Tentative Rulings

Civil Tentative Rulings and Probate Examiner Recommendations are available below. All attempts possible are made to have the information on these pages updated by 3:00pm the day prior to hearing in order to allow for any needed continuances or travel if an appearance should be required.

Civil Tentative Rulings: The court does not issue tentative rulings on Writs of Attachment, Writs of Possession, Claims of Exemption, Claims of Right to Possession, Motions to Tax Costs After Trial, Motions for New Trial, or Motions to Continue Trial. Under California Rules of Court, rule 3.1308 and Local Rule 701, any party opposed to the tentative ruling must notify the court and other parties by 4:00 p.m. today of their intention to appear for oral argument. The court's notice must be made by facsimile (fax) to 559-733-6774.

Probate Examiner Recommendations: For further information regarding a Visalia probate matter listed below you may contact the Visalia Probate Document Examiner at 559-730-5000 ext #2342. For further information regarding a SCJC probate matter listed below you may contact the SCJC Probate Document Examiner at 559-730-5000 ext #1430. The Probate Calendar Clerk may be reached at 559-730-5000 Option 4, then Option 6.

Civil Tentative Rulings & Probate Examiner Recommendations

The Tentative Rulings for Thursday, April 24, 2025, are:

Re: Feliciano, Pablo Reyes vs. Moons, John

Case No.: VCU292586

Date: April 24, 2025

Time: 8:30 A.M.

Dept. 1-The Honorable David C. Mathias

Motion: Hearing re: Final Distribution of Settlement

Tentative Ruling: On April 15, 2025, the settlement administrator provided a declaration indicating that, as of January 16, 2025, the settlement fund was distributed in accordance with the settlement agreement and approval by the Court. The administrator indicates that the deadline for aggrieved employees to cash their settlement award check is July 15, 2025, which is 180 days after its issuance. Pursuant to the terms in the settlement agreement, the uncashed funds will be sent to the Visalia Rescue Mission after the check void date.

Therefore, the Court continues this hearing to August 18, 2025; 8:30 am; D1. If the settlement administrator files a supplemental declaration as to the uncashed checks and distribution of any uncashed funds prior to the hearing, no appearance will be required.

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

Re: Scott, Natasha vs. General Motors

Case No.: VCU309749

Date: April 24, 2025

Time: 8:30 A.M.

Dept. 1-The Honorable David C. Mathias

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

Tentative Ruling: To inquire as to the status of resolution of the discovery motions, as indicated at the prior hearing on January 23, 2025; if no resolution has been reached, the parties are directed to meaningfully meet and confer before the hearing of these motions to resolve the discovery disputes identified in the moving and opposition papers for these discovery motions. If unable to resolve, counsel are directed to personally appear for the hearing on these discovery motions. No CourtCall or Zoom appearances will be permitted if the parties are unable to resolve this matter prior to the scheduled hearing.

Re: Conceicao, Maria vs. Sierra Eye Medical Group et al

Case No.: VCU313486

Date: April 24, 2025

Time: 8:30 A.M.

Dept. 1-The Honorable David C. Mathias

Motion: Defendants’ Motion to Dismiss for Failure to File Amended Pleading

Tentative Ruling: To grant the unopposed motion

Facts

On January 23, 2025, the Court sustained Defendants’ demurrer to the complaint with leave to amend as to the first cause of action for medical malpractice and without leave to amend on the second cause of action for negligence. The Court’s ruling ordered the filing of an amended complaint no later than ten (10) days from the date of the hearing. Defendants served notice of the ruling by mail on Plaintiff.

On March 6, 2025, Defendants filed this motion to dismiss for failure to file an amended complaint in accordance with the Court’s ruling on demurrer. Defendants indicate no amended pleading has been served and the Court’s file reflect no amended pleading filed.

Authority and Analysis

California Code of Civil Procedure Section 581(f) provides in pertinent part that:

“The court may dismiss the complaint as to that defendant when: …(2) a demurrer to the complaint is sustained with leave to amend, the plaintiff fails to amend it within the time allowed by the court and either party moves for dismissal…” See also Harding v. Collazo (1986) 177 Cal.App.3d 1044.

Moreover, “Section 581, subdivision (f)(2) ‘... gives the defendant the right to obtain a court order dismissing the action with prejudice once the court sustains a demurrer with leave to amend and the plaintiff has not amended within the time given.’” (Cano v. Glover (2006) 143 Cal.App.4th 326, 330.)

No opposition has been filed.

The Court, therefore, grants the motion and dismisses the action with prejudice.

Re: Barnes, Javod Alante vs. Saputo Cheese USA, Inc.

Case No.: VCU314865

Date: April 24, 2025

Time: 8:30 A.M.

Dept. 1-The Honorable David C. Mathias

Motion: Defendant Saputo’s Application Pro Hac Vice as to (1) Elizabeth A. Odian and (2) Kayla A. McCann

Tentative Ruling: To grant the applications of attorneys (1) Elizabeth A. Odian and (2) Kayla A. McCann of Michael Best & Friedrich LLP to appear as counsel pro hac vice for Defendant Saputo in this action

(1) and (2)

As to both applications, the Court’s file indicates that timely and proper notice was given to all parties affected to attorneys Odian and McCann’s applications to appear pro hac vice for Defendant Saputo.

The Court finds that attorneys Odian and McCann meet the statutory requirements under California Rule of Court 9.40(a) to submit applications to appear pro hac vice before this Court, and that the contents of this applications of attorneys Odian and McCann indicate that they are associated with California counsel Y. Angela Lam of Michael Best & Friedrich LLP, and as such meet the statutory requirements of California Rule of Court 9.40(c) and (d). The Court’s file for this matter further indicates that that the applicable fees that must be paid to the State Bar of California under Rule 9.40(e) to support applications for admission pro hac vice have been tendered to the State Bar.

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

Based on the foregoing, the applications of Odain and McCann to appear as counsel pro hac vice for Defendant Saputo in this action are granted.

Re: Barrera, Estela Avila vs. Barrera, Claudia Elena Avila

Case No.: VCU314941

Date: April 24, 2025

Time: 8:30 A.M.

Dept. 1-The Honorable David C. Mathias

Motion: Defendant’s Motion to Set Aside Default

Tentative Ruling: To deny the motion without prejudice.

Facts

In this partition action, Plaintiff filed a proof of personal service of the summons and complaint on Defendant Claudia Elena Avila Barrera occurred on November 20, 2024 at 2:30 pm at 135 East Walnut Avenue Building S Unit 252 Farmersville CA 93223. Service was made by a Sheriff.

On December 23, 2024, default was entered against Defendant.

No interlocutory default judgment has been entered.

On March 4, 2025, Defendant filed this motion to set aside the entry of default. In support, Defendant states “I…was properly served but because of my lack of knowledge I thought that showing up on the court date was the next step which caused this default…excuse the circumstances that caused the oversight, it was unintentional.”

A proposed, unverified answer is attached to the motion.

The Court notes Plaintiff has lodged a proposed order as to a motion to quash. However, as Plaintiff is in default, no such motion is available.

In opposition, Plaintiff argues the motion to quash is moot and that the proposed answer attached fails to comply with the Rules of Court and Code of Civil Procedure section 431.30(b).

Authority and Analysis

Code of Civil Procedure section 473(b) provides, in relevant part:

“The court may, upon any terms as may be just, relieve a party or his or her legal representative from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief shall be accompanied by a copy of the answer or other pleading proposed to be filed therein, otherwise the application shall not be granted, and shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.”

Here, there is no issue as to the timing of the motion.

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

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

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

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

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

Here, Defendant admits service of the summons and complaint. Defendant, however, provides no factual basis for the failure to file a responsive pleading that would justify relief here. The failure to respond under a mistaken belief as to appearing in court is insufficient under the standard set forth above.

Additionally, no motion to quash lies where the party remains under default.

Therefore, the Court denies the motion.

Re: Andrade, Maria Jesus vs. Khademi, Talaksoon T.

Case No.: VCU317338

Date: April 24, 2025

Time: 8:30 A.M.

Dept. 1-The Honorable David C. Mathias

Motion: Defendant Kaweah’s (1) Demurrer and (2) Motion to Strike

Tentative Ruling:

(1) To sustain the demurrer with leave to amend as to the medical malpractice and fraud causes of action, limited to the issues of accrual and claim presentation, or excuse therefrom; Plaintiffs shall have ten (10) days to file an amended complaint.

To sustain the demurrer without leave to amend as to the second cause of action for negligence, the fourth cause of action for breach of fiduciary duty, the fifth cause of action for detrimental reliance, the sixth cause of action for negligent infliction of emotional distress, the seventh cause of action for loss of enjoyment of life, the ninth cause of action for unjust enrichment and the tenth cause of action for loss of consortium as either duplicative of other causes of action or on the basis, as noted above, are not independent causes of action.

To deny Plaintiffs’ request for leave to amend.

(2) To grant the motion to strike punitive damages and attorneys’ fees without leave to amend.

Facts Common to (1) and (2)

In this first amended complaint, Plaintiffs alleges damages for medical malpractice, negligence, misrepresentation, breach of fiduciary duty, detrimental reliance, negligent infliction of emotional distress, loss of enjoyment of life, failure to supervise, unjust enrichment and loss of consortium as against Defendants Kaweah Delta Health Care District; Kaweah Delta Health Care District, dba Kaweah Health; Kaweah Medical Center; Kaweah Health, Exeter Clinic and Talaksoon Khamedi.

Plaintiff Cheary is alleged to be the significant other and co-resident with Plaintiff Andrade. (FAC ¶2.)

The Kaweah Defendants demurrer to each cause of action to the complaint and seek to strike the requests for punitive damages, attorneys’ fees and expert witness costs.

On March 18, 2020, Plaintiff Andrade came to Kaweah Health, Exeter Clinic, Gynecology Office seeing Dr. Knademi for incontinence. (FAC ¶14.) Plaintiff Andrade had further visits at the Exeter Clinic with Dr. Knademi on April 27, 2020 and on August 14, 2020, an exploratory laparotomy with Burch procedure was performed. (FAC ¶15.)

It is alleged that “Dr. Knademi is a resident physician, an employee, a contractor, or an associate of each of the other Defendants named or to be named herein.” (FAC ¶3.)

Post operative visits were done at the Exeter Clinic with Dr. Knademi from August 18, 2020 to October 6, 2020 where no deficiencies were noted. (FAC ¶16.)

Four months after the surgery, on December 7, 2020, Ms. Andrade returned to the Exeter Clinic and Dr. Knademi for, “C/O R mid-abdomen pain. States [sic] that this has been since the surgery.”…The doctor ordered, “CT abdomen and pelvis” … After that, Ms. Andrade returned on December 14, 2020 for an evaluation…but nothing was done or even addressed about her pelvic pain.” (FAC ¶17.)

On February 22, 2021, Ms. Andrade returned to the Exeter Clinic, where it was noted she had pain that started after the surgery in the groin area. (FAC ¶18.)

On March 2, 2021, Ms. Andrade returned to the Exeter Clinic for lower groin pain and Dr. Khademi referred her to physical therapy, then for back and spine evaluations. (FAC ¶22.)

On August 2, 2021 Ms. Andrade came to the emergency room at Kaweah: noting bleeding an associated lower abdominal pain. (FAC ¶24.) . Andrade left the emergency room after examinations, CT scans, and X-Rays, with pain meds, and instructions without resolution of the pain. (FAC ¶25.)

On August 18, 2021, two weeks after the emergency room visit, Ms. Andrade returned to the Exeter Clinic and Dr. Khademi with complaints of pubic and injunial pain. (FAC ¶26.)

On August 25, 2021, Ms. Andrade returned to the Exeter clinic for “Groin and suprapubic area pain” and Dr. Khademi noted the pain may have come from the Burch procedure and that the sutures may need to be reopened. (FAC ¶27.)

On January 12, 2022 Ms. Andrade returned to the Exeter Clinic with, “pelvic/back pain, pain level-9,” but neither the pelvic pain nor the Burch suture issue were addressed. (FAC ¶30.)

On February 8, 2022 Ms. Andrade went for Spine Thoracic exams with “worsening groin pain.” (FAC ¶31.)

On March 15, 2023 after months of unresolved pain, Ms. Andrade returned to the Exeter Clinic for; “Chronic groin pain (R10.30: Lower abdominal pain, unspecified) Uncontrolled” (FAC ¶35.) However, no issues were found and no resolution of the pain occurred at that time. (FAC ¶36.)

Plaintiff alleges that “Many times Ms, Andrade asked about the surgery and was told it was done properly and that her pain was most likely, ‘all in her head’. She was never told of the suture issue and the providers consistently concealed the true issue, keeping her ignorant of her condition, sending her to useless referrals after useless referrals to keep the billing process going but never to ‘reevaluate’, and never doing anything about the known suture issue.” (FAC ¶38.)

On February 12, 2024, the sutures were removed and the pain subsided. (FAC ¶¶41, 42.)

As to the statute of limitations under Code of Civil Procedure section 340.5, Plaintiff alleges:

“Ms. Andrade made many complaints of lower abdominal and groin pain that she said started after Dr. Khademi’s surgery in 2020. Defendants gave her pain medication, physical therapy, proposed back surgery, urology referrals, and other referrals to keep their billing process going. When Ms. Andrade asked if the pain came from something with the Burch procedures, the providers gave her misleading and wrong information saying that was not the cause. She was deceived.” (FAC ¶46.)

Further, that “…the injury was the sutures left behind by Dr. Knademi that were finally removed at Stanford where she made a full recovery. Discovery of the injury and its negligent cause came when the sutures were found and removed. Given the providers’ inept medical services by never ‘reevaluating’ the patient, by never reviewing the medical records to see the notes showing the cause, and by never taking the necessary steps to remedy the injury, the injury was not discovered “and through reasonable diligence could not have been discovered until the procedures at Stanford in February, 2024 when the injury was discovered, thus falling well within the statutory one year time frame.” (FAC ¶48.)

Finally, that “…the providers and those treating Ms. Andrade uniformly concealed the cause of her pain giving her false information. Each time Ms. Andrade asked, she was told that the surgery was not the cause of her continuing pain sending her to referral after referral. Ms. Andrade trusted and believed the providers and it was reasonable to do so based on their advanced knowledge and qualifications as medical professionals. By their acts, the providers concealed the issue such that Ms. Andrade never knew nor had reason to know the injury thus tolling the statute until the offending sutures were removed in February, 2024.”

Plaintiff Andrade alleges that she “…first complained to the healthcare providers regarding the substandard medical services she received and received Kaweah’s response dated April 30, 2024.” (FAC ¶12.) A letter was against sent July 20, 2024 and a subsequent letter was sent August 13, 2024, referencing the Code of Civil Procedure section 364 notice requirements. (FAC ¶12.)

Plaintiff Andrade further alleges that the July 20, 2024, August 13, 2024 and October 22, 2024 letters constitute substantial compliance with the Government Claims Act by providing the public entity with adequate notice of the nature of Plaintiffs’ claims and sufficient information to investigate the merits of the claim(s). (FAC ¶13.) Plaintiff alleges “Plaintiff's first inquiry fell within the 6 month period after her discovery of the injury in February, 2024 when the sutures were removed and the facility’s acknowledgment of her issues in its April 30, 2024 correspondence.” (FAC ¶13.) Further that “The follow on letters likewise put Kaweah on notice of the issues, inviting a dialog, including Ms. Andrade's intention to seek judicial remedy if there is nothing from Kaweah. Kaweah’s non response serves as their effective denial of the claim. It is submitted that the presentation of Plaintiff's claims to the public entity in this manner constitutes substantial compliance with the Government Claims Act.” (FAC ¶13.)

First, the Kaweah Defendants demurrer to the entirety of the operative amended complaint for failure to plead compliance with the Government Claims Act, or excuse therefrom.

The Kaweah Defendants also demurrer to each cause of action. As to medical malpractice and negligence, Defendants argue this matter was filed beyond the statute of limitations. As to detrimental reliance, negligent infliction of emotional distress, loss of enjoyment and unjust enrichment, Defendants argue these are not causes of action under California law. As to misrepresentation and concealment, Defendants argue insufficient facts to allege a cause of action. As to breach of fiduciary duty, Defendants argue no fiduciary relationship exists or has been pled. As to loss of consortium, Defendants argue that Plaintiff Cheary has not been alleged to be married to Plaintiff Andrade.

The Court notes here that Defendants do not address the cause of action for “failure to supervise” in the demurrer

The Kaweah Defendants further seek to strike the references to punitive damages, attorneys’ fees and expert witness costs.

In opposition, Plaintiffs argue the letters were sufficient claims presented to Kaweah and that the statute of limitations as to medical malpractice has been satisfied. Plaintiffs do not submit an argument as to the other issues raised on demurrer or the motion to strike, but instead seek leave to amend and have attached a proposed second amended complaint.

(1) Authority and Analysis - 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)

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 Claims Act Presentation

California Government Code section 911.2 requires that such a claim be presented to the relevant public entity not more than six months after the accrual of the cause of action. Presentation of such a claim is a condition precedent to filing a suit against the public entity. (Cal. Govt. Code, § 945.4.) If the injured party fails to file a timely claim, “a written application may be made to the public entity for leave to present such claim.” (Cal. Govt. Code, § 911.4, subd. (a).) The deadline to apply to for leave to present a late claim is a reasonable time not to exceed one year. (Cal. Govt. Code, § 911.4, subd. (b).)

Additionally, compliance with the presentation requirement must be stated in the complaint. (Dilts v. Cantua Elementary School Dist. (1987) 189 Cal.App.3d 27, 31 [holding “In those circumstances in which a claim must be presented, the plaintiff must allege compliance or circumstances excusing compliance, or the complaint is subject to general demurrer.”].)

Here, Kaweah argues that the July 20, 2024 letter was insufficient to constitute a government claim.

Whether this letter constitutes either a claim or late claim application submitted within the appropriate time periods noted above turns on the accrual of the claims, as analyzed below.

In other words, prior to analyzing the content of the July 20, 2024 letter, and the subsequent letters, the Court must determine whether the causes of action in the complaint accrued either six months or one year prior thereto.

Medical Malpractice – Statute of Limitations

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.]”

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.) Further, "Under section 340.5, the three-year period is tolled '"(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." . . .' [Citation.]" (Id. at 278.) "[C]oncealment is an exception to the three-year, not one-year, limitations period in section 340.5." (Dolan v. Borelli (1993) 13 Cal.App.4th 816, 824.) "[T]he fraudulent concealment tolling provision '"does not come into play, whatever the lengths to which a defendant has gone to conceal his wrongs, if a plaintiff is on notice of a potential claim." [Citation.]' [Citation.]" (Barber v. Superior Court (1991) 234 Cal.App.3d 1076, 1083.)

Here, the Kaweah Defendants argue Andrade either discovered, or should have discovered, her injury in February of 2021, when she first suspected her continued pain in her abdomen had been caused by the surgery, based on the following:

“Four months after the surgery, on December 7, 2020, Ms. Andrade returned to the Exeter Clinic and Dr. Khademi for, “C/0 R mid abdomen pain. States [sic] that this has been since the surgery.” (Plaintiffs’ First Amended Complaint at page 6, paragraph 17, lines 7 -9.)
On February 22, 2021 Ms. Andrade returned to the Exeter Clinic where Dr. Khademi writes; Patient [sic] is here for Pain in her Groin area... She state [sic] it started after the surgery on her Bilateral groin area, after she had surgery. She point to exactly Groin Area. Pelvic sono was done .... (Plaintiffs’ First Amended Complaint, page 6, paragraph 18, lines 13-15.)
She asked if the pain came from the surgery (Plaintiffs’ First Amended Complaint, page 6, paragraph 20, line 20.)
On May 4, 2021, Ms. Andrade asked several times if the pain came from the surgery.(Plaintiffs’ First Amended Complaint, page 7, paragraph 23, line 6.)”

Based on this, Defendants argue that she had until February 2022 to bring this action under the one year statute and that none of the tolling provisions stated within section 340.5 apply.

In opposition, Plaintiffs state “The complaint is not based on Dr. Khademi’s August 14, 2020 surgery. It is based on the physician's recognition of the cause of Ms. Andrade's pain a year later.” (Opposition ¶18.) As to the one year statute of limitations, Plaintiffs argue further that:

“For Ms. Andrade, she knew of the pain but did not know the cause (negligent or otherwise) until the sutures were removed. The complaint shows how Ms, Andrade returned to the clinics over and over taking all reasonable efforts to discover the cause of her pain, but she was never informed. That did not happen until the Stanford procedure. For the one year part, the date of the discovery was February 12, 2024 and the complaint was filed January 24, 2025.”

The applicable limitations period for a particular cause of action "runs from the moment a claim accrues." (Arey v. Cannon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1191.) "A cause of action accrues when it is complete with all of its elements—those elements being wrongdoing, harm, and causation. This is the 'last element' accrual rule; ordinarily, the statute of limitations runs from 'the occurrence of the last element essential to the cause of action.'" (Id.)

"This [discovery] rule sets forth two alternate tests for triggering the [one-year] limitations period: (1) a subjective test requiring actual suspicion by the plaintiff that the injury was caused by wrongdoing; and (2) an objective test requiring a showing that a reasonable person would have suspected the injury was caused by wrongdoing." (Kitzig v. Nordquist (2000) 81 Cal.App.4th 1384, 1391.) “The first to occur under these two tests begins the limitations period." (Id. at 1391.)

The one year statute of limitations, which cannot be tolled by fraud, would appear to have expired, in the Court’s opinion, at the latest May 4, 2022, after Plaintiff asked if the pain came from the surgery: “Andrade asked several times if the pain came from the surgery. She said the pain started after the surgery, but was told the surgery was not the issue.” (FAC ¶23.) That she was told surgery was not the issue appears to be irrelevant to the one-year statute of limitations periods. Plaintiff had actual suspicion that the pain was caused by the surgery, thus starting the statutory period to file the claim under section 340.5.

Here, Plaintiffs admit “recognition of the cause of Ms. Andrade's pain a year later” after the surgery is the basis for the complaint. Plaintiff Andrade knew of the pain and at least had the suspicion of wrongdoing when she asked if the pain came from the surgery. That the exact cause as to the removal of the sutures was unknown at the time does not affect the accrual period:

“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.” (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1111.)

Therefore, the Court sustains the demurrer to this cause of action on the basis of the statute of limitations.

Misrepresentation and Concealment – Statute of Limitations

“ ‘Like section 340.5, each MICRA provision limits its applicability to actions “based upon” the “ ‘professional negligence’ ” of a “ ‘health care provider[].’ ” (Unruh-Haxton v. Regents of University of California (2008) 162 Cal.App.4th 343, 354)” (Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th 336, 346.) “Despite the apparent clarity of this definition, applying it may pose difficulties because additional claims often arise out of the same facts that support a professional negligence claim, including claims for battery, products liability, premise liability, fraud, breach of contract, and intentional or negligent infliction of emotional distress.” (Id.)” Indeed, “[b]ecause acts supporting a negligence cause of action might also support a cause of action for an intentional tort, [the Supreme Court has] not limited application of MICRA provisions to causes of action that are based solely on a ‘negligent act or omission’ as provided in [MICRA's definition of professional negligence].” (Central Pathology Service Medical Clinic, Inc. v. Superior Court (1992) 3 Cal.4th 181, 192)” (Id.)

The Larson court then examined various factual scenarios from other cases as to determining whether intentional tort claims are merely alternative theories based on the same set of facts as the professional negligence claim. (Id. at 348-350.) As to the facts present in Larson, the court noted

“Although Larson labels his claims as intentional torts for battery and intentional infliction of emotional distress, the operative complaint's factual allegations, when read in conjunction with Larson's complaints in the Earlier Action, reveal Larson's claims are based on professional negligence within the meaning of section 340.5. Indeed, Larson alleges Shuman was the anesthesiologist for his surgery and injured Larson by forcefully grabbing and twisting his arm while conducting a preoperative checkup, and by prying open Larson's mouth and violently punching, lifting, and pushing Larson's face as he put on the mask to administer anesthesia. These allegations challenge the manner in which Shuman rendered the professional health care services he was hired to perform; they do not allege intentional torts committed for an ulterior purpose.” (Id. at 351.)

Here, the Court finds the claims of concealment and misrepresentation are sufficiently based on professional negligence within section 340.5 as an alternative theory. The court focuses on the nature or gravamen of the claims, and not the label or form of action the plaintiff selects. The Larson court also recognized

“…the focus of Larson's claims concern the manner in which Shuman rendered his professional services as an anesthesiologist, not some collateral course of conduct pursued for Shuman's own gain or gratification. Larson does not allege Shuman acted with an intent to do anything other than administer the anesthesia for the surgery or that Shuman had any reason to intentionally injure Larson ... Larson does not allege Shuman provided any medical treatment to which Larson did not consent or that Shuman deliberately deviated from the consent Larson provided for his surgery. Larson's claims are analogous to the claims the Supreme Court found to be based on professional negligence in Preferred Risk and Barris because they are necessarily based on Shuman's professional health care services." (Id. at 352.)

As such, the Court, for the same reason as above, sustains the demurrer to the cause of action for fraud.

Remaining Causes of Action

The Court further finds the remaining causes of action are likewise sufficiently based on processional negligence to apply the section 340.5 statute of limitations. Additionally, the Court finds these causes of action are, as argued by Defendants, subject to demurrer for alternative reasons.

Negligence and Negligent Infliction of Emotional Distress

"'Professional negligence' means a negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death, provided that such services are within the scope of services for which the provider is licensed and which are not within any restriction imposed by the licensing agency or licensed hospital." (Code Civ. Proc. § 340.5(2).)

The determination of whether an act or omission is considered ordinary negligence or professional negligence is "not whether the situation calls for a high or low level of skill, or whether a high or low level of skill was actually employed, but rather the test is whether the negligent act occurred in the rendering of services for which the health care provider is licensed." (Murillo v. Good Samaritan Hospital (1979) 99 Cal.App.3d 50, 57; see also Flores v. Presbyterian Intercommunity Hospital (2016) 63 Cal.4th 75, 86.)

Here, the amended complaint sounds in professional negligence.

Because Plaintiff pleads a separate cause of action for medical malpractice, the second cause of action for negligence is duplicative and "merely duplicative pleading which adds nothing to the complaint by way of fact or theory" is not sufficient to survive demurrer. (Award Metals, Inc. v. Superior Court (1991) 228 Cal.App.3d 1128, 1135.)

Additionally, as to negligent infliction of emotional distress, no such independent tort exists. (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 984.)

Therefore, the Court sustains the demurrer to the second cause of action for negligence and sixth cause of action for negligent infliction of emotional distress.

Breach of Fiduciary Duty

"'The elements of a cause of action for breach of fiduciary duty are: (1) existence of a fiduciary duty; (2) breach of the fiduciary duty; and (3) damage proximately caused by the breach.'" (Williamson v. Brooks (2017) 7 Cal.App.5th 1294, 1300.)

The California Supreme Court has found that a hospital-patient relationship is not fiduciary in nature. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 133.)

Therefore, the Court sustains the demurrer to the fourth cause of action for breach of fiduciary duty.

Loss of Enjoyment of Life and Unjust Enrichment

The Court notes that “[i]n California, a pain and suffering award may include compensation for the plaintiff's loss of enjoyment of life. Loss of enjoyment of life, however, is only one component of a general damage award for pain and suffering. It is not calculated as a separate award.” (Loth v. Truck-A-Way Corp. (1998) 60 Cal.App.4th 757, 764.)

From this, the Court concludes loss of enjoyment of life is a remedy, or a portion of a remedy, and not a standalone cause of action.

Additionally, “Unjust enrichment is not a cause of action, however, or even a remedy, but rather ‘ “ ‘a general principle, underlying various legal doctrines and remedies” ’ … . [Citation.] It is synonymous with restitution. [Citation.]’ (Melchior v. New Line Productions, Inc. (2003) 106 Cal.App.4th 779, 793”) (McBride v. Boughton (2004) 123 Cal.App.4th 379, 387.)

Therefore, the Court sustains the demurrer as to the seventh and ninth causes of action.

Loss of Consortium

The amended complaint alleges that Plaintiff Cheary is the “significant other” and “co-resident” of Plaintiff Andrade and asserts a cause of action for loss of consortium.

However, “a cause of action for loss of consortium cannot be extended to unmarried cohabiting couples.” (Matuz v. Gerardin Corp. (1989) 207 Cal.App.3d 203, 207.)

Therefore, the Court sustains the demurer as to the tenth cause of action on this basis.

Application to Tort Claim Presentation

The Court has found that all claims are related to the medical malpractice claim and its statute of limitations under section 340.5. Further, the Court has found that accrual of the medical malpractice claim occurred, at the latest May 4, 2022. Therefore, the July 2024 letter is beyond both the six month claim presentation requirements.

As discussed above, if a plaintiff fails to present a government claim within the 6-month period, he or she may apply to the public entity for permission to file a late claim. (Gov. Code §911.4.) Such an application must be presented within a reasonable time, and not later than one year after the cause of action’s accrual. (Gov. Code §911.4(b).) “Filing a late-claim application within one year after the accrual of a cause of action is a jurisdictional prerequisite to a claim-relief petition. [Citation.] When the underlying application to file a late claim is filed more than one year after the accrual of the cause of action, the court is without jurisdiction to grant relief under … section 946.6.” (Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1779.)

Here, the July 2024 letter cannot be considered an application to present a claim late because it was not presented within one year of the accrual of the cause of action for medical malpractice (and others sufficiently based on professional negligence.) The deadline to apply for leave to present a late claim is a reasonable time not to exceed one year. (Cal. Govt. Code, § 911.4, subd. (b).)

Timely claim presentation is a condition precedent to maintaining an action against the public entity and is, therefore, an element of a cause of action which the plaintiff must prove. (DiCampli-Mintz v. County of Santa Clara (2012) 55 Cal.4th 983, 990.) Failure to timely present a claim to the agency bars the plaintiff's lawsuit against the public entity. (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 738) and failure to allege facts demonstrating or excusing compliance with the claim-presentation requirement subjects a complaint to demurrer for failure to state a cause of action (State of California v. Superior Court (Bodde) (2004) 32 Cal.4th 1234, 1237, 1243.)

Here, based on the allegations of the complaint as to accrual of the medical malpractice cause of action, the Court does not find timely compliance with either the presentation requirement or late claim application requirement based on the July 2024 letter and following letters. The Court, therefore, sustains the demurrer on this basis as to medical malpractice and fraud.

Leave to Amend

A demurrer cannot be sustained without leave to amend where it appears that the facts alleged establish a cause of action under any possible legal theory or it is reasonably possible that the plaintiff can amend the complaint to allege any cause of action. (Canton Poultry & Deli, Inc v. Stockwell, Harris, Widom, and Woolverton (2003) 109 Cal.App.4^th 1219, 1226.) Plaintiff shall have ten (10) days to file an amended complaint.

The Court notes “In those circumstances in which a claim must be presented, the plaintiff must allege compliance or circumstances excusing compliance, or the complaint is subject to general demurrer.” (Dilts v. Cantua Elementary School Dist. (1987) 189 Cal.App.3d 27, 31.)

Therefore, the Court will permit leave to amend as to the medical malpractice and fraud causes of action, as to the issues of accrual and claim presentation, or excuse therefrom. Plaintiffs shall have ten (10) days to file an amended complaint.

However, the Court sustains the demurrer without leave to amend as to the second cause of action for negligence, the fourth cause of action for breach of fiduciary duty, the fifth cause of action for detrimental reliance, the sixth cause of action for negligent infliction of emotional distress, the seventh cause of action for loss of enjoyment of life, the ninth cause of action for unjust enrichment and the tenth cause of action for loss of consortium as either duplicative of other causes of action or on the basis, as noted above, are not independent causes of action.

Motion for Leave to Amend

As part of the opposition, Plaintiffs seek leave to amend to file a second amended complaint without limitation, attaching a declaration of counsel and proposed amended complaint.

To start, the Court denies this request, as it conflicts with the Court’s ruling above limiting the scope of leave to amend. Second, however, the motion or request does not satisfy California Rule of Court, rule 3.1324.

Rule 3.1324 regulates the content of the motion and supporting declaration as follows:

“(a) Contents of motion

A motion to amend a pleading before trial must:

(1) Include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments;

(2) State what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph, and line number, the deleted allegations are located; and

(3) State what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located.

(b) Supporting declaration

A separate declaration must accompany the motion and must specify:

(1) The effect of the amendment;

(2) Why the amendment is necessary and proper;

(3) When the facts giving rise to the amended allegations were discovered; and

(4) The reasons why the request for amendment was not made earlier.”

Neither subsection has been satisfied by the information presented on the opposition. It is within the court’s discretion to require compliance with Rule 3.1324 before granting leave to amend. (Hataishi v. First American Home Buyers Protection Corp. (2014) 223 Cal.App.4th 1454, 1469.) Further, the Court would require a separate motion outside of the opposition, which complies with the Rules of Court.

Therefore, any request by Plaintiffs to amend the complaint via their request for leave to amend is denied and the Court reiterates its limited scope of leave to amend, as noted above.

(2) Authority and Analysis - Motion to Strike

Any party, within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole or any part thereof. (Code Civ. Proc., § 435(b)(1).) The court may, upon a motion or at any time in its discretion and upon terms it deems proper: (1) strike out any irrelevant, false, or improper matter inserted in any pleading; or (2) strike out all or any part of any pleading not drawn or filed in conformity with the laws of California, a court rule, or an order of the court. (Code Civ. Proc., § 436; Stafford v. Shultz (1954) 42 Cal.2d 767, 782.)

Public Entity Punitive Damages

The operative amended complaint alleges Defendant Kaweah Delta Health Care District is a California Special District, which constitutes a public entity under Government Code section 811.2. (FAC ¶4.) Additionally, it is alleged that Defendants Kaweah Delta Medical Center and Kaweah Health, Exeter Clinic are employed, contracted, or associated with those other Defendants and providers named or to be named. (FAC ¶¶5, 6.)

Government Code section 818 states: "[n]otwithstanding any other provision of law, a public entity is not liable for damages awarded under Section 3294 of the Civil Code or other damages imposed primarily for the sake of example and by way of punishing defendant."

Accordingly, Plaintiff's claim for punitive damages against Kaweah Defendants is barred under section 818 and Court will grant the motion to strike the references to punitive damages as to the Kaweah Defendants without leave to amend.

Attorneys’ Fees

The FAC alleges “Further, the providers’ lack of disclosure and concealment was fraud forming a basis for attorney fees and costs” under the third cause of action for fraud and in the prayer.

In California, a party cannot recover attorneys' fees unless a statute specifically provides for the recovery of attorneys' fees, or the parties agree to an award of attorneys' fees. (Code Civ. Proc., §§ 1021, 1033.5, subd. (a)(10).) The operative amended complaint identifies no statute or agreement, or any facts, showing entitlement to attorneys' fees from the Kaweah Defendants.

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

Re: Alba, Amaranta vs. NewRez, LLC

Case No.: VCU314002

Date: April 24, 2025

Time: 8:30 A.M.

Dept. 1-The Honorable David C. Mathias

Motion: Demurrer to Amended Complaint

Tentative Ruling: To overrule the demurrer; to order Defendant NewRez to answer no late than ten (10) days from the date of this hearing. Case Management Conference is continued to May 23, 2025; 8:30 am; D1.

Facts

In this operative amended complaint for fraud and promissory estoppel, Plaintiff alleges ownership and a superior claim to the real property located at 229 S. J ST., Dinuba, CA 93618 (the "Property"). (FAC ¶6.) Plaintiff sues Defendant Deutsche Bank, MTC Financial and Newrez.

Plaintiff fell behind on her mortgage and requested a loan modification from the Defendant Newrez, that was denied. (FAC ¶11.) “On April 28, 2024, in a conversation between a representative of Defendant Newrez, who identified himself as “Dave,” suggested that the Plaintiff pursue relief through the California Mortgage Relief Program (“CMRP”). During that conversation, the representative stated that if she would apply for the program, her sale would be delayed.” (FAC ¶12.)

The amended complaint further alleges “Defendants scheduled a foreclosure sale for July 5, 2024” and “The Plaintiff completed an application for the program on May 3, 2024. The Plaintiff advised Defendant’s representative, named Dianna, that she had applied for the program on the same day.” (FAC ¶¶13, 14.)

“At that time, the Plaintiff and Defendant arranged for the foreclosure sale scheduled for July 5, 2024, to be delayed pending the approval of the grant from CMRP.” (FAC ¶15.) “The Defendants assured the Plaintiff that the sale would be delayed.” (FAC ¶16.)

The property was sold July 5, 2024. (FAC ¶17.)

The amended complaint alleges further “However, the Defendant advised the Plaintiff that if she sent the funds to the Defendant, they would reinstate the account” and “Plaintiff was able to complete the process and receive the funds to reinstate the loan.” (FAC ¶¶18, 19.) Thereafter, Plaintiff sent the funds “to Defendant via wire on July 8, 2024” and “The Defendant accepted the funds…” (FAC ¶¶20, 21.)

However, “…Defendants decided to complete the sale and recorded the Trustee’s Deed Upon Sale” and refused to allow Plaintiff to recover the Property. (FAC ¶¶22, 23.)

As to fraud, alleged against Defendants Newrez and MTC, Plaintiff states Defendants, through their representative “Dave” advised the Plaintiff that she could apply for the CMRP and “The Defendant indicated that if she qualified for the CMRP, she could reinstate the loan from the Defendants and not lose the Property.” (FAC ¶¶26, 27.)

Plaintiff alleges Defendants knew that the statement was false in that they would purposefully sell the Property at a foreclosure sale before the Plaintiff could qualify the CMRP, that Plaintiff, in reliance thereon, applied for the CMRP, but did not pursue other potential alternatives, such as a short sale or obtaining refinancing. (FAC ¶¶28, 29.)

“Plaintiff point of contact during the process was an representative of the Defendant who identified herself as Ivonne who advised her that the Defendant would change the sale date to allow the Plaintiff to send the funds to the Defendant.” (FAC ¶30.)

The Property was sold at the foreclosure sale at a value substantially less than its market value. (FAC ¶31.)

As to promissory estoppel, alleged against Defendants Newrez and MTC, the amended complaint alleges “on or about April 28, 2024, the Defendant promised the Plaintiff that the Defendant would delay the sale so that the Plaintiff could apply for a grant through the CMRP.” (FAC ¶35.)

Plaintiff relied on this representation instead of pursing other methods to reinstate the loan. (Complaint ¶36.) Plaintiff applied with the CMRP for a grant to reinstate the loan if she paid the reinstatement amount of $27,435.20. (FAC ¶37.) Plaintiff believed the Defendants representations and wired the funds to the Defendants on July 8, 2024. (FAC ¶38.) Defendants rejected the payments and permitted the Property transferred to a third party. (FAC ¶39.) Finally, that “Plaintiff’s reliance on the Defendants’ statements are reasonable and foreseeable in that the Plaintiff advised the Defendants of her plans to reinstate the loan.” (FAC ¶40.)

Defendant Newrez demurs to the complaint for failure to state sufficient facts to constitute a cause of action. Newrez argues the cause of action pled as to fraud lacks sufficient specificity and fails to allege fraud as to a corporate defendant such as Newrez. As to promissory estoppel, Newrez argues the alleged promise is ambiguous and uncertain.

In opposition, Plaintiff argues the operative complaint alleges sufficient specificity requirements for fraud and promissory estoppel, as detailed below.

Authority and Analysis

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)

Fraud

“‘The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or “scienter”); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.’” (Tenet Healthsystem Desert, Inc. v. Blue Cross of California (2016) 245 Cal.App.4th 821, 837.) “ ‘[T]he elements of an action for fraud and deceit based on concealment are: (1) the defendant must have concealed or suppressed a material fact, (2) the defendant must have been under a duty to disclose the fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the fact and would not have acted as he did if he had known of the concealed or suppressed fact, and (5) as a result of the concealment or suppression of the fact, the plaintiff must have sustained damage [citations omitted]’ Thus, the elements of fraud and deceit based on concealment are the same as for intentional fraud, with the additional requirement that the plaintiff allege that the defendant concealed or suppressed a material fact in a situation in which the defendant was under a duty to disclose that material fact.” (Id. at 844.)

Further, “In California, fraud must be pled specifically; general and conclusory allegations do not suffice. [Citations.] ‘Thus “‘the policy of liberal construction of the pleadings … will not ordinarily be invoked to sustain a pleading defective in any material respect.’” [Citation.] [¶] This particularity requirement necessitates pleading facts which “show how, when, where, to whom, and by what means the representations were tendered.”’” [citation omitted] In addition, a plaintiff is held to a higher standard in asserting a fraud claim against a corporate defendant. “In such a case, the plaintiff must ‘allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.’” [citation omitted]” (Id. at 837-838.)

“The specificity requirement serves two purposes. The first is notice to the defendant, to ‘furnish the defendant with certain definite charges which can be intelligently met.’ [Citations.] The pleading of fraud, however, is also the last remaining habitat of the common law notion that a complaint should be sufficiently specific that the court can weed out nonmeritorious actions on the basis of the pleadings. Thus the pleading should be sufficient ‘“to enable the court to determine whether, on the facts pleaded, there is any foundation, prima facie at least, for the charge of fraud.”’” [citation omitted]” (Id. at 838.)

Defendant argues that Plaintiff's allegation that Defendant made an intentional misrepresentation that she could reinstate her loan if she qualified for the Program is not an actionable misrepresentation because the allegations amount to nothing more than a summary of the CMRP, as opposed to a statement containing any falsity.

The Court agrees that the advisement by Dave alleges that she could apply for the CMRP, but not that she qualified for it, is insufficient. (FAC ¶28.)

However, the allegation in Paragraph 12 states, on April 28, 2024, “…the representative stated that if she would apply for the program, her sale would be delayed.” (FAC ¶12.) Plaintiff thereafter pleads she did apply for the program, but the sale was not delayed. (FAC ¶¶14, 15, 16, 17.)

Defendant also argues that actionable misrepresentations must concern past or existing facts, as opposed to future events. “To be actionable, a negligent misrepresentation must ordinarily be as to past or existing material facts. ‘[P]redictions as to future events, or statements as to future action by some third party, are deemed opinions, and not actionable fraud.’” (Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 158.)

Here, the Court does not consider the representation that if Plaintiff applied for the CMRP, the foreclosure sale would be delayed to be a prediction as to future events. Rather, the foreclosure date was set, Plaintiff was advised to apply for the CMRP prior to that date and, advised that upon her application, the foreclosure sale would be delayed.

As to Defendant’s arguments that Plaintiff’s reliance was not reasonable, the Court notes that this “…is not a question properly resolved on demurrer. (See, e.g., Alliance Mortgage Co. v. Rothwell, supra, 10 Cal.4th at p. 1239 [‘ “Except in the rare case where the undisputed facts leave no room for a reasonable difference of opinion, the question of whether a plaintiff's reliance is reasonable is a question of fact.” ’].)” (Charnay v. Cobert (2006) 145 Cal.App.4th 170, 186.)

Here, for demurrer, the Court accepts the allegation that Plaintiff’s application to the CMRP would delay the sale and that Plaintiff, thereafter, applied for the CMRP in reliance on that statement.

Therefore, the Court overrules the demurrer.

Promissory Estoppel

The elements of promissory estoppel are: (1) a promise clear and unambiguous in its terms; (2) reliance by the party to whom the promise is made; (3) the reliance must be both reasonable and foreseeable; and (4) the party asserting estoppel must be injured by his reliance. (Granadino v. Wells Fargo Bank, N.A. (2015) 236 Cal.App.4th 411, 416; see Smith v. City & County of San Francisco (1990) 225 Cal.App.3d 38, 48 [to allege promissory estoppel, pleadings must allege facts demonstrating such reliance on promises, beyond just conclusory allegations of reasonable reliance upon promises].)

In Aceves v. U.S. Bank N.A. (2011) 192 Cal.App.4th 218, 226, the court found sufficient, for promissory estoppel, that “[Lender] agreed to “work with [Plaintiff] on a mortgage reinstatement and loan modification” if she no longer pursued relief in the bankruptcy court. This is a clear and unambiguous promise. It indicates that [Lender] would not foreclose on [Plaintiff’s] home without first engaging in negotiations with her to reinstate and modify the loan on mutually agreeable terms.”

The Aceves court noted:

“To be enforceable, a promise need only be ‘ “definite enough that a court can determine the scope of the duty[,] and the limits of performance must be sufficiently defined to provide a rational basis for the assessment of damages.” ’ … It is only where ‘ “a supposed ‘contract’ does not provide a basis for determining what obligations the parties have agreed to, and hence does not make possible a determination of whether those agreed obligations have been breached, [that] there is no contract.” ’ ” [citations omitted] ‘[T]hat a promise is conditional does not render it unenforceable or ambiguous.’” (Id.)

Here, the Court finds Plaintiff’s statement of a promise sufficient under the law cited above.

The amended complaint alleges “…on or about April 28, 2024, the Defendant promised the Plaintiff that the Defendant would delay the sale so that the Plaintiff could apply for a grant through the CMRP.” (FAC ¶35.) In combination with the allegation that “the representative stated that if she would apply for the program, her sale would be delayed,” the Court finds a sufficient promise the sale would be delayed based solely on application to the CMRP. (FAC ¶12.) The Court contrasts the allegations in paragraphs 12 and 35 to the allegations that if she qualified for the CMRP, she could reinstate the loan. (FAC ¶¶26, 27.)

Plaintiff has pled reasonable reliance by applying for the CMRP and wiring the funds. (FAC ¶¶37, 38.)

Therefore, the Court overrules the demurrer to the second cause of action.

The Court, having overruled the demurrer, orders Defendant to answer the operative amended complaint no later than ten (10) days from the date of the hearing.

Re: Cuevas, Rosa vs. City of Tulare

Case No.: VCU312132

Date: April 24, 2025

Time: 8:30 A.M.

Dept. 1-The Honorable David C. Mathias

Motion: Defendants’ Motion for Summary Judgment

Tentative Ruling: To grant the motion.

Facts

Plaintiff sues Defendants under the Bane Act and for negligence, battery and intentional infliction of emotional distress arising out of the following facts.

On December 9, 2018, at about 7:00 p.m., Plaintiff allowed Quintin Castro to drive her car. (UMF No. 1.) Plaintiff disputes this as incomplete, adding that Plaintiff met Castro two weeks prior, that he asked to give Cameron Ware a ride home, that Plaintiff was unfamiliar with the area and permitted Mr. Castro to drive, placing herself in the passenger seat. (Plaintiff’s Dispute to UMF No. 1.)

Officer Bradley observed Castro run at least one stop sign. (UMF No. 2.) Plaintiff disputes this fact as incomplete, noting that Officer Bradley initially chose not to pull over Castro because “people roll stop signs all the time,” and there was nothing suspicious about the car. (Plaintiff’s Dispute to UMF No. 2.)

Plaintiff adds here that as Officer Bradley continued to follow the vehicle, he observed Mr. Castro pull into a driveway of a residence and that Officer Bradley partially pulled into the driveway behind Mr. Castro to initiate a traffic stop. (Plaintiff’s AUMF No. 24.)

Officer Bradley turned on his patrol car spotlight, observed three occupants, did not observe the occupants do anything in particular or appear to conceal anything, but did observe Castro then drive onto the grass of the residence and across two lawns before returning to the street and fleeing. (Plaintiff’s AUMF Nos. 24, 25.) . Officer Bradley testified that as Mr. Castro began to flee, none of the passengers had engaged in any threatening conduct. (Plaintiff’s AUMF No. 28.) Officer Bradley stated he had no “facts to believe during the incident that Cuevas, in the passenger seat, had committed any offense or crime.” (Plaintiff’s AUMF No. 31.) Plaintiff testified she was scared during the pursuit. (Plaintiff’s AUMF No. 33.)

Defendants Sgt. Andy Garcia, K-9 Officer Ryan Garcia, and Officer Edward Puente, had all been listening to Officer Bradley’s communications, including as to the number of persons in the vehicle and violations alleged, with the dispatcher and joined the pursuit in three separate vehicles. (Plaintiff’s AUMF No. 34, 35.)

Sgt. Garcia was second in line behind Officer Bradley, Officer Puente drove upwards of 90 miles per hour to join the pursuit, Ofc. Garcia, a canine officer with his police dog, “Bane,” passed Officer Puente. Officer Garcia explained he was trying to get closer to the front of the pursuit because “[i]n a pursuit, the K-9 officer usually takes lead.” (Plaintiff’s AUMF Nos. 38, 39, 40.)

The pursuit eventually ended when Castro became stuck in the mud. (UMF No. 4.) Plaintiff disputes this as incomplete, noting Cuevas’s vehicle came to a complete stop on the side of the road when its tires became stuck in the mud, immobilizing the vehicle and ending the pursuit and Officer Bradley’s SUV patrol vehicle, following closely behind Mr. Castro, also got stuck in the mud behind and slightly to the right of the Mercury sedan. (Plaintiff’s Dispute to UMF No. 4.)

Plaintiff notes pursuit continued through downtown Tulare, into residential areas, and eventually into a rural area when Castro swerved into a berm of mud in a wheat field on the right side of the road. (Plaintiff’s AUMF No. 43.)

Plaintiff adds further that Cuevas’s vehicle came to a complete stop on the side of the road when its tires became stuck in the mud, immobilizing the vehicle and Officer Bradley’s SUV patrol vehicle, following closely behind Mr. Castro, also got stuck in the mud behind and slightly to the right of Cuevas’s vehicle. (Plaintiff’s AUMF No. 44.)

Castro revved the engine, spun the tires forward and caused the car to sink deeper into the mud, indicating to Sgt. Garcia that Castro was trying to escape. (Plaintiff’s AUMF No. 45.)

Ms. Cuevas testified that she put her hands up, looked straight and didn’t move. (Plaintiff’s AUMF No. 46.)

Officer Bradley and Sgt. Garcia exited their vehicles to conduct a “high-risk stop,” also known as a “felony stop. (Plaintiff’s AUMF No. 47.)

Sgt. Garcia testified that his plan for this high-risk stop, as usual, was to first issue orders to instruct the driver, then any passengers to exit the vehicle. (Plaintiff’s AUMF No. 54.)

Defendants gave orders for Mr. Castro to stop the car and turn the engine off, , but the sound of the sedan’s engine revving made it difficult to hear. (Plaintiff’s AUMF No. 55.) Both Sgt. Garcia and Officer Garcia testified that they did not believe the driver and any occupants of the sedan could hear their commands over the loud engine noise and Cuevas testified she did not hear any commands. (Plaintiff’s AUMF No. 56.)

All of the officers’ commands were directed to the driver, including “Stop, turn off your vehicle, this is the police.” (AUMF No. 57.)

Sgt. Garcia decided to break the driver’s side window because he did not think the driver of the sedan, Mr. Castro, could hear his commands due to the sound of the engine revving and the windows being rolled up: “So I made the decision at that point that I was going to go out, break the window of the driver’s side, retreat back, and try to get on the public announcement system, to try to start giving commands for this person to turn the vehicle off.” (AUMF No. 58.)

Fearing that Castro may regain traction to endanger other officers and the public, Officer Garcia issued several warnings that the police dog would be sent. (UMF No. 6.) Plaintiff disputes this fact, noting when Sergeant Garcia broke the driver’s side window of the Mercury, “Castro stopped revving the engine.” (Plaintiff’s Dispute to No. 6; AUMF No. 59.)

Further, Officer Bradley recalled no warnings or commands issued by Officer Garcia concerning the use of a police canine: “What I recall is [Sgt. Garcia] going to break the window. The next thing I remember is shots being fired.” (Plaintiff’s Dispute to No. 6) Sgt. Garcia, the supervising officer at the scene, likewise did not recall any commands or warnings given by Officer Garcia, nor did he recall Officer Garcia telling him that he planned to deploy his police dog into the vehicle. (Plaintiff’s Dispute to No. 6.)

In response to Castro’s failure to obey commands, Officer Garcia inserted his K9 partner “Bane” through the broken driver’s window, focused on Castro. (UMF No. 7.) Plaintiff disputes this fact, noting that whether Officer Garcia gave commands concerning his K9 is in dispute, that it took roughly 15-30 seconds for Officer Garcia to reach the vehicle’s broken window with his dog after Sgt. Garcia broke the window and Officer Garcia did not direct his dog to bite Castro; rather, he thrust his dog through the broken window simply with the command “Stellen!” which means “Bite!” (Plaintiff’s Dispute to UMF No. 7; Plaintiff’s AUMF Nos. 61, 62, 69)

Castro immediately retrieved a loaded handgun from the front seat between himself and Plaintiff. (UMF No. 8.) Plaintiff disputes this, adding within seconds of Officer Garcia thrusting his dog through the window and onto Mr. Castro’s lap, (Plaintiff’s Dispute to UMF No. 8; AUMF No. 73.) Plaintiff further disputes this, adding Cuevas never saw the gun and did not know that Mr. Castro had a gun. (Plaintiff’s Dispute to UMF No. 8; AUMF No. 74.)

Plaintiff adds Mr. Castro retrieved a concealed gun and fired shots in the direction of the canine, striking both the dog and Ofc. Garcia in his right wrist and chest. (Plaintiff’s Dispute to UMF No. 8; AUMF No. 73.)

Officers Puente, Bradley and Sgt. Garcia returned fire directly toward the source of hostile gunfire. (UMF No. 10.) Plaintiff disputes this fact, noting Sgt. Garcia, Bradley, and Puente claim that they could not see Mr. Castro when they shot into car, at least two bullets were shot through the rear windshield toward the right passenger side of the vehicle, bullet holes on the rear passenger window, bullets that struck the passenger door on the right side, that each officer took no precautions to protect any passengers, and that the officers underestimated the number of shots taken, noting that Officer Bradley thought he fired 3-4 gunshots but actually fired 9 shots; Officer Puente thought he fired 5-6 gunshots but actually fired 7 shots; and Sergeant Garcia thought he fired 4 gunshots but actually fired 18. (Plaintiff’s Dispute to UMF No. 10; AUMF No. 102.)

Plaintiff notes it is unclear exactly how many shots Mr. Castro fired at that time, but that Sgt. Garcia, Officer Garcia, and Officer Bradley testified that he heard and responded to only two shots from Mr. Castro at that time. (Plaintiff’s AUMF No. 75.) Once Mr. Castro fired the two shots, Defendants Sgt. Garcia, and Officers Bradley and Puente immediately fired 34 rapid gunshots into the vehicle killing Mr. Castro and shooting Ms. Cuevas multiple times, including in her head, her chest, and her left arm. (Plaintiff’s AUMF No. 76.)

Castro managed to crawl across the front seat of the vehicle (i.e. directly across the path of Cuevas) where he fired two more shots out the right side of the vehicle before succumbing to his injuries. (UMF No. 11.) Plaintiff disputes this noting that Bradley observed Quinntin Castro exit the Mercury through the rear passenger door (Plaintiff’s Dispute to UMF No. 11.)

The last two shots fired by Castro struck the windshield and left front headlamp of Officer Bradley’s police vehicle parked to the rear of the suspect vehicle. (UMF No. 12.) Plaintiff disputes this, adding that after the officers stopped shooting, Mr. Castro fired some errant gunshots from outside the rear passenger side of the car before he died at the scene. (Plaintiff’s Dispute to UMF No. 14; AUMF No. 79.)

Plaintiff adds expert testimony that Officer Garcia’s placement of himself first in line in the pursuit violate the City’s official policies and that the continued pursuit of a vehicle suspected only of misdemeanor conduct violated the City’s official policies. (Plaintiff’s AUMF Nos. 34-42.)

Plaintiff further notes expert testimony that the officers failed, in their deadly force response assessment, various fundamentals of firearm safety including “be sure of the target and what is beyond it before firing the firearm,” “be aware that if the projectile misses or completely passes through the target, it could strike an unintended person or object,” “clearly identify the target before firing,” “never fire at a movement, color, sound, or shape unless it can be clearly identified,” and “be aware of all persons around them before they fire a gun to make sure no one is moving into the line of fire.” (AUMF Nos. 98, 99, 103.)

The Court notes that Plaintiff’s expert states “To the extent that the officers perceived that Castro was shooting at officers, a deadly force response directed at Castro would be consistent with generally accepted policies, practices, training, industry standards and the legal mandates trained to officers for application in field operations…” (AUMF No. 98)

Defendant’s Reply to Plaintiff’s Opposition to Separate Statement and Plaintiff’s Separate Statement

The law does not allow a "reply" separate statement by the moving party. (Nazir v. United Airlines Inc. (2009) 178 Cal.App.4th 243, 252, ["There is no provision in the statute for this, i.e., a reply separate statement.]; See also Code Civ. Proc. § 473c(b)(4) [“The reply shall not include any…separate statement submitted with the reply and not presented in the moving papers or opposing papers.”].)

Therefore, the Court has not considered Defendant’s Reply to Plaintiff’s Opposition to Separate Statement and Plaintiff’s Separate Statement.

Defendant’s Evidence on Reply

Presenting new evidence on reply prevents the opposing party from addressing the evidence in question. (See Nazir, supra, 178 Cal.App.4th at 252; San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316.) Further, Code of Civil Procedure section 473c(b)(4) states “The reply shall not include any new evidentiary matter, additional material facts, or separate statement submitted with the reply and not presented in the moving papers or opposing papers.”

Therefore, the Court does not consider the exhibits filed by Defendant on reply.

Objections and Response to Objections

As a starting point, the Court notes that the objections by Plaintiff placed in the separate statement violate California Rule of Court, rule 3.1354(b) and therefore the Court does not consider those objections.

As to Plaintiff’s April 7, 2025 objection, the Court has adjudicated this issue above.

As to Defendant’s April 8, 2025 response to objections, the Court has adjudicated this issue above as well and has not considered it in this ruling.

Authority and Analysis – Motion for Summary Judgment

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

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

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

“The pleadings play a key role in a summary judgment motion. The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues and to frame the outer measure of materiality in a summary judgment proceeding.” (Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493, quotations and citations omitted.) “Accordingly, the burden of a defendant moving for summary judgment only requires that he or she negate plaintiff's theories of liability as alleged in the complaint; that is, a moving party need not refute liability on some theoretical possibility not included in the pleadings.” (Id.)

Bane Act

The Bane Act states, in relevant part:

(b) If a person or persons, whether or not acting under color of law, interferes by threat, intimidation, or coercion, or attempts to interfere by threat, intimidation, or coercion, with the exercise or enjoyment by any individual or individuals of rights secured by the Constitution or laws of the United States, or of the rights secured by the Constitution or laws of this state, the Attorney General, or any district attorney or city attorney may bring a civil action for injunctive and other appropriate equitable relief in the name of the people of the State of California, in order to protect the peaceable exercise or enjoyment of the right or rights secured…

(c) Any individual whose exercise or enjoyment of rights secured by the Constitution or laws of the United States, or of rights secured by the Constitution or laws of this state, has been interfered with, or attempted to be interfered with, as described in subdivision (b), may institute and prosecute in their own name and on their own behalf a civil action for damages, including, but not limited to, damages under Section 52, injunctive relief, and other appropriate equitable relief to protect the peaceable exercise or enjoyment of the right or rights secured, including appropriate equitable and declaratory relief to eliminate a pattern or practice of conduct as described in subdivision (b). (Civ Code § 52.1.)

"A defendant is liable if he or she interfered with or attempted to interfere with the plaintiff's constitutional rights by the requisite threats, intimidation, or coercion." (Shoyoye v. County of Los Angeles (2012) 203 Cal.App.4th 947, 956.)

To demonstrate a violation of the Bane Act, "[a] plaintiff must show (1) intentional interference or attempted interference with a state or federal constitutional or legal right, and (2) the interference or attempted interference was by threats, intimidation or coercion." (Allen v. City of Sacramento (2015) 234 Cal.App.4th 41, 67, as modified on denial of reh'g (Mar. 6, 2015).)

In Cornell v. City & County of San Francisco, the court found "…that the use of excessive force can be enough to satisfy the 'threat, intimidation or coercion' element of Section 52.1." (Cornell v. City & County of San Francisco (2017) 17 Cal.App.5th 766, 799.) However, the Bane Act imposes an additional requirement beyond the finding of a constitutional violation by finding that for the conduct to be "sufficiently egregious to warrant enhanced statutory remedies beyond tort relief," and "the egregiousness required by Section 52.1 is tested whether the circumstances indicate that the arresting officer had a specific intent to violate the arrestee's right to freedom from unreasonable seizure." (Id. at 800-801, citing People v. Lashley (1991) 1 Cal.App.4th 938, 949.) Additionally, however, under Cornell, "[r]eckless disregard to the 'right at issue' is all that was necessary" (Cornell, supra, Cal.App.5th at 804.)

Additionally, the violation of the Bane Act may be based on a violation of the Fourth Amendment where there is “…both an arrest without probable cause and the use of excessive force out of pure spite.” (Bender v. County of Los Angeles (2013) 217 Cal.App.4th 968, 979.) Where there is “…an arrest [that] is unlawful and excessive force is applied in making the arrest, there has been coercion 'independent from the coercion inherent in the wrongful detention itself.'" (Id. at 978.)

"Determining whether the force used to effect a particular seizure is 'reasonable' under the Fourth Amendment requires a careful balancing of the nature and quality of the intrusion on the individual's Fourth Amendment interests against the countervailing governmental interests at stake." (Graham v. Connor (1989) 490 U.S. 386, 396 [internal quotation marks omitted].)

"Because the test of reasonableness under the Fourth Amendment is not capable of precise definition or mechanical application, ... its proper application requires careful attention to the facts and circumstances of each particular case, including [1] the severity of the crime at issue, [2] whether the suspect poses an immediate threat to the safety of the officers or others, and [3] whether he is actively resisting arrest or attempting to evade arrest by flight." (Id. [internal citations and quotation marks omitted.].) "[T]he most important single element of the three specified factors [is] whether the suspect poses an immediate threat to the safety of the officers or others. (Smith v. City of Hemet (9th Cir. 2005) 394 F.3d 689, 702 disapproved of on other grounds by Lemos v. County of Sonoma (9th Cir. 2022) 40 F.4th 1002 [internal citations and quotation marks omitted].)

Here, law enforcement discharged their firearms in response to Castro shooting first, as opposed to merely being armed with the firearm. Plaintiff was, under the facts construed in her favor, was an innocent bystander to this conduct.

However, law enforcement’s actions are reasonable to an innocent bystander if reasonable to the suspect under transferred intent. (Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 527 n.10.)

The Legislature has defined when officers may justifiably use deadly force, including the discharge of a firearm. (Pen. Code, § 835a, subd. (e)(1).) An officer "is justified in using deadly force upon another person only when the officer reasonably believes, based on the totality of the circumstances, that such force is necessary for either of the following reasons: [¶] (A) To defend against an imminent threat of death or serious bodily injury to the officer or to another person. [¶] (B) To apprehend a fleeing person for any felony that threatened or resulted in death or serious bodily injury, if the officer reasonably believes that the person will cause death or serious bodily injury to another unless immediately apprehended. Where feasible, a peace officer shall, prior to the use of force, make reasonable efforts to identify themselves as a peace officer and to warn that deadly force [*19] may be used, unless the officer has objectively reasonable grounds to believe the person is aware of those facts." (Pen. Code, § 835a., subd. (c)(1).)

"A threat of death or serious bodily injury is 'imminent' when, based on the totality of the circumstances, a reasonable officer in the same situation would believe that a person has the present ability, opportunity, and apparent intent to immediately cause death or serious bodily injury to the peace officer or another person. An imminent harm is not merely a fear of future harm, no matter how great the fear and no matter how great the likelihood of the harm, but is one that, from appearances, must be instantly confronted and addressed." (Pen. Code, § 835a, subd. (e)(2).)

In Brown, supra, 171 Cal.App.4th 516, a number of officers discharged their firearms while apprehending a murder suspect at a strip mall. (Id. at 521 & 523.) The plaintiff, an innocent bystander who was struck by a stray bullet, filed a civil action for battery and negligence against the officer who shot and killed the suspect. (Id. at 521, 523 & fn. 5.) The appellate court affirmed the grant of summary judgment. (Id. at 526.)

The Brown court noted that officers do not “owe bystanders a duty different from the duty they owe to a suspect, which is the duty to use reasonable force under the totality of the circumstances.” (Id. at 526, fn. 10.) The court found the use of deadly force against the suspect reasonable as a matter of law. (Id. at 532 & 536.)

Defendants shot in response to gunfire from the vehicle Cuevas was in.

“Unlike private citizens, police officers act under color of law to protect the public interest.” (Lopez v. City of Los Angeles (2011) 196 Cal.App.4th 675, 685) Lopez found: “Here, Pena was shooting directly at officers and hit Sanchez. At least six shots went through the drywall, and Pena continued to shoot after the officers entered the office. The officers were not required to desist in the face of Pena's resistance. [citation omitted]. The use of deadly force in response to Pena's attack was reasonable. [citation omitted].” (Id. at 689.) Additionally, as noted by Defendants, “If officers are justified in firing at a suspect in order to end a severe threat to public safety, the officers need not stop shooting until the threat has ended.” (Plumhoff v. Rickard (2014) 571 U.S. 765, 777.)

The K9 and officer were shot by Castro, he was an active threat until Defendants returned fire.

The Court does not find a dispute to a material fact created by Plaintiff’s experts as to police practices in this scenario. (Reynolds v. County of San Diego (9th Cir. 1996) 84 F 3d 1162, overruled in part on other grounds in
Acri v. Varian Assocs. (9th Cir. 1997) 114 F.3d 999, 1000.)

Reynolds notes:

“…appellants allege that police tactics expert[‘s] testimony creates a genuine issue of material fact regarding the reasonableness of [officer]’s use of deadly force. In his deposition, [expert] stated that [officer] used "reckless" tactics to restrain [plaintiff]. Reiter concluded that [officer] should have called for back-up, talked to [plaintiff] in calm tones, and refrained from approaching [plaintiff] while he had the knife. Plaintiffs argue that [expert]’s testimony creates a genuine issue of material fact regarding whether his conduct was objectively reasonable.

[Expert]’s findings, however, are insufficient to raise a genuine issue of material fact regarding the reasonability of [officer]’s use of force. The fact that an expert disagrees with an officer's actions does not render the officer's actions unreasonable. The inquiry is not "whether another reasonable or more reasonable interpretation of events can be constructed . . . after the fact." Hunter, 502 U.S. at 228. Rather, the issue is whether a reasonable officer could have believed that his conduct was justified. "This is so notwithstanding that reasonable officers could disagree on the issue." Act Up!/ Portland, 988 F.2d at 872.” (Id. at 1170.)

As noted by Defendants, Plaintiff’s own expert recognizes Castro fired six shots striking Officer Garcia, killing Bane and striking Officer Bradley’s patrol vehicle and that Castro moved around in the vehicle, from the driver’s seat to the rear passenger seat. (Plaintiff’s Exhibit N at 29, 49, 54.) In other words, Castro failed to stop, engaged in a pursuit, failed to turn off the engine and obey other commands and then fired at Defendants, who returned fire and Castro fired again after changing positions in the vehicle.

The Court cannot say that, in doing so, Defendants intended to deliberately or spitefully violate Plaintiff’s rights to be free from unreasonable seizure or excessive force under the Fourth Amendment to the United States Constitution and Art. 1, sec. 13 of the California Constitution, or the right to be free from unreasonable arrest or detention or from bodily restraint, harm, or personal insult, as secured by California Civil Code section 43, as alleged in the complaint. Further, the Court cannot say the deadly force used violates the Fourth Amendment with reckless disregard for Plaintiff’s rights under these circumstances.

The Court does not consider the cases cited by Plaintiff in opposition to support Plaintiff’s position here based on factual dissimilarities.

Boyd v. Benton County (9th Cir. 2004) 374 F.3d 773 involved a high risk execution of a search warrant on an apartment where an armed robbery suspect was located and the use of a flash bang device to gain entry to the premises. (Id. at 777.) There, the court held that, when time permits, a violation as to excessive force occurs when law enforcement does not consider alternatives, such as “controlled evacuation” as opposed to the indiscriminate use of a flashbang. (Id. at 779.) No such time was afforded to Defendants in this case, who responded to a pursuit and gunfire with the return of gunfire.

Next, in Nelson v. City of Davis (9th Cir. 2012) 685 F.3d 867, excessive force was found where law enforcement fired nonlethal balls into a crowd of partying students, despite that the plaintiff was attempting to leave and awaiting instructions from officers. (Id. at 872, 880.) While, under the facts construed in Plaintiff’s favor, Plaintiff here was otherwise submitting to orders by the police, Castro was not only disobeying the orders, but firing a gun at Defendants. The Court cannot find Nelson supportive of Plaintiff’s causes of action in this matter as excessive force and reasonableness.

Finally, in Villanueva v. California (9th Cir. 2021) 986 F.3d 1158 involved an officer who shot a slow moving car for which the officer could have stepped away from and holds no value to the facts of this case where Castro fired bullets at Defendants. (Id.at 1171.)

Negligence

To state a negligence cause of action, a plaintiff must plead: (1) a legal duty owed to the plaintiff to use due care; (2) breach of duty; (3) causation; and (4) damage to the plaintiff. (County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 318)

Law enforcement officers have a duty to act reasonably when using deadly force. (Hayes v. County of San Diego (2013) 57 Cal.4th 622, 629.) "The Fourth Amendment's 'reasonableness' standard is not the same as the standard of 'reasonable care' under tort law, and negligent acts do not incur constitutional liability." (Id. at p. 638.) "[S]tate negligence law, which considers the totality of the circumstances surrounding any use of deadly force, is broader than federal Fourth Amendment law, which tends to focus more narrowly on the moment when deadly force is used." (Id. at 639 [internal citations omitted].) Pre-shooting circumstances, including the pre-shooting conduct of an officer, can show that an otherwise reasonable use of deadly force was in fact unreasonable. (Id. at 630.) “Although preshooting conduct is included in the totality of circumstances, we do not want to suggest that a particular preshooting protocol … is always required. Law enforcement personnel have a degree of discretion as to how they choose to address a particular situation. Summary judgment is appropriate when the trial court determines that, viewing the facts most favorably to the plaintiff, no reasonable juror could find negligence.” (Id. at 632.) "The reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight." (Fetters v. County of Los Angeles (2016) 243 Cal.App.4th 825, 838, , internal citation marks omitted, quoting Graham, 490 U.S. 386 at 396.)

The Court likens this matter to Koussaya v. City of Stockton (2020) 54 Cal.App.5th 909. There, a woman alleged police were liable for injuries she sustained while being held hostage by bank robbers. (Id. at 915.) The bank robbers then walked the hostages through the bank parking lot, ignored the commands from law enforcement who aimed his weapon at them and ordered them to stop, and fled with the hostages. (Id.) One hostage was shot by and pushed out of the vehicle and thereafter another robber began firing a “barrage of bullets” from an assault rifle at the pursuing police car. (Id. at 916.) A high speed chase ensued with multiple exchanges of continued gunfire, whereafter the plaintiff jumped out of the moving vehicle. (Id.)

The Koussaya plaintiff sued the city and the officers who fired at the vehicle for assault and battery, intentional infliction of emotional distress and negligence under the theory that theory the officers' use of deadly force against the robbers was unreasonable and had caused her injuries. (Id. at 919.) The court found the officers' use of deadly force against the robbery suspects was reasonable as a matter of law. (Id. at 936.)

Similarly, as noted above, Cuevas was injured where law enforcement returned gunfire coming from the vehicle Cuevas was a passenger in and one that had just been involved in a pursuit. California Vehicle Code section 2800.2, which criminalizes driving in wanton or willful disregard for public safety while fleeing an officer, can be charged as a misdemeanor or felony. Even if considered a “hostage” and unarmed, the Court cannot evaluate reasonableness with the “20/20 vision of hindsight.”

While Plaintiff raises issues as to the preshooting conduct of deciding to pursue the vehicle, deploy the number of officers, continued he pursuit, and deploy a police dog by Defendants, the Court notes that “…where the preshooting conduct did not cause the plaintiff any injury independent of the injury resulting from the shooting, the reasonableness of the officers' preshooting conduct should not be considered in isolation. Rather, it should be considered in relation to the question whether the officers' ultimate use of deadly force was reasonable.” (Hayes v. County of San Diego (2013) 57 Cal.4th 622, 632.)

In Golick v. California (2022) 82 Cal.App. 5th 1127, a mentally troubled veteran killed three hostages and then himself after a shootout with police. (Id. at 1133.) The Court does not find application of Golick to the facts here, where Plaintiff was injured by Defendants as opposed to by a third party.

Here, the Court does not find the use of deadly force here unreasonable or excessive under the standards and cases set forth herein.

Battery and Intentional Infliction of Emotional Distress

“Although the causes of action asserted against the officer defendants (assault, battery, IIED, and negligence) have distinct elements, we need not address each cause of action individually. This is because the underlying basis of the officers' alleged liability, whether for intentional tort or negligence, is the assertion that these officers unreasonably used deadly force in shooting at the Explorer with Koussaya in the vehicle, causing her to jump out of the Explorer and sustain serious injuries. (See, e.g., Brown, supra, 171 Cal.App.4th at pp. 527, 534 [state law battery claim against a peace officer is a counterpart to a federal claim of excessive use of force and requires proof that the officer's use of force was unreasonable; where use of force was reasonable, no liability for either battery or negligence as a matter of law].)” (Koussaya, supra, 54 Cal.App.5th at 909.)

Therefore, the Court, for the same reason as above, finds no cognizable claim on summary judgment for battery or intentional infliction of emotional distress.

The Court, therefore, grants summary judgment in favor of Defendants.

Re: Bridgecrest Credit Company, LLC vs. Sanchez, Myra Garcia

Case No.: VCU308296

Date: April 24, 2025

Time: 8:30 A.M.

Dept. 1-The Honorable David C. Mathias

Motion: Application for Prejudgment Writ of Possession

Tentative Ruling: To deny the application.

Facts

In this matter, Plaintiff sued defendants for recovery of a vehicle. On May 1, 2024, Plaintiff filed proofs of service as to Defendants. On August 9, 2024, default was entered as to the Defendants. On August 20, 2024, a request for default was entered as to possession only.

However, no default judgment appears entered, as the August 20, 2024 judgment was not entered as requested on September 23, 2024 because “Insufficient information provided as to why entitled to possession absent writ or repo. Further declaration and/or P's & A's may be filed, or prove-up hearing set” pursuant to the notice of rejection.

On March 6, 2025, Plaintiff filed this application for writ of possession and hearing.

The Court notes no proof of service as to the application and supporting documents.

Authority and Analysis

“Upon the filing of the complaint or at any time thereafter, the plaintiff may apply pursuant to this chapter for a writ of possession by filing a written application for the writ with the court in which the action is brought.” (Code Civ. Proc. § 512.010(a).)

Before the hearing on the Writ of Possession, the Defendant must be served with (1) a copy of the summons and complaint; (2) a Notice of Application and Hearing; and (3) a copy of the application and any affidavit in support thereof. (Code Civ. Proc. § 512.030(a).) Additionally, subsection (b) states “(b) If the defendant has not appeared in the action, and a writ, notice, order, or other paper is required to be personally served on the defendant under this title, service shall be made in the same manner as a summons is served under Chapter 4 (commencing with Section 413.10) of Title 5.” (Code Civ. Proc. § 512.030(b).)

Here, Defendants have not appeared in this action and are in default. Therefore, the Court lacks a proof of service in the same manner as the summons of the application and supporting documents.

Additionally, however, the Court notes that the Defendants have been served and default has been entered.

The Court’s preference is to enter default judgment and therefore enable Plaintiff to pursue the relief sought here via post judgment procedures.

The Court’s view is that issuing a writ of possession while a party is defaulted is an intermediary step rendered unnecessary by the entry of default.

The Court’s jurisdiction, upon entry of default, is limited to entry of default judgment upon a sufficient showing or consider a motion for relief from the default. (Weil & Brown, Cal. Prac. Guide: Civ. Proc. Before Trial (Rutter Group 2022) ¶ 5:7 citing W.A. Rose Company v. Municipal Court for Oakland-Piedmont Judicial District (1959) 176 Cal.App.2d 67, 72.) Defendants, for example, cannot defend these applications while in default and would have to move first for relief.

In the Court’s view, judicial efficiency is served by Plaintiff simply proceeding to judgment now that default has been entered and enforcing the judgement as opposed to the Court making a determination on the merits via the applications as against defaulted parties.

Therefore, the Court is inclined to deny the application as to both service issues and based on the existence of the entry of default and availability of a default judgment.

Judicial Branch of California

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