application for Release of Deposited Funds; (2)Motion by Plaintiff Alroy J. Oliver for an Order Applying Monies Held by Court to the Satisfaction of a Money Judgment Pursuant to CCP 709.020

Tentative Rulings:  (1) The Motion by Defendant Rune Kraft Related to Funds Remaining on Deposit with Court and Application for Release of Deposited Funds is off calendar having been withdrawn by moving party Rune Kraft; (2) To Deny, without prejudice, the Motion by Plaintiff Alroy J. Oliver for an Order Applying Monies Held by Court to the Satisfaction of a Money Judgment Pursuant to CCP 709.020.

Mr. Kraft is limited in his appearances to those matters affecting him individually.  Mr. Kraft is not an attorney and is, therefore, not permitted to appear on behalf of Pacific Real Estate Holdings, Inc., a corporation.

(2) The motion of Alroy J. Oliver:

Movant provides no authority for his argument that a judgment lien filed in this case on November 19 2008 relating to a judgment against Rune Kraft individually precludes Mr. Kraft from rescinding his assignment from Pacific Real Estate Holdings, Inc. to an interest in funds on deposit with the court.  Mr. Kraft has submitted documentation sufficient to establish the assignment has been rescinded.  As a result, the funds on deposit with the court are again those of Pacific Real Estate Holdings, Inc. and not distributable to Rune Kraft.

Claims against judgment debtors in this case (VCU217841) appear to have been satisfied in full, resulting in the surplus funds on deposit with the court.

Movant has a separate judgment entered in 2008 in case no. VCU209730.  The judgment is against Mr. Kraft and other defendants.  The judgment debtors do not including Pacific Real Estate Holdings, Inc.  The judgment remains unsatisfied.

Movant filed a judgment lien in case no. VCU217841 on November 19, 2008.  Movant has not submitted authority to establish how a judgment which does not include Pacific Real Estate Holdings, Inc. as a judgment debtor can act as a lien against property of Pacific Real Estate Holdings, Inc.  It does not appear that any of the funds on deposit with the court are distributable to any of the defendant’s named in movant’s 2008 judgment (case no. 209730).

Movant provides no evidence or authority to support his contention that Pacific Real Estate Holdings, Inc. is subject to alter ego liability for Movant’s judgment in case no. VCU209730.  The Amended Judgment dated November 3, 2008 signed by Judge Hicks in this case (no. VCU217841) does not on its face contain any reference to alter ego liability.

Movant may be able to assert an interest in a portion of the deposited funds with additional evidence and authority.  Pacific Real Estate Holdings, Inc. also appears to have an interest in the deposited funds.  No application has been filed by Pacific Real Estate Holdings, Inc. for distribution of the funds.  Accordingly the court sets a status conference for July 21, 2014 at 8:30 a.m. in Department 2 on its Notice of Funds Remaining on Deposit with Court (issued November 19, 2014) to permit the filing of any additional claims to the funds.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

 

Re:                  Mitchell Brown General Engineering, Inc. v. The Artesia Companies, Inc., et al.

Case No.:        VCU264831

Date:               May 26, 2016

Time:               8:30 A.M. 

Dept.               2– The Honorable David Mathias

Motions:          Plaintiff’s Application for Right to Attach Orders

Tentative Ruling:  To Deny Plaintiff’s Application for Right to Attach Orders

Service of Plaintiff's Application for Right to Attach Orders does not appear to have been proper.  Proof of service in the file is not sufficient to establish the signatory to the return receipt was authorized to accept service on behalf of Rune Kraft as required under CCP 415.40.


This concludes the civil tentative rulings



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