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: 09/24/2016 at 8:39pm

The Tentative Rulings for Monday September 26, 2016 are:

Re:             MHC Operating LP dba Royal Oaks v. Tashijian

Case No.:   VCL 174990

Date:           September 26, 2016

Time:           8:30 A.M. 

Dept.           1– The Honorable Melinda Reed

Motion        Plaintiff MHC Operating LP dba Royal Oaks’ Verified Petition for Injunctive Relief Pursuant to Civil Code §798.88

Tentative Ruling:  There is no tentative ruling in this matter. The parties are directed to meaningfully meet and confer in order to resolve this matter. If unable to resolve, the parties and counsel are directed to personally appear at the hearing. No CourtCall is permitted if the parties are unable to resolve the matter on the merits.

Re:             Villa v. Caliber Home Loans, Inc., et al.

Case No.:   VCU 266054

Date:          September 26, 2016

Time:          8:30 A.M. 

Dept.          1– The Honorable Melinda Reed

Motion:      Demurrer by Defendant Caliber Home Loans, Inc. to Plaintiff’s Complaint 

Tentative Ruling:  To sustain the Demurrer by Defendant Caliber Home Loans, Inc. to Plaintiff’s Complaint with leave to amend as to the first, second, third, and fourth causes of action; and to sustain without leave to amend as to the fifth cause of action.

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

Defendant Caliber Home Loans, Inc.’s (Caliber) request for judicial notice is granted.

Plaintiff Ramon Villa’s complaint for wrongful foreclosure alleges Caliber and defendant Bank of America, NA violated the Homeowner’s Bill of Rights pre-contact requirements, failed to process Villa’s application for loan modification in good faith, and had no authority to foreclose upon his property.

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].”

The gravamen of Villa’s first cause of action against Caliber (breach of Civil Code section 2923.5), second cause of action (set aside trustee’s sale), and third cause of action (to void or cancel trustee’s deed upon sale) is that Caliber failed to comply with the pre-contact requirements of the Homeowner’s Bill of Rights under Civil Code section 2923.5.

On demurrer, Caliber has sufficiently shown Villa’s pre-contact claims are defective because he failed to allege the property at issue is his principal place of residence under Civil Code section 2924.15, and that Caliber is an entity required to comply with the pre-contact requirements under Civil Code section 2923.5(g). Furthermore, Villa’s allegations that Caliber did not contact him are contradicted by portions of the complaint that state Caliber discussed loan modification with Villa prior to foreclosure (complaint, p. 4).

As to the fourth cause of action for wrongful foreclosure alleging lack of authority to foreclose on the property, Villa has failed to allege any facts supporting his claim. Moreover, the judicially noticed documents show Villa’s loan and deed of trust were properly assigned and the foreclosing entities, including Caliber had authority to initiate foreclosure.

In regard to the fifth cause of action for breach of the implied covenant of good faith and fair dealing, the underlying deed of trust explicitly allows for foreclosure in the event of Villa’s default in payment. As such, the covenant of good faith and fair dealing cannot "be read to prohibit a party from doing that which is expressly permitted by an agreement." (Carma Developers (Cal.), Inc. v. Marathon Dev.  Cal., Inc. (1992) 2 Cal. 4th 342, 374.) 

In short, the allegations of Villa’s complaint are insufficient as a matter of law. Although, Villa has not submitted any opposition to the demurrer or shown that he can properly amend his pre-contact or wrongful foreclosure claims, leave to amend is to be liberally granted. Thus, Villa is given the opportunity to amend these claims if he can. As to the breach of the covenant of good faith and fair dealing claim, there are no facts in the complaint showing a contract from which Villa could plausibly assert a breach of the covenant of good faith and fair dealing.

Accordingly, the demurrer is sustained as to the first, second, third, and fourth causes of action with leave to amend within 10 days’ notice of the court’s order; and sustained without leave to amend as to the fifth cause of 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:           Ochoa, et al. v. Setton Pistachio of Terra Bella, Inc., et al.

Case No:  VCU 255716

Date:         September 26, 2016

Time:         8:30 A.M. 

Dept.         1 - The Honorable Melinda Reed

Motion:     Defendant T.M. Duche Nut Co., Inc.’s Motion for Summary Judgment or, Alternatively, for Summary Adjudication

Tentative Ruling:     To grant Defendant T.M. Duche Nut Co., Inc.’s Motion for Summary Judgment.

The second amended complaint of plaintiffs Sylvia Ochoa, in her individual capacity and as personal representative of the estate of Fernando Santiesteban, and Angie Ruiz, guardian ad litem of Fernando Santiesteban Jr. and Angel Santiesteban, (collectively Ochoa) asserts claims against defendant T.M. Duche Nut Co. Inc. (Duche) for fatal injuries Fernando Santiesteban incurred while working on an allegedly defective auger during his employment with defendant Setton Pistachio of Terra Bella, Inc. (Setton).

The second amended complaint alleges causes of action for strict liability against Duche for manufacturing defects (second cause of action), design defects (third cause of action), and failure to warn (fourth cause of action). The eighth and tenth causes against Duche assert claims for negligence and premises liability, respectively. As to the strict liability claims, Duche contends there are no facts showing Duche manufactured or designed the auger; as to the negligence causes of action Duche asserts it is not liable because it has no connection with Setton or the defective auger. 

This is the third motion for summary judgment that has come before the court in this case. Defendant Dole Food Company’s (Dole) motion was previously granted essentially on the same grounds now brought by Duche. The summary judgment motion by Setton and its related entities was also granted with the exception of negligence claims against two of the entities.   

Ochoa’s request to continue the motion under Code of Civil Procedure section 437c(h) is denied based upon an insufficient showing of outstanding discovery containing facts essential to justify opposition to summary judgment. In particular, as to the ninth request for admission asking for Duche’s admission of inheritance of goodwill, under the circumstances of this case there is no reasonable belief of the existence of the admission, or that the admission is essential to oppose summary judgment. (See Cooksey v. Alexakis (2004) 123 Cal. App. 4th 246, 254; Granadino v. Wells Fargo Bank, N.A.  (2015) 236 Cal. App. 4th 411, 420.) Likewise, as to discovery concerning escrow documents, Ochoa has failed to show that specific information exists necessary for it to avoid summary judgment.

The parties’ requests for judicial notice are granted as to the existence of the documents only, and not for the truth of the facts asserted in the documents under Herrera v. Deutsche Bank Nat. Trust Co. (2011) 196 Cal. App. 4th 1366, 1375, except as to documents written by Duche.  Facts asserted by Duche contained in documents it authored are considered for the truth as admissions under Evidence Code section 1220.

The court’s rulings on objections to evidence material to disposition of the motion are stated on the forms provided. (See Code Civ. Proc., § 437c, subd. (q).)

Standard of Review

Summary judgment is granted when no triable issue exists as to any material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).) Summary adjudication is procedurally the same as summary judgment. (Code Civ. Proc., §437c, subd. (f)(2).) "[T]he party moving for summary judgment bears an initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he carries his burden of production, he causes a shift, and the opposing party is then subjected to a burden of production of his own to make a prima facie showing of the existence of a triable issue of material fact." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 850.)

Further, in ruling on a motion for summary judgment or adjudication, the court “must consider all of the evidence and all of the inferences reasonably drawn therefrom … and must view such evidence (citations) in the light most favorable to the opposing party.” (Aguilar v. Atlantic Richfield Co., supra, 25 Cal. 4th at 843.)

The Strict Liability Claims

Duche has carried its threshold burden of production by submitting admissible evidence showing Duche did not manufacture, supply, or market the auger under DiCola v. White Bros. Performance Prods., Inc. (2008) 158 Cal. App. 4th 666, 678 and Ortiz v. HPM Corp. (1991) 234 Cal. App. 3d 178, 188.

Accordingly, the burden shifts to Ochoa to show the existence of a triable issue of material fact. In opposition, Ochoa argues the evidence sufficiently shows Duche is liable as a successor-in-interest to Dole and Duche “is a continuation of former T.M. Duche Nut Co., who admittedly had the machinery ‘in this Defendant’s possession, custody or control.’ (Ochoa’s additional undisputed fact no. 66.)

As to Ochoa’s claims of  successor liability, the admissible evidence shows (1) the former T.M. Duche Nut Co., Inc. (former Duche) incorporated in 1943 and was headquartered in Orland, California; (2) between 1943 and 1987 the former Duche was a subsidiary to Apache Corporation; (3) prior to 1987, the Terra Bella processing  plant where the accident occurred was held in the name of Apache Corporation; (4) in 1987 Dole Dried Fruit and Nut Co., or related entity, acquired  Apache Corporation, including the stock of the former Duche, and merged the former Duche’s assets into the Dole entities by changing the former Duche’s name to Dole Nut Co.; and (5) Setton purchased the Terra Bella plant from Dole Dried Fruit and Nut Co. in 1995.

In regard to Duche’s corporate status, the evidence shows (1) it came into existence in 2000 and purchased Dole’s Orland processing plant and two receiving stations that did not include the Terra Bella plant; (2) the co-owner of Duche chose its name because he remembered the former Duche and thought the name would be helpful to business; (3) Duche began using some of the signage and artwork used by former Duche; and (3) Duche references the history of the former Duche name in its marketing materials.

Ochoa’s argument that Duche functions as a continuation of the former Duche because it adopted the defunct company’s name and used its signage is unpersuasive. Ochoa has not submitted any evidence that Dole’s sale to Duche included the good will of the former Duche or other intangible assets. Ochoa has no evidence the sale included the former Duche’s name. Indeed, at the time of the sale to Duche, the former Duche was not even in existence.

Likewise, Ochoa’s contention that Duche is liable as a successor to Dole for public policy reasons under Ray v. Alad Corp. (1977) 19 Cal. 3rd 22 and Rawlings v. D.M. Oliver, Inc. (1979) 97 Cal.App.3d 890, is unavailing. Contrary to Ochoa’s argument, none of Ochoa’s admissible evidence shows directly or by any inference that Duche’s purchase of Dole’s Orlando processing plant or Setton’s purchase of the Terra Bella plant were made for the fraudulent purpose of avoiding liabilities; that Duche is in the business of manufacturing or distributing augers; or that Dole was in the business of selling augers at the time of the sales.

In short, Ochoa’s burden has not been met; there are no triable issues remaining to be determined on Ochoa’s claims of successor liability.

The Negligence Claims

As with Ochoa’s strict liability claims, Duche has met its threshold burden and shown it is not liable under Civil Code section 1717 and Preston v. Goldman (1986) 42 Cal. 3d 108 for the alleged defective condition of the auger based on admissible evidence showing it did not own or operate the property at the time of the accident.

Ochoa’s argument that Duche is liable under the Restatement 2d of Torts section 353, as a seller of the Terra Bella plant and concealed the alleged dangerous condition of the auger from Setton when it bought the plant, is baseless. Ochoa presented no evidence showing that Duche or the former Duche ever had an interest in the Terra Bella processing plant.  At the time the Terra Bella plant was sold to Dole in 1987, it was owned and operated by Apache Corporation and utilized the Apache name.  As of 1987, Apache was the parent corporation to the former Duche which continued to own and operate the Orland facility under the T.M. Duche name. Finally, when Dole sold the Terra Bella plant to Setton in 1995 (some 16 years prior to the subject accident), neither of the Duche companies were even in existence.

In sum, there are no facts in dispute or giving rise to a reasonable inference that Duche did not own or possess the auger at the time of the accident; and that it did not have any possessory interest in the Terra Bella plant or the auger at the time Dole sold the plant to Setton.

The Alleged Judicial Admission

Ochoa asserts Duche is not entitled to summary judgment because Duche has judicially admitted as to all causes of action that it had possession, custody, or control over the auger. In support, Ochoa argues Duche’s 23rd affirmative defense stating that Duche “is informed and believes, and thereupon alleges, that the machinery was not in a defective condition at any time when it was in this Defendant’s possession, custody, or control” is a binding judicial admission. The court disagrees.

Duche’s answer is a general denial containing 27 affirmative defenses. In other defenses, Duche included conditioning or limiting language not included on the 23rd.  For example, the 19th affirmative defense asserts other parties altered the product “. . . after it left the control, if any, of this Defendant. . . .” (Emphasis supplied.) Similarly, the 25th affirmative defense states the machinery was not in the same condition at the time of the accident “. . . as any time it was allegedly in possession of this Defendant.” (Emphasis supplied.)

Ochoa’s reliance on Valerio v. Andrew Youngquist Construction (2002) 103 Cal. App. 4th 1264, in support of their contention is unavailing as the facts here are distinguishable. Unlike Valerio, Duche’s answer to the unverified second amended complaint contains a general denial of all allegations of the complaint. Under Edger v. Foster (1941) 48 CA2d 580, 583, a defendant may deny certain material allegations of the complaint and, in an affirmative defense, allege the same allegations are true, yet the allegations in the affirmative defense will not constitute an admission of the truth of those allegations in the complaint. (See also Harris v. City of Santa Monica (2013) 56 Cal. 4th 703, 240-241.)

Moreover, under governing California law a judicial admission is a party’s “unequivocal concession of the truth of a matter, and removes the matter as an issue in the case.” (Gelfo v. Lockheed Martin Corp. (2006)140 Cal. App. 4th 34, 38.) Here, under the circumstances of this case, Duche’s 23rd affirmative defense is hardly an unequivocal concession of its ownership, custody, or control over the auger.


Ochoa has failed to meet their burden and show a triable issue of material fact as to their causes of action for strict liability and negligence. Duche’s submitted facts numbered 1 through12 are not reasonably disputed by the evidence Ochoa submitted. Moreover, Ochoa’s additional submitted facts numbered 1through 164 are not supported by sufficient evidence for Ochoa to meet its burden on summary judgment. Accordingly, after considering all of the evidence and inferences reasonably drawn therefrom, as a matter of law there is no dispute Duche did not design or manufacture the auger, did not exercise control over the Terra Bella plant or auger at the time of the accident; and did not conceal any alleged dangerous condition of the auger or processing plant.

Thus, Duche’s motion for summary judgment is granted.

If no one requests oral argument Duche shall submit a proposed order in compliance with CCP section 437c(g) and prepared and served in compliance with CRC, rule 3.1312.


This concludes the civil tentative rulings