March 4, 2025

The following are the tentative rulings for cases calendared before Judge John R. Mayne in Department 21:

CV-24-004195 – SP, JANE DOE vs HOUSE OF TYKES PRESCHOOL INC – a) Defendant’s Motion to Compel Plaintiff’s Discovery Responses to Form Interrogatories, Set One - GRANTED with modification b) Defendant’s Motion to Compel Plaintiff’s Discovery Responses to Special Interrogatories, Set One - GRANTED in full. Defendant’s counsel is sanctioned $300, payable to the Court, for failure to include a Separate Statement as required, which made the Court’s efforts more time-consuming.

The Court notes that these motions probably should have been titled as motions to compel further responses, not motions to compel responses. (There is a difference. Compare Code of Civil Procedure §§ 2030.290 with 2030.300.) And more importantly, Defendant neglected to file separate statements pursuant to Rule 3.1345(a) of the California Rules of Court. The Court would have been within its rights to deny the motions on this basis, as Plaintiff urged. But because there was only a handful of requests at issue and the motions appear to have merit, the Court exercises its discretion to consider the motions substantively. The Court trusts that this oversight regarding omission of the separate statement will not occur in the future.

a) Form Interrogatory No. 10.3 falls under the subheading, “Medical History.” The goal of the interrogatory is to uncover possible factors that might have contributed to a plaintiff’s injuries. Contrary to Plaintiff’s construction of the phrase at issue, the Court does not interpret the interrogatory as asking whether Plaintiff has experienced similar injuries from a later, unrelated sexual assault or sexual contact. Rather, the question is whether the injuries Plaintiff has described could possibly be attributed to a later, unrelated event (that is not necessarily sexual in nature).

With that clarified, the Court acknowledges that a later, unrelated sexual incident would be encompassed by the form interrogatory’s current language. As Plaintiff asserts in her opposition, such information is subject to special protections. (See Code Civ. Proc., § 2017.220(a); Barrenda L. v. Superior Court (1998) 65 Cal.App.4th 794, 802–803.) Defendant has not met its burden of providing concrete information that would constitute good cause overcoming those protections. Accordingly, the Court modifies Interrogatory No. 10.3 as follows:

        At any time after the INCIDENT, did you sustain injuries of the kind for which you are now claiming damages from an

        event other than one sexual in nature? If so, for each incident not sexually related giving rise to an injury state:

           (a) the date and the place it occurred;

           (b) the name, ADDRESS, and telephone number of any other PERSON involved;

           (c) the nature of any injuries you sustained;

           (d) the name, ADDRESS, and telephone number of each HEALTH CARE PROVIDER

                who you consulted or who examined or treated you; and

           (e) the nature of the treatment and its duration.

The Court calls the parties’ attention to Barrenda L. v. Superior Court (1998) 65 Cal.App.4th 794, 802–803 for the proposition that if Plaintiff wishes to raise either other sexual contact or lack of same, responses would likely be required before doing so.

Plaintiff to serve a response to the modified request within 10 days. Defendant is to submit a new proposed order within five court days that conforms to this ruling.

b) The Court finds all the objections to the special interrogatories at issue to be unmeritorious. The objection that the interrogatories are not full and complete in and of themselves appears unmeritorious. The requests are in fact complete: all of the material language is quoted within them. The references to the complaint do not require reliance upon it.  

As for the objection that the interrogatories at issue are impermissibly compound, a case Defendant cites to, Clement v. Allegre (2009) 188 Cal.App.1277, holds that technically compound questions may be allowed. Here, the example cited is Special Interrogatory 41, which requests support for the claim that Defendant “failed to follow or comply with the standards of care set forth herein by: Failing to ensure that Plaintiff was free from infliction of pain, humiliation, intimidation, ridicule, coercion, threat, mental abuse, or other actions of a punitive nature at the Preschool.” This question could have been worded more generally as to “emotional harm,” and not been compound.

While technically compound, the Court is required to view these questions in a more holistic fashion. Because the questions do not appear to be an effort to evade limitations, the Court does not find them improper.

The additional objections to Interrogatory Nos. 41 and 47 are also unpersuasive. Defendant is asking Plaintiff for information sufficient to describe the referenced documents so that Defendant can formulate a directed request for production that will result in Plaintiff producing the document(s) at issue. Plaintiff’s assertions to the contrary notwithstanding, the Court does not find the instruction vague, ambiguous, or uncertain, or as calling for speculation and a legal conclusion.

Plaintiff is therefore ordered to serve within 10 days further responses to Special Interrogatory Nos. 39, 40, 41, 45, 46, and 47 in Set No. 1 propounded on Plaintiff. The Court will sign the proposed order that was submitted with the motion.

CV-24-004807 – WELLS FARGO BANK NA vs DIEHL, CAROLYN – Plaintiff’s Motion for Summary Judgment Pursuant to CCP 437C - GRANTED.

The motion for summary judgment is GRANTED for the reasons set forth below.

Request for Arbitration

Defendant states in her opposition that she “invokes Defendant's right to resolve this matter through Arbitration instead of through the civil court process pursuant to the alleged agreement between the parties.” (2/14/25 Opp., at p. 2; see also id. at p. 15.) But Defendant has not filed a petition to compel arbitration in this case. Moreover, Defendant responded to discovery and waited until her opposition to the motion for summary judgment was due—seven months after the complaint was filed—to raise this issue. This unlitigated request is not properly before the Court.  

The Opposing Papers

The Court notes that although the opposition refers to a declaration from the Defendant, it appears that no declaration in opposition to the motion was actually filed. This means that none of the statements in the Separate Statement of Disputed Facts (which does not include actual facts, but rather, only issues) have any admissible evidence to support them. (See Code Civ. Proc., § 437c(b)(3), (c), (d); rule 3.1350(e)(3) of the California Rules of Court.) Moreover, Defendant failed to file a separate statement that is actually responsive to Plaintiff’s separate statement. (See Code Civ. Proc., § 437c(b)(3); Cal. R. Ct., rule 3.1350(e)(2).) Instead, Defendant filed the same Separate Statement of Disputed Facts twice.

In addition, while Defendant contends in her opposition that there are evidentiary defects with the declarations and documentary evidence submitted by Plaintiff, Defendant did not file written objections that comply with rule 3.1354(b) of the California Rules of Court. “Unless otherwise excused by the court on a showing of good cause, all written objections to evidence in support of or in opposition to a motion for summary judgment or summary adjudication must be served and filed at the same time as the objecting party's opposition or reply papers are served and filed.” (Cal. R. Ct., rule 3.1354(a).)

Breach of Contract

A breach of contract claim “requires a showing of ‘(1) the existence of the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff.’ [Citations.]” (D'Arrigo Bros. of California v. United Farmworkers of America (2014) 224 Cal.App.4th 790, 800.)

According to the moving papers, Defendant applied for and was issued a Wells Fargo credit card (“Subject Account”) ending in 8392. (UMF No. 1.) Pursuant to the terms of the parties’ agreement, Plaintiff would extend credit to Defendant whereby Defendant could charge goods, services, or obtain cash advances on the credit line. (UMF No. 4.) In exchange, Defendant was to repay the principal amount lent plus applicable interest and finance charges. (SUF No. 5.) Defendant breached the parties’ agreement by failing to make any payments after June 3, 2023 (at the latest—Defendant contends in her Response to Request for Admission No. 7 that the last payment was made in April 2023). (See UMF Nos. 11-12.) As a result, Plaintiff has been damaged in the amount of $11,148.56. (UMF Nos. 13-14.)

There is competent evidence to support each of the facts on which Plaintiff’s motion relies. In the declaration from Plaintiff’s qualified witness, the descriptions regarding the bases of the declarant’s knowledge are sufficient to establish a foundation of familiarity with Plaintiff’s practices and computer systems and the authenticity of its records. (See People v. Lugashi (1988) 205 Cal.App.3d 632, 640; Evid. Code §§ 1271, 1552(a).)

As noted above, Defendant failed to file written objections to Plaintiff’s evidence, file a responsive separate statement, or file declarations or other evidence in opposition to the motion. Even if declarations had been provided, the lack of material factual allegations or disputes of Plaintiff’s Separate Statement would cause the opposition to fail. “This is the Golden Rule of Summary Adjudication: If it is not set forth in the separate statement, it does not exist,” (United Community Church v. Garcin (1991) 231 cal.App.3d 327, 337; application to opposition, see Teselle v. McLoughlin (2009) 173 Cal.App.4^th 156, 173.)

Common Counts: Money Lent

“The three elements of a claim on money lent are that the money was delivered to the defendant, the money was intended as a loan, and the loan has not been repaid.” (42 C.J.S. Implied Contracts § 2.)

Plaintiff sets forth the following facts to support its money lent claim:

Defendant was issued a credit card account by Plaintiff. (SUF No. 15.) Pursuant to the agreement between the parties, money was lent to Defendant which permitted Defendant to make charges on the Subject Account. (SUF No. 16.) In exchange, Defendant was to repay the principal amount of the loan, plus interest and finance charges. (SUF No. 17.) Defendant made charges to the credit card. (See SUF No. 18.) Defendant made partial repayments but still owes Plaintiff the sum of $11,148.56. (See SUF Nos. 19-21.)

Through these facts and the supporting evidence, Plaintiff has met its initial burden of proof. As explained above, Defendant has failed to show that a triable issue of material fact or defense exists as to the cause of action. (See Code Civ. Proc., § 437c(p)(1).)

Common Counts: Money Paid

“Generally, one who has been compelled to pay out money which another in good conscience and equity should have paid, or should have prevented his or her being required to pay, may recover from that other the money so paid.” (42 C.J.S. Implied Contracts § 3.)

Here, Plaintiff contends that it issued Defendant a credit card. (SUF No. 22.) Pursuant to the agreement between the parties, money was paid to Defendant which permitted Defendant to make charges on the Subject Account. (SUF No. 23.) In exchange, Defendant was to repay the principal amount of the loan, plus interest and finance charges. (SUF No. 24.) Defendant made charges to the account and still owes Plaintiff the sum of $11,148.56. (See SUF Nos. 25-27.)

Again, Plaintiff has met its initial burden of proof, and there is no effective opposition. 

Common Counts: Open Book Account

“A ‘book account’ is defined as a ‘ “detailed statement, kept in a book, in the nature of debit and credit, arising out of contract or some fiduciary relation.” It is, of course, necessary for the book to show against whom the charges are made. .... It must also be made to appear in whose favor the charges run.’ [Citations.] A book account may furnish the basis for an action on a common count ‘ “... when it contains a statement of the debits and credits of the transactions involved completely enough to supply evidence from which it can be reasonably determined what amount is due to the claimant.” ’ [Citations.] [¶] A book account is described as ‘open’ when the debtor has made some payment on the account, leaving a balance due.” (Interstate Group Administrators, Inc. v. Cravens, Dargan & Co. (1985) 174 Cal.App.3d 700, 708.)

Here, Plaintiff sets forth undisputed facts stating the following:

Defendant was issued a credit card account by Plaintiff. (SUF No. 28.) Defendant was permitted to incur charges on the account. (SUF No. 29.) In exchange, Defendant was to repay the principal, interest, and finance charges. (SUF No. 30.) Plaintiff kept a written account of the debits and credits. (SUF No. 31.) Monthly account statements were sent to Defendant. (SUF No. 32.) Defendant made charges on the card. (SUF No. 33.) There is no record of any unresolved disputes between the parties regarding the charges. (SUF No. 34.) Defendant’s last payment was made on June 3, 2023 (or, according to Defendant’s Responses to Request for Admission No. 7, April 2023), and Defendant still owes Plaintiff $11,148.56. (SUF Nos. 35-36.)

These facts are sufficient to establish an open book account with a balance of $11,148.56 still owing. Accordingly, Plaintiff has met its initial burden as to an open book account. Defendant has not provided any evidence in opposition to the motion.

Common Counts: Account Stated

“The essential elements of an account stated are: (1) previous transactions between the parties establishing the relationship of debtor and creditor; (2) an agreement between the parties, express or implied, on the amount due from the debtor to the creditor; (3) a promise by the debtor, express or implied, to pay the amount due. [Citations.]” (Zinn v. Fred R. Bright Co. (1969) 271 Cal.App.2d 597, 600.)

Here, Defendant applied for and was issued a credit card account. (SUF No. 37.) Defendant was permitted to make charges on the account and agreed to repay the principal, interest, and balance. (SUF Nos. 38-40.) Plaintiff kept a written account of the debits and credits involved through monthly account statements, and there are no unresolved disputes regarding the charges. (See SUF Nos. 41-43.) Defendant still owes Plaintiff the sum of $11,148.56. (SUF No. 44.)

Based on these facts, Plaintiff has met its initial burden regarding account stated. And as there is no evidence in opposition, the Plaintiff’s position prevails.

Costs and Proposed Judgment

The Court has reviewed the concurrently filed memorandum of costs and proposed judgment. The Court will sign the proposed judgment.

Trial Date Vacated

The trial set for June 27, 2025, in D21 is VACATED.

The following is the tentative ruling for a case calendared before Judge Stacy P. Speiller in Department 22:

CV-24-008419 – GUTIERREZ, ROBERTO vs NINO, ARTURO – Defendant’s Motion to Set Aside Default and Default Judgment if Any - DENIED as MOOT.

By way of this motion, Defendant seeks to set aside entry of default and default judgment (if any). The court file indicates that no default or default judgment has been entered in this case. Therefore, the motion is DENIED as MOOT. Defendant to file his proposed answer within five court days.

The following are the tentative rulings for cases calendared before Judge John D. Freeland in Department 23:

CV-23-006577 – MARTINEZ, KLAUDIA vs RANCHO FRESCO MODESTO INC – Cross-Defendant Quality Security Service’s Demurrer to Cross-Complaint of Rancho Fresco Modesto, Inc. – SUSTAINED, with leave to amend.

The Court finds that the pleading fails to state facts supporting the elements of the alleged causes of action and is uncertain. (Code Civ. Proc. § 430.10(e), (f).)

Specifically, the allegations fail to state facts supporting the existence of a duty owed by Cross-Defendant in connection with the incident alleged in Plaintiff’s Complaint. Moreover, while the pleading alleges the existence of relevant obligations arising from a written agreement, neither the contract itself nor the specific provisions at issue are included in the Cross-Complaint.

Lastly, the Court notes that the existence of an express written agreement to indemnify, if properly alleged, eliminates the viability of equitable/implied indemnity or contribution theories based on Cross-Defendant’s alleged status as a joint tortfeasor, as the scope of the obligation must be defined by the contract. (See, e.g. Oltmans Construction Co. v. Bayside Interiors, Inc. (2017) 10 Cal.App.5^th 355, 361-362.)  

Cross-Complainant shall submit an amended pleading within 20 days.

CV-24-005282 – V, B vs JOSEPH, YULIA – a) Plaintiff B.V.’s Motion to Compel Defendant Yulia Joseph to Provide Further Responses to Special Interrogatories, Set One and Request for Sanctions - CONTINUED b) Plaintiff B.V.’s Motion to Compel Yulia Joseph to Provide Further Responses to Requests for Production of Documents, Set One and Request for Sanctions - CONTINUED c) Plaintiff A.V.’s Motion to Compel Defendant to Provide Further Responses to Requests for Production of Documents, Set One, and Request for Sanctions – CONTINUED.

a-c) These matters are CONTINUED, on the Court’s own motion, to March 6, 2025, at 8:30 a.m. in Department 23, to be heard concurrently with the additional related motion set for hearing on that date.

The following are the tentative rulings for cases calendared before Judge Sonny S. Sandhu in Department 24:

CV-21-001993 – GARCIA, LEROY vs GREGG, CYNTHIA ANN – Defendant’s Motion for Protective Order Re: Apex Employees – GRANTED.

The Court finds that Plaintiff has failed to discharge his burden of providing specific factual evidence from which court may determine that the corporate protocols and policies and related information sought by Plaintiff beyond that obtained from Plaintiff’s prior five (5) hour and thirty -six (36) minute deposition of Mr. Mills, Defendant’s Safety Manager, are relevant to Plaintiff’s cause of cause of action or allegations against Defendant and has failed to establish that the information sought is admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. ((Civ. Proc. Code § 2017.010; Calcor Space Facility, Inc. v. Superior Ct., (1997) 53 Cal. App. 4th 216, as modified (Mar. 7, 1997): Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, review filed, review denied).

The Court also finds that Plaintiff has not discharged his burden of demonstrating that Defendant’s apex employees, Ed Berlier, Sr. Vice President and General Manager, Stephanie Fuller, Vice President, and Dave Cox, Construction Manager unique or superior personal knowledge of discoverable information and that less intrusive methods of discovery have been exhausted, that warrant the deposition of Defendant’s said employees. (Liberty Mutual Ins. Co. v. Superior Court, (1992)10 Cal.App.4th 1282).

The Court therefore further finds that said the further deposition of Mr. Mills as well as the depositions of Ed Berlier, Sr. Vice President and General Manager, Stephanie Fuller, Vice President, and Dave Cox, Construction Manager would create unwarranted annoyance, embarrassment, or oppression, or undue burden upon said persons.

Accordingly, Defendant’s motion is granted.

The Court hereby orders that the depositions of Mr. Berlier, Ms. Fuller, and Mr. Cox not be taken at all, and the deposition of Alex Mills be deemed concluded. (Civ. Proc. Code §§ 2025.420; 2017.020).

CV-21-004330 – LEFANTY, LISA vs KAISER FOUNDATION HOSPITALS – Plaintiff’s Motion for Preliminary Approval of Class Action Settlement – HEARING REQUIRED.

Subject to the inclusion of the relevant deadlines in the parties’ Proposed Preliminary Approval Order the Court is inclined to find as follows:

Good cause appearing to the satisfaction of the Court, the class is certified for settlement purposes only in accordance with Cal. Rules of Ct., rule 3.769(c).

The Court finds the proposed settlement is within the range of reasonableness and deemed to be presumptively valid, subject to any objections that may be heard at the final fairness hearing and subject to final approval by this Court. 

The class counsel, class representative and claims administrator are hereby preliminarily approved and appointed as set forth in the motion. The Court sets the following deadlines relative to this matter:

3-17-25	Defendant shall provide Class Information to Administrator.
4-24-25	Administrator shall mail Class Notice to Class Members.
6-13-25	Class Deadline for Submission of Opt-Out Notices, Objections or Workweek Disputes.
6-30-25	Class Deadline for Submission of Opt-Out Notices, Objections or Workweek Disputes for Remailed Notices.
7-14-25	Deadline for Class Administrator to Submit Declaration of Compliance and Due Diligence.
7-17-25	Deadline for Class Counsel to file Motion for Final Approval and submit due diligence declaration from Administrator.

A final fairness hearing in this matter shall be set for August 12, 2025, at 8:30 a.m. in Department 24 of this Court.  The Class Notice shall be revised to reflect the date of the final fairness hearing and the corresponding deadlines.

CV-23-007007 – HAMMERSTROM, BRUCE vs VASQUEZ, GEORGE – Defendant’s Motion to Strike – CONTINUED, on the Court’s own motion.

The Court finds that Plaintiff’s First Amended Complaint was improperly filed without the required leave of Court and is therefore subject to being stricken. (Civ. Proc. Code §§ 436, 472; Stafford v. Ballinger (1962) 199 Cal.App.2d 289).

The Court however finds that this motion is not supported by the required meet and confer declaration. (Code of Civil Procedure § 435.5(a)(3)).

Accordingly, this matter is continued to March 21, 2025, at 8:30 am in Department 24 for the required meet and confer to take place.

CV-24-004413 – ONEMAIN FINANCIAL GROUP LLC vs VIADO, HOLLY A – Plaintiff’s Motion to Deem Requests for Admissions Admitted and Non-Appearance - GRANTED, unopposed.

The Court finds that Defendant has failed to timely respond to Plaintiff’s Requests for Admissions, Set One, served on her on August 14, 2024, without substantial justification.

Plaintiff’s motion is accordingly granted.

Accordingly, all objections to said Requests for Admissions by Defendant are hereby waived. (Code of Civil Procedure §2033.280(a). Furthermore, said Request for Admissions, Set One, are hereby deemed admitted for all purposes including trial.    (Civ Proc. Code §§.2033.010, 2033.020, 2033.250, 2033.280; St. Mary v. Superior Court (2014) 223 Cal.App.4th 762).

The following is the tentative ruling for a case calendared before Commissioner Jared D. Beeson in Department 19 located at the Turlock Division at 300 Starr Avenue, Turlock, CA:

UD-25-000148 ALTAYYAR vs MCTEAR, EDWARD, Jr – Motion to Quash Service of Summons – HEARING REQUIRED.