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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: 08/14/2018 at 3:23am



The Tentative Rulings for Tuesday August 14, 2018 are:

Re:             Ramirez-Duenas v. VF Outdoor, LLC
Case No.:   VCU 267811
Date:          August 14, 2018
Time:          8:30 A.M. 
Dept.          7-The Honorable Bret D. Hillman
Motion       Motion for Preliminary Approval of Class Action Settlement
Tentative Ruling: To grant Plaintiffs Hugo Ramirez-Duenas, et al’s motion for preliminary approval of class action settlement
The Court notes that all parties have been given proper and timely notice of this motion.  Defendant VF Outdoor LLC has filed a “Statement of Non-Opposition to Plaintiff’s Motion for Preliminary Approval of Class Action Settlement.

The Court has reviewed the moving papers for this matter, including the supporting memorandum of points and authorities, the proposed “Stipulation of Settlement” (“Settlement Agreement”) that is attached as Exhibit “A” to the declaration of Paul K. Haines, and the declarations of Julie Green, Hugo Ramirez-Duenas, Matthew K. Moen, Andrew J. Rowothan, and Paul K. Haines filed in support of this motion.
From this review the Court makes the following findings:

1. The Court grants preliminary approval of this class action settlement as detailed in the Settlement Agreement as the terms of this Settlement Agreement to be within the range of reasonableness of a settlement that ultimately could be approved by the Court at a Final Approval Hearing;
2. The parties reached this “Settlement Agreement” as the result of an arms-length negotiation after plaintiff conducted a thorough investigation of the strengths and weakness of his claims and a review of the terms of this Settlement Agreement by an experienced mediator;
3.  The proposed Class is ascertainable and that there is a sufficiently well-defined community of interest among the Class Members in questions of law and fact, and the scope of the Settlement Class is as follows:

“All current and former non-exempt employees who worked for Defendant VF Outdoor, LLC at its Visalia distribution center and were paid under its incentive compensation plan, who received at least one wage statement between December 7, 2015 and the date the Court enters an Order granting preliminary approval of the Settlement”

4. The Court designates plaintiff Hugo Ramirez-Duenas as Class Representative and designates Paul K. Haines, Fletcher W. Schmidt, Andrew J. Rowbotham, and Matthew K. Moen of Haines Law Group, APC as Class Counsel;
5.  The Court designates CPT Group, Inc. as the third party Settlement Administrator for mailing notices;
6.  The Court approves the form and content of the Notice Packet that is comprised of the Notice of Class Action Settlement and the Notice of Estimated Settlement Award that is attached as Exhibit “B” to the declaration of Paul K. Haines;
7.  The form and method of giving notice to the Class Members complies fully with the requirements of California Code of Civil Procedure §382, California Rules of Court 3.766 and 3.769, the California and United States Constitutions and other applicable law;
8.  The court approves the procedures for Class Members to opt out of or object to the Settlement, as set forth in the Notice Packet and the Settlement Agreement;
9.  The procedures and requirements for submitting objections in connection with the Final Approval Hearing are intended to ensure the efficient administration of justice and the orderly presentation of any Settlement Class Member’s objection to the Settlement, in accordance with the due process rights of all Settlement Members;
10.  The Settlement Administrator shall mail the Notice Packet to the Class Members as per the terms of the Settlement Agreement;
11. The Class Notice shall provide 60 calendar days’ notice for Class Members to submit disputes, opt-out, or object to the Settlement;
12.  The Final Approval Hearing as to whether the Settlement Agreement should be finally approved as fair, reasonable, and adequate shall be heard in Department 7 of this Court, located at 221 South Mooney Blvd. Visalia, California 93291, on a date and time specified in the “Order Granting Preliminary Approval of Class Action Settlement” that plaintiff has lodged with the Court. The Court retains the right to continue the date of the Final Approval Hearing without further notice to the Class Members
13.  At the Final Approval Hearing, the Court will determine (1) whether the Settlement Agreement should be approved as fair, reasonable, and adequate for the Settlement Class; (b) whether a judgment granting final approval of the Settlement Agreement should be entered, and (c) whether Plaintiff’s request for an enhancement payment, settlement administration costs, LWDA’s share of PAGA penalties and Class Counsel’s attorney fees and costs should be granted;
14.  Counsel for the parties shall file memoranda, declarations, or other statements and materials in support of their request for final approval of the Settlement and Plaintiff’s request for an enhancement payment, settlement administration costs, LWDA’s share of PAGA penalties and Class Counsel’s attorney fees and costs before the Final Approval Hearing according to the time limits set by the Code of Civil Procedure and the California Rules of Court;
15a. Defendant VF Outdoor LLC shall provide class contact information to the Settlement Administrator no later than 20 days business days after the entry of the “Order Granting Preliminary Approval of Class Action Settlement.”
15b. The Settlement Administrator shall mail the Notice Packet to the Class Members no later than 7 calendar days after receipt of class contact information;
15c. The deadline for Class Members to submit disputes, requests exclusion from, or object to the Settlement shall be within 60 calendar days after the mailing of the Notice Packet. The deadline for Class Members to submit Requests for Exclusion for to object may be extended by up to 14 days for any Class Member who is remailed a Notice Packet by the Settlement Administrator;
15d. The deadline for Class Members to file a Motion for Final Approval of Class Action Settlement shall be set by the Court in the “Order Granting Preliminary Approval of Class Action Settlement.”
15e. The Final Approval Hearing shall be set by the Court in the “Order Granting Preliminary Approval of Class Action Settlement.”
16.  Until the Final Approval Hearing, all proceedings in this action, other than proceeding necessary to carry out or enforce the terms and conditions of the Settlement are stayed.
17. Counsel for the parties are hereby authorized to utilize all reasonable procedures in connection with the administration of the Settlement that are not materially inconsistent with “Order Granting Preliminary Approval of Class Action Settlement” or the terms of the Settlement.

If no one requests oral argument, the Court is prepared to sign the “Order Granting Preliminary Approval of Class Action Settlement” that plaintiffs have lodged with the Court.

Re:             County of Tulare v. Gotham Bail Bonds, Inc.
Case No.:  VCU 274160
Date:         August 14, 2018
Time:         8:30 A.M. 
Dept.         7-The Honorable Bret D. Hillman
Motion:     Motion to Set Aside Summary Judgment , Vacate Forfeiture, and Exonerate Bail Bond
Tentative Ruling: To deny the motion of defendant Gotham Bail Bonds, Inc./Lexington National Insurance Company to set aside summary judgment, vacate forfeiture, and exonerate bail bond.

OPERATIVE FACTS
Miguel Angel Garcia was arrested on October 24, 2017 and charged with violation of Penal Code §273.75(a) and 273a(b). Bail was set at $50,000.00 on October 25, 2017. The Surety (the defendants in this present case) posted the Bond on October 25, 2017.

Mr. Garcia failed to appear at his arraignment on November 21, 2017, and the Bond was declared forfeited. On June 4, 2018, the court entered summary judgment against the Surety and sent notice of this order on June 5, 2018

AUTHORITY AND ANALYSIS

California statutes that govern bail further California’s stated policy of disfavoring bail forfeiture (People v. National Automobile and Casualty Insurance Company (2002) 98 Cal.App.4th 277, 287-88 (“[t]he law traditionally disfavors forfeitures, and this disfavor extends to forfeiture of bail.”)

However, it is the burden of the surety to show by competent evidence that the forfeiture should be set aside. People v Lexington National Insurance Corp. (2016) 205 Cal. Rptr. 3d 609.

In this motion, the surety argues that, since bail was set based on a schedule and not in accordance with the defendant’s ability to pay, that the summary judgment that the People obtained in this matter should be set aside, the forfeiture vacated, and the bond exonerated.

n support of this, surety cites In re Kenneth Humphrey (2018) 19 Cal. App. 5th 1006. Although that case found that a defendant’s ability to pay must be taken into account in setting bail, it was not a bail forfeiture case. Also, as the emails attached to the opposition make clear, both attorneys were aware that the Humphrey case is currently pending review in the California Supreme Court and may not be cited as precedent under California Rules of Court, Rule 8.1115 (e).

Although the court is aware that the rule allows a citation of a case under review for “potentially persuasive value,” Humphrey is does not deal directly with bail forfeiture, other than to support its continued value in cases such as this. The argument made here by the Surety would essentially invalidate any bail forfeiture decision made pre or post Humphrey when bail was set based on a bail schedule.  That would be a welcome windfall to bail companies, but the language of Humphrey doesn’t appear to support such a result. In Humphrey, the court said, “When money bail is imposed to prevent flight, the connection between the condition attached to the defendant's release and the governmental interest at stake is obvious: If the defendant fails to appear, the bail is forfeited. (§§ 1269b, subd. (h); 1305, subd. (a).”

Here, that is exactly what happened. The Humphrey count intended to aid defendants who could not afford bail and were being held despite low flight risk and lack of danger to the community, not bail agents who provide bail for absconding defendants.

The surety has not explained how it even has standing to assert the rights of the defendant to reduce or contest bail other the bail which was set by the court. The defendant could have sought bail review or reduction, had he appeared for the arraignment, but he declined to do so and is apparently still at large.

The Surety does cite to a 2007 University of Miami Law Review article, but that article concerns transporting prisoners and the Uniform Criminal Extradition Act.The People v. Amwest Surety Insurance Co (2004) 125 Cal.App.4th 547, 554-554, People v. National Automobile and Casualty Insurance Company (2002) 98 Cal.App.4th 277 and People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 660 cases cited by the Surety are also inapposite. 

The first two cases concern the requirement to recite the bail forfeiture on the record and make certain findings in order for a later summary judgment order to be valid. The third case says an order denying a motion to set aside the summary judgment on a bail bond forfeiture also does not stay the judgment's enforcement while an appeal is pending, absent the posting of an appeal bond.

In the absence of persuasive or citable authority to support the contentions being advanced, the court does not find that Surety has met its burden to establish by competent evidence and relevant authority that the forfeiture should be set aside.

Based on the foregoing, the motion to vacate the summary judgment that the People obtained in this matter is denied. The court makes no order on the request for fees and costs pursuant to Penal Code §1305.3 as the court can’t discern how fees were calculated based on the declaration submitted, but the court is willing to reconsider this ruling should either party desire oral argument.

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.

Re:             Davis v. Turney
Case No.:   VCU 271448
Date:          August 14, 2018
Time:         8:30 A.M. 
Dept.         7-The Honorable Bret D. Hillman
Motions:   Motions to Compel Responses from Plaintiff Debra Davis to Defendant’s First Sets of Special and Form Interrogatories and First Demand for Production of Documents

Tentative Ruling: To grant defendant Terry Turney’s motions to compel responses from plaintiff Debra Davis to defendant’s first sets of special and form interrogatories and first demand for production of documents. Plaintiff Debra Davis shall provide full and complete verified responses to these interrogatories and inspection demands without objection within thirty days from the notice date of these rulings.

Plaintiff Debra Davis shall also pay sanctions to defendant’s counsel in the amount of $310.50 within thirty days of the notice of these rulings under CCP §2023.030(a); CCP §2030.290(c) and CCP §2031.300(c).

The Court notes that this discovery motion was timely noticed and served on plaintiff at the address identified in her Complaint.  The Court has not received any response from plaintiff to this discovery motion.

Exhibit “A” to the declarations of Sean T. O’Rourke filed in support of each of these three discovery motions indicates that on March 17, 2018 defendant served his first sets of form and special interrogatories, and first request for production of documents on plaintiff at the address identified in plaintiff’s complaint. 

Mr. O’Rourke further testifies in his declarations that his office has not received any response whatsoever from plaintiff to defendant’s first sets of form or special interrogatories or first demand for production of documents.

 Based on plaintiff’s failure to response to any of these discovery demands, the Court orders under CCP §§§2030.290, and 2031.310, that plaintiff provide full and complete verified responses without objection to defendant’s first sets of form and special interrogatories, and first demand for production of documents within thirty days from the hearing date for this discovery motion.

The Court further orders under CCP §2023.030 (a); §2023.030(a) §2030.290(c) and §2031.300(c) that plaintiff Debra Davis shall pay monetary sanctions to defendant’s counsel in the amount of $310.50 within thirty days from the notice date of this ruling on these discovery motions.

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.

Re:             Gomez v. INVO PEO, Inc.
Case No.:  VCU 273882
Date:          August 14, 2018
Time:         8:30 A.M. 
Dept.         7-The Honorable Bret D. Hillman
Motion:     Application of Rex P. Fennessy to Appear Pro Hac Vice
Tentative Ruling: To grant the application of Rex P. Fennessy to appear pro hac vice in this action for defendant INVO PEO, II, Inc.

The court’s file for this action indicates that timely and proper notice was given to all parties affected by attorney Fennessy’s application to appear pro hac vice for defendant INVO PEO, II, Inc. in this action. The court has not received any response to this application.

The Court finds that attorney Fennessy meets the statutory requirements under California Rule of Court 9.40(a) to submit an application to appear pro hac vice before this Court, and that the contents of this application of attorney Fennessy and supporting declaration of California counsel K. Poncho Baker meet the statutory requirements of California Rule of Court 9.40(c) and (d).

The Court’s file for this matter further indicates that that the applicable fees that must be paid to the State Bar of California under Rule 9.40(e) and to this Court to support an application for admission pro hac vice have indeed been paid.

The Court further notes that Mr. Fennessy’s application meets the statutory requirements under California Rule of Court 9.40(d) for a pro hac vice application and that his prior appearances before the courts in this state are not sufficiently numerous to warrant denial of Mr. Fennessy’s present application under California Rule of Court 9.40(b).

Based on the foregoing, the application of attorney Rex P. Fennessy to appear as counsel pro hac vice for plaintiff INVO PEO, II, Inc. in this action is granted.

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.

Re:             Reed v. Steelex Industrial, Inc. and Related Cross-Action

Case No.:   VCU 269864

Date:          August 14, 2018

Time:         8:30 A.M. 

Dept.   7– The Honorable Bret Hillman

Motion:   Demurrer by Cross-Defendant Greg Ruhe to Cross-Complaint of Steelex Industrial, Inc., et al.

Tentative Ruling:  To Overrule the Demurrer by Cross-Defendant Greg Ruhe to Cross-Complaint of Steelex Industrial, Inc.  Cross-Defendant shall file an answer to the Cross-Complaint within ten (10) days of this order.

In this construction defect action Plaintiffs assert the residence and shop structures constructed by Defendants were materially defective.  Defendants have cross-complained for indemnity and contribution against other asserted contractors involved with the building.  Cross-Defendant Ruhe demurs, asserting all claims against him are time barred.  Cross-Defendant further asserts there are insufficient allegations of duty, breach, and causation as to Cross-Defendant.

According to the pleadings the agreement to construct the buildings was entered into in 2006.  The construction was completed in 2008.  Plaintiffs allege they discovered defects in 2015and when repairs were not satisfactory, filed this action on June 2, 2017.  The Cross-Complaint was filed on April 10, 2018.

For purposes of assessing the sufficiency of the demurrer, the court assumes the truth of all well-pleaded facts. (Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) The court also is to accept as true all facts that may be implied or inferred from those alleged. (Marshall v. Gibson, Dunn & Crutcher (1995) 37 Cal. App. 4th 1397, 1403.)   In addition, relevant matters that are properly the subject of judicial notice may be treated as having been pled. (Friedland v. City of Long Beach (1998) 62 Cal. App. 4th 835, 842; Code Civ. Proc., § 430.30, subd. (a).)

To support a cause of action, a plaintiff must “allege in the complaint the essential facts with such particularity and definiteness as to inform the defendant of the relationship of the parties and the nature of the cause which would create his liability.”  (Miller v. Pacific Constructors, Inc. (1945) 68 Cal.App.2d 529, 539.)

Negligence may be alleged in general terms. It is sufficient if the complaint discloses a duty on the part of the defendant to reasonably protect the plaintiff against the danger and injury complained of, his failure to do so and that the injuries were sustained as a result of that omission. It is not proper to allege evidentiary matters.  All that is required of the plaintiff, even as against a special demurrer, is to allege in the complaint the essential facts with such particularity and definiteness as to inform the defendant of the relationship of the parties and the nature of the cause which would create his liability for negligence. (Goldstein v. Healy (1921) 187 Cal. 206.)

Cross-Defendant’s Request for Judicial Notice of rainfall information taken from internet sites is overruled.

Plaintiffs assert claims against Cross-Complainants for damage caused by alleged defective work in the construction of Plaintiffs’ house and shop.  Cross-Complainants’ causes of action for indemnity and contribution are adequately pled.  Cross-Complainants assert any damages incurred by Plaintiffs were a result of Cross-Defendant’s negligence.  Plaintiffs seek recovery for property damage.  The economic loss doctrine (Seely v. White Motor Co. (1965) 63 Cal.2d 9) asserted by Cross-Defendant is not applicable to this action.

Plaintiffs assert in their Complaint that defects were not discovered until 2015.  For purposes of demurrer, Cross-Complainants’ indemnity and contribution claims are not time barred under CCP 337.1 or 338.

Because the court finds the above causes of action adequately pled, Cross-Defendants’ Declaratory Relief claim is adequate.

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.

Re:             Rodriguez v. State of California Dept. of Corrections and Rehabilitation
Case No.:  VCU 272047
Date:          August 14, 2018
Time:         8:30 A.M. 
Dept.         7-The Honorable Bret D. Hillman
Motion:    California Department of Corrections and Rehabilitation’s Motion for Judgment on the Pleadings
Tentative Ruling:  To continue the hearing on defendant’s motion for judgment on the pleadings and direct the defendant to file a declaration with the Court that complies with the “meet and confer “provisions of Code of Civil Procedure §§439(a)(3) within the time limitations set forth in that section.

CCP§439(a)(3) states that “The moving party shall file and serve with the motion for judgment on the pleadings a declaration stating either of the following: (A) The means by which the moving party met and conferred with the party who filed the pleading subject to the motion for judgment on the pleadings and that the parties did not reach an agreement resolving the objections raised by the motion for judgment on the pleadings [or] (B) That the party who filed the pleading subject to the motion for judgment on the pleadings failed to respond to the meet and confer request of the moving party or otherwise failed to meet and confer in good faith”

Accordingly, the Court orders that the hearing on defendant’s motion for judgment on the pleadings be continued to August 28, 2018. The Court also directs the defendant to file a declaration with the Court that complies with the “meet and confer “provisions of Code of Civil Procedure §§439(a)(3) within the time limitations set forth in that section.

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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