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Case Name

Tentative

1.

08-104206

ALBERS VS COCCIA MD

OFF CALENDAR

2.

07CC04372

FENTON VS WEBB

Plaintiffs’ Motion to Stay the Civil Action as to defendant Michael Webb based on his active military status and to proceed against defendant Robert Webb, not involved in military status is GRANTED.  The action is ordered stayed as to Michael Webb for the period of Michael Webb’s military service.

3.

07CC06917

LAVALLE VS ANTON

OFF CALENDAR  CASE DISMISSED

4.

07CC02029

MASSEY VS RAILEY

∆ Bailey motion for Summary Judgment is DENIED. There are triable issues of fact as to whether Δ breached a duty to π and as to whether Δ is comparatively negligent. There are triable issues as to whether both parties agreed to use the storage container and whether the container was dangerous as used.  Δ fails to meet her burden to establish that the dangerous condition was open and obvious and that the doctrine of primary assumption of risk bars π’s action.

Motion to Bifurcate is DENIED, without prejudice.  Motion is untimely and should be presented to trial judge on trial-date as pre-trial motion.

5.

07CC07639

NICHOLS VS BOUSKA

OFF CALENDAR

6.

05CC07989

PEO. VS UNION PACIFIC RR

OFF CALENDAR -  Interest issue to be resolved by arbitrator.

7.

06CC12597

MURINA VS GREEN MEADOWS II

Defendants Green Meadows II, Dan Curren and Stephen Zamucen’s unopposed motion for terminating sanctions is GRANTED.  Although this is Plaintiffs’ first violation of this Court’s order, the circumstances of this case warrants imposition of terminating sanctions.  Despite repeated requests by Defendants to respond to the subject discovery and provide a statement of damages, Plaintiffs dragged their feet for months.  When Defendants finally filed a motion to compel, Plaintiffs proposed to stipulate to a date when everything would be provided.  However, they violated their own proposal by failing to provide the discovery responses and the statement of damages on the date agreed upon.  Furthermore, Plaintiffs have not filed an opposition to this motion.  Their conduct not only demonstrates that they have disregarded their discovery obligations, it also demonstrates a lack of interest in prosecuting this action.  Answer stricken and case dismissed.

Monetary sanctions against Plaintiffs in the amount of $870 to be paid within 15 days of ruling.

8.

08-104771

JARAMILLO VS HINES NURSERIES INC

Plaintiff Demurrer to ∆ Hines answer is SUSTAINED, with 15 days leave to amend as to A/D 8-21.  These A/Ds are insufficiently pled – some are not A/Ds.  Demurrer is OVERRULED as to A/Ds 1-7.

9.

08-106020

KUMAR VS HOMESERVICES

Defendants Pickford Realty, Ltd dba Prudential California Realty (erroneously sued as Homeservices of America, Inc.); Michael Kinnett and Gaylyn Kinnett’s demurrer to the 1^st through 3^rd causes of action for fraud, intentional misrepresentation, and negligent misrepresentations is SUSTAINED WITH 15 DAYS LEAVE TO AMEND.  The misrepresentations were made in March 2004.  [Complaint, ¶¶ 10-11]  The complaint was filed on April 29, 2008.  On the face of the complaint, the fraud and negligent misrepresentation causes of action are barred by the applicable statute of limitations.  As such, Plaintiff has to plead specific facts in order to rely on delayed discovery.  However, the complaint alleges that Plaintiff “first learned of the falsity of the various misrepresentations and breaches of duty by Defendants... within the applicable statute of limitations.”  [Complaint, ¶ 18]  The allegation is wholly conclusory and does not provide any facts.  Plaintiff must state the time and manner of discovery and why he was unable to make the discovery earlier despite reasonable diligence. 

The demurrer to the 4^th cause of action for breach of fiduciary duty is OVERRULED.  The complaint alleges that Realty Defendants breached their fiduciary duties to Plaintiff Kumar by either misrepresenting the condition of the property or failing to properly investigate the condition of the property.  [Complaint, ¶ 44-45]  Since the cause of action has elements of both fraud and negligence, either a two or four year statute of limitations can apply.  The last possible date of breach would be May 27, 2004, the day escrow closed.  [Id., ¶ 16]  Under a two year statute, the cause of action would be barred but under a four year statute, the action would not be barred.  Because a demurrer cannot only address a portion of a cause of action, the demurrer on the statute of limitations ground is overruled.

As for the demurrer based on failure to state a cause of action, the complaint is sufficiently pled.  The complaint pled that Realty Defendants were Plaintiff Kumar’s agents, that they owed him a fiduciary duty, and that the duty was breached when they either misrepresented the condition of the property or failed to properly investigate the condition of the property.  [Complaint, ¶ 43-45]

The motion to strike is MOOT.

10.

08-106412

MARSHALL VS WOODY’S GROUP

Defendant Woody’s Group, Inc.’s demurrer to the 1^st, 2^nd and 3^rd causes of action for assault, battery and intentional infliction of emotional distress is OVERRULED.  The FAC alleges that Defendant Severs was employed by Defendant Woody’s as a bouncer/security agent and was acting under the direction and supervision of Woody’s during the incident.  [FAC, ¶ 3]  Defendant Woody’s does not dispute that the FAC sufficiently alleges assault, battery and IIED against Defendant Severs.  [Demurrer, p. 5-7]  Since the FAC sufficiently alleges that Defendant Severs was acting within the scope of his employment at the time of the incident and that the act is connected with Severs’ employment, the FAC sufficiently alleges Defendant Woody’s liability based on respondeat superior. 

The demurrer to the 5^th cause of action for negligent training and retention of unfit employee is SUSTAINED WITH 15 DAYS LEAVE TO AMEND.  The FAC fails to allege facts regarding the qualities of Defendant Severs – other than what was exhibited during the incident -- that would give Defendant Woody’s reason to know that Severs is likely to harm others in view of his work as a bouncer. 

The motion to strike is MOOT.

11.

08-106412

MURPHY VS FLETCHER

The demurrer is OVERRULED as to the 1^st c/a and SUSTAINED with 15 days leave to amend as to the 2^nd c/a of the ¢.

In the 1^st c/a, π has sufficient allegations that the intent of decedent Anna Fletcher was to create only a life estate in the subject real property for William Fletcher,  that the entire property was to be ultimately transferred to π and that this was to be achieve by deeding the property to William Fletcher and π as joint tenants. Ex C to the ¢ is evidence of this alleged intent and  is reasonably susceptible of such an interpretation.

On the 2^nd c/a, π has failed to allege a right to possession of the subject personal property of Anna Fletcher, nor has she alleged that she represents the estate of Anna Fletcher. As such, π fails to allege she is the real party in interest.

12.

08-106342

PERY VS CROWN LENDING

OFF CALENDAR

13.

07CC12084

RHODES VS WELLS FARGO

Demurrer by Wells Fargo Bank to the 1^st, 2^nd and 3^rd causes of action of the plaintiffs’ second amended complaint is SUSTAINED without leave to amend.

The Trust Deed attached to the FAC at sections 3 and 4 requires plaintiffs to pay the alleged prior owner’s taxes as that tax bill  would have established a superior lien to the security instrument.  The Trust Deed also provided that an impound could be required.  Plaintiffs have failed to establish defendant had any contractual duty not to transfer their loan until it was error-free.  Therefore, no breach of contract has been alleged. 

The facts alleged do not support fraud.  Allegations that  defendant falsely stated they would fix a problem in order to induce plaintiffs to discontinue their efforts to correct the problem do not establish justifiable reliance.  Further, the unspecific allegations of ratification, lack of intent to perform, and concealment are insufficient to state a cause of action. 

Foreclosing on a disputed claim, or failing to protect another’s credit record, are not outrageous acts supporting a claim for intentional infliction of emotional distress.  At its core, this claim remains the same as that held deficient in the first amended complaint – a mere dispute as to whether the account was delinquent.   Because plaintiffs have not alleged the legally cognizable duty breached by MP.

Motion to Strike is MOOT.