Tentative Rulings

The Tentative Rulings for Monday, December 1, 2025, are:

Re:                 Matthews, Vicki L vs. FCA US, LLC

Case No.:   VCU311884

Date:           December 1, 2025

Time:           8:30 A.M. 

Dept.           7-The Honorable Russell P. Burke

Motion:     Defendant’s Motion for Summary Judgment

Tentative Ruling: To grant the unopposed motion

Facts

In this matter, Plaintiffs sue Defendant FCA for (1) Violation of Civil Code section 1793.2(d), (2) Violation of Civil Code section 1793.2(b), (3) Violation of Civil Code section 1793.2(a)(3), and (4) Breach of the Implied Warranty of Merchantability under Civil Code sections 1791.1, 1794 and 1795.5.

Defendant moves for summary judgment, or in the alternative, summary adjudication, based on the following facts.

The 2021 Dodge Durango VIN: 1C4RDHDGXMC544205 (“Subject Vehicle”) was purchased new by Plaintiffs Vicki L. Matthews and Evan R. Matthews (“Plaintiffs”) on December 31, 2020. (UMF Nos. 1, 8, 15, 22.)

With Plaintiffs’ purchase of the Subject Vehicle, Plaintiffs were given 3-year/36,000-mile bumper to bumper warranty, a 5-year/100,000-mile powertrain warranty, and various emissions warranties. (UMF Nos. 2, 9, 16, 23.)

Plaintiffs did not present their vehicle to a dealership for repair on more than one occasion for the nonconformities identified in their complaint as “engine, electrical, transmission, infotainment, among other nonconformities and defects. (UMF Nos. 3, 10, 17, 24.)

On September 29, 2021, Plaintiffs presented their vehicle to Porterville Chrysler Jeep Dodge Ram complaining that the Uconnect needed service. (UMF Nos. 4, 11, 18.)The dealership technician could not duplicate the concern. (UMF Nos. 4, 11, 18, 25.) That was Plaintiffs’ only repair (or maintenance) presentation within warranty. The vehicle was at the dealership for one day. (UMF Nos. 4, 11, 18, 25.)

Pursuant to the terms of FCA’s express limited warranty, the three-year / 36,000-mile “bumper to bumper” coverage period expired on time or about December 31, 2023. (UMF Nos. 5, 12, 19, 26.)

On September 8, 2025, after the filing of this lawsuit, Plaintiffs presented their vehicle to Porterville Chrysler Jeep Dodge Ram complaining that the engine light is one and there is a rough idle. (UMF Nos. 6, 13, 20, 27.)

The Subject Vehicle as outside warranty based on mileage (mileage: 110,606), the dealership technician recommended replacing the head gasket, but Plaintiffs declined repairs. UMF Nos. 6, 13, 20, 27.)

Plaintiffs did not have any contact with FCA prior to their purchase, nor did they present the vehicle to a dealership for multiple repairs to the engine, electrical, transmission, or infotainment. (UMF Nos. 7, 14, 21, 28.)

No opposition appears filed.

Authority and Analysis

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.” (Code Civ. Proc. § 437c(f)(1).) If a party seeks summary adjudication as an alternative to a request for summary judgment, the request must be clearly made in the notice of the motion. (Gonzales v. Superior Court (1987) 189 Cal.App.3d 1542, 1544.)  “[A] party may move for summary adjudication of a legal issue or a claim for damages other than punitive damages that does not completely dispose of a cause of action, affirmative defense, or issue of duty pursuant to” subdivision (t). (Code Civ. Proc. § 437c(t).) 

To prevail, the evidence submitted must show there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Code Civ. Proc. § 437c(c).) The motion cannot succeed unless the evidence leaves no room for conflicting inferences as to material facts; the court has no power to weigh one inference against another or against other evidence. (Murillo v. Rite Stuff Food Inc. (1998) 65 Cal.App.4th 833, 841.) In determining whether the facts give rise to a triable issue of material fact, “[a]ll doubts as to whether any material, triable, issues of fact exist are to be resolved in favor of the party opposing summary judgment…” (Gold v. Weissman (2004) 114 Cal.App.4th 1195, 1198-99.) “In other words, the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences there from must be accepted as true.” (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 179.) However, if adjudication is otherwise proper the motion “may not be denied on grounds of credibility,” except when a material fact is the witness’s state of mind and “that fact is sought to be established solely by the [witness’s] affirmation thereof.” (Code Civ. Proc. § 437c(e).) 

Once the moving party has met their burden, the burden shifts to the opposing party “to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” (Code Civ. Proc. § 437c(p)(1).) “[T]here is no obligation on the opposing party... to establish anything by affidavit unless and until the moving party has by affidavit stated facts establishing every element... necessary to sustain a judgment in his favor.” (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.) 

First Cause of Action -  Civil Code section 1793.2(d)

Civil Code Section 1793.2(d) states:

"(1) Except as provided in paragraph (2), if the manufacturer or its representative in this state does not service or repair the goods to conform to the applicable express warranties after a reasonable number of attempts, the manufacturer shall either replace the goods or reimburse the buyer in an amount equal to the purchase price paid by the buyer, less that amount directly attributable to use by the buyer prior to the discovery of the nonconformity.

(2) If the manufacturer or its representative in this state is unable to service or repair a new motor vehicle, as that term is defined in paragraph (2) of subdivision (e) of Section 1793.22, to conform to the applicable express warranties after a reasonable number of attempts, the manufacturer shall either promptly replace the new motor vehicle in accordance with subparagraph (A) or promptly make restitution to the buyer in accordance with subparagraph (B). However, the buyer shall be free to elect restitution in lieu of replacement, and in no event shall the buyer be required by the manufacturer to accept a replacement vehicle."

A plaintiff pursuing an action here has the burden to prove that: "(1) the vehicle had a nonconformity covered by the express warranty that substantially impaired the use, value or safety of the vehicle (the nonconformity element); (2) the vehicle was presented to an authorized representative of the manufacturer of the vehicle for repair (the presentation element); and (3) the manufacturer or his representative did not repair the nonconformity after a reasonable number of repair attempts (the failure to repair element)." (Oregel v. American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1101.)

"The statute requires the manufacturer to afford the specified remedies of restitution or replacement if that manufacturer is unable to repair the vehicle 'after a reasonable number of attempts.' 'Attempts' is plural. The statute does not require the manufacturer to make restitution or replace a vehicle if it has had only one opportunity to repair that vehicle." (Silvio v. Ford Motor Co. (2003) 109 Cal. App. 4th 1205, 1208.) "A single attempt does not meet the statutory threshold, so that there is no need for a trier of fact to determine its reasonableness." (Id. at 1209.) "The reasonableness of the number of repair attempts is a question of fact to be determined in light of the circumstances, but at a minimum there must be more than one opportunity to fix the nonconformity." (Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 799.)

As noted in Robertson v. Fleetwood Travel Trailers of California, Inc. (2006) 144 Cal.App.4th 785, 801:

“the Song-Beverly Act is a remedial measure intended for protection of consumers and should be given a construction consistent with that purpose. ‘[T]he Act is manifestly a remedial measure, intended for the protection of the consumer; it should be given a construction calculated to bring its benefits into action’” (Kwan v. Mercedes-Benz of North America, Inc. (1994) 23 Cal.App.4th 174, 184.) Although section 1793.2, subdivision (d)(1) does not provide a definition of the term ‘nonconformity,’ we readily conclude in light of the remedial nature of the statute that it is broad enough to encompass the entirety of the problem in the present case—that is, both leak and water damage. Accordingly, the jury could appropriately find, as it implicitly did here, that the mere repair of the leak in October of 2003 did not cure the entirety of the nonconformity, since the resulting water damage still remained.…”

Here, Defendant notes that only one repair occurred. (UMF Nos. 3, 4.) Defendant has met its burden to demonstrate that it did not violate Civil Code section 1793.2(d).

Second Cause of Action - Civil Code section 1793.2(b)

Civil Code section 1793.2(b) states:

"(b) Where those service and repair facilities are maintained in this state and service or repair of the goods is necessary because they do not conform with the applicable express warranties, service and repair shall be commenced within a reasonable time by the manufacturer or its representative in this state. Unless the buyer agrees in writing to the contrary, the goods shall be serviced or repaired so as to conform to the applicable warranties within 30 days. Delay caused by conditions beyond the control of the manufacturer or its representatives shall serve to extend this 30-day requirement. Where delay arises, conforming goods shall be tendered as soon as possible following termination of the condition giving rise to the delay."

As stated in Cummins, Inc. v. Superior Court (2005) 36 Cal.4th 478, the manufacturer or its representative in the State of California must fail to repair the vehicle to conform with the express warranty after a reasonable number of attempts to constitute a violation of this code section.

Here, Defendant notes that only one repair occurred, and it did not exceed 30 days. (UMF Nos. 10, 11.) Defendant has met its burden to demonstrate that it did not violate Civil Code section 1793.2(b).

Third Cause of Action - Civil Code Section 1793.2(a)(3)

Under Civil Code section 1793.2(a)(3), a manufacturer must "[m]ake available to authorized service and repair facilities sufficient service literature and replacement parts to effect repairs during the express warranty period.”

Defendant notes that the complaint alleges “Defendant FCA failed to make available to its authorized service and repair facilities sufficient service literature and replacement parts to effect repairs during the express warranty period. Plaintiffs have been damaged by Defendant FCA’s failure to comply with its obligations pursuant to Civil Code section 1793.2(a)(3), and therefore bring this Cause of Action pursuant to Civil Code section 1794.” (Complaint ¶48)

Defendant then directs the Court to UMF Nos. 3 through 6, and 8, in support of the argument that Plaintiffs made a single visit to an authorized dealer, complained only as to the Uconnect, and that the repair orders reflect no issue as to the availability of service literature or replacement parts to effectuate repairs. The Court finds Defendant has met its burden here.

Fourth Cause of Action – Breach of Implied Warranty of Merchantability

To be in compliance with the implied warranty of merchantability, consumer goods must: (1) pass without objection in the trade described in the contract; (2) be fit for the ordinary purpose for which such goods are used; (3) be adequately contained, packaged, and labeled; and (4) conform to any promises or affirmations of fact made on the container or label. (Civ. Code, § 1791.1, subd. (a).)

Further, any buyer damaged by a failure to comply with an implied warranty may bring an action for the recovery of damages under the Song-Beverly Act. (Civ. Code § 1794.) Further, “[t]he duration of the implied warranty of merchantability . . . shall be coextensive in duration with an express warranty which accompanies the consumer goods, provided the duration of the express warranty is reasonable; but in no event shall such implied warranty have a duration of less than 60 days nor more than one year following the sale of new consumer goods to a retail buyer.” (Civ. Code. § 1791.1, subd. (c).)

Here, Defendant has demonstrated that Plaintiff has not presented evidence of a defect in the Subject Vehicle prior to the expiration of the express warranty, given the single repair attempt regarding the Uconnect system.

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:                Wells Fargo Bank, N.A vs. Vang, Ger

Case No.:   VCL316443

Date:           December 1, 2025

Time:           8:30 A.M. 

Dept.           7-The Honorable Russell P. Burke

Motion:     Plaintiff’s Motion for Summary Judgment 

Tentative Ruling: To grant the unopposed motion.

Facts

In this collection matter, Plaintiff sued Defendant for breach of contract (written and implied in fact.) Plaintiff moves for summary judgment based upon the following facts.

Defendant applied for and was issued a Wells Fargo credit card ("Subject Account") ending in 4179. (UMF No. 1.) Plaintiff sent Defendant the credit card along with the written Customer Agreement associated with the credit card. (UMF No. 2.) Defendant accepted the terms of the written agreement when they used the Wells Fargo Credit Card. (UMF No. 3.)

Pursuant to the terms of the Customer Agreement associated with the card, Plaintiff would extend credit to Defendant whereby Defendant could charge goods, services, or obtain cash advances on the credit line. (UMF No. 4.) In exchange, Defendant was to repay the principal amount lent plus applicable interest and finance charges. (UMF No. 5.) In accordance with the Customer Agreement, Defendant used the account, and made payments, charges, and incurred a balance thereon. (UMF No. 6.)

Plaintiff sent Defendant monthly statements of the Subject Account each and every billing period. (UMF No. 7.) The statements of the account reflected all charges, payments, minimum payment due that billing period, and any fees and interest incurred for each billing period. (UMF No. 8.)

There is no record of any unresolved disputes on the account. (UMF No. 9.) There is no record of any active lawsuits against Wells Fargo Bank, N.A. for unresolved disputes on this credit card account. (UMF No. 10.)

Defendant’s last payment on the Subject Account was on September 27, 2023 and thereafter no payments were made and Defendant was in default. (UMF Nos. 11 and 12.)

The balance due on Defendant’s Subject Account is $17,161.19 and Defendant has been damaged in the same amount. (UMF Nos. 13 and 14.)

The Court notes from its file that timely and proper notice of this motion by mail was given to the Defendant via counsel.   

The Court has not received any opposition to this motion.

Authority and Analysis

This motion for summary judgment arises out of Defendant’s default on a credit card obligation to Plaintiff. The complaint pleads breach of contract, both written and implied in fact.

A plaintiff moving for summary judgment must make a prima facie showing that there are no triable issues of fact to meet its initial burden of production. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.App.4th 826, 861.)  “[A] [plaintiff] moving for summary judgment [must] present evidence, and not simply point out that the [plaintiff] does not possess, and cannot reasonably obtain, needed evidence.” Aguilar, at 854, fn. omitted.  Circumstantial evidence to support a plaintiff’s summary judgment motion “can consist of factually devoid discovery responses from which an absence of evidence can be inferred,” but the burden should not shift without stringent review of the direct, circumstantial, and inferential evidence.” (Scheiding v. Dinwiddle Construction Co. (1999) 69 Cal.App.4th 64, 83.)

Once the plaintiff has met its burden, the burden shifts to the defendant to make a prima facie showing that a triable issue of material fact exists. (Aguilar, supra, 25 Cal.App.4th at 850.)  “A prima facie showing is one that is sufficient to support the position of the party in question. [citation] No more is called for.” (Id. at 851.) The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material facts and that the moving party is entitled to a judgment as a matter of law. (Code Civ. Proc. 437c(c).)

From a review of the undisputed material facts supplied in Plaintiff’s separate statement of undisputed material facts and the evidence that offered in support of these material facts that plaintiff supplied in this response, the Court finds that Plaintiff has met its burden to that no triable issues of fact exist.

To establish a claim for breach of contract, Plaintiff must establish: (1) the existence of the contract, (2) Plaintiffs' performance or excuse for nonperformance, (3) defendants' breach, and (4) the resulting damage to Plaintiff." (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.)

Here, the first element is met by UMF Nos. 1, 2, 3, 4, 5, and 6.

The second element is met by Nos. 4, 6, and 7.

The third element is met by Nos. 9, 10, 11, and 12,

The fourth element is met by Nos. 13 and 14.

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:                 Pacific Coast Supply, LLC vs. Francisco Ramos, Jose

Case No.:   VCL321860

Date:            December 1, 2025

Time:           8:30 A.M. 

Dept.           7-The Honorable Russell P. Burke

Motion:     Defendant Navarro’s Motion Set Aside / Vacate Default

Tentative Ruling: To deny the motion

Facts

Plaintiff filed this complaint on May 27, 2025.

Relevant here, Plaintiff alleges Defendant Navarro is the owner of property located at 539 Lemona Street Woodlake, CA, 93286 (“Subject Property”) and that “In January 2025, Plaintiff entered into a contract to furnish building materials in and 6 about the Projects, including the buildings and work of improvement now located upon the Projects. The services and/or materials were provided at the special instance and request of SIDE BY SIDE HOME IMPROVEMENTS INC. and as assigned to NAVARRO.” (Complaint ¶31.)

Further, that the remaining balance agreed price and reasonable value of said services and/or materials was and is the sum of $4,444.19. (Complaint ¶32.) Further, that on March 5, 2025, Plaintiff recorded the claims of lien in Tulare County. (Complaint ¶33.)

On June 20, 2025, Plaintiff filed a proof of service indicating personal service on Defendant Navarro at the Subject Property on June 10, 2025 at 8:37 pm. The proof of service was completed by a registered California process server.

On September 15, 2025, default was entered against Defendant Navarro.

On October 7, 2025, Defendant Navarro filed this motion for relief from default under Code of Civil Procedure section 473(b) based on inadvertence, surprise, mistake, or excusable neglect due to a “medical condition” (that on August 4, 2025, Defendant Navarro had heart surgery and receives dialysis.) The motion, however, checks the box that Defendant does not contest the manner of service and admits Defendant was served. (Motion at page 10, ¶6.)

Authority and Analysis

The Court may relieve a party or counsel from a judgment, dismissal, order or other proceeding taken against the party resulting from mistake, inadvertence, surprise, or excusable neglect.  (Code Civ. Proc., § 473, subd. (b).)  The application for relief must be made within a reasonable time, not to exceed six months, after the judgment, dismissal, order or proceeding was taken.  (Id.)  

“A ‘mistake’ exists when a person, under some erroneous conviction of law or fact, does, or omits to do, some act which, but for the erroneous conviction, he would not have done, or omitted. It may arise either from unconsciousness, ignorance, forgetfulness, imposition, or misplaced confidence.” (Salazar v. Steelman (1937) 22 Cal.App.2d 402, 405, 410.) 

“Surprise” is defined as “some condition or situation in which a party to a cause is unexpectedly placed to his injury, without any default or negligence of his own, which ordinary prudence could not have guarded against.” (Miller v. Lee (1942) 52 Cal.App.2d 10, 16.)

Further, “excusable neglect” has been defined as “neglect that might have been the act or omission of a reasonably prudent person under the same or similar circumstances.” (Ebersol v. Cowan (1983) 35 Cal.App.3d 427, 435.)

“Finally, as for inadvertence or neglect, ‘[t]o warrant relief under section 473 a litigant's neglect must have been such as might have been the act of a reasonably prudent person under the same circumstances. The inadvertence contemplated by the statute does not mean mere inadvertence in the abstract. If it is wholly inexcusable it does not justify relief.’ ” (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1206.)” (Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 230.)

“Section 473 is often applied liberally where the party in default moves promptly to seek relief, and the party opposing the motion will not suffer prejudice if relief is granted.  [Citations.]  In such situations ‘very slight evidence will be required to justify a court in setting aside the default.’  [Citation.]”  (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233.)

Here, Defendant admits service was proper and provides no explanation for the failure to file a response to the complaint after service on June 10, 2025. The Court, therefore, denies the motion, as it lacks even the very slight evidence necessary.

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:                Morales, Alexis vs. Court and Paradise Apartments, L.P.

Case No.:   VCU324601

Date:            December 1, 2025

Time:           8:30 A.M. 

Dept.           7-The Honorable Russell P. Burke

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

Tentative Ruling:

(1) To sustain the Defendants’ demurrer to the second cause of action for negligence per se without leave to amend; To overrule the Defendants’ demurrer to the fifth cause of action for nuisance and seventh cause of action for IIED; To sustain Defendant Housing Authority’s demurrer to the third cause of action for habitability, fourth cause of action for covenant of quiet enjoyment and sixth cause of action for breach of contract without leave to amend;

(2) To grant the motion to strike punitive damages as to Defendant Housing Authority without leave to amend; to grant the motion to strike punitive damages as to Defendant Paradise Apartments as to negligence without leave to amend; to grant the motion to strike punitive damages as to Defendant Paradise as to nuisance and IIED with leave to amend as to Civil Code section 3294(b). Plaintiffs shall have ten (10) days to file an amended complaint as to this issue only.

Facts Common to (1) and (2)

In this complaint, Plaintiffs allege (1) negligence, (2) negligence per se, (3) breach of warranty of habitability, (4) breach of covenant of quiet enjoyment, (5) nuisance, (6) breach of contract and (7) intentional infliction of emotional distress against Defendants Court and Paradise Apartments, L.P. and the Housing Authority of the County of Tulare.

Plaintiffs allege that Defendant Court and Paradise Apartments, L.P. (“Court”) was the owner, titleholder, manager, landlord, and inspectors of the Property. (Complaint ¶4.)

Further, that Defendant Housing Authority of the County of Tulare (“Housing Authority”), a governmental entity, was acting as the manager, landlord and inspector of the Property. (Complaint ¶5.)

Additionally, that Defendant Court was the owner and title holder of the Property, and that at some point thereafter, Defendant Housing Authority took over all communications and maintenance responsibilities along with all managerial duties regarding the Property. (Complaint ¶14.)

Plaintiffs allege that each of the Defendants were an agent, servant or employee of the other Defendants, and were acting within the scope of agency or employment of the others. (Complaint ¶10.)

Plaintiffs allege damages during their tenancy at 1544 S. Court St., Visalia, CA. 93277 (the “Property”). (Complaint ¶¶1, 2.) Further, that Plaintiffs entered into a lease agreement, attached as Exhibit B. (Complaint ¶13 – Ex. B.) Exhibit B evidences a lease agreement between Plaintiffs Alexis Morales and  Isaac Gutierrez, and that the Property is under the federal Low-Income Housing Tax Credit Program, which includes a Lease Rider as to good cause for eviction or nonrenewal of the lease. (Ex. B.)

Plaintiffs allege Defendants were placed on actual and constructive notice of ongoing plumbing issues, water leaks, water damage, noxious odors, indoor dampness, and visible mold-like contamination at the Property since at least 2023. (Complaint ¶17.)

Specifically, Plaintiffs allege that in September 2023, October 7, 2023 and October 11, 2023, both restrooms at the Property flooded due to plumbing back up issues, flooding the floors and saturating the carpets. (Complaint ¶¶18, 19, 20.) On each occasion, Plaintiffs allege they provided notice to Defendants. (Complaint ¶¶18, 19, 20.)

Thereafter, Defendants inspected the Property, confirmed heave sewage/urine odors and while Defendants changed the carpets, they did not replace the bathroom floors and the Property continued to smell like urine, sewage and mildew. (Complaint ¶¶20, 21.) Plaintiffs continued to reach out to Defendants, but Defendants did not take further action at that time. (Complaint ¶21.)

Plaintiffs allege a number of health issues due to the condition of the Property, noting that Defendants continually refused to take additional action. (Complaint ¶22.)

In July 2024, Plaintiffs notified Defendants of visible mold and water damage in the bathrooms, alleged to have been caused by the 2023 incidents described above. (Complaint ¶26.) On July 5, 2024, Defendants inspected the Property, confirmed visible mold, but sprayed over the mold with a “solution” and represented the issue resolved. (Complaint ¶26.)

In early 2025, the floorboards in the bathroom began crackling and peeling, revealing old urine stains and visible black mold-like growth throughout the walls, prompting Plaintiffs to again notify Defendants. (Complaint ¶27.) In response, Defendants again inspected the Property, removed the floorboards, revealed “visible black mold-like propagation” and otherwise did not set up containment of the affected area. (Complaint ¶28.)

On or about May 28, 2025, Plaintiffs sent a written notice to Defendants regarding the removed floorboards and lack of containment, noting strong odors emanating from the area and visible mold like contamination. (Complaint ¶29.)

On May 30, 2025, Defendant Housing Authority responded and Defendants hired an independent inspection company. (Complaint ¶¶30, 31.) On May 30, 2025, an inspection took place where odors, elevated moisture levels, visible water damage and visible mold growth were confirmed, including within various wall cavities. (Complaint ¶¶32, 33, 34.) The inspection confirmed elevated airborne levels of “Aspergillus, Penicillium, Arthrinium, Cladosporium, and Stachybotrys” and surface samples confirmed “active mold colonization of Alternaria, Ulocladium, Chaetomium, Aspergillus, Penicillium, and “massive” Stachybotrys.” (Complaint ¶¶36-37.)

On June 5, 2025, Defendants sent written correspondence confirming the finding of microbial contamination, requiring remediation and requesting Plaintiffs temporarily vacate the Property. (Complaint ¶40.) On June 6, 2025, Plaintiffs vacated the Property. (Complaint ¶41.) As of the filing of the complaint on August 12, 2025, Plaintiffs remain displaced from the Property. (Complaint ¶42.)

On these facts, Plaintiffs plead causes of action, against all Defendants, for (1) negligence, (2) negligence per se, (3) breach of warranty of habitability, (4) breach of covenant of quiet enjoyment, (5) nuisance, (6) breach of contract, and (7) intentional infliction of emotional distress, seeking compensatory, general damages, special damages, punitive damages, costs and interest.

Defendants together demurrer to the second, fifth and seventh causes of action for failure to state a cause of action, uncertainty, and other grounds.

Defendant Housing Authority separately demurrers to the third, fourth and sixth causes of action for failure to state a contract with the Housing Authority, failure to state facts and uncertainty.

Further, Defendants move to strike the requests and references to punitive damages.

In opposition, Defendants argue negligence per se is a stand alone cause of action, that the nuisance claim is not duplicative of negligence, that sufficient facts have been pled as to intentional infliction of emotional distress and that Defendant Housing Authority is liable under these theories as the property manager. Further, that the claims for punitive damages are sufficiently pled.

(1) Demurrer - Authority and Analysis

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.)

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.)

Defendants’ Demurrer to Second Cause of Action for Negligence Per Se

“…[T]he doctrine of negligence per se is not a separate cause of action but creates an evidentiary presumption that affects the standard of care in a cause of action for negligence." (Das v. Bank of America, N.A. (2010) 186 Cal.App.4th 727, 737-738, quotations, citations omitted.)

Plaintiffs citation to Johnson v. Honeywell Internat. Inc. (2009) 179 Cal.App.4th 549, 555 states the same: “[T]he doctrine of negligence per se is not a separate cause of action, but creates an evidentiary presumption that affects the standard of care in a cause of action for negligence.”

Therefore the Court sustains the demurrer to this cause of action.

The Court will permit leave to amend the first cause of action for negligence to include any allegations from this second cause of action. However, the Court will not permit a separate cause of action for negligence per se.

Defendants’ Demurrer to Fifth Cause of Action for Nuisance

“'A nuisance may be a public nuisance, a private nuisance, or both. [Citation.]'" (City of Claremont v. Kruse (2009) 177 Cal. App. 4th 1153, 1163.) A nuisance is "[a]nything which is injurious to health" and a "public nuisance is one which affects at the same time an entire community or neighborhood, or any considerable number of persons" (Civ. Code §§ 3479, 3480.) To prevail on a public nuisance claim, Plaintiffs must show "that a defendant knowingly created or assisted in the creation of a substantial and unreasonable interference with a public right." (People v. ConAgra Grocery Prods. Co. (2017) 17 Cal.App.5th 51, 79.)

The elements of an action for private nuisance are: (1) interference with use and enjoyment of property; (2) that is substantial that causes the plaintiff to suffer "substantial actual damage"; and (3) that is unreasonable. (San Diego Gas & Electric Co. v. Super. Ct. (1996) 13 Cal.4th 893, 938.) "[A] plaintiff bringing a cause of action for private nuisance must show harm to a property interest." (Orange County Water Dist. v. Sabic Innovative Plastics US, LLC (2017) 14 Cal.App.5th 343, 402.)

Defendants argue that this cause of action is duplicative of the negligence cause of action, noting that “Where negligence and nuisance causes of action rely on the same facts about lack of due care, the nuisance claim is a negligence claim.” (El Escorial Owners' Assn. v. DLC Plastering, Inc. (2007) 154 Cal.App.4th 1337, 1349.)

However, “[a] nuisance may be either a negligent or an intentional tort. If the latter, then exemplary damages are recoverable.” (Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 920.) In Stoiber, the court found sufficient facts pled that “defendant had actual knowledge of defective conditions in the premises including leaking sewage, deteriorated flooring, falling ceiling, leaking roof, broken windows, and other unsafe and dangerous conditions. She also alleged that defendants "In maintaining said nuisance, . . . acted with full knowledge of the consequences thereof and the damage being caused to plaintiff, and their conduct was willful, oppressive and malicious.” (Id.)

Here, Plaintiffs have alleged a nuisance by way of the mold that interfered with their use and enjoyment of the leased residence. Plaintiffs allege that Defendants “intentionally and willfully failed and refused to timely abate the conditions” and note a number of attempts to contact Defendants to perform repairs or remediation. (Complaint ¶91.)

Here, the allegations supporting negligence are distinguishable, where Plaintiffs allege intentional conduct as to the nuisance. As such, the claims are not identical for purposes of ruling on demurrer.

As such, the Court overrules the demurrer.  

Defendants’ Demurrer to Seventh Cause of Action for Intentional Infliction of Emotional Distress

"The elements of a prima facie case for the tort of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct." (Cervantez v. J. C. Penney Co. (1979) 24 Cal.3d 579, 593.)  Outrageous conduct is conduct that is intentional or reckless and so extreme as to exceed all bounds of decency in a civilized community. (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001.)

Plaintiff's claim for IIED is based on allegations that Defendants were aware of the water damage and mold and failed to act to remediate the issues.

Defendants argue “This is not a case in which Plaintiffs’ complaints were ignored for extended periods.” However, the complaint alleges flooding in September 2023 that, according to Plaintiffs, caused the initial mold issues. (Complaint ¶18.) Mold inspection, testing and remediation, however, did not take place until May and June 2025. (Complaint ¶¶32, 40.)  “Behavior may be considered outrageous if a defendant (1) abuses a relation or position which gives him power to damage the plaintiff’s interest; (2) knows the plaintiff is susceptible to injuries through mental distress; or (3) acts intentionally or unreasonably with the recognition that the acts are likely to result in illness through mental distress.” (Newby v. Alto Riviera Apartments (1976) 60 Cal. App. 3d 288, 297.) “[I]t is clear that the availability of a remedy for breach of implied warranty of habitability does not preclude a tenant from suing his landlord for intentional infliction of mental distress if the landlord’s acts are extreme and outrageous and result in severe mental distress.” (Stoiber, supra,101 Cal. App. 3d at 922.)

The Court finds a sufficient pleading of IIED and overrules the demurrer.

Defendant Housing Authority’s Demurrer to the Third Cause of Action for Breach of Habitability, Fourth Cause of Action for Breach of Covenant of Quiet Enjoyment and Sixth Cause of Action for Breach of Contract

The Court agrees that breach of habitability, covenant of quiet enjoyment and contract requires contractual privity. California Civil Code section 1942.4, as to the implied warranty of habitability, appears to apply only to landlords. (Civ. Code § 1942.4 (a) ("a landlord of a dwelling may not demand rent..."); Cal. Civ. Code § 1942.4 (b)(1) ("A landlord who violates this section is liable . . .")

"In the absence of language to the contrary, every lease contains an implied covenant of quiet enjoyment, whereby the landlord impliedly covenants that the tenant shall have quiet enjoyment and possession of the premises." (Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578, 588.)

To prevail on a cause of action for breach of contract, the plaintiff must prove (1) the contract, (2) the plaintiff's performance of the contract or excuse for nonperformance, (3) the defendant's breach, and (4) the resulting damage to the plaintiff." (Richman v. Hartley (2014) 224 Cal.App.4th 1182, 1186.)

Here, the Court agrees that the complaint alleges Defendant Paradise Apartments, and not Defendant Housing Authority, is the owner of the Property and the landlord. (Complaint ¶4.) Further, that the Lease, attached as Exhibit B, is not executed by the Housing Authority.

The citation to Stoiber, supra, 101 Cal.App.3d at 929-930 is unavailing, where the court noted:

“…because the tenant's remedies against the landlord are not limited to breach of the warranty of habitability and he may also plead tort actions, it necessarily follows that the agent may also be held liable on any properly pleaded tort causes of action.”

The breaches pled above are not properly pled tort causes of action. Further, “We conclude that although the agent defendants may not be held liable under the implied warranty theory, causes of action may be stated against them in tort.” (Id. at 929.)

Mora v. Baker Commodities (1989) 210 Cal.App.3d 771 involved, amongst others, the owner and lessor of the property at issue as the landlord defendant and does not appear to have an application here. Additionally, Sprecher v. Adamson Companies (1981) 30 Cal.3d 358 does not involve breach of contract, habitability or quiet enjoyment.

Here, Plaintiff has pled tort causes of action against the Housing Authority, consistent with the cases cited herein.

As such, the Court sustains the demurrer to the third, fourth and sixth causes of action by Defendant Housing Authority without leave to amend.

(2) Motion to Strike – 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).)

Here, Defendants seek to strike the references to punitive damages.

To start, the Court grants the motion as to the request for punitive damages against Defendant Housing Authority based on its status as a public entity under Government Code section 818.

As to Defendant Paradise Apartments, in reviewing a motion challenging the sufficiency of punitive damages allegations, the Court must consider whether the factual allegations concerning the actual conduct alleged “apprises the adversary of the factual basis of the claim. [Citations.]”  (Kiseskey v. Carpenters' Trust for So. California (1983) 144 Cal.App.3d 222, 234.)

The factual allegations, in addition, must support entitlement to punitive damages. “Notwithstanding relaxed pleading criteria” permissible with other claims, punitive damages “demand firm allegations.”  (G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29.)

"[P]unitive damages are available in cases where the trier of fact finds slander per se," provided the defendant is guilty of malice, fraud, or oppression. (Tilkey v. Allstate Ins. Co. (2020) 56 Cal.App.5th 521, 557; see Civ. Code, § 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)

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.”

Malice as used in section 3294, means conduct “intended … 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.”  Section 3294’s reference to “despicable conduct” represents a “substantive limitation on punitive damage awards.”  (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 725.)  “Absent an intent to injure the plaintiff, ‘malice’ requires more than a ‘willful and conscious’ disregard of the plaintiffs' interests. The additional component of ‘despicable conduct’ must be found. [Citations.]”  (Ibid.)

“Animus malus or evil motive, then, is the central element of the malice which justifies an exemplary award.”  (G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 30.)  “[C]onscious disregard of safety as an appropriate description of the animus malus which may justify an exemplary damage award when nondeliberate injury is alleged.”  (Id., at 32.)

Here, punitive damages are sought in connection with negligence, negligence per se, nuisance, and intentional infliction of emotional distress causes of action.

As the Court has sustained the demurrer to negligence per se without leave to amend, the motion to strike is moot as to the negligence per se cause of action.

As to negligence, authority indicates that "a nonintentional tort can have the characteristics of an intentional tort to the extent of embracing the concept of malice as used in Civil Code section 3294." (Nolin v. National Convenience Stores, Inc. (1979) 95 Cal.App.3d 279, 286). "A tort having some of the characteristics of both negligence and willfulness occurs when a person with no intent to cause harm intentionally performs an act so unreasonable and dangerous that he knows, or should know, it is highly probable that harm will result. (Citation). Such a tort…is most accurately designated as [w]anton and reckless misconduct." (Id.)

However, in examining the negligence and nuisance claims above, the Court notes that the negligence claim sounds more as the failure to act, while the nuisance claim is alleged via intentional conduct.

As such, the Court will grant the motion and strike the punitive damages claim within the negligence cause of action.

However, as to nuisance, “A nuisance may be either a negligent or an intentional tort. If the latter, then exemplary damages are recoverable.” (Stoiber, supra, 101 Cal.App.3d at 920.) As noted above, in Stoiber, the court found sufficient facts pled that “defendant had actual knowledge of defective conditions in the premises including leaking sewage, deteriorated flooring, falling ceiling, leaking roof, broken windows, and other unsafe and dangerous conditions. She also alleged that defendants "In maintaining said nuisance, . . . acted with full knowledge of the consequences thereof and the damage being caused to plaintiff, and their conduct was willful, oppressive and malicious.” (Id.)

As to IIED, likewise, punitive damages are likewise available. (Civ. Code § 3294(a).)

Consistent with the above, the Court finds a sufficient pleading of intentional conduct and refusal to abate the conditions is alleged in support of both nuisance and IIED.

However, as noted by Defendant Paradise Apartments, with respect to entity defendants, including 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.” (Civ. Code § 3294(b).)

Here, the Court lacks sufficient, specific allegations of 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. The Court finds the allegations of paragraphs 11 and 12 insufficient. This issue appears unaddressed in the opposition to the motion to strike.

Therefore, the Court grants the motion to strike with leave to amend as to the requirements of subsection (b) of Civil Code section 3294 as to nuisance and IIED.

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

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

Case No.:   VCU319687

Date:           December 1, 2025

Time:           8:30 A.M. 

Dept.           7-The Honorable Russell P. Burke

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

Tentative Ruling: To continue this matter to January 26, 2026, 8:30 am, Dept. 7; to order supplemental declarations filed as to the notice period, information to calculate the lodestar, presently incurred costs and proof of the submission of this settlement to the LWDA.

1. Sufficiency of Amount of Settlement (Net Estimated: $48,250)

The gross settlement amount is $150,000. Plaintiff estimates approximately 46 proposed Class Members, providing an estimated average payout of $300 per member.

The Class Members consist of:

“all individuals employed by Defendant as non-exempt, hourly-paid employees in the State of California at any time between March 26, 2021 through the date of the Court’s Preliminary Approval of the Settlement.”

Plaintiff primarily alleged the following violations: (1) failure to pay minimum wages; (2) failure to pay overtime wages; (3) failure to provide meal periods or premium pay in lieu thereof; (4) failure to provide rest periods or premium pay in lieu thereof; (5) failure to provide and maintain accurate records; (6) failure to reimburse necessary business expenses; (7) PAGA penalties; and (8) violation California Business & Professions Code §§17200, et seq. Additionally, the Parties agreed to stipulate to Plaintiff filing a First Amended Complaint in the Class Action to conform the pleadings with the scope of the Released Claims, specifically to add a cause of action for waiting time penalties under Labor Code section 203.

Plaintiff provide estimates of the maximum recovery for each of the asserted wage and hour claims and penalties with information showing how the estimates were calculated including the damages models utilized. (Declaration of Akhavan ¶¶ 17 – 29.)

Plaintiff has provided a detailed discussion of the value of each claim, applied various discount rates regarding the chance of success as to each claim which corresponds to the final gross settlement amount. Counsel estimates a  potential maximum recovery of approximately $1,786,042. (Declaration of Akhavan ¶¶ 17 – 29.)

After agreeing to participate in early mediation, Defendants informally produced time and pay records for Settlement Class members, key class data points, and other documents and information relevant to the claims alleged in advance of mediation. The parties reached the settlement after a full day mediation. 

The Court finds the information provided in support of the gross settlement amount sufficient for the Court to preliminarily approve the gross settlement amount, as the settlement amount appears to be within the recognized range of reasonableness given the claims and defenses asserted in this case.

Plaintiff’s deductions from the gross settlement of $150,000 are proposed as follows:

Proposed Court Approved Attorney Fees (33.3%):	$50,000
Proposed Attorney Costs (Expended):	$20,000
Proposed Enhancement Payment to Plaintiff:	$8,000
Proposed Settlement Administrator Costs	$3,750
Proposed Total PAGA Payment	$20,000
Proposed Net Settlement Amount	$48,250

 2.  Class Notice

The settlement agreement provides no claim form will be required of class members to participate in distributions.  Only those wishing to object or opt out must file notice with the settlement administrator. 

Objections or opt out notices are to be made within 30 days. The Court regularly approves notice periods of 60 days or longer.

The class notice period is therefore not approved.

With respect to the content of the Notice, the Court finds the Class Notice to be reasonable.  It clearly provides to the class member an estimate of the settlement share the employee is to receive and provides adequate instructions for any class member to opt out of the settlement or to submit an objection.

3.  Enhancement Awards to Class Representative

The Court preliminarily approves Plaintiff Tinajero as Class Representative for purposes of settlement only. The proposed enhancement award to Plaintiff is $8,000.

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

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

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

4. Attorneys’ Fees and Costs

Attorneys’ fees of 33% of the gross settlement fund of $150,000 or $50,000 and costs not to exceed $20,000 are sought by Plaintiff’s counsel.

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

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

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

5.  Claims Administrator

The court preliminary approves Apex Settlement Administrators, LLC as the claims administrator for this class action based both on prior experience with this settlement administrator in other class actions litigated in this court and on the Declaration of Michael Sutherland, President of Apex. The Court preliminarily approves administration costs not to exceed $3,750 based upon the Declaration of Sutherland and the itemized estimate. (Declaration of Sutherland – Exhibit B.)

6. Unclaimed Settlement Proceeds

The Court preliminarily approves the distribution of unclaimed settlement proceeds to California Controller’s Office Unclaimed Property Division, with an identification of the Participating Class Member to whom the funds belong, in accordance with Code of Civil Procedure section 384.

7. Release

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

8. LWDA Notice

Counsel’s declaration fails to indicate confirmation from the LWDA of receipt of proof of submission of the proposed settlement agreement. (Lab. Code, § 2699, subd. (l)(2).)

9. Class Certification

Code of Civil Procedure section 382 permits certification “when the question is of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court.”  (Code Civ. Proc. § 382.)  The plaintiff bears the burden of demonstrating that class certification under section 382 is proper.  (See City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 460.)  To do so, “[t]he party advocating class treatment must demonstrate the existence of an ascertainable and sufficiently numerous class, a well-defined community of interest, and substantial benefits from certification that render proceeding as a class superior to the alternatives.”  (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1021.) 

Here, the Motion and accompanying declaration of Counsel sufficiently sets forth the basis for finding the class is numerous and ascertainable as 46 employees have been identified through Defendant’s employment records. Additionally, common questions of law and fact predominate within the individual causes of action based on class wide policies and procedures of Defendant. Further, the class representative, through their declaration, indicates they will adequately and fairly represent the Class Members and will not place their interests above any Class Member. The Class Representative was employed by Defendant during the relevant time period and thus worked under the same policies and procedures as the Class Members.

Therefore, the Court continues this matter to January 26, 2026, 8:30 am, Dept. 7 and orders supplemental declarations filed as to the notice period, information to calculate the lodestar, presently incurred costs and proof of the submission of this settlement to the LWDA.

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

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

Case No.:   VCU316060

Date:           December 1, 2025

Time:           8:30 A.M. 

Dept.           7-The Honorable Russell P. Burke

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

Tentative Ruling: To continue this matter to January 26, 2026, 8:30 am, Dept. 7; to order a further supplemental declaration as to required 60 day notice period, the existence of a PAGA cause of action or a stipulation to amend the complaint to include a PAGA cause of action as well as information as to compliance with Code of Civil Procedure section 384 as to the proposed cy pres recipient.

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

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

The Class Members consist of:

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

Plaintiff primarily alleged the following violations on a class basis:

1. FAILURE TO PAY OVERTIME WAGES;

2. FAILURE TO PERMIT AND AUTHORIZE ADEQUATE REST PERIODS;

3. FAILURE TO PROVIDE ADEQUATE MEAL PERIODS;

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

5. FAILURE TO PAY WAGES DUE TO FORMER EMPLOYEES;

6. FAILURE TO FURNISH ACCURATE WAGE STATEMENTS; AND,

7. UNLAWFUL BUSINESS PRACTICES

As an initial matter, the Court notes this motion seeks preliminary approval of both a class action and PAGA settlement. The Court’s review of the complaint indicates there is no PAGA cause of action, as all of the above are alleged on a classwide basis

Therefore, the Court will not approve a settlement for the PAGA cause of action at this time. The Court will permit a stipulation to file an amended complaint to add the PAGA cause of action and thereafter preliminarily approve the settlement as to any PAGA relief.

Plaintiffs provide estimates of the maximum recovery for each of the asserted wage and hour claims and penalties with information showing how the estimates were calculated including the damages models utilized. (Declaration of Martinez ¶¶ 6, 14.)

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

After agreeing to participate in early mediation, Defendants informally produced time and pay records for Settlement Class members, key class data points, and other documents and information relevant to the claims alleged in advance of mediation. The parties reached the settlement after a full day mediation.

The Court finds the information provided in support of the gross settlement amount sufficient for the Court to preliminarily approve the gross settlement amount, as the settlement amount appears to be within the recognized range of reasonableness given the claims and defenses asserted in this case, except as to the issues regarding PAGA penalties as noted above.

Plaintiff’s deductions from the gross settlement of $500,000 are proposed as follows:

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

 2.  Class Notice

The settlement agreement provides no claim form will be required of class members to participate in distributions.  Only those wishing to object or opt out must file notice with the settlement administrator. 

Objections or opt out notices are to be made within 45 days. The Court regularly approves notice periods of 60 days or longer.

The class notice period is therefore not approved.

With respect to the content of the Notice, the Court finds the Class Notice to be reasonable.  It clearly provides to the class member an estimate of the settlement share the employee is to receive and provides adequate instructions for any class member to opt out of the settlement or to submit an objection.

3.  Enhancement Awards to Class Representatives

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

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

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

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

4. Attorneys’ Fees and Costs

Attorneys’ fees of 33% of the gross settlement fund of $500,000 or $166,665 and costs not to exceed $10,150 are sought by Plaintiffs’ counsel.

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

Here, counsel indicates that the firm has spent 125.70 hours on this case at a rate of $775 plus 317 hours by paralegals at a rate of $175, resulting in a total lodestar of $152,892.50, resulting in a lodestar multiplier of 1.1 to approve the fees requested (Declaration of Martinez ¶10.) The fees are approved as requested.

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

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

5.  Claims Administrator

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

6. Unclaimed Settlement Proceeds

The Court preliminarily approves the distribution of unclaimed settlement proceeds to Central Valley Christian School.

As to this recipient, the Court notes Code of Civil Procedure section 384 states:

“(a)…It is the policy of the State of California to ensure that the unpaid cash residue and unclaimed or abandoned funds in class action litigation are distributed, to the fullest extent possible, in a manner designed either to further the purposes of the underlying class action or causes of action, or to promote justice for all Californians. The Legislature finds that the use of funds for these purposes is in the public interest, is a proper use of the funds, and is consistent with essential public and governmental purposes.”

“(b)… After the report is received, the court shall amend the judgment to direct the defendant to pay the sum of the unpaid residue or unclaimed or abandoned class member funds, plus any interest that has accrued thereon, to nonprofit organizations or foundations to support projects that will benefit the class or similarly situated persons, or that promote the law consistent with the objectives and purposes of the underlying cause of action, to child advocacy programs, or to nonprofit organizations providing civil legal services to the indigent.”

The Court requires further information as to compliance with subsection (b) as to the cy pres recipient in this matter.

7. Release

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

8. LWDA Notice

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

9. Class Certification

Code of Civil Procedure section 382 permits certification “when the question is of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court.”  (Code Civ. Proc. § 382.)  The plaintiff bears the burden of demonstrating that class certification under section 382 is proper.  (See City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 460.)  To do so, “[t]he party advocating class treatment must demonstrate the existence of an ascertainable and sufficiently numerous class, a well-defined community of interest, and substantial benefits from certification that render proceeding as a class superior to the alternatives.”  (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1021.) 

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

Summary

Therefore, the Court continues this matter to January 26, 2026, 8:30 am, Dept. 7 and orders a further supplemental declaration as to the required 60 day notice period,  existence of a PAGA cause of action or a stipulation to amend the complaint to include a PAGA cause of action as well as information as to compliance with Code of Civil Procedure section 384 as to the proposed cy pres recipient.

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