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: 10/24/2016 at 8:52am

Tentative Rulings for Monday, October 24, 2016 are:

Re:                     Maher v. Select Portfolio Servicing, Inc., et al.

Case No:           VCU264980

Date:                 October 24, 2016

Time:                 8:30 A.M. 

Dept.                  1 - The Honorable Melinda Reed

Motion:              Motion to Dismiss Entire Action for Failure to File Amended Complaint by Defendants Select Portfolio Servicing, Inc. and U.S. Bank National Association, as Trustee

Tentative Ruling:  There is no tentative ruling in this matter. 

Re:                     Martinez, et al. v. Lindmore Irrigation District, et al.

Case No:            VCU265789

Date:                  October 24, 2016

Time:                  8:30 A.M. 

Dept.                  1 - The Honorable Melinda Reed

Motion:               (1) Demurrer by Defendants Lindmore Irrigation District and Michael Hagman to Verified Complaint; and (2) Motion to Strike by Defendants Lindmore Irrigation District and Michael Hagman

Tentative Ruling:  (1) To overrule the Demurrer by Defendants Lindmore Irrigation District and Michael Hagman to Verified Complaint; and (2) to deny the Motion to Strike by Defendants Lindmore Irrigation District and Michael Hagman.

Plaintiffs Samuel Martinez and Oscar Martinez’s (collectively plaintiffs) complaint asserts claims against defendants Lindmore Irrigation District and Michael Hagman (collectively the district) for fraudulently (1) securing a default judgment against them for unpaid water fees in a prior case, and (2) subsequently selling their property at an execution sale.

As to the demurrer, the district contends plaintiffs’ complaint fails to state sufficient causes of action because the default judgment and sale of plaintiffs’ property are not subject to collateral attack; the sale was authorized under Water Code section 26081; the district is improperly joined as a party, and plaintiffs are time barred. The court disagrees.

In reviewing a demurrer, the court assumes all facts pled in the complaint are true and may not consider facts raised for the first time in the demurring party’s moving papers. (Afuso v. U.S. Fid. and Guar. Co., Inc. (1985) 169 Cal. App. 3d 859, 862; Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.)  Even where the plaintiff’s claims seem unlikely or improbable, the facts raised in its complaint must be accepted as true for purposes of ruling on the demurrer. (Del E.Webb Corp. v. Structural Materials (1981) 123 Cal. App. 3d 593, 604.)

Additional facts may be implied or inferred from those facts expressly pled in the complaint, and to the extent that there are factual issues in dispute, the court must assume the truth of not only all facts properly pled, but also those facts that may be implied or inferred from these expressly stated in the complaint. (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal. App. 4th 445, 459.)

Further, in order to survive demurrer a complaint need only “as a whole apprise the adversary of the factual basis of the claim” (Davaloo v. State Farm Ins. Co. (2005) 135 Cal. App. 4th 409, 415) and provide “notice of the issues sufficient to enable preparation of a defense.” (Doe v. City of Los Angeles (2007) 42 Cal. 4th 531, 549-550.)

As to collateral attack on the prior judgment and execution sale, plaintiffs are not limited to a motion in the underlying action to obtain relief. They are entitled to alternatively file an independent action to challenge the validity of the judgment and sale based upon plaintiffs’ allegation the default judgment is a nullity for lack of personal jurisdiction. (Olivera v. Grace (1942) 19 Cal. 2d 570, 575-576.)  The remedies are distinct and cumulative.  (Rohbasser v. Lederer (1986) 179 Cal. App. 3d 290, 297.)

Plaintiffs have also adequately stated claims against the district for violating Water Code sections 26125 et seq. providing for a statutory right of redemption after sale. Here, plaintiffs assert the district fraudulently avoided the redemption procedure after selling their property (complaint, p. 8).  As such, under the circumstances of this case, the court cannot resolve the propriety of the sale as a matter of law at this stage of the proceedings; whether the district fraudulently failed to comply with the redemption statute is an issue of fact and not properly resolved on demurrer.

As to improper joinder of the district on claims for quiet title, slander, and injunctive relief, plaintiffs’ complaint alleges the district wrongfully recorded documents and obtained “ill-gotten” proceeds associated with the allegedly wrongful sale.  Hence, under Lang v. Roche (2011) 201 Cal. App. 4th 254, 266, the district is a necessary party to ensure complete relief should plaintiffs prevail on these claims.

As to the statute of limitations, plaintiffs do not seek relief under Code of Civil Procedure section 701.680(c)(1) providing for a 90 day limitation to set aside the sale “if the purchaser is the judgment creditor.” Here, plaintiffs’ request for monetary damages is plainly premised upon subsection (2) of section 701.680(c) and is not based upon the district’s purchase of the property. Thus, by the terms of the statute, plaintiffs are not time barred.

Turning to the motion to strike, for pleading purposes, plaintiffs’ complaint alleges sufficient factual allegations to support their contention the district acted with malice in an effort to deprive plaintiffs of their property without providing notice and without complying with applicable Water Code provisions. Further, the district’s request to strike “improper and/or irrelevant evidence and conclusions” is denied as properly pled in support of plaintiffs’ legal theories and claims of malice.

In sum, plaintiffs have adequately stated causes of action against the district. Accordingly, the demurrer is overruled and the motion to strike is denied. The district is directed to answer the complaint within 10 days’ notice of the court’s order.
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.



This concludes the civil tentative rulings