Tentative Rulings

The Tentative Rulings for Tuesday, October 13, 2026, are:

Re:                 Rodriguez, Luis vs. Volt Management Corp.

Case No.:   VCU327856

Date:           October 13, 2026

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     (1) Defendant Volt’s Motion to Compel Arbitration; (2) Plaintiff’s Motions to Compel Further Responses to Special Interrogatories; (3) Plaintiff’s Motions to Compel Further Responses to Requests for Production of Documents

Tentative Ruling:   (1): To deny the motion

(2) and (3): In light of the Court’s ruling denying the motion to compel arbitration, the Court continues these discovery motions to October 27, 2026, 8:30 am, Dept. 2. The Court orders the parties 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.

(1) Defendant Volt’s Motion to Compel Arbitration

Background Facts

In this matter, Plaintiff’s first amended complaint brings class action claims for 1. Failure to Pay Minimum Wages [Cal. Lab. Code §§ 204, 1194, 1194.2, and 1197]; 2. Failure to Pay Overtime Compensation [Cal. Lab. Code §§ 1194 and 1198]; 3. Failure to Provide Meal Periods [Cal. Lab. Code §§ 226.7, 512]; 4. Failure to Authorize and Permit Rest Breaks [Cal. Lab. Code § 226.7]; 5. Failure to Indemnify Necessary Business Expenses [Cal. Lab. Code § 2802]; 6. Failure to Timely Pay Final Wages at Termination [Cal. Lab. Code §§ 201-203]; 7. Failure to Provide Accurate Itemized Wage Statements [Cal. Lab. Code § 226]; 8. Unfair Business Practices [Cal. Bus. & Prof. Code §§ 17200, et seq.]; as well for 9. Civil Penalties Under PAGA [Cal. Lab. Code §§ 2699, et seq.].

Plaintiff brings these causes of action against Defendants Volt Management Corp. and Graphic Packaging, LLC.

Defendant Volt moves to waive the class claims, compel arbitration of the individual Labor Code violations, split the PAGA claim, compel arbitration of the “individual” PAGA claim and stay this matter pending arbitration as to the “representative” PAGA claim based on the electronic signature of Plaintiff based on an arbitration provision appearing in the employee handbook.

Defendant Graphic has filed a brief in support of the motion to compel by Volt.

Facts – Agreement to Arbitrate

In support, Volt provides the declaration of its Vice President, who indicates access to Volt’s internal systems including the onboarding system, the personnel file system, and other employment related documents maintained within Volt’s internal system through a software called “Bullhorn.” (Declaration of Johnson ¶4.) Further, that Johnson accessed and reviewed Plaintiff’s personnel file which indicates Plaintiff completed the onboarding process on or about November 12, 2024, including the electronic signing of an Employee Guide containing a section regarding arbitration. (Declaration of Johnson ¶5.) Johnson notes the electronic audit trail indicates that Plaintiff signed the same document five separate times, on February 16, 2022 (twice), February 19, 2022, March 16, 2023, and November 12, 2024, as Plaintiff was placed on short term assignment with Defendant Graphic. (Declaration of Johnson ¶5.)

Johnson thereafter describes the onboarding process of new hires and for current employees who change assignments, including that Volt sent Plaintiff new hire paperwork including information to review to complete the paperwork and that Volt sent this new hire paperwork to Plaintiff’s personal e-mail address that he provided during onboarding. (Declaration of Johnson ¶8.) Further, that the link provides new hires with access to company documents to be accessed with their personal email addresses provided during onboarding and enables them to sign documents through an electronic signature platform and that to do so, new hires first create a secured password that is associated with their respective personal email addresses and unique login credentials. (Declaration of Johnson ¶6.)

In opposition, Plaintiff does not appear to dispute signing the Agreement, but instead argues a lack of mutual assent, that the Agreement was presented in the handbook, that the Agreement does not cover the Business and Professions Code section 17200 claim.

Authority and Analysis – Agreement to Arbitrate

“On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: (a) The right to compel arbitration has been waived by the petitioner; or (b) Grounds exist for the revocation of the agreement.”  (Code Civ. Proc. § 1281.2(a), (b).) (emphasis added.)

Absent a challenge by the nonmoving party, this burden is met by simply providing a copy of the arbitration agreement.  (Baker v. Italian Maple Holdings, LLC, 13 Cal. App. 5th 1152, 1160 (2017); Cal. Rules of Court, rule 3.1330.)  “For purposes of a petition to compel arbitration, it is not necessary to follow the normal procedures of document authentication.” (Condee v. Longwood Management Corp. (2001), 88 Cal.App.4th 215, 218; Sprunk v. Prisma LLC (2017) 14 Cal.App.5th 785, 793.)  

However, when the opposing party disputes the agreement, then the opposing party must provide evidence to challenge its authenticity.  (Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 165.) 

Under California law, "[t]he burden of persuasion is always on the moving party to prove the existence of an arbitration agreement with the opposing party by a preponderance of the evidence …." (Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 164-165.)“However, the burden of production may shift in a three-step process." (Id. at 165.)

“First, the moving party bears the burden of producing 'prima facie evidence of a written agreement to arbitrate the controversy.' [Citation.]” (Gamboa, supra, 72 Cal.App.5th at p. 165.) “The moving party 'can meet its initial burden by attaching to the [motion or] petition a copy of the arbitration agreement purporting to bear the [opposing party's] signature.' [Citation.]” (Id..) “For this step, 'it is not necessary to follow the normal procedures of document authentication.’ [Citation.]” (Id.)

Here, this burden is met through Johnson’s declaration and attachment of Exhibit A containing the Agreement.

In opposition, Plaintiff does not dispute signing the Agreement. However, Plaintiff argues that there is a lack of mutual assent and that there was an agreement formed via the Employee Guide.

Authority and Analysis – Mutual Asset

An essential element of a valid contract is the mutual assent of the parties which must be communicated by each party to the other party. (Donovan v. RRL Corp. (2001) 26 Cal.4th 261, 270; Civ. Code, § 1565, subd. (3).) “Mutual assent is determined under an objective standard applied to the outward manifestations or expressions of the parties, i.e., the reasonable meaning of their words and acts, and not their unexpressed intentions or understandings.” (Serafin v. Balco Properties Ltd., LLC (2015) 235 Cal.App.4th 165, 173.)

As to the argument that the Agreement was contained in the Employee Guide and was presented to Plaintiff during the onboarding process in such a manner that Plaintiff did not agree to arbitrate claims, the Court notes the signature line lacks a reference to the arbitration term, that the arbitration term is between at-will employment provisions and safety certification, invention and discovery provisions and that the signature line is preceded by language stating “I understand and agree to the above.”

The Court notes Esparza v. Sand & Sea, Inc. (2016) 2 Cal. App. 5th 781, 784–785, the plaintiff was provided an employee handbook and signed a form acknowledging both that she received that handbook and was expected to read it within one week. While the handbook contained an “Agreement to Arbitrate” section, the signed acknowledgment form "did not state that [plaintiff] agreed to abide by the arbitration agreement within the handbook." (Id. at 784, 790.) The appellate court rejected the argument that plaintiff was expected to read the handbook within a week, that plaintiff continued to work for a week and therefore impliedly agreed to the arbitration term. (Id. at 790.) The appellate court noted that neither the acknowledgment form nor the employee handbook stated that agreeing to arbitrate was a condition of employment and/or that by continuing employment, the employee would be deemed to have consented to that condition. (Id.)

However, in Esparza, the handbook stated “"This handbook is designed to provide information to employees of [the defendant] regarding various policies, practices and procedures that apply to them including our Arbitration Agreement.” (Id. at 785.)

Here, the Court notes a shorter timeline than that presented Esparza as to Plaintiff’s time to review the Employee Guide and assent to its terms, including arbitration. Likewise, as in Esparza, the signature line on the acknowledgment form here does not expressly reference the arbitration clause, that Plaintiff would be bound thereof. Additionally, while these two pages are entitled “Acknowledgment: Employee Guide” the arbitration term is located between an at-will employment advisement and a safety certification and where the signature line, after 20 pages of other materials.

By contrast, in Harris v. TAP Worldwide, LLC (2016) 248 Cal.App.4th 373, 377,  the acknowledgment and signature line specifically stated “I hereby confirm and acknowledge receipt of . . . [the defendant's] Alternative Dispute Resolution Agreement for current employees.”

While the signature line here states “I understand and agree to the above” and the Court agrees there is no specific reference to an arbitration provision, the Court lacks the entire handbook and has no comparison to the language in Esparza that the Employee Guide is informational or otherwise does not form a contract.

Further, in Harris, the court noted “Here, plaintiff was offered employment on an at-will basis under the terms of the Employee Handbook. Plaintiff unequivocally accepted the offer of employment by commencing to work for TAP Worldwide, LLC, for which he was paid. Plaintiff's commencement of performance under the Employee Handbook constituted assent to its terms. Under California law, assent to an offer can occur either by way of performance under the contract or the acceptance of consideration.” (Harris, supra, 248 Cal.App.4th at 384.)

As such, the Court rejects the argument as to lack of mutual assent. 

Facts – FAA Application

Here, the Agreement’s only reference to the FAA is as follows:

“Instead, any disputes arising out of or related to my employment with and/or termination from Volt, my assignment with any Volt client and/or end of such assignment, including privacy claims shall be settled by final and binding arbitration pursuant to the Federal Arbitration Act.”

Further, Johnson declares that “Volt is a global workforce solutions provider that supplies companies with permanent and temporary staffing arrangements throughout the country. Volt employs thousands of people each week in all levels of service and experience, and in every type of industry across the United States and the world, including in retail, production design, manufacturing, distribution, and technology providers. Volt operates in approximately 25 states domestically, and approximately five countries abroad.” (Declaration of Johnson ¶3.)

In opposition, Plaintiff seeks to apply the transportation workers exemption, noting that Plaintiff drove a forklift and that:

“I was responsible for loading, unloading, organizing, and preparing goods for shipment. One of my primary duties was unloading stacks of boxes from arriving trucks that had been transported from manufacturing facilities. After unloading the boxes, I would scan the products and put them away in their designated locations in the warehouse. I also received pick lists, which identified the products that needed to be shipped. I would locate and pick the listed products, scan them, place them onto pallets, apply and/or verify shipping labels, and wrap and pack the pallets for shipment. After the pallets were prepared for shipment, a loader would load them onto 53-foot trucks for further distribution to other states, Canada, and Mexico.”

Authority and Analysis – FAA Application

The party asserting the FAA applies to an agreement has “the burden to demonstrate FAA coverage by declarations and other evidence.” (Hoover v. American Income Life Ins.Co. (2012) 206Cal.App.4th 1193, 1207; see Shepard v. Edward Mackay Enterprises, Inc. (2007) 148Cal.App.4th 1092, 1101)

“The FAA applies to contracts that involve interstate commerce (9 U.S.C. §§ 1, 2)” (Davis v. Shiekh Shoes, LLC (2022) 84 Cal.App.5th 956, 963.) The party asserting the FAA applies to an agreement has “the burden to demonstrate FAA coverage by declarations and other evidence.” (Hoover v. American Income Life Ins.Co. (2012) 206Cal.App.4th 1193, 1207; see Shepard v. Edward Mackay Enterprises, Inc. (2007) 148 Cal.App.4th 1092, 1101)

An arbitration clause is governed by the FAA if the agreement is a contract "evidencing a transaction involving commerce." (9 U.S.C. § 2.) "[E]videncing a transaction involving commerce" means that "the 'transaction' in fact 'involv[es]' interstate commerce, even if the parties did not contemplate an interstate commerce connection." (Allied-Bruce Terminix Companies v. Dobson (1995) 513 U.S. 265, 281.) This phrase is "broadly construe[d]" because the FAA "embodies Congress' intent to provide for the enforcement of arbitration agreements within the full reach of the Commerce Clause." (Giuliano v. Inland Empire Pers., Inc. (2007) 149 Cal.App.4th 1276, 1286.)

There are three categories of conduct that Congress may regulate under its commerce power: “ (1) the channels of interstate commerce, (2) the instrumentalities of interstate commerce and persons or things in interstate commerce, and (3) those activities having a substantial relation to interstate commerce.” (Shepard, supra, 148 Cal.App.4th at 1098, citing United States v. Lopez (1995) 514 U.S. 549, 588-589.)

Here, the Court finds the activities have a substantial relationship to interstate commerce based on the declaration provided and therefore the FAA applies.

Authority and Analysis – Transportation Worker Exemption

Section 1 of the FAA exempts from its coverage "contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce." (9 U.S.C. §1.) The exemption applies only to transportation workers engaged in interstate or foreign commerce. (Bissonnette v. LePage Bakeries Park St., LLC (2024) 601 U.S. 246, 252-253.) A transportation worker is defined as “…one who is actively engaged in the transportation of good across borders via the channels of foreign or interstate commerce." (Id. at 256 [internal citations omitted].) The worker "…must at least play a direct and necessary role in the free flow of goods across borders." (Id.)

"A transportation worker doesn’t need to work in the transportation industry to fall within the exemption from the FAA provided by §1 of the Act." (Id.) Conversely, not every worker who works in the transportation industry is an exempt transportation   worker. (Southwest Airlines Co. v. Saxon (2022) 596 U.S. 450, 460.) The focus for purposes of the exemption is not the industry the worker's employer is engaged in, but instead the individual worker's job duties. (Bissonnette, supra, 610 U.S. at 256.)

Further, a worker does not have to personally transport goods across state lines to qualify as a transportation worker. (Saxon, supra, 596 U.S. at 458-459.)

In Saxon, the plaintiff was a ramp supervisor who trained and supervised teams of ramp agents who physically loaded and unloaded cargo on and off airplanes that travel across the county. (Id.) The plaintiff declared that she "frequently" loaded and unloaded cargo alongside the ramp agents. (Id.) The Supreme Court held that workers who frequently load and unload cargo to and from vehicles that travel in interstate commerce are "transportation workers" under the FAA exemption. (Id. at 456.)

In Ortiz v. Randstad Inhouse Services, LLC (9th Cir. 2024) 95 F.4th 1152, the plaintiff worked at a warehouse that received products from foreign shippers and then prepared them for further distribution across state lines. (Id. at 1157-1158.) Ortiz's job was to transport packages to different areas of the warehouse and to help prepare the packages for shipment, all within the warehouse. (Id. at 1158.)

The Ninth Circuit concluded that the plaintiff in Ortiz was a transportation worker in interstate commerce, noting that his "job description met all three benchmarks laid out in Saxon. Both Ortiz and Saxon fulfilled an admittedly small but nevertheless 'direct and necessary' role in the interstate commerce of goods: Saxon ensured that baggage would reach its final destination by taking it on and off planes, while Ortiz ensured that goods would reach their final destination by processing and storing them while they awaited further interstate transport." (Id. at 1162.)

The Ninth Circuit continued:

"Both were also 'actively engaged' and 'intimately involved with' transportation: Saxon handled goods as they journeyed from terminal to plane, plane to plane, or plane to terminal, while Ortiz handled them as they went through the process of entering, temporarily occupying, and subsequently leaving the warehouse--a necessary step in their ongoing interstate journey to their final destination. [Citation.] Both were actively engaged in the interstate commerce of goods. If Saxon is an exempt transportation worker, Ortiz is, too." (Id.)

Ortiz clarified that "[i]f Saxon stands for anything, it is that an employee is not categorically excluded from the transportation worker exemption simply because he performs his duties on a purely local basis." (Id.)

This case appears directly on point as to Ortiz with respect to Plaintiff’s duties and involvement in interstate commerce, even on a purely local basis. (See also Carmona Mendoza v. Domino’s Pizza, LLC (9th Cir. 2023) 73 F.4th 1135, 1136-1138 [noting that truck drivers who transported pizza ingredients between warehouses to store locations were exempt transportation workers when ingredients arrived at warehouses from out of state.].) Plaintiff’s testimony about his work transporting goods from out of state within the warehouse may constitute sufficient evidence that Plaintiff himself transported goods in interstate commerce. Finally, the fact that  Volt is a staffing agency does not appear to affect the application of this exemption. (See
Muro v. Cornerstone Staffing Solutions, Inc. (2018) 20 Cal.App.5th 784.)

As such, the Court finds an exemption to the FAA’s application here via the transportation workers exemption.

Facts – Scope of Agreement

The Agreement states:

“…any disputes arising out of or related to my employment with and/or termination from Volt, my assignment with any Volt client and/or end of such assignment, including privacy claims shall be settled by final and binding arbitration…”

Further, that “I understand and agree that Volt’s employees/agents, Volt’s clients, and their employees/agents are third-party beneficiaries to this agreement.”

Additionally, “This agreement to arbitrate does not apply to claims for workers’ compensation, unemployment compensation benefits, claims or charges before any administrative agency having jurisdiction over such claims, or any other claim that is not subject to arbitration under federal law. If any claims are deemed non-arbitrable, then those claims will be stayed until resolution of any arbitrable claims.”

Further, that “I understand and agree that, except where prohibited by federal law, all claims subject to this agreement to arbitrate must be pursued on an individual basis, and that both I and Volt waive any right to bring or be a party to any class, collective or representative action.”

Authority and Analysis – Scope of Agreement

Here, the Agreement broadly covers the Labor Code violations in the amended complaint, as well as the

Authority and Analysis – Class Action Waiver

Here, the Agreement states: “…both I and Volt waive any right to bring or be a party to any class, collective or representative action.”

Plaintiff’s counsel estimates recovery on the first seven causes of action (excluding the section 17200 and PAGA claims) totaling $14,360.76 if pursued on an individual basis. Plaintiff further declares that Defendant Graphic’s supervisors would “constantly treated me and other employees with hostility when working. One of the supervisors told me and other employees that he knew we were not direct hires for GPI, and that we really needed the job, so we needed to listen to him because he could get us fired. Christian often ignored my direct work-related questions with blank stares and walked away. Additionally, supervisors Christian Reyes constantly made inappropriate and unprofessional remarks to Plaintiff and other employees.” Further, that Plaintiff was unaware of his rights and that Plaintiff’s coworkers suffer from the same practices for which Plaintiff has complained thereof.

As the Court has found the FAA exempted, the Court now examines Plaintiff’s contention the class action waiver in the Agreement is invalid under Gentry v. Superior Court (2007) 42 Cal.4th 443.

Under Gentry, four factors are relevant to determining invalidity: “(1) 'the modest size of the potential individual recovery'; (2) 'the potential for retaliation against members of the class'; (3) 'the fact that absent members of the class may be ill informed about their rights'; and (4) 'other real world obstacles to the vindication of class members' rights … through individual arbitration.'" (Muro v. Cornerstone Staffing Solutions, Inc. (2018) 20 Cal.App.5th 784, 792-793 (quoting Gentry, supra, 42 Cal.4th at 453, 463).)

As noted by Muro, Gentry held that a trial court may decline to enforce a class action waiver if it concludes, based on the factors above, that class arbitration is "likely to be a significantly more effective practical means of vindicating the rights of affected employees than individual litigation or arbitration," and that there would be a "less comprehensive enforcement" of the applicable laws if the class action device is disallowed." (Id. at 463.)

Here, the first factor is met by the modest recovery estimated by Plaintiff’s counsel if Plaintiff proceeded with this matter on an individual basis.

The second factor is likewise met, where Plaintiff has noted potential for retaliation against temporary staff members similarly situated as to Plaintiff, at least as to those assigned to Defendant Graphic.

The Court further finds the third factor met, noting that temporary staffing employees like Plaintiff are likely to be less informed as to their rights and that “…some employees, due to the transient nature of their work, may not be in a position to pursue individual litigation against a former employer.”  (Gentry, supra, 42 Cal. 4^th at 461.)

As to the fourth factor, the Court also agrees that the waiver is contained in the Employee Guide as a condition of employment by low-wage, limited information employees, such as Plaintiff.

As such, the Court finds Gentry applies and that the class action waiver is invalid. 

“[Defendant] moved exclusively for individual, not class arbitration, and neither party has indicated an intent or willingness to engage in class arbitration. For these reasons, based on its finding that the class waiver constituted an unlawful exculpatory clause, the trial court properly denied the motion to compel arbitration.”  (Garrido v. Air Liquide Industrial U.S. LP (2015) 241 Cal.App.4th 833, 847.)

As such, the Court applies this to the first eight causes of action, will deny arbitration thereto and turns to the ninth cause of action under PAGA. 

Authority and Analysis – PAGA Claim

Because the Court has found that the CAA applies, there is no ability under Viking River Cruises, Inc. v. Moriana (2022) 596 U.S. 639 to split the PAGA claim and compel arbitration of the “individual” portion. Rather, the Viking River decision noted that it “left undisturbed” and “intact” both of the rules from Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348 that (1) prohibited categorical waivers of the right to bring a PAGA action in any forum and (2) prohibited waivers of PAGA claims on behalf of other employees, i.e., non-individual or representative claims. (Adolph v. Uber Technologies, Inc. (2023) 14 Cal.5th 1104,1117-1118.) As this matter is governed by California law, Iskanian precludes compelling the PAGA claim to arbitration in any manner.

Therefore, the Court denies the motion to compel arbitration.

(2) and (3) Plaintiff’s Motions to Compel Further Responses

The Court notes that much of Defendants’ opposition to the motion involves discussion of the arbitration motion and the stay under Code of Civil Procedure section 1281.2 pending the adjudication of the motion.

Given the Court’s ruling above, the Court will continue this matter to October 27, 2026, 8:30 am, Dept. 2 and order the parties to meet and confer with respect to the issues presented in the motion. The Court notes that, at the continued hearing on these motions to compel further responses, it will require personal appearances at the motion should the meet and confer process fail to resolve all issues. No CourtCall or Zoom appearances will be permitted, unless it is to inform the court of the full resolution of the discovery issues presented at the continued motion.

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

Case No.:   VCU324382

Date:           October 13, 2026

Time:           8:30 A.M. 

Dept.           2-Honorable Brett Hillman

Motion:     Motion for Summary Judgement

Tentative Ruling: The motion for summary judgment is denied.

Defendant City of Visalia (City) moves for summary judgment, based on design immunity under Government Code section 830.6, against plaintiff Chastity Adams on the second and third causes of action alleged against them in plaintiff’s complaint.  

A. Plaintiff’s Claims

The complaint asserts a dangerous condition of public property and a survivor’s claim cause of action against the City. The third cause of action for survivor’s claim is a derivative cause of action to the second cause of action for dangerous condition of public property and will be resolved in the manner that the second cause of action is resolved.

On July 22, 2024, at approximately 7:18 p.m., Paul Freeman was involved in a fatal collision at the intersection of North Court Street and West Riggin Avenue. (Huard Deposition, 15:10-20.) The intersection is controlled by stop signs for the northbound and southbound lanes North Court Street. (Id. at 21:8-22.) There are no traffic controls for the eastbound or westbound lanes of West Riggin Avenue. (Id.) Paul Freeman was operating a motorcycle eastbound on West Riggin Avenue in the number two lane when defendant George Flores pulled into the intersection in order to see to his right (though Freeman approached from his left). (Id. at 37:17-38:4.)  George Flores’ vehicle entered the intersection directly into the path of Paul Freeman, at which time, the collision occurred. (Id. at 37:24-38:4.)

The plaintiff claims that the design of the intersection and the inadequate sight lines caused Paul Freeman’s death.

B. Summary Judgment Standard

“ ‘The rules governing a motion for summary judgment are well known and [the court] need not set them out in detail. A defendant seeking summary judgment must either prove an affirmative defense, disprove at least one element of the plaintiff's cause of action, or show that some such element cannot be established. [Citation.]’ [Ciation.] ‘A court identifies the issues framed by the pleadings, determines whether the moving party's showing has established facts which negate the opponent's claim and justify a judgment in the moving party's favor, and if the summary judgment motion is meritorious on its face, the court will look to whether the opposition demonstrates there are triable, material factual issues. [Citation.] Section 437c, subdivision (c) allows the trial court ruling on the motion to consider all evidence and all the inferences reasonably deducible from the evidence set forth in the papers, “except summary judgment shall not be granted by the court based on inferences reasonably deducible from the evidence, if contradicted by other inferences or evidence, which raise a triable issue as to any material fact.” ([Code Civ. Proc.] § 437c, subd. (c).)’ ” (Clark v. Baxter Healthcare Corp. (2000) 83 Cal.App.4th 1048, 1054 [100 Cal. Rptr. 2d 223] (Clark).)

C.  Plaintiff’s Objections to Defendant’s Evidence

The plaintiff filed various objections to the defendant’s evidence.

“[U]nder Biljac, a trial court may decline to rule on specific evidentiary objections so long as it states it relied only on ‘competent and admissible evidence’ in ruling on the summary judgment motion.” (Reid v. Google, Inc. (2010) 50 Cal. 4th 512, 522.)

Here, the Court declines to rule on plaintiff’s evidentiary objections because the Court did not rely on this evidence to make its ruling.

D.  Analysis

The City’s only contention in their summary judgment motion is that they are entitled to design immunity under Government Code section 830.6.

Design Immunity Standards

“The rationale behind design immunity ‘is to prevent a jury from simply reweighing the same factors considered by the governmental entity which approved the design.’ [Citation.]” (Cameron v. State (1972) 7 Cal.3d 318, 326 [102 Cal.Rptr. 305, 497 P.2d 777].)

Government Code section 830.6 states, in relevant part:

“Neither a public entity nor a public employee is liable under this chapter for an injury caused by the plan or design of a construction of, or an improvement to, public property where such plan or design has been approved in advance of the construction or improvement by the legislative body of the public entity or by some other body or employee exercising discretionary authority to give such approval or where such plan or design is prepared in conformity with standards previously so approved, if the trial or appellate court determines that there is any substantial evidence upon the basis of which (a) a reasonable public employee could have adopted the plan or design or the standards therefor or (b) a reasonable legislative body or other body or employee could have approved the plan or design or the standards therefor.”

The elements of design immunity are summarized as follows:

“To prove the defense of design immunity, a public entity must establish three elements: (1) the entity's discretionary approval of the plan or design prior to construction; (2) a causal relationship between the plan or design and the accident; and (3) substantial evidence supporting the reasonableness of the plan or design.” (Martinez v. County of Ventura (2014) 225 Cal. App. 4th 364, 369.)

Entity’s Discretionary Approval

City presents evidence that:

1. Plans for Riggin Avenue, before the addition of Court Street, which identify Court Street as a future street (Sheet 5), were signed by a civil engineer, and approved by the City Engineer on October 31, 2005;

2. Plans for extension of Riggin Avenue (Sheet 10) were signed by a civil engineer and the City Engineer on the same date the plans for Riggin Avenue described in (1.) above were approved, October 31, 2005; 

3. Plans for construction of Court Street beginning at Riggin and extending north (Sheet 4) were “stamped and initialed” by a civil engineer and approved by the City engineer; and

4.   Plans for construction of Court Street beginning at Riggin Avenue and extending south (Sheet 8)—at the intersection of Riggin and Court where the accident allegedly occurred—were “stamped and initialed approved” by a civil engineer (but do not indicate approval by the City Engineer).

In Grenier v. City of Irwindale (1997) 57 Cal.App.4th 931 [67 Cal.Rptr.2d 454] the court remarked that “[a] detailed plan, drawn up by a competent engineering firm, and approved by a city engineer in the exercise of his or her discretionary authority, is persuasive evidence of the element of prior approval” (id., at p. 940), however, it was “undisputed” in Grenier that the design features alleged as being the cause of the plaintiff’s injuries were part of plans approved by a city engineer acting “on behalf of the City” (id., at p. 941).  In addition, the court earlier noted the city engineer had specifically been directed to prepare the design for the features at issue in the litigation. (Id., at p. 936.)

Here, however, plaintiff disputes that City presents evidence sufficient to establish that the engineers who approved the submitted plans had authority to approve them on behalf of the City.  The plaintiff points out the City identifies no ordinance, charter or code provision establishing the authority of these engineers.  (See Castro v. City of Thousand Oaks (2015) 239 Cal.App.4th 1451, 1456 [192 Cal.Rptr.3d 376] (Castro).)  The City did not respond to this point in its reply.

The court agrees with plaintiff that the City fails to make a prima facie showing of public entity design approval.  In Castro, a city submitted that a city engineer had discretionary authority to approval a traffic safety feature, pointing to a provision of the city’s municipal code.  The plaintiff in the case challenged that the cited municipal code provision did not include the authority to approve the subject traffic safety feature.  (Id., at p. 1456.)  The court agreed. (Ibid.)  Ultimately, “ ‘[t]he public entity claiming design immunity must prove that the person or entity who made the decision is vested with the authority to do so. Recognizing “implied” discretionary approval would vitiate this requirement and provide public entities with a blanket release from liability that finds no support in section 830.6.’ [Citation.]” (Id., at p. 1457.)

Here, the City does not present evidence establishing that the identified engineers who approved the submitted plans were vested with the authority to approve them on behalf of the City, either based on a disputed ordinance, as in Castro, or otherwise. 

What’s more, the court notes that, with respect to the plans submitted by the City for construction of Court Street beginning at Riggin Avenue and extending south (Sheet 8)—which is the specific intersection where the accident allegedly occurred—the submitted plans, according to the City itself, only indicate they were “stamped and initialed approved” by a civil engineer, and not that they were approved by the City engineer (let alone by a person with evidenced authority to approve them).

Accordingly, the City fails to make a sufficient prima facie showing on the element of discretionary design approval, and, for this reason, its motion must be denied. 

Absent a prima facie showing establishing the element of discretionary design approval, the court need not, and indeed cannot, determine whether the City establishes “a causal relationship between [a City] plan or design and the accident” or whether it has shown “the reasonableness of the plan or design” was supported by “substantial evidence” considered by the City.  (Martinez v. County of Ventura, supra, 225 Cal. App. 4th at p. 369.)

Again here, the lack of evidence establishing City discretionary approval, even by City Engineer sign-off, of the Sheet 8 plan, pertaining to the location where the accident is specifically alleged to have occurred, is significant.  The court notes, specifically here, the City’s own expert, Rock Miller, P.E., explained that, amongst the reasons it is important for an engineering drawing or plan to be signed and approved by the City is that “if the plan is not built, [the plan] has no real significance” and it is the City’s sign-off that establishes “the presumption it is the final plan” and is “the most significant indication that the plan is final and approved.”

Accordingly, the only plan produced for the location of the intersection where the accident is alleged to have occurred does not reflect that it was approved by anyone by City authority.  As result, this court has no way of determining, as the City argues, (a) that there is an approved plan that can be identified as substantial evidence supporting the reasonableness of the design of the subject intersection; or (b) that the actual improvements at the intersection are in substantial compliance with any such approved plan.

Based on the foregoing, the court cannot reach the other issues argued by the parties, including whether plaintiff presented sufficient evidence to show a triable issue as to whether the City’s claimed design immunity continued up until the time the alleged accident occurred.  The court acknowledges that much of the battleground covered in the parties’ respective papers has to do with this issue—specifically whether, at the time of the accident, a dangerous condition outside the scope of any City design immunity existed by virtue of limited corner sight distance, from the perspective of a northbound Court Street motorist looking toward westbound Riggin Avenue traffic approaching from the east. 

The court does note, however, it was, in reviewing plaintiff’s contentions, suspect of their import, particularly given that, in the accident at issue, Freeman was traveling eastbound on Riggin from the west, and, further, given that plaintiff’s expert’s determinations were apparently derived from conditions of sight obstruction observed more than two years after the accident occurred.  The court, in any event, cannot and does not reach these issues, given the City’s failure to have established the first discretionary approval element of their design immunity defense in the first instance. 

E. Conclusion

The motion for summary judgment is denied.

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:                Gonzalez, Brandon vs. City of Porterville, et al

Case No.:   VCU328948

Date:           October 13, 2026

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     Defendant County of Tulare’s (1) Demurrer; (2) Motion to Strike

Tentative Ruling: (1) To sustain the demurrer with leave to amend; (2) To grant the motion to strike with leave to amend; Plaintiff shall have ten (10) days to file an amended complaint

Facts Common to (1) and (2)

The Court notes that it sustained a demurrer to motor vehicle and negligence causes of action with leave to amend on June 2, 2026, based on immunity under Government Code section 844.6. Plaintiff was permitted ten (10) days to file an amended complaint. The amended complaint was filed July 7, 2026.

In the amended complaint, Plaintiff sues Defendants, including the County of Tulare, for motor vehicle negligence, negligence and premises liability.

Plaintiff alleges, as to motor vehicle negligence and negligence, the following:

“On or about December 13, 2024, Plaintiff was in the process of boarding Defendants CITY OF PORTERVILLE, a public entity; COUNTY OF TULARE, a public entity; STATE OF CALIFORNIA, a public entity; CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION, a public entity; LOS ANGELES COUNTY SUPERIOR COURT, a public entity; TULARE COUNTY SUPERIOR COURT, a public entity; JOHN DOE, an individual; and Does 1 to 50, inclusive, transportation van at or near 300 E Olive Ave while wearing ankle restraints. Defendant JOHN DOE stopped and/or parked said transportation van at an unsafe distance from the curb and/or sidewalk, causing Plaintiff to slip and/or trip and sustain severe injury and pain to Plaintiff. The actions of the Defendants and/or its employees was below the standard of care and was the cause of Plaintiff’s injuries.”

Plaintiff further alleges “This claim is brought pursuant to Government Code Section 815.2; Vehicle Code Section 17001. Pursuant to Vehicle Code section 17001, a public entity is liable for death or injury to person or property proximately caused by the negligent or wrongful act or omission in the operation of any motor vehicle by an employee of the public entity acting within the scope of his/her employment…” and that Defendants “…are statutorily liable for the negligent acts of the Defendants’ employee while he/she was operating the subject vehicle.”

These allegations appear unmodified from the prior complaint as to these causes of action.

However, the amended complaint alleges a third cause of action for premises liability. Here, Plaintiff alleges a willful failure to warn under Civil Code section 846 based on the following:

“Defendants negligently and/or recklessly, maintained, managed, operated, controlled and safeguarded the premises at or near 300 E Olive Ave Porterville, CA 93257, such that Defendants failed to properly train their employees and/or supervise their staff and failed to barricade the area and/or to warn of the dangerous condition, rendering the area on said premises dangerous and resulting in serious bodily injury to the Plaintiff in the following manner: On or about December 13, 2024 Plaintiff was being escorted to an exit to be transferred to a housing facility. Due to Defendants transportation van being parked at an unsafe distance from the curb and/or sidewalk as Plaintiff with shackles and/or similar ankle restraints was ascending the steps into the transportation van, plaintiff fell. This caused Plaintiff to sustain serious injuries. The actions of the Defendants and/or its employees were below the standard of care and were the cause of Plaintiff’s injuries.

This claim is brought pursuant to Government Code Section 835 and 815.2”

Defendant County of Tulare demurrers to third cause of action on immunity grounds and seeks to strike the entirety of the amended complaint for failure to amend prior to deadline permitted by the Court via sustaining a prior demurrer with leave to amend and because the third cause of action is outside of the grounds for leave to amend.

In opposition, Plaintiff acknowledges the lack of amendments to the first two causes of action as well as the Government Code section 844.6 appears applicable to the third cause of action. Plaintiff seeks leave to amend the first two causes of action and argues that “Government Code section 844.6, subdivision (d), separately provides that “[n]othing in this section exonerates a public employee from liability for injury proximately caused by his negligent or wrongful act or omission.” Thus, section 844.6 does not itself foreclose a viable claim against the individual public employee responsible for the alleged conduct.”

Authority and Analysis

(1) Demurrer

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.)

Government Tort Liability and Immunity

"In California all government tort liability is dependent on the existence of an authorizing statute or 'enactment' (Gov. Code, § 815, subd. (a), 815.6; [citations]) and to state a cause of action every fact essential to the existence of statutory liability must be pleaded with particularity, including the existence of a statutory duty." (Searcy v. Hemet Unified School District (1986) 177 Cal.App.3d 792, 802.)

Relevant here, Plaintiff here alleges the third cause of action premises liability under Civil Code section 846, Government Code sections 815.2 and 835.

Government Code section 844.6 states:

“(a) Notwithstanding any other provision of this part, except as provided in this section and in Sections 814, 814.2, 845.4, and 845.6, or in Title 2.1 (commencing with Section 3500) of Part 3 of the Penal Code, a public entity is not liable for:

(1) An injury proximately caused by any prisoner.

(2) An injury to any prisoner.

(b) Nothing in this section affects the liability of a public entity under Article 1 (commencing with Section 17000) of Chapter 1 of Division 9 of the Vehicle Code.

(c) Except for an injury to a prisoner, nothing in this section prevents recovery from the public entity for an injury resulting from the dangerous condition of public property under Chapter 2 (commencing with Section 830) of this part…”

As Government Code section 844.6 explicitly provides for a public entity’s immunity in the context of an injury proximately caused to any prisoner, section 815.2 does not serve as a basis for public liability in that context. To hold otherwise would be to annul the protection of section 844.6: “If a specific immunity statute applies, it cannot be abrogated by a statute which simply imposes a general legal duty or liability.” (Towery v. State of California (2017) 14 Cal.App.4th 226, 2333-234.) Additionally, though “a public entity may be vicariously liable for the acts and omissions of its employees (Gov.Code, § 815.2), that rule does not apply in the case of injuries to prisoners.” (Lawson v. Superior Court (2010) 180 Cal.App.4th 1372, 1383.)

As to pleading liability under Government Code section 835, subsection (c) contains an exception to the immunity, except here where an injury to a prisoner is alleged. As noted by Defendant “By this amendment, the Legislature intended that public entities be immune from claims of both prisoners and their heirs for the dangerous condition of public property.” (Badiggo v. County of Ventura (1989) 207 Cal.App.3d 357, 361-362.)

As such, the Court sustains the demurrer.

With Leave to Amend

A demurrer cannot be sustained without leave to amend where it appears that the facts alleged establish a cause of action under any possible legal theory or it is reasonably possible that the plaintiff can amend the complaint to allege any cause of action. (Canton Poultry & Deli, Inc v. Stockwell, Harris, Widom, and Woolverton (2003) 109 Cal.App.4^th 1219, 1226.)

Here, the Court will permit leave to amend, despite the application of section 844.6 to this cause of action. Plaintiff shall have ten (10) days to file an amended complaint.

(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, subds. (b), (c).)

Here, Defendant notes that the amended complaint added a third cause of action for premises liability (adjudicated above on demurrer), but that the allegations and causes of action as to motor vehicle negligence and negligence remain unchanged. The Court previously sustained a demurrer to those causes of action based on immunity but provided leave to amend.

As no amended allegations were filed as to these causes of action, the Court finds the motion to strike proper as to the amended complaint, as to the first two causes of action, failed to add, delete or modify the allegations in support thereof. The Court agrees with Defendant that the amended pleading was not drawn in conformity with the Court’s order, that is to file an amended complaint that addresses the immunity defense.

Therefore, the Court grants the motion to strike.

Here, the Court will effectively provide the same relief as it did ruling on the prior demurrer on June 2, 2026 by permitting leave to amend the first two causes of action.

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

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order. 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:                In the Matter of Jimmy L. Dreo and Charlotte L. Dreo 1996 Living Trust

Case No.:   VCU331662 

Date:           October 13, 2026

Time:           8:30 A.M. 

Dept.           2-Honorable Bret D. Hillman

Motion:     Request for Preliminary Injunction

Tentative Ruling: The motion is granted.

Vanessa Williams Dreo moves for a preliminary injunction keeping in place certain temporary restraining orders during the pendency of this action.  Trial is currently scheduled to proceed in a few weeks on November 2, 2026.

There was no opposition on file as of the court’s last check. 

Background

This action was commenced with a petition filed by Jimmy Dreo on February 20, 2026.  On August 27, 2026, however, Mr. Dreo died. 

Thereafter, on September 9, 2026, Ms. Williams Dreo applied ex parte for orders:

(1) “substituting [herself] as Successor in Interest to Jimmy L. Dreo pursuant to Code of Civil Procedure sections 377.11, 377.31, and 377.32”;

(2) “[t]emporarily restraining Respondents Ricky Lee Dreo, Pamela Lynn Dreo-Doston, Pamela Dreo Living Trust [and any affiliates thereof]” from “interfering” (or “[d]irecting … any third person” to so interfere): (a) “with [Ms. Williams Dreo’s] access to and/or use [of] real property located [at] 20810 Avenue 328 Woodlake, California 93286, APN #112-040-005-000 (‘Subject Property’)”; or (b) certain “personal property belonging to Jimmy [Dreo] and/or Vanessa [Williams Dreo]” identified as being either “presently located at the Subject Property” or “presently located at the property which address is Main & Valencia Street, Woodlake, California, APN No. 113-030-018-000 (the ‘Shop’)”; and

(3) “Issuing an Order to Show Cause directing Respondents to appear and show cause why a Preliminary Injunction should not remain in effect during the pendency of the action.”

There was no filed opposition to Ms. Williams Dreo’s ex parte application. 

At hearing on September 10, 2026, before Hon. Judge Nathan Ide in Department 9, Ms. Williams-Dreo’s ex parte request was granted in full and hearing was set for October 13, 2026 on Ms. Williams Dreo’s request for preliminary injunction, which request is, as indicated above, essentially to extend the temporary orders issued during the pendency of these proceedings—specifically, the restraints imposed with respect to interference with Ms. Williams Dreo’s access to the “Subject Property” and the personal property of she “and/or” Jimmy Dreo at the “Subject Property” and “Shop.”

As noted, no opposition has been filed as of this court’s last check. 

DISCUSSION

The court finds Ms. Williams Dreo presents a sound basis for granting her request for a preliminary injunction to preserve the apparent status quo with respect to the “Subject Property” and identified personal property pending trial, particularly as trial is set to proceed in only a few weeks.  The court is persuaded the requested orders are necessary to protect property in dispute in this litigation, which property could be lost absent such orders, and there being no opposition, there is no indication that the requested orders will unduly burden any of the respondents during the short time they will be in place. 

Accordingly, the motion is granted. 

The court additionally needs to inquire about the nature of the representation here.  Ms. Williams Dreo’s papers, as presented by her apparent counsel, Zena Sin-Zargoza and the Chapman Zaragoza, LLP law firm, area ambiguous as to whether Sin-Zargoza or her firm, in fact, actually represent Ms. Williams Dreo in this matter.  The court assumes this is the case, given Sin-Zargosa’s and her firm’s obvious involvement with the ex parte application and motion, along with Ms. Williams Dreo’s reference in her declaration in support of her ex parte application to Sin-Zargoza as “my attorney,” but there are other, somewhat conflicting, indications in the papers as well. 

First, in the caption of each of Ms. Williams Dreo’s papers, Sin-Zargosa and another attorney, together listed as attorneys of the Chapman Zaragoza, LLP law firm, are identified solely as “[a]ttorneys for Corky Jimmy Dreo, Settlor” and not as attorneys for Ms. Williams Dreo.  (According to Ms. Williams Dreo, Jimmy Dreo, to whom she stated she had been married, also “went by Corky.”)  Further, while the court acknowledges that Jimmy Dreo was, when he commenced this action, and thereafter, represented by Sin-Zargoza and her firm, that representation ceased when Mr. Dreo died. (Swartfager v. Wells (1942) 53 Cal.App.2d 522, 527-528 [128 P.2d 128] [attorney’s authority to represent client in a suit ceases with the death of the client.].) Accordingly, Sin-Zargoza and her firm necessarily were not “[a]ttorneys for Corky Jimmy Dreo, Settlor” when the ex parte application and the motion were filed.

Additionally, and separately, Sin-Zargosa submits a supporting declaration in which she identifies herself as—and solely as—“an attorney with the law firm of Chapman Zaragoza, LLP attorneys of record for Petitioner Jimmy L. Dreo and Charlotte L. Dreo 1996 Living Trust (‘Petitioner’),” and not as counsel for Ms. Williams Dreo.  Further complicating matters here, a trust is not a person or entity (like a corporation) capable of retaining counsel, but rather, is a fiduciary relationship with respect to property (Askew v. Resources Funding, Ltd. (1979) 94 Cal.App.3d 402, 407 [156 Cal.Rptr. 208]; Ziegler v. Nickel (1998) 64 Cal.App.4th 545, 548 [75 Cal.Rptr.2d 312]; Presta v. Tepper (2009) 179 Cal.App.4th 909, 913 [102 Cal.Rptr.3d 12]; Boshernitsan v. Bach (2021) 61 Cal.App.5th 883, 891 [276 Cal.Rptr.3d 109]), and so it also necessarily cannot be the case that Sin-Zargoza or her firm represents the “Jimmy L. Dreo and Charlotte L. Dreo 1996 Living Trust.”

The court assumes, again, that Sin-Zargoza and her firm represent Ms. Williams Dreo notwithstanding the issues just noted—it at least finds that such representation has been indicated strongly enough that the court can infer its existence absent some express contrary indication from Ms. Williams Dreo or Sin-Zargoza—but the court nevertheless finds it necessary, given the issues above, to make expressly clear what would otherwise seem an obvious matter:  an attorney should not submit papers to the court that create needless ambiguity about whether they represent the party presenting them (or anyone else entitled to submit them). 

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, Ceasar vs. Herr, Leonard

Case No.:   VCU335449

Date:           October 13, 2026

Time:           8:30 A.M. 

Dept.           2-Honorable Bret D. Hillman

Motion:     Anti-SLAPP and Demurrer

Tentative Ruling: To grant the anti-SLAPP motion and to sustain the demurrer without leave to amend. 

Defendants Leonard Herr and Herr Pedersen & Berglund LLP specially move to strike the fourth cause of action of plaintiff Ceasar Rodriguez’s first amended complaint.  Separately, defendants demurrer to the whole of the complaint. 

Rodriguez has not filed opposition to the anti-SLAPP motion or demurrer as of the court’s last check.  

The Complaint

Rodriguez, acting in propria persona, filed the subject first amended complaint on August 19, 2026, asserting four causes of action: (1) breach of contract; (2) general negligence; (3) fraud; and (4) defamation. 

These claims emanate from an alleged adversarial breakdown of an attorney-client relationship between plaintiff and Herr, an attorney, and his law firm, Herr Pedersen & Berglund LLP. 

Plaintiff alleges as follows:

Rodriguez hired Herr and the Herr Pedersen & Berglund firm to represent him in a Madera County Superior Court case in which he was being sued.  Rodriguez filed a motion for summary judgment in the case and prevailed, entitling him to costs.  During subsequent negotiations, Herr recommended Rodriguez enter a settlement providing for dismissal of the action and a waiver of his costs.  Rodriguez asked if he could still pursue a claim for malicious prosecution if he agreed to the settlement, Herr advised that he could, and Rodriguez entered the settlement “[o]n that basis and solely on that basis.”

Rodriguez later commenced a malicious prosecution suit against the Madera case plaintiff and her attorney.  Rodriguez “hired Michael Farley to represent him” in the malicious prosecution suit, but then “Farley declined to represent [him] on the basis that the negotiated settlement resulted in a favorable termination of the Madera Action on behalf of the Madera Plaintiff and her attorney.”  Rodriguez was unable to secure any other attorney to represent him “because of the favorable termination.”

During the pendency of the Madera case, Herr and the Herr Pedersen & Berglund firm also represented Rodriguez in his defense against a “Santa Rosa” Superior Court action against Rodriguez “and others,” including his “contracting company.”  Rodriguez tendered the defense to an insurer, but, while they agreed to represent Rodriguez “and others,” the “insurance defense did not include Rodriguez’s contracting company.” Herr and his firm were tasked with “resolving the conflict or in the alternative securing additional insurance representation by the law firm known as CUMIS counsel,” but they “did not make a CUMIS demand or address the coverage issues.”

During the course of Herr and his firm’s representation of Rodriguez, Herr called Rodriguez for a meeting regarding attorney fees claimed due and unpaid to Herr.  Rodriguez agreed to “outrageous demands” made by Herr (presumably for payment of a sum of claimed attorney fees).  Rodriguez agreed to the demands, but only because he wished to avoid losing representation in the Santa Rosa case and to avoid a “family dispute”—a consequence of the alleged fact that “Rodriguez and Herr are married to sisters.”  During the meeting, Herr lashed out at Rodriguez, said “fuck you” to Rodriguez “over 20 [times],” told Rodriguez to “get the fuck out of my office,” and threatened to call the police, and Rodriguez left the meeting, “fearing physical violence.”

Herr and his firm later withdrew from representation of Rodriguez in the Santa Rosa matter.  After that, Rodriguez’s “[i]nsurance defense counsel threatened … to pull the insurance monies offered to settle the [matter] if he did not agree to a settlement, which resulted in an adverse judgment against Rodriguez in excess of $165,000.”  Rodriguez also attributes this adverse judgment as resulting from Herr and his firm’s failure to “make a CUMIS demand or address the [defense] coverage issues [with respect to Rodriguez’s contracting company].”

Rodriguez was later sued for the attorney fees Herr claimed were unpaid.  Herr stated, in an email, “if Rodriguez would provide a letter from a licensed California attorney stating if he committed malpractice he would reduce the claim by the amount of damages caused by Herr.”  Rodriguez hired malpractice counsel who provided a written opinion that “Herr actions had fallen below the standard of care” with respect to his advisement concerning Rodriguez’s ability to pursue a malicious prosecution action following his entering the settlement that Herr proposed in the Madera case, but Herr “has failed to reduce and/or not pursue the claims for non paid attorney fees as offset by the damages Herr caused.”

Rodriguez expressly states in his complaint that the suit against him for attorney fees “result[ed] in the filing of this action.”

Rodriguez asserts Herr’s conduct following summary judgment in the Madera case constituted breach of a written agreement (or, possibly, agreements) from Herr’s provision of legal services during “Dec 2019 [and] continuing” (first, breach cause of action), and, also, fraud (third, fraud cause of action).

Rodriguez incorporates the whole of his general allegations in support of his negligence claim (second cause of action).

Under the heading of Rodriguez’s defamation claim (fourth cause of action), Rodriguez alleges that, “[w]ithin the past three (3) years,” “while representing Rodriguez and after … termination of representation,” Herr wrote Rodriguez, his law firm’s staff, and Rodriguez’s spouse stating that “a. Rodriguez has a habit and custom of not paying bills after representing the bills will be paid, which will be testified by numerous people, and b) that Rodriguez promised to pay attorney Herr for legal services but failed to make payment.”  Rodriguez alleges Herr “failed to use reasonable care to determine the truth or falsity of [these] statements,” causing harm to Rodriguez’s reputation and shame. 

Anti-SLAPP Motion

Anti-SLAPP

Subject to strike under the anti-SLAPP statute is any “cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue.”  (Code Civ. Proc., § 425.16, subd. (b)(1).) 

“As used in [section 425.16], ‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue’ includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” (Id., subd. (e).)

The anti-SLAPP statute “provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity.”  (Baral v. Schnitt (2016) 1 Cal.5th 376, 384 [205 Cal.Rptr.3d 475, 376 P.3d 604] (Baral), italics omitted.)  “It is to be ‘construed broadly.’ ” (Finton Construction, Inc. v. Bidna & Keys, APLC (2015) 238 Cal.App.4th 200, 209 [190 Cal.Rptr.3d 1] (Finton), citing Code Civ. Proc., § 425.16, subd. (a).)  “Resolution of an anti-SLAPP motion involves two steps. First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. [Citation.] If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success.” (Baral, supra, 1 Cal.5th at p. 384.)

Defendants’ motion

Defendants’ anti-SLAPP motion targets Rodriguez’s fourth defamation cause of action. 

Anti-SLAPP First Step

“At the first step of the anti-SLAPP analysis, a court considers ‘whether the challenged claims arise from acts in furtherance of the [defendant’s] right of free speech or right of petition under one of the categories set forth in section 425.16, subdivision (e). [Citation.] In doing so, “[w]e examine the principal thrust or gravamen of a plaintiff's cause of action to determine whether the anti-SLAPP statute applies … .” [Citation.]’ [Citation.] The ‘gravamen is defined by the acts on which liability is based, not some philosophical thrust or legal essence of the cause of action.’ [Citation.]” (Contreras v. Dowling (2016) 5 Cal.App.5th 394, 404-405 [208 Cal.Rptr.3d 707], emphasis in original.)

Pertinent, here, “ ‘any act’ (§ 425.16, subd. (b)(1)) ‘includes communicative conduct such as the filing, funding, and prosecution of a civil action. [Citation.] This includes qualifying acts committed by attorneys in representing clients in litigation. [Citations.]’ [Citation.] ‘Under the plain language of section 425.16, subdivision (e)(1) and (2), as well as the case law interpreting those provisions, all communicative acts performed by attorneys as part of their representation of a client in a judicial proceeding or other petitioning context are per se protected as petitioning activity by the anti-SLAPP statute. …’ [Citaiton.]”  (Finton, supra, 238 Cal.App.4th at p. 210.)

The alleged conduct upon which Rodriguez’s fourth cause of action is based, here, are written communications by Herr, “[w]ithin the past three (3) years,” when Herr, “while representing Rodriguez and after … termination of representation,” allegedly wrote Rodriguez, his law firm’s staff, and Rodriguez’s spouse stating that “a. Rodriguez has a habit and custom of not paying bills after representing the bills will be paid, which will be testified by numerous people, and b) that Rodriguez promised to pay attorney Herr for legal services but failed to make payment.” 

The court agrees with defendants that such communications, relating to defendants’ demands for payment of claimed unpaid attorney fees in anticipation of litigation concerning those fees—which litigation, Rodriguez alleges, “result[ed] in the filing of this action”—constituted protected petitioning activity protected by the anti-SLAPP statute.  (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115 [81 Cal.Rptr.2d 471, 969 P.2d 564] [communications preparatory to or in anticipation of the bringing of an action entitled to anti-SLAPP protection.].)

Probability of Prevailing

“After the defendant satisfies the first step, the burden shifts to the plaintiff to demonstrate there is a reasonable probability he or she will prevail on the merits at trial. ([Code Civ. Proc., § 425.16, subd. (b)(1).) In this phase, the plaintiff must show both that the claim is legally sufficient and there is admissible evidence that, if credited, would be sufficient to sustain a favorable judgment.” (McGarry v. University of San Diego (2007) 154 Cal.App.4th 97, 108 [64 Cal.Rptr.3d 467].)

Here, Rodriguez necessarily fails to demonstrate a reasonable probability of prevailing on the merits of his claim because he has failed to file any opposition.

Further still, Rodriguez’s own allegations and submissions by defendants establish that Rodriguez could not demonstrate a probability of prevailing on his fourth cause of action given applicability of the litigation privilege under Civil Code 47. 

“ ‘ “[T]he litigation ‘privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action. [Citations.]” [Citation.]’ [Citation.]”  (Seltzer v. Barnes (2010) 182 Cal.App.4th 953, 970 [106 Cal.Rptr.3d 290].) 

“[N]umerous decisions have applied the privilege to prelitigation communications … .” (Rubin v. Green (1993) 4 Cal.4th 1187, 1194 [17 Cal.Rptr.2d 828, 847 P.2d 1044], citing several examples.)

Rodriguez’s allegations, as well as evident copies of the subject communications in which Herr sought payment of claimed unpaid fees submitted by defendants (see Herr Dec’l, Exs. A – D), establish the communications at issue in Rodriguez’s complaint were made in furtherance of defendants’ anticipated litigation to recover claimed unpaid balances for legal services provided to Rodriguez.

Accordingly, the court finds that defendants anti-SLAPP motion must be granted as to Rodriguez’s fourth cause of action.

Demurrer

With the court having granted defendants special motion to strike, the court turns to the demurrer with respect to the remaining three causes of action in Rodriguez’s complaint.  On demurrer, defendants contend that each of the remaining three causes of action are time barred based on the applicability of Code of Civil Procedure section 340.6.

Section 340.6 states that “[a]n action against an attorney for a wrongful act or omission, other than for actual fraud, arising in the performance of professional services shall be commenced within one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the facts constituting the wrongful act or omission, or four years from the date of the wrongful act or omission, whichever occurs first.” (Id., subd. (a).)

The limitations period applicable to such claims is tolled, however, “during the time that any of the following exist:

(1) The plaintiff has not sustained actual injury.

(2) The attorney continues to represent the plaintiff regarding the specific subject matter in which the alleged wrongful act or omission occurred.

(3) The attorney willfully conceals the facts constituting the wrongful act or omission when those facts are known to the attorney, except that this subdivision shall toll only the four-year limitation.

(4) The plaintiff is under a legal or physical disability that restricts the plaintiff’s ability to commence legal action.

(5) A dispute between the lawyer and client concerning fees, costs, or both is pending resolution under Article 13 (commencing with Section 6200) of Chapter 4 of Division 3 of the Business and Professions Code. As used in this paragraph, “pending” means from the date a request for arbitration is filed until 30 days after receipt of notice of the award of the arbitrators, or receipt of notice that the arbitration is otherwise terminated, whichever occurs first.” (Ibid.)

“[S]ection 340.6(a) applies to a claim when the merits of the claim will necessarily depend on proof that an attorney violated a professional obligation—that is, an obligation the attorney has by virtue of being an attorney—in the course of providing professional services. Such claims brought more than one year after the plaintiff discovers or through reasonable diligence should have discovered the facts underlying the claim are time-barred by section 340.6(a) unless the plaintiff alleges actual fraud.” (Lee v. Hanley (2015) 61 Cal.4th 1225, 1229 [191 Cal.Rptr.3d 536, 354 P.3d 334].)

One of the Legislature’s purposes in adopting section 340.6 was “to eliminate the former limitations scheme’s dependence on the way a plaintiff styled his or her complaint” and the “[t]he Legislature,” accordingly, “enacted the statute so that the applicable limitations period for such claims would turn on the conduct alleged and ultimately proven, not on the way the complaint was styled.”  (Id., at p. 1236.) 

Further, it has been determined that “the statute applies not only to actions for professional negligence but to any action alleging wrongful conduct, other than actual fraud, arising in the performance of professional services.” (Ibid.)

Based on the foregoing, “section 340.6(a)’s time bar applies to claims whose merits necessarily depend on proof that an attorney violated a professional obligation in the course of providing professional services,” and “[i]n this context, a ‘professional obligation’ is an obligation that an attorney has by virtue of being an attorney, such as fiduciary obligations, the obligation to perform competently, the obligation to perform the services contemplated in a legal services contract into which an attorney has entered, and the obligations embodied in the State Bar Rules of Professional Conduct.”  (Id., at pp. 1236-1237.)

Rodriguez’s first through third causes of action each clearly rest on defendants’ alleged failures in providing legal services.  Rodriguez asserts Herr’s conduct following summary judgment in the Madera case constituted breach of a written agreement (or, possibly, agreements) from Herr’s provision of legal services during “Dec 2019 [and] continuing” (first breach cause of action), and, also, fraud (third fraud cause of action); and Rodriguez incorporates the whole of his general allegations concerning Herr’s representation of him in support of his negligence claim (second cause of action).

The court agrees with defendants that Rodriguez’s styling of his third cause of action as a claim for “fraud” does not exempt application of section 340.6 because it is clear that the actual basis of the claim is that the alleged representation by Herr that allegedly induced Rodriguez to settle the Madera case—that the settlement “would not preclude the Malicious Prosecution claim”—“fell below the standard of care and was incorrect.”

Thus, the fraud claim, and each of the other claims, necessarily depend on proof that defendants violated an obligation they owed “by virtue of being” Rodriguez’s attorneys. (Id., at p. 1237.)

Accrual

Defendants contend facts subject to judicial notice establish accrual of each of Rodriguez’s first three causes of action outside the applicable limitations period under section 340.6.  The court agrees.

With respect to the Madera case, Rodriguez’s allegations establish that he discovered the alleged effect of the settlement in that case after hiring attorney Farley.  Rodriguez alleges he “hired Michael Farley to represent him” in the malicious prosecution suit, but then “Farley declined to represent [him] on the basis that the negotiated settlement resulted in a favorable termination of the Madera Action on behalf of the Madera Plaintiff and her attorney,” and that he was unable to secure any other attorney to represent him “because of the favorable termination.” 

On defendants’ request, the court takes judicial notice of pleadings reflecting that Rodriguez filed his malicious prosecution complaint on March 14, 2024, in Tulare Superior Court case no. VCU306947, and that the court’s minute order in that case of December 4, 2024, reflects that, at a case management conference and hearing on an order to show cause why the action should not be dismissed, there were no appearances, and the action was dismissed on that December 4th date. 

The court finds Rodriguez’s allegations, coupled with the pleadings of which the court takes judicial notice, establish that Rodriguez had knowledge of his claims arising from Herr’s alleged representation concerning the Madera case settlement no later than December 4, 2024, which is more than one-year prior to Rodriguez’s commencement of this action on May 27, 2026.

With respect to the other action referenced in the complaint, while Rodriguez alleges it was an action in the Santa Clara Superior Court, defendants submit, and documents subject to judicial notice support, that it was an action in the Sonoma County Superior Court, which defendants identify as the “Wulbrecht” matter, in reference to the plaintiffs’ names. 

Rodriguez alleged that after Herr and his firm withdrew from representation of Rodriguez in the subject litigation, Rodriguez’s “[i]nsurance defense counsel threatened … to pull the insurance monies offered to settle the [matter] if he did not agree to a settlement, which resulted in an adverse judgment against Rodriguez in excess of $165,000.” 

The court takes judicial notice, on defendants’ request, of a notice of withdrawal of Herr and his firm from representation of Rodriguez in the Wulbrect matter filed in the Wulbrecht matter on June 26, 2024.

The court also takes judicial notice, on defendants’ request, of a declaration of counsel for plaintiffs in the Wulbrecht action, filed in that action, reflecting that, following mediation, the parties, including Rodriguez, entered a settlement agreement on April 29th and 30th of 2025 under which the defendants agreed to pay $165,000 to the plaintiffs.   This declaration reflects that it was filed in support of a motion to enforce the indicated settlement agreement and for entry of judgment.  The court derives from this declaration, that the judgment sought was ultimately issued in the Wulbrecht matter, and it is this judgment that Rodriguez alleges resulted from Herr and his firm’s withdrawal from representing Rodriguez and/or their earlier prior failure to “make a CUMIS demand or address the [defense] coverage issues [with respect to Rodriguez’s contracting company].”

The court agrees with defendants that any claims derived from defendants’ alleged conduct in the Wulbrecht litigation accrued as of the date of withdrawal of Herr and his firm from representation of Rodriguez, no later than June 26, 2024, and, in any event, no later than the date Rodriguez entered a settlement in which he, along with the other defendants, agreed to pay the plaintiffs $165,000, which was no later than April 30, 2025.

Measured from either date, Rodriguez’s action, commenced May 27, 2026, was commenced outside the applicable one-year limitations period under section 340.6.

The court notes, finally, that plaintiff’s complaint contains no allegations suggesting a basis for application of any tolling exception under section 340.6 that would render his action timely. 

Based on the foregoing, the court finds that demurrer must be sustained.  Because Rodriguez has presented nothing to suggest reasonable possibility of curing the defects in his complaint by amendment, the demurrer is sustained without leave to amend.  (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [134 Cal.Rptr. 375, 556 P.2d 737].)

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:                Leiva, Robert vs. Merle Stone Chevrolet, Inc.

Case No.:   VCU336100

Date:           October 13, 2026

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:      Defendants’ Motion to Compel Arbitration 

Tentative Ruling: To order further briefing limited to the issue of the date of execution of the Comprehensive Agreement; to permit discovery as to this singular issue; to continue the hearing on this matter until December 29, 2026. Any further brief shall be filed by Defendant by December 4, 2026, and any further brief from Plaintiff is due on December 15, 2026.

Background Facts

In this matter, Plaintiff has filed a single cause of action under PAGA for violations of Labor Code sections 210, 226.3, 558, 1174.5, 1197.1 and 2699 against Defendants Merle Stone Chevrolet, Inc. and Merle Stone Porterville, Inc.

Defendants petition to compel arbitration of the “representative” PAGA claim and stay this matter as to the “individual” PAGA claim pending completion of arbitration.

Facts – Agreements to Arbitrate

Defendants’ petition is based on a September 13, 2021 document entitled “Employee Acknowledgment and Agreement Arbitration Agreement.” (“Handbook Agreement”).

In response, Plaintiff notes that the personnel file requested by Plaintiff from Defendant Merle Stone Chevrolet, Inc. contained two other documents which refer to arbitration.

The second agreement as to arbitration is an “Application Statement and Agreement” dated July 20, 2021.

The third agreement as to arbitration is an undated document entitled “COMPREHENSIVE AGREEMENT EMPLOYMENTAT-WILL AND ARBITRATION” (“Comprehensive Agreement”) between Plaintiff and Defendant Merle Stone Chevrolet, Inc.

As such, Plaintiff argues that Civil Code section 1642 requires the Court to take these documents together as several contracts relating to the same matters, between the same parties and made as parts of substantially one transaction.

It appears undisputed that Plaintiff executed all three agreements.

Authority and Analysis – Agreements to Arbitrate

The Court must first determine which agreement applies or whether each agreement should be read together.

Civil Code section 1642 states “Several contracts relating to the same matters, between the same parties, and made as parts of substantially one transaction, are to be taken together.” “‘Under Civil Code section 1642, it is the general rule that several papers relating to the same subject matter and executed as parts of substantially one transaction, are to be construed together as one contract…” (IMO Development Corp. v. Dow Coming Corp. (1982) 135 Cal.App.3d 451, 463.)

However, while an integration clause does not preclude application of Civ. Code §1642, "…the inclusion of an integration clause weighs against reading contracts together." (Silva v. Cross Country Healthcare, Inc. (2025) 111 Cal. App. 5th 1311, 1326; Grey v. Am. Mgmt. Servs. (2012) 204 Cal. App. 4th 803, 807 ("The crucial issue in determining whether there has been an integration is whether the parties intended their writing to serve as the exclusive embodiment of their agreement...The existence of an integration clause is a key factor in divining that intent").

To start, the July 20, 2021 Application Statement and Agreement predates the Handbook Acknowledgment Arbitration Agreement signed September 13, 2021.

The Handbook Agreement contains an integration clause stating “5. Entire Agreement. This is the entire between myself and the Dealership regarding dispute resolution, the length of my employment, and the reasons for termination of employment, and this agreement supersedes any and all prior agreements regarding these issues. No supervisor or representative of the Dealership, other than the President, has any authority to make any agreement contrary to the foregoing…”

To the Court, this integration clause causes the Handbook Agreement to nullify the July 20, 2021 Application Statement and Agreement and precludes the application of section 1642 here as to these two agreements.

However, the third agreement, Comprehensive Agreement is undated, though it also appears undisputed too that it was executed by Plaintiff. This Comprehensive Agreement too contains an integration clause, stating:

“3. This is the entire agreement between the Dealership and the Employee regarding dispute resolution, the length of my employment, and the reasons for termination of employment, and this agreement supersedes any and all prior agreements regarding these issues

Both the Handbook Agreement and Comprehensive Agreement, therefore, contain competing integration clauses as well as the following:

“No supervisor or representative of the Dealership, other than the President, has any authority to…make any agreement contrary to the foregoing.” (Handbook Acknowledgement)

“It is further agreed and understood that any agreement contrary to the foregoing must be entered into, in writing, by the President of the Dealership. No supervisor or representative of the Dealership, other than its President, has any authority to enter into any agreement contrary to the foregoing.” (Comprehensive Agreement)

On reply, Defendants argue that it is not in dispute that the Handbook Agreement and Comprehensive Agreement are signed by Plaintiff and that both evidence an intent to arbitrate claims. Defendants argue Plaintiff identifies no “irreconcilable differences” between these two agreements and that the Court should read them together pursuant to Santana v. Studebaker Health Care Center, LLC (2026) 120 Cal.App.5th 1.

The Court is unpersuaded.

“Santana signed the three documents at the same time and they relate to the same matter, we construe them together. (Id. at 8, FN2.) Additionally, Santana contains no discussion as to the impact of the integration clauses and modification through signature of the president terms.

Unless these agreements were executed at the same time, in the Court’s view, the later executed agreement containing such an integration clause would appear to control. (Compare Cluck v. GEO Secure Services, LLC (2026) 122 Cal.App.5th 249, 261 [“And where two agreements are signed at the same time, both covering dispute resolution and both containing an integration clause, it is not clear which is controlling.”].)

Here, by contrast, the Court has the September 13, 2021 Handbook Agreement and the undated Comprehensive Agreement. There is no evidence before the Court indicating they were executed together. There is no evidence before the Court indicating whether the undated Comprehensive Agreement was executed before or after September 13, 2021. The Court, as noted above, is not inclined to interpret these documents together, absent evidence of simultaneous execution and given the presence of the integration clauses.

As such, the Court orders further briefing and presentation of evidence as to the date the Comprehensive Agreement was signed. The Court will permit limited discovery to be proposed by the parties. Any such discovery will be limited to determining this sole issue and will not be construed as a waiver of Defendants’ ability to compel arbitration of this matter. The Court continues the hearing on this matter to December 29, 2026. Any further briefing shall be filed by Defendant by December 4, 2026, and any responsive briefing from Plaintiff is due on December 15, 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:                 Capital One, N.A., successor by merger to Discover Bank vs. Villasenor, Karla

Case No.:   PCL317979

Date:           October 13, 2026

Time:           8:30 A.M. 

Dept.           19-The Honorable Russell P. Burke

Motion:     Defendant’s Counsel’s Motion to be Relieved

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.

On August 11, 2026, Counsel Andrew Gramajo filed a motion to be relieved as counsel as to Defendant Karla Villasenor. 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, Counsel has filed proofs of service of these documents by mail.

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 CCP §284(1) and that the client refused to so stipulate.

Here, the declaration is properly made on form MC-052, and Counsel notes “Client was provided the Substitution of Attorney form (Judicial Council form MC-050) and requested that the client sign and return it to consent to my withdrawal as counsel of record in this matter. The client has refused to sign the form.”

Next, service under Rule 3.1362(d) requires personal service, electronic service, or mail and counsel’s declaration must note the service made. Here, the  proof of service indicates service by mail, and that the documents were served at the last known address of Defendant, return receipt requested.

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. Counsel has complied with this requirement.

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

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. 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:                Doe 7153, a minor, John et al vs. Porterville Unified School District

Case No.:   PCU328548

Date:           October 13, 2026

Time:           8:30 A.M. 

Dept.           19-The Honorable Russell P. Burke

Motion:     Joint Motion for Protective Order

Tentative Ruling: To grant the motion

Facts and Analysis

In this matter, Plaintiff alleges he is the victim of improper sexual conduct by “I.G.” a student enrolled in Porterville Unified School District at all relevant times and that Defendant breached one or more duties that it owed to Plaintiff related to the occurrence of the alleged conduct by I.G.

Plaintiff has requested the student records of I.G. and Defendant has taken the position that these records may be provided only upon Court order permitting such release pursuant to Education Code section 49076. The parties, therefore, jointly move for a protective order allowing the production of certain student records to the Parties, the Parties’ counsel and staff thereof, Court personnel, retained experts and/or consultants, in-house experts designated by Defendant, witnesses who agree to be bound by a confidentiality clause, and the finder of fact at the time of trial, subject to the Court’s rulings on in limine motions.

Further, the parties note I.G.’s mother has consented to release of student records.

“A school district shall not permit access to pupil records to a person without written parental consent or under judicial order except as set forth in this section and as permitted by Part 99 (commencing with Section 99.1) of Title 34 of the Code of Federal Regulations." (Educ. Code § 49076(a).) This statute is "directed at institutional records maintained in the normal course of business by a single, central custodian of the school. Typical of such records would be registration forms, class schedules, grade transcripts, discipline records, and the like." (BRV, Inc. v. Superior Court (2006) 143 Cal.App.4th 742, 754.)

Education Code section 49075 provides in part, a “school district may permit access to pupil records to any person for whom a parent of the pupil has executed written consent specifying the records to be released and identifying the party or class of parties to whom the records may be released.”

No opposition appears filed by the parents of I.G.

The Court, therefore, grants the motion and will enter the protective order as requested.

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:                Westwood Capital Services, Inc. vs. Omni Land Development, LLC, a California limited liability company

Case No.:   PCU336318

Date:           October 13, 2026

Time:           8:30 A.M. 

Dept.           19-The Honorable Russell P. Burke

Motion:     Motion to Set Aside Default

Tentative Ruling: To grant the motion and set aside entry of default; to order the proposed answer filed no later than ten (10) days from the date of this hearing; to order Defendants’ counsel Whelan to pay the sum of $875 to Plaintiff’s counsel no later than ten (10) days from the date of this hearing pursuant to Code of Civil Procedure section 473(b); to deny the remainder of the relief requested in the opposition, except as to vacating the dismissal of the Doe Defendants.

Facts

In this matter, Plaintiff sues Defendants Omni Land Development, LLC, a California limited liability company; Samer Sabbah, also known as Samer Basem Sabbah, an individual; and Does 1-100 for breach of contract, common counts and claim and delivery / enforcement of security interest.

On June 29, 2026, Plaintiff filed proofs of personal service as to Defendant Sabbah and Defendant Omni, via Sabbah as agent for service of process for Defendant Omni.

Both proofs reflect service on Sabbah on June 23, 2026 at 2:32 pm at 5020 W. Livorno Avenue Visalia, CA 93291. The proofs of service were executed by a registered California process server.

On July 24, 2026, default was entered as to Defendants Omni and Sabbah.

No default judgment has been entered.

On September 10, 2026, Defendants filed this motion for relief from entry of default pursuant to Code of Civil Procedure section 473(b) based on Defendants’ counsel’s declaration of fault. Specifically, counsel states

“3. I was responsible for ensuring that a timely responsive pleading was filed on behalf of Omni and Sabbah.

4. Through my own mistake and inadvertence, I incorrectly calendared the deadline for Omni and Sabbah to respond to Plaintiff's Complaint.

5. As a result of my calendaring mistake, Omni's and Sabbah's responsive pleading was not filed by the required deadline.” (Declaration of Whelan ¶¶3-5.)

Plaintiff opposes the motion, noting there is no date of retention of counsel provided in the declaration of Whelan and further that Whelan contacted counsel first on July 28, 2026 by telephone, after default had been entered. Alternatively, Plaintiff seeks payment by Whelan Law Group of $2,485 in compensatory legal fees and costs.

Authority and Analysis

Generally, under California Code of Civil Procedure section 473(b), the court may grant discretionary relief to a party from a judgment, dismissal, order, or other proceeding that was entered against the party due to excusable mistake, inadvertence, surprise, or neglect on the part of the party. (Id.)

However, also under California Code of Civil Procedure section 473(b), the court must grant relief when an attorney for the party seeking relief submits a sworn affidavit attesting that his or her mistake, inadvertence, surprise, or neglect caused the judgment to be entered against the party. (Code Civ. Proc., § 473(b); Martin Potts & Associates, Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 438 [explaining difference between mandatory and discretionary relief under section 473, subd. (b)].)

As to this mandatory relief provision, Code of Civil Procedure section 473(b) states, in relevant part, the following:

“…Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.” (Code Civ. Proc. § 473(b))

Here, the motion is timely as it is made within six months of entry of default.

“Relief is mandatory when a complying affidavit is filed, even if the attorney's neglect was inexcusable.” (SJP Limited Partnership v. City of Los Angeles (2006) 136 Cal.App.4th 511, 516-517; Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 225.)

“‘The only limitation is when the court finds [that] the default [or dismissal] was not in fact the attorney's fault, for example when the attorney is simply covering up for the client…’ (Rogalski v. Nabers Cadillac (1992) 11 Cal. App. 4th 816, 821.)” (Todd v. Thrifty Corp. (1995) 34 Cal.App.4th 986, 991.)

Motions brought under section 473 involve “an assessment of credibility by the trial court.” (Behm v. Clear View Techs. (2015) 241 Cal.App.4th 1, 15.) In Behm, the court upheld the trial court’s determination that an attorney’s affidavit of fault lacked credibility based on “contradictions and discrepancies” between the attorney’s affidavit and his “earlier representations to the court.” (Id.) This included “different excuses” than those that had been provided earlier in the litigation for the same conduct. (Id.) The court concluded that the attorney had “forfeited his credibility when in his subsequent affidavit, he attempted ‘to change the facts and blame himself.’” (Id. at 16.) Thus, the court had not erred in finding the affidavit “incredible” and denying mandatory relief under § 473(b). (Id.)

Here, the Court does not find a lack of credibility stemming from Whelan’s declaration. While no date of retention of counsel by Defendants is stated, this is not a contradiction of discrepancy which negates the declaration or otherwise calls its credibility into question. Plaintiff’s counsel notes that Whelan contacted Plaintiff’s counsel 4 days after default, which is not inconsistent with Whelan’s declaration as to the calendaring error and failure to file responsive pleadings.

Behm does not appear to be analogous here, as the Court does not find any such contradictions that would warrant denial.

“Because the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default.” (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233.) Where the party in default moves promptly to seek relief, and no prejudice to the opposing party will result from setting aside the default and letting the case go to trial on the merits, “very slight evidence will be required to justify a court in setting aside the default.” (Id.)

Next, subsection (b) additionally requires the filing of “a copy of the answer, motion, or other pleading proposed to be filed in the action.” Here, Defendants have attached a proposed answer in satisfaction of this requirement.

Reasonable attorney’s fees and costs are mandatory when granting a motion for relief from default based on an attorney’s affidavit of fault. (Code Civ. Proc.  § 473(b) [“The court shall, whenever relief is granted based on an attorney’s affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.”].)

The Court will order Whelan to pay $875 pursuant to this section, consisting of 2.5 hours total as to the default package and opposition to this motion at the state rate of $350 per hour.

The Court will not condition relief on the payment of this amount.

The Court will not find waiver of objection or defense based on service of process.

The Court will not order Defendants’ responses to discovery and appearance for deposition by a date certain.

The Court will vacate the dismissal of the Does.

Therefore, the motion is granted. Defendants are ordered to file the proposed answer no later than ten (10) days from the date of this hearing.

Defendant’s Counsel Whelan is further ordered to pay the amount of $875 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. 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:                Patel, Anil P vs. Naini, MD, Sohrab Rahimi et al

Case No.:  PCU336946

Date:           October 13, 2026

Time:           8:30 A.M. 

Dept.           19-The Honorable Russell P. Burke

Motion:      Demurrer

Tentative Ruling: To overrule the demurrer; to order Defendant Dr. Naini to answer the complaint no later than ten (10) days from the date of this hearing.

Facts

In this matter filed July 7, 2026, Plaintiff sues Defendants Sohrab Rahimi Naini, MD and Vinay K. Buttan, MD for “general negligence” and medical malpractice based on the following:

On or about July 29, 2025, Plaintiff, ANIL PATEL, was diagnosed with rectal cancer. In or about April 2022, plaintiff was scheduled for a colonoscopy with Sohrab Rahimi Naini, MD. (hereinafter Dr. Rahimi) a gastrologist, and had follow-up care with Vinay K. Buttan, MD, his primary care physician. Plaintiff learned that Dr. Rahimi had missed polyps in his rectum. Plaintiff had been continuously stating to his primary care physician, Dr. Buttan, that he had blood in his stool and symptoms, which were noted in his chart but ignored. In performing the professional services rendered to plaintiff, ANIL PATEL, defendants, and each of them, and/or their agents, representatives, and/or employees, failed to exercise the degree of learning, skill and care ordinarily possessed by medical providers practicing in the same or similar locality and under similar circumstances so as to mis diagnose Plaintiff.”

Further that “Plaintiff's injury of Stage 3 Rectal Cancer, is the kind of accident that ordinarily does not occur absent someone’s negligence. If due care is used and proper procedures are followed including but not limited to removing polyps, performing a scan after the colonoscopy, performing tests regarding blood in the stool and that relevant image studies and results are properly labeled, and appropriately displayed.”

Additionally that:

“Dr. Buttan With respect to the Primary care physician the issues are inadequate treatment and diagnostic testing as well as not referring to specialist. For the Gastro it would be failure to diagnosis and also not referring to specialist.

Plaintiff's injury was caused by an instrumentality in the exclusive control of defendants, and each of them, during a surgical treatment when plaintiff was unconscious. Plaintiff was unconscious at the time of colonoscopy and plaintiff's accident and/ or injury was not due to any voluntary action or contribution on his part.”

Defendant Dr. Naini demurrers to the complaint on grounds that this action is time barred by the statute of limitations.

In opposition, Plaintiff argues that the statute of limitations under either the one year or three year limits did not commence on the date of the missed diagnosis and that the complaint was timely filed.

Authority and Analysis

The purpose of a demurrer is to test whether a complaint “states facts sufficient to constitute a cause of action upon which relief may be based.” (Young v. Gannon (2002) 97 Cal.App.4^th 209, 220.  To state a cause of action, a plaintiff must allege facts to support his or her claims, and it is improper and insufficient for a plaintiff to simply plead general conclusions. (Careau v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 11371, 1390.) The complaint must contain facts sufficient to establish every element of that cause of action, and thus a court should sustain the demurrer if “the defendants negate any essential element of a particular cause of action.” (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4^th 857, 879-80)

To determine whether the complaint states facts sufficient to constitute a cause of action, the trial court may consider all material facts pleaded in the complaint and those that arise by reasonable implication therefrom; it may not consider contentions, deductions, or conclusion of fact or law (Moore v. Conliffe (1994) 7 Cal.4^th 634, 638.)

It is well-settled that all well-pled material facts in the complaint are assumed to be true for the purpose of the demurer.  (C & H Foods v. Hartford Ins. Co. (1984) 163 Cal.App.3d 1055, 1062)

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.)

Authority and Analysis - Medical Malpractice – Statute of Limitations

Section 340.5, applicable to professional negligence causes of action, states:

“In an action for injury or death against a health care provider based upon such person’s alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first. In no event shall the time for commencement of legal action exceed three years unless tolled for any of the following: (1) upon proof of fraud, (2) intentional concealment, or (3) the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person...”

"Thus, section 340.5 contains two periods of limitation, a three-year period and a one-year period, both of which must be met." (Artal v. Allen (2003) 111 Cal.App.4th 273, 278.) "Irrespective of the one-year provision of section 340.5, its three-year provision 'provides an outer limit which terminates all malpractice liability and it commences to run when the patient is aware of the physical manifestations of [his] injury without regard to awareness of the negligent cause.' [Citation.]" (Id. at 282.) "'[R]egardless of extenuating circumstances, the patient  must bring . . . suit within one year after he discovers, or should have discovered, [the] "injury." [Citation.]' [Citation.]" (Id. at 278.)

As to defining the term injury, Drexler v. Petersen (2016) 4 Cal.App.5th 1181, 1190-1191 states:

“The word “injury” in section 340.5 “refer[s] to the damaging effect of the alleged wrongful act and not to the act itself.” ([citation omitted]) Therefore, “[t]he date of injury could be much later than the date of the wrongful act where the plaintiff suffers no physical harm until months or years after the wrongful act.” ([citation omitted].) The injury, however, is not necessarily the ultimate harm suffered, but instead occurs at “the point at which ‘appreciable harm’ [is] first manifested.”  ([citation omitted]; see Hills v. Aronsohn (1984) 152 Cal.App.3d 753, 762 [199 Cal. Rptr. 816] (Hills) [“appreciable harm” may become apparent before the ultimate harm or diagnosis].) “Each case necessarily will turn on its own particular circumstance. It could well be that an injury or pathology will not manifest itself for some period after the last treatment by a physician. On the other hand, that injury or pathology may manifest itself and the patient will suffer known appreciable harm at a time prior to the ‘ultimate’ result.” [citation omitted]”

Drexler notes “[w]hen a plaintiff brings a malpractice action based on the defendant's failure to diagnose, or misdiagnosis of, a latent, progressive condition, identification of the “injury” is more difficult” and cites to the “one published case in California addresses the issue of when a plaintiff suffers appreciable harm in the context of misdiagnosis of a preexisting hidden condition” Steingart v. White (1988) 198 Cal.App.3d 406.

In Steingart, as summarized by Drexler, “the plaintiff noticed a lump in her breast, and in February 1982 the defendant doctor diagnosed the lump as fibrocystic disease, a benign condition. (Id. at p. 409.) The plaintiff believed the lump was “‘very nodule and hard,’” and she “‘had a feeling of cognitive dissonance’” about the diagnosis. (Id. at p. 410.) Because she had “‘some question in [her] mind’” about the diagnosis, she made an appointment with a second doctor a few months later. The second doctor ordered a mammogram, which was negative for cancer. (Ibid.) The negative result reassured the plaintiff that she did not have cancer. (Ibid.) In 1984 the plaintiff went to a third doctor, who ordered another mammogram. Again the results were negative. (Ibid.) In April 1985 the plaintiff “noticed a change in the contour of the upper outer quadrant of her right breast.” (Ibid.) The third doctor immediately referred the plaintiff to a fourth doctor, who performed a lumpectomy and informed the plaintiff that she had stage II breast cancer. (Ibid.)” (Drexler, supra, 4 Cal.App.5^th at 1192.)

“On March 24, 1986, more than four years after the defendant doctor's examination, but within one year of the change in contour of the breast and the cancer diagnosis, the plaintiff filed a malpractice action. (Steingart, supra, 198 Cal.App.3d at p. 410.) The court, reversing an order granting the defendant's motion for summary judgment on statute of limitations grounds, rejected the defendant's argument that the plaintiff “suffered an injury—cancer as manifested by the lump—at the time [the first doctor] examined her on February 12, 1982.” (Id. at p. 414.) Instead, the court determined that the plaintiff “suffered no damaging [effect] or appreciable harm from [the defendant doctor's] asserted neglect until [the third doctor] discovered her cancer in April 1985.” (Ibid.) The court rejected the defendant's argument that the plaintiff's lump, which she knew about in 1982, was like the lump and soreness in Hills, which had commenced the running of the statute of limitations. (Id. at p. 415.) The court's holding recognized the difference between a plaintiff who can connect her injury to a prior negligent procedure, and a plaintiff whose injury predates consultation with a doctor: “[A]lthough [the plaintiff] knew about the lump at the time [the defendant] examined her, such a condition is not a clear indication of injury, either damaging effect or appreciable harm. Unlike [the plaintiff in Hills], the plaintiff [in Steingart] was not advised the lump was the result of any earlier treatment [the silicone injections]. On the contrary, she was told repeatedly the lump was nonthreatening.” (Ibid.)” (Drexler, supra, 4 Cal.App.5^th at 1193.)

Here, Defendant Dr. Naini argues that the complaint’s allegation that in or about April 2022, Defendant Dr. Naini failed to diagnose and/or refer Plaintiff to a specialist and that Plaintiff received follow-up care with his primary care physician Vinay K. Buttan, M.D.

However, under Steingart and Drexler, the failure to diagnose date does not constitute the date of injury for purposes of commencing the statute of limitations.

Marriage & Family Ctr. v. Superior Court (1991) 228 Cal.App.3d 1647, 1654 notes, additionally:

“…damage is "manifested" for purposes of commencing the three-year period when it has become evidenced in some significant fashion, whether or not the patient/plaintiff actually becomes aware of the injury. We accept the Steingart proposition that severe damage which does not show itself (hidden cancer, for instance) is not "injury" until it is found by diagnosis. It does not follow, however, that damage which has clearly surfaced and is noticeable is not "injury" until either the plaintiff or her physician recognizes it.”

But, in this case, the complaint states “Plaintiff learned that Dr. Rahimi had missed polyps in his rectum. Plaintiff had been continuously stating to his primary care physician, Dr. Buttan, that he had blood in his stool and symptoms, which were noted in his chart but ignored.” That, to the Court, is some appreciable harm akin to “a change in the contour of the upper outer quadrant of her right breast” as in Steingart which constitutes some “…known appreciable harm at a time prior to the ‘ultimate’ result.” (Drexler, supra, 4 Cal. App. 5^th at 1191.)

The complaint is, however, silent on the date “Dr. Rahimi had missed polyps in his rectum” and when exactly Plaintiff first stated “to his primary care physician, Dr. Buttan, that he had blood in his stool and symptoms.” The Court considers blood in stool and symptoms to be appreciable harm known prior to the ultimate diagnosis of cancer.

Committee for Green Foothills v. Santa Clara County Bd. Of Supervisors (2010) 48 Cal.4^th 32, 42 states, “ ‘ “A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. [Citation.] In order for the bar . . . to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred. [Citation.]” [Citation.]’ [Citation.]”

Here, because Plaintiff has not pled when, exactly, such symptoms occurred and therefore when some appreciable harm can be attributed to the missed diagnosis, the Court cannot say the statute of limitations defect “clearly and affirmatively appear[s] on the face of the complaint.” Therefore, “it is not enough that the complaint shows that the action may be barred.”

The Court notes the basis for the demurrer is that the cause of action is time barred. The memorandum of points and authorities chiefly discuss and analyze the three year period and the only mention of the one year period (“Clearly, the Complaint is untimely pursuant to either the three year or one year provision of Code of Civil Procedure section 340.5”) lacks any analysis thereto. 

As to the one year period, the Court observes that Rose v. Fife (1989) 207 Cal. App. 3d 760, 768-769 states:

"Our Supreme Court has often discussed the one-year rule's requirement of discovery of the negligent cause of injury. When a plaintiff has information which would put a reasonable person on inquiry, when a plaintiff's "reasonably founded suspicions [have been] aroused" and the plaintiff has "become alerted to the necessity for investigation and pursuit of her remedies," the one-year period commences. "Possession of 'presumptive' as well as 'actual' knowledge will commence the running of the statute." [Citations.] The plaintiff's ignorance of the identity of the defendant wrongdoer does not toll the one-year period. [Citation.][¶] "Under the discovery rule, the statute of limitations begins to run when the plaintiff suspects or should suspect that her injury was caused by wrongdoing, that someone has done something wrong to her. … A plaintiff need not be aware of the specific 'facts' necessary to establish the claim [such as failure to test, failure to warn, failure to diagnose]; that is a process contemplated by pretrial discovery. Once the plaintiff has a suspicion of wrongdoing, and therefore an incentive to sue, she must decide whether to file suit or sit on her rights. So long as a suspicion exists, it is clear that the plaintiff must go find the facts; she cannot wait for the facts to find her."

Again, however, the complaint does not “clearly and affirmatively” establish discovery of the injury occurred outside this one year period, as there is no time established as to the date when Plaintiff was “continuously stating to his primary care physician, Dr. Buttan, that he had blood in his stool and symptoms.”

The Court notes it does not find, on demurrer, that the statute of limitations began running July 29, 2025 upon the alleged proper diagnosis. 

Therefore, the Court overrules the demurrer and orders Defendant Dr. Naini 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. 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:                 Martinez, Armando vs. Porterville Citrus, Inc. a California Company

Case No.:   PCU318066

Date:           October 13, 2026

Time:           8:30 A.M. 

Dept.           19-The Honorable Russell P. Burke

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

Tentative Ruling: To grant the motion; to set the motion for final approval of class action and PAGA settlement for May 11, 2027, 8:30 am, Dept. 19.

Background Facts

The Court previously continued this matter and ordered a supplemental declaration as to the notice period, lodestar, and presently incurred costs. On October 6, 2026, Plaintiff’s counsel filed a supplemental declaration addressing these issues.

Class Notice

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

Objections or opt out notices are to be made within 60 days. The Court regularly approves notice periods of 60 days or longer. The class notice period is therefore approved.

Attorneys’ Fees and Costs

Attorneys’ fees of 35% of the gross settlement fund of $320,000 or $112,000 and costs not to exceed $22,000 are sought by Plaintiff’s counsel.

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

Here, Counsel indicates that the firm has spent 214 hours on this case at the rate of $1,019 per hour resulting in a total lodestar of $218.066. (Supplemental Declaration of Yadidsion ¶11.)

The Court notes that this rate is higher than what is typically “…prevailing in the community for similar work.”  (PLCM Group Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) The Court, therefore, adjusts the hourly rates as follows:

Name	Stated Hourly Rate	Approved Hourly Rate	Hours	Adjusted Total
Yadidsion	$1,019	$850	77	$65,450
Taylor	$1,019	$850	137	$116,450
Total Preliminarily Approved:	214	$181,900

The base lodestar exceeds the amount requested and therefore the Court preliminarily approves the fees as requested by Plaintiff.

Counsel has also provided the current costs expended in amounts of $12,399.01. (Declaration of Yadidsion ¶14.) The Court preliminarily approves costs not to exceed $22,000.00.

Plaintiff’s deductions from the gross settlement of $320,000 are preliminarily approved as follows:

Preliminarily Approved Attorney Fees (35%):	$112,000
Preliminarily Approved Attorney Costs (up to):	$22,000
Preliminarily Approved Enhancement Payment to Plaintiff :	$5,000
Preliminarily Approved Settlement Administrator Costs	$15,000
Preliminarily Approved Total PAGA Payment:	$50,000
Preliminarily Approved Net Settlement Amount	$116,000

Therefore, the Court grants the motion. The Court sets the motion for final approval of class action and PAGA settlement for May 11, 2027, 8:30 am, Dept. 19.

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 14, 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
VPR054305	In the Matter of Nixon, Sandra Louise	Determine Succession to Primary Residence	Recommended for Approval
VPR054306	In the Matter of Emerson, Randall Gary	Determine Succession to Primary Residence	Appearance Required	Petition Attachment 14 omitted: all names of successors, relationships to decedent, ages, and mailing addresses
VPR053914	In the Matter of Sokoloff, Bruce John	Final Distribution Hearing	Recommended for Approval
VPR053662	In the Matter of Martin Solorzano, Jose Manuel	Final Distribution Hearing	Recommended for Approval
VPR053893	In the Matter of Jennings, Gary Wayne	Final Distribution Hearing	Approval Conditional	Proposed order to be submitted for review
VPR053378	In the Matter of Ramirez, Robert Gonzales	Final Distribution Hearing	Appearance Required	Declaration in support of extraordinary fees must comply with CRC, rule 7.703(e) if including services of a paralegal
VPR053608	In the Matter of the Owings Family Revocable Trust, dated February 2, 2006	Status Conference	Appearance Required	Settlement Conference Statement received
VPR054169	In the Matter of Pacheco, Daniel	Appoint Temporary Conservator	Appearance Required	Initial Petition: Capacity Declaration not filed. Competing Petition: Duties of Conservator and Capacity Declaration not filed

Honorable Russell Burke Presiding- Department 19

Examiner notes for probate matters:

                                         

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

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
10/5/2026 8:30	Department 09	VPR054359	In the Matter of E.J.W.	NEED Notice of Hearing (GC-020) to be filed with proof of service to be in accordance with Prob Codes §2250(e) & 2250(e)(3). Service on Father Mr. Addison & Mother Mrs. Wiliams are required Temporary Order and Temporary Letters need to be lodged prior to hearing
10/6/2026 14:00	Department 09	VPR054113	In the Matter of Madera, Shanylle	NEED Notice of Hearing (GC-020) to be filed with proof of service indicating Petition for Appointment was served pursuant to Probate Code §1511 on all grandparents
10/6/2026 8:30	Department 02	VPR054358	In the Matter of Johnson, River Lynn	TEMP- NEED Notice of Hearing (GC-020) to be filed with proof of service to be in accordance with Prob Codes §2250(e) & 2250(e)(3), parents to be personally served 5 court day’s notice prior to hearing
10/6/2026 8:30	Department 01	VPR052277	In the Matter of Bennett, Zoey Lynn	NEED Notice of Hearing GC-020 form to be filed indicating parties to this case were served with a copy of the Notice of Hearing pursuant to Prob Code §1460, service to be given 15 calendar days before hearing
10/14/2026 8:30	Department 01	VPR053711	In the Matter of Allende, Jorge Jr	No issues to address
10/14/2026 8:30	Department 01	VPR047286	In the Matter of Clevenger, Brea Marie	Guardianship Status Review Report needs to be filed for 2026 NEED Notice of Hearing (GC-020) to be filed with proof of service indicating the relatives named in the Petition for Termination were served with 15 calendar days notice, as required by PROB Code §1460,1511, with a copy of the Notice of Hearing and Petition for Termination. The children may be of Native American ancestry, notice of termination proceedings must be given to the children’s tribe per ICWA NOT LODGED- Order Terminating Guardianship
10/15/2026 8:30	Department 19	PPR054192	In the Matter of Venegas, Analise Rose et al	No issues to address
10/15/2026 8:30	Department 19	PPR054155	In the Matter of Hernandez, Julian Carlos et al	NEED Notice of Hearing (GC-020) to be filed with proof of service indicating Petition for Appointment was served pursuant to Probate Code §1511, SERVICE to be completed on paternal grandfather DOJ Background record check appears to be outstanding for proposed guardian and household member
10/15/2026 8:30	Department 19	PPR050803	In the Matter of Aviles, Irie A	NEED Notice of Hearing (GC-020) to be filed with proof of service indicating the relatives named in the Petition for Termination were served with 15 calendar days notice, as required by PROB Code §1460, 1511, with a copy of the Notice of Hearing and Petition for Termination. Guardianship Status Review Report needs to be filed for 2026 NOT LODGED- Order Terminating Guardianship
10/15/2026 10:00	Department 09	VPR053787	In the Matter of Mendoza, Nolberto	Temporary guardianship for N.M. has terminated by operation of law as ward has reached the age of 18. NEED Notice of Hearing (GC-020) to be filed with proof of service indicating Petition for Appointment was served pursuant to Probate Code §1511, notice required by maternal grandparents DOJ Background record check appears to be outstanding
10/15/2026 10:00	Department 09	VPR053770	In the Matter of Mendoza, Paulette	household member is required to complete the DOJ background record check NEED Notice of Hearing (GC-020) to be filed with proof of service indicating Petition for Appointment was served pursuant to Probate Code §1511, by mail on the maternal grandparents and siblings 15 days prior to hearing
10/15/2026 8:30	Department 19	PPR054321	In the Matter of Pena, Rose Marie	Declaration of Due Diligence has not been filed for father Temporary Order and Temporary Letters need to be lodged prior to hearing
10/15/2026 8:30	Department 19	PPR054320	In the Matter of Rosales, Amelia Jade	NEED Notice of Hearing (GC-020) to be filed with proof of service to be in accordance with Prob Codes §2250(e) & 2250(e)(3). MOTHER to be personally served 5 court days prior to hearing Temporary Order and Temporary Letters need to be lodged prior to hearing
10/15/2026 8:30	Department 19	PPR054004	In the Matter of Leon, Ezra Invicto	No issues to address – notice to mother to be discussed at hearing