Tentative Rulings

The Tentative Rulings for Monday, June 9, 2025, are:

Re:                 Nationwide Insurance Company of America vs. Valle-Bobadilla, Maria Jazmin

Case No.:   VCL307487

Date:           June 9, 2025

Time:           8:30 A.M. 

Dept.           7-The Honorable Gary M. Johnson

Motion:      Plaintiff’s Motion Set Aside or Vacate Dismissal

Tentative Ruling: To grant the motion; to set an OSC hearing re: service for August 25, 2025, Dept. 7, 8:30 am.

Facts

This matter was filed April 2, 2024. No proof of service of the summons and complaint has been filed.

An order to show cause hearing as to service was set August 15, 2024. Plaintiff appeared at that hearing, noted Defendant was incarcerated and indicated service had not been completed. The court continued the order to show cause hearing.

At the continued hearing on November 21, 2024, Plaintiff again appeared, noted Defendant was still incarcerated.

At the continued hearing on January 17, 2025, Plaintiff again appeared, noted they still had not served Defendant and requested more time for service. The Court continued the hearing for April 18, 2025.

The Court, on April 18, 2025, dismissed this matter after Plaintiff failed to appear a the case management conference and continued order to show cause hearing as to sanctions and dismissal for failure to file a proof of service.

On April 28, 2025, Plaintiff filed this motion to set aside the dismissal, noting that the failure to appear was the result of a miscommunication regarding the transmittal of a Zoom link for the appearance. Counsel seeks mandatory relief under section 473.

Authority and Analysis

Code of Civil Procedure section 473(b) states in relevant part that:

“Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence, surprise, or neglect. The court shall, whenever relief is granted based on an attorney's affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.”

The purpose of section 473(b)’s mandatory relief provision is “to alleviate the hardship on parties who lost their day in court due solely to an inexcusable failure to act on the part of their attorneys.” (Zamora v. Clayborn Contracting Group, Inc. (2002) 26 Cal.4^th 249, 257) The trial court, however, may deny the motion if it finds that the attorney’s declaration of fault is not credible. (Cowan v. Krayzman (2011) 196 Cal.App.4^th 907, 915)

Where an “attorney affidavit of fault” is filed, there is no requirement that the attorney’s mistake, surprise, neglect or inadvertence be excusable.  Relief must be granted even where the default resulted from inexcusable neglect by the defendant’s attorney (Standard Microsystems Corp. v. Winbond Electronics Corp. (2009) 179 Cal.App.4^th 868 897 (disapproved on other grounds in Even Zohar Const. & Remodeling, Inc. v. Bellaire Townhouses LLC (2015) 61 Cal.4^th 830, 845) The court is not concerned with the reason for the attorney’s inexcusable mistake (Billing v. Health Plan of America (1990) 225 Cal.App.3d 250, 256)

Here, counsel attests to a failure to obtain a Zoom link from the Court, resulting in the failure to appear. On this ground, the Court grants the motion and vacates dismissal of the matter. The Court sets a continued OSC hearing re: service for August 25, 2025, Dept. 7, 8:30 am.

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:                 Nevarez, Ana vs. Dinuba Parkside Village, L.P.

Case No.:   VCU309060

Date:           June 9, 2025

Time:           8:30 A.M. 

Dept.           7-The Honorable Gary M. Johnson

Motion:     Plaintiff’s Counsel’s Motion to be Relieved as Counsel

Tentative Ruling: To grant the motion; the order will be deemed effective upon the filing with the court of proof of personal service of the order as indicated herein.

Facts

On April 28, 2025, Plaintiff’s Counsel Raymond Ghermezian filed a motion to be relieved as counsel as to Plaintiff Ana Nevarez. Plaintiff’s Counsel filed the following with respect to withdrawing:

(1) MC-051 - Notice of Motion and Motion to be Relieved as Counsel;

(2) MC-052 – Declaration in Support of Attorney's Motion to Be Relieved as Counsel; and

(3) MC-053 - Order Granting Attorney's Motion to Be Relieved as Counsel

Additionally, Counsel has filed proof of service of these documents by mail as to Plaintiff and electronically as to the other parties.

Authority and Analysis

Code of Civil Procedure section 284 provides that “[t]he attorney in an action or special proceeding may be changed at any time before or after judgment of final determination, as follows: 1. Upon the consent of both client and attorney, filed with the clerk, or entered upon the minutes; [or] 2. Upon the order of the court, upon the application of either client or attorney, after notice from one to the other.”

California Rule of Court 3.1362(a) requires that the “notice of motion and motion to be relieved as counsel under Code of Civil Procedure section 284(2) must be directed to the client and must be made on the Notice of Motion and Motion to Be Relieved as Counsel-Civil (form MC-051).”

As noted above, counsel has complied with California Rule of Court 3.1362(a) by submitting the notice and motion on MC-051 and by directing the notice and motion to all parties.

California Rule of Court 3.1362 (c) further mandates that: “The motion to be relieved as counsel must be accompanied by a declaration on the Declaration in Support of Attorney's Motion to Be Relieved as Counsel--Civil (form MC-052). The declaration must state in general terms and without compromising the confidentiality of the attorney-client relationship why a motion under Code of Civil Procedure section 284(2) is brought instead of filing a consent under Code of Civil Procedure section 284(1). Specifically, the declaration that Rule 3.1362(c) requires must state that the moving attorney attempted to secure a “Substitution of Attorney” from the client as required under Code of Civil Procedure section 284(1) and that the client refused to so stipulate.

Here, the declaration is properly made on form MC-052, and uses general terms without compromising confidentiality and indicates that Counsel has attempted to obtain a substitution by stipulation, but that Plaintiff has refused.

Next, service under Rule 3.1362(d) requires personal service, electronic service, or mail and counsel’s declaration must note the service made. Here, service was by mail on April 28, 2025. The declaration of counsel indicates that Plaintiff’s address was confirmed as current by telephone.

Finally, Rule 3.1362(e) requires the proposed order be lodged with the Court on MC-053 with the moving papers, specifying all hearing dates scheduled, including date of trial. Counsel has complied with this requirement.

Therefore, the Court grants Plaintiff’s Counsel’s Motion to Withdraw as to Plaintiff. If no one requests oral argument, the Court is prepared to sign the order entitled “Order Granting Attorney’s Motion to be Relieved as Counsel - Civil” that the moving party lodged with the Court.  This order will be deemed effective upon the filing with the court of a proof of personal service of the “Order Granting Attorney’s Motion to be Relieved as Counsel – Civil.”

The Court further directs counsel to attach to the Order an additional notice of the date, time, and Department of this court for any future hearing dates for this case as calendared.

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:                 Quezada, Raquel vs. Preeti, Verma

Case No.:   VCU311080

Date:            June 9, 2025

Time:           8:30 A.M. 

Dept.           7-The Honorable Gary M. Johnson

Motion:     Plaintiff’s Motion to Grant Trial Preference

Tentative Ruling: To deny the motion without prejudice

Facts

On July 18, 2024, Plaintiff has filed this complaint against Defendant Verma Preeti and Does 1-10 for motor vehicle negligence as to an incident allegedly occurring July 25, 2022. 

Plaintiff now moves to set trial in this matter within 120 days of the granting of this motion, pursuant to Code of Civil Procedure section 36(c), (f).

In support, Plaintiff has attached a declaration indicating she is over the age of 70 years old.

In opposition, Defendant notes the declaration fails to attest to Plaintiff’s health in compliance with section 36(a)(2).

Authority and Analysis

Pursuant to Code of Civil Procedure section 36(a), any party to a civil action who is over 70 years of age may “petition the court for a preference, which the court shall grant if the court makes both of the following findings:

(1) The party has a substantial interest in the action as a whole;

(2) The health of the party is such that a preference is necessary to prevent prejudicing the party’s interest in the litigation.”

The right to preference for litigants who qualify under Code of Civil Procedure § 36(a) is mandatory. (Koch-Ash v. Superior Court (1986) 180 Cal.App.3d 689, 698-99; Rice v. Superior Court (1982) 136 Cal.App.3d 81, 86-87.) “The language of Section 36(a) was intended by the Legislature to be mandatory, and thus requires that a litigant qualifying under its terms be given preferential trial setting irrespective of the circumstances leading to the motion for preference.” (Rice v. Superior Court (1982) 136 Cal.App.3d 81, 85.)

First, the Plaintiff is the primary party in this civil action and over the age 70, thereby giving her a substantial interest in this action before the court in compliance with Code of Civil Procedure section 36(a)(1).

There is no automatic preference based solely on age and the granting is conditioned on a finding of necessity under (a)(2). (Kline v. Superior Court (1991) 227 Cal.App.3d 512, 514.) The Court must consider “the party's health when determining whether preference is required, and considering whether the party's health necessitates the preference to avoid prejudice to the party.” (Id.)

No such showing has been made in the moving papers.

The Court notes an affidavit submitted in support of a motion for preference under subdivision (a) of Section 36 may be signed by the attorney for the party seeking preference based upon information and belief as to the medical diagnosis and prognosis of any party.  (Code Civ. Proc., § 36.5.) These facts set forth by counsel, therefore, may be adequate to establish preference.

However, no such facts have been presented, beyond Plaintiff’s age.

Further, the declaration fails to indicate, pursuant to Code of Civil Procedure section 36(c)(1) “…that all essential parties have been served with process or have appeared.”

Therefore, the Court denies the motion without prejudice.

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:                 Nieto, Cristian vs. Galindo, Elizabeth et al

Case No.:   VCU313384

Date:           June 9, 2025

Time:           8:30 A.M. 

Dept.           7-The Honorable Gary M. Johnson

Motion:      Plaintiff’s Motion to Deem Admissions Admitted

Tentative Ruling: To grant the motion and deem Admissions Nos. 1 through 18 admitted; to impose sanctions of $235 against Defendant Cesar Galindo, due no later than thirty (30) days from notice of this ruling; Plaintiff is ordered to give notice.

Facts

On or about December 4, 2024, Plaintiff served by mail Requests for Admissions, Set One on Defendant Cesar Galindo. The discovery was mailed to the address on Defendant’s answer, with receipt of confirmation.

As of the date of the filing of this motion, no response has been received by Plaintiff. Plaintiff now seeks to deem Admissions Nos. 1 through 18 admitted.

Authority and Analysis

Code of Civil Procedure section 2033.280 states that if a party to whom requests for admissions have been directed fails to serve a timely response, the propounding party may move for an order that the truth of any facts specified in the requests for admissions be deemed admitted. Here, Defendant has failed to serve a timely response and Plaintiff has moved for an order to deem the admissions admitted.

Based on the foregoing, the Court grants Plaintiff’s motion. The facts and allegations alleged in Requests for Admissions Nos. 1 through 18 of Plaintiff’s First Set of Requests for Admission shall be deemed admitted.

Sanctions

Under Code of Civil Procedure sections 2033.280(c), Plaintiff requests sanctions in the amount of $1,460 including 5 hours at $350 plus the $60 filing fee. The Court will award one half hour on this relatively straightforward motion at the stated rate, plus the filing fee and impose sanctions in the amount of $235 against Defendant Cesar Galindo, due no later than thirty (30) days from notice of this ruling. Plaintiff is ordered to give notice.

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