Tentative Rulings

The Tentative Rulings for Friday, October 30, 2026 and Monday, November 2, 2026 are:

Re:                Rodriguez, Reyna vs. Andrade Fernandez, Octaviano

Case No.:   PCU334186

Date:           October 30, 2026

Time:           1:30 P.M. 

Dept.           15-The Honorable Gary M. Johnson

Motion:     (1) Defendants’ Motion to Strike First Amended Complaint; (2) Plaintiff’s Motion for Summary Judgment

Tentative Ruling: (1) To grant the motion; (2) To deny the motion

Facts Common to (1) and (2)

In this matter, Plaintiff Rodriguez filed a complaint for breach of contract and fraud against Defendants Octaviano Andrade Fernandez, Rafael Andrade, Andrade Neverias Wholesale,  Neverias El Sabor De Michoacan, LLC, and Julia Islas.

On May 26, 2026, Defendants Octaviano Andrade Fernandez, Rafael Andrade,  Neverias El Sabor De Michoacan, LLC, and Julia Islas filed a verified answer to the complaint.

Thereafter, on July 7, 2026, Plaintiff filed a first amended complaint, without leave of Court.

On August 13, 2026, Plaintiff filed a motion or summary judgment that appears directed at Defendant Fernandez, with an initial hearing date set for September 14, 2026.

On August 24, 2026, Defendants Octaviano Andrade Fernandez, Rafael Andrade,  Neverias El Sabor De Michoacan, LLC, and Julia Islas filed a motion to strike the first amended complaint.

Additionally, on September 28, 2026, Defendants Octaviano Andrade Fernandez, Rafael Andrade,  Neverias El Sabor De Michoacan, LLC, and Julia Islas filed an opposition to the motion for summary judgment.

(1) Authority and Analysis - Motion to Strike First Amended Complaint

Any party may file a timely notice of a motion to strike the whole or any part of a pleading. (Code Civ. Proc., § 435, subd. (b).) The motion may seek to strike any “irrelevant, false or improper matter inserted in any pleading” or any part of the pleading “not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ. Proc., § 436.) Irrelevant allegations include allegations that are not essential to the statement of a claim, allegations that are not pertinent to or supported by the claim and demands for judgment requesting relief not supported by the allegations. (Code Civ. Proc., § 431.10, subds. (b), (c).)

Code of Civil Procedure section 472(a) states:

“A party may amend its pleading once without leave of the court at any time before the answer, demurrer, or motion to strike is filed, or after a demurrer or motion to strike is filed but before the demurrer or motion to strike is heard if the amended pleading is filed and served no later than the date for filing an opposition to the demurrer or motion to strike. A party may amend the pleading after the date for filing an opposition to the demurrer or motion to strike, upon stipulation by the parties. The time for responding to an amended pleading shall be computed from the date of service of the amended pleading.”

Here, Defendants answered the complaint prior to the filing of the first amended complaint. Therefore, Plaintiff, in order to file an amended complaint, needed to obtain leave of this Court under Code of Civil Procedure sections 473 and 576. As Plaintiff failed to obtain leave of Court prior to the filing of the first amended complaint, the Court grants the motion to strike.

(2) Authority and Analysis – Motion for Summary Judgment

To the extent that the motion for summary judgment was based on the now struck first amended complaint, the Court denies the motion based on the ruling above.

The motion, however, is denied for a number of additional reasons.

Effective January 1, 2025, the California Legislature amended Code of Civil Procedure section 437c(a)(2)’s 75-day notice period, instead requiring that “[n]otice of [a] motion [for summary judgment] and supporting papers shall be served on all other parties to the action at least 81 days before the time appointed for hearing.” "The purpose of the [81]-day service requirement is to allow the parties time to prepare their opposition and replies and to prepare for the hearing." (Lackner v. North (2006) 135 Cal.App.4th 1188, 1208.) Here, the motion provided less than 81 days, plus service, of notice. The Court denies the motion for this reason.

California Rule of Court, rule 3.1350(c) requires certain documents accompanying the motion:

(c) Documents in support of motion

Except as provided in Code of Civil Procedure section 437c(r) and rule 3.1351, the motion must contain and be supported by the following documents:

(1) Notice of motion by [moving party] for summary judgment or summary adjudication or both;

(2) Separate statement of undisputed material facts in support of [moving party's] motion for summary judgment or summary adjudication or both;

(3) Memorandum in support of [moving party's] motion for summary judgment or summary adjudication or both;

(4) Evidence in support of [moving party's] motion for summary judgment or summary adjudication or both; and

(5) Request for judicial notice in support of [moving party's] motion for summary judgment or summary adjudication or both (if appropriate).

Here, no notice of motion and no separate statement were filed with the motion. The Court denies the motion on this ground.

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. Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings.

Re:                The Kingdom of God Inc. vs. Joseph Cold Storage, LLC et al

Case No.:   VCU335039 

Date:           November 2, 2026

Time:           8:30 A.M. 

Dept.           9-Honorable Nathan D. Ide

Motion:     Motion for Preliminary Injunction

Tentative Ruling: To deny the motion.

The court here takes up the motion of plaintiff, The Kingdom of God Inc. (KOG), for a preliminary injunction preventing a trustee sale of a commercial cold-storage facility located at 369 Road 176 in Delano (the Cold Storage Property) following this court’s denial of KOG’s ex parte application for a temporary restraining order.

The motion is denied because KOG fails to present facts establishing a reasonable probability of prevailing on the merits. 

Background

KOG and defendant, Joseph Cold Storage, LLC (JCS LLC), executed a “Commercial Purchase Agreement and Joint Escrow Instructions” on March 27, 2025 (the agreement indicates, though, it was “prepared” on March 25, 2025) wherein KOG extended an offer, accepted by JCS, to purchase the Cold Storage Property from JCS on terms specified in the instrument.  The agreement provided for a $3,000,000 total purchase price, with a $450,000 down payment and a $2,550,000 loan financed by JCS (i.e., “Seller Financing”). 

The agreement provided, amongst other contingencies, a contingency for “Investigation of Property” extending until 30 “Days after Acceptance.” The agreement stated that, per such investigation contingency, the agreement was “contingent upon Buyer’s acceptance of the condition of, and any other matter affecting, the Property.”  With respect to contingencies generally (and, thus, inclusive of the inspection contingency specifically) the agreement stated, “[f]or any contingency specified in [the agreement], Buyer shall, within the applicable period specified (i.e., 30 days, for the inspection contingency), remove the contingency or cancel this Agreement.” 

Relatedly, KOG was specifically given “the right,” under the agreement to, “at Buyers expense unless Otherwise Agreed, … conduct inspections, investigations, tests, surveys and other studies (‘Buyers Investigations’),” which “Buyers Investigations” “include, but are not limited to “[i]nspections regarding any physical attributes of the Property or items connected to the Property” and “[i]nvestigations of any other matter affecting the Property, other than those that are specified as separate contingencies.”

As to “Condition of Property on Closing,” though, the agreement stated “the Property shall be delivered ‘As-Is’ in its PRESENT physical condition as of the date of Acceptance.”  The agreement accordingly “strongly advised” the buyer, KOG, “to conduct investigations of the entire Property in order to determine its present condition.” KOG executed a “Buyer’s Investigation Advisory” expressly acknowledging the importance of investigating the Cold Storage Property and KOG’s “affirmative duty” to investigate the condition of the property.  KOG was “strongly advised” in the advisory also—in all capital, bolded text (emphasis omitted here)—“to investigate the condition and suitability of all aspects of the property … .” 

The agreement specifically stated, further, “Seller and Agents may not be aware of all defects affecting the Property or other factors that Buyer considers important” and “[p]roperty improvements may not be built according to code, in compliance with current Law, or have had all required permits issued and/or finalized.”

Despite having the right to do so, KOG apparently opted not to perform a thorough professional property inspection.  Rather, according to an account provided by Mr. Zhang—“a principal representative” of KOG who “acted for KOG in connection with its purchase … [of the Cold Storage Property]” and who appears to have personally executed the parties’ agreement on behalf of KOG—Mr. Zhang instead participated in two “walkthroughs of the Property” with unidentified “JCS[] representatives.” 

The second of these “walkthroughs” took place, according to Mr. Zhang, on April 10, 2025, and the first took place at a prior time not specified by Mr. Zhang.  KOG’s first amended complaint (FAC), though, the court notes, alleged the first “walkthrough” took place “in approximately March 2025,” and described both “walkthroughs” as “pre-closing walkthroughs.”

The “Buyer’s Investigation Advisory” executed by KOG expressly cautioned against such informal investigative efforts.  The advisory expressly stated, “[a] general physical inspection typically does not cover all aspects of the Property” and “[i]f the professionals recommend further investigations … you should contact qualified experts to conduct such additional investigations.”

Nevertheless, during these “walkthroughs,” according to Mr. Zhang: (a) he “observed [during the first walkthrough] limited signs of prior water intrusion” and “was told by JCS’s representatives that … identified roof leaks would be repaired”; (b) he was advised, during the second walkthrough—which he states “was video-recorded with the knowledge of the participants”—that “the leaks had been repaired and that there had been no leaking from … recent rain”; and (c) “JCS’s representatives stated in substance [during the second walkthrough] that the [cold-storage and refrigeration] systems were working … .”

KOG did not, either, however, cancel the agreement based on the inspection contingency.  Instead, on April 25, 2025, KOG executed an “Addendum No. Amendment 1,” amending the parties’ agreement to remove all buyer contingencies, “as evidenced in [an] attached Buyers Contingency Removal 1 [i.e., ‘Contingency Removal No. 1’],” executed the same date as the addendum.

The addendum, which included various terms “incorporated in and made a part of [the parties’ March 2025 agreement] additionally provided a reduced $2,500,000 total purchase price ($500,000 less than the originally agreed-upon price), with a $250,000 down payment (instead of the prior $450,000), and $2,250,000 in seller financing for the remaining amount of the purchase price. 

The addendum, further, affirmed the “Property [is] being purchased on [sic] its ‘AS IS’ and ‘WHERE IS’ condition.”

According to Mr. Zhang, “[e]scrow closed on or about May 12, 2025, and, “[a]fter the first substantial rain [following close of escrow, he] observed on or about October 31, 2025 … approximately seventeen active leaks inside the facility and approximately thirty areas of significant ponding on the roof”; then, “[i]n late December 2025, portions of the roof and structural system collapsed; and, at some unidentified point “[a]fter closing escrow, KOG also discovered that multiple refrigeration components were nonoperational or materially defective.”

Mr. Zhang represents, however, KOG nevertheless “leased portions of the Property to a commercial tenant at approximately $50,000 per month,” with the tenancy commencing “on or about November 1, 2025”—the day following Mr. Zhang’s asserted discovery of “approximately seventeen active leaks inside the facility and approximately thirty areas of significant ponding on the roof.”  According to Mr. Zhang, though, “[t]he tenant later stopped paying rent and vacated.”

Mr. Zhang represents KOG “incurred approximately $400,000 in structural, roof, and related repair costs” and that it “paid more than $100,000 for refrigeration-system repair work and approximately $30,000 to replenish ammonia lost from the system.”

KOG alleges, in the FAC, that, notwithstanding the “as-is language” in the parties’ agreement and addendum, it “relied on the oral and written representations concerning the repaired roof and functioning refrigeration systems in proceeding with the transaction, limiting further investigation of the represented conditions, waiving or releasing applicable contingencies, and closing escrow.”  Further, KOG alleges that it “waived or released [the] inspection contingency … only after receiving the specific assurances alleged … concerning completed roof repairs after recent rain and functioning cold-storage systems.”

Mr. Zhang’s declaration relatedly asserts that, notwithstanding that, as Mr. Zhang expressly concedes, “[t]he addendum states that the Property was being purchased ‘AS IS’ and ‘WHERE IS,’ “KOG nevertheless relied on the specific representations made to [Mr. Zhang] by JCS concerning the repairs and the then-existing condition of the roof and refrigeration systems.”

Mr. Zhang further asserts that, “[h]ad [he] been told that the Property had widespread ongoing roof leakage or material nonoperational refrigeration systems, [he] would not have recommended that KOG proceed on the same terms without further investigation and protection.”

Analysis

Preliminary Injunction Standard

“In deciding whether to issue a preliminary injunction, a court must weigh two ‘interrelated’ factors: (1) the likelihood that the moving party will ultimately prevail on the merits and (2) the relative interim harm to the parties from issuance or nonissuance of the injunction. [Citation.]” (Butt v. State of California (1992) 4 Cal.4th 668, 677-678 [15 Cal.Rptr.2d 480, 842 P.2d 1240] (Butt).) These factors are “interrelated” in the sense that “[t]he trial court's determination must be guided by a ‘mix’ of the potential-merit and interim-harm factors; the greater the plaintiff's showing on one, the less must be shown on the other to support an injunction.” (Id., at p. 678.)

“The ultimate goal of any test to be used in deciding whether a preliminary injunction should issue is to minimize the harm which an erroneous interim decision may cause. [Citation.]” (IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 73 [196 Cal.Rptr. 715, 672 P.2d 121].)  “ ‘In the last analysis the trial court must determine which party is the more likely to be injured by the exercise of its discretion [citation] and it must then be exercised in favor of that party [citation].’ [Citation.]” (Jessen v. Keystone Sav. & Loan Ass'n (1983) 142 Cal.App.3d 454, 458-459 [191 Cal.Rptr. 104] (Jessen).)

Likelihood that KOG will ultimately prevail

“The scope of available preliminary relief is necessarily limited by the scope of the relief likely to be obtained at trial on the merits.” (Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 442 [261 Cal.Rptr. 574, 777 P.2d 610].) “A trial court may not grant a preliminary injunction, regardless of the balance of interim harm, unless there is some possibility that the plaintiff would ultimately prevail on the merits of the claim. [Citation.]” (Butt, supra, 4 Cal.4th at p. 678.)  “In the absence of a reasonable probability of success, the court should deny the preliminary injunction.” (Jessen, supra, 142 Cal.App.3d at p. 458.)

And, while the court “may consider the verified complaint and answer, as well as declarations, affidavits and oral testimony” (id., at p. 460), it is ultimately “[t]he plaintiff [who] bears the burden of presenting facts establishing the requisite reasonable probability … ‘… upon a sufficient factual showing, by someone having knowledge thereof, made under oath or by declaration under penalty of perjury.’ [Citation.]” (Fleishman v. Superior Court (2002) 102 Cal.App.4th 350, 356 [125 Cal.Rptr.2d 383] (Fleishman).)

In addition, “[b]efore issuing a preliminary injunction, the trial court must ‘carefully weigh the evidence and decide whether the facts require[] such relief.’ [Citation.]” (Ibid.) 

This standard is stricter than the standard on demurrer, under which the court “gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded” (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967 [9 Cal.Rptr.2d 92, 831 P.2d 317]), and stricter than the standard for determining whether leave to amend should permitted following the sustaining of a demurrer, under which the court determines whether, notwithstanding identified defects in the pleadings, “there is a reasonable possibility that [the] defects  can be cured by amendment.” (Lingsch v. Savage (1963) 213 Cal.App.2d 729, 739-740 (Lingsch).) 

This standard is also stricter than standards applied in evaluating a party’s opposition to summary judgment, where the court is required to “strictly construe the evidence offered by the moving party, and liberally construe the evidence offered by the opposing party, ‘resolving doubts concerning the evidence in favor of [the opposing] party.’ [Citation.]” (Santos v. Crenshaw Mfg. (2020) 55 Cal.App.5th 39, 48 [268 Cal.Rptr.3d 900]; see also Manderville v. PCG&S Group, Inc. (2007) 146 Cal.App.4th 1486, 1505 [55 Cal.Rptr.3d 59] (Manderville) [liberally construing losing buyer parties’ evidence, while scrutinizing brokers’ own showing, and resolving any evidentiary doubts or ambiguities in favor of the losing parties, in finding triable issues on the issue of justifiable reliance in a fraud claim, notwithstanding “exculpatory clauses” in a CAR form agreement invoked by the brokers].)

KOG asserts nine causes of action in the FAC, but it solely focuses its arguments, both in its papers in support of its application for a temporary restraining order and its papers in support of its motion for a preliminary injunction, on its fraud claims (i.e., misrepresentation, concealment, etc.). 

These claims are based on allegations that, during the “walkthroughs,” unidentified “Seller[] representatives” (i.e., “JCS’s [unidentified] representatives” as Mr. Zhang refers to them) intentionally or negligently misrepresented “that the roof had not leaked after the recent rain and that … repairs had already been completed” and that “the refrigeration systems, compressors, water pumps, fans, and related cold-storage systems were operational and functioning properly,” or, alternatively stated, that JCS concealed “material facts … known … only to Seller [JCS] …. , including material chronic roof leakage, recurring ponding and water intrusion, structural deterioration and wood rot, material prior maintenance failures, and material refrigeration-system defects,” despite having “ a duty to disclose [those] material facts.”

As evidence supporting that KOG has a has a reasonable probability of prevailing on the merits of these fraud claims, KOG cites and relies exclusively upon Mr. Zhang’s declaration submitted in support of its application for a temporary restraining order.  Consequently, Mr. Zhang’s recollection and characterization of remarks made by “JCS’s [unidentified] representatives” is the only evidence KOG submits of the alleged misrepresentations made by JCS in connection with the purchase and sale of the Cold Storage Property.  

KOG also maintains, the court notes, that there is a video recording of the second “walkthrough” (or, possibly, multiple recordings—the FAC alleges there is one “recording”; Mr. Zhang references multiple “recordings”).  No recordings, however, are submitted as evidence by KOG, nor is any transcription provided of the materially significant statements of any person present during the second “walkthrough.” Mr. Zhang provides the assurance that “[t]he recordings in KOG’s possession fairly and accurately depict the portions of the walkthrough and conversations they record,” though that apparent attempt at authentication is not particularly helpful, or necessary, without a proffering of the recordings themselves. 

As a result, the court is presented solely with Mr. Zhang’s account, which is notably sparse on specifics. Rather than recounting what was specifically said, Mr. Zhang simply relates matters that the unidentified “JCS[] representatives” “stated in substance” (i.e., that “the leaks had been repaired and … there had been no leaking from the recent rain” and that “the [cold-storage and refrigeration] systems were working”). 

There is nothing inherently faulty, the court recognizes, in the submission of a self-serving declaration, such as the court is presented with here; indeed, “all evidence proffered by a party is intended to be self-serving in the sense of supporting the party's position, and it cannot be discounted [solely] on that basis.” (Oiye v. Fox (2012) 211 Cal.App.4th 1036, 1050 [151 Cal.Rptr.3d 65].)  That said, the court is disinclined to give significant credence, or to attribute significant substantive weight, to Mr. Zhang’s declaration given the sparse detail concerning what the unidentified “JCS[] representatives” actually said—particularly where, as here, KOG maintains it has a video recording of what was said. 

The court is particularly mindful here of the necessity of pleading fraud with particularity and of the heightened standard that applies to such claims asserted against a corporate defendant.  (Tenet Healthsystem Desert, Inc. v. Blue Cross of California (2016) 245 Cal.App.4th 821, 837-838 [199 Cal.Rptr.3d 901].)  “ ‘In such a case, the plaintiff must “allege the names of the persons who made the allegedly fraudulent representations, their authority to speak, to whom they spoke, what they said or wrote, and when it was said or written.” ’ [Citation.]” (Id., at p. 838.) 

As noted above, the standard that applies here is stricter than that applied to test of the sufficiency of the pleadings, but, for that very reason, it is clear that the evidentiary standard to show a reasonable probability of prevailing on a fraud claim cannot be less than what is required merely to plead such a claim.  Accordingly, it is particularly notable here that, despite the evident availability of video recordings, and despite that both the indicated “walkthroughs” took place only about a year and a half ago, Mr. Zhang fails to identify the authority of the “JCS[] representatives” (or even their names) and fails to identify what they specifically said. 

What’s more—given Mr. Zhang’s account of various verbal representations during the “walkthroughs”—the agreement expressly provided, in bold text, that “[n]either this Agreement nor any provision in it may be extended, amended, modified, altered or changed, except in writing Signed by Buyer and Seller.”

Given the existence of such a contractual provision, it is surprising that KOG would find acceptable and rely upon mere verbal representations from persons whose names they don’t even know, particularly in the context of a multi-million dollar commercial real estate transaction. 

Also, there are other indications that KOG, if it truly intended to rely on material representations concerning the condition of the Cold Storage Property or the state of its repairs, would have insisted on express statements in writing.  The parties’ agreement, the court notes, additionally provided that within the 30 day inspection contingency period, KOG could “request that Seller make repairs or take any other actions regarding the Property,” subject, however, to the caveat that “Seller has no obligation to agree to or respond to Buyer’s requests,” and “[i]f Seller does not agree or does not respond, Buyer is not contractually entitled to have the repairs or other requests made and may only cancel based on contingencies in this Agreement.”

The court particularly notes here that, curiously, while the FAC alleges that “[t]he written transaction materials … addressed the roof condition,” and, specifically, that “[a] written addendum acknowledged that roof leaks had been observed during the first tour and conveyed Seller’s position that those leaks had been repaired,” no evidence of any such written materials was submitted by KOG in support of its motion. 

Curiously still, as it happens, the total sum cost of the indicated repair work—$530,000—is a figure very near the $500,000 purchase price reduction provided in the agreement’s addendum, which, as it also happens, included removal of the buyer inspection contingency.  Notable here, according to the declaration of Jamie Minnie, submitted in support of JCS’s opposition—and the court notes the contention is not expressly refuted by KOG—“[b]efore closing, KOG obtained an inspection advisory and conducted its own inspections, and it negotiated a reduction in the purchase price and down payment on account of needed repairs.”

KOG, nevertheless, claims Mr. Zhang’s declaration alone sufficiently supports its likelihood of prevailing on the merits of its fraud claims.   It does so, however, by availing to less strict standards than those applied in evaluating a motion for preliminary injunction. 

Lingsch, supra, 213 Cal.App.2d 729—one of the cases relied upon by KOG—for example, was an appeal from a trial court order sustaining a demurrer without leave to amend, and did not deal at all with the sufficiency of evidence necessary to show a probability of prevailing on a fraud claim.  (Id., at p. 732.)  Lingsch did observe that “[a] provision in a contract of sale that the buyer takes the property in the condition in which it is, or ‘as is,’ does not necessarily confer on the seller a general immunity from liability for fraud,” and that “such a provision ‘does not prevent fraudulent representations relied on by the buyer from constituting fraud which invalidates the contract or is a ground for damages.’ [Citations.]” (Id., at pp. 740-741.) 

Lingsch did not support, however, nor could it, that any assertion by a buyer of fraud on the part of a seller necessarily defeats, as an evidentiary matter, the contractual import of an “as is” provision.  Indeed, Lingsch found buyer-plaintiffs’ allegations of fraud insufficient, in several respects, to support their fraud claims (id., at pp. 738-739) and merely held that the trial court erred in denying the buyers’ leave to amend their complaint without leave to amend (id., at pp. 742-743).

Similarly, Manderville, supra—another case cited by KOG—was an appeal from a trial court order granting summary judgment.  Manderville held that various “exculpatory” clauses presented in a CAR form agreement, similar in substance to provisions noted above in the parties CAR form agreement here, did not bar buyer-plaintiffs’ cause of action against defendant brokers for intentional misrepresentation as a matter of law. (Id., at p. 1497.)  While Manderville expressly found the trial court erred in finding the plaintiff buyers could not show justifiable reliance on defendant brokers’ alleged intentional misrepresentations as a matter of law, given “well established [law] in California that a party to a contract is precluded … from contracting away his or her liability for fraud or deceit based on intentional misrepresentation” (id., at p. 1500), Manderville, like Lingsch, did not determine, nor could it, that any assertion by a buyer of fraud on the part of a seller necessarily defeats, as an evidentiary matter, the contractual import of “exclusionary” clauses in a CAR form agreement. 

Indeed, absent proof of fraud, “as is” and other related contractual provisions imposing a duty to inspect upon a buyer are of significant contractual import.  As observed in Shapiro v. Hu (1986) 188 Cal.App.3d 324 [233 Cal.Rptr. 470], and apropos of the instant case, “an ‘as is’ provision in any sale puts potential buyers on notice that the seller makes no warranties about the quality or condition of the thing sold. In practice, it serves as a kind of ‘red flag’ warning the buyer that the goods or property to be sold may not be in perfect condition or of ideal quality,” and where, as here, the parties to the transaction are “themselves businessmen,” it is appropriate to expect them “to be aware of the meaning of an ‘as is’ sale” and to “[take] precautions to check out [a] building thoroughly before buying it.” (Id., at p. 333.)

As a general matter, moreover, “[t]here are no warranties of quality or condition implied in the sale of real property.” (Id., at p. 332.) “In contrast to the sale of personal property or chattels, the law governing sales of real property has long been that of caveat emptor, with the buyer assuming the risk on quality or condition of the property, absent express warranty, fraud or misrepresentation.” (Id., at p. 332.) 

KOG submits, purportedly as standing against the application of these doctrines based on a showing of fraud, solely the declaration of Mr. Zhang, containing solely his claimed recollection of the “substance” of various representations on the part of unidentified “JCS[] representatives” wherein such representatives made purportedly authoritative, reliable misrepresentations of material fact that caused KOG, despite several express contraindications in a written contract between sophisticated parties to a multi-million dollar commercial real estate transaction, to forgo any professional investigation of the condition of the Cold Storage Property and, instead, “proceed … without further investigation and protection.”  Beyond this, also, there is only a representation that “recordings” made by Mr. Zhang exist, and, yet—notwithstanding that KOG and Mr. Zhang imply such recordings would corroborate Mr. Zhang’s entire account and fully support KOG’s position on the merits of its fraud claims—the recordings are not directly submitted as evidence. 

The court finds this evidence entirely insufficient to support a reasonable probability of KOG prevailing on its fraud claims. 

KOG clearly misapprehends, or, anyway, ignores, the standard that applies in evaluating its motion.  The court does not accept the assertions in Mr. Zhang’s declaration as true or construe them liberally in favor of granting the motion.   The question presented here is not whether, as a matter of law, the provisions in the parties’ contract make it impossible for KOG to establish a fraud claim.  The question presented here is whether KOG makes a sufficient evidentiary showing to support a probability of prevailing on its fraud claims.  And, in deciding whether to issue a preliminary injunction, the court scrutinizes the evidence submitted by the plaintiff, “evaluat[ing] the credibility of witnesses and mak[ing] factual findings on disputed evidence. [Citation.]” (Fleishman, supra, 102 Cal.App.4th 350, 356.)  KOG’s evidence does not withstand such scrutiny. 

Because the court finds KOG fails to make a showing establishing a reasonable probability of prevailing on the merits, it need not reach the second factor of analysis concerning “relative interim harm to the parties from issuance or nonissuance of the injunction. [Citation.]” (Butt, supra, 4 Cal.4th at pp. 677-678.)  “In a practical sense it is appropriate to deny an injunction where there is no showing of reasonable probability of success, even though the foreclosure will create irreparable harm, because there is no justification in delaying that harm where, although irreparable, it is also inevitable.” (Jessen, supra, 142 Cal.App.3d 454, 459.)

Based on the foregoing, then, KOG’s motion is denied.

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. Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings.

Re:                Mendoza, Jose vs. Quick Fill #2 Inc.

Case No.:   VCU323773

Date:           November 2, 2026

Time:           8:30 A.M. 

Dept.          9-The Honorable Nathan D. Ide

Motion:     Defendant’s Quick Fill #2 Inc.’s Motion to Set Aside

Tentative Ruling: To grant the motion and set aside entry of default; to order the proposed answer filed no later than ten (10) days from the date of this hearing; to order Defendant’s counsel to pay the sum of $350 to Plaintiff’s counsel no later than ten (10) days from the date of this hearing pursuant to Code of Civil Procedure section 473(b).

Facts

In this verified complaint for violations of the Unruh Act and California Disabled Persons Act, Plaintiff sues “QUICK FILL #2 INC., A CALIFORNIA CORPORATION; QUICK FILL #2 INC., A CALIFORNIA CORPORATION; and DOES 1 through 50, inclusive (“Defendants”)”

On September 12, 2026, Plaintiff filed a proof of service purporting substitute service on “QUICK FILL #2 INC” via its agent for service of process, Gurpreet Singh at 6699 W Alluvial Ave, Fresno, CA 93722 on August 7, 2025.

On April 16, 2026, default was entered as to “QUICK FILL #2 INC., A CALIFORNIA CORPORATION.”

On May 8, 2026, Plaintiff dismissed “QUICK FILL #2 INC., A CALIFORNIA CORPORATION and DOES 1 through 50, inclusive Only”

On July 1, 2026, Defendant “QUICK FILL #2 INC” moved to set aside default under Code of Civil Procedure section 473(b). In support, counsel for Defendant states:

“10. Specifically, I have had back-to-back trials from March 2025 through present. Due to these trials, I missed the calendaring for the answer to be filed in the above action.

11. I accept responsibility for failure to timely file the responsive pleading…

…

13. Defendant is prepared ot file its Answer or other responsive pleading by July 15, 2026, or within the time ordered by the Court, in the form attached hereto as Exhibit A” (Declaration of Davidson ¶¶10, 11, 13.)

The Court notes no Exhibit A attached to the motion or declaration of Counsel.

No opposition appears filed.

Authority and Analysis

Generally, under California Code of Civil Procedure section 473(b), the court may grant discretionary relief to a party from a judgment, dismissal, order, or other proceeding that was entered against the party due to excusable mistake, inadvertence, surprise, or neglect on the part of the party. (Id.)

However, also under California Code of Civil Procedure section 473(b), the court must grant relief when an attorney for the party seeking relief submits a sworn affidavit attesting that his or her mistake, inadvertence, surprise, or neglect caused the judgment to be entered against the party. (Code Civ. Proc., § 473(b); Martin Potts & Associates, Inc. v. Corsair, LLC (2016) 244 Cal.App.4th 432, 438 [explaining difference between mandatory and discretionary relief under section 473, subd. (b)].)

As to this mandatory relief provision, Code of Civil Procedure section 473(b) states, in relevant part, the following:

“…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.” (Code Civ. Proc. § 473(b))

Here, the motion is timely as it is made within six months of entry of default.

“Relief is mandatory when a complying affidavit is filed, even if the attorney's neglect was inexcusable.” (SJP Limited Partnership v. City of Los Angeles (2006) 136 Cal.App.4th 511, 516-517; Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 225.)

“‘The only limitation is when the court finds [that] the default [or dismissal] was not in fact the attorney's fault, for example when the attorney is simply covering up for the client…’ (Rogalski v. Nabers Cadillac (1992) 11 Cal. App. 4th 816, 821.)” (Todd v. Thrifty Corp. (1995) 34 Cal.App.4th 986, 991.)

Motions brought under section 473 involve “an assessment of credibility by the trial court.” (Behm v. Clear View Techs. (2015) 241 Cal.App.4th 1, 15.) In Behm, the court upheld the trial court’s determination that an attorney’s affidavit of fault lacked credibility based on “contradictions and discrepancies” between the attorney’s affidavit and his “earlier representations to the court.” (Id.) This included “different excuses” than those that had been provided earlier in the litigation for the same conduct. (Id.) The court concluded that the attorney had “forfeited his credibility when in his subsequent affidavit, he attempted ‘to change the facts and blame himself.’” (Id. at 16.) Thus, the court had not erred in finding the affidavit “incredible” and denying mandatory relief under § 473(b). (Id.)

Here, the Court does not find a lack of credibility stemming from the declaration of counsel.

Behm does not appear to be analogous here, as the Court does not find any such contradictions that would warrant denial.

Additionally, the mandatory relief provision does not require the attachment or lodging of the proposed responsive pleading. Although the Court noted above that no Exhibit A as to the purported answer had been attached, this does not appear fatal to this motion.

“Because the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default.” (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233.) Where the party in default moves promptly to seek relief, and no prejudice to the opposing party will result from setting aside the default and letting the case go to trial on the merits, “very slight evidence will be required to justify a court in setting aside the default.” (Id.)

Reasonable attorney’s fees and costs are mandatory when granting a motion for relief from default based on an attorney’s affidavit of fault. (Code Civ. Proc.  § 473(b) [“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 Court will order Defendant’s counsel to pay $350, consisting of one hour as to the entry of default and dismissal, due no later than ten (10) days from the date of this hearing.

The Court will vacate the dismissal of the other Defendant and Does.

Defendant is ordered to file the proposed responsive pleading no later than ten (10) 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. Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings.

Re:                Morales, Demetrio Jimenez vs. Alliance AG Labor LLC

Case No.:   VCU328320

Date:           November 2, 2026

Time:           8:30 A.M. 

Dept.           9-The Honorable Nathan D. Ide

Motion:     Defendant’s Motion to Compel Arbitration

Tentative Ruling: To deny the motion

Background Facts

In this matter, Plaintiff sues Defendants Alliance Ag Labor LLC, Scott Raven Farming Company, Inc., and Ford Farm Management, Inc. for 1. Failure to Pay Minimum Wages; 2. Failure to Pay Overtime Wages; 3. Failure to Provide Meal Periods; 4. Failure to Permit Rest Breaks; 5. Failure to Reimburse Business Expenses; 6. Failure to Provide Accurate Itemized Wage Statements; 7. Failure to Pay All Wages Due Upon Separation of Employment; 8. Violation of Business and Professions Code §§ 17200, et seq.; and 9. Enforcement of Labor Code § 2698 et seq. (“PAGA”).

On September 21, 2026, Defendant Alliance filed this motion to dismiss class claims, compel the remaining former class claims to arbitration, to split the PAGA claim and compel the “individual” PAGA claim to arbitration and to stay this matter as to the “representative” PAGA claim pending arbitration.

Defendants Scott Raven Farming and Ford Farm join in the motion.

As discussed below, the Agreement, in part states “Unless the parties mutually agree otherwise, mediation shall be conducted and administered by the Federal Mediation and Conciliation Service (' FMCS'), pursuant to its policies and procedures, with the additional provision that the arbitration shall be conducted on a confidential basis to the extent permitted by law.”

Both parties appear to interpret the use of the term “mediation” within this section entitled “FINAL AND BINDING ARBITRATION” as contemplating arbitration. The Court agrees, reading the entirety of the single paragraph together and where no other mention of mediation is made.

Plaintiff, in opposition, notes that Defendant Alliance’s motion states “…the Federal Mediation and Conciliation Services ("FMCS"), has had a change in Federally authorized authority to administer private arbitration proceedings.” (Motion 16:5-8.)

Defendant Alliance argues that the unavailability of FCMS permits the Court to select an alternative arbitrator under either 9 U.S.C. § 5 or Code of Civil Procedure section 1281.6.

By contrast, Plaintiff argues that the Agreement, under Alan v. Superior Court (2003) 111 Cal.App.4th 217, designates the FMCS as the exclusive arbitrable forum, as it is an integral part of the Agreement, and the unavailability of FMCS requires this case to be litigated in this Court.

Facts – Agreement’s Designation of FMCS

The Agreement, as to references to FMCS, the following in full:

4. FINAL AND BINDING ARBITRATION. If efforts at informal resolution fail, Covered Claims must be submitted for final and binding arbitration before a neutral third party. Unless the parties mutually agree otherwise, mediation shall be conducted and administered by the Federal Mediation and Conciliation Service ('FMCS'), pursuant to its policies and procedures, with the additional provision that the arbitration shall be conducted on a confidential basis to the extent permitted by law. The FMCS policies and procedures, which are incorporated by reference into this Agreement and are available online at https://wurvv.fmcs.gov/services/arbitration/arbitration-policies-and-pr…, include, but are not limited to, procedures for the joint selection of an impartial arbitrator and for the hearing of evidence before the arbitrator. The arbitrator shall have the authority to permit appropriate discovery and exchanges of information prior to a hearing, including, but not limited to, the production of documents, requests for information, depositions, and subpoenas. Any conflict between the FMCS policies and procedures and those set forth in this Agreement shall be resolved in favor of those set forth in this Agreement. The burden of proof in an arbitration shall always be on the party seeking relief. ln reaching a decision, the arbitrator shall apply the applicable substantive law governing the claims, causes of action, and defenses asserted by the parties as applicable in California. The arbitrator shall have the power to award any relief that may be awarded by a court or administrative agency pursuant to applicable substantive law, including, but not limited to, Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, the Family and Medical Leave Act, and any other applicable law. The arbitration proceedings shall be conducted before a single neutral arbitrator in Fresno County. The Company shall pay the arbitrator's fees, except that if you are the party initiating the claim, you shall be responsible for contributing an amount equivalent to the filing fees for filing a claim in a court of general jurisdiction in the state and county where the arbitration occurs. Each party shall be solely responsible for paying its own respective attorneys' fees. However, if the arbitrator determines that one party or the other prevails on a claim that provides for an award of attorneys' fees to the prevailing party pursuant to law, statute, or contract, then the arbitrator may award reasonable attorneys' fees to the prevailing party. Claims may be submitted to FMCS for arbitration within the applicable statutes of limitations.” (emphasis added.)

As noted above, it appears undisputed that FMCS will not arbitrate this matter. Plaintiff indicates “FMCS is a labor-management agency whose arbitration program exists to resolve “disputes over the interpretation or application of collective bargaining agreements” through a roster of labor arbitrators. 29 C.F.R. §§ 1404.2, 1404.4(a), 1404.5(a). Plaintiff was not part of a union during his employment with Defendant. See Morales Decl., ¶ 3.” (Opposition 6:9-13.)

Authority and Analysis – Arbitrable Forum

The threshold issue before the Court is whether, in light of the unavailability of FMCS to arbitrate this matter, the Court may enforce the Agreement by selecting an alternative arbitrator.

In Alan, supra, 111 Cal.App.4^th 217, the heir of a deceased investor filed a lawsuit against the investor's brokers. (Id. at 219.) However, the investor executed a customer agreement containing the following:

“I agree and by carrying an account for me, CSC agree(s) that any and all controversies which may arise between me and CSC or between me and the organization that has introduced my account(s) carried by CSC Corporation concerning any account, transaction, dispute or the construction, performance or breach of this or any other agreement whether entered into prior, on, or subsequent to the date hereof, shall be determined by arbitration. Any arbitration under this agreement shall be held under and pursuant to and be governed by the Federal Arbitration Act, and shall be conducted before an arbitration panel convened by the New York Stock Exchange, Inc. (NYSE), or the National Association of Securities Dealers, Inc. (NASD). I may also select any other national securities exchange’s arbitration forum upon which CSC is legally required to arbitrate the controversy with me …. Such arbitration shall be governed by the rules of the organization convening the panel. I may elect in the first instance the arbitration forum, but if I fail to make such election … then you may make such election. The award of the arbitrators, or of the majority of them, shall be final and judgment upon the award rendered may be entered in any court of competent jurisdiction.” (Id. at 220.)

The appellate court noted that the both the NYSE and NASD are “self-regulatory organizations” or SROs registered with the SEC pursuant to the Securities Exchange Act of 1934 and that “One of the functions of the SROs is to provide arbitral fora for the resolution of securities industry disputes …. Securities broker-dealers routinely include arbitration clauses in their customer agreements.… As a result, both the NYSE and the NASD … provide arbitration services to their members. The SEC has expansive power to regulate the SRO arbitration programs.” (Id. at 222-223.)

The plaintiff chose to file a civil suit and one of the defendants moved to compel arbitration “…seeking to have the dispute heard under the auspices of the NASD.” (Id. at 223.) The NASD, however, refused to arbitrate in California. (Id. at 226.)

As such, the court examined whether the terms of the agreement to arbitrate permitted the selection of an alternative forum or whether “…as an integral part of the agreements between them, [the parties agreed] to submit their disputes to an arbitral forum designated in the arbitration provisions.” (Id. at 224.) 

The defendant brokers argued that if arbitration was not possible with the NASD, the court should, under section 1281.6, appoint a substitute arbitrator. (Id. at 227.) However, the court rejected this argument, finding that the agreement designated the NASD as the exclusive forum for arbitration, that only the NASD’s rules could be applied and that this term designating the forum was “an integral part” of the agreement and that “the arbitration provisions encompass more than the simple task of appointing an arbitrator. They determine the selection of a “forum”—a court or arbitral tribunal—each with its own set of rules and procedures.” (Id. at 224, 228.)

In concluding that no substitute arbitrator or substitute arbitral forum could replace the NASD, the Alan court examined In re Salomon Inc. Shareholders’ Derivative Lit. (2d Cir. 1995) 68 F.3d 554. There, the agreements signed designed the NYSE, and only the NYSE, as the arbitral forum, stating “…we cannot compel a party to arbitrate a dispute before someone other than the NYSE when that party had agreed to arbitrate disputes only before the NYSE and the NYSE, in turn, exercising its discretion under its Constitution, has refused the use of its facilities to arbitrate the dispute in question.… [¶] …” (Id. at 558.)

The Alan court agreed with Salomon in rejecting such terms as choice of law provisions instead of choice of forum provisions. (Alan, supra, 111 Cal. App. 4^th at 226.) Alan further noted “there is no further promise to arbitrate in another [arbitral] forum[, for example, the American Arbitration Association (AAA)].” and “Here, because the arbitration provisions state that the arbitration “shall be governed by the rules of the organization convening the panel,” Salomon is fully applicable to the selection of the NASD as the arbitral forum. (Id. at 226.)

Thereafter, the Alan court rejected the use of Code of Civil Procedure section 1291.6 and 9 U.S.C. § 5 as to appointment of alternative arbitrators, noting that “It governs only the method of appointing an arbitrator. But, as already discussed, the issue in this case is not so limited because PaineWebber seeks an arbitral forum provided by the NASD, including the application of the NASD’s rules.” (Id. at 227.) The court noted further “we acknowledge that consistent with the California Arbitration Act and the Federal Arbitration Act, if the obstacle to arbitration can be  resolved by the appointment of an arbitrator, a court may, under circumstances not present here, make such an appointment and compel the parties to arbitrate.” (Id. at 228-229.)

The Court here notes a similar outcome in Martinez v. Master Protection Corp. (2004) 118 Cal.App.4th 107, where the “The arbitration agreement requires that the arbitration be conducted in accordance with specific procedures promulgated by the AAA and, in this case, by an arbitrator licensed to practice law in California. The agreement also outlines a specific procedure by which the parties must select an arbitrator.” (Id. at 120.) The court stated “The arbitration agreement's requirement for resolution of the present dispute “in accordance with” pertinent AAA procedures means that the arbitration must take place before that designated agency, that is, in an AAA forum.” (Id.)

Here, the Agreement at issue states that final and binding arbitration “shall be conducted and administered by the Federal Mediation and Conciliation Service ('FMCS'), pursuant to its policies and procedures.” It, therefore, requires arbitration in this matter to be conducted in accordance with specific policies and procedures of the FMCS and administered by the FMCS. The parties' selection of the arbitrator provider is an "integral" contract term and the parties contracted for FMCS to conduct the arbitration. (Alan, supra, 111 Cal.App.4th at 228.)

The Court does not find that the preceding statement “[u]nless the parties mutually agree otherwise” changes this analysis where Plaintiff has filed a civil suit, Defendant Alliance brings this motion to compel which is indicative to the Court that the parties have not otherwise mutually agreed to another arbitral forum.

Additionally, the contract allows severance only of provisions that are “…unlawful, invalid, or unenforceable.” Here, the choice of arbitrator is not unlawful, invalid or unenforceable as a matter of law where the chosen arbitrator has “refused to participate” based on its procedures and policies. (Martinez, supra, 118 Cal.App.4th at 121.) As such, the consequence of such a refusal is for the parties to resolve their dispute in court. (Id. at 122 [where the appellate court directed the trial court to "restore this matter to its litigation calendar."].)

Therefore, the Court denies the motion.

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. Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings.

Re:                Wells Fargo Bank, N.A. vs. Barragan, Felipe

Case No.:   VCL329996

Date:           November 2, 2026

Time:           8:30 A.M. 

Dept.          9-The Honorable Nathan D. Ide

Motion:     Plaintiff’s Motion for Summary Judgment

Tentative Ruling: To grant the unopposed motion

Facts

In this matter, Plaintiff sues Defendant under breach of written contract and breach of implied contract.

Defendant applied for and was issued a Wells Fargo credit card ("Subject Account") ending in 4659. (UMF Nos. 1, 16.)

Plaintiff sent Defendant the credit card along with the written Customer Agreement associated with the credit card. (UMF Nos. 2, 17.) Defendant accepted the terms of the written agreement when they used the Wells Fargo Visa Credit Card. (UMF Nos. 3, 18.)

Pursuant to the terms of the Customer Agreement associated with the card, Plaintiff would extend credit to Defendant whereby Defendant could charge goods, services, or obtain cash advances on the credit line. (UMF Nos. 4, 19.) In exchange, Defendant was to repay the principal amount lent plus applicable interest and finance charges. (UMF Nos. 5, 20.)  In accordance with the Customer Agreement, Defendant used the account, and made payments, charges, and incurred a balance thereon. (UMF Nos. 6, 21.)

Plaintiff sent Defendant monthly statements of the Subject Account each and every billing period. (UMF Nos. 7, 22.) The statements of the account reflected all charges, payments, minimum payment due that billing period, and any fees and interest incurred for each billing period. (UMF Nos. 8, 23.)

There is no record of any unresolved disputes on the account. (UMF Nos. 9, 24.) There is no record of any active lawsuits against Wells Fargo Bank, N.A. for unresolved disputes on this credit card account. (UMF Nos. 10, 25.)

Defendant’s last payment on the Subject Account was on November 1, 2024. (UMF Nos. 11, 26.) Thereafter, no further payments were made by the Defendant, and therefore, pursuant to the terms of the Customer Agreement, Defendant was in default. (UMF Nos. 12, 27.)

The balance due on Defendant’s Subject Account is $11,571.99. (UMF Nos. 13, 28.) As a result of Defendant’s unpaid balance, Plaintiff has been damaged in the sum of $11,571.99. (UMF Nos. 14, 29.)

No opposition has been filed.

Authority and Analysis

A plaintiff moving for summary judgment must make a prima facie showing that there are no triable issues of fact to meet its initial burden of production. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.App.4th 826, 861.)  “[A] [plaintiff] moving for summary judgment [must] present evidence, and not simply point out that the [plaintiff] does not possess, and cannot reasonably obtain, needed evidence.” Aguilar, at 854, fn. omitted.  Circumstantial evidence to support a plaintiff’s summary judgment motion “can consist of factually devoid discovery responses from which an absence of evidence can be inferred,” but the burden should not shift without stringent review of the direct, circumstantial, and inferential evidence.” (Scheiding v. Dinwiddle Construction Co. (1999) 69 Cal.App.4th 64, 83.)

Once the plaintiff has met its burden, the burden shifts to the defendant to make a prima facie showing that a triable issue of material fact exists. (Aguilar, supra, 25 Cal.App.4th at 850.)  “A prima facie showing is one that is sufficient to support the position of the party in question. [citation] No more is called for.” (Id. at 851.) The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material facts and that the moving party is entitled to a judgment as a matter of law. (Code Civ. Proc. 437c(c).)

From a review of the undisputed material facts supplied in Plaintiff’s separate statement of undisputed material facts and the evidence that offered in support of these material facts that plaintiff supplied in this response, the Court finds that Plaintiff has met its burden to that no triable issues of fact exist.

To establish a claim for breach of contract, Plaintiff must establish: (1) the existence of the contract, (2) Plaintiffs' performance or excuse for nonperformance, (3) defendants' breach, and (4) the resulting damage to Plaintiff." (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.)

“A cause of action for breach of implied contract has the same elements as does a cause of action for breach of contract, except that the promise is not expressed in words but is implied from the promisor's conduct.” (Yari v. Producers Guild of America, Inc. (2008) 161 Cal.App.4th 172, 182.)

Here, the first elements are met by Nos. 1 through 8 and 16 through 23. 

The second elements are met by Nos. 4, 9, 10, 12, 13, 19, 24, 25, 27, and 28.

The third elements are met by Nos. 5, 11, 12, 13, 14, 20, 26, 27, and 28.

The fourth elements are met by Nos. 13, 14, and 28.

Therefore, the Court grants the motion and will sign the proposed order.

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. Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings.

Re:                Ware, Kevin vs. FCA US, LLC

Case No.:   VCU333129

Date:           November 2, 2026

Time:           8:30 A.M. 

Dept.           9-The Honorable Nathan D. Ide

Motion:     Defendant’s Motion for Sanctions

Tentative Ruling: No documents appear filed in connection with this motion. The Court, therefore, takes this hearing off calendar.

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. Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings.

Re:                 Macias, Trinidad vs. Suntreat Packing & Shipping Co.

Case No.:   VCU332865

Date:           November 2, 2026

Time:           8:30 A.M. 

Dept.           9-The Honorable Nathan D. Ide

Motion:      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 September 8, 2026, Plaintiff’s Counsel David M. Hogue filed a motion to be relieved as counsel as to Plaintiff Trinidad Macias. 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, Plaintiff’s Counsel has filed proof of service of these documents by mail.

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 September 2, 2026 at the last known address of Plaintiff. The declaration of counsel indicates that Plaintiff’s address was confirmed as current by telephone and conversation.

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. Plaintiff’s 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” as to Plaintiff.

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. Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings.

Honorable Bret D. Hillman Presiding - Department 2

Examiner notes for probate matters calendared November 2, 2026, that allow for posting:

Status:  Recommended for Approval (RFA), Appearance Required or Recommended, Approval Conditional Upon, etc.

Case Number	Case Name	Type	Status	Comments
VPR054336	In the Matter of Smeltzer, Diana Kay	Probate Will/Issue Letters	Appearance Required	Proposed Order: caption and Item 3 indicate appointment of Administrator, rather than Executor
VPR054334	In the Matter of Undorte, Kathryn	Probate Will/Issue Letters	Appearance Required	Original Will not lodged
VPR054328	In the Matter of Buckman, Douglas Philip	Letters of Administration	Appearance Required	Supplemental Statement of Birth Date and DL Number (DE-147S) not filed, TCSC LR, rule 1000(c)(4)
VPR054343	In the Matter of Almanza Gallegos, Alberto	Determine Succession to Primary Residence	Recommend for Approval
VPR054332	In the Matter of Duvall, Yvonne Patricia	Determine Succession to Primary Residence	Recommend for Approval
VPR054329	In the Matter of the Thomas H. Allen Revocable Trust	Petition to Confirm Trust Asset	Appearance Required	Notice of Hearing not served on all interested persons 30 days prior, Prob C § 851. Objections filed
VPR054333	In the Matter of 2018 Hadley Family Trust	Petition to Confirm Trust Asset	Recommend for Approval
VPR054001	In the Matter of Douma, Darlene Fay	Petition for Preliminary Distribution	Appearance Required	Petition: Exhibits B – C not attached

Honorable Russell Burke Presiding- Department 19

Examiner notes for probate matters:   Thursday, October 29, 2026

                                         

Status:  Recommended for Approval (RFA), Appearance Required or Recommended, Approval Conditional Upon, etc.

PLEASE NOTE:  All attempts possible are made to have the information on this page entered by 3:00 p.m. the day prior to hearing in order to allow for any needed continuances or travel if an appearance should be required.  For further information regarding a probate matter listed below you may contact the Probate Document Examiner at (559) 730-5000 x 1302 or 1430

Case Number	Case Name	Type	Status	Comments
PPR053821	In the Matter of Ruthenbeck, Marc	Final Distribution Hearing	Appearance required	Attachment to the Petition, Exhibit B is illegible There is a discrepancy between the appraisal/inventory amount and what was reported in the trust account. There is no attachment for the Decedent’s Cash Asset showing this was placed into the blocked Attorney Client Trust Account.
PPR054033	In the Matter of Frazier, Joan	Final Distribution Hearing		Matter appears to be in order
PPR054202	In the Matter of Bjorkman, Douglas	Letters of Administration	Appearance required	Caption- SELECTED Authorization to Administer Under the Independent Administration of Estates Act. LIMITED AUTHORITY Selection made at 2c to act with FULL & LIMITED authority under IEAE Petitioner claims priority in Attachment 3g(2)(a) – NO ATTACHMENT explaining priority NOT FILED - Waiver of Bond all heirs NOT FILED - Notice of Petition to Administer served on all parties 15 days prior, Prob C 8110 NOT FILED - Supplemental Statement of Birth Date and DL Number NOT FILED - Proof of Publication NO Order submitted
PPR054331	In the Matter of Rutledge, Clayton Reynold	Determine Succession to Primary Residence	Appearance required	The Petition was filed without the required DE‑300 attachment as required by Probate Code section 13152(e). It appears that the Order references an attachment concerning the distribution in the related case, and that attachment addresses distribution pursuant to an agreement described in a Declaration. However, in this case, there is no comparable filing or documentation regarding such an arrangement. Please clarify or reconcile this discrepancy
PPR054330	In the Matter of Rutledge, Joann Gail	Determine Succession to Primary Residence	Appearance required	The Petition was filed without the required DE‑300 attachment as required by Probate Code section 13152(e).
PPR054338	In the Matter of Ureno Gamboa, Francisca	Appoint Temporary Conservator	Appearance required	Notice of Hearing not served on proposed conservatee at least 5 court days prior, unless the court for good cause otherwise  orders, Prob C §2250(e)
PPR054364	In RE: The Suarez Family Trust Dated August 9, 2010	Petition Hearing	Appearance required	Notice of Hearing was not timely served – service was conducted by mail on 9/30/26, missing the deadline by one day for the required 30 days' notice prior to hearing set for this date, 10/30/26, Prob C § 851(b)

South County Justice Center & County Civic Center- Visalia

GUARDIANSHIP CASES

         SCJC- Honorable Russell Burke Presiding

         Visalia- Honorable Bret D. Hillman; Honorable Nathan D. Ide; Honorable David C. Mathias

Examiner notes for probate GUARDIANSHIP matters calendared AS STATED BELOW that allow for posting:

PLEASE NOTE:  All attempts possible are made to have the information on this page entered by 3:00 p.m. the day prior to hearing in order to allow for any needed continuances or travel if an appearance should be required.  For further information regarding a probate matter listed below you may contact the Probate Document Examiner at (559) 730-5000 x 1302.

Hearing Date & Time	Department Number	Case Number	Case Name	Comments
11/2/26 8:30 AM	Department  9	VPR054149	In the Matter of S.S.	No procedural issues to address