Tentative Rulings
Civil Tentative Rulings and Probate Examiner Recommendations are available below. All attempts possible are made to have the information on these pages updated by 3:00pm the day prior to hearing in order to allow for any needed continuances or travel if an appearance should be required.
Civil Tentative Rulings: The court does not issue tentative rulings on Writs of Attachment, Writs of Possession, Claims of Exemption, Claims of Right to Possession, Motions to Tax Costs After Trial, Motions for New Trial, or Motions to Continue Trial. Under California Rules of Court, rule 3.1308 and Local Rule 701, any party opposed to the tentative ruling must notify the court and other parties by 4:00 p.m. today of their intention to appear for oral argument. The court's notice must be made by facsimile (fax) to 559-733-6774.
Probate Examiner Recommendations: For further information regarding a probate matter listed below you may contact the Probate Document Examiner at 559-730-5000 ext #2342. The Probate Calendar Clerk may be reached at 559-730-5000 Option 4, then Option 6.
Civil Tentative Rulings & Probate Examiner Recommendations
The Tentative Rulings for Tuesday, November 5, 2024, are:
Re: Ambriz, Victor Rodriguez an individual, vs. Deer Creek Citrus, LLC et al
Case No.: PCU297231
Date: November 5, 2024
Time: 8:30 A.M.
Dept. 23-The Honorable Glade F. Roper
Motion: Specially Appearing Guillermo Oritz Hernandez’s Motion to Quash Service for Lack of Personal Jurisdiction
Tentative Ruling: To grant the unopposed motion and quash service for lack of personal jurisdiction.
Facts
This complaint for premises liability names Defendants “Deer Creek Citrus, LLC; Jorge Magana, an individual; Guillermo Hernandez Martinez, an individual.”
The complaint alleges that, on or about April 8, 2021, Defendants hired Plaintiff, with knowledge he was an unlicensed contractor, to perform repair work while in a tree during which Plaintiff fell and was injured.
While no proof of service has been filed as to Defendant “Guillermo Hernandez Martinez,” on September 30, 2024, Guillermo Ortiz Hernandez made a special appearance by filing a motion to quash service of summons based on lack of personal jurisdiction.
In support, Specially Appearing Mr. Hernandez states he is unfamiliar with the named parties and underlying facts in the lawsuit, since 2005, he has not traveled to California on “business or business-related activities” and has not moved back to California at any point between 2008 and present, and has been living at the same residence in Louisiana since December 31, 2019, having been a resident of Louisiana since 2005. (Declaration of Hernandez ¶2, 3, 4, 5.) Finally, Mr. Hernandez states he has never used, assumed or utilized the identify of “Guillermo Hernandez Martinez.”
No opposition appears to have been filed. No continuance of this motion was requested by Plaintiff’s counsel or stipulated to by the parties.
Authority and Analysis
“When a defendant challenges jurisdiction through a motion to quash, the plaintiff bears the burden to demonstrate facts, as to each nonresident defendant, justifying the exercise of jurisdiction by a preponderance of evidence. [Citation.] The plaintiff must provide specific evidentiary facts, through affidavits and other authenticated documents, sufficient to allow the court to independently conclude whether jurisdiction is appropriate. [Citation.] The plaintiff cannot rely on allegations in an unverified complaint or vague and conclusory assertions of ultimate facts. [Citation.]” (Strasner v. Touchstone Wireless Repair and Logistics, LP (2016) 5 Cal.App.5th 215, 221-222.) (emphasis added.)
Here, Plaintiff has not opposed the motion and therefore does not carry the burden of producing specific evidentiary facts to evaluate whether jurisdiction over Specially Appearing Mr. Hernandez is proper.
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: Johnson, Sharon D. vs. Porterville Police Department
Case No.: VCU312902
Date: November 5, 2024
Time: 8:30 A.M.
Dept. 23-The Honorable Glade F. Roper
Motion: Application for Writ of Possession After Hearing
Tentative Ruling: To deny the application for writ of possession; to permit Plaintiff to file a petition for writ of mandate.
Facts
This matter was initiated on September 12, 2024, by Petitioner Sharon Johnson via a filing of a “notice of appeal” from the “City of Porterville Police” based on Petitioner’s receipt of an order on August 29, 2024 on a Judicial Council Form MD-140.
In response to this filing, Respondent City of Porterville, on September 23, 2024, filed a request for dismissal of the notice of appeal, and attached the August 28, 2024 decision following vicious animal hearing as Exhibit A to the motion.
Taking the following facts from Exhibit A, it appears that on August 12, 2024, the Petitioner’s dog, Arco, entered Susie Rodriguez’ yard to play with her dogs via the digging of a hole underneath a chain link fence.
Rodriguez was in her backyard watering her plants and when Rodriguez turned on her watering hose, her dogs vacated the area leaving her alone in the general area with Arco. Rodriguez’ attempts to get Arco to go back into Petitioner Ms. Johnson’s yard were unsuccessful because of how the chain link fence bent into Rodriguez’ yard.
Rodriguez had Arco in between the fence and herself and, at some point, Arco bit Rodriguez.
Law enforcement was called and Officer Bushnell answered the call. While he was there, Arco became aggressive towards him. Officer Bushnell also testified that Arco has been aggressive toward the kennel staff and other animals. Officer Bushnell opined that Arco was a public safety hazard and should not be returned.
Therefore, the City held an administrative hearing on August 28, 2024 and found, under Porterville City Ordinances, Chapter 5, et al (stating that any animal that has attacked, bitten or caused injury to a human being or other animal is presumed to be vicious/dangerous and the burden is on the owner to present evidence that the animal is not vicious/dangerous) and determined Arco to be a vicious/dangerous animal and that pursuant to Porterville City Ordinance Section 5-3.13, that Arco is dangerous or vicious and that it should be humanely destroyed after all appeal processes have been exhausted following the receipt of the hearing officer's decision.
The decision further stated “The owner may, within ten (10) days of receipt of the hearing officer's written decision, appeal the hearing officer's decision to the Tulare County Superior Court pursuant to California Code of Civil Procedure section 1094.6. The police department will be notified by the owner of the appeal in writing on the same date as the appeal was filed. (Ord. 1824, 6-16-2015)”
On October 2, 2024, Petitioner filed the writ of possession application at issue here.
At the October 3, 2024 case management hearing, a discussion of Petitioner’s filings and Respondent’s request for dismissal resulted in the Court finding the request for dismissal moot based on Plaintiff’s October 2, 2024 filing of a writ of possession after hearing.
On October 11, 2024, Respondent filed a request to deny the application for writ of possession and noted Petitioner’s ability to challenge the determination by a writ of mandate pursuant to Code of Civil Procedure section 1094.6.
Authority and Analysis
Writ of Possession After Hearing
“Upon the filing of the complaint or at any time thereafter, the plaintiff may apply pursuant to this chapter for a writ of possession by filing a written application for the writ with the court in which the action is brought.” (Code Civ. Proc. § 512.010(a).) Before the hearing on the writ, the opposing party must be served with (1) a copy of the summons and complaint; (2) a notice of application and hearing; and (3) a copy of the application and any affidavit in support thereof. (Code Civ. Proc. § 512.030.)
“The writ will be issued if the court finds that the plaintiff's claim is probably valid and the other requirements for issuing the writ are established.” (Code Civ. Proc.§ 512.040(b).)
Based on these threshold requirements, the Court finds that no writ of possession relief is applicable here. There is no underlying complaint or service thereof for which to grant the application. Therefore, there is no underlying claim on which the Court may find a probable validity and for which writ of possession can be issued.
The Court, therefore, denies the application on this basis.
Filing of MD-140
The Court here notes that Petitioner’s filing of an MD-140 form would have been an appropriate procedural step had the City, through “the chief officer of the public animal shelter or animal control department, or the chief officer’s immediate supervisor, or the head of the local law enforcement agency, or the agency head’s designee” filed of a petition with “the superior court of the county in which the dog is owned or kept for a hearing for the purpose of determining whether or not the dog should be declared potentially dangerous or vicious. A proceeding under this section is a limited civil case.” (Food and Ag. Code § 31621.)
Here, the Court notes that Food and Ag. Code section 31621 also provides “A city or county may establish an administrative hearing procedure to hear and dispose of petitions filed pursuant to this chapter.”
While Food and Ag. Code section 31621 provides for this alternative procedure, it does not appear, based on Porterville City Code section 5-3.11 that a “petition” was filed by the enumerated persons above or that Porterville City Code section 5-3.11 contains a similar timeline to Food and Ag. Code section 31621. Respondent does not appear to argue that Porterville City Code section 5-3.11 establishes the alternative hearing procedure under Food and Ag. Code section 31621.
As such, the filing of MD-140 pursuant to Food and Ag. Code 31622 with this Court appears improper, as the Court did not conduct the petition hearing and the City’s administrative hearing was not borne out of a petition nor does the City Code establish such a hearing under section 31621.
In either case, the filing of the MD-140 form under Food and Ag. Code 31622 with this Court appears an improper step to challenge the City’s administrative hearing.
Writ of Mandate
The remaining issue, therefore, is whether the Court should treat the MD-140 filing as a writ of mandate challenging the City’s administrative hearing.
The challenge to the decision via writ of mandate is expressly authorized by Porterville City Code section 5-3.13(E), stating:
“The owner may, within ten (10) days of receipt of the hearing officer’s written decision, appeal the hearing officer’s decision to the Tulare County superior court pursuant to California Code of Civil Procedure section 1094.6…”
Here, the Court notes that Code of Civil Procedure section 1094.6 states:
“Judicial review of any decision of a local agency, other than school district, as the term local agency is defined in Section 54951 of the Government Code, or of any commission, board, officer or agent thereof, may be had pursuant to Section 1094.5 of this code only if the petition for writ of mandate pursuant to such section is filed within the time limits specified in this section.”
Government Code section 54951 states, “As used in this chapter, ‘local agency’ means a county, city, whether general law or chartered, city and county, town, school district, municipal corporation, district, political subdivision, or any board, commission or agency thereof, or other local public agency.”
The City of Porterville and the Porterville Police Department are local agencies as defined in Government Code section 54951.
Therefore, judicial review of the decision must be pursuant to Code of Civil Procedure section 1094.6. The City’s most recent October 11, 2024 filing appears in agreement.
The Court will permit the filing of a petition for writ of mandate.
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.