Tentative Rulings for June 6, 2018

Departments 402, 501, 502, 503

There are no tentative rulings for the following cases. The hearing will go forward on
these matters. If a person is under a court order to appear, he/she must do so.
Otherwise, parties should appear unless they have notified the court that they will
submit the matter without an appearance. (See California Rules of Court, rule 3.1304(c).)

11CECG03487 Limon v. Centex Homes (Dept. 502)

13CECG02452 Centex v. Air Design (Dept. 503)

The court has continued the following cases. The deadlines for opposition and reply
papers will remain the same as for the original hearing date.

16CECG02226 Weakley v. Ford Motor Co. is continued to Thursday, June 28, 2018,
at 3:00 p.m. in Dept. 402.

13CECG03906 Arteaga v. Fresno Community is continued to Thursday, June 7,
2018 at 2:30 p.m. in Dept. 402.

________________________________________________________________
(Tentative Rulings begin at the next page)

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Tentative Rulings for Department 402
(2)
Tentative Ruling

Re: Flowers-Kirkland v. Smith
Superior Court Case No. 13CECG03005

Hearing Date: If timely requested: June 7, 2018 @ 2:30 p.m. (Dept. 402)

Motion: By Plaintiff to set aside dismissal

Tentative Ruling:

To deny Whsyeena Flowers-Kirkland’s motion to set aside dismissal.

Explanation:

Plaintiff has failed to show why the dismissal should be set aside. Plaintiff has
failed to comply with CRC, rules 3.1112-3.1113. Plaintiff has failed to provide the
statutory grounds upon which she is moving to set aside the dismissal. See San Francisco
Lathing v. Superior Court (1969) 271 C.A.2d 78, 82 and 8 Witkin, Cal. Proc. 5th Attack §
174 (2008).

Pursuant to California Rules of Court, rule 3.1312(a) and Code of Civil Procedure
section 1019.5, subd. (a), no further written order is necessary. The minute order
adopting this tentative ruling will serve as the order of the court and service by the clerk
will constitute notice of the order.

Tentative Ruling
Issued By: JYH on 06/04/18
(Judge’s initials) (Date)

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(20) Tentative Ruling

Re: Sanifar v. Maris et al., Superior Court Case No. 17CECG03369

Hearing Date: If timely requested: June 7, 2018 @ 2:30 p.m. (Dept. 402)

Motion: Defendants’ Motion to Expunge Lis Pendens and for
Attorneys’ Fees

Tentative Ruling:

To deny, and grant plaintiff attorneys’ fees in the sum of $4,500. (Code Civ. Proc.
§ 405.30.) These attorneys’ fees will offset the fees plaintiff as ordered to pay to
defendants in connection with the prior motion to expunge.

Explanation:

A lis pendens may be expunged on the grounds that the lis pendens is improper
because the complaint does not contain a “real property claim,” or plaintiff cannot
establish its “probable validity” by a “preponderance of the evidence.” (Code Civ.
Proc. §§ 405.31, 405.32.) The plaintiff bears the burden of establishing the existence of a
“real property claim” and its “probable validity.” (Code Civ. Proc. § 405.32.)

Expungement of an improper lis pendens is mandatory, not discretionary. Thus, if
the court finds the underlying claim is not a “real property claim” or that its “probable
validity” has not been established “by a preponderance of the evidence,” it must order
the lis pendens expunged. (Code Civ. Proc. §§ 405.31, 405.32.)

Real Property Claim

The court finds that the Second Amended Complaint (SAC”) contains a real
property claim.

A “‘Real property claim’” is defined as “the cause or causes of action in a
pleading which would, if meritorious, affect … title to, or the right to possession of,
specific real property....” (Code Civ. Proc. § 405.4.) The allegations of the complaint
determine whether a “real property claim” is involved; no independent evidence is
required. (Urez Corp. v. Superior Court (1987) 190 Cal.App.3d 1141, 1149 [prior law].) “In
making this determination, the court must engage in a demurrer-like analysis. (Kirkeby
v. Superior Court of Orange County (2004) 33 Cal.4th 642, 647-48.)

The only cause of action that plaintiff contends contains a real property claim is
the fourth for specific performance of the 2016 Agreement. (SAC ¶ 84.) Plaintiff alleges
that she has performed all her obligations under the agreement in a timely fashion, and
remains ready, willing and able to complete all the terms of the agreement. (SAC ¶
85.) Plaintiff alleges because the property is unique in character, monetary damages
will not adequately compensate her for defendants’ breach of contract. With the

3
exception of the purchase price, which plaintiff seeks to reform, the contract terms are
just and reasonable and will afford defendants adequate consideration. (SAC ¶ 86.)

A “real property claim” as defined by the Code is, “the cause or causes of
action in a pleading which would, if meritorious, affect...title to, or the right to possession
of, specific real property.” (Code Civ. Proc. § 405.4.) Plaintiff alleges that the 2016
Agreement is an installment contract, not an option contract. Plaintiff seeks to enforce
the installment contract.

Plaintiff also contends that, even if it is an option contract and not an installment
contract, the cause of action still alleges a real property claim.

“[A]n option is an indefeasible right in the optionee to have real property
transferred to him upon his performance of a condition precedent. . .Once the
optionee exercises the option, he has a right to specific performance of the transfer,
relating back to the time the option was given. (In re Marriage of Joaquin (1987) 193
Cal.App.3d 1529, 1532-1533.) Further, “when an option to purchase is contained in a
lease of the property, such option covenant is a real covenant running with the land.”
(Chapman v. Great Western Gypsum Co. (1932) 216 Cal. 420, 425.) The 2016
Agreement gives plaintiff the option to purchase the property any time between 4/4/16
and 4/4/21, after payment of the $50,000 and as long as she makes the $5,000
payments every six months. “[T]he option vests in the grantee the right or privilege of
acquiring an interest in the land, and, when accepted, entitles him to call for specific
performance.” (Smith v. Bangham (1909) 104 Cal. 359, 365.)

The SAC contains a real property claim.

Defendants do not contend that, as pled, this claim would not effect title to or
the right of possession to real property. Rather, they contend that plaintiff is seeking
only a money judgment.

“[A] claim that seeks an interest in real property merely for the purpose of
securing a money damage judgment does not support the recording of a lis pendens.”
(Campbell v. Superior Court (2005) 132 Cal.App.4th 904, 912, citations omitted.)
Contending that plaintiff is only worried about money damages, defendants point to
footnote 1 of the SAC on page 14, wherein plaintiff noted that she struck the FAC’s
allegations seeking to enforce the Joint Sales Agreement because she does not have a
signed copy of that document. Defendants point out that courts "will not close their
eyes to situations where the complaint contains allegations of fact inconsistent with
attached documents" or those "which are judicially noticed." (Del E. Webb Corp. v.
Structural Materials Co. (1981) 123 Cal.App.3d 593,604.) They contend that footnote 1
evidences that plaintiff only seeks a real property interest to secure money damages, as
she would sell the property, if she could. Defendants also point out that at the hearing
on the first motion to expunge, plaintiff’s counsel said he would “walk away if they were
to write my client an $80,000 check" ... "$80,000 is locked into the property." (RJN Exh. E
at 12:11-14.)

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What plaintiff would do if she could, or what she would accept to settle this
action, is irrelevant to the inquiry of whether the SAC contains a real property claim.
The court does not look through the pleadings to ascertain the purpose of the party
seeking to maintain notice of lis pendens; rather, the court is only to consider the
specific claim as pled and to determine whether that claim is a real property claim.
(Kirkeby v. Superior Court (2004) 33 Cal.4th 642, 649-650.)

Probable Validity

Expungement of an improper lis pendens is mandatory, not discretionary. Thus, if
the court finds the underlying claim is not a ‘real property claim‘ or that its ‘probable
validity‘ has not been established ‘by a preponderance of the evidence,‘ it must order
the lis pendens expunged. (Code Civ. Proc. §§ 405.31, 405.32.)

Defendants make an interesting point about the interconnected nature of the
causes of action for specific performance, reformation and rescission. Plaintiff seeks
specific performance of the 2016 Agreement (reformed as to purchase price), and
rescission of the 2017 Agreement. To only enforce only the 2016 Agreement, the 2017
Agreement would have to be rescinded.

The seventh cause of action seeks to rescind the August 2017 agreement on the
ground that plaintiff was coerced into signing it through duress, fraud or undue
influence. (SAC ¶ 98.) The only specific facts alleged in this cause of action supporting
this allegation (though all prior allegations are incorporated by reference) is that
“Defendants’ representations that their mortgage payments had been adjusted were
false.” (SAC ¶ 99.)

The SAC contains no allegations of duress or undue influence. Duress consists of
either: (1) unlawful confinement of the party; (2) unlawful detention of the property of
any such person; or (3) fraudulent confinement of a party. (Civ. Code § 1569.) Undue
influence is either: (1) abuse of a confidential relationship; (2) unfair advantage over
another's weakness of mind; or (3) taking a grossly oppressive and unfair advantage of
another's necessities or distress. (See Cal. Civ. Code § 1575.)

Though she makes the conclusory assertion that “The 2017 Agreement is
Unenforceable due to Fraud, Duress, and/or Undue Influence” (Oppo. 9:25-26), plaintiff
makes no actual argument regarding duress or undue influence, and presents no
evidence of such conduct. She only argues fraud. (Oppo. 9:25-10:19.)

The making of promises regarding material facts, which induces one to
execute a lease or contract, or to alter his position to his detriment,
constitutes actual fraud which will justify the rescission of the document. …
It is sufficient to warrant a rescission of the instrument if a single material
statement is fraudulently made, provided that statement were relied upon
and became an inducing reason for the execution of the instrument.
(Graham v. Smither (1942) 53 Cal.App.2d 701, 706.)

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The opposition contends that plaintiff was defrauded into entering into the 2017
Agreement because Mr. Maris threatened to: (1) stop making payments on the
property unless plaintiff paid him more money; and (2) to encumber the property with
more loans making it harder for plaintiff to finance the Subject Property. (See SAC ¶¶ 37-
38.)

Plaintiff must present evidence, and cannot just rely on the allegations of the
complaint. Plaintiff’s declaration basically just repeats the allegations of the SAC. She
states that Mr. Maris obtained her agreement to sign the August 2017 Agreement as
follows:

Also in or about August 2017, Mr. Maris told me that his mortgage
payments had recently been adjusted by his mortgage company and
that he and his wife would no longer be able to make payments to the
bank. Mr. Maris told me that unless I agreed to pay more to them each
month than what was provided for in our original agreement, that they
would not make payments to their bank and that the Property would go
into foreclosure.

Mr. Maris further told me that he was going to obtain an additional loan
on the Property to help him with finances. I told him that if he took out
additional loans on the Property, and encumbered the Property even
further than What it was valued at, that would make it even more difficult
for me to obtain a loan to pay off the Property in order to obtain title. Also,
this was in breach of the 2016 Agreement, ¶ 6. Mr. Maris represented the
only way to prevent such a result would be to receive money from me to
keep my installment payments safe.

Based on Mr. Maris’ threat to further encumber the Property with
additional loans and failure to make his mortgage payments, I believed
that I had to pay him additional money or else risk losing my installment
payments in the Property that I had already made.
(Sanifar Dec. ¶¶ 21-23.)

There is no misrepresentation of material fact in these allegations. Again, the
only specific allegation in the seventh cause of action supporting rescission is that
“Defendants’ representations that their mortgage payments had been adjusted were
false.” (SAC ¶ 99.) In the moving papers defendants present evidence that their
payments did in fact increase multiple times between execution of the 2016 and 2017
agreements. (P. Maris Dec. ¶ 17, Exh. B.) The opposition does not present evidence to
the contrary.

The fraud cause of action states that “Defendants impliedly and expressly
represented to Plaintiff that all her payments were installment payments which were to
be applied to the purchase price of the Property.” (SAC ¶ 64.) Fraud must be pled with
particularity. (Hills Transportation Co. v. Southwest Forest Ind., Inc. (1968) 266
Cal.App.2d 702, 707.) Plaintiff’s declaration provides few specific facts regarding
representations as to how the payments would be applied.

6
Mr. Maris asked me how much cash I have. I told him that I only had
$50,000 readily available. Mr. Maris stated that if I gave him that amount,
he would use it toward the purchase price of the house, and that I could
continue making payments over the next 5 years in the amount of $50,000
towards the purchase price of the house, making the final payoff amount
$365,000. This way, I could pay down the house, and take time to get
approved for a mortgage or construction loan
(Sanifar Dec. ¶ 6.)

This is in fact consistent with the agreements. The 2016 Agreement specifically
states that “t[h]e $50,000 option money will be deducted from the purchase price of
the home.” (P. Maris Dec. Exh. A, ¶ 2.) The Agreement also indicates that the ten bi-
annual $5,000 payments would be applied to the purchase price of the home, as the
final payment would be $365,000. ($465,000 - $50,000 - $50,000 = $365.) The 2016
Agreement also requires monthly “lease payment(s)”. There is no indication that the
lease payments were to be applied to the purchase price, and plaintiff does not
contend that she understood that they would be. There is no evidence 2016
Agreement does not conform to what was agreed as stated in paragraph 6 of
plaintiff’s declaration.

Plaintiff also states,

Based on these representations, I reasonably believed that all my
payments would be applied to the final purchase price, and that all
payments were installment payments, as had been discussed between
Mr. Maris and myself, repeatedly.
(Sanifar Dec. ¶ 8.)

However, plaintiff provides no evidence of Mr. Maris discussing installment
payments. The 2016 Agreement specifically references option payments, not
installment payments. There is no evidence of any misrepresentations as to the terms or
effect of the 2016 Agreement.
Because the only allegation of a false statement is that defendants’ mortgage
payments would be increasing, and defendants showed that they did, there is no basis
to rescind any agreement on grounds of fraud.

Plaintiff also argues that the 2017 Agreement is unenforceable due to lack of
consideration. However, lack of consideration is not a theory or ground alleged
anywhere in the SAC. In support of this argument, plaintiff relies on Star Pacific
Investments, Inc. v. Oro Hills Ranch, Inc. (1981) 121 Cal.App.3d 447, 456, as providing
that lack of consideration may be shown by the party arguing for rescission showing
that extrinsic evidence supports their position. But in that case the complaint
specifically alleged lack of consideration as well as fraud as the grounds for rescission.
(Id. at p. 455; see also National Farm WorkersService Ctr., Inc. v. M. Caratan, Inc. (1983)
146 Cal. App. 3d 796, 808 [when raised as an affirmative defense, lack of consideration
must be pled in the answer].) Based on what is alleged in the SAC, lack of
consideration is not a proper basis for rescinding the 2017 Agreement.

7
The main issue in this action is whether or not the 2016 Agreement is an option
contract or an installment contract.

Plaintiff points out that an installment land sale contract provides that the buyer
makes periodic "installment" payments while the seller retains legal title until conditions
are met. (1 Harry D. Miller, Miller & Starr's California Real Estate § 2:11 (3d ed.); Civ.
Code, § 2985.) "[O]ne holding property . . . who executes an installment land contract .
. . thereby sell(s), convey(s), or alienate(s) an interest in the property – to wit, his
equitable interest in the property." (Tucker v. Lassen Savs. & Loan Ass’n (1974) 12 Cal. 3d
629, 637.) Under California law, a purchaser of real property under a land sales contract
is considered an equitable owner of the property, and the seller only has limited rights
and only possesses legal title to the property. (Alhambra Redevelopment Agency v.
Transamerica Fin. Servs. (1989) 212 Cal. App. 3d 1370, 1375-76.)

In support of the contention that the two agreements are in reality an installment
purchase agreement, not an option, plaintiff relies on Smith v. Morton (1972) 29
Cal.App.3d 616.

In Smith, the parties entered into a contact entitled “Option for Sale and
Purchase of Real Property.” The agreement recited $1,500 had been paid therefore,
and buyer had an option to purchase the property within the next five years. The total
purchase price was $25,000 and buyer was to pay seller $150 per month until the option
was exercised and the remaining purchase price was paid. Although the agreement
repeatedly referred to itself as an option, the appellate court observed it required
substantial, immediate and continued payments on the purchase price before the
option was required to be exercised. (Id. at p. 619.) It found the practical effect of the
agreement was a contract of purchase and sale with monthly installments, with the
requirement that the balance be paid within five years. (Id. at p. 620.) The
characterization did not change simply because the buyer could, at any time,
discontinue payments and forfeit those made while avoiding further liability under the
contract. (Ibid.)

A lease-option agreement was found to be a contract of purchase and sale in
Tilem v. City of Los Angeles (1983) 142 Cal.App.3d 694, 707. The agreement stated it was
an irrevocable lease-option that could not be exercised for at least three years. The
purchase price was $225,000, with a cash down payment of $52,000 less the amount of
option payments over the course of the lease. The monthly rental was $1,350 and could
reach as high as $3,000. (Id. at p. 699.) The undisputed testimony at trial established the
sale of the property was structured as an option solely for tax purposes. (Id. at p. 706.)
Although the agreement consistently referred to itself as an option, it provided for
substantial and immediate continued payments on the purchase price before the
option could be exercised. (Ibid.) The court found the practical effect was a contract
of sale and such was the intent of the parties. (Id. at pp. 706-707.)

Based on these authorities, there is a decent argument for the conclusion that
the agreements at issue here are installment contracts, as opposed to pure option
contracts. Plaintiff’s $50,000 payment toward the purchase price of the property was

8
clearly substantial, and immediate. Plaintiff‘s $5,000 payments towards the purchase
price on October 3, 2016 and April 4, 2017 were immediate and continued. The $20,000
payment toward the purchase price was substantial and immediate. (See SAC ¶ 48.)
$80,000 was paid to reduce the purchase price of the property, as acknowledged by
defendants. (See Sunnie Maris Dec. ¶¶ 11 & 18.)

Defendants, on the other hand, argue that plaintiff is in breach of the 2017
Agreement.

Plaintiff alleges that she has performed all of her obligations under the 2016
Agreement. (SAC ¶ 85.) However, plaintiff has not made a lease payment since
September 2017. (P. Maris Dec. ¶ 26.) There is also evidence that plaintiff has breached
the lease by cutting down large and matured magnolia tree and many tall privacy
bushes; damaging the pond and its mechanisms; failing to take care of the yard; and
allowing a fence to collapse without repair. (P. Maris Dec. ¶ 27.) The agreement
requires plaintiff to “maintain the property in its present or improved condition …” (P.
Maris Dec. Exh. C, ¶ 7.)

The 2017 Agreement states that it may be terminated at the discretion of the
lessor should any of the option payments become one month overdue. (P. Maris Dec.
Exh. C, ¶ 2.) The agreement states that the lease cannot be terminated for
nonpayment of lease payments for 30 days from the date the lease installment first
became due. (Ibid. at ¶ 6.)

However, defendants have not put forth evidence that they have terminated
the lease. Accordingly, the contracts appear to be in effect. Based on the record
presented to the court in the moving and opposition papers, plaintiff has established
probable validity of the fourth cause of action by a preponderance of the evidence.

Finally, the court notes that plaintiff’s objections to the Emerzian declaration are
sustained, as plaintiff’s non-payment of attorneys’ fees previously ordered is not
relevant to the motion to expunge.

Pursuant to Cal. Rules of Court, Rule 3.1312(a) and Code Civ. Proc. § 1019.5(a),
no further written order is necessary. The minute order adopting this tentative ruling will
serve as the order of the court and service by the clerk will constitute notice of the
order.

Tentative Ruling
Issued By: JYH on 06/04/18
(Judge’s initials) (Date)

9
(28) Tentative Ruling

Re: Singh v. Kratzer

Case No. 16CECG03245

Hearing Date: June 6, 2018 (Dept. 402)

Motion: By Plaintiff to Quash Deposition Subpoenas for Production of
Business Records.

Tentative Ruling:

To grant the motion to quash the deposition subpoenas.

Sanctions in the amount of $1,660 are awarded against Defendant.

Explanation:

This is a motion for an order quashing deposition subpoenas for production of
business records served by Defendant on Reza Shakeri, D.C., Raymond Miranda, M.D.,
Dharampal S. Johal, M.D., Sukhjit Chahal, M.D., and Robert D. Steward, M.D pursuant to
1987.1 and 1987.2 on the grounds that the subpoenas seek irrelevant documents and
fail to comply with the statutes governing form and content of the subpoenas.

There is no separate statement filed with the motion. (CRC 3.1345, subpara.
(a)(5).) However, Defendant has not objected to the lack of a statement.

In opposition, Defendant argues that the procedural irregularities are minor and
that the subpoenas seek relevant documents.

Plaintiff has sued for damages resulting from an alleged breach of contract and
fraud stemming from Defendant’s alleged breach of a lease agreement and the fact
that Defendant had already signed a lease with another landlord despite signing a ten-
year extension with Plaintiff. The subpoenas seek lease agreements between the
deponent and Plaintiff between 1999 and the present.

The subpoenas direct the deponent to provide documents to Lawrence J. Liu at
265 E. River Park Cir. Suite 301, Fresno, CA by various dates in May 2018.

A records subpoena may direct a responding party to provide copies to a
deposition officer. This must be a person who is not financially interested in the action
and may not be any “attorney of the parties.” (Code Civ.Proc. §2020.420.) Moving
party asserts that the person listed as the deposition officer, Lawrence J. Liu, is an
attorney for the defendant. While this assertion is not objected to by Defendant, and

10
Plaintiff has offered no evidence in his motion that Mr. Liu is such a person, Defendant
filed a declaration that concedes Mr. Liu is an associate for the firm representing
Defendant.

Since Mr. Liu is an attorney for Defendant, he is invalid as a deposition officer and
the motion will therefore be granted, and the deposition subpoenas ordered quashed,
pursuant to Code of Civil Procedure §1987.1.

Plaintiff also claims that the documents sought are irrelevant and, in the reply
brief, notes that evidence already obtained from the discovery, buttress his case. This is
evidence that, ten years ago, Plaintiff charged different rates to his lessors. Plaintiff
argues that rates charged in 2007, prior to the “Great Recession,” are irrelevant to
whether the rates charged today are problematic.

However, admissibility is not required for something to be discoverable. Rather,
the test is whether the information sought might reasonably lead to other evidence that
would be admissible. (Code Civ.Proc. §2017.010.) Thus, assuming without deciding that
the evidence sought is inadmissible, there is no argument that the documents sought
might not reasonably lead to admissible evidence. Therefore, the motion cannot be
granted on that ground.

Under these circumstances, the motion will be granted and the business records
subpoenas are ordered quashed on procedural grounds.

Sanctions

Code of Civil Procedure §1987.2 provides that a Court may award attorney’s
fees if the court finds that the motion “was made or opposed in bad faith or without
substantial justification or that one or more of the requirements of the subpoena was
oppressive.” Here, it seems plain that the deposition officer was ineligible to serve in that
capacity by virtue of the applicable statute. Therefore, sanctions are appropriate.

Moving party seeks $3,472.50 in sanctions for six hours by Douglas Thornton and
7.5 hours by a law clerk. The court finds this excessive for what is ordinarily a fairly
straightforward motion. Therefore, the sanctions will be reduced to $1,560.00 (three
hours for Mr. Thornton and 3 hours for the law clerk), plus $60 for the filing fee for the
motion itself, for a total of $1,660.00.

Pursuant to California Rules of Court, rule 3.1312, subdivision (a), and Code of
Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The
minute order adopting this tentative ruling will serve as the order of the court and
service by the clerk will constitute notice of the order.

Tentative Ruling
Issued By: JYH on 06/04/18
(Judge’s initials) (Date)

11
(28) Tentative Ruling

Re: Zenith Insurance Company v. Thomas Manufacturing Co., LLC

Case No. 17CECG02965

Hearing Date: If timely requested: June 7, 2018 @ 2:30 p.m. (Dept. 402)

Motion: By Petitioner Rita Columbia Arriaga Flores for Order Granting Leave
to Intervene.

Tentative Ruling:

To grant the motion to intervene. Proposed Intervenor shall have five (5) court
days in which to file the proposed complaint-in-intervention. Intervenor shall perfect
service in accordance with the applicable provisions of the Code of Civil Procedure.

Explanation:

As of June 4, 2018, no opposition to this motion appears in the Court’s files.

Code of Civil Procedure section 387 allows a non-party, “upon timely
application” to intervene in an action where “(A) a provision of law confers an
unconditional right to intervene” or “(B) The person seeking intervention claims an
interest relating to the property or transaction that is the subject of the action and that
person is so situated that the disposition of the action may impair or impede that
person's ability to protect that interest, unless that person's interest is adequately
represented by one or more of the existing parties.” (Code Civ.Proc. §387, subd. (d)(1).)

It appears that the proposed party-in-intervention may have a right to intervene
in this matter. A right to intervene exists where a party has shown “an interest relating to
the property or transaction that is the subject of the action and that person is so
situated that the disposition of the action may impair or impede that person's ability to
protect that interest.” (Code Civ.Proc. §387, subd.(d)(1)(B).)

Furthermore, Labor Code section 3853 provides that if “an action is brought by
either the employer or the employee [to recover for damages for which worker’s
compensation benefits have been paid], the other may, at any time before trial on the
facts, join as a party plaintiff.” Labor Code §3850, subdivision (b) expands the definition
of “employer” to include the insurer. Therefore, there may also be an unconditional
legal right to intervene. (Code Civ.Proc. §387, subd.(d)(1)(A).)

12
Furthermore, even if intervention of right were not available, the proposed
intervenor could participate under permissive intervention. (Kuperstein v. Superior Court
(1988) 204 Cal.App.3d 598, 600.) The proposed intervenor is able to show that it has a
direct interest in the litigation, that participating will not substantially enlarge the issues,
and that intervention will not tread on the rights of other parties. (Id.)

Here, Moving Party has presented evidence to show that the proposed
intervenor is the heir of the employee in the main case, and that the insurer (filling the
shoes of the employer per Labor Code §3850, subd.(b)) has filed an action to recover
the funds disbursed. (Uribe Decl. ¶¶ 4&7.) This is sufficient to establish the right to
intervene. Therefore, the motion is granted.

Pursuant to California Rules of Court, rule 3.1312, subdivision (a), and Code of
Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The
minute order adopting this tentative ruling will serve as the order of the court and
service by the clerk will constitute notice of the order.

Tentative Ruling
Issued By: JYH on 06/04/18
(Judge’s initials) (Date)

13
Tentative Rulings for Department 501

14
Tentative Rulings for Department 502
(20) Tentative Ruling

Re: Phyllis Miller Revocable Trust v. Miller, Jr., et al., Superior
Court Case No. 08CECG03989

Hearing Date: June 6, 2018 (Dept. 502)

Motion: Default Hearing

Tentative Ruling:

To deny without prejudice.

Explanation:

Plaintiff requests default judgment as to just two (Kelly Gearhart and Hurst
Financial Corporation) of three remaining defendants. It appears that there has not yet
been any disposition as to Salinas River Estates, LLC.

Plaintiff must either dismiss all defendants’ parties against whom judgment is not
sought, or file an application for separate judgment supported by a showing of grounds
for each defendant. (Code Civ. Proc. § 579; Cal. Rules of Court, Rule 3.1800(a)(7); Weil
& Brown, Cal. Practice Guide: Civ. Proc. Before Trial (TRG 2018) § 5:180.4.)

Pursuant to Cal. Rules of Court, Rule 3.1312(a) and Code Civ. Proc. § 1019.5(a),
no further written order is necessary. The minute order adopting this tentative ruling will
serve as the order of the court and service by the clerk will constitute notice of the
order.

Tentative Ruling
Issued By: DSB on 06/01/18
(Judge’s initials) (Date)

15
(20) Tentative Ruling

Re: Sanchez v. Select Portfolio Servicing, Inc., et al., Superior
Court Case No. 17CECG04297

Hearing Date: June 6, 2018 (Dept. 502)

Motion: Rushmore Loan Management Services and U.S. Bank
National Association’s Demurrer to Complaint

Tentative Ruling:

To sustain the general demurrer to the Complaint, without leave to amend.
(Code Civ. Proc. § 430.10(d), (e).) To overrule the special demurrer, which is not
addressed in the moving papers. (Code Civ. Proc. § 430.10(f).) Demurring defendants
shall submit, within 7 days of service of the minute order, a proposed judgment
dismissing the action as to them.

Explanation:

Failure to Join Indispensable Parties

Plaintiff fails to include an indispensable party, Francisco Sanchez.

A person is an indispensable party to litigation “if his or her rights must necessarily
be affected by the judgment.” (Save Our Bay, Inc. v. San Diego Unified Port Dist. (1996)
42 Cal.App.4th 686, 692 (quoting County of Alameda v. State Bd. of Control (1993) 14
Cal.App.4th 1096, 1105).) “Where the plaintiff seeks some type of affirmative relief
which, if granted, would injure or affect the interest of a third person not joined, that
third person is an indispensable party.” (Sierra Club, Inc. v. California Coastal Com.
(1979) 95 Cal.App.3d 495,
501.) These principles have been codified in Code of Civil Procedure Section 389.

Francisco Sanchez is the only borrower on the loan, and he’s also on the deed of
trust. (See Complaint Exh. A, Deed of Trust, which identifies only Francisco as a
borrower). Though Plaintiff alleges that she was going through a divorce in 2015 (see
Complaint ¶ 20), she does not allege that the divorce was finalized, that she took over
the loan, that Mr. Sanchez was taken off the loan, or that her name was added to the
loan. Bank of America correctly points out that since Mr. Sanchez’s rights will be
affected by a judgment in this action, he is an indispensable party to this lawsuit. (See
Save Our Bay, Inc. at p. 692.)

Breach of Contract

The first cause of action is for breach of contract. The cause of action is
premised on the allegation that “Defendants never intended on offering Plaintiff an
opportunity to modify her loan, and forebear on the foreclosure proceedings, and

16
instead filed with the County Recorder’s Office all necessary procedural documents to
pursue a non-judicial foreclosure sale once the TPP terminated.” (Complaint ¶ 26.)

A cause of action for breach of contract requires pleading and proof of four
elements: (1) existence of the contract; (2) plaintiff’s performance or excuse for
nonperformance; (3) defendant’s breach; and (4) damages to plaintiff as a result of
the breach. (CDF Firefighters v. Maldonado (2008) 158 Cal.App.4th 1226, 1239.) The
cause of action does not identify any contract, not what provisions of any contract
were breached by defendants. The cause of action is premised on vague allegations
of “an opportunity to modify her loan.”

The vague allegation of failure to give plaintiff an opportunity to modify her loan
does not allege a contract or breach thereof.

Additionally, the cause of action is barred by the statute of frauds. Agreements
relating to the modification of a mortgage loan contract must satisfy the statute of
frauds. (Civ. Code, §§ 1624, 1698, 2922; Karlsen v. American Sav. & Loan Assn. (1971) 15
Cal.App.3d 112, 121; Secrest v. Security Nat’1 Mortg. Loan Trust 2002-2 (2008) 167
Cal.App.4th 544, 547.) Plaintiff does not allege that she entered into a written
agreement with any of the defendants relating to modification of her loan contract.
(See Complaint ¶¶36-37.) Instead, she alleges that she was not afforded the
opportunity to receive the benefits of a loan modification that complies with HAMP
guidelines. (¶ 37.)

Promissory Estoppel

The second cause of action is for promissory estoppel. The cause of action
alleges,

Plaintiff relied upon the Defendants’ promise and was thereby induced to
take the following actions and inactions: (i) Plaintiff accepted the HAMP
TPP, (ii) and omitted to take further action against the non-judicial
foreclosure that has been initiated by the Defendants on the Subject
Property by pursuing different alternatives to foreclosure such as a short
sale, reinstatement plan, or forbearance plan, (iii) made timely payments
pursuant to the HAMP TPP, (iv) continued to make payments in the
amount mandated in the HAMP TPP after the three month plan was over.
(Complaint ¶ 32.)

The elements of promissory estoppel are: (1) a promise clear and unambiguous
in its terms; (2) reasonable and foreseeable reliance; and (3) damages caused by the
plaintiff’s reliance. (U.S. Ecology, Ins. v. State of California (2005) 129 Cal.App.4th 887,
902.) “The party claiming estoppel must specifically plead all facts relied on to establish
[each of these] elements.” (Smith v. City & County of San Francisco (1990) 225
Cal.App.3d 38, 48.)

The cause of action is premised on an alleged promise which induced plaintiff to
accept the HAMP TPP. The Complaint does not allege what the alleged promise was,

17
who made it, when the promise as made, or why it was made. Plaintiff does not allege
a clear and unambiguous promise.

Regarding the element of reasonable reliance, plaintiff alleges that her “reliance
upon Defendants’ promise was reasonable and foreseeable because Defendants
represented themselves to be the servicer of the Note …” (Complaint ¶ 33.) However,
plaintiff is not a borrower on the HELOC loan, and the Complaint does not clarify how
she could have accepted a HAMP TPP when she is not a borrower on the loan.

Breach of Implied Covenant

This third cause of action alleges that defendants breached the implied
covenant of good faith and fair dealing in that “Defendants never intended on offering
Plaintiff an opportunity to modify their loan in compliance with HAMP guidelines.
Instead, Defendants offered Plaintiff a modification proposal that did not have more
reasonable and favorable payments.” (Complaint ¶ 37.)

The elements of a claim for breach of the implied covenant are: (1) the parties
entered into a contract; (2) the plaintiff fulfilled his/her obligations thereunder; (3) any
conditions precedent to defendant’s performance occurred; (4) defendant unfairly
interfered with plaintiff’s right to receive the benefits of the contract; and (5) plaintiff
was harmed by defendant’s conduct.
(Rosenfeld v. JPMorgan Chase Bank, N.A. (N.D. Cal. 2010) 732 F.Supp.2d 952, 968.)

The Complaint fails to identify what contract serves as the basis of this claim. To
the extent it is the original loan agreement, she is not a party to the loan.

If the cause of action is premised on a loan modification, plaintiff does not allege
that any such agreement was made. And as noted above, any oral agreement to
modify the loan would not satisfy the statute of frauds.

Negligence

The fourth cause of action for negligence alleges that “BOFA/SPS, acting as
Plaintiff’s lender and servicer, had a duty to exercise reasonable care and skill to
maintain proper and accurate loan records and to discharge and fulfill the other
incidents attendant to the maintenance; accounting and servicing of loan records,
including, but not limited, disclosing to Plaintiff the status of any
foreclosure actions taken by it, refraining from taking any action against Plaintiff that it
did not have the legal authority to do, and providing all relevant information regarding
the loans to Plaintiff(s).” (Complaint ¶ 41.) Plaintiff then alleges that “[a]s a direct and
proximate result of the negligence and carelessness of Defendants as set forth above,
Plaintiff suffered, and continues to suffer, general and special damages in an amount
to be determined at trial.”

A negligence cause of action has four requisite elements: “(1) the duty of the
defendant with respect to the injured person’s injury; (2) the violation of that duty; (3)
the causal relation between the defendant’s conduct and the injury suffered; and (4)

18
the plaintiff’s loss, i.e., damages.” (Premo v. Grigg (1965) 237 Cal.App.2d 192, 195.) It is
well-established that a lending institution does not owe a duty of care to a borrower
where the institution’s involvement in the loan transaction does not exceed the scope
of its conventional role as a mere lender of money, which Plaintiff does not allege here.
(Nymark v. Heart Fed. Sav. & Loan Ass’n (1991) 231 Cal.App.3d 1089, 1095-96.) Loan
servicers similarly do not owe borrowers a duty of care under such circumstances.
(Castaneda v. Saxon Mortg. Servcs., Inc. (E.D. Cal. 2009) 687 F.Supp.2d 1191, 1198.)
Plaintiff’s allegation of a “duty to exercise reasonable care and skill to maintain proper
and accurate loan records” (Complaint ¶ 40) is not based on any facts, and cannot
support the cause of action. Plaintiff fails to allege the existence of a duty owed by
defendants.

Violation of Civil Code section 2923.55

In the fifth cause of action, plaintiff alleges that defendants violated Civil Code §
2923.55(b)(1), which provides,

“a mortgage servicer shall send the following information in writing to the
borrower:
***
(B) A statement that the borrower may request the following:
(i) A copy of the borrower's promissory note or other evidence of
indebtedness.
(ii) A copy of the borrower's deed of trust or mortgage.
(iii) A copy of any assignment, if applicable, of the borrower's mortgage or
deed of trust required to demonstrate the right of the mortgage servicer
to foreclose.
(iv) A copy of the borrower's payment history since the borrower was last
less than 60 days past due.

Plaintiff fails to state a cause of action because section 2923.55 was repealed in
2013. “[A] cause of action or remedy dependent on a statute falls with the repeal of
the statute, even [the repeal occurs] after the action thereon is pending, in the
absence of a saving clause in the repealing statute.” (Governing Board v. Mann (1977)
18 Cal.3d 819, 829; quoting Callet v. Alioto (1930) 210 Cal. 65, 67; citations omitted.) “If
final relief has not been granted before the repeal goes into effect it cannot be
granted afterwards, even if a judgment has been entered and the cause is pending on
appeal. The reviewing court must dispose of the case under the law in force when its
decision is rendered.” (Id., at p. 831; quoting Southern Service Co., Ltd. v. Los Angeles
(1940) 15 Cal.2d 1, 12.)

Violation of Civ. Code § 2923.7

The sixth cause of action alleges that “[d]espite Plaintiffs’ request for assistance
with an alternative to foreclosure prevention, Plaintiffs were not provided with the name
or information of their “Case manager” after January 1, 2013 and to this date.”
(Complaint ¶ 47.) As a result, plaintiff alleges that she was never given a single point of
contact in violation of Civ. Code § 2923.7.

19
The moving papers point out, section 2923.7(e) defines a “single point of
contact” [“SPOC] as “an individual or team of personnel,” so long as “each member of
the team is knowledgeable about the borrower's situation and current status in the
alternatives to foreclosure process.” The same SPOC need not remain assigned to the
borrower throughout the loan modification process. (Boring v. Nationstar Mortg., LLC
(E.D. Cal. June 27, 2014) 2014 WL 2930722, at *3) [rejecting the argument that multiple
SPOCs, stated a valid Civil Code section 2923.7 claim].)

Plaintiff’s own allegations defeat her claim. On the one hand she alleges that
she was not assigned a SPOC, but then alleges that she was assigned a Case Manager,
but that she just wasn’t given her name. (Complaint ¶ 47.) The allegations indicate
that plaintiff was assigned a SPOC, or a team, that worked with her some on the
modification process, as she alleges that “Defendants offered Plaintiff a modification
proposal that did not have more reasonable and favorable payments.” (Complaint ¶
37.)

Unfair Business Practices

The eighth cause of action is for violation of Bus. & Prof. Code § 17200 et seq., the
Unfair Competition Law. The cause of action is entirely premised on the allegations of
the preceding causes of action. As none of the other causes of action survive the
demurrer, the demurrer to this one should be sustained as well.

Leave to Amend

Normally, even if a demurrer is sustained, leave to amend is routinely granted,
where a fair opportunity to correct any defect has not been given. (Angie M. v.
Superior Court (1995) 37 Cal.App.4th 1217, 1227.) Absent a request for leave to amend,
no abuse of discretion will be found unless a potentially effective amendment is both
apparent and consistent with plaintiff’s theory of the case. (Camsi IV v. Hunter
Technology Corp. (1991) 230 Cal.App.3d 1525, 1542.) But the burden is on the plaintiff to
show in what manner he or she can amend the complaint, and how that amendment
will change the legal effect of the pleading. (Hendy v. Losse (1991) 54 Cal.3d 723, 742.)

Here, plaintiff has filed no opposition to the demurrer, apparently conceding its
merits, and has not requested leave to amend. Moreover, no potentially effective
amendment is apparent and consistent with plaintiff’s theory of the case. Accordingly,
leave to amend is denied.

Pursuant to Cal. Rules of Court, Rule 3.1312(a) and Code Civ. Proc. § 1019.5(a),
no further written order is necessary. The minute order adopting this tentative ruling will
serve as the order of the court and service by the clerk will constitute notice of the rder.

Tentative Ruling
Issued By: DSB on 06/01/18
(Judge’s initials) (Date)

20
Tentative Ruling
(30)

Re: Marcelo Rivas v. Robert Gonzalez
Court Case No. 17CECG03597

Hearing Date: June 6, 2018 (Dept. 502)

Motion: Defendants Robert Gonzalez and Todd Willis’ Motion to Expunge Lis
Pendens

Tentative Ruling:

To grant the motion to expunge the lis pendens. (Code Civ. Proc., § 405.32.)

Explanation:

A lis pendens will be expunged without a bond if the court finds the claimant
“has not established by a preponderance of the evidence the probable validity of a
real property claim.” (Code Civ. Proc. § 405.32.) A challenge based upon Section
405.32 requires the court to weigh the evidence. (BGJ Associates, LLC v. Superior Court
(1999) 75 Cal.App.4th 952, 957.) On such a motion, the claimant (plaintiff) bears the
burden of establishing by a preponderance of the evidence the existence of a “real
property claim” and that it is “probably valid.” (Code Civ. Proc., § 405.32.)

Expungement of an improper lis pendens is mandatory, not discretionary. Thus, if
the court finds the underlying claim is not a “real property claim” or that its probable
validity has not been established, it must order the lis pendens expunged. (Code Civ.
Proc., §§ 405.31, 405.32.) In that event, defendant is not required to give an undertaking
before expunging an improper lis pendens. (Ibid.)

Here, Plaintiff has not established a likelihood of success on the merits. Plaintiff
claims that subsequent to the written agreement, he and Defendant Willis entered into
a series of oral agreements regarding ownership of the subject property. Specifically,
Plaintiff alleges that while acting as an agent for Defendant Willis, Defendant Fernandez
promised him an ownership interest in the subject property in exchange for additional
funding. However, these allegations are contradicted by the written agreement, which
anticipates the possibility of additional funding, prohibits the formation of an agency
relationship, requires amendments to be in writing, and contains an integration clause.

There is also no evidence of agency. An agent’s ostensible authority is that
authority which the principal, intentionally or by want of ordinary care, allows a third
party to believe the agent possesses. (Civ. Code § 2317.) To establish an ostensible
agent, “the plaintiff must prove all of the following: 1) that [‘the principal’] intentionally
or carelessly created the impression that [the agent] was [the principal’s] agent; 2) that
[plaintiff] reasonably believed that [agent] was [principal’s] agent; and 3) that [plaintiff]
was harmed because he reasonably relied on his belief.” (Judicial Council of Cal. Civ.
Jury Instns. (Nov. 2017 rev.) CACI No. 3709.)

21
Plaintiff argues that Defendant Willis authorized Defendant Fernandez to act on
his behalf to enter into the oral agreements. Plaintiff argues that Defendant Willis
created the impression that Defendant Fernandez was his agent by requiring all
communications to be directed to Defendant Fernandez and by allowing Defendant
Fernandez to collect money from Plaintiff. However, the written agreement clearly
states, “no party is authorized to act as agent for, to act on behalf of, or to do any act
that will bind, the other party, or to incur any obligation with respect to the House.” This
clause makes it unlikely that Plaintiff will be able to show that he reasonably believed
that Defendant Fernandez was Defendant Willis’ agent.

Pursuant to California Rules of Court, rule 3.1312 and Code of Civil Procedure
section 1019.5(a), no further written order is necessary. The minute order adopting this
ruling will serve as the order of the court, and service by the clerk of the minute order
will constitute notice of the order.

Tentative Ruling
Issued By: DSB on 06/04/18
(Judge’s initials) (Date)

22
(28) Tentative Ruling

Re: Flannery v. Tiplea

Case No. 18CECG00379

Hearing Date: June 6, 2018 (Dept. 502)

Motion: By Petitioner Enterprise Rent-A-Car Company of Sacramento, LLC.

Tentative Ruling:

To grant the motion to intervene. Proposed Intervenor shall have five (5) court
days in which to file the proposed complaint-in-intervention. Intervenor shall perfect
service in accordance with the applicable provisions of the Code of Civil Procedure.

Explanation:

As of June 4, 2018, no opposition to this motion appears in the Court’s files.

Code of Civil Procedure section 387 allows a non-party, “upon timely
application” to intervene in an action where “(A) a provision of law confers an
unconditional right to intervene” or “(B) The person seeking intervention claims an
interest relating to the property or transaction that is the subject of the action and that
person is so situated that the disposition of the action may impair or impede that
person's ability to protect that interest, unless that person's interest is adequately
represented by one or more of the existing parties.” (Code Civ.Proc. §387, subd. (d)(1).)

It appears that the proposed party-in-intervention may have a right to intervene
in this matter. A right to intervene exists where a party has shown “an interest relating to
the property or transaction that is the subject of the action and that person is so
situated that the disposition of the action may impair or impede that person's ability to
protect that interest.” (Code Civ.Proc. §387, subd.(d)(1)(B).)

Moving Party asserts that it has a right to intervene pursuant to Vehicle Code
§§16050, et seq. and Insurance Code §§11580, et seq. Essentially, Moving Party, as an
owner of a vehicle that was involved in the accident that is at the center of this
litigation, must show evidence of financial responsibility in the form of insurance, bond,
or a cash deposit. (Vehicle Code §§16054.2 & 16056.) This was apparently met by a
cash deposit. (Declaration of Dalton ¶6.) Any plaintiff who succeeds against an
operator of a motor vehicle may enforce the judgment in a subsequent proceeding.
(Ins. Code §§11580, et seq.)

23
Additionally, even if intervention of right were not available, the proposed
intervenor could participate under permissive intervention. (Kuperstein v. Superior Court
(1988) 204 Cal.App.3d 598, 600.) The proposed intervenor is able to show that it has a
direct interest in the litigation, that participating will not substantially enlarge the issues,
and that intervention will not tread on the rights of other parties. (Id.)

Here, Moving Party has presented evidence to show it rented the car that is at
issue in this case to Defendant, and that it has a direct financial interest in this case.
(Dalton Decl. ¶¶4-6, Exhs. 1 & 2.) Therefore, the motion is granted.

Pursuant to California Rules of Court, rule 3.1312, subdivision (a), and Code of
Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The
minute order adopting this tentative ruling will serve as the order of the court and
service by the clerk will constitute notice of the order.

Tentative Ruling
Issued By: DSB on 06/05/18
(Judge’s initials) (Date)

24
(29)
Tentative Ruling

Re: BRE SSP Property Owner, LLC v. Donaghy, et al.
Case No. 18CECG00080

Hearing Date: June 6, 2018 (Dept. 502)

Motion: Demurrer

Tentative Ruling:

To sustain, with leave to amend. Plaintiff is granted 20 days’ leave to file an
amended complaint. The time in which the complaint may be amended will run from
the clerk’s service of the minute order. New allegations in the amended complaint are
to be set in boldface type.

Explanation:

The goal of limitations periods “is to require diligent prosecution of known claims
so that legal affairs can have their necessary finality and predictability and so that
claims can be resolved while evidence remains reasonably available and fresh.”
(Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 756; see
Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1109 [plaintiff is held to actual knowledge as
well as knowledge that could reasonably be discovered, in determining beginning of
limitation period].) Thus, though the bar of the statute of limitations may create a
seemingly harsh result where there is an otherwise meritorious cause of action, “as a
matter of policy, this defense operates conclusively across-the-board. It does so with
respect to all causes of action, both those that do not have merit and also those that
do. That it may bar meritorious causes of action as well as unmeritorious ones is the
price of the orderly and timely processing of litigation - a price that may be high, but
one that must nevertheless be paid.” (Quiroz v. Seventh Ave. Center (2006) 140
Cal.App.4th 1256, 1282, internal quotation marks and citations omitted.)

A cause of action for breach of contract generally accrues at the time of
breach regardless of whether any substantial damage is apparent or ascertainable.
(Ram's Gate Winery, LLC v. Roche (2015) 235 Cal.App.4th 1071, 1084.) The statute of
limitations for a claim of breach of written contract is four years. (Code Civ. Proc. §337.)

In the case at bench, Plaintiff’s predecessor entered into a purchase and sale
agreement (“Agreement”) with Defendants on September 19, 2006. The Agreement
provided that a “Use Restrictions Agreement shall be executed and acknowledged by
Seller and recorded at Closing.” (Compl., Exh. 1, ¶23.) Plaintiff alleges that Defendants
failed to execute and record the Use Restrictions Agreement at the time of closing, or
any time thereafter.

As Defendants’ obligation to execute the Use Restrictions Agreement coincided
with closing escrow, the alleged breach occurred September 19, 2006. Plaintiff’s

25
predecessor was, or reasonably should have been, aware on that date that
Defendants had failed to execute and record the Use Restrictions Agreement.
Accordingly, the statute of limitations began running on September 19, 2006, and
expired September 19, 2010. The instant action was filed January 5, 2018. Plaintiff’s
claims are time-barred. Defendants’ demurrer is sustained. Though Plaintiff has not
articulated how it may be able to cure this defect, as this is the first challenge to the
complaint, the Court will grant leave to amend.

Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure
section 1019.5, subdivision (a), no further written order is necessary. The minute order
adopting this tentative ruling will serve as the order of the court and service by the clerk
will constitute notice of the order.

Tentative Ruling
Issued By: DSB on 06/05/18
(Judge’s initials) (Date)

26
Tentative Rulings for Department 503
(29)
Tentative Ruling

Re: Johnson v. Twitter, Inc.
Superior Court Case No. 18CECG00078

Hearing Date: June 6, 2018 (Dept. 503)

Motions: Defendant’s Special Motion to Strike and Demurrer

Tentative Ruling:

To grant the special motion to strike the complaint on the ground it is a strategic
lawsuit against public participation (SLAPP) action. (Code of Civ. Proc. §425.16.) To
find the demurrer moot.

Explanation:

First Amended Complaint

As a preliminary matter, the Court notes that Plaintiff filed his complaint on
January 8, 2018. Defendant filed its special motion to strike and demurrer on March 8,
2018. Plaintiff then filed a first amended complaint on April 16, 2018. It is improper to file
an amended pleading pending a special motion to strike. (Jackson v. Mayweather
(2017) 10 Cal.App.5th 1240, 1263; Sylmar Air Conditioning v. Pueblo Contracting
Services, Inc. (2004) 122 Cal.App.4th 1049, 1055.) As the parties have stipulated to a
modified schedule for Defendant’s response to the first amended complaint, the Court
addresses the instant motions as directed to the original complaint, rather than striking
the first amended complaint, sua sponte.

Special Motion to Strike Pursuant to Anti-SLAPP Statute

Courts engage in a two-step process in determining whether an action is subject
to the anti-SLAPP statute. First, the court decides whether the defendant has made a
threshold showing that the challenged cause of action is one arising from protected
activity, by demonstrating that the facts underlying the plaintiff's complaint fit one of
the categories set forth in Code of Civil Procedure section 425.16, subdivision (e).
Second, if the court finds that such a showing has been made, it then determines
whether the plaintiff has demonstrated a probability of prevailing on the claim. (Code
Civ. Proc. §425.16; Cross v. Facebook, Inc. (2017) 14 Cal.App.5th 190, 198.) The anti-
SLAPP statute is to be broadly construed. (Code Civ. Proc. §425.16(e); Briggs v. Eden
Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1120.)

The meaning of “arising from” in section 425.16, subdivision (b)(1) has been
interpreted to mean that the act underlying the plaintiff's cause of action or the act

27
which forms the basis of the cause of action “must have been an act in furtherance of
the right of petition or free speech.” (ComputerXpress, Inc. v. Jackson (2001) 93
Cal.App.4th 993, 1001; see also Optional Capital, Inc. v. Das Corporation (2014) 222
Cal.App.4th 1388, 1398-1399 [“In the anti-SLAPP context, the critical point is whether the
plaintiff's cause of action itself was based on an act in furtherance of the defendant's
right of petition or free speech.”].) The court thus “examine[s] the specific acts of
wrongdoing” alleged in the challenged pleading to determine whether they constitute
protected activity. (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP
(2005) 133 Cal.App.4th 658, 671.) Whether the “arising from” requirement is satisfied
depends upon the “gravamen or principal thrust” of the claim. (Martinez v. Metabolife
Intern., Inc. (2003) 113 Cal.App.4th 181, 193.)

Communications Decency Act (CDA)

The express language of the CDA “indicates . . . Congress intended to extend
immunity to all civil claims: ‘This section provides “Good Samaritan” protections from
civil liability for providers or users of an interactive computer service for actions to restrict
or to enable restriction of access to objectionable online material.’ (142 Cong. Rec.
H1130 (Jan. 31, 1996).)” (Doe II v. MySpace Inc. (2009) 175 Cal.App.4th 561, 568; see 47
U.S.C. §230.) An “important purpose” of the CDA was to encourage internet service
providers “to self-regulate the dissemination of offensive materials over their services.”
(Delfino v. Agilent Technologies, Inc. (2006) 145 Cal.App.4th 790, 802.) To this end, the
objectives specifically set forth in the CDA include “to encourage the development of
technologies which maximize user control over what information is received by
individuals, families, and schools who use the Internet and other interactive computer
services; to remove disincentives for the development and utilization of blocking and
filtering technologies that empower parents to restrict their children's access to
objectionable or inappropriate online material; and to ensure vigorous enforcement of
Federal criminal laws to deter and punish trafficking in obscenity, stalking, and
harassment by means of computer.” (47 U.S.C. §230(b); see Zeran v. America Online,
Inc. (4th Cir. 1997) 129 F.3d 327, 330 [lawsuits seeking to hold service provider liable for
exercise of publisher's traditional editorial functions, such as deciding whether to
publish/withdraw/postpone/alter content, “are barred”].)

In evaluating whether a claim is barred by the CDA, a court “must ask whether
the duty that the plaintiff alleges the defendant violated derives from the defendant's
status or conduct as a ‘publisher or speaker.’ If it does, [47 U.S.C.] section 230(c)(1)
precludes liability. [Citation.]” (Cross, supra, 14 Cal.App.5th at p. 207; see Fair Housing
Council of San Fernando Valley v. Roommates.Com, LLC (9th Cir. 2008) 521 F.3d 1157,
1170–1171 [“[A]ny activity that can be boiled down to deciding whether to exclude
material that third parties seek to post online is perforce immune under section 230.”];
Jane Doe No. 1 v. Backpage.com, LLC (1st Cir. 2016) 817 F.3d 12, 21 [“Those claims
challenge features that are part and parcel of the overall design and operation of the
website . . . . Features such as these, which reflect choices about what content can
appear on the website and in what form, are editorial choices that fall within the
purview of traditional publisher functions.”]; Klayman v. Zuckerberg (D.C. Cir. 2014) 753
F.3d 1354, 1359 [“very essence of publishing is making the decision whether to print or
retract a given piece of content”]; Doe v. MySpace, Inc. (5th Cir. 2008) 528 F.3d 413,

28
420 [“decisions relating to the monitoring, screening, and deletion of content [are]
actions quintessentially related to a publisher's role”]; Blumenthal v. Drudge (D.D.C.
1998) 992 F.Supp. 44, 50 [47 U.S.C. §230 precludes courts from entertaining claims that
would place computer service provider in publisher's role; accordingly, lawsuits seeking
to hold service provider liable for decision whether to publish, withdraw, postpone or
alter content are barred]; Fields v. Twitter, Inc. (N.D. Cal. 2016) 200 F.Supp.3d 964, 969
[courts must ask whether duty that plaintiff alleges defendant violated derives from
defendant's status or conduct as publisher or speaker; if yes, then 47 U.S.C. §230 (c)(1)
precludes liability].)

First Amendment

It is well established that the constitutional right of free speech includes the right
not to speak. (Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston
(1995) 515 U.S. 557, 574 [“Nor is [the First Amendment’s] benefit restricted to the press,
being enjoyed by business corporations generally and by ordinary people engaged in
unsophisticated expression as well as by professional publishers. Its point is simply the
point of all speech protection, which is to shield just those choices of content that in
someone's eyes are misguided, or even hurtful.”]; Kronemyer v. Internet Movie Data
Base, Inc. (2007) 150 Cal.App.4th 941, 947 [website defendant’s SLAPP granted, as
defendant’s choice not to list plaintiff’s name on site was exercise of free speech]; see
Greater Los Angeles Agency on Deafness, Inc. v. Cable News Network, Inc. (9th Cir.
2014) 742 F.3d 414, 424–425 [defendant’s choice not to provide closed captioning was
protected by First Amendment, and thus subject to special motion to strike]; La'Tiejira v.
Facebook, Inc. (S.D. Tex. 2017) 272 F.Supp.3d 981, 991 [Facebook has a First
Amendment right to decide what to publish and what not to publish on its platform])

In the instant case, the parties appear to agree that (1) Twitter is a public forum
for purposes of the anti-SLAPP statute (see ComputerXpress, Inc., supra, 93 Cal.App.4th
at p. 1007); and (2) Defendant’s control of its platform, by allowing or preventing users’
tweets, is an issue of public interest (see Cross, supra, 14 Cal.App.5th at p. 199).
Defendant brings its anti-SLAPP motion on the ground that the action as a whole
attempts to premise liability on Defendant’s performance of traditional editorial
functions, i.e., Defendant’s self-regulating act of terminating Plaintiff’s Twitter account
after Plaintiff posted a tweet that could reasonably be interpreted as threatening.
Defendant argues that the complaint bases its claims on Defendant’s exercise of its First
Amendment right to free speech. Defendant maintains that the complaint is barred by
the CDA because Defendant is an interactive computer service and Plaintiff seeks to
hold Defendant liable for its decision to exclude material that Plaintiff, a third party,
seeks to post online. Defendant sufficiently meets its burden of showing that Plaintiff’s
complaint arises from protected activity. Accordingly, the burden shifts to Plaintiff to
establish a likelihood of prevailing on the merits of his claims.

Plaintiff asserts that social media, including Defendant, are the modern version of
the old public square; accordingly, parties should be able to freely express their views,
without social media companies monopolizing what types of speech may be expressed
on their platforms. Plaintiff argues that the immunity provided in the CDA permits
interactive computer services, like Defendant, to exclude a narrow set of speech: “illicit

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speech such as obscenity, offensive speech, harassment, and similar speech of the
same kind.” (Compl., 1:14-15.) Plaintiff asserts that Defendant suspended Plaintiff’s
accounts because Defendant disagrees with Plaintiff’s political viewpoint, effectively
abrogating Defendant’s stated purpose of, in part, providing a public, free speech
forum. In sum, Plaintiff argues that Defendant disapproves of Plaintiff’s conservative
political ideology, and thus discriminated against Plaintiff’s free speech on Defendant’s
platform.

Plaintiff further argues that Defendant is not entitled to the protection of the CDA
because Defendant seeks to be treated both as a neutral content provider pursuant to
the CDA, but at the same time asks for First Amendment protection for its editorial
decision to terminate Plaintiff’s accounts. But this is not the standard for immunity under
the CDA. (See 47 U.S.C. §230.) Plaintiff cites to 47 U.S.C. §230(c)(2), which requires a
showing of good faith in order to be protected from civil liability by the CDA.
Defendant, however, relies on subdivision (c)(1), which provides that “[n]o provider or
user of an interactive computer service shall be treated as the publisher or speaker of
any information provided by another information content provider.” The heading of
subdivision (c) is “Protection for ‘Good Samaritan’ blocking and screening of offensive
material.” (Italics added.) Plaintiff fails to establish that Defendant is not entitled to
protection under the CDA, i.e., Plaintiff fails to show that his claims are not barred by the
CDA.

Plaintiff also fails to show that his claims can survive Defendant’s challenge
based on Defendant’s First Amendment right. Defendant is a private sector company.
Although it does invite the public to use its service, Defendant also limits this invitation by
requiring users to agree to and abide by its User Rules, in an exercise of Defendant’s First
Amendment right. The rules clearly state that users may not post threatening tweets,
and also that Defendant may unilaterally, for any reason, terminate a user’s account.
The rules reflect Defendant’s exercise of free speech. (See Hurley, supra, 515 U.S. at p.
574.) Plaintiff fails to show that his claims are not barred by Defendant’s First
Amendment right to exercise independent editorial control over the content of its
platform. Defendant’s choice to close Plaintiff’s account on the ground that Plaintiff’s
tweet was threatening and harassing is an editorial decision regarding how to present
content, i.e., an act in furtherance of Defendant’s free speech right. Defendant’s
choice not to allow certain speech is a right protected by the First Amendment.

Plaintiff’s reliance on Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899 is
misplaced and fails to defeat Defendant’s CDA and First Amendment protections. In
Robins, the California Supreme Court held that the soliciting at a shopping center of
signatures for a petition to the government is an activity protected by the California
Constitution. The Court specifically noted that “[b]y no means do we imply that those
who wish to disseminate ideas have free rein.” The Court reasoned: “A handful of
additional orderly persons soliciting signatures and distributing handbills in connection
therewith, under reasonable regulations adopted by defendant to assure that these
activities do not interfere with normal business operations . . . would not markedly dilute
defendant's property rights.” (Id. at pp. 910-911.) The case is distinguishable from the
instant action, where Plaintiff’s tweet could reasonably be, and in fact was, interpreted
as threatening and harassing, unlike activity that “would not markedly dilute

30
defendant’s property rights.” (See Sprankling Decl. at Ex. D.) Moreover, Defendant’s
rules were adopted to ensure that Defendant is able to maintain control over its site
and to protect the experience and safety of its users. (See Sprankling Decl. at Ex. A.)

Defendant states that it chose to close Plaintiff’s accounts after Plaintiff posted a
tweet inviting Plaintiff’s followers to go to one of Plaintiff’s websites to donate to “taking
out” DeRay McKesson, a high profile civil rights activist. Defendant points out that a
common meaning of “taking out” is murder, and such harassing and threatening
tweets are barred by Defendant’s rules. Defendant sufficiently shows that it is
protected from liability by both the CDA and the First Amendment. Plaintiff’s opposition
fails to establish a likelihood of prevailing on the merits, as Plaintiff is unable to show that
Defendant is not entitled to the protections it invokes. Accordingly, Defendant’s
special motion to strike is granted.

Demurrer

In light of the ruling on Defendant’s special motion to strike, the demurrer is moot.

Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure
section 1019.5, subdivision (a), no further written order is necessary. The minute order
adopting this tentative ruling will serve as the order of the court and service by the clerk
will constitute notice of the order.

Tentative Ruling
Issued By: KAG on 06/05/18
(Judge’s initials) (Date)

31
(29)

Tentative Ruling

Re: Loza v. Navo
Superior Court Case No. 18CECG01112

Hearing Date: June 6, 2018 (Dept. 503)

Motion: Defendant’s Special Motion to Strike

Tentative Ruling:

To grant Defendant’s unopposed special motion to strike the complaint on the
ground it is a strategic lawsuit against public participation (SLAPP) action. (Code Civ.
Proc. §425.16.)

Explanation:

A special motion to strike provides a procedural remedy to dismiss nonmeritorious
litigation meant to chill the valid exercise of the constitutional rights to petition or
engage in free speech. (Code Civ. Proc. §425.16(a); see Martinez v. Metabolife Intern.,
Inc. (2003) 113 Cal.App.4th 181, 186.)

The anti-SLAPP statute may be invoked to challenge suits based on statements
made in connection with an issue being considered by a judicial body. (Code Civ.
Proc. §425.16(e)(2).) Pleadings, statements and writings “in connection with” civil
litigation come within the parameters of the anti-SLAPP statute. It need not be shown
that the litigated matter is of public interest. (Briggs v. Eden Council for Hope &
Opportunity (1999) 19 Cal.4th 1106, 1116.)

The court engages in a two-step process in determining whether an action is
subject to the anti-SLAPP statute. First, the court decides whether the defendant has
made a threshold showing that the challenged cause of action is one arising from
protected activity, by demonstrating that the facts underlying the plaintiff's complaint
fit one of the categories set forth in Code of Civil Procedure section 425.16, subdivision
(e). Second, if the court finds that such a showing has been made, it then determines
whether the plaintiff has demonstrated a probability of prevailing on the claim. (Code
Civ. Proc. §425.16; Cross v. Facebook, Inc. (2017) 14 Cal.App.5th 190, 198.) The anti-
SLAPP statute is to be broadly construed. (Code Civ. Proc. §425.16(e); Briggs, supra, 19
Cal.4th at p. 1120.)

Civil Code section 47, subdivision (b) provides: “A privileged publication or
broadcast is one made . . . (b) [i]n any . . . (2) judicial proceeding[.]” This privilege is
absolute. (Cruey v. Gannett Co. (1998) 64 Cal.App.4th 356, 367.) “Any doubt about
whether the privilege applies is resolved in favor of applying it." (Kashian v. Harriman
(2002) 98 Cal.App.4th 892, 913.) Where the privilege applies, it bars any tort action,
except malicious prosecution. (Rubin v. Green (1993) 4 Cal.4th 1187, 1193-1194.)

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In the instant case, Defendant moves to strike the complaint as a SLAPP.
Plaintiff’s action arises out of Defendant’s protected activity of instituting judicial
proceedings in order to obtain restraining orders against Plaintiff. Also, the litigation
privilege applies, insulating Defendant from all tort liability except malicious
prosecution, which is not alleged. As Defendant has met his burden, the burden shifts
to Plaintiff, who must show: (1) his claims are legally sufficient; and (2) the claims are
supported by competent, admissible evidence. (See DuPont Merck Pharmaceutical
Co. v. Superior Court (2000) 78 Cal.App.4th 562, 568.) Having filed no opposition,
Plaintiff fails to meet this burden. Accordingly, Defendant’s special motion to strike
Plaintiff’s complaint is granted.

Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure
section 1019.5, subdivision (a), no further written order is necessary. The minute order
adopting this tentative ruling will serve as the order of the court and service by the clerk
will constitute notice of the order.

Tentative Ruling
Issued By: KAG on 06/04/18
(Judge’s initials) (Date)

33