AMENDED April 10, 2025

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

9000588 – DICKMEYER, CARIN vs CHARTER COMMUNICATIONS LLC – a) Plaintiff’s Motion to Compel Responses to Request for Production, Set One and Request for Monetary Sanctions – HEARING REQUIRED; b) Plaintiff’s Motion to Compel Responses to Form Interrogatories, Set One Propounded on Defendant and Request for Monetary Sanctions – HEARING REQUIRED.

a-b) The Court is likely to fashion specific orders to ensure that the case is ready for trial. The Court has some questions about exactly what remains outstanding and what a proper cure to any omissions is.

CV-22-004909 – ZEPEDADIAZ, ESTEFANI vs GENERAL MOTORS LLC – Plaintiff’s Motion for Attorney’s Fees - GRANTED in the reduced amount of $35,510.

The Court disregards any offers to resolve this dispute prior to hearing.

Plaintiff asks for the following:

Susana Alatorre 0.4 x $225/hour $90.00

Jessica Anvar 1.1 x $550/hour $605.00

Jordan G. Cohen 11.3 x $540/hour $6,102.00

David Gomez 1.7 x $225/hour $382.50

Iraida M. Gonzalez 68.0 x $435/hour $29,580.00

Daisey Hernandez 1.5 x $225/hour $337.50

Richard Rodriguez 7.4 x $225/hour $1,665.00

Jennifer Romo 3.9 x $225/hour $877.50

Natalie Sanchez 2.1 x $225/hour $472.50

Silvia Vasquez 0.5 x $225/hour $112.50

For a total of $40,224.50, plus an additional $2,700 for the reply brief and the potential hearing.

The Court is well-placed to determine local fees. As the parties are already aware, the Court is skeptical of past fee awards when the submissions do not include all fee awards granted, modified, or denied. Assuming without deciding that the other counties’ fee awards are admissible, the Court finds those counties to be differently situated than Stanislaus County. Citations to “Silicon Valley fees,” are unhelpful to the Court.

The Court believes Defendant has carefully considered the appropriate fees without overreaching and grants the hourly rates proposed by Defendant in their entirety.

The Court strikes the following:

Six hours of paralegal time for various overages (repeated efforts for verifcations, clerical work, other miscellaneous work. Items like requesting 0.9 hours to determine how to calendar a motion are stricken.)

0.5 hours for attorney Gonzalez for familiarizing herself with Rule of Court 3.724. Experienced attorney rates assume knowledge of repeated events.

3 hours of time for requests for discovery and their preparation.

The Court does not make reductions for answering discovery. The Court is generally satisfied with Plaintiff’s explanations for the time spent. The Court agrees that templates assist in speeding the process.

The amount for the reply is reduced to 5.5 hours at $350 per hour.

This totals:

Iraida M. Gonzalez 64.5 hours at $380 per hour

Jessica Anvar 1.1 hours at $550

Jordan G. Cohen 11.3 hours at $525

Paralegals: 14.5 hours at $175

Reply 5.5 hours at $350.

The total amount is $35,510.

CV-23-005729 – LEONETTI, MARK vs GENESIS CARE USA OF CALIFORNIA – Plaintiff’s Motion to Strike Costs – GRANTED, in part; DENIED, in part.

The Court notes that Defendant concedes that certain of the challenged costs, represented in Items 8, 11, and 14 of the cost memorandum, are subject to striking. Therefore, the Court grants the motion as to those items, which total $1,691.48.

Plaintiff herein bears the burden of demonstrating that the challenged costs are unrecoverable,  excessive and/or unreasonable, such that the burden shifts to Defendant to show that the items charged were proper and incurred for matters necessarily relevant and material to the issues involved in the action.  (Nelson v. Anderson (1999) 72 Cal.App.4^th 111, 131; Oak Grove School Dist. V. City Title Ins. Co. (1963) 217 Cal.App.2d 678, 698.)  The Court acts within its discretion in determining whether costs are excessive and should be reduced.  (Levy v. Toyota Motor Sales, U.S.A., Inc. (1992) 4 Cal.App.4^th 807, 816-817.)

Therefore, the Court finds as follows with regard to the remaining challenged costs, represented by Items 2 and 15 of the cost memorandum:

The cost claimed in Item #2, representing Defendant’s nonrefundable jury fee deposit required by Code Civ. Proc. sect. 631(b), is not refundable and represents a proper item of recoverable costs herein. (Code Civ. Proc. sect. 631.3(c); Nasser v. Lakeridge Athletic Club (2014) 227 Cal.App.4^th 571, 576.)  Therefore, the motion is DENIED as to this item.

As to the costs claimed in Item 15, the Court finds that the amounts attributable to obtaining Plaintiff’s medical records via deposition subpoenas are recoverable and were reasonably and necessarily incurred in the defense of the action. (See, e.g. Nasser v. Lakeridge Athletic Club, supra, at 576-578.)  Therefore, the motion is DENIED as to these items.

As to the amount of $34.13 attributable to expenses incurred to deliver documents to Defendant’s expert via Federal Express, the Court finds that Plaintiff has properly called this item into question and Defendant has failed to offer any explanation or authorities justifying the recovery of the same. Therefore, the motion is GRANTED as to this item.

Therefore, the amount claimed in Defendant’s Memorandum of Costs shall be reduced by $1,725.61, for a total cost award of $4,756.66. The clerk shall enter the cost award on the judgment in this matter. (Cal. Rules of Ct., rule 3.1700(b)(4).)

The following are the tentative rulings for cases calendared before Judge Stacy P. Speiller in Department 22:

PR-21-001379 – IN THE MATTER OF THE MARY JESSIE SWANSON REVOCABLE TRUST – a) Trustee Nancy Adian's Demurrer to the Petition of Aleksandra Kaczmarczyk and Aldvin Schakanovich for Damages on Rejected Creditor's Claim - Originally Filed 03/04/25 – OVERRULED in part and SUSTAINED in part, with 20 days’ leave to amend; b) Motion to Reconsider California Code of Civil Procedure Section 1008 - Originally Filed 01/21/25 - DENIED.

a) Demurrer to the Verified Petition for Damages on the Rejected Creditor’s Claim

For the reasons set forth below, the demurrer is SUSTAINED as to the second cause of action, with 20 days’ leave to amend granted. The demurrer is otherwise OVERRULED.

Procedural Defects

The demurrer is procedurally defective in several respects. Although most of these defects are not fatal, the Court notes them for the parties’ reference.

First, the demurrer was late-filed. Although the Moving Party contends that the demurrer is timely because the Probate Code allows an interested party to object right up to the initial hearing on a petition, and a demurrer is an objection, this argument disregards the express language of Code of Civil Procedure § 430.40(a), which states that a demurrer is to be filed within 30 days after service of the initial pleading. With that stated, the Court notes that it has the discretion to hear an untimely demurrer, as long as it does not bias the substantive rights of any party. (See McAllister v. County of Monterey (2007) 147 Cal.App.4th 253, 281 [“Even assuming for argument's sake that the demurrer was filed late, the trial court nevertheless had discretion to entertain it….[¶].…The trial court may exercise this discretion so long as its action does ‘not affect the substantial rights of the parties.’ [Citation.]”.) Alternatively, the Court may treat an untimely general demurrer—i.e., a demurrer made under Code of Civil Procedure § 430.10(e)—as a motion for judgment on the pleadings. (See People v. $20,000 U.S. Currency (1991) 235 Cal.App.3d 682, 691 [“[A] motion for judgment on the pleadings is the functional equivalent of a general demurrer.”)
 

Second, as Responding Parties correctly note in their opposition, Moving Party fails to show that she made an effort to meet and confer, as required by Code of Civil Procedure § 430.41. However, the statute prohibits the Court from overruling a demurrer on this ground. (See Code Civ. Proc., § 430.41(a)(4) [“A determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.”].)

Third, the statutory bases for the demurrer under Code of Civil Procedure § 430.10 are not expressly cited as to the individual causes of action set forth in the demurrer, although from the description of each of the contentions, it appears that all arguments are grounded in § 430.10(e).

Fourth, many of the demurrer arguments rely on extrinsic evidence (attached to a supporting declaration from Attorney Christi M. Raimondi), which is prohibited. In contrast to a Fed. R. Civ. P. 12(b)(6) federal motion to dismiss, the Court may not consider extrinsic evidence when ruling on a California demurrer. (See Price v. Dames & Moore (2001) 92 Cal.App.4th 355, 359 [“ ‘[A] demurrer looks only to the face of the pleadings and to matters judicially noticeable and not to the evidence or other extrinsic matter.’ [Citations.]”] [first alteration and emphasis in original].)

Fifth, in an apparent attempt to correct for the submission of extrinsic evidence, Moving Party belatedly filed a request for judicial notice with her reply. However, many of the documents listed therein—specifically, Exhibits A-F—are not appropriate subjects for judicial notice. (See Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 114 [finding trial court erred by taking judicial notice of a letter agreement and noting, “The hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of documents whose truthfulness or proper interpretation are disputable.”]; Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 485 [holding that “a party's statements in a television news interview do not constitute judicially noticeable facts”].)

The Court can and does take judicial notice of Exhibit G, the judgment in the Superior Court of Contra Costa County’s Case No. CIV-MS21-0012. However, judicial notice is restricted to the existence of the document and its legally operative effects and does not include the truth of any hearsay statements or findings contained therein. (See Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1565.)

Finally, the Court notes that neither party has complied with Local Rule 1.14(I), which states in relevant part, “Parties shall [electronically] bookmark each heading, subheading and component (including the table of contents, table of authorities, petition, verification, points and authorities, declaration, and proof of service, if included within the document) in the document, as well as any exhibits and/or attachments to the document.”

Merits

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” (Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388.) On demurrer, the Court takes as true all properly pleaded facts, no matter if they are improbable or implausible. (See Marina Pacific Hotel and Suites, LLC v. Fireman's Fund Insurance Company (2022) 81 Cal.App.5th 96, 104–105, disapproved of on inapposite grounds by Another Planet Entertainment, LLC v. Vigilant Ins. Co. (2024) 15 Cal.5th 1106 [“Indeed, ‘we accept as true even improbable alleged facts, and we do not concern ourselves with the plaintiff's ability to prove [the] factual allegations.’ [Citations.]”].) However, contentions, deductions, and conclusions of fact or law may be critically evaluated. (See 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).)

Here, the pleading at issue sets forth causes of action for (1) intentional misrepresentation; (2) breach of the covenant of good faith and fair dealing, and (3) negligence.

         (1) Entire Pleading

Moving Party first argues, “All of the Petitioners’ claims are based on the presumption that the Trustee had a duty to disclose certain conditions of the Property….” (3/4/25 Mem., at p. 4.) Moving Party then contends that she had no duty to disclose because Civil Code § 1102.2(d) exempts trustees from the regular statutory disclosure obligations required by Civil Code § 1106. This argument is rejected because it is based in large part on extrinsic evidence and facts outside of the pleadings. For example, Moving Party asserts on page 6 of the supporting declaration, “At the time of the sale, the Trustee had not occupied the Property since she was a teenager, nor was she a prior owner.” Presumably, this information has been included because Civil Code § 1102.2(d) states that the trustee exemption “shall not apply to a sale if the trustee is a natural person who is a trustee of a revocable trust and is a former owner of the property or was an occupant in possession of the property within the preceding year.” But, as explained above, the Court may not consider this information on demurrer.

Moreover, Responding Parties correctly state that there is both a statutory and common-law duty of disclosure. (See Calemine v. Samuelson (2009) 171 Cal.App.4th 153, 161.) The codification of disclosure requirements did not abrogate the common law. (See id.)

The demurrer to the pleading as a whole is therefore OVERRULED.

         (2) First Cause of Action: Intentional Misrepresentation

“The elements of intentional misrepresentation ‘are (1) a misrepresentation, (2) knowledge of falsity, (3) intent to induce reliance, (4) actual and justifiable reliance, and (5) resulting damage.’ [Citation.]” (Aton Center, Inc. v. United Healthcare Ins. Co. (2023) 93 Cal.App.5th 1214, 1245.)

The Moving Party’s argument regarding this cause of action is again largely based on extrinsic evidence. (See 3/4/25 Mem., at pp. 5-6.) As for Moving Party’s contention that the cause of action fails to state sufficient facts because a claim for intentional misrepresentation requires an affirmative assertion, not just an omission or implied assertion, Responding Parties argue in opposition that they did include allegations regarding affirmative assertions. (See 3/20/25 Opp., at pp. 5-6.) In truth, the language in the pleading is ambiguous; it cannot be determined whether the Moving Party affirmatively acted or not. In such situations, the Court must give the benefit of the doubt to the pleader. Furthermore, even assuming arguendo that the Moving Party’s actions did not qualify as affirmative assertions, it appears that the pleading would still state sufficient facts for some species of misrepresentation or concealment and therefore survive demurrer. (See Quelimane Co., Inc. v. Stewart Title Guar. Co., 19 Cal.4th 26, 38 [“If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer.”].)

The demurrer to the first cause of action is consequently OVERRULED.

         (3) Second Cause of Action: Breach of the Covenant of Good Faith and Fair Dealing

“ ‘ “The [implied] covenant of good faith and fair dealing [is] implied by law in every contract.” ’ [Citation.] The covenant is read into contracts and functions ‘ “as a supplement to the express contractual covenants, to prevent a contracting party from engaging in conduct which (while not technically transgressing the express covenants) frustrates the other party's rights to the benefits of the contract.” ’ [Citation.]” (Thrifty Payless, Inc. v. The Americana at Brand, LLC (2013) 218 Cal.App.4th 1230, 1244 [emphasis and first alteration in original].)

In other words, once the parties have entered a contract, the covenant serves to ensure that the contract’s overall aims are satisfied. The covenant is triggered by the contract’s execution.

Here, the petitioners allege in paragraph 32 of the petition: “By Respondent’s omissions and misrepresentations alleged herein, Respondent did not act fairly and in good faith. Respondent directly interfered with Petitioner’s right to receive true and accurate disclosures before purchasing Halten Court.” (Emphasis added.)

“As the court explained in Racine & Laramie, Ltd. v. Department of Parks & Recreation (1992) 11 Cal.App.4th 1026, 1031–1035, 14 Cal.Rptr.2d 335, the implied covenant is a supplement to an existing contract, and thus it does not require parties to negotiate in good faith prior to any agreement.” (McClain v. Octagon Plaza, LLC (2008) 159 Cal.App.4th 784, 799.)

It appears that this cause of action is defective in that it relies on actions that took place before the contract was signed. Accordingly, the demurrer to this cause of action is SUSTAINED. While the Court is doubtful that Petitioners can state a valid claim, because this is a demurrer to the initial pleading, the Court will grant 20 days’ leave to amend out of an abundance of caution.

         (4) Third Cause of Action: Negligence

Moving Party contends that “she does not owe any duty to Petitioners beyond the limited disclosure requirements set forth at law.” (3/4/25 Mem., at p. 7.) However, as discussed above, the existence of specific, statutory disclosure requirements—whether applicable or not—does not negate common-law duties. Furthermore, the argument on this issue is once again flawed because it relies on extrinsic evidence.

Consequently, the demurrer to this cause of action is OVERRULED.

Moving Party to provide a proposed order within 5 court days that comports with this ruling.

b) Motion to Reconsider Under Code of Civil Procedure Section 1008

For the reasons set forth below, the motion is DENIED.

As the Trustee contends in her opposition, the motion is procedurally defective. It was not accompanied by a declaration stating “what application was made before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown,” as required by Code of Civil Procedure § 1008(a). Furthermore, the Court notes that the notice of hearing lists the wrong hearing date in the body of the notice of motion. And there is no record of an amended notice of motion having been served.

On the merits, the motion also fails because it is not based on “new or different facts, circumstances, or law.” (Code Civ. Proc., § 1008(a). Rather, the motion simply draws the Court’s attention to an already existing statute and, as the Trustee notes, rehashes arguments already raised.

There is still a way for the Petitioner to resurrect the pleading. But a motion for reconsideration under Code of Civil Procedure § 1008 is not it. 

CV-24-005113 – AMERICAN EXPRESS NATIONAL BANK vs MELENDEZ, JUAN – Plaintiff’s Motion for Summary Judgment or in the Alternative Summary Adjudication - CONTINUED to May 15, 2025, at 8:30 am in Department 22.

This matter is CONTINUED on the Court’s own motion to May 15, 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:

CV-23-003352 – CHANDLER, DENISE ANTOINETTE vs COMPASS GROUP USA INC – Compliance/Final Accounting Hearing - DROPPED.

Based on the declaration of the settlement administrator submitted on 4-2-25, the Court finds that compliance has been demonstrated.  No hearing is necessary.

CV-23-006577 – MARTINEZ, KLAUDIA vs RANCHO FRESCO MODESTO INC – Plaintiff’s Motion for Sanctions against Defendant Quality Security Services Pursuant to CCP 128.7 - DENIED.

The Court finds that that Plaintiff has failed to demonstrate that the decision to pursue the subject demurrer was objectively unreasonable or that it was brought for an improper purpose under the circumstances of the instant action.

CV-24-004770 – GRESIO, TINA vs MYERS, BEVERLY J - Plaintiff’s Motion for Leave to Amend the Complaint – GRANTED, and unopposed.

Plaintiff shall file the proposed Second Amended Complaint within 20 days. 

CV-24-005282 – V, B vs JOSEPH, YULIA – a) Plaintiff A.V.’s Motion to Compel Yulia Joseph to Provide Further Responses to Request for Production of Documents, Set One, and Request for Sanctions – CONTINUED, pursuant to the parties’ request, to May 20, 2025 at 8:30 a.m. in Department 23; 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, pursuant to the parties’ request, to May 20, 2025 at 8:30 a.m. in Department 23; c) Plaintiff A.V.’s Motion to Compel Defendant Yulia Joseph to Provide Further Responses to Special Interrogatories, Set One and Request for Sanctions – CONTINUED, pursuant to the parties’ request, to May 20, 2025 at 8:30 a.m. in Department 23; d) Plaintiff B.V.’s Motion to Compel Defendant Yulia Joseph to Provide Further Responses to Special Interrogatories, Set One and Request for Sanctions - CONTINUED, pursuant to the parties’ request, to May 20, 2025 at 8:30 a.m. in Department 23.

a-d) Based on the parties’ Joint Status Statement submitted on 4-1-25, it appears that they have reached an informal resolution of the issues presented by these motions. Therefore, the hearing dates are CONTINUED at the parties’ request in order to allow them to complete discovery in this regard.  If any issues remain for resolution at the time of the continued hearing, the parties shall submit a further Joint Status Statement identifying and briefly setting forth their respective positions on the same. The Joint Status Statement shall be submitted no later than May 14, 2025.

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

CV-23-000648 – MARDIKIAN, GEORGE vs DOLE, MATTHEW - Plaintiff's Motion for Sanctions Concerning Defendant's Improper Motion to Compel and Underlying Inspection Demand - GRANTED, in part, DENIED, in part.

As a preliminary matter the Court finds that Plaintiff’s motion cannot be supported by a separate statement given that this motion does not relate to Defendant’s failure to provide discovery, or Defendant’s discovery responses “ that are at issue” . (CA ST CIVIL RULES Rule 3.1345 ( c).  Furthermore, where a separate statement is omitted, a trial court has discretion to entertain the motion or deny it. (In re Marriage of Moore, (2024)102 Cal. App. 5th 1275,).

The Court also notes Defendant’s Counsel’s impermissible and unacceptable reliance in this motion on the superseded case of on Do It Urself Moving & Storage, Inc. v. Brown, Leifer, Slatkin & Berns, (1992) 7 Cal.App.4th 27, and advises Counsel against such conduct in the future.

The Court further notes Plaintiff’s reference to CA ST CIVIL RULES Rule 3.1345 (b)(7) which the Court is unable to locate for reference.

The Court finds, given the parties’ dispute over the extent and cost of damages to Plaintiff’s property claimed by Plaintiff regarding said tree roots that it was not entirely unreasonable, regardless of prior inspections, for Defendant to seek a more invasive inspection to determine the extent of the damage caused by said tree roots, in the pursuit of evidence in that regard. Therefore, the Court finds Defendants’ said Notice of Inspection not to be frivolous and without cause

However, the Court finds that Defendant’s decision to make said inspection request at the last minute regardless of prior trial continuances, and their further decision to move  to compel said inspections despite awareness of their inability to comply with notice deadlines without seeking leave of the Court for an earlier date, amounts to abuse of the discovery process. (Code of Civ. Proc. §2031.030(c)(2) and 2032.010 (b)).

Plaintiff is therefore awarded monetary sanctions of $1,600 for his reasonable attorney’s fees and costs in having to impose said motion.

The Court further finds given the foregoing, and that Defendant’s conduct does not include a failure to provide discovery or disobedience to a Court order compelling discovery, that issue sanctions are unwarranted herein.  ( Code of Civ. Proc. §2033.030(b); Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, review denied; NewLife Sciences, LLC v. Weinstock (App. 2011) 197 Cal.App.4th 676, rehearing denied).

CV-24-006803 – NICHELSON, RODNEY vs GENERAL MOTORS LLC - Plaintiff’s Motion for Terminating Sanctions, Issue Sanctions, Evidence Sanctions, And Monetary Sanctions, or, Alternatively, For an Order Compelling General Motors to Produce its Person Most Qualified and For Monetary Sanctions - GRANTED, unopposed.

The Court finds that Plaintiff’s failure to comply with the Orange County Superior Court’s order of March 22, 2024, compelling Defendant to produce its Person Most Qualified for deposition within 45 days of the Court’s order, over a year after said order was issued without justification amounts to egregious discovery abuse and warrants the imposition of discovery sanctions.  ((City of Los Angeles v. PricewaterhouseCoopers, LLP, (2024) 17 Cal. 5th 46, 553; Civ. Proc. Code §2023.010 (g) Civ. Proc. Code § 2025.450 (g)(1); Parker v. Wolters Kluwer United States, Inc. (2007), 149 Cal.App.4th 285); 

The Court is however prepared to give Defendants one final opportunity to comply with said order. Defendant shall therefore produce its Person Most Qualified for deposition as per the March 22, 2024, order within thirty days (30) of this hearing. Failure to comply with this order will result in the imposition of harsher sanctions including issue, evidence and terminating sanctions .  (Department of Forestry & Fire Protection v. Howell (2017), 18 Cal. App. 5^th 154 rehearing denied, review denied).  

Plaintiff is awarded monetary sanctions of $972 for his reasonable fees and costs incurred in bringing this motion. (Civ. Proc. Code §2023.010 (g) Civ. Proc. Code § 2025.450 (g)(1); (City of Los Angeles v. PricewaterhouseCoopers, LLP, (2024) 17 Cal. 5th 46, 553).

CV-24-007187 - RODRIGUEZ, JOSE A REBUELTA vs O SOLAR MIO LLC - Defendants' Motion to Be Relieved as Counsel – DROPPED, at Defendant’s Counsel’s request.

CV-24-007633 – HEITZER, MURRAY vs LIU, ANNA YAN - Plaintiff's Demurrer to Defendants' Answer with Strike - DROPPED, at Plaintiff’s Counsel’s request.

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

***There are no Tentative Rulings for Department 19***