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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: 09/17/2014 at 10:38pm



The Tentative Rulings for Thursday September 18, 2014 are:


Re:              Harness, et al. v E & E Hauling, et al.

Case No.:   VCU 256712

Date:          September 18, 2014

Time:         8:30 A.M. 

Dept.        2 – The Honorable Lloyd L. Hicks

Motion:   Plaintiffs Benjamin Harness and Madison Harness’ Motion for Trial Preference Pursuant to CCP Section 36.
 
Tentative Ruling:   To Grant Plaintiffs Benjamin Harness and Madison Harness’ Motion for Trial Preference

The Court notes that this motion was timely noticed and served, and timely filed with the Court. The Court has not received any opposition to this motion.

CCP 36(b) provides that “A civil action to recover damages for wrongful death or personal injury shall be entitled to preference upon a motion of any party to the action who is under 14 years of age unless the Court finds that the party does not have a substantial interest in the case as a whole.”

As noted in the supporting declaration of Brent L. Bixby,  plaintiff Benjamin Harness (born 10/27/04) and Madison Harness (born 7/2/07) are nine and four years old respectively, and have a substantial interest in this wrongful death action  as the son and daughter (and heirs-at-law) of decedent John Harness.

Based on the moving papers for this matter, and good cause appearing therefor, the motion of plaintiffs Benjamin Harness and Madison Harness’ Motion for Trial Preference is granted. Trial for this action shall be set within 120 days from the hearing date of this motion. 

The specific trial date for this case shall be set at the hearing for this motion, and, if no party appears for the hearing of this motion, notice of the trial date for this case shall be given to the parties by the Clerk of the Court.

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:               Cashline ATM, Inc. v. Dakheil, et al.

Case No.:     VCU 253193

Date:            September 18, 2014

Time:           8:30 A.M. 

Dept.           2 – The Honorable Lloyd L. Hicks

Motion:     Plaintiff Cashline ATM’s Motion to Reduce the Settlement Agreement Between the Parties to a Judgment, or in the Alternative Motion to Restore the Case to the Court’s Trial Calendar; Request for Reasonable Attorney Fees and Costs in the Sum of $2,490.00.
 
Tentative Ruling:   To grant Plaintiff Cashline ATM’s Motion to Restore the Case to the Court’s Trial Calendar; and deny plaintiff’s request for attorney fees and costs.

The Court notes that this Motion has been timely noticed and served on the opposing party, and that no opposition has been received by the Court to this motion.

California Rule of Court 3.1385(e) provides that the Court may take such other actions as may be appropriate for the proper management and disposition of the case where there has been a failure to dismiss an action within the 45 day period following the filing of a Notice of Settlement of Entire Case.

In this case, plaintiff filed a Notice of Settlement of Entire Case on June 30, 2014 that specified that the dismissal of this action would follow the execution of a settlement agreement between the parties.  This settlement agreement is attached to plaintiff’s moving papers as Exhibit “1.” Subsequent to the filing of this Notice, plaintiff has been unsuccessful in its repeated attempts to obtain the defendant’s signature on the settlement agreement.

Based on the foregoing, this Court rules that the Notice of Settlement of Entire Case that is on file with this Court be stricken from the record, and that a Further Status Conference and Trial Setting Conference for this case be set on the Court’s calendar. 

Where plaintiff did not offer any authority to support the right of his counsel to claim attorney fees or costs based on his efforts to obtain the defendant’s signature on the settlement agreement, Plaintiff’s request for attorney fees and costs 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:               Brisbin, et al. v. City of Visalia

Case No.:   VCU 256790

Date:          September 18, 2014

Time:         8:30 A.M. 

Dept.         2 – The Honorable Lloyd L. Hicks

Motion:    Defendant City of Visalia’s Motion to Strike Out Complaint in Part
 
Tentative Ruling:  To grant the motion of Defendant City of Visalia’s Motion to Strike Lines 21-27 of the plaintiff’s Complaint, paragraph 20 of this complaint, including sub-paragraphs (a), (b), (c), and (d) and line 28 at page 7 of this Complaint without leave to amend.

The root of this action is a contract that the City of Visalia awarded to plaintiff Brisbin, dba Construction Development Systems, that involved improvements to an existing storm drain, installation of playground equipment, installation of landscaping, irrigation, and storm drains, and a pump station with appurtenant control and discharge structures, and off-site improvements.  Plaintiff claims that the City breached the contract by, among other things, deducting delay costs from the agreed contract price for the work to be performed by the plaintiff. The causes of action in the plaintiff’s complaint include Breach of Contract, Declaratory Relief, and Breach of the Covenant of Good Faith and Fair Dealing.

At paragraph 14, lines 21-26 of plaintiff’s complaint, plaintiff alleges that the City is somehow responsible for failing to include an arbitration clause in his contract with the City.  But as the City aptly notes in its moving papers, contractual arbitration to resolve issues in a contract is only available when the terms of the contract provide for it, and in the Brisbin-Visalia contract at issue here, the terms of the contract specifically preclude the right to arbitration.  See Herman Feil, Inc. v. Design Center of Los Angeles (1988) 204 Cal.App.3d 1406, 1414.  Therefore, lines 21-26 of paragraph 14 of the plaintiff’s complaint are inapplicable to the issues in this case and are ordered to be stricken from this complaint without leave to amend.

Similarly, lines 26 and 27 of paragraph 14 of plaintiff’s complaint are ordered stricken from the plaintiff’s complaint without leave to amend, as plaintiff curiously alleges that the City does not have the right to be represented by a “private law firm” in this case. But as the City aptly notes, “A litigant has the right to counsel of its choice.” See Champion v. Superior Court (1988)201 Cal.App.3d 777,782.

Paragraph 20 of plaintiff’s complaint, including sub-paragraphs (a) through (d), and line 28 at page 7 (“Vandalism and Theft”) are also ordered stricken from this complaint without leave to amend. Paragraph 20 alleges that the City’s failure to provide proper police protection caused or contributed to vandalism and theft at the site where the Brisbin-Visalia contract was to be performed. 

But these allegations directly conflict with the statutory immunity afforded to the City under Government Code Section 845, that states that “Neither a public entity nor a public employee is liable for failure to establish a police department or otherwise to provide police protection service, or, if police protection service is provided, for failure to provide sufficient police protection service.”

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:           Stanley v. Martinez

Case No: VCL165115

Date:       September 18, 2014

Time:      8:30 A.M. 

Dept.      2 - The Honorable Lloyd Hicks

Motion:  Plaintiff’s Motion for Judgment on the Pleadings Against Defendant Patrick Martinez

Tentative Ruling:  To Deny the Motion for Judgment on the Pleadings Against Defendant Patrick Martinez

Plaintiff seeks damages for breach of a commercial real property lease agreement.  Defendant Jim A. Story has not answered and his default was entered on August 18, 2014.  Defendant Patrick Martinez filed his Answer on August 6, 2014.

No copy of an agreement signed by the parties was attached to any of the pleadings.  In his Answer, Defendant Martinez acknowledges that he was obligated for rent, but further states that he was released from his obligation by Bud Stanley in February 2103 and March 2013.  Bud Stanley is not a party to this action.  Whether or not Bud Stanley, Plaintiff’s son, was authorized to act on Plaintiff’s behalf with regard to the subject lease is a disputed factual issue which can’t be resolved by the pleadings alone.  Defendant’s answer has, on its face, stated a valid defense which requires the motion be 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:            Buck v. Saputo Cheese USA, Inc.

Case No: VCU256347

Date:       September 18, 2014

Time:      8:30 A.M. 

Dept.      2 - The Honorable Lloyd Hicks

Motion:  (1) Defendant’s Demurrer to First Amended Complaint; and (2) Defendant’s Motion to Strike Portions of First Amended Complaint

Tentative Ruling(1) To Overrule Defendant’s Demurrer to First Amended Complaint; and (2) To Deny Defendant’s Motion to Strike Portions of First Amended Complaint.

(1)
Defendant demurs to the Seventh Cause of Action in the First Amended Complaint and individual claim (as opposed to class claim) by Plaintiff for Age Discrimination.  Defendant asserts that insufficient facts have been stated to support the claim.  When reviewed as a whole, the First Amended Complaint is sufficient to state the elements of a discrimination claim.  The pleading specifies that Plaintiff was 57 years of age (FAC 22); that Plaintiff was wrongfully subject to pretextual reprimands (FAC 21, 23, and  66) during his work as a cooker operator; and that he was replaced by a younger person (FAC 24, 66).  It can be reasonably inferred from the allegations that Plaintiff was wrongfully reprimanded that he asserts he was satisfactorily performing his job duties.  The pleading is sufficiently limited in time, 2013 as alleged in paragraph 23, and involves alleged wrongful reprimands from Defendant’s management.  The allegations are sufficient to inform Defendant of the nature of Plaintiff’s claims and to permit Defendant to defend against them.

(2)
Plaintiff has adequately pled intentional misconduct by Defendant (pretextual reprimands for the purpose of terminating Plaintiff and replacing him with a younger employee) which is sufficient to satisfy, for pleading purposes, the requirement to assert malice, oppression, or fraud.  Plaintiff has adequately distinguished Defendant’s authority and shown that the alleged disparate treatment of Plaintiff would not preclude a punitive damages claim under Turman v. Turning Point of Central California, Inc. (2010) 191 Cal.App.4th 53.

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



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