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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: 10/21/2014 at 6:29am



The Tentative Rulings for Tuesday October 21, 2014 are:


Re:              Denburg v. Salas, et.al

Case No.:   VCU 257189

Date:          October 21, 2014

Time:         8:30 A.M. 

Dept.         7 – The Honorable Bret Hillman

Motion:     Plaintiff Joshua Denburg’s Motion for Consolidation of Actions

Tentative Ruling:   To grant Plaintiff Joshua Denburg’s Motion for Consolidation of Actions

 Plaintiff Joshua Denburg brings this motion to consolidation of actions under CCP section 1048 and California Rule of Court 3.350.

Plaintiffs Vincent Ventura and Jacob Wood –plaintiffs in a related case arising out of the same incident as this present action –have filed Statements of Non-Opposition to this motion to consolidate actions.

This action arises from an automobile accident where the vehicle operated by Joshua Denburg struck a horse on a public road that resulted in injuries to Denburg and his passengers Ventura and Wood. Plaintiffs’ theory of liability is that the horse that collided with the Ventura vehicle had escaped from property owned by defendants Mario Salas, M & T Bank, and Ismael Nol that adjoined the public road.

Ventura and Wood filed a complaint against the defendants on November 8, 2013 (Ventura v. Salas, VCU 254108) and Denburg filed his own action on July 21, 2014 (Denburg v. Salas, VCU 254108.) Both complaints allege that the three named defendants had an ownership interest in the subject property, and raise causes of action against these defendants for premises liability and negligence.

CCP 1048(e) authorizes consolidation of actions as follows:

“When actions involving a common question of law or facts are pending before the court, it may order a joint hearing or trial of any or all of the matters in issue in the actions. It may order all the actions consolidated, and it -may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.”

Consolidation of actions is appropriate where the actions arise from a single occurrence.  See Jackson v. Lactein Co. (1930) 209 Cal. 520 (separate actions arising from same automobile accident were properly consolidated for trial, where causes of action were identical, though parties plaintiff and damages were different)

Here, Denburg (the driver) and Ventura and Wood (the passengers) allege causes of action against the same defendants that arise from the same automobile accident.  The issues of duty of care and liability are identical in both actions such that consolidation of these actions will avoid the risk of inconsistent judgments, reduce the costs of litigation, minimize the delays that result from multiple trials, and conserve judicial resources.

The Court also finds that where both the cases to be consolidated are relatively new to the Court, that consolidation of these two cases will neither delay the court’s management of the trial calendar for these cases nor unduly prejudice any of the involved plaintiffs or defendants.

Based on the foregoing, the Court grants plaintiff Joshua Denburg’s Motion for Consolidation of Actions and orders that the instant action Denburg v. Salas, Case No VCU 257189, is hereby consolidated with Ventura v. Salas, Case No. VCU 254108, and that all further matters related to these consolidated cases shall be heard in Department 1 of this Court for all purposes.

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:              Garabredian v. Sequoias Community College District, et al.

Case No.:   VCU 255275

Date:          October 21, 2014

Time:         8:30 A.M. 

Dept.        7 – The Honorable Bret Hillman

Motion:    Defendants Sequoias Community College District and College of the Sequoias (“COS”) Demurrer to Plaintiff’s First Amended Complaint
 
Tentative Ruling:  To sustain the demurrer of Defendants Sequoias Community College District and College of the Sequoias (“COS”) Demurrer to Plaintiff’s First Amended Complaint with thirty days leave to amend to plaintiff.

The Sequoias Community Collect District and the College of the Sequoias (collectively “COS”) are public entities, and California law mandates that “all government tort liability is dependent upon the existence of an authorizing statute or enactment.” See Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792,798.

Government Code §815(a) codifies the findings of the Searcy court: “except as otherwise provided by statute . . . a public entity is not liable for an injury, whether such injury arise of an act or omission of a public entity or public employee or any other person.”

For plaintiffs to establish that a public entity is liable for the breach of some duty, they must show “that there is some specific statutory mandate that was violated by the government entity.”   See Washington v. County of Contra Costa (1995) 38 Cal.App.4th 890, 896, 897.  Because recovery is based upon a statutory cause of action, the plaintiff’s complaint must set forth facts sufficiently detailed and specific to support an inference that each of the statutory elements of liability is satisfied, as general allegations are regarded as inadequate.” See Mittenhuber v. City of Redondo Beach (1983) 142 Cal.App.3d 1, 5; Lopez v. So. Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 795.

Here, plaintiff’s cause of action for “General Negligence” fails to specify any statutory basis for liability against the COS.  Her First Amended Complaint (FAC) only alleges that plaintiff “fell from a ground level floor to a basement level floor” and then simply concludes that this fall was the result of the Defendants’ negligence.

Where plaintiff has not cited any statutory basis for liability against the COS, or any specific facts to why COS was negligent or how this negligence caused her fall and resulting injuries, plaintiff has not properly stated a cause of action for general negligence against these defendants.  Therefore, COS’s demurrer as to plaintiff’s general negligence cause of action is sustained with thirty days leave to amend to plaintiff.

Plaintiff’s second cause of action for “A Dangerous Condition of Public Property” suffers from the same pleading deficiency as her general negligence claim (i.e. lack of a statutory basis to support her claim) as and COS’ demurrer to this cause of action is sustained with thirty days leave to amend to plaintiff.

Under Government Code §835,  a claim for a dangerous condition on public property must plead (1) a dangerous condition existed on public property at the time of the injury; (2) the injury was proximately caused by the dangerous condition; (3) the dangerous condition created a reasonably foreseeable risk of the kind of injury that was incurred and (4) either (a) a negligence or wrongful act or omission of an employee of the public entity within the scope of his employment created the dangerous condition;  or (b) the public entity had actual or constructive notice of the dangerous condition under §835.2 a sufficient time prior to the injury to protect against the dangerous condition.” 

Under §835, the plaintiff must set forth facts in her complaint that are sufficiently detailed and specific to support an inference that each of the statutory elements of liability is satisfied.  See Mittenhuber v. City of Redondo Beach (1983) 142 Cal.App. 3d 1, 5.  And importantly, the use of a judicial council form complaint (as plaintiff has used to plead her FAC) does not relax this standard.  People ex. Rel. Dept. of Transporation v. Superior Court (1992) 5 Cal.App.4th 1340, 1347.

Plaintiff’s “dangerous condition” cause of action fails to plead the existence of a dangerous condition with the sufficient specificity required under §835.  Plaintiff’s entire FAC is completely silent as to any facts that show why or how any condition on the Defendants’ property was dangerous.

Nor does plaintiff’s FAC sufficiently plead a proximate causal connection and the injury sustained with sufficient specificity.  Merely alleging that COS negligently maintained the property, and that plaintiff was injured due to this negligent maintenance is insufficient, as while the possibility that COS’s negligence cause the plaintiff to fall may be one potential inference, it is not the only reasonable inference that might be obtained from the minimal factual allegations provided by plaintiff.  See Dept. of Transportation, at 1483.

Nor does plaintiff’s FAC allege that the property’s condition “created a foreseeable risk of the kind of injury that occurred that §835(3) requires.  See Holmes v. City of Oakland (1968) 260 Cal.App.2d 378, 383,

Nor does plaintiff’s FAC set forth specific facts to show that COS had either  actual or constructive notice of the dangerous condition alleged in her FAC, as plaintiff’s attempt to meet this element of §835 consists solely of checking the applicable boxes on her first amended form complaint.  As noted above, the use of a Judicial Counsel Form Complaint does not relieve the plaintiff of the obligation to set forth the specific facts that show that the public entity had either actual or constructive notice of the dangerous condition.  See Dept. of Transportation, at 1484.

Based on the foregoing, the Court sustains the demurrer of COS to plaintiff’s complaint with thirty days leave to amend to plaintiff.

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:           Rodriguez v. Tulare County Employees Retirement Association

Case No: VCU256288

Date:       October 21, 2014

Time:      8:30 A.M. 

Dept.      7 - The Honorable Bret Hillman

Motion:   Respondent’s Demurrer to Petition for Administrative Mandamus

Tentative Ruling:  To Overrule Respondent’s Demurrer to Petition for Administrative Mandamus. Respondent shall file its Answer to the Petition within ten (10) days of notice of this order.

The allegations of the Petition, taken together with the attached ruling by the Administrative Hearing Officer, are sufficient to state a cause of action.  The hearing officer had before him both physical and mental medical records of Petitioner.  From the ruling of the hearing officer, it appears that Petitioner has asserted that her physical complaints resulted from stress in her employment.  Mental health issues were considered by the hearing officer in reaching his conclusions.  For pleading purposes, the Petition adequately asserts that it was an abuse of discretion for the hearing officer not to direct an agreed psychological examination as permitted under section 4.2 of Respondent’s hearing procedures.

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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