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: 05/28/2015 at 12:52pm

The Tentative Rulings for Thursday May 28, 2015 are:

Re:              Sikes v. FCA US LLC, et al.

Case No.:   VCU 259644

Date:          May 28, 2015

Time:         8:30 A.M. 

Dept.         2 – The Honorable Lloyd L Hicks

Motion:     Cross-Defendants Brian and Casandara Sikes’ Demurrer to FCA US LLC’s Cross-Complaint

Tentative Ruling: To sustain cross-defendants Brian and Casandara Sikes’ demurrer to FCA US LLC’s cross-complaint without leave to amend.

Cross-defendants Brian and Casandara Sikes’ demurrer to FCA US LLC’s (“FCA”) cross-complaint under CCP §1061. Section 1061 states that “The Court may refuse to exercise the power [to grant declaratory relief] where its declaration or determination is not necessary or proper at the time under the circumstances.”

A demurrer tests whether a pleading states a cause of action or defense, and in the words of the California Supreme Court in Moore v. Regents of the Univ. of Cal. (1990) 51 Cal.3d 120, 125:“

“Accordingly, we assume that complaint’s properly pleaded material allegations are true and give the complaint a reasonable interpretation by reading it as a whole and all of its parts in their context . . . we do not, however, assume the truth of the contentions, deductions, or conclusions of fact or law . . .” (citations omitted.)

For the purpose of testing the sufficiency of a cause of action, the demurrer admits the truth of all material facts properly pleaded – no matter how unlikely or improbably the allegations may be.  See Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-967, The plaintiff’s ability or inability to prove the allegations is of no concern at the demurrer stage. See Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197-213-214

Thus, the function of a demurrer is to test the sufficiency of a pleading by raising questions of law.  See Whitcomb v. County of Yolo (1977) 73 Cal.App.3d 698,702. 

All presumptions are against the pleader and all doubts as to whether a cause of action is pled are resolved against the proponent of the pleading, since it is presumed that the pleading states the cause as favorably as possible.  See Richmond Development Agency v. Western Title Guarantee (1975) 48 Cal.App.3d 343,349.

“The demurrer tests the pleading alone and not the evidence or other extrinsic matters which do not appear on the face of the pleading or cannot be properly inferred from the factual allegations of the complaint.” See Executive Landscape Corp. v. San Vicente Country Villas IV Assn. (1983) 145 Cal.App. 3d 496, 499.

The Sikes allege in their Complaint that FCA is liable for the civil penalties afforded to them under the Song-Beverly Consumer Warranty Act (“Act”) because FCA willfully violated the Act when it refused to promptly replace or repurchase the Sikes’ 2012 Dodge Challenger that FCA manufactured after multiple failed attempts to repair the vehicle as required under Civil Code §1793.2(d)(2). 

The Court notes that the affirmative defenses raised in FCA’s answer that go to the Sikes’ right to recover civil penalties under the Act are virtually identical to the allegations set forth in FCA’s cross-complaint.  Therefore, declaratory relief is unnecessary to resolve the issues raised in this case should FCA meet its burden of proof as to any of these affirmative defenses  See C.J. L. Construction v. Universal Plumbing (1993) 18 Cal.App.4th  376, 391-92.

Moreover, FCA’s cross-complaint for declaratory relief is neither necessary nor proper because the relief that FCA seeks is duplicative of the disputed issues raised by the Sikes’ complaint that the trier of fact will already be required to resolve.

In this action, the Sikes must prove that FCA willfully failed to comply with the Act when it refused to “promptly repurchase” their Dodge Challenger after a number of failed attempts to repair the vehicle. If the Sikes meet this burden, Civil Code §1794(c) affords to them a civil penalty imposed against FCA not to exceed twice the actual damages incurred. 

Where the question of whether FCA willfully violated its obligation under the Act to repair the Sikes’ car or refund the purchase price is a factual question for the jury, and it is the Sikes that bear the burden of proof on this issue, the finder of fact will resolve the Sikes’ claim for civil damages under §1794(c) without the necessity of FCA having to seek declaratory relief on this same issue.  See Oregel v. American Isuzu Motors, Inc. (2001) 90 Cal.App.4th 1094, 1104.

The Sikes also aptly note in their demurer that to permit FCA to bring an action for declaratory relief after the Sikes have already initiated litigation under the Act would render the civil penalty provisions provided for in the Act meaningless. 

Absent the incentive for manufacturers to promptly repurchase a vehicle after multiple failed efforts to repair it, manufacturers could circumvent the civil penalty provisions in the Act by simply waiting for the consumer to bear the cost and expense to file a lawsuit under the Act before offering the repurchase option.

But the very purpose and intent of the Act is to encourage manufacturers to promptly afford this repurchase option to the consumer when the manufacturer recognizes that the defects in the vehicle it produced cannot be adequately repaired.  See Jiaghogu v. Mercedes Benz (2004) 118 Cal.App.4th 1235, 1240; Civil Code §1793.2(d)(2)

Thus, where FCA was aware before the Sikes filed this present action of the multiple unsuccessful attempts to repair the Sikes’ 2012 Dodge Challenger that FCA manufactured, FCA’s offer to repurchase the Sikes’ vehicle after they filed their Complaint does not insulate FCA from the potential civil penalties that might be imposed against it under the Act, and FCA’s request for declaratory relief on that theory is improper.

Additionally, “[T]he purpose of declaratory relief is to liquidate uncertainties and controversies which might result in future litigation and whether a determination is proper in an action for declaratory relief is a matter within the trial court’s discretion.  See Interstate Marina Development Co. v. County of Los Angeles (1984) 155 Cal.App.3d 435, 443.

In this instance, the Court finds from a review of the Sikes’ complaint and FCA’s answer to that complaint (including the affirmative defenses asserted therein) that any disputed issues between the parties to this action will be fully and completely resolved by the finder of fact based on the ability of the parties to meet their respective burdens of proof as to the issues raised in the Sikes’ complaint and/or the affirmative defenses asserted in FCA’s answer.

As such, the Court finds that there would not be any need to add a cross-complaint for declaratory relief to this action to resolve any potential future litigation that might arise out of the facts of this case. 

Nor is the Court persuaded that FCA’s reliance on Wolf v. Walt Disney Pictures (2008) 162 Cal.App.1107, 1142-1143 as cited in Macquiddy v. Mercedes-Benz USA LLC (2015) 233 Cal.App.4th 1936 renders the addition of FCA’s cross-complaint in this present action to be “necessary and proper” within the scope of CCP §1061.

Notwithstanding that Wolf did not involve a cross-complaint that sought a remedy under the Song-Beverly Consumer Warranty Act, Disney’s cross-complaint for declaratory relief was based on the need for the finder of fact to resolve a controversy as to the interpretation of a contractual agreement between Wolf and Disney and based on that interpretation establish the respective rights and obligations of the contracting parties.  Thus in the Wolf case, an action for declaratory relief was properly deemed to be “necessary and proper” to deter any future litigation that might arise out of any subsequent dispute as to the interpretation of the subject agreement.

But in this present case, the rights and obligations of the Sikes plaintiffs and FCA under Song-Beverly are clearly defined by the statutory provisions set forth in the Act.

Thus the question here is not the nature of the obligations imposed on FCA under the Act, but whether FAC properly and timely fulfilled those statutory obligations when the 2012 Dodge Challenger that FCA manufactured and the Sikes purchased proved to be defective and could not be adequately repaired such that FCA was required to offer to repurchase this vehicle from the Sikes.

Based on the foregoing, cross-defendants’ demurrer to FCA’s cross-complaint is sustained without leave to amend based on the Court’s finding that declaratory relief is neither proper nor necessary to fully and properly adjudicate all of the issues raised in this action.

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:           Morrison v. Knight Transportation, Inc.

Case No: VCU 228016

Date:       May 28, 2015

Time:      8:30 A.M. 

Dept.:     2 - The Honorable Lloyd Hicks

Motions:  (1) Plaintiffs’ Motion for Summary Adjudication; and (2) Defendant’s Motion for Summary Judgment

Tentative Rulings:  (1) To Deny Plaintiffs’ Motion for Summary Adjudication; and (2) to Deny Defendant’s Motion for Summary Judgment

Defendant’s objections to the declaration of Rosie Salinas are sustained for the reasons set forth in Defendant’s authorities and the declaration is stricken.

The rulings on Defendant’s objections to Plaintiffs’ evidence are in the file.  44 times Knight objects on the basis that it is irrelevant whether Knight had or has “California-compliant” meal break policies or procedures citing Dailey v. Sears (2013) 214 Cal.App.4th 974.  The entire issue for determination at the initial stage is, in fact, that to which Defendant objects as irrelevant - - whether Knight had/has a meal break policy that conforms with California law such that Plaintiffs were “provided” with meal breaks as explained in Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004.

As to both motions:

Plaintiffs’ seek summary adjudication of the First and Third Causes of Action of the First Amended Complaint.  Plaintiffs allege that there is undisputed evidence that there was no company-wide California compliant break policy and thus Defendant has failed to “provide” breaks as required by law.

Defendant seeks summary judgment on the same issue, alleging that it has and had a company-wide policy that complies with state law as shown by the evidence it presents.

The court finds that 24 of Plaintiffs’ 44 purported undisputed facts are disputed by Defendant.  Further, 7 of Defendant’s 8 purported undisputed facts are disputed by Plaintiffs.

A single material fact disputed with competent evidence precludes summary judgment and adjudication.  There are numerous disputes regarding the factual basis for Plaintiffs’ legal theories and the factual basis for Defendant’s legal theories.  The over-arching factual dispute is whether Defendant’s postings, provided cards, and information effectively communicates the information contained therein to class members.

Factual sub-disputes include when and where wage order posters were displayed; when and how internet postings were made; what training regarding right to meal and/or rest breaks was provided to drivers; and whether drivers were authorized and permitted to take completely off duty meal breaks.

Strictly legal issues determinative of liability cannot be adjudicated at this point.  Resolution of at least some of the above referenced factual disputes is required first, necessitating a trial on the issue of liability.

If no one requests oral argument, Defendant shall submit a proposed order as to motion (1) and Plaintiffs shall submit a proposed order as to motion (2) in compliance with CCP section 437c(g) and prepared and served in compliance with CRC, rule 3.1312.


Re:          American Express Bank, FSB v. Hinds

Case No: VCU 246006

Date:       May 28, 2015

Time:      8:30 A.M. 

Dept.:     2 - The Honorable Lloyd Hicks

Motion:   Plaintiff’s Application for Order Vacating Dismissal and Entering Judgment Against Defendant Pursuant to CCP 664.6

Tentative Ruling:  To Grant Plaintiff’s Application for Order Vacating Dismissal and Entering Judgment Against Defendant Pursuant to CCP 664.6; to Order the Dismissal entered May 14, 2012 is vacated and to Order that Plaintiff recover from Defendant Lisa Hinds aka Lisa L. Hinds aka Lisa L. Clyburnehinds, individually and dba Kids Edition the principal amount of $20,561.16 plus costs of $570.00 for a total judgment of $21,131.16.

Proof of service in the file indicates that notice of the motion was adequate.  No response to the motion has been filed.  Plaintiff’s moving papers are sufficient to establish that Defendant has defaulted under the terms of a written payment stipulation leaving a balance remaining due to Plaintiff.  Plaintiff’s moving papers are sufficient to establish that Plaintiff is entitled to the relief requested.

If no one requests oral argument, the court is prepared to sign the form of order lodged by Plaintiff.



This concludes the civil tentative rulings