Tentative Rulings

The Tentative Rulings for Wednesday, December 17, 2025 and Thursday, December 18, 2025 are:

Re:                Mackay, Phuong Le vs. Tulare County Federal Credit Union

Case No.:   PCU328395

Date:           December 17, 2025

Time:           1:30 P.M. 

Dept.           21-The Honorable Douglas W. Rodgers

Motion:     Plaintiffs’ Ex Parte Application Adopt and Extend/Re-Issue TRO, Reset OSC RE: Prelim Injunction, OSC RE Contempt

Tentative Ruling: To inquire as to service of this ex parte application; if served, the Court intends to issue a modified TRO, set the OSC re: preliminary injunction for January 6, 2026, 1:30 pm, Dept. 19, order the opposition due no later than December 24, 2025, order the reply due no later than December 31, 2025.

Facts

The verified complaint alleges causes of action for breach of contract, breach of implied covenant, wrongful foreclosure, Civil Code section 2943, unfair competition, declaratory relief and Civil Code section 2924.13.

The complaint names Tulare County Federal Credit Union and TD Processing Service, Inc. as Defendants.

The complaint was initially filed in Frenso County, but transferred here on November 21, 2025.

Plaintiffs, on October 17, 2025, filed an “Ex-Parte and Application for: an Order to Show Cause; a Temporary Restraining Order RE Preliminary and Permanent injunction and quiet title relief”

The court in Fresno County, on November 14, 2025 “extend[ed] the TRO to 12/11/2025…”

This Court, however, lacks a copy of this TRO, which the Court notes has expired as of the date of this hearing.

On December 11, 2025, filed this ex parte application to adopt and extend/re-issue the TRO via anew OSC hearing, to reset the OSC re: preliminary injunction for the earliest available date, maintain the status quo by halting any foreclosure sale, compel Defendants to endorse checks and “determine whether a violation has occurred…: Issue an Order to Show Cause directing Defendant to appear and explain why their conduct does not violate the stay/TRO; and After hearing, determine whether the Court’s order has been violated and, if so, impose such remedies or sanctions as the Court deems just, including orders compelling compliance and restraining further violations.”

Plaintiffs seek the issuance of the TRO/preliminary injunction based on breach of implied covenant, Civil Code § 2943, and Civil Code § 2924.13.

The declaration in support thereof states that Plaintiffs reside at 980 Laurel Avenue, Lindsay, CA 93247, where the junior lienholder is Defendant Tulare County Federal Credit Union (TCFCU) and the trustee is TD Processing Service, Inc. (Declaration ¶1.) Plaintiff indicates that in March 2023, the residence was damaged by a flood, that “NFIP issued loss-draft checks requiring lienholder endorsement for repairs. The USDA (first lien) requires a restricted repair escrow account for the funds to be deposited into, but TCFCU repeatedly refused to endorse for claimed technical reasons at first then retaliation for non-payment later, causing repeated check expirations, including the final one.” (Declaration ¶2.)

Further, that:

“Defendant TCFCU agreed to a five-month period moratorium from March to August 2023 after the flood. Plaintiffs were promised to be given a copy of the moratorium agreement but never actually received it. Later on, during communication via email on 09/13/2024, Damian Alvarez from TCFCU claimed the Credit Union only granted a three-month payment extension from May to August 2023, not five-month as we had agreed and noted. During and after that moratorium, we made multiple (approximately 10-month worth of non consecutive payments) but TCFCU failed to properly apply them. We requested an amortization schedule and payment history verbally over phone calls, during home visits without any notice given by Collection Manager Damian Alvarez, and in writing, but did not receive the statutory information.” (Declaration ¶3.)

Additionally, that “Fresno Superior Court extended our TRO through December 11, 2025. After venue transferred to Tulare, no OSC/PI date was set. During the time TRO is in effect, as early as 11/28/2025, I noticed there’s an auction for the property schedule for 12/18/2025. On the trustee’s public posting (Nationwide Posting & Publication) for TS No. 2025-10161, I observed the sale status reading “Postponed to: 12/18/2025 by Beneficiary’s request,” with the sale location at Entrance to City Hall, 411 East Kern Avenue, Tulare, CA 93274, at 2:00 PM.”

The Court notes that this ex parte application expressly seeks adjudication as to breach of implied covenant, Civil Code section 2943, and Civil Code section 2924.13 causes of action.

The Court notes no proof of service of the summons and complaint, and no proof of service of this ex parte application.

Defendants have not filed a responsive pleading to the verified complaint and have not appeared in this matter.

Service of this Ex Parte Application

As noted above, the Court lacks a proof of service of this ex parte application, Therefore, the Court must inquire first as to service.

If service was provided, the Court is prepared to rule as follows.

Adopt / Extend Prior TRO

“A party requesting a preliminary injunction may give notice of the request to the opposing or responding party either by serving a noticed motion under Code of Civil Procedure section 1005 or by obtaining and serving an order to show cause (OSC). An OSC must be used when a temporary restraining order (TRO) is sought, or if the party against whom the preliminary injunction is sought has not appeared in the action. If the responding party has not appeared, the OSC must be served in the same manner as a summons and complaint.” (California Rules of Court, rule 3.1150(a).)

Here, Defendants have not appeared in this matter and Plaintiffs seek a TRO and preliminary injunction. Plaintiffs, therefore, must obtain and serve an OSC.

The Court’s understanding is that the purpose of issuing the TRO is to maintain the status quo until a hearing on the preliminary injunction may take place, in this case through obtaining and serving an OSC.

Plaintiffs indicate that the Fresno Court issued the TRO and extended it to December 11, 2025, but that when this matter was transferred to Tulare County, no OSC was issued, no OSC could be therefore be served and no hearing as to the preliminary injunction was set.

The Court views these papers as requesting that this Court issue an OSC re: preliminary injunction so that Plaintiffs may serve Defendants, that the Court set a preliminary injunction hearing date and that, until that has occurred, to re-issue or continue the TRO that was initially in place.

The Court, therefore, is inclined to maintain the status quo and issue a TRO.

As to the proposed TRO, the Court will strike No. 3.

The Court will not require a bond as to the TRO.

As to the OSC, the Court sets the OSC re: preliminary injunction for January 6, 2026, 1:30 pm, Dept. 19.

The opposition shall be due no later than December 24, 2025.

Any reply shall be due no later than December 31, 2025.

As to the proposed OSC, the Court will strike No. 4, having issued a TRO above and will modify No. 5 to require personal service of this OSC, the moving papers and the TRO. The Court will strike No. 6. 

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

Re:                 Acosta, Tanner vs. Sequioa Beverage Company LP

Case No.:    VCU298896

Date:             December 18, 2025

Time:            8:30 A.M. 

Dept.             1-The Honorable David C. Mathias

Motion:       Motion for Final Approval of Class Action and PAGA Settlement

Tentative Ruling: To grant the motion, as modified herein; to set the final hearing regarding distribution for July 23, 2026; 8:30 am; D1.

Facts and Analysis

Plaintiff’s motion for final approval of class action and PAGA settlement, attorneys’ fees, costs, enhancement award, LWDA payment and class certification for settlement purposes came on for hearing on December 18, 2025.  The Court finds and rules as follows:

On September 8, 2023, the settlement administrator Phoenix, through its Case Manager, filed a declaration detailing the following events.

On July 1, 2025, the administrator  received a mailing list of 272 potential class members from Defendant’s counsel with names, contact information, social security numbers and relevant employment information. On July 29, 2025, after the administrator processed the names through the National Change of Address Database and updated the list with any updated addresses located, the administrator sent class notice by mail. Eighteen (18) notices were returned and updated addresses for twelve (12) of the eighteen (18) were obtained and notices were mailed. Therefore, six (6) notices have been deemed undeliverable.

Class members had sixty (60) days, until September 12, 2025 to submit objections, disputes and/or requests for exclusions. One (1) workweek dispute, zero (0) requests for exclusion and zero (0) valid objections have been received from the proposed class members. Therefore, all 272 proposed members or 100% will participate in the settlement.

The Court presumes the settlement is fair and reasonable given (a) that it was reached through arms-length bargaining at mediation, (b) that there was sufficient time for investigation and discovery since commencement of litigation (c) class counsel have particularized experience with the claims at issue in the case, and (d) there appear to be no disputes or objections.  (Dunk v. Ford Motor Co. (1996) 48 Cal.App.4^th 1794, 1802.) 

A net settlement amount of $502,015.43 is available to pay to the class members in accordance with the terms of settlement, with an average individual share of at least $1,845.64 per class member and the highest estimated share is $5,752.06. The Court believes basic information about the nature and magnitude of the claims in question and the basis for concluding that the consideration being paid for the release of those claims represents a reasonable compromise under the circumstances, in accordance with Kullar v. Foot Locker Retail, Inc. (2008) 168 Cal.App.4^th 116, 133.  This case involved extensive informal discovery and investigation of disputed claims, including review and analysis by Plaintiff’s expert.  The settlement avoids significant risks and delay that would result from further litigation of the case, which would include, amongst other matters, certification proceedings, trial, and the possibility of further delay and cost resulting from appeals.

Class counsel has provided updated declarations in support of the requests for attorney fees representing 35% of the $900,000 gross settlement or $315,000.

At preliminary approval, the Court approved a base lodestar of $237,110 based on 98.2 hours by Sweeny Law, PC at the rate of $725 and 288.8 hours by Lawyers for Justice, PC, at a blended rate of $600 per hour.

The declaration of Sweeny indicates 99.9 hours at the same rate, for an updated lodestar of $71,775. (Declaration of Sweeney ¶4.)

The declaration of Madoyan indicates  by Lawyers for Justice, PC has incurred 299.6 hours. (Declaration of Madoyan – Ex. 1.) The Court will apply the same blended rate of $600 per hour and calculates an updated lodestar of $179,760.

Therefore, the combined, updated lodestar is $251,535. To award the $315,000 as requested, the Court approves a 1.25 multiplier. Therefore, the fees are approved as requested.

Counsel has additionally provided sufficient cost information indicating actual costs incurred by Lawyers for Justice in the amount of $11,984.57, nearly all of the $15,000 the Court preliminarily approved.

The Court believes the requested attorney fees and costs appear reasonable under the circumstances. Additionally, counsel has provided a sufficient declaration to demonstrate adequate previous experience with class actions to further support the reasonableness of the award.

The settlement administrator has provided, in the declaration describing the work it has performed on the case a value of services totaling $6,000. The Court believes the amount requested as compensation for the administrator appears reasonable. 

The settlement agreement designates the distribution of unclaimed settlement proceeds to Bethlehem Center of Visalia California, in accordance with Code of Civil Procedure section 384.

The Court previously approved a representative payment of $5,000 without prejudice as to an increase to $7,500 per Plaintiff. In support of the increase, the declaration of Madoyan states:         

“Plaintiffs spent a substantial amount of time and effort discussing their employment with Class Counsel, gathering and providing relevant documents and information, and providing facts and evidence to support the prosecution of the claims. Plaintiffs were available whenever Class Counsel needed them and actively tried to obtain and provide information that would help obtain a recovery in this matter.”

Further, the declaration of Sweeney states the increased payment will result in a reduction of less than $2,000 to the net settlement amount, or a reduction of .3%, that the average settlement payment exceeds the $5,000 amount, and that Plaintiffs were “the only named Plaintiffs willing to prosecute this action.”

The Court again notes that these additional facts in support are typical of those presented to this Court in the majority of these matters, that the typical $5,000 award compensates Plaintiffs for these acts and the Court finds no basis to exceed the award of $5,000 each.

Finally, the Court confirms its conditional certification of the settlement class. The Court finds no significant events have occurred that would cause it to change its prior determination that the settlement class met all requirements under Code of Civil Procedure section 382 for certification for settlement purposes at the time it granted Plaintiff’s motion for preliminary approval.

On review of the declarations and pleadings submitted, the Court finds, given the established presumption that the settlement is fair and reasonable under the circumstances of this case, and, particularly, given the absence of any objection or opposition following the class notice, that the settlement is fair and reasonable and that the motion for final approval should be, and is hereby, granted.

Therefore, the following deductions from the gross settlement of $900,000 are approved as follows:

Approved Attorney Fees (35%):	$315,000.00
Approved Proposed Attorney Costs (incurred):	$11,984.57
Approved Enhancement Payment to Plaintiff Acosta:	$5,000.00
Approved Enhancement Payment to Plaintiff Jensen:	$5,000.00
Approved Settlement Administrator Costs	$6,000.00
Approved Total PAGA Payment	$50,000.00
Approved Net Settlement Amount	$507,015.43

The Court sets the final hearing regarding distribution for July 23, 2026; 8:30 am; D1.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

Re:                Becerra. Kevin vs. Pacific Distributing, Inc.

Case No.:  VCU293519

Date:          December 18, 2025

Time:          8:30 A.M. 

Dept.           1-The Honorable David C. Mathias

Motion:     Hearing re: Final Distribution

Tentative Ruling: On December 4, 2025, the settlement administrator, through its case manager, filed a declaration indicating that the deadline to cash the individual checks is January 3, 2026 and that, as of this declaration, four checks totaling $5,868.43 remain uncashed. Additionally, that the State Controller has requested that uncashed funds be held until July 30, 2026 before transmission. Therefore, the Court continues this matter to August 27, 2026; D1; 8:30 am.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

Re:                Anaya, Luis Alvarado vs. County of Tulare

Case No.:   VCU308194

Date:           December 18, 2025

Time:           8:30 A.M. 

Dept.           7-The Honorable David C. Mathias

Motion:     Defendant County of Tulare’s motion for summary judgment

Tentative Ruling:  The motion for summary judgment is denied. 

The County of Tulare moves for summary judgment in this auto accident case based on the sudden emergency doctrine.  Because the County fails to show the absence of a triable issue of fact regarding its essential contention that a sudden emergency was presented, the court finds summary judgment must be denied. 

A. BACKGROUND

The case arises from two separate motor vehicle collisions occurring approximately at 9:40 am on September 27, 2023. The collisions occurred on Highway 101 northbound in the area of Gilroy, California, a four northbound lane divided highway with a speed limit of 65 miles per hour, located in Gilroy, California.

Plaintiff Luis Anaya was driving his Kia Soul northbound on Highway 101 in the number two lane (lanes numbered left to right) when Yolanda Velasco, an employee of defendant County of Tulare, traveling in the number three lane in the County’s Chevrolet Malibu, sideswiped him while changing lanes into the lane he was in, impacting the rear passenger side of his vehicle with the front driver’s side of her vehicle. 

The collision caused Anaya to spin out of control across the highway lanes to the right and crash into a box truck driven by Gousheng Yao in the number four rightmost lane, where he was preparing to enter a truck station.

Velasco claims she made the lane change into the number three lane, which caused the collision with Anaya, to avoid a collision with defendant Christina Payan. 

Prior to the accident, Payan was traveling approximately 60 miles per hour in the number four lane.  Yao was driving the box truck ahead of her, traveling about 30 to 35 miles per hour.  According to Payan’s limited recollection, as she approached Yao, she initiated an attempt to go around him on the left, but observed a vehicle coming up behind her “very quickly” (it is disputed whether Payan identified Anaya’s vehicle as the vehicle coming up behind her quickly) and aborted her lane change attempt (Payan did not recall if she actually crossed into the number three lane). 

According to Velasco, Payan’s movement into, or towards, the lane in which she was traveling caused her to change over to the number two lane to avoid being hit by Payan, which is, in turn, where she collided with Anaya, sideswiping his vehicle.  

Based on these events, the County, in its answer, alleged a sudden emergency affirmative defense as follows:

“Defendants allege that the events, injuries losses, and damages complained of in the Complaint, if any there were, were the result of an unavoidable accident insofar as these answering Defendants are concerned and occurred without any negligence, want of care, default or other breach of duty to Plaintiff on the part of said Defendants.”

The County moves for summary judgment on the grounds that their “sudden emergency defense bars plaintiff’s negligence claim as a matter of law.”

B. ANALYSIS

Standards

A defendant “may move for summary judgment in an action or proceeding if it is contended that the action has no merit.”  (Code Civ. Proc., § 437c, subd. (a)(1).) 

A defendant meets his burden of showing that a cause of action has no merit if he has shown “that there is a complete defense to the cause of action.”  (Id., subd. (p)(2).)  “Once the defendant … has met that burden, the burden shifts to the plaintiff … to show that a triable issue of one or more material facts exists as to … [that] defense … . The plaintiff … shall not rely upon the allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to the … defense … .” 

The County, as moving defendant, “bears the burden of persuasion” on the affirmative defense upon which its motion is based.  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850 [107 Cal.Rptr.2d 841, 24 P.3d 493] (Aguilar), citing ibid. [formerly subd. (o)(2)] and Ev. Code, § 500 [“Except as otherwise provided by law, a party has the burden of proof as to each fact the existence or nonexistence of which is essential to the claim for relief or defense that he is asserting.”].)

Relatedly, the County, as a defendant moving for summary judgment on an affirmative defense, “ ‘… has the initial burden to show that undisputed facts support each element of the affirmative defense’ … [and] [i]f the defendant does not meet this burden, the motion must be denied.” [Citations.]’ ” (Shiver v. Laramee (2018) 24 Cal.App.5th 395, 400 [234 Cal.Rptr.3d 256] (Shiver), citing Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 467–468 [110 Cal. Rptr. 2d 627].)  

The “initial burden to show undisputed facts support each element of the affirmative defense” (ibid., emphasis), stated differently, is “an initial burden of production to make a prima facie showing” (Aguilar, supra, 25 Cal.4th at p. 850, emphasis) that supports each element of the defense. 

If the County meets its burden of establishing all elements of its affirmative defense—but only if the County meets its burden—“the burden shifts to the plaintiff to show there is one or more triable issues of material fact regarding the defense … . [Citations.]” (Jessen v. Mentor Corp. (2008) 158 Cal.App.4th 1480, 1484–1485 [71 Cal. Rptr. 3d 714].)

Sudden emergency doctrine

“Under the ‘sudden emergency’ or ‘imminent peril’ doctrine, ‘a person who, without negligence on his part, is suddenly and unexpectedly confronted with peril, arising from either the actual presence, or the appearance, of imminent danger to himself or to others, is not expected nor required to use the same judgment and prudence that is required of him in the exercise of ordinary care in calmer and more deliberate moments.’ ‘A party will be denied the benefit of the doctrine … where that party’s negligence causes or contributes to the creation of the perilous situation.’ ” (Abdulkadhim v. Wu (2020) 53 Cal.App.5th 298, 301-302 [266 Cal.Rptr.3d 636] (Abdulkadhim), internal citations omitted.)

Accordingly, the elements of the “sudden emergency” defense that the County of Tulare must establish to prevail on its motion are (1) that there was a sudden and unexpected emergency incident to Payan’s attempted lane change such that there was actual or apparent danger of immediate injury; (2) that Velasco did not cause the emergency; and (3) that Velasco acted as a reasonably careful person would have acted in similar circumstances, even if it appears later that a different course of action would have been safer.  (Cal. Judicial Council Civil Jury Instructions (2024), CACI No. 452; Shiver, supra, 24 Cal.App.5th at p. 399; Schultz v. Mathias (1970) 3 Cal.App.3d 904, 912-913 [83 Cal.Rptr. 888]; Damele v. Mack Trucks, Inc. (1990) 219 Cal.App.3d 29, 37 [267 Cal.Rptr. 197] (Damele).)

Generally, “[w]hether the conditions for application of the imminent peril doctrine exist is … a question of fact to be submitted to the jury” (Damele, supra, 219 Cal.App.3d at p. 37).   The County establishes entitlement to summary judgment only if it makes an uncontradicted showing that would require a reasonable jury to conclude that the defense bars the plaintiff’s negligence claim (see Aguilar, supra, 25 Cal.4th at p. 851). 

The County’s Initial Showing

The County presents a CHP report; excerpts from depositions of Anaya, Velasco, Payan, and Officer Kyle Dodge; the County’s and Velasco’s responses to Requests for Admissions served on them by Anaya; Velasco’s supplemental responses to special interrogatories served on her by the plaintiff; and Payan’s responses to special interrogatories served on her by Yao.  Additionally, the County submits an expert declaration of Robert Snook, an accident reconstruction expert. 

Sudden, unexpected emergency

The County begins its argument that its motion makes a prima facie showing that Velasco was presented with a sudden and unexpected emergency incident to Payan’s attempted lane change by extensively discussing Abdulkadhim, supra, which the County asserts is supportive of its position. 

In Abdulkadhim, Jasim Al-Kuraishi was killed in a car accident and sued several defendants.  Al-Kuraishi was driving 70 miles per hour on Interstate 10 and, ahead of him, defendant Tommy Wu was driving 60 to 70 miles per hour.  Wu saw a car stopped in the lane 20 to 30 car lengths ahead of him and changed lanes to go around it.  He passed the stopped car going 40 to 50 miles per hour when he saw Al-Kuraishi crash into the stopped car behind him.  Al-Kuraishi was killed in the accident.  Abdulkadhim, on behalf of decedent Al-Kuraishi, initially sued the drivers and owners of the stopped car, and another car that hit Al-Kuraishi after he collided with the stopped car, but then later also substituted in Wu as a defendant.  Wu moved for summary judgment, which the trial court granted based on the sudden emergency doctrine.  (Id., at p. 300.)

Abdulkadhim claimed on appeal that “Wu created the emergency by changing lanes at an unreasonably late time for Al-Kuraishi to see [the] car stopped ahead of him and respond.”  (Id., at p. 302.) 

Wu argued the sudden emergency was the stopped car “in a lane of traffic moving at highway speed.”  (Ibid.)

The court agreed with Wu, explaining that “[i]t [was] irrelevant for purposes of the sudden emergency doctrine whether Wu's lane change created a dangerous situation for Al-Kuraishi or anyone else; the only relevant emergency is the one Wu faced.”  (Ibid., italics in original.)

The County likens this case to Abdulkadhim, asserting that, here, “the sudden emergency doctrine applies because of the sudden emergency created by Ms. Payan’s unsafe lane change,” and that “[i]t is irrelevant whether Ms. Velasco’s lane change created a dangerous situation in itself.”

The County presents a strawman, here, skipping past the fundamentally disputed issue of whether Payan’s lane change, or lane change attempt—in either event, the emergency the County asserts Velasco faced—created a sudden emergency. 

It is the County’s burden, however, as the moving party on summary judgment, to present evidence establishing that Payan’s lane change, or lane change attempt, created a sudden emergency, and, until she does, it is immaterial what Anaya’s contentions might be as to what event constituted the sudden emergency. 

The County attempts to meet this burden principally by way of the deposition testimony of Velasco.  The court finds that Velasco’s testimony does not, however, establish the County’s “sudden emergency” defense given her limited recollection of critical details. 

Velasco did not recall the position of Payan’s vehicle when she was changing lanes, could not recall if Payan’s vehicle crossed over into her lane, could not recall her speed or what the speed limit was, and couldn’t recall if she looked over her shoulder before changing lanes.

While, as the County argues in their reply, Velasco’s difficulty remembering details from the accident does not mean she did not face a sudden emergency, it is ultimately the County’s burden to conclusively establish that she did.   Given the County’s limited showing, Velasco’s credibility and the weight to afford her testimony in determining whether Payan created a sudden emergency are issues that remain for determination by the jury.  

The court additionally notes that the County, though it does not state so expressly in its brief, appears to rely somewhat on deposition testimony of Payan to establish the existence of a sudden emergency.  They assert in their separate statement that Payan confirmed, based on her discovery responses and deposition testimony, that she crossed over into the lane in which Velasco was driving. 

Payan, the court notes, however, only specifically recalled that she activated her turn signal, but did not recall whether any part of her tire crossed over the lane line. 

To the extent the County means to present this evidence as requiring a reasonable jury to conclude, in the absence of contrary evidence, that Payan created a sudden emergency, the court finds the evidence insufficient given the limited extent of Payan’s recollection of the events at issue. 

Whether Velasco acted reasonably

Although the County’s failure to meet its burden with regard to the existence of a sudden emergency is fatal to their motion, the court additionally finds that the County fails to meet its burden to establish that Velasco acted reasonably under the circumstances. 

The court recognizes that, where a sudden emergency is established, it follows that the party asserting a sudden emergency defense “ ‘cannot reasonably be held to the same conduct as one who has had full opportunity to reflect, even though it later appears that he made the wrong decision, which no reasonable man could possibly have made after due deliberation,’ ” and that “ ‘[t]he test is whether the actor took one of the courses of action which a standard man in that emergency might have taken, and such a course is not negligent even though it led to an injury which might have been prevented by adopting an alternative course of action.’ ” (Schultz v. Mathias (1970) 3 Cal.App.3d 904, 912 [83 Cal.Rptr. 888], citations omitted.)

Here, the County apparently relies exclusively on the limited deposition testimony of Velasco and Payan. 

A threshold problem, first, is that the County does not cite any of the facts in their separate statement, or reference any submitted evidence in their memorandum, so it is not exactly clear what evidence they specifically rely upon. 

The court assumes, though, that the County relies on Velasco’s and Payan’s deposition testimony because that testimony is the only evidence submitted by the County that provides any percipient account of the events relating to the accident.

Because, again, however, Velasco’s and Payan’s deposition testimony includes such limited factual detail concerning the events at issue, that evidence cannot suffice for the County to meet its initial burden to establish that Velasco took one of the courses of action which a standard person in the emergency—assuming, arguendo, one was presented—might have taken.

Expert Testimony

The County’s submission of expert testimony, the court notes, does nothing to support their position on summary judgment. 

Snook merely opined: “An analysis of the EDR data and tire friction marks as observed on the CHP dash cam video confirm the Kia’s sudden change in direction consistent with the vehicle ‘spinning out of control’ as described by Mr. Anaya and the witnesses in their deposition testimony.” No other opinions or conclusions were made by this expert.

Needless to say, Snook’s declaration does not support any of the elements of the County’s sudden emergency defense. 

C. CONCLUSION

Because the County fails to meet its initial burden, its motion for summary judgment is denied.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

Re:               Cavalry SPV I, LLC vs. Diaz, Daniel

Case No.:    VCL317360

Date:            December 18, 2025

Time:           8:30 A.M. 

Dept.           1-The Honorable David C. Mathias

Motion:      Defendant’s Counsel’s Motion to be Relieved as Counsel

Tentative Ruling: To deny the motion without prejudice.

Facts

On October 14, 2025, Counsel Dustin Young filed a motion to be relieved as counsel as to Defendant Daniel Diaz. Counsel filed the following with respect to withdrawing:

(1) MC-051 - Notice of Motion and Motion to be Relieved as Counsel;

(2) MC-052 – Declaration in Support of Attorney's Motion to Be Relieved as Counsel; and

(3) MC-053 - Order Granting Attorney's Motion to Be Relieved as Counsel

Additionally, Counsel has filed proofs of service of these documents by mail.

Authority and Analysis

Code of Civil Procedure section 284 provides that “[t]he attorney in an action or special proceeding may be changed at any time before or after judgment of final determination, as follows: 1. Upon the consent of both client and attorney, filed with the clerk, or entered upon the minutes; [or] 2. Upon the order of the court, upon the application of either client or attorney, after notice from one to the other.”

California Rule of Court 3.1362(a) requires that the “notice of motion and motion to be relieved as counsel under Code of Civil Procedure section 284(2) must be directed to the client and must be made on the Notice of Motion and Motion to Be Relieved as Counsel-Civil (form MC-051).”

As noted above, Counsel has complied with California Rule of Court 3.1362(a) by submitting the notice and motion on MC-051 and by directing the notice and motion to all parties. 

California Rule of Court 3.1362 (c) further mandates that: “The motion to be relieved as counsel must be accompanied by a declaration on the Declaration in Support of Attorney's Motion to Be Relieved as Counsel--Civil (form MC-052).

The declaration must state in general terms and without compromising the confidentiality of the attorney-client relationship why a motion under Code of Civil Procedure section 284(2) is brought instead of filing a consent under Code of Civil Procedure section 284(1). Specifically, the declaration that Rule 3.1362(c) requires must state that the moving attorney attempted to secure a “Substitution of Attorney” from the client as required under CCP §284(1) and that the client refused to so stipulate.

Here, the declaration is properly made on form MC-052 and uses general terms without compromising confidentiality.

However, the declaration is silent as to an attempt to first secure a “Substitution of Attorney” and that the client refused to so stipulate. Absent this information, the Court cannot grant the motion.

Next, service under Rule 3.1362(d) requires personal service, electronic service, or mail and counsel’s declaration must note the service made. Here, service was by mail, return receipt requested, on October 14, 2025.

Finally, Rule 3.1362(e) requires the proposed order be lodged with the Court on MC-053 with the moving papers, specifying all hearing dates scheduled, including date of trial. Counsel has complied with this requirement.

The Court denies, without prejudice, Defendant’s Counsel’s Motion to Withdraw as to Defendant based upon the lack of compliance with California Rule of Court 3.1362(c) with respect to attempting to obtain a “Substitution of Attorney” prior to moving to withdraw and reflecting such efforts in the declaration. 

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

Re:                Almega Partners, LLC vs. Lil' Wave Financial, Inc.

Case No.:  VCU301737

Date:          December 18, 2025

Time:          8:30 A.M. 

Dept.          1-The Honorable David C. Mathias

Motion:       (1) Defendants’ Motion for Summary Judgment or in the alternative Summary Adjudication; Defendant Jones’s Motion to Compel Further Responses to (2) Form Interrogatory No. 17.1 and (3) Requests for Production of Documents, Set One.

Tentative Ruling:  

(1):

• To grant summary adjudication as to Issue Nos. 1 through 4 as to the first cause of action for wrongful foreclosure;
• To grant adjudication as to Issue No. 7 as to the second cause of action for fraudulent conveyance; to find this issue dispositive to this cause of action and to decline to rule on Issues Nos. 6, 8, and 9;
• To grant adjudication as to Issue No. 10 as to the third cause of action for slander of title;
• To grant adjudication as to Issue No. 11 as to the fourth cause of action for violation of Civil Code section 1572; to find this issue dispositive to this cause of action and to decline to rule on Issue No. 12;
• To grant summary adjudication as to Issue Nos. 13 and 14 as to the sixth cause of action for Business and Professions Code section 17200;
• To grant summary adjudication as to Issue No. 15 as to the seventh cause of action for violation of Truth in Lending Act; to find this issue dispositive to this cause of action and to decline to rule on Issue No. 16;
• To grant summary adjudication of Issue No. 17 to the eighth cause of action for intentional misrepresentation; to find this issue dispositive to this cause of action and to decline to rule on Issue No. 18;
• To grant summary adjudication as to Issue Nos. 19 and 20 as to personal liability.

The Court notes there is no fifth cause of action pled.

The cumulative effect of this ruling is to grant summary judgment on the complaint.

(2) and (3) To find these motions moot by the ruling on summary judgment

(1) Defendants’ Motion for Summary Judgment or in the alternative Summary Adjudication

Background Allegations

Plaintiff’s complaint contains causes of action for (1) wrongful foreclosure, (2) fraudulent conveyance, negligent accounting, and deceptive practices (3) slander of title, (4) violation of California Civil Code section 1572 (5) [There is no fifth cause of action as pled, see Complaint ¶¶76-88] (6) Business and Professions Code section 17200, (7) violation of Federal Truth in Lending Act and (8) intentional misrepresentation.

The complaint alleges Plaintiff is the lawful owner of 13223 Avenue 80 Pixley, CA 93256 (“Subject Property” or “Midblock Lot”), that Defendant Lil Wave Financial Inc. dba Superior Loan Servicing (“Defendant SLS”) serviced a mortgage account designated RMF30877, that Defendant Scott Jones, M.D., initiated a foreclosure on the Subject Property on or around April 18, 2022 and that Defendant SLS misapplied a remittance of $46,667.61 to another distinct property of Plaintiff. (Complaint ¶¶16-18.)

The complaint alleges further that Defendant, Harry Harari, is an individual currently serving as the President of Defendant SLS and Defendant, Scott Hacker, is an individual currently holding the positions of COO and VP at Defendant SLS. (Complaint ¶¶7-8.)

The complaint further alleges non-compliance with California Civil Code §§2924, 2923.5, and 2923.6 during the foreclosure. (Complaint ¶22.)

Further, it is alleged “Notwithstanding the Trustee’s Deed proclaiming a payment exceeding $46,000 by Dr. Jones for Lot 9 (associated with Loan #30877), no such transaction has been identified. Instead, a payment from the Plaintiff, intended for another account i.e., Lot 8 (associated with Loan #30950), was redirected by SLS without transparent accounting.” (Complaint ¶23.)

The complaint further alleges missing cash payments in the amount of $78,387.11. (Complaint ¶26.)

Defendants’ Motion for Summary Judgment

Material Facts

Against this background, Defendants Jones, SLS, Harari and Hacker (“Defendants”) move for summary judgment, or summary adjudication of 20 issues, on the complaint.

In support, Defendants provide the following facts:

On April 6, 2017, Defendant Jones loaned the Plaintiff $44,000.00 (Loan No. RMF30877 or the “Midblock Loan”) which was secured by the Subject Property or the “Midblock Lot.” (UMF No. 3.) The Midblock Lot was a vacant lot, with no structure (neither residential or commercial) on the lot. (UMF No. 3.) Plaintiff represented that the Midblock Loan was taken out for “business purposes” (UMF No. 3.)

On May 17, 2017, Defendant Jones further loaned the Plaintiff $34,000.00 (Loan No. RMF30950 (the “Corner Lot Loan”) which was secured by the real property known as 13209 Avenue 80, Pixley, California 93256, APN No. 316-230- 001 (the “Corner Lot”). (UMF No. 4.) The Corner Lot was a vacant lot, with no structure (neither residential or commercial) on the lot. (UMF No. 4.) The Plaintiff represented that the Corner Lot Loan was also taken out for “business purposes.” (UMF No. 4.)

Both the Midblock Loan and the Corner Lot Loan (“Loans”) required the Plaintiff to make monthly payments, and a balloon payment to pay off the loans at the end of the two-year initial terms of the Loans. (UMF No. 4.)

Midblock Loan

The Midblock Loan funded on April 19, 2017 in the amount of $44,000. (UMF No. 5.) The Midblock Loan’s original maturity date was May 1, 2019. (UMF No. 5.)  The Midblock Loan was identified by SLS with Lender’s loan number RMF30877. (UMF No. 5.) Defendant SLS was responsible for servicing the Midblock Loan. (UMF No. 5.)

The Midblock Loan required the Plaintiff to make monthly partially amortizing payments of $443.39 beginning on June 1, 2017, until maturity on May 1, 2019, at which time a balloon payment of all outstanding amounts owed under the Midblock Loan was due. (UMF No. 5.) The Plaintiff made payments on the Midblock Loan for all months through April of 2019, with the last payment of the original term of the Midblock Loan received by SLS on April 23, 2019 (Check #83862.) (UMF No. 6.)

Near the end of the Midblock Loan’s original term, SLS informed Jones that the Plaintiff requested to extend the maturity date, which  Defendant Jones accommodated and entered into a Loan Extension/Modification Agreement with the Borrower dated April 15, 2019 (the “First Extension Agreement”) which extended the maturity date for six months from May 1, 2019 to November 1, 2019 (the “First Extension Period.”) (UMF No. 7.)

Under the First Extension Agreement the Plaintiff was charged a $100 extension fee and a $495 extension documentation fee. (UMF No. 7.) The monthly payment during the First Extension Period remained at $443.39 and Plaintiff confirmed the outstanding principal balance due of $43,897.74 (UMF No. 7.)

Plaintiff made the monthly payments during the First Extension Period, with the last check received by SLS on October 10, 2019 (Check #704728). However, the Plaintiff did not pay off the loan balance at its extended maturity of November 1, 2019. (UMF No. 8.)

The Plaintiff, after the Midblock Loan maturity date of November 1, 2019, continued to make 9 monthly payments of $433.39 totaling $3,900.51 which were received by SLS and placed in a reserve account (the “Trust Account”) as these payments were partial payments made after the maturity date of the Midblock Loan. (UMF No. 9.) Defendants state all of these payments were accounted for by SLS and properly credited to the Borrower’s Midblock Loan account. (UMF No. 9.)

Although Plaintiff made monthly payments after November 1, 2019, the entire Midblock Loan balance was due on November 1, 2019 and therefore Plaintiff was still in default under the Midblock Loan. (UMF No. 10.)

Even though the Plaintiff was in default as of November 1, 2019, Jones did not immediately begin foreclosure proceedings against Plaintiff. (UMF No. 11.)  On July 22, 2020, Defendant SLS recorded a Notice of Default concerning the Midblock Loan on Jones’s behalf as lender. (UMF No. 11.) The amount due under the Notice of Default on the Midblock Loan as of July 20, 2020 was $56,972.36. (UMF No. 11.) A Notice of Trustee’s Sale was recorded by SLS on November 12, 2020, with a sale date noticed for December 14, 2020. (UMF No. 11.)

Prior to the foreclosure sale on the Midblock Loan, Plaintiff requested, and Jones granted, a second extension of the maturity date for the Midblock Loan. (UMF No. 12.)  Jones instructed SLS to cancel the foreclosure sale and prepare a second Loan Extension/Modification Agreement dated December 14, 2020. (UMF No. 12.) The Second Extension Agreement extended the maturity date of the Midblock Loan from November 1, 2019 to December 1, 2021. (UMF No. 12.) In the Second Extension Agreement, it was confirmed by Plaintiff that the principal amount due on the Midblock Loan was $43,892.96. (UMF No. 12.) The monthly payment on the Midblock Loan remained at $443.39 per month. (UMF No. 12.)

As a condition precedent to entering into the Second Extension Agreement, the Borrower was required to wire certain funds as described in Section 7 of the Second Extension Agreement. (UMF No. 12.)

Pursuant to paragraph 7 of the Second Extension Agreement, the Borrower wired $20,030 (which amount included a $30.00 wire fee) to SLS, which SLS received on December 11, 2020. (UMF No. 13.)

SLS acknowledges that it received the funds into the account for the Corner Lot Loan (Loan RMF30950) rather than the Midblock Loan as required by the Second Extension Agreement. (UMF No. 13.) SLS initially logged the wired funds into the Corner Lot Loan (Loan RMF30950), but then transferred the funds to the Midblock Loan (Loan RMF30877.) (UMF No. 13.) SLS’s consolidated account statement shows that all amounts in trust were then applied to the Midblock Loan (charges, late charges, principal), and the Trust Account balance for the Midblock Loan went back to zero at the end of December 2020. (UMF No. 13 - Exhibit 13.)

Because the Borrower satisfied the conditions precedent for the Second Extension Agreement, Jones instructed SLS to record a Notice of Recission of the active notice of default on December 28, 2020. (UMF No. 13.)

After entering into the Second Extension Agreement for the Midblock Loan, the Borrower made the monthly payments required on the Midblock Loan during the Second Extension Period up through November 2021 and the last payment received by SLS on the Midblock Loan was on November 2, 2021. (UMF No. 14.)

On October 27, 2022, foreclosure proceedings were commenced with the recording of a Notice of Default on October 27, 2022, with the amount due of $39,987.25 as of October 25, 2022. (UMF No. 15.) The Notice of Trustee’s Sale was recorded on March 15, 2023 setting a sale date of April 11, 2023. (UMF No. 15.)

For the post-maturity period after December 1, 2021, the Plaintiff did not make any further payments on the Midblock Loan and Plaintiff requested a payoff demand statement for the Midblock Loan from Defendant SLS. (UMF No. 15.)

On April 13, 2023, SLS provided the Plaintiff with a payoff demand for the Midblock Loan (Loan RMF30877), stating the total payoff amount was $46,290.40 as of April 26,2023 with interest accruing at $14.77/day thereafter. (UMF No. 15.)

Plaintiff failed to pay off the Midblock Loan prior to the scheduled foreclosure sale, and the Midblock Lot went to foreclosure on the postponed foreclosure sale date of April 27, 2023. (UMF No. 16.)

At the foreclosure sale, Defendant Jones made a credit bid of $46,119.94 and title to the Midblock Lot reverted to Jones’s IRA as the beneficiary. (UMF No. 16.)  A Trustee’s Deed Upon Sale was recorded on May 1, 2023 transferring title of the Midblock Lot to Jones’s IRA, which is the current owner of the Midblock Lot. (UMF No. 16.)

Corner Lot Loan

On May 17, 2017, Defendant Jones made the Corner Lot Loan to the Plaintiff in the amount of $34,000 out of funds from Jones’s IRA. (UMF No. 18.) The Corner Lot Loan funded on May 26, 2017. (UMF No. 18.) The Corner Lot Loan’s original maturity date was June 1, 2019. (UMF No. 18.) The Corner Lot Loan was identified with SLS’s loan number RMF30950 and was secured by a Deed of Trust on the property located at 13209 Avenue 80, Pixley California 93256 (APN 316-230-001.) (UMF No. 18.)

Defendant SLS serviced the Corner Lot Loan on behalf of Jones, with the monthly payment of $342.62 starting July 1, 2017 and maturing on June 1, 2019, at which time a balloon payment was due with respect to all outstanding amounts owed. (UMF No. 19.) Exhibits 25 and 26 accurately reflect all payments received by SLS on the Corner Lot Loan and which were posted to the Plaintiffs account for the Corner Lot Loan. (UMF No. 20.)

Plaintiff deposited $2,123.66 at the start of the Corner Lot Loan to cover the odd days start and six prepaid payments (odd days May 26, 2017 — June 1, 2017 $67.94 plus 6 prepaid payments $2,055.72 = $2,123.66.) (UMF No. 21.) This payment was put in the Trust Account for the Corner Lot Loan and was disbursed for the first six-month’s payments. (UMF No. 21.) Plaintiff continued to make payments for all months through May of 2019, with the last payment made under the original terms received by SLS on May 9, 2019 (Check #0085024.) (UMF No. 21.)

The Plaintiff failed to pay the Corner Lot Loan at its maturity on June 1, 2019, and requested that the Defendant Jones extend the maturity date. (UMF No. 22.) Defendant Jones and Plaintiff entered into a Loan Extension/Modification Agreement dated June 25, 2019 which extended the maturity from June 1, 2019 to December 1, 2019 (the “First Extension Agreement”) (UMF No. 22.) Under the First Extension Agreement Plaintiff was charged a $100 extension fee and $495 extension documentation fee. (UMF No. 22.) The monthly payment remained at $342.62 and Plaintiff confirmed the outstanding principal balance of the Corner Lot Loan was $33,908.14. (UMF No. 22.)

Plaintiff made monthly payments during the First Extension Period of June 1, 2019 through December 1, 2019 and SLS received the last payment from Plaintiff November 4, 2019 (Check #99343.) (UMF No. 23.) Plaintiff did not pay off the Corner Lot Loan at its extended maturity date of December 1, 2019. (UMF No. 23.)

Despite being in default for failing to pay off the Corner Lot Loan at the first extended maturity date of December 1, 2019, the Plaintiff continued to make monthly payments. (UMF No. 24.) The Plaintiff made 7 additional payments of $342.62 for a total amount of $2,398.34. (UMF No. 24.) All payments were accounted for by SLS and credited to Borrower’s loan account. (UMF No. 24.) SLS received various postmaturity payments, but the entire balance on the Corner Lot Loan was due December 1, 2019, and the post maturity payments did not cure this default. (UMF No. 24.)

A Notice of Default was recorded on August 3, 2020 concerning the Corner Lot Loan. (UMF No. 25.) The amount due under the Notice of Default was $43,914.65 as of July 31, 2020. (UMF No. 25.) A Notice of Trustee’s Sale was recorded on November 20, 2020 and identified a sale date of December 21, 2020. (UMF No. 25.)

Thereafter, Plaintiff and Jones entered into a second Loan Extension/Modification Agreement dated December 22, 2020 (the “Second Extension Agreement”) (UMF No. 26.)  The Second Extension Agreement extended the maturity date of the Corner Lot Loan from December 1, 2019 to December 1, 2021. (UMF No. 26.) In the Second Extension Agreement, Plaintiff confirmed the balance due of $33,892.62.  (UMF No. 26.) The monthly payments under the Second Extension Agreement remained at $342.62 per month and as a condition precedent to the Second Extension Agreement becoming effective, the Plaintiff  was required to wire certain funds. (UMF No. 26.)

The Plaintiff sent a $8,555.46 wire received by SLS on December 14, 2020 which satisfied the payment required by Section 7 of the Second Extension Agreement because $2,398.44 in payments had been received and put in reserves prior to the agreement ($2,398.44 + $8,555.46 = $10,953.90.) (UMF No. 27.)

All amounts in trust were then applied to the Corner Lot Loan and the Trust Account balance went back to zero at the end of January 2021. (UMF No. 27.) The funds from the December 14, 2020 wire of $8,555.46 were allocated and disbursed as required by paragraph 7 of the Second Extension Agreement. (UMF No. 27.) Due to the Borrower’s satisfaction of the condition precedent for the Second Extension Agreement, the a Notice of Recission of the active notice of default was recorded on January 29, 2021. (UMF No. 27.)

Plaintiff made monthly payments during the Second Extension Period (December 1, 2019 to December 1, 2021) up through November of 2021 and SLS received the last payment from Plaintiff on November 1, 2021 (Check # 737275102.) (UMF No. 28.)

The Plaintiff again failed to pay off the Corner Lot Loan at its extended maturity date of December 1, 2021. (UMF No. 29.) Defendant Jones restarted foreclosure proceedings by recording a new Notice of Default on October 27, 2022. (UMF No. 29.) The amount due under the Notice of Default was $43,428.73 as of October 25, 2022 and for the post-maturity period (after December 1, 2021) and no further payments were made by the Plaintiff on the Corner Lot Loan. (UMF No. 29.)

Plaintiff requested that SLS provide it with a payoff demand for the Corner Lot Loan (Loan RMF30950) and on April 14, 2023 SLS provided Borrower with a payoff demand statement, indicating the payoff amount was $46,657.61 with $16.60/per diem interest, and a payoff date of May 1, 2023. (UMF No. 30.)

Plaintiff remitted a wire to SLS on April 18, 2023 for $46,657.61, along with information that referenced the Corner Lot Loan (Loan RMF30950) and which paid off the Corner Lot Loan. (UMF No. 30.) A Notice of Rescission of Notice of Default was recorded on April 20, 2023. Plaintiff is the current owner of the Corner Lot, 13209 Avenue 80, Pixley California 93256 (APN 316-230-001.) (UMF No. 30.)

All payments SLS received from the Plaintiff were logged into SLS’s accounts and were appropriately credited to outstanding charges, fees, and/or principal reductions regarding the Loans. (UMF No. 31.)

Defendant SLS did not receive any payments in “cash” from the Borrower and SLS does not accept payments made in “cash” on any of the loans it services. (UMF No. 31.)

Defendant Jones never received any payments on either the Midblock Loan or the Corner Lot Loan directly from Plaintiff, and never received any payments from Plaintiff in cash. (UMF No. 32.)

Opposition and Additional Facts

The Court notes that Plaintiff contests a number of the facts noted above. Plaintiff states that post-maturity dates payments on the Midblock Loan, which were accepted and placed into a reserve Trust account is acceptance of post maturity performance and waiver of default. (Plaintiff’s Dispute to UMF Nos. 8, 9, 10, 11, 14, 15, 16, 22, 24, 25, 28.) Additionally, Plaintiff states that various payments, including the $20,300 and $8,555.46 were misapplied, including reconciling the $20,300 payment between the loan accounts. (Plaintiff’s Dispute to UMF Nos. 8, 9, 10, 11, 14, 15, 16, 22, 24, 25, 28.) Plaintiff disputes further than no transfer of the $20,300 was made between from the Corner Lot Loan to the Midblock Loan on Exhibit 13. (Plaintiff’s Dispute to UMF Nos. 12, 13.) These attempts to dispute the UMFs noted above are repeated throughout the separate statement and addressed below in greater detail.

Miscellaneous

The Court notes a number of filing and service issues as to the initial hearing on this matter. The Court, at that hearing and a number of hearings following it, reset the summary judgment date and permitted Plaintiff to file the original documents in opposition to the summary judgment motion.

The Court notes Plaintiff has filed a “supplemental” declaration signed November 22, 2025 by Jackson. This goes beyond the Court’s directive at the prior hearings, the Court has not considered this supplemental declaration and any new evidence presented, and the Court sustains Defendants’ objections thereto as noted below.

Additionally, both parties have filed what are effectively sur-replies based on the Court’s prior tentative ruling. The Court has reviewed these filings.  

Objections

As noted above, the Court sustains Defendants’ objections to the November 22, 2025 supplemental declaration.

As to the “amended declaration” executed with the initial opposition to the motion, the Court declines to rule on Nos. 1, 2, 3, 4, 5, and 6 pursuant to Code of Civil Procedure section 437c(q), as these are asserted against evidence which the Court does not deem to be relevant to the disposition of this motion.

The Court sustains Objection Nos. 7 and 8 as to Exhibit D as lacking foundation.

The Court sustains Objection Nos. 9-13 as lacking foundation, conclusory and speculative.

The Court sustains Objection Nos. 14 – 17, all of which involve references to a report alleged to have been prepared by a forensic accountant. However, there is no declaration from such a person, no qualification of the expert, no authentication of the reports and the Court cannot consider them as evidence.

As to Nos. 18, 19, 20, 21, 22, 23, 24, 25 and 26, the Court sustains the objections on grounds of an improper compilation by an unknown person, as to both the statements in the declaration and supporting exhibits.

Authority and Analysis

A party may move for summary judgment in any action or proceeding if it is contended the action has no merit or that there is no defense to the action or proceeding. (Code Civ. Proc. § 437c(a).) “The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.” (Code Civ. Proc. § 437c(f)(1).) If a party seeks summary adjudication as an alternative to a request for summary judgment, the request must be clearly made in the notice of the motion. (Gonzales v. Superior Court (1987) 189 Cal.App.3d 1542, 1544.)  “[A] party may move for summary adjudication of a legal issue or a claim for damages other than punitive damages that does not completely dispose of a cause of action, affirmative defense, or issue of duty pursuant to” subdivision (t). (Code Civ. Proc. § 437c(t).) 

To prevail, the evidence submitted must show there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Code Civ. Proc. § 437c(c).) The motion cannot succeed unless the evidence leaves no room for conflicting inferences as to material facts; the court has no power to weigh one inference against another or against other evidence. (Murillo v. Rite Stuff Food Inc. (1998) 65 Cal.App.4th 833, 841.) In determining whether the facts give rise to a triable issue of material fact, “[a]ll doubts as to whether any material, triable, issues of fact exist are to be resolved in favor of the party opposing summary judgment…” (Gold v. Weissman (2004) 114 Cal.App.4th 1195, 1198-99.) “In other words, the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences there from must be accepted as true.” (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 179.) However, if adjudication is otherwise proper the motion “may not be denied on grounds of credibility,” except when a material fact is the witness’s state of mind and “that fact is sought to be established solely by the [witness’s] affirmation thereof.” (Code Civ. Proc. § 437c(e).) 

Once the moving party has met their burden, the burden shifts to the opposing party “to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” (Code Civ. Proc. § 437c(p)(1).) “[T]here is no obligation on the opposing party... to establish anything by affidavit unless and until the moving party has by affidavit stated facts establishing every element... necessary to sustain a judgment in his favor.” (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.) 

First Cause of Action – Wrongful Foreclosure

Issue 1

The Court agrees that Civil Code sections 2923.5, 2923.6 and 1916.7 are inapplicable to this matter as Plaintiff obtained the Midblock Loan for “business purposes” (UMF No. 39) and that the Midblock Lot was vacant, and not occupied by Plaintiff as a primary residence (UMF No. 40.)

Civil Code section 2924.15(a) expressly applies sections 2923.5 and 2923.6 where there is an owner occupied residential real property at issue.

The Truth in Lending Act, at 12 C.F.R section 1026.3, states that the following transactions are not subject to the Act and include extensions of credit for business purposes. (12 C.F.R. § 1026.3(a)(1).) However, the undisputed facts indicate the Midblock Loan was a loan for “business purposes” was a vacant lot, and was not occupied by Plaintiff as a primary residence. (UMF Nos. 39, 40.)

Additionally, Civil Code section 1916.7 applies to

“(b) A mortgage loan made pursuant to the provisions of this section is an adjustable-payment, adjustable-rate loan, on the security of real property occupied or intended to be occupied by the borrower containing four or fewer residential units and incorporating terms substantially as follows:

1. The term of the loan shall be not less than 29 years, repayable in monthly installments amortized over a period of not less than 30 years…”

The Midblock Loan had a term less than 29 years and was not amortized over a period not less than 30 years. (UMF No. 5.)

Therefore, the Court grants summary adjudication as to Issue No. 1 that the alleged violations of statutes above do not apply to the Midblock Loan.

The Court notes, however, that the first cause of action appears to be based on additional facts or theories beyond these statutes. (Complaint ¶¶ 18, 23, 24, 47, 49; Plaintiff’s Responses to RFA No. 1 and 17.1) As such, adjudication of Issue 1 in favor of Defendants is not dispositive as to this cause of action.

Issues 2, 3 and 4

The elements of wrongful foreclosure are “(1) the defendants caused an illegal, fraudulent, or willfully oppressive sale of the property pursuant to a power of sale in a mortgage or deed of trust; (2) the plaintiff suffered prejudice or harm; and (3) the plaintiff tendered the amount of the secured indebtedness or was excused from tendering. [Citation.]" (Chavez v. Indymac Mortgage Services (2013) 219 Cal.App.4th 1052, 1062; See also Miles v. Deutsche Bank National Trust Company (2015) 236 Cal.App.4th 394, 408.)

The second issue seeks to adjudicate that Plaintiff was in default under the Midblock Loan at the time of foreclosure on April 27, 2023 and therefore Plaintiff cannot demonstrate an element of wrongful foreclosure as to Plaintiff’s default or failure to tender the amount of indebtedness.

The third issue seeks to determine that Defendants properly applied all payments to the Midblock Loan.

The fourth issue seeks to determine that Plaintiff lacks evidence that Defendants failed to post any loan payment made by Plaintiff.

The Court notes first that Plaintiffs’ opposition first challenges the Defendant Jones’ legal authority to foreclosure on the Midblock Lot. Though the Court has rejected the application of Civil Code sections 2932.5 and 2932.6 as to the requirement of a recorded assignment, Plaintiffs argue that Defendant Jones was not the beneficiary, assignee or authorized agent at the time of the foreclosure sale and that no assignment or substitution of trustee was executed.

The Court notes that Exhibit 1 to the declaration of Hacker is the Midblock Loan’s promissory note secured by deed of trust which expressly indicates Defendant Jones, through his retirement account, is the beneficiary of the Midblock Loan, that the holder of the Note has the right of assignment. Additionally, Exhibit 2 to the declaration of Hacker is the deed of trust related to the Midblock Lot, which expressly notes the Lender is Defendant Jones and the trustee is Defendant SLS. Further, Exhibits 3 through 9 attached to Hacker’s declaration, as to the various modifications or extensions of the terms, as well as the notices of trustee’s sale, indicate Defendant SLS, as the trustee, initiated the sales. As such, it is unclear to the Court what authority Defendant Jones either exercised or lacked with respect to the foreclosure of the Midblock Lot. The Court, therefore, rejects the assignment theory based on facts or issues beyond the Civil Code sections adjudicated in the first issue. The declaration of Jackson at paragraphs 20-23 and Exhibits F and G do not dispute this fact or issue.

As to tender of indebtedness, application of payments and failure to post payments, the Court notes Plaintiff’s response to Form Interrogatory No. 17.1 as to RFA No. 33 indicates three areas as to challenging the foreclosure sale of the Midblock Lot: (1) that an outstanding balance remained on the Midblock Loan (2) that $20,030 on December 11, 2020, and $46,657.61 on April 18, 2023, were not properly credited to the Midblock Loan Balance, and (3) that an $8,555.46 payment made through WFG Title Company was not applied to the loan balance. Likewise, these arguments are set forth in the opposition to the motion.

Outstanding Balance on Midblock / Application of $46,657.61 Payment

As to the $46,657.61 payment made on April 18, 2023, it is undisputed that this amount was applied to the Corner Loan and that Plaintiff is the current owner of the Corner Lot, due to this payment. (UMF Nos. 30, 33.)

As to Plaintiff’s claim that the $46,657.61 payment made on April 18, 2023 should have been applied to the Midblock Loan to prevent default and subsequent foreclosure, the Court notes that Defendants’ evidence establishes that the April 18, 2023 wire was made in the same amount as the payoff demand for the Corner Lot Loan, and the wire information that was transmitted specified the loan number of the Corner Lot Loan (RMF30950) and not the Midblock Loan.  (UMF No. 33; SLS Dec. - Exhibit 23.)

As such, the Court does not find a misapplication of the $46,657.61 payment.

The $20,030 Wire Transfer

As to the wire of $20,030 on December 11, 2020, Defendants acknowledge that this amount was initially applied to the Corner Lot Loan account, but was then transferred to the Midblock Loan account. (UMF No. 13 and Ex. 26)

The Court’s further review of Exhibit 13 indicates that this $20,030 amount was thereafter applied as 14 payments of $443.39, a payment of fees of $12,792 and thereafter an application of $4,020.51 to the principal amount of the Midblock Loan.

The declaration of Hacker at Paragraph 12 states “The funds from the December 11, 2020 wire of $20,030 were allocated and disbursed as required by paragraph 7 of the Second Extension Agreement. (See, Exhibit 6 thereto, Par. 7.)”

Exhibit 6 attached to the declaration of Hacker at Paragraph 7 provides a table as to the allocation of the payment as follows:

Fee Description	Fee
Doc prep fee	$295.00
Foreclosure and default processing fee	$3,544.75
November 2019  - December 2020 payments	$5,764.07
3 Demand Fees @ $30.00 each	$90
Wire fee	$30.00
Late Fee	$10.98
Applied to principal	$10,265.20
TOTAL	$20,000.00

The Court then compares this table from Exhibit 6 to Exhibit 13 and notes, on the face of the document, that $13,792.54 was deducted as “FEES” from the Trust Account Activity side of the document, and $9,821.81 was applied to the principal balance.

Defendants offered the explanation, and the Court’s review confirms, that Exhibit 13 contained fourteen (14) entries as to the application of the $443.39 payment, but that the table above contemplates only 13 such payments. As such, there appears to be a single payment of $443.39 that should have been applied, fully, to the principal balance, but was applied as a typical payment.

Defendants further argue, based on the Court’s reference to this issue in the initial tentative, that this single missing payment is immaterial under Knapp v. Doherty (2004) 123 Cal.App.4th 76, 99.

Knapp notes the following:

“Despite this inaccuracy as to the date of default, there was no evidence presented that the Default Notice did not properly state the nature of the default (failure to make installment payments and to pay late charges), or the amount of the default ($ 38,011.40 as of Sept. 4, 2001). “If one breach is correctly stated, an erroneous statement of other defaults does not invalidate the [default] notice.” (4 Miller & Starr, Cal. Real Estate, supra, § 10:183, p. 561, fn. omitted.) As stated in one case in which a challenge to a foreclosure was rejected where the default notice accurately stated certain defaults but was inaccurate as to one of the installments for which an extension was granted: “[T]he statute is sufficiently complied with if the notice of default contains a correct statement of some breach or breaches sufficiently substantial in their nature to authorize the trustee or beneficiary to declare a default and proceed with a foreclosure. Since reliance on these breaches is manifestly enough to authorize the proceeding, the circumstance that erroneous statements may appear in the notice about other breaches, which breaches, if they occurred, would only be cumulative so far as their effect was concerned, may properly be treated as immaterial.” (Birkhofer v. Krumm (1938) 27 Cal. App. 2d 513, 523–524.)

…

There is no evidence that Borrowers here were misled in any way by the Default Notice. For instance, the fact that the date of default was stated incorrectly in the Default Notice did not cause Borrowers to act or fail to act in any way that resulted in their loss of the Property.

Moreover, we reject Borrowers' contention that the irregularity in the Default Notice raised a triable issue of fact, because “ [a] material defect in the notice, such as a gross misstatement of the amount in default, voids the sale.” (Bernhardt, Cal. Mortgage and Deed of Trust Practice (Cont.Ed.Bar 3d ed. 2004) § 2.22, pp. 72–73.)”

Here, the Court does not consider the single payments apparent misapplication a material defect via a gross misstatement of the amount in default. Moreover, Plaintiff has not presented evidence that tender of the amount of default, less the single payment, was made or attempted.

As such, the Court finds that the $20,030 transfer and its application thereof to the fees and principal balance does not “void the sale” or substantiate a cause of action for wrongful foreclosure.

$8,555.46 WFG Wire 

As to this $8,555.46 wire from WFG, this money was deposited into the Trust Account for the Corner Lot Loan and thereafter applied based on the Second Extension Agreement regarding the Corner Lot. (UMF Nos. 26, 27.)

While the Second Extension Agreement as to the Corner Lot, at Paragraph 7, contemplates a total of $10,953.80 owed, Defendants note Plaintiff made $2,398.44 in payments that had already been received and put into reserves prior to the execution this Second Extension Agreement. (UMF No. 27.) This is reflected in Exhibit 26 regarding the balance of the Coner Lot Loan Trust Account on December 14, 2020 of $10,953.80.

Exhibit 19, the Second Extension Agreement regarding the Corner Lot Loan, clearly references this total amount, references the Corner Lot and the Corner Lot Loan and the Court finds no evidence set forth by Plaintiff that this $8,555.46 should have been applied to the Midblock Loan instead of the Corner Lot Loan. This payment caused Defendant Jones to record a Notice of Recission of the notice of default. (UMF No. 27.) Thereafter, Plaintiff resumed monthly payments through November 1, 2021. (UMF No. 28.)

As such, the Court does not find this application of this payment to substantiate any wrongdoing as to the wrongful foreclosure action.

As such, the Court adjudicates Issues 2, 3 and 4 in favor of Defendant.

Second Cause of Action – Fraudulent Conveyance, Negligent Accounting and Deceptive Practices 

A fraudulent conveyance is "…a transfer by the debtor of property to a third person undertaken with the intent to prevent a creditor from reaching that interest to satisfy its claim." (Yaesu Electronics Corp. v. Tamura (1994) 28 Cal.App.4th 8, 13.)

Here, the Court notes Defendants facts indicate Defendant Jones as the creditor, having lent money via the Midblock Loan secured by the Midblock Lot and thereafter initiating nonjudicial foreclosure on the Midblock Lot after default by Plaintiff. (UMF Nos. 15, 16, 33, 34.) Although this resulted in a transfer of the Midblock Lot to Defendant Jones, it is undisputed that Jones, as the lender, is the creditor here and no transfer by Plaintiff of any property took place to prevent Jones from reaching any interest. (UMF No. 62.) The Court adjudicates Issue No. 5 in favor of Defendants.

The Court does not find a basis to apply the fraudulent conveyance law outside the debtor-creditor relationship based on the arguments made in opposition to the separate statement.

As to any negligence action, the Court agrees that under Sheen v. Wells Fargo Bank, N.A. (2022) 12 Cal.5th 905, 924, the economic loss rule would bar such a tort claim where the “…claim here arises from, and is not independent of, the mortgage contract.” Again, Plaintiff’s arguments in the opposition to separate statement do not support misrepresentations or active misconduct where such conduct is “alleged” as opposed to supported by evidence.

Therefore the Court adjudicates Issue No. 7 in favor of Defendants, finds Issue No. 7 dispositive of this cause of action, and declines to rule on the other issues related to the second cause of action.

Third Cause of Action – Slander of Title (Issue No. 10)

Slander or disparagement of title occurs when a person, without a privilege to do so, publishes a false statement that disparages title to property and causes the owner thereof “ ‘some special pecuniary loss or damage.’ ” [citation omitted] The elements of the tort are (1) a publication, (2) without privilege or justification, (3) falsity,  and (4) direct pecuniary loss.” (Sumner Hill Homeowners' Assn., Inc. v. Rio Mesa Holdings, LLC (2012) 205 Cal.App.4th 999, 1030.)

Defendants note that Schep v. Capital One, N.A. (2017) 12 Cal.App.5th 1331 holds that the recording of a notice of sale, notice of default, and recording of trustee’s deed upon sale are privileged and that “chain of title preceding the recording of those documents definitively establishes the absence of malice.” (Id. at 1338-1339.) Here, given, as discussed above, the default on the Midblock Loan and failure to cure, the recording of the various documents “constitute privileged communications pursuant to Section 47.” (Id. at 1336.) 

UMF No. 74 establishes that the recording of the Trustee’s Deed Upon Sale is the only basis for this claim, citing to the response to RFA No. 70 which states “Admit to the extent that the cause of action for Slander of Title is based upon the Trustee's Deed Upon Sale but deny as to the rest because there were multiple documents recorded, including a Notice of Default and Notice of Trustee's sale and other slanderous statements regarding ownership and title of the property”

The statement “other slanderous statements” is insufficient to bring the facts relied upon for this claim beyond the recorded documents. In other words, “other slanderous statements” that would otherwise be beyond the privilege are not alleged to have been recorded (that is, published).

Though Plaintiff’s separate statement attempts to dispute UMF No. 74, there are no actual citations to Jackson’s declaration, or the evidence, as to such other slanderous statements in the opposition to the separate statement. The Court has no additional evidence from Plaintiff in its file as to the element of malice which would overcome the privilege recognized above with respect to recorded documents.

Therefore the Court adjudicates Issue No. 10 in favor of Defendants, finds Issue No. 10 dispositive of this cause of action, and declines to rule on the other issues related to the third cause of action.

Fourth Cause of Action – Civil Code section 1572

Civil Code section 1572 states:

“Actual fraud, within the meaning of this Chapter, consists in any of the following acts, committed by a party to the contract, or with his connivance, with intent to deceive another party thereto, or to induce him to enter into the contract:

1. The suggestion, as a fact, of that which is not true, by one who does not believe it to be true;

2. The positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes it to be true;

3. The suppression of that which is true, by one having knowledge or belief of the fact;

4. A promise made without any intention of performing it; or,

5. Any other act fitted to deceive.”

UMF No. 79 identifies the following alleged misrepresentations: “(1) the allocation  of the $20,030 payment on December 11, 2020, and (2) the $46,657.61 payment on April 18, 2023.”

The Court has adjudicated, at length, these issues in favor of Defendants above, finding no misapplication or misallocation of these payments. The Court, therefore adjudicates Issue No. 11 in favor of Defendants.

The Court finds Issue No. 11 dispositive of this cause of action and declines to rule on Issue No. 12.

Sixth Cause of Action – Business and Professions Code section 17200

To prevail on this claim, the Plaintiff must prove the Defendants engaged in an "unlawful, unfair, or fraudulent business act or practice." (Bus. & Prof. Code, § 17200.) This section “‘borrows’ violations from other laws by making them independently actionable as unfair competitive practices." (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1143,

A "violation of another law is a predicate for stating a cause of action under the UCL's unlawful prong." (Berryman v. Merit Property Management, Inc. (2007) 152 Cal.App.4th 1544, 1554.) If there is no violation of another law, defendant cannot be held liable for an "unlawful" business practice. (Graham v. Bank of America, N.A. (2014) 226 Cal.App.4th 594, 610

UMF No. 85 indicates that this claim is based on violation of Civil Code section 1916.7 and the Truth in Lending Act, and the failure to credit payment in the amount of $8,555.46.

The Court has adjudicated the TILA and Civil Code section 1916.7 issues as well as the allocation of the $8,555.46, and other amounts alleged to have been misapplied, above in favor of Defendants.

The Court, therefore, grants summary adjudication as to Issue Nos. 13 and 14.

Seventh Cause of Action – Violation of Truth in Lending Act

For the same reasons as discussed above, the Court finds the TILA does not apply to the Midblock Loan and grants adjudication as to No. 15. (UMF Nos. 39, 40; 12 C.F.R. § 1026.3(a)(1).)

As the Court finds Issue No. 15 dispositive as to this cause of action, the Court does not rule on the remaining issues under this cause of action.

Eighth Cause of Action – Intentional Misrepresentation

"The essential elements of a count for intentional misrepresentation are (1) a misrepresentation, (2) knowledge of falsity, (3) intent to induce reliance, (4) actual and justifiable reliance, and (5) resulting damage. [Citations.]" (Chapman v. Skype Inc. (2013) 220 Cal.App.4th 217, 230-231.)

UMF No. 95 states that Plaintiff’s discovery responses identify misrepresentations limited to false statements regarding the loan balance and payment status, failure  to credit payments including $8,555.46 escrow payment regarding the Corner Second Extension Agreement, and the $20,030 payment regarding the Midblock Loan

Again, the Court has adjudicated these issues regarding allocation of these payments above in favor of Defendants and therefore adjudicates Issue No. 17 in favor of Defendant. The Court finds Issue No. 17 dispositive of this cause of action, and declines to rule on the other issues related to the third cause of action.

Issue Nos. 19 and 20

These issues seek to adjudicate liability against Defendants Hacker and Harari in their individual capacities. UMF Nos. 99 and 104 indicate Hacker and Harari are alleged to be officers of SLS.

This liability is derivative of the causes of action above. As the Court has summarily adjudicated issues within each cause of action in favor of Defendants, and otherwise found those issues dispositive as to adjudication of each cause of action, the Court likewise grants summary adjudication as to Issues 19 and 20.

Summary

Therefore, the Court has ruled as follows:

• To grant summary adjudication as to Issue Nos. 1 through 4 as to the first cause of action for wrongful foreclosure;
• To grant adjudication as to Issue No. 7 as to the second cause of action for fraudulent conveyance; to find this issue dispositive to this cause of action and to decline to rule on Issues Nos. 6, 8, and 9;
• To grant adjudication as to Issue No. 10 as to the third cause of action for slander of title;
• To grant adjudication as to Issue No. 11 as to the fourth cause of action for violation of Civil Code section 1572; to find this issue dispositive to this cause of action and to decline to rule on Issue No. 12;
• To grant summary adjudication as to Issue Nos. 13 and 14 as to the sixth cause of action for Business and Professions Code section 17200;
• To grant summary adjudication as to Issue No. 15 as to the seventh cause of action for violation of Truth in Lending Act; to find this issue dispositive to this cause of action and to decline to rule on Issue No. 16;
• To grant summary adjudication of Issue No. 17 to the eighth cause of action for intentional misrepresentation; to find this issue dispositive to this cause of action and to decline to rule on Issue No. 18;
• To grant summary adjudication as to Issue Nos. 19 and 20 as to personal liability.

The cumulative effect of this ruling is to grant summary judgment on the complaint.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

Re:                  Bryant, Erin vs. Bryant, Charles

Case No.:   VCL325016

Date:            December 18, 2025

Time:           8:30 A.M. 

Dept.           1-The Honorable David C. Mathias

Motion:     Motion to Set Aside Default

Tentative Ruling: To grant the motion; to order the proposed demurrer, motion to strike, answer and cross-complaint filed no later than ten (10) days from the date of this hearing.

Facts

In this breach of contract action, Plaintiff filed a proof of personal service of the amended complaints and summons on Defendant Bryant on August 27, 2025 at 4:00 pm at 421 E Willow, Visalia, CA 93291.

The proof of service was completed by a person who is not a registered California process server.

On October 1, 2025, default was entered in this matter.

On October 15, 2025, Defendant filed this motion to set aside default pursuant to the mandatory relief provisions of Code of Civil Procedure section 473(b).

In support, Defendant’s declaration confirms service on August 27, 2025 of the operative amended complaint and that Defendant, on September 23, 2025, retained current counsel. (Declaration of Bryant ¶¶2, 3.) Further, that Defendant relied upon counsel to respond to the lawsuit, including an ex parte motion for additional time to respond. (Declaration of Bryant ¶¶4, 5, 6.)

In further support, Defendant’s counsel indicates the parties met and conferred as to the filing of a demurrer, motion to strike and extension of time, that counsel did not learn the ex parte application for an extension of time had been denied until September 30, 2205, after the deadline to respond had passed, and that counsel failed to respond to avoid the entry of default. (Declaration of Landaverde ¶¶4-13.)

In opposition, Plaintiff argues that the motion should be denied under the mandatory provisions because the fault was not completely attributable to counsel, that Defendant lacked diligence in retaining counsel 27 days after service and that Defendant has not demonstrated a meritorious defense.

Authority and Analysis

Generally, under California Code of Civil Procedure section 473(b), the court may grant discretionary relief to a party from a judgment, dismissal, order, or other proceeding that was entered against the party due to mistake, inadvertence, surprise, or neglect on the part of the party. (Id.)

However, also under California Code of Civil Procedure section 473(b), the court must grant relief (mandatory relief) when an attorney for the party seeking relief submits a sworn affidavit (or declaration) attesting that his or her mistake, inadvertence, surprise, or neglect caused the judgment to be entered against the party. (Code Civ. Proc., § 473(b); Martin Potts & Associates, Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 438 [explaining difference between mandatory and discretionary relief under section 473, subd. (b)].)

As to this mandatory relief provision, Code of Civil Procedure section 473(b) states, in relevant part, the following:

“…Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.” (Code Civ. Proc. § 473(b))

Here, the motion is timely as it is made within six months of entry of judgment.

Counsel for Defendant has submitted a sworn declaration attesting to mistake and neglect with respect to failing to file a timely responsive pleading. “Relief is mandatory when a complying affidavit is filed, even if the attorney's neglect was inexcusable.” (SJP Limited Partnership v. City of Los Angeles (2006) 136 Cal.App.4th 511, 516-517; Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 225.)

“‘The only limitation is when the court finds [that] the default [or dismissal] was not in fact the attorney's fault, for example when the attorney is simply covering up for the client…’ (Rogalski v. Nabers Cadillac (1992) 11 Cal. App. 4th 816, 821.)” (Todd v. Thrifty Corp. (1995) 34 Cal.App.4th 986, 991.) The Court does read either Rogalski nor Todd as requiring the attorneys’ fault to be the sole cause of the failure to timely respond. In any event, The Court does not consider the retention of counsel 27 days after service to negate the fault of counsel, once retained, to respond to the pleading, despite having only a few days before the responsive deadline.

Motions brought under section 473 involve “an assessment of credibility by the trial court.” (Behm v. Clear View Techs. (2015) 241 Cal.App.4th 1, 15.) In Behm, the court upheld the trial court’s determination that an attorney’s affidavit of fault lacked credibility based on “contradictions and discrepancies” between the attorney’s affidavit and his “earlier representations to the court.” (Id.) This included “different excuses” than those that had been provided earlier in the litigation for the same conduct. (Id.) The court concluded that the attorney had “forfeited his credibility when in his subsequent affidavit, he attempted ‘to change the facts and blame himself.’” (Id. at 16.) Thus, the court had not erred in finding the affidavit “incredible” and denying mandatory relief under § 473(b). (Id.)

Behm does not appear to be analogous here, as the Court does not find any such contradictions that would warrant denial.

“Because the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default.” (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233.) Where the party in default moves promptly to seek relief, and no prejudice to the opposing party will result from setting aside the default and letting the case go to trial on the merits, “very slight evidence will be required to justify a court in setting aside the default.” (Id.)

Next, subsection (b) additionally requires the filing of “a copy of the answer, motion, or other pleading proposed to be filed in the action.” Here, Defendant has attached a proposed demurrer, motion to strike, answer and cross-complaint to be filed in satisfaction of this requirement. 

Last, the Court observes no requirement under the mandatory relief provisions of section 473(b) as to the presentation of a meritorious defense.

Reasonable attorney’s fees and costs are mandatory when granting a motion for relief from default based on an attorney’s affidavit of fault. (Code Civ. Proc.  § 473(b) [“The court shall, whenever relief is granted based on an attorney’s affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.”].)

Here, however, Plaintiff is represented in pro per and therefore no fees may be granted.

Therefore, the motion is granted. Defendant is ordered to file the proposed demurrer, motion to strike, answer and cross-complaint no later than ten (10) days from the date of this hearing.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

Re:                 Bermudez, Alejandro vs. Shannon Bros. Co.

Case No.:    VCU301866

Date:            December 18, 2025

Time:            8:30 A.M. 

Dept.           1-The Honorable David C. Mathias

Motion:     Continued Motion to Approve PAGA Settlement

Tentative Ruling: To continue this motion and CMC to January 29, 2026; 8:30 am; D1 as to the notice period; to order a supplemental declaration addressing this issue.

Background Facts

The Court previously continued this matter and ordered supplemental declarations filed with respect to the notice period, lodestar and presently incurred costs. On November 18 and 19, 2025, counsel for Plaintiff filed supplemental declarations.

Class Notice

The settlement agreement provides no claim form will be required of class members to participate in distributions.  Only those wishing to object or opt out must file notice with the settlement administrator. 

Objections or opt out notices are still to be made within 45 days. 

The Court regularly approves notice periods of 60 days or longer. The class notice period is not approved.

Attorneys’ Fees and Costs

Attorneys’ fees of 33% of the gross settlement fund of $275,000 or $90,750 and costs not to exceed $15,000 are sought by Plaintiff’s counsel. Counsel has utilized the percentage of common fund methodology as well as provided adequate lodestar information to evaluate the reasonableness of the fee request.

Here, Counsel Seligson indicates that the firm has spent 124.2 hours on this case, at a rate of $495 per hour, providing a lodestar of $96,711. (Supplemental Declaration of Seligson ¶20.) Counsel Zakay indicates that the firm has spent 7 hours on this case, at rates ranging from $800 to $425 per hour, providing a lodestar of $5,600. (Supplemental Declaration of Zakay ¶20.)

The Court, therefore, preliminarily approves the fees as requested.

Counsel has also provided the current costs expended in amounts of  $ 10,718.91 Supplemental Declaration of Seligson ¶21.)

The Court preliminarily approves costs not to exceed $17,000.

Therefore, the Court continues this motion to January 29, 2026; 8:30 am; D1 as to the notice period and orders a supplemental declaration addressing this issue.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

Re:                 Conterra Agricultural Capital, LLC vs. Prosperity Farms, LLC et al     

Case No.:    PCU325122

Date:            December 18, 2025

Time:           8:30 A.M. 

Dept.           1-The Honorable David C. Mathias

Motion:     Plaintiff’s Application Pro Hac Vice

Tentative Ruling: To grant the application of attorney Brianna J. Morrison of Miller Nash LLP to appear as counsel pro hac vice for Plaintiff.

Facts and Analysis

The Court’s file indicates that timely and proper notice was given to all parties affected by attorney Morrison’s application to appear pro hac vice for Plaintiff.

The Court finds that attorney Morrison meets the statutory requirements under California Rule of Court 9.40(a) to submit applications to appear pro hac vice before this Court, and that the contents of this application of attorney Morrison indicates that association with California counsel Bernie Kornberg of Miller Nash LLP, and as such meets the statutory requirements of California Rule of Court 9.40(c) and (d). The Court’s file for this matter further indicates that that the applicable fees that must be paid to the State Bar of California under Rule 9.40(e) to support the application for admission pro hac vice have been tendered to the State Bar.

The Court further notes that attorney Morrison’s application meets the statutory requirements under California Rule of Court 9.40(d) for pro hac vice applications and that attorney Morrison’s one prior appearance before the courts in this state are not sufficiently numerous to warrant denial of their present applications under California Rule of Court 9.40(b).

Based on the foregoing, the application of attorney Morrison to appear as counsel pro hac vice for Plaintiff in this action is granted.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order.

Re:                 Abarca Carranza, Leticia vs. Vertical Foods, LLC.

Case No.:    VCU313255

Date:            December 18, 2025

Time:            8:30 A.M. 

Dept.           1-The Honorable David C. Mathias

Motion:      Motion to Preliminarily Approve Class Action and PAGA Settlement

Tentative Ruling: To grant the motion; to set the motion for final approval for July 23, 2026; 8:30 am; D1. CMC is off calendar.

1. Sufficiency of Amount of Settlement (Net Estimated: $144,000)

The gross settlement amount is $300,000. Plaintiff estimates approximately 250 proposed Class Members, providing an estimated average payout of $576 per member.

The Class Members consist of: All current and former non-exempt employees of Vertical Foods, LLC in California who worked for Vertical Foods, LLC at any time from September 9, 2020, through November 11, 2025.

Plaintiff, via the operative amended complaint, primarily alleges the following violations: (1) minimum wage violations; (2) failure to pay all overtime wages; (3) meal period violations; (4) rest period violations; (5) waiting time penalties; (6) wage statement violations; (7) unfair competition; (8) failure to reimburse necessary business expenses; and (9) civil penalties under PAGA.

Plaintiff provides estimates of the maximum recovery for each of the asserted wage and hour claims and penalties with information showing how the estimates were calculated including the damages models utilized. (Declaration of Counsel Brown ¶¶ 14 – 23.) Plaintiff has provided a detailed discussion of the value of each claim, applied various discount rates regarding the chance of success as to each claim which corresponds to the final gross settlement amount. The total estimated potential victory, after discounting the estimates, $349,561 and therefore the gross settlement sum is approximately 85.8% of this estimate. (Brown. Decl. ¶23.)

After agreeing to participate in early mediation, Defendants informally produced time and pay records for Settlement Class members, key class data points, and other documents and information relevant to the claims alleged in advance of mediation. The parties reached the settlement after a full day mediation.

The Court finds the information provided in support of the gross settlement amount sufficient for the Court to preliminarily approve the gross settlement amount, as the settlement amount appears to be within the recognized range of reasonableness given the claims and defenses asserted in this case.

Plaintiff’s deductions from the gross settlement of $300,000 are proposed as follows:

Proposed Attorney Fees (35%):	$105,000
Proposed Attorney Costs (up to):	$25,000
Proposed Enhancement Payment to Plaintiff :	$5,000
Proposed Settlement Administrator Costs	$8,000
Proposed PAGA Payment	$13,000
Proposed Net Settlement Amount	$144,000

2.  Class Notice

The settlement agreement provides no claim form will be required of class members to participate in distributions.  Only those wishing to object or opt out must file notice with the settlement administrator.  Objections or opt out notices are to be made within 60 days. The Court regularly approves notice periods of 60 days or longer. The class notice period is approved.

With respect to the content of the Notice, the Court finds the Class Notice to be reasonable.  It clearly provides to the class member an estimate of the settlement share the employee is to receive and provides adequate instructions for any class member to opt out of the settlement or to submit an objection.

3.  Enhancement Award to Class Representative

The court preliminarily approves Plaintiff Leticia Abarca Carranza as Class Representative for settlement purposes. The proposed enhancement award to Plaintiff is $5,000.00. The court has, in past cases, approved enhancement awards of $5,000.00 routinely. The enhancement payment is approved.

4. Attorneys’ Fees and Costs

Attorneys’ fees of 35% of the gross settlement fund of $300,000 or $105,000 and costs not to exceed $20,000 are sought by Plaintiff’s counsel. Counsel has utilized the percentage of common fund methodology as well as provided adequate lodestar information to evaluate the reasonableness of the fee request.

Here, Counsel Brown indicates that he has spent 172 hours on this case, at a rate of $839 per hour, plus additional counsel spending 12 hours at rate of $581 per hour, providing a total a lodestar of $151,280, resulting in a negative lodestar multiplier of 0.7. (Declaration of Brown ¶ 25.)

Counsel has also provided the current costs expended in amounts of  $19,362.43 (Declaration of Brown ¶27)The Court preliminarily approves costs not to exceed $25,000.00.

The Court further finds that Plaintiff’s counsel are experienced class action attorneys through the declarations of counsel.

5.  Claims Administrator

The court preliminary approves Phoenix Class Action Administration Solutions as the claims administrator for this class action based both on prior experience with this settlement administrator in other class actions litigated in this court and on the Declaration of Jodey Lawrence, President of Business Development. The Court preliminarily approves administration costs not to exceed $8,000 based upon the Declaration of Lawrence and the itemized estimate. (Declaration of Lawrence – Exhibit B.)

6. Unclaimed Settlement Proceeds

The court preliminarily approves the distribution of unclaimed settlement proceeds to California Rural Legal Assistance, Inc in accordance with Code of Civil Procedure section 384.

7. Release

The Court finds the proposed release of claims reasonable under the circumstances.

8. LWDA Notice

Counsel’s declaration indicates confirmation from the LWDA of receipt of proof of submission of the proposed settlement agreement. (Lab. Code, § 2699, subd. (l)(2).) (Declaration of Brown ¶ 30 – Exhibit D.)

9. Class Certification

Code of Civil Procedure section 382 permits certification “when the question is of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court.”  (Code Civ. Proc. § 382.)  The plaintiff bears the burden of demonstrating that class certification under section 382 is proper.  (See City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 460.)  To do so, “[t]he party advocating class treatment must demonstrate the existence of an ascertainable and sufficiently numerous class, a well-defined community of interest, and substantial benefits from certification that render proceeding as a class superior to the alternatives.”  (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1021.) 

Here, the Motion and accompanying declaration of Counsel Brown sufficiently sets forth the basis for finding the class is numerous and ascertainable as 250 employees have been identified through Defendants’ employment records. Additionally, common questions of law and fact predominate within the individual causes of action based on class wide policies and procedures of Defendants. Further, the class representative, through their declaration, indicates they will adequately and fairly represent the Class Members and will not place their interests above any Class Member. The Class Representative was employed by Defendant during the relevant time period and thus worked under the same policies and procedures as the Class Members.

Accordingly, the motion to preliminarily approve the Class Action and PAGA settlement is granted. Motion for final approval is set for July 23, 2026; 8:30 am; D1.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order

Examiner Notes for Probate Matters Calendared

• Visalia Division 
• South County Justice Center Division