Tentative Rulings

The Tentative Rulings for Monday, January 26, 2026 (modified as to Case No. VCU327154 only at 2:30 pm), are:

Re:                Visalia Ceramic Tile, Inc., a California Corporation vs. De Anza Tile Co., Inc., a California Corporation et al

Case No.:   VCU327154 

Date:           January 26, 2026

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     Demurrer

Tentative Ruling:  The demurrer is sustained to the second and third cause of action, and to the “unfair” and “fraudulent” claims under the fourth cause of action.  The court treats the demurrer as a motion to strike with regard to VCT’s request for restitution and damages beyond the parameters permitted under the UCL, as explained below, and strikes the allegations and prayer to the extent of those requests for relief.  VCT shall have leave to amend its complaint within 10 days’ notice of this ruling.

Facts:

In this action, Visalia Ceramic Tile, Inc. (VCT) sues De Anza Tile Co., Inc. (De Anza), Richard Papapietro and Jordan Mondragon, asserting claims for interference with contractual relations (first cause of action) and prospective economic advantage (second cause of action), civil conspiracy (third cause of action), and unfair competition (fourth cause of action). 

De Anza demurrers to the second through fourth causes of action (not the first cause of action for interference with contractual relations). 

Though it is not considered here, the court notes that Mondragon, who has filed his own demurrer set for a different date, filed a “Response to Demurrer” and “Response to Plaintiff’s Opposition” expressing points in support of De Anza’s demurrer. 

VCT’s Complaint

VCT alleges De Anza “has, for years, actively been attempting to seize Plaintiff’s market share, clientele and business for itself without success” and has “engaged in unfair and deceptive business practices.”

VCT alleges “a ‘whistleblower,’” Steve Halliwell, recently came forward to report such activities by De Anza. 

VCT alleges that, in October 2023, Halliwell, “a journeyman tile finisher,” was contacted by Mondragon, “an agent of [De Anza] and Mr. Papapietro,” and solicited to “apply for a job with [VCT] and seek employment there.”  Once hired, Halliwell was allegedly directed that his “true employer would be Papapietro who would separately pay Halliwell for his work” and that “Halliwell’s job would be to observe, report and collect information on Plaintiff, including confidential and trade secret information which would then be reported back to Mondragon and used by Defendant De Anza Tile to obtain a competitive advantage over Plaintiff.”

VCT alleges “Defendant Mondragon informed Halliwell that due to Defendant Papapietro’s reputation and power in the industry he could either make like [sic] extremely successful for Halliwell if he was cooperative, or extremely difficult if he was not.”

VCT alleges that after Halliwell declined defendants’ offer, “prospective employers with whom Halliwell had been speaking regarding job prospects ceased communicating with him.” 

VCT further alleges that, “[s]hortly thereafter, Defendant Papapietro, acting in his capacity as Chief Executive Officer and Chief Financial Officer of Defendant De Anza Tile, instructed one of [VCT’s] most important suppliers to cease doing business with [VCT] if it wished to retain support and business from Defendant De Anza Tile and other contractors in Northern California,” and that “[s]ubsequent to this communication and threat, the supplier terminated its business relationship with VCT, causing substantial financial harm to VCT.”

VCT’s first “interference with contractual relations” cause of action, asserted solely against De Anza, Papapietro, and “Does 1-50,” is based on the alleged action of Papapietro on behalf of De Anza to cause termination of VCT’s supplier relationships.  This cause of action, again, is not challenged in De Anza’s demurrer here.

VCT’s second “interference with prospective economic advantage” cause of action, asserted against all defendants (De Anza, Papapietro, and Mondragon) is based on the alleged attempt “to coerce Halliwell to serve as [defendants’] spy and corporate thief to steal Plaintiff’s trade secret information,” as well as, more generally, defendants’ vaguely described efforts “to impede and diminish Plaintiff’s business relationships and lawful competitive advantages,” which VCT alleges were “calculated to pressure Plaintiff,” inter alia, “by depriving it of its suppliers … .”

VCT’s third “civil conspiracy” cause of action, alleged against all defendants, is based on allegations that defendant’s agreed to a “common plan” “evidenced by repeated conduct and actions, including but not limited to:” “Papapietro’s threats to suppliers of Plaintiff” (as described above); “Mondragon’s solicitation of Halliwell to work for Defendants and act as its corporate espionage agent”; and “Mondragon’s admission to Halliwell that Defendants needed to ensure that Plaintiff was put out of business so that Defendant De Anza Tile could take over Plaintiff’s market share.”

VCT’s fourth cause of action, based on alleged “unfair competition,” asserted solely against De Anza and “Does 1-50,” is essentially based on the same conduct giving rise to the preceding causes of action. 

ANALYSIS

I. Second Cause of Action - Intentional Interference with Prospective Economic Advantage

De Anza demurs to the second Intentional Interference with Prospective Economic Advantage cause of action on the ground that it does not state facts sufficient to constitute a cause of action (Code. Civ. Proc., § 430.10(e)) because the allegations of economic benefits are speculative and the Complaint fails to identify an “independent wrongful act.”

It is important, here, to be mindful of key distinctions between the torts of interference with contractual relations (VCT’s first cause of action, not challenged on demurrer) and interference with economic relations (i.e., prospective economic advantage, which is VCT’s second cause of action that is challenged on demurrer). 

“The courts provide a damage remedy against third party conduct intended to disrupt an existing contract precisely because the exchange of promises resulting in such a formally cemented economic relationship is deemed worthy of protection from interference by a stranger to the agreement. Economic relationships short of contractual, however, should stand on a different legal footing as far as the potential for tort liability is reckoned. Because ours is a culture firmly wedded to the social rewards of commercial contests, the law usually takes care to draw lines of legal liability in a way that maximizes areas of competition free of legal penalties.”  (Della Penna v. Toyota Motor Sales, U.S.A. (1995) 11 Cal.4th 376, 392 [45 Cal.Rptr.2d 436, 902 P.2d 740] (Della Penna).)

Although VCT’s first and second interference causes of action are inferably based on the same alleged conduct (VCT incorporates all prior allegations under its second cause of action) the standards applicable to the causes of action for which they are alleged in support are not the same. 

Relatedly, the causes of action target different types of interference.  The first cause of action, not challenged here, targets named defendants’ alleged interference with VCT’s contractual relationships with its suppliers; the second cause of action, which is challenged, targets, more broadly but separately, all defendants’ interference with VCT’s “economic relationships with suppliers, employees, and customers, amongst others, that were reasonably likely to provide [VCT] with future economic benefit.” 

Courts are not to treat interference with economic relations torts merely as a “ ‘more inclusive’ class of acts” of which interference with contractual relations is a mere “subevent”; rather, “[o]ur courts should … firmly distinguish the two kinds of business contexts, bringing a greater solicitude to those relationships that have ripened into agreements, while recognizing that relationships short of that subsist in a zone where the rewards and risks of competition are dominant.” (Della Penn, supra, 11 Cal.4th at p. 392.)

A. Independent Wrongful Act

Incident to the aforementioned distinctions, “a plaintiff seeking to recover for alleged interference with prospective economic relations has the burden of pleading and proving that the defendant's interference was wrongful ‘by some measure beyond the fact of the interference itself.’ [Citation.]”  (Della Penna, supra, 11 Cal.4th 376, 392-393.)

De Anza contends VCT “alleges no facts that establish any such conduct apart from the alleged intent of interference itself” and, instead, “merely concludes ‘Defendants engaged in wrongful conduct designed to impede and diminish Plaintiff’s business relationships and lawful competitive advantages.’ ”

De Anza acknowledges the allegations regarding named defendants “attempting to coerce Halliwell to serve as their spy and corporate thief to steal Plaintiff’s trade secret information,” but, De Anza maintains, because “Halliwell declined the offer,” “this would fall short of constituting the necessary independent wrongful act … as Halliwell never entered the picture, i.e., he never became the ‘spy’ who stole [VCT’s] trade secrets to provide to De Anza Tile.”

1. Disruption of Supplier Relationships

The court agrees with De Anza that VCT does not establish named defendants’ alleged interference with its prospective economic relations with its suppliers “was wrongful ‘by some measure beyond the fact of the interference itself.’ [Citation.]” (Della Penna, supra, 11 Cal.4th at p. 393.)

VCT merely alleges that “Defendant Papapietro, acting in his capacity as Chief Executive Officer and Chief Financial Officer of Defendant De Anza Tile, instructed one of Plaintiff’s most important suppliers to cease doing business with Plaintiff if it wished to retain support and business from Defendant De Anza Tile and other contractors in Northern California” and that “[s]ubsequent to this communication and threat, the supplier terminated its business relationship with VCT, causing substantial financial harm to VCT.”

VCT identifies no authority supporting that a competitor in its industry acts unlawfully by virtue of insisting that a mutual supplier cease doing business with VCT to gain an economic advantage over it.  “An act is not independently wrongful merely because defendant acted with an improper motive. … [A]n act is independently wrongful if it is unlawful, that is, if it is proscribed by some constitutional, statutory, regulatory, common law, or other determinable legal standard. [Citations.]”  (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1158-1159 [131 Cal.Rptr.2d 29, 63 P.3d 937] (Korea Supply).) 

That named defendants’ interference was also disruptive of VCT’s contractual relationships with its suppliers, while independently actionable under the first cause of action, is a different matter than what is at issue under the second cause of action.

2. Disruption by Attempt to Scheme with Halliwell

The court is persuaded by De Anza that the allegations regarding the named defendants’ attempted scheme with Halliwell fail to establish an independent wrongful act because the allegations ultimately establish that the scheme was never carried out because “Halliwell declined Defendants’ offer.”

VCT contends the complaint is sufficient by virtue of having plead the existence of “a covert scheme” and that “De Anza Tile’s insistence that this cannot be independently wrongful because Halliwell declined is a merits argument that misapplies the pleading standard.”

In support VCT cites Della Penna, at pages 392-393, and Blank v. Kirwan (1985) 39 Cal.3d 311 [216 Cal.Rptr. 718, 703 P.2d 58], at page 318, for the proposition, in VCT’s words, that “[t]he independently wrongful act requirement concerns the character of the defendant’s alleged conduct, not whether a particular plan achieved its ultimate objective.”   

No doubt this point would support VCT’s position if true.  The court, however, is unable to discern support for it from the indicated portions of the cited decisions, and, for that reason, does not deem the point a correct statement of the law. 

Beyond this, VCT proclaims, correctly but inapposite to the point at issue, that it is not required to prove that defendants “acted with the specific intent, or purpose, of disrupting [VCT’s] prospective economic advantage,” and that “ ‘it is sufficient for the plaintiff to plead that the defendant “[knew] that the interference is certain or substantially certain to occur as a result of his action” ’ ” (San Jose Construction, Inc. v. S.B.C.C., Inc. (2007) 155 Cal.App.4th 1528, 1544-1545 [67 Cal.Rptr.3d 54], citing Korea Supply, supra, 29 Cal.4th at pp. 1155–1157). 

The point is inapposite because VCT’s allegations regarding the Halliwell scheme are not challenged on the basis that they fail to identify specific intent by the named defendants to disrupt prospective economic advantage, they are challenged on the basis that the scheme self-evidently did not disrupt prospective economic advantage because it was not carried out. 

Because it is self-evident from the allegations that the scheme with Halliwell was not carried out, and the allegations do not otherwise establish actionable interference with prospective economic advantage, the court does not find the allegations regarding the Halliwell scheme support VCT’s second cause of action. 

​​​​​​​3. Conclusion

The aforementioned two categories of conduct are the sole two attempts at pleading an independent wrongful act by VCT in its complaint.  Because they court finds that both respective categories do not establish an independent wrongful act, the court sustains the demurrer to the second cause of action. 

II. Third Cause of Action - Civil Conspiracy

De Anza demurrers to the third Civil Conspiracy cause of action on the ground that it does not state facts sufficient to constitute a cause of action (Code. Civ. Proc., § 430.10(e)) because “an individual cause of action for civil conspiracy is not actionable and conspiracy liability does not attach when a corporate agent conspires with the corporation itself.”

“Conspiracy is not a cause of action, but a legal doctrine that imposes liability on persons who, although not actually committing a tort themselves, share with the immediate tortfeasors a common plan or design in its perpetration. [Citation.]” (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 510-511 [28 Cal.Rptr.2d 475, 869 P.2d 454].)

In other words, a conspiracy, itself, “engenders no tort liability” (ibid.), instead, it is a way of attaching tort liability amongst a group of conspiring tortfeasors.  “By participation in a civil conspiracy, a coconspirator effectively adopts as his or her own the torts of other coconspirators within the ambit of the conspiracy.  In this way, a coconspirator incurs tort liability co-equal with the immediate tortfeasors.”  (Ibid., citation omitted.)

VCT attempts to establish, in its complaint, co-equal tort liability by and amongst the following alleged participants in a “civil conspiracy” for the interference and unlawful business practices torts asserted therein: (A) De Anza; (B) Papapietro, who is identified as De Anza’s CEO and CFO and a shareholder of De Anza; and (C) Mondragon, who is identified as an “agent” of De Anza and Papapietro, and who allegedly performed acts in furtherance of a civil conspiracy relating to the Halliwell scheme “in the course and scope of his authority as Defendants De Anza Tile and Papapietro’s agent.”

“It has long been the rule in California,” however, “that ‘[a]gents and employees of a corporation cannot conspire with their corporate principal or employer where they act in their official capacities on behalf of the corporation and not as individuals for their individual advantage.’ ”  (Black v. Bank of America (1994) 30 Cal.App.4th 1, 4 [35 Cal.Rptr.2d 725] (Black), citing Wise v. Southern Pacific Co. (1963) 223 Cal. App. 2d 50, 72 [35 Cal. Rptr. 652] (Wise) and noting Supreme Court reaffirmation of the rule in Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal. 4th 503, 512, fn. 4 [28 Cal. Rptr. 2d 475, 869 P.2d 454] (Applied Equipment).)

VCT recognizes that the alleged participants in the conspiracy described in its complaint ostensibly fall under the ambit of the rule just stated, but it contends there are various applicable exceptions to “the application of corporate agent immunity,” such as “where an agent may have an independent duty or may act beyond the corporate interest.”   It is not particularly clear, however, what exception VCT means to invoke or how it believes the exception applies in the circumstances of this case.  VCT cites Black and Applied Equipment, but the cited parts of the decisions are not particularly helpful.

In the cited portion of Black, Black notes that Applied Equipment, in a footnote, had endorsed the rule, stated previously in Wise, at page 72, that agents and employees of a corporation cannot conspire with their corporate principal or employer where they act in their official capacities on behalf of the corporation (see Applied Equipment, p. 512, fn. 4), but Black explains that Applied Equipment had created “a conundrum … because other portions of its discussion suggest corporate employees may be liable for conspiring with the corporation, despite their acting on behalf of the corporation, when they owe a duty to the plaintiff independent of the corporation’s duty.” (Id., at p. 4, citing Applied Equipment, at pp. 511-514.)

Black then remarked:  “Given the broadness of the type of duty that would apparently suffice to remove agents' immunity, and the ease with which a violation thereof may be pled, this exception to the rule of agents' immunity, it seems to us, threatens to swallow the rule. The Supreme Court [in Applied Equipment] does not reconcile its approval of this broad exception to the rule of agent immunity with its express affirmation of the rule itself.”  (Id., at pp. 4-5.)

VCT references these portions of the Black decision as “discussing limits and contexts of the doctrine after Applied Equipment,” but confusingly, the “limits and contexts” discussed appear to work against the position VCT advocates in opposition to the De Anza’s demurrer.  The cited portion of Black expresses reticence to adopt exceptions to the agent immunity rule suggested in Applied Equipment.

Additionally, VCT’s discussion of potential bases for non-applicability of the agent immunity rule, even to the extent exceptions might be derived from Applied Equipment, is not particularly clear.

First, VCT points to allegations showing that “Papapietro is not only an officer but also a shareholder,” and notes that it “alleges malicious, nonprivileged conduct directed outward at third parties, including business disparagement/trade libel, and coercive supplier threats and a covert deception based plan to obtain Plaintiff’s confidential and trade secret information to put Plaintiff out of business.”

VCT does not, however, explain how any of this would establish, in its words, an exception to “the application of corporate agent immunity … where an agent may have an independent duty or may act beyond the corporate interest.”

“The example of a duty that would give rise to agents' liability for conspiracy discussed in Applied Equipment,” according to Black—and which Black, this court observes, thought “threatens to swallow the rule,” was the “ ‘ “duty to abstain from injuring the plaintiff through express misrepresentation.” ’ ” (Id., at p. 4) 

Presumably VCT means to invoke this debatably valid exception (debatably valid in light of Black’s discussion of the exception threatening to swallow the rule).  Assuming it is valid, however, despite that VCT states that it alleges the existence of a “covert deception based plan to obtain Plaintiff’s confidential and trade secret information to put Plaintiff out of business” these allegations do not establish an injury “through express misrepresentation” because, as covered earlier, Halliwell, according to VCT’s own complaint, declined to carry out the misrepresentation. 

VCT only submits, beyond this, that “Applied Equipment recognizes that conspiracy liability focuses on shared design and participation in wrongful conduct, and it discusses the circumstances in which agents may be liable based on duties and conduct.”  It is not clear, though, that any point is made here.  The statement appears to be merely that Applied Equipment discusses the elements of conspiracy liability—which it does, they are summarized at page 511—but that does not address in any way the applicability of agent immunity in the circumstances of this case.  

The court finds that, on the face of the complaint, the allegations establish that Papapietro and Mondragon were agents of De Anza, and that Black and Applied Equipment establish they cannot, as a matter of law, be held to have conspired with De Anza, and further, the court finds that the ostensible exception based on an individual’s duty to abstain from express misrepresentations is not shown to apply in the complaint because the complaint does not allege any express misrepresentation by any defendant made to VCT.  

Accordingly, the demurrer to the third cause of action is sustained. 

III. Fourth Cause of Action – Unfair Competition

The Unfair Competition Law (UCL) defines unfair competition as “any unlawful, unfair or fraudulent business act or practice … .” (Bus. & Prof. Code, § 17200.)

VCT alleges, in separately stated allegations, that conduct of De Anza was “unlawful,” that conduct of De Anza was “unfair,” and that that conduct of De Anza was “fraudulent,” and, in this manner, VCT’s fourth cause of action is really three separate claims based on “unlawful,” “unfair,” and “fraudulent” conduct. 

The parties’ arguments, in turn, are directed at each of these distinctly pled claims, which are referenced in the briefs as separate “prong[s]” of the UCL cause of action.  Accordingly, the court will analyze these claims separately.

A. The “Unlawful Prong”

De Anza demurrers to the “unlawful prong” of the UCL cause of action on the ground that it does not state facts sufficient to constitute a cause of action (Code. Civ. Proc., § 430.10(e)) because the complaint “fails to identify an unlawful business practice or law with particularity.”

“By proscribing ‘any unlawful’ business practice, ‘section 17200 “borrows” violations of other laws and treats them as unlawful practices’ that the unfair competition law makes independently actionable. [Citation.]”  (Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 180 [83 Cal.Rptr.2d 548, 973 P.2d 527].)  “A plaintiff alleging unfair business practices under these statutes must state with reasonable particularity the facts supporting the statutory elements of the violation. [Citations.]” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 619 [17 Cal.Rptr.2d 708].)

The court is not persuaded by De Anza’s argument that VCT solely provides a “bare bones recitation of its causes of action for interference with contractual relations, interference with prospective economic advantage, and civil conspiracy” that is “insufficient as a matter of law.”

De Anza, itself, does not challenge the sufficiency of at least the first cause of action, which alleges an unlawful interference with contractual relations, and nothing in De Anza’s brief suggests that the allegation of that violation of law is insufficient for the purposes of the “unlawful prong” of VCT’s UCL cause of action.

B. The “Unfair Prong”

De Anza demurrers to the “unfair prong” of the UCL cause of action on the ground that it does not state facts sufficient to constitute a cause of action (Code. Civ. Proc., § 430.10(e)) because the complaint “fails to identify an unfair act or violation of established public policy.”

The Supreme Court in Cel-Tech concluded that a finding of unfairness to competitors under Business & Professions Code section 17200 must be “tethered to some legislatively declared policy or proof of some actual or threatened impact on competition.”  (Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 186-187 [83 Cal.Rptr.2d 548, 973 P.2d 527] (Cel-Tech).)  Accordingly, Cel-Tech adopted the following test:  “When a plaintiff who claims to have suffered injury from a direct competitor's ‘unfair’ act or practice invokes section 17200, the word ‘unfair’ in that section means conduct that threatens an incipient violation of an antitrust law, or violates the policy or spirit of one of those laws because its effects are comparable to or the same as a violation of the law, or otherwise significantly threatens or harms competition.”  (Ibid.)

VCT maintains that it meets the applicable standard by alleging “conduct designed to restrain competition and put Plaintiff out of business, including business disparagement/trade libel, and coercing a key supplier to cease doing business with Plaintiff and attempting to steal Plaintiff’s confidential and trade secret information through deception and concealment for competitive advantage.”

The court does not find these allegations sufficient to establish a UCL claim based on “unfair” acts within the meaning of the UCL as described in Cel-Tech.  The court agrees with VCT that it is not strictly necessary to use “classic antitrust labels like price fixing or bid rigging” but it does not find the allegations, as stated, describe conduct “that threatens an incipient violation of an antitrust law, or violates the policy or spirit of one of those laws because its effects are comparable to or the same as a violation of the law, or otherwise significantly threatens or harms competition.”

VCT’s allegations describe harms inflicted by defendants against VCT.  VCT’s allegations that “Defendant De Anza Tile’s conduct was unfair because it was designed to restrain competition,” and “is contrary to public policy favoring open competition and freedom of choice for businesses to operate without coercion” are entirely conclusory on the essential issues necessary to support a UCL claim based on “unfair” competition and the court finds them insufficient to support VCT’s claim. 

C. The “Fraudulent Prong”

De Anza demurrers to the “fraudulent prong” of the UCL cause of action on the ground that it does not state facts sufficient to constitute a cause of action (Code. Civ. Proc., § 430.10(e)) because “fraud cannot be found where, as here, it is brought by non-consumers.”

“It has been stated that ‘In order to state a cause of action under the fraud prong of the UCL a plaintiff need not show that he or others were actually deceived or confused by the conduct or business practice in question. “The ‘fraud’ prong of [the UCL] is unlike common law fraud or deception. A violation can be shown  even if no one was actually deceived, relied upon the fraudulent practice, or sustained any damage. Instead, it is only necessary to show that members of the public are likely to be deceived.” ’ [Citations.]’ [Citation.]” (Buller v. Sutter Health (2008) 160 Cal.App.4th 981, 986 [74 Cal.Rptr.3d 47].)

De Anza’s argument emphasizes the requirement that it is “necessary to show that members of the public are likely to be deceived” in establishing a UCL claim based on fraudulent conduct. 

De Anza contends VCT has failed to allege members of the public are likely to be deceived “by any alleged misrepresentation of omission by De Anza Tile” and, moreover, that VCT “has failed to allege any ‘fraudulent’ conduct by De Anza Tile apart from vaguely alleging De Anza Tile’s conduct ‘involved deception and concealment.’ ”

The court agrees with De Anza.  VCT itself merely argues that it alleges “deception and concealment, including business disparagement/trade libel … and a scheme to have Halliwell apply to [VCT] while secretly being paid by De Anza Tile, with secrecy instructions, for the purpose of obtaining confidential and trade secret information for competitive use.”  The court does not find that these allegations establish, as VCT puts it, “[d]eception aimed at market participants, including employees, suppliers, and others in the industry.”

VCT merely alleges a scheme that would involve deception that, if carried out, would only involve deception of VCT.  The court finds these allegations insufficient to support VCT’s claim based on “fraudulent” activity under the UCL.

D. Improper request for “Nonrestitutionary Disgorgement”

De Anza lastly demurrers to the entirety of the UCL cause of action on the ground that VCT seeks a remedy for “nonrestitutionary disgorgement,” which, it maintains, is not a lawful remedy under the UCL.

“[T]he UCL ‘is not an all-purpose substitute for a tort or contract action.’ Instead, the act provides an equitable means through which both public prosecutors and private individuals can bring suit to prevent unfair business practices and restore money or property to victims of these practices. As we have said, the ‘overarching legislative concern [was] to provide a streamlined procedure for the prevention of ongoing or threatened acts of unfair competition.’ Because of this objective, the remedies provided are limited. While any member of the public can bring suit under the act to enjoin a business from engaging in unfair competition, it is well established that individuals may not recover damages.”  (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1150-1151 [131 Cal.Rptr.2d 29, 63 P.3d 937].)

De Anza argues that, here, VCT “seeks what the Korea Supply court called ‘nonrestitutionary disgorgement,’ which ‘closely resembles a claim for damages, something that is not permitted under the UCL.’ ” (Citing Korea Supply, supra, 29 Cal.4th at p. 1151.)

VCT only responds that it “seeks injunctive relief … to prevent further unlawful, unfair, and fraudulent conduct,” which is “a core UCL remedy,” and that “[i]f the Court believes the restitution language should be clarified, then appropriate course is to grant leave to amend.”

The court finds VCT’s allegation that it is entitled “to restitution of all economic benefits wrongfully obtained by Defendant De Anza Tile” and its prayer “[f]or compensatory damages” facially encompasses relief outside the parameters of what the UCL permits as explained in Korea Supply.

E. Conclusion

 Based on the foregoing, the court sustains the demurrer to “unfair” and “fraudulent” prong claims of the UCL cause of action and overrules the demurrer to the “unlawful” prong. 

As to the challenge to the remedy sought by VCT on its UCL cause of action, it is not clear from the discussion in Korea Supply whether VCT’s inappropriate request for relief presents a basis for demurrer, or whether, instead merely subjects the prayer to being stricken from the complaint.  The Korea Supply decision involved review of a Court of Appeal decision following an appeal of a trial court’s sustaining of a general demurrer (id., at p. 1141), but while Korea Supply directly addressed the issue of the remedy sought by the plaintiff, it did not discuss or address the procedural posture of the issue as presented on demurrer. 

Notwithstanding the general rule that “[a] demurrer does not lie to a portion of a cause of action” (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682 [40 Cal.Rptr.2d 169]) and that the unavailability of a particular remedy sought in the complaint does not, itself, clearly dispose of any of the discrete claims asserted in the UCL cause of action, the court finds it clearly established, on consideration of the arguments of the parties addressing the issue, that VCT’s requested remedy is inappropriate in its UCL cause of action, and treats the demurrer, on this issue, as a motion to strike and orders the allegations by which VCT seeks restitution and compensatory damages stricken.

IV. Leave to Amend

The court finds that there is a reasonable possibility that an amendment could remedy the defects identified above (Heckendorn v. City of San Marino (1986) 42 Cal.3d 481, 486 [229 Cal.Rptr. 324, 723 P.2d 64]), the demurrer is, to the extent it is sustained, is sustained with leave to amend.  In addition, VCT shall have leave to amend with respect to this court’s order striking its allegations regarding relief under its UCL cause of action.

Plaintiff shall file an amended complaint within 10 days’ notice of this ruling.

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:                Wodley, Frank A vs. Mendoza, Michaelpaul

Case No.:   VCU325744

Date:           January 26, 2026

Time:           8:30 A.M. 

Dept.           7-The Honorable Russell P. Burke

Motion:      Special Motion to Strike (Anti-SLAPP)

Tentative Ruling:  To grant Michaelpaul Mendoza’s special motion to strike (anti-SLAPP).

In this action, Frank Wodley sues Michaelpaul Mendoza, a former board member of The Windmills homeowner’s association (HOA).  Mendoza specially moves to strike (anti-SLAPP) Wodley’s entire complaint.

Wodley’s disputes with Mendoza—which, in essence, are really disputes with the HOA—originate from a failed election bid by Wodley for an HOA board seat in or around July 2023.  According to the complaint, candidates for election were listed alphabetically on a ballot sent to voters; Wodley was listed last; and Wodley received the fewest votes.  Wodley thereafter, in September 2023, “served a formal Election Challenge citing ballot-order bias.”

Wodley alleges he “is an 82-year-old disabled homeowner in Tulare County,” with “decades of homeowner-rights advocacy experience.”  Mendoza is identified as having served on the HOA board from 2020 to 2025 and as having served as HOA president from July 2023 to July 2024.  Wodley alleges that Mendoza “approved the … biased election format:  alphabetical order, suppressed bios, and marginalization of reform candidates.”

Wodley alleges that, about a week after he submitted his “Election Challenge,” “Mendoza presided over the meeting denying the challenge,” during which he “barred recordings, kept skeletal minutes, ignored Plaintiff's evidence, and later admitted his ‘research’ was limited to the Davis-Stirling [Act] website.”  Wodley alleges he thereafter “submitted a 9-page Rebuttal documenting the defects facts, research, and consequences of the denial.”

Inferably, this process did not result in a satisfactory outcome to Wodley, either by way of a favorable HOA determination or an acceptable HOA procedure for adjudicating his election dispute. 

On November 7, 2023, Wodley alleges, Wodley sent an email, which was sent to Mendoza, that include the sentence:  “If you continue this charade, someone will get hurt.  That is not my goal.” 

According to Wodley, he sent subsequent emails clarifying that he meant “[h]urt meaning to their [the board members’] character, not bodily,” and that he “never said the board will be hurt,” he “said someone”; but despite these subsequent emails, Mendoza “canceled the IDR [apparently the ongoing HOA internal dispute resolution process regarding Wodley’s election challenge], and escalated matters.”  Wodley alleges “[h]ours after canceling IDR, the HOA’s attorney sent a Cease & Desist letter.”

Wodley alleges that despite his having ceased sending further emails or having any further direct contact with the board after November 7, 2023, “[b]etween December 1-7, 2023, Mendoza coordinated multiple nearly identical Civil Harassment Restraining Order (CHRO) petitions recycling the same mischaracterization of Plaintiff’s email [as being intended as a physical threat].”

The court here notes that, between late November and early December 2023, Wodley was the subject of six separate restraining order requests, including a workplace violence restraining order request by the HOA, and five civil harassment restraining order requests by individual petitioners, including Mendoza.  All six matters were consolidated and resolved, without issuance of a restraining order, with Wodley agreeing to participate in HOA meetings via Zoom, communicating with board members solely electronically via an HOA portal, and not otherwise contacting board members or their families.  Wodley includes allegations suggesting that Judge David Mathias, who presided over the restraining order matters, found the petitioners had all failed to identify “direct threats” by Wodley, and noted “many petitions were ‘cut and pasted.’ ”

Wodley alleges that, during “mediation in January 2024” (inferably in the course of the consolidated restraining order proceedings), “Defendants’ counsel [presumably referring to counsel for the petitioners in the various restraining order proceedings] threatened [Wodley] and his wife:  accept all terms or face a $10,000 bill,” and that “[Wodley’s] wife broke down crying, overwhelmed by fear and stress.” 

Wodley further alleges that, in March 2024, that “Mendoza authored a newsletter to 292 homes claiming the HOA was ‘forced to hire an attorney to protect the community from Plaintiff’ at a cost of $23,483.60,” which “was false and misleading, as the Court had already rejected the CHRO claims.”

Wodley also alleges that, during the entirety of Mendoza’s time as a board member and HOA president, he “presided over escalating expenses and refus[ed] financial transparency,” and Wodley describes various areas of alleged wasteful/excessive HOA spending. 

Wodley then alleges that, over a year later, in April 2025, Wodley “mailed certified Demand and Preservation of Evidence letters to all sitting board members, including Defendant Mendoza,” and “[w]hile others signed or responded, Mendoza expressly refused to accept service.”  Wodley alleges that, the following month, he “mailed follow-up letters,” which, presumably, Wodley infers Mendoza also “refused to accept” as he alleges, generally, that “Mendoza’s refusal to accept these preservation demands demonstrates a willful effort to obstruct accountability and transparency, consistent with his role in denying Plaintiff's 2023 election challenge, escalating the November 7, 2023 email, filing retaliatory CHROs, and authoring defamatory newsletters.”

Finally, Wodley alleges that “Mendoza acted in concert” with various identified individuals and “Evans Management” in the various conduct described above.    

Wodley asserts four causes of action: for breach of fiduciary duty; for intentional infliction of emotional distress (IIED); for abuse of process; and for “Civil Conspiracy.”  The latter cause of action is an amalgam of the prior three—based on allegations that Mendoza acted in concert with others with respect to the conduct giving rise to the first three causes of action.

Each of Wodley’s causes of action are based on discrete claims. 

The first cause of action is based on claims that Mendoza breached fiduciary duties owed Wodley by:

1. “Predetermining and denying Plaintiff's election challenge”;
2. “Publishing false and damaging statements in the March 2024 newsletter”;
3. “Diverting HOA funds to retaliation [i.e., the restraining order proceedings] while core operations suffered”;
4. “Refusing preservation of evidence despite formal demands” (i.e., refusing “to accept service” of Wodley’s “Demand and Preservation of Evidence letters”); and
5. “Denying records access” (i.e., again, refusing Wodley’s “Demand and Preservation of Evidence letters”).

The second cause of action is based on claims that Mendoza engaged in “conduct” that “was outrageous and intended to cause harm, including:”

1. “Misusing CHROs”;
2. “Coercing Plaintiff and his crying wife at mediation with threats of a $10,000 bill;” (apparently Wodley attributes the alleged conduct of Mendoza’s counsel during the January 2024 mediation to Mendoza);
3. “Smearing Plaintiff publicly to his entire community”;
4. “Blocking Plaintiffs election rights and reform efforts”; and
5. “Refusing to preserve evidence” (i.e., again, refusing Wodley’s “Demand and Preservation of Evidence letters”).

The third cause of action is based on claims that Mendoza “misused legal process” by:

1. “[F]iling duplicative CHROs”; and
2. “[M]isuing mediation to intimidate Plaintiff into submission.”

By implication, Wodley’s fourth conspiracy cause of action is based on Mendoza’s conspiring with others in the commission of the alleged conduct giving rise to all 12 of the above-listed claims under the first three causes of action.  Wodley alleges “Defendant conspired with others to entrench control and retaliate against Plaintiff.”

Wodley asserts in his complaint that he “seeks vindication and truth, not financial gain,” but it is not accurate to suggest he does not seek damages and other financial renumeration.  In addition to “[d]eclaratory relief that Defendant breached fiduciary duties and retaliated against Plaintiff” and “[r]estoration of reputation and acknowledgement of wrongdoing,” Wodley also prays for general and special damages, punitive damages, and costs. 

ANALYSIS

A. Anti-SLAPP

The anti-SLAPP statute “provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity. Resolution of an anti-SLAPP motion involves two steps. First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. [Citation.] If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success.”  (Baral v. Schnitt (2016) 1 Cal.5th 376, 384 [205 Cal.Rptr.3d 475, 376 P.3d 604] (Baral), italics omitted.)

The anti-SLAPP statute, Code of Civil Procedure section 425.16, at subdivision (b)(1), states that “[a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike.”

“As our Supreme Court explained in Baral, the statute uses the term ‘cause of action’ in a particular way to target ‘claims that are based on the conduct protected by the statute.’ The term is not limited to a specific count as pleaded in a complaint. Thus, while an anti-SLAPP motion ‘does not reach claims based on unprotected activity,’ it ‘may challenge any claim for relief founded on allegations of protected activity.’ A claim targeted by an anti-SLAPP motion ‘must amount to a “cause of action” in the sense that it is alleged to justify a remedy.’ ” (Rudisill v. California Coastal Com. (2019) 35 Cal.App.5th 1062, 1071 [247 Cal.Rptr.3d 840], citations omitted.)  Stated another way, “[t]he statute's definitional focus is not on the form of the plaintiff's cause of action but rather the defendant's activity giving rise to his or her asserted liability and whether that activity constitutes protected speech or petitioning.”  (Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1232 [132 Cal.Rptr.2d 57].) 

Accordingly, “[a]nalysis of an anti-SLAPP motion is not confined to evaluating whether an entire cause of action, as pleaded by the plaintiff, arises from protected activity or has merit. Instead, courts should analyze each claim for relief—each act or set of acts supplying a basis for relief, of which there may be several in a single pleaded cause of action—to determine whether the acts are protected and, if so, whether the claim they give rise to has the requisite degree of merit to survive the motion. [Citation.]”  (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1010 [281 Cal.Rptr.3d 678, 491 P.3d 1058].)

B. First Step

For purposes of the first step of anti-SLAPP analysis, protected activity includes “any act … in furtherance of the … right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue.”  (Code Civ. Proc., § 425.16, subd. (b)(1).) 

“ ‘[A]ct[s] in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue’ include[] (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.”  (Id., subd. (e).)

Under the surface of Wodley’s sprawling, scatter-shot complaint there may, potentially, be lurking some kind of claim outside the “definitional focus” (Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1232 [132 Cal.Rptr.2d 57]) of the anti-SLAPP statute by which Wodley means to target the fairness or validity of the procedures he was afforded by the HOA in the adjudication of his election, or, perhaps, the “[a]cts of governance” (San Ramon Valley Fire Protection Dist. v. Contra Costa County Employees' Retirement Assn. (2004) 125 Cal.App.4th 343, 354 [22 Cal.Rptr.3d 724]) occurring in the course of those procedures, in the manner of a petition for writ of mandate or for writ of administrative mandate.

While, “in an appropriate case, a petition for mandamus may be subject to a special motion to strike just like any other form of action” (id., at p. 353), the collective action of the HOA in denying Wodley’s election challenge or the denial of statutorily provided, or otherwise fair, procedures, could appropriately be challenged by such a petition without running afoul of the anti-SLAPP statute because such a challenge would not arise from acts taken by the HOA board, or its individual members, in furtherance of their right of petition or free speech (see id, at pp. 353-356 [discussing relevant examples]).

Wodley comes closest to this in his claim under his first cause of action targeted at Mendoza’s alleged “[p]redetermining and denying Plaintiff's election challenge,” but even here, having stated the claim as the basis of a cause of action for breach of fiduciary duty, Wodley directs the focus of his claim precisely at Mendoza’s petitioning activity because Mendoza’s expression of denial “in connection with an issue under consideration or review [in an] official proceeding authorized by law” (Code Civ. Proc., § 425.16, subd. (e)) itself is alleged to be actionable conduct in breach of fiduciary duties allegedly owned by Mendoza to Wodley. 

This is all to say that Wodley, at least in the above instance, indicates a dispute that may not run afoul of the anti-SLAPP statute, but the manner of his assertion of his claims arising from that dispute, as pled, runs squarely into the ambit of the anti-SLAPP statute.  Ultimately, Wodley seeks legal relief based on Mendoza’s involvement in HOA board activities, not based on the board’s actions or the process afforded Wodley in connection with the board actions. 

And, beyond this, the remainder of Wodley’s claims also run squarely into the definitional focus of the anti-SLAPP statute.  Wodley targets Mendoza’s involvement in protected litigation activity relating to restraining orders and mediation of the restraining order proceedings (see Thomas v. Quintero (2005) 126 Cal.App.4th 635, 642 [24 Cal.Rptr.3d 619]); his “refusal to accept service” of letters demanding preservation of evidence in anticipation of litigation, his participation in communications regarding litigation to HOA community members, and his participation, generally, in HOA dispute resolution proceedings (see Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 647 [49 Cal.Rptr.2d 620]; Cabrera v. Alam (2011) 197 Cal.App.4th 1077, 1087-1090 [129 Cal.Rptr.3d 74], all of which target Mendoza’s protected petitioning activity. 

Accordingly, the court turns to the second step of anti-SLAPP analysis.

C. Second Step

Mendoza correctly contends, with one exception, that Wodley cannot establish a probability of prevailing with respect to any of his claims because his claims are barred by the litigation privilege under Civil Code 47.

“ ‘ “[T]he litigation ‘privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action. [Citations.]” [Citation.]’ [Citation.]”  (Seltzer v. Barnes (2010) 182 Cal.App.4th 953, 970 [106 Cal.Rptr.3d 290].)

These elements are met with respect to all Wodley’s claims, but the litigation privilege, however, does not extend to Wodley’s “abuse of process” claim based on “filing duplicative CHROs.” 

Though styled as an “abuse of process” cause of action, with respect to this particular claim, Wodley substantively asserts a malicious prosecution claim.  (See S.A. v. Maiden (2014) 229 Cal.App.4th 27, 41-42 [176 Cal.Rptr.3d 567] [“Malicious prosecution and abuse of process are distinct. The former concerns a meritless lawsuit (and all the damage it inflicted). The latter concerns the misuse of the tools the law affords litigants once they are in a lawsuit (regardless of whether there was probable cause to commence that lawsuit in the first place)”] (Maiden).)  The litigation privilege does not apply to malicious prosecution claims.  (Silberg v. Anderson (1990) 50 Cal.3d 205, 216 [266 Cal.Rptr. 638, 786 P.2d 365].)

This is not to say that the entirety of the abuse of process cause of action escapes the litigation privilege argument.  Wodley’s claim that Mendoza “misus[ed] mediation to intimidate Plaintiff into submission” is, indeed, an abuse of process claim directed at “misuse of the tools the law affords litigants once they are in a lawsuit.”  (Maiden, supra, 229 Cal.App.4th at p. 42.)

The court finds that this claim, along with the remainder of Wodley’s claims, squarely implicate the protections of the litigation privilege.

“The principal purpose of [the litigation privilege] is to afford litigants and witnesses [citation] the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions. [Citations.]” (Silberg, supra, 50 Cal.3d at p. 213.)  “In order to achieve this purpose of curtailing derivative lawsuits, [the Supreme Court has] given the litigation privilege a broad interpretation. … Beginning with Albertson v. Raboff [(1956) 46 Cal.2d 375 [295 P.2d 405]], which involved an action for defamation of title, [the California Supreme Court] first extended the litigation privilege to apply to torts other than defamation. [Citation.] As [the Supreme Court] observed in Silberg, the litigation privilege has since ‘been held to immunize defendants from tort liability based on theories of abuse of process [citations], intentional infliction of emotional distress [citations], intentional inducement of breach of contract [citations], intentional interference with prospective economic advantage [citation], negligent misrepresentation [citation], invasion of privacy [citation], negligence [citation] and fraud [citations].’ [Citation.]”  (Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1241 [63 Cal.Rptr.3d 398, 163 P.3d 89].)

It cannot reasonably be disputed that these elements are met with respect to Wodley’s claims (aside from the noted exception of the substantive malicious prosecution claim based on Mendoza’s involvement in restraining order proceedings) targeting Mendoza’s communications and conduct in the court of HOA internal dispute resolution proceedings, in the course of litigation, and in the course of HOA proceedings generally. 

Accordingly, the court finds that Mendoza’s motion must be granted, based on its determination at the second step of anti-SLAPP analysis regarding the litigation privilege, to all Wodley’s claims save his substantive malicious prosecution claim based on Mendoza’s involvement in restraining order proceedings.

Regarding this excepted claim, the court notes Mendoza’s other argument (targeted also at all of Wodley’s claims) that Wodley cannot prevail because Wodley did not “sue in accordance with [the Davis-Stirling Act],” which “provides for default procedures related to Board elections” and “posits clear dispute resolution procedures where a dispute involves an association member’s rights, duties, or liabilities under the Act.”  It appears that Mendoza is arguing that Wodley’s claims fail because he failed to exhaust administrative remedies. 

The court does not agree, with respect to the claim at issue, that Wodley was required to exhaust administrative HOA procedures, however, with respect to a malicious prosecution claim based on Mendoza’s individual involvement in restraining order proceedings against him as such dispute neither pertains to “Board elections” or “an association member’s rights, duties, or liabilities under the [the Davis-Stirling] Act.” 

Beyond this, though, the court still must consider whether Wodley makes a “minimal merit” (Navellier v. Sletten (2002) 29 Cal.4th 82, 93 [124 Cal.Rptr.2d 530, 52 P.3d 703]) showing with respect to his malicious prosecution claim.  The court finds that Wodley fails to make the requisite showing.

“To establish a cause of action for the malicious prosecution of a civil proceeding, a plaintiff must plead and prove that the prior action (1) was commenced by or at the direction of the defendant and was pursued to a legal termination in his, plaintiff’s, favor; (2) was brought without probable cause; and (3) was initiated with malice.” (Bertero v. National General Corp. (1974) 13Cal.3d 43, 50 [118 Cal.Rptr. 184, 529 P.2d 608], internal citations omitted.)

Wodley concedes he agreed to a stay-away order and that himself alleges that he sent an email stating: “If you continue this charade, someone will get hurt.”  The court does not find any of the evidence presented by Wodley shows merit to the claim that such statement was not probable cause for the pursuit of restraining orders or that the proceedings were initiated with malice.  Wodley’s sole showing that he sent emails “stating that [he] meant no harm” do not establish that Mendoza lacked probable cause to believe that Wodley had engaged in conduct presenting a “credible threat of violence” (Code Civ. Proc., § 527.6).

What’s more, in order to secure cessation of the pending restraining order proceedings, Wodley agreed to participate in HOA meetings via Zoom, communicate with board members solely electronically via an HOA portal, and not otherwise contact board members or their families.  The court does not find that such agreement is indicative of a termination of the proceedings in Wodley’s favor. 

Accordingly, the court finds that Mendoza’s motion also must be granted with respect to Wodley’s malicious prosecution claim. 

Based on the foregoing, the anti-SLAPP motion is granted as to the entirety of Wodley’s 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:                Wodley, Frank A vs. Redstone, Matt

Case No.:   VCU325739 

Date:           January 26, 2026

Time:           8:30 A.M. 

Dept.           7-The Honorable Russell P. Burke

Motion:      Special Motion to Strike (Anti-SLAPP)

Tentative Ruling:  To grant Matt Redstone’s special motion to strike (anti-SLAPP).

In this action, Frank Wodley sues Matt Redstone, a former board member of The Windmills homeowner’s association (HOA).  Redstone specially moves to strike (anti-SLAPP) Wodley’s entire complaint.

Wodley’s disputes with Redstone—which, in essence, are really disputes with the HOA—originate from a failed election bid by Wodley for an HOA board seat in or around July 2023.  According to the complaint, candidates for election were listed alphabetically on a ballot sent to voters; Wodley was listed last; and Wodley received the fewest votes.  Wodley thereafter, in September 2023, “served a formal Election Challenge citing ballot-order bias.”

Wodley alleges he “is an 82-year-old disabled homeowner in Tulare County,” with “decades of homeowner-rights advocacy experience.”  Redstone is identified as having served on the HOA board from July 2023 to May 2025—inferably having been elected in the election disputed by Wodley—and as having served as HOA president from July 2024 to May 2025.

Wodley alleges that, about a week after he submitted his “Election Challenge,” “Redstone participated in the [HOA] Board’s denial without independent review or written reasons,” and Wodley thereafter “submitted a 9-page Rebuttal documenting the defects [in the electoral process vis-à-vis the alphabetical listing of candidates] and consequences [i.e., an election that Wodley felt was unfair].”

Inferably, this process did not result in a satisfactory outcome to Wodley, either by way of a favorable HOA determination or an acceptable HOA procedure for adjudicating his election dispute. 

On November 7, 2023, Wodley alleges, Wodley sent an email (to an individual board member; not Redstone) that include the sentence:  “If you continue this charade, someone will get hurt.  That is not my goal.” 

According to Wodley, he sent subsequent emails clarifying that he meant “[h]urt meaning to their [the board members’] character, not bodily,” and that he “never said the board will be hurt,” he “said someone”; but despite these subsequent emails, “the HOA canceled IDR [apparently the ongoing HOA internal dispute resolution process regarding Wodley’s election challenge] and labeled the email a ‘threat,’ ” and “the HOA’s attorney sent a Cease & Desist.”

Wodley alleges that despite his having ceased sending further emails or having any further direct contact with the board after November 7, 2023, “[b]etween December 1-7, 2023, Defendant Redstone joined and filed Civil Harassment Restraining Order (CHRO) petitions repeating the same mischaracterization [of Wodley’s email “as a physical threat despite the clarifications and Plaintiff’s outreach].”

The court here notes that, between late November and early December 2023, Wodley was the subject of six separate restraining order requests, including a workplace violence restraining order request by the HOA, and five civil harassment restraining order requests by individual petitioners, including Redstone.  All six matters were consolidated and resolved, without issuance of a restraining order, with Wodley agreeing to participate in HOA meetings via Zoom, communicating with board members solely electronically via an HOA portal, and not otherwise contacting board members or their families.  Wodley includes allegations suggesting that Judge David Mathias, who presided over the restraining order matters, found the petitioners had all failed to identify “direct threats” by Wodley, and noted “many petitions were ‘cut and pasted.’ ”

Wodley alleges that, during “mediation in January 2024” (inferably in the course of the consolidated restraining order proceedings), “defense counsel [presumably referring to counsel for the petitioners in the various restraining order proceedings] threatened [Wodley] and his wife with a $10,000 consequence if they did not accept terms; [and] [Wodley’s] wife broke down crying.” 

Wodley then alleges that, approximately six weeks later, in March 2024, “Redstone personally represented the Board” during dispute resolution proceedings in which he “acted with hostility, dismissing Plaintiff's evidence and proposals for a website, newsletter, homeowner committees, and surveys.” 

Wodley further alleges, also in March 2024, that “a Board newsletter”—with Redstone having “supported the Board that disseminated it”—“was distributed to 292 homes, claiming the HOA was ‘forced’ to hire counsel to protect the community from [Wodley]; [and] the piece was misleading and humiliating in light of Judge Mathias’s [alleged] comments [during the restraining order proceedings].”

Wodley also alleges that, during the entirety of Redstone’s time as a board member and HOA president, he “presided over escalating expenses and refused transparency,” and Wodley describes various areas of alleged wasteful/excessive HOA spending.  Woodley alleges “[h]omeowners complained about the lack of precise budget detail.”

Wodley then alleges that, over a year later, in April 2025, Wodley “mailed Demand and Preservation of Evidence letters via certified mail to all sitting board members, including Defendant Redstone”; “Redstone expressly refused to accept service”; and, the following month, Wodley “mailed follow-up letters,” which, presumably, Wodley infers Redstone also “refused to accept” as he alleges, generally, that “Redstone’s refusal demonstrates a willful effort to obstruct accountability and transparency, consistent with his roles in: denying the 2023 challenge, escalating the November 7 email, participating in retaliatory CHROs, rejecting reforms, and presiding over waste.”

Finally, Wodley alleges that “Redstone acted in concert” with various identified individuals and “Evans Management” “to commit the torts [earlier described in the complaint].”  None of the alleged co-conspirators, the court notes, are identified as defendants in the complaint (Redstone is the only named defendant). 

Wodley asserts four causes of action: for breach of fiduciary duty; for intentional infliction of emotional distress (IIED); for abuse of process; and for “Civil Conspiracy.”  The latter cause of action is an amalgam of the prior three—based on allegations that Redstone acted in concert with others with respect to the conduct giving rise to the first three causes of action.

Each of Wodley’s causes of action are based on discrete claims. 

The first cause of action is based on claims that Redstone breached fiduciary duties owed Wodley by:

6. “Denying Plaintiff’s 2023 election challenge without independent review”;
7. “Refusing preservation of evidence despite formal demands” (i.e., refusing “to accept service” of Wodley’s “Demand and Preservation of Evidence letters”);
8. “Approving or participating in retaliatory legal spend (~$25,000) associated with CHROs”;
9. “Presiding over wasteful contracts and opaque finances while core functions suffered”; and
10. “Rejecting transparency reforms and records access” (Wodley includes an attachment of his notes from March 2024 board proceedings—during which Redstone allegedly “acted with hostility” toward Wodley—which indicate Redstone found the basis of Wodley’s election challenged lacked merit, was based merely on Wodley’s “opinion,” and that it was Wodley’s “fault that [he] lost”).

The second cause of action is based on claims that Redstone “engaged in extreme and outrageous conduct intended to cause (or in reckless disregard of causing) severe emotional distress” by:

6. “Participating in duplicative CHROs based on a mischaracterized email”;
7. “Coercive mediation tactics that caused Plaintiff’s wife to break down crying” (apparently Wodley attributes the alleged conduct of Redstone’s counsel during the January 2024 mediation to Redstone);
8. “Hostile conduct at IDR and rejection of reforms” (i.e., during the board proceedings in March 2024);
9. “Supporting publication of a smearing newsletter to the entire community”; and
10. “Refusing to preserve evidence” (i.e., refusing Wodley’s “Demand and Preservation of Evidence letters”).

The third cause of action is based on claims that Redstone “misused legal process” by:

3. “[F]iling and supporting CHRO petitions not for protection but to retaliate against and silence Plaintiff's protected participation in HOA affairs”; and
4. “[U]s[ing] mediation to intimidate and coerce compliance rather than to resolve a bona fide safety dispute.”

By implication, Wodley’s fourth conspiracy cause of action is based on Redstone’s conspiring with others in the commission of the alleged conduct giving rise to all 12 of the above-listed claims under the first three causes of action.  Wodley alleges “Defendant agreed and acted in concert with others … to commit the torts alleged above—abuse of process, ITED, and breaches of fiduciary duty—through coordinated actions … .”

Wodley asserts in his complaint that he “seeks vindication and truth, not financial gain,” but it is not accurate to suggest he does not seek damages and other financial renumeration.  In addition to “[d]eclaratory relief that Defendant breached fiduciary duties and retaliated against Plaintiff” and “[r]estoration of reputation and acknowledgement of wrongdoing,” Wodley also prays for general and special damages, punitive damages, and costs. 

ANALYSIS

A. Anti-SLAPP

The anti-SLAPP statute “provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity. Resolution of an anti-SLAPP motion involves two steps. First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. [Citation.] If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success.”  (Baral v. Schnitt (2016) 1 Cal.5th 376, 384 [205 Cal.Rptr.3d 475, 376 P.3d 604] (Baral), italics omitted.)

The anti-SLAPP statute, Code of Civil Procedure section 425.16, at subdivision (b)(1), states that “[a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike.”

“As our Supreme Court explained in Baral, the statute uses the term ‘cause of action’ in a particular way to target ‘claims that are based on the conduct protected by the statute.’ The term is not limited to a specific count as pleaded in a complaint. Thus, while an anti-SLAPP motion ‘does not reach claims based on unprotected activity,’ it ‘may challenge any claim for relief founded on allegations of protected activity.’ A claim targeted by an anti-SLAPP motion ‘must amount to a “cause of action” in the sense that it is alleged to justify a remedy.’ ” (Rudisill v. California Coastal Com. (2019) 35 Cal.App.5th 1062, 1071 [247 Cal.Rptr.3d 840], citations omitted.)  Stated another way, “[t]he statute's definitional focus is not on the form of the plaintiff's cause of action but rather the defendant's activity giving rise to his or her asserted liability and whether that activity constitutes protected speech or petitioning.”  (Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1232 [132 Cal.Rptr.2d 57].) 

Accordingly, “[a]nalysis of an anti-SLAPP motion is not confined to evaluating whether an entire cause of action, as pleaded by the plaintiff, arises from protected activity or has merit. Instead, courts should analyze each claim for relief—each act or set of acts supplying a basis for relief, of which there may be several in a single pleaded cause of action—to determine whether the acts are protected and, if so, whether the claim they give rise to has the requisite degree of merit to survive the motion. [Citation.]”  (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1010 [281 Cal.Rptr.3d 678, 491 P.3d 1058].)

B. First Step

For purposes of the first step of anti-SLAPP analysis, protected activity includes “any act … in furtherance of the … right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue.”  (Code Civ. Proc., § 425.16, subd. (b)(1).) 

“ ‘[A]ct[s] in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue’ include[] (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.”  (Id., subd. (e).)

Under the surface of Wodley’s sprawling, scatter-shot complaint there may, potentially, be lurking some kind of claim outside the “definitional focus” (Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1232 [132 Cal.Rptr.2d 57]) of the anti-SLAPP statute by which Wodley means to target the fairness or validity of the procedures he was afforded by the HOA in the adjudication of his election, or, perhaps, the “[a]cts of governance” (San Ramon Valley Fire Protection Dist. v. Contra Costa County Employees' Retirement Assn. (2004) 125 Cal.App.4th 343, 354 [22 Cal.Rptr.3d 724]) occurring in the course of those procedures, in the manner of a petition for writ of mandate or for writ of administrative mandate.

While, “in an appropriate case, a petition for mandamus may be subject to a special motion to strike just like any other form of action” (id., at p. 353), the collective action of the HOA in denying Wodley’s election challenge or the denial of statutorily provided, or otherwise fair, procedures, could appropriately be challenged by such a petition without running afoul of the anti-SLAPP statute because such a challenge would not arise from acts taken by the HOA board, or its individual members, in furtherance of their right of petition or free speech (see id, at pp. 353-356 [discussing relevant examples]).

Wodley comes closest to this in his claim under his first cause of action targeted at Redstone’s alleged denial of his “2023 election challenge without independent review,” but even here, having stated the claim as the basis of a cause of action for breach of fiduciary duty, Wodley directs the focus of his claim precisely at Redstone’s petitioning activity because Redstone’s expression of denial “in connection with an issue under consideration or review [in an] official proceeding authorized by law” (Code Civ. Proc., § 425.16, subd. (e)) itself is alleged to be actionable conduct in breach of fiduciary duties allegedly owned by Redstone to Wodley. 

Similarly, Wodley might have properly asserted a claim targeted at the board’s involvement in alleged “wasteful contracts and opaque finances” that did not run afoul of the anti-SLAPP statute, but Wodley, again, directs his focus, through framing as a breach of fiduciary duty claim against Redstone, at Redstone’s protected petitioning activity in participating, as an individual board member and/or HOA president, i.e., “[p]residing over,” HOA contracts and finances.  Even a breach of fiduciary duty claim directed at the HOA itself could presumably be construed as directed at wasteful spending and not protected petitioning activity (see e.g., Baharian-Mehr v. Smith (2010) 189 Cal.App.4th 265, 273 [117 Cal.Rptr.3d 153]), but in the case of Wodley’s claim, he targets Redstone’s individual participation (i.e., his petitioning activity) in HOA contract and finance determinations in a claim inextricably intertwined with an implied dispute against the subject contract and finance determinations.

This is all to say that Wodley, in a couple instances, indicates disputes that may not run afoul of the anti-SLAPP statute, but the manner of his assertion of his claims arising from those disputes, as pled, runs squarely into the ambit of the anti-SLAPP statute.  Ultimately, Wodley seeks legal relief based on Redstone’s involvement in HOA board activities, not based on the board’s actions or the process afforded Wodley in connection with the board actions. 

And, beyond this, the remainder of Wodley’s claims also run squarely into the definitional focus of the anti-SLAPP statute.  Wodley targets Redstone’s involvement in protected litigation activity relating to restraining orders and (indirect) involvement in “[c]oercive mediation tactics” in the course of restraining order proceedings (see Thomas v. Quintero (2005) 126 Cal.App.4th 635, 642 [24 Cal.Rptr.3d 619]); his “refusal to accept service” of letters demanding preservation of evidence in anticipation of litigation, his participation in communications regarding litigation to HOA community members (“publication of a smearing newsletter”), “[r]ejecting transparency reforms and records access” by way of determining against Wodley in HOA dispute resolution proceedings, and “[h]ostile conduct” during those HOA proceedings (see Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 647 [49 Cal.Rptr.2d 620]; Cabrera v. Alam (2011) 197 Cal.App.4th 1077, 1087-1090 [129 Cal.Rptr.3d 74], all of which target Redstone’s protected petitioning activity. 

Accordingly, the court turns to the second step of anti-SLAPP analysis.

C. Second Step

Redstone correctly contends, with one exception, that Wodley cannot establish a probability of prevailing with respect to any of his claims because his claims are barred by the litigation privilege under Civil Code 47.

“ ‘ “[T]he litigation ‘privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action. [Citations.]” [Citation.]’ [Citation.]”  (Seltzer v. Barnes (2010) 182 Cal.App.4th 953, 970 [106 Cal.Rptr.3d 290].)

These elements are met with respect to all Wodley’s claims, but the litigation privilege, however, does not extend to Wodley’s “abuse of process” claim based on “filing and supporting CHRO petitions not for protection but to retaliate against and silence Plaintiff's protected participation in HOA affairs.” 

Though styled as an “abuse of process” cause of action, with respect to this particular claim, Wodley substantively asserts a malicious prosecution claim.  (See S.A. v. Maiden (2014) 229 Cal.App.4th 27, 41-42 [176 Cal.Rptr.3d 567] [“Malicious prosecution and abuse of process are distinct. The former concerns a meritless lawsuit (and all the damage it inflicted). The latter concerns the misuse of the tools the law affords litigants once they are in a lawsuit (regardless of whether there was probable cause to commence that lawsuit in the first place)”] (Maiden).)  The litigation privilege does not apply to malicious prosecution claims.  (Silberg v. Anderson (1990) 50 Cal.3d 205, 216 [266 Cal.Rptr. 638, 786 P.2d 365].)

This is not to say that the entirety of the abuse of process cause of action escapes the litigation privilege argument.  Wodley’s claim that Redstone “misused legal process” by “us[ing] mediation to intimidate and coerce compliance rather than to resolve a bona fide safety dispute” is, indeed, an abuse of process claim directed at “misuse of the tools the law affords litigants once they are in a lawsuit.”  (Maiden, supra, 229 Cal.App.4th at p. 42.)

The court finds that this claim, along with the remainder of Wodley’s claims, squarely implicate the protections of the litigation privilege.

“The principal purpose of [the litigation privilege] is to afford litigants and witnesses [citation] the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions. [Citations.]” (Silberg, supra, 50 Cal.3d at p. 213.)  “In order to achieve this purpose of curtailing derivative lawsuits, [the Supreme Court has] given the litigation privilege a broad interpretation. … Beginning with Albertson v. Raboff [(1956) 46 Cal.2d 375 [295 P.2d 405]], which involved an action for defamation of title, [the California Supreme Court] first extended the litigation privilege to apply to torts other than defamation. [Citation.] As [the Supreme Court] observed in Silberg, the litigation privilege has since ‘been held to immunize defendants from tort liability based on theories of abuse of process [citations], intentional infliction of emotional distress [citations], intentional inducement of breach of contract [citations], intentional interference with prospective economic advantage [citation], negligent misrepresentation [citation], invasion of privacy [citation], negligence [citation] and fraud [citations].’ [Citation.]”  (Action Apartment Assn., Inc. v. City of Santa Monica (2007) 41 Cal.4th 1232, 1241 [63 Cal.Rptr.3d 398, 163 P.3d 89].)

It cannot reasonably be disputed that these elements are met with respect to Wodley’s claims (aside from the noted exception of the substantive malicious prosecution claim based on Redstone’s involvement in restraining order proceedings) targeting Redstone’s communications and conduct in the court of HOA internal dispute resolution proceedings, in the course of litigation, and in the course of HOA proceedings generally. 

Accordingly, the court finds that Redstone’s motion must be granted, based on its determination at the second step of anti-SLAPP analysis regarding the litigation privilege, to all Wodley’s claims save his substantive malicious prosecution claim based on Redstone’s involvement in restraining order proceedings.

Regarding this excepted claim, the court notes Redstone’s other argument (targeted also at all of Wodley’s claims) that Wodley cannot prevail because Wodley did not “sue in accordance with [the Davis-Stirling Act],” which “provides for default procedures related to Board elections” and “posits clear dispute resolution procedures where a dispute involves an association member’s rights, duties, or liabilities under the Act.”  It appears that Redstone is arguing that Wodley’s claims fail because he failed to exhaust administrative remedies. 

The court does not agree, with respect to the claim at issue, that Wodley was required to exhaust administrative HOA procedures, however, with respect to a malicious prosecution claim based on Redstone’s individual involvement in restraining order proceedings against him as such dispute neither pertains to “Board elections” or “an association member’s rights, duties, or liabilities under the [the Davis-Stirling] Act.” 

Beyond this, though, the court still must consider whether Wodley makes a “minimal merit” (Navellier v. Sletten (2002) 29 Cal.4th 82, 93 [124 Cal.Rptr.2d 530, 52 P.3d 703]) showing with respect to his malicious prosecution claim.  The court finds that Wodley fails to make the requisite showing.

“To establish a cause of action for the malicious prosecution of a civil proceeding, a plaintiff must plead and prove that the prior action (1) was commenced by or at the direction of the defendant and was pursued to a legal termination in his, plaintiff’s, favor; (2) was brought without probable cause; and (3) was initiated with malice.” (Bertero v. National General Corp. (1974) 13Cal.3d 43, 50 [118 Cal.Rptr. 184, 529 P.2d 608], internal citations omitted.)

Wodley concedes he agreed to a stay-away order and that himself alleges that he sent an email stating: “If you continue this charade, someone will get hurt.”  The court does not find any of the evidence presented by Wodley shows merit to the claim that such statement was not probable cause for the pursuit of restraining orders or that the proceedings were initiated with malice.  Wodley’s sole showing that he sent emails “reiterating that [he] did not intend physical harm” do not establish that Redstone lacked probable cause to believe that Wodley had engaged in conduct presenting a “credible threat of violence” (Code Civ. Proc., § 527.6).

What’s more, in order to secure cessation of the pending restraining order proceedings, Wodley agreed to participate in HOA meetings via Zoom, communicate with board members solely electronically via an HOA portal, and not otherwise contact board members or their families.  The court does not find that such agreement is indicative of a termination of the proceedings in Wodley’s favor. 

Accordingly, the court finds that Redstone’s motion also must be granted with respect to Wodley’s malicious prosecution claim. 

Based on the foregoing, the anti-SLAPP motion is granted as to the entirety of Wodley’s 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:                 Parker, Derrick vs. Krone America, LLC

Case No.:   VCU317703

Date:           January 26, 2026

Time:           8:30 A.M. 

Dept.           7-The Honorable Russell P. Burke

Motion:     Motion for Preliminary Approval of Class Action and PAGA

Tentative Ruling: To continue this motion for preliminary approval to February 23, 2026, 8:30 am, Dept. 7; to order a supplemental declaration as to the notice period, lodestar and presently incurred costs.

1. Sufficiency of Amount of Settlement (Net Estimated: $102,750)

The gross settlement amount is $235,000. Plaintiff estimates approximately 35 proposed Class Members, providing an estimated average payout of $241.35 per member.

The Class Members consist of:

“all hourly-paid, non-exempt employees of Defendant Krone America, LLC within the State of California at any time during the period from February 3, 2021, through October 25, 2025”

Plaintiff primarily alleged the following violations: (a) Labor Code sections 510 and 1198 (unpaid overtime); (b) Labor Code sections 226.7 and 512(a) (unpaid meal period premiums); (c) Labor Code sections 226.7 (unpaid rest period premiums); (d) Labor Code sections 1194 and 1197 (unpaid minimum wages); (e) Labor Code sections 201 and 202 (final wages not timely paid); (f) Labor Code section 226(a) (noncompliant wage statements); (g) Labor Code sections 2800 and 2802 (unreimbursed business expenses); (h) Labor Code section 2698 (Private Attorneys General Act of 2004 (“PAGA”)); and (i) Business & Professions Code section 17200.

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 Han ¶¶ 35 – 57.) The total estimated maximum recovery in the event of an outright victory was between $593,935.99 to $664,534.70. 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. Counsel estimates a  potential recovery of approximately $171,254.73 to $188,904.41.

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 $235,000 are proposed as follows:

Proposed Court Approved Attorney Fees (35%):	$82,250
Proposed Attorney Costs (up to):	$20,000
Proposed Enhancement Payment to Plaintiff :	$10,000
Proposed Settlement Administrator Costs	$10,000
Proposed PAGA payment to the LWDA	$15,000
Proposed Net Settlement Amount	$102,750

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 45 days. The Court regularly approves notice periods of 60 days or longer. The class notice period is therefore not 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 Derrick Parker  as Class Representative for settlement purposes. The proposed enhancement award to Plaintiff is $10,000.

The Court has, in past cases, approved enhancement awards of $5,000.00 routinely.

Enhancement payments “are fairly typical in class action cases.” (Cellphone Termination Fee Cases (2010) 180 Cal.App.4th 1110, 1393.) Enhancement payments “are intended to compensate class representatives for work done on behalf of the class, to make up for financial or reputational risk undertaken in bringing the action, and, sometimes, to recognize their willingness to act as a private attorney general.” (Rodriguez v. West Publishing Corp. (9th Cir. 2009) 563 F.3d 948, 958-959.) “[T]he rationale for making enhancement or incentive awards to named plaintiffs is that he or she should be compensated for the expense or risk he has incurred in conferring a benefit on other members of the class.” (Clark v. American Residential Services LLC (2009) 175 Cal.App.4^th 785, 806.)

Therefore, the Court will approve a $5,000 enhancement.

4. Attorneys’ Fees and Costs

Attorneys’ fees of 35% of the gross settlement fund of $235,000 or $82,250 and costs not to exceed $20,000 are sought by Plaintiff’s counsel.

Although the Court recognizes the utilization of the percentage of the common fund methodology to award attorneys’ fees, the Court requires a declaration from counsel that provides an estimate as to what the lodestar would be in this case. The ultimate goal of the Court is to award reasonable attorneys’ fees irrespective of the method of calculation. As such, the court needs to know the estimate of the approximate lodestar supported by declarations for preliminary approval. Counsel should submit information as to the time spent on this action and the hourly rates of all counsel working on the case. Without such information, the Court declines to preliminarily approve the fees.

The Court also cannot preliminarily approve costs up to $20,000.00 without a declaration which states the costs currently expended. 

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

5.  Claims Administrator

The Court preliminary approves Phoenix Settlement Administrators as the claims administrator for this class action based on prior experience with this settlement administrator in other class actions litigated in this Court.  The Court preliminarily approves administration costs not to exceed $10,000.

6. Unclaimed Settlement Proceeds

The Court preliminarily approves the distribution of unclaimed settlement proceeds to California Controller’s Office Unclaimed Property Division, with an identification of the Participating Class Member to whom the funds belong, 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

The declaration of Anderson indicates confirmation from the LWDA of receipt of proof of submission of the proposed settlement agreement. (Lab. Code, § 2699, subd. (l)(2).) (Declaration of Anderson ¶3 – Exhibit 1.)

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 sufficiently sets forth the basis for finding the class is numerous and ascertainable as 35 employees have been identified through Defendant’s employment records. Additionally, common questions of law and fact predominate within the individual causes of action based on class wide policies and procedures of Defendant. 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.

Therefore, the Court continues this motion for preliminary approval to February 23, 2026, 8:30 am, Dept. 7 and orders a supplemental declaration as to the notice period, lodestar and presently incurred costs.

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:                 Tinajero, Lucille vs. Sequoia Medical Services, L.P. et al

Case No.:   VCU319687

Date:           January 26, 2026

Time:           8:30 A.M. 

Dept.           7-The Honorable Russell P. Burke

Motion:     Continued Motion for Preliminary Approval of Class Action and PAGA Settlement

Tentative Ruling: To grant the motion for preliminary approval; to set the motion for final approval for August 31, 2026, 8:30 am, Dept. 7.

Background

The Court previously continued this matter and ordered supplemental declarations filed as to the notice period, information to calculate the lodestar, presently incurred costs and proof of the submission of this settlement to the LWDA.

On December 22, 2025, supplemental declarations were filed. Therefore, the Court rules as follows:

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 now to be made within 60 days. The Court regularly approves notice periods of 60 days or longer. The notice period is approved.

Attorneys’ Fees and Costs

Attorneys’ fees of 33% of the gross settlement fund of $150,000 or $50,000 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.

Attorney Akhavan indicates 49.5 hours at the rate of $650 per hour, creating a base lodestar of $32,175 (Supplemental Declaration of Akhavan ¶10.)

Barahmand Law Group indicates 46.2 hours at the rate of $400 per hour, creating a base lodestar of $18,480. (Supplemental Declaration of Barahmand ¶6.)

Therefore, the combined lodestar is $50,655 and the Court approves the requested fees with no multiplier.

As to costs, Attorney Akhavan indicates $14,919.56 currently expended in costs. Therefore, the Court approves costs not to exceed $20,000.

LWDA Notice

Counsel’s supplemental declaration indicates confirmation from the LWDA of receipt of proof of submission of the proposed settlement agreement. (Lab. Code, § 2699, subd. (l)(2).) (Supplemental Declaration of Akhavan ¶ 17 – Ex G.)

Therefore, the Court preliminarily approves deductions from the gross settlement of $150,000 as follows:

Preliminarily Approved Court Attorneys’ Fees (33.3%):	$50,000
Preliminarily Approved Attorney Costs (up to):	$20,000
Preliminarily Approved Enhancement Payment to Plaintiff:	$5,000
Preliminarily Approved Settlement Administrator Costs	$3,750
Preliminarily Approved Total PAGA Payment	$20,000
Proposed Net Settlement Amount	$51,250

Therefore, the Court grants the motion as noted above and sets the motion for final approval for August 31, 2026, 8:30 am, Dept. 7.

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:                 Pritchett, Demetria Christine vs. Family Healthcare Network, Inc.

Case No.:   VCU290948

Date:           January 26, 2026

Time:            8:30 A.M. 

Dept.           7-The Honorable Russell P. Burke

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

Tentative Ruling: To continue this motion for preliminary approval to February 23, 2026, 8:30 am, Dept. 7; to order a supplemental declaration as to the notice period, lodestar and presently incurred costs.

1. Sufficiency of Amount of Settlement (Net Estimated: $1,072,052)

The gross settlement amount is $1,838,926.00. Plaintiff estimates approximately 2,384 proposed Class Members, providing an estimated average payout of $454.40 per member.

The Class Members consist of all persons employed by Defendant in California as a non-exempt employee from February 1, 2022 through February 28, 2025

On March 22, 2022, Plaintiff Pritchett and Plaintiff Rojas filed a class action complaint in Tulare County Superior Court, Case No. VCU290948, and subsequently filed a First Amended Complaint on October 31, 2022.

Plaintiff Baker filed a First Amended Complaint on October 24, 2022, and a Second Amended Complaint on April 6, 2023.

On October 2, 2025, the Parties stipulated to consolidate the Pritchett and Baker matters by filing a Third Amended Complaint in the Pritchett matter to include Plaintiff Baker and encompass all of her respective claims as to (1) Failure to Pay Lawful Wages; (2) Failure to Provide Lawful Meal Periods or Compensation in Lieu Thereof; (3) Failure to Provide Lawful Rest Periods or Compensation in Lieu Thereof; (4) Failure to Reimburse Employee Expenses; (5) Failure to Timely Pay Wages During Employment; (6) Failure to Timely Pay Wages at Termination; (7) Failure to Provide Accurate, Itemized Wage Statements; (8) Violations of the Unfair Competition Law; (9) Labor Code Private Attorney General Act (Lab. Code § 2699 et seq.); (10) Failure to Pay Overtime Wages; (11) Failure to Provide Sick Pay; (12) Failure to Pay All Wages for Alternative Workweeks; and (13) Failure to Pay All Accrued Vacation Wages.

Plaintiffs provide 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 Bradley ¶¶16-50.) The total estimated maximum recovery in the event of an outright victory is $4,064,864.61. 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. Therefore, the settlement figure obtained is 45.2% of this estimated maximum potential exposure.

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.

Plaintiffs’ deductions from the gross settlement of $1,838,926 are proposed as follows:

Proposed Court Approved Attorney Fees (35%):	$643,624
Proposed Attorney Costs (up to):	$36,000
Proposed Enhancement Payment to Plaintiff Pritchett:	$10,000
Proposed Enhancement Payment to Plaintiff Rojas:	$10,000
Proposed Enhancement Payment to Plaintiff Baker:	$5,000
Proposed Settlement Administrator Costs	$17,250
Proposed PAGA payment to the LWDA	$45,000
Proposed Net Settlement Amount	$1,072,052

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 45 days.

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

The court preliminarily approves Plaintiffs Pritchett, Rojas, and Baker as Class Representatives for settlement purposes. The proposed enhancement award to Plaintiffs Pritchett and Rojas is $10,000 and the proposed award to Plaintiff Baker is $5,000.

The Court has, in past cases, approved enhancement awards of $5,000.00 routinely.

Enhancement payments “are fairly typical in class action cases.” (Cellphone Termination Fee Cases (2010) 180 Cal.App.4th 1110, 1393.) Enhancement payments “are intended to compensate class representatives for work done on behalf of the class, to make up for financial or reputational risk undertaken in bringing the action, and, sometimes, to recognize their willingness to act as a private attorney general.” (Rodriguez v. West Publishing Corp. (9th Cir. 2009) 563 F.3d 948, 958-959.) “[T]he rationale for making enhancement or incentive awards to named plaintiffs is that he or she should be compensated for the expense or risk he has incurred in conferring a benefit on other members of the class.” (Clark v. American Residential Services LLC (2009) 175 Cal.App.4^th 785, 806.)

Therefore, the Court will approve a $5,000 enhancement as to all Plaintiffs.

4. Attorneys’ Fees and Costs

Attorneys’ fees of 35% of the gross settlement fund of $1,838,926 or $643,624 and costs not to exceed $36,000 are sought by Plaintiffs’ counsel.

Although the Court recognizes the utilization of the percentage of the common fund methodology to award attorneys’ fees, the Court requires a declaration from counsel that provides an estimate as to what the lodestar would be in this case. The ultimate goal of the Court is to award reasonable attorneys’ fees irrespective of the method of calculation. As such, the court needs to know the estimate of the approximate lodestar supported by declarations for preliminary approval. Counsel should submit information as to the time spent on this action and the hourly rates of all counsel working on the case. Without such information, the Court declines to preliminarily approve the fees.

The Court also cannot preliminarily approve costs up to $36,000 without a declaration which states the costs currently expended. 

The Court, however, finds that Plaintiffs’ counsel are experienced class action attorneys through the declarations of counsel. Additionally, the Court approves of fee split of 60% to James Hawkins, APLC, 24% to Bradley/Grombacher LLP, and 16% to the Majarian Law Group APC.

5.  Claims Administrator

The Court preliminary approves ILYM Group, Inc. as the claims administrator for this class action based on prior experience with this settlement administrator in other class actions litigated in this Court.  The Court preliminarily approves administration costs not to exceed $17,250.

6. Unclaimed Settlement Proceeds

The Court preliminarily approves the distribution of unclaimed settlement proceeds to California Controller’s Office Unclaimed Property Division, with an identification of the Participating Class Member to whom the funds belong, 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

The declaration of Bradley indicates confirmation from the LWDA of receipt of proof of submission of the proposed settlement agreement. (Lab. Code, § 2699, subd. (l)(2).) (Declaration of Bradley ¶85 – Exhibit 2.)

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 sufficiently sets forth the basis for finding the class is numerous and ascertainable as 2,384 employees have been identified through Defendant’s employment records. Additionally, common questions of law and fact predominate within the individual causes of action based on class wide policies and procedures of Defendant. Further, the class representatives, through their declarations, indicate they will adequately and fairly represent the Class Members and will not place their interests above any Class Member. The Class Representatives were employed by Defendant during the relevant time period and thus worked under the same policies and procedures as the Class Members.

Therefore, the Court continues this motion for preliminary approval to February 23, 2026, 8:30 am, Dept. 7 and orders a supplemental declaration as to the notice period, lodestar and presently incurred costs.

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:                 Macedonio, Eloy et al vs. K&M Visser Dairy et al

Case No.:   VCU316060

Date:           January 26, 2026

Time:           8:30 A.M. 

Dept.           7-The Honorable Russell P. Burke

Motion:     Continued Motion for Preliminary Approval of Class Action and PAGA Settlement

Tentative Ruling: To grant the motion, as modified herein as to the enhancement awards; to set the motion for final approval for August 31, 2026, 8:30 am, Dept. 7.

1. Sufficiency of Amount of Settlement (Net Estimated: $274,685)

The gross settlement amount is $500,000. Plaintiffs estimate approximately 104 proposed Class Members, providing an estimated average payout of  $2,641.20 per member.

The Class Members consist of:

“all persons who have been employed as non-exempt employees at Defendants’ dairy facilities in California any time between December 17, 2020 to the Preliminary Approval Order date, excluding all of Defendants’ family members, office workers, and salaried employees”

Plaintiff primarily alleged the following violations on a class basis:

1. FAILURE TO PAY OVERTIME WAGES;

2. FAILURE TO PERMIT AND AUTHORIZE ADEQUATE REST PERIODS;

3. FAILURE TO PROVIDE ADEQUATE MEAL PERIODS;

4. FAILURE TO INDEMNIFY FOR NECESSARY WORK-RELATED EXPENSES;

5. FAILURE TO PAY WAGES DUE TO FORMER EMPLOYEES;

6. FAILURE TO FURNISH ACCURATE WAGE STATEMENTS; AND,

7. UNLAWFUL BUSINESS PRACTICES

On December 11, 2025, Plaintiffs filed an operative first amended complaint adding a cause of action under PAGA.

Plaintiffs provide 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 Martinez ¶¶ 6, 14.)

Plaintiffs state note the maximum potential recovery for the claims of meal and rest period violations is approximately $652,000 and that the proposed $500,000 settlement constitutes over 76% of this maximum amount for these claims. Further, that unreimbursed business expenses and overtime exposure total approximately $67,500 and that the estimated amount owed for the derivative claims of waiting time penalties, inaccurate paystubs, and for PAGA penalties is approximately $374,000. (Declaration of Martinez ¶6.)

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 $500,000 are proposed as follows:

Proposed Court Approved Attorney Fees (33.3%):	$166,665
Proposed Attorney Costs (Up To):	$10,150
Proposed Enhancement Payment to Plaintiff Eloy Macedonio:	$10,000
Proposed Enhancement Payment to Plaintiff Jesus Macedonio:	$10,000
Proposed Enhancement Payment to Plaintiff Cruz:	$10,000
Proposed Settlement Administrator Costs	$8,500
Proposed Total PAGA Payment	$10,000
Proposed Net Settlement Amount	$274,685

 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 now 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 Awards to Class Representatives

The Court preliminarily approves Plaintiffs Eloy Macedonio, Jesus Macedonio and Cruz as Class Representatives for purposes of settlement only. The proposed enhancement awards to Plaintiffs are $10,000.

The Court has, in past cases, approved enhancement awards of $5,000.00 routinely.

Enhancement payments “are fairly typical in class action cases.” (Cellphone Termination Fee Cases (2010) 180 Cal.App.4th 1110, 1393.) Enhancement payments “are intended to compensate class representatives for work done on behalf of the class, to make up for financial or reputational risk undertaken in bringing the action, and, sometimes, to recognize their willingness to act as a private attorney general.” (Rodriguez v. West Publishing Corp. (9th Cir. 2009) 563 F.3d 948, 958-959.) “[T]he rationale for making enhancement or incentive awards to named plaintiffs is that he or she should be compensated for the expense or risk he has incurred in conferring a benefit on other members of the class.” (Clark v. American Residential Services LLC (2009) 175 Cal.App.4^th 785, 806.)

The Court’s review of the declarations of Plaintiffs indicates justification for the $5,000 award, but no amount higher. The Court finds that Plaintiffs engaged in typical participation in discovery and resolution of this matter and the award of $5,000 adequately compensates Plaintiffs for this participation.

4. Attorneys’ Fees and Costs

Attorneys’ fees of 33% of the gross settlement fund of $500,000 or $166,665 and costs not to exceed $10,150 are sought by Plaintiffs’ 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 indicates that the firm has spent 125.70 hours on this case at a rate of $775 plus 317 hours by paralegals at a rate of $175, resulting in a total lodestar of $152,892.50, resulting in a lodestar multiplier of 1.1 to approve the fees requested (Declaration of Martinez ¶10.) The fees are approved as requested.

Counsel has also provided the current costs expended in amounts of $9,985 and costs up to $10,150. (Declaration of Martinez ¶11.) The Court preliminarily approves costs not to exceed $10,150 as requested.

The Court further finds that Plaintiffs’ counsel are experienced class action attorneys through the declaration of counsel.

5.  Claims Administrator

The court preliminary approves CPT Group, Inc. as the claims administrator for this settlement based both on prior experience with this settlement administrator in other class actions litigated in this Court and on the Declaration of Martinez in support thereof. (Declaration of Martinez ¶17.) The Court preliminarily approves administration costs not to exceed $8,500.

6. Unclaimed Settlement Proceeds

Counsel provided a further declaration indicating that the Valley Children’s Hospital is the intended cy pre recipient and therefore complies complying with Code of Civil Procedure. section 384(b) as a nonprofit “that will benefit the class or similarly situated persons, or that promote the law consistent with the objectives and purposes of the underlying cause of action, to child advocacy programs, or to nonprofit organizations providing civil legal services to the indigent.”

7. Release

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

8. LWDA Notice

The Court notes that the LWDA was provided notice of this settlement. (Declaration of Villalobos ¶2 – Ex. 1.)

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 sufficiently sets forth the basis for finding the class is numerous and ascertainable as 104 employees have been identified through Defendant’s employment records. Additionally, common questions of law and fact predominate within the individual causes of action based on class wide policies and procedures of Defendant. Further, the class representatives, through their declarations, indicate they will adequately and fairly represent the Class Members and will not place their interests above any Class Member. The Class Representatives were employed by Defendant during the relevant time period and thus worked under the same policies and procedures as the Class Members.

Therefore, the Court grants the motion, as modified above as to the enhancement awards and sets the motion for final approval for August 31, 2026, 8:30 am, Dept. 7.

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:                 Brown, Benjamin vs. J.D. Heiskell Holdings, LLC

Case No.:   VCU323256

Date:            January 26, 2026

Time:           8:30 A.M. 

Dept.           7-The Honorable Russell P. Burke

Motion:     Defendant Express’s Motion to Compel Arbitration

Tentative Ruling: The parties have stipulated to arbitration in this matter and have submitted a proposed order to the Court. Therefore, this matter is off-calendar.

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:                  V., J. vs. County of Tulare

Case No.:    VCU311593

Date:            January 26, 2026

Time:           8:30 A.M. 

Dept.           7-The Honorable Russell P. Burke

Motion:     Defendant’s Motion to Strike Allegations as to Fourth Amended Complaint

Tentative Ruling: Pursuant to stipulation filed December 31, 2026, this matter is continued to February 9, 2026, 8:30 am, Dept. 7.

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:                  Powers, Nancy et al vs. First Transit, Inc. et al

Case No.:    VCU313263

Date:            January 26, 2026

Time:            8:30 A.M. 

Dept.            7-The Honorable Russell P. Burke

Motion:      Defendant’s Motion for Protective Order re: In Person Depositions of Experts

Tentative Ruling: To deny the motion

Facts

In this motor vehicle negligence matter, Defendants First Transit and Beatrice Matus retained experts Brian Revis, M.D. (located in Cincinnati, OH), Joshua Damian, M.D. (located in Waterloo, IA), and Deverick Anderson, M.D. (located in Chapel Hill, N.C.)

On November 25, 2025, Plaintiffs noticed the deposition of Drs. Revis, Damian, and Anderson for December 16, 2025 for in-person depositions in Fresno, CA.

On December 9, 2025, Defendants objected to the noticed depositions of Dr. Revis, Damian, and Anderson, and offered alternative dates for the depositions of these experts.

On December 9, 2025, Defendants met and conferred with Plaintiffs as to the in-person depositions of these experts. Defendants claim undue hardship on the parties via in person depositions and proposed either remote depositions or depositions near the residences of the experts. Defendants argue that “cross-country travel would impose undue burden and expense, including significant travel time away from professional obligations, increased costs and lost time requiring increased fee tenders, and avoidable logistical disruption, all of which can be alleviated by remote proceedings or local depositions” and “in-person travel would likely trigger daily fees under section 2034.430(e).” (Declaration of Lashinsky ¶5.)

On December 10, 2025, Defendants filed this motion for protective order, seeking to conduct the depositions remotely or near the residences of the experts.

In opposition, Plaintiffs argue Defendants have failed to demonstrate “exceptional hardship” as required under Code of Civil Procedure section 2034.420.

Authority and Analysis

“Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order. The motion shall be accompanied by a meet and confer declaration under Section 2016.040. (Code Civ. Proc., § 2025.420(a).)

Code of Civil Procedure section 2025.420, subdivision (b), notes that

"(b) The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions: . . . [¶] (2) That the deposition be taken at a different time. . . . [¶] (4) That the deposition be taken at a place other than that specified in the deposition notice, if it is within a distance permitted by Sections 2025.250 and 2025.260.”

Code of Civil Procedure section 2034.460 provides

“(a) The service of a proper deposition notice accompanied by the tender of the expert witness fee described in Section 2034.430 is effective to require the party employing or retaining the expert to produce the expert for the deposition.”

Code of Civil Procedure section 2034.420 states:

“The deposition of any expert described in subdivision (b) of Section 2034.210 shall be taken at a place that is within 75 miles of the courthouse where the action is pending. On motion for a protective order by the party designating an expert witness, and on a showing of exceptional hardship, the court may order that the deposition be taken at a more distant place from the courthouse.”

If such "good cause" is shown, the court can exercise its discretionary power to limit discovery. (In re Providian Credit Card Cases (2002) 96 Cal.App.4th 292, 298-99.) The granting or denial of relief lies within the sound discretion of the Court. (Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 379-81 [overruled on other grounds pertaining to attorney work product privilege.])

Defendants, as the designating party, must show “exceptional hardship” to obtain the relief requested. The Court agrees that there is some expense or burden associated with the in person deposition of these experts. However, the Court does not consider the cost or travel, alone, sufficient as to an exceptional hardship to deviate from the requirement in section 2034.420 that the deposition take place within 75 miles of the courthouse where the action is pending. Defendants chose to retain experts outside of California.

There is no declaration from any expert as to a showing of exceptional hardship. The generalized statement that “experts would necessitate additional travel and entail significant professional disruption, increased travel costs, and likely daily fees for lost practice time” is insufficient as to “exceptional hardship.” (Declaration of Lashinsky ¶9.) Good cause in this case, requires a showing of specific facts demonstrating “exceptional hardship.” (Code Civ. Proc. § 2034.420; Goodman v. Citizens Life & Casualty Ins. Co. (1967) 253 Cal.App.3d 807, 819 [as to good cause.])

Therefore, the Court denies the motion for protective order.

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