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civil tentative rulings


The court does not issue tentative rulings on Writs of Attachment, Writs of Possession, Claims of Exemption, Claims of Right to Possession, Motions to Tax Costs After Trial, Motions for New Trial, or Motions to Continue Trial.


Under California Rules of Court, rule 3.1308 and Local Rule 701, any party opposed to the tentative ruling must notify the court, and other parties, by 4:00 p.m. on the court day before the hearing of their intention to appear for oral argument. The court's notice must be made by facsimile to 559-733-6774.


Timestamp: 01/26/2015 at 12:25pm



The Tentative Rulings for Monday January 26, 2015 are:


Re:              In Re: D. Willis

Case No.:  VCU 258979

Date:         January 26, 2015

Time:        8:30 A.M. 

Dept.        1 – The Honorable Melinda Reed

Motion:    Petitioner J.C.P.H.S., LLC’s Petition for Approval of Transfer of Structured Settlement Payment Rights

Tentative Ruling:  To deny petitioner J.C.P.H.S., LLC’s Petition for Approval of Transfer of Structured Settlement Payment Rights.

Under Insurance Code section 10139.5, the petition is procedurally deficient and the requested transfer is unreasonable and not in the best interests of payee Donald Willis.

Here, payee seeks to transfer his future monthly annuity payments beginning March 27, 2018, through February 27, 2038, for a total of $60,850.20 in exchange for $14,000.00.  The transfer has an equivalent high interest rate of 12.80%. Payee claims he is experiencing a financial hardship and wants the transfer to purchase a vehicle.

Payee was 18 years old when he settled a personal injury claim for 240 monthly annuity payments in the amount of $208.70 each. Payee is now 26 years old, married, and has two minor children. Payee is currently unemployed and his wife earns $2,000.00 per month. 

The petition is procedurally deficient under section 10139.5 because petitioner failed to state payee’s financial resources under subdivision (c)(4); failed to include information as to the amount of payee’s living expenses and liabilities under subdivision (b)(8); and failed to state payee’s current living arraignments and present means of transportation, or why he is experiencing a hardship. Moreover, there is nothing explaining why payee is unemployed and when and if he expects to get a job.

The petition is also deficient under section 10139.5(c)(6) because petitioner failed to include information about payee’s attempted previous transfer just one year ago. There is nothing indicating why payee requested the transfer, how much he wanted transferred, and the reasons for the court’s denial. Without this information, the court is simply unable to evaluate the reasonableness of payee’s present request.

On the merits, the petition is denied as it is clear the intent of the underlying settlement was to provide long term support for payee and his dependents as he matures. Further, when considering payee does not now have a job, it is apparent he needs the certainty and regularity of the future monthly annuity payments.

In sum, given the procedural deficiencies of the petition as well as payee’s circumstances, age, and level of maturity, the court finds the proposed transfer jeopardizes payee’s long term financial security and is not fair or reasonable.  Thus, the petition is denied on the merits as not in the payee’s best interests.

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.

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Re:              Midland Funding, LLC v. Hernandez

Case No.:   VCL 162272

Date:          January 26, 2015

Time:          8:30 A.M. 

Dept.          1 – The Honorable Melinda Reed

Motion:       Defendant Verena Hernandez’s Motion to Vacate Default and Default Judgment [CCP 473(d); 473.5]

Tentative Ruling: To grant defendant Verena Hernandez’s Motion to Vacate Default and Default Judgment [CCP 473(d); 473.5].

Proof of service in the court’s file indicates notice of the motion was adequate. No response to the motion has been received. Moreover, plaintiff Midland Funding, LLC’s motion to vacate and set aside judgment is set to be heard on February 9, 2015, in the above-entitled court.

Here, defendant Verena Hernandez has adequately established she did not live at the residence where Midland Funding served the summons and complaint by substituted service. As such, under Code of Civil Procedure section 415.20(b) the service was defective because the summons and complaint was not left at Hernandez’s “dwelling house, usual place of abode, or usual place of business.”

Accordingly, under Code of Civil Procedure section 473(d) and Ramos v. Homeward Residential, Inc. (2014) 223 Cal. App. 4th 1434, the default judgment is set aside as void based upon improper service of the summons and complaint.  

Moreover, the default judgment is also properly vacated pursuant to Code of Civil Procedure section 473.5 because Hernandez has submitted sufficient proof that she did not receive actual notice of this action.

In sum, the clerk’s entry of default filed April 28, 2014, and court’s judgment by default filed June 16, 2014, against Hernandez are vacated and set aside.

With this ruling, Midland Funding’s motion to set aside and vacate judgment set for February 9, 2015, is taken off calendar. Hernandez is directed to meet and confer with Midland Funding concerning dismissal of this case. If not dismissed, Hernandez is directed to file and serve her proposed answer forthwith.

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.

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Re:              Portfolio Recovery Associates, LLC v. Daniels

Case No.:   VCL 163157

Date:          January 26, 2015

Time:         8:30 A.M. 

Dept.         1 – The Honorable Melinda Reed

Motion:     Plaintiff Portfolio Recovery Associates, LLC’s Motion for Judgment on the Pleadings

Tentative Ruling:  To deny Plaintiff Portfolio Recovery Associates, LLC’s (Portfolio) Motion for Judgment on the Pleadings.

Portfolio’s request for judicial notice is granted but only as to the existence of the November 17, 2014 order deeming Portfolio’s first set of requests for admission admitted, and not for the truth of the defendant Pauline Daniels’ discovery responses. (See TSMC North America v. Semiconductor Mfg. Intern. Corporation (2008) 161 Cal. App. 4th 581, 594 holding that discovery responses are not “a proper matter for judicial notice.”)

Proof of service in the court’s file indicates notice of the motion was adequate. No response to the motion has been filed.

Under Code of Civil Procedure sections 438 (c)(1)(A) and (c)(2)(B), a motion for judgment on the pleadings challenges the entire answer or any one of the affirmative defenses in the answer on the ground that (1) the complaint states facts sufficient to constitute a cause of action and (2) the answer does not state facts sufficient to constitute a defense to the complaint. (See Hardy v. Admiral Oil Co. (1961) 56 Cal. 2d 836, 839-41.)

Here, Daniels’ answer consists of a general denial and an affirmative defense based on the statute of limitations. Thus, the answer sufficiently contradicts the allegations in the complaint such that judgment on the pleadings cannot be granted based solely on the face of the pleadings.

While the court may consider judicially noticed matters when ruling on a motion for judgment on the pleadings, a party’s discovery responses are not a proper matter for judicial notice under TSMC North America. Further, the facts contained in Daniels’ discovery responses constitute extrinsic evidence that do not appear on the face of the complaint or answer and are not properly considered when ruling on a motion for judgment on the pleadings.

Accordingly, Portfolio’s motion for judgment on the pleadings 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.

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Re:              Mudge v. Kaweah Delta Health Care District, et al.

Case No.:   VCU 252956

Date:          January 26, 2015

Time:         8:30 A.M. 

Dept.         1 – The Honorable Melinda Reed

Motion:     Motion for Summary Judgment by Defendants Kaweah Delta Health Care District and Judy Jacques.

Tentative Ruling:  To grant the Motion for Summary Judgment by Defendants Kaweah Delta Health Care District and Judy Jacques (collectively defendants).

Proof of service in the file indicates that notice of the motion was adequate.  No response to the motion has been filed.

Plaintiff Gary Mudge’s complaint for medical negligence alleges he was injured by defendants when he rose from his seat in an examination room and struck the top and back portion of his head with x-ray equipment that remained positioned over his head. Defendants contend Mudge’s action is barred by failing to comply with the Government Claims Act.

A defendant moving for summary judgment has the initial burden of persuasion to establish “that there is no triable issue of material fact and that [the defendant] entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.)  If a defendant makes such a showing, the burden shifts to the plaintiff to show the existence of a triable issue of material fact.  Further, the plaintiff is required to set forth the specific facts showing that a triable issue of fact exists as to a cause of action or defense thereto.  (Ibid.; Code Civ. Proc., § 437c, subd. (p)(2).) “The motion for summary judgment shall be granted if all the papers submitted show there is no triable issue as to any material fact, and the moving party is entitled of judgment as a matter of law.” (Code of Civil Procedure section 437c(c).)

Here, defendants have submitted admissible evidence establishing Mudge failed to provide proper notice of his tort claim under Government Code sections 915(a) and (e) because his claim was not presented to any statutorily designated recipients. Mudge has failed to submit any evidence to the contrary. Thus, as a matter of law, Mudge’s claim is barred under the Government Tort Claims Act. (See Del Real v. City of Riverside (2002) 95 Cal. App. 4th 761, 767; DiCampli-Mintz v.County of Santa Clara (2012) 55 Cal. 4th 983, 987.)

In short, the record evidence establishes there are no triable issues of fact in this case and defendants are entitled to judgment. Accordingly, defendants’ motion for summary judgment is granted.                                            

If no one requests oral argument, Defendants shall submit a proposed order in compliance with CRC, rule 3.1312.  

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Re:           Estate of Amelia Rita Valdez v. Tulare Nursing and Rehabilitation, et al.

Case No: VCU256184

Date:       January 26, 2015

Time:      8:30 A.M. 

Dept.      1 - The Honorable Melinda Reed

Motions(1) Demurrer to Plaintiff’s First Amended Complaint by Defendants Tulare Nursing & Rehabilitation Hospital, Inc. and Mark Fisher; and (2) Motion to Strike Plaintiff’s First Amended Complaint by Defendants Tulare Nursing & Rehabilitation Hospital, Inc. and Mark Fisher

Tentative Rulings(1) To Sustain the Demurrer to Plaintiff’s First Amended Complaint by Defendants Tulare Nursing & Rehabilitation Hospital, Inc. and Mark Fisher as to the First, Second, and Fourth Causes of Action without leave to amend, and to Overrule the Demurrer as to the Third, Fifth, Sixth, and Seventh Causes of Action; and (2) To Deny the Motion to Strike Plaintiff’s First Amended Complaint by Defendants Tulare Nursing & Rehabilitation Hospital, Inc. and Mark Fisher.

In this personal injury action, plaintiff Ralph Villa, son of decedent Amelia Rita Valdez, alleges defendants Tulare Nursing & Rehabilitation Hospital, Inc. and Mark Fisher (collectively Tulare Nursing) are legally responsible for injuries his mother allegedly incurred while a resident at Tulare Nursing’s facility and her subsequent death. The first amended complaint alleges seven causes of action for (1) negligence; (2) wrongful death; (3) fraudulent misrepresentation and concealment; (4) negligent infliction of emotional distress; (5) elder abuse; (6) unfair business practices; and (7) willful misconduct. Villa seeks damages for medical expenses, attorney’s fees and costs, injunctive relief, and punitive damages.

In its demurrer, Tulare Nursing asserts all of Villa’s claims fail to state facts sufficient to constitute proper causes of action and several of the claims are time-barred. The motion to strike seeks to strike certain claims for general damages; punitive and treble damages; and paragraph 16 of the first amended complaint that purportedly asserts Villa’s basis for equitable tolling of the statute of limitations.

As to the first cause of action for negligence and second cause of action for wrongful death, although labeled and formed as ordinary negligence claims, Villa’s supporting facts are limited to claims of professional negligence by Tulare Nursing in the care and treatment of Valdez while she was a patient in its skilled nursing home facility. Accordingly, the primary right involved establishes these causes of action are for professional negligence against a health care provider and are subject to the limitations period specified in Code of Civil Procedure section 340.5.

Here, Villa was made aware of the claims at issue in July of 2012 when his mother was admitted to the hospital for injuries she received at Tulare Nursing’s facility. Valdez died on September 15, 2012. As such, all of Villa’s claims accrued at the latest on September 15, 2012. And the complaint was not filed until May 5, 2014, well beyond the one-year limitations period specified in Code of Civil Procedure section 340.5.

In regard to Villa’s contention that Tulare Nursing is equitably estopped from asserting the statute of limitations, the allegations at paragraph 16 of the first amended complaint are at least relevant in determining whether Tulare Nursing’s counsel caused an extension of the limitations period. However, even if the actions of its counsel were sufficient to invoke equitable tolling (an issue which the court declines to reach), it is clear from Villa’s allegations that any promises or delay caused by counsel ended, at the latest, on April 29, 2013. On that date Villa concedes his counsel sent correspondence to Tulare Nursing’s counsel “concluding that he must no longer represent (Tulare Nursing) and counsel would be proceeding against the nursing facility and all accompanying parties for negligence and wrongful death.” (First Amended Complaint, paragraph 16.) Thus, in short, even if tolling were applicable, Villa’s claims based upon professional negligence are time-barred because he filed his complaint more than one year after April 29, 2013. 

As to the fourth Cause of action for negligent infliction of emotional distress, under the facts asserted, Villa was not a direct victim of the injuries allegedly suffered by his mother, nor was he present when the injuries occurred. As such, Villa has not stated a sufficient claim for negligent infliction of emotional distress under Thing v. La Chusa (1989) 48 Cal. 3d 644. Villa’s reliance on Molien v. Kaiser Found. Hosps. (1980) 27 Cal. 3d 916 is unavailing as the facts of Molien are clearly distinguishable. Accordingly, as a matter of law the fourth cause of action fails to constitute a proper cause of action.

Turning to the third cause of action for fraudulent misrepresentation and concealment and request for punitive and treble damages; fifth cause of action for elder abuse; sixth cause of action for unfair business practices; and seventh cause of action for willful misconduct, the facts alleged are sufficiently specific to meet Villa’s pleading requirements.

A demurrer can only be used to challenge defects that appear on the face of the complaint or from matters properly judicially noticed. In Saxer v. Philip Morris, Inc. (1975) 54 Cal. App. 3d 7, 18, the court stated “The sole issue involved in a hearing on a demurrer is whether the complaint, as it stands, unconnected with extraneous material, states a cause of action. Griffith v. Department of Public Works 141 Cal. App. 2d 376, 381 [296 P.2d 838]. In testing the legal sufficiency of a pleading against a general demurrer, all properly pleaded allegations, including those that arise by reasonable inference, are deemed admitted regardless of the possible difficulty of proof at trial. (Universal By-Products, Inc. v. City of Modesto, 43 Cal. App. 3d 145, 151 [117 Cal. Rptr. 525]; see also Alcorn v. Anbro Engineering, Inc., 2 Cal. 3d 493, 496 [86 Cal. Rptr. 88, 468 P. 2d 216]; 3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, § 800, pp. 2413-2414.)” 

As to the specificity of the facts, the first amended complaint alleges Villa routinely visited his mother and she appeared properly dressed and cared for even though Tulare Nursing knew or should have known she was suffering from a variety of injuries including “pressure sores, severe skin rash, inflamed and infected abdominal incision, and necrotic toes.”  Villa’s allegations that Tulare Nursing willfully concealed these conditions from him; that her condition “continued to worsen with the damage already inflicted upon her” after she suffered a broken femur; and that he did not discover her condition until his mother was admitted to the hospital in July of 2012, are sufficiently specific for pleading purposes. The court does not test the facts on demurrer.

As to the unfair business practice claim, contrary to Tulare Nursing’s contention one alleged violation is sufficient to support a cause of action under UFW of Am. v. Dutra Farms (2000) 83 Cal. App. 4th 1146, 1163.

In UFW of Am. the court held:

“In response to the California Supreme Court's 1988 ruling that a "business practice" under Business and Professions Code section 17200 must encompass more than a single transaction (see State of California ex rel. Van De Kamp v. Texaco, Inc. (1988) 46 Cal. 3d 1147, 1169-1170 [252 Cal. Rptr. 221, 762 P.2d 385]), the Legislature amended the statute in 1992 to provide that "unfair competition shall mean and include any unlawful, unfair or fraudulent business act or practice. . . ." (§ 17200, italics added.) The California Supreme Court has interpreted the 1992 amendment as overruling that part of Van De Kamp that interpreted the statute to require more than a single "act." (Stop Youth Addiction, Inc. v. Lucky Stores, Inc. (1998) 17 Cal. 4th 553, 570 [71 Cal. Rptr. 2d 731, 950 P.2d 1086].) Accordingly, under the current version of the statute, even a single act may create liability. (Klein v. Earth Elements, Inc. (1997) 59 Cal. App. 4th 965, 968, fn. 3 [69 Cal. Rptr. 2d 623]; Podolsky v. First Healthcare Corp. (1996) 50 Cal. App. 4th 632, 653 [58 Cal. Rptr. 2d 89].)”

To conclude, the demurrer is sustained as to the first and second causes of action for negligence and wrongful death because the claims are time-barred; and sustained as to the fourth cause of action for negligent infliction of emotional distress because Villa is not a proper victim as a matter of law. Leave to amend is denied as there is no indication Villa can adequately state facts which would overcome these defects under the circumstances of this case. The demurrer is overruled as to the remainder of the causes of action.

The motion to strike is denied as to the allegations and prayer for punitive and treble damages regarding the third cause of action for fraudulent misrepresentation and concealment based on the sufficiency of the facts asserted; and as to paragraph 16 of the first amended complaint because it is relevant to Villa’s claim for equitable tolling. 

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.

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Re:          Maxwell, et al. v. Ford Motor Company

Case No: VCU258352

Date:       January 26, 2015

Time:      8:30 A.M. 

Dept.      1 - The Honorable Melinda Reed

Motion:  Motion by Defendant Ford Motor Company to Strike the Implied Warranty Claims in Plaintiffs’ Complaint

Tentative Ruling:    To Grant the Motion by Defendant Ford Motor Company to Strike the Implied Warranty Claims in Plaintiffs’ Complaint without leave to amend.

In this case, plaintiffs Duane Maxwell and Kirby Maxwell (collectively Maxwell) seek damages against defendant Ford Motor Company for an allegedly defective Ford F-250 truck they purchased in January of 2008.

In its motion to strike, Ford contends the portions of the complaint for breach of implied warranty under the Song-Beverly Act and Magnuson-Moss Act are time-barred. The court agrees.

Here, the complaint was filed on October 22 2014, more than five years from the date the truck was sold on January 8, 2008. Under Civil Code section 1791.1, the duration of the implied warranty is one year from the date of sale. Pursuant to Cardinal Health 301, Inc. v. Tyco Electronics Corp. (2008) 169 Cal. App. 4th 116, 134, and Atkinson v. Elk Corp. of Texas (2006) 142 Cal. App. 4th 212, 230-232, the statute of limitations is four years from the accrual of the cause of action under Uniform Commercial Code section 2725. Moreover, under Atkinson there is no delayed discovery or prospective application of the implied warranty beyond the four year limit.

Maxwell’s argument that Mexia v. Rinker Boat Co. (2009) 174 Cal. App. 4th 1297, 1309, allows for delayed discovery of the implied warranty breach is unavailing as the facts of Mexia are distinguishable. In Mexia, the alleged breach did not manifest until more than one year from date of delivery, but unlike this case the action was filed within the four year statute of limitations.  Moreover, Mexia relied on Atkinson in acknowledging that “(t)he duration provision of the Song-Beverly Act, which as a limited determinable period … ‘controls the length of the implied warranty of merchantability…’”. (Emphasis original.)  As such, contrary to Maxwell’s contention, Mexia does not support a claim that the one-year implied warranty duration period can be extended in this case.

In short, Maxwell’s claims for breach of the implied warranty are time-barred as a matter of law. Maxwell’s request for leave to amend to allege equitable tolling based upon fraudulent concealment is denied as unsupported by any specific factual allegations asserted in the complaint or opposition to this motion. Moreover, given the circumstances of this case, there is no showing Maxwell can properly allege any new or different facts sufficiently specific to show fraudulent misconduct.
 
Thus, Ford’s motion to strike is granted without leave to amend.

If no one requests oral argument, under Code of Civil Procedure section 1019.5, subdivision (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.


This concludes the civil tentative rulings



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