Tentative Rulings

The Tentative Rulings for Tuesday, December 23, 2025, are:

Re:                 Discover Bank vs. Pozar, Eric

Case No.:   VCL302424

Date:           December 23, 2025

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     Motion to Enforce Stipulation as Judgment

Tentative Ruling: To grant the motion

Facts

On October 9, 2023, Plaintiff filed this action against Defendant for account stated and money lent in the amount of $5,598.70.

Defendant was served with the summons and complaint, and filed an answer on November 27, 2023.

On March 12, 2024, the parties entered into a stipulation to resolve this matter on the following terms:

Defendant shall pay Plaintiff a total settlement amount of $4,495.76 by 11/28/2025, with monthly payments of $187.32 paid on or before 12/28/2023, and continuing each month thereafter through 10/28/2025, and a final payment of $187.40 on or before 11/28/2025.

It was further stipulated that if payments were not made pursuant to the schedule set forth above, Defendant would be in default. Additionally, that Defendant agreed Plaintiff would be entitled to judgment in the amount alleged in the complaint in the event of default.

The stipulation indicates that the Court shall retain jurisdiction under Code of Civil Procedure section 664.6. However, this Court notes this matter has not been dismissed.

Plaintiff indicates Defendant failed to make the December 28, 2024 payment and that payments for January 2025, February 2025 and March 2025 were less than the amount stated above. Therefore, Defendant has made total payments of $2,757.29.

Authority and Analysis

Section 664.6 (a) states: 

“If parties to pending litigation stipulate, in a writing signed by the parties outside of the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.”

“The court’s retention of jurisdiction under section 664.6 includes jurisdiction over both the parties and the case itself, that is, both personal and subject matter jurisdiction.” (Lofton v. Wells Fargo Home Mortgage (2014) 230 Cal.App.4^th 1050, 1061.) “Section 664.6 permits the trial court judge to enter judgment on a settlement agreement without the need for a new lawsuit.” (Osumi v. Sutton (2007) 151 Cal.App.4^th 1355, 1360.)

As indicated above, the Court has not lost jurisdiction over this matter.

Defendant appears to have breached the settlement, based upon the declaration of Plaintiff’s counsel and, the Court, having no opposition, grants the motion.

The Court will enter judgment in the amount of $3,220.71 consisting of $5,598.70 in principal, plus costs of $379.30, less credit for $2,757.29.

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:                 Discover Bank vs. Fetalvero, Robert

Case No.:   VCL319649

Date:           December 23, 2025

Time:            8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     Motion to Enforce Stipulation as Judgment

Tentative Ruling: To grant the motion

Facts

On March 27, 2025, Plaintiff filed this action against Defendant for account stated and money lent in the amount of $22,461.85.

Defendant was served with the summons and complaint, and filed an answer of November May 1, 2025. 

On July 21, 2025, the parties entered into a stipulation to resolve this matter on the following terms:

The parties agreed that Defendant shall pay to Plaintiff a total settlement amount of $22,461.85 by 05/28/2029, with monthly payments of $467.96 paid on or before 06/28/2025, and continuing each month thereafter through 04/28/2029, and a final payment of $467.73 on or before 05/28/2029.

It was further stipulated that if payments were not made pursuant to the schedule set forth above, Defendant would be in default. Additionally, that Defendant agreed Plaintiff would be entitled to judgment in the amount alleged in the complaint in the event of default.

The stipulation indicates that the Court shall retain jurisdiction under Code of Civil Procedure section 664.6. However, this Court notes this matter has not been dismissed.

Plaintiff indicates Defendant failed to make payments for the month of July 28, 2025 and each month thereafter, with the last payment received on June 23, 2025. Therefore, Defendant is entitled to a credit of $467.96.

Authority and Analysis

Section 664.6 (a) states: 

“If parties to pending litigation stipulate, in a writing signed by the parties outside of the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.”

“The court’s retention of jurisdiction under section 664.6 includes jurisdiction over both the parties and the case itself, that is, both personal and subject matter jurisdiction.” (Lofton v. Wells Fargo Home Mortgage (2014) 230 Cal.App.4^th 1050, 1061.) “Section 664.6 permits the trial court judge to enter judgment on a settlement agreement without the need for a new lawsuit.” (Osumi v. Sutton (2007) 151 Cal.App.4^th 1355, 1360.)

As indicated above, the Court has not lost jurisdiction over this matter.

Defendant appears to have breached the settlement, based upon the declaration of Plaintiff’s counsel and, the Court, having no opposition, grants the motion. The Court will enter judgment in the amount of $22,527.90, consisting of the principal balance of $22,461.85 plus costs of $534.01, less the payment of $467.96.

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:                DS Investments vs. Holliday, Melanie

Case No.:   VCL326029

Date:           December 23, 2025

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     Motion to Stay Execution of Writ

Tentative Ruling: No documents appear filed in connection with this motion. Therefore, the Court takes this hearing off calendar.

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:                 Kuubix ABC LLC, vs. Kuubix Energy, INC

Case No.:   VCU306291

Date:            December 23, 2025

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:      Defendant Kuubix Energy, Inc.’s Counsel’s Motion to Withdraw

Tentative Ruling: To grant the motion; the order will be deemed effective upon the filing with the court of proof of personal service of the order as indicated herein.

Facts

On November 13, 2025, Defendant’s Counsel Coleman and Horowitt, LLP filed a motion to be relieved as counsel as to Defendant Kuubix Energy, Inc. Defendant’s Counsel filed the following with respect to withdrawing:

(1) MC-051 - Notice of Motion and Motion to be Relieved as Counsel;

(2) MC-052 – Declaration in Support of Attorney's Motion to Be Relieved as Counsel; and

(3) MC-053 - Order Granting Attorney's Motion to Be Relieved as Counsel

Additionally, Defendant’s Counsel has filed proof of service of these documents by electronic mail and mail.

The Court notes that the other, individual defendants have substituted out Defendant’s counsel via substitution of attorney forms.   

Authority and Analysis

Code of Civil Procedure section 284 provides that “[t]he attorney in an action or special proceeding may be changed at any time before or after judgment of final determination, as follows: 1. Upon the consent of both client and attorney, filed with the clerk, or entered upon the minutes; [or] 2. Upon the order of the court, upon the application of either client or attorney, after notice from one to the other.”

California Rule of Court 3.1362(a) requires that the “notice of motion and motion to be relieved as counsel under Code of Civil Procedure section 284(2) must be directed to the client and must be made on the Notice of Motion and Motion to Be Relieved as Counsel-Civil (form MC-051).”

As noted above, counsel has complied with California Rule of Court 3.1362(a) by submitting the notice and motion on MC-051 and by directing the notice and motion to all parties.

California Rule of Court 3.1362 (c) further mandates that: “The motion to be relieved as counsel must be accompanied by a declaration on the Declaration in Support of Attorney's Motion to Be Relieved as Counsel--Civil (form MC-052). The declaration must state in general terms and without compromising the confidentiality of the attorney-client relationship why a motion under Code of Civil Procedure section 284(2) is brought instead of filing a consent under Code of Civil Procedure section 284(1). Specifically, the declaration that Rule 3.1362(c) requires must state that the moving attorney attempted to secure a “Substitution of Attorney” from the client as required under Code of Civil Procedure section 284(1) and that the client refused to so stipulate.

Here, the declaration is properly made on form MC-052, as well as a supplemental declaration attached to the Notice, and uses general terms without compromising confidentiality and indicates that Counsel has attempted to obtain a substitution by stipulation, but that Defendant has refused.

Next, service under Rule 3.1362(d) requires personal service, electronic service, or mail and counsel’s declaration must note the service made. Here, service was by mail on October 15, 2025. The declaration of counsel indicates that Defendant’s address was confirmed as current via the statements filed with the Secretary of State and this Defendant’s address matching one of the individual defendant’s addresses as agent for service of process.

Finally, Rule 3.1362(e) requires the proposed order be lodged with the Court on MC-053 with the moving papers, specifying all hearing dates scheduled, including date of trial. Defendant’s Counsel has complied with this requirement.

Therefore, the Court grants Defendant’s Counsel’s Motion to Withdraw as to Defendant Kuubix Energy, Inc.

If no one requests oral argument, the Court is prepared to sign the order entitled “Order Granting Attorney’s Motion to be Relieved as Counsel - Civil” that the moving party lodged with the Court.  This order will be deemed effective upon the filing with the court of a proof of personal service of the “Order Granting Attorney’s Motion to be Relieved as Counsel – Civil” as to Defendant Kuubix Energy, Inc.

The Court further directs counsel to attach to the Order an additional notice of the date, time, and Department of this court for any future hearing dates for this case as calendared.

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, Raymond vs. Kaweah Health Medical Center

Case No.:   VCU311675

Date:           December 23, 2025

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     (1) Defendant Kaweah’s Continued Summary Judgment Motion; (2) Plaintiff’s Petition for Relief from Requirements of Tort Claim Presentation.

Tentative Ruling: (1) To grant the motion; (2) To deny the petition

(1) Defendant Kaweah’s Continued Summary Judgment Motion

Facts

In this premises liability action on theories of negligence, failure to warn and dangerous condition on public property, Defendant Kaweah Health Medical Center brings summary judgment on the grounds that Plaintiff failed to comply with Government Tort Claims Act as a prerequisite to filing this lawsuit.

In support, Kaweah provides the following facts.

Kaweah is a statutorily authorized California Healthcare District, organized and operating pursuant to the California Health and Safety Code section 32000 et seq., and, as such, it is considered a local public entity. (UMF No. 1.)

Plaintiff filed the Complaint on July 29, 2024, alleging one cause of action for premise liability. (UMF No. 2.) Specifically, the Complaint alleges that Defendant failed to maintain a safe and hazard free environment and as a result, Plaintiff slipped on a liquid substance. (UMF No. 2.)

Prior to the filing of the Complaint, on May 22, 2024, Plaintiff, through his counsel, faxed a letter of representation to Kaweah' s Risk Management Department (the "Letter of Representation"). (UMF No. 4.) Plaintiff disputes this, noting that the Letter of Representation was also mailed to Kaweah. (Plaintiff’s Dispute to UMF No. 4.)

The Letter of Representation did not purport to be a claim pursuant to the California Government Claim Act, did not contain an address in which Plaintiff desired to be notified, and was void of any factual allegations or alleged injuries. (UMF No. 5.) Plaintiff disputes, this, arguing it contained Plaintiff’s counsel’s physical address, telephone number, Plaintiff’s name, date of birth, and date of loss and also stated that Plaintiff was represented by counsel and was not to be contacted directly regarding her injuries. (Plaintiff’s Dispute to UMF No. 5.)

Attached to the Letter of Representation was a Spoilation Letter (collectively the “Letters”). (UMF No. 7.)

Kaweah asserts Plaintiff did not deliver the Letter of Representation to a Clerk, Secretary, or Auditor of Kaweah, nor was it addressed to any of the persons on the Board of Directors. (UMF No. 6.) None of those persons received the Letter. (UMF No. 7.)

As to these facts, Plaintiff states that the Letters were mailed to Kaweah Health Medical Center 400 W Mineral King Ave, Visalia, CA 93291, but that Plaintiff cannot dispute or confirm receipt thereof.  (Plaintiff’s Disputes to UMF Nos. 6 and 7.)

In opposition, Plaintiff argues the Letters are a “claim as presented” or a “triggering claim” that required Kaweah to inform Plaintiff of its deficiencies. Further, that Kaweah did not inform Plaintiff of its deficiencies and therefore Kaweah has waived this defense. Additionally, that Kaweah has waived the defense by not asserting it on demurrer and that Kaweah is otherwise equitably estopped from asserting the defense.

In support, Plaintiff states that at the time the Letters were mailed, and presently, Defendant did not have a form posted on their website for claimants to complete and present, that there is no section on the website as to how to file claims, and that Defendant has not posted its procedures for its Board to act on claims presented. (AUMF Nos. 14-19.)

Additionally, that “At the time the Complaint was filed, neither Plaintiff nor Plaintiff’s counsel knew, nor had any reason to know, that Defendant was a public entity” and “Defendant did not file a demurrer in this matter.” (AUMF Nos. 20, 21.)

Further, that “After filing its Answer on January 30, 2025, Defendant actively litigated this case on the merits. Defendant: 1. propounded written discovery on Plaintiff on 02/10/2025; 2. requested for nature and amount of damages on 02/10/2025; 3. deposited and filed a notice of jury fee deposit on 02/10/2025; 4. served a notice of designation of trial attorney on 02/10/2025; 5. filed CMS and attended CMC on 03/14/2025; 6. served a demand for exchange of witnesses on 04/05/2025; 7. responded to Plaintiff’s discovery on 04/10/2025; and 8. noticed and took Plaintiff’s deposition on 09/05/2025” (AUMF No. 23.)

Authority and Analysis

A party may move for summary judgment in any action or proceeding if it is contended the action has no merit or that there is no defense to the action or proceeding. (Code Civ. Proc. § 437c(a).) “The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)

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.) 

Tort Claim Presentation

Given Kaweah has established itself as a public entity (UMF No. 1), the Court notes that Government Code section 911.2 requires that a claim be presented to the relevant public entity not more than six months after the accrual of the cause of action. (Govt. Code, § 911.2.) Presentation of such a claim is a condition precedent to filing a suit against the public entity. (Govt. Code, § 945.4.) “With certain exceptions (§ 905), the timely filing of a written government claim is an element that a plaintiff is required to prove in order to prevail on his or her cause of action.” (Willis v. City of Carlsbad (2020) 48 Cal.App.5th 1104, 1119; DiCampli-Mintz v. County of Santa Clara (2012) 55 Cal.4th 983, 990.)

The proposed claim must, under Government Code section 910, contain the following:

(a) The name and post office address of the claimant.

(b) The post office address to which the person presenting the claim desires notices to be sent.

(c) The date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted.

(d) A general description of the indebtedness, obligation, injury, damage or loss incurred so far as it may be known at the time of presentation of the claim.

(e) The name or names of the public employee or employees causing the injury, damage, or loss, if known.

(f) The amount claimed if it totals less than ten thousand dollars ($10,000) as of the date of presentation of the claim, including the estimated amount of any prospective injury, damage, or loss, insofar as it may be known at the time of the presentation of the claim, together with the basis of computation of the amount claimed. If the amount claimed exceeds ten thousand dollars ($10,000), no dollar amount shall be included in the claim. However, it shall indicate whether the claim would be a limited civil case.

Additionally, section 915 of the Government Code, subsection (a) states:

“(a) A claim, any amendment thereto, or an application to the public entity for leave to present a late claim shall be presented to a local public entity by any of the following means:

(1) Delivering it to the clerk, secretary, or auditor thereof.

(2) Mailing it to the clerk, secretary, auditor, or to the governing body at its principal office.

(3) If expressly authorized by an ordinance or resolution of the public entity, submitting it electronically to the public entity in the manner specified in the ordinance or resolution.”

Further, section 915(f) states “A claim, amendment, or application shall be deemed to have been presented in compliance with this section to a public agency as defined in Section 53050 if it is delivered or mailed within the time prescribed for presentation thereof in conformity with the information contained in the statement in the Roster of Public Agencies pertaining to that public agency which is on file at the time the claim, amendment, or application is delivered or mailed…”

Kaweah challenges both the substance of the Letters under section 910 and its delivery under section 915.

The Letters are Not in Compliance or Substantial Compliance

Here, Kaweah has established the Letters (Exhibit B) are the only documents at issue as to a claim or potential claim in this matter.

The Court agrees that the Letters contain no indication of the place or other circumstances of the occurrence (section 910(c)), a general description of the injury, damage or loss (section 910(d)), and contains no indication of whether the claim is a limited civil case (section 910(e).) Rather, the Letters appear to be a standard representation letter and spoilation letter, evidenced further by the inclusion of the phrase “Below is our client's direct contact information. Please immediately contact her to discuss a mutually convenient time to inspect the damaged vehicle and set up a rental.” (Exhibit B -  Page 4.)

While it appears a disputed material fact as to whether the Letters were mailed, as well as faxed, it appears undisputed that the Letters were not expressly directed at a “clerk, secretary, auditor, or to the governing body at its principal office.”

The Court, then, concludes the Letters are not in compliance or substantial compliance, are not claims as defined under section 910 and were not delivered or mailed to the clerk, secretary, auditor, or to the governing body at its principal office” in compliance with sections 915(a) or 915(f).

“Triggering Claim” or “Claim as Presented”

However, Plaintiff argues that Kaweah has waived this defense under
Perez v. Golden Empire Transit Dist. (2012) 209 Cal.App.4th 1228, 1234 by failing to notify Plaintiff of the deficiency of the Letters:

“Furthermore, if a claim presented does not substantially comply with the claim filing requirement, the public entity must advise the claimant of the deficiencies or lose the right to assert the noncompliance as an affirmative defense. (Connelly v. County of Fresno, at p. 38; see City of Stockton, at p. 745, fn. 11.)

Section 910.8 sets forth the public entity's obligation to warn the claimant of defects in the claim document:  “If, in the opinion of the board or the person designated by it, a claim as presented fails to comply substantially with the requirements of Sections 910 and 910.2, … the board or the person may, at any time within 20 days after the claim is presented, give written notice of its insufficiency, stating with particularity the defects or omissions therein.”

 The public entity may not take action on the claim for 15 days after the written notice is given. (§ 910.8.) In addition, a claim may be amended at any time before final action is taken by the public entity and the amendment will be considered part of the original claim for all purposes. (§ 910.6, subd. (a).) As a result of these provisions, claimants who are warned of a defect have an opportunity to amend the claim and cure the defects. Alternatively, if a claimant is not warned about a defect or omission in the claim as presented in accordance with section 910.8, the public entity waives any defense as to the sufficiency of the claim. (§ 911.)” (emphasis added.)

The issue, however, with this argument, is that the Court has found above that Letters were never delivered or mailed to a “"clerk, secretary or auditor" as required by Government Code section 915(a) and therefore the Letters were never presented and cannot be considered presented in compliance under section 915(f). As such, Defendant Kaweah argues that section 910.8 is not applicable, citing to DiCampli-Mintz v. County of Santa Clara (2012) 55 Cal.4th 983.

In that matter, the California Supreme Court found that application of substantial compliance with the presentation requirements unavailable where the documents at issue were submitted to the wrong public entity employee, noting “…application of the compliance doctrine is [in]consistent with the language of section 915(e)(1) requiring actual receipt by the statutorily designated recipient" as "[f]inding compliance when any agency employee is served exponentially expands the scope of the statute." (Id. at 892.) "The claimant bears the burden of ensuring the claim is presented to the appropriate public entity." (Id. at 888.) The California Supreme Court declined to place the burden on a public employee who improperly "…receives a misdirected claim to forward it to the proper agency [because it] improperly shift[s] the responsibility for presenting a claim from the claimant to the public entity." (Id. at 892.)

“As we pointed out in City of Stockton, supra, 42 Cal.4th at  page 738, “[t]he purpose of the claims statutes is not to prevent surprise, but ‘to provide the public entity sufficient information to enable it to adequately investigate claims and to settle them, if appropriate, without the expense of litigation. [Citations.] It is well-settled that claims statutes must be satisfied even in face of the public entity's actual knowledge of the circumstances surrounding the claim.’ [Citation.] The claims statutes also ‘enable the public entity to engage in fiscal planning for potential liabilities and to avoid similar liabilities in the future.’ [Citations.]”
(DiCampli-Mintz, supra, 55 Cal.4th 983 at 990-991.)

The California Supreme Court notes “The case stands or falls on whether presentation of plaintiff's letter of intention to someone other than the statute's designated recipients or the actual receipt of notice by a proper recipient, satisfies the prefiling claim requirement.” (Id. at 991.)

Significant to the matter at hand, DiCampli notes, at fn. 5:

“Section 910.8 requires the board of a public entity, or its designee, to give a claimant notice of a defective claim. Section 911 provides if the board fails to provide a notice of insufficiency as required by section 910.8, the defect is waived. Section 911.3, subdivisions (a) and (b) require that the board, or its designee give written notice to the claimant that a claim was untimely.  Failure to do so waives a timeliness defense. As later discussed, because plaintiff's claim was not presented to or actually received by the board or a person designated by it, sections 910.8, 911 and 911.3 are not applicable.” (Id. at 988, fn. 5.) (emphasis added.)

Therefore, the Court does not find application of the claim as presented or triggering claim theory. “Even if the public entity has actual knowledge of facts that might support a claim, the claims statutes still must be satisfied.” (Id. at 990.)

Equitable Estoppel

Generally, whether equitable estoppel applies is a question of fact.  (Molecular Analytical Systems v. Ciphergen Biosystems, Inc. (2010) 186 Cal.App.4th 696, 708.)  However, estoppel may be decided as a matter of law where all evidence undisputed. (See Santos v. Los Angeles Unified School Dist. (2017) 17 Cal.App.5th 1065, 1076.)

“It is well settled that a public entity may be estopped from asserting the limitations of the claims statute where its agents or employees have prevented or deterred the filing of a timely claim by some affirmative act.”  (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 744.)  The elements of equitable estoppel in the government claims context are the following:

(1) the party to be estopped must be apprised of the facts;

(2) the party to be estopped must intend that its conduct shall be acted upon, or must so act that the party asserting the estoppel had a right to believe it was so intended;

(3) the other party must be ignorant of the true state of facts; and

(4) the other party must rely upon the conduct to his injury.  (J.M. v. Huntington Beach Union High School Dist. (2017) 2 Cal.5th 648, 656.)  

“Equitable estoppel generally requires an affirmative representation or act by the public entity.”  (Id. at 657.) Critically, “the detrimental reliance must be reasonable.” (Schafer v. City of Los Angeles (2015) 237 Cal.App.4th 1250, 1261.)

Here, the material facts set forth by Defendant and additional material facts set forth by Plaintiff reveal no affirmative act by Defendant for which Plaintiff, or counsel, can be said to have relied upon. The Court finds no facts in support of estoppel, no facts in dispute as to estoppel and therefore adjudication of this theory as a matter of law is proper.

Plaintiff cites no case that requires disclosure via affirmative representation that Defendant was a government entity, by the entity itself or counsel. Rather, as cited by Defendant: “In essence, this argument equates the filing of a lawsuit with a ‘claim as presented’ under section 910.8, obligating the public entity to notify the plaintiff of the necessity to present a proper claim if the entity is to preserve its defense under the claims statutes. (See Phillips v. Desert Hospital Dist., supra, 49 Cal.3d at p. 705.) Such a procedure would be irreconcilable with the statutory scheme. The Legislature's intent to require the presentation of claims before suit is filed could not be clearer. (§ 945.4.) The purpose of providing public entities with sufficient information to investigate claims without the expense of litigation is not served if the entity must file a responsive pleading alerting its opponent to the claim requirements. Civic cannot shift responsibility for ascertaining the claim requirements to defendants.” (City of Stockton, supra, 42 Cal. 4th at 746.)

Therefore, the Court does not find equitable estoppel applies as a matter of law.

Waiver

As to waiver, Plaintiff cites to State of California v. Superior Court (Bodde) (2004) 32 Cal.4th 1234, City of Stockon, supra, 42 Cal. 4th 730 and Perez v. Golden Empire Transit Dist. (2012) 209 Cal. App. 4th 1228 for the theory that a public entity defendant must assert the claims presentation defense on demurrer.

In Bodde, the court noted “Thus, our Courts of Appeal have repeatedly held that failure to allege facts demonstrating or excusing compliance with the requirement  subjects a complaint to general demurrer for failure to state a cause of action.” (Bodde, supra, 32 Cal.4th at 1240-1241.) However, the Court does not read this statement to require that the defense be raised on demurrer, just that the defense is available on demurrer. The same applies to the court’s statement in City of Stockon, supra, 42 Cal. 4th at 738 that “[a] complaint that fails to allege facts demonstrating compliance with the claim presentation requirement or an excuse for noncompliance is subject to demurrer.”

As to Perez, supra, the opposition provides the following citation:

“ ‘the failure to allege compliance or excuse is properly challenged by demurrer, not by a motion for summary judgment.’ (Perez v. Golden Empire Transit Dist. (2012) 209 Cal. App. 4th 1228, 1235).” (Opposition 8:13-16.)

The Court is unable to locate this quotation.

Further, Plaintiff’s opposition summarizes Perez and its holding as follows:

“In Perez, plaintiff Perez sued the Golden Empire Transit District (a public entity) for negligence after being injured in a bus accident. (Id. at 1231). The complaint did not allege compliance with Government Claims Act, nor did it allege facts excusing compliance. (Id.). The defendant District did not demur to the complaint on this basis. (Id. at 1233). Instead, it answered the complaint, asserted Government Claims Act noncompliance as an affirmative defense, and later moved for summary judgment. (Id.). The trial court granted summary judgment, finding Perez had not alleged or proved compliance with the Government Claims Act. The Court of Appeal, however, reversed the summary judgment, and held that failure to allege Government Claims Act compliance is a pleading defect, properly raised by demurrer, not by motion for summary judgment. (Id. at 1236, 1240). The Court further expressed a concern about converting a demurrer into a motion for summary judgment. (Id. at 1233).” (Opposition 8:13-16.)

It is unclear to the Court where this summary of the case and various quotations are from, as they do not appear to match the case. These quotations appear either to be  AI hallucinations or outright fabrications by counsel.

In Perez, the public entity’s “…demurrer asserted that plaintiff's lawsuit is barred because she failed to comply with the Government Claims Act's claim presentation requirement before filing her complaint.” (Id. at 1232.)

The only reference to “summary judgment” in Perez is as follows:

“At the beginning of the hearing on the demurrer, the trial court stated its tentative decision was to overrule the demurrer. The court also stated it would not take judicial notice of the claim and facts stated therein and expressed a concern about converting the demurrer into a motion for summary judgment. After hearing argument from counsel, the court took the matter under submission.” (Id. at 1233.)

The Court does not find Perez to hold that demurrer is the exclusive means to adjudicate a claim presentation defense, or that the failure to do so constitutes waiver thereof. Rather, Perez permits alleging compliance with the claim presentation requirements in a general, check the box fashion. (Id. at 1237.) The Perez trial court never even reached the summary judgment stage, as asserted by plaintiff’s counsel.

The Court notes a number of cases adjudicating claim presentation issues on summary judgment without discussion of waiver for failure to raise the defense on demurrer, for example:

• Hernandez v. City of Stockton (2023) 90 Cal.App.5th 1222, 1226 [“Plaintiff Manuel Sanchez Hernandez appeals from the judgment entered after the trial court granted summary judgment in favor of defendant City of Stockton (City) based on his failure to comply with the claims presentation requirement of the Government Claims Act. (Gov. Code, § 810 et seq.)… We therefore affirm summary judgment in favor of the City.”]
• Connelly v. County of Fresno (2006) 146 Cal.App.4th 29, 34 [“Respondents filed a motion for summary judgment, which contended they were entitled to summary judgment because Connelly failed to file a claim for personal injury within the statutory time limits of the Government Tort Claims Act.”]

Therefore, the Court does not find waiver applies as a matter of law.

Conclusion

Therefore, the Court, absent a finding below or at the hearing pursuant to Government Code section 946.6(e) that Plaintiff is excused from the claim presentation requirements, the Court finds Plaintiff has not presented a claim, has not met the requirements of a claim as presented, has not established equitable estoppel or waiver, and therefore the Court grants summary judgment.

(2) Plaintiff’s Petition for Relief from Requirements of Tort Claim Presentation

Background Facts

In this premises liability action on theories of negligence, failure to warn and dangerous condition on public property, Plaintiff sues Defendant Kaweah Health Medical Center.

Plaintiff alleges the incident occurred May 1, 2024.

Plaintiff filed the complaint July 29, 2024.

Defendant Kaweah filed an answer January 31, 2025, which asserted an affirmative defense of immunity under Government Code sections 814 through 996.6, which asserted an affirmative defense of failure to comply with Government Code section 900, et seq, regarding claims against public entities as to claim presentation and which states, at the top of the answer, the following “Government Entity - Kaweah Delta Health Care District No Filing Fee Required [Gov't. Code§ 6103]” (Answer.)

Defendant Kaweah filed a motion for summary judgment on July 23, 2025. Defendant Kaweah argued that two letters sent May 22, 2024 (“Letters”) were insufficient to satisfy the claim presentation requirements, that the letters did not constitute a claim as presented or “triggering claim” and that waiver and estoppel did not apply under these facts (as discussed in detail in the ruling below).

The Court issued a tentative ruling denying the motion. However, at oral argument on October 31, 2025, Defendant Kaweah argued, and the Court found persuasive, that two letters sent May 22, 2024 were insufficient to satisfy the claim presentation requirements, that the letters did not constitute a claim as presented or “triggering claim” and that waiver and estoppel did not apply under these facts and under DiCampli-Mintz v. County of Santa Clara (2012) 55 Cal.4th 983 (as discussed in detail in the ruling below.)

Facts as to Petition

On October 9, 2025, prior to the hearing on summary judgment, Plaintiff filed this petition for relief from the claim presentation requirements.

In support, Plaintiff’s counsel’s declaration states Defendant never responded to the Letters and did not inform Plaintiff it was a governmental entity. (Declaration of Navi ¶4.) Further, that Defendant did not move to dismiss the Complaint nor did it file a motion to strike or file a demurrer, or otherwise substantively assert defenses related to the failure to comply with the claims act at any time. (Declaration of Navi ¶6.) Additionally, that after filing the answer, Defendant continued to litigate via discovery, depositing jury fees, designating trial counsel, filing a case management conference statement, took depositions, and served a demand for exchange of experts.  (Declaration of Navi ¶7.)

Plaintiff argues that the defense as to claim presentation was raised via substantive argument first in the motion for summary judgment on July 23, 2025. Upon receipt of the motion for summary judgment, counsel states “I began investigating whether Plaintiff or any prior counsel had been aware of Defendant’s governmental status. I reviewed Plaintiff’s entire case file, consulted with my staff, and determined that at the time the Complaint was filed, neither Plaintiff nor counsel knew Defendant was a governmental entity.” (Declaration of Navi ¶9.) Further, that “The attorney who originally filed the Complaint is no longer with the firm, and I cannot confirm whether he became aware of Defendant’s governmental status after receiving the Answer in January 2025.” (Declaration of Navi ¶10.)

Further that “Based upon information and belief, Plaintiff was not aware that Defendant was a public entity at the time the Complaint was filed on July 29, 2024. Plaintiff reasonably believed Defendant operated as a private hospital, and there was nothing was presented by Defendant to suggest otherwise prior to the filing of the Complaint.” (Declaration of Navi ¶11.)

Plaintiff assets mistake and excusable neglect as grounds to grant the petition.

In opposition, Defendant notes that Plaintiff never filed a timely late claim application pursuant to Government Code section 911.4 and therefore the petition must be denied.

Authority and Analysis

Tort Claims Presentation Requirements

“Under Government Code section 946.6, a court shall relieve the petitioner from Government Code section 945.4 (necessity of written claim acted upon by board or deemed to have been rejected) if the court finds (1) the application to the board under Government Code section 911.4 was made within a reasonable time not to exceed that specified in Government Code section 911.4, subdivision (b) (one year after the accrual of the cause of action); (2) the application was denied or deemed denied pursuant to Government Code section 911.6 (grant or denial of application by board); and (3) the failure to present the claim was through mistake, inadvertence, surprise, or excusable neglect unless the public entity establishes it would be prejudiced in the defense of the claim if the court relieves the petitioner from Government Code section 945.4.” (Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1782.)

Under the Government Claims Act (the “Act”), a plaintiff bringing suit for monetary damages against a public entity or employees thereof must first present a claim to the public entity (“government claim”) which must be acted upon or deemed rejected by the public entity.  (Gov. Code § 945.4) To be timely, a government claim for damages must be presented to the public entity within 6 months of the date the cause of action accrued.  (Gov. Code §911.2.)

Here, it appears undisputed that the accrual date of this cause of action is May 1, 2024.

The Court has found, via the summary judgment analysis and ruling above, that the Letters do not constitute a claim, nor a claim as presented.

A party who fails to present a claim may apply to the public entity for permission to file a late claim. (Gov. Code §911.4.)  Such an application must be presented within a reasonable time, and not later than one year after the cause of action’s accrual. (Gov. Code §911.4(b).)

It further appears undisputed that no late claim application was filed.

A late claim application “(b)…shall state the reason for the delay in presenting the claim. The proposed claim shall be attached to the application.
(Gov. Code, § 911.4.)

The proposed claim must, under Government Code section 910 contain the following:

(a) The name and post office address of the claimant.

(b) The post office address to which the person presenting the claim desires notices to be sent.

(c) The date, place and other circumstances of the occurrence or transaction which gave rise to the claim asserted.

(d) A general description of the indebtedness, obligation, injury, damage or loss incurred so far as it may be known at the time of presentation of the claim.

(e) The name or names of the public employee or employees causing the injury, damage, or loss, if known.

(f) The amount claimed if it totals less than ten thousand dollars ($10,000) as of the date of presentation of the claim, including the estimated amount of any prospective injury, damage, or loss, insofar as it may be known at the time of the presentation of the claim, together with the basis of computation of the amount claimed. If the amount claimed exceeds ten thousand dollars ($10,000), no dollar amount shall be included in the claim. However, it shall indicate whether the claim would be a limited civil case.

“Filing a late-claim application within one year after the accrual of a cause of action is a jurisdictional prerequisite to a claim-relief petition. [Citation.] When the underlying application to file a late claim is filed more than one year after the accrual of the cause of action, the court is without jurisdiction to grant relief under … section 946.6.” (Munoz, supra, 33 Cal.App.4th at 1779)

The Court, therefore, is without jurisdiction to grant relief under 946.6 because no valid late claim application has been made within one year from the accrual date of the cause of action.

Therefore, the Court does not consider the underlying basis for the failure to file the claim or late claim application.

Government Code section 946.6(e)

Finally, in ruling on a claim relief petition, the “court shall make an independent determination upon the petition. The determination shall be made upon the basis of the petition, any affidavits in support of or in opposition to the petition, and any additional evidence received at the hearing on the petition.” (§ 946.6, subd. (e).) (emphasis added.) Where no testimony is received, the trial court may rule on the basis of the petition and any declarations. (Santee v. Santa Clara County Office of Educ. (1990) 220 Cal.App.3d 702, 708-709.)

Therefore, the Court’s tentative ruling, based upon the filed documents, is to deny the petition.

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:                 Gonzalez, Yadira vs. Monrovia Nursery Company, Inc.

Case No.:    VCU324711

Date:            December 23, 2025

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     Defendant’s Motion to Dismiss

Tentative Ruling: To set an OSC re: dismissal for January 27, 2026, 8:30 am, Dept. 2.

Facts

On August 15, 2025, Plaintiff Yadira Gonzalez filed this class action complaint for various violations of the Labor Code and Business and Professions Code.

Defendant was served on August 27, 2025, filed a declaration regarding meeting and conferring as to a demurrer and on October 22, 2025, filed this motion to dismiss.

Defendant argues that this matter is now a “headless” class action because it has settled with the single named Plaintiff Gonzalez. As an initial matter, the Court grants Defendant’s request to seal the settlement agreement with Plaintiff.

No opposition appears filed in this matter.

Authority and Analysis

The named plaintiff in a class action must be a member of the class he or she purports to represent. (CVS Pharmacy, Inc. v. Superior Court (2015) 241 Cal.App.4th 300, 307.) Settlement of the individual, represented plaintiff claims, however, “a class representative's voluntary settlement of her individual claim constitutes a voluntary settlement of her only claim” (Watkins v. Wachovia Corp. (2009) 172 Cal.App.4th 1576, 1590.) Additionally, “[a] voluntarily settling plaintiff no longer has any interest in the action” (Id. at 1592.)

Therefore, to the Court, this matter appears to be properly considered a “headless” class action as the lead Plaintiff, via the settlement, is no longer qualified to serve as class representatives.

The Court here notes counsel and Plaintiff have assumed a fiduciary duty to the members of the class when bringing a class action. (La Sala v. American Sav. & Loan Assn. (1971) 5 Cal.3d 864, 871.)

Plaintiff’s counsel has not opposed this motion.

However, Pirjada v. Sup. Ct. (2011) 201 Cal.App.4th 1074, 1086 notes:

“…But the obligation to notify absent class members before dismissing the case rests with the superior court, not the lead plaintiff or class counsel. The nature and extent of that notice must be decided by the court itself. (See La Sala, supra, 5 Cal.3d at p. 874 [action should not be dismissed “without undertaking such measures as [the court] may direct to notify the members of the class”]; Rule 3.770(c) [notice of proposed dismissal must be given “in the manner and to those class members specified by the court”].) Indeed, as Rule 3.770(c) provides, no notice to absent class members is required at all “if the court finds that the dismissal will not prejudice them.”

Therefore, the Court will set an OSC re: dismissal for January 27, 2026, 8:30 am, Dept. 2.

The Court notes that Defendant’s motion to dismiss addresses the issues raised in Rule 3.770 as to requesting Court approval, the use of a declaration and settlement agreement as to the facts on which the dismissal request is based, as well as the consideration paid to the named Plaintiff in this matter. At this time, the Court contemplates that dismissal, if granted, would occur without notice to the class members, as the Court finds no prejudice at this time.

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:                Darko, Joseph K vs. M1 Support Services

Case No.:   VCU321734

Date:           December 23, 2025

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     Demurrer and Motion to Strike

Tentative Ruling: To overrule the demurrer; to grant the motion to strike without leave to amend; to order Defendant to answer the complaint no later than ten (10) days from the date of this hearing.

Facts

On May 27, 2025, Plaintiff filed this complaint which checks boxes for breach of contract and other “wage penalties, wages, punitive and compensatory damages.”

Plaintiff alleges that on or about May 15, 2025, Defendant breached the contract “of wage penalties” attached as Exhibit A to the complaint. There is no express Exhibit A attached, but there are a series of emails both predating and post dating the alleged breach date. The Court believes that Plaintiff is suing for breach of a settlement agreement or release, noting two of them at pages 25 and 26, which are unsigned.

However, a May 9, 2025 email indicates a signed May 9, 2025 release.

A May 15, 2025 email indicates Plaintiff alleges Defendant breached this release due to taking taxes out of the agreed sum, that Plaintiff understood no taxes would be removed because these are wage penalties and not wages.

On November 25, 2025, Defendant demurred to the complaint and moved to strike the prayer for punitive damages, emotional distress damages, special damages and attorneys’ fees. The basis of the demurer is that the complaint is barred by a validly executed release based on an unequivocal admission that the release exists and that he executed it, as attached to the complaint.

In opposition, Plaintiff argues that the term “minus applicable taxes” should be interpreted as excluding any taxes from the sum to be paid, because waiting time wage penalties are not to be taxed.

Demurrer – 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.)

Breach of Contract, Release and Attached Documents

“The standard elements of a claim for breach of contract are: ‘(1) the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) damage to plaintiff therefrom.’” (Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Cal.App.4th 1171, 1178.)

The Court discerns Plaintiff’s argument is that Defendant breached the executed release by removing taxes from the amount to be paid to Plaintiff because the term “applicable taxes” did not apply to the penalties for which Plaintiff resolved this dispute.

While the Court acknowledges Plaintiff’s May 8, 2025 email that says “Here it is Signed,” the Court notes that this appears to establish an element of breach of contract, that a contract between the parties exists.

The Court notes the release could not apply to breach of the very agreement which is alleged to form the breach of contract claim. Again, the Court’s interpretation is that Plaintiff is suing, essentially, for the amount of taxes deducted from the amount stated in the release, as a breach of the release. In other words, Plaintiff could not have released the right of a claim that was not yet in existence, that is breach of the release itself. Plaintiff has otherwise alleged the elements of breach of contract.

Therefore, the Court overrules the demurrer.

Motion to Strike – Authority and Analysis

Here, as noted above, Defendant seeks to strike punitive damages, non-economic damages, special damages and attorneys’ fees.

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).)

“[W]hen a substantive defect is clear from the face of a complaint, such as a violation of the applicable statute of limitations or a purported claim of right which is legally invalid, a defendant may attack that portion of the cause of action by filing a motion to strike.” (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682–1683.)

As to punitive damages, “[t]he mere allegation an intentional tort was committed is not sufficient to warrant an award of punitive damages. [Citation.] Not only must there be circumstances of oppression, fraud or malice, but facts must be alleged in the pleading to support such a claim. [Citation.]" (Grieves v. Superior Court (1984) 157 Cal.App.3d 159, 166, fn. omitted.) Here, no tort is pled and the Court, therefore grants the motion to strike as to punitive damages. (See also Brewer v. Premier Golf Properties, LP. (2008) 168 Cal. App. 4th. 1243.)

As to non-economic damages for mental suffering or emotional distress, such damages are not compensable in breach of contract cases.

“California Civil Code section 3300 provides for the general measure of damages for a breach of contract. It reads: "For the breach of an obligation arising from contract, the measure of damages, except where otherwise expressly provided by this code, is the amount which will compensate the party aggrieved for all the detriment proximately caused thereby, or which, in the ordinary course of things, would be likely to result therefrom."(Martin v. U-Haul Co. of Fresno (1988) 204 Cal.App.3d 396, 408-409.) Further "Damages are awarded in an action for breach of contract to give the injured party the benefit of his bargain and insofar as possible to place him in the same position he would have been in had the promisor performed the contract. [Citations.] Damages must be reasonable, however, and the promisor is not required to compensate the injured party for injuries that he had no reason to foresee as the probable result of his breach when he made the contract. [Citations.]" ) (Id.) The Court considers mental suffering or emotional distress damages as lacking proximate cause to the alleged breach of contract claim.

The Court grants the motion to strike as to the references to non-economic damages.

As to special damages, Defendant cites to Lewis Jorge Construction Management, Inc. v. Pomona Unified School Dist. (2004) 34 Cal.4th 960, 968-969 notes:

“Unlike general damages, special damages are those losses that do not arise directly and inevitably from any similar breach of any similar agreement. Instead, they are secondary or derivative losses arising from circumstances that are particular to the contract or to the parties. Special damages are recoverable if the special or particular circumstances from which they arise were actually communicated to or known by the breaching party (a subjective test) or were matters of which the breaching party should have been aware at the time of contracting (an objective test). [(citations omitted] Special damages “will not be presumed from the mere breach” but represent loss that “occurred by reason of injuries following from” the breach. ([citation omitted].) Special damages are among the losses that are foreseeable and proximately caused by the breach of a contract. (Civ. Code, § 3300.)”

The Court cannot locate a reference in the complaint to express pleading of “special damages” expressly but notes various references to a lost apartment, fixing a vehicle, necessities, utilities, gas, food, starvation and others to be unforeseeable as to this breach of contract claim. As such, the Court grants the motion to strike such special damages.

As to attorneys’ fees, the Court agrees that Plaintiff’s filing of this matter without counsel precludes pleading the recovery of attorneys’ fees. Therefore, the motion to strike is granted as to attorneys’ fees references.

The Court, therefore, grants the motion.

Like a demurrer, a motion to strike cannot be granted without leave to amend if there is a reasonable possibility that amendment will cure the defect. Here, the Court has overruled the demurrer above as to the breach of contract claim and, under the facts alleged and arguments set forth in the opposition, the Court finds no such reasonable possibility to properly claim punitive damages, non-economic damages, special damages or attorneys’ fees.

As such, the motion to strike is granted, without leave to amend.

Therefore, as the Court has overruled the demurrer above, the Court orders Defendant to answer the 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:                Midland Credit Management, Inc. vs. Becerra, Maria

Case No.:  VCL198419

Date:           December 23, 2025

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     Defendant’s Motion to Set Aside Default

Tentative Ruling: To deny the motion for lack of proof of service

Facts

Plaintiff Midland, a debt collector, filed this action for account stated on June 2, 2021.

Plaintiff filed a proof of service indicating substitute service on Defendant Maria Becerra occurred at 4211 W Vine Ave, Visalia, CA 932391 on July 10, 2021 at 8:49 am on “Jane Doe, WHO REFUSED TO GIVE NAME, CO-RESIDENT, who tried to refuse service by closing the door and evading service (documents left, seen by subject), a brown-haired Hispanic female approx. 55-65 years of age, 5'6"-5'8" tall and weighing 160-180 lbs with an accent” and thereafter mailing the summons and complaint.

The proof of service was completed by a registered process server.

On October 7, 2021, default was entered.

On October 15, 2021, default judgment was entered in the amount of $5,607.75.

On September 8, 2025, the Court denied, without prejudice, a previously filed motion by Defendant seeking relief from default under Code of Civil Procedure sections 473(b), 473.5, and 473(d), Civil Code section 1788.61.

The Court previously found no relief available under Code of Civil Procedure sections 473(b) and 473.5 and Civil Code section 1788.61, as the time for such relief had expired based on a judgment entered in 2021.

As to relief under section 473(d), the Court found the motion timely, but that the declaration of Defendant insufficient to rebut the evidentiary presumption afforded by a proof of service completed by a registered California process server.

On September 18, 2025, Defendant filed this motion for relief under the same sections noted above. Defendant declares:

“1. My address is 4211 W. Vine Ave., Visalia, CA 93292,

2. I never received personal service of the summons and complaint. The proof of service describes a “Jane Doe” Hispanic female, 55-65 years old, which does not match me. This can be anyone. This description does not even state that I was serve nor has a proper description of me.

3. My home lacks a direct, secure mailbox, so mail can be misplaced.” (Declaration of Plaintiff ¶¶1-3.)

No proof of service of this motion, filed September 18, 2025, appears to have been made.

No opposition appears to have been filed.

Authority and Analysis

Code of Civil Procedure section 473(b), 473.5  and Civil Code section 1788.61

For the same reasons stated in the prior ruling, the Court denies the motion under these sections as beyond the permissible time period to seek relief from default judgment.

Code of Civil Procedure 473(d)

"'[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. [Citation.] Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void. [Citation.]' [Citation.] Under section 473, subdivision (d), the court may set aside a default judgment which is valid on its face, but void, as a matter of law, due to improper service." (Ellard v. Conway (2001) 94 Cal.App.4th 540, 544.)

Such a motion under section 473(d), prior to the California Supreme Court’s decision in California Capital Ins. Co. v. Hoehn (2024) 17 Cal.5th 207, used to be subject to the two year statutory period provided by section 473.5 (See Trackman v. Kenney (2010) 187 Cal. App. 4th 175, 180, overruled by California Capital.)

However, under California Capital, supra, 17 Cal. 5th at 225 “We hold that a section 473(d) motion to vacate a judgment that is void for lack of proper service is not subject to the judicially imposed two-year limitation”

Therefore, this motion is timely.

However, the Court lacks a proof of service of this motion. Absent service, the Court will not grant the motion.

At the prior hearing on November 18, 2025, Plaintiff appeared and the Court told Plaintiff it would only rule on the motion if a proper proof of service was filed. The Court continued the motion for this purpose. No proof of service has since been filed, either as to the prior hearing or the continued hearing. As such, the motion is denied for lack of service.

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:                 Cole Ranch, Inc., a California Corporation vs. Smith

Case No.:   PCL323154

Date:           December 23, 2025

Time:           8:30 A.M. 

Dept.          19-The Honorable Glade F. Roper

Motion:     Plaintiff’s Ex Parte Application for Order Authorizing Sale of Livestock

Tentative Ruling: To deny the application without prejudice.

Background Facts

In this matter, Plaintiff sues Defendant Kimberly Smith for breach of contract, to enforce a livestock lien, for open book account, for account stated and for quantum meruit.

The complaint alleges the following:

“In or around March, 2021, at Terra Bella, Tulare County, California, Plaintiff, on the one hand, and Defendant Smith’s husband, Rodney Smith (“Rodney”) on the other hand, entered into a oral and implied agreement (the “Contract”), wherein and whereby Plaintiff promised and agreed to perform livestock services and advance certain costs for and on behalf of livestock owned by Rodney. At the time of the Contract and at all relevant times thereafter, Defendant was married to Rodney. As of the end of June, 2025, the livestock consisted of the three thoroughbred race horses named Sgt. Smith, Southern Boy and Unusual Blessing (the “Horses”).) (Complaint ¶8)

Further, that Rodeny died in early 2025, that Defendant is Rodeny’s surviving spouse, that Defendant is responsible for paying the Contract, as “Both spouses are liable for debts incurred during the marriage, regardless of who incurred the debt. This includes community debts incurred by the deceased spouse before or during the marriage, even if only one spouse's name is on the debt.” (Complaint ¶9.)

Plaintiff further alleges that in or about November 2024 and continuing thereafter, Defendants breached the Contract by failing and refusing to pay to Plaintiff the fees and costs due to Plaintiff under the terms of the Contract and that Plaintiff has been damaged in the amount of $21,543.82, that the daily rate for each Horse is $47.80 per day, plus other expenses as needed, plus 1.5% for charges not paid within ten (10) days. (Complaint ¶13.)

Additionally, Plaintiff states that Pursuant to Civil Code, Section 3080.01, Plaintiff has a general lien upon the livestock consisting of the Horses in Plaintiff’s possession to secure the performance of Defendants’ obligations as the owner of the livestock as the amount of the unpaid Contract amount. (Complaint ¶17, 18.)

Facts and Analysis - Service of Summons and Complaint

Counsel’s Declaration – Mail on July 15, 2025

Plaintiff’s counsel’s declaration in support of this motion indicates:

“On July 15, 2025, I mailed the Summons and Complaint by certified mail return receipt requested to Defendant to the Slidell address. The mail was never returned to me, but I never received any signed return receipt. The Summons and Complaint was also sent by Federal Express. I received written confirmation from Fed Ex that the Summons and Complaint were delivered to the Slidell Address on July 21, 2025.” (Declaration of Counsel ¶8.)

It is unclear to the Court whether a proof of service was filed as to this attempt.

On July 24, 2025, Counsel for Plaintiff indicates that Defendant contacted him by phone, that she had never spoken to him before, that the only way she could have had counsel’s phone number was via receipt of the summons and complaint. (Declaration of Counsel ¶9.)

Counsel states thereafter, and in light of Plaintiff’s claim that no service had been effectuated, a private investigator was hired and an address of “3484 HIGHWAY 53, POPLARVILLE MS 39470” was obtained as a residence. (Declaration of Counsel ¶10.)

Proof of Service by Mail – Mail on August 26, 2025

The Court’s file reflects a proof of service filed September 2, 2025 states “Kimberly M. Smith” was served at “3484 Poplarville, MS 39470-4175” via mail to an address outside of California with return receipt requested on or about August 26, 2025 by Plaintiff’s counsel.

The Court notes here that “Highway 53” is not referenced or reflected in the proof of service.

“Where service is made by mail pursuant to section 415.40, proof of service must "include evidence satisfactory to the court establishing actual delivery to the person to be served, by a signed return receipt or other evidence . . . ." (§ 417.20, subd. (a).)” (Johnson & Johnson v. Superior Court (1985) 38 Cal.3d 243, 249.) FN5 continues, noting “Petitioner also contends that section 415.40 itself required real parties to obtain and file return receipts in order to effect service. That contention is meritless. Section 415.40 states only that the party serving the summons must use a form of mail which requires a return receipt. It is silent regarding the requirements for proof of service or the return.” (Id. at 249, FN5.)

However, under section 417.20, as noted above, there must be some evidence to establish actual delivery, by signed return receipt or other evidence.

The proof of service, on its face, does not disclose any evidence of actual delivery.

Counsel’s declaration indicates that on August 26, 2025, the summons and complaint were mailed to Defendant by certified mail, return receipt requested, to 3484 Highway 53, Poplarville, MS 39470-4175. (Declaration of Counsel ¶11.)

However, Counsel indicates that the summons and complaint were returned without being delivered. (Declaration of Counsel ¶12.)

Counsel further notes that “I did receive confirmation from Fed Ex that the Summons and Complaint were delivered to Defendant at the Poplarville Address on August 28, 2025. A true and correct copy of the August 28, 2025 Fed Ex receipt is attached hereto as Exhibit 7.” However, the Court does not find a proof of service on file as to this attempt.

The Court, therefore, cannot find sufficient service of the summons and complaint under this proof of service.

November 21, 2025 – Proof of Service re: Substitute Service

On December 16, 2025, Plaintiff filed a proof of service of a letter and the summons and complaint on “Kimberly M. Smith” at “1527 GAUSE BLVD., #251 SLIDELL, LA 70458” on “KATHLEEN "DOE" - REFUSED TO PROVIDE LAST NAME, UPS/MAIL BOX CTR. MANAGER Description: CAUCASIAN, Female, 48 yrs old, 5' 6" tall, 140 lbs., BLONDE hair” on November 21, 2025 and that these documents were mailed thereafter to Kimberly M. Smith” at “1527 GAUSE BLVD., #251 SLIDELL, LA 70458.”

The Court notes no other information as to attempts of personal service included in this proof of service.

Counsel’s declaration states the following:

14. On October 13, 2025, I instructed my California attorney service company, OTALSSI (“OTALSSI”), to personally serve Defendant in Mississippi at her personal residence, the Poplarville Address.

15. On November 3, 2025, OTALSSI informed me that their process server affiliate in Mississippi was not able to personally serve the Summons and Complaint at the Poplarville Address because “Our local server in Poplarville was unable to gain access to the gated property. He needs a PIN number to gain access.”

16. On November 12, 2025, OTALSSI provided me with a status follow up on the personal service. At that time, they informed me that: “Unfortunately, our server made several attempts to gain access to this gated property, but was not successful. She will try again before returning the documents.”

17. Finally, on November 21, 2025, Defendant was served by substituted service at the Slidell Address. The Summons and Complaint were served on the person in charge of the mail box center at the Slidell Address. In order to complete the substituted service, a copy of the Summons and Complaint was mailed to the Slidell Address on December 9, 2025.” (Declaration of Counsel ¶¶14-18.)

Here, the statements as to due diligence by Otalssi are hearsay as to due diligence.

Additionally, this proof of service, as to the substitute service, was complete by a “A. Griffin.”

The Court, therefore, cannot find sufficient service of the summons and complaint under this proof of service.

Application for Order Authorizing Sale of Livestock

On December 18, 2025, Plaintiff filed this ex parte application for an order authorizing sale of the Horses prior to judgment. The application was served via mail, overnight delivery and electronic service to “Kimberly M. Smith 1527 Gause Blvd. Unit 251 Slidell, LA 70458 coachrds.rs@gmail.com.”

In support, Plaintiff has filed the declaration of its CEO, Steve Cole, who states, consistent with the allegations of the complaint, that starting in 2021, Plaintiff provided livestock services to Rodney Smith (“Rodney”), the deceased husband of Defendant Kimberly M. Smith (“Defendant”) including grazing, feeding, boarding, training, general care, including heath services for Defendant’s three thoroughbred race horses, known as: (1) Sgt Smith, (2) Southern Boy, and (3) Unusual Blessing (the “Horses”) (Declaration of Cole ¶¶1, 2.)

Cole further indicates that two of these Horses turn 3 years old on January 1, 2026 and the other turns 2 on that date, and that the Horses will decline in value if they are not sold to a purchaser who intends to race them as race horses. (Declaration of Cole ¶2.) The estimated value of the Horses is $18,000. (Declaration of Cole ¶3.)

Further that “Those livestock services were provided pursuant to Rodney’s oral and implied promise on behalf of himself and his wife, to pay for such services (the “Contract”). At the time of the Contract, and at all times thereafter, Defendant was married to Rodney. During Rodney’s life, Defendant came with him to Plaintiff’s ranch to see the Horses.” (Declaration of Cole ¶4.)

The amount due as of November 30, 2025 is $36,751.71, no part of it has been paid, and that the Contract provides for a 1.5% interest service charge for any bill more than 10 days late. (Declaration of Cole ¶6, 7.)

Additionally, that Plaintiff intends to enter the Horses in the California Thoroughbred Breeders Association (the “CTBA”) 2026 Winter Mixed Sale, which is scheduled to be held on January 20, 2026 at noon in Pomona, CA. (Declaration of Cole ¶9.) Specifically, that “The January 20, 2026 sale is the most commercially reasonable method of selling the Horses. The sale is a public auction advertised by the CTBA. Buyers are able to bid in person and online. It is important to enter the Horses in the sale as soon as possible so that I can market the Horses by letting any potential bidders that I know that the Horses have been entered. The CTBA is going to publish supplemental entries in the sale soon.” (Declaration of Cole ¶10.)

Cole further states that Defendant “…was only served by substituted service on December 9, 2025.” (Declaration of Cole ¶14.) Plaintiff further seeks attorneys’ fees pursuant to Civil Code section 3080.01. (Declaration of Cole ¶ [sic] 12.)

Based on this, Plaintiff seeks an order, ex parte, to authorize the sale at the January 20, 2025 event.

The application contains a supporting statement under Civil Code section 3080.03(a), a declaration, as noted above, in support as to the facts supporting entitlement to a judgment under section 3080.03(b)  and a separate statutory notice

Authority and Analysis

Livestock Service Lien

“Sections 3080 and 3080.01 govern liens applying to livestock servicers who provide ‘all grazing, feeding, boarding, general care, which includes animal health services’ to livestock including ‘horse, . . . or other equine.’

…. Section 3080.02 also permits the lienholder to sell the animal but only after judicial authorization, a judgment or consent of the debtor. And, pursuant to sections 3080.09 and 3080.10, the debtor, after the posting of an undertaking, may regain possession of the animal before adjudication of the dispute.”  (Jakubaitis v. Fischer (1995) 33 Cal.App.4th 1601, 1604.)

Section 3080.01(a) states: "A livestock servicer shall have a general lien upon the livestock in its possession to secure the performance of all obligations of the owner of the livestock to the livestock servicer for . . . the following: …The provision of livestock services to the livestock in possession of the livestock servicer." (Code Civ. Proc. § 3080.01(a).)

"In addition to any other rights and remedies provided by law, a lienholder may:

(a) Retain possession of the livestock and charge the owner for the reasonable value of providing livestock services to the livestock until the owner's obligations secured by the lien have been satisfied.

(b) Proceed to sell all or any portion of the livestock pursuant to Section 3080.16 if:

(1) A judicial order authorizing sale has been entered pursuant to Section 3080.06;

…

(c) A lienholder may commence a legal action on its claim against the owner of the livestock . . . ." (Code Civ. Proc. § 3080.02.)

Here, Plaintiff asserts a livestock lien pursuant to 3080.01 and seeks a judicial order to sell the Horses pursuant to 3080.02(b).

Application for Order for Sale and Probable Validity

Section 3080.03 requires, as to the application for judicial order:

Upon the filing of the complaint, or at any time thereafter prior to judgment, the lienholder may apply to the court in which the action was commenced for an order authorizing sale of livestock.

(a) The application shall include all of the following:

(1) A statement showing that the sale is sought pursuant to this chapter to enforce a livestock service lien;

(2) A statement of the amount the lienholder seeks to recover from the defendant and the date that amount became due;

(3) A statement setting forth the reasons why a sale should be held prior to judgment;

(4) A description of the livestock to be sold and an estimate of the fair market value thereof; and

(5) A statement of the manner in which the lienholder intends to sell the livestock. The statement shall include, but not be limited to, whether the sale will be public or private, the amount of proceeds expected from the sale, and, why the sale, if authorized, would conform to the standard of commercial reasonableness set forth in Section 3080.16.

(b) The application shall be supported by an affidavit or affidavits showing that on the facts presented therein the lienholder would be entitled to a judgment on the claim upon which the action is brought.

The Court finds the application complies with subsection (a) as to the required additional statements, description of the livestock and a statement in the manner in which the livestock seeks to be sold.

Probable Validity

As to subsection (b), the Court evaluates Plaintiff’s claim for probable validity as to breach of contract.

Plaintiff states “Defendant is indebted to Plaintiff for the services as they were debts incurred during and after her marriage to Rodney” and that, under FN1:

“Since the debts were incurred in California, California law governs the substantive rights and obligations regarding the debt, including whether the surviving spouse is liable. (Civil Code, § 1646; Probate Code, § 13550 [*** upon the death of a married person, the surviving spouse is personally liable for the debts of the deceased spouse chargeable against the property ***])

Civil Code section 1646 states “A contract is to be interpreted according to the law and usage of the place where it is to be performed; or, if it does not indicate a place of performance, according to the law and usage of the place where it is made.”

Probate Code section 13550 states: “ Except as provided in Sections 11446, 13552, 13553, and 13554, upon the death of a married person, the surviving spouse is personally liable for the debts of the deceased spouse chargeable against the property described in Section 13551 to the extent provided in Section 13551.”

The potential application of these exceptions, and the extent provided by 13551 are unaddressed in this application.

The Court notes that Probate Code section 13551 states:

“The liability imposed by Section 13550 shall not exceed the fair market value at the date of the decedent’s death, less the amount of any liens and encumbrances, of the total of the following:

(a) The portion of the one-half of the community and quasi-community property belonging to the surviving spouse under Sections 100 and 101 that is not exempt from enforcement of a money judgment and is not administered in the estate of the deceased spouse.

(b) The portion of the one-half of the community and quasi-community property belonging to the decedent under Sections 100 and 101 that passes to the surviving spouse without administration under this part.

(c) The separate property of the decedent that passes to the surviving spouse without administration under this part.”

There is no information before the Court that the liability here does not exceed the fair market value of the categories listed under (a), (b) and (c).

The Court further notes Probate Code section 13553 states “The surviving spouse is not liable under this chapter if all the property described in paragraphs (1) and (2) of subdivision (a) of Section 13502 is administered under this code.” There is no discussion that the property was not administered as such.

As to the probable validity on breach of contract, the Court notes “To prevail on a breach of contract cause of action, cross-complainants must establish (1) a contract; (2) its performance or excuse for nonperformance; (3) breach; and (4) damages” and “[t]he elements of a breach of oral contract claim are the same as those for a breach of written contract” (Stockton Mortgage, Inc. v. Tope (2014) 233 Cal.App.4th 437, 447, 453.)

Here, Plaintiff has shown, at least, a contract between Plaintiff and Rodeny, Plaintiff’s performance thereunder regarding care for the Horses, the failure to pay as to breach and damages exceeding $36,000.

However, the Court, as indicated above, does not find, based on the presentation of facts and law before it, that, as a matter of law, Defendant is responsible for this debt as the surviving spouse of Rodney.

Hearing and Service / Ex Parte Requirements

Section 3080.03(c) states:

(c) A hearing shall be held in the court in which the lienholder has brought the action before an order authorizing sale is issued under this chapter. Except as provided in Section 3080.15, or as ordered by the court upon good cause shown, the defendant shall be served with a copy of all of the following at least 10 days prior to the date set for hearing:

(1) A summons and complaint;

(2) A notice of application and hearing; and

(3) An application and all affidavits filed in support thereof.

Section 3080.15 indicates that

(a) Except as otherwise provided by statute, or upon noticed hearing as provided in this chapter, no order authorizing sale or order for substitution of undertaking for livestock may issue unless it appears from facts shown by affidavit that great or irreparable injury would result to the party seeking the order if the issuance of the order were delayed until the matter could be heard upon noticed hearing.

(b) In addition to a specific statement of the facts showing great or irreparable injury, any application made under this section for either an order authorizing sale or an order substituting undertaking for livestock shall include the substantive requirements of an application made under Section 3080.03 or Section 3080.09, respectively.

(c) The court shall examine the ex parte application, supporting affidavits and other papers on record and may issue the order sought if it finds all of the following:

(1) The party seeking the order is entitled to the order under the substantive provisions of this chapter;

(2) The party seeking the order will suffer great and irreparable injury if the order is not issued; and

(3) If the ex parte application is made for an order authorizing sale, the court determines that the condition of the livestock will greatly deteriorate or the value of the livestock will greatly depreciate before an order authorizing sale could be obtained pursuant to noticed hearing.

(d) An order issued under this section shall contain such provisions as the court determines to be in the interests of justice and equity to the parties, taking into account the effects on all parties under the circumstances of the particular case. If an order authorizing sale issues under this section, the court may authorize the lienholder to take any action necessary to preserve the value of the livestock so long as the court has determined that such action would be commercially reasonable under the circumstances.

(e) Upon ex parte application of any party affected by an order issued under this section or, if the court so orders, after a noticed hearing, the court may modify or vacate the order if it determines that such action would be proper under the circumstances.

The Court does not read Section 3080.03(c) to completely eliminate the necessity of proper service of the summons and complaint.

As noted above, the Court does not find proper service by mail based on a filed proof of service indicating evidence of receipt nor on substitute service based on hearsay statements as to prior attempts and due diligence.

Further, the Court cannot find a probable validity on the merits of the breach of contract claim absent discussion as the various exceptions and requirements noted under Probate Code section 13550.

Therefore, the Court denies the application without prejudice.

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

Examiner Notes for Probate Matters Calendared

• Visalia Division 
• South County Justice Center Division