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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: 07/27/2017 at 7:54am



The Tentative Rulings for Thursday, July 27, 2017 are

Re:           Tulare Regional Medical Center Medical Staff v. Tulare Local Healthcare District

Case No.: VCU 264227

Date:        July 27, 2017

Time:        8:30 A.M. 

Dept.        2 - The Honorable David Mathias

Motion:   Motion by Benjamin J. Fenton to be Relieved as Counsel

Tentative Ruling:  To Deny the motion without prejudice.

Proof of service in the file indicates notice of the motion was adequate.   The supporting declaration does not indicate why a motion was necessary rather than a consent under CCP 284(1).

This attempt to obtain a signed substitution of attorney as per CCP 284(1), and the indication in the moving attorney’s declaration that the client refused to so stipulate is a required prerequisite under California Rule of court 3.1362(c) before the court can contemplate the granting of an attorney’s motion to be relieved as the attorney of record for a party.  The submitted declaration is silent as to whether any attempt was undertaken to obtain a substitution of attorney and whether the client refused to do so.  Due to the omission of the stated information, attorney Fenton’s moving papers do not comply with California Rule of Court 3.1362(c). 

Even if a substitution of attorney was obtained, Mr. Fenton would likely still be obligated to justify his departure from the case at this stage of the litigation.  The declaration is likewise insufficient as to how the client’s rights will be protected if the attorney is allowed to withdrawal.

Further, Movant asserts the motion is based on facts which are required to be kept confidential. This assertion prevents the Court from issuing a further tentative ruling on the merits of the motion. If the matter is resubmitted to the Court, counsel should be prepared to submit for in camera review the facts and circumstances which necessitate the motion. 

Based on the above, the Motion by Benjamin J. Fenton to be Relieved as counsel is denied without prejudice.  The parties are ordered to meaningfully meet and confer and attempt to reach an amicable resolution to the issue presented.

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:           State Farm Mutual Automobile Insurance Company v. Dehaas

Case No.: VCL168763

Date:        July 27, 2017

Time:        8:30 A.M. 

Dept.        2 - The Honorable David Mathias

Motion:   Plaintiff’s Motion to Enforce Settlement

Tentative Ruling:  To Grant Plaintiff’s Motion to Enforce Settlement and to Order Plaintiff is entitled to recover from Defendant Gabriella Dehaas the sum of $12,331.59 plus accrued interest of $1,135.16 plus costs of $1,018.20, plus attorneys’ fees of $1,983.15 less payment credits totaling $120.00 for a total judgment of $16,348.10.

Proof of service in the file indicates notice of the motion was adequate.  No response to the motion has been filed as of July 17, 2017.
Plaintiff caused a Stipulation for Settlement to be filed with the court on May 6, 2016.  The Settlement was executed by Defendant Gabriella Dehaas.  Under the settlement, Defendant agreed to settle this action for $9,865.27 and agreed to make payments to Plaintiff.  The court entered an order approving the settlement and retained jurisdiction to enforce its terms.

Plaintiff’s moving papers are sufficient to establish Defendant Gabriella Dehaas has defaulted in her obligation to make payments under the settlement.  Plaintiff provided notice of the default to Defendant as required under the settlement.  Pursuant to the terms of the settlement, in the event of a payment default, Plaintiff is entitled to recover attorneys’ fees and costs.

As a result of the payment default, Plaintiff is entitled to recover judgment against Defendant Gabriella Dehaas.

If no one requests oral argument, the court is prepared to sign the form of order and the form of judgment lodged by Plaintiff.

Re:            Taft v. Bhajal

Case No.:  VCU 268870

Date:         July 27, 2017

Time:         8:30 A.M. 

Dept.          2 - The Honorable David Mathias

Motion:     Demurrer by Defendant Boston Scientific Corporation to Amended Complaint

Tentative Ruling:  To Sustain the Demurrer by Defendant Boston Scientific Corporation to Amended Complaint as to all causes of action.  The demurrer is granted without leave to amend as to Plaintiff’s Fourth Cause of action for Medical Malpractice.  Leave to amend is granted as to all other causes of action.  Any amended complaint shall be filed by August 3, 2017.

"For purposes of assessing the sufficiency of the demurrer, we assume the truth of all well-pleaded facts. (Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) We also accept as true all facts that may be implied or inferred from those alleged.  (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal. App. 4th 1397, 1403.)  In addition, relevant matters that are properly the subject of judicial notice may be treated as having been pled. (Friedland v. City of Long Beach (1998) 62 Cal. App. 4th 835, 842; Code Civ. Proc., § 430.30, subd. (a).)”  (Thaler v. Household Finance Corp. (2000) 80 Cal.App.4th 1093.)

To support a cause of action, a plaintiff must “allege in the complaint the essential facts with such particularity and definiteness as to inform the defendant of the relationship of the parties and the nature of the cause which would create his liability.”  (Miller v. Pacific Constructors, Inc. (1945) 68 Cal.App.2d 529, 539.)

A pleading must "set forth the essential facts of the case with reasonable precision and with sufficient particularity to acquaint the defendant with the nature, source and extent of [the] cause of action." (Harman v. City and County of San Francisco (1972) 7 Cal.3d 150, 157.)

Defendant demurs to all six of Plaintiff’s causes of action on the grounds the Amended Complaint fails to state facts sufficient to constitute a cause of action and that the Amended Complaint is uncertain, ambiguous, and unintelligible.

As to the demurring Defendant, Plaintiff alleges his father died on March 15, 2016.  Prior to his death, a cardiac defibrillator manufactured by Defendant was implanted in Plaintiff’s father.  The defibrillator failed to show the events leading to the death of Plaintiff’s father because the device failed to record or was overwritten by new information due to limited storage capacity.  Plaintiff alleges requests for defibrillator information were made to the physician Defendants and to the demurring Defendant.  Some information was provided, but not an “egram” for March 14, 2016.  Plaintiff alleges information from the device was provided for periods prior to and after March 14th.  Plaintiff further asserts the physician Defendants and the demurring Defendant have refused, despite demand to provide sufficient explanation as to why there is no “egram” for March 14th.

To the extent Plaintiff asserts the implant was functioning properly and complains about an inadequate design, his claims appear preempted by the Medical Device Amendments to the federal Food, Drug and Cosmetics Act, 21 USC 360k; Riegel v. Medtronic, Inc. (2008) 552 U.S. 312.  Plaintiff’s assertion in his opposition to the demurrer that preemption should not apply is not supported by adequate authority or by sufficient factual allegations.
Any allegation that the device might have malfunctioned is limited to the assertion that it did not record an “egram” for March 14th.  There are no facts to establish how lack of such a recording might have contributed to the death of Plaintiff’s father rendering any claim for wrongful death inadequate (Plaintiff’s Sixth Cause of Action).

There are no facts asserting the device malfunctioned in some other manner.  Plaintiff’s product liability claim (Fifth Cause of Action) is also supported by insufficient facts to state a claim against the demurring Defendant.

The allegations of the Complaint are not sufficient to show the demurring Defendant as a medical device manufacturer has a duty to Plaintiff or to the decedent to provide medical records under Health and Safety Code 123110.  Plaintiff has not shown that an “egram” from an implanted defibrillator device which may be missing from March 14, 2016 is a medical record or that demurring Defendant has any such record in its possession or control. 

Plaintiff’s claims for failure to provide medical records (First Cause of Action), intentional infliction of emotional distress (Second Cause of Action) and negligent infliction of emotional distress (Third Cause of Action) are not supported by facts sufficient to state these claims.

Plaintiff does not dispute that demurring Defendant is not a medical provider but a medical device manufacturer.  Accordingly Plaintiff cannot state a claim for medical malpractice (Fourth Cause of Action) against demurring Defendant.

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:           Bryant v. Tulare County

Case No.: VCU 269281

Date:        July 27, 2017

Time:        8:30 A.M. 

Dept.        2 - The Honorable David Mathias

Motions: (1) Plaintiff’s Motion to Vacate Order to Sustain Demurrer; (2) Motion by Defendant County of Tulare to Quash Subpoena; and (3) Motion by non-party Tulare County Grand Jury to Quash Subpoena.

Tentative Rulings:  (1) To Deny Plaintiff’s Motion to Vacate Order to Sustain Demurrer; (2) To Grant the Motion by Defendant County of Tulare to Quash Subpoena and to Order the Civil Subpoena directed to County of Tulare and issued on July 10, 2017 is quashed and recalled; (3) To Grant the Motion by non-party Tulare County Grand Jury to Quash Subpoena and to Order the Civil Subpoena directed to Tulare County Grand Jury and issued on July 10, 2017 is quashed and recalled.

On the court’s own motion, the civil subpoenas issued at Plaintiff’s request on July 10, 2017 and directed to Visalia Police Sergeant Brent Miller, Carolyn Freundas (sic?), Cliff Beckett (sic?) Tulare County Sheriff’s Dept., Justin Ellistad, and Clyde Slusson (sic?) are quashed and recalled.

It is further Ordered, Plaintiff shall not request issuance of further subpoenas in this action without obtaining prior approval from the court.

(1)

Plaintiff asks the court to revisit its order sustaining without leave to amend Defendant’s demurrer to Plaintiff’s Complaint.  This comes after Plaintiff’s Motion for Reconsideration was denied by the court on June 15, 2017.

Plaintiff asserts she was not timely served with the demurrer and thus her papers filed on May 24, 2017 (the day before the demurrer hearing) and on May 25, 2017 (the same day as the demurrer hearing) should have been considered by the court.  Plaintiff also argues these documents support her contention that the demurrer should have been overruled.

Filing and service of motion papers is governed by CCP 1005.  Plaintiff’s reference to other statutes is misplaced.  There is no requirement that copies of moving papers served on an opposing party must contain a “Filed” stamped.  CCP 1005(b) states in part: “The moving and supporting papers served shall be a copy of the papers filed or to be filed with the court.”  Plaintiff raises no contention that the copies she received differ in any way from the documents Defendant filed with the court.

Defendant made two telephone attempts to speak with Plaintiff concerning deficiencies in Plaintiff’s complaint, on April 18 (voice message) and April 19, 2017 (spoke with “Amy”).  Apparently in response to the telephone contacts, Plaintiff filed a document titled “Cause of Action” with the court on April 20, 2017.  The demurrer was filed on April 28, 2017 and noticed for hearing on May 25, 2017.  On April 28, 2017, Defendant mailed the demurrer to Plaintiff at the address utilized by Plaintiff in this action.   The moving papers were returned by the post office on May 15, 2017.  After unsuccessfully searching for alternative addresses and attempting to again reach Plaintiff by telephone and fax, Defendant was able to personally serve Plaintiff with a copy of the demurrer on May 18, 2017.

Plaintiff at no time, either at the hearing on demurrer, at the hearing on her motion for reconsideration, or in the current motion, asserts Defendant was utilizing an incorrect mailing address or that Plaintiff had notified the court or other parties of a new mailing address.

Plaintiff filed documents in response to the demurrer on May 24, 2017, the day before the hearing and on May 25, 2017, the day of the hearing.  At no time prior to the hearing on demurrer did Plaintiff contact Defendant or the court for the purpose of obtaining additional time to respond to the demurrer.  

The court issued a tentative ruling to sustain the demurrer based on Plaintiff’s Complaint and the “Cause of Action” filed on April 20, 2017.  Plaintiff did not request oral argument on the tentative ruling, but appeared in court on May 25, 2017 at the time the demurrer was called for hearing.  The court permitted Plaintiff to speak at the hearing and after hearing her arguments and the argument made by Defendant, the court adopted its tentative ruling as the ruling of the court.

Plaintiff subsequently filed her motion for reconsideration and set it for hearing on June 15, 2017.  Defendant filed timely opposition to the motion.  The court issued a tentative ruling to deny the motion.  Plaintiff’s request for oral argument was found to be untimely having been made more than an hour after the deadline for submitting such requests under local court rule.  The court declined to hear oral argument and adopted its tentative ruling based on the submitted documents.

Plaintiff’s current motion followed.  Plaintiff offers insufficient authority or facts to support a claim for relief.  As noted in the court’s ruling on the motion for reconsideration, the documents Plaintiff seeks to submit (documents filed on May 24, 2017 and May 25, 2017) do not support any relief.  The purported amended complaint filed on May 24, 2017 is a restatement of documents filed on April 20, 2017 which were considered by the court in its ruling on the demurrer. 

The documents filed May 25, 2017 are exhibits containing no explanation, authority or factual support for their consideration.   Plaintiff, in opposition to the demurrer, in her motion for reconsideration and now in her current motion, does not provide any new law or different facts which would support any claim for relief against Defendant County of Tulare.

(2)

Plaintiff obtained and served a civil subpoena on Defendant Tulare County.  The subpoena is deficient in that it fails to provide the declaration required under CCP 1985(b) to establish good cause for issuance of the subpoena.  Additionally, the court has previously sustained Defendant’s demurrer to Plaintiff’s operative pleading in this action.  Under the present circumstances, there is no proper purpose for a subpoena directed to Defendant.

Defendant’s motion to quash the subpoena is granted for cause shown.

(3)
Plaintiff obtained and attempted to serve a civil subpoena on non-party Tulare County Grand Jury.  The subpoena is deficient in that the information provided fails to establish good cause for issuance of the subpoena as required under CCP 1985(b).  Additionally, Plaintiff has not shown how the information sought (which is inadequately described in the subpoena) is discoverable in light of the confidentiality of grand jury proceedings.  (Goldstein v. Superior Court (2008) 45 Cal.4th 218.)

The court has previously sustained Defendant County of Tulare’s demurrer to Plaintiff’s operative pleading in this action.  Under the present circumstances, there is no proper purpose for a subpoena directed to the Tulare County Grand Jury.  The motion to quash the subpoena is granted for cause shown.

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.


This concludes the civil tentative rulings



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