January 22, 2025

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

CV-22-004909 – ZEPEDADIAZ, ESTEFANI vs GENERAL MOTORS LLC – Defendant’s Motion to Tax Counsel’s Memorandum of Costs – DENIED in its entirety.

The Motion Is Untimely

Preliminarily, the Court notes that the motion appears to be procedurally defective. Rule 3.1700(b) of the California Rules of Court states, “Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum. If the cost memorandum was served by mail, the period is extended as provided in Code of Civil Procedure section 1013. If the cost memorandum was served electronically, the period is extended as provided in Code of Civil Procedure section 1010.6(a)(4).”

Here, the memorandum of costs was filed and served electronically on November 7, 2024. The motion to tax costs was timely served on November 22, 2024, but was not filed until December 2, 2024. The Court nonetheless analyzes the merits.

Overview of Motion

Defendant is challenging two areas of costs: (1) jury fees in the amount of $150; and (2) filing fees in the amount of $217.02 for select filings.

Applicable Standards

Code of Civil Procedure § 1032(b) states, “Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” However, “[a]llowable costs” must be “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” (Code Civ. Proc., § 1033.5(c)(2).)

“If the items appearing in a cost bill appear to be proper charges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary. On the other hand, if the items are properly objected to, they are put in issue and the burden of proof is on the party claiming them as costs. [Citations.] Whether a cost item was reasonably necessary to the litigation presents a question of fact for the trial court and its decision is reviewed for abuse of discretion. [Citation.] However, because the right to costs is governed strictly by statute [citation], a court has no discretion to award costs not statutorily authorized. [Citations.]” (Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 761, 774 [emphasis in original].)

Jury Fees

Code of Civil Procedure § 1033.5(a)(1) specifically allows “[f]iling, motion, and jury fees” as costs. As Plaintiffs point out in their opposition, the jury fees must be paid “on or before the date scheduled for the initial case management conference in the action,” with certain exceptions not applicable here. (See Code Civ. Proc., § 631(c).)

The Court views this claim as bordering on the frivolous.

Filing costs

As set forth above, filing fees are prima facie allowable costs. Therefore, Defendant had the burden to show that the costs were unnecessary. The mere assertion that the contested filings were “[r]outine administrative filings” that did not advance Plaintiffs’ case (12/2/24 Mem., at p. 5) is insufficient. (See Rappenecker v. Sea-Land Service, Inc. (1979) 93 Cal.App.3d 256, 266 [“Defendant's mere statements in the points and authorities accompanying its notice of motion to strike cost bill and the declaration of its counsel are insufficient to rebut the prima facie showing.”]; cf. Doe v. Los Angeles County Dept. of Children & Family Services (2019) 37 Cal.App.5th 675, 694, as modified (July 18, 2019) [“Doe presents no evidence to show the fees sought to be recovered by Defendants are courier fees, beyond the bald assertion that they are. This is insufficient to meet her burden to show the cost was not proper.”].) Indeed, Defendant’s supporting memorandum does not set forth any facts to support the contention that these filings were unnecessary. Moreover, Defendant has taken the holding of Ladas v. California State Auto Assn. (1993) 19 Cal.App.4th 761, out of context. The expenses challenged in Ladas had nothing to do with “routine administrative filings.” Rather, the challenged costs were attorney lunches; trial exhibits, binders, and tabs; faxes; local travel expenses; delivery charges; computer legal research; and Department of Insurance fees. (See id. at pp. 774-776.)

With that stated, if a filing is not “reasonably necessary to the conduct of the litigation,” the fee for the filing can and should be disallowed. (See Perko's Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal.App.4th 238, 244 [holding that a court “may disallow costs, including filing fees, which it determines were incurred unnecessarily”].)

The only information the Court has to go on here are the titles of the challenged documents—“Notice of Change of Address,” “Pls’ Notice of Posting Jury fees,” “Joint Status Statement,” “Joint Stipulation to Continue Trial,” and “Notice of Settlement. These filings appear “reasonably necessary to the conduct of the litigation.” (Code Civ. Proc., § 1033.5(c)(2).)

Accordingly, the Court also denies the motion as to this request.

CV-24-005723 – SALAZAR, GRICELA O MARTINEZ vs BELLO INVESTMENTS LLC – a) Defendant’s Demurrer to Plaintiff’s First Amended Complaint – OVERRULED in its entirety; b) Defendant’s Motion to Strike Portions of Plaintiff’s Complaint – GRANTED in part without leave to amend and DENIED in part.

a) For the reasons set forth below, the demurrer is OVERRULED in its entirety.

Request for Judicial Notice

The Court declines Plaintiff’s request for judicial notice as the Court need not make such a ruling to consider papers in the instant case. (See Bienville Water Supply v. Mobile (1902) 22 S.Ct. 820.)

Legal Standards

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) “We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.” (Serrano v. Priest (1971) 5 Cal.3d 584, 591.) “The complaint must be construed liberally by drawing reasonable inferences from the facts pleaded.” (Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 517, as modified (Feb. 28, 2001).)

Uncertainty: Identity of Accused Defendant

The demurrer based on uncertainty as to which Defendant is accused of doing what is overruled. Plaintiff added allegations to her pleading explaining her understanding regarding the roles of the two Defendants. Moreover, the knowledge of which Defendant was responsible for maintaining the property at various times while Plaintiff was renting is information that is within the Defendants’ own knowledge. “It is an old and elemental rule of pleading that a demurrer for uncertainty does not lie if what is sought is a statement of matter already within the knowledge of the demurring party. Even under the strict rules of common law pleading, one of the canons was that less particularity is required when the facts lie more in the knowledge of the opposite party than of the party pleading.” (Turner v. Milstein (1951) 103 Cal.App.2d 651, 658; see also Gressley v. Williams (1961) 193 Cal.App.2d 636, 644 [citing same]; Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616 [holding that a demurrer for uncertainty will only be sustained where the pleading is so unintelligible, a defendant cannot reasonably respond].)

Sixth Cause of Action

The elements of a tort for beach of the warranty of habitability are: (1) existence of a material defective condition; (2) notice to the landlord; (3) a reasonable time to correct; and (4) damages. (See Peviani v. Arbors at California Oaks Property Owner, LLC (2021) 62 Cal.App.5th 874, 891.)  Intentional or reckless conduct is not a required element.

The allegations related to the ceiling collapse are, in and of themselves, enough for the sixth cause of action to survive demurrer. Although Defendants contend that Plaintiff did not give them a reasonable amount of time to repair the damage as there was only one week between the collapse and her moving out, that requires extrinsic facts to determine.

In demurring to the sixth cause of action, Defendants minimize the event of the ceiling collapse and instead focus on the vaguer allegations found in Paragraphs 10 and 11 of the FAC. But the test for a general demurrer is whether the complaint states a cause of action under any theory. (See Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38, as modified (Sept. 23, 1998).) And the allegations regarding the ceiling collapse state a cause of action for breach of the warranty of habitability.

Ninth Cause of Action

Regarding the ninth cause of action, Defendants contend that “there are insufficient facts to show that there were any habitability issues, that Defendants refused to repair the alleged conditions in the unit, or that there was any intentional, fraudulent or deceitful conduct on the part of any of the Defendants. In short, there are no facts supporting any action taken by Defendants that would require a refund of the rents paid by Plaintiff under the lease. Plaintiff has failed to plead sufficient facts to state such a cause of action.” (12/17/24 Mem., at p. 11.)

For the reasons set forth above, the argument that there were no habitability issues fails. Furthermore, “[t]he complaint must be construed liberally by drawing reasonable inferences from the facts pleaded.” (Rodas v. Spiegel (2001) 87 Cal.App.4th 513, 517, as modified (Feb. 28, 2001).) Here, the reasonable inferences from the pleaded facts are (1) Defendants refused to timely repair problems with the unit; and (2) Defendants engaged in intentional, fraudulent or deceitful conduct by holding themselves out as landlord/property managers but then failed to comply with Civil Code § 1941.1 or the implied warranty of habitability.  

b) For the reasons set forth below, the motion to strike is GRANTED in part without leave to amend and DENIED in part.

Request for Judicial Notice

The Court declines Plaintiff’s request for judicial notice as unnecessary. (See Bienville Water Supply v. Mobile (1902) 22 S.Ct. 820.)

Punitive Damages

As the Court noted in its ruling on the motion to strike portions of the original complaint, Civil Code section 3294 requires specificity in punitive damages allegations. And here, the allegations are still insufficient to meet the standard of showing fraud, malice, or oppression by specific acts. While the problems are not as severe as in the original complaint, the argument still fails as Plaintiff – despite the Court’s citation to the 1987 amendment to section 3294 in the original motion to strike – continues to cite pre-amendment cases without explanation as to why they apply. Further, Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 920 is based on a nuisance claim, which is no longer alleged. However, the loss of the nuisance claim occurred due to the failure to differentiate it from the negligence claim.

Nonetheless, the pre-1987 cases are viewed with a different standard, and Plaintiff declined to address the Court’s concerns upon resubmission.

The additional evidence from the prior demurrer is that after a ceiling collapse, Plaintiff’s requests for temporary accommodation and discussion of her personal property from May 19 to May 30, 2024. The timeline outlined is:

May 17: Ceiling collapse. Plaintiff notified Defendants of the collapse.

May 17: Plaintiff vacated the premises. Defendant sent cleaning and maintenance personnel on May 17-18.

May 24: Plaintiff vacated the premises.

May 19 to May 30: Plaintiff makes inquiries about alternative housing and money for her property.

The Court finds that the failure to provide immediate recompense for personal property does not constitute a grounds for punitive damages. The remainder of the “actual or constructive knowledge” of the water intrusion which presumably caused the ceiling collapse and the poor condition of the ceiling to begin with simply isn’t outlined with the specificity required for punitive damages.

The FAC also has Plaintiff vacating the premises on both May 17 and May 24, and it appears that she found alternate housing under circumstances not described.

The Court grants the motion to strike Paragraphs 19, 49, and Prayer F.

Plaintiff has not indicated what improvements can be made to the complaint, and therefore leave to amend is denied.

Photographs and Related Allegations

As for Defendants’ request to strike the photographs attached as exhibits to the FAC and related allegations, the Court denies the motion. The photographs appear to be relevant, and there is no undue prejudice.

CV-24-009346 – PHOMPONG, HON vs GORDON, STEVEN – Petitioner’s Petition for Alternative Writ of Mandamus – HEARING REQUIRED.

At the hearing on this matter, the Court will inquire as to the status of the administrative record and is inclined to CONTINUE this matter to February 26, 2025, at 8:30 am in Department 21 for the submission of the record.

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

CV-23-003119 – MARTIN, LINDA vs GOLDEN AGE VII – Plaintiff’s Motion to Compel Further Responses to Special Interrogatories Set One, and Request for Monetary Sanctions against Defendant – CONTINUED to January 31, 2025.

This matter is CONTINUED on the Court’s own motion to January 31, 2025, at 8:30 am in Department 22 for further review and consideration.

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

2016283 – J MARCHINI & SON INC vs DUARTE NURSERY INC – Defendants’ Motion to Change Venue or to Continue Trial – HEARING REQUIRED.

The Court finds that Defendant has demonstrated the existence of substantial negative media attention for a relatively short period of time in connection with Mr. Duarte’s political campaigns in 2022 and 2024.  However, in assessing the relationship of such information to Duarte Nursery, Inc.’s claim of reasonable likelihood that an impartial trial cannot now be held in Stanislaus County, the Court is not prepared to conclude that Defendant has carried its burden under Code Civ. Proc. § 397(b) at this time.

Therefore, the Court chooses to follow the procedure which was approved by the appellate court in People v. Mackey (2015) 233 Cal.App.4^th 32, deferring ruling on the instant motion until voir dire has commenced and the Court is able to assess whether the responses of potential jurors confirm the defense’s assertions with regard to the lingering prejudicial impact of the negative ad campaign.

Toward that end, the Court intends to utilize precautionary measures similar to those described in People v. Mackey, supra, in order to maximize its ability to fully evaluate the issues presented herein in the context of jury selection.  Counsel shall meet and confer with regard to the use of such measures and shall appear at the hearing to discuss the steps to be taken to ensure the empaneling of an impartial jury.

CV-22-002652 – MEDINA, ESTRELLA vs GUTIERREZ, MANUEL – Defendant’s Motion for Summary Judgment, or in the alternative, Summary Adjudication of Issues against Plaintiff Estrella Medina – DENIED.

The request for summary adjudication of the First Cause of Action for Discrimination is DENIED as MOOT, in view of Plaintiff’s dismissal of that cause of action on 1-3-25.

With regard to the issue of claim or issue preclusion based on the arbitration proceeding, the Court finds that these principles do not apply in this instance, since Plaintiff was not a party to that proceeding, nor was she in privity with any party thereto.  Moreover, there is no evidence before this Court that the scope of the arbitration proceeding encompassed Plaintiff’s statutory rights under the FEHA.

With regard to the request for summary adjudication of the Second Cause of Action for Harassment pursuant to the FEHA, the Court finds that Defendant has carried its initial burden of producing evidence supporting judgment in its favor on that issue. The burden then shifts to Plaintiff to submit admissible evidence demonstrating the existence of material factual disputes preventing judgment in Defendant’s favor. Plaintiff has carried her burden in this regard.

Specifically, the Court finds that a material factual dispute exists with regard to whether the offending employees meet the definition of supervisor as that term is used in Gov. Code § 12926(t)) and the relevant case authorities.  (See, at a minimum, UMFs 7-10, 18, 20-21 and Plaintiff’s Additional Facts 16, 18, and 21.) Even if the offending employees were not supervisors, the Court further finds the existence of material factual disputes as to whether Defendant, through its managerial personnel, was aware of the offending conduct and unreasonably failed to act prior to October 2020. (See, at a minimum, UMF 86 and Plaintiff’s Additional Facts 4, 10, 27, 35, and 49-50.) Lastly, the Court finds evidence of severe and pervasive harassment that was both objectively and subjectively offensive under the circumstances and caused injury to Plaintiff. (See, at a minimum, UMF 77; Plaintiff’s Additional Facts 14, 22, 40, 76.)

CV-23-004174 – MACEDONIO, HERNESTO vs REYESGUILLEN, ISMAEL – Defendants’ Motion to Exclude Plaintiffs’ Expert Witness Ardalan Alen Nourian MD from Testifying – DROPPED.

The Court presumes that the matter is MOOT, in view of the fact that no party appeared at the trial on 1-7-25.

CV-24-002704 – TAMEZ, MARIA LYDIA vs LONGORIA, CESAR – a) Defendant and Cross-Complainant Cesar Longoria’s Motion to Compel Responses to Form Interrogatories (Set One) from Plaintiff and Cross-Defendant Juanita Longoria Ornelas, and for Sanction; b) Defendant and Cross-Complainant Cesar Longoria’s Motion to Compel Responses to Special Interrogatories (Set One) from Plaintiff and Cross-Defendant Juanita Longoria Ornelas, and for Sanctions –

(a), (b) GRANTED, and unopposed.

The opposing party shall serve code-compliant responses to each of the discovery devices at issue within thirty (30) days of notice of entry of this Order. Opposing party shall pay monetary discovery sanctions of $500 for each motion at issue, for a total of $1000, payable to counsel of record for moving parties within thirty (30) days of notice of entry of this Order. Moving parties shall prepare the final order for the Court’s review and approval.

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

CV-21-001296 – SHAW, NOLAN vs SOZA, ASHLEIGH – Defendant’s General and Special Demurrer to Plaintiff’s Second Amended Complaint – SUSTAINED, with leave to amend.

The Court finds that Plaintiff’s Opposition herein was not timely filed, However, the parties subsequently stipulated to continue the hearing to which ultimately gave Defendants more than the statutory five (5) court days to file its reply. The Court is therefore of the view that Defendants were not prejudiced by Plaintiff’s untimely filing.  The Court hereby exercises its discretion to hear this demurrer.

The Court also finds that whether or not Teri Nascimento is listed on the Statement of Information of Villa Fran Mandel is not determinative of her ability to file the present demurrer.

The Court also finds that the allegations in Plaintiff’s First Amended Complaint fail to clothe Plaintiff, in his capacity as the Personal Representative of the Estate of Stacey Carlson, with standing to bring the present action as said allegations do not indicate that Plaintiff is a creditor in respect of whom the transfers at issue were made “with actual intent to hinder, delay, or defraud” Plaintiff. Said transfers could not have been made with the intent to defraud the Estate of Stacey Carlson which Plaintiff represents. (Civ. Code §§ 3439.01 (e), 3439.04 (a); Lo v. Lee (2018) 24 Cal. App. 5^th 1065; Kalway v. City of Berkeley (2007) 60 151 Cal.App.4th 827). Therefore, Plaintiff lacks standing in his capacity as the personal representative of the Estate of Stacey Carlson to bring this action pursuant to the Uniform Voidable Transfer Act.

A lack of standing is a jurisdictional defect to an action that mandates dismissal and is not waived by defendant's failure to raise it by demurrer or answer. Contentions based on a lack of standing involve jurisdictional challenges and may be raised at any time in the proceedings, even for the first time on appeal. (Cummings v. Stanley, (2009) 177 Cal. App. 4th 93) Therefore any prior failure by Teri Nascimento or Villa Fran Mandel, the moving Defendants herein to raise this issue of standing has no effect and is not prejudicial.

The Court notes that at paragraph 21 of Plaintiff’s Second Amended Complaint he states “Judgment Debtor Stacey Carlson, individually and through her Carlson Family Trust, and with her father, Robert Carlson, took several measures to defraud the Judgment Creditor, the Estate of Lonnie Ashlock.”

Furthermore, the Court finds that any attempt to bring this action on behalf of the Estate of Lonnie Ashlock as creditor albeit indirectly, places Plaintiff in privity with the Estate of Lonnie Ashlock and subjects Plaintiff’s Second Amended Complaint to the defenses of collateral estoppel and issue preclusion as already previously determined by the Court.

As to the omission of Teri Nascimento as a defendant in the Second Amended Complaint, the Court finds that the  legal effect of omitting a party from a subsequently amended complaint is that it operates as a dismissal of that party from the action, typically without prejudice, allowing for the possibility of reinstating the party in a future amended complaint, subject to the statute of limitations..(Mac v. Minassian, (2022)76 Cal.App.5th 510 ; Fireman's Fund Ins. Co. v. Sparks Construction, Inc., (2004)114 Cal.App.4th 1135); Kuperman v. Great Republic Life Ins. Co., (1987)195 Cal.App.3d 943). Therefore, Teri Nascimento’s omission from the Second Amended Complaint operates as a dismissal as to her without prejudice.

Defendant’s Request for Judicial Notice is hereby granted.  (Code of Civil Proc. § 430.30, and Evidence Code §§451(f) and 452(d) and (h))

Plaintiff’s first Request for Judicial Notice which accompanied its opposition herein is hereby granted. (Code of Civil Proc. § 430.30, and Evidence Code §§451(f) and 452(d) and (h)).

Defendants’ objections to the exhibits attached to Plaintiff’s Counsel’s declaration are hereby sustained for failure to follow the procedure for requesting judicial notice.

Plaintiff’s Second Request for Judicial Notice is denied on grounds of irrelevance to the present demurrer.

Plaintiff is reminded that a demurrer is not the appropriate procedure for determining the truth of disputed facts. (Fremont Indemnity Co. v. Fremont General Corp., (2007))148 Cal.App.4th 97).

Accordingly, Defendants’ demurrer to Plaintiff’s Second Amended Complaint is sustained with leave to amend.

CV-22-003005 – MENDOZA, BRENDA LETICIA VAZQUEZ vs GENERAL MOTORS LLC – Plaintiff’s Motion for Attorney Fees, Costs & Expenses Pursuant to Civil Code 1794 (D) – GRANTED, in part, DENIED, in part.

The Court finds Plaintiff’s motion herein to be timely given that a judgment has not been rendered nor entered herein, and that the parties stipulated in August 2024, to continue the hearing on Court’s Order to Show Cause due to issues with coming agreeing on Plaintiff’s attorney fees and costs. By said stipulation, Defendant waived any rights to assert any delay by Plaintiff in bringing this motion.  (Civ. Proc. Code § 998 (1); Catlin Ins. Co., Inc. v. Danko Meredith Law Firm, Inc. (2022) 73 Cal. App 5^th, 764, review denied)

The Court finds that Plaintiffs are entitled to their attorney’s fees, expenses and costs “reasonably incurred …. in connection with the commencement and prosecution of [this] action as the prevailing party” herein and per the terms of the parties’ Settlement which was accepted by Plaintiffs on February 1, 2024. (Civ. Code § 1794 (d); (Melnyk v. Robledo (1976) 64 Cal.App.3d 618, 623; Davis v. City of San Diego (2003) 106 Cal.App.4th 893, 903; Goglin v. BMW of N. Am., LLC, (2016) 4 Cal. App. 5th 462; Nichols v Taft, (2007) 155 Cal. App. 4^th 1233; Ketchum v. Moses (2001) 24 Cal.4th 1122, 1133).

The Court therefore finds that Plaintiffs are entitled to reasonable attorney’s fees for Quill and Arrow of $26,781.50 for Castruita of $39,685.50, (totaling $66, 467) with costs of $3,595.42

Plaintiff’s objections to the declaration of Cameron Major are sustained. (Evidence Code §352; CCP § 2015.5).

CV-23-005348 – CSE DIVERSIFIED INSURANCE SERVICES vs HERR, STEPHANIE – Plaintiff’s Motion to Deem Request for Admissions Admitted, and Sanctions – Monetary Sanctions - GRANTED, unopposed.

The Court finds that Defendant failed to timely respond to Plaintiff’s Request for Admissions propounded on April 1, 2024, without substantial justification.

Plaintiff’s motion is hereby granted.

Accordingly, all objections to said Requests for Admissions by Defendant are hereby waived. (Code of Civil Procedure §2033.280(a). Furthermore, Numbers 1-4 in Plaintiff’s 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).

Monetary sanctions of $360 are awarded in favor of Plaintiff, payable to Plaintiff’s Counsel within fourteen (14) days of the date of this order.

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-24-001437 – REENDERS, CHRISTINA LIN vs BROWN, JAMES D – Defendant’s Demurrer – HEARING REQUIRED.