Tentative Rulings

The Tentative Rulings for Tuesday, October 27, 2026, are:

Re:                Enriquez, Veronica vs. All American Labor Service, Inc.

Case No.:   VCU310439

Date:           October 27, 2026

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     Hearing re: Final Compliance

Tentative Ruling: On October 13, 2026, the settlement administrator, through its case manager, filed a declaration indicating that the deadline for the participating class members to cash their settlement award check is November 2, 2026. As of the date of the declaration, $55,275.86 remains uncashed. Therefore, the Court continues this matter to November 17, 2026, 8:30 am, Dept. 2. No appearance is required.

If a further declaration by the settlement administrator is filed prior to the hearing as to the distribution of the settlement fund, no appearance will be required.

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. Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings.

Re:                Kawasaki-Yee, Sinitia vs. Morfin, Jovany

Case No.:   VCU331531

Date:           October 27, 2026

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     Plaintiff’s Motions to Compel Initial Responses to (1) Form Interrogatories, Set One, as to Defendant Jonathan Morfin (2) Form Interrogatories, Set One, as to Defendant Jovany Morfin (3) Special Interrogatories, Set One, as to Defendant Jonathan Morfin (4) Special Interrogatories, Set One, as to Defendant Jovany Morfin (5) Requests for Production, Set One, as to Defendant Jonathan Morfin (6) Requests for Production, as to Defendant Jovany Morfin

Tentative Ruling: (1) through (6): To grant the motions; to order responses due within thirty (30) days of notice of this motion; to impose sanctions against Defendant Jonathan Morfin in the amount of $525, due within thirty (30) days of notice of this motion; to impose sanctions against Defendant Jovany Morfin in the amount of $525, due within thirty (30) days of notice of this motion; to order Plaintiff to give notice

Facts Common to (1) through (6)

Plaintiff sues Defendants Jonathan Morfin and Jovany Morfin for breach of contract, fraud, rescission, and restitution.

On May 13, 2026, Plaintiff served (1) Form Interrogatories, Set One, as to Defendant Jonathan Morfin (2) Form Interrogatories, Set One, as to Defendant Jovany Morfin (3) Special Interrogatories, Set One, as to Defendant Jonathan Morfin (4) Special Interrogatories, Set One, as to Defendant Jovany Morfin (5) Requests for Production, Set One, as to Defendant Jonathan Morfin (6) Requests for Production, as to Defendant Jovany Morfin on Defendants’ counsel.

Counsel for Defendants sought an extension to respond, but no responses to the above discovery have been made.

Plaintiff, therefore, seeks to compel initial responses.

Plaintiff’s notices of motion further seek sanctions against Defendants. However, the notices fail to seek sanctions as against Defendants’ counsel.

No opposition appears filed.

The Court notes that Defendants’ counsel has filed motions to be relieved as counsel as each Defendant and that the hearings on these motions are set for December 1, 2026.

Authority and Analysis

(1) through (4) - Interrogatories

Based on Defendants’ failures to respond to the first sets of form and special interrogatories, the Court orders under, Code of Civil Procedure section 2030.290(a), that Defendants provide full and complete verified responses without objection to Plaintiff’s first sets of form interrogatories and first sets of special interrogatories, within thirty (30) days of notice of this motion. Plaintiff shall give notice.

(5) and (6) – Requests for Production

Based on Defendants’ failures to respond to the first sets of requests for production of documents, the Court orders under, Code of Civil Procedure section 2031.300(a) that Defendants provide full and complete verified responses without objection to Plaintiff’s first sets of requests for production of documents, within thirty (30) days after service of the notice of this ruling for this motion. Plaintiff shall give notice.

Sanctions

“A request for a sanction shall, in the notice of motion, identify every person, party, and attorney against whom the sanction is sought, and specify the type of sanction sought. The notice of motion shall be supported by a memorandum of points and authorities, and accompanied by a declaration setting forth facts supporting the amount of any monetary sanction sought.” (Code Civ. Proc. § 2030.040.)

Here, the notices only identify Defendants as the party against whom the monetary sanction is sought.

Plaintiff seeks sanctions for 5 hours at the rate of $400 per hour for each motion.

The Court notes there is no meet and confer requirement and all that is necessary to obtain the relief requested on this motion to compel initial responses is that the other party failed to respond within the designated time.

Further, “[t]he reasonable hourly rate is that prevailing in the community for similar work.” (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095 [internal citation omitted]. “The experienced trial judge is the best judge of the value of professional services rendered in his court.” (Id.)

The Court will set the hourly rate at $350.

The Court will award one half hour as to each motion.

Under Code of Civil Procedure sections 2030.290(c) (Interrogatories) and 2031.300(c) (Requests for Production), the Court will impose sanctions as follows:

• $525 as to Defendant Jonathan Morfin, due no later than thirty (30) days after service of the notice of this ruling for this motion. Plaintiff shall give notice.
• $525 as to Defendant Jovany Morfin, due no later than thirty (30) days after service of the notice of this ruling for this motion. Plaintiff shall give notice.

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. Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings.

Re:                Rodriguez, Luis vs. Volt Management Corp.

Case No.:   VCU327856

Date:           October 27, 2026

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     (1) Plaintiff’s Motions to Compel Further Responses to Special Interrogatories; (2) Plaintiff’s Motions to Compel Further Responses to Requests for Production of Documents

Tentative Ruling: (1) and (2): There are no tentative rulings on the merits for these motions. The parties are directed to meaningfully meet and confer before the hearing of these motions to resolve the discovery disputes identified in the moving and opposition papers for these discovery motions. If unable to resolve, counsel are directed to personally appear for the hearing on these discovery motions. No CourtCall or Zoom appearances will be permitted if the parties are unable to resolve this matter prior to the scheduled 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. Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings.

Re:                Delgadillo, Tobias vs. Ruiz Foods Exports, Inc.

Case No.:   VCU317124

Date:           October 27, 2026

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     (1) Defendants’ Motion to Compel Arbitration; (2) Defendants’ Motion to Augment Expert Designation; (3) Plaintiff’s Motion to Compel Site Inspection

Tentative Ruling: (1) To deny the motion on the grounds of waiver; (2) To deny the motion; (3) To deny the motion.

(1) Defendants’ Motion to Compel Arbitration

Background Facts

In this matter filed January 16, 2025, Plaintiff sues Defendants Ruiz Food Exports, Inc. and Ruiz Food Products, Inc (formerly Doe 1) for

1. Discrimination in Violation of the California Fair Employment and Housing Act (“FEHA”)

2. Failure to Engage in the Interactive Process in Violation of FEHA

3. Failure to Provide Reasonable Accommodations in Violation of FEHA

4. Retaliation in Violation of FEHA

5. Failure to Prevent Discrimination and Retaliation in Violation of FEHA

6. Retaliation in Violation of Labor Code Section 1102.5

7. Wrongful Termination in Violation of Public Policy

8. Violation of Cal. Labor Code §§ 226.7, and 512(A) (Unpaid Meal Period Premiums)

9. Violation of Cal. Labor Code § 226.7 (Unpaid Rest Period Premiums)

10. Violation of Cal. Labor Code §§ 201, 202, 203, 558, And 558.1 (Final Wages Not Timely Paid)

11. Violation of Cal. Labor Code § 226(A) (Failure to Provide Accurate Wage Statements)

12. Violation of Cal. Labor Code §§ 226, 432, And 1198.5 (Failure to Produce Employment Records)

Trial was initially set October 12, 2026.

On September 24, 2026, Defendants moved ex parte to continue trial due to lead trial counsel’s medically necessary surgery on September 30, 2026 and a medical recommendation to remain off work through November 2, 2026. The Court granted the application and continued trial to December 7, 2026. The discovery cut off deadlines and expert disclosure dates, however, were not extended by the continued trial date.

On October 1, 2026, Defendants filed this motion to compel arbitration of these claims based Plaintiff’s purported handwritten signature on an Arbitration Agreement (“Agreement”).

Facts - Delegation Clause

Although no party discuss it, the Court notes the Agreement states:

“Except as otherwise provided you and the Company agree that any legal dispute or controversy covered by this Agreement, or arising out of, relating to, or concerning the scope, validity, enforceability or breach of this Agreement, shall be resolved by final, and binding arbitration…”

Authority and Analysis – Delegation Clause

Malone v. Superior Court (2014) 226 Cal.App.4th 1551 summarizes the applicable analysis with respect to delegation clauses:

“A delegation clause requires issues of interpretation and enforceability of an arbitration agreement to be resolved by the arbitrator. Delegation clauses have the potential to create problems of circularity. For example, suppose an arbitration agreement delegates the issue of enforceability to the arbitrator. If the arbitrator concludes that the arbitration agreement is, in fact, not enforceable, this would mean that the entire agreement, including the delegation clause, is unenforceable-a finding that would undermine the arbitrator's jurisdiction to make that finding in the first place. For this reason, courts have treated the delegation clause as a separate agreement to arbitrate solely the issues of enforceability…

“For this reason, when a party is claiming that an arbitration agreement is unenforceable, it is important to determine whether the party is making a specific challenge to the enforceability of the delegation clause or is simply arguing that the agreement as a whole is unenforceable. If the party's challenge is directed to the agreement as a whole--even if it applies equally to the delegation clause--the delegation clause is severed out and enforced; thus, the arbitrator, not the court, will determine whether the agreement is enforceable. In contrast, if the party is making a specific challenge to the delegation clause, the court must determine whether the delegation clause itself may be enforced (and can only delegate the general issue of enforceability to the arbitrator if it first determines the delegation clause is enforceable). (Rent-A-Center, West, Inc. v. Jackson (2010) 561 U.S. 63, 70)”

Caremark, LLC v. Chickasaw Nation (9th Cir. 2022) 43 F.4th 1021, 1029-1030 notes:

“…the issues reserved to the courts for decision ‘always include’ whether an arbitration agreement was formed, even in the presence of a delegation clause. [citations omitted]. That principle follows from the fundamental premise that arbitration is "strictly 'a matter of consent.'" [citations omitted] ‘To take the question of contract formation away from the courts would essentially force parties into arbitration when the parties dispute whether they ever consented to arbitrate anything in the first place." [citations omitted]...Accordingly, a court ‘should order arbitration of a dispute only where the court is satisfied that neither the formation of the parties' arbitration agreement nor (absent a valid provision specifically committing such disputes to an arbitrator) its enforceability or applicability to the dispute is in issue.”

Here, the Court will first examine whether the delegation clause is effective as to delegating the waiver issue to the arbitrator. “There are two prerequisites for a delegation clause to be effective. First, the language of the clause must be clear and unmistakable. [citation omitted] Second, the delegation must not be revocable under state contract defenses such as fraud, duress, or unconscionability.” (Tiri v. Lucky Chances, Inc. (2014) 226 Cal.App.4th 231, 242.)

Here, the delegation clause does not expressly call out waiver as an issue for the arbitrator to decide. Rather, it broadly seeks to delegate issues regarding “the scope, validity, enforceability or breach of this Agreement.” While, arguably, waiver could be included in this list as to enforceability of the Agreement, the Court notes “California statutory and decisional authority recognizes the issue of waiver by litigation conduct is ordinarily resolved by the trial court, not an arbitrator…. The trial court correctly ruled it, rather than an arbitrator, should decide the merits of the waiver by litigation conduct defense to arbitration asserted by plaintiffs.” (Hong v. CJ CGV America Holdings, Inc. (2013) 222 Cal.App.4th 240, 243.)

Here, absent a delegation clause that expressly delegates waiver or waiver by litigation to the arbitrator, the Court will adjudicate the issue of waiver prior to further discussion as to the delegation clause, and its impact on formation, enforcement and other issues expressly contemplated by the clause.

Facts – Waiver by Litigation

Defendants argue they have not waived the right to compel arbitration in this matter because of a change in the law as to unconscionability analysis surrounding the application Cook v. University of Southern California (2024) 102 Cal.App.5th 312 in light of the Fifth District’s opinion in Ayala-Ventura v. Superior Court (2026) 119 Cal. App. 5th 241, which was published February 19, 2026. Defendants argue that the Agreement would have been found unconscionable under Cook, and therefore only until Ayala-Ventura was published could this motion to compel arbitration been made.

In response, Plaintiff notes this matter was filed January 16, 2025, that Defendants case management statement reflected an intent to file a motion to compel arbitration, and that on January 17, 2026, a copy of the Arbitration Agreement was emailed to Plaintiff’s counsel. (Declaration of Davis ¶¶4, 5.)

Further, Plaintiff notes that on March 9, 2026, Plaintiff took the position that arbitration had been waived in this matter. (Declaration of Davis ¶6.) Since March 9, 2026, Plaintiff states:

“…the parties continued litigating this case in this Court as if no arbitration motion would be pursued. Critically, the discovery cutoff has already passed, and both sides have completed essentially all discovery, except for a few final issues which the parties previously agreed to address after the discovery cutoff. Both sides propounded and responded to written discovery, conducted nine depositions (with two additional depositions scheduled for October 21 and October 23), retained experts, engaged in expert discovery, and incurred substantial trial-preparation expenses. Plaintiff also retained outside trial counsel in reliance on the operative trial schedule.” (Declaration of Davis ¶8.)

Plaintiff states further “Plaintiff would not have agreed to a trial continuance based on defense counsel's medical condition if Plaintiff had known Defendants intended to use the additional time created by the continuance to seek relief moving this matter to arbitration.” (Declaration of Davis ¶13.)

“[I]n determining whether a party to an arbitration agreement has lost the right to arbitrate by litigating the dispute, a court should treat the arbitration agreement as it would any other contract, without applying any special rules based on a policy favoring arbitration.” (Quach v. California Commerce Club, Inc. (2024) 16 Cal.5th 562, 583.) “To establish waiver under generally applicable contract law, the party opposing enforcement of a contractual agreement must prove by clear and convincing evidence that the waiving party knew of the contractual right and intentionally relinquished or abandoned it.” (Id. at 584.)

St. Agnes Medical Center v. PacifiCare of California (2003) 31 Cal.4th 1187, 1196 notes:

“ ‘In determining waiver, a court can consider “(1) whether the party's actions are inconsistent with the right to arbitrate; (2) whether ‘the litigation machinery has been substantially invoked’ and the parties ‘were well into preparation of a lawsuit’ before the party notified the opposing party of an intent to arbitrate; (3) whether a party either requested arbitration enforcement close to the trial date or delayed for a long period before seeking a stay; (4) whether a defendant seeking arbitration filed a counterclaim without asking for a stay of the proceedings; (5) ‘whether important intervening steps [e.g., taking advantage of judicial discovery procedures not available in arbitration] had taken place’; and (6) whether the delay ‘affected, misled, or prejudiced’ the opposing party.” ’ ”

However, the Court notes that Quach, supra, 16 Cal. 5^th at 585, FN5 has eliminated the requirement of prejudice, noting that waiver is to be determined “…based on the words and conduct of the waiving party.”

The delay in filing this motion, alone, is insufficient as to clear and convincing evidence of intentional relinquishment or abandonment. (Khalatian v. Prime Time Shuttle, Inc. (2015) 237 Cal.App.4th 651, 663. The Court recognizes here the 22 month time period from service of the complaint to the filing of this motion to compel arbitration, noting the delay in Quach was 13 months. (Quach, supra, 16 Cal. 5^th at 586.) As such, this factor, alone, does not warrant a finding of waiver.

However, the Court examines the other relevant conduct of the Defendants.

The Court notes the filing of this motion approximately two months before trial and only after a continuance of trial was provided. (Fleming Distribution Co. v. Younan (2020) 49 Cal.App.5th 73, 84 [“[A] party's unreasonable delay in demanding or seeking arbitration, in and of itself, may constitute a waiver of a right to arbitrate.”].)

Additionally, the Court notes Quach, supra, 16 Cal. 5^th at 586-587 where the defendant propounded three sets of written discovery, took the plaintiff’s deposition and requested jury trial prior to moving to compel. Here, Plaintiff’s counsel notes Defendant propounded and responded to discovery, that both sides “conducted nine depositions (with two additional depositions scheduled for October 21 and October 23), retained experts, engaged in expert discovery, and incurred substantial trial-preparation expenses.”

As to Defendants’ explanation for the timing of this motion to compel arbitration, the Court does recognize that Ayala-Ventura, in many cases, raises issues concerning the application of Cook on the unconscionability analysis based on the defendant’s “…well-known, broad capacity…” of its reach and those of its related entities. Defendants cite to Piplack v. In-N-Out Burgers (2023) 88 Cal.App.5th 1281 and Barrera v. Apple American Group, LLC (2023) 95 Cal.App.5th 63, as examples of arbitration motions filed after a change in the law under Viking River Cruises, Inc. v. Moriana (2022) 596 U.S. 639.

In response, Plaintiff argues that Viking River represented a complete shift in the law regarding the splitting of PAGA claims, while Ayala-Ventura “…simply distinguished the facts in its case from the facts in Cook, as often occurs in Appellate Court cases.” While the Court agrees that the Viking River decision directly changed the state of the law regarding PAGA claims under the FAA, the Court also finds that the Ayala-Ventura decision’s differentiation of Cook significantly impacted the Court’s unconscionability analysis on motions to compel arbitration.

More persuasive, however, is Plaintiff’s argument that Piplack and Barrera are distinguishable, and that Semprini v. Wedbush Securities Inc. (2024) 101 Cal.App.5th 518 should apply here.

In Piplack, only two months elapsed between the decision in Viking River and the filing of the motion to compel arbitration. In Barrera, three months had elapsed.  

Both courts found no waiver had occurred. In Piplack, the court noted that “Initially, the case proceeded in relatively ordinary fashion, with the filing of answers, demurrers, amended complaints, and a discovery motion” and “The fact that defendant vigorously defended itself in the trial court makes no difference because the relevant question is whether there was any unreasonable delay.” (Piplack, supra, 88 Cal. App. 5th at 1286, 1289.) In Barerra, “Initially, the case proceeded in relatively ordinary fashion, with defendants filing a demurrer, plaintiffs serving discovery requests, and defendants responding to those requests.” (Barrera, supra, 95 Cal. App. 5^th at 71.) Both courts found that the defendants raised the right to arbitration as soon as they had any chance of success. (Piplack, supra, 88 Cal. App. 5th at 1289; Barrera, supra, 95 Cal. App. 5^th at 79.)

By contrast, the court in intent Semprini, supra, 101 Cal. App. 5th found defendant had waived its right to compel arbitration where the Viking River decision was announced in June 2022, defendant had its employees sign new arbitration agreements, but “[i]n the months that followed, despite the approaching May 1 trial date, [defendant] did not advise Plaintiffs of its intent to move to compel arbitration pursuant to either Viking River or the newly signed arbitration agreements. Instead, [defendant] filed a motion to decertify the class in October 2022, and a motion to exclude certain class members from the class in November 2022. In January and February 2023, it propounded further written discovery on each named plaintiff, including additional requests for production of documents, special interrogatories, requests for admissions, form employment interrogatories, and deposition notices.” (Id. at 524-525.)

Thereafter, in Semprini, “On March 17, 2023, the trial court continued the trial date from May 1, 2023, to August 21, 2023. On March 22, 2023, [defendant] filed its motion (1) to compel [plaintiffs] to arbitrate their individual PAGA claims, and then dismiss the remaining representative portion of their PAGA claims for lack of standing under Viking River, and (2) to compel the 24 class members who signed arbitration agreements in the fall of 2022 to arbitration.” (Id. at 525.) The trial court denied the motion to compel arbitration, finding waiver. (Id.)

The appellate court, in affirming the trial court’s denial, noted “It is well established that a four- to six-month delay in enforcing the right to arbitrate may result in a finding of waiver if the party acted inconsistently with the intent to arbitrate during that window” and concluded that defendant “….waited until nine months after the Supreme Court issued the Viking River decision to file its motion to compel arbitration. During those nine months [defendant] engaged in conduct inconsistent with an intent to compel arbitration, including motion practice and discovery, and we find nothing in our record to suggest [defendant] advised Plaintiffs of its plans to compel arbitration during that time. That nine-month delay, coupled with Wedbush's other conduct inconsistent with an intent to compel arbitration, resulted in a waiver.” (Id. at 527, 530.)

Here, there is no explanation as to the delay of 8 months in filing this motion following the publishing of the Ayala-Ventura decision and the conduct during those months inconsistent with an intent to compel arbitration, including propounding and responding to discovery, conducting depositions, retention of experts and disclosure thereof, continuing trial and engaging in expert discovery. Specifically, the Court notes Defendants pending motion to augment the expert disclosure by adding an expert inconsistent with an intent to arbitrate.

The Court, therefore, denies the motion on grounds of waiver.

(2) Defendants’ Motion to Augment Expert Designation

Facts

On July 30, 2026, Plaintiff served a demand for exchange of expert trial witness information that set the exchange for August 24, 2026, at 10:00 a.m. On August 24, 2026, Defendants served their expert witness disclosure pursuant to the demand, stating Defendants “…reserve the right to utilize any expert who has been or will be revealed through discovery in this action, as well as those expe1is designated by the other parties to this action, and any supplemental or rebuttal experts which may designated in response to the Designation of Experts provided by any other party to this action.”

Plaintiff was deposed in this matter on September 9, 2026. Defendant notes that Plaintiff testified that “he has not been employed since separating from Defendant Ruiz Food Products, Inc. in January 2024,” has applied to three places of employment and “only sought employment for the first three months following his separation.” (Declaration of Sanchez ¶4.) Further, Plaintiff underwent knee replacement surgery in September 2024, delaying his job search. (Declaration of Sanchez ¶4.)

Defendants, in response to the deposition testimony, retained Paul Standford, a vocational expert, to testify as to Plaintiff’s employability, the time frame in which Plaintiff should have found work, and Plaintiff’s mitigation efforts regarding the same, and related issues. (Declaration of Sanchez ¶5.) Defendants indicate they disclosed Stanford on September 14, 2026, the deadline to supplement expert witness lists. (Declaration of Sanchez ¶5.) Defendants note they have made Stanford available for deposition.

In opposition, Plaintiff notes this lawsuit was filed January 16, 2025, and that Plaintiff sought economic damages, including lost wages and benefits from the outset of the litigation. (Declaration of Domb ¶2.)

Further, that Defendants served Requests for Production of Documents, Set One, Form Interrogatories (General), Set One, and Form Interrogatories (Employment Law), Set One, on August 11, 2026 and that Plaintiff served responses September 14, 2026. (Declaration of Domb ¶3.) Further, that Defendants deposed Plaintiff after the initial expert exchange and one month before the initial trial date set in this matter. (Declaration of Domb ¶3.) Plaintiff has not designated any retained experts on the subject matters of economic damages, employability, vocational rehabilitation, or mitigation. (Declaration of Domb ¶6.)

Plaintiff notes expert discovery closed September 28, 2026.

Further, as to prejudice, Plaintiff’s counsel states “Plaintiff's trial preparation and litigation strategy were undertaken in reliance on the parties' disclosed expert witnesses and the applicable expert discovery deadlines. Allowing Defendants to introduce Mr. Stanford as a new retained expert after the close of expert discovery would materially alter the expert testimony Plaintiff must address at trial and disrupt Plaintiff's preparation of his case, thus causing prejudice to Plaintiff.” (Declaration of Domb ¶10.)

Authority and Analysis

Code of Civil Procedure section 2034.610 states:

(a) On motion of any party who has engaged in a timely exchange of expert witness information, the court may grant leave to do either or both of the following:

(1) Augment that party’s expert witness list and declaration by adding the name and address of any expert witness whom that party has subsequently retained.

(2) Amend that party’s expert witness declaration with respect to the general substance of the testimony that an expert previously designated is expected to give.

(b) A motion under subdivision (a) shall be made at a sufficient time in advance of the time limit for the completion of discovery under Chapter 8 (commencing with Section 2024.010) to permit the deposition of any expert to whom the motion relates to be taken within that time limit. Under exceptional circumstances, the court may permit the motion to be made at a later time.

(c) The motion shall be accompanied by a meet and confer declaration under Section 2016.040.

As to (a), Defendants have engaged in a timely exchange of expert witness information and seek to augment the list by adding Stanford under (a)(1).

As to (b), the Court agrees with Plaintiff that this motion is made at an insufficient time in advance of the limit to complete discovery to permit the deposition of the expert. The expert discovery cut off date remained at September 28, 2026 and was not continued with the trial date. Defendants filed this motion October 1, 2026. As such, Defendants must establish exceptional circumstances for the Court to permit this motion to be made at a later time. Defendants have not demonstrated such. Defendants waited to depose Plaintiff until September 9, 2026, despite this case being filed in January 2025. The Court considers the deposition of the named Plaintiff to be an expected and anticipated discovery procedure. Defendants choice to take Plaintiff’s deposition after expert disclosures were due does not demonstrate exceptional circumstances to grant this motion.

Even if the Court found that 2034.610(b) was met, the Court must still find the conditions of section 2034.620 satisfied before granting the motion.

Code of Civil Procedure section 2034.620 states:

The court shall grant leave to augment or amend an expert witness list or declaration only if all of the following conditions are satisfied:

(a) The court has taken into account the extent to which the opposing party has relied on the list of expert witnesses.

(b) The court has determined that any party opposing the motion will not be prejudiced in maintaining that party’s action or defense on the merits.

(c) The court has determined either of the following:

(1) The moving party would not in the exercise of reasonable diligence have determined to call that expert witness or have decided to offer the different or additional testimony of that expert witness.

(2) The moving party failed to determine to call that expert witness, or to offer the different or additional testimony of that expert witness as a result of mistake, inadvertence, surprise, or excusable neglect, and the moving party has done both of the following:

(A) Sought leave to augment or amend promptly after deciding to call the expert witness or to offer the different or additional testimony.

(B) Promptly thereafter served a copy of the proposed expert witness information concerning the expert or the testimony described in Section 2034.260 on all other parties who have appeared in the action.

(d) Leave to augment or amend is conditioned on the moving party making the expert available immediately for a deposition under Article 3 (commencing with Section 2034.410), and on any other terms as may be just, including, but not limited to, leave to any party opposing the motion to designate additional expert witnesses or to elicit additional opinions from those previously designated, a continuance of the trial for a reasonable period of time, and the awarding of costs and litigation expenses to any party opposing the motion.

The Court will examine subsection (c) of 2034.620 first, noting that it must find that Defendants either exercised reasonable diligence or failed to designate the expert due to mistake, inadvertence, surprise of excusable neglect. As noted above, the Court does not consider deposing Plaintiff after expert discovery cutoff to be an exercise in reasonable diligence.

Borrowing the definitions of mistake, inadvertence, surprise, or excusable neglect from relief from default matters, the Court notes the following definitions.

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

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

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

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

Defendants’ conduct does not fit any of these categories. Whatever new information that was learned from Plaintiff’s deposition that necessitated the retention of an expert cannot be said to be born out of mistake, surprise, excusable neglect or inadvertence.

Therefore, the Court denies the motion.

(3) Plaintiff’s Motion to Compel Site Inspection

Facts

Plaintiff brings causes of action against Defendants for disability discrimination, failure to accommodate, failure to engage in the interactive process, retaliation, wrongful termination, and related claims. Plaintiff suffered a back related injury and returned to work with modified duties. However, Plaintiff alleges Defendants terminated employment after deeming the injuries to be permanent and stationary and that no position could accommodate Plaintiff with restrictions. Plaintiff’s work restrictions at the time Defendant terminated his employment prohibited lifting, pushing, or pulling more than 20 pounds and repetitive bending and stooping.

One of Plaintiff’s contentions is that there were positions available into which Plaintiff could have been placed, including a Packer position and a Production Roller. As such, Plaintiff seeks to inspect Defendants’ packaging, processing, kitchen, bakery, and production departments where Plaintiff performed sanitation work, including the equipment he cleaned while on modified duty, in order to determine if the Packer and Production Roller positions were compatible with these restrictions. Plaintiff contents the inspection will reveal the actual duties of these positions.

On August 11, 2026, Plaintiff electronically served a demand for inspection of premises on Defendants seeking to inspect 501 South Alta Avenue, Dinuba, California 93618. The inspection was set for September 14, 2026, at 10:00 a.m.

Plaintiff’s counsel indicates “I intend to document workstation height, reach distances, the handling of products, and the frequency and extent of bending and stooping. Recording a complete task cycle would permit evaluation of the sequence and repetition of movements in comparison to Plaintiff’s work restrictions.” (Declaration of Davis ¶23.)

Plaintiff states “On September 9, 2026, Defendants’ counsel indicated Defendants would be objecting to the inspection” but that no objection was served. (Declaration of Davis ¶12.)

Defendants contend that on September 9, 2026, it electronically served an objection to the site inspection. (Declaration of Sanchez ¶3 – Ex. 1.) Defendants objected to the videotaping and photographing of the site by Plaintiff’s counsel, amongst other objections under trade secret and confidentiality grounds.

Plaintiff continued to seek a  mutually available inspection date and the parties appear to have agreed that October 2, 2026 and continued to discuss the logistics of the inspection, including the execution of a stipulated protective order executed September 21, 2026 and filed October 5, 2026.

Plaintiff’s counsel notes “Defendant would not permit Plaintiff to take photographs or video during the inspection. The parties had agreed that the inspection would take place on October 2, 2026, from 10:00 a.m. to noon. I explained that photography and videography were expressly included in Plaintiff’s August 11 demand and were necessary to document the relevant conditions and work activities.” (Declaration of Davis ¶17.) Further, that Defendants took the position that “its machines, production process, and arrangement of the work areas to be protected proprietary information and trade secrets.” (Declaration of Davis ¶19.) Additionally that “Defendant would continue to prohibit photography and videography based on its claimed trade-secret protections. He stated that Defendant would instead take photographs and video of the jobs at issue and provide those materials after blurring information it considered protected. He also asserted food-safety and other security concerns and stated that an inspection would be subject to Defendant’s proposed parameters and forms.” (Declaration of Davis ¶21.)

Defendants note that on October 2, 2026, they “…remained agreeable to a site inspection subject to a time limit, safety requirements, and its visitor and confidentiality forms, and that Ruiz Foods offered to take video and photographs of the jobs at issue being performed and to produce them to Plaintiffs counsel, with protected material blurred.” (Declaration of Sanchez ¶4.)

The inspection did not take place on October 2, 2026.

Plaintiff contends that Defendants’ offer to photograph and video the “…the jobs at issue and provide those materials after blurring information it considered protected” is insufficient. (Declaration of Davis ¶21.) Additionally, Plaintiff notes Defendants raise issues of “food-safety and other security concerns and stated that an inspection would be subject to Defendant’s proposed parameters and forms.” (Declaration of Davis ¶21.) However, Plaintiff notes Defendants’ employee testified that “students studying industrial mechanics had recently toured he facility. He described the precautions required of visitors, including appropriate shoes, earplugs, smocks, hairnets, and the removal of jewelry. He further testified that plant tours did not disrupt operations.” (Declaration of Davis ¶6.)

Plaintiff notes “Plaintiff is willing to conduct the inspection under supervision and to comply with reasonable food-safety and security requirements. The requested inspection does not seek recipes, ingredient formulas, or technical design documents. Plaintiff is also willing to limit recording to the relevant work areas and operations, restrict access to authorized litigation participants, and address particular confidential details through a protocol that preserves evidence of the physical job requirements.” (Declaration of Davis ¶25.)

On October 5, 2026, Plaintiff filed this motion to compel the site inspection, seeking relief as well under Code of Civil Procedure section 2024.050, noting this motion is made beyond the discovery motion cut off period tied to the initial trial date.

In opposition, Defendant argues it has made a valid objection to the site inspection request, that this motion has been made after discovery cut off, that video and photograph would reveal trade secrets, that no waiver occurred and that initial demand did not identify the Packer, Production Roller, or Production Line Runner positions which seek to be inspected.

Authority and Analysis

Discovery Cut Off

Code of Civil Procedure § 2024.020(a) states:

“Except as otherwise provided in this chapter, any party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th day, and to have motions concerning discovery heard on or before the 15th day, before the date initially set for the trial of the action.”

Here, the last day to hear discovery motions was fifteen days prior to the initial trial date of October 12, 2026 or September 27, 2026.

This motion was filed October 5, 2026, after the cut off date.

Plaintiff, however, did not file a motion to have the motion heard “closer to the initial trial date, or to reopen discovery." (Code Civ. Proc. § 2024.050(a).)

At most, Plaintiff’s motion states “To the extent necessary, Plaintiff also requests limited relief under Section 2024.050 to complete the inspection.” However, the motion does not address the requirements of section 2024.050(b):

(b) In exercising its discretion to grant or deny this motion, the court shall take into consideration any matter relevant to the leave requested, including, but not limited to, the following:

(1) The necessity and the reasons for the discovery.

(2) The diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier.

(3) Any likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party.

(4) The length of time that has elapsed between any date previously set, and the date presently set, for the trial of the action.

On this issue, the Court examines Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165 Cal.App.4th 1568.

There, the plaintiff filed a motion to compel defendant to provide discovery responses, after the discovery motion cut-off date. (Id. at 1574-1575.) The trial court granted the motion to compel, over defendant's objection that the motion was untimely. (Id. at 1577.) Further, the trial court granted plaintiff's motion for terminating sanctions, based on a finding that defendant had not complied with the prior order compelling responses. (Id. at 1583-1584.)

However, the court of appeal reversed, finding that an abuse of discretion in hearing plaintiff's original motion to compel responses, absent a motion pursuant to Code of Civil Procedure § 2024.050:

“Although Pelton-Shepherd had no right to have its motion to compel heard after the passage of the discovery motion cutoff date, we do not question that the trial court had discretion to hear the motion. But ‘[t]he scope of discretion always resides in the particular law being applied, i.e., in the 'legal principles governing the subject of [the] action ' Action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an 'abuse' of discretion." [Citation.] Here, the trial court's discretion to hear Pelton-Shepherd's motion to compel was governed by section 2024.020, which provided that (1) the last day for Pelton-Shepherd to have its motion to compel heard as a matter of right was October 31, 2005, and that (2) the postponement of the trial date did not "operate to reopen discovery proceedings" "[e]xcept as provided in Section 2024.050"—that is, except upon a successful motion for leave to reopen discovery. Moreover, under section 2024.050, subdivision (b), the trial court's discretion to grant such a motion was not unfettered, but could be exercised only upon [the consideration of the items specified in Code of Civil Procedure section 2024.050(b)] …” (Id. at 1587-1588.)

Because Plaintiff has neither made a separate motion addressing the subsection (b) factors nor addresses those factors in the present motion, the Court cannot exercise its discretion to hear this motion. The Court notes, however, that it does not consider the August 11, 2026 demand illustrative of diligence in this matter, given the filing of this case in January 2025.

The Court, therefore, denies the motion on this ground.

Motion to Compel Inspection and Motion to Compel Further Inspection

Code of Civil Procedure section 2031.010(d) states:

“(d) A party may demand that any other party allow the party making the demand, or someone acting on the demanding party’s behalf, to enter on any land or other property that is in the possession, custody, or control of the party on whom the demand is made, and to inspect and to measure, survey, photograph, test, or sample the land or other property, or any designated object or operation on it.”

Here, Plaintiff, on August 11, 2026, served an inspection demand seeking to inspect “…the Dinuba plant where Plaintiff performed his work duties as a sanitation specialist in the packaging line/department, processing department, kitchen department, bakery department, and production department. Plaintiff demands inspection of the areas where he was assigned sanitation and cleaning duties, including but not limited to equipment such as the spiral freezer, fryers, "Fujis" packaging machinery, and other equipment he cleaned while on modified duties from approximately November 1, 2023, up to January 30, 2024, when Defendant terminated Plaintiff’s employment.” The demand stated “The area will be subjected to inspection, measurement, surveying, photographing, videotaping, and recording.”

Inspection was set for September 14, 2026.

However, Defendants, on September 9, 2026, timely objected to the inspection demand on a number of grounds including undue burden, lack of specificity as to measurements, surveys, photographs, videos, lacks a time limit and invades on the privacy rights of Defendants, including on grounds of trade secret and confidential processes.

Given the timely objection, the Court agrees that there is no waiver of the objections. Further, as Defendants have responded to this discovery demand via an objection, no motion to compel lies under Code of Civil Procedure section 2031.300.

To the extent this motion is made under Code of Civil Procedure section 2031.310 (the Court notes that Plaintiff’s Section IV.B. notes a showing of good cause under section 2031.310(b)(1)), the Court agrees that any motion to compel further responses must be accompanied by a separate statement. (California Rule of Court, rule 3.1345(a), (c), (d).) No such separate statement accompanies the motion filed here.

As such, the Court denies the motion on this ground.

Motion to Compel Compliance

Section 2031.320(a) states:

“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.”

Here, Defendants’ objections cannot be considered an agreement to comply with the inspection as demanded. Further, the Court does not consider the parties subsequent discussions as to logistics a “statement of compliance” with the initial demand.

In any event, however, no motion to compel compliance under section 2031.320 is made here. Even if such a motion were made, the Court would not have discretion to hear it without consideration of the Code of Civil Procedure section 2024.050(b) factors, as discussed above.

As such, the Court denies the motion on this ground.

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. Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings.

Re:                CREDITORS ADJUSTMENT BUREAU, INC., vs. LANE, KELSEY E

Case No.:  PCL326241

Date:          October 27, 2026

Time:          8:30 A.M. 

Dept.          19-The Honorable Russell P. Burke

Motion:       Plaintiff’s Continued Motions to Compel Initial Responses to (1) Special Interrogatories and (2) Production of Documents; (3) Plaintiff’s Motion to Deem Admissions Admitted; Sanctions

Tentative Ruling: (1), (2) and (3): To inquire as to the status of Defendant’s bankruptcy proceedings and Defendant’s responses to the outstanding discovery.

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. Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings.

Re:                 LVNV FUNDING LLC vs. DUVAL, KAYLA

Case No.:   PCL335787

Date:           October 27, 2026

Time:           8:30 A.M. 

Dept.           19-The Honorable Russell P. Burke

Motion:     Plaintiff’s Motion to Deem Admissions Admitted

Tentative Ruling: To grant the motion and deem Admissions Nos. 1 through 14 admitted.

Facts

On or about July 26, 2026, Plaintiff served by mail Requests for Admissions, Set One on Defendant. The discovery was mailed to the address on Defendant’s answer. As of the date of the filing of this motion, no response has been received by Plaintiff. Plaintiff now seeks to deem Admissions Nos. 1 through 14 admitted.

Authority and Analysis

Code of Civil Procedure section 2033.280 states that if a party to whom requests for admissions have been directed fails to serve a timely response, the propounding party may move for an order that the truth of any facts specified in the requests for admissions be deemed admitted. Here, Defendant has failed to serve a timely response and Plaintiff has moved for an order to deem the admissions admitted.

Based on the foregoing, the Court grants Plaintiff’s motion. The facts and allegations alleged in Requests for Admissions Nos. 1 through 14 of Plaintiff’s First Set of Requests for Admission shall be deemed admitted.

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. Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings.

Re:                 ROE, JOHN PL vs. STATE OF CALIFORNIA et al

Case No.:   PCU334122

Date:           October 27, 2026

Time:           8:30 A.M. 

Dept.           19-The Honorable Russell P. Burke

Motion:      Demurrer to Amended Complaint

Tentative Ruling: Pursuant to the stipulation, the Court continues this matter to December 10, 2026.

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. Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings.

Re:                 OIDOR, JULIAN et al vs. PEREZ, JOHNNY et al

Case No.:   PCU337014

Date:           October 27, 2026

Time:           8:30 A.M. 

Dept.           19-The Honorable Russell P. Burke

Motion:     Cross-Complainants’ (1) Demurrer and (2) Motion to Strike Answer

Tentative Ruling: (1) To sustain the demurrer with leave to amend; Cross-Defendants shall have ten (10) days to file an amended answer; (2) To grant the motion to strike without leave to amend.

Facts

Relevant here, Cross-Complaints’ Johnny Perez and Gloria Perez filed a cross-complaint for breach of written agreement and reasonable value of use and occupancy against Cross-Defendants Julian Oidor, Joanna Salazar, Areli Salazar, and Guillermo Campos.

Cross-Defendants filed an answer generally denying the allegations and pleading 18 affirmative defenses.

Cross-Complaints demurrer to the first, third, fifth, seventh, eighth, ninth, tenth, twelfth, thirteenth, fourteenth, sixteenth, seventeenth and eighteenth affirmative defenses for failure to state sufficient facts and/or uncertainty.

Cross-Complainants further move to strike the second, fourth and eleventh affirmative defenses as irrelevant and immaterial.

No opposition appears filed.

Authority and Analysis

(1) Demurrer

Code of Civil Procedure section 430.20(a) permits a demurrer to an answer where the answer does not state facts sufficient to constitute a defense. (Timberidge Enters. v. City of Santa Rosa (1978) 86 Cal.App.3d 873, 880.)

An answer to a complaint must contain: "(1) The general or specific denial of the material allegations of the complaint controverted by the defendant[;] [and] (2) A statement of any new matter constituting a defense." (Code Civ. Proc. § 431.30(b).) The phrase "new matter" refers to something relied upon by a defendant which the plaintiff does not put at issue. (See Department of Finance v. City of Merced (2019) 33 Cal. App. 5th 286, 294-295.)

As courts have explained, "[w]hat is put in issue by a denial is limited to the allegations of the complaint … A defense in the nature of 'yes, those allegations are true, but … ' is not put in issue by the denial." (FPI Development, Inc. v. Nakashima (1991) 231 Cal. App. 3d 367, 383-384). With regard to pleading requirements for "new matters" in an answer, the same pleading of ultimate facts rather than legal conclusions is required as in pleading the complaint. In particular, the answer must set forth facts "as carefully and with as much detail as the facts which constitute the cause of action and which are alleged in the complaint." (Id. at 384.)

An affirmative defense set forth in an answer will lie when the facts alleged in that defense constitute “new matter,” i.e., facts relied on by the defendant that the plaintiff’s complaint has not already put at issue.  (State Farm Mutual Auto Ins. Co. v. Superior Court (1991) 228 Cal.App.3d 721, 725).  Where the text of an affirmative defense merely contradicts an essential allegation of the plaintiff’s complaint, the affirmative defense does not set forth facts that constitute “new matter” sufficient to sustain the affirmative defense, but only a traverse. (Id.) A new matter is one in which the defendant has the burden of proof. (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 239.)

An affirmative defense must be pleaded with the same sufficient ultimate facts – and not “evidentiary” matter or “legal conclusions” - that a plaintiff would be required to set forth in a complaint.  (Youndall v. Kaufman (1921) 55 Cal.App.363, 368.) The answer must aver facts “as carefully and with as much detail as the facts which constitute the cause of action and which are alleged in the complaint.” (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 384.)

First Affirmative Defense – Comparative Fault; Ninth Affirmative Defense – Laches; Twelfth Affirmative Defense - Intervening/Superseding Cause;  Thirteenth Affirmative Defense – Apportionment; Fourteenth Affirmative Defense – Failure to Mitigate

Cross-Complainant argues that these affirmative defenses are inapplicable where the cross-complaint does not allege a tort. The Court agrees that this is essentially a breach of contract matter and these defenses would not appear to apply to non-tort matters.

Additionally, Cross-Complainant notes none allege a fact in support of each defense. As to laches, the Court notes a defendant must plead facts giving rise to laches in the answer. (Protopappas v. Protopappas (1963) 213 Cal.App.2d 659, 664-665 ["facts justifying the defense of laches must appear in the pleadings"].)

As to failure to mitigate, Cross-Complainant argues that the cross-complaint reveals no application of failure to mitigate as past due rent is sought before termination of the tenancy.

The Court sustains the demurrer with leave to amend as to these affirmative defenses.

Third Affirmative Defense – Unclean Hands

"[T]he doctrine of unclean hands is heavily fact dependent...." (CrossTalk Productions, Inc. v. Jacobson (1998) 65 Cal.App.4th 631, 641.) The Court agrees that the answer does not allege the requisite facts in support of this defense and sustains the demurrer with leave to amend.

Fifth Affirmative Defense – Statute of Limitations

Brown v. World Church (1969) 272 Cal App.2d 684, 691 indicates two ways to properly plead the statute of limitations as an affirmative defense: "[F]irst by alleging all of the facts showing that the action is barred … and indicating that the lateness of the commencement of the action is being urged as a defense." (Id.) Second, “…to specify the applicable section, and. if such section is divided into subdivisions, to specify the particular subdivision or subdivisions thereof." (Id.)

As cross-complainants have done neither, the Court sustains the demurrer with leave to amend as to this affirmative defense.

Seventh Affirmative Defense - Waiver

Waiver is an affirmative defense, “and a defendant desiring to take advantage of it must set up in his answer the facts upon which he bases his claim.” (Wienke v. Smith (1918) 179 Cal. 220, 225.)

The Court agrees that the answer does not allege “new matter” in support of this defense and sustains the demurrer with leave to amend.

Eighth Affirmative Defense - Estoppel

"The party seeking to establish an estoppel must show by clear and convincing evidence [citation] that '(1) the party to be estopped knew the facts; (2) the other party was ignorant of the true facts; (3) the party intended his conduct would be acted upon, or acted in a manner that the party asserting the estoppel had a right to believe it so intended; and (4) the other party relied upon the conduct to his injury." (In re Marriage of Brinkman (2003) 111 Cal.App.4th 1281, 1289.)

Here, no such facts are alleged and the Court sustains the demurrer with leave to amend.

Tenth Affirmative Defense – Offset

The Court finds no facts alleged in support of this affirmative defense and sustains the demurrer with leave to amend.

Sixteenth Affirmative Defense – Consent

The Court finds no facts alleged in support of this affirmative defense and sustains the demurrer with leave to amend.

Seventeenth Affirmative Defense - Ratification

The Court finds no facts alleged in support of this affirmative defense and sustains the demurrer with leave to amend.

Eighteenth Affirmative Defense – Privilege

The Court finds no facts alleged in support of this affirmative defense and sustains the demurrer with leave to amend.

(2) Motion to Strike

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(b), (c).)

Second Affirmative Defense – No Vicarious Liability or Scope of Agency

The Court agrees this is effectively a denial of allegation as opposed to an affirmative defense requiring new matter. The Court, therefore, grants the motion to strike without leave to amend.

Fourth Affirmative Defense – No Recovery for Nonexistent Obligations

As with the above, the Court agrees this too is a denial of allegation as opposed to an affirmative defense requiring new matter. The Court, therefore, grants the motion to strike without leave to amend.

Eleventh Affirmative Defense – Standing

The Court agrees that standing appears to be established by the allegations of the complaint were Plaintiffs/Cross-Defendants allege they were tenants, that Defendants/Cross-Complainants are the owners or managers. As such, the Court strikes this affirmative defense without leave to amend.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order. Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings.

Re:                Terrell, Lucinda vs. Ferreira Construction Company, Inc.

Case No.:   PCU334768

Date:           October 27, 2026

Time:           8:30 A.M. 

Dept.           19-The Honorable Russell P. Burke

Motion:      (1) Defendant Lee’s Motion to Stay; (2) Defendant Lee’s Motion for Protective Order re: Deposition

Tentative Ruling: (1) and (2) To grant the motions in part, to inquire as to Lee’s efforts to obtain independent counsel; to stay the case for a short period of time to permit Lee to retain independent counsel; to inquire as to the proposed time lime to take Lee’s deposition prior to November 10, 2026.

Facts and Analysis Common to (1) and (2)

Defendant Lee’s deposition is set for October 28, 2026, at 9:00 a.m.

Plaintiff, on October 13, 2026, filed a motion for leave to file an amended complaint to allege punitive damages against Defendants on the basis that Lee fell asleep and that Defendant FPW’s officers/directors had advance knowledge of Lee’s unfitness and authorized or permitted him to continue driving and ratified his conduct. That motion remains set for November 10, 2026.

Additionally, Lee has filed a motion to stay this matter set initially set for November 10, 2026, now reset on shortened time for October 27, 2026.

Additionally, Lee has filed a motion for protective order seeking time to obtain independent counsel as to the deposition or to limit the scope of the deposition, also set for October 27, 2026.

Trial is set for December 1, 2026.

Given the impending trial date, the Court believes some coordination or sequencing of these motions is necessary.

As to the protective order, "[t]he court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense." (Code Civ. Proc, § 2025.420(b).) Courts have considerable discretion in granting and crafting protective orders. (Raymond Handling Concepts Corp. v. Superior Court (1995) 39 Cal.App.4th 584, 588.)

As to the motion to stay pending the adjudication of the motion for leave to amend, the Court likewise has discretion to stay cases where warranted. (People ex rel. Burns v. Wood (2024) 103 Cal.App.5th 700, 712)

Here, Defendant Lee is a named party in this matter and taking his deposition is relatively routine discovery. However, Defendant Lee wishes to retain independent counsel in anticipation of invoking the Fifth Amendment privilege. To the Court, this appears reasonable. The Court will inquire as to the Defendant Lee’s efforts to retain such counsel and the proposed timeline for taking the deposition upon such retention. The Cour will not, at this time, restrict the scope of the deposition.

As to the stay, again, Lee’s deposition would appear to be proper regardless of the outcome of the motion for leave to amend to add punitive damages. Lee’s potential invocation of the Fifth Amendment privilege would not appear dependent on the punitive damages issue. The Court, therefore, is not inclined to stay the deposition or this matter pending the leave motion set for November 10, 2026. The Court is willing to stay this matter pending Lee’s retention of independent counsel, for a short period of time.

The Court intends, as noted above, to inquire as to Lee’s efforts in retaining counsel, as well as a proposed timeline for taking Lee’s deposition prior to November 10, 2026.

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. Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings.

Honorable Bret D. Hillman Presiding - Department 2

Examiner notes for probate matters calendared October 28, 2026, that allow for posting:

Status:  Recommended for Approval (RFA), Appearance Required or Recommended, Approval Conditional Upon, etc.

Case Number	Case Name	Type	Status	Comments
VPR054324	In the Matter of Alston, Adrienne Serpa	Probate Will/Issue Letters	Recommended for Approval
VPR054316	In the Matter of Fite, Dion Elmer	Letters of Administration	Recommended for Approval
VPR054312	In the Matter of Magana, Alberto Zaragoza	Letters of Administration	Recommended for Approval
VPR053689	In the Matter of Handley, James Alan II	Final Distribution Hearing	Recommended for Approval
VPR050404	In the Matter of Shay Rice Revocable Trust	Accounting Hearing	Recommended for Approval
VPR054327	In the Matter of Jones, Sue B.	Petition Hearing	Recommended for Approval
VPR054326	In the Matter of the Stephen E. Baker Sr. and Sharon A. Baker Revocable Living Trust	Petition to Determine Trust Asset	Appearance Required	Petition, Exhibit B: attached copy of the will is dated February 14, 2017, rather than the referenced date of October 22, 1998
VPR054073	In the Matter of the Walter Colson and Mary Colson 1990 Trust	Instruction Hearing	Appearance Required	Petition omitted the names and addresses of each person entitled to notice of the petition, Prob C § 1720. Notice of the continued hearing is not filed, Prob C § 17203
VPR051335	In the Matter of Donald Eugene Willis and Gretta Joan Willis 2009 Living Trust	Petition Hearing	Appearance Required	Objection filed
VPR050199	In the Matter of Boykin, Thelma	Review Hearing	Appearance Required	Proof of Bond has not been filed
VPR052421	In the Matter of Rhodes, Patricia Ann	Hearing: Other	Appearance Required	Status Report submitted to the court

Honorable Russell Burke Presiding- Department 19

Examiner notes for probate matters:   Thursday, October 22, 2026

                                         

Status:  Recommended for Approval (RFA), Appearance Required or Recommended, Approval Conditional Upon, etc.

PLEASE NOTE:  All attempts possible are made to have the information on this page entered by 3:00 p.m. the day prior to hearing in order to allow for any needed continuances or travel if an appearance should be required.  For further information regarding a probate matter listed below you may contact the Probate Document Examiner at (559) 730-5000 x 1302 or 1430

Case Number	Case Name	Type	Status	Comments
PPR054299	In the Matter of Calderon, Christina	Determine Succession to Primary Residence	Appearance required	In accordance with Probate Code §13152(a), the petition shall be verified by each petitioner. Petitioner to file a recorded copy of the affidavit of death of joint tenant. Petition item 8- inventory and appraisal attached to the Petition doesn’t have the gross value of the real property (property has not been appraised). NO ORDER LODGED
PPR053526	In the Matter of Moreno, Judi Arlene	Determine Succession to Primary Residence	Appearance required	Motion for Continuance submitted to the court

South County Justice Center & County Civic Center- Visalia

GUARDIANSHIP CASES

         SCJC- Honorable Russell Burke Presiding

         Visalia- Honorable Bret D. Hillman; Honorable Nathan D. Ide; Honorable David C. Mathias

Examiner notes for probate GUARDIANSHIP matters calendared AS STATED BELOW that allow for posting:

PLEASE NOTE:  All attempts possible are made to have the information on this page entered by 3:00 p.m. the day prior to hearing in order to allow for any needed continuances or travel if an appearance should be required.  For further information regarding a probate matter listed below you may contact the Probate Document Examiner at (559) 730-5000 x 1302.

Hearing Date & Time	Department Number	Case Number	Case Name	Comments
10/22/2026 8:30	Department 19	PPR054176	In the Matter of Cruz, Isaiah Alexander et al	DOJ Background Record Check needs to be completed