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SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
Department 9, Honorable Mary E. Arand Catherine Pham, Courtroom Clerk
191 North First Street, San Jose, CA 95113
To contest the ruling, call (408) 808-6856 before 4:00 P.M.
LAW AND MOTION TENTATIVE RULINGS
DATE: January 21, 2020 TIME: 9:00 A.M. PREVAILING PARTY SHALL PREPARE THE ORDER OR AS STATED
OTHERWISE BELOW.
(SEE RULE OF COURT 3.1312 – PROPOSED ORDER MUST BE E-FILED BY
COUNSEL AND SUBMITTED PER 3.1312(C))
EFFECTIVE JULY 24, 2017, THE COURT WILL NO LONGER PROVIDE
OFFICIAL COURT REPORTERS FOR CIVIL TRIALS OR LAW AND MOTION
HEARINGS. SEE COURT WEBSITE FOR POLICY AND FORMS.
TROUBLESHOOTING TENTATIVE RULINGS
If you see last week’s tentative rulings, you have checked prior to the posting of the
current week’s tentative rulings. You will need to either “REFRESH” or “QUIT” your
browser and reopen it. If you fail to do either of these, your browser will pull up old
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LINE # CASE # CASE TITLE RULING
LINE 1 18CV328966 Syed Nazim Ali vs Cisco
Systems, Inc.
Ctrl/click on Line 1 for Tentative Ruling
LINE 2 19CV345300 Tuyet Nguyen vs Binh
Nguyen
Ctrl/click on Line 2 for Tentative Ruling
LINE 3 17CV314119 Irma Vargas et al vs Level 10
Construction, L.P. et al
This motion apparently is withdrawn by moving
party. Counsel claims to have filed a stipulation
to withdraw the motion and regarding other
issues on December 11, 2019, but no such
pleading appears in the file. Moreover, no order
is provided with the form of Stipulation attached
to the “Reply” to the motion. The Court notes
that an order attached to a document that has
been filed cannot be signed by the Court. For
future reference, any request to continue a
hearing must be separately filed or brought to
the Court during ex parte orders, and the order
should be a separate document.
LINE 4 17CV317925 Guillermina Garcia-Barrera et
al vs Wells Fargo Bank, N.A.
et al
Ctrl/click on Line 4 for Tentative Ruling
SUPERIOR COURT, STATE OF CALIFORNIA
COUNTY OF SANTA CLARA
Department 9, Honorable Mary E. Arand Catherine Pham, Courtroom Clerk
191 North First Street, San Jose, CA 95113
To contest the ruling, call (408) 808-6856 before 4:00 P.M.
LAW AND MOTION TENTATIVE RULINGS
LINE 5 17CV310864 QTV Enterprise, LLC vs Hieu
Nguyen
Appearance of all counsel required on motion to
compel deposition of Defendant/Cross-
complainant Hieu Nguyen.
LINE 6 19CV344659 JANE DOE vs JOHN F.
KENNEDY UNIVERSITY
Appearance required.
LINE 7 19CV344659 JANE DOE vs JOHN F.
KENNEDY UNIVERSITY
See Line 7
LINE 8 19CV347610 San Te Properties LLC vs
Charlene Lai et al
Appearance required.
LINE 9 19CV355815 TCF National Bank vs 5-Stars
Engineering Associates Inc.
Motion for writ of possession was timely and
properly served, and is unopposed. Appearance
required to address questions that the Court has.
LINE 10 17CV306482 State Farm Mutual
Automobile Insurance
Company vs Jose Gutierrez
Off calendar by moving party.
LINE 11 19CV356499 Wei "Wendy" Lin vs Yujing
Pang
The motion to confirm arbitration award was
timely and properly served. On December 18,
2019, Respondent filed an opposition, but does
not seem to have served it. Appearance
required.
LINE 12 16CV296069 Cynthia Swinehart vs Google,
Inc.
Ctrl/click on Line 12 for Tentative Ruling
LINE 13
LINE 14
LINE 15
LINE 16
Calendar line 1
Case Name: Syed Nazim Ali v. Cisco Systems, Inc.
Case No.: 2018-CV-328966
Demurrer and Motion to Strike to the First Amended Complaint by Cisco Systems, Inc.
Factual and Procedural Background
This employment action for discrimination based on age, race, national origin, and
religion arises out of the refusal by defendant Cisco Systems, Inc. (“Cisco”) to hire plaintiff
Syed Nazim Ali (self-represented) (“Ali”).
On April 3, 2017, Ali applied for the following positions with Cisco: (1) Senior
Security Consultant; (2) VPN Security Technical Support Engineer; (3) Hybrid Cloud
Consultant; (4) Security Consulting Systems/Sales Engineer; (5) IT Auditor Engineer; (6)
Security and Compliance Analyst; and (7) Corporate System Engineer. (First Amended
Complaint [“FAC”] at ¶¶ 48-55, 87.) Despite Ali’s qualifications for the positions, defendant
Cisco did not hire him. (Id. at ¶¶ 49-55, 57-58, 60, 87.) Ali alleges defendant Cisco
discriminated and retaliated against him because of his race, religion, and national origin. (Id.
at ¶¶ 60, 75, 77, 78.) Ali contends defendant Cisco has a preference for people of South Indian
and Indian descent in management positions. (Id. at ¶ 78.) As a consequence, plaintiff Ali
suffered undue emotional distress, physical pain, along with mental and emotional trauma. (Id.
at ¶ 70.)
On June 3, 2017, plaintiff Ali filed a complaint with the Equal Employment
Opportunity Commission (“EEOC”) and Department of Fair Employment and Housing
(“DFEH”) which included charges of discrimination on the basis of race, national origin, and
religion and retaliation. (FAC at ¶ 13.) Ali thereafter received a notice of right to sue.
On May 31, 2018, plaintiff Ali filed a complaint against defendant Cisco alleging
causes of action for: (1) discrimination based on race in violation of the Fair Employment and
Housing Act (“FEHA”); (2) discrimination based on age in violation of the Age Discrimination
Employment Act of 1967; (3) discrimination based on national origin in violation of Title VII
of the Civil Rights Act of 1964 (“Title VII”); (4) discrimination based on race in violation of
Title VII; (5) discrimination based on religion in violation of Title VII; (6) retaliation in
violation of the FEHA; and (7) intentional infliction of emotional distress.
On April 12, 2019, defendant Cisco filed a demurrer and motion to strike to the
complaint. The motions were heard and submitted on August 1, 2019. In its final order, the
Court sustained the demurrer with leave to amend to the first and sixth causes of action. The
demurrer was sustained without leave to amend to the seventh cause of action. The motion to
strike the request for punitive damages was moot given the ruling on demurrer.
On August 7, 2019, plaintiff Ali filed the operative FAC alleging causes of action for:
(1) discrimination based on race in violation of the FEHA; and (2) retaliation in violation of
FEHA and the Labor Code.
Currently before the Court are defendant Cisco’s demurrer to the FAC and motion to
strike the request for punitive damages. Plaintiff Ali filed written opposition. Defendant Cisco
filed reply papers.
Demurrer to FAC
Defendant Cisco demurs to the first and second causes for failure to state a valid claim.
(Code Civ. Proc., § 430.10, subd. (e).)
Legal Standard
“In reviewing the sufficiency of a complaint against a general demurer, we are guided
by long settled rules. ‘We treat the demurrer as admitting all material facts properly pleaded,
but not contentions, deductions or conclusions of fact or law. We also consider matters which
may be judicially noticed.’ ” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “A demurrer tests
only the legal sufficiency of the pleading. It admits the truth of all material factual allegations
in the complaint; the question of plaintiff’s ability to prove these allegations, or the possible
difficulty in making such proof does not concern the reviewing court.” (Committee on
Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213–214.)
“The reviewing court gives the complaint a reasonable interpretation, and treats the
demurrer as admitting all material facts properly pleaded. The court does not, however,
assume the truth of contentions, deductions or conclusions of law. … [I]t is error for a trial
court to sustain a demurrer when the plaintiff has stated a cause of action under any possible
legal theory. And it is an abuse of discretion to sustain a demurrer without leave to amend if
the plaintiff shows there is a reasonable possibility any defect identified by the defendant can
be cured by amendment.” (Gregory v. Albertson’s, Inc. (2002) 104 Cal.App.4th 845, 850.)
First Cause of Action: Race Discrimination in Violation of the FEHA
The first cause of action is a claim for race discrimination in violation of the FEHA.
“The FEHA establishes a comprehensive scheme for combating employment
discrimination. [Citations.] As a matter of public policy, the FEHA recognizes the need to
protect and safeguard the right and opportunity of all persons to seek and hold employment
free from discrimination. [Citation.] [The Supreme Court] has declared that policy be
‘fundamental.’ [Citation.]” (Brown v. Super. Ct. (1984) 37 Cal.3d 477, 485.)
The FEHA makes it unlawful for an employer to refuse to hire a person because of his
race or other statutorily specified reasons. (Hicks v. KNTV Television, Inc. (2008) 160
Cal.App.4th 994, 1004, fn. 4 (Hicks); Gov. Code, § 12940, subd. (a).) “Failure-to-hire claims
under the FEHA are subject to the burden-shifting framework of McDonnell Douglas Corp. v.
Green (1973) 411 U.S. 792, 93 … (McDonnell Douglas).” (Abed v. Western Dental Services,
Inc. (2018) 23 Cal.App.5th 726, 736 (Abed).) “Although ‘[t]he specific elements of a prima
facie case may vary depending on the particular facts,’ the plaintiff in a failure-to-hire case
‘[g]enerally ... must [establish] that (1) he [or she] was a member of a protected class, (2) he
[or she] was qualified for the position he [or she] sought ..., (3) he [or she] suffered an adverse
employment action, such as ... denial of an available job, and (4) some other circumstance
suggests discriminatory motive,’ such as that the position remained open and the employer
continued to solicit applications for it. [Citations.]” (Abed, supra, 23 Cal.App.5th at p. 736;
Hicks, supra, 160 Cal.App.4th at pp. 997-1002, fn. 3, citing McDonnell Douglas, supra, 411
U.S. at p. 802; McCaskey v. California State Automobile Assn. (2010) 189 Cal.App.4th 947,
979.)
As explained in the moving papers, plaintiff Ali’s pleading falls short as he fails to
allege whether he was qualified for the seven positions he applied for with defendant Cisco to
support the first cause of action. The FAC alleges throughout that plaintiff Ali had certain
qualifications and certifications. But he fails to connect any specific qualifications to the
positions he applied for with defendant Cisco. On that basis alone, plaintiff Ali fails to state a
cause of action.
In addition, as discussed in the moving papers, plaintiff Ali fails to allege facts
demonstrating that defendant Cisco acted with any racially discriminatory motive. The crux of
his discrimination claim is that defendant Cisco had a preference for people of South Indian
and Indian descent as opposed to plaintiff Ali whose country of origin is Pakistan. (See FAC
at ¶¶ 75, 78.) As the United States Supreme Court has explained, “ ‘[d]isparate treatment’ …
is the most easily understood type of discrimination. The employer simply treats some people
less favorably than others because of their race, color, religion, sex or national origin.”
(Teamsters v. United States (1977) 431 U.S. 324, 225-336, fn. 15.) “In order to prevail under
the disparate treatment theory, an employee must show that the employer harbored a
discriminatory intent.” (Caldwell v. Paramount Unified School Dist. (1995) 41 Cal.App.4th
189, 195; Heard v. Lockheed Missiles & Space Co. (1996) 44 Cal.App.4th 1735, 1748 [in
disparate treatment cases, the plaintiff must show that defendant engaged in intentional
discrimination].) Plaintiff Ali here fails to allege facts showing defendant Cisco acted with a
discriminatory motive in the selection and hiring process.
The Court notes that plaintiff Ali did reveal his Pakistani heritage during an interview
on April 27, 2016 as he applied for a role as a Security Architect. (See FAC at ¶ 29.)
Defendant Cisco persuasively argues this allegation is improper as it is time barred and not
included with plaintiff Ali’s EEOC/DFEH Charge. (See Gov’t Code, § 12960, subd. (d); see
also Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1724 [to exhaust
administrative remedies as to a particular act made unlawful by the FEHA, the claimant must
specify that act in the administrative complaint].) Plaintiff Ali appears to concede this
argument as he fails to address this point in opposition. Nor does plaintiff Ali provide any
basis in opposition to support a cause of action for race discrimination.
Accordingly, the demurrer to the first cause of action is SUSTAINED for failure to
state a claim.
Second Cause of Action: Retaliation in Violation of the FEHA
The second cause of action is claim for retaliation in violation of the FEHA.
“[I]n order to establish a prima facie case of retaliation under the FEHA, a plaintiff
must show (1) he or she engaged in a ‘protected activity,’ (2) the employer subjected the
employee to an adverse employment action, and (3) a causal link existed between the protected
activity and the employer’s action.” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028,
1042 (Yanowitz).)
Government Code section 12940, subdivision (h) allows for protected conduct to take
many forms. The statute “makes it an unlawful employment practice ‘[f]or any employer … to
discharge, expel, or otherwise discriminate against any person because the person has opposed
any practices forbidden under this part or because the person has filed a complaint, testified, or
assisted in any proceeding under this part.’ ” (Yanowitz, supra, 36 Cal.4th at p. 1042.)
Also, “[s]tanding alone, an employee’s unarticulated belief that an employer is
engaging in discrimination will not suffice to establish protected conduct for the purposes of
establishing a prima facie case of retaliation, where there is no evidence (or facts) the employer
knew that the employee’s opposition was based upon a reasonable belief that the employer was
engaging in discrimination.” (Yanowitz, supra, 36 Cal.4th at p. 1046.) “[C]omplaints about
personal grievances or vague or conclusory remarks that fail to put an employer on notice as to
what conduct it should investigate will not suffice to establish protected conduct.” (Id. at p.
1047.)
That said, “[e]mployees need not explicitly and directly inform their employer that they
believe the employer’s conduct was discriminatory or otherwise forbidden by FEHA.”
(Castro-Ramirez v. Dependable Highway Express, Inc. (2016) 2 Cal.App.5th 1028, 1046.) “
‘[A]n employee is not required to use legal terms or buzzwords when opposing discrimination.
The court will find opposing activity if the employee’s comments, when read in their totality,
oppose discrimination.’ ” (Yanowitz, supra, 36 Cal.4th at p. 1047.) “We do not believe
employees should be required to elaborate to their employer on the legal theory underlying the
complaints they are making, in order to be protected by the FEHA.” (Miller v. Department of
Corrections (2005) 36 Cal.4th 446, 474.) The relevant question is not whether a formal
accusation of discrimination is made but whether the employee’s communications to the
employer sufficiently convey the employee’s reasonable concerns that the employer has acted
or is acting in an unlawful discriminatory manner. (Yanowitz, supra, 36 Cal.4th at p. 1047; see
Raad v. Fairbanks North Star Borough School Dist. (9th Cir. 2003) 323 F.3d 1185, 1197
[“[T]he plaintiff must make some showing sufficient for a reasonable trier of fact to infer that
the defendant was aware that the plaintiff had engaged in protected activity.”].)
Defendant Cisco here persuasively argues that plaintiff Ali fails to allege sufficient
facts showing he was retaliated against for engaging in protected activity. Like the prior
pleading, plaintiff Ali does not identify the conduct that allegedly constitutes protected activity
in the FAC. Instead, Ali alleges that defendant Cisco and its decision makers retaliated against
him in the hiring and selection process. (See FAC at ¶ 98.) Consequently, Ali has not
established that he engaged in a protected activity or that Cisco retaliated against him for
engaging in that activity.
Accordingly, the demurrer to the second cause of action is SUSTAINED for failure to
state a claim.
Leave to Amend
“The plaintiff bears the burden of proving there is a reasonable possibility of
amendment.” (Rakestraw v. California Physicians’ Service (2000) 81 Cal.App.4th 39, 43
(Rakestraw).) To satisfy this burden, a plaintiff “must show in what manner he can amend his
complaint and how that amendment will change the legal effect of his pleading.” (Goodman v.
Kennedy (1976) 18 Cal.3d 335, 349.) “Plaintiff must clearly and specifically set forth the
‘applicable substantive law’ [citation] and the legal basis for amendment, i.e., the elements of
the cause of action and authority for it. Further, plaintiff must set forth factual allegations that
sufficiently state all required elements of that cause of action. [Citations.] Allegations must be
factual and specific, not vague or conclusionary.” (Rakestraw, supra, at pp. 43-44.)
The Court here has already afforded plaintiff Ali an opportunity to amend and he has
not yet been able to state a cause of action to overcome demurrer. Nor has plaintiff Ali made a
formal request in his opposition for further leave to amend. He thus fails to carry his burden
showing he can effectively amend his pleading to state a cause of action. Plaintiff Ali is not
relieved of this burden because of his self-representation status in this action. (Kabbe v. Miller
(1990) 226 Cal.App.3d 93, 98; Bistawros v. Greenberg (1987) 189 Cal.App.3d 189, 193 [self-
represented party “held to the same restrictive procedural rules as an attorney”].) Therefore,
having failed to carry this burden, the Court finds no legal basis for further amendment.
Accordingly, leave to amend is DENIED.
Motion to Strike Request for Punitive Damages
Given the Court’s ruling on demurrer, the motion to strike the request for punitive
damages is MOOT.
Disposition
The demurrer to the first and second causes of action in the FAC is SUSTAINED
WITHOUT LEAVE TO AMEND for failure to state a claim.
The motion to strike the request for punitive damages is MOOT.
After compliance with Rules of Court, Rule 3.1312, Defendant Cisco Systems, Inc.
shall submit a judgment.
The Court will prepare the Order.
- oo0oo -
Calendar line 2
Case Name: Tuyet Nguyen v. Binh Nguyen
Case No.: 2019-CV-345300
Demurrer to the Cross-Complaint by Cross-Defendant H2O Deli aka H2O Coffee House
Factual and Procedural Background
On August 26, 2017, cross-complainant Binh Nguyen1 (“Binh”) purchased four lottery
scratcher tickets from cross-defendant H2O Deli (aka H2O Coffee House) (“H2O”). (Cross-
Complaint at ¶ 9.) Cross-Defendants Tuyet Nguyen (“Tuyet”) and Thy Vo (“Vo”) were on
duty and working at H2O’s premises. (Id. at ¶ 6.) Tuyet asked Binh if she could scratch off
the numbers for him for fun. (Id. at ¶ 9.) Tuyet and Vo took turns scratching the numbers off
one of the tickets, which was not a winner. (Ibid.) Binh also allowed Vo to scratch off
numbers on Ticket No. 1167224-026 which was a winning ticket in the amount of $750,000.
(Ibid.) Binh has had the original winning ticket and original claim receipt in his possession at
all times since that day. (Ibid.)
Cross-Defendant Vo however wrote Tuyet’s name on the back of the ticket without
Binh’s knowledge or consent. (Cross-Complaint at ¶ 9.) But, Tuyet never had physical
possession of the winning ticket or the claim receipt. (Id. at ¶ 10.) Nor did she take the ticket
to the cashier to have it scanned. (Ibid.) In addition, cross-defendants Tuyet and Vo did not
pay Binh for any of the lottery tickets. (Ibid.)
Cross-Complainant Binh thereafter submitted his claim to the California State Lottery
for the $750,000 prize with a copy of his claim receipt. (Cross-Complaint at ¶ 11.) On
February 27, 2019, a Lottery representative came to Binh’s home and told him he would be
receiving a check in the amount of $500,000 after tax deductions. (Ibid.)
Binh later learned that Tuyet presented a claim to the Lottery, claiming she owned the
winning ticket. (Cross-Complaint at ¶ 12.) The Lottery rejected Tuyet’s claim on or about
March 6, 2019 because the Lottery concluded that Tuyet was not the owner of the winning
ticket at the time it determined Binh to be the winner. (Ibid.)
On March 28, 2019, Tuyet filed a lawsuit against Binh and ex parte application for a
temporary restraining order and for a preliminary injunction. (Cross-Complaint at ¶ 13.) The
complaint alleges causes of action for: (1) quiet title; (2) fraud; (3) negligent misrepresentation;
(4) estoppel; (5) injunctive relief; (6) conversion; and (7) constructive trust.
On April 23, 2019, Binh filed the operative cross-complaint alleging causes of action
for: (1) fraud; (2) conspiracy to commit fraud; (3) breach of fiduciary duty; (4) conspiracy to
commit breach of fiduciary duty; and (5) intentional infliction of emotional distress.
Currently before the Court is a demurrer to the cross-complaint by cross-defendant
H2O. Cross-Complainant Binh filed written opposition. H2O filed reply papers.
1 The court refers to the parties by their first name for clarity and not out of disrespect. (See Rubenstein v.
Rubenstein (2000) 81 Cal.App.4th 1131, 1136, fn. 1.)
Demurrer to the Cross-Complaint
Cross-Defendant H2O demurs to each cause of action in the cross-complaint on the
ground that they fail to state a valid claim. (Code Civ. Proc., § 430.10, subd. (e).)
Legal Standard
“In reviewing the sufficiency of a complaint against a general demurer, we are guided
by long settled rules. ‘We treat the demurrer as admitting all material facts properly pleaded,
but not contentions, deductions or conclusions of fact or law. We also consider matters which
may be judicially noticed.’” (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) “A demurrer tests
only the legal sufficiency of the pleading. It admits the truth of all material factual allegations
in the complaint; the question of plaintiff’s ability to prove these allegations, or the possible
difficulty in making such proof does not concern the reviewing court.” (Committee on
Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213–214.)
“The reviewing court gives the complaint a reasonable interpretation, and treats the
demurrer as admitting all material facts properly pleaded. The court does not, however,
assume the truth of contentions, deductions or conclusions of law. … [I]t is error for a trial
court to sustain a demurrer when the plaintiff has stated a cause of action under any possible
legal theory. And it is an abuse of discretion to sustain a demurrer without leave to amend if
the plaintiff shows there is a reasonable possibility any defect identified by the defendant can
be cured by amendment.” (Gregory v. Albertson’s, Inc. (2002) 104 Cal.App.4th 845, 850.)
First Cause of Action: Fraud
The first cause of action is a claim for fraud. “The elements of fraud are (1)
misrepresentation, (2) knowledge of falsity, (3) intent to induce reliance on the
misrepresentation, (4) justifiable reliance on the misrepresentation, and (5) resulting damages.”
(Cansino v. Bank of America (2014) 224 Cal.App.4th 1462, 1469.)
“Fraud must be pleaded with specificity rather than with general and conclusory
allegations. The specificity requirement means a plaintiff must allege facts showing how,
when, where, to whom, and by what means the representations were made, and, in the case of a
corporate defendant, the plaintiff must allege the names of the persons who made the
representations, their authority to speak on behalf of the corporation, to whom they spoke, what
they said or wrote, and when the representation was made.” (West v. JPMorgan Chase Bank,
N.A. (2013) 214 Cal.App.4th 780, 793, citation and quotation marks omitted.)
In the first cause of action, cross-complainant Binh alleges Tuyet submitted a false and
fraudulent claim to the California Lottery claiming she was the winner of Ticket No. 1167224-
026. (Cross-Complaint at ¶ 16.) Tuyet falsely presented she was the owner of the lottery ticket
and knew that her claim was false. (Ibid.) Binh also alleges that cross-defendant Vo assisted
Tuyet in making her false claim to the California Lottery and has provided false testimony in
support of Tuyet’s lawsuit. (Id. at ¶ 21.)
Cross-Defendant H2O argues there are no facts to support a fraud claim as the conduct
alleged pertains primarily to cross-defendant Tuyet. In opposition, Binh argues that cross-
defendant H2O can be held liable under a theory of respondeat superior.
“Under the doctrine of respondeat superior, an employer is ordinarily liable for the
injuries its employees cause others in the course of their work. Respondeat superior imposes
liability whether or not the employer was itself negligent, and whether or not the employer had
control of the employee. The doctrine’s animating principle is that a business should absorb
the costs its undertaking impose on others.” (Bussard v. Minimed, Inc. (2003) 105 Cal.App.4th
798, 803 (Bussard).) As one appellate court described the doctrine:
“Under the theory of respondeat superior, an employer is vicariously liable for an
employee’s torts committed within the scope of employment. [Citations.] This theory
is justified as ‘ “a deliberate allocation of a risk. The losses caused by the torts of
employees, which as a practical matter are sure to occur in the conduct of the
employer’s enterprise, are placed upon that enterprise itself, as a required cost of doing
business.” ’ [Citation.] The employer is liable not because the employer has control
over the employee or is in some way at fault, but because the employer has control over
the employee or is in some way at fault, but because the employer’s enterprise creates
inevitable risks as a part of doing business.”
(Bailey v. Filco, Inc. (1996) 48 Cal.App.4th 1552, 1558-1559 (Bailey).)
The doctrine’s application requires that the employee be acting within the course of his
or her employment. (Bussard, supra, 105 Cal.App.4th at p. 803.) “In California, the scope of
employment has been interpreted broadly under the respondeat superior doctrine.” (Farmers
Ins. Group v. County of Santa Clara (1995) 11 Cal.4th 992, 1004.) For example, “[t]he fact
that an employee is not engaged in the ultimate object of his employment at the time of his
wrongful act does not preclude attribution of liability to an employer.” (Alma W. v. Oakland
Unified School Dist. (1981) 123 Cal.App.3d 133, 139.) Thus, acts necessary to the comfort,
convenience, health, and welfare of the employee while at work, though strictly personal and
not acts of service, do not take the employee outside the scope of employment. (See ibid.)
Moreover, “ ‘where the employee is combining his own business with that of his employer, or
attending to both at substantially the same time, no nice inquiry will be made as to which
business he was actually engaged in at the time of injury, unless it clearly appears that neither
directly nor indirectly could he have been serving his employer.’ [Citations.]” (John R. v.
Oakland Unified School Dist. (1989) 48 Cal.3d 438, 447 (John R.).) It is also settled that an
employer’s vicarious liability may extend to willful and malicious torts of an employee as well
as negligence. (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 209 (Mary M.); John R.
supra, 48 Cal.3d at p. 447.) Finally, an employee’s tortious act may be within the scope of
employment even if it contravenes an express company rule and confers no benefit to the
employer. (Mary M., supra, 54 Cal.3d at p. 209; Perez v. Van Groningen & Sons, Inc. (1986)
41 Cal.3d 962, 969-970.)
“Whether a tort was committed within the scope of employment is generally a question
of fact.” (Bailey, supra, 48 Cal.App.4th at p. 1558.)
Cross-Complainant Binh here alleges Tuyet was an employee of cross-defendant H2O
and that her actions occurred within the course and scope of her employment. (See Cross-
Complaint at ¶¶ 5, 18, 15, 22.) In particular, Binh alleges the following:
“Tuyet Nguyen and Thy Vo were acting in the course and scope of their employment
with H2O at the time they plotted and created their plan to try to cheat Cross-
Complainant out of his lottery winnings. Further, Tuyet Nguyen was acting in the
course and scope of her employment with H2O when she presented the false claim to
the California Lottery.”
(Id. at ¶ 22.)
As explained in the moving papers, cross-complainant Binh has not stated a valid fraud
claim against Tuyet. For example, there are no facts showing that Binh relied on a false
representation by Tuyet which caused him to suffer damage. Instead, Tuyet intended for the
California Lottery to rely on her claim. (Cross-Complaint at ¶ 17.) Nor has cross-defendant
Vo made any false representation relied upon by cross-complainant Binh to establish a cause of
action for fraud. Without a valid fraud claim against Tuyet and Vo, there is no liability for
respondeat superior against cross-defendant H2O.
Accordingly, the demurrer to the first cause of action is SUSTAINED WITH 10
DAYS’ LEAVE TO AMEND after service of this signed order for failure to state a claim.
(See City of Stockton (2007) 42 Cal.4th 730, 747 [where plaintiff has not had opportunity to
amend complaint in response to demurrer, “leave to amend is liberally allowed as a matter of
fairness unless the complaint shows on its face that it is incapable of amendment”].)
Second Cause of Action: Conspiracy to Commit Fraud
The second cause of action is a conspiracy to commit fraud. “Conspiracy is not a cause
of action, but a legal doctrine that imposes liability on persons who, although not actually
committing a tort themselves, share with the immediate tortfeasors a common plan or design in
its perpetration. [Citation.] By participation in a civil conspiracy, a coconspirator effectively
adopts as his or her own the torts of other coconspirators within the ambit of the conspiracy.
[Citation.] In this way, a coconspirator incurs tort liability co-equal with the immediate
tortfeasors.” (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510-
511.)
“The elements of a civil conspiracy are (1) the formation and operation of the
conspiracy; (2) the wrongful act or acts done pursuant thereto; and (3) the damage resulting.”
(Mosier v. Southern California Physicians Ins. Exchange (1998) 63 Cal.App.4th 1022, 1048.)
“A complaint for civil conspiracy states a cause of action only when it alleges the commission
of a civil wrong that causes damage. Though conspiracy may render additional parties liable
for the wrong, the conspiracy itself is not actionable without a wrong.” (Okun v. Super. Ct.
(1981) 29 Cal.3d 442, 454.)
As stated above, there is no claim stated for fraud against cross-defendant H2O.
Therefore, there is no viable cause of action for conspiracy to commit fraud.
Consequently, the demurrer to the second cause of action is SUSTAINED WITH 10
DAYS’ LEAVE TO AMEND after service of this signed order for failure to state a claim.
Third Cause of Action: Breach of Fiduciary Duty
The third cause of action is a claim for breach of fiduciary duty. Fiduciary duties arise
as a matter of law in certain technical, legal relationships. (Oakland Raiders v. National
Football League (2005) 131 Cal.App.4th 621, 632.) Such relationships include attorney and
client, stockbroker and customer, and trustee and beneficiary. (Id. at pp. 632-633.)
“The elements of a claim for breach of fiduciary duty are (1) the existence of a
fiduciary relationship, (2) its breach, and (3) damage proximately caused by that breach.”
(Mendoza v. Continental Sales Co. (2006) 140 Cal.App.4th 1395, 1405.) “In order to plead a
cause of action for breach of fiduciary duty, there must be an adequate showing of each of
these elements” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68
Cal.App.4th 445, 483.)
The allegations for breach of fiduciary duty are set forth in paragraph 29 of the Cross-
Complaint which provides:
“Cross-Defendants alleges that by selling the winning lottery ticket to Cross-
Complainant, by having its employees assist or participate in scratching off the
numbers, by having their cashier scan the winning ticket, and by giving Cross-
Complainant the claim form for the winning ticket, Cross-Defendant H2O and its
participating employees assumed fiduciary duties and responsibilities to Cross-
Complainant. Cross-Complainant placed his trust in Cross-Defendants that they would
follow the Lottery’s rules and regulations and not try to steal his money.”
(Cross-Complaint at ¶ 29.)
Cross-Defendant H2O persuasively argues there are no facts establishing a fiduciary
relationship between Binh and H2O as a matter of law to state a claim for breach of fiduciary
duty. Nor has Binh cited any legal authority in opposition to support the existence of any
fiduciary relationship in the third cause of action.
Accordingly, the demurrer to the third cause of action is SUSTAINED WITH 10
DAYS’ LEAVE TO AMEND after service of this signed order for failure to state a claim.
Fourth Second Cause of Action: Conspiracy to Commit Breach of Fiduciary Duty
The fourth cause of action is a claim for conspiracy to commit breach of fiduciary duty.
As stated above, there is no claim stated for breach of fiduciary duty. Therefore, there is no
viable cause of action for conspiracy to commit breach of fiduciary duty.
Consequently, the demurrer to the fourth cause of action is SUSTAINED WITH 10
DAYS’ LEAVE TO AMEND after service of this signed order for failure to state a claim.
Fifth Cause of Action: Intentional Infliction of Emotional Distress
The fifth cause of action is a claim for intentional infliction of emotional distress.
A cause of action for intentional infliction of emotional distress exists when there is (1)
extreme and outrageous conduct by the defendant with the intention of causing, or reckless
disregard of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or
extreme emotional distress; and (3) actual and proximate causation of the emotional distress by
the defendant’s outrageous conduct. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1050.)
“An essential element of a cause of action for intentional infliction of emotional distress
is ‘extreme and outrageous conduct by the defendant.’ [Citation.]” (Yurick v. Super. Ct.
(1989) 209 Cal.App.3d 1116, 1123.) “[T]he standard for judging outrageous conduct does not
provide a ‘bright line’ rigidly separating that which is actionable from that which is not.
Indeed, its generality hazards a case-by-case appraisal of conduct filtered through the prism of
the appraiser’s values, sensitivity threshold, and standards of civility.” (Id. at p. 1128.) “[I]t is
generally held that there can be no recovery for mere profanity, obscenity, or abuse, without
circumstances of aggravation, or for insults, indignities, or threats which are considered to
amount to nothing more than mere annoyances. The plaintiff cannot recover merely because of
hurt feelings.” (Ibid.) Thus, “[c]onduct to be outrageous must be so extreme as to exceed all
bounds of that usually tolerated in a civilized community.” (Potter v. Firestone Tire & Rubber
Co. (1993) 6 Cal.4th 965, 1001.)
The outrageous conduct alleged in the fifth cause of action arises from the prior claims
for fraud and breach of fiduciary duty. (See Cross-Complaint at ¶ 34.) As stated above, cross-
complainant Binh has not alleged valid claims for fraud or breach of fiduciary duty. As a
consequence, there are no facts of extreme and outrageous conduct to state a claim for
intentional infliction of emotional distress.
Accordingly, the demurrer to the fifth cause of action is SUSTAINED WITH 10
DAYS’ LEAVE TO AMEND after service of this signed order for failure to state a claim.
The Court will prepare the Order.
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Case Name: Guillermina Garcia-Barrera, et al. v. Wells Fargo Bank, et al.
Case No: 17CV317925
I. Background
This complaint alleges a single, statutory violation of the Homeowners’ Bill of Rights.
Plaintiffs Guillermina Garcia-Barrera and Rogelio Barrera (collectively, “Plaintiffs”) bring this
action against Wells Fargo Bank, N.A. (“Defendant”) and Clear Recon Corporation.
According to the allegations of the second amended complaint (“SAC”), Plaintiffs own
real property in San Jose. (SAC, ¶ 3.) They purchased the home with financing from World
Savings Bank. (Id. at ¶ 8.) A few years later, Plaintiffs obtained a loan modification. (Id. at ¶
10.) However shortly thereafter, they fell into arrears due to an unexpected financial hardship
and they eventually filed for bankruptcy. (Ibid.)
At some point, Defendant acquired the loan, and though Plaintiffs have made
substantial payments, Clear Recon recorded a notice of default of the loan. (SAC, ¶ 15.)
Defendant contends that $771,419 is owed on the mortgage, but that sum does not reflect the
payments Plaintiffs have made, and it includes escrow amounts that were erroneously
collected. (Id. at ¶¶ 13, 15.)
Plaintiffs filed the SAC alleging three causes of action for: (1) violation of Civil Code
section 2924.17; (2) violation of Civil Code section 2924(a)2; and (3) declaratory relief.
On January 30, 2019, the Court sustained a demurrer to the second cause of action in the SAC,
without leave to amend. Thus only the first and third causes of action remain.
Before the Court is Defendant’s motion for summary judgment or in the alternative,
summary adjudication.
II. Request for Judicial Notice
In support of its motion for summary judgment, Defendant requests judicial notice of
three recorded instruments and ten items from Plaintiffs’ two bankruptcy cases, case numbers
11-56877 and 16-51474.
A court may take judicial notice of instruments recorded in the official records of a
county. (See Evid. Code, § 452, subd. (h); see also Fontenot v. Wells Fargo Bank, N.A. (2011)
198 Cal.App.4th 256, 264-265 [disapproved on other grounds in Yvanova v. New Century
Mortgage Corp. (2016) 62 Cal.4th 919] [court may take judicial notice of the existence and
recordation of real property records]; Evans v. California Trailer Court, Inc. (1994) 28
Cal.App.4th 540, 549 [court may take judicial notice of recorded deeds].)
2 The second cause of action alleged that the notice of default Plaintiffs received was defective in that it
incorrectly stated the amount owed in arrearage based on Defendant’s failure to correctly apply Plaintiffs
payments and also based on erroneous overcharges through escrow.
Consequently, the Court takes judicial notice of the Deed of Trust recorded on May 23,
2006, the Notice of Default and Election to Sell Under Deed of Trust recorded on April 20,
2016, and the Notice of Trustee’s Sale, recorded on August 31, 2017.
A court may also take judicial notice of court orders, findings of facts and conclusions
of law, and judgments within court records. (Evid. Code, § 452, subd. (d).) “However, while
courts are free to take judicial notice of the existence of each document in a court file,
including the truth of results reached, they may not take judicial notice of the truth of hearsay
statements in decisions and court files.” (Lockley v. Law Office of Cantrell, Green, Pekich,
Cruz & McCort (2001) 91 Cal.App.4th 875, 882.)
Thus, the Court will take judicial notice of the existence of court records filed in the
two bankruptcy cases, Exhibits B, C, D, E, F, G, I, J, K and L. It will also take judicial notice
of the orders of dismissal, as these are court orders. However, where Defendant seeks judicial
notice of the truth of hearsay statements in any of the court documents, the Court will not take
judicial notice of these. These include hearsay statements contained in the court records
regarding escrow charges, proof of claim amounts, and arrearages.
As a result, the request for judicial notice is GRANTED in part and DENIED in part.
III. Evidentiary Objections
Plaintiffs lodge eight objections to Defendant’s evidence, specifically to statements in
the declaration of Jacqueline Hunter.
However, the format of Plaintiffs’ evidentiary objections does not comply with
California Rules of Court, rule 3.1354. In particular, they do not include a separate proposed
order in conformity with the rule. (Cal. Rules of Court, rule 3.1354, subdivision (c).) Instead,
they merely list the objections, along with the grounds for each, with blanks apparently for the
Court to indicate its rulings, but with no place for the Court to sign. Such hybrid documents
are improper. See Vineyard Spring Estates v. Super. Ct. (2004) 120 Cal App 4th 633, 642
[trial courts only have duty to rule on evidentiary objections presented in proper
format]; Hodjat v. State Farm Mutual Automobile Ins. Co. (2012) 211 Cal App 4th 1 [trial
court not required to rule on objections that do not comply with Rule of Court 3.1354 and not
required to give objecting party a second chance at filing properly formatted papers].)
As a result, the Court does not rule on Plaintiffs’ objections to Defendant’s evidence.
IV. Motion for Summary Judgment/Summary Adjudication
Defendant moves for summary judgment, or in the alternative summary adjudication
pursuant to Code of Civil Procedure section 437c.
A. Legal Standard
“A motion for summary judgment shall be granted when ‘all the papers submitted show
that there is no triable issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.’” (Hartline v. Kaiser Foundation Hospitals (2005) 132
Cal.App.4th 458, 464, internal citations omitted.) Summary adjudication is procedurally
identical, except it acts on specific causes of action or affirmative defenses, rather than on the
entire complaint. (Ibid.) A summary adjudication is properly granted only if a motion therefor
completely disposes of a cause of action, an affirmative defense, a claim for damages, or an
issue of duty. (Ibid.) Motions for summary adjudication proceed in all procedural respects as a
motion for summary judgment. (Ibid.) “The party moving for summary judgment bears the burden of persuasion that there is
no triable issue of material fact and that it is entitled to judgment as a matter of law.” (Aguilar
v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A defendant moving for summary
judgment must make a prima facie showing either that the plaintiff cannot establish one or
more elements of a cause of action or that there is a complete defense to the action. (Ibid.)
The defendant may satisfy the initial burden of production by presenting evidence that
conclusively negates an element of the plaintiff’s cause of action. (Id. at 854.) Once defendant
meets its burden, the burden shifts to the plaintiff to present evidence showing there is a triable
issue of material fact. (Id. at 850.)
The motion is evidentiary in nature and cannot be based solely upon the allegations in a
pleading. (College Hospital Inc. v. Super. Ct. (1994) 8 Cal.4th 704, 720, fn. 7; Buehler v.
Alpha Beta Co. (1990) 224 Cal.App.3d 729, 733.) In ruling on the motion, a court cannot
weigh the evidence presented or deny summary judgment or adjudication on the ground that
any particular evidence lacks credibility. (See Melorich Builders v. Super. Ct. (1984) 160
Cal.App.3d 931, 935; see also Lerner v. Super. Ct. (1977) 70 Cal.App.3d 656, 660.)
B. First and Third Causes of Action
Defendant moves for summary judgment on the basis there are no triable issues of
material fact for the first cause of action because it met its statutory obligations pursuant to
Civil Code section 2924.17. Thus, by extension, the declaratory relief cause of action also
does not withstand summary judgment.
1. Defendant Meets its Initial Burden Defendant meets its initial burden to show that it met its statutory obligations under
Civil Code section 2924.17.
Civil Code section 2924.17, a subdivision of the Homeowners Bill of Rights, requires
that when filing a notice of default, a mortgage servicer must submit a declaration as described
by section 2923.55, subdivision (c). (Civ. Code, § 2924.17.) The declaration must be
“accurate and complete and supported by competent evidence.” (Civ. Code § 2924.17, subd.
(a).) The declaration shall state that the mortgagor has contacted the borrower, tried with due
diligence to contact the borrower, or that no contact was required because the property owner
did not meet the definition of “borrower.” (Civ. Code, § 2923.55, subd. (c); Lucioni v. Bank of
America, N.A. (2016) 3 Cal.App.5th 150, 162.) Section 2924.17 also requires the mortgagor to
“ensure that it has reviewed competent and reliable evidence to substantiate the borrower’s
default, and the right to foreclose, including the borrower’s loan status and loan information.”
(Civ. Code § 2924.17, subd. (b); Lucioni v. Bank of America, N.A., supra, 3 Cal.App.5th 150,
163.)
“These provisions do not create a burden on the foreclosing party to prove anything in
court, other than that the declaration required by section 2923.55, subdivision (c) was filed, and
that necessary steps were taken before filing it.” (Lucioni v. Bank of America, N.A., supra, 3
Cal.App.5th 150, 163.) Likewise, they “do not create a right to litigate, preforeclosure,
whether the foreclosing party’s conclusion that it had a right to foreclose was correct.” (Ibid,
emphasis in original.)
Defendant meets its burden of proof to establish its compliance with the statutory
requirements of section 2924.17. Preliminarily, the Court takes judicial notice of the Notice of
Default recorded against Plaintiffs’ property, which includes a “Declaration of Compliance”
pursuant to Civil Code section 2923.55, subdivision (c), indicating an exercise of diligence in
Defendant’s attempts to notify Plaintiffs of their default. Thus, it has met its burden to prove
that the declaration was filed as required.
Defendant also meets its burden to show that the necessary steps were taken before the
declaration was filed. Proof is provided through the declaration of Jacqueline Hunter (“Hunter
Dec.”), a Vice President of Loan Documentation for Defendant. (Hunter Dec., ¶ 1.) She
attests to Wells Fargo’s review of “competent and reliable information regarding Plaintiffs’
account.” (Id. at ¶ 13.) The declaration states her familiarity with Defendant’s procedures of
record keeping for mortgage loans. (Id. at ¶ 2.) She also attests to a personal review of
Defendant’s system relative to Plaintiffs’ loan. (Ibid.)
Hunter states her review of Defendant’s records indicate Plaintiffs defaulted on their
mortgage on or about July 22, 2011. (Hunter Dec., ¶¶ 2, 6.) She also states that in response to
Plaintiffs’ bankruptcy petition filed shortly thereafter in July 2011 (RJN, Exhibit B), Defendant
initiated escrow reviews to insure that the scheduled escrow payments covered property taxes
and insurance premiums. (Dec. in Supp. Of MSJ, ¶¶ 6, 7.) According to its records, Defendant
then advised Plaintiffs that their monthly payment amount would increase. (Id. at ¶ 7.)
Defendant also filed a Proof of Claim in the bankruptcy case setting forth Plaintiffs’ arrearages
on the mortgage. (Ibid.) The bankruptcy case was dismissed in February 2016 (RJN, Exhibit
F), but Defendant’s records reflect that Plaintiffs remained delinquent on the mortgage. (Id. at
¶ 11.) Finally, Hunter states that on April 20, 2016, Defendant caused the Notice of Default to
be recorded against the property, along with the statutorily required declaration. (Dec. in Supp.
Of MSJ, ¶ 13; RJN, Exhibit H.)
As a result, Defendant met its burden of proof to show that the declaration was filed as
required by Civil Code section 2924.17, and that the necessary steps were taken prior to filing
the Notice of Default, specifically a review of competent and reliable evidence regarding
Plaintiffs’ loan status and loan information.
Additionally, because there is no underlying cause of action or controversy, Defendant
also meets its burden as to the cause of action for declaratory relief.3 (See Artus v. Gramercy
Towers Condominium Assn. (2018) 19 Cal.App.5th 923, 931.)
3 Likewise, a demurrer was sustained, without leave to amend, as to the second cause of action which alleged a
violation of Civil Code section 2924, subdivision (a)(1)(C), thus Plaintiffs fail to state a statutory cause of action
to challenge the validity of the nonjudicial foreclosure. Furthermore, California law does not permit a preemptive
judicial action to challenge the right, power and authority of a foreclosing beneficiary to initiate foreclosure. (See
Jenkins v. JPMorgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497, 51, disapproved on another ground in
Yvanova v. new Century Mortgage Corp. (2016) 62 Cal.4th 919, 933-934.)
2. Plaintiffs Fail to Present a Triable Issue of Material Fact
Plaintiffs do not establish a triable issue of material fact to show Defendant failed to
meet its statutory obligations under Civil Code section 2924.17. Plaintiffs do not attempt to
contradict the declaration attesting to diligent efforts to contact them, instead they focus on the
competence of the evidence on which Defendant relied prior to filing the Notice of Default.
Plaintiffs’ argument rests on its contention that they were overcharged for the
mortgage, and as a result the amount stated in the Notice of Default are inaccurate and do not
reflect the amount due, thus there is a triable issue of material fact.
Plaintiffs’ evidence consists of two identical declarations, signed by each of them. In
substance, the declarations attest to Plaintiffs’ belief and information that they have been
overcharged for the loan, primarily due to incorrect overcharges from escrow holds for
insurance premiums. (See Dec. of R. Barrera; G. Garcia-Barrera, at ¶¶ 11, 13, 14, 15, 16.)
Likewise, they dispute the alleged arrearage, stating that they have made substantial payments
that were not applied towards the loan. (Id. at ¶¶ 19, 21.)
This evidence does not raise a triable issue of material fact as to whether Defendant
reviewed “competent and reliable evidence” prior to filing the Notice of Default, nor does it
sufficiently contradict Defendant’s declaration as to the same.
Furthermore, Plaintiffs’ arguments in opposition to the motion misconstrue the
requirements of the statute and infer an obligation to prove in court that “foreclosure
documents contain accurate and complete information supported by competent and reliable
evidence.” (Pl. Opp. to Def. MSJ, p. 10:13-14.) This is not the standard because Defendant
does not have to prove anything other than that the declaration required by section 2923.55,
subdivision (c) was filed, and that necessary steps were taken before filing it.” (Lucioni v.
Bank of America, N.A., supra, 3 Cal.App.5th 150, 163.) Finally, their approach presumes
Plaintiffs have an ability to litigate whether Defendant’s information upon which it relied was
correct, which in the preforeclosure context they do not. (Ibid.)
As a result, Defendant’s motion for summary judgment is GRANTED.4
After this signed order has been served and Defendants have complied with Rules of
Court, Rule 3.1312, Defendants shall submit a proposed judgment.
The Court will prepare the order.
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4 Given this ruling, the Court does not consider Defendant’s arguments regarding preemption.
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Case Name: Cynthia Swinehart vs Google, Inc.
Case No.: 16CV296069
On April 5, 2019, the Court issued its order granting the motion by Google to dismiss
the action due to the failure by Plaintiff to amend her complaint to state a valid claim.
Judgment in favor of Google was entered that same day. On July 16, 2019, Plaintiff’s first
motion to vacate the judgment pursuant to CCP 663.6 was denied as untimely and because not
supported by facts or law. The Court’s order denying that motion was entered on July 26, 2019.
On August 22, 2019, Plaintiff filed her appeal from the order denying the motion to vacate.
That appeal is still pending.
On October 7, 2019, Plaintiff filed her motion to vacate the judgment that had been
entered on April 5, 2019, apparently on the grounds of mistake. She claims that her finger was
injured which prevented her from filing a 473 motion earlier, and she was not aware of the
requirement that she submit a proposed amended complaint.
The Court agrees with Defendants’ contention that it lacks jurisdiction to entertain
Plaintiff’s motion because of the pending appeal on orders Plaintiff is asking this Court to
reconsider. As a general rule, “the perfecting of an appeal stays [the] proceedings in the trial
court upon the judgment or order appealed from or upon the matters embraced therein or
affected thereby, including enforcement of the judgment or order....’ (CCP 916(a). See also
Betz v. Pankow, 16 Cal. App. 4th 931, 938, as modified on denial of reh'g (July 13, 1993); In re
Marriage of Horowitz (1984) 159 Cal.App.3d 377, 381; Varian Med. Systems, Inc. v. Delfino
(2005) 35 Cal.4th 180, 189; Dowling v. Zimmerman (2001) 85 Cal.App. 4th 1400, 1427-1428.)
For this reason, and as the motion otherwise lacks merit, the motion is DENIED.
Google shall prepare the order. The Court notes that it prefers that instead of attaching
the tentative ruling to the proposed order, that Google prepare an order that repeats the wording
of the tentative ruling, and to incorporate any additional orders made at the hearing.
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