Tentative Rulings

The Tentative Rulings for Tuesday, February 3, 2026, are:

Re:                Huerta, John vs. Buffalo Market, Inc.

Case No.:  VCU293236

Date:           February 3, 2026

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     Motion to be Relieved as Counsel

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

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

Re:                Fernandez, Fernando vs. Visalia Citrus Packing Group, Inc.

Case No.:  VCU308310

Date:           February 3, 2026

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     Defendant United Staffing’s Motion to Compel Arbitration

Tentative Ruling: To enforce the class action waiver and strike the class claims; to enforce the collective action waiver and split the PAGA claim; to otherwise sever and enforce the delegation clause and delegate all remaining issues to the arbitrator; to stay the representative Type O PAGA claim.

Facts

In this class action and PAGA matter, Plaintiff sues Defendants Visalia Citrus and United Staffing.

Defendant United Staffing moves to compel arbitration of this matter on an individual basis after application of a class action waiver term to strike the class claims, split the PAGA claims, compel individual arbitration and stay the representative PAGA claim.

Defendant United further notes the existence of a delegation clause within the arbitration agreement:

“Additionally, the Arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the validity, applicability, enforceability, unconscionability or waiver of this Agreement, including, but not limited to any claim that all or any part of this Agreement is void or voidable. However, as stated in the “Class and Collective Action Waivers" section below, the preceding sentence does not apply to the Class Action Waiver and/or Collective Action Waiver.”

Therefore, the Court will first examine the applicability of the class action waiver before analyzing the delegation issue.

Facts – Class Action and Collective Action Waivers

The Arbitration Agreement attached contains the following:

“5 Class and Collective Action Waivers. The Company and Employee agree to bring any claim on an individual basis and not on a class and/or collective action basis. Accordingly,

(a) There will be no right or authority for any dispute to be brought, heard or arbitrated as a class action and the Arbitrator will have no authority to hear or preside over any such claim ("Class Action Waiver"). The Class Action Waiver shall be severable from this Agreement if there is a final judicial determination that the Class Action Waiver is invalid, unenforceable, unconscionable, void or voidable. In such instances, the class action must be litigated in a civil court of competent jurisdiction—not in arbitration.

(b) There will be no right or authority for any dispute to be brought, heard or arbitrated as a collective action and the Arbitrator will have no authority to hear or preside over any such claim ("Collective Action Waiver"). The Collective Action Waiver shall be severable from this Agreement if there is a final judicial determination that the Collective Action Waiver is invalid, unenforceable, unconscionable, void or voidable. In such instances, the collective action must be litigated in a civil court of competent jurisdiction—not in arbitration.

Regardless of anything else in this Agreement and/or any rules that may apply by virtue of this Agreement, or any amendments and/or modifications to those rules, any claim that all or part of the Class Action Waiver and/or Collective Action Waiver, including, but not limited to any claim that all or part of the Class Action Waiver and/or Collective Action Waiver is invalid, unenforceable, unconscionable, void or voidable, shall be determined only by a court of competent jurisdiction and not by an arbitrator.”

Based on the delegation clause noted above and the last paragraph of the Class Action Waiver, it appears proper for the Court to examine the waiver issue before proceeding to the delegation issue.

Further, the Arbitration Agreement states “This Agreement is governed by the Federal Arbitration Act, 9 U.S.C. § 1 et seq. and evidences a transaction involving commerce.”

Authority and Analysis – Application of the FAA

The Federal Arbitration Act (FAA) states that “[a] written provision in any . . . contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” (9 U.S.C. § 2.) The FAA, therefore, governs contracts "involving commerce," which has been interpreted to mean simply "affecting commerce" to give the FAA the broadest reach possible, and does not require a transaction that is actually "within the flow of interstate commerce." (Allied-Bruce Terminix Co. v. Dobson (1995) 513 U.S. 265, 273-74; Citizens Bank v. Alafabco, Inc. (2003) 539 U.S. 52, 56.) Further, it appears the parties may agree to apply the FAA notwithstanding any effect on interstate commerce. (Victrola 89, LLC v. Jaman Properties 8 LLC (2020) 46 Cal.App.5th 337, 355.)

Here, the Agreement itself states that it “…evidences a transaction involving commerce” and indicates the FAA governs it. As such, the Court makes a threshold determination that the FAA applies.

Additionally, Plaintiff does not dispute the application of the FAA.

Authority and Analysis – Class Action Waiver

The FAA preempts any state law that bars enforcement of a class action waiver and therefore the class action waiver is enforceable under the FAA. (AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333, 352 [holding class action waivers are enforceable under FAA and California rule to contrary preempted.])

As such, the Court strikes the class claims.

Authority and Analysis – Collective Action Waiver

In Viking River, the United States Supreme Court held that, under an agreement permitting such, a PAGA cause of action may be divided into individual and representative claims and that the individual claims may be ordered to arbitration: "PAGA authorizes any 'aggrieved employee' to initiate an action against a former employer 'on behalf of himself or herself and other current and former employees' to obtain civil penalties that previously could have been recovered only by the State in an [Labor Workforce and Development Agency] enforcement action." (Viking River Cruises, Inc. v. Moriana (2022) 596 U.S. 639, 645.) The "individual PAGA claim" is the claim for the violations suffered by the aggrieved employee and the "representative PAGA claim" is the PAGA claim arising out of events involving other employees. (Id. at 648.)

The Viking River decision “left undisturbed” and “intact” both of the rules from Iskanian, supra, 59 Cal.4th 348 that (1) prohibited categorical waivers of the right to bring a PAGA action in any forum and (2) prohibited waivers of PAGA claims on behalf of other employees, i.e., non-individual or representative claims. (Adolph, supra, 14 Cal.5th at 1117-1118.)

However, the United States Supreme Court held that the third rule, which prohibited the "'division of PAGA actions into individual and non-individual claims through an agreement to arbitrate'" was preempted by the FAA. (Id. at 1118.)

Specifically, the Viking River Court stated:

"The agreement between Viking and Moriana purported to waive 'representative PAGA claims. Under Iskanian, this provision was invalid if construed as a wholesale waiver of PAGA claims. And under our holding, that aspect of Iskanian is not preempted by the FAA, so the agreement remains invalid insofar as it is interpreted in that manner. But the severability clause in the agreement provides that if the waiver provision is invalid in some respect, any portion that remains valid must still be 'enforced in arbitration.' Based on this clause, Viking was entitled to enforce the agreement insofar as it mandated arbitration of Moriana's individual PAGA claim." (Id. at 1924-1925.)

As summarized by Adolph: "The high court explained that an anti-splitting rule 'unduly circumscribes the freedom of parties to determine "the issues subject to arbitration" and "the rules by which they will arbitrate," [citation], and does so in a way that violates the fundamental principle that "arbitration is a matter of consent."' (Viking River, at p. 659.) Requiring parties to adjudicate a PAGA action entirely in one proceeding, the high court said, 'compels parties to either go along with an arbitration in which the range of issues under consideration is determined by coercion rather than consent, or else forgo arbitration altogether. Either way, the parties are coerced into giving up a right they enjoy under the FAA.' (Viking River, at p. 661.) Thus, Viking River requires enforcement of agreements to arbitrate a PAGA plaintiff's individual claims if the agreement is covered by the FAA." (Adolph, supra, 14 Cal.5th at 1118-1119.)

In reaching these conclusions, Viking River observed that the word "representative" has been used "in two distinct ways" to describe PAGA actions: "In the first sense, PAGA actions are 'representative' in that they are brought by employees acting as representatives—that is, as agents or proxies—of the State. But PAGA claims are also called 'representative' when they are predicated on code violations sustained by other employees. In the first sense, '"every PAGA action is . . . representative"' and '[t]here is no individual component to a PAGA action,' . . . Iskanian, [supra,] 59 Cal.4th, at 387, because every PAGA claim is asserted in a representative capacity. But when the word 'representative' is used in the second way, it makes sense to distinguish 'individual' PAGA claims, which are premised on Labor Code violations actually sustained by the plaintiff, from 'representative' (or perhaps quasi-representative) PAGA claims arising out of events involving other employees. For purposes of this opinion, we will use 'individual PAGA claim' to refer to claims based on code violations suffered by the plaintiff." (Viking River, supra, 596 U.S. at 648-649.)

Stated differently, “There is no individual component to a PAGA action because '"every PAGA action . . . is a representative action on behalf of the state."' [Citation.]" (Kim v. Reins International California, Inc. (2020) 9 Cal.5th 73, 87.) The term "individual" refers to those claims brought by a plaintiff as a representative of the State and which seek to recover civil penalties under PAGA for Labor Code violations experienced by the plaintiff. (See Galarsa v. Dolgen California, LLC (2023) 88 Cal.App.5th 639, 648 [referring to these claims as "Type A" claims].) The term “non-individual” refers to those claims brought by a plaintiff as a representative of the State and which seek to recover civil penalties under PAGA for Labor Code violations experienced by employees other than the plaintiff. (Galarsa, at 649 [referring to these claims as "Type O" claims].)

As summarized by the California Supreme Court in Adolph, an agreement that is covered by the FAA may require arbitration of "alleged Labor Code violations personally sustained by a PAGA plaintiff — so-called 'individual' claims." (Adolph, supra, 14 Cal.5th at 1114, 1119.) "'[W]hen an appropriate arbitration agreement exists'" and "a plaintiff has filed a PAGA action comprised of individual and non-individual claims," the trial court must "'bifurcate and order [the] individual PAGA claim[] to arbitration.'" (Id. at 1126, 1123.) In this circumstance, the "order compelling arbitration of [the] individual claim[] does not strip the plaintiff of standing to litigate non-individual claims [i.e., claims on behalf of other employees] in court." (Id. at 1123) Instead, "'the individual PAGA claim[] in arbitration remain[s] part of the same lawsuit as the representative claims remaining in court.'" (Id. at 1126.) The plaintiff would thus be "'pursuing a single PAGA action "on behalf of [himself or herself] and other current or former employees," albeit across two fora.' [Citation.]" (Id.)

Here, the Court examines the references to individual and representative claims in the Arbitration Agreement, noting it states, in part:

“5 Class and Collective Action Waivers. The Company and Employee agree to bring any claim on an individual basis and not on a class and/or collective action basis. Accordingly,

…

(b) There will be no right or authority for any dispute to be brought, heard or arbitrated as a collective action and the Arbitrator will have no authority to hear or preside over any such claim ("Collective Action Waiver"). The Collective Action Waiver shall be severable from this Agreement if there is a final judicial determination that the Collective Action Waiver is invalid, unenforceable, unconscionable, void or voidable. In such instances, the collective action must be litigated in a civil court of competent jurisdiction—not in arbitration.”

Reading the Agreement as a whole, the Court finds Plaintiff intended to compel arbitration of individual claims and to waive all class or collective action claims to the extent permitted by law. While, as noted above, the class action claims could be waived, the Type O PAGA claim cannot be waived. In the Court’s view, the Collective Action Waiver does not seek to improperly waive PAGA claims in total, but delineates between individual and representative claims and mandates the arbitration of the individual, Type A claims while preserving the Type O claims for this Court.

As such, the Court finds the Collective Action Waiver valid and that it operates to split the PAGA claim into an arbitrable Type A claim and a non-arbitrable Type O claim.

Authority and Analysis – Delegation Clause

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

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

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

Here, Plaintiff does not make a specific challenge to the delegation clause, but instead argues the entire agreement is unenforceable on theories of enforcement and unconscionability. The Court, therefore under Rent-A-Center and Malone, above, severs out the delegation clause and enforces it, leaving the determination of the enforceability, and defenses thereto, of the Agreement to an arbitrator, except as indicated above as to the Class Action and Collective Action Waiver terms.

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:                 Fernandez, Fernando vs. Visalia Citrus Packing Group, Inc.

Case No.:   VCU308391

Date:           February 3, 2026

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     Motion to Compel Arbitration

Tentative Ruling: To enforce the delegation clause and compel the issue of enforcement of the Agreement to the arbitrator.

Facts

In this discrimination, hostile work environment, retaliation, failure to prevent, harassment, failure to accommodate, failure to engage in good faith process and  wrongful termination, Plaintiff sues Defendants Visalia Citrus and United Staffing.

Defendant United Staffing moves to compel arbitration of this matter.

Defendant indicates the Arbitration Agreement contains the following term as to delegation:

“Additionally, the Arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute relating to the validity, applicability, enforceability, unconscionability or waiver of this Agreement, including, but not limited to any claim that all or any part of this Agreement is void or voidable.”

In opposition, Plaintiff challenges the entire agreement as to enforceability and unconscionability theories.

Authority and Analysis – Delegation Clause

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

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

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

Here, Plaintiff does not make a specific challenge to the delegation clause, but instead argues the entire agreement is unenforceable on theories of enforceability and unconscionability. The Court, therefore under Rent-A-Center and Malone, above, severs out the delegation clause and enforces it, leaving the determination of the defenses to the enforcement of the Agreement to an arbitrator.

Therefore, the Court grants the motion and compels issues of interpretation, applicability, enforceability, and formation to the arbitrator pursuant to the Agreement.

The Court further stays this matter pending the arbitrator’s rulings on these issues.

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:                 Interinsurance Exchange of the Automobile Club vs. Basulto, Marisol Ramirez

Case No.:   VCL310601

Date:           February 3, 2026

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     Motion to Enforce Settlement

Tentative Ruling: To grant the motion and enter judgment as requested

Facts

On June 28, 2024 , Plaintiff filed this action against Defendant for subrogation in the amount of $8,15I.93, plus interest at 5% per annum since July 9, 2021.

On August 1, 2024, the parties entered into a stipulation to resolve this matter.

The settlement was made in the amount of $8,151.93 and Defendants were to pay the sum of $150.00 on or before the 15th of each month from August 15, 2024 to July 15, 2025; the sum of $200.00 on or before the 15th of each month from August 15, 2025 to February 15, 2028; and the sum of $151.93 on or before March 15, 2028.

Defendants made $1,050 in payments but failed to make payments after April 15, 2025.

The stipulation further indicates an agreement as to the 5% interest from July 9, 2021.

Plaintiff requests judgment in the amount of $8,855.30 consisting of $7,101.93 of unpaid principal, $1,528.37 in interest at the rate of 5% per annum on the unpaid principal and $225.00 costs for filing and service of process.

In the event of default, the stipulation indicates that Plaintiff is entitled to entry of judgment for the judgment amount noted above, less any credits.

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

Authority and Analysis

Section 664.6 (a) states: 

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

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

As indicated above, the Court retains jurisdiction over the parties and this matter and therefore is prepared to “enter judgment pursuant to the terms of the settlement.”

Defendant appears to have breached the settlement, based upon the declaration of Plaintiff’s counsel and, the Court, having no opposition, grants the motion and enters judgment in the amount requested of $8,855.30 consisting of $7,101.93 of unpaid principal, $1,528.37 in interest at the rate of 5% per annum on the unpaid principal and $225.00 costs for filing and service of process.

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:                Fonseca, David vs. Chimienti & Associates

Case No.:  VCU315048

Date:          February 3, 2026

Time:          8:30 A.M. 

Dept.          2-The Honorable Bret D. Hillman

Motion:       Motion Pro Hac Vice

Tentative Ruling: To deny the application of attorney Leigh S. Montgomery of EKSM, LLP to appear as counsel pro hac vice for Plaintiff

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

The Court finds that attorney Montgomery meets the statutory requirements under California Rule of Court 9.40(a) to submit applications to appear pro hac vice before the Court. The Court’s file for this matter further indicates that that the applicable fees that must be paid to the State Bar of California under Rule 9.40(e) to support the application for admission pro hac vice have been tendered to the State Bar.

The Court further notes that attorney indicates that Attorney Montgomery has made seven (7) prior appearances in different cases before the courts in this state in the last two years. The court notes that six of these applications were in 2025 and one in late 2024. The application even admits that the nature of his practice requires, “the frequent need for special admittance.” (Dec of L. Montgomery, P. 8, l. 11-12) This appears to the Court like practice of law in this state. This is similar to the repeated applications in Golba v. Dick's Sporting Goods, Inc. (2015) 238 Cal.App.4th 1251, 1266.

California Rules of Court, Rule 9.40 (b) states, ”absent special circumstances, repeated appearances by any person under this rule is a cause for denial of an application. Counsel does not articulate any special circumstances other than the presence of potential clients here. If that is a special circumstance, it would be an exception that vitiates the rule.

Based on the foregoing, the application of attorney Montgomery to appear as counsel pro hac vice for Plaintiff in this action is denied.

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

Re:                 Gonzalez, Antonio Graciano vs. Thrive Business Development, Inc.

Case No.:   VCU316873

Date:            February 3, 2026

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     Defendant’s Motion for Summary Judgment

Tentative Ruling: To grant the motion.

Background Facts

In this matter, Plaintiff alleges two causes of action for general negligence and premises liability based on the following:

“Plaintiff was lawfully on Defendant's premises on the date of the subject incident. Defendant owed a duty to act as a reasonably prudent owner of commercial property and service its establishment to be a reasonably secure and safe environment for its patrons, including Plaintiff. Defendant acted below the standard of care and negligently owned, maintained, and operated the property in the following way: Failing to maintain safe gym equipment commonly used and accessed by its patrons, including Plaintiff…

While Plaintiff was using a weight-lifting machine on the subject premises, a cable from the machine abruptly snapped and violently struck Plaintiff in the head.”

Defendant moves for summary judgment.

Material Facts

In support, Defendant asserts the following material facts that are undisputed unless noted.

Plaintiff alleges that he suffered injuries to his head, lower back, neck, and hand on April 4, 2023 when a cable from a weight-lifting machine came undone, striking him in the head. (UMF No. 1.)

Plaintiff joined Defendant’s gym on January 9, 2023 and had been a member of the gym for only a few months before the incident. (UMF No. 2.)

Plaintiff was injured while pulling the handholds in a downward motion when the overhead cable broke. The overhead cable (connected to the handholds) lifted the stack of weights when the handholds were pulled. (UMF No. 3.)

At the time of the incident, Plaintiff was pulling down the handholds while facing the machine, as the man shown in the picture Plaintiff identified as Exhibit 2B at his deposition, but was pulling the handholds down in front of him. (UMF No. 4.) Plaintiff adds here that he was using the machine as intended. (Plaintiff’s Dispute to UMF No. 4.)

Plaintiff had used this same exact machine from the accident once a week from the time he joined the gym in January 2023 to April 2023. (UMF No. 5.)

Before he sat down, Plaintiff inspected the machine and did not notice any problems with the cable on the machine. (UMF No. 6.) In disputing this fact, Plaintiff asserts a number of legal theories as to duty to inspect and breach, but does not appear to dispute that Plaintiff inspected the machine and did not notice any issues. (Plaintiff’s Dispute to UMF No. 6.)

Plaintiff also did not notice any indication of weakness in the cable or break in the cable, nor any indication of unraveling of the cable itself. (UMF No. 7.) Like with the prior fact, Plaintiff attempts to dispute this via legal theories as to duty and breach. (Plaintiff’s Dispute to UMF No. 7.)

Prior to using the machine, Plaintiff spent three minutes inspecting the machine, felt no instability in the weights, the cable, or the handholds, and did not see, hear, or sense anything that suggested a problem with the machine or the cables. (UMF No. 8.) Like with the prior fact, Plaintiff attempts to dispute this via legal theories as to duty and breach. (Plaintiff’s Dispute to UMF No. 8.)

Plaintiff also had inspected the pin that held the desired weight in place to ensure it was firm in the stack of weights and that there was no wiggle room for it to move. (UMF No. 9.) Like with the prior fact, Plaintiff attempts to dispute this via legal theories as to duty and breach. (Plaintiff’s Dispute to UMF No. 8.)

Plaintiff also inspected the cable itself prior to using the machine but did not find anything wrong with it. (UMF No. 10.) Like with the prior fact, Plaintiff attempts to dispute this via legal theories as to duty and breach. (Plaintiff’s Dispute to UMF No. 10.)

At the time of the accident, Plaintiff had started to pull the handholds downward when the cable overhead snapped on the second pull. (UMF No. 11.)

Shortly after the incident, Plaintiff reported it to the manager and then drove himself to seek medical attention. (UMF No. 12.)

The signature on the Membership Agreement is Plaintiff’s signature. Plaintiff filled in personal information on the Membership Agreement, such as name and address, and signed the agreement on January 9, 2023. (UMF No. 13.)

14. The Membership Agreement states:

“WAIVER OF LIABILITY

Member acknowledges that the use of Valley Fitness facilities, equipment, merchandise, services and programs (including personal training) involving an inherent risk of personal injury to member and member’s guests and invitees. Member voluntarily agrees to assume all risks of personal injury to member, member’s spouse, children, unborn children, other family members, guests or invitees and waives any and all claims or actions that member may have against Valley Fitness, any of its subsidiaries or other affiliates and any of their respective officers, directors, employees, agents, successors and assigns for any such personal injury (and no such person or entity shall be liable to member, member’s spouse, children, unborn children, other family members, guests or invitees for any such personal injury), including, without limitation: (i) injuries arising from use of any exercise equipment, machines and/or personal training services; (ii) injuries arising from participation in supervised or unsupervised activities and programs in exercise rooms, steam rooms, saunas, locker rooms, or other areas of Valley Fitness; (iii) injuries arising from Valley Fitness’s negligence, whether direct or indirect; (iv) injuries, disease, infection or medical disorders resulting from exercising at Valley Fitness, including heart attacks, strokes, heat stress, sprains, broken bones and torn damaged muscles, ligaments or tendons; and (v) accidental injuries within Valley Fitness, including locker rooms steam rooms, saunas, showers and dressing rooms. Member also waives all claims against Valley Fitness, any of its subsidiaries, or other affiliates and any of their respective officers, directors, employees, agents, successors and assigns for any claims member may have under any of the state’s consumer protection statutes. The provisions of this paragraph shall survive the termination of this agreement and member’s membership.

ASSUMPTION OF RISK AND INDEMNIFICATION

Member acknowledges that (i) Valley Fitness does not manufacture any of the fitness or other equipment at its facility and (ii) Valley Fitness does not manufacture any vitamins, food products, sports drinks, nutritional supplements or other products sold at its facilities; accordingly, neither Valley Fitness nor any of its subsidiaries or other affiliates nor any of their respective officers, directors, employees, agents, successors or assigns shall be held liable for any such defective equipment or products. Member shall indemnity Valley Fitness, its subsidiaries and other affiliates and each of their respective officers, directors, employees, agents, successors and assigns (an “Indemnified Party”) and save and hold each of them harmless against and pay on behalf of or reimburse any sch indemnified party as and when incurred for any losses which such indemnified party may suffer, sustain or become subject to, as a result of, in connection with, relating or incidental to or by virtue of any claim that is the subject of the waiver set forth above. The provisions of this paragraph shall survive the termination of this Agreement and Member’s membership.” (UMF No. 14.)

As to No. 14, Plaintiff does not dispute the terms of the waiver or its existence, arguing in the response to separate statement various theories as to the applicability of waiver and assumption of risk. (Plaintiff’s Dispute to UMF No. 14.)

Plaintiff read some of the agreement before signing it. The employee who presented him with the agreement did not prevent him from reading the application. (UMF No. 15.) Like with the prior fact, Plaintiff attempts to dispute this via legal theories as to the applicability of waiver and assumption of risk. (Plaintiff’s Dispute to UMF No. 15.)

Plaintiff does not recall reading the waiver provision of the agreement and did not ask any questions about the terms of the contract when he completed the membership agreement. (UMF No. 16.) Like with the prior fact, Plaintiff attempts to dispute this via legal theories as to the applicability of waiver and assumption of risk. (Plaintiff’s Dispute to UMF No. 16.)

Authority and Analysis

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

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

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

“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.) 

Negligence and Premises Liability

The elements of a cause of action for negligence are “(a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c) the breach as the proximate or legal cause of the resulting injury.” (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.)

It has been held that “[p]remises liability is a form of negligence....” (Brooks v. Eugene Burger Management Corp., (1989) 215 Cal. App. 3d 1611, 1619.) As such, the Court treats these causes of action together.

The Court first examines Defendants argument that the waiver contained in the signed membership agreement bars liability for negligence in this matter.

The applicability of an express release of liability requires that it “‘…be clear, unambiguous and explicit in expressing the intent of the parties’[citation omitted]; [that] the act of negligence that results in injury to the releasee must be reasonably related to the object or  purpose for which the release is given [citation omitted]; and the release cannot contravene public policy [citation omitted]. A release need not be perfect to be enforceable. [citation omitted]” (Sweat v. Big Time Auto Racing, Inc. (2004) 117 Cal.App.4th 1301, 1304-1305.)

Here, the waiver term, as produced above, clearly, unambiguously and explicitly states there is an “inherent risk of personal injury” via use of Plaintiff’s equipment, that Plaintiff “voluntarily agrees to assume all risks of personal injury to member…” and that Plaintiff “…waives any and all claims or actions that member may have against [Defendant]…including, without limitation: (i) injuries arising from use of any exercise equipment, machines and/or personal training services…(iii) injuries arising from [Defendant’s] negligence, whether direct or indirect; (iv) injuries, disease, infection or medical disorders resulting from exercising at [Defendant], including heart attacks, strokes, heat stress, sprains, broken bones and torn damaged muscles, ligaments or tendons; and (v) accidental injuries within [Defendant], including locker rooms steam rooms, saunas, showers and dressing rooms.”

It is undisputed that Plaintiff executed the membership agreement containing this waiver.

Additionally, Plaintiff’s injury, as pled in the complaint and set forth in the separate statement, is reasonably related to the object or purpose for which the release is given, namely that Plaintiff’s use of the equipment or facilities has an inherent risk of personal injury, that Plaintiff assumes all risks and that Plaintiff waives any and all claims arising from the use of equipment or machines, from Defendant’s direct or indirect negligence, and injuries resulting from exercise at Defendant’s facility.

As to the contravention of public policy, “…cases consistently have held that ‘[e]xculpatory agreements in the recreational sports context do not implicate the public interest and therefore are not void as against public policy.’” (Capri v. L.A. Fitness International, LLC (2006) 136 Cal.App.4th 1078, 1084.) 

Plaintiff does not dispute the execution of the waiver. Plaintiff does not dispute that the waiver does not contravene public policy.

Plaintiff does argue that Defendant has failed to address the duty element of negligence. However, “[a] release may negate the duty element of a negligence action.” (Benedek v. PLC Santa Monica (2002) 104 Cal.App.4th 1351, 1356.)

The Court finds Defendant has met its burden on summary judgment. Defendants have produced sufficient evidence demonstrating that Plaintiff signed the agreement containing the waiver, which expressly releases Defendant from liability, including claims arising from its negligence.

Plaintiff, however, has not met his burden in demonstrating that the waiver does not apply due to either a contract of adhesion or evidence of gross negligence.

Plaintiff states

“A contract of “adhesion is a standardized contract [as the one in the instant case] which, imposed and drafted by the party of superior bargaining strength [Defendant], relegates to the subscribing party [Plaintiff] only the opportunity to adhere to the contract or reject it.” (Neal v. State Farm Ins. Cos. (1961) 188 Cal.App.2d 690, 694; cited in Armendariz v. Foundation Health Psychcare Services, Inc. (2000) 24 Cal.4th 83, 113.)” (Opposition 6:17-21.)

However, the adhesive nature of the agreement alone is not sufficient to invalidate it. If Plaintiff sought to adjudicate the unconscionability of the agreement, the Court notes that the adhesive nature of an agreement generally examines only procedural unconscionability. Plaintiff makes no argument that the agreement is substantively unconscionable. Neither Neal nor Armendariz held that a contract of adhesion, alone, is invalid.

As to gross negligence, Plaintiff’s opposition does not directly address this issue. Liability for gross negligence cannot be waived as a matter of public policy. (City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747, 754-755; Civ. Code, § 1668.) At most Plaintiff argues that maintenance of the machinery was the third priority of Defendant, but presents no evidence of ‘“‘want of even scant care’”’ or ‘“‘an extreme departure from the ordinary standard of conduct.’”’
(Grebing v. 24 Hour Fitness USA, Inc. (2015) 234 Cal.App.4th 631, 637.)

Further, Plaintiff argues:

“When a defendant moves for summary judgment on the basis of implied assumption of the risk, he or she has the burden of establishing the plaintiff's primary assumption of the risk by demonstrating that the defendant owed no legal duty to the plaintiff to prevent the harm of which the plaintiff complains.” (Freeman v. Hale (1994) 30 Cal.App.4th 1388, 1395) (Moser v. Ratinof (2003) 105 Cal.App.4th 1211, 1217.) The analysis of the court, in Freeman and Moser, supra, applies with reference to Agreement” (Opposition 6:25-28, 7:1-2.)

There is no implied assumption of the risk at issue here. Rather, there is an express waiver of direct or indirect negligence as to gym equipment and injuries arising therefrom.

Last, Plaintiff states:

“Plaintiff was required to expressly have assumed the risk of the subject machine malfunctioning and injuring him. Plaintiff must have known this at the time he executed the Agreement. (Allan v. Snow Summit, Inc. (1996) 51 Cal.App.4th 1358, 1372, 5; Allabach v. Santa Clara County Fair Assn. (1996) 46 Cal.App.4th 1007, 1012.)” (Opposition 7:6-10.)

As noted above, Plaintiff did expressly waive negligence by Defendant as to injuries from gym equipment via the agreement and the express waiver term.

Therefore, the Court finds Plaintiff has not carried his burden in opposing this motion and grants summary judgment in favor of Defendant.

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

Re:                 Discover Bank vs. Wilcox, Jeremy

Case No.:   VCL318548

Date:            February 3, 2026

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     Motion to Enter Judgment Pursuant to Stipulation and Code of Civil Procedure section 664.6

Tentative Ruling: To grant the motion and enter judgment as requested

Facts

On February 25, 2025, Plaintiff filed this action against Defendant for breach of contract in the amount of $2,883.00.

On or about April 18, 2025, the parties entered into a stipulation to resolve this matter. Defendant acknowledged being obligated to Plaintiff for the principal amount of $2,883.00 and to pay one payment of $483 on or before April 3, 2025 and monthly payments of $400 thereafter.

In the event of default, the stipulation indicates that Plaintiff is entitled to entry of judgment for the judgment amount noted above, less any credits.

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

Defendant made payments totaling $1,483 but made no payments after May 3, 2025.

Authority and Analysis

Section 664.6 (a) states: 

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

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

As indicated above, the Court retains jurisdiction over the parties and this matter and therefore is prepared to “enter judgment pursuant to the terms of the settlement.”

Defendant appears to have breached the settlement, based upon the declaration of Plaintiff’s counsel and, the Court, having no opposition, grants the motion and enters judgment in the amount requested of $1696.02, consisting of the $2,883 principal, plus costs of $296, less credits of $1,483.00.

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

Re:                 Gonzalez, Antonio vs. Sierra View Local Health Care District

Case No.:  VCU325894

Date:           February 3, 2026

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:      Defendant Adventist Health System/West dba Adventist Health and Defendant Adventist Health Tulare’s Demurrer to Amended Complaint

Tentative Ruling: To sustain the demurrer with leave to amend as to the second cause of action; to sustain the demurrer to the third cause of action without leave to amend as duplicative; to overrule the demurrer to the fourth cause of action; Plaintiff shall have ten (10) days to file an amended complaint as to the second cause of action.

Facts

In this action, Plaintiff Norma Gonzalez, individually and as successor in interest to Antonio Gonzales (“Decedent”), brings causes of action for negligence, elder abuse, wrongful death and unfair competition, against Defendants Adventist Health System/West dba Adventist Health and Adventist Health Tulare, amongst others.

The Court previously sustained a demurrer with leave to amend.

Plaintiff filed an amended complaint alleging the following.

“Prior to the events leading to his death, Mr. Gonzalez was an elderly man with significant and well-documented medical vulnerabilities, including advanced dementia. He was largely non-verbal and completely dependent on others for his safety and all activities of daily living, including mobility, hygiene, and nutrition.” (FAC ¶27.)

Further, that in in June 2022, Decedent’s health “began a steep decline” as around mid-June 2022, Decedent underwent surgery for a fractured femur and, afterwards, had severe mobility impairments and increased his dependency on nursing for assistance with his activities of daily living, and contracted COVID-19. (FAC ¶28.)

Further that by July 2022, Plaintiff alleges that Decedent was a known high-risk patient for developing pressure ulcers because he was assessed as "Bedfast" with "Very Limited" mobility, his Braden Scale scores were consistently low and he required "Total Dependent" or "Maximum Assistance" for nearly all functions, including transfers, turning, and toileting, and was at times placed in physical restraints. (FAC ¶29.)

As to these moving Defendants, Decedent was, on or about September 19, 2024, admitted to “Defendant Adventist’s and Defendant System’s facility, Adventist Health Tulare.” (FAC ¶30.) Plaintiff further alleges that “At the time of his admission, Mr. Gonzalez was entirely bedbound, non-verbal, and suffered from known dysphagia (difficulty swallowing), which placed him at an extreme and well-understood risk for aspiration. He was completely reliant on the facility's staff for his activities of daily living.” (FAC ¶30.) Plaintiff alleges that “Defendant Adventist and Defendant System knew they needed to implement plans to prevent and respond to aspiration and choking incidents. To Plaintiff’s knowledge and belief, Defendants Adventist and Defendant System failed to do so.” (FAC ¶30.)

Plaintiff alleges further that “Defendant Adventist's and Defendant System’s managing agents, including but not limited to their Administrator, Jason Wells, and Director of Nursing, Heather Van Housen, were delegated the administrative authority and responsibility for the day-to-day operations of the hospital, Adventist Health Tulare, including the hiring, oversight, and training of nursing staff to ensure they provided care in compliance with facility, federal, and state standards.” (FAC ¶8.)

Further, that:

On or about September 19, 2024, staff at Adventist Health Tulare subjected the frail and defenseless Mr. Gonzalez to numerous, traumatic, and unsuccessful attempts to insert an IV line. From the onset of Adventist Health Tulare nursing staff’s attempts to start the IV line, Mr. Gonzalez started gagging. The gagging was quickly followed by vomiting. To Plaintiff’s knowledge and belief, Mr. Gonzalez vomited several times. Instead of stopping to ensure that Mr. Gonzalez’s airways were clear of vomit, nursing staff continued their actions. Further, Adventist Health Tulare nursing staff continued their actions even though Mr. Gonzalez’s gagging and vomiting showed a pattern that demonstrated that it was caused by their actions. Because staff failed to protect his airway, a basic and critical precaution for a patient with known dysphagia, he aspirated the vomit into his lungs. This aspiration event was a direct result of Adventist's neglect and immediately caused a "code blue" medical emergency and acute respiratory failure. Mr. Gonzalez was intubated and, from that point forward, was rendered permanently dependent on a mechanical ventilator to breathe.” (FAC ¶31.)

Additionally, Plaintiff alleges:

“After the aspiration event, Mr. Gonzalez developed an irregular heartbeat (afib). On several occasions, Plaintiff noticed that Mr. Gonzalez’s vitals would spike and set off alarms, but Defendant Adventist’s and Defendant System’s nursing staff failed to respond to the alarms in a timely manner. On several of these occasions, Plaintiff estimates that nursing staff would take approximately 2 hours before providing any sort of treatment or medication.” (FAC ¶33.)

Following this, in approximately November 2024, Decedent was transferred to Defendant Central Valley’s facility, Central Valley Specialty Hospital, for long-term ventilator management. (FAC ¶¶34, 35.)

Plaintiff further alleges:

“The continuous and compounding acts of neglect by Defendant Adventist, Defendant Central valley, and Defendant Sierra View, starting with the aspiration event on September 19, 2024, and continuing through the development of pneumonia and severe dehydration, constituted an abandonment of a vulnerable elder and a conscious disregard for his life, rights, and safety. As a direct and proximate result of this inexcusable chain of neglect, Mr. Gonzalez endured five months of unrelenting pain, distress, and irreversible decline. His injuries, including ventilator-dependent respiratory failure, pneumonia, and complications from dehydration, led directly to his wrongful death on February 18, 2025.” (FAC ¶34.)

Plaintiff further alleges Decedent was totally dependent upon the Defendants for all his activities of daily living including, but not limited to, nutrition and hydration, dietary planning for dysphagia, skin care and prevention of pressure ulcers, hygiene, infection control and prevention, toileting, and all mobility, including turning and repositioning in bed.” (FAC ¶37.) Further that “Defendant Adventist’ and Defendant System’s abuse caused Mr. Gonzalez to experience an aspiration event, which lead to cardiac issue that Mr. Gonzalez did not have prior to entering Adventist Health Tulare” (FAC ¶38.)

Further, Plaintiff alleges a number of violations of Title 22 of the California Code of Regulations and Title 42 of the Federal Code of Regulations. (FAC ¶¶42-62.)

Defendants Adventist and System demurrer to the second cause of action for elder abuse or neglect for failure to state sufficient facts, to the first cause of action for negligence and third cause of action for wrongful death as uncertain, ambiguous and unintelligible and to the fourth cause of action for unfair competition. Defendants argue that the length of the stay and medical treatment received do not arise to elder neglect, that the first and third causes of action are duplicative and that insufficient facts are alleged as to the fourth cause of action.

Authority and Analysis

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

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

It is well-settled that all well-pled material facts in the complaint are assumed to be true for the purpose of the demurer.  (C & H Foods v. Hartford Ins. Co. (1984) 163 Cal.App.3d 1055, 1062) But “doubt in the complaint may be resolved against plaintiff and facts not alleged are presumed not to exist. (Id.)

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) No other extrinsic evidence can be considered (i.e., no "speaking demurrers"). (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.)

Second Cause of Action – Elder Abuse and Neglect

A cause of action under the Elder Abuse Act must be alleged with particularity.    (See Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 790.)   Acts that constitute mere professional negligence do not constitute elder abuse: “To recover the enhanced remedies available under the Elder Abuse Act from a health care provider, a plaintiff must prove more than simple or even gross negligence in the provider's care or custody of the elder.”  (See Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 405.)  “‘[T]he legislature intended the Elder Abuse Act to sanction only egregious acts of misconduct distinct from professional negligence….” (Covenant Care, Inc., supra, 32 Cal.4th at 784.) “In order to obtain the remedies available in section 15657, a plaintiff must demonstrate by clear and convincing evidence that defendant is guilty of something more than negligence; he or she must show reckless, oppressive, fraudulent, or malicious conduct. The latter three categories involve ‘intentional,’ ‘willful,’ or ‘conscious’ wrongdoing of a ‘despicable’ or "injurious" nature.”  (Delaney v. Baker (1999) 20 Cal.4th 23, 31-32.)   

Abuse is defined as “[p]hysical abuse, neglect, financial abuse, abandonment, isolation, abduction, or other treatment with resulting physical harm or pain or mental suffering” (Welf. & Inst. Code § 15610.07(a)) or “[t]he deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering” (Welf. & Inst. Code §15610.07(b))

As to neglect, “The plaintiff must allege (and ultimately prove by clear and convincing evidence) facts establishing that the defendant: (1) had responsibility for meeting the basic needs of the elder or dependent adult, such as nutrition, hydration, hygiene or medical care [citations]; (2) knew of conditions that made the elder or dependent adult unable to provide for his or her own basic needs [citations]; and (3) denied or withheld goods or services necessary to meet the elder or dependent adult's basic needs, either with knowledge that injury was substantially certain to befall the elder or dependent adult (if the plaintiff alleges oppression, fraud or malice) or with conscious disregard of the high probability of such injury (if the plaintiff alleges recklessness) [citations].” (Carter, supra, 198 Cal.App.4th at 406-407.)

In sustaining the demurrer to the initial complaint, the Court focused on the relatively short period of time Decedent was admitted to the Demurring Defendants’ facility and the singular event of attempting to insert an IV line and resulting issues sustained by Decedent.

In the operative amended complaint, Plaintiff emphasizes that prior to the IV line incident on September 19, 2024, Decedent was “entirely bedbound, non-verbal, and suffered from known dysphagia (difficulty swallowing), which placed him at an extreme and well-understood risk for aspiration. He was completely reliant on the facility's staff for his activities of daily living” and that “Defendant Adventist and Defendant System knew they needed to implement plans to prevent and respond to aspiration and choking incidents. To Plaintiff’s knowledge and belief, Defendants Adventist and Defendant System failed to do so.” (FAC ¶30)

Further, that after the event, Decedent developed an irregular heartbeat and that Defendants would fail to respond to alarms in a timely manner, estimating approximately 2 hours lapsed prior to treatment. (FAC ¶33.)

Delaney v. Baker (1999) 20 Cal.4th 23, 34 notes, in comparing MICRA and elder abuse or neglect, the following:

“[N]eglect within the meaning of former section 15610.57 appears to cover an area of misconduct distinct from 'professional negligence' in section 15657.2: "neglect" as defined in former section 15610.57 and used in section 15657 does not refer to the performance of medical services in a manner inferior to '"the knowledge, [*5]  skill and care ordinarily possessed and employed by members of the profession in good standing'" (citation), but rather to the failure of those responsible for attending to the basic needs and comforts of elderly or dependent adults, regardless of their professional standing, to carry out their custodial obligations. It is instructive that the statutory definition quoted above gives as an example of 'neglect' not negligence in the undertaking of medical services but the more fundamental '[f]ailure to provide medical care for physical and mental health needs.' (Citation.)”

While the Court recognizes that Decedent was dependent on other for basic needs and care, the Court does not find the allegations as to these demurring Defendants arises to a custodial or caretaking relationship where in they were both responsible for Decedent’s basic needs and failed to attend to them. Rather, Plaintiff alleges what the Court considers allegations of medical malpractice as to specific events or conditions, as opposed to the overall custodial or caretaking relationship.

Winn v. Pioneer Medical Group (2016) 63 Cal.4th 148 states:

“Beyond the assertion that defendants treated Mrs. Cox at outpatient 'clinics' operated by defendants, plaintiffs offer no other explanation for why defendants' intermittent, outpatient medical treatment forged a caretaking or custodial relationship between Mrs. Cox and defendants. No allegations in the complaint support an inference that Mrs. Cox relied on defendants in any way distinct from an able-bodied and fully competent adult's reliance on the advice and care of his or her medical providers. Accordingly, we hold that defendants lacked the needed caretaking or custodial relationship with the decedent. [¶] Plaintiffs cannot bring a claim of neglect under the Elder Abuse Act unless the defendant health care provider has a caretaking or custodial relationship with the elder or dependent adult. Here, plaintiffs rely solely on defendants' allegedly substandard provision of medical treatment, on an outpatient basis, to an elder. But without more, such an allegation does not support the conclusion that neglect occurred under the Elder Abuse Act. To elide the distinction between neglect under the Act and objectionable conduct triggering conventional tort remedies—even in the absence of a care or custody relationship—risks undermining the Act's central premise." (Id. at 165.)

As with the prior ruling, the Court finds allegations amount to substandard medical treatment on an elder, but not neglect or abuse.

As such, the Court sustains the demurrer.

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.)

Therefore, the demurrer to this cause of action is sustained with leave to amend. Plaintiff shall have ten (10) days to file an amended complaint as to allegations involving this cause of action.

First and Third Causes of Action – Negligence and Wrongful Death

Defendants further demurrer to the first and third causes of action for negligence and wrongful death as duplicative.

A demurrer may be sustained on the basis that one cause of action is duplicative of another, thus addimg nothing to the complaint by way of fact or theory of recovery. (Palm Springs Villas II Homeowners Assn., Inc. v. Parth (2016) 248 Cal.App.4th 268, 290.)

“The elements of a medical malpractice claim are: “(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence.' [Citation.]"'[Citation.]." (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 468, fn. 2.) "'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." (CCP § 340.5(2).)

Therefore, the Court sustains the demurrer without leave to amend to the third cause of action for wrongful death as duplicative of the first.

Fourth Cause of Action

"The UCL prohibits, and provides civil remedies for, unfair competition. (Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 320.) “[U]nfair competition” includes "any unlawful, unfair or fraudulent business act or practice." (Bus. & Prof. Code, § 17200.) The purpose of the UCL is to protect both consumers and competitors by promoting fair competition in commercial markets for goods and services" (Gutierrez v. Carmax Auto Superstores California (2018) 19 Cal. App. 5th 1234.) The UCL's definition of unfair competition uses the terms "unlawful, unfair or fraudulent" in the disjunctive. (Bus. & Prof. Code, § 17200.)

Further, "[a]n unlawful business practice or act is an act or practice, committed pursuant to business activity, that is at the same time forbidden by law. [citation] Virtually any law can serve as the predicate for a section 17200 action." (Klein v. Earth Elements, Inc. (1997) 59 Cal.App.4th 965, 969.) “[I]n essence, an action based on Business and Professions Code section 17200 to redress an unlawful business practice 'borrows' violations of other laws and treats these violations, when committed pursuant to business activity, as unlawful practices independently actionable under section 17200 et seq. and subject to the distinct remedies provided thereunder." (People ex rel. Bill Lockyer v. Fremont Life Ins. Co. (2002) 104 Cal.App.4th 508, 515.)

Here, the amended complaint alleges a number of violations of Title 22 of the California Code of Regulations and Title 42 of the Federal Code of Regulations. (FAC ¶¶42-62.)

This appears sufficient as to the section 17200 claim. Therefore, the Court overrules the demurrer here.

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:                Hernandez, Sylvia vs. Visalia Police Dept.

Case No.:   VCU318115

Date:            February 3, 2026

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     Demurrer

Tentative Ruling: To sustain the demurrer without leave to amend.

Facts

In the operative second amended complaint, Plaintiff lists causes of action for (1) Violation of 42 U.S.C. § 1983 – Fourth Amendment and Article I, Section 13 of the California - Constitution; (2) Failure to Provide Warrant - Penal Code §§ 1535; (3) Excessive Force and Negligent Execution of Search; (4) Negligent Supervision Training and Retention, (5) Trespass and Conversion (6) Government Code section 815.2 against Defendants Visalia Police Department, Nate Flaws, Miguel Leon, and Martin Aguilar as Defendants.

Plaintiff seeks general, special and punitive damages.

Plaintiff alleges:

5. On or about _______________, officers of the Visalia Police Department, including Detectives Flaws, Aguilar, and Leon, arrived at Plaintiff’s residence located at 2044 South Tracy Ct Visalia, CA 93292.

6. Officers began attempting to breach Plaintiff’s door without providing a warrant.

7. Plaintiff upon arrival to her residence immediately requested to see the warrant. Detectives refused, stating that they “did not have to give her a copy.”

8. Plaintiff later obtained a copy of the warrant showing that it was signed after the officers had already arrived and attempted forced entry.

9. The premature attempt to enter Plaintiff's home constituted a warrantless intrusion and unreasonable search under both federal and state constitutions.

10. During the search, officers broke doors, damaged walls, scattered personal property, and left the home unsecured, resulting in significant repair costs, emotional distress, and fear for her safety.” (SAC ¶¶5-10.)

Defendants demurrer to the operative second amended complaint for failure to plead a section 1983 claim against the City and the individual officers, that the cause of action further lacks a claim of excessive force and that the tort claim presentation requirement has not been alleged.

Authority and Analysis

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

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

It is well-settled that all well-pled material facts in the complaint are assumed to be true for the purpose of the demurer.  (C & H Foods v. Hartford Ins. Co. (1984) 163 Cal.App.3d 1055, 1062) But “doubt in the complaint may be resolved against plaintiff and facts not alleged are presumed not to exist. (Id.)

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) No other extrinsic evidence can be considered (i.e., no "speaking demurrers"). (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.)

First Cause of Action - 42 U.S.C. § 1983 - Fourth Amendment; Article I, section 13 of the California Constitution

42 U.S.C. § 1983 - Fourth Amendment

As to this cause of action against the City, the Court agrees that direct liability is available only pursuant to Monell v. Department of Social Service of New York (1978) 436 U. S. 658, 691 and requires allegations of a policy or custom in connection with the alleged conduct. Here no such allegation is present and the Court sustains the demurrer on this basis as to the City.

Individual Officer Defendants

"'To state a claim under [section] 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the alleged deprivation was committed by a person acting under color of state law.' [Citation.] '"State courts look to federal law to determine what conduct will support an action under section 1983. [Citation.]' [Citation.]" (Arce v. County of Los Angeles (2012) 211 Cal.App.4th 1455, 1472-1473.) “[A] pleading is insufficient to state a claim under the Civil Rights Act if the allegations are mere conclusions. Some particularized facts demonstrating a constitutional deprivation are needed to sustain a cause of action under the Civil Rights Act.” (Bach v. County of Butte (1983) 147 Cal. App. 3d 554, 564.) “[W]e hold that the state courts of California should apply federal law to determine whether a complaint pleads a cause of action under section 1983 sufficient to survive a general demurrer.” (Id. at 563.)

As to the individual officers, the Plaintiff does not assert facts sufficient to support this cause of action, as she states there was an attempted breach or attempted forced entry. This does not establish that the Fourth Amendment was violated or what the deprivation of a right was under these facts.

As such, the Court sustains the demurrer as to the individual officers.

Article I, Section 13 of the California Constitution

Article 1, section 13 of the California Constitution states "[t]he right of the people to be secure in their persons, houses, papers, and effects against unreasonable seizures and searches may not be violated; and a warrant may not issue except on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized.”

As a federal district court noted, neither the California Supreme Court nor any California Court of Appeal has decided whether there is a private cause of action under article I, section 13. (Lesher v. City of Anderson (E.D. Cal. 2025) 763 F.Supp.3d 1115, 1120; see also Julian v. Mission Community Hospital (2017) 11 Cal.App.5th 360, 392.)

Therefore, the Court examines whether this section creates a private right of action pursuant to the analysis in Katzberg v. Regents of the University of California (2002) 29 Cal.4th 300, 317.)

The first step is to examine the language, history and structure of the section to determine whether it demonstrates an “affirmative intent either to authorize or to withhold a damages action to remedy a violation.” (Id.) However, if no such intent is found, courts follow the “constitutional tort analysis in Bivens v. Six Unknown Fed. Narcotics Agents (1971) 403 U.S. 388, 398, as to the issue of whether “…an adequate remedy exists, the extent to which a constitutional tort action would change established tort law, and the nature and significance of the constitutional provision." (Id. at 317.) If these factors recognizes a constitutional tort, the Court then, on balance, considers other factors, such as avoiding adverse policy consequences, practical issues of proof, and judicial competence, against recognizing a cause of action. (Id.) “’If there are sound reasons to think [a legislative branch] might doubt the efficacy or necessity of a damages remedy[,] the courts must refrain from creating it.'" (Egbert v. Boule (2022) 596 U.S. 482, 491.)

Here, there appears to be no affirmative intent to authorize damages for violation of section 13. Lesher, supra, 763 F.Supp.3d at 1121 notes the section does not mention damages and there are no “drafting history, ballot materials, historical records, or common law decisions suggesting section 13 was adopted with an intent to make damages available.”

As to the second step, a Bivens' analysis concludes that there are several adequate remedies already available, including under the Bane Act, Civil Code section 52.1, pled in the first amended complaint.

Additionally, the Court will not extend County of Butte v. Superior Court (2009) 175 Cal.App.4th 729 City of Garden Grove v. Superior Court (2007) 157 Cal.App.4th 355 as to a private right of actin under section 13 outside the context of the seizure of medical marijuana plants without a search warrant and neither of which examined whether a private right of action was created thereunder.

As a result, the Court sustains the demurrer to this cause of action.

Second Cause of Action - Failure to Provide Warrant - Penal Code § 1535;

Penal Code section 1535 states, “When the officer takes property under the warrant, he must give a receipt for the property taken (specifying it in detail) to the person from whom it was taken by him, or in whose possession it was found; or, in the absence of any person, he must leave it in the place where he found the property.”

The Court finds no private right of action created by Penal Code section 1535 under the same analysis above. This section does not assert an affirmative intent either by its plain language or legislative history and under Bivens’ there are other adequate remedies available for the alleged violations. Regarding the allegation that the officers were required to provide the warrant before its execution, Plaintiff provides no authority to support this proposition.

As a result, the Court sustains the demurrer to this cause of action

Third Cause of Action - Excessive Force and Negligent Execution of Search;

As to excessive force, the Court interprets this claim as duplicative of the first cause of action, or at least also based on 42 U.S.C. 1983, and that it fails for the same reason as above: failure to allege any force on Plaintiff. The operative amended complaint alleges only an attempted breach of the home based on a warrant that was allegedly not produced immediately.

As to negligent execution of the search, Plaintiff provides no statutory basis for this cause of action as to the public entity Defendant City for which it would be liable, in addition to the lack of factual basis as to the alleged negligence by the individual Defendants. There is no common law tort liability for public entities in California, including negligence. (McCarty v. State of California Dept. of Transp. (2008) 164 Cal.App.4th 955, 975.)

As a result, the Court sustains the demurrer to this cause of action

Fourth through Sixth Causes of Action: Negligent Supervision Training and Retention; Trespass and Conversion; and Government Code section 815.2

California Government Code section 911.2 requires that a claim for monetary damages 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.) The 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 (2004) 32 Cal.4th 1234, 1237, 1243.)

Here, no presentation of a claim is alleged in the operative amended complaint and Plaintiff seeks purely monetary damages.

As such, the Court sustains the demurrer to these causes of action.

Leave to Amend

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

Here, Plaintiff has failed to provide a basis for leave to amend, given the allegations of the operative second amended complaint allege only an attempted breach based on a search warrant whose underlying validity is not challenged. Plaintiff has had three opportunities to state a viable cause of action but has failed to do so. The Court, therefore, sustains the demurrer without leave to amend. 

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

Re:                 In the Matter of Jerrilyn Milliken Family Trust

Case No.:  VPR053672

Date:           February 3, 2026

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     Motion to Quash

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

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

Re:                 Lynx Realty & Management, LLC vs. Multi-Housing Tax Credit Partners XXX

Case No.:   PCU325813

Date:           February 3, 2026

Time:           8:30 A.M. 

Dept.           19-The Honorable Russell P. Burke

Motion:      Defendant’s Motion for Interlocutory Judgment re: Partition

Tentative Ruling: To deny the motion.

Facts and Analysis

In this partition action, Defendant has filed this motion for interlocutory judgment.

The law states that “[a]t the trial, the court shall determine whether the plaintiff has the right to partition.” (Code Civ. Proc. § 872.710(a).) If the court finds that the plaintiff is entitled to partition, the court shall make an interlocutory judgment that determines the interests of the parties in the property and orders the partition of the property. (Code Civ. Proc. § 872.720(a).) This statutory scheme envisions that an interlocutory judgment of partition shall not be entered until after the court determines the interests of the parties in the property and that plaintiffs are entitled to partition. (Code Civ. Proc. § 872.720(a); see also Summers v. Superior Court (2018) 24 Cal.App.5th 138, 143-144 [court cannot order partition sale prior to resolving the parties’ respective ownership interest in property].)

The Civil Procedure Code specifically states that this determination can be made “at trial.” (Code Civ. Proc. § 872.810.) It appears that the Court may also make this determination in the other ways – such as by motion for summary judgment. (See LEG Investments v. Boxler (2010) 183 Cal. App. 4th 484 [reversing denial of summary judgment and ordering trial court to grant plaintiff’s motion for summary adjudication on partition cause of action.]) or by default (See Finney v. Gomez (2003) 111 Cal.App.4th 527, 532.)

The motion before the Court is not a motion for summary judgment. No default is at issue as Defendant has answered the case. This matter has not proceeded to trial. The Court has been presented with no basis to enter an interlocutory judgment for partition via a noticed motion that is not made as a summary judgment.

Therefore, the Court denies this motion.

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

Examiner Notes for Probate Matters Calendared

• Visalia Division 
• South County Justice Center Division