Tentative Rulings

The Tentative Rulings for Monday, April 29, 2024, are:

Re:               C. S., vs. DOE 1

Case No.:  VCU293358

Date:           April 29, 2024

Time:          1:30 P.M. 

Dept.          1-The Honorable David C. Mathias

Motion:     Doe 1’s Motion for Summary Judgment

Tentative Ruling: To grant the motion   

Doe 1’s Motion for Summary Judgment

Defendant’s summary judgment motion is based primarily on the undisputed material fact that Plaintiff was not in foster care in the County of Tulare in 1981 and the operative complaint’s allegation that abuse occurred in approximately 1981. (UMF Nos. 4, 6, 8, 12, 13.)

The Court, having denied Plaintiff’s motion for leave to amend, evaluates the motion based upon the operative complaint alleging abuse occurred in 1981. “The pleadings play a key role in a summary judgment motion. The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues and to frame the outer measure of materiality in a summary judgment proceeding.” (Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493, quotations and citations omitted.) “Accordingly, the burden of a defendant moving for summary judgment only requires that he or she negate plaintiff's theories of liability as alleged in the complaint; that is, a moving party need not refute liability on some theoretical possibility not included in the pleadings.” (Id.) 

“To prevail in a negligence action, a plaintiff must show that the defendant owed a legal duty, the defendant breached that duty and the breach proximately caused injury to the plaintiff.” (J.L. v. Children’s Institute, Inc. (2009) 177 Cal.App.4th 388, 396.)

“[T]he initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.”  (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.)  A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.”  (Code Civ. Proc., § 437c, subd. (p)(2).)  To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)  It is insufficient for the defendant to merely point out the absence of evidence.  (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.)  The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.”  (Ibid.)  The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken.  (Aguilar, supra, 25 Cal.4th at p. 855.)

“Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.”  (Code Civ. Proc., § 437c, subd. (p)(2).)  The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.”  (Ibid.)  “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

Defendant has met its initial burden through undisputed material facts that Plaintiff was outside the County of Tulare in 1981. As a matter of law, the Court finds that Defendant could not have owed a duty to Plaintiff, breached any duty to Plaintiff or proximately caused Plaintiff’s alleged injuries in 1981 because the undisputed material facts demonstrate Plaintiff was not within the County of Tulare at the time of the alleged abuse. (UMF Nos. 12, 13.)

Plaintiff, having had the motion to amend the complaint denied, has failed to set forth specific, admissible facts that demonstrate a triable issue of fact as to the presence of Plaintiff in the County of Tulare in 1981.

The Court, therefore, grants summary judgment.

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:                Taft, Foster vs. Bhajal, Sukhvinder MD

Case No.:  VCU283752

Date:           April 29, 2024

Time:           8:30 A.M. 

Dept.           7-The Honorable Gary M. Johnson

Motion:     Plaintiff’s Motion for Summary Judgment

There is no tentative ruling on the motion at this time.  Instead, hearing on the motion will be continued to permit time for the parties to participate in a mandatory settlement conference as soon as the parties’ and the court’s availability permits. 

The parties are directed to appear at the hearing for the purpose of scheduling a date for the mandatory settlement conference and a trailing date for continued hearing on plaintiff Taft’s motion. 

It appears, based on plaintiff Taft’s pleadings and the prior records of this action, that Taft has already been provided with all the records he seeks in this action from third-party Boston Scientific.  Indeed, Taft contends there is no triable issue remaining on his claim against Dr. Bhajal specifically because Dr. Bhajal has not, Taft asserts, provided Taft all the same records that Boston has already provided. 

Under Health and Safety Code section 123110, a patient’s “beneficiary” (as defined under Probate Code section 24) or “personal representative” (as defined in Probate Code section 58) is entitled to inspect the patient’s records on request and payment of reasonable costs.  Section 123120 provides: “Any patient or representative aggrieved by a violation of Section 123110 may, in addition to any other remedy provided by law, bring an action against the health care provider to enforce the obligations prescribed by Section 123110. Any judgment rendered in the action may, in the discretion of the court, include an award of costs and reasonable attorney fees to the prevailing party.”

Notably, the statute under which Taft’s medical records claim arises only permits him to enforce his right to records (it also provides for attorney fees, but Taft is self-represented) and, accordingly, there are no issues relating to damages or statutory penalties presented by this action. 

Setting aside, at this point, whether Taft’s contentions are supported by his evidentiary showing, it appears, based on the court’s review, that this action continues solely because Taft wants this court to order Dr. Bhajal, specifically, to provide him with certain ECG records that Taft already has from Boston.  The court does not here consider the legal effect, if any, to Taft’s claim of the apparent fact that Taft already has the records he seeks. 

Instead, the court simply believes, if its assessment of the case at this stage is correct, that the parties’ dispute should be readily resolvable at a settlement conference in the near term and that potentially needless further litigation may be obviated as a result. 

Re:               Quiroz, Jathan vs. California Department of Transportation

Case No.: VCU297860

Date:          April 29, 2024

Time:          8:30 A.M. 

Dept.          7-The Honorable Gary M. Johnson

Motion:     Defendant City of Tulare’s Motion for Leave to File Amended Answer

Tentative Ruling: To continue the motion to May 13, 2024, 8:30 am, Dept. 7 as to further explanation of the facts discovered at the March 13, 2024 and March 14, 2024 depositions that prompted this motion.

Facts

On April 27, 2023, Plaintiff filed a complaint alleging that, on August 16, 2022, a vehicle struck and injured him as he was walking in a marked crosswalk. Plaintiff sued, amongst others, the City of Tulare.

On July 5, 2023, the City filed an answer including immunity defenses under Government Code sections 815.2(b) and 820.8.

The City now seeks to file an amended answer that adds immunities under —Government Code sections 830.4, 830.6, 830.8, 831.4 and 835.4(b).

The City has included proposed amended answer and a declaration of counsel. However, as examined in detail below, the declaration merely recites the requisite language found in the applicable Rules of Court and fails to provide a basis for the Court to grant the motion at this time.

Trial in this matter is set for July 22, 2024.

Authority and Analysis

The Court may, in the furtherance of justice, and upon any terms as may be proper, allow a party to amend any pleading.  (Code Civ. Proc. §§ 473, 576.)  In general, California courts liberally exercise discretion to permit amendment of pleadings in light of a strong policy favoring resolution of all disputes between parties in the same action.  (Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939; Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290, 296 [“[T]here is a strong policy in favor of liberal allowance of amendments.”].)  Pursuant to this policy, requests for leave to amend generally will be granted unless the party seeking to amend has been dilatory in bringing the proposed amendment before the Court, and the delay in seeking leave to amend will cause prejudice to the opposing party if leave to amend is granted.  (Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 490; Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564-565.)  The decision on a motion for leave is directed to the sound discretion of the trial court. 

Here, the Court recognizes that these additional statutory immunities are closely related to the affirmative defenses and the City’s overall denial of liability in this matter.

Rule 3.1324 regulates the content of the motion and supporting declaration as follows:

“(a) Contents of motion

A motion to amend a pleading before trial must:

(1)  Include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments;

(2)  State what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph, and line number, the deleted allegations are located; and

(3)  State what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located.

(b) Supporting declaration

A separate declaration must accompany the motion and must specify:

(1)  The effect of the amendment;

(2)  Why the amendment is necessary and proper;

(3)  When the facts giving rise to the amended allegations were discovered; and

(4)  The reasons why the request for amendment was not made earlier.”

It is within the court’s discretion to require compliance with Rule 3.1324 before granting leave to amend. (Hataishi v. First American Home Buyers Protection Corp. (2014) 223 Cal.App.4th 1454, 1469.)

Here, the Court finds compliance with subsection (a) as to the attachment of the proposed amended answer and the pinpoint citations to the added immunity defenses.

As to subsection (b)(1), the effect of the amendment is to add additional immunities. However, declaration as to the (b)(2) and (b)(3) is wholly conclusory. That the amendment is necessary because the City “is immune from liability” does not satisfy the “necessary and proper” requirement. Similarly, the Court lacks what facts were revealed in the March 2024 depositions that gave rise to the need for the additional immunities. As to (b)(4), if the March 2024 depositions revealed the facts giving rise to these defenses for the first time,  the Court finds the declaration in compliance with (b)(4).

The Court, therefore, continues the motion to May 13, 2024, 8:30 am, Dept. 7 as to the additional information via declaration required under rule 3.1324(b)(2) and (b)(3).

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:                Matevosyan, Maria vs. CNH Industrial N.V.

Case No.:  VCU296053

Date:           April 29, 2024

Time:           8:30 A.M. 

Dept.           7-The Honorable Gary Johnson

Motion:      Motion to Quash Based on Personal Jurisdiction

Tentative Ruling: To grant the motion

Facts

On February 22, 2023, the Plaintiffs filed their complaint alleging product liability and negligence claims against the defendants. Plaintiffs allege that Markar Matevosyan was killed while working with a Steiger 435 tractor bearing product identification number ZAF11829. Plaintiffs filed this action under claims of product liability and negligence claims.

On July 5, 2023, Defendant, CNH Industrial America LLC, filed their answer.

On July 10, 2023, Defendant, Linder Equipment Co., filed their answer.

On March 8, 2024, Defendant and moving party CNH Industrial N.V. filed this motion to quash.

Authority and Analysis

“When a defendant challenges jurisdiction through a motion to quash, the plaintiff bears the burden to demonstrate facts, as to each nonresident defendant, justifying the exercise of jurisdiction by a preponderance of evidence. [Citation.] The plaintiff must provide specific evidentiary facts, through affidavits and other authenticated documents, sufficient to allow the court to independently conclude whether jurisdiction is appropriate. [Citation.] The plaintiff cannot rely on allegations in an unverified complaint or vague and conclusory assertions of ultimate facts. [Citation.]” (Strasner v. Touchstone Wireless Repair and Logistics, LP (2016) 5 Cal.App.5th 215, 221-222.) (emphasis added.)

As to this burden, Plaintiff claims:

[i]n California, CNH N.V. has invested in California businesses with an eye towards growth in the Central California agricultural market. Consistent with its intent to grow in Central California, CNH N.V., through its United States subsidiary, has also collaborated with schools located in Central California, including Bakersfield and Merced, to recruit and train local residents on its equipment.

General Jurisdiction

The Court of Appeal in DVI, Inc. v. Superior Court, (2002) 104 Cal.App.4th 1080, 1086 held,

“…a parent company’s ownership or control of a subsidiary corporation does not, without more, subject the parent corporation to the jurisdiction of the state where the subsidiary does business. A parent holding company may be subject to general jurisdiction only under limited circumstances. Those circumstances permitting the exercise of general jurisdiction include alter ego relationship or the parent’s exercise of such a degree of control of the subsidiary as to reflect the parent’s purposeful disregard of the subsidiary’s independent corporate existence.”

Rather, in order to exercise general jurisdiction the defendant’s contacts with the forum must be so continuous and systematic as to render them essentially at home in the forum state. (Daimler AG v. Bauman (2014) 571 U.S. 117, 127 quoting Goodyear v. Brown (2011) 564 U.S. 915, 919.)

Here, CNH Industrial America LLC, the subsidiary of CNH Industrial N.V., filed an answer to the complaint on July 5, 2023, implicitly acknowledging they were the proper defendant to file suit against.

In their opposition to the Motion to Quash, the Plaintiffs do not claim that CNH Industrial N.V. are treating CNH Industrial America LLC as their alter ego or that CNH Industrial N.V. has such a degree of control of CNH Industrial America LLC as to reflect CNH Industrial N.V.’s purposeful disregard of CNH Industrial America LLC’s independent corporate existence.

The only contacts alleged by the Plaintiff, stated above, acknowledges that CNH Industrial N.V. “acts” through its subsidiary, but does not allege facts to support that CNH Industrial N.V. is treating CNH Industrial America LLC as its alter ego or purposefully disregarding their corporate existence.

Even if this were the case, the alleged contacts are not continuous and systematic enough to consider CNH Industrial N.V. as “at home” in California.

Specific Jurisdiction

As to specific jurisdiction, the court in Burdick v. Superior Court (2015) 233 Cal. App. 4th 8, 18 notes:

“A nonresident defendant may be subject to specific jurisdiction if three requirements are met: (1) the defendant has purposefully availed itself of forum benefits with respect to the matter in controversy; (2) the controversy is related to or arises out of the defendant’s contacts with the forum; and (3) the exercise of jurisdiction would comport with fair play and substantial justice.”

CNH Industrial N.V. Has Not Purposefully Availed Itself of Forum Benefits With Respect to the Matter in Controversey

None of the alleged contacts asserted by the Plaintiffs demonstrate that CNH Industrial N.V. purposefully availed itself of the benefits in California, much less in a way that relates to the matter in controversy. Nothing submitted by the Plaintiff refutes the evidence provided by the defendant showing the tractor in question was made in the U.S.A. by CNH America LLC in Racine, WI 53404. The Plaintiffs also do not demonstrate how CNH Industrial N.V. designed the subject tractor.

Consequently, the Plaintiffs have not demonstrated how CNH Industrial N.V. has purposefully availed itself to the benefits of California as they relate to the subject tractor.

The Controversy Does Not Relate to or Arise Out of CNH Industrial N.V.’s Contacts with California

The only contacts alleged by the Plaintiffs are: [i]n California, CNH N.V. has invested in California businesses with an eye towards growth in the Central California agricultural market. Consistent with its intent to grow in Central California, CNH N.V., through its United States subsidiary, has also collaborated with schools located in Central California, including Bakersfield and Merced, to recruit and train local residents on its equipment.

None of these contacts relate to the subject tractor in this case.

The Exercise of Jurisdiction Would Not Comport With Fair Play And Substantial Justice

The notion of “fair play and substantial justice” inquires into: (a) the extent of defendant’s contacts with the forum, (b) the relationship between the contact and plaintiff's claims, and (c) whether this makes it reasonable to require the defendant to defend the action in California. World-Wide Volkswagen v. Woodson (1980) 444 U.S. 286, 292.

1. The extent of defendant’s contacts with the forum

The only contacts alleged by the Plaintiffs are [i]n California, CNH N.V. has invested in California businesses with an eye towards growth in the Central California agricultural market. Consistent with its intent to grow in Central California, CNH N.V., through its United States subsidiary, has also collaborated with schools located in Central California, including Bakersfield and Merced, to recruit and train local residents on its equipment.

Only one of these contacts are alleged to be CNH Industrial N.V. Specifically, that CNH Industrial N.V. has invested in California business with an eye towards growth in the Central California agricultural market. This contact is minimal and does not support the notion that fair play and substantial justice would be served by exercising jurisdiction over CNH Industrial N.V. in this case. Further, CNH Industrial N.V. contends that it is there subsidiary that engaged in these contacts, not CNH Industrial N.V.

2. The relationship between the contact and plaintiff’s claim

The alleged contacts with California and the claims in this case have nothing to do with one another. These contacts do not demonstrate any connection to the design, manufacture or sale of the subject tractor or any other aspects of the Plaintiffs claims.

3. Whether this makes it reasonable to require the defendant to defend the action in California

Nothing asserted by the Plaintiffs demonstrates that it would be reasonable to require CNH Industrial N.V. to appear in California and defend against this suit.

Therefore, the Court grants the motion to quash, finding a lack of either general or specific personal jurisdiction.

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:                 Patterson, Jason vs. Complete Solar Inc.

Case No.:   VCU287843

Date:           April 29, 2024

Time:           8:30 A.M. 

Dept.          7-The Honorable Gary M. Johnson

Motion:     Plaintiff’s Motion to Compel Further Responses to Special Interrogatories, Set Two, Propounded on V3 Electric Inc.

Tentative Ruling: To grant the motion and order further responses no later than thirty (30) days from the date of this hearing; to impose sanctions against Defendant and its counsel of record, jointly and severally, in the amount of $410, due no later than thirty (30) days from the date of this hearing.

Facts

This is an action for breach of warranty, Song-Beverly, Consumer Legal Remedies Act, and Unfair Competition involving a solar purchase by Plaintiff in 2015, various representations made thereof, and the assignment of Plaintiff’s solar loan, and servicing of Plaintiff’s solar system, to various named Defendants, including Defendant V3 Electric, Inc.

Plaintiff explains that when the rooftop solar power system was purchased from SunEdison Residential Services LLC (“SER”) in 2015, the system was accompanied by two express warranties. SER provided an express warranty (“SER Warranty”) and Defendant V3 Electric, Inc. (“V3”) is alleged to have provided a second express warranty (“V3 Warranty”).

Plaintiff further states that the V3 Warranty was created by the agreement between SER and V3 (“Turnkey Installation Agreement”) for V3’s installation of the solar power system as a subcontractor. Plaintiff was not a party to the Turnkey Installation Agreement. However, according to Plaintiff, to the terms of the V3 Warranty, that warranty was transferred to Plaintiff upon Plaintiff’s purchase of the solar power system. Plaintiff was not notified of the V3 Warranty.

On December 18, 2023, Plaintiff propounded Special Interrogatories Set Two on V3 obtain information on a) the process for submitting a claim on the V3 Warranty, b) how Plaintiff was expected to know that process, and c) when and how Plaintiff was informed of that process.

V3 served responses on January 17, 2024.

On February 13, 2024, Counsel for Plaintiff sent a meet and confer letter addressing issues with the V3’s responses to interrogatory Nos. 11 - 14. This meet and confer letter generally addressed that the Home Improvement Contract, referenced in V3’s responses, is completely unrelated to the V3 Warranty and does not mention the V3 Warranty.

On February 26, 2024, V3 provided an extension to March 25 to file a motion to compel.

In opposition, V3 argues it does not have a contractual relationship with Plaintiff, a and that it has fully responded to the interrogatories. However, V3 also indicates “V3 confirmed that it ‘provides a warranty for its workmanship for a period of 10 years on any defects or deficiencies as a direct result of its work during the installation of a photovoltaic system.’” V3 argues, however, that Plaintiff failed to complete certain steps to invoke this warranty coverage or trigger V3’s duty under any of the agreements with other persons or entities associated with the solar installation.

Authority and Analysis

A party may move to compel further responses to interrogatories if the propounding party deems that (1) an answer to a particular interrogatory is evasive or incomplete, (2) an exercise of the option to produce documents under Section 2030.230 is unwarranted or the required specification of those documents is inadequate, or (3) an objection to an interrogatory is without merit or too general. (Code Civ. Proc., § 2030.300, subd. (a).)

 The responding party has the burden of justifying the objections to the requests. (Coy v. Superior Court (1962) 58 Cal.2d 210, 220-221.)

Nos. 11 through 14

As noted above, Plaintiff appears to seek information from V3 related to a separate warranty that is outside the “SER Warranty” or the Home Improvement Contract. After objections, V3’s responses only reference the SER Warranty and do not provide information as to a second warranty via V3, as requested by Plaintiff.

V3, in its opposition, appears to admit that a V3 warranty exists, but argues that Plaintiff did not factually meet the criteria to trigger the warranty coverage. This factual dispute as to whether the V3 warranty applies would not seem to stop V3 from answering the interrogatory and providing information about this separate warranty. As noted above, V3, in prior correspondence to Plaintiff, stated it “provides a warranty for its workmanship for a period of 10 years on any defects or deficiencies as a direct result of its work during the installation of a photovoltaic system…” Plaintiff appears to be seeking information as to this warranty. Whether it applies or not to the facts of this case appears to be a separate and distinct issue from its existence and information about it.

The Court, therefore, views the responses as incomplete because they do not answer the call of the interrogatory that seeks information as to the V3 warranty, separate and apart from any other warranties at issue in this matter.

The Court, therefore, grants the motion and order further responses no later than thirty (30) days from the date of this hearing.

Sanctions

Plaintiff seeks sanctions in the amount of $ 3,613.00 consisting of 5.3 total attorney hours at the rate of $625, 1.3 hours at the paralegal rate of $185 and $60 filing fee.

Code of Civil Procedure section 2023.030 is a general statute authorizing the Court to impose discovery sanctions for “misuse of the discovery process,” which includes (without limitation) a variety of conduct such as:  making, without substantial justification, an unmeritorious objection to discovery; making an evasive response to discovery; and unsuccessfully and without substantial justification making or opposing a motion to compel or limit discovery.  (Code Civ. Proc. § 2023.010.)

If sanctions are sought, Code of Civil Procedure section 2023.040 requires that the notice specify the identity of the person against whom sanctions are sought and the type of sanction requested, that the motion be supported in the points and authorities, and the facts be set forth in a declaration supporting the amount of any monetary sanction. 

The court shall impose a monetary sanction against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel further responses to interrogatories, admissions or requests unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make it unjust to impose sanctions. (Code Civ. Proc., §§ 2030.300(d), 2031.300(c) 2033.290(d).)

The Court will award sanctions here, but modify the amount to $410, consisting of one hour at the reasonable local rate of $350 plus the $60 filing fee and imposes the sanctions against Defendant and its attorney of record, jointly and severally. The Court orders the sanctions payable no later than thirty (30) days from the date of this hearing.

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:                Mashael, Aeede vs. Rose, Destiny

Case No.:  VCL299818

Date:           April 29, 2024

Time:           8:30 A.M. 

Dept.           7-The Honorable Gary M. Johnson

Motion:      Plaintiff’s Continued Application for Writ of Possession

Tentative Ruling: The Court again continues this matter to To continue this matter to May 20, 2024, 8:30 am, Dept. 7 and order Plaintiff file a proof of service compliant with section 512.030.

Facts

This matter involves the sale of a vehicle to Defendant Rose by Plaintiff Aeede Mashael dba AM Motors. Plaintiff’s verified, amended complaint alleges causes of action for breach of contract based on a retail sales installment contract (“RISC”), open book, claim and delivery, and fraud.

The Court notes that while the initiating complaint appears to have been served personally on Defendant Rose on August 20, 2023, Defendant has not appeared in this action. The Court lacks a proof of service of any kind as to the amended complaint and this application for writ of possession filed on February 21, 2024.

The Court, on this issue, continued the matter to the current hearing date. The Court’s file, however, does not reflect a proof of service of the amended complaint and application for writ of possession filed February 21, 2024.

The Court notes an affidavit of due diligence as to attempted service of Defendant Rose.

“Upon the filing of the complaint or at any time thereafter, the plaintiff may apply pursuant to this chapter for a writ of possession by filing a written application for the writ with the court in which the action is brought.”  (Code Civ. Proc. § 512.010(a).)

Before the hearing on the writ of possession, the defendant must be served with (1) a copy of the summons and complaint; (2) a notice of application and hearing; and (3) a copy of the application and any affidavit in support thereof.  (Code Civ. Proc. § 512.030.)

As noted above, the only proof of service in the Court’s file reflects service of the initial complaint, initial summons and prior notice of application and copy of application, indicating personal service occurred on August 20, 2023. The Court lacks a proof of service as to the now operative complaint and the application filed February 21, 2024.

The affidavit of due diligence filed April 5, 2024 does not constitute service.

The Court, therefore, continues this matter to May 20, 2024, 8:30 am, Dept. 7 and orders that proof of service compliant with section 512.030 be filed prior thereto.

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

Examiner Notes for Probate Matters Calendared

• Visalia Division 
• South County Justice Center Division