Tentative Rulings

The Tentative Rulings for Monday, February 3, 2025, are:

Re:              Perez, Sabrina Veronica vs. Gomez, Jennifer

Case No.:     VCL296115

Date:           February 3, 2025

Time:          8:30 A.M.  

Dept.           7-The Honorable Gary M. Johnson

Motion:       Plaintiff’s Motion to Serve Defendants Brogan, Vasquez and Gomez by Publication

Tentative Ruling: To deny the motion

Background Facts

On or about February 24, 2023, Plaintiff filed the complaint in this matter. The Court sustained Defendants Farmersville, Brogan, Vasquez and Gomez’s (“Defendants”) demurrer with leave to amend on uncertainty grounds and for violations of California Rule of Court, rule 2.112.

On July 14, 2023, Plaintiff filed the First Amended Complaint alleging two tort-based causes of action against Defendants and alleging that Plaintiff had filed a simple “complaint form” with the Farmersville Police Department in 2021 in satisfaction of the tort claims presentation requirement. The Court again sustained Defendants’ demurrer with leave to amend to permit pleading compliance with the presentation of tort claims requirements.

On October 11, 2023, Plaintiff filed the Second Amendment Complaint alleging negligence, sexual battery, and negligent and intentional infliction of emotional distress related to an interaction with police officers of the named Defendant, Farmersville Police Department and naming individual Defendants Jenifer Gomez, Jay Brock, Jeremy Brogan, Luis Frausto and Ralph Vasquez. Plaintiff seeks between $8 billion and $88 billion in damages. The Court again sustained a demurrer for failure to plead compliance with the Tort Claims Act.

On December 13, 2023, Plaintiff filed this Third Amended Complaint alleging (1) negligence; (2) battery; (3) sexual battery; (4) intentional infliction of emotional distress; (5) negligent infliction of emotional distress; and (6) defamation against Defendant Farmersville Police Department and individual Defendants Jenifer Gomez, Jay Brock, Jeremy Brogan, Luis Frausto and Ralph Vasquez. Plaintiff sought between $8 billion and $88 billion in damages depending on the cause of action.

On February 26, 2024, the trial court sustained the demurrer without leave to amend this time because of the appellant’s failure to comply with the presentation requirement.

The February 26, 2024 ruling did not address the inclusion of Plaintiff’s 42 U.S.C § 1983 claim, included in the third amended complaint.

Plaintiff appealed this decision on the basis that no claim presentation was required as to a 1983 claim.

On September 10, 2024, the Appellate Division of the Superior Court of Tulare County issued its decision reversing the ruling on demurrer as it pertains to the 1983 claim and permitting leave to amend the complaint as to the 1983 claim.

On October 2, 2024 and October 29, 2024, Plaintiff filed additional amended complaints, thereafter served one or both of these amended complaints on various other defendants not at issue on this motion.

Plaintiff was apparently unsuccessful in personally serving Defendants Brogan, Vasquez and Gomez with these amended complaints.

Facts

Plaintiff initially filed this motion December 11, 2024 before filing an amended motion January 9, 2025.

The amended motion seeks an order to serve Defendants Brogan, Vasquez and Gomez by “posting in the Tulare County Superior Court at 221 S. Mooney Blvd. 93291 Visalia, California” pursuant to Code of Civil Procedure section 415.50(a).

Authority and Analysis

The only Defendants at issue on this motion are Brogan, Vasquez and Gomez. These Defendants have generally appeared in this case via the demurrers filed on their behalf.

“‘A general appearance by a party is equivalent to personal service of summons on such party.’ (Code Civ. Proc., § 410.50, subd. (a).)  ‘A general appearance operates as a consent to jurisdiction of the person, dispensing with the requirement of service of process, and curing defects in service.’ (2 Witkin, Cal. Procedure (4th ed. 1996) Jurisdiction, § 190, p. 756.)” (Fireman's Fund Ins. Co. v. Sparks Construction, Inc. (2004) 114 Cal.App.4th 1135, 1145.)

Therefore, no summons is required to be reissued as to an amended complaint and service of the amended complaint need not be by personal, substitute or publication. Rather, the amended complaint may be served on Defendants Brogan, Vasquez and Gomez, due to their general appearance in this case, by mail. Engebretson & Co. v. Harrison (1981) 125 Cal. App. 3d 436, 441 states "It is undoubtedly true that a defendant need only be served with summons once and that service of an amended complaint by mail under Code of Civil Procedure section 1012 is sufficient where the defendant has made an appearance in the action.

Further, Code of Civil Procedure section 415.50(a) requires a showing of reasonable diligence prior to service by publication.

“If a defendant's address is ascertainable, a method of service superior to publication must be employed, because constitutional principles of due process of law, as well as the authorizing statute, require that service by publication be utilized only as a last resort.” (Watts v. Crawford (1995) 10 Cal.4th 743, 749 fn.5 (citations omitted).)

The means of service described in sections 415.10 through 415.40 make service by publication unnecessary except where a defendant's whereabouts cannot be ascertained with reasonable diligence. (Id. (citations omitted).) The term "reasonable diligence" denotes a thorough, systematic investigation and inquiry conducted in good faith by the party or his agent or attorney. (Id. (citations omitted).) A number of honest attempts to learn defendant's whereabouts or his address by inquiry of relatives and by investigation of appropriate city and telephone directories generally are sufficient. (Id. (citations omitted).) These are the likely sources of information, and consequently must be searched before resorting to service by publication. (Id. (citations omitted).)  Before allowing a plaintiff to resort to service by publication, the courts necessarily require him to show exhaustive attempts to locate the defendant, for it is generally recognized that service by publication rarely results in actual notice. (Id. (citations omitted).)

Here, the Court does not find reasonable diligence demonstrated.

Therefore, the motion is denied.

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

Re:              Perez, Sabrina Veronica vs. Visalia Police Department Police Officer Victor Yates

Case No.:     VCU308153

Date:           February 3, 2025

Time:          8:30 A.M.  

Dept.           7-The Honorable Gary M. Johnson

Motion:       Plaintiff’s Motion to Serve Defendant by Posting

Tentative Ruling: The Court dismissed this matter August 21, 2024 pursuant to Plaintiff’s voluntary dismissal and denied Plaintiff’s motion to set aside the dismissal on November 18, 2024. As this matter remains dismissed, the Court finds the motion moot.

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:    Martinez, Sincerely Nicole vs. Tucker, Clarence Franklin

Case No.:     VCU293922

Date:           February 3, 2025

Time:          8:30 A.M.  

Dept.           7-The Honorable Gary M. Johnson

Motion:    Plaintiff’s motion for terminating, issue, evidentiary and/or monetary sanctions

Tentative Ruling: The motion is denied.  

Plaintiff moves “for Order granting terminating sanctions or, in the alternative, issue and/or evidence sanctions against defendant Juan Gonzalez-Martinez … for intentional spoilation of evidence.”  Plaintiff contends Gonzalez-Martinez “willfully and maliciously destroyed vital evidence, namely a 2007 Chevrolet Silverado with a California License Plate No. 8E80379, VIN …7332 (‘Subject Vehicle’), because this vehicle contained an Event Data Recorder (‘EDR’) at the time of the collision.”

“Spoliation of evidence means the destruction or significant alteration of evidence or the failure to preserve evidence for another's use in pending or future litigation. [Citation.]”  (Williams v. Russ (2008) 167 Cal.App.4th 1215, 1223 [84 Cal.Rptr.3d 813].)

The court finds that Gonzalez-Martinez did not destroy or failure to preserve evidence, and rather, that he and his insurer deployed meaningful prelitigation efforts precisely designed to preserve the truck for plaintiff to inspect, and, for that reason, denies the motion. 

These are the pertinent facts:

The accident at issue in the case occurred on December 11, 2021.

On December 30, 2021, a legal assistant from the Farahi Law Firm, Carlos Portugal, sent a letter to National General, Gonzalez-Martinez’s insurer, advising that the firm represented “Jacqueline Rojas (Estate of Sincerely Nicole Martinez)” and requesting Gonzalez-Martinez’s policy limits (“Jacqueline Rojas” is not a name with a known connection to this case; Sincerely Nicole Martinez is the living plaintiff, and the Farahi Law Firm’s client).

Rebecca Nalley of Encompass (“Encompass” and “National General” apparently each refer to Gonzalez-Martinez’s insurer) responded to Portugal’s letter on January 6, 2022, confirming acknowledgement of the letter and advising that Gonzalez-Martinez had not authorized disclosure of his policy limits.

On January 10, 2022, another Farahi Law Firm staff member, Roger Munoz, sent a “letter of preservation” to Nalley that did not identify an Encompass/National General insured person or insured vehicle.  Instead, the letter directed Encompass/National General to request that defendant Clarence Tucker (not their insured) preserve a vehicle with license plate number 6DQP583 (not a vehicle insured by them) and provide a copy of the Farahi Law Firm letter to “Marlene Torres” (a name with no known relation to the accident).

On January 19, 2022, Nalley took the reasonable and courteous step of calling Tucker’s insurer, The General Insurance Company.  Nalley left a message asking for the adjuster handling the matter, but did not receive a return call.

On January 20, 2022, The General Insurance took possession of Gonzalez-Martinez’s truck.  Gonzalez-Martinez’s understanding was that The General had determined Tucker at fault for the subject accident.  Gonzalez-Martinez, evidently, had submitted a claim for the damage to his truck to The General. 

On January 21, 2022, Nalley wrote Munoz to “seek clarity” as to what (assuming anything) was being “requested on behalf of … Juan Gonzalez.”  Nalley explained Tucker was not insured by Encompass/National General; that she did not “see we insured a vehicle involved in the loss with license plate 6DQP583”; that she “was not sure how Marlene Torres is involved in this loss”; and that “Marlene Torres” was not their insured.

There was no response from the Farahi Law Firm until, 54 days later, on March 16, 2022, Munoz got another “letter of preservation” to Encompass/National General regarding preservation of Gonzalez-Martinez’s truck and its Event Data Recorder. 

On March 23, 2022, Nalley forwarded the Farahi Law Firm preservation demand letter to Gonzalez-Martinez.  That same day, Gonzalez-Martinez called the adjuster with The General Insurance Company assigned to the claim (as noted above, they had taken possession of the truck) and told her that the Farahi Law Firm had demanded preservation of the truck so they could download the Event Data Recorder data.  The adjuster advised Gonzalez-Martinez the truck had been taken to Coparts in Fresno. 

On April 5, 2022, Gonzalez-Martinez spoke with Nalley and advised her that The General had taken possession of his truck and taken it to Coparts.  Gonzalez-Martinez also provided Nalley The General adjuster’s name and contact information.  That same day, and the next day, April 6, 2022, Nalley left voicemails with The General adjuster asking her to hold the truck and to return her calls, but the adjuster did not call her back. 

Also on April 6, Munoz sent Nalley an email requesting that she ask Gonzalez-Martinez when they could send their expert to “download the EDR.”

Nalley called and left another voicemail for The General’s adjuster on April 11, 2022, but did not hear back from her. 

On April 14, 2022, Nalley spoke with “Carlos” at the Farahi Law Firm and told him The General had taken possession of the truck and she was working to confirm its location.  She then emailed Munoz to confirm the same, stating also, “I’m not sure salvage is still available but attempting to find out.”

On April 19 and 25, 2022, Nalley emailed The General adjuster to confirm the preservation of Gonzalez-Martinez’s truck, but received no response.  Nalley called the adjuster on May 2, 2022, but did not receive a call back. 

On May 9, 2022, Nalley finally reached the adjuster at The General who reported the truck was still at Coparts.  That same day Nalley called Coparts to confirm the truck’s location and learned that The General would need to authorize an inspection.  Nalley then called the Farahi Law Firm to advise the truck was at Coparts and that it was in The General’s possession.  The staff member who took the call, Betsy, confirmed they had The General’s contact information and would follow up with their adjuster.

Both Gonzalez-Martinez and Nalley confirm that, at least as of May 2022, the truck was still at Coparts in Fresno.  Neither knows its current whereabouts or whether it has been destroyed. 

On May 19, 2022, the adjuster at The General advised Gonzalez-Martinez that the property damage claim for his truck exceeded Tucker’s limits.  Gonzalez-Martinez was paid $2,828.27 for the loss of his truck (and loss of its use), while his property damage claim was $10,741.11. 

On June 9, 2022, Nalley emailed Munoz at the Farahi Law Firm and advised him as to what she told Betsy when Nalley had called and spoke to Betsy previously.  Nalley provided The General adjuster’s name and contact information. 

On October 26, 2022, plaintiff filed her original complaint, commencing this action against Tucker and Gonzalez-Martinez. 

On October 27, 2022, Nalley called and emailed The General’s adjuster to confirm the truck was still being held at Coparts.  Nalley did not receive a response. 

According to Justin Farahi, on November 30, 2023—570 days after Nalley had advised the Farahi Law Firm that the truck was at Coparts and that it was in The General’s possession (and “Betsy” confirmed they would follow up with their adjuster)—“a Carfax report for Defendant Tucker’s vehicle was downloaded,” and “the report showed ‘New owner reported - JUNK TITLE/CERTIFICATE ISSUED’ on October 26, 2022.” (Italics added.)  The court notes that Mr. Farahi meant to state that “a Carfax report … was downloaded” for Gonzalez-Martinez’s truck but can’t entirely ignore the ironic recurrence of this misidentification. 

Mr. Farahi describes nothing else that he or his staff did for the well over a year period after Munoz was fully advised of the information necessary to access Gonzalez-Martinez’s truck by Nalley on June 9, 2022.  Mr. Farahi also describes nothing that he or his staff did up until this motion was filed on December 23, 2024, which, as it happens, was the very same date plaintiff was due to file and filed her opposition to Gonzalez-Martinez’s previously disposed motion for summary judgment. 

It's obvious that this motion was part of a two-part attack designed to avoid the possibility of losing on the claim against Gonzalez-Martinez on summary judgment. 

As the first part of that attack, plaintiff’s opposition to the summary judgment motion included a new opinion of plaintiff’s expert, who, despite having previously concluded Gonzalez-Martinez was traveling under the posted speed limit in the moments leading up to the accident, changed his position to conclude that Gonzalez-Martinez was speeding (based on purportedly valid methodologies that the expert completely failed to explain). 

The other part of that attack is this meritless motion, in which plaintiff purports to recast Gonzalez-Martinez’s understandable action of turning over his damaged truck to the insurer of the party to this case, Tucker—who rear-ended plaintiff and pushed her vehicle directly into his path of travel, resulting in the collision of plaintiff and Gonzalez-Martinez’s respective vehicles—as a “willful[] and malicious[]” destruction of evidence.

Gonzalez-Martinez did not, in any event, destroy the truck.  He turned it over, for understandable reasons, to Tucker’s insurer and then, when he and his insurer had good reason to know plaintiff’s intention to conduct a pre-litigation inspection, Gonzalez-Martinez and the adjuster from his insurance company diligently did what was reasonably necessary to get plaintiff and her counsel what they needed to conduct that inspection.  Plaintiff and her counsel did nothing with that information.  If, under these circumstances, plaintiff’s position in this litigation has been injured, it is not Gonzalez-Martinez that is to blame. 

Accordingly, the motion is denied. 

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

Re:              Quezada, Raquel vs. Preeti, Verma

Case No.:  VCU311080

Date:           February 4, 2025

Time:          8:30 A.M.  

Dept.           7-The Honorable Gary M. Johnson

Motion:       Plaintiff’s Continued Motion for Dismissal of Unauthorized Representation, Void Liens, Grant ADA Accommodations, to Grant Remote Access and to Expedite Proceedings

Tentative Ruling: To deny the motion.

Facts

On July 18, 2024, Plaintiff, represented in pro per, has filed this complaint against Defendant Verma Preeti and Does 1-10 for motor vehicle negligence as to an incident allegedly occurring July 25, 2022. 

Defendant was served via personal service December 2, 2024.

On December 12, 2024, Plaintiff filed this motion.

Plaintiff’s motion is accompanied by a declaration explaining Plaintiff is 87 years old, was involved in a car accident July 25, 2022, was hospitalized for one and a half months, and relies entirely on her son to assist her with legal matters. (Declaration ¶¶1.1-1.3, 1.5.)

Plaintiff further declares that she has never spoken with or signed an agreement with the Law Offices of Daniel Kim or Vaziri Law Group, nor has she authorized either firm to represent her. (Declaration ¶2.1) However, Plaintiff indicates that he daughter Raquel Hartman was the registered owner of the vehicle and the contingency agreement signed by Raquel was based on an “improperly referenced Power of Attorney…” (Declaration ¶2.2.) Plaintiff indicates that on October 4, 2023, she sent a “cease-and-desist” letter to “formally declin[e] their representation.” (Declaration ¶2.5.)

Further, Plaintiff states that the Law Offices of Daniel Kim then retained Vaziri as to Case No. VCU310872, naming Plaintiff as the plaintiff in Case No. VCU310872. (Declaration ¶3.1.) Another cease-and-desist letter was sent to Vaziri on September 12, 2024. (Declaration ¶3.2) Plaintiff indicates Vaziri has failed to dismiss Case No. VCU310872. (Declaration ¶3.3)

Plaintiff further declares the actions by these law firms have obstructed her ability to communicate directly with the opposing party and prevented her from retaining other counsel. (Declaration ¶4.1, 4.2)

 Plaintiff, via this motion, seeks to dismiss Law Offices of Daniel Kim or Vaziri Law Group, void all liens, “preserve case VCU311080,” dismiss Case No. VCU310872 and allow her son to speak on her behalf, to accept written responses as part of ADA accommodations and to permit remote participation.

Plaintiff further seeks expedited mediation and trial scheduling pursuant to Code of Civil Procedure section 36.

The Court noted no proof of service of this motion on Defendant with the initial filing. At the initial hearing date on this motion, the Court continued this matter to today’s date and ordered service on Defendant.

No opposition appears to have been filed.

Authority and Analysis

“Dismiss Law Offices of Daniel Kim or Vaziri Law Group”

In the present case, VCU311080, Plaintiff represents herself. There is no statement of related cases or consolidation of this matter, VCU311080 with VCU310872 (where Law Offices of Daniel Kim and/or Vaziri Law Group are the attorneys’ of record.)

The Court has no ability on a motion filed in this case to “dismiss counsel.” Additionally, there is no substitute of counsel on file in VCU310872, nor a pending motion to withdraw counsel. This request is denied.

“Void All Liens”

There are no liens filed in the present case to “void.” This issue is not ripe before this Court in this case. This request is denied.

“Preserve Case VCU311080”

No legal or statutory basis is provided in support of this request and it is unclear what is being requested. This case, VCU311080, remains active, with Defendant having been served December 2, 2024.

There is no relief available as requested to “preserve” this case. This request is denied.

“Dismiss Case No. VCU310872”

The Court, in this matter, has no power to dismiss another case that is filed. Any dismissal of that case must take place within that case by motion or dismissal, and is not ripe for the present case.

This request is denied.

“Allow Her Son to Speak on her Behalf”

“…no person who is not an attorney may represent another in a legal proceeding.” (Torres v. Friedman (1985) 169 Cal. App. 3d 880, 887.) “Courts do not generally recognize individuals who are neither attorneys of record nor parties…” (Drake v. Superior Court (1994) 21 Cal. App. 4th 1826, 1830 n.3.) To permit otherwise would to allow the son to engage in the unauthorized practice of law.

This request is denied.

“To accept written responses as part of ADA accommodations”

It is unclear as to what such a ruling would apply to or what exactly is being request. The Court will not make orders in the absence of a controversy. There is no present demand on Plaintiff, that the Court is aware, for her to testify orally in court or in a deposition.

Any request to participate via written responses must be adjudicated based upon the demand for Plaintiff’s oral testimony or participation.

This request is denied.

To Participate Remotely

The Court has set up a process to request and grant remote appearances to the extent permitted by, and in accordance with, California Rule of Court 3.672 and Code of Civil Procedure section 367.75.

Such information is available here:

https://www.tulare.courts.ca.gov/online-services/request-remote-hearings

The Court, however, cannot grant a blanket request for remote appearances. For instance, the Court commonly requires personal appearances at mandatory settlement conferences.

Code of Civil Procedure section 36

Section 36 states, in relevant part, the following:

(a) A party to a civil action who is over 70 years of age may petition the court for a preference, which the court shall grant if the court makes both of the following findings:

(1) The party has a substantial interest in the action as a whole.

(2) The health of the party is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation.

…

(c) Unless the court otherwise orders:

(1) A party may file and serve a motion for preference supported by a declaration of the moving party that all essential parties have been served with process or have appeared.

(2) At any time during the pendency of the action, a party who reaches 70 years of age may file and serve a motion for preference.

…

(e) Notwithstanding any other provision of law, the court may in its discretion grant a motion for preference that is supported by a showing that satisfies the court that the interests of justice will be served by granting this preference.

(f) Upon the granting of such a motion for preference, the court shall set the matter for trial not more than 120 days from that date and there shall be no continuance beyond 120 days from the granting of the motion for preference except for physical disability of a party or a party’s attorney, or upon a showing of good cause stated in the record. Any continuance shall be for no more than 15 days and no more than one continuance for physical disability may be granted to any party.”

Here, Plaintiff’s declaration indicates she is over the age of 70. Plaintiff further declares she has suffered emotional trauma and depression, as well as continues to suffer from trauma to internal organs, chronic back, neck and head pain and heart failure requiring the implantation of a pacemaker.

However, the declaration does not satisfy subsection (c) as to all essential parties have been served with process or have appeared.

Therefore, the Court denies the request for trial preference, without prejudice, based upon the failure to satisfy subsection (c).

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