Tentative Rulings

The Tentative Rulings for Monday, November 9, 2026, are:

Re:                N & S Tractor vs. Martin, Luis

Case No.:   VCL309598

Date:           November 9, 2026

Time:           8:30 A.M. 

Dept.           9-The Honorable Nathan D. Ide

Motion:     Motion to Enforce Settlement as Judgment

Tentative Ruling: To grant the motion and enter judgment in the amount of $2,500.

Facts

In this matter, Plaintiff sued Defendant for account stated and open book, alleging $6,972.15 in damages.

On April 14, 2026, Plaintiff filed a notice of conditional settlement, indicating the case would be dismissed no later than May 14, 2026. No dismissal has occurred.

On September 23, 2026, Plaintiff filed this motion to enforce the settlement as a judgment. The settlement indicates Defendant agrees to pay the total settlement sum of $2,500 without admitting fault or wrongdoing. The settlement contemplated a single payment of this amount no later than thirty days from May 6, 2026. The agreement contemplates recovery of reasonable attorneys’ fees as to enforcement of the agreement.

Plaintiff indicates no payment was made and seeks entry of judgment in the amount of $2,500 plus $625 in attorneys’ fees.

Authority and Analysis

Section 664.6 (a) states: 

“If parties to pending litigation stipulate, in a writing signed by the parties outside of the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.”

“The court’s retention of jurisdiction under section 664.6 includes jurisdiction over both the parties and the case itself, that is, both personal and subject matter jurisdiction.” (Lofton v. Wells Fargo Home Mortgage (2014) 230 Cal.App.4^th 1050, 1061.) “Section 664.6 permits the trial court judge to enter judgment on a settlement agreement without the need for a new lawsuit.” (Osumi v. Sutton (2007) 151 Cal.App.4^th 1355, 1360.)

As indicated above, the Court has maintained jurisdiction over the parties and this matter and therefore is prepared to “enter judgment pursuant to the terms of the settlement.”

Therefore, the Court will enter judgment as to the amount of $2,500.

As to the fees, however, Plaintiff seeks to recover $625 in fees based on the Court’s “default” schedule for attorneys’ fees in Appendix 8 of its Local Rules.

However, this section states:

“Exclusive of costs, the following counsel fees will be awarded under normal circumstances in a default action on a promissory note or contract providing for the payment of counsel fees:

25% of the first $5,000 with a minimum fee of $250

10% of the amount over $5,000

In any default action when the attorneys’ fees requested exceed $7,500.00, a prove up hearing may be required to establish the reasonableness of the requested fees.”

The Court does not consider this a “default action.” Rather, Plaintiff seeks entry of judgment pursuant to a settlement agreement. No default has been entered as to Defendant and no default judgment has arisen from this matter.

The Court, therefore, denies the request for attorneys’ fees.

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. Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings.

Re:                 Mercury Casualty Company vs. Corcolis, Alfredo

Case No.:   VCL325555

Date:           November 9, 2026

Time:           8:30 A.M. 

Dept.          9-The Honorable Nathan D. Ide

Motion:     Motion to Amend Judgment

Tentative Ruling: To grant the motion

Facts and Analysis

Plaintiff notes entry of judgment on August 3, 2026 in favor of Plaintiff and against Defendants “ALFREDO CORCOLIS AKA ALFREDO CORCOLIS HURTADO AKA ALFREDO C HURTADO, MARIA CORCOLIS, and GUSTAVO GOMEZ DBA KIDS CARE LAWN SPRINKLER SYSTEMS SERVICES.”

Plaintiff notes “Plaintiff recently learned Defendants ALFREDO CORCOLIS AKA ALFREDO CORCOLIS HURTADO AKA ALFREDO C HURTADO and MARIA CORCOLIS are not proper.” (Declaration of Ahearn ¶3.)

Therefore, Plaintiff seeks to amend the judgment to remove “ALFREDO CORCOLIS AKA ALFREDO CORCOLIS HURTADO AKA ALFREDO C HURTADO and MARIA CORCOLIS”

California Code of Civil Procedure section 187 states

“... When jurisdiction is, by the Constitution or this Code, or by any other statute, conferred on a Court or judicial officer, all the means necessary to carry it into effect are also given; and in the exercise of this jurisdiction, if the course of proceeding be not specifically pointed out by this Code or the statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this code.” (Code Civ. Proc. § 187.)

The Court grants the motion, noting that the remaining Defendant on the judgment is now GUSTAVO GOMEZ DBA KIDS CARE LAWN SPRINKLER SYSTEMS SERVICES.

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. Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings.

Re:                 Wells Fargo Bank, N.A. vs. Gilmore, Faye J

Case No.:   VCL333554

Date:            November 9, 2026

Time:           8:30 A.M. 

Dept.           9-The Honorable Nathan D. Ide

Motion:     Motion for Judgment on the Pleadings

Tentative Ruling: To grant the motion with leave to amend the answer; Defendant shall have ten (10) days to file an amended answer.

Facts

In this matter, Plaintiff sues for breach of contract.

Defendant, on June 9, 2026, answered the complaint via PLD-C-010, did not check either 3.a. or 3.b and instead stated “Our daughter…went into debt to help her business, but it failed…”

On September 2, 2026, Plaintiff filed this motion for judgment on the pleadings, arguing that the answer does not state facts sufficient to constitute a defense, that any material allegation in the complaint not effectively denied is deemed admitted and that Defendant’s answer, as noted above, is deemed to admit all statements in the complaint as true.

In opposition, Defendant declares “4. Certain responses were left blank because I lacked sufficient information to verify the corresponding allegations. I did not intend those omissions as admissions of Plaintiff’s claims” and “6. If the Court finds that my Answer requires correction, I request permission to amend it to respond appropriately to the Complaint’s allegations.”

Authority and Analysis

Meet and Confer

Plaintiff states that counsel contacted Defendant regarding this Motion in accordance with Code of Civil Procedure section 439(a). “Before filing a motion for judgment on the pleadings pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion for judgment on the pleadings for the purpose of determining if an agreement can be reached that resolves the claims to be raised in the motion for judgment on the pleadings.” (Code Civ. Proc., § 439, subd. (a).)

Authorities and Analysis

A motion for judgment on the pleadings (MJOP) is used to challenge a pleading in the same manner as a general demurrer, i.e., the challenged pleading (1) establishes that the court does not have subject matter jurisdiction or (2) does not allege facts sufficient to support a cause of action or defense. (Code Civ. Proc. § 438(c)(1); International Assn. of Firefighters v. City of San Jose (2011) 195 Cal.App.4^th 1179,1196.) Like a demurrer, the grounds for the motion must appear on the face of the pleading or be based on facts capable of judicial notice, including court records.  (Stencel Aero Engineering Corp. v. Superior Court (1976) 56 Cal.App.3d 978, 986, and fn. 6.)

A motion for judgment on the pleadings may be based upon “matters properly the subject to judicial notice.” (Saltarelli & Steponovich v. Douglas (1995) 50 Cal.App.4th 1, 5.) Judicial notice may be taken “of a party’s admissions or concessions, but only in cases where the admissions “cannot reasonably be controverted,’ such as in answer to interrogatories or request for admissions, or in affidavits and declaration filed on the party’s behalf.” (Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 485.)

Here, however, the Court does not consider answer filed in this case to unequivocally admit the allegations of the complaint. At most, the answer is silent as to denial or admission.

The Court will grant the motion for judgment on the pleadings, therefore, as to the lack of sufficiency of the answer as to admitting or denying the allegations and will permit Defendant to file an amended answer addressing this issue. The Court notes PLD-C-010 contemplates either 3.a or 3.b to be checked, but does not contemplate neither box being checked. Defendant shall have ten (10) days to file an amended answer.

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. Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings.

Re:                 Wahlstrom, Margaret vs. Clark Pest Control of Stickton, Inc.

Case No.:   VCU333768 

Date:            November 9, 2026

Time:           8:30 A.M. 

Dept.           9-Honorable Nathan D. Ide

Motion:     Motion for Protective Order

Tentative Ruling: There is no tentative ruling at this time.  The court reserves further ruling on Wahlstrom’s request for a protective order pending a further evidentiary hearing to determine whether Wahlstrom is disqualified to be a witness under Evidence Code section 701.  The parties are directed to appear through counsel to agree on a mutually workable date for the evidentiary hearing.  Parties will be expected to exchange witness lists prior to the evidentiary hearing. 

Defendant John Cruz seeks to depose plaintiff Margaret Wahlstrom in this matter.  Through counsel, Wahlstrom moves for a protective order preventing or limiting her deposition. 

Wahlstrom seeks to prevent her deposition on the basis that she would be subject to undue burden, oppression and embarrassment incident to her having “advanced stage dementia” and “lack of capacity to testify.”  Wahlstrom asserts the evidence sought by way of her deposition may be obtained “through less intrusive means.”

In the alternative, Wahlstrom seeks an order directing that a deposition of her guardian ad litem, Lena Bradley “proceed in lieu of [Wahlstrom’s] deposition, or at the very least, limiting the scope of examination to matters not covered by the video evidence [see below] … .”

Plaintiff’s counsel, Nicholas R. Ruiz, submits, with a declaration supporting Wahlstrom’s motion, a letter from Asha Pritpal Singh Sidhu, MD.  Dr. Sidhu’s brief letter identifies Wahlstrom as a “Resident of Quil [sic] Park Memory care Visalia” and as being “under our care since October 2025.”  Based on letterhead of Dr. Sidhu’s letter, Dr. Sidhu, by “our,” refers to “Fresno Long Term Care Medical Group Inc.”  Dr. Sidhu states he personally saw Wahlstrom on August 31, 2026.

Dr. Sidhu’s letter, concerning Wahlstrom’s condition, cursorily states as follows: “[Wahlstrom] has Neurocognitive Disorder (Dementia) that is progressive. She lacks the capacity to make any financial, complex an [sic] executive decision. She has short term memory impairment, and her forgetfulness is gradually getting worse and other dementia symptoms are slowly progressive, with her present medical conditions, she cannot appear as a witness in a court, she also lacks the ability to retain, focus and answer court questions.”

Wahlstrom’s counsel, Nicholas Ruiz, additionally states he is “of the belief that [Wahlstrom] is not capable of testifying in a deposition or in court.”

In this action Wahlstrom sues Clark Pest Control of Stockton, Inc. (Clark Pest Control), and its employee (or former employee) John Cruz, based on an alleged incident taking place on April 17, 2024, while Cruz was allegedly at Wahlstrom’s home to perform work on behalf of Clark Pest Control. 

Wahlstrom alleges Cruz sexually assaulted her while he was at her home, that Cruz “grabbed [her] and began kissing and hugging [her] and squeezing her buttocks and would not release [her] from his grasp.” Wahlstrom alleges, “[d]uring all relevant times … , [she] was and is an elderly, frail woman with diminished capacity who had been diagnosed with dementia and who lived alone,” and “[a]t the time of the incident, CRUZ was much younger and stronger than [Wahlstrom] and exerted force and control over [her].” “Apparently unknown to CRUZ,” Wahlstrom also alleges, “the incident was caught on [a] Ring camera.”  Wahlstrom earlier alleged “[b]ecause [of] [Wahlstrom’s] diminished capacity and resulting high susceptibility to undue influence and/or likelihood of being taken advantage of by others, [Wahlstrom’s] neighbor, Lena Bradley [now her guardian ad litem], installed a Ring Camera in [Wahlstrom’s] home, with [her] consent, so that they could keep an eye on [Wahlstrom] and be able to help if [she] fell or needed help in any way.”

Wahlstrom’s complaint asserts causes of action for (1) negligent hiring, supervision or retention of an employee; (2) negligence; (3) negligent infliction of emotional distress; (4) assault; (5) battery; (6) sexual battery; (7) physical abuse of an elder; and (8) intentional infliction of emotional distress.

Cruz opposes Wahlstrom’s request for a protective order, and, needless to say, prior meet and confer efforts between his counsel, Jamil Nushwat and attorney Ruiz did not result in a resolution. There were apparently no efforts to discuss the details of Wahlstrom’s medical condition and her functional limitations incident to that condition, and there was no effort to discuss potentially agreeable reasonable measures of accommodation.  Instead, attorney Ruiz flatly asserted Wahlstrom could not sit for deposition because she was (as she apparently is) “in a memory care facility and does not have capacity to testify due to dementia” and attorney Nushwat flatly insisted on proceeding with the deposition, on the threat that “if [Ruiz’s] position is to interfere or obstruct the production of [Wahlstrom] for purposes of deposition, we will be inclined to see remedy through a discovery hearing seeking attorney’s fees and sanctions.”

Wahlstrom’s briefing, though counsel, is a continuing affirmance of the approach taken during meet and confer efforts.    Her position, as asserted during those efforts, is that incident to her having dementia, a deposition would, ipso facto, result in undue burden, oppression and embarrassment.  Wahlstrom asserts that the information Cruz seeks by way of her deposition is merely “cumulative” given the “Ring Video footage, including audio, which is being produced,” and, therefore “disproportionate to any legitimate discovery need.”

Wahlstrom also submits, as a request in the alternative, “if any deposition shall proceed, the court should limit the deposition to deposing Guardian ad Litem Lena Bradley in lieu of Plaintiff, with reasonable limitations on time, scope, location, and accommodations consistent with Code of Civil Procedure section 2025.420(b).” No specific “reasonable limitations” are, however, offered.  What’s more, the court is at a loss to discern why “reasonable limitations” would be required for a deposition of Bradley, even if that were an acceptable alternative option (which it apparently is not, for Cruz).

“If the Court feels the deposition of Plaintiff is warranted under the circumstances,” Wahlstrom additionally submits, through counsel—without providing any detailed background for evaluating what “is warranted under the circumstances”—“it shall only proceed following a competency hearing to confirm the extent of testimony that can be provided by Plaintiff, which should exclude any testimony regarding the events captured on video as it would be unnecessarily culminative and likely cause exacerbation of Plaintiff's medical symptoms.”

Cruz, for his part, raises the correct point, recognized by our higher courts, that “a mental disorder or cognitive deficiency is not, on its own, sufficient to demonstrate that a witness is incompetent to testify.” (Esparza v. Superior Court (2026) 118 Cal.App.5th 426, 434 [341 Cal.Rptr.3d 509] (Esparza); see also cited Supreme Court cases, People v. McCaughan (1957) 49 Cal.2d 409 [317 P.2d 974] (McCaughan) and People v. Lewis (2001) 26 Cal.4th 334 [110 Cal.Rptr.2d 272, 28 P.3d 34].)

The issue is more nuanced, as McCaughan explains:  “The question to be determined is whether the proposed witness’s mental derangement or defect is such that he [or she] was deprived of the ability to perceive the event about which he [or she] is to testify or is deprived of the ability to recollect and communicate with reference thereto. [Citations.] It bears emphasis that the witness’s competency depends upon his [or her] ability to perceive, recollect, and communicate. [Citation.] Whether he [or she] did perceive accurately, does recollect, and is communicating accurately and truthfully are questions of credibility to be resolved by the trier of fact.” (Id. at p. 420.) 

Accordingly, while a person might suffer from a medical condition that renders them unable to provide for the basic personal needs, they still yet might be deemed “capable of expressing themself in an understandable way and of understanding the duty to tell the truth.” (Esparza, supra, 118 Cal.App.5th at p. 434.)  As our Supreme Court has observed, “ ‘mental illness “often strikes only limited areas of functioning, leaving other areas unimpaired, and consequently … many mentally ill persons retain the capacity to function in a competent manner.” ’ [Citation.] ” (In re Qawi (2004) 32 Cal.4th 1, 17 [7 Cal.Rptr.3d 780, 81 P.3d 224]; see Esparza, supra, 118 Cal.App.5th at p. 434 [citing same].)

In either event, “[t]he party challenging the witness bears the burden of proving disqualification by a preponderance of the evidence.” (Id., at p. 432.)

Competence issues incident to a medical condition can, this court recognizes, though, support preventing a deposition entirely.  For example, in Stanchfield v. Hamer Toyota, Inc. (1995) 37 Cal.App.4th 1495 [44 Cal.Rptr.2d 565] (Stanchfield), the appellate court held a trial court did not abuse its discretion in determining a witness sought for deposition was disqualified under Evidence Code section 701 where the evidence supported the trial court’s determination that the witness was “was incapable of understanding the duty of a witness to tell the truth.” (Id., at p. 1507.)

Under Evidence Code section 701, subdivision (a), “[a] person is disqualified to be a witness if he or she is: [¶] (1) Incapable of expressing himself or herself concerning the matter so as to be understood, either directly or through interpretation by one who can understand him; or [¶] (2) Incapable of understanding the duty of a witness to tell the truth.”

In Stanchfield, the party resisting the witness deposition moved for a protective order supported by a declaration of the witness’s physician stating that the witness “suffered from organic brain syndrome, or senility, that the stresses of a deposition would exacerbate his condition ‘and render him confused to such an extent that any deposition testimony would be incompetent,’ and that it was ‘extremely unlikely’ [the witness’s] situation would improve in the future.” (Id., at p. 1506.) The motion for protective order was granted by a discovery referee, but without prejudice to re-raising of the issue in the trial court, and the issue was re-raised there. (Ibid.)  A hearing was held to determine the witness’s competency, during which the court heard from the witness’s physician and a psychiatrist called by the party seeking the deposition, who had never examined the witness before.  (Id., at pp. 1506-1507.)  Based on uncontroverted testimony from the witness’s physician that the witness suffered from “chronic organic brain syndrome and dementia” and, as a result, “has difficulty with immediate recall and short-term memory, hallucinates, experiences confusion and ‘confabulates,’ ” the trial court found the witness “was incapable of understanding the duty of a witness to tell the truth and was thus disqualified under Evidence Code section 701.” (Ibid.)

Esparza more recently explains that “[t]he determination of competency to testify is ‘a delicate and personal evaluation’ that the trial court must conduct on a case-by-case basis. [Citation.] Whether a witness’s mental health disorder renders them incapable of expressing themself or understanding the duty to tell the truth must be determined by the trial court during voir dire … .” (Esparza, supra, 118 Cal.App.5th at p. 434.)

Based on the foregoing, the court reserves further ruling on Wahlstrom’s request for a protective order pending a further evidentiary hearing to determine whether Wahlstrom is disqualified to be a witness under Evidence Code section 701.  The parties are directed to appear through counsel to agree on a mutually workable date for the evidentiary hearing.  Parties will be expected to exchange witness lists prior to the evidentiary hearing. 

In the meantime, the court does note the prescient insight of counsel for Clark Pest Control in his email attached to attorney Ruiz’s declaration, that “the Court will want [the parties] to work amicably regarding scheduling/dealing with objections to any deposition to avoid unnecessary motion work.”  Indeed, the court does want this, despite that it has apparently been fruitless thus far.  The parties are encouraged to participate in further meet and confer efforts to potentially resolve the issues presented.  The court does note Cruz presents, in his opposition brief, potentially viable measures of accommodation.

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. Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings.

Re:                The Kingdom of God Inc. vs. Joseph Cold Storage, LLC et al

Case No.:   VCU335039 

Date:           November 2, 2026

Time:           8:30 A.M. 

Dept.           9-Honorable Nathan D. Ide

Motion:     Demurrer

Tentative Ruling: The demurrer is sustained as to the second, seventh and ninth causes of action without leave to amend. 

Joseph Cold Storage, LLC (JCS) demurrers to the second (breach of implied covenant of good faith and fair dealing), seventh (constructive fraud), and ninth (tort of another) causes of action asserted in the first amended complaint (FAC) of The Kingdom of God, Inc. (KOG). 

KOG’s claims in this action, generally, are that it was misled and/or material facts were concealed about the condition of a cold storage property it contracted to buy from JCS. 

KOG’s second cause of action frames this conduct as a breach of the implied covenant of good faith and fair dealing, and its seventh cause of action frames it as a breach of JCS’s duty, as a fiduciary to KOG, to share material information with KOG. 

KOG’s ninth cause of action, under the “tort of another” theory, is that “[b]ecasue of the torts of [all the named] Defendants … , KOG has been required to file and prosecute this lawsuit against [all of] the other Defendants.” 

Helpful to note here, KOG alleges named “Broker Defendants”—brokers for JCS—“participated in and facilitated the transaction” and “transmitted or adopted Seller-provided information concerning the Property as part of the transaction,” and, like JCS, misrepresented the condition of the cold storage property and/or concealed material facts about its condition.  KOG’s asserts various tort claims, the court additionally notes, against both JCS and the “Broker Defendants” based on their respective alleged misrepresentations and/or concealment of the same facts regarding the condition of the cold storage property. 

The “tort of another” theory, then, is—as far as the court can discern (the allegations are vague)—that because of JCS’s tortious misrepresentation and/or concealment of facts concerning the condition of the cold storage property, KOG was required to assert claims in the FAC against “Broker Defendants” to protect its interests, and, additionally, because of “Broker Defendants” separate misrepresentation and/or concealment of those same facts, KOG was required to assert claims in the FAC against JCS. 

Second Cause of Action – Breach of Implied Covenant of Good Faith and Fair Dealing

JCS contends the second cause of action, for breach of the implied covenant of good faith and fair dealing, is subject to demurrer because it is duplicative of KOG’s first cause of action for breach of contract.  The court agrees that the second cause of action is duplicative.  Further, the court observes, this is a recognized basis for sustaining a demurrer.  (Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290 [204 Cal.Rptr.3d 507].)

If the allegations supporting a claim for breach of the implied covenant “do not go beyond the statement of a mere contract breach and, relying on the same alleged acts [in support of a companion breach of contract cause of action], simply seek the same damages or other relief already claimed in a companion contract cause of action, they may be disregarded as superfluous as no additional claim is actually stated.” (Careau & Co. v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 1371, 1395 [272 Cal.Rptr. 387].)

Here, KOG’s first cause of action principally asserts JCS breached “written Purchase Documents concerning the sale of the Property” by misrepresenting and/or concealing material facts about the condition of the cold storage property “during … pre-closing walkthroughs” and in “written transaction documents,” and its second cause of action asserts JCS breached the implied covenant by way of the same misrepresentations and/or concealment of material facts.

Additionally, the court notes, the first cause of action and second cause of action each include allegations suggesting JCS failed to make good on promises to repair roof leaks (and that JCS misrepresented that the leaks had been repaired when they were not).   

KOG asserts arguments in opposition that are difficult to parse.

First, it contends “the FAC identifies purchase-document obligations concerning roof leaks and repairs,” and, here, references the FAC’s allegations under the second cause of action that JCS had represented, “in the Purchase Documents,” “that the identified roof leaks had been repaired” and, additionally, that JCS “clos[ed] the transaction without performing … written repair commitments, and with[eld] information necessary to prevent the express repair provisions from becoming illusory.”

KOG then asserts “JCS’s superfluity argument should be assessed against the distinct conduct and benefit alleged, not merely on the fact that the claims arise from the same transaction.”  Presumably concerning this purported “distinct conduct and benefit alleged,” it then states: “KOG seeks contractual damages for JCS’s alleged frustration of the written repair-related bargain, not a separate insurance-style tort remedy.”

The court isn’t quite sure what to make of this.  The only remotely discernable contention appears to be that KOG’s second cause of action is based on allegations of “frustration of the written repair-related bargain” and is, therefore, somehow distinguishable from its first cause of action because the first cause of action is not also based on conduct in “frustration of”—or, in other words, in breach of—“the written repair-related bargain.”

This is obviously, however, not the case.  The first cause of action references “written amendments and addenda addressing … roof leaks” and “repair commitments and representations concerning those leaks,” and, like the first cause of action, the second cause of action references representations “in the Purchase Documents that … identified roof leaks had been repaired,” “written repair commitments,” and “express repair provisions.”  The first cause of action is based, inter alia, on allegations that JCS breached “written amendments and addenda addressing … roof leaks …  and Seller’s repair commitments and representations concerning those leaks” by “[f]ailing to disclose known material defects,” “[p]roviding false disclosures,” “[m]isrepresenting the condition of the Property,” and “[d]elivering the Property in a materially different condition from that represented.”  The second cause of action, in turn, is based on substantively identical, albeit differently phrased, allegations that JCS breached the implied covenant of good faith and fair dealing by “representing in the Purchase Documents that the identified roof leaks had been repaired, closing the transaction without performing the written repair commitments, and withholding information necessary to prevent the express repair provisions from becoming illusory.”

In all substantively significant respects, then, the first and second causes of action are based on the same conduct and seek the same contract damages, the second cause of action, therefore, is entirely duplicative of the first.  Accordingly, the demurrer is sustained as to the second cause of action. 

KOG states it in its opposition that “if the Court requires a sharper distinction, KOG requests leave to identify the specific conduct beyond the asserted express breach and the contractual benefit which JCS frustrated.”  KOG does not, though, in the opposition “identify the specific conduct” it promises it could amend its pleading to allege.  The court declines to extend leave for what would apparently be another fruitless attempt to describe the same conduct, supporting the same claim, in different words, for no reason.  As KOG fails to “show “in what manner [it] can amend [its] complaint and how that amendment will change the legal effect of [its] pleading” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [134 Cal.Rptr. 375, 556 P.2d 737] (Goodman)), the demurrer is sustained, as to the second cause of action, without leave to amend.

Seventh Cause of Action – Constructive Fraud

JCS asserts KOG’s seventh cause of action, asserting “constructive fraud,” requires the existence of a fiduciary or confidential relationship, and that because “no fiduciary relationship between [JCS] and [KOG] is or could be pleaded, this cause of action fails as against [JCS].”

JCS is correct that “ ‘[c]onstructive fraud is a unique species of fraud applicable only to a fiduciary or confidential relationship.’ ” (Salahutdin v. Valley of California, Inc. (1994) 24 Cal.App.4th 555, 562 [29 Cal.Rptr.2d 463], citing 2 Miller & Starr, Cal. Real Estate (2d ed. 1989) § 3:20, p. 119.)  JCS is also correct that KOG does not allege, and does not appear able to allege, a fiduciary or confidential relationship between JCS and KOG.

Confirming exactly this, “KOG concedes,” in its opposition, “that the heading of the seventh cause of action for constructive fraud accidentally states ‘Against All Defendants’ even though its operative fiduciary-duty allegations identify only the Broker Defendants” and it requests leave to restate its seventh cause of action solely against “Broker Defendants” (i.e., “to amend the heading of the seventh cause of action to read ‘Against Broker Defendants’).

The court sustains the demurrer to the seventh cause of action.  To be clear, the demurrer is sustained without leave, as to JCS, because KOG does not show any possibility of cure as to JCS.  (Goodman, supra, 18 Cal.3d at p. 349.)

Ninth Cause of Action – Tort of Another

JCS demurrers to the ninth cause of action, asserting a claim for recovery based on the “tort of another” doctrine, on the ground that KOG fails to allege requisite conditions for application of the doctrine.

The tort of another doctrine has been described by our Supreme Court as one of several exceptions to the American rule, embodied in Code of Civil Procedure section 1021, under which each party must generally pay his or her own attorney fees.  (Gray v. Don Miller & Associates, Inc. (1984) 35 Cal.3d 498, 505 [198 Cal.Rptr. 551, 674 P.2d 253].)  The tort of another “exception” “allows a plaintiff attorney fees if he is required to employ counsel to prosecute or defend an action against a third party because of the tort of the defendant.” (Ibid.) 

Our court of appeal has more recently commented that the “the so-called ‘third party tort exception’ to the rule that parties bear their own attorney fees is not really an ‘exception’ at all but an application of the usual measure of tort damages. The theory of recovery is that the attorney fees are recoverable as damages resulting from a tort in the same way that medical fees would be part of the damages in a personal injury action.”  (Sooy v. Peter (1990) 220 Cal.App.3d 1305, 1310 [270 Cal.Rptr. 151] (Sooy); see also Mai v. HKT Cal, Inc. (2021) 66 Cal.App.5th 504, 512 [281 Cal.Rptr.3d 255] (Mai).)

Given that the doctrine has been characterized as one recognizing “claims for compensatory damages where the facts happen to permit the plaintiff to seek attorney's fees as a type of compensatory award” (Mai, supra, 66 Cal.App.5th at p. 512), JCS contends that the ninth cause of action “is not an independent cause of action,” being instead a claim for relief, and is, therefore, “subject to demurrer on that basis alone.”

It does appear, based on the authorities discussed above, that the tort of another doctrine concerns a measure of relief and is not, strictly speaking, an independent cause of action.  That said, JCS does not cite, and the court has not itself been able to identify, authority expressly supporting that it does not constitute a cause of action.  What’s more, were the court to sustain the demurrer, it would, if sustained on this ground alone, permit leave for KOG to reframe its allegations as supporting relief under the tort of another doctrine and this court would, inevitably, be called upon to later adjudicate the substantive challenges JCS lodges here to the applicability of the doctrine on a subsequent motion to strike. 

The court declines to forestall this determination for another, future round of law and motion.  It is clear that the doctrine does not apply in this case.  The doctrine clearly does not apply because KOG was not required to prosecute its various claims against the “Broker Defendants” “because of” (Gray, supra, 35 Cal.3d at p. 505, italics added) any alleged tortious conduct on the part of JCS.   

“The doctrine permitting a litigant to recover attorney fees and related costs incurred as the result of the ‘tort of another’ has its modern genesis in Prentice v. North Amer. Title Guar. Corp. (1963) 59 Cal.2d 618 [30 Cal.Rptr. 821, 381 P.2d 645]. There, the sellers of real property sued their escrow agent for negligence. The sellers alleged that the escrow agent's negligence required them to bring an action to quiet title against the purchaser and the beneficiary of a first deed of trust. The trial court found that the defendant had been negligent in closing the sale and awarded the sellers as damages the amount of attorney fees incurred by them in prosecuting the action against the purchaser and the trust deed beneficiary. In affirming, the Supreme Court noted that as a general rule attorney fees are to be paid by the party employing the attorney. However, the court recognized and applied the following ‘exception’ to this rule: ‘A person who through the tort of another has been required to act in the protection of his interests by bringing or defending an action against a third person is entitled to recover compensation for the reasonably necessary loss of time, attorney's fees, and other expenditures thereby suffered or incurred. [Citations.]’ (Id., at p. 620.)” (Sooy, supra, 220 Cal.App.3d at p. 1309-1310.)

What Prentice v. North Amer. Title Guar. Corp. (1963) 59 Cal.2d 618 [30 Cal.Rptr. 821, 381 P.2d 645] established was solely that “necessary attorney fees incurred in third party litigation which is proximately and foreseeably caused by a tortfeasor are recoverable as damages in an action against the tortfeasor.”  (Id., at p. 1312, italics added.)  The court declines to read “because of” and “proximately and foreseeably caused” as broadly as KOG suggests the court should here.  Generally, higher courts have “ ‘moved cautiously in expanding … nonstatutory bases on which awards of attorney’s fees may be predicated,’ [citation]” which can entail opening a “ ‘ “Pandora’s Box” of prolonged litigation’ [citation].” (Gray, supra, 35 Cal.3d at p. 507.)

Here, the action KOG asserts it was “required” to bring to protect its interests “because of” the claimed torts of JCS was a tort action based on the separate alleged acts of misrepresentation or concealment by the “Broker Defendants.”  Nothing in the FAC supports, or could support, that the misrepresentations and/or concealments of JCS proximately and foreseeably caused KOG to be required to maintain an action against the “Broker Defendants” for those defendants’ own, separate alleged misrepresentations and concealments of material fact.  The alleged misrepresentations and concealments by JCS were not the direct cause of KOG’s action against the “Broker Defendants”—the direct cause of that action is the alleged misrepresentations and concealments by the “Broker Defendants” themselves. 

Accordingly, the demurrer is sustained as to the ninth cause of action without leave to amend. 

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. Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings.

Re:                 Tyler, Elizabeth Rose vs. Law Office of Samuel M. Huestis, APC

Case No.:   VCU335501

Date:           November 9, 2026

Time:           8:30 A.M. 

Dept.           9-The Honorable Nathan D. Ide

Motion:    (1) Demurrer and (2) Motion to Strike

Tentative Ruling:

(1) To overrule the demurrer to the second cause of action; to sustain the demurrer to the third cause of action with leave to amend; Plaintiff shall have ten (10) days from the date of this hearing to file an amended complaint;

(2) To grant the motion to strike with leave to amend as to the requests for attorneys’ fees as to the first and second causes of action; Plaintiff shall have ten (10) days from the date of this hearing to file an amended complaint; to find the motion to strike moot as to punitive damages and attorneys’ fees with respect to the third cause of action, based on the ruling on demurrer.

Facts Common to (1) and (2)

In this matter, Plaintiff sues Defendants Law Office of Samuel M. Huestis, APC and Samuel M. Huestis for professional negligence, breach of fiduciary duty and negligent misrepresentation.

Plaintiff alleges that Defendants “represented Plaintiff in probate court opposing a probate petition in the Visalia Courthouse of the Tulare County Superior Court regarding title of Plaintiff’s deceased grandmother’s home located in Goshen, California.” (Complaint ¶4.)

Specifically, Plaintiff alleges her deceased grandmother’s home, located at 5317 Avenue 308, Goshen (“Subject Property”) was  subject of the probate petition opposition prepared by Defendants. (Complaint ¶7.) Plaintiff further alleges that 8 months after her death, the decedent’s neighbor Aguilar attempted to transfer the Subject Property into his name by filing a probate petition seeking the Transfer of Property pursuant to California Probate Code Section 850, alleging a verbal agreement to purchase the Subject Property in installments. (Complaint ¶¶8, 9.)

Plaintiff alleges further that “…Aguilar asserted the verbal agreement was that he would first pay off a $15,000 lien for Stephens and then pay her two $10,000 cash installments. Despite testifying that it was important to him and Stephens  both to document his payment of the first $10,000 cash installment with a receipt, Aguilar had no receipts or other documentation for the lien payoff or payment of the second $10,000 cash installment. Only the two cash installments are mentioned in the receipt dated  November 1, 2016 stating the Aguilar paid the first installment of  $10,000.” (Complaint ¶9.)

Additionally, that “Aguliar did not seek to have the title to the property transferred into his name for over six years from the date he alleged he purchased Stephens’ home from her by making all three purported installment payments and only doing so months after Stephens’ death” and “Aguliar alleged there were legitimate escrow documents, including a grant deed and escrow instruction that existed in 2017 but were never filed or given to him by an escrow agent and title company that he could not name which he alleged was out of business.” (Complaint ¶11.)

Plaintiff alleges the Subject Property was worth far more than the amount paid by Augilar. (Complaint ¶12.)

As to the present Defendants, Plaintiff alleges “Defendant Huestis and Defendant Huestis Law knew that Plaintiff had no experience in the intricacies of California Probate Law and the complexities involved prosecuting and defending against a probate petition from preparing for, participating in, and following trial . Defendants held themselves out as having specialized knowledge in the area of Probate Litigation, having trial experience in the Probate Department of the Visalia Courthouse in Tulare County Superior Court, and as having a reputation as experienced, knowledgeable, and effective Probate. Defendants were aware that this was a complex probate petition being challenged by an individual represented by very local Probate counsel.” (Complaint ¶14.)

Further, that “Plaintiff relied on Defendants’ expertise in probate litigation in California. Defendants represented to Plaintiff that Defendants were fully qualified to advise Plaintiff and to handle the probate litigation regarding her grandmother’s home. In reliance on Defendants’ representations, Plaintiff did not engage other professionals and solely relied on Defendants to represent her.” (Complaint ¶15.)

Additionally, that “During the probate litigation, Defendants did inadequate investigation and discovery, failed to adequately prepare the matter for trial, failed to submit a trail brief and other documents as and when required by the probate court, failed to secure an appropriate expert witness, failed to appropriately interview and prepare percipient witnesses, and failed to competently and expeditiously advise Plaintiff. Defendants did not have nor did they seek to add the necessary professional and support staff to adequately represent Plaintiff in the probate litigation. But for these errors, the outcome of the probate litigation would have been more favorable to Plaintiff.” (Complaint ¶16.) Further, that “Defendants erred during the trial of the probate litigation by, among other things, failing to adequately prepare, failing to retain and call appropriate expert witnesses, failing to marshal evidence, failing to call appropriate witnesses or secure witness testimony, failing to appropriately examine and cross-examine witnesses, failing to timely or properly object to evidence, failing to file appropriate motions or oppose motions, and other breaches of the standard of care.” (Complaint ¶17.)

As to the first cause of action for professional negligence, Plaintiff alleges “Defendants owed Plaintiff a duty of due care as Plaintiff’s attorney in the probate litigation. Defendants had a heightened duty of due care in that Defendants held themselves out as experienced probate litigation specialists as well as experienced trial lawyers. In performing professional services for Plaintiff, Defendants breached the standard of care for an attorney in the California legal community, both in a general sense and in the highly specialized area of Probate law…” (Complaint ¶20.)

Further, that “But for Defendants’ acts, errors or omissions, Plaintiff would have achieved a better result in the probate litigation. Among other things, had Defendants not breached the standard of care, Plaintiff would have presented more favorable evidence in the form of documents and witness testimony, would have eliminated or minimized unfavorable evidence, would not have lost credibility with the Judge in the probate litigation through their failure to follow the Court’s rule regarding preparation for trial, and would either have won the probate litigation or created a better record for appeal. Defendants committed other acts, errors, or omissions during their representation of Plaintiff which are currently unknown. Plaintiff reserves the right to amend this Complaint once such acts errors or omissions are discovered or upon further research and application of the law to the facts of this case.” (Complaint ¶21.)

As to the second cause of action for breach of fiduciary duty, Plaintiff alleges “As Plaintiff’s attorneys, Defendants owed plaintiff a fiduciary duty not to harm Plaintiff’s interests in her grandmother’s estate. Defendants knew from the beginning of the attorney-client relationship that the probate litigation would be emotionally charged and that Plaintiff was emotionally invested in a positive outcome.” (Complaint ¶25.) Further, that these fiduciary duties were breached by a failure “to properly develop and present a defense in the probate litigation” and “…by excessive billing, billing for time that was not reasonable or necessary to Defendants’ representation of Plaintiff, billing for time which should not have been necessary due to Defendants’ alleged expertise, and billing for time to educate Defendants due to Defendants’ actual lack of experience and expertise…” (Complaint ¶27.)

Finally, as to the third cause of action for negligent misrepresentation, Plaintiff incorporates paragraphs 1 through 28 and alleges “Plaintiff is informed and believes and thereon alleges that when Defendants made these representations, which were positive assertions as to past and existing facts, they were false. Defendants had no reasonable ground for believing the representations to be true, and Defendants were aware that Plaintiffs, and each of them, were relying on Defendants’ advice in that had Plaintiff known the true facts (that Defendants did not have the requisite knowledge, experience, and expertise to competently represent Plaintiff in the probate litigation, and that Defendants did not have adequate resources in terms of attorney and staff availability to adequately mount a defense) Plaintiff would have either selected different counsel from the beginning of the relationship or would have terminated Defendants and replaced them with competent counsel with adequate availability to mount Plaintiff’s defense. At the time the representations were made, and at all times thereafter, Defendants concealed from Plaintiff the inaccuracy of their representations.” (Complaint ¶30.)

Plaintiff seeks attorneys’ fees and as to the third cause of action, punitive damages.

Defendants demurrer to the second and third causes of action, and seek to strike the references to attorneys’ fees and punitive damages.

In opposition, Plaintiff argues that the second cause of action is sufficiently separate from the first as to breach of fiduciary duty with respect to billing and that Plaintiff has sufficiently alleged the information available to her presently as to negligent misrepresentation.

Authority and Analysis

(1) Demurrer

The purpose of a demurrer is to test whether a complaint “states facts sufficient to constitute a cause of action upon which relief may be based.” (Young v. Gannon (2002) 97 Cal.App.4^th 209, 220.  To state a cause of action, a plaintiff must allege facts to support his or her claims, and it is improper and insufficient for a plaintiff to simply plead general conclusions. (Careau v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 11371, 1390.) The complaint must contain facts sufficient to establish every element of that cause of action, and thus a court should sustain the demurrer if “the defendants negate any essential element of a particular cause of action.” (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4^th 857, 879-80)

To determine whether the complaint states facts sufficient to constitute a cause of action, the trial court may consider all material facts pleaded in the complaint and those that arise by reasonable implication therefrom; it may not consider contentions, deductions, or conclusion of fact or law (Moore v. Conliffe (1994) 7 Cal.4^th 634, 638.)

It is well-settled that all well-pled material facts in the complaint are assumed to be true for the purpose of the demurer.  (C & H Foods v. Hartford Ins. Co. (1984) 163 Cal.App.3d 1055, 1062) But “doubt in the complaint may be resolved against plaintiff and facts not alleged are presumed not to exist. (Id.)

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) No other extrinsic evidence can be considered (i.e., no "speaking demurrers"). (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.)

A demurrer cannot be sustained without leave to amend where it appears that the facts alleged establish a cause of action under any possible legal theory or it is reasonably possible that the plaintiff can amend the complaint to allege any cause of action. (Canton Poultry & Deli, Inc v. Stockwell, Harris, Widom, and Woolverton (2003) 109 Cal.App.4^th 1219, 1226.)

Second Cause of Action – Breach of Fiduciary Duty

Defendants argue that the second cause of action is entirely duplicative of the first for professional negligence, adds nothing to the complaint and therefore is subject to demurrer.

“The elements of a cause of action in tort for professional negligence are: (1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence." (Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal. App. 4th 820, 833.)

"The elements of a cause of action for breach of fiduciary duty are the existence of a fiduciary relationship, breach of fiduciary duty, and damages." (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820.) A fiduciary duty is founded upon a special relationship imposed by law or under circumstances in which "confidence is reposed by persons in the integrity of others" who voluntarily accept the confidence. (Tri-Growth Centre City, Ltd. v. Silldorf, Burdman, Duignan & Eisenberg (1989) 216 Cal.App.3d 1139, 1150; see CACI 4100, et seq.)

Here, the Court agrees with Plaintiff, that the second cause of action is differentiated on the basis of alleged overbilling. “The fiduciary duty to charge only fair, reasonable and conscionable fees applies to all members of the bar…”
(Bird, Marella, Boxer & Wolpert v. Superior Court (2003) 106 Cal.App.4th 419, 431.) Here, the allegations of “excessive billing, billing for time that was not reasonable or necessary to Defendants’ representation of Plaintiff, billing for time which should not have been necessary due to Defendants’ alleged expertise, and billing for time to educate Defendants due to Defendants’ actual lack of experience and expertise” are sufficient to state a breach.

Therefore, the Court overrules the demurrer to the second cause of action.

Third Cause of Action – Negligent Misrepresentation

The elements of negligent misrepresentation cause of action are "(1) the misrepresentation of a past or existing material fact, (2) without reasonable ground for believing it to be true, (3) with intent to induce another's reliance on the fact misrepresented, (4) justifiable reliance on the misrepresentation, and (5) resulting damage." (Apollo Capital Fund, LLC v. Roth Capital Partners, LLC (2007) 158 Cal.App.4th 226, 243.)

The facts constituting the alleged misrepresentation must be alleged factually and specifically as to every element, as the policy of "liberal construction" of the pleadings will not ordinarily be invoked. (Lazar v. Superior Court(1996) 12 Cal.4th 631, 645.) The "…particularity requirement necessitates pleading facts which 'show how, when, where, to whom, and by what means the representations were tendered.' [Citation.]" (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73.)

Here, the Court agrees that the allegations here lack the requisite specificity. Plaintiff argues that the complaint pleads allegations that are known to Plaintiff at this time in the litigation as specifically as possible.

While the Court recognizes that less specificity is required when "…it appears from the nature of the allegations that the defendant must necessarily possess full information concerning the facts of the controversy,” the Court’s review of the complaint reveals an insufficient attempt to plead the how, when, where, to whom and by what means required above.  (Bradley v. Hartford Acc. & Indem. Co. (1973) 30 Cal. App. 3d 818, 825.)

The Court, therefore, sustains the demurrer with leave to amend as to this cause of action. Plaintiff shall have ten (10) days to amend the complaint.

(2) Motion to Strike

Defendants move to strike references to recovery of attorneys’ fees as to the first and second causes of action and references to recovery of attorneys’ fees and punitive damages in the third cause of action.

Any party may file a timely notice of a motion to strike the whole or any part of a pleading. (Code Civ. Proc., § 435, subd. (b).) The motion may seek to strike any “irrelevant, false or improper matter inserted in any pleading” or any part of the pleading “not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ. Proc., § 436.) Irrelevant allegations include allegations that are not essential to the statement of a claim, allegations that are not pertinent to or supported by the claim and demands for judgment requesting relief not supported by the allegations. (Code Civ. Proc., § 431.10, subds. (b), (c).)

As to the motion to strike the punitive damages and attorneys’ fees sought via the third cause of action, the Court finds the motion to strike moot by the ruling on demurrer permitting leave to amend.

As to the request for attorneys’ fees as to the first and second causes of action, the Court notes, generally, “…attorney fees are not recoverable as costs unless they are authorized by statute or agreement.” (People ex rel. Dept. of Corporations v. Speedee Oil Change Systems, Inc. (2007) 147 Cal.App.4th 424, 429.)

The complaint identifies no statutory basis for recovery of fees.

Additionally, as noted by Defendants, while a retainer agreement may support a claim for attorneys’ fees, no breach of the retainer agreement is pled here, no allegation that the retainer agreement contains a fee provision has been made and therefore, there is no contractual basis on which recovery of fees appear available.

Therefore, the Court grants the motion to strike as to recovery of attorneys’ fees as to the first and second causes of action. The Court will permit leave to amend these causes of action to allege a basis for attorneys’ fees. Plaintiff shall have ten (10) days from the date of this hearing to file an amended 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. Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings.

Re:                Malhi, Satinder vs. MERCEDES-BENZ USA, LLC, et al

Case No.:  VCU338164

Date:           November 9, 2026

Time:           8:30 A.M. 

Dept.           9-The Honorable Nathan D. Ide

Motion:     Defendant Mercedez-Benz’s Motion to Compel Arbitration

Tentative Ruling: To grant the motion

Background Facts

In this matter, Plaintiff sues Defendant Mercedez-Benz USA, LLC for violations of Song Beverly and Defendant Mercedez-Benz of Fresno for Violation of Civil Code Section 1796.5.

Defendant Mercedez-Benz USA (hereinafter “Defendant”) moves to compel arbitration of the causes of action asserted against it and stay this matter pending completion of the arbitration pursuant to 9 U.S.C. § 3 and Code of Civil Procedure § 1281.4.

Facts – Agreement to Arbitrate

In support, Defendant submits the declaration of counsel who indicates they obtained a copy of the vehicle lease agreement (“Lease”) from Envision Motors dba Mercedes-Benz of West Covina entered into with Plaintiff regarding a 2024 Mercedes-Benz GLE 450 (VIN: 4JGFB4GB7RB150980) on February 7, 2024. (Declaration of Allison ¶2, 3 – Ex. A.) Defendant indicates the Lease contains an arbitration provision and agreement. (Declaration of Allison ¶3.)

Additionally, the finance director of Envision Motors dba Mercedes-Benz of West Covina has provided a declaration indicating access to and familiarity with Envision’s business recording keeping and who attests to review of the records of the dealership and location of the Lease as Exhibit A. (Declaration of Wang ¶¶1-9.)

In opposition, Plaintiff argues that Defendant cannot enforce the arbitration term as a non-signatory and that the Lease does not contemplate arbitration of these Song Beverly claims against the manufacturer. Further, that the lease itself excludes the warranties, which place them beyond the scope of the Lease.

Authority and Analysis – Agreement to Arbitrate

“A written agreement to submit to arbitration an existing controversy or a controversy thereafter arising is valid, enforceable and irrevocable, save upon such grounds as exist for the revocation of any contract.” (Code Civ. Proc., § 1281.) “On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: (a) The right to compel arbitration has been waived by the petitioner; or (b) Grounds exist for the revocation of the agreement.” (Code Civ. Proc., § 1281.2.)

In a motion to compel arbitration, the moving party must prove by a preponderance of evidence the existence of the arbitration agreement and that the dispute is covered by the agreement. The burden then shifts to the resisting party to prove by a preponderance of evidence a ground for denial (e.g., fraud, unconscionability, etc.). (Rosenthal v. Great Western Fin'l Securities Corp. (1996) 14 Cal.4th 394, 413-414; Hotels Nevada v. L.A. Pacific Ctr., Inc. (2006) 144 Cal.App.4th 754, 758.)

Any challenges to the formation of the arbitration agreement should be considered before any order sending the parties to arbitration. The trier of fact weighs all evidence, including affidavits, declarations, documents, and, if applicable, oral testimony to determine whether the action goes to arbitration. (Hotels Nevada v. L.A. Pacific Ctr., Inc., supra, 144 Cal.App.4th at p. 758.)

They may do so by simply providing a copy of the arbitration agreement.  (Baker v. Italian Maple Holdings, LLC, 13 Cal. App. 5th 1152, 1160 (2017); Cal. Rules of Court, rule 3.1330.)  “For purposes of a petition to compel arbitration, it is not necessary to follow the normal procedures of document authentication.” (Condee v. Longwood Management Corp. (2001), 88 Cal.App.4th 215, 218; Sprunk v. Prisma LLC (2017) 14 Cal.App.5th 785, 793.)  "The moving party 'can meet its initial burden by attaching to the [motion or] petition a copy of the arbitration agreement purporting to bear the [opposing party's] signature.' [Citation.]” (Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 165.) “For this step, 'it is not necessary to follow the normal procedures of document authentication.’ [Citation.]” (Id.)

Here, Counsel’s attachment of the Lease, as well as the declaration of the dealership’s employee, is sufficient as to this initial step.

If the moving party meets its initial prima facie burden and the opposing party disputes the agreement, then in the second step, the opposing party bears the burden of producing evidence to challenge the authenticity of the agreement." (Id.) “The opposing party can do this in several ways. For example, the opposing party may testify under oath or declare under penalty of perjury that the party never saw or does not remember seeing the agreement, or that the party never signed or does not remember signing the agreement.” (Id.) In Gamboa, the Court of Appeal found that the plaintiff “met her burden on the second step by filing an opposing declaration, saying she did not recall the agreement and would not have signed it if she had been aware of it: ‘I do not remember these documents at all .... Had I been made aware of the existence of an arbitration agreement, and been explained its provisions, I would not have signed any such documents.’” (Id. at 167.)

Here, there is no dispute as to Plaintiff’s signature on the Lease containing the arbitration term.

Therefore, the Court finds a sufficient agreement between Plaintiff and the dealer.

Facts – Nonsignatory

Here, Defendant Mercedes-Benz USA LLC is not a signatory to the Lease.

The Lease states, as to arbitration, that:

“Any claim or dispute whether in contract, tort or otherwise (including any dispute over the interpretation, scope or validity of this lease, arbitration section or the arbitrability of any issue), between you and us or any of our employees, agents, successors, assigns, or the vehicle distributor (including Mercedes-Benz USA LLC (each a “Third Party Beneficiary”), which arises out of or relates to a credit application, this lease, or any resulting transaction or relationship arising out of this lease (including any such relationship with third parties who do no sign this contract) shall, at the election of either, you, us, or a Third Party Beneficiary, be resolved by a neutral, binding arbitration and not by a court action.

…

This lease evidences a transaction involving interstate commerce. Any arbitration under this lease shall be governed by the Federal Arbitration Act (9 USC 1, et seq)…”

Plaintiff argues that Defendant is not a third party beneficiary because it fails to benefit from the lease and, even if it was, that its rights cannot exceed those of the dealership, which precludes enforcing arbitration for these claims.

Authority and Analysis – Nonsignatory

"Under certain circumstances, a nonsignatory to an arbitration agreement may seek to enforce it against a signatory. Whether such enforcement is permissible is a question of state law." (Ford Motor Warranty Cases (2023) 89 Cal.App.5th 1324, 1332.) California law generally permits six theories by which a nonsignatory may compel or be bound to arbitrate: "'(a) incorporation by reference; (b) assumption; (c) agency; (d) veil-piercing or alter ego; (e) estoppel; and (f) third-party beneficiary' [citations]." (Suh v. Superior Court (2010) 181 Cal.App.4th 1504, 1513.)

As to third party beneficiaries, Goonewardene v. ADP, LLC (2019) 6 Cal.5th 817, 829-830 notes that three elements must be satisfied:

“(1) whether the third party would in fact benefit from the contract, but also (2) whether a motivating purpose of the contracting parties was to provide a benefit to the third party, and (3) whether permitting a third party to bring its own breach of contract action against a contracting party is consistent with the objectives of the contract and the reasonable expectations of the contracting parties.”

“To invoke the third party beneficiary exception, the nonsignatory has to show that the arbitration clause was made expressly for its benefit." (Soltero v. Precise Distribution, Inc. (2024) 102 Cal.App.5th 887 898.)

The Court contrasts the Ford Motor Warranty cases, which rejected the manufacturer’s attempt to apply third party beneficiary to the language of the retail industry standard contract. There, the court found the arbitration provisions expressly limited enforcement to the plaintiff, dealership and assignee stating the agreements “…direct benefits are expressly limited to those persons who might rely on it to avoid proceeding in court - the purchaser, the dealer, and the dealer's employees, agents, successors or assigns” (Ford Motor Warranty, supra, 89 Cal. App. 5^th at 1338.)

Here, the Lease expressly names Defendant Mercedes-Benz USA LLC as a third party beneficiary and therefore benefits Defendant, communicates the intent to benefit Defendant and is consistent with the objective of the Agreement and reasonable expectations of the parties that might arise out of the Agreement, in satisfaction of Goonewardene.

As  Ford Motor Warranty noted: "If the signatories had intended to benefit [the manufacturer], such a purpose would have been easy to articulate. They could have simply named [the manufacturer] - directly or by class as the vehicle's manufacturer - as a person entitled to compel arbitration." (Id. at 1339.) Here, the Agreement takes this advice and articulates such intent by expressly naming Defendant and defining Defendant as a third party beneficiary.

Further, the arbitration provision is strictly limited to claims arising solely from the lease, but instead broadly applies to claims or disputes between plaintiff and defendant that arise out of or relate to "any resulting transaction or relationship arising out of this lease." Here, Plaintiff's claims under the Song-Beverly Act are statutory claims that also arise from the relationship between the Plaintiff consumer and Defendant manufacturer and warrantor as to the lease of the Subject Vehicle.

Therefore, the Court finds Defendant has standing to enforce the Lease’s arbitration provisions as a third party beneficiary.

Facts – Delegation Clause

The Lease’s arbitration term further states:

“Any claim or dispute whether in contract, tort or otherwise (including any dispute over the interpretation, scope or validity of this lease, arbitration section or the arbitrability of any issue)… shall, at the election of either, you, us, or a Third Party Beneficiary, be resolved by a neutral, binding arbitration and not by a court action.

Authority and Analysis - Delegation Clause

The Court, before examining enforcement of the delegation clause, must address issues of formation and standing. Caremark, LLC v. Chickasaw Nation (9th Cir. 2022) 43 F.4th 1021, 1029-1030 summarizes this issue as follows:

“…the issues reserved to the courts for decision ‘always include’ whether an arbitration agreement was formed, even in the presence of a delegation clause. [citations omitted]. That principle follows from the fundamental premise that arbitration is "strictly 'a matter of consent.'" [citations omitted] ‘To take the question of contract formation away from the courts would essentially force parties into arbitration when the parties dispute whether they ever consented to arbitrate anything in the first place." [citations omitted]...Accordingly, a court ‘should order arbitration of a dispute only where the court is satisfied that neither the formation of the parties' arbitration agreement nor (absent a valid provision specifically committing such disputes to an arbitrator) its enforceability or applicability to the dispute is in issue.”

The Court has found an agreement to arbitrate formed and that Defendant has standing to enforce the arbitration term above as a third party beneficiary. As such, the Court examines the delegation clause and challenges thereto.

Malone v. Superior Court (2014) 226 Cal.App.4th 1551 summarizes the applicable analysis with respect to delegation clauses:

“A delegation clause requires issues of interpretation and enforceability of an arbitration agreement to be resolved by the arbitrator. Delegation clauses have the potential to create problems of circularity. For example, suppose an arbitration agreement delegates the issue of enforceability to the arbitrator. If the arbitrator concludes that the arbitration agreement is, in fact, not enforceable, this would mean that the entire agreement, including the delegation clause, is unenforceable-a finding that would undermine the arbitrator's jurisdiction to make that finding in the first place. For this reason, courts have treated the delegation clause as a separate agreement to arbitrate solely the issues of enforceability…

“For this reason, when a party is claiming that an arbitration agreement is unenforceable, it is important to determine whether the party is making a specific challenge to the enforceability of the delegation clause or is simply arguing that the agreement as a whole is unenforceable. If the party's challenge is directed to the agreement as a whole--even if it applies equally to the delegation clause--the delegation clause is severed out and enforced; thus, the arbitrator, not the court, will determine whether the agreement is enforceable. In contrast, if the party is making a specific challenge to the delegation clause, the court must determine whether the delegation clause itself may be enforced (and can only delegate the general issue of enforceability to the arbitrator if it first determines the delegation clause is enforceable). (Rent-A-Center, West, Inc. v. Jackson (2010) 561 U.S. 63, 70).”

Here, the Court finds sufficient clear and unmistakable language in the Lease as to delegation of the remaining issues of enforceability, including scope and any defenses. The Lease states that the arbitrator has the authority to decide the scope, the validity, and the arbitrability of any issue.

Authority and Analysis – Challenge to Agreement in its Entirety as Unenforceable

Here, Plaintiff has challenged the Lease in its entirety. The Court, therefore, interprets this challenge, under Rent-A-Center and Malone, above, a challenge “…directed to the agreement as a whole--even if it applies equally to the delegation clause--the delegation clause is severed out and enforced; thus, the arbitrator, not the court, will determine whether the agreement is enforceable.”

Therefore, the Court will sever out the delegation clause and enforce it.

As such, the Court grants the motion and compels the remaining issues to the arbitrator pursuant to the Lease.

Therefore, the Court grants the motion.

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. Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings.

Re:                Wilson, Tatyana et al vs. Sierra Minit Marts, Inc.

Case No.:   VCU308861

Date:           November 9, 2026

Time:           8:30 A.M. 

Dept.           9-The Honorable Nathan D. Ide

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

Tentative Ruling: To grant the motion; to set the Final Compliance Hearing for June 28, 2027, 8:30 am in Department 9.

Background Facts

The Court previously continued this matter and ordered the declaration of the settlement administrator’s case manager filed. On October 26, 2026, the declaration of Ayala was filed. As such, the Court rules on the motion as follows:

Facts and Analysis

Plaintiff’s motion for final approval of class action and PAGA settlement, attorneys’ fees, costs, enhancement award, LWDA payment and class certification for settlement purposes came on for continued hearing on November 9, 2026.

On October 26, 2026, the settlement administrator Apex Class Action, LLC, through its Case Manager, filed a declaration detailing the following events.

On April 22, 2026, the administrator  received a mailing list of 385 potential class members from Defendants’ counsel with names, contact information, social security numbers and relevant employment information. During its review, Apex identified 13 potential duplicate records and two (2) individuals who appeared to have been inadvertently included. After receiving confirmation, Apex merged the duplicate records and removed the 2 ineligible individuals. The notice list, therefore, was reduced to 370 individuals. However, On June 26, 2026, Defendants informed us that an error had been identified in the previously provided list and that additional eight (8) class members needed to be added. Therefore, the correct total list was confirmed to be 378.

On April 30, 2026, after the administrator processed the names through the National Change of Address Database and updated the list with any updated addresses located, the administrator sent class notice by mail to the initial 370 potential members. On July 8, 2026, the notice packet was sent to  the additional eight (8) individuals noted above.

The response deadline of the 370 notice packets mailed on April 30, 2026, was June 29, 2026. An extended response deadline for potential class members who received a remailed notice packet was July 14, 2026. The response deadline of the eight (8) notice packets mailed on July 8, 2026, was September 8, 2026. An extended response deadline for potential class members who received a remailed notice packet was September 23, 2026.

As of the date of this declaration,  Zero (0) requests for exclusion and zero (0) valid objections have been received from class members. Therefore, all 378 potential members or 100% will participate in the settlement.

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

A net settlement amount of $446,177.64 is available to pay to the class members in accordance with the terms of settlement. The highest class portion to be paid is approximately $6,128.26, the lowest class portion to be paid is approximately $3.09, and the average class portion to be paid is approximately $1,156.75.

The Court believes basic information about the nature and magnitude of the claims in question and the basis for concluding that the consideration being paid for the release of those claims represents a reasonable compromise under the circumstances, in accordance with Kullar v. Foot Locker Retail, Inc. (2008) 168 Cal.App.4^th 116, 133.  This case involved extensive informal discovery and investigation of disputed claims, including review and analysis by Plaintiff’s expert.  The settlement avoids significant risks and delay that would result from further litigation of the case, which would include, amongst other matters, certification proceedings, trial, and the possibility of further delay and cost resulting from appeals.

Class counsel has provided an updated declarations in support of the requests for attorney fees representing 33.3% of the gross settlement fund of $750,000 or $250,000.

Zakay Law Group, APLC indicates 127.5 hours on this case, at rates of $800 to $475 per hour. (Declaration of Zakay ¶32 – Ex. 7.) Additionally, JCL Law Firm, APC has incurred 122 hours at rates ranging from $850 to $250 per hour. (Declaration of Lapuyade ¶8.) As such, the cumulative base lodestar is $182,992.50. Therefore, to award the $250,000 required, the Court would need to apply a multiplier of 1.37. The Court permits a maximum lodestar multiple of 1.5 in these cases. Therefore, the fees, as requested, are approved.

Counsel has additionally provided sufficient cost information indicating actual costs incurred in the amount of $21,072.36. (Declaration of Zakay ¶40; Declaration of Lapuyade ¶11.)

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

The settlement agreement designates California Controller’s Office Unclaimed Property Division in accordance with Code of Civil Procedure section 384.

The Court previously approved a representative payment of $5,000 and finds that the requested enhancement payment is appropriate under the circumstances.

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

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

Therefore, the following deductions from the gross settlement of $750,000.00.

are approved as follows:

Approved Court Approved Attorney Fees:	$250,000.00
Approved Incurred Attorney Costs:	$21,072.36
Approved Enhancement Payment to Plaintiff :	$5,000.00
Approved Settlement Administrator Costs	$7,750.00
Approved PAGA Payment (LWDA and Aggrieved Employees)	$20,000.00
Approved Net Settlement Amount	$446,177.64

The Court shall enter its order of final approval and judgment in this case on the proposed order submitted by Plaintiffs on September 29, 2026.

Final Compliance Hearing is set for June 28, 2027, 8:30 am in Department 9.

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. Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings.

Honorable Bret D. Hillman Presiding - Department 2

Examiner notes for probate matters calendared November 4, 2026, that allow for posting:

Status:  Recommended for Approval (RFA), Appearance Required or Recommended, Approval Conditional Upon, etc.

Case Number	Case Name	Type	Status	Comments
VPR054200	In the Matter of Horst, Mark Edward	Probate Will/Issue Letters	Recommended for Approval
VPR054208	In the Matter of Derrick, Sadie Yakne	Letters of Administration	Appearance Required	1. Petition Item 5a (3) or (4) omitted: re any surviving registered domestic partner. 2. Petition Item 8: relationships of parties to decedent omitted. 3. Notice of Petition to Administer not served on all parties 15 days prior. 4. Proof of Publication not filed
VPR054222	In the Matter of Burns, Gregory A	Probate Will/Issue Letters	Appearance Required	1. Petition Item 3c omitted: Decedent's residence at time of death. 2. Petition Item 3e(3): Bond Waivers not filed by all beneficiaries. 3. Duties & Liabilities of Personal Representatives (DE-147) not filed. 4. Supplemental Statements of Birth Date and DL Number (DE-147S) not filed. 5. Notice of Petition to Administer not filed. 6. Proof of Publication not filed
VPR053982	In the Matter of Estudillo Ramirez, Maria	Letters of Administration	Appearance Required	1. Duties & Liabilities of Personal Representative (DE-147) not filed, Prob C § 8404(a). 2. Supplemental Birth Date and DL Number (DE-147S) not filed, TCSC LR, rule 1000(c)(4). 3. Decedent is a citizen of a foreign country: if a citizen of a foreign country dies without leaving a will or leaves a will without naming an executor, notice shall be given to a recognized diplomatic or consular official of the foreign country, Prob C § 8113. 4. Proof of Publication not filed
VPR053982	In the Matter of Estudillo Ramirez, Maria	Contested Hearing - Spousal Property Petition	Appearance Required	Contested
VPR053982	In the Matter of Estudillo Ramirez, Maria	Contested Hearing - Probate	Appearance Required	Contested
VPR051795	In the Matter of Bertussi, Garryn Paul	Petition for Transfer Orders - Conservatorship	Appearance Required	Notice of Withdrawal of Petition submitted to court
VPR054207	In the Matter of Tarvin, Diana	Appoint Conservator	Appearance Required	Documents in order
VPR054117	In the Matter of Madriz Raya, Manuel Jr	Appoint Conservator	Appearance Required	Notice of Hearing and Citation not filed. Investigation has not been completed
VPR054115	In the Matter of Emerick, Ralph Raymond	Appoint Conservator	Appearance Required	Filed documents in order. Investigation has not been completed
VPR054152	In the Matter of Andrews, Vicki Darlene	Appoint Conservator	Appearance Required	Conservator Screening Form (GC-314) not filed as required by CRC, rule 7.1050
VPR050525	In the Matter of Cartagena, Maria Carmen	OSC Hearing	Appearance Required	Second Accounting has not been filed

Honorable Russell Burke Presiding- Department 19

Examiner notes for probate matters:   Thursday,  November 5, 2026

                                         

Status:  Recommended for Approval (RFA), Appearance Required or Recommended, Approval Conditional Upon, etc.

PLEASE NOTE:  All attempts possible are made to have the information on this page entered by 3:00 p.m. the day prior to hearing in order to allow for any needed continuances or travel if an appearance should be required.  For further information regarding a probate matter listed below you may contact the Probate Document Examiner at (559) 730-5000 x 1302 or 1430

Case Number	Case Name	Type	Status	Comments
PPR053968	In the Matter of Perez, Rosita	Probate Will/Issue Letters	Appearance required	Petition Item 5a (3) or (4) omitted: regarding any surviving registered domestic partner. Publication Improper, filed 4/14/26: Published not in accordance with Probate C § 8120
PPR054240	In the Matter of Rodriguez, Roberto	Determine Succession to Primary Residence	Appearance required	In a Petition to Determine Succession to Real Property, all persons who are succeeding to the property must be listed as petitioners. Probate Code §13151, requires that the successors of the decedent must “join in the petition.”
PPR054348	In the Matter of Garcia, Magalena Maria	Spousal Property Hearing		Recommended for approval
PPR054364	In RE: The Suarez Family Trust Dated August 9, 2010	Petition Hearing		Recommended for approval

South County Justice Center & County Civic Center- Visalia

GUARDIANSHIP CASES

         SCJC- Honorable Russell Burke Presiding

         Visalia- Honorable Bret D. Hillman; Honorable Nathan D. Ide; Honorable David C. Mathias

Examiner notes for probate GUARDIANSHIP matters calendared AS STATED BELOW that allow for posting:

PLEASE NOTE:  All attempts possible are made to have the information on this page entered by 3:00 p.m. the day prior to hearing in order to allow for any needed continuances or travel if an appearance should be required.  For further information regarding a probate matter listed below you may contact the Probate Document Examiner at (559) 730-5000 x 1302.

Hearing Date & Time	Department Number	Case Number	Case Name	Comments
11/2/26 8:30 AM	Department  2	VPR054411	In the Matter of N.S.H.	NEED Notice of Hearing (GC-020) to be filed with proof of service indicating Petition for Appointment was served pursuant to Probate Code §1511(a-i) for notice of this hearing the appointment of guardianship of the person Required to be completed - Attendance of Guardianship Orientation and Declaration of Attendance needs to be filed DOJ Background record check appears to be outstanding