Daniel Botwinis vs. Patrice Fleming et al

May 11, 2026 Truckee Civil Law & Motion Tentative Rulings

1. CL0003437 Capital One, N.A. successor by merger to Discover Bank vs. Michelle Mattingly

No appearances required. On the Court’s own motion and in light of the Declaration filed by counsel for Plaintiff, the Court continues the OSC re Dismissal to July 13, 2026 at 1:30 p.m. in Dept. A. Plaintiff shall file a proof of service, an application to serve by publication (if deemed appropriate), or a request for dismissal of defendant in advance of the continued order to show cause date. The Court notes, the declaration of non-service filed on April 8, 2026 fails to set forth reasonable efforts in and by itself; however, the declaration of counsel evidences Plaintiff is and has been making diligent efforts to effectuate service of process.

2. CL0003511 Barclays Bank Delaware vs. Owen Manville

Appearance required by Plaintiff to show cause as to why this case should not be dismissed and/or Plaintiff sanctioned for failure to serve the Summons and Complaint on Defendants via some approved method after the Declaration of Non-Service was filed on March 2, 2026, and the Court continued the prior appearance date on the OSC. Absent good cause being shown, the Court intends to set the matter for dismissal pursuant to CCP section 583.420.

3. CL0003535 American Express National Bank vs. Heidi Petyo et al

No appearances required. In light of the proofs of service of the Summons and Complaint filed on March 25, 2026, the OSC re Dismissal is vacated.

4. CL0003630 LVNV Funding LLC vs. Salvador Magana

Appearance required by Plaintiff to show cause as to why this case should not be dismissed and/or Plaintiff sanctioned for failure to serve the Summons and Complaint on Defendant despite the fact this case has been pending for almost five (5) months. Absent good cause being shown, the Court intends, on its own motion, to set the matter for dismissal pursuant to CCP section 583.420 and vacate the trial date set for August 21, 2026 at 11:00 a.m.

5. CU0000657 Daniel Botwinis vs. Patrice Fleming et al

Defendants Patrice Fleming and Fleming Family Trust’s (“Fleming Defendants” or “Defendants”) motion for summary adjudication as to the second cause of action for intentional tort (battery) as well as to the prayer for punitive damages seeking punitive damages against the Fleming Defendants is GRANTED in its entirety.

Request for Judicial Notice

Defendants’ unopposed request for judicial notice is granted.

Rulings on Objections

First: Moving parties object to Plaintiff’s submitted evidence in support of his Opposition to the Motion for Summary Adjudication. The Court rules on these objections as follows: - A-B, U-V: Overruled - C, K-M, O-R, W-AA: Overruled (though the Court notes such is offered solely for Plaintiff’s opinion and not for the truth of the matter) - D-J, N, S-T: Sustained

Second: The moving parties object to the Declaration of Rajinder K. Rai-Neilsen. The Court sustains all of these objections.

Third: The moving parties object to the Declaration of Daniel Botwinis. The Court overrules all of these objections, but notes such is offered solely for Plaintiff’s opinion and not the truth of the matter.

Relevant Factual History

This action stems from injuries sustained by Plaintiff when he went to a home located at 15775 Martis Peak Road, Truckee, California ("property" or "residence") titled in the name of Defendant Patrice Fleming, as Trustee of Defendant Fleming Family Trust. Plaintiff, a selfemployed carpet cleaner, stepped on a bear deterrence mat (“bear mat”) in front of the front door of the home when he arrived to clean the home at the request of the realtor hired by Defendants to ready the home for sale. The bear mat was placed in front of the main entry door to deter bears from breaking into the home, as a bear had previously broken in causing damage. The operative complaint is Plaintiff’s Second Amended Complaint (“Complaint”) filed on January 18, 2024.

Legal Standard

Code of Civil Procedure 437c(f)(1) provides that, “A party may move for summary adjudication as to one or more causes of action within an action.” Such “[a] motion for summary adjudication shall be granted only if it completely disposes of a cause of action....” Code Civ. Proc. §437c(f)(1). The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial.

Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843). In analyzing such motions, courts must apply a threestep analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent's claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294. Thus, summary judgment or summary adjudication is granted when, after the court’s consideration of the evidence set forth in the papers and all reasonable inferences accordingly, no triable issues of fact exist and the moving party is entitled to judgment as a matter of law.

Code Civ. Proc. § 437c(c); Villa v. McFarren (1995) 35 Cal.App.4th 733, 741.

A defendant moving for summary judgment has the initial burden of showing that a cause of action lacks merit because one or more elements of the cause of action cannot be established or there is an affirmative defense to that cause of action. Code Civ. Proc. § 437c, subd. (o)(1), (2); 2

Aguilar, 25 Cal. 4th at 850. As to each claim as framed by the complaint, the party moving for summary judgment or summary adjudication must satisfy the initial burden of proof by presenting facts to negate an essential element. Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520. Once the moving party has met the burden, the burden shifts to the opposing party to show via specific facts that a triable issue of material facts exists as to a cause of action or a defense thereto. Code Civ. Proc. § 437c(o)(2). When a party cannot establish an essential element or defense, a court must grant a motion for summary adjudication. Code Civ. Proc. § 437c(o)(1)-(2).

In determining whether any triable issues of material fact exist, the court must strictly construe the moving papers and liberally construe the declarations of the party opposing summary judgment. Any doubts as to whether a triable issue of material fact exists are to be resolved in favor of the party opposing summary judgment. Barber v. Marina Sailing, Inc. (1995) 36 Cal.App.4th 558, 562; see also See’s Candy Shops, Inc. v. Superior Court (2012) 210 Cal.App.4th 889, 900 (“Summary adjudication is a drastic remedy and any doubts about the propriety of summary adjudication must be resolved in favor of the party opposing the motion.”).

Second Cause of Action – Intentional Tort (Battery)

“The essential elements of a cause of action for battery are: (1) defendant touched plaintiff, or caused plaintiff to be touched, with the intent to harm or offend plaintiff; (2) plaintiff did not consent to the touching; (3) plaintiff was harmed or offended by defendant’s conduct; and (4) a reasonable person in plaintiff’s position would have been offended by the touching.” So v. Shin (2013) 212 Cal.App.4th 652, 669. “The crimes of assault and battery are intentional torts. In the perpetration of such crimes negligence is not involved”, nor is contributory negligence a bar to the claim.

Bartosh v. Banning (1967) 251 Cal.App.2d 378, 385. Moreover, “the tort of battery generally is not limited to direct body-to-body contact....[C]ontact with another’s person...does not require that one should bring any party of his own body in contact with another’s person.” Mount Vernon Fire Ins. Co. v. Busby (2013) 219 Cal.App.4th 876, 881 (internal quotations and citations omitted).

In support of summary adjudication, Defendants argue Plaintiff cannot produce any admissible evidence the Fleming Defendants intentionally caused Plaintiff to be touched or harmed, and there is no evidence of any reckless disregard for human safety. See, Motion, pgs. 10-11, generally.

As a general rule, California law recognizes that ‘. . . every person is presumed to intend the natural and probable consequences of his acts.’ Thus, a person who acts willfully may be said to intend ‘ “ ‘those consequences which (a) represent the very purpose for which an act is done (regardless of the likelihood of occurrence), or (b) are known to be substantially certain to result (regardless of desire).’ ” ’ The same definition is applied to many intentional torts.

Gomez v. Acquistapace (1996) 50 Cal.App.4th 740, 746.

“In an action for civil battery the element of intent is satisfied if the evidence shows defendant acted with a ‘willful disregard’ of the plaintiff’s rights.” Ashcraft v. King (1991) 228 Cal.App.3d 3

604, 613 (internal citation omitted). If a defendant acts with “wanton, willful or reckless disregard of plaintiff’s rights”, the element of intent for a civil battery cause of action is satisfied. Lopez v. Surchia (1952) 112 Cal.App.2d 314, 318.

"[W]illful misconduct has a well-established meaning which is clearly differentiated from negligence and gross negligence. (Citations omitted.) Gross negligence involves a failure to act under circumstances that indicate a passive and indifferent attitude toward the welfare of others. Negative in nature, it implies an absence of care. (Citations omitted.) Willful misconduct, on the other hand, requires an intentional act or an intentional failure to act, either with knowledge that serious injury is a probable [not possible] result, or with a positive and active disregard for the consequences. (Citations omitted.) "No amount of descriptive adjectives or epithets may turn a negligence action into an action for intentional or willful misconduct." (Citation omitted.)

Johns-Manville Sales Corp. v. Workers' Comp. Appeals Bd. (1979) 96 Cal. App.3d 923, 930. See also, Id. at 931.

In the instant matter, it is undisputed, prior to placement of the bear mat, two or more bear intrusions occurred into the property resulting in damage to the property, and Patrice Fleming’s (“Patrice”) sons, Brett Fleming (“Brett”) and Jeffrey Fleming (“Jeffrey”) went to the property to secure the home and repair the damage. SSUMF ## 5-6, 11. It is also undisputed Brett and Jeff created the bear deterrence mat, consisting of a board made with wood and nails nailed through it, which was screwed into the stained deck in front of the front door of the premises on or about November 21, 2020 for the purpose of deterring bears from moving the mat aside, pushing on the front door, and breaking into the property.

SSUME #12. Plaintiff disputes “in part” whether Brett informed CB Defendant Wilson (“Wilson”) of the existence and location of the Bear Deterrence Mat. SSUMF ## 25-26. Brett’s declaration states he informed Wilson of the existence and location of the mat. B. Fleming Decl., ¶ 15. Brett’s deposition testimony states he told the property manager or other third party hired to do work on the property, “there’s a bear mat and to take a drill up to remove it if you need to.” B. Fleming Dep., 74:21-75:4.

It is undisputed that on April 6, 2021, CB Defendant Rioja emailed Plaintiff requesting he go to the premises to clean the carpets and gave him the gate and alarm codes but did not mention the existence of the bear mat, and that Rioja was the only person from the CB office who communicated with Plaintiff about the premises prior to the incident. SSUMF #28. It is undisputed Plaintiff testified he had no reason to believe Patrice personally retained him to provide cleaning services on the property on the date of the incident, or knew Plaintiff was coming to the property on the date of the incident.

SSUMF ## 30, 37. It is also undisputed Plaintiff testified he had no reason to believe Brett, Jeffrey, or the Fleming Family Trust personally retained him to provide cleaning services on the property on the date of the incident, or knew he was coming to the property on the date of the incident. SSUMF ## 33-36, 38-39. It is undisputed Fleming Defendants never requested Plaintiff visit or perform services at the property, nor did Brett or Jeffrey. SSUMF ## 55-57. It is undisputed, Patrice, Brett, and Jeffrey did not instruct anyone to contact Plaintiff to ask him to visit the property to clean carpets.

SSUMF 67-69.

Further, Defendants assert Brett and Jeffrey, not Patrice, were involved in maintaining and protecting the property from the bear break-ins, and Patrice was not involved in any capacity as to how the property would be protected from the bear break-ins. SSUMF ## 14-15. Plaintiff disputes these facts stating Patrice, as the owner/trustee of the property, still had a duty with respect to a dangerous condition at the entryway, but fails to provide any substantial evidence showing Patrice had knowledge of the bear mat.

Thus, there is no evidence, and so no plausible argument that Patrice could potentially have an intent to touch or harm Plaintiff, in that Plaintiff provides no evidence Patrice knew a potential for harm existed in relation to the bear mat being placed at the front entry of the home. Brett and Jeffrey are not named Defendants, but could be viewed as akin to subordinate employees. Yet, “a supervisor is not liable to third parties for the acts of his or her subordinates.” Fiol v. Doellstedt (1996) 50 Cal.App.4th 1318, 1326. “ Mere knowledge that a tort is being committed and the failure to prevent it does not constitute aiding and abetting.”

Ibid. Moreover, even if Brett and Jeffrey’s acts are imputed to Patrice, there is no evidence Brett or Jeffrey had any intent to harm.

Finally, even examining the evidence in the light most favorable to Plaintiff and imputing the actions/inaction of Brett and Jeffrey to the Fleming Defendants, the Court finds no evidence which creates an issue of material fact as to whether the moving defendants acted with the requisite intent for a civil action of battery. In fact, the evidence submitted by Plaintiff reflects Brett’s lack of knowledge of Wilson scheduling Plaintiff’s cleaning service, as well as a statement to Wilson to inform people visiting the property about the mat. On April 7, 2021, Wilson emailed Brett stating a carpet and house cleaner were hired, and “[t]his should be completed by early next week.” Pltf. Compendium of Exhibits, Ex. A, p.

49. She informs him there will also be a stager and photographer, but does not state Plaintiff was scheduled to clean the carpets on April 8, 2026. Id. On April 10, 2021, Brett replies saying “If more people are going to be in and out of the house we need to make sure they know about the nail boards at the entrances of the house. We are on the list to get the electric mats installed but haven’t got the start date yet.” Id. On April 12, 2021, Wilson responds, “Regarding the bear deterrent... We did already have an incident with the carpet cleaner who stepped on the nail pad when entering the house. I believe he is OK and he still was going to clean the carpet.... I am not sure how he didn’t see it.” Id. at p.

50. While the email from Brett was sent after the incident, he was informed that hired vendors would be visiting the house “next week”, and he responded three days later stating a need to alert any vendors of the mat, before being told of the incident. Therefore, there is no evidence or plausible argument Brett or Jeffrey, and, therefore, Patrice and the Fleming Trust, could potentially have an intent to touch or harm Plaintiff, in that the need for a warning was vocalized when informed visitors would be on the property. Plaintiff has failed to raise any issue of material fact that rebuts the evidence of the moving defendants.

The showing of intent in relation to civil battery requires more. Reckless disregard for the safety of others is not the equivalent to forgetting to warn even if you know you should. Acting willfully, including acting with reckless disregard for the safety of others, implies a conscious choice (“I know I should warn them, but I’m not going to”) or careless disregard for the safety of others (“I know someone is likely to get hurt, but I don’t care.”) Intent is willful action. Willfulness requires knowledge. Here, there is no evidence of substance the moving defendants intentionally failed to act (warn or remove the bear mat) “with knowledge that serious injury [was] a probable result, or with active disregard for the consequences.” Johns-Manville Sales

Corp., supra, at 930. In fact, the evidence shows the opposite is true – Brett told Wilson a warning should be made to vendors as soon as he was told they would be visiting the property.

Accordingly, the Fleming Defendants’ motion for summary adjudication as to the intentional tort of civil battery is granted.

Punitive Damages

The Fleming Defendants move for summary adjudication as to the prayer for punitive damages, arguing no reasonable jury could find Plaintiff’s evidence to be clear and convincing proof of malice, fraud, or oppression as required for any punitive damages claim against the Fleming Defendants. The Court agrees.

Civil Code section 3294 governs when punitive damages can be sought "[i]n an action for the breach of an obligation not arising from contract." This statute mandates, before punitive damages may be awarded, "it must be proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice." Civ. Code §3294(a). Moreover, the statute clearly defines each of these terms.

As used in this section, the following definitions shall apply: (1) "Malice" means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (2) "Oppression" means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights. causing injury. (3) “Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury. Civ. Code §3294(c).

"It is a prime rule of construction that the legislative intent underlying a statute must be ascertained from its language; if the language is clear, there can be no room for interpretation, and effect must be given to its plain meaning. [Citations.]'... The courts may not speculate that the legislature meant something other than what it said. Nor may they rewrite a statute to make it express an intention not expressed therein.' (Fns. omitted.) [Citation.]" J. R. Norton Co. v. Gen. Teamsters, Warehousemen & Helpers Union (1989) 208 Cal. App. 3d 430, 442-43 citing Hennigan v. United Pacific Ins. Co. (1975) 53 Cal.App.3d 1, 7.

Plaintiff asserts the installation of a device designed to inflict puncture injuries upon contact at the entryway to the residence raises triable issues of fact regarding whether Defendants created a dangerous condition on the property, whether the device was an impermissible mechanical trap, and whether maintaining such a device demonstrates conscious disregard for the safety of others. However, Plaintiff’s own opposition contradicts itself as to whether the bear mat was so dangerous it demonstrated a conscious disregard for the safety of others, or if it was an open and obvious condition. Plaintiff cites to evidence that Coldwell Banker agent Christine Curtis 6

“acknowledge that the protruding nails were visible and testified that the device appeared ‘pretty hard to miss.’” Opp. 8:28-9:1. While Plaintiff has presented some evidence of a hazardous condition, he fails to prevent substantial evidence the placement of the bear mat demonstrated a conscious disregard for the safety of others.

Malice

Malice means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. Code Civ. Proc. § 3294(c)(1) (emphasis added). Under the statute, malice does not require actual intent to harm. Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1299. Therefore, an allegation that a defendant intended to injure a plaintiff or acted in conscious disregard of her safety will suffice.

G.D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 32-33. Conscious disregard for the safety of another may be sufficient where the defendant is aware of the probable dangerous consequences of her conduct and she willfully fails to avoid such consequences. Pfeifer, supra, at 1299. Malice may be proved either expressly through direct evidence or by implication through indirect evidence from which the jury draws inferences. Id. Evidence establishing "conscious disregard" is evidence the defendant was aware of the probable consequences of their actions or inactions and willfully and deliberately failed to avoid those consequences.

Weisman v. Blue Shield of California (1984) 163 Cal.App.3d 61, 66-67.

At bar, the Fleming Defendants assert the failure to inform Plaintiff of the bear mat was not intentional nor did they ever intend to harm Plaintiff. The burden is then on Plaintiff to show evidence exists which might support a finding of clear and convincing evidence the Fleming Defendants acted with malice. By its very definition, malice requires an intentional act or failure to act. As indicated above, the Court finds there is no evidence the Fleming Defendants acted or failed to act intentionally or with willful and conscious disregard for the safety of Plaintiff. Thus, Plaintiff is unable to show by clear and convincing evidence or otherwise point to an issue of material fact which might provide such evidence.

Oppression

Oppression requires a showing of despicable conduct which causes a person to suffer "cruel and unjust hardship in conscious disregard of that person's rights." Civ. Code §3294(c)(2). By its very definition, oppression requires a showing of knowledge for, without knowledge, one cannot consciously disregard that knowledge. Again, as set forth above, there is simply no evidence Plaintiff can point to which creates an issue of material fact as to whether or not the Fleming Defendants acted with conscious disregard.

Fraud

Fraud requires "intentional" acts ("misrepresentation, deceit, or concealment of a material fact know to the defendant") with the intention to cause injury. Civ. Code §3294(c)(3) (emphasis added). Here, there is simply no evidence whatsoever the Fleming Defendants intended to cause injury to Plaintiff.

Therefore, the evidence is such that the Fleming Defendants neither intended to harm Plaintiff, nor can any failure to warn be equated, even arguably, with despicable conduct or conscious disregard.

Therefore, Fleming Defendants’ motion for summary adjudication as to the prayer for punitive damages is granted.

Conclusion

Accordingly and for the reasons set forth above, the Fleming Defendants’ motion for summary adjudication is GRANTED in its entirety.

6. CU0001681 Randy Ryan Agno et al vs. James L Gould, IV. et al

Demurrer / Motion to Strike Cross-Complainants’ Second Amended Cross-Complaint

Plaintiffs’/Cross-Defendants’ (“Plaintiffs”) demurrer to the second amended cross-complaint (“2ACC”) is OVERRULED in part and SUSTAINED WITH LEAVE TO AMEND as to counts five, six, seven, and eight. Cross-Complainants are granted leave to amend. Any amended pleading shall be filed and served no later than May 21, 2026. Plaintiffs’ motion to strike is denied without prejudice.

Request for Judicial Notice

Plaintiffs’ request for judicial notice of the Court’s December 19, 2025 Ruling on Plaintiffs’ request for preliminary injunction (“Ruling”) is granted.

“The trial court shall take judicial notice of any matter specified in [Evidence Code] Section 452 if a party requests it and: (a) Gives each adverse party sufficient notice of the request, through the pleadings or otherwise, to enable such adverse party to prepare to meet the request; and (b) Furnishes the court with sufficient information to enable it to take judicial notice of the matter.” Evid. Code § 453. Plaintiffs’ request for judicial notice is included as part of their moving papers rather than a separate request. While not procedurally proper, the Court finds the request gives Cross-Complainants’ sufficient notice of the request and sufficient information for the Court to enable it to take judicial notice of the document.

Judicial notice is limited to the fact that the documents were filed, but not of the truth of their contents. Williams v. Wraxall (1995) 33 Cal.App.4th 120, 130, fn. 7. “We may take judicial notice of the existence of judicial opinions and court documents, along with the truth of the results reached—in the documents such as orders, statements of decision, and judgments. Ibid. However, even if Plaintiffs expressly requested the court to take judicial notice of any particularly identified fact in the Ruling, judicial notice can “not properly be taken of the truth of the factual findings” of the trial judge.

Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1563. A finding of fact made after hearing cannot “be indisputably deemed to have been a correct finding,” because, ““[u]nder the doctrine of judicial notice, certain matters are assumed to be indisputably true, and the introduction of evidence to prove them will not be required.” (1 Witkin Cal. Evidence (3d ed. 1986) § 80.) Taking judicial notice of the truth of a judge's factual finding 8