Tentative Rulings

The Tentative Rulings for Tuesday, January 6, 2026, are:

Re:                De Leon, Elizabeth vs. Visalia Citrus Packing Group Inc.

Case No.:  VCU308372

Date:          January 6, 2026

Time:           8:30 A.M. 

Dept.          2-The Honorable Bret D. Hillman

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

Tentative Ruling: To continue the motion to February 10, 2026, 8:30 am, Dept. 2 and orders a supplemental declaration as to the notice period, lodestar, and presently incurred costs.

1. Sufficiency of Amount of Settlement (Net Estimated: $134,100)

The gross settlement amount is $285,000. Plaintiff estimates approximately 80 proposed Class Members, providing an estimated average payout of $1,676.25  per member.

The Class Members consist of: “All current and former non-exempt, hourly-paid, non-exempt employees working for Defendants in California at any time from  April 25, 2020 through March 27, 2025.

Plaintiff primarily alleges the following violations: (1) Failure to Provide Meal Periods; (2) Failure to Provide Rest Periods; (3) Failure to Pay Overtime Wages; (4) Failure to Pay Minimum Wages; (5) Failure to Pay All Wages Due to Discharged Employees; (6) Failure to Maintain Records; (7) Failure to Furnish Accurate Wage Statements; (8) Failure to Indemnify Employees for Necessary Expenditures; (9) Unfair and Unlawful Business Practices; and (10) Penalties Under the Labor Code Private Attorneys General Act, as a Representative Action.

Plaintiff provides 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 and indicating that Defendant’s maximum potential liability for the class claims, including interest, was  approximately $1,089,725.38. (Declaration of Boxer ¶16.) Further, that the maximum potential liability for civil penalties under PAGA was calculated to be approximately $11,805,553.10. (Declaration of Boxer ¶17.)

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. (Declaration of Boxer ¶¶18-23.)

The total estimated potential victory, after discounting the estimates above,  was $1,096,153.84 and therefore the gross settlement sum is approximately 26% of this estimate. (Declaration of Boxer ¶23.)

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 $285,000 are proposed as follows:

Proposed Attorney Fees (33.3%):	$92,400
Proposed Attorney Costs (up to):	$25,000
Proposed Enhancement Payment to Plaintiff :	$7,500
Proposed Settlement Administrator Costs	$6,000
Proposed PAGA Payment	$20,000
Proposed Net Settlement Amount	$134,100

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 noy 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 Award to Class Representative

The court preliminarily approves Plaintiff Elizabeth De Leon as Class Representative for settlement purposes. The proposed enhancement award to Plaintiff is $7,500.

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, including any reputational risk undertaken.

The Court, therefore, will approve the enhancement award of $5,000.

4. Attorneys’ Fees and Costs

Attorneys’ fees of 33.3% of the gross settlement fund of $285,000 or $92,400 and costs not to exceed $25,000 are sought by Plaintiff’s counsel. Counsel has utilized the percentage of common fund methodology.

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 $25,000 without a declaration which states the costs currently expended. 

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

5.  Claims Administrator

The court preliminary approves Phoenix Class Action Administration Solutions 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 Jodey Lawrence, President of Business Development. The Court preliminarily approves administration costs not to exceed $6,000 based upon the Declaration of Lawrence and the itemized estimate. (Declaration of Lawrence – 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 indicates confirmation from the LWDA of receipt of proof of submission of the proposed settlement agreement. (Lab. Code, § 2699, subd. (l)(2).) (Declaration of Boxer – Exhibit 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 80 employees have been identified through Defendants’ employment records. Additionally, common questions of law and fact predominate within the individual causes of action based on class wide policies and procedures of Defendants. 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 the motion to February 10, 2026, 8:30 am, Dept. 2 and orders a supplemental declaration as to the notice period, lodestar, and presently incurred costs.

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:                 Montelongo, Esteban vs. Venida Packing Company

Case No.:   VCU302568

Date:           January 6, 2026

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

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

Tentative Ruling: To continue the motion to February 10, 2026, 8:30 am, Dept. 2 and order a supplemental declaration as to the lodestar and presently incurred costs.

1. Sufficiency of Amount of Settlement (Net Estimated: $134,650)

The gross settlement amount is $300,000. Plaintiff estimates approximately 412 proposed Class Members, providing an estimated average payout of $326.82 per member.

The Class Members consist of: all current or former non-exempt employees of Defendant who worked in California during the period from October 12, 2019, to September 19, 2025

Plaintiff, via the operative amended complaint, primarily alleges the following violations: (1) failed to pay minimum wages, (2) failed to pay overtime compensation, (3) failed to provide meal periods, (4) failed to authorize and permit rest breaks, (5) failed to indemnify necessary business expenses, (6) failed to timely pay final wages at termination, (7) failed to provide accurate itemized wage statements, (8) engaged in unfair business practices, and (9) violated civil penalty provisions recoverable under PAGA

Plaintiff provides 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 Moon ¶18-26.) 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. (Declaration of Moon ¶¶18-26.) The total estimated potential victory, after discounting the estimates, $371,369.40 and therefore the gross settlement sum is approximately 80.8% of this estimate. (Declaration of Moon ¶26.)

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 $300,000 are proposed as follows:

Proposed Attorney Fees (33.3%):	$100,000
Proposed Attorney Costs (up to):	$25,000
Proposed Enhancement Payment to Plaintiff :	$7,500
Proposed Settlement Administrator Costs	$7,850
Proposed PAGA Payment	$25,000
Proposed Net Settlement Amount	$134,650

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 60 days.

The Court regularly approves notice periods of 60 days or longer. The class notice period is 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 Award to Class Representative

The court preliminarily approves Plaintiff Esteban Montelongo as Class Representative for settlement purposes. The proposed enhancement award to Plaintiff is $7,500.

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, including any reputational risk undertaken.

The Court, therefore, will approve the enhancement award of $5,000.

4. Attorneys’ Fees and Costs

Attorneys’ fees of 33.3% of the gross settlement fund of $300,000 or $100,000 and costs not to exceed $25,000 are sought by Plaintiff’s counsel.

Counsel has utilized the percentage of common fund methodology.

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 $25,000 without a declaration which states the costs currently expended. 

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

5.  Claims Administrator

The Court preliminary approves ILYM Group, Inc as the claims administrator for this class action based on prior experience with this settlement administrator in other class actions litigated in this Court. The Court preliminarily approves administration costs not to exceed $7,850. (Declaration of Moon – Ex. 5.)

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 indicates confirmation from the LWDA of receipt of proof of submission of the proposed settlement agreement. (Lab. Code, § 2699, subd. (l)(2).) (Declaration of Moon ¶11 – Exhibit 3.)

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 412 employees have been identified through Defendants’ employment records. Additionally, common questions of law and fact predominate within the individual causes of action based on class wide policies and procedures of Defendants. 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 the motion to February 10, 2026, 8:30 am, Dept. 2 and orders a supplemental declaration as to the lodestar, and presently incurred costs.

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:                 Gill, Jai vs. Deluxe Foods II, Inc. et al

Case No.:   VCU319543

Date:           January 6, 2026

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     Plaintiff's Motion to Compel Compliance as to Defendant Deluxe

Tentative Ruling: To grant the motion and order production no later than thirty  (30) days from the date of this hearing; to impose sanctions of $350, jointly and severally against Defendant Deluxe and its counsel of record, due no later than thirty  (30) days from the date of this hearing.

Facts

In this breach of contract, open account, foreclosure mechanic’s lien and action for mechanic’s lien release bond, Plaintiff, on May 27, 2025, served a first set of requests for production of documents on Defendant Deluxe Foods II, Inc. on May 27, 2025.

Defendant failed to respond and Plaintiff sent a letter on July 11, 2025, seeking responds.

On August 25, 2025, Defendant Deluxe served written responses, with objections and without verification. On September 12, 2025, verification was provided.

However, as no documents had been produced, Plaintiff reached out on September 17, 2025 seeking production of the documents and questioning the validity of the objections.

On September 26, 2025, counsel for Defendant Deluxe responded, explaining the objections and stating documents could be produced the first week of October 2025. That same day, Plaintiff’s counsel responded, seeking  production of the documents.

On November 18, 2025, Plaintiff filed this motion, having received no production of documents.

Plaintiff seeks to compel compliance as to the production of documents and for sanctions in the amount of $3,150.

In opposition, Defendants state the responses were verified, that documents will be produced as to some requests and otherwise stands by the objections as to the remaining requests. Defendant further argues the motion is procedurally defective because it fails to include a separate statement.

Authority and Analysis

As an initial matter, the Court notes this is not a motion to compel further responses under Code of Civil Procedure section 2031.300, but rather a motion to compel compliance under section 2031.320.

 “If a party filing a response to a demand for inspection, copying, testing, or sampling under Sections 2031.210, 2031.220, 2031.230, 2031.240, and 2031.280 thereafter fails to permit the inspection, copying, testing, or sampling in accordance with that party’s statement of compliance, the demanding party may move for an order compelling compliance.”  (Code Civ. Proc., § 2031.320, subd. (a).) Further, there is no fixed time limit on this motion and no requirement to show any attempt to resolve the matter informally, as the only required showing is that the responding party failed to comply as agreed. (Standon Co., Inc. v. Superior Court (1990) 225 Cal.App.3d 898, 903.) Additionally, no separate statement is expressly required. (California Rule of Court, rule 3.1345(a).)

Here, some of the responses to the requests indicate Defendants will produce documents. No documents have been produced. Defendants indicate such documents will be produced prior to the hearing.

Therefore, as to any responses for which Defendant responded “Will be made available…” the Court grants the motion. Documents are to be produced are due no later than thirty  (30) days from the date of this hearing

Additionally, the Court overrules the objections to the discovery. Objections that are not timely asserted are waived under Code of Civil Procedure section 2031.300(a).

However, the Court notes this is not a motion to compel further responses and therefore, while the Court overrules the objections, this motion to compel compliance cannot compel further responses. This applies to Request Nos. 5, 6, 20, 21, 24, and 25 for which no such promise to produce has been made.

Sanctions

The court shall impose a monetary against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel compliance with a demand, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.  (Code Civ. Proc. § 2031.320(b).)   

Plaintiff requests a total of $3,150 consisting of 7 hours at the rate of $450 per hour.

The Court will award one hour at $350 for a total of $350 in sanctions. The Court notes no meet and confer process is required and no separate statement must be drafted. Additionally, the Court finds $350 per hour the reasonable local rate for actions in Tulare County.

Sanctions are imposed against Defendant Deluxe, and its counsel of record, jointly and severally and are due no later than thirty  (30) days from the date of this hearing.

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:                Lal, Chaman vs. Singh, Avtar

Case No.:   VCU321658

Date:           January 6, 2026

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     Motion to Appoint Appraiser

Tentative Ruling: To grant the motion and appoint Jake Hower as appraiser.

Facts

In this matter filed May 22, 2025, Plaintiff has filed a verified complaint for partition of the following: (1) commercial property at 814 E. Date Ave and (2) multi-family property located at 770-778 E. Date Ave. (Complaint ¶1.)

Plaintiff indicates that no agreement regarding the sale or buying out of Plaintiff’s interest could be reached and that Plaintiff, therefore, seeks partition of the properties. (Complaint ¶2.)

Plaintiff indicates 50% ownership in the properties as tenants in common. (Complaint ¶¶4, 5.)

On December 1, 2025, Plaintiff filed this motion to appoint an appraiser to determine the fair market value of the properties pursuant to Partition of Real Property Act (“PRPA”), Code of Civil Procedure §§ 874.311, et seq..

Defendant has filed a non-opposition, seeking appointment of Jake Hower.

Authority and Analysis

The Partition of Real Property Act (PRPA) is codified at Code of Civil Procedure section 874.311, et seq.

Section 874.311 states, in part, "This act applies to real property held in tenancy in common where there is no agreement in a record binding all the cotenants which governs the partition of the property." (Code Civ. Proc., § 874.311(b).) Further, "[the PRPA] act applies to actions for partition of real property filed on or after January 1, 2023." (Code Civ. Proc., § 874.311(c).)

Here, the verified complaint was filed May 22, 2025, establishes that Plaintiff and Defendant hold the properties as 50/50 owners as tenants in common. Additionally, the verified complaint establishes no agreement binding the tenants in common.

As such, the PPRA appears to apply to this action.

In such cases, the Court shall determine the fair market value of the property by ordering an appraisal through the appointment of a disinterested real estate developer. (Code Civ. Proc. § 874.316, (a), (d).)

Here, the Court agrees that the parties have not agreed upon fair market value, have not otherwise agreed as a to a method of valuation, and therefore, the Court, in order to determine the fair market value, must appoint an appraiser.

Code of Civil Procedure section 874.316(d) specifically requires "a disinterested real estate appraiser licensed in the State of California."

Here, Plaintiff has submitted Keith Hopper, Jake Hower, and Michael Burger as proposed appraiser, noting that each appear on the California Bureau of Real Estate Appraisers website list of appraisers with a Certified General Appraiser (AG) license.

Defendant agrees that an appraiser should be appointed and agrees to Jake Hower from the list. Defendant agrees with the proposed order lodged with this Court. Therefore, the Court will grant the motion, appoint Jake However and sign the proposed order.  

Additionally, Plaintiff requests the Court set a hearing on valuation 60 days from the date of appointment of the appraiser for the hearing on valuation and providing notice to the parties of the value. The Court will do so pursuant to Code of Civil Procedure section 874.316(g) and sets the hearing for March 3, 2026, 8:30 am, Dept. 2.

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, Jerome vs. Ryder Transportation Solutions, LLC et al

Case No.:   VCU321969

Date:           January 6, 2026

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     Application for Admission Pro Hac Vice

Tentative Ruling: To grant the application of attorney Timothy R. Newton of Constangy, Brooks, Smith & Prophete, LLP to appear as counsel pro hac vice for Defendants in this action.

Facts and Analysis

The Court’s file indicates that timely and proper notice was given to all parties affected by attorney Newton’s application to appear pro hac vice for Defendants.

The Court finds that attorney Newton meets the statutory requirements under California Rule of Court 9.40(a) to submit applications to appear pro hac vice before this Court, and that the contents of this application of attorney Novak indicates that association with California counsel Erik B. von Zeipel of Constangy, Brooks, Smith & Prophete, LLP and as such meets the statutory requirements of California Rule of Court 9.40(c) and (d). The Court’s file for this matter further indicates that that the applicable fees that must be paid to the State Bar of California under Rule 9.40(e) to support the application for admission pro hac vice have been tendered to the State Bar.

The Court further notes that attorney Newton’s application meets the statutory requirements under California Rule of Court 9.40(d) for pro hac vice applications and that attorney Newton’s zero prior appearances before the courts in this state are not sufficiently numerous to warrant denial of the present application under California Rule of Court 9.40(b).

Based on the foregoing, the application of attorney Newton to appear as counsel pro hac vice for Defendants in this action is granted.

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:                Ramirez, Carlos Alberto vs. Ramirez, Ramon

Case No.:  VCU326099

Date:           January 6, 2026

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:      Demurrer

Tentative Ruling: To sustain the demurrer with leave to amend; Plaintiff shall have ten (10) days to file an amended complaint.

Facts

The unverified complaint in this matter begins with the second cause of action for quiet title, but fails to state the legal description of the three parcels of real property, does not allege the basis of the title Plaintiff claims, does not allege the adverse claims of Defendant, does not allege a date as of which a determination is sought, and does not include a prayer for the determination of the title of Plaintiff against adverse claims.

The complaint also contains a first cause of action for breach of oral contract, alleging that Defendant was to “hold title only of the properties” and that “It was the intent of the parties that transferring the titles was only for temporarily holding and would then revert to [Plaintiff] at a future date of [Plaintiff’s] choosing.”

Defendant demurrers to the complaint for failure to state facts sufficient to constitute a cause of action as to both causes of action.

No opposition appears to have been filed.

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.)

Breach of Contract

Civil Code section 1624 provides that certain enumerated “contracts are invalid, unless they, or some note or memorandum thereof, are in writing and subscribed by the party to be charged or by the party's agent.” Contracts for the sale of real property are included within the statute of frauds (Civil Code §1623(a)(3).)

Here, the contract alleged is oral and concerns the purchase of real property. There is no written note or memorandum subscribed by Defendants as to this contract.

The Court notes exceptions to the statute of frauds, however and will permit leave to amend as to such exceptions.

The Court notes it does not find the singular allegation that “During this time, Carlos was to continue to pay the mortgage, property taxes, and other impounds as the rightful and true owner of the properties” sufficient to allege an exception to the statute of frauds.

Quiet Title

A quiet title complaint must be verified pursuant to Code of Civil Procedure section 761.020.

The elements of a cause of action for quiet title are:  (i) a description of the property including both its legal description and its street address or common designation; (ii) the plaintiff’s title and the basis upon which it is asserted; (iii) the adverse claims as against which a determination is sought; (iv) the date as of which a determination is sought and, if other than the date the complaint is filed, a statement why the determination is sought as of that date; and (v) a prayer for determination of plaintiff’s title against the adverse claims.  (Cal. Civ. Proc. Code § 761.020.)

As noted above, the complaint is unverified, lacks the legal description of the property at issue, lacks a basis of the title Plaintiff claims, lacks allegations of the the adverse claims of Defendant, lacks an allegation as to the date as of which a determination is sought, and lacks a prayer for the determination of the title of Plaintiff against adverse claim.

As such, the Court sustains the demurrer on these grounds.

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.)

Plaintiff shall have ten (10) days to file an amended complaint.

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

Re:                RENFRO, MARGIE M vs. PRIME TOWING & TRANSPORT, INC, et al

Case No.:   PCU317211

Date:           January 6, 2026

Time:          8:30 A.M. 

Dept.          19-The Honorable Glade F. Roper

Motion:     Demurrer to Third Amended Complaint

Tentative Ruling: To overrule the demurrer as to fourth cause of action for negligence under Vehicle Code section 22651.07; to sustain the demurrer without leave to amend as to the remaining causes of action; to order Defendants to answer the operative third amended complaint no later than ten (10) days from the date of this hearing.

Facts

In the operative third amended complaint, Plaintiff Margie M Renfro, an individual dba Maria’s Market, alleges negligence, negligent misrepresentation,  negligence per se (containing a number of counts), conversion, opposition to lien sale, and fraud against Defendants Prime Towing and Transportation, Inc and Aivers Delatorre.

At the start, the Court notes a number of repeated paragraph numbers and paragraphs lacking numbers.

At issue appears to be a 2008 Great Dane 28 foot trailer VIN 1GRAA56158K295746 (“Vehicle” or “Trailer”) (TAC at p. 3, 4, 5.)

It is alleged the Trailer was purchased on May 2, 2024 from a company who filed bankruptcy. (TAC ¶13 at p. 10.) The amended complaint alleges that on May 3, 2024 CHP authorized the Trailer to be towed by Prime. (TAC 2:23-24, 3:2-24.) Plaintiff further indicates that Prime has possession of the Trailer, that Defendant Prime would not release items from the Trailer or the Trailer without a release from CHP, that Plaintiff initially attempted to retrieve the Trailer from Defendant Prime, including calling Defendant Prime’s owner, Defendant Delatorre, but the Trailer was not returned, access thereto was denied and a final bill was not provided. (TAC ¶¶6-9 at p. 13, ¶¶10-13 at p. 14.)

The Trailer was towed as “abandoned” and CHP noted it was towed for expired registration. (TAC ¶14, 15 at p. 11.)

The certificate of title, as noted in Exhibit 8 attached to the Second Amended Complaint and incorporated herein, indicates an issue date of June 5, 2024. (SAC – Ex. 8)

Plaintiff indicates further that Plaintiff contacted the DMV lien office, who indicated that “on October 4th, 2024 Prime Towing had done a lien and was the registered owner, but there was still time to reverse it.” (TAC ¶12 at p. 10.) Plaintiff alleges Defendants had Plaintiff’s contact information, but failed to provide notice, instead providing notice to the company that went bankrupt and that the “lien is reversed per code.” (TAC ¶12 at p. 10.)

In March 2025, Plaintiff’s representative was allowed to retrieve the king pin, and inspect the trailer, and found it severely damaged. (TAC p. 18:20-24)

Defendants demurrer to the third amended complaint as discussed below.

No timely opposition appears to have been filed.

On December 26, 2025, Plaintiff filed an opposition generally arguing the sufficiency of the complaint’s allegations,

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.)

Negligence

To establish a cause of action for negligence, plaintiff must plead and prove the following elements: Defendant owed a legal duty of care to plaintiff; defendant breached the duty (negligent act or omission); plaintiff was injured as a result (proximate or legal cause); and damages. (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.)

"A legal duty 'may be imposed by law, be assumed by the defendant, or exist by virtue of a special relationship."' (Gu v. BMW of North America, LLC (2005) 132 Cal. App. 4th 195, 204, citations omitted.)

Here, the Court agrees that as to the first cause of action for negligence, as on prior versions of the complaint,  no duty has been strictly identified which would permit the Court to find a cause of action pled under negligence. Plaintiff states "The tow company had a legal obligation to follow all state and local laws regarding towing and lien sales" and that the duty was "controlled by general principles of Notice of the Lien Sale specifically to follow due process, to protect the owners' rights or their property in interest." (TAC 14:6-17.)

This does not identify a law or special relationship for which the Court can find a duty has been pled.

Therefore, as to negligence, the Court sustains the demurrer.

Negligent Misrepresentation

The elements of negligent misrepresentation are "(1) the misrepresentation of a past or existing material fact, (2) without reasonable ground for believing it to be true, (3) with intent to induce another's reliance on the fact misrepresented, (4) justifiable reliance on the misrepresentation, and (5) resulting damage. [Citation.]" (National Union Fire Insurance Co. of Pittsburgh, PA v. Cambridge Integrated Services Group, Inc. (2009) 171 Cal.App.4th 35, 50.)

Further, "a complaint for negligent misrepresentation in ... should be pled with the same specificity required ... for fraud." (Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 184.) The particularity requirement for fraud requires the pleading of facts showing how, when, where, to whom, and by what means the representations were made. (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73.) This is to provide the defendant with notice and to give the court enough information to assess whether there is a foundation for the charge of fraud. (Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 216.) The requirement of specificity in a fraud action against a corporation requires the plaintiff to allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written. (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157.)

The Court agrees that Plaintiff has failed to allege the claim with the requisite specificity. For example, it is not sufficient to plead “The defendant made a representation that the only party of interest was USF in its initial lien documents, knowing that plaintiff was a party of interest” where, for instance, there are two Defendants named in this matter. The Court agrees that these allegations lack specificity as to the how, when, where, to whom and by what means a representation was made to Plaintiff. Additionally, incorporation of “the allegations set forth above in paragraph X through x, as though set forth herein” does not adequately resolve this specificity issue.

Therefore, the Court sustains the demurrer on this cause of action.

Negligence Per Se

To start, “…the 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.)

Vehicle Code section 10650

Here, Plaintiff alleges violation of Vehicle Code section 10650, which states:

(a) Every operator of a towing service and every keeper of a garage or trailer park shall keep a written record of every vehicle of a type subject to registration under this code stored for a period longer than 12 hours.

(b) The record shall contain the name and address of the person storing the vehicle or requesting the towing, the names of the owner and driver of the vehicle, if ascertainable, and a brief description of the vehicle including the name or make, the motor or other number of the vehicle, the nature of any damage to the vehicle, and the license number and registration number shown by the license plates or registration card, if either of the latter is attached to the vehicle in a clearly discernible place.

(c) All records shall be kept for one year from the commencement of storage and shall be open to inspection by any peace officer.

(d) Upon termination of the storage, a statement shall be added to the record as to the disposition of the vehicle, including the name and address of the person to whom the vehicle was released and the date of such release.

Here, the Court interprets this section as requiring records for up to one year and opening such records to inspection by law enforcement and that in any event, it is alleged that Defendants did create some record, but did so using incorrect information. The Court notes that the operative amended complaint alleges ownership by Plaintiff on May 2, 2024 and that the tow occurred May 3, 2024. In any event, the Court sustains the demurrer on the basis that this section does not establish a duty owed to Plaintiff and that Plaintiff otherwise fails to allege breach of the duty.

Vehicle Code section 22651.07

Under this section, Plaintiff alleges that Defendants failed to provide a copy of the towing and storage fees and access notice to any owner or operator of a stored vehicle (Vehicle Code section 22651.07(a)(2)), failed to provide an itemized invoice to the vehicle owner or their agent (Vehicle Code section 22651.07(b)), failed to permit a vehicle owner or their agent to receive personal property, inspect the vehicle without paying a fee, and request a copy of the fee and access notice (Vehicle Code section 22651.07(c)(1), (3), (4)).

Defendants argue, and the Court agrees, that Defendants did not violate this section based on “trips” prior to Plaintiff establishing record ownership.

Defendants cite County of Los Angeles v. Superior Court (2015) 242 Cal.App.4th 475, 486:

"Towing companies tow disabled and abandoned vehicles from public highways, and when the vehicles are impounded, the towing company obtains a lien on the vehicle for the towing, storage, and labor costs incurred. (Civ. Code, § 3068.1, subd. (a)(l).) Before the vehicle may be sold to satisfy this lien, the towing company (as lienholder) must provide notice to its registered and legal owner by certified mail. (Civ. Code,§§ 3071, subd. (b)(2), 3072, subd. (b); Veh. Code, § 22851.8, subd. (b ).) Therefore, towing companies as lienholders are entitled to addresses from the DMV to perform their statutory duty to provide this notice to owners of impounded or stored vehicles."

As noted above, Exhibit 8 attached to the Second Amended Complaint and incorporated herein, indicates an issue date of June 5, 2024 as to the certificate of title. (SAC – Ex. 8) Thus, the allegations as to the visit in May 2024 and a second visit, at an unknown time, would not, given the lack of registered ownership in Plaintiff’s name, violate this statute.

Plaintiff alleges a third encounter in March 2025 wherein Plaintiff’s agent was permitted to retrieve personal property and inspect the Trailer. (TAC 18:21-25.)

However, the operative amended complaint alleges further that in March 2025, Plaintiff’s representative “requested the bill under this code and was denied.” At that point in time, as noted above, the certificate of title reflected ownership by Plaintiff.

Therefore, the Court finds Plaintiff has alleged a duty, breach thereof, and that the breach has proximately caused a violation of this section as to civil penalties under Vehicle Code section 22651.07(k).

As such, the Court overrules the demurrer to this cause of action as to the allegation that in March 2025, Plaintiff’s agent requested a copy of the “Towing and Storage Fees and Access Notice” under Vehicle Code section 22651.07(c)(4).

Vehicle Code section 22853(c)

Vehicle Code section 22853(c) states:

(c) Whenever an officer or employee or private party removing a vehicle from private property for storage under this chapter does not know and is not able to ascertain the name of the owner or for any other reason is unable to give the notice to the owner as required by Section 22852 and if the vehicle is not returned to the owner within a period of 120 hours, the officer or employee or private party shall immediately send, or cause to be sent, a written report of the removal by mail to the Department of Justice at Sacramento and shall file a copy of the notice with the proprietor of any public garage in which the vehicle may be stored. The report shall be made on a form furnished by that department and shall include a complete description of the vehicle, the date, time, and place from which the vehicle was removed, the amount of mileage on the vehicle at the time of removal, the grounds for removal, and the name of the garage or place where the vehicle is stored.”

Here, Plaintiff incorporates "paragraphs 1 through 41, as set forth in full herein" but there are no such paragraphs, there are multiple instances of the same paragraph number and the Court finds Plaintiff has failed to state a cause of action. Therefore, the Court sustains the demurrer to this cause of action. 

Civil Code section 3071

Civil Code section 3071 provides, in pertinent part:

"(a) A lienholder shall apply to the department for the issuance of an authorization to conduct a lien sale pursuant to this section for any vehicle with a value determined to be over four thousand dollars ($4,000).…

(b) Upon receipt of an application made pursuant to subdivision (a), the department shall do all of the following:

(1) Notify the vehicle registry agency of a foreign state of the pending lien sale, if the vehicle bears indicia of registration in that state.

(2) By certified mail, send a notice, a copy of the application, and a return envelope preaddressed to the department to the registered and legal owners at their addresses of record with the department, and to any other person whose name and address is listed in the application.…

(4) If the Declaration of Opposition form is signed and returned to the department, the lienholder shall be allowed to sell the vehicle only if he or she obtains a court judgment, if he or she obtains a subsequent release from the declarant or if the declarant, cannot be served as described in subdivision (e).…

(f) Upon receipt of authorization to conduct the lien sale from the department, the lienholder shall immediately do all of the following:

(1) At least five days, but not more than 20 days, prior to the lien sale, not counting the day of the sale, give notice of the sale by advertising once in a newspaper of general circulation published in the county in which the vehicle is located. If there is no newspaper published in the county, notice shall be given by posting a Notice of Sale form in three of the most public places in the town in which the vehicle is located and at the place where the vehicle is to be sold for 10 consecutive days prior to and including the day of the sale.

(2) Send a Notice of Pending Lien Sale form 20 days prior to the sale but not counting the day of sale, by certified mail with return receipt requested, to each of the following:

(A) The registered and legal owners of the vehicle, if registered in this state.

(B) All persons known to have an interest in the vehicle.

(C) The department.…

(h) Following the sale of a vehicle, the person who conducts the sale shall do both of the following:

(1) Remove and destroy the vehicle's license plates.

(2) Within five days of the sale, submit a completed "Notice of Release of Liability" form to the Department of Motor Vehicles.

(i) The Department of Motor Vehicles shall retain all submitted forms described in paragraph (2) of subdivision (h) for two years.

(j) No lien sale shall be undertaken pursuant to this section unless the vehicle has been available for inspection at a location easily accessible to the public for at least one hour before the sale and is at the place of sale at the time and date specified on the notice of sale. Sealed bids shall not be accepted. The lienholder shall conduct the sale in a commercially reasonable manner.

(k) Within 10 days after the sale of any vehicle pursuant to this section, the legal or registered owner may redeem the vehicle upon the payment of the amount of the sale, all costs and expenses of the sale, together with interest on the sum at the rate of 12 percent per annum from the due date thereof or the date when that sum was advanced until the repayment. If the vehicle is not redeemed, all lien sale documents required by the department shall then be completed and delivered to the buyer.

(l) Any lien sale pursuant to this section shall be void if the lienholder does not comply with this chapter. Any lien for fees or storage charges for parking and storage of a motor vehicle shall be subject to Section 10652.5 of the Vehicle Code”

This section does not establish a legal duty owed to Plaintiff for purposes of a negligence cause of action. Rather, it appears to operate to either validate or void a lien sale depending upon the performance or excuse of the requirements of the section. No lien sale is alleged to have occurred.

The Court sustains the demurrer to this cause of action.

14^th Amendment and Article 1, Section 13

Here, both California’s Constitution and the United States Constitution generally require some state action. Here, the operative amended complaint names only private individuals. (Dwight R. v. Christy B. (2013) 212 Cal.App.4th 697, 714; Julian v. Mission Community Hospital (2017) 11 Cal.App.5th 360, 402.)

Therefore, the Court sustains the demurrer. 

Civil Code 3070

Section 3070 states, in relevant part:

(a) Whenever the possessory lien upon any vehicle is lost through trick, fraud, or device, the repossession of the vehicle by the lienholder revives the possessory lien but any lien so revived is subordinate to any right, title, or interest of any person under any sale, transfer, encumbrance, lien, or other interest acquired or secured in good faith and for value between the time of the loss of possession and the time of repossession.

(b) It is a misdemeanor for any person to obtain possession of any vehicle or any part thereof subject to a lien pursuant to this chapter by trick, fraud, or device.

(c) It is a misdemeanor for any person claiming a lien on a vehicle to knowingly violate this chapter.

Here, Plaintiff appears to misinterpret subsection (a) and (b) as to the loss of a lienholder’s lien via trick, fraud or device. A violation of subsections (b) involves recovery of the vehicle via trick, fraud or device causing the loss of the lienholders lien. Additionally, while subsection (c) would apply to the alleged conduct, it creates liability for a misdemeanor as opposed to civil liability.

Therefore, the Court sustains the demurrer.

Conversion

“ ‘Conversion is generally described as the wrongful exercise of dominion over the personal property of another. [Citation.] The basic elements of the tort are (1) the plaintiff's ownership or right to possession of personal property; (2) the defendant's disposition of the property in a manner that is inconsistent with the plaintiff's property rights; and (3) resulting damages. [Citation.]' (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119.) 'Conversion is a strict liability tort. The foundation of the action rests neither in the knowledge nor the intent of the defendant. Instead, the tort consists in the breach of an absolute duty; the act of conversion itself is tortious. Therefore, questions of the defendant's good faith, lack of knowledge, and motive are ordinarily immaterial.' (Burlesci v. Petersen (1998) 68 Cal.App.4th 1062, 1066.)" (Regent Alliance Ltd. v. Rabizadeh (2014) 231 Cal.App.4th 1177, 1181.)

Here, the operative amended complaint alleges

“Defendant Prime Towing, Aivers Delatorre, and Does 1-5 wrongfully exercised control over the trailer taken by trailer, depriving them of its use, when they towed it on May 3 , 2024, placed it at their tow storage area, failed to provide notice to Plaintiff, substantially interfered with them getting the trailer back by not offering a solutions; no physical bill; they knew it belonged to plaintiff and they knowingly went forward with notice to the prior registered owner without noticing them, which allowed them to keep possession of the trailer; to wit plaintiff did not consent; and this conduct was a substantial factor in causing plaintiffs harm. Further they took the trailer and did not care for it, they put it in a place of danger, which makes it unusable today for its purpose as the tires are flat and you cannot have all the items bent on the trailer. It wasn’t like that prior to tow.” (TAC at p. 25.)

Here, the Court finds sufficient allegations as to the right of possession of the Trailer, and that the towing of the Trailer is inconsistent with Plaintiff’s right to possession. However, as noted by Defendants, damages under a conversion cause of action are calculable as to loss of use of the property as opposed to any physical damage suffered. (Collin v. American Empire Ins. Co. (1994) 21 Cal.App.4th 787, 817-818.)

As with the prior complaints, Plaintiff continues to allege “harm” generally. There is no integration of prior paragraphs into this cause of action regarding other allegations.

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

Opposition to Lien Sale

It is unclear what common law or statutory basis is alleged other than what is referenced above in the “counts” under negligence per se. The Court finds this cause of action duplicative and sustains the demurrer.

Fraud

"The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or 'scienter'); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage." (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) The specificity requirements noted above apply to fraud causes of action and, for the same reasons as noted above, the Court sustains the demurrer to this cause of action.

Without Leave to Amend

The Court has overruled the demurrer as to the fourth cause of action for negligence under Vehicle Code section 22651.07. The Court has sustained the demurrer the remaining causes of action and will do so without 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.) The Court’s review of the prior complaints indicates that many of the allegations and issued set forth in this ruling have existed from the filing of the initial complaint. Therefore, the Court finds Plaintiff has failed to demonstrate a reasonable possibility of amendment to cure these defects or otherwise allege a cause of action beyond that for negligence under Vehicle Code section 22651.07.

Therefore, the Court overrules the demurrer as to fourth cause of action for negligence under Vehicle Code section 22651.07 and sustains the demurrer without leave to amend as to the remaining causes of action.  Defendants are ordered to answer the operative third amended complaint no later than ten (10) days from the date of this hearing.

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:                 Mackay, Phuong Le vs. Tulare County Federal Credit Union, et al

Case No.:   PCU328395

Date:           January 6, 2026

Time:           1:30 P.M. 

Dept.           19-The Honorable Glade F. Roper

Motion:      Motion for Preliminary Injunction / OSC

Tentative Ruling: To deny the motion

Background Facts

As an initial matter, the Court notes it has not considered the December 31, 2025 filing of an amended motion and related documents by Plaintiffs. The Court’s minute order of December 17, 2025 reflects that any amended motion was due to be filed no later than December 30, 2025. As such, this ruling relates to the December 11, 2025 filing.

The verified complaint alleges causes of action for breach of contract, breach of implied covenant, wrongful foreclosure, Civil Code section 2943, unfair competition, declaratory relief and Civil Code section 2924.13.

The complaint names Tulare County Federal Credit Union and TD Processing Service, Inc. as Defendants.

The complaint was initially filed in Fresno County, but transferred here on November 21, 2025.

Plaintiffs, on October 17, 2025 and in Fresno County, filed an “Ex-Parte and Application for: an Order to Show Cause; a Temporary Restraining Order RE Preliminary and Permanent injunction and quiet title relief.”

The court in Fresno County, on November 14, 2025 “extend[ed] the TRO to 12/11/2025…”

On December 11, 2025, Plaintiffs filed this ex parte application to adopt and extend/re-issue the TRO via anew OSC hearing, to reset the OSC re: preliminary injunction for the earliest available date, maintain the status quo by halting any foreclosure sale, compel Defendants to endorse checks and “determine whether a violation has occurred…: Issue an Order to Show Cause directing Defendant to appear and explain why their conduct does not violate the stay/TRO; and After hearing, determine whether the Court’s order has been violated and, if so, impose such remedies or sanctions as the Court deems just, including orders compelling compliance and restraining further violations.”

Plaintiffs expressly seek the issuance of the TRO/preliminary injunction based on breach of implied covenant, Civil Code § 2943, and Civil Code § 2924.13.

At the ex parte hearing re: preliminary injunction and TRO, the Court declined to extend the TRO, noted the foreclosure sale voluntarily postponed to January  for January  and set this motion for the issuance of a preliminary injunction for this date.

Facts in Support of Preliminary Injunction

The Court notes that the complaint is verified.

The declaration in support thereof states that Plaintiffs reside at 980 Laurel Avenue, Lindsay, CA 93247, where the junior lienholder is Defendant Tulare County Federal Credit Union (TCFCU) and the trustee is TD Processing Service, Inc. (Declaration ¶1.) Plaintiff indicates that in March 2023, the residence was damaged by a flood, that “NFIP issued loss-draft checks requiring lienholder endorsement for repairs. The USDA (first lien) requires a restricted repair escrow account for the funds to be deposited into, but TCFCU repeatedly refused to endorse for claimed technical reasons at first then retaliation for non-payment later, causing repeated check expirations, including the final one.” (Declaration ¶2.)

Further, that

“Defendant TCFCU agreed to a five-month period moratorium from March to August 2023 after the flood. Plaintiffs were promised to be given a copy of the moratorium agreement but never actually received it. Later on, during communication via email on 09/13/2024, Damian Alvarez from TCFCU claimed the Credit Union only granted a three-month payment extension from May to August 2023, not five-month as we had agreed and noted. During and after that moratorium, we made multiple (approximately 10-month worth of non consecutive payments) but TCFCU failed to properly apply them. We requested an amortization schedule and payment history verbally over phone calls, during home visits without any notice given by Collection Manager Damian Alvarez, and in writing, but did not receive the statutory information.” (Declaration ¶3.)

No opposition appears to have been filed.

Authority and Analysis

“The granting or denial of a preliminary injunction does not amount to an adjudication of the ultimate rights in controversy. It merely determines that the court, balancing the respective equities of the parties, concludes that, pending a trial on the merits, the defendant should or that he should not be restrained from exercising the right claimed by him.” (Cont’l Baking Co. v. Katz (1968) 68 Cal.2d 512, 528.) “The general purpose of such an injunction is the preservation of the status quo until a final determination of the merits of the action.” (Id.) “Thus, the court examines all of the material before it in order to consider ‘whether a greater injury will result to the defendant from granting the injunction than to the plaintiff from refusing it.’” (Id.)

An injunction is permitted under Code of Civil Procedure section 526 where, for example, it appears by the complaint that Plaintiff is entitled to the relief demanded and the relief, or any part, where the commission or continuance of some act would produce great or irreparable injury. (Code Civ. Proc. § 526(a)(2).) Injunctive relief is available where pecuniary compensation is inadequate and where it is “extremely difficult” to ascertain adequate compensation. (Code Civ. Proc § 526(a)(4)(5).)

The burden is on plaintiffs to show all elements necessary to support issuance of the injunction.  (O’Connell v. Superior Court (2006) 141 Cal.App.4th 1452, 1481.)  “A superior court must evaluate two interrelated factors when ruling on a request for a preliminary injunction: (1) the likelihood that the plaintiff will prevail on the merits at trial and (2) the interim harm that the plaintiff would be likely to sustain if the injunction were denied as compared to the harm the defendant would be likely to suffer if the preliminary injunction were issued.  (Smith v. Adventist Health System/West (2010) 182 Cal.App.4th 729, 749.)  The Court employs a more probable than not standard.  (Robbins v. Superior Court (1985) 38 Cal.3d 199, 206.)

“[T]he general rule is that an injunction is prohibitory if it requires a person to refrain from a particular act and mandatory if it compels performance of an affirmative act that changes the position of the parties.” (Davenport v. Blue Cross of California (1997) 52 Cal.App.4th 435, 446.) “An injunction designed to preserve the status quo as between the parties and to restrain illegal conduct is prohibitory, not mandatory, and does not require heightened appellate scrutiny.” (Oiye v. Fox (2012) 211 Cal.App.4th 1036, 1048.) “The granting of a mandatory injunction pending trial is not permitted except in extreme cases where the right thereto is clearly established.” (Teachers Ins. & Annuity Assn. v. Furlotti (1999) 70 Cal.App.4th 1487, 1493.)

As noted above, Plaintiffs motion seeks entry of a  preliminary injunction on three theories: breach of implied covenant, Civil Code § 2943, and Civil Code § 2924.13.

Breach of Implied Covenant

The elements of a claim for breach of the covenant of good faith and fair dealing are: (1) plaintiff and defendant entered into a contract; (2) plaintiff's performance or excuse for non-performance; (3) that all conditions required for defendant's performance have occurred; (4) defendant's unfair interference with plaintiffs' right to receive the benefits of the contract; (5) causation; (6) damages. (CACI 325.) "The covenant of good faith and fair dealing, implied by law in every contract, exists merely to prevent one contracting party from unfairly frustrating the other party's right to receive the benefits of the agreement actually made." (Guz v. Bechtel Nat. Inc. (2000) 24 Cal. 4th 317, 349.)

As to this cause of action, the complaint states “TCFCU exercised contractual discretion over loss-draft funds and payment application unfairly and in bad faith, frustrating Plaintiffs’ right to receive the contract’s benefits.” (Complaint ¶14.)

The underlying agreement between the parties is the note secured by real property  entered into on May 12, 2022 whereby Plaintiffs borrowed $60,000.00 and which is secured by a Deed of Trust and Request for Notice dated May 12, 2022. It is undisputed that Defendant lent the funds and that Plaintiffs have failed to make some of the payments due. Plaintiffs allege there was a short moratorium period provided, but that Defendants provided notice of default and have scheduled a foreclosure sale. Plaintiffs allege some interference with the processing of a joint check to repair the property after the flood damage. However, the Court lacks an explanation by Plaintiffs as to any alleged unfair interference with the use of those funds in violation of the underlying agreement.

The Court notes no evidence of an attempt to cure the default. The moratorium was for a limited period of time (whether three or five months.) More than five months, the maximum alleged moratorium period, have passed. Plaintiffs have failed to demonstrate any attempt to tender the default amount for an amount less the disputed two months of the moratorium period (or tendered any amount to cure at all.)

Therefore, the Court finds Plaintiffs have not demonstrated all elements of this cause of action sufficient to establish a probable likelihood of prevailing.

Civil Code § 2943,

Here, the complaint pleads:

“Plaintiffs made written demands for a beneficiary statement and transaction-level payment history. TCFCU refused and/or failed to provide the required information, violating § 2943 and causing harm.” (Complaint ¶16.)

Additionally, that “Plaintiffs repeatedly requested an amortization schedule and full accounting (including emails dated June 27, 2024 and August 13, 2024). TCFCU responded inconsistently (including August 15 and September 13, 2024)” (Complaint ¶9.)

Civil Code section 2943(b) appears to require, upon demand, the preparation and delivery of a “complete copy of the note or other evidence of indebtedness with any modification thereto, and a beneficiary statement” (Civ. Code § 2943(b)(1).)

Here, lacking an opposition, there appears to be a showing of a violation of this section based on the verified complaint, the date of the demand and the statement that no beneficiary statement was provided. Additionally, the email correspondence from Defendant indicates an inability to provide the beneficiary statement due to the delinquency of the loan. (Exhibit 3.)

However, a violation of this section appears to provide for monetary damages of $300 per violation under subsection (e)(4) and therefore there is no showing of great or irreparable injury or that pecuniary compensation is not available.

As such, the Court is not inclined to grant the injunction.

Civil Code § 2924.13

Here, the complaint pleads:

“19. Civil Code § 2924.3 applies to nonjudicial foreclosure of subordinate mortgages/deeds of trust and requires the foreclosing party to record with any Notice of Default a signed certification, under penalty of perjury, stating either that no ‘unlawful practice’ (as defined) occurred or identifying each such practice; and to mail the certification and the statutory notice to the borrower by certified mail when serving the NOD.

20. On information and belief, Defendants failed to comply with § 2924.13 in connection with the Notice of Default recorded on or about June 23, 2025, including by failing to record the required certification with the NOD and/or failing to mail the certification and statutory notice to Plaintiffs by certified mail. Alternatively, any certification was materially deficient and/or misrepresented the occurrence of one or more ‘unlawful practices.” (Complaint ¶19, 20.)

Civil Code section 2924.13 defines unlawful practices as follows:

(b) The following conduct constitutes an unlawful practice in connection with a subordinate mortgage:

(1) The mortgage servicer did not provide the borrower with any written communication regarding the loan secured by the mortgage for at least three years.

(2) The mortgage servicer failed to provide a transfer of loan servicing notice to the borrower when required to provide that notice by law, including, but not limited to, the federal Real Estate Settlement Procedures Act, as amended (12 U.S.C. Sec. 2601 et seq.), and investor or guarantor requirements.

(3) The mortgage servicer failed to provide a transfer of loan ownership notice to the borrower when required to provide that notice by law, including, but not limited to, the federal Truth in Lending Act, as amended (15 U.S.C. 1601, et seq.), and investor or guarantor requirements.

(4) The mortgage servicer conducted or threatened to conduct a foreclosure sale after providing a form to the borrower indicating that the debt had been written off or discharged, including, but not limited to, an Internal Revenue Service Form 1099.

(5) The mortgage servicer conducted or threatened to conduct a foreclosure sale after the applicable statute of limitations expired.

(6) The mortgage servicer failed to provide a periodic account statement to the borrower when required to provide that statement by law, including, but not limited to, the federal Truth in Lending Act, as amended (15 U.S.C. 1601, et seq.), and investor or guarantor requirements.”

Further, that

(c) A mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent shall not conduct or threaten to conduct a nonjudicial foreclosure until the mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent does both of the following:

(1) Simultaneously with the recording of a notice of default, records or causes to be recorded, in the office of the county recorder of the county that the encumbered property is located, a certification under penalty of perjury that either:

(A) The mortgage servicer did not engage in an unlawful practice as described in subdivision (b).

(B) The mortgage servicer lists all instances when it committed an unlawful practice as described in subdivision (b).

(2) Simultaneously with the service of a recorded notice of default, sends both of the following documents to the borrower by United States certified mail with return receipt requested to the last known mailing address of the borrower:

(A) A notice providing that if the borrower believes the mortgage servicer engaged in an unlawful practice described in subdivision (b) or misrepresented its compliance history, the borrower may petition the court for relief before the foreclosure sale.

(B) A copy of the certification recorded pursuant to paragraph (1).” (Civ. Code 2924.13(c).)

The issue here is that the verified complaint alleges a violation of this on information and belief, and the declaration in support of this motion does not discuss either the non-receipt of the certification or some deficiency thereof.

Therefore, the Court cannot find a probable validity as to this cause of action.

Therefore, 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.

Examiner Notes for Probate Matters Calendared

• Visalia Division 
• South County Justice Center Division