Tentative Rulings

The Tentative Rulings for Thursday, February 19, 2026, are:

Re:                City of Tulare vs. Mai, Bin Liang

Case No.:   VCU294271

Date:           February 19, 2026

Time:           8:30 A.M. 

Dept.           1-The Honorable David C. Mathias

Motion:     Respondent’s Motion for Reconsideration

Tentative Ruling: To deny the motion

Facts and Analysis

Via this motion, Respondent seeks reconsideration or modification of the Court’s November 20, 2025 order appointing California Receivership Group (“CRG”) to sell the Subject Property.

On November 20, 2025, the Court granted Arvest’s motion to modify the appointment order and denied motions by Respondent as to termination of the appointment of receiver, to require specific disclosures and to deny payment to the receiver.

Respondent seeks this relief based on the failure to request oral argument for the November 20, 2025 hearing and the Court’s entry, thereafter, of its order without hearing oral argument.

This is not a proper subject for reconsideration under Code of Civil Procedure section 1008, which states:

"(a) When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order. The party making the application shall state by affidavit what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown."

Section 1008 requires new or different facts, circumstances or law. New York Times Co. v. Superior Court (2005) 135 Cal. App. 4th 206, 212, states, "Section 1008, subdivision (a) requires that a motion for reconsideration be based on new or different facts, circumstances, or law. A party seeking reconsideration also must provide satisfactory explanation for the failure to produce the evidence at an earlier time. [Citation.]"  Further, the New York Times Co. court noted "The burden under section 1008 is comparable to that of a party seeking a new trial on the ground of newly discovered evidence: the information must be such that the moving party could not, with reasonable diligence, have discovered or produced it at the trial. [Citation.] Case law after the 1992 amendments to Section 1008 as relaxed the definition of 'new or different facts,' but it is still necessary that the party seeking that relief offer some fact or circumstance not previously considered by the court. [Citations.]" (Id. at 212-213.)

Here, no new or different facts are set forth as to the Court’s ruling. Therefore, the Court denies the motion for reconsideration.

Alternatively, Respondent seeks under Code of Civil Procedure section 473.

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

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

Here, the Court has only an affidavit from Respondent’s counsel and therefore mandatory relief appears requested.

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

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

The Court in Prieto v. Loyola Marymount University (2005) 132 Cal.App.4th 290, however, stated that “…the Legislature expressly limited the scope of the mandatory provision of section 473(b) to require relief from default judgments only.” (Id. at 295-296.) Here, no default judgment is at issue.

Therefore, the Court denies the motion under section 473(b).

As such, the Court denies 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.

Re:                City of Exeter vs. Dignan, Lillian Eileen

Case No.: VCU315971

Date:          February 19, 2026

Time:          8:30 A.M. 

Dept.         1-The Honorable David C. Mathias

Motion:       Receiver’s Motion (1) approving and settling the Receiver’s final report and accounting, (2) approving final compensation and reimbursement of expenses, (3) approving the Receiver’s proposed distribution of funds; (4) exonerating all bonds, (5) terminating the Receivership appointment, and (6) retaining jurisdiction regarding this Receivership appointment

Tentative Ruling: To grant the motion and award the Receiver $77,760.17 and Plaintiff $85,006.86; to grant the remaining relief requested.  CMC is continued to April 28, 2026; 8:30 am; D1 for final judgment or dismissal.

Background Facts

On February 28, 2025, this Court issued an Order titled “Receivership Order” (the “Appointing Order”) that appointed the Receiver to acquire funding, develop a rehabilitation plan for, and supervise the rehabilitation of the Property, which the Court found was in such severe disrepair that it substantially endangered the health and safety of the general public.

The Receiver attempted to work with defaulted Defendant Lillian Eileen Dignan (“Defendant”) to voluntarily relocate her from the Property, and in that process contacted her family members and multiple local shelters that could provide housing for Defendant while the Property was rehabilitated. Defendant refused assistance and would not cooperate with the rehabilitation process.

On March 25, 2025, the Receiver filed an ex parte application requesting that the Court (1) issue a writ of possession to remove Defendant from the Property, (2) approve the Receiver’s proposed plan to clean-up and secure the Property, and (3) authorize the Receiver to market and sell the Property to a buyer who would enter into a separate agreement with the City to make the Property code-compliant.

The Receiver estimated that it would cost $75,000 to $125,000 to fix all violations at the Property, which is prohibitively costly given the encumbrances already on title.

After continuing the ex parte hearing to April 4, 2025, the Court issued an order granting the Receiver’s ex parte application. The Sheriff removed Defendant from the Property on May 6, 2025, and the Property was listed for sale at $170,000 on May 24, 2025.

On August 14, 2025, Receiver filed a motion to confirm the sale and to sell the property free of the liens. The Court confirmed the sale in the amount of $172,600 and the Order stated that “The liens and encumbrances described below are hereby removed from title to the Property, and any monetary liens will attach to the net sale proceeds with the same extent, validity and priority, if any, as such liens and encumbrances now have with respect to the Property…” and listing the PennyMac Loan, a Deed of Trust to secure a debt of $36,465.52 recorded on 7/13/2022 as Instrument No. 2022-44873, and an Abstract of Judgment recorded on 6/25/19 as Instrument No. 2019-33500 against Defendant and in favor of Finance and Thrift Company, regarding Tulare Superior Court Case No. VCL166944, amongst other encumbrances.

The Court’s ruling stated, further:

“As to distribution, the Court agrees that a final accounting by all parties seeking to obtain any funds from the sale is necessary for the Court to distribute the funds.” (September 11, 2025 Ruling.)

Facts re: Receiver’s Motion (1) approving and settling the Receiver’s final report and accounting, (2) approving final compensation and reimbursement of expenses, (3) approving the Receiver’s proposed distribution of funds; (4) exonerating all bonds, (5) terminating the Receivership appointment, and (6) retaining jurisdiction regarding this Receivership appointment

The Receiver indicates, as to this motion, the Receiver’s total fees and expenses in this matter from February 28, 2025, through December 31, 2025, are $88,600.24, comprising $78,791.50 in fees, $1,736.35 in expenses, and $8,072.39 in operational costs (for advances to secure the Property, including for fencing and boards) as indicated in Exhibits 6 and 7.

Further, that counsel for the City of Exeter seeks fees and costs totaling $95,846.94, comprising $84,158.30 in attorney’s fees incurred through October 8, 2025, litigation costs of $3,273.13, City of Exeter staff costs of $6,555.51, and an additional $1,860 in attorney fees for the time incurred to review and respond to this pleading and make additional court appearances. A declaration of Plaintiff’s counsel as to these costs and fees is attached as Exhibit 2.

This would result in a deficiency over the sale price of approximately $21,680.15.

The Receiver further notes Pennymac submitted a claim pursuant to the Pennymac Loan requesting to be reimbursed in the total amount of $164,972.23, comprising of an unpaid principal balance on the Pennymac Loan of $125,054.03, interest thereon through October 16, 2025 totaling $16,819.86, and fees of $23,098.34. The claim submission is attached as Exhibit 4.

Further, that Beneficial State Bank, the successor in interest to Finance and Thrift Company, submitted a claim pursuant to the Junior Judgment in the amount of $3,914.66, based on its judgment against Defendant which is attached to the claim and was recorded on title to the Property. The claim submission is attached as Exhibit 5.

Plaintiff City of Exeter has filed a response to the motion agreeing to the fees and costs asserted by both the Receiver and City in the moving papers and proposing that either Defendant Pennymac pay the deficiency or to split the deficiency evenly between the parties.

Defendant Pennymac has filed an opposition arguing that the Court should deny the request for Pennymac to pay the deficiency.  

Authority and Analysis

The receiver acts as a ministerial officer and a temporary occupant and caretaker of the property for the Court. (Gill v. Rich (2005) 128 Cal. App. 4th 1254, 1267. The receiver represents the Court as the medium through which the Court acts. (Id.) "The receiver's functions and powers are controlled by statute, by the order appointing him, and by the Court's subsequent orders." (Cal-American Income Property Fund VII v. Brown Dev. Corp. (1982) 138 Cal. App. 3d 268, 273-274.)

Receivers are entitled to compensation for their own services and the services performed by their attorneys. (Venza v. Venza (1951) 101 Cal. App.2d 678, 680.) Generally, the costs of a receivership are paid from the property in the receivership estate. (Andrade v. Andrade (1932) 216 Cal. 108, 110.)

California Rules of Court, rule 3.1184 requires a receiver to submit a final report and account to obtain a discharge. The final account and report may be presented by noticed motion, as is the case here.

Notice must be provided to every person or entity known to the receiver to have a substantial, unsatisfied claim that will be affected by the order, "whether or not the person or entity is a party to the action or has appeared in it." (Cal. Rules of Court, Rule 3.1184(c).) "If any allowance of compensation for the receiver or for an attorney employed by the receiver is claimed in an account, it must state in detail what services have been performed by the receiver or the attorney and whether previous allowances have been made to the receiver or attorney and the amounts." (Rule 3.1184(d).)

Receiver’s Motion and Fees/Costs

The Receiver, as noted above, submits a compilation of billing statements within the noticed motion.

A review of the billing statements and declaration shows that the purpose of the referee has concluded because the property sold and the only business left is the distribution of the remaining funds. No party has submitted any opposition papers to show any problems with the receiver's work. No party objected to the prior reports, and the final report shows no unusual items or expenses.

“[F]ees awarded to receivers are in the sound discretion of the trial court and in the absence of a clear showing of an abuse of discretion, a reviewing court is not justified in setting aside an order fixing fees.” (People v. Riverside University (1973) 35 Cal.App.3d 572, 587; see also Jones v. Union Bank of California (2005) 127 Cal.App.4th 542, 549-550 [trial court abuses its discretion in awarding fees/costs when the award is not supported by the evidence].) Ultimately, the amount of fees and expenses must be reasonable and related to the receivership.

Given the prior orders, documented expenses, sale of the property and lack of objection, the court finds the receiver fees reasonable. Accordingly, the Court approves the final report and account as to the receiver’s fees.

Given the approval of the final report and accounting, the Court also issues an order exonerating the bonds and discharging the receiver.

Attorneys’ Fees and Costs

As to the attorneys’ fees incurred, “[a] trial court assessing attorney fees begins with a touchstone or lodestar figure, based on the ‘careful compilation of the time spent and reasonable hourly compensation of each attorney ... involved in the presentation of the case.”  (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1321.) “The reasonableness of attorney fees is within the discretion of the trial court, to be determined from a consideration of such factors as the nature of the litigation, the complexity of the issues, the experience and expertise of counsel and the amount of time involved. The court may also consider whether the amount requested is based upon unnecessary or duplicative work.” (Wilkerson v. Sullivan (2002) 99 Cal.App.4th 443, 448.)

“Under that [lodestar]method, the court ‘tabulates the attorney fee touchstone, or lodestar, by multiplying the number of hours reasonably expended by the reasonable hourly rate prevailing in the community for similar work.’ (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1321.)” (Marshall, supra, 54 Cal.App.5^th at 285.)

Reasonable Local Rate

“The lodestar calculation begins with a determination of the ‘reasonable hourly rate,’ i.e., the rate ‘prevailing in the community for similar work.’ (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.)” (Marshall, supra, 54 Cal.App.5^th at 285.) “The general rule is ‘[t]he relevant “community” is that where the court is located.’ (Altavion, Inc. v. Konica Minolta Systems Laboratory, Inc. (2014) 226 Cal.App.4th 26, 71.)” (Marshall, supra, 54 Cal.App.5^th at 285.) “The reasonable hourly rate is that prevailing in the community for similar work.”  (PLCM Group Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) “The experienced trial judge is the best judge of the value of professional services rendered in his court.” (Id.)  Additionally, the determination of the value of the legal services is committed to the discretion of the trial court without necessity of expert testimony. (Cordero-Sacks, v. Housing Authority (2011) 200 Cal App 4th 1267, 1286.)

Counsel indicates rates for attorney work are $295-$310 per hour and paralegal work is $180-$189 per hour. (Exhibit 2 – Declaration of Morrissey ¶2.) The Court finds these rates within the range of prevailing rate for the community.

Number of Hours Reasonably Expended

Although detailed time records are not required, courts have expressed a preference for contemporaneous billing and an explanation of work. (Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1375.) “Of course, the attorney's testimony must be based on the attorney's personal knowledge of the time spent and fees incurred. (Evid.Code, § 702, subd. (a) [‘the testimony of a witness concerning a particular matter is inadmissible unless he has personal knowledge of the matter’].) Still, precise calculations are not required; fair approximations based on personal knowledge will suffice.” (Mardirossian & Associates, Inc. v. Ersoff (2007) 153 Cal.App.4th 257, 269.) 

The starting point for the determination as to hours is the attorney’s submitted time records. (Horsford v. Board of Trustees of Calif. State Univ. (2005) 132 Cal. App. 4th 359, 395-397—verified time records entitled to credence absent clear indication they are erroneous.)  Plaintiff has the burden of showing that the fees were reasonably necessary to the conduct of the litigation and were reasonable in amount. (Morris v. Hyundai Motor Am. (2019) 41 Cal.App.5th 24, 34, as modified (Oct. 11, 2019), rev. denied (Jan. 2, 2020) [internal quotations and citations omitted].)  To determine reasonable attorney’s fees, the court should consider the nature of the litigation, its difficulty, the amount involved, the skill required and employed in handling the matter, the attention given, the success of the attorney’s efforts, the intricacies and importance of the litigation, the labor and necessity for skilled legal training and ability in trying the cause, and the time consumed. (Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 659.)

Plaintiff indicates the total hours spent are 307.2. The Court finds no clear indication they are erroneous based on the description in the declaration.

Costs

Plaintiff seeks litigation costs of $3,273 and staff costs of $6,555.51. No opposition has been raised to these costs.

Summary of Receiver and Attorney Fees and Costs

As noted above, the net sale price was $162,767.03.

As such, the Court’s award of the Receiver fees and costs in the amount of $88,600.24 and Plaintiff fees and costs in the amount of $93,986.94 provides a total of $184,447.18, as noted by the Receiver and Plaintiff, this creates a deficiency of $21,680.15. The Court will simply reduce each sum awarded by half of the deficiency as opposed to assessing this amount against Defendant Pennymac.

Therefore the Court will award the Receiver $77,760.17 and Plaintiff $85,006.86.

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:                Silva, Arcadia Montes vs. Horizon Nut LLC

Case No.:  VCU324278

Date:           February 19, 2026

Time:           8:30 A.M. 

Dept.           1-The Honorable David C. Mathias

Motion:     Defendant’s Motion to Compel Arbitration

Tentative Ruling: To grant the motion.  CMC continued to May 20, 2026; 8:30 am; D1 to confirm status of Arbitration.

Background Facts

In this matter, Plaintiff sues Defendant for age and disability discrimination, failure to prevent such discrimination, failure to accommodate, failure to engage in good faith interactive process, retaliation, CFRA interference and wrongful termination.

Defendant moves to compel arbitration based upon an agreement purportedly signed by Plaintiff on February 2, 2024.

Facts – Agreement to Arbitrate

In support, Defendant provides the declaration of its Human Resources Director, who has held that position since January 2024. (Declaration of Negrete ¶1.) Declarant indicates familiarity with the policies, procedures and practices as to personnel management and records keeping as to Defendant’s employment records. (Declaration of Negrete ¶3.)

Plaintiff was employed by Defendant from November 23, 2015 through September 7, 2023 and again from September 18, 2023 through August 1, 2024. (Declaration of Negrete ¶4.)

Declarant further indicates that on February 2, 2024, Plaintiff signed a certified Spanish-translated Agreement for At-Will Employment and Arbitration (“Agreement”). (Declaration of Negrete ¶5.)

Further that Plaintiff never refused to sign the Agreement and there is no record that Plaintiff ever revoked the Agreement. (Declaration of Negrete ¶5.)

Declarant further state “Attached hereto as Exhibit “1” is a true and correct copy of the fully executed Spanish-language version of Agreement. Attached hereto as Exhibit “2” is a true and correct copy of the English version of the Agreement.” (Declaration of Negrete ¶5.)

In opposition, Plaintiff does not dispute that Plaintiff signed the Agreement.

Authority and Analysis – Agreement to Arbitrate

“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(a), (b).) (emphasis added.) The motion to compel arbitration requires the facts are to be proven by affidavit or declaration and documentary evidence with oral testimony taken only in the court’s discretion. (Code Civ. Proc., §1290.2; Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413–414.) The motion must set forth the provisions of the written agreement and the arbitration clause verbatim, or such provisions must be attached and incorporated by reference. (Cal. Rules of Court, rule 3.1330; see Condee v. Longwood Mgmt. Corp. (2001) 88 Cal.App.4th 215, 218.)

Absent a challenge by the nonmoving party, this burden is met by simply providing a copy of the arbitration agreement.  (Baker v. Italian Maple Holdings, LLC (2017) 13 Cal. App. 5th 1152, 1160; 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, supra, 88 Cal.App.4th at 218; Sprunk v. Prisma LLC (2017) 14 Cal.App.5th 785, 793.)  

However, when the opposing party disputes the agreement, then the opposing party must provide evidence to challenge its authenticity.  (Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 165.) 

Under California law, "[t]he burden of persuasion is always on the moving party to prove the existence of an arbitration agreement with the opposing party by a preponderance of the evidence …." (Gamboa, supra, 72 Cal.App.5th at 164-165.)

"However, the burden of production may shift in a three-step process." (Gamboa, supra, 72 Cal.App.5th at. 165.)

"First, the moving party bears the burden of producing 'prima facie evidence of a written agreement to arbitrate the controversy.' [Citation.]" (Gamboa, supra, 72 Cal.App.5th at p. 165.) "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.]" (Id.) "For this step, 'it is not necessary to follow the normal procedures of document authentication.' [Citation.]” (Id.)

Here, Defendant has provided the Agreement it submits was signed by Plaintiff.

"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." (Gamboa, supra, 72 Cal.App.5th at 165.) “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.’” (Gamboa, supra, 72 Cal.App.5th at 167.)

Here, Plaintiff does not dispute that Plaintiff’s signature appears on the Arbitration Agreement. Under Ramirez v. Golden Queen Mining Co., LLC (May 15, 2024) 102 Cal.App.5th 821, Plaintiff’s declaration is insufficient, as she fails to deny the signature is her own:

“There is a split of authority among the Courts of Appeal as to what constitutes sufficient evidence to create a factual dispute about the authenticity of a handwritten signature on a document agreeing to arbitration. (Compare Iyere v. Wise Auto Group (2023) 87 Cal.App.5th 747, 757–758, review den. Apr. 26, 2023, S278817 with Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 164–165) We join Iyere in concluding that an individual is capable of recognizing his or her handwritten signature and if that individual does not deny a handwritten signature is his or her own, that person's failure to remember signing the document does not create a factual dispute about the signature's authenticity. (Iyere, supra, at p. 757.)” (Id. at 825.)

The Ramirez court noted that “Ramirez's declaration stated (1) he did “not recall ever being presented with an arbitration agreement,” (2) he did “not recall ever signing an arbitration agreement,” (3) no one informed him about an arbitration agreement, informed him of a desire that he sign an arbitration agreement, or explained to him what an arbitration agreement was, and (4) if someone had explained to him what an arbitration agreement was, he would not sign it.” (Id. at 836.)

The court, therefore, found the declaration insufficient to challenge the authenticity, stating “His declaration does not assert the signature on that document is not his and, furthermore, does not even state that he cannot recall signing that particular document.  Consequently, we conclude Ramirez, like the plaintiffs in Iyere, has offered no admissible evidence creating a dispute as to the authenticity of the handwritten signature on the acknowledgement.” (Id. at 836-837.)

Therefore, the Court finds an agreement to arbitrate.

Facts – Scope of Agreement

The Agreement states:

“…Employee agrees to submit to final and binding arbitration any dispute, controversy or claim (“Claims”) that (s)he may have against Employer, its agents, officers, directors, members or managers, representatives or employees that arises from or is related to Employee’s employment or to this Agreement…

This Agreement covers, but is not limited to: Claims for breach of contract or covenant of good faith and fair dealing; intentional or negligent infliction of emotional distress; defamation; wrongful termination or constructive discharge; unlawful discrimination, harassment or retaliation; claims arising under the Fair Employment and Housing Act, the Civil Rights Act of 1964, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Family and Medical Leave Act or the California Family Rights Act; claims asserting wage and hour violations under state or federal law; trade secret violations; unfair business practices; and any allegation of injury to physical, mental or economic interests. This Agreement extends to Claims that could be brought in court, or before an administrative body, such as the Labor Commissioner, unless the law compels that the Claim be brought before the court or administrative body….”

Further, the Agreement states “This Agreement is subject to and governed by the Federal Arbitration Act (“FAA”). Provided the California Arbitration Act (“CAA”), Code Civ. Proc. §§ 1280 et seq., does not conflict with or undermine the policies of the FAA, the parties will use the CAA to arbitrate their Claims.”

Authority and Analysis – Scope of Agreement

As noted above, Plaintiff brings claims for age and disability discrimination, failure to prevent such discrimination, failure to accommodate, failure to engage in good faith interactive process, retaliation, CFRA interference and wrongful termination, all of which are expressly covered under the terms of the Agreement.

Facts – Defense to Enforcement – Unconscionability

Plaintiff, however, states that she did not intend to agree to arbitration, that she did not know what arbitration was when she signed, that neither Defendant, nor its agents, explained the significance of the Arbitration Agreement, that it was never explained that it applied to claims related to employment, that she believed she had no other choice but to sign the Agreement, had no opportunity to negotiate or consult an attorney and was uninformed about what she signed. (Declaration of Plaintiff ¶¶1-8.)

Additionally, Plaintiff argues the adhesive nature of the contract renders it presumably substantive unconscionable under Ingle v. Circuit City Stores, Inc. (9th Cir. 2003) 328 F.3d 1165, 1174. Further, that the lack of express reference to discovery procedures and failure to provide a copy of the rules render the Agreement substantively unconscionable.

Authority and Analysis – Defense to Enforcement – Unconscionability

The inquiry into unconscionability consists of two prongs: A contract will be revoked if it is both procedurally unconscionable and substantively unconscionable. (Armendariz v. Foundation Health Psychcare Service, Inc. (2000) 24 Cal.4th 82, 102.) Procedural and substantive unconscionability need not be present to the same degree. “[T]he more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa.” (Id. at 114.)

Procedural Unconscionability

“‘Procedural unconscionability’ concerns the manner in which the contract was negotiated and the circumstances of the parties at that time.  It focuses on the factors of oppression and surprise. The oppression component arises from an inequality of bargaining power of the parties to the contract and an absence of real negotiation or a meaningful choice on the part of the weaker party. The component of surprise arises when the challenged terms are ‘hidden in a prolix printed form drafted by the party seeking to enforce them.’” (Nyulassy v. Lockheed Martin Corp. (2004) 120 Cal.App.4th 1267, 1281.)

“An adhesive contract is standardized, generally on a preprinted form, and offered by the party with superior bargaining power on a take-it-or-leave-it basis. (Baltazar v. Forever 21, Inc. (2016) 62 Cal.4th 1237, 1245.) Arbitration contracts imposed as a condition of employment are typically adhesive. (Armendariz, supra, 24 Cal.4th at 114-115; Serpa v. California Surety Investigations, Inc. (2013) 215 Cal.App.4th 695, 704.)

But the fact that an agreement is adhesive is not, alone, sufficient to render it unconscionable. (Malone v. Superior Court (2014) 226 Cal.App.4th 1551, 1561.) “[A] compulsory pre-dispute arbitration agreement is not rendered unenforceable just because it is required as a condition of employment or offered on a ‘take it or leave it’ basis.” (Lagatree v. Luce, Forward, Hamilton & Scripps (1999) 74 Cal.App.4th 1105, 1127.)

The Court also considers whether circumstances of the contract’s formation created such oppression or surprise that closer scrutiny of its overall fairness is required. (OTO, L.L.C. v. Kho (2019) 8 Cal.5th 111, 126-127.) “The circumstances relevant to establishing oppression include, but are not limited to (1) the amount of time the party is given to consider the proposed contract; (2) the amount and type of pressure exerted on the party to sign the proposed contract; (3) the length of the proposed contract and the length and complexity of the challenged provision; (4) the education and experience of the party; and (5) whether the party's review of the proposed contract was aided by an attorney.” (Id.) As OTO recognizes, the pressure exerted on a standard employee to accept an adhesive arbitration agreement as a condition of employment is “particularly acute,” which indicates oppression.  (Id. at 127.)

Here, the Court agrees there is a relatively high degree of procedural unconscionability via the adhesive nature of the Agreement, the presentation to Plaintiff as described in her declaration and lack of opportunity to negotiate or consult with counsel as to the terms thereof.

Substantive Unconscionability

“Substantive unconscionability occurs when a contract, particularly, contracts of adhesion, impose terms “that have been variously described as overly harsh, unduly oppressive, so one-sided as to shock the conscience, or unfairly one-sided. All of these formulations point to the central idea that the unconscionability doctrine is concerned not with a simple old-fashioned bad bargain, but with terms that are unreasonably favorable to the more powerful party. Unconscionable terms impair the integrity of the bargaining process or otherwise contravene the public interest or public policy or attempt to impermissibly alter fundamental legal duties.” (OTO, L.L.C. v. Kho, supra, 8 Cal. 5th at 129–30, internal quotations and citations omitted.)

Armendariz sets forth elements of essential substantive fairness as follows:

(1) provide for a neutral arbitrator:

(2) provide for adequate discovery;

(3) require the arbitrator to issue a written decision that permits limited judicial review;

(4) provide for the same remedies that would otherwise be available to the employee in court;

(5) not require the employee to bear costs unique to arbitration; and

(6) provide a “modicum of bilaterality” between the employer and employee. (Armendariz, supra. 24 Cal 4th at 102-113, 117-118.)

Ingle v. Circuit City Stores, Inc. (9th Cir. 2003) 328 F.3d 1165

To start, the Court notes Plaintiff’s argument that a contract of adhesion between employee and employer should be considered presumably substantively unconscionable. Ingle states:

“The only claims realistically affected by an arbitration agreement between an employer and an employee are those claims employees bring against their employers. By essentially covering only claims that employees would likely bring against Circuit City, this arbitration agreement's coverage would be substantively one-sided even without the express limitation to claims brought by employees.

Thus, we conclude that, under California law, a contract to arbitrate between an employer and an employee, such as the one we evaluate in this case, raises a rebuttable presumption of substantive unconscionability. Unless the employer can demonstrate that the effect of a contract to arbitrate is bilateral -- as is required under California law -- with respect to a particular employee, courts should presume such contracts substantively unconscionable.” (Id. at 1174.)

However, on the issue of unilateral modification, the Court of Appeal stated: “…had the agreement to arbitrate simply authorized the department store to make unilateral modifications, it would not be illusory under California law because the implied covenant of good faith and fair dealing would preclude any change that undermined the employee's rights…[¶]… the implied covenant of good faith and fair dealing is properly applied in this case and saves this  arbitration contract from being illusory. (Serpa v. California Surety Investigations, Inc. (2013) 215 Cal.App.4th 695, 707-708.; see also Gonzalez v. Interstate Cleaning Corp. (N.D.Cal. Apr. 15, 2020, No. 19-cv-07307-KAW) 2020 U.S.Dist.LEXIS 67208, at *18, quoting Serpa, stating “Subsequently, however, California courts have made clear that unilateral modification terms are not substantively unconscionable because ‘the implied covenant of good faith and fair dealing limits the employer's authority to unilaterally modify the arbitration agreement and saves the agreement from being illusory and thus unconscionable.’”

As such, there is no rebuttable presumption as to substantive unconscionability and there is no need for Defendant to demonstrate bilaterality within the Agreement.

Discovery and Rules of Arbitration

On the issue of arbitration discovery, the court in Davis v. Kozak (2020) 53 Cal.App.5th 897, 910-911 noted:

“A limitation on discovery is an important way in which arbitration can provide a simplified and streamlined procedure for the resolution of disputes. [citation omitted] At the same time, ‘[a]dequate discovery is indispensable for the vindication of statutory claims’ [citation omitted], and ‘[t]he denial of adequate discovery in arbitration proceedings leads to the de facto frustration of’ statutory rights (Armendariz, supra, 24 Cal.4th at p. 104). In this context, “adequate” does not mean ‘unfettered.’ [citation omitted] In striking the appropriate balance between the desired simplicity of limited discovery and an employee's statutory rights, courts assess the amount of default discovery permitted under the arbitration agreement, the standard for obtaining additional discovery, and whether the plaintiffs have demonstrated that the discovery limitations will prevent them from adequately arbitrating their statutory claims. [citation omitted]”

Here, the Agreement states “The CAA provides for the selection of a neutral arbitrator, conducting discovery and a written arbitration award.” Under Code Civ. Proc., §1283.05, part of the CAA, Plaintiff’s discovery rights are set forth and the Court does not find this discovery term substantively unconscionable.

Failing to attach arbitration rules fails to support a finding of substantive unconscionability.  (See Peng v. First Republic Bank (2013) 219 Cal.App.4^th 1462, 1472; see also Cisneros Alvarez v. Altamed Health Services Corp. (2021) 60 Cal.App.5^th 572, 589-590 [“The law requires more than the simple failure to provide the employee with a copy of the rules.”].)

As noted above, unconscionability has a procedural and a substantive component, requiring both to be present, though not in the same degree. (Serafin v. Balco Properties Ltd., LLC (2015) 235 Cal.App.4th 165, 177.) “A sliding scale is applied so that ‘the more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa.’ ” (Id. at 178.) While the Court notes the greater level of procedural unconscionability in this employment matter, Plaintiff has not identified any substantively unconscionable provisions which would preclude enforcement of this Agreement.

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.

Re:                 Cavalry SPV I LLC as assignee of Citibank N.A. vs. Castillo, Damaris A

Case No.:  VCL325477

Date:           February 19, 2026

Time:           8:30 A.M. 

Dept.           1-The Honorable David C. Mathias

Motion:      Defendant’s Motion to Quash

Tentative Ruling: To find the motion to quash timely filed, to vacate the default entered January 12, 2026, to vacate the default judgment entered January 15, 2026, to dismiss this matter without prejudice as requested by Plaintiff on January 24, 2025.

Facts and Analysis

To Court notes that this motion to quash was filed December 1, 2025 and, thereafter, default was entered January 12, 2026 and default judgment was entered January 15, 2026.

A clerk may only enter default of the defendant if the defendant has not filed, amongst other things, a “notice of motion to quash service of summons.”  (Code Civ. Proc., § 585, subd. (a).)  That is because “[n]o default may be entered against the defendant before expiration of his or her time to plead.”  (Code Civ. Proc., § 418.10, subd. (d)  “A defendant, on or before the last day of his or her time to plead or within any further time that the court may for good cause allow, may serve and file a notice of motion … [t]o quash service of summons.”  (Code Civ. Proc., § 418.10., subd. (a).)  “The service and filing of the notice shall extend the defendant’s time to plead until 15 days after service upon him or her of a written notice of entry of an order denying his or her motion, except that for good cause shown the court may extend the defendant’s time to plead for an additional period not exceeding 20 days.” (Code Civ. Proc., § 418.10., subd. (b).)

Because the motion to quash was filed prior to entry of default, the Court will vacate the default and default judgment.

Further, the Court’s file indicates a rejected request for dismissal filed by Plaintiff on the basis of the entry of default judgment. The Court, having vacating the default, will dismiss the matter without prejudice as requested by Plaintiff.

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:                Salazar Gonzalez, Guadalupe vs. AEGIS GENERAL INSURANCE AGENCY

Case No.:  VCU325888

Date:           February 19, 2026

Time:           8:30 A.M. 

Dept.           1-The Honorable David C. Mathias

Motion:     Defendant’s Motion to Strike Punitive Damages

Tentative Ruling: To grant the motion with leave to amend; Plaintiff shall have ten (10) days to file an amended complaint as to the allegations in support of punitive damages.

Facts

In this matter, Plaintiff sues Defendant for breach of contract and damages for tortious bad faith.

Plaintiff’s complaint alleges Plaintiff purchased a homeowner’s insurance policy from Defendants, Policy Number 0203424776 (“the Policy”), which insured the 15268 Avenue 328, Ivanhoe, CA 93235 (hereinafter “the Property”) owned and occupied by Plaintiff on April 13, 2024. (Complaint ¶¶5, 9.) Thereafter, the Policy was issued. (Complaint ¶9.)

On April 13, 2024, Plaintiff’s home suffered strong winds which damaged Plaintiff’s property, including Plaintiff’s roof causing water intrusion and subsequent damage to the interior of the insured property. (Complaint ¶10.) Plaintiff further alleges “The loss is a covered peril under the terms of the Policy which provides coverage for such damage to the Property.” (Complaint ¶10.)

Upon notice or discovery of the loss, Plaintiff reported such to Defendants and made a claim (the “Claim”) on the Policy, which was assigned a claim number. (Complaint ¶11.)

Thereafter, Plaintiff alleges that “Prime Restoration CA LLC conducted an inspection and mitigation efforts on the Property to address damage. Prime Restoration CA LLC’s total cost of remediation is $ 34,676.35.” (Complaint ¶12.)

Plaintiff further alleges “On January 24, 2025, Defendants informed Plaintiff in writing of Defendants’ coverage determination wherein Defendant denied the claim based on wear, tear, deterioration, inherent vice or latent defect as well as long-term water leakage, cracking, and faulty, inadequate or defective construction, workmanship, or maintenance.” (Complaint ¶13.)

Further, that an independent contractor conducted an inspection of the home and prepared a repair estimate in the amount of $90,343.44. (Complaint ¶14.)

Plaintiff’s counsel requested Defendant reconsider its position and noted the total amount of the claim was now $125,019.79. (Complaint ¶15.)

In addition to alleging breach of contract as to the Policy, Plaintiff alleges a second cause of action for tortious bad faith conduct in willful violation and breach of the Policy and California law. (Complaint ¶24.)

Plaintiff alleges that “There are no good faith disputes by Defendants concerning coverage for Plaintiff’s claim under the Policy or the nature and scope of the loss suffered and incurred by Plaintiff for which coverage is provided by the Policy. Defendants willfully acted in bad faith by making their coverage determination and later refusing to depart from it as requested by Plaintiff, and by rejecting Plaintiff’s demand for full payment of the total loss claimed. Defendants also failed or refused to negotiate with Plaintiff in a good faith effort to resolve the coverage dispute without litigation, despite Plaintiff’s efforts to do so.” (Complaint ¶26.)

Further, that:

“Defendants willfully breached the duty of good faith and fair dealings by intentionally and unlawfully and unreasonably and unfairly failing and refusing to:

a. Conduct a full and complete and competent investigation of the Claim as required by the terms of the Policy and California law;

b. Conduct a full and complete and competent inspection of the Property in connection with the Claim as required by the terms of the Policy;

c. Provide full coverage for Plaintiff’ Claim of loss to the Property as required by the terms of the Policy;

d. Defendants failed to pay Plaintiff any amount for repairs and mitigation despite the facts that plaintiff’s full amount of the loss to the Property is estimated to be a grand total of $ 125,019.79 (including the mitigation invoice $ 34,676.35 and the estimated costs of repairs $ 90,343.44).

e. Defendants failed to Restore the Property to its pre-existing condition prior to the date of loss on April 13, 2024, which has forced Plaintiff to continue living on the Property in its state of disrepair because they lack resources to pay for the repairs to the Property, as Defendants knew.” (Complaint ¶27.)

On this basis, Plaintiff seeks punitive damages under Civil Code section 3294 because “Defendants has acted willfully and in bad faith, and is, therefore, guilty of oppression, fraud, and malice based on their tortious conduct as alleged herein-above.” (Complaint ¶30.)

Defendant seeks to strike the references to punitive damages in the complaint and prayer, including paragraph 30 in its entirety. Defendant argues the allegations in support of punitive damages are wholly conclusory and fail to meet the heightened pleading standard for punitive damages. Further, that the complaint fails to identify a managing agent or ratifying individual as to the allegations supporting punitive damages.

In opposition, Plaintiff raises, for the first time the argument that the claim was denied entirely  “…based upon the findings of Premier Claims and Adjusting Services, an engineering company who has earned significant monies from AEGIS GENERAL and other insurance companies in consideration of drafting reports favorable to the carrier(s).” (Opposition 2:9-12.) Additionally, that only two 45-minute inspections were conducted and the claim was denied two weeks after these inspections. (Opposition 4:11-20.) The Court cannot locate these allegations in the complaint, but notes that they support leave to amend the complaint.

Authority and Analysis

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).)

Punitive Damages

California’s punitive damages statute, Civil Code section 3294, provides: “In an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.”  (§3294, subd. (a).)

“Oppression,” “fraud” and “malice” each describe discrete grounds for an award of punitive damages.  “Civil Code section 3294 provides for recovery of exemplary damages for either or all of the three defined delicts -- oppression, fraud or malice.”  (Pistorius v. Prudential Insurance Co. (1981) 123 Cal.App.3d 541, 556, fn. 8 [176 Cal.Rptr. 660].)

Civil Code section 3294, subdivision (c) defines the terms “malice,” “oppression,” and “fraud” for purposes of punitive damages liability: “(1) ‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. [¶] (2) ‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights. [¶] (3) ‘Fraud’ means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.”

In order to support a prayer for exemplary damages, a plaintiff must allege that the defendant did more than act in bad faith.  “The conduct required to award punitive damages for the tortious breach of contract … is of a different dimension.” (Tomaselli v. Transamerica Ins. Co. (1994) 25 Cal.App.4th 1269, 1286 [31 Cal.Rptr.2d 433].)  “Such damages are accessible only upon a showing that the defendant ‘act[ed] with the intent to vex, injure, or annoy.’ ” (Ibid., citing Neal v. Farmers Ins. Exchange (1978) 21 Cal.3d 910, 922.)

“Punitive damages for failure to pay or properly administer an insurance claim are ordinarily … based on ‘malice’ or ‘oppression,’ [which] are defined in Civil Code section 3294 as involving ‘despicable conduct’ … .”   (Ibid.)  In the case of malice, such conduct “ ‘is carried on by the defendant with a willful and conscious disregard of the rights or safety of others,’ and as to oppression is ‘conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights.’”  (Id., at pp. 1286-1287.)

“ ‘Despicable conduct’ is defined … as ‘conduct which is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people.’ Such conduct has been described as ‘[having] the character of outrage frequently associated with crime.’ [Citation.] … ‘Punitive damages are appropriate if the defendant's acts are reprehensible, fraudulent or in blatant violation of law or policy. The mere carelessness or ignorance of the defendant does not justify the imposition of punitive damages. . .. Punitive damages are proper only when the tortious conduct rises to levels of extreme indifference to the plaintiff's rights, a level which decent citizens should not have to tolerate.’ [Citation.]”  (Ibid.)

“It is notable that punitive damages have been assessed against insurance companies most commonly where a showing has been made of a continuous policy of nonpayment of claims.”  (Ibid., citing Mock v. Michigan Millers Mutual Ins. Co. (1992) 4 Cal.App.4th 306, 329, which includes a collection of illustrative cases.) 

Punitive damages are not limited exclusively, however, to cases involving continuous policies of nonpayment.  (See Cates Construction, Inc. v. Talbot Partners (1997) 53 Cal.App.4th 1420, 1452, citing and discussing Neal v. Farmers Ins. Exchange (1978) 21 Cal.3d 910, 928-929.)  Some courts have found punitive damages warranted in the bad faith context where the plaintiff showed the insurer deliberately took advantage of the plaintiff’s financial weakness in order to effect favorable concessions and retain money rightfully due the insured (Id.)

With respect to employers, section 3294 provides that “[a]n employer shall not be liable for [punitive damages], based upon acts of an employee …, unless the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice. With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.”

Here, the allegations of the complaint do not sufficiently allege malice, despicable conduct or fraud based on the denial of the claim and allegations of failure to investigate. The allegations are too generalized to meet the standard as to pleading punitive damages noted above. These facts fail to allege conduct beyond a simple denial of the claim. Additionally, there has been no sufficient allegation of ratification, authorization or direct action by an officer, direct or managing agent of Defendant.

Therefore, the Court grants the motion.

Plaintiff shall have ten (10) days to file an amended complaint as to pleading sufficient allegations with respect to punitive damages as outline above.

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:                In the Matter of J.G. Wentworth Originations, LLC

Case No.:  VCU328013

Date:           February 19, 2026

Time:          8:30 A.M. 

Dept.           1-The Honorable David C. Mathias

Motion:      Continued Petition to Approve Transfer of Structured Settlement

Tentative Ruling: To deny the petition without prejudice.

Facts

The amended petition states “Payee is 42 years old, single with no minor children as will be set forth in the Declaration to be filed in this matter. Payee is currently unemployed.”  Exhibit D does indicate that Payee executed a settlement agreement in 2024 that resulted in the issuance of an annuity from USAA Life Insurance, under policy A00274648, and that the underlying action did not involve a head injury or workers compensation claim.

Payee seeks to transfer 336 monthly payments of $500.00 each, beginning on February 1, 2026 and ending on January 1, 2054, representing future payments of $168,000, in exchange for $50,000, creating a discount rate of 11.89%.

Payee would continue to receive approximately $2,475.94 each month for this period of time from the annuity. 

The amended petition states Payee has not attempted or completed any previous transactions involving my structured settlement payments, that Payee is not likely to require future medical care and treatment for injuries sustained in connection with the settlement and that the settlement was not intended for such purposes. Additionally, Payee has waived his right to seek independent counsel.

On December 16, 2025, the Court continued this matter and permitted Petitioner to file additional documents in support thereof.

Payee’s December 15, 2025 declaration states he is currently unemployed, receives $2,975.94 per month from the annuity and has no support obligations.

Payee’s declaration further indicates a prior transfer on October 30, 2025 in Pierce County Washington Court, transferring monthly payments of $1,750.00 each, commencing 1/1/2026 through and including 12/1/2045 and monthly payments of $2,200.00 each, commencing 1/1/2046 through and including 1/1/2054 to CBC Settlement Funding, LLC. Payee fails to indicate the sum received for these payments or the disbursement of these funds, having filed this initial petition in this matter approximately 6 days later on November 5, 2025 in this Court.

Further, Payee withdrew a prior case on September 8, 2025.

As to the use of the funds, Payee indicates:

“I am currently experiencing a financial hardship. If approved, I will use the money received from the proposed settlement to pay off my outstanding debts, cover my living expenses while I transition into a new career, and make necessary investments to improve my long-term financial stability. For the past ten years, from 2013 through 2023, I have worked seasonally on a commercial fishing vessel in Alaska. Each year, I typically worked two fishing seasons—from January through early April and from late May through early August. During each season, I earned between $20,000 and $25,000, with an hourly rate of approximately $22 per hour that has increased each year since 2013, plus additional overtime and performance bonuses. I currently have nearly $20,000 in personal debt that I intend to pay off in full using a portion of the settlement proceeds. My monthly rent is $985, and I plan to set aside enough to cover six months of rent and living expenses while I continue to search for steady work in the solar panel industry. I am actively pursuing an apprenticeship opportunity in solar installation, with the goal of gaining experience and eventually starting my own solar energy business. To prepare for this new career path, I plan to use part of the funds to purchase a reliable work truck and the tools necessary for solar installation work. Additionally, I would like to buy a small trailer, ideally for $10,000 or less, to live in and reduce my monthly housing costs.” (Declaration of Payee ¶11.)

Authority and Analysis

A transfer of structured settlement payment rights is not effective unless the transfer has been approved in advance in a final court order based on the following express findings by the Court.

Under Ins. Code § 10139.5(a)(1), the Court must determine whether the “transfer is in the best interest of the payee, taking into account the welfare and support of the payee’s dependents.” The Court considers the following non-exclusive factors under Ins. Code § 10139.5(b):

(1) The reasonable preference and desire of the payee to complete the proposed transaction, taking into account the payee’s age, mental capacity, legal knowledge, and apparent maturity level.

(2) The stated purpose of the transfer.

(3) The payee’s financial and economic situation.

(4) The terms of the transaction, including whether the payee is transferring monthly or lump sum payments or all or a portion of his or her future payments.

(5) Whether, when the settlement was completed, the future periodic payments that are the subject of the proposed transfer were intended to pay for the future medical care and treatment of the payee relating to injuries sustained by the payee in the incident that was the subject of the settlement and whether the payee still needs those future payments to pay for that future care and treatment.

(6) Whether, when the settlement was completed, the future periodic payments that are the subject of the proposed transfer were intended to provide for the necessary living expenses of the payee and whether the payee still needs the future structured settlement payments to pay for future necessary living expenses.

(7) Whether the payee is, at the time of the proposed transfer, likely to require future medical care and treatment for the injuries that the payee sustained in connection with the incident that was the subject of the settlement and whether the payee lacks other resources, including insurance, sufficient to cover those future medical expenses.

(8) Whether the payee has other means of income or support, aside from the structured settlement payments that are the subject of the proposed transfer, sufficient to meet the payee’s future financial obligations for maintenance and support of the payee’s dependents, specifically including, but not limited to, the payee’s child support obligations, if any. The payee shall disclose to the transferee and the court his or her court-ordered child support or maintenance obligations for the court’s consideration.

(9) Whether the financial terms of the transaction, including the discount rate applied to determine the amount to be paid to the payee, the expenses and costs of the transaction for both the payee and the transferee, the size of the transaction, the available financial alternatives to the payee to achieve the payee’s stated objectives, are fair and reasonable.

(10) Whether the payee completed previous transactions involving the payee’s structured settlement payments and the timing and size of the previous transactions and whether the payee was satisfied with any previous transaction.

(11) Whether the transferee attempted previous transactions involving the payee’s structured settlement payments that were denied, or that were dismissed or withdrawn prior to a decision on the merits, within the past five years.

(12) Whether, to the best of the transferee’s knowledge after making inquiry with the payee, the payee has attempted structured settlement payment transfer transactions with another person or entity, other than the transferee, that were denied, or which were dismissed or withdrawn prior to a decision on the merits, within the past five years.

(13) Whether the payee, or his or her family or dependents, are in or are facing a hardship situation.

(14) Whether the payee received independent legal or financial advice regarding the transaction. The court may deny or defer ruling on the petition for approval of a transfer of structured settlement payment rights if the court believes that the payee does not fully understand the proposed transaction and that independent legal or financial advice regarding the transaction should be obtained by the payee.

(15) Any other factors or facts that the payee, the transferee, or any other interested party calls to the attention of the reviewing court or that the court determines should be considered in reviewing the transfer.”

The Court requires additional information regarding the prior transfer and use of the funds.

The Court finds the stated, purposed use of the funds sufficient. However, the Court requires itemized estimates as to the “reliable work truck and the tools necessary for solar installation work” and the “small trailer.”

Additionally, the Court finds the discount rate here higher than what is typically seen on these petitions.

Based on the information that the Court must evaluate when it considers the approval of the transfer of structured settlement funds, the Court finds that it is not in the best interests of the payee to approve the transfer of structured settlement. The amended petition is denied without prejudice.

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:              In the Matter of Laborers International Union of North America, Local Union 294 (lead); In the Matter of People of the State of California; In the Matter of Matheny Tract Committee

Case Nos.: VCU317197 (lead); VCU317258

Date:           February 19, 2026

Time:           8:30 A.M. 

Dept.           1-The Honorable David C. Mathias

Matters:    CEQA Petitions

Tentative Ruling:   The petitions are granted.  A writ of mandate shall issue directing the City to void its decision approving the 2024 Zoning Ordinance Update; to fully comply with the requirements of CEQA prior to any future approval actions with respect to the Zoning Ordinance Update; to implement mitigation measure AQ-4a in connection with future project approvals.

In this consolidated action, Laborers International Union of North America, Local Union 294 (LIUNA), the People of the State of California (People) and the Matheny Tract Committee challenge the City of Tulare’s (City) approval of the City’s Zoning Ordinance Update under the California Environmental Quality Act (Pub. Resc. Code, §§ 21000, et seq.; herein, CEQA) and State Planning and Zoning Law (Gov. Code, §§ 65000, et seq.).

In 2014, the City adopted an update to its general plan (GPU).  Preceding adoption of the GPU, the City certified an environmental impact report in which it disclosed significant air-quality-related health impacts to sensitive receptors could result from buildout of the GPU, in particular, for industrial projects and, more specifically, for warehousing and cold storage projects. 

In order to address these impacts, the GPU’s EIR included mitigation measure AQ-4a (MM AQ-4a), which required “[a]pplicants for industrial or warehousing land uses that: 1) have the potential to generate 100 or more diesel truck trips per day or have 40 or more trucks with operating diesel-powered transport refrigeration units (TRUs), and 2) are located within 1,000 feet of a sensitive land use (e.g. residential, schools, hospitals, nursing homes), … [to] submit a health risk assessment (HRA) to the City of Tulare prior to future discretionary project approval.”

In addition, the GPU included a number of development “Policies” on a range of topics.  Pertinent here, polices were included to “promote better air quality conditions locally and regionally,” including policies (a) that required “[d]evelopers … to present alternatives that reduce air emissions and enhance, rather than harm, the environment”; (b) that required the City to “consider industrial or other developments which are likely to cause undesirable air pollution with regard to wind direction and circulation in an effort to alleviate effects upon sensitive receptors”; and (c) that required the City to “ensure that air quality impacts identified during the CEQA review process are fairly and consistently mitigated.”  In addition, apropos of MM-AQ-4a, the GPU included a policy (d) that “[t]he City shall require a Health Risk Assessment where toxic air contaminants from industrial or service commercial projects may affect nearby sensitive receptors.”

Preceding adoption of the GPU, the city allowed, under a zoning ordinance adopted in 2000, warehousing uses, including both refrigerated and unrefrigerated warehouses, “by right” in both its M-1 “light” and M-2 “heavy” industrial zones, meaning such projects were permitted through a ministerial, rather than discretionary, approval process.

Notwithstanding the impact determinations made, and policies and mitigation measures adopted, with respect to air quality in the GPU and associated EIR, the city continued to allow refrigerated and unrefrigerated warehouses, “by right” in both its M-1 “light” and M-2 “heavy” industrial zones after adoption of the GPU.

In 2024, the City then adopted a zoning ordinance update (ZOU), the stated purpose of which was to “implement” the GPU.  The ZOU, though, like the prior zoning ordinance, continued to permit both refrigerated and unrefrigerated warehousing in the City’s “light” and M-2 “heavy” industrial zones “by right,” through a ministerial, rather than discretionary, approval process.

In connection with the ZOU, the City issue a Notice of Exemption from CEQA, citing a “categorical exemption” based on section 15061, subdivision (b)(3) of title 14 of the California Code of Regulations.  The City essentially maintained that it was merely amending its zoning ordinance for consistency with the GPU and the GPU was already determined to result in less than significant environmental impacts with the adoption of mitigation measures “as found in the certified General Plan Environmental Impact Report and the adopted Mitigation Monitoring and Reporting Program.”.

Following adoption of the ZOU, petitioners in this case—Laborers International Union of North America, Local Union 294 (LIUNA), the People of the State of California (People) and the Matheny Tract Committee—filed separate petitions challenging the City’s approval of the ZOU.

Petitioners first contend the ZOU is invalid because it is inconsistent with the City’s GPU.  Second, petitioners contend the City violated CEQA by failing to implement MM AQ-4a.  Third, petitioners contend the ZOU was not exempt from CEQA. 

The court agrees the ZOU’s allowance of cold-storage and warehousing uses without necessary environmental analysis and incorporation of mitigation measures—given the City’s express acknowledgement in its GPU EIR of significant health impacts from anticipated industrial development and incorporation of a specific mitigation measure, MM AQ-4a, to address such impacts—was violative of CEQA, and that the ZOU was not exempt from CEQA. 

The court’s determination that the ZOU was adopted in violation of CEQA obviates the necessity of it also determining whether, separately, the ZOU is invalidly inconsistent with the City’s GPU considered in isolation from its associated EIR. 

BACKGROUND

On October 7, 2014, the City of Tulare (City) adopted an update to its general plan entitled the “Tulare General Plan for the City of Tulare” (GPU).  This was preceded by completion of an environmental impact report (EIR).  A draft EIR was disseminated for public review on November 1, 2013, and a final EIR was completed on April 11, 2014.  The final EIR contained the draft EIR, all of the draft EIR appendices, as well as a separate final EIR document.

The EIR was a “Program EIR,” as opposed to a “Project EIR,” meaning “the project that is the subject of [the] EIR consists of long-term plans that will be implemented over time as policy documents guiding future development activities and City action,” and that “[n]o specific developments are proposed as part of the project.”

The EIR disclosed anticipated air quality impacts from buildout of the GPU, but, given the function of the EIR as a “Program EIR,” included a qualification that “information regarding operation of specific development projects … would be needed in order to quantify the level of impact associated with a development project.”

The EIR, nevertheless, stated that, “[d]ue to the scale of development activity associated with the General Plan Update, onsite emissions could exceed the [San Joaquin Air Quality Management District] regional significance thresholds … , in particular for projects that generate substantial onsite emissions (e.g., industrial, warehousing)” and that “for industrial or warehouse projects that have the potential to result in substantial onsite emissions, additional mitigation may be required.”

The EIR also stated findings that “[b]uildout of the [GPU] could place sensitive receptors proximate to major sources of air pollution or result in the creation of new sources of Toxic Air Contaminants (TACs),” and included a determination that the anticipated health risk impacts “would be considered significant.” (Italics in original.)

The EIR elsewhere explained that “[t]he primary mobile source of TACs within the City of Tulare is truck idling and use of off-road equipment.”  The EIR observed “[n]ew warehousing operations could generate a substantial amount of diesel particulate matter emissions from off-road equipment use and truck idling,” as well as from “use of transport refrigeration units (TRUs) for cold storage,” and that “[n]ew land uses in the City of Tulare that are permitted under the General Plan that use trucks, including trucks with TRUs, could generate an increase in diesel particulate matter that would contribute to cancer and non-cancer health risk in the SJVAB [San Joaquin Valley Air Basin].”

The EIR specifically disclosed that “[n]ew warehousing and other industrial land uses permitted under the [GPU] that generate 100 or more truck trips or 40 trucks with transport refrigeration units (TRUs) within 1,000 feet of a sensitive land use could generate elevated concentrations of TACs at nearby sensitive receptors.”

Incident to these acknowledged “significant” health risk impacts from air pollution, the GPU EIR specifically adopted mitigation measure (MM) AQ-4a, which provides: 

“Applicants for industrial or warehousing land uses that: 1) have the potential to generate 100 or more diesel truck trips per day or have 40 or more trucks with operating diesel-powered transport refrigeration units (TRUs), and 2) are located within 1,000 feet of a sensitive land use (e.g. residential, schools, hospitals, nursing homes), as measured from the property line of the project to the property line of the nearest sensitive use, shall submit a health risk assessment (HRA) to the City of Tulare prior to future discretionary project approval.”

In addition, the GPU itself included various Policies which the EIR indicated would assist in reducing air pollution impacts from anticipated buildout of the GPU.  Examples including the following:

• “AQ-P1.2: Cumulative Air Quality Impacts. The City shall require developments to be located, designed, and constructed in a manner that would minimize cumulative air quality impacts. Developers shall be required to present alternatives that reduce air emissions and enhance, rather than harm, the environment.”

• “AQ-P1.3: Air Quality Land Use Compatibility. The City shall consider industrial or other developments which are likely to cause undesirable air pollution with regard to wind direction and circulation in an effort to alleviate effects upon sensitive receptors.”

• “AQ-P1.4: Health Risk Assessment. The City shall require a Health Risk Assessment where toxic air contaminants from industrial or service commercial projects may affect nearby sensitive receptors.”

• “AQ-P1.5: CEQA Compliance. The City shall ensure that air quality impacts identified during the CEQA review process are fairly and consistently mitigated.”

Prior to adoption of the GPU, the City permitted, pursuant to its existing zoning ordinance adopted in February 2000, “warehousing and wholesaling,” by right (i.e., through a ministerial, rather than discretionary, approval process), in its designated M-1 “light” and M-2 “heavy” industrial designated zone districts.  Although not stated expressly in the 2000 zoning ordinance, the City considered “warehousing” uses to include both refrigerated (i.e. cold storage) and unrefrigerated warehouse uses.  Accordingly, prior to the adoption of the GPU, the City permitted, in its 2000 zoning ordinance, refrigerated and unrefrigerated warehouse uses by right in both its M-1 “light” and M-2 “heavy” industrial zones. 

10 years after adopting the GPU, in December 2024, the City adopted a zoning ordinance update (ZOU).  City officials expressed, during the process leading up to adoption, that the principal purpose of the ZOU was to implement the GPU. 

The ZOU, like the prior 2000 zoning ordinance, permitted warehousing uses, by right, in both M-1 “light” and M-2 “heavy” industrial zones.  However, whereas in the prior ordinance “warehousing and wholesaling”—referring to both refrigerated and unrefrigerated warehousing—was listed as a use permitted by right in industrial zones,  the ZOU listed “[w]arehouse or distribution center,” and, separately, “[c]old storage or ice house” (i.e., refrigerated warehouse), as distinct uses permitted by right in the industrial zones.   Ultimately, though, the ZOU, like the prior zoning ordinance, continued to permit both refrigerated and unrefrigerated warehousing in the City’s “light” and M-2 “heavy” industrial zones by right, through a ministerial, rather than discretionary, approval process.

In connection with the ZOU, the City issued a Notice of Exemption from CEQA.  The Notice of Exemption cites a categorical exemption based on section 15061, subdivision (b)(3) of title 14 of the California Code of Regulations, which provides that “[a] project is exempt from CEQA if … [t]he activity is covered by the common sense exemption that CEQA applies only to projects which have the potential for causing a significant effect on the environment.”  “Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment,” subdivision (b)(3) provides, “the activity is not subject to CEQA.”

Describing the “Reasons Why [the ZOU] Project is Exempt [from CEQA],” the Notice of Exemption states, amongst other things, that “[t]he Project intends to update, provide clarity, and amend the ordinance codes for consistency with current State and local requirements as reflected in the [GPU],” and “[i]mplementation of the General Plan was determined to result in a less than significant impact with implementation of mitigation measures as found in the certified General Plan Environmental Impact Report and the adopted Mitigation Monitoring and Reporting Program.”

ANALYSIS

A. The ZOU violates CEQA because it resulted in abandonment of an adopted mitigation measure

CEQA requires the adoption of feasible mitigation measures to lessen a project’s significant environmental impacts. (Pub. Resources Code, § 21002.) Once adopted, public agencies must implement and enforce those mitigation measures. (Id., §§ 21081, subd. (a); 21081.6, subds. (a), (b).) This means that an agency must “take steps to ensure that mitigation measures will actually be implemented as a condition of development, and not merely adopted and then neglected or discarded.”  (Katzeff v. Department of Forestry & Fire Protection (2010) 181 Cal.App.4th 601, 613 [105 Cal.Rptr.3d 89].)

When the City adopted its GPU and certified its associated EIR, it found that new “warehousing and other industrial land uses … [that] generate 100 or more truck trips or 40 trucks with transport refrigeration units (TRUs) within 1,000 feet of a sensitive land use, could generate elevated concentrations of [toxic air contaminants] at nearby sensitive receptors.”

To mitigate this impact, the City adopted MM AQ-4a. As discussed above, MM AQ-4a requires project applicants for industrial or warehousing land uses with the potential to generate 100 or more diesel truck trips per day or 40 or more trucks with TRUs and that are located within 1,000 feet of a sensitive land use to perform and submit to the City a health risk assessment “prior to future discretionary approval.”

If the health risk assessment finds that a project will increase cancer or noncancer health risks above a certain threshold or that a project will increase air quality standards above a certain threshold, the project applicant must incorporate methods to reduce those risks to appropriate levels. MM AQ-4a thus requires that methods to reduce identified health risks be incorporated into the specific project either as a mitigation measure itself or as part of the site development plan.

The ZOU fails to comply with MM AQ-4a because it exempts from discretionary approval refrigerated and unrefrigerated warehousing uses within the City’s industrial zones, irrespective of their proximity to sensitive receptors.  Thus, if a project applicant submits an application for a warehouse project in a location zoned light industrial, the City must approve it, regardless of its size, the project site’s proximity to residents’ homes, or the number of daily truck trips it generates, in direct contravention of MM AQ-4a’s expressly defined scope. 

The City argues that the ZOU did not eliminate or delete MM AQ-4a, however, and, to the contrary, contends that “the ZOU and MM AQ-4a exist as independent enactments of the City,” each with “legal force and effect.” 

The City concedes—rather, it expressly argues—that “MM AQ-4a is correctly understood as requiring projects meeting its thresholds to comply with its mandates only if and when they require discretionary approval,” but, it maintains, that does not mean, as petitioners contend, that MM AQ-4a will never apply.  The City represents that MM AQ-4a continues to apply, notwithstanding the ZOU, to “a wide variety of industrial uses that require discretionary review, even in industrial zones,” as well as, potentially, “the warehousing uses that are permitted uses in industrial zones” to the extent they “still require other discretionary approvals.” 

Notable here, though, is that the air quality significant impact that the City disclosed in its EIR to which MM AQ-4a is addressed was not descriptively limited to conditionally permitted uses under its then current 2000 zoning ordinance.  The EIR, rather, described the subject impact in the following terms:  “Buildout of the City of Tulare General Plan Update could place sensitive receptors proximate to major sources of air pollution or result in the creation of new sources of Toxic Air Contaminants (TACs).  New warehousing and other industrial land uses permitted under the City of Tulare General Plan that generate 100 or more truck trips or 40 trucks with transport refrigeration units (TRUs) within 1,000 feet of a sensitive land use could generate elevated concentrations of [toxic air contaminants] at nearby sensitive receptors. Consequently, health risk impacts of the Project would be considered significant.”  (Italics in original.)

Based on this scope of disclosed environmental impact, it is clear that MM AQ-4a, as constrained by the ZOU, would not be applied to a broad category of projects that the EIR expressly identified as potentially involving significant health risk impacts resulting from air pollution and which MM AQ-4a was expressly intended to mitigate—specifically, all “[w]arehouse or distribution center” and “[c]old storage or ice house” use projects permitted by right within the City’s industrial zones, irrespective of whether “other discretionary approvals” are required.  And, contrary to the City’s suggestion, whether there will be particular warehousing projects that do not require other discretionary approvals is not speculative, as the City’s EIR expressly acknowledged, without qualification regarding projects subject, and not subject, to discretionary approval, “[n]ew warehousing and other industrial land uses permitted under the City of Tulare General Plan that generate 100 or more truck trips or 40 trucks with transport refrigeration units (TRUs) within 1,000 feet of a sensitive land use could generate elevated concentrations of [toxic air contaminants] at nearby sensitive receptors” as part of its description of an impact it considered “significant.”

The City’s contention that the GPU effected no change of land use policy with respect to such uses from the prior zoning ordinance is, accordingly, transparently incorrect.  Contrary to the former “by right” permission for warehousing uses in the City’s industrial zones, the GPU EIR took the position, informed by a disclosed determination that significant health impacts were anticipated to result from warehousing uses within 1,000 feet of sensitive receptors that generate 100 truck or 40 transport refrigeration unit (TRU) truck trips daily, that “[a]pplicants for industrial or warehousing land uses 1) have the potential to generate 100 or more diesel truck trips per day or have 40 or more trucks with operating diesel-powered transport refrigeration units (TRUs), and 2) are located within 1,000 feet of a sensitive land use … shall submit a health risk assessment (HRA) to the City of Tulare prior to future discretionary project approval.”

The City argues that, in providing that “[a]pplicants for industrial or warehousing land uses … shall submit a health risk assessment (HRA) to the City of Tulare prior to future discretionary project approval” (italics added), MM AQ-4a must be read to mean that “[w]here no such discretionary project approval is necessary”—i.e., for “[w]arehouse or distribution center” and “[c]old storage or ice house” uses permitted by right within the City’s industrial zones for which no “other discretionary approvals” are required—“the measure is not triggered.”  In other words, the City maintains “MM AQ-4a is correctly understood as requiring projects meeting its thresholds to comply with its mandates only if and when they require discretionary approval.”  The City then argues that the time to challenge its CEQA determination of MM AQ-4a, interpreted in this way, by lodging “[a] challenge to the contents of the General Plan EIR,” “is time-barred by more than a decade.”

The City’s interpretation of its own MM AQ-4a is fundamentally at variance with the text of the measure.  MM AQ-4a does not provide applicants for industrial or warehousing uses are subject to its requirements “only if and when [their proposed projects] require discretionary approval” under the City’s then current zoning ordinance.  Instead, MM AQ-4a posits that “future discretionary approval” will be required for projects within its scope, and it defines that scope to include projects involving “industrial or warehousing land uses” that meet both of two, but only two, criteria: (1) that they “have the potential to generate 100 or more diesel truck trips per day or have 40 or more trucks with operating diesel-powered transport refrigeration units (TRUs),” and (2) “are located within 1,000 feet of a sensitive land use.”  Not by accident, this scope exactly matches the scope of projects anticipated to pose significant health impacts in the associated impact finding giving rise to the necessity of the mitigation measure. 

The City additionally maintains that its interpretation of MM AQ-4a is bolstered by the fact that “[w]arehouse or distribution center” and “[c]old storage or ice house” use projects “were already permitted in industrial zones under the prior Zoning Ordinance, adopted in 2000,” but, as petitioners correctly argue, “this argument confuses the hierarchy of planning documents—it is the general plan that guides the authorized scope of zoning ordinances, not the other way around.”  “The Planning and Zoning Law does not contemplate that general plans will be amended to conform to zoning ordinances. The tail does not wag the dog.” (Lesher Communications, Inc. v. City of Walnut Creek (1990) 52 Cal.3d 531, 541 [277 Cal.Rptr. 1, 802 P.2d 317].)

B. The ZOU is not exempt from the requirements of CEQA

The City advances a number of confusing arguments all of which derive from the premise that the ZOU was “consistent” with and/or “implements” the previously adopted GPU EIR, and, therefore, did not require additional environment review.  (See generally Pub. Resc. Code, § 2116; 14 CCR §§ 15061, 15183.) 

As noted above, the City’s Notice of Exemption asserted that ZOU was only intended “to update, provide clarity, and amend the ordinance codes for consistency with current State and local requirements as reflected in the [GPU],” and that CEQA compliance was not required because, previously, “[i]mplementation of the General Plan was determined to result in a less than significant impact with implementation of mitigation measures as found in the certified General Plan Environmental Impact Report and the adopted Mitigation Monitoring and Reporting Program.”

This stated basis for exemption, of course, could only pass muster, assuming it properly identifies a permissible CEQA exemption, if the ZOU did not abandon “implementation of mitigation measures” set forth in the EIR, which were essential to its determination of “less than significant impact.”

The court finds, as discussed above, however, that the ZOU is neither consistent with, nor implements MM AQ-4a from the GPU EIR because it exempts from discretionary approval refrigerated and unrefrigerated warehousing uses within the City’s industrial zones irrespective of their proximity to sensitive receptors, and, therefore, finds that the ZOU was not exempt from CEQA review. 

C. The court does not reach the issue of whether the ZOU is separately invalid because it is inconsistent with the GPU

Petitioners argue the ZOU’s by-right approval process for industrial development conflicts with General Plan policies designed to reduce air pollution from such development, and thus violates Government Code section 65860, which requires that “[c]ounty or city zoning ordinances … be consistent with the general plan of the county or city.”  (Id., subd. (a).)

In addition to arguing that the ZOU is consistent with and implements the City’s GPU (which the court has already addressed above), the City expends significant effort disputing whether MM AQ-4a is an incorporated part of its GPU and whether the Policies set forth in the GPU, “when read together, created an obligation for the City to change warehouses from permitted uses to conditional uses in industrial zones.”

These issues are complicated by the fact that the GPU includes representations both that “the General Plan Update and EIR have been prepared as a combined document,” suggesting MM AQ-4a is an incorporated part of the GPU; and that the GPU “incorporated as policies and implementation measures” those “mitigation measures … that related to the three elements being updated” in the GPU, which are identified, elsewhere in the GPU, as “Land Use, Circulation, and Conservation and Open Space,” but not “Air Quality,” suggesting MM AQ-4a was not incorporated.  

Further confusing the matter, the GPU’s “Air Quality Element includes goals, policies, and implementation measures to improve the air quality in the San Joaquin Valley,” which were apparently “reformatted and edited slightly” from a prior version of the “Element [that] was adopted by the City Council on April 20, 2010,” and which include a policy that, though it arguably may have been adopted prior to the GPU’s EIR, “require[s] a Health Risk Assessment where toxic air contaminants from industrial or service commercial projects may affect nearby sensitive receptors.”

The court need not resolve whether the GPU air quality policies, considered in isolation (and whatever they might consist of) required the City to make the specific land use determination in the ZOU that implemented MM AQ-4a because there is no question that the City was required to incorporate MM AQ-4a in its land use determinations solely by virtue of its inclusion as a mitigation measure in the GPU’s EIR. 

When an agency, in an EIR, adopts a measure to mitigate or avoid significant environmental impacts, the agency must make the mitigation measure “ ‘fully enforceable through permit conditions, agreements, or other measures’ … . The purpose of these requirements is to ensure that feasible mitigation measures will actually be implemented as a condition of development, and not merely adopted and then neglected or disregarded. (See § 21002.1, subd. (b).)”  (Federation of Hillside & Canyon Associations v. City of Los Angeles (2000) 83 Cal.App.4th 1252, 1261 [100 Cal.Rptr.2d 301], italics in original.)

In sum, regardless of whether MM AQ-4a is “housed in the Air Quality chapter of the General Plan EIR” and not amongst “the three elements being updated” in the GPU, as the City asserts, the City was required to implement the measure as a condition of development and it failed to do so in violation of CEQA. 

CONCLUSION

The City disclosed, in its GPU EIR, significant health risk impacts from a specified category of anticipated development and incorporated a mitigation measure to address that significant impact.  The City, in the ZOU, exempted a broad class of projects with an acknowledged risk of causing the specific significant health risk impact identified in its EIR from the ability to benefit from the mitigating effects of MM AQ-4a.  In so doing, the City improperly abandoned its adopted mitigation measure in violation of CEQA. 

Accordingly, the petitioners’ petitions are granted.  A writ of mandate shall issue directing the City to void its decision approving the 2024 Zoning Ordinance Update; to fully comply with the requirements of CEQA prior to any future approval actions with respect to the Zoning Ordinance Update; to implement mitigation measure AQ-4a in connection with future project approvals.

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:                Stevens, Jerrod Lamont vs. BBQ Holdings, Inc.

Case No.:   VCU300433

Date:           February 19, 2026

Time:           8:30 A.M. 

Dept.           1-The Honorable David C. Mathias

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

Tentative Ruling: To grant the motion as modified herein; to set the motion for final approval for October 1, 2026; 8:30 am; D1. CMC is taken off calendar.

Facts

The Court ordered a supplemental declaration as to the notice period, lodestar, and presently incurred costs at the prior hearing. On February 10, 2026, Plaintiff’s counsel filed a supplemental declaration addressing these issues.

Class Notice

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

The Court regularly approves notice periods of 60 days or longer. The class notice period is therefore approved.

Attorneys’ Fees and Costs

Attorneys’ fees of 33 1/3% of the gross settlement fund of $650,000 or $216,666.67 and costs not to exceed $30,000 are sought by Plaintiff’s counsel

Counsel has utilized the percentage of common fund methodology as well as provided adequate lodestar information to evaluate the reasonableness of the fee request.

Here, Counsel indicates that the firm has spent 187.7 hours on this case, at rates between $1,200 and $500 per hour, resulting in a proposed base lodestar of $157,930 (Declaration of Wilcox ¶3.)

The first issue is that 120 of the 187.7 hours claim were incurred by attorneys Marquez and Grigoryan, both of which are no longer employed by Wilshire Law Firm, PLC and for which the firm lacks itemized billing records therefrom. Therefore, approximately 2/3rds of the hours claimed are estimated via review of “communications and WLF’s records” and the experience of counsel.

Although detailed time records are not required, courts have expressed a preference for contemporaneous billing and an explanation of work. (Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1375.) “Of course, the attorney's testimony must be based on the attorney's personal knowledge of the time spent and fees incurred. (Evid. Code, § 702, subd. (a) [‘the testimony of a witness concerning a particular matter is inadmissible unless he has personal knowledge of the matter’].) Still, precise calculations are not required; fair approximations based on personal knowledge will suffice.” (Mardirossian & Associates, Inc. v. Ersoff (2007) 153 Cal.App.4th 257, 269.) The Court may make a downward adjustment if the billing entries are vague, “blockbilled,” or unnecessary. (569 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 441.)

The Court will, as to the 120 hours estimated by Marquez and Grigoryan, reduce each by one third. The declaration of counsel in support of these hours lacks personal knowledge, is the definition of blockbilled and no explanation of the work is provided.

Additionally, the Court notes that these rates are already higher than what is typically “…prevailing in the community for similar work.”  (PLCM Group Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) The Court, therefore, adjusts the hourly rates as follows:

Name	Stated Hourly Rate	Approved Hourly Rate	Adjusted Hours	Total
Tyler J. Woods	$1,200	$950	10	$9,500
Alan Wilcox	$900	$600	32.7	$19,620
Justin Marquez	$1,000	$700	26.7	$18,690
Arsine Grigoryan	$800	$500	53.3	$26,650
Lucy Nguyen	$500	$350	25	$8,750
Total Adjusted Base Lodestar:	$83,210

Therefore, the Court finds an adjusted base lodestar of $83,210.

To award $216,666.67 in attorneys’ fees as requested, the Court would need to apply a multiplier of 2.6.

The Court generally permits a maximum lodestar multiple of 1.5 in these cases.

The Court has reviewed the declarations of counsel in support of what is now an additional 1.1 multiplier, but, in its discretion, rules that the additional .5 awarded adequately takes into account the quality of the representation, the novelty and complexity of the issues, the results obtained, and the contingent risk presented. (See In re Vitamin Cases (2003) 110 Cal.App.4th 1041, 1052 quoting Thayer v. Wells Fargo Bank (2001) 92 Cal.App.4th 819, 833) Despite any agreement by the parties to the contrary, the Court has an independent responsibility to review the attorney fee provision of the settlement agreement and award an amount that it determines to be reasonable. (Garabedian v. Los Angeles Cellular Telephone Co. (2004) 118 Cal.App.4th 123, 128.)

Therefore, the Court will preliminarily approve $124,815 in fees.

Counsel has also provided the current costs expended in amounts of  $27,422.06, (Declaration of Wilcox ¶5.) Therefore, the Court preliminarily approves costs not to exceed $30,000.00.

Plaintiff’s deductions from the gross settlement of $650,000 are therefore preliminarily approved as follows:      

Preliminarily Approved Attorney Fees (1.5 multiplier):	$124,815
Preliminarily Approved Attorney Costs (up to):	$30,000
Preliminarily Approved Enhancement Payment to Plaintiff :	$5,000
Preliminarily Approved Settlement Administrator Costs	$9,950
Preliminarily Approved Total PAGA payment	$32,500
Preliminarily Approved Net Settlement Amount	$447,735

The Court grants the motion, as modified herein, and sets the motion for final approval for October 1, 2026; 8:30 am; D1.

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

Re:                Scazighini, Tad vs. Selene Finance LP

Case No.:   VCU326754

Date:           February 19, 2026

Time:           8:30 A.M. 

Dept.           1-The Honorable David C. Mathias

Motion:      Defendant Selene Finance LP’s Demurrer

Tentative Ruling: To sustain the demurrer without leave to amend.

Facts

On December 18, 2025, Plaintiff Tad Scazighini, as Trustee,  of the Bull di Ghino Or’Akh Esh Trust, filed the operative first amended complaint for quiet title, injunctive relief and declaratory relief.

Plaintiff alleges that “A Deed of Trust was recorded in the Tulare County Recorder’s Office as Document No, 2018-0013631, purporting to encumber [1345 East Vine Court, Visalia, California 93292 (APN 098-451-015-000)], and identifying Scazighini. Tad as grantor of the interest conveyed therein, styled in the instrument as “Tad Scazighini, an unmarried man as his sole and separate property” or styled of record as “Tad Scazighini, an unmarried man”.” (FAC ¶11, 12.)

Thereafter, Plaintiff alleges that:

“On August 1, 2025, Scazighini. Tad, the grantor of record under the Deed of Trust, conveyed all right, title, and interest in the property to Bull di Ghino Or’Akh Esh Trust by private conveyance, vesting equitable title in the Trust as of that date. Because the grantor of record conveyed all right, title, and interest prior to the alleged foreclosure sale, no trustor interest existed at the time Defendants attempted to exercise a power of sale.” (FAC ¶13.)

Further, that “On or about October 21, 2025, Defendants, acting under authority of the purported Deed of Trust, caused a trustee’s sale to be conducted concerning the property, and Good Neighbor Homes, LLC is alleged to be the third-party purchaser under that sale.” (FAC ¶15.) Additionally, that “At the time of the alleged foreclosure sale, the trustor’s interest had already been conveyed away and vested in Bull di Ghino Or’Akh Esh Trust as of August 1, 2025, leaving no remaining trustor interest upon which any trustee’s power of sale could lawfully operate.” (FAC ¶16.)

Defendant Selene Finance, LP, demurrers to the complaint, and each cause of action, on the basis that Plaintiff’s transfer of the deed of trust to the trust does not, under the law, extinguish or otherwise restrict the right of the trustee to foreclose or otherwise takes title to the property subject to the prior encumbrances.

Defendant seeks judicial notice of a number of recorded documents related to the Subject Property.

Evidence Code section 452(c) and (h), respectively, permit a court, in its discretion, to take judicial notice of the existence and recordation of real property records when the authenticity of the documents is not challenged. (See Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1367, fn. 8, 1382) Further, “a court may take judicial notice of the fact of a document's recordation, the date the document was recorded and executed, the parties to the transaction reflected in a recorded document, and the document's legally operative language, assuming there is no genuine dispute regarding the document's authenticity. From this, the court may deduce and rely upon the legal effect of the recorded document, when that effect is clear from its face.” (Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 755.)

Therefore, the Court grants judicial notice of these documents as requested.

Authority and Analysis

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.)

Quiet Title, Declaratory Relief and Injunctive Relief Theories

As noted in the demurrer, Plaintiff’s theory underlying this complaint is that the transfer of the deed of trust from himself to the trust somehow supplanted the authority of the trustee and eliminated the encumbrance.

As cited by Defendant, Nguyen v. Calhoun (2003) 105 Cal.App.4th 428 notes:

"A real property loan generally involves two documents, a promissory note and a security instrument. The security instrument secures the promissory note. This instrument 'entitles the lender to reach some asset of the debtor if the note is not paid. In California, the security instrument is most commonly a deed of trust (with the debtor and creditor known as trustor and beneficiary and a neutral third party known as trustee).' " (Id. at 438.)

Further, that “[r]eal property is transferable even though the title is subject to a mortgage or deed of trust, but the transfer will not eliminate the existence of that encumbrance.” (Id.) Therefore, “the grantee takes title to the property subject to all deeds of trust and other encumbrances, whether or not the deed so provides.” (Id.)

That is what has occurred here. Defendant Selene is the is the assignee of record for the deed of trust, which, along with the promissory note, encumbered the property via loan on March 9, 2018. (RJN 1, 2-3.)

Tad Scazighini, as individual, transferred of the deed of trust via quitclaim deed to Plaintiff on August 1, 2025 and via the quitclaim deed recorded on October 24, 2025. Under both, Plaintiff acquired the property at issue subject to the deed of trust recorded March 9, 2018, which contains the power of sale in event of default.

Here, Tad Scazighini, the individual, defaulted on the loan and on December 3, 2024, Co-Defendant National Default Servicing Corporation (“NDSC”) caused a Notice of Default and Election to Sell (the “NOD”) to be recorded against the property at issue. (RJN, Ex. 4). NDSC was appointed as the substitute trustee under the Deed of Trust pursuant to a Substitution of Trustee (“SOT”) recorded on June 13, 2023. (RJN, Ex. 5). Following Plaintiff’s failure to cure the default referenced in the NOD, on July 23, 2025, NDSC caused a Notice of Trustee’s Sale (the “NOS”) to be recorded against the Property. (RJN, Ex. 6). The NOS put interested parties on notice that the Property would be sold at a public auction on August 26, 2025. (RJN, Ex. 6.)

Therefore, the Court sustains the demurrer to the first cause of action.

The causes of action pled as to declaratory relief and injunctive relief are either derivative of the quiet title claim or allege the same facts as to the transfer to the trust theory noted above.

Hood v. Superior Court (1995) 33 Cal.App.4th 319, 324 indicates that declaratory relief is unavailable where it duplicates other causes of action. As such, the Court sustains the demurrer to the second cause of action for declaratory relief.

Finally, the Court agrees that injunctive relief is not a cause of action and is dependent upon the pleading of a valid cause of action as a remedy. (Guessous v. Chrome Hearts, LLC (2009) 179 Cal.App.4th 1177, 1187; Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 65.)

No Leave to Amend

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.)

Here, Plaintiff has presented no argument or allegations that the complaint can be amended to allege a cause of action. Plaintiff’s theory that transfer from an individual to a trust somehow eliminates the encumbrance on the property or otherwise eliminates the power of sale by a trustee as to a previously recorded deed of trust is not viable under California law.

Therefore, the Court sustains the demurrer 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

Examiner Notes for Probate Matters Calendared

• Visalia Division 
• South County Justice Center Division