Tentative Rulings

The Tentative Rulings for Tuesday, October 20, 2026, are:

Re:                Doug De Leo Welding, Inc. vs. Ventural Coastal, LLC

Case No.:  VCU335819

Date:           October 20, 2026

Time:          8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     Motion to Strike

Tentative Ruling: To grant the motion in part with leave to amend; to deny the motion in part; Plaintiff shall have ten (10) days from the date of this hearing to file an amended complaint. To continue the Case Management Conference to December 22, 2026, at 8:30 AM in Dept. 2.

Facts

In this matter, Plaintiff sues Defendant for (1) breach of oral contract, (2) open book account, (3) account stated, (4) reasonable value of goods and services and (5) conversion.

The prayer seeks “reasonable attorneys’ fees”

Defendant seeks to strike this reference in the prayer, either as to all causes of action or all causes of action except the second cause of action. As to the open book account, Defendant argues that the fees are statutorily capped by Civil Code section 1717.5 and that the prayer fails to reflect this limitation.

In opposition, Plaintiff’s memorandum argues the fees are recoverable under the oral contract theory by referencing allegations extrinsic to the complaint as to a course of business whereby “Once a purchase order was received from Defendant, Plaintiff would prepare an invoice for such costs and provide the same to Defendant. At the bottom each invoice was a statement that provided ‘A finance charge of 1 ‘/2% per month 18% annually will be added to all invoices over 30 days. If it becomes necessary to assign this account to a collection agency or an attorney, the above named agrees to pay all costs including attorney fees and court costs.’”

Authority and Analysis

Motion to Strike

A motion to strike should be granted to remove "any irrelevant, false, or improper matter inserted in any pleading," or where the pleadings are drawn in violation of a law, rule, or court order. (Code Civ. Proc. § 436.)

However, a motion to strike challenges portions of a complaint that are substantively defective on the face of the complaint. (PH II, Inc. v. Superior Court (1995) 33 Cal.App.4th 1680, 1682-1683; see also Code Civ. Proc. § 437.) As such, the Court does not consider extrinsic evidence or allegations outside of the complaint in deciding the motion.

Here, Plaintiff attempts to introduce such allegations as to the breach of oral contract theory that the Court cannot consider on this motion to strike.

Attorneys’ Fees

Contract

"In the absence of some special agreement, statutory provision, or exceptional circumstances, attorneys' fees are to be paid by the party employing the attorney." (Prentice v. North American Title Guaranty Corp., Alameda Division, (1963) 59 Cal.2d 618, 647.)

Here, as noted above, there is no allegation within the complaint that the oral contract contains a term as to attorneys’ fees.

Open Book Account

Code of Civil Procedure section 1717.5 governs recovery of attorneys’ fees on open book account causes of action:

(a)

(1) Except as otherwise provided by law or where waived by the parties to an agreement, in any action on a contract based on a book account, as defined in Section 337a of the Code of Civil Procedure, entered into on or after January 1, 1987, which does not provide for attorney’s fees and costs, as provided in Section 1717, the party who is determined to be the party prevailing on the contract shall be entitled to reasonable attorney’s fees, as provided below, in addition to other costs. The prevailing party on the contract shall be the party who recovered a greater relief in the action on the contract. The court may determine that there is no party prevailing on the contract for purposes of this section.

(2) Reasonable attorney’s fees awarded pursuant to this section for the prevailing party bringing the action on the book account shall be fixed by the court in an amount that shall not exceed the lesser of: (1) one thousand two hundred dollars ($1,200) for book accounts based upon an obligation owing by a natural person for goods, moneys, or services which were primarily for personal, family, or household purposes; and one thousand six hundred dollars ($1,600) for all other book accounts to which this section applies; or (2) 25 percent of the principal obligation owing under the contract.

(3) For the party against whom the obligation on the book account was asserted in the action subject to this section, if that party is found to have no obligation owing on a book account, the court shall award that prevailing party reasonable attorney’s fees not to exceed one thousand two hundred dollars ($1,200) for book accounts based upon an obligation owing by a natural person for goods, moneys, or services which were primarily for personal, family, or household purposes, and one thousand six hundred dollars ($1,600) for all other book accounts to which this section applies. These attorney’s fees shall be an element of the costs of the suit.

(4) If there is a written agreement between the parties signed by the person to be charged, the fees provided by this section may not be imposed unless that agreement contains a statement that the prevailing party in any action between the parties is entitled to the fees provided by this section.

(b) The attorney’s fees allowed pursuant to this section shall be the lesser of either the maximum amount allowed by this section, the amount provided by any default attorney’s fee schedule adopted by the court applicable to the suit, or an amount as otherwise provided by the court. Any claim for attorney’s fees pursuant to this section in excess of the amounts set forth in the default attorney’s fee schedule shall be reasonable attorney’s fees, as proved by the party, as actual and necessary for the claim that is subject to this section.

As this section delineates recovery of attorneys’ fees are recoverable for open book accounts, the Court does not find it subject to strike.

Remaining Causes of Action

It does not appear to be in dispute that the causes of action for (3) account stated, (4) reasonable value of goods and services and (5) conversion (“Remaining Causes of Action”) do not support the prayer for attorneys’ fees.

Conclusion

The Court grants the motion to strike, in part, as to the breach of contract cause of action and Remaining Causes of Action, with leave to amend and denies the motion, in part, as to the open book account cause of action. Plaintiff shall have ten (10) days to file an amended complaint.

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:                 Lopez, Mario vs. Thyme Holdings, LLC

Case No.:   VCU328024

Date:           October 20, 2026

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:       Plaintiffs’ Motion to Compel Initial Responses to (1) Request For Production of Documents, Set Three as to Defendant Westgate Gardens (2) Request For Production of Documents, Set Four as to Defendant Westgate Gardens (3) Request For Production of Documents, Set Six as to Defendant Westgate Gardens; Plaintiffs’ Motion to Compel Depositions of Twenty-Three (23) individuals

Tentative Ruling: To find these motions stayed by Defendants’ filing of a motion to compel arbitration and request for stay pending determination of the arbitration motion pursuant to Code of Civil Procedure section 1281.4. Defendants’ motion is set for December 22, 2026.  

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:                Duran, Amber vs. Harvest Container Company

Case No.:   VCU334960

Date:           October 20, 2026

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     Demurrer to Third, Fourth, Fifth, Sixth, Seventh, Eighth, Ninth and Tenth Causes of Action in Amended Complaint

Tentative Ruling: To overrule the demurrer as to the third, fifth, and tenth causes of action; to sustain the demurrer to the fourth, sixth, seventh, eighth, and ninth causes of action with leave to amend; Plaintiff shall have ten (10) days to file an amended complaint as to these causes of action. To continue the Case Management Conference to December 22, 2026, at 8:30 AM in Dept. 2.

Facts

In the first amended complaint, Plaintiff sues Defendant Harvest Container Company for harassment, failure to remedy discrimination and harassment, wrongful termination, failure to provide meal and rest break periods, whistleblower retaliation, waiting time penalties, failure to provide accurate wage statements, failure to accommodate, failure to engage in interactive process and discrimination.

Plaintiff alleges she began employment in June 2025 as a clerk in the human resources department and in accounts receivable, supervised by manager, Phillip Enghusen (Phil) and Plaintiff's General Manager, Dennis Del Rio (Del Rio). (FAC ¶¶7, 8.) Plaintiff alleges further that “Prior to the events described herein, Plaintiff was never verbally reprimanded, written up, suspended, or subjected to any scrutiny by Defendants for any reason.” (FAC ¶8.)

Plaintiff alleges she is a lesbian, is “out” with her sexuality and is the mother of three, including a child born in February 2026. (FAC ¶12, 18.)

Plaintiff alleges she was consistently described by or referred to by Defendant’s supervisors as “as a “f-----t” - both to her face and when she was referenced to others, including by supervisors Francisco and Domingo, including in front of Phil. Plaintiff complained that the term was unacceptable, but nothing was ever done.” (FAC ¶13.) Further, that in November 2025, another supervisor Bettencourt stated “stated to Plaintiff that another employee (who had apparently been arrested) was going to “rape” Plaintiff… The exchange took place in front of Phil” who responded by laughing. (FAC ¶14.) Plaintiff alleges she informed another supervisor, Domingo, that she was physically afraid for her safety, but that Defendant took no further action. (FAC ¶14.)

Additionally, Plaintiff alleges that supervisor Francisco: “told Plaintiff that he had sexual relations with all of the office workers. He told Plaintiff he had a place in the back where they “fucked.” He told Plaintiff she was “next.” Disgusted, Plaintiff informed Francisco she was a lesbian. Thereafter, Francisco made sexual reference from Plaintiff to any woman working in HCC’s office, stating, “Amber is going to take any office woman.” Francisco would ask Plaintiff if she thought various workers were “fine” and about sexual acts. At times, supervisor Domingo would join in with Francisco.” (FAC ¶15.)

Further, that Defendant’s “…supervisors made allusions to Plaintiff having sexual relations with various female employees, including remarks that Plaintiff was going to “take Gladys to the back” (meaning to have sexual relations with Gladys); on another occasion, HCC supervisor Francisco told another employee, Veronica Santos, that she [Ms. Santos] “should be careful or Amber [Plaintiff] would take her with a double sided dildo.”… Plaintiff told the HCC supervisors repeatedly to stop attacking her about her sexuality, with no success.” (FAC ¶16.)

Additionally, Plaintiff alleges she was “pressured to lie about a request for accommodations made by another employee. Plaintiff refused to lie or misrepresent that employee’s verbal statements on HR forms (which were legitimate requests for accommodations) despite coaching from HCC management. Plaintiff complained to HCC management that it was illegal to falsify said employee’s request and statements made in the course of requesting accommodations, and that she wouldn’t comply.” (FAC ¶17.)

Plaintiff alleges that, “[s]hortly thereafter, Plaintiff's wife gave birth to Plaintiff's third child in or about February 2026. Plaintiff requested accommodations, but was denied, despite heterosexual employees receiving accommodations despite less time at the company. Plaintiff also complained about the constant harassment and discrimination at HCC.” (FAC ¶18.) Further, that “Despite requests for reasonable accommodations relating to the extreme harassment at HCC that Plaintiff experienced, and anxiety and PTSD that Plaintiff suffered from, and Plaintiff's requests for accommodation for time to bond with her newborn, Plaintiff was terminated by HCC in February 2026. This action followed.”

Further that Plaintiff, in late 2025, requested an evaluation, which was accepted, but not immediately completed. (FAC ¶10.) Plaintiff alleges this resulted in revocation of opportunity for overtime. (FAC ¶10.) Plaintiff’s evaluation took place in February 2, 2026, after which she was told she would be assigned to Account Payable/Purchasing role. (FAC ¶11.) However, “she was still expected to do all previous job roles with A/R, A/P, and H/R without any pay increase for performing all job duties.” (FAC ¶11.)

As to wrongful termination, the Court notes Plaintiff alleges “Plaintiff's employment was constructively terminated in violation of fundamental public policies of the State of California, including but not limited to the violations set forth above.” (FAC ¶29.)

Defendant demurrers to the third through tenth causes of action, as discussed below.

Authority and Analysis

The purpose of a demurrer is to test whether a complaint “states facts sufficient to constitute a cause of action upon which relief may be based.” (Young v. Gannon (2002) 97 Cal.App.4^th 209, 220.  To state a cause of action, a plaintiff must allege facts to support his or her claims, and it is improper and insufficient for a plaintiff to simply plead general conclusions. (Careau v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 11371, 1390.) The complaint must contain facts sufficient to establish every element of that cause of action, and thus a court should sustain the demurrer if “the defendants negate any essential element of a particular cause of action.” (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4^th 857, 879-80)

To determine whether the complaint states facts sufficient to constitute a cause of action, the trial court may consider all material facts pleaded in the complaint and those that arise by reasonable implication therefrom; it may not consider contentions, deductions, or conclusion of fact or law (Moore v. Conliffe (1994) 7 Cal.4^th 634, 638.)

It is well-settled that all well-pled material facts in the complaint are assumed to be true for the purpose of the demurer.  (C & H Foods v. Hartford Ins. Co. (1984) 163 Cal.App.3d 1055, 1062) But “doubt in the complaint may be resolved against plaintiff and facts not alleged are presumed not to exist. (Id.)

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) No other extrinsic evidence can be considered (i.e., no "speaking demurrers"). (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.)

A demurrer cannot be sustained without leave to amend where it appears that the facts alleged establish a cause of action under any possible legal theory or it is reasonably possible that the plaintiff can amend the complaint to allege any cause of action. (Canton Poultry & Deli, Inc v. Stockwell, Harris, Widom, and Woolverton (2003) 109 Cal.App.4^th 1219, 1226.)

Tenth Cause of Action for Discrimination

To establish a claim for discrimination under FEHA, a plaintiff must allege "that (1) he was a member of a protected class, (2) he was qualified for the position he sought or was performing competently in the position he held, (3) he suffered an adverse employment action, such as termination, demotion, or denial of an available job, and (4) some other circumstance suggests discriminatory motive." (Guz v. Bechtel National Inc. (2000) 24 Cal.4th 317, 355.)

Defendant argues that Plaintiff’s complaint fails to allege an adverse employment action and that Plaintiff inconsistently pleads actual termination and constructive discharge.

Plaintiff argues that amended complaint pleads denial of opportunities available to similarly situated heterosexual employees, denial of bonding leave, denial of accommodations, expansion of duties without additional compensation, lost overtime opportunities and ultimately, that Plaintiff was terminated.

An “adverse employment action” is an action that has a substantial and material adverse effect on the terms, conditions, or privileges of employment. (Yanowitz v. L'Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1051-1052.) "A change that is merely contrary to the employees interests or not to the employee's liking is insufficient." (McRae v. Department of Corrections & Rehabilitation (2006) 142 Cal.App.4th 377, 386-387.)  Further, “…an adverse employment action is not limited to "ultimate" employment acts, such as a specific hiring, firing, demotion, or failure to promote decision.” (Akers v. County of San Diego (2002) 95 Cal.App.4th 1441, 1455.) However,  “…[a]n employee's subjective personal judgments of his or her competence alone do not raise a genuine issue of material fact.” (Morgan v. Regents of the Univ. of Cal, (2000) 88 Cal. App. 4th 52, 76.)

Here, the Court agrees that the loss of overtime compensation and expansion of duties without additional compensation, constitute sufficient adverse employment actions.

Further, as to termination, the complaint pleads “actual termination” in February 2026, but the third cause of action, for which the allegations are incorporated into this tenth cause of action, pleads “Plaintiff's employment was constructively terminated.”

The Fifth District Court of Appeal summarized the constructive discharge doctrine as follows, citing to the California Supreme Court’s decision in
Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1244-1251 (internal citations omitted):

“ ‘Constructive discharge occurs when the employer's conduct effectively forces an employee to resign. Although the employee may say, “I quit,” the employment relationship is actually severed involuntarily by the employer's acts, against the employee's will. As a result, a constructive discharge is legally regarded as a firing rather than a resignation.’ ‘Under the cases, an employee cannot simply “quit and sue,” claiming he or she was constructively discharged. The conditions giving rise to the resignation must be sufficiently extraordinary and egregious to overcome the normal motivation of a competent, diligent, and reasonable employee to remain on the job to earn a livelihood and to serve his or her employer. The proper focus is on whether the resignation was coerced, not whether it was simply one rational option for the employee.’ ‘ “There appears to be no disagreement [in the cases] that one of the essential elements of any constructive discharge claim is that the adverse working conditions must be so intolerable that any reasonable employee would resign rather than endure such conditions.”’

‘The essence of the test is whether, under all the circumstances, the working conditions are so unusually adverse that a reasonable employee in plaintiff's position “‘“would have felt compelled to resign.”’” ([‘[T]he cases are in agreement that the standard by which a constructive discharge is determined is an objective one—the question is “whether a reasonable person faced with the allegedly intolerable employer actions or conditions of employment would have no reasonable alternative except to quit.”’].) Finally, ‘[a] constructive discharge is the practical and legal equivalent of a dismissal—the employee's resignation must be employer-coerced, not caused by the voluntary action of the employee or by conditions or matters beyond the employer's reasonable control.’ ([“a wrongful discharge claim may prevail only if an employee can show the employer, or those representing the employer, either created or knowingly permitted working conditions to remain intolerable”].)’

‘…In order to establish a constructive discharge, an employee must plead and prove, by the usual preponderance of the evidence standard, that the employer either intentionally created or knowingly permitted working  conditions that were so intolerable or aggravated at the time of the employee's resignation that a reasonable employer would realize that a reasonable person in the employee's position would be compelled to resign. [¶] For purposes of this standard, the requisite knowledge or intent must exist on the part of either the employer or those persons who effectively represent the employer, i.e., its officers, directors, managing agents, or supervisory employees.’…’Standing alone, constructive discharge is neither a tort nor a breach of contract, but a doctrine that transforms what is ostensibly a resignation into a firing. Even after establishing constructive discharge, an employee must independently prove a breach of contract or tort in connection with employment termination in order to obtain damages for wrongful discharge.’ (Atalla v. Rite Aid Corp. (2023) 89 Cal. App. 5th 294, 319-320).)”

Here, the Court agrees that Plaintiff has sufficiently alleged constructive termination as a theory in the general allegations and third cause of action, incorporated into the tenth cause of action.

Partial demurrers are not permitted. (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119 [“A demurrer must dispose of an entire cause of action to be sustained.”].)

As to the substantial factor element, the Court notes Plaintiff alleges severe and pervasive sexual harassment based on gender and orientation in the months preceding the termination. This appears sufficient where Plaintiff alleges heterosexual employees were treated differently as to employment benefits and accommodations.

The Court will overrule the demurrer to the tenth cause of action.

Wrongful Termination

Plaintiff alleges wrongful termination via constructive termination in violation of fundamental public policies and incorporates the prior allegations.

Defendant argues a lack of sufficient allegations to demonstrate constructive discharge and that Plaintiff has failed to plead actual termination and the public policy violated.

The Court has adjudicated the constructive termination issue above.

To allege a claim for wrongful termination in violation of public policy, Plaintiff must allege facts to support the following elements: (1) the employee engaged in a protected activity; (2) the employer subjected the employee to an adverse employment action, and (3) a causal link existed between the protected activity and the employer's action. (Loggins v. Kaiser Permanente Internal (2007) 151 Cal. App.4th 1102, 1109.) The type of public policy at issue "must involve a matter that affects society at large rather than a purely personal or proprietary interest of the plaintiff or employer and must be not only 'fundamental' and 'substantial,' but also 'well established' at the time of the discharge." (Stevenson v. Superior Court (1997) 16 Cal.4th 880, 889.)

There are four categories of protected employee conduct: "(1) refusing to violate a statute [citations]; (2) performing a statutory obligation [citation]; (3) exercising a statutory right or privilege [citation]; and (4) reporting an alleged violation of a statute of public importance [citations]." (Id.) The public policy supporting a wrongful discharge claim must be supported by either constitutional or statutory provisions, and it must inure to the public's benefit. (Id. at 890.)

As to the public policy violation, Plaintiff’s opposition notes “FEHA's prohibitions against discrimination and retaliation and California's policies protecting employees who report unlawful conduct.”

Here, the Court agrees that Plaintiff has sufficiently alleged that she reported alleged harassment and requests to falsify information related  requests for accommodations. Plaintiff alleges she reported these issues to management. Plaintiff alleges termination shortly thereafter.

The Court, therefore, overrules the demurrer.

Failure to Provide Meal and Rest Breaks, Waiting Time Penalties and Failure to Provide Accurate Wage Statements

Here, Defendant argues that the recitation of the elements of these causes of action is insufficient without some factual allegations in support thereof. The Court agrees. Plaintiff, for instance, pleads lack of meal or rest break periods without alleging the number of hours worked in a day. Plaintiff does not otherwise identify what portion of the wage statement violates Labor Code section 229 or allege the basis for the waiting time penalties cause of action.

Therefore, the Court sustains the demurrer with leave to amend as to the fourth, sixth and seventh causes of action. Plaintiff shall have ten (10) days to file an amended complaint as to these causes of action.

Whistleblower Retaliation

Section 1102.5(b) provides that "[a]n employer, or any person acting on behalf of the employer, shall not retaliate against an employee for disclosing information, or because the employer believes that the employee disclosed or may disclose information, to a government or law enforcement agency, to a person with authority over the employee or another employee who has the authority to investigate, discover, or correct the violation or noncompliance, or for providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry, if the employee has reasonable cause to believe that the information discloses a violation of state or federal statute, or a violation of or noncompliance with a local, state, or federal rule or regulation, regardless of whether disclosing the information is part of the employee's job duties.”

A disclosure within the meaning of section 1102.5, subdivision (b) need not reveal new information to the recipient. (People ex rel. Garcia-Brower v. Kolla's, Inc. (2023) 14 Cal.5th 719, 726.) A disclosure within the meaning of section 1102.5, subdivision (b) also need not be akin to a legal memo citing specific statutes. (Ross v. County of Riverside (2019) 36 Cal.App.5th 580, 592-593.)

The statute requires a disclosing employee to have reasonable cause to believe the information disclosed would reveal a violation of law. (Vatalaro v. County of Sacramento (2022) 79 Cal.App.5th 367, 382, 294.)

Here, as discussed above, Plaintiff alleges she was asked to falsify an accommodation request and suffered harassment reported to Defendant’s supervisory employees. These allegations appear sufficient to support a retaliation claim under Labor Code section 1102.5.

Failure to Accommodate and Failure to Engage in Interactive Process

Under FEHA, an employer must engage in a good faith interactive process with the disabled employee to explore the alternatives to accommodate the disability. (Gov. Code, § 12940, subd. (n); Claudio v. Regents of the University of California (2005) 134 Cal.App.4th 224, 242.)” (Wysinger v. Automobile Club of Southern California (2007) 157 Cal.App.4th 413, 424.) FEHA requires an employer and a disabled employee to engage in a timely, good faith "interactive process" to identify or implement effective, reasonable accommodations that will enable the employee to perform their job effectively. (Gov't. Code § 12940(n); 2 Cal. Code Regs. § 11069(a); Scotch v. Art Institute of California (2009) 173 Cal.App.4th 986, 1013.) To prevail on a claim under Government Code section 12940(n), "…the employee must be able to identify an available accommodation the interactive process should have produced." (Id. at 1018-1019.) "An 'employer cannot be held liable for failing to engage in [the] interactive process when the employee was in fact offered a reasonable accommodation.'" (Miller v. Department of Corrections & Rehabilitation (2024) 105 Cal.App.5th 261, 282.)

Further, “An employer… has an affirmative duty to make reasonable accommodation(s) for the disability of any… employee if the employer… knows of the disability, unless the employer…can demonstrate, after engaging in the interactive process, that the accommodation would impose an undue hardship." (2 Cal. Code Regs. § 11068(a).)  To establish the failure to provide a reasonable accommodation, a plaintiff must demonstrate: (1) the employee suffered a disability (2) the employee could perform the essential functions of the job with reasonable accommodation, and (3) the employer failed to reasonably accommodate the employee's disability." (Nealy v. City of Santa Monica (2015) 234 Cal.App.4th 359, 373.)

Here, Plaintiff alleges “Despite requests for reasonable accommodations relating to the extreme harassment at HCC that Plaintiff experienced, and anxiety and PTSD that Plaintiff suffered from, and Plaintiff's requests for accommodation for time to bond with her newborn, Plaintiff was terminated by HCC in February 2026.”

The Court finds these allegations insufficient with respect to supporting the identification of the disability or medical condition, the accommodation requested and denied based on the disability or medical condition, or identification of the accommodation for which the process should have produced.

Therefore, the Court sustains the demurrer to the eighth and ninth causes of action with leave to amend. Plaintiff shall have ten (10) days to file an amended complaint as to these causes of action.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order. 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:                 Hernandez, Hector Salvador Jr. vs. FCA US, LLC.

Case No.:   VCU311017

Date:           October 20, 2026

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     Defendant’s Motion to Tax Costs

Tentative Ruling: To grant the motion in part and award $1,781.73 in costs.

Background Facts

In this matter, Plaintiff purchased new 2018 Dodge Durango (“Vehicle”) which allegedly developed substantial defects that Defendant was unable to repair after a reasonable number of attempts. On July 23, 2025, Defendant made a 998 offer of $20,000.00 cash plus attorney fees, costs, and expenses pursuant to California Civil Code section 1794, subdivision (d), which Plaintiff accepted.

On May 18, 2026, Plaintiff filed a motion for fees and costs, seeking fees in the amount of $22,753.67, consisting of: (1) $13,208.00 in attorney fees; (2) a 1.35 multiplier enhancement of $4,622.80; (3) 3,422.87 in costs and expenses; and (4) $1,500.00 for Plaintiff’s counsel to review Defendant’s Opposition, draft the Reply, and attend the hearing on this Motion (though counsel expects to incur over $1,500.00 in fees on these tasks)

At the hearing on the motion for fees and costs, the Court awarded $7,105.00 in fees.

As to the costs claimed, the Court ordered the parties to meet and confer, ordered Plaintiff to produce receipts for the costs claimed, and that if the parties failed to agree, for Plaintiff to file the receipts and for Defendant to respond to the production of receipts. The Court continued this matter as to the costs issue to this hearing.

Facts

On September 16, 2026, Plaintiff filed a memorandum of costs, and electronically served the same on Defendant, seeking costs as follows:

Cost	Amount	Challenge by Defendant?
1. Filing and Motion Fees	$1,085.90	Yes
2. Jury Fees	$150.00	Yes
5. Service of Process	$90.30	Yes
16. Other	$2,309.67	Yes
Total	$3,635.87

On October 5, 2026, Defendant filed this motion to tax costs

To start, section 1033.5 sets forth allowable costs reasonably necessary to "the conduct of litigation." (Code Civ. Proc., § 1033.5.)

However, Civil Code section 1794, subdivision (d) enables the prevailing "buyer" in a Song-Beverly matter to be "…allowed by the court to recover as part of the judgment a sum equal to the aggregate amount of costs and expenses…” (Civ. Code, § 1794, subd. (d), emphasis added.) Courts have interpreted Section 1794's "expenses" provision to include "out-of-pocket expenses beyond the costs identified in Code of Civil Procedure section 1033.5.” (Smalley v. Subaru of America, Inc. (2022) 87 Cal.App.5th 450, 457 [citing Jensen v. BMW of North America, Inc. (1995) 35 Cal.App.4th 112, 137-138, disapproved on other grounds].) Per Jensen, the intent of the Legislature in allowing "costs and expenses" was to permit "such out-of-pocket expenses as filing fees, expert witness fees, marshall's fees, etc." (Id. at 138.)

The Court does not find that Murillo v. Fleetwood Enterprises, Inc. (1996) 17 Cal.4th 985, 990–991 nor Sanchez v. Bay Shores Medical Group (1999) 75 Cal.App.4th 946 stand for the proposition that section 1033.5 precludes additional recovery of costs under Song Beverly. 

Additionally, the Court does not find Defendant’s argument that Plaintiff’s firm, in other cases, has failed to pay costs prevent awarding costs here, where such costs were incurred. The Court does not equate “actually incurred” with “paid.”

Filing and Motion Fees

Here, the filing and motion fees include electronic filing costs, which are prohibited by section 1033.5 except where expressly ordered by the Court. However, the Court finds electronic filing costs are proper out-of-pocket expenses that are reasonably necessary to the litigation in this case and are recoverable as a prevailing party under Song Beverly.

The Court, however, will strike two “rush” fees of $64.75 and $97.75 in this category, as well as rush fee of $20.00 as to the 7-3-25 joint stipulation filing.

Jury Fees

Defendant seeks to strike the jury fees. However, recovery of jury fees are expressly permitted under Code of Civil Procedure section 1032. (See Perko's Enterprises Inc. v. RRNS Enterprises (1992) 4 Cal.App.4th 238, FN 5.) Moreover, this Court notes that jury fees are a reasonably incurred cost, even when a case does not go to trial because under Code of Civil Procedure section 631, jury fees must be paid by the first case management conference in the action.

The Court denies the request to strike the jury fees.

Other

The Court will strike the appearance attorney fee of $65.00, the $3.70 “e-service fee” and the $176.00 runner fee as to retrieval of signed orders. None of these appear to be proper out of pocket expenses that were reasonably incurred.

As to the travel expenses, the Court notes these were incurred as to the mandatory settlement conference, for which the Court requires personal appearances. However, the attorney who appeared was one of 15 attorneys who billed fees on this case, and his only connection to the matter appears to be his attendance at the settlement conference, for which he billed 6.1 hours to attend a “mediation” in Visalia and over $1,600 in travel-related charges. The settlement conference was nonproductive. The court will order reimbursement for his hotel charge but not five uber rides, two flights and food expenses. Auto mileage charges for travel would have been reasonable and necessary but those were not submitted.

As such, some of these costs appear reasonably incurred, such as the hotel expense. However, the Court does not find that travelling by flight as opposed to vehicle is reasonably necessary. Additionally, Ladas v. California State Auto. Assn. (1993) 19 Cal.App.4th 774 notes that meal expenses are not recoverable “…since attorneys have to eat, whether they are conducting litigation or not.” As such, the Court will strike the airfare, meals and Uber charges, a total of $1,426.94.

The Court finds the remainder of the costs challenged in other recoverable under Song Beverly and reasonably incurred.

Summary

Therefore, the Court awards costs as follows:

Cost	Amount Requested:	Amount Awarded
1. Filing and Motion Fees	$1,085.90	$903.40
2. Jury Fees	$150.00	$150.00
5. Service of Process	$90.30	$90.30
16. Other	$2,309.67	$638.03
Total	$3,635.87	$1,781.73

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:                 JT2, Inc. vs. City of Woodlake

Case No.:  VCU335486

Date:           October 20, 2026

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     Cross-Defendant’s (1) Demurrer and (2) Motion to Strike Amended Cross-Complaint

Tentative Ruling: (1) To overrule the demurrer to the first two causes of action; to sustain the demurrer without leave to amend as to the third cause of action; (2) To deny the motion to strike; to order JT2 to answer the amended cross-complaint no later than ten (10) days from the date of this hearing.

Facts Common to (1) and (2)

In the underlying complaint in this matter, Plaintiff/Cross-Defendant JT2 sues Defendant/Cross-Complainant City of Woodlake for breach of contract and breach of covenant of good faith and fair dealing as to the Woodlake Stormwater Pipeline Phase 2 (“Project”). (Complaint ¶4.)

The complaint further alleges damages of $2,878,194.50 based on “Defendants breached the Contract including by providing defective plans and specifications and failing to timely correct the defects, and failing to pay for all of the damages to Todd caused by the City’s defective plans and specifications, delaying and disrupting the work and failing to pay all the costs thereof, failing to properly and timely pay in accordance with the Contract; changing the work and failing to pay for the changed work; requiring extra work and failing to pay for all of the extra work; delaying work and failing to pay for the costs of the delay; failing to pay for differing site conditions.” (Complaint ¶4.)

Defendant/Cross-Complainant City cross-complaints for violations of the false claims act, fraud and false promise.

City alleges that the Project involved installation of reinforced concrete pipe storm drains of various diameters, manholes, and related work, that it published plans and specifications for bids to construct the Project, including that the work would be completed in 175 days, and that on November 15, 2022, JT2 submitted a bid to construct the Project in the amount of $2,878,132.00. (FAXC ¶¶6, 7, 8.) This bid was the lowest received by the City by an amount of $686,286.00 and was lower than an engineer’s  estimate by $699,395.80. (FAXC ¶123.)

On February 14, 2023, the City issued a Notice to Proceed to JT2, with an estimated completion date of November 7, 2023. (FAXC ¶8.) The Project was completed on April 23, 2024. (FAXC ¶8.)

“…JT2 submitted approximately 265 change order requests to the City. These change order requests identified alleged increased costs and time. The change order requests claimed that additional compensation was necessary due to alleged differing site conditions, defects in plans, delays, and other issues. After review of these change orders, and supporting documents if any were received, the City accepted several and paid the requested amount. However, a majority of these requests were either partially or entirely denied as they were not compensable costs under the terms of the contract.” (FAXC ¶10.)

“Following the completion of the Project, the City continued to receive approximately 18 change order requests from JT2 alleging production delays and added costs. These change orders continued to be submitted to the City up to June 17, 2025, over a full year after the Project was completed. Again, after a review of these change orders, and supporting documents if any were received, the City accepted some and paid the requested amount. However, as with during the performance of the Project, a majority of these requests were either partially or entirely denied as they were not compensable costs under the terms of the contract.” (FAXC ¶12.)

City notes that the $2,878,194.5 sought by JT2 “essentially equals the entire original contract price, suggesting the change orders sought to double the contract value.” (FAX ¶16.)

In support of the claim for violation of the False Claims Act under Government Code section 12650, City sets out the specific requests for change orders for which the City contends violate the False Claims Act, including on before the start of the Project, citing to specific sections of the Project documents and specifically alleging why the change orders were false or fraudulent. (FAXC ¶¶21-114.)

The City seeks between $5,500 and $11,000 under Government Code section 12651(b) per each falsely presented claim, resulting in civil penalties of at least $1,347,500 and seeks treble damages under Government Code section 12651(a). (FAXC ¶¶ 120,121.)

As to fraud, City alleges JT2 intentionally underbid the Project, noting the bid was the lowest received by the City by an amount of $686,286.00 and was lower than an engineer estimate by $699,395.80, that the City was required to accept the bid as the low bid and that JT2, as evidenced by the number of change order requests and amounts, “intentionally underbid the project to secure the contract as the low bidder, with a pre-planned, systematic intent to subsequently extract additional funds from the City by submitting a massive wave of false, inflated, and duplicative change orders.” (FAXC ¶123.)

City alleges further that JT2 knew the bid price was false “because it was a sophisticated, licensed California contractor with complete access to the project specifications, plans, and instructions, and fully understood the actual work, construction standards, and costs required to perform the project. JT2 intended that the City rely on its false bid representation so that the City would accept its low bid, execute the contract, and lock the City into a binding agreement. The City reasonably and justifiably relied on JT2’s bid representations…The City was justified in its reliance because JT2 is a licensed contractor, and the contract itself established a mutual framework for legitimate change orders.” (FAXC ¶124.)

The City then alleges the JT2 engaged in a “campaign of seeking extra compensation for work already covered under the base bid demonstrates that JT2 never intended to perform the work for the contract price, and that its low bid was a fraudulent sham designed to trap the City into a contract.” (FAXC ¶125.)

City then alleges that a number of change orders were “false, inflated, or duplicative”
before detailing each change order challenged, citing to specific sections of the Project documents and specifically alleging why the change orders were false or fraudulent. (FAXC ¶¶132-359.)

Additionally, that “the City has suffered significant damage, including the payment of some inflated claims, extensive project delays, the exhaustion of administrative staff time, and the accumulation of significant engineering and legal costs required to investigate, review, and defend against JT2's massive wave of false change order claims” as a result of reliance on JT2’s bidding representations. (FAXC ¶360.)

As to false promise, City alleges that on or about November 15, 2022, JT2’s written bid proposal constituted a false promise by promising to perform and complete all contract work for the Project in accordance with the plans and specifications for the fixed price of $2,878,132.00. (FAXC ¶362.) City further alleges that JT2, at the time this promise was made, “intentionally underbid the project with the pre-planned intent to refuse to perform the work at the promised price and instead extract massive additional funds through false, inflated, and duplicative change orders.” (FAXC ¶363.) Further, JT2 intended the City rely on this promise, that the City relied on the promise by awarding the bid to JT2 at that price and that “JT2 failed to perform its promised act of completing the project for the fixed bid price, immediately demanding extra payments for basic contract items.”

JT2 demurrers to each cause of action for failure to state sufficient facts, uncertainty, ambiguity and that the cross-complaint is unintelligible. Further, JT2 argues the third cause of action is duplicative of the second. Further, JT2 seeks to strike the treble damages, civil penalties, attorneys’ fees and costs, the “Proposed Change Orders” as false claims or evidence of fraud.

City opposes the demurer and motion to strike, arguing that the pleadings are sufficiently stated, as discussed below.

(1) Demurrer – Authority and Analysis

The purpose of a demurrer is to test whether a complaint “states facts sufficient to constitute a cause of action upon which relief may be based.” (Young v. Gannon (2002) 97 Cal.App.4^th 209, 220.  To state a cause of action, a plaintiff must allege facts to support his or her claims, and it is improper and insufficient for a plaintiff to simply plead general conclusions. (Careau v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 11371, 1390.) The complaint must contain facts sufficient to establish every element of that cause of action, and thus a court should sustain the demurrer if “the defendants negate any essential element of a particular cause of action.” (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4^th 857, 879-80)

To determine whether the complaint states facts sufficient to constitute a cause of action, the trial court may consider all material facts pleaded in the complaint and those that arise by reasonable implication therefrom; it may not consider contentions, deductions, or conclusion of fact or law (Moore v. Conliffe (1994) 7 Cal.4^th 634, 638.)

It is well-settled that all well-pled material facts in the complaint are assumed to be true for the purpose of the demurer.  (C & H Foods v. Hartford Ins. Co. (1984) 163 Cal.App.3d 1055, 1062) But “doubt in the complaint may be resolved against plaintiff and facts not alleged are presumed not to exist. (Id.)

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) No other extrinsic evidence can be considered (i.e., no "speaking demurrers"). (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.)

A demurrer cannot be sustained without leave to amend where it appears that the facts alleged establish a cause of action under any possible legal theory or it is reasonably possible that the plaintiff can amend the complaint to allege any cause of action. (Canton Poultry & Deli, Inc v. Stockwell, Harris, Widom, and Woolverton (2003) 109 Cal.App.4^th 1219, 1226.)

False Claims Act

Both the demurrer and opposition focus on Fassberg Construction Co. v. Housing Authority of City of Los Angeles (2007) 152 Cal.App.4th 720, 734-735, which introduces the False Claims Act as follows:

“The California False Claims Act provides that any person who commits certain acts against the state or a political subdivision is liable to the state or political subdivision for treble damages. (Gov. Code, § 12651, subd. (a).) Among the prohibited acts are knowingly presenting or causing to be presented “a false claim for payment or approval” by the state or a political subdivision, and knowingly making or using or causing to be made or used “a false record or statement to get a false claim paid or approved.” (Id., § 12651, subd. (a)(1), (2).) 7 The California False Claims Act also provides that any person who commits such an act may be liable for a civil penalty of up to $10,000 for each “false claim.” (Id., § 12651, subd. (a).) Thus, the act provides for both treble damages for certain acts and a civil penalty for each “false claim.” Government Code section 12655, subdivision (c) states that the act “shall be liberally construed and applied to promote the public interest.”

Further, that “[a] “claim” is defined to “include[] any request or demand for money, property, or services made to any employee, officer, or agent of the state or of any political subdivision.” (Gov. Code, § 12650, subd. (b)(1).) “ ‘Knowing’ and ‘knowingly’ mean that a person, with respect to information, does any of the following: [¶] (A) Has actual knowledge of the information. [¶] (B) Acts in deliberate ignorance of the truth or falsity of the information. [¶] (C) Acts in reckless disregard of the truth or falsity of the information. [¶] Proof of specific intent to defraud is not required.” (Id., § 12650, subd. (b)(2).)” (Id. at 735.)

JT2 argues that the “Proposed Change Orders” are not claims under the Act because “A change order proposal differs from a request for progress payment in that the former is a request to modify the contract to allow for future payment, while the latter is a request for immediate payment. A change order proposal, if approved, would be followed by a written change order and then a request for progress payment.” (Id. at 741.)

The City responds, arguing that the label “Proposed Change Order” is not dispositive of whether each change order issue raised in Paragraphs 21-114 qualifies a claim. Instead, the City notes, and the Court agrees, that it has pled that these “Proposed Change Orders” were reviewed and “the City accepted several and paid the requested amount.” (FAXC ¶10.)

Therefore, as pled by the City, there is no second step as to submitting a written change order and request for progress payment following the submission of the “Proposed Change Order.” Rather, each of the “Proposed Change Orders” from Paragraph 21-144 are pled as requests for payment by JT2. As such, the Court considers the “Proposed Change Orders” different from the “change order proposal[s]” defined in Fassberg and rejected as the basis for claims under the False Claims Act because they are “a request to modify the contract to allow for future payment.” (Id. at 741.)

Next, JT2 argues the change orders described lack specificity. Generally, fraud requires particularity, that is, “pleading facts which show how, when, where, to whom, and by what means the representations were tendered.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) The Court finds each Proposed Change Order provides the sufficient particularity required as to the date of presentation, manner in which it was presented, to whom it was presented, and describes why these Proposed Change Orders were not compensable.

As such, the Court overrules the demurrer to the first cause of action.

Promissory Fraud

"The elements of promissory fraud are (1) a promise made regarding a material fact without any intention of performing it; (2) the existence of the intent not to perform at the time the promise was made; (3) intent to deceive or induce the promisee to enter into a transaction; (4) reasonable reliance by the promisee; (5) nonperformance by the party making the promise; and (6) resulting damage to the promise[e]." (Rossberg v. Bank of America, N.A. (2013) 219 Cal.App.4th 1481, 1498.) Promissory fraud must also be alleged with particularity. (Id.) As noted above, the "particularity requirement necessitates pleading facts which 'show how, when, where, to whom, and by what means the representations were tendered.' [Citation omitted.]" (Lazar, supra, 12 Cal.4th at 645).)

Here, JT2 argues that the City fails to plead this claim as it fails to “identify specific alleged misrepresentations and it does not plead the direct causal relationship between the alleged fraudulent representation (JT2’s bid) and the alleged damages.”

The Court finds the allegations in Paragraphs 132-359, including the timing and frequency of the change orders, sufficient support the theory that the bid was intentionally low and therefore induced the City into accepting it and proceeding with the Project for the bid price. The Court finds the allegations sufficiently specific under the fraud standard.

As to the proximate cause argument, the City argues that it has pled that during the construction of the Project, the City reviewed hundreds of change order requests, denied a majority and further evaluated demands for payment. (FAX ¶360.) This appears, at the pleading stage, sufficient.

Therefore, the Court overrules the demurrer to the third cause of action.

False Promise

JT2 argues that this third cause of action is duplicative of the second and therefore should be subject to demurrer.

Here, the City argues “A false promise is actionable deceit when it is made without any intention of performing it. (Civ. Code, § 1710, subd. 4.) A promise to do something implies a present intention to perform; when the promise is made without that intention, the promise contains an actionable implied misrepresentation of fact. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.)” (Opposition 10:14-17.)

The City’s definition of false promise, in the Court’s opinion, mirrors the second cause of action and the City appears to present no argument in response to the challenge that this cause of action is duplicative. The Court can discern no difference between promissory fraud and the cause of action for false promise. A such, these causes of action are duplicative of one another and "thus add nothing to the complaint by way of fact or theory of recovery." (Rodrigues v. Campbell Industries (1978) 87 Cal.App.3d 494, 501; Palm Springs Villas II Homeowners Association, Inc. v. Parth (2016) 248 Cal.App.4th 268, 290, 204.)

Therefore, the Court will sustain the demurrer to the third cause of action. Based on the pleadings, the City has not demonstrated that leave to amend would cure this defect and this cause of action is superfluous. As such, the Court will sustain the demurrer to the third cause of action without leave to amend.

Uncertainty

A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.  (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

The Court does not find the amended cross-complaint uncertain under this standard. The City has identified its theories under the False Claims Act and promissory fraud as to the intentional low bidding of the Project and subsequent change orders to increase payment to JT2. The Court overrules the demurrer as to the uncertainty argument.

(2) Motion to Strike – Authority and Analysis

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).)

Here, JT2 seeks to strike the following:

1. Paragraph 2 of the Prayer for Relief (treble damages under the California False Claims Act);

2. Paragraph 3 of the Prayer for Relief (civil penalties under the California False Claims Act of at least $1,347,500.00);

3. Paragraph 4 of the Prayer for Relief (attorney's fees and costs, including expert witness fees, under the California False Claims Act);

4. Paragraphs 21-114 of the Amended Cross-Complaint (Proposed Change Orders alleged as false claims);

5. Paragraph 118 of the Amended Cross-Complaint (245 alleged false claims);

6. Paragraph 120 of the Amended Cross-Complaint (Recovery under CFCA);

7. Paragraph 121 of the Amended Cross-Complaint (Treble Damages under CFCA);

8. Paragraphs 125-126 of the Amended Cross-Complaint (Proposed Change Order alleged as evidence of fraudulent scheme);

9. Paragraphs 127-340 of the Amended Cross-Complaint (Proposed Change Orders as evidence of fraudulent inducement); and

10. Paragraphs 343-359 of the Amended Cross-Complaint Proposed Change Orders as evidence of fraudulent inducement).

The Court has adjudicated the issues raised by JT2 on demurrer above as to the distinction between the “Proposed Change Orders” pled here and change order proposals defined and discussed in Fassberg.

The Court has further found the Proposed Change Orders noted under the fraud cause of action support the theory that JT2 intentionally underbid the Project and that its intent not to perform for the bid amount is evidenced by the number, frequency and type of change orders stated under this cause of action.

Therefore, the Court denies the motion to strike.

Based on the ruling above on demurrer and on this motion to strike, the Court orders JT2 to answer the first amended cross-complaint 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:                 Kirksey-Mellinger, Deana M vs. FCA US LLC

Case No.:   VCU336988

Date:           October 20, 2026

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     Demurrer to Sixth Cause of Action for Concealment

Tentative Ruling: To sustain the demurrer with leave to amend; Plaintiff shall have ten (10) days to file an amended complaint. To continue the Case Management Conference until December 22, 2026 at 8:30 AM in Dept. 2.

Facts

The complaint in this matter brings a cause of action, amongst others, for concealment based upon the following allegations.

On or about November 24, 2021, Plaintiffs entered into a warranty contract with Defendant FCA regarding a 2022 Ram 2500, vehicle identification number 3C6URSFL6NG144507 (hereafter "Subject Vehicle"), which was manufactured and or distributed by Defendant FCA. (Complaint ¶7.) These causes of action arise out of the warranty obligations of FCA in connection with a motor vehicle for which FCA issued a written warranty. (Complaint ¶11.)

The defects indicated are engine defects, transmission defects, and electrical defects, among other defects and non-conformities. (Complaint ¶12.) Said defects/nonconformities substantially impair the use, value, or safety of the Vehicle. (Complaint ¶13.)

Plaintiffs are informed, believe, and thereon alleges that FCA knew since prior to Plaintiffs purchasing the Subject Vehicle, that the 2022 Ram 2500 vehicles equipped with the 6.7L engine have one or more defects that can result loss of power, stalling, engine running rough, engine misfires, failure or replacement of the engine (the "Engine Defect"). (Complaint ¶16.) Further, that the Engine Defect is a safety concern because it can suddenly affect the driver's ability to control the vehicle or cause a non-collision vehicle fire or fail without warning. (Complaint ¶17.)

Plaintiffs allege FCA was well aware and knew that the Vehicle was defective but failed to disclose this fact to Plaintiffs at the time of sale and thereafter and that FCA acquired knowledge of the Engine Defect through sources not available to consumers. (Complaint ¶18, 19, 22-27.) Further that Defendant nevertheless concealed and failed to disclose the defective nature of the Vehicle and its Engine Defect to its sales representatives and Plaintiffs at the time of sale and thereafter. FCA omitted mention of the Engine Defect to its consumers. (Complaint ¶20.) Further that Plaintiffs are reasonable consumers who interacted with sales representatives, considered FCA's advertisement, and/or other marketing materials concerning the FCA Vehicles prior to purchasing the Subject Vehicle. Had FCA revealed the Engine Defect, Plaintiffs would have been aware of it and would not have purchased the Subject Vehicle. (Complaint ¶21.)

As to concealment specifically, Plaintiffs essentially repeat the allegations above.

Defendant FCA demurrers to the cause of action for concealment.

No opposition appears filed.

Authority and Analysis

Demurrer

The purpose of a demurrer is to test whether a complaint “states facts sufficient to constitute a cause of action upon which relief may be based.” (Young v. Gannon (2002) 97 Cal.App.4^th 209, 220.  To state a cause of action, a plaintiff must allege facts to support his or her claims, and it is improper and insufficient for a plaintiff to simply plead general conclusions. (Careau v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 11371, 1390.) The complaint must contain facts sufficient to establish every element of that cause of action, and thus a court should sustain the demurrer if “the defendants negate any essential element of a particular cause of action.” (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4^th 857, 879-80)

To determine whether the complaint states facts sufficient to constitute a cause of action, the trial court may consider all material facts pleaded in the complaint and those that arise by reasonable implication therefrom; it may not consider contentions, deductions, or conclusion of fact or law (Moore v. Conliffe (1994) 7 Cal.4^th 634, 638.)

It is well-settled that all well-pled material facts in the complaint are assumed to be true for the purpose of the demurer.  (C & H Foods v. Hartford Ins. Co. (1984) 163 Cal.App.3d 1055, 1062) But “doubt in the complaint may be resolved against plaintiff and facts not alleged are presumed not to exist. (Id.)

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) No other extrinsic evidence can be considered (i.e., no "speaking demurrers"). (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.)

Concealment

“As with all fraud claims, the necessary elements of a concealment/suppression claim consist of ‘“(1) misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (scienter); (3) intent to defraud (i.e., to induce reliance); (4) justifiable reliance; and (5) resulting damage.”’” [citation omitted]”  (Dhital v. Nissan North America, Inc. (2022) 84 Cal.App.5th 828, 843.)  “Suppression of a material fact is actionable when there is a duty of disclosure, which may arise from a relationship between the parties, such as a buyer-seller relationship.  [citation omitted]” (Id.)

Specificity and Actual Concealment

Unlike most causes of action where the “the policy of liberal construction of the pleadings,” fraud requires particularity, that is, “pleading facts which show how, when, where, to whom, and by what means the representations were tendered.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) Every element of a fraud cause of action must be alleged both factually and specifically. (Cooper v. Equity General Insurance (1990) 219 Cal.App.3d 1252, 1262.) 

Dhital v. Nissan North America, Inc. (2022), 84 Cal.App.5th at 844 is instructive and persuasive on the issue of specificity at the pleading stage, providing in relevant part:

“Plaintiffs alleged the above elements of fraud in the SAC. As we have discussed, plaintiffs alleged the CVT installed in numerous Nissan vehicles (including the one plaintiffs purchased) were defective; Nissan knew of the defects and the hazards they posed; Nissan had exclusive knowledge of the defects but intentionally concealed and failed to disclose that information; Nissan intended to deceive plaintiffs by concealing known transmission problems; plaintiffs would not have purchased the car if they had known of the defects; and plaintiffs suffered damages in the form of money paid to purchase the car….

Nissan also contends plaintiffs did not provide specifics about what Nissan should have disclosed. But plaintiffs alleged the CVT were defective in that they caused such problems as hesitation, shaking, jerking, and failure to function. The SAC also alleged Nissan was aware of the defects as a result of premarket testing and consumer complaints that were made both to National Highway Traffic Safety Administration and to Nissan and its dealers. It is not clear what additional information Nissan believes should have been included. We decline to hold (again in the absence of a more developed argument on this point) that plaintiffs were required to include in the SAC more detailed allegations about the alleged defects in the CVT. We conclude plaintiffs' fraud claim was adequately pleaded.” (Dhital, supra, 84 Cal.App.5th at 844.)

Further, the Court notes less specificity is required if it appears from the nature of allegations that defendant must necessarily possess full information, or if the facts lie more in the knowledge of opposing parties.  (Alfaro v. Community Housing Improvement System & Planning Assn., Inc. (2009) 171 Cal.App.4th 1356, 1384-1385.

Here, the complaint appears sufficiently specific under Dhital.

There are “‘four circumstances in which nondisclosure or concealment may constitute actionable fraud: (1) when the defendant is in a fiduciary relationship with the plaintiff; (2) when the defendant had exclusive knowledge of material facts not known to the plaintiff; (3) when the defendant actively conceals a material fact from the plaintiff; and (4) when the defendant makes partial representations but also suppresses some material facts.’”  (LiMandri v. Judkins (1997) 52 Cal.App.4th 326, 336.)  However, unless the parties were in a fiduciary relationship, the other three circumstances “presupposes the existence of some other relationship between the plaintiff and defendant in which a duty to disclose can arise.”  (Id. at p. 337.)  “Thus, a duty to disclose may arise from the relationship between seller and buyer, employer and prospective employee, doctor and patient, or parties entering into any kind of contractual agreement.” (Id.)

On this issue, the court in Dhital, supra, 84 Cal.App.5th at 844 noted:

“In its short argument on this point in its appellate brief, Nissan argues plaintiffs did not adequately plead the existence of a buyer-seller relationship between the parties, because plaintiffs bought the car from a Nissan dealership (not from Nissan itself). At the pleading stage (and in the absence of a more developed argument by Nissan on this point), we conclude plaintiffs' allegations are sufficient. Plaintiffs alleged that they bought the car from a Nissan dealership, that Nissan backed the car with an express warranty, and that Nissan's authorized dealerships are its agents for purposes of the sale of Nissan vehicles to consumers. In light of these allegations, we decline to hold plaintiffs' claim is barred on the ground there was no relationship requiring Nissan to disclose known defects.” (Id.)

Here, Plaintiff fails to allege the facts found sufficient by Dhital as to allegations that Plaintiffs bought the car from an FCA authorized dealer and that FCA’s authorized dealers are agents for the purposes of sale.

Therefore, the Court sustains the demurrer with leave to amend.

The Court does not rule on the other theories advanced in support of the demurrer.

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:                Nava, Fernando Ramon Puga vs. Munoz, Andres et al

Case No.:   VCU323257

Date:           October 20, 2026

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     Plaintiff’s Motion for Leave to File Amended Complaint

Tentative Ruling: To deny the motion

Background Facts

In this matter filed June 24, 2025, Plaintiff Nava seeks quiet title, specific performance, and declaratory relief relating to a real property identified in the Verified Complaint as “41409 Road 124, Orosi, California 93647” and described as APNs “025-250-042 and 025-160-004.”

Plaintiff alleges the following:

In or about May, 2021, Plaintiff and Defendants entered into an oral purchase agreement whereby Plaintiff agreed to purchase the Property from Defendant MUNOZ who authorized and acknowledged that Defendant NAVARRO was his agent and authorized representative to handle the sales/purchase transaction. The terms of the purchase agreement were that Plaintiff would pay $80,000.00 cash up front to NAVARRO on MUNOZ' behalf for the Property and would pay an additional $90,000.00 should the Defendants split or otherwise subdivide the parcel into two separate parcels. On or about May 11, 2021, Plaintiff paid $80,000.00 in cash to Defendant NAVARRO on behalf of himself and MUNOZ in exchange for ownership of the Property. Title was to be immediately delivered to the Plaintiff at such time and the latter believed title was in fact delivered and transferred as the Defendants promised and represented to Plaintiff. Plaintiff recently learned that Defendants have yet to split or subdivide the Property into two separate properties therefore leaving Plaintiff without an obligation to pay an additional $90,000.00 although Plaintiff is still believed to be the rightful owner of the subject property.” (Complaint ¶4.)

Defendant Navarro answered the complaint August 19, 2025.

Plaintiff initially named both Defendant Munoz and Defendant Navarro.

On November 6, 2026, Plaintiff dismissed Defendant Munoz.

Trial in this matter is set for November 16, 2026.

On October 1, 2026, this Court granted Plaintiff’s ex parte application to shorten time to hear this motion for leave to file the amended complaint.

Facts as to Motion for Leave

The declaration of Plaintiff’s counsel states the following:

“2…Plaintiff informed me that at all relevant times Defendant represented that the subject property address was 41409A Road 124, Orosi, CA 93647. However, upon my own search of property records, I could not find any property returning to such address. To the best of my knowledge, the address was either 41409 Road 124, 41377 Road 124, or 41399 Road 124.

3. When this matter was initially filed, the complaint referenced 41409 Road 124, Orosi, CA 93647 as the subject property. This address was used since 41409A Road 124 could not be located. It was thereafter discovered that 41409 Road 124 returns to a different parcel. I thereafter searched on online map websites to see what the address for the subject property was. Google Maps indicated that the property address was 41399 Road 124, and Apple Maps indicated the property address was 41377 Road 124. Based on this information, my office filed a first amended complaint changing the property address to 41399 Road 124, and naming the record owner of such property.” (Declaration of Armo ¶¶2, 3.)

The Court notes here no first amended complaint has been filed.  

Counsel continues, stating:                                                     

4. Through discovery, Plaintiff learned that Defendant MIGUEL NAVARRO contends he does not own the subject property listed in the FAC. Defendant MIGUEL NAVARRO maintains that he owns 41407 Road 124, Orosi, CA 93647, and 41409A Road 124, Orosi, CA 93647, Defendant NAVARRO produced a grant deed recorded July 27, 2017, to support his contention that he owns 41407 Road 124, Orosi, CA 93647…Defendant NAVARRO did not produce a grant deed for 41409A Road 124. Based on this grant deed, I searched MLS records to indicate what the correct address for the subject parcel of real property is. Based on MLS records, I am informed that the subject property is likely 41407 Road 124, Orosi, CA 93647, and also known as “41409A” Road 124, Orosi, CA 93647.

5. Through my search of MLS records, I discovered that on August 5, 2025, Defendant NAVARRO conveyed title from himself to himself and Blanca Martinez without any consideration. This conveyance was coincidentally executed right after Defendant MIGUEL NAVARRO was served in this action, and two weeks before he filed his answer.

5. Based on Defendant MIGUEL NAVARRO’s knowing misrepresentation that the July 27, 2017, grant deed is the current vesting deed for the subject property, and based on the concealment of the current vesting deed recorded August 5, 2025, Plaintiff believes such conveyance was fraudulent and executed with intent to avoid Defendant NAVARRO's obligations under the oral agreement. Plaintiff desires to add further claims for fraud against Defendant NAVARRO based on these newly occurring facts, and also desires to add Blanca S. Martinez as a party to set aside the fraudulent conveyance to her.

6. With this matter pertaining to quiet title and specific performance of a real property sale transaction, the correct legal description and/or address of the subject property are facts material to Plaintiff's claims. Thus, immediately upon my discovery of these new facts and information, I have prepared the underlying motion for leave to file a second amended complaint. If the Court grants the motion, I do not believe this will cause any unreasonable delay or prejudice to Defendant NAVARRO. This case is young in its inception, and should be ready or trial within the statutory time limits.” (Declaration of Armo ¶¶4, 5, 5, 6.)

In opposition, Defendant Navarro argues the motion fails to comply with the applicable Rules of Court and that the proposed amendments seek to amend the complaint “…with a new theory directed at different property, a different owner, a different conveyance, a new defendant, and new claims.”

On reply, Plaintiff attaches the proposed second amended complaint and argues that Defendant Navarro would not be prejudiced by the amendments.

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. 

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.”

Here, there is a lack of compliance with subsection (a). Although the Court now has a copy of the proposed second amended complaint, there is no statement of what allegations are proposed to be deleted or added.

Further, while the effect of the amendment and necessity thereof have been stated in the declaration, the Court finds a lack of details as to when the facts giving rise to these amended allegations were discovery and why amendment is being sought a month before the previously continued trial date. The grant deed attached as Exhibit B was signed July 2025 and recorded August 5, 2025, over a year ago. Plaintiff’s counsel’s vague reference to discovery fails to set forth when discovery was propounded, responded to and when the recording was discovered.

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.)

Plaintiff’s dilatory acts are typically not sufficient, alone, to deny the motion. Even where a plaintiff has been dilatory in bringing the motion, the Court should not deny the motion unless prejudice is demonstrated. (Kittredge Sports Company v. Superior Court (1989) 213 Cal. App. 3d 1045, 1048.)

Prejudice exists where amendment would: (1) cause a delay of trial; (2) increase preparation costs; (3) change the focus of the complaint; or (4) increase discovery burdens. (Magpali, supra, 48 Cal.App.4th 471, 486-488.) Additional discovery costs may support a claim for prejudice. (Miles v. City of Los Angeles (2020) 56 Cal.App.5th 728, 739 [“Prejudice exists where the proposed amendment would require delaying the trial, resulting in added costs of preparation and increased discovery burdens.”].)

Here, Plaintiff seeks to amend the initial complaint to apparently add causes of action for concealment and misrepresentation, add a new party as well as change the property addresses of the properties at issue.

As applied to motions for leave during trial, the Court notes that whether facts or legal theories are being changed and whether the opposing party will suffer prejudice “represent[ ] a different side of the same coin: If new facts are being alleged, prejudice may easily result because of the inability of the other party to investigate the validity of the factual allegations while engaged in trial or to call rebuttal witnesses. If the same set of facts supports merely a different theory—for example, an easement as opposed to a fee—no prejudice can result.” (City of Stanton v. Cox (1989) 207 Cal.App.3d 1557, 1563.)

Given the timing of this motion, the Court finds a delay in trial would occur, that the focus of the complaint would be changed and there would be increased discovery burdens as to the proposed new defendant and change in addresses of the property at issue. Moreover, the Court lacks a sufficient explanation as to the timing of this motion.

The Court, therefore, 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:                Martin, Jesse vs. Martin, Guadalupe

Case No.:   PCU321765

Date:           October 20, 2026

Time:           8:30 A.M. 

Dept.           19-The Honorable Russell P. Burke

Motion:      Cross-Defendant’s Motion to Strike Punitive Damages in Third Amended Cross-Complaint

Tentative Ruling: To grant the motion without leave to amend.

Facts

Cross-Complainant Guadalupe Martin (“G. Martin”), individually and as Trustee of the M&M Revocable Trust and as general partner of M&A Enterprises, sues Cross-Defendant Jesse Martin (“J. Martin”), individually and as a general partner of M&A Enterprises, a California general partnership.

Relevant here, the third amended cross-complaint alleges a cause of action for breach of fiduciary duty and seeks recovery of punitive damages thereunder.

The third amended cross-complaint alleges:

“6. On October 3, 1986, the real property located at 490 W. Teapot Dome Avenue, Porterville, CA 93257, located in the County of Tulare, State of California ("Teapot Dome Property") was transferred via Grant Deed from Billy B. Lane and Gladys Lane, husband and wife, to M&A Enterprises, a General Partnership ("M&A").

7. At all times between October 3, 1986 and July 19, 2023, the Teapot Dome Property was owned by M&A, of which G. MARTIN and J. MARTIN were general partners.

8. Pursuant to the terms of the oral M&A partnership agreement, G. MARTIN and J. MARTIN agreed to share equally in the necessary expenses, upkeep, and taxes to maintain the Teapot Dome Property.

 9. Notwithstanding the terms of the M&A partnership agreement, only G. MARTIN has paid the expenses, upkeep, and taxes to maintain the Teapot Dome Property. Said expenses, upkeep and taxes have been paid by G. MARTIN with the knowledge and consent of J. MARTIN. Said outstanding expenses, upkeep and taxes have been provided to J. MARTIN by G. MARTIN pursuant to G. MARTIN's request(s) for reimbursement thereof.” (TAXC ¶¶6-9.)

Cross-Complainant G. Martin notes a  number of expenses, upkeep and other items paid which are allegedly owed by Cross-Defendant J. Martin. (TAXC ¶10.)

Further, that “As a result of the amounts owned by J. MARTIN to G. MARTIN for the unauthorized usage along with the failure to pay the expenses owed to G. MARTIN related to the Teapot Dome Property, on July 19, 2023, ownership of the Teapot Dome Property was transferred via Grant Deed to Guadalupe Martin, Trustee of the M&M Revocable Trust. The transfer of the Teapot Dome Property was only in partial satisfaction of all amounts demanded to be paid to G. MARTIN from J. MARTIN and owed from J. MARTIN to G. MARTIN for the substantial amount he has paid for the expenses, upkeep and taxes to maintain the Teapot Dome Property, as alleged in Paragraphs 9 and 10, above.” (TAXC ¶11.)

As to breach of fiduciary duty and in support of the prayer for punitive damages, Cross-Complainant alleges further:

“14…J. MARTIN owed a fiduciary duty to G. MARTIN with respect to the assets and operations of M&A, by virtue of his status as a general partner of M&A. The fiduciary duties owed by J. MARTIN include, but are not limited to, the duty to account for all property, profit or benefits derived by J. MARTIN as a result of the activities of M&A and/or the use of property of M&A; to refrain from dealing with M&A assets and property in a manner that would benefit him at the expense of M&A and/or G. MARTIN; to refrain from engaging in negligent, reckless, or intentional misconduct with regard to the conduct of the activities of M&A; and the duty to discharge his duties to the partnership and to G. MARTIN in accordance with the partnership agreement, the law, and consistent with the obligations of good faith and fair dealing.

…

16…J. MARTIN knowingly and intentionally breached his fiduciary duties by, inter alia, putting his own interests and personal profits above those of G. MARTIN and M&A, self-dealing with regard to the Teapot Dome Property and assets of M&A, occupying the Teapot Dome Property, damaging items owed by G. MARTIN which were located in the Teapot Dome Property, mismanagement of funds and asserts belonging to G. MARTIN and M&A, and failing to provide an accounting to G. MARTIN of funds, assets, inventory and other financial and business matters of M&A.

18. J. MARTIN acted with spite, evil motive, malice, oppression and an intent to harm G. MARTIN and/or with knowing and reckless disregard of the probability of causing harm to G. MARTIN. At all relevant times herein, J. MARTIN knew that his actions of self dealing with regard to the Teapot Dome Property and assets of M&A, and his mismanagement of funds and assets, would cause substantial financial harm to G. MARTIN, yet he intentionally put his own interests and personal profits ahead of those of G. MARTIN and M&A. J. MARTIN intentionally and knowingly engaged in a plan or scheme to take over the Teapot Dome Property and the assets of M&A for his own profit, free of the obligations owed to G. MARTIN As such, based on the intentional and malicious conduct of J. MARTIN, G. MARTIN is entitled to recovery of exemplary and punitive damages in an amount according to proof.” (TAXC ¶¶14, 16, 18.)

Cross-Defendant moves to strike Paragraph No. 18 in its entirety and the reference to punitive damages in the prayer. In support, Cross-Defendant notes this Court’s prior ruling granting Cross-Defendant’s motion to strike punitive damages in the First Amended Cross-Complaint as the pleading “merely alleges ‘knowingly and intentionally breach [of] fiduciary duties’ which does not rise to malice, fraud or oppression.” Cross-Defendant argues that the amendment adds to Paragraph 18 by insufficiently adding a mental state label to the conduct already pled and that no act, date, transaction or participant was added.

Cross-Complainant argues, in opposition, that the allegations are sufficient, pleading evidentiary facts is not required, and that the allegations support “…a knowing course of conduct, plan and scheme by his own brother that was intentional, a breach of his fiduciary duties, and his intent ions and actions that placed his own interests above those of his family member who was providing the financial support for their joint business venture.”

Authority and Analysis

 The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436(a).) The court may also strike all or any part of any 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(b).) This provision is for “the striking of a pleading due to improprieties in its form or in the procedures pursuant to which it was filed.” (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 528.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc § 437.) “When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.” (Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768.)

In reviewing a motion challenging the sufficiency of punitive damages allegations, the Court must consider whether the factual allegations concerning the actual conduct alleged “apprises the adversary of the factual basis of the claim. [Citations.]”  (Kiseskey v. Carpenters' Trust for So. California (1983) 144 Cal.App.3d 222, 234.)

While punitive damages appear available as to breach of fiduciary duty, the claim for such damages requires allegations beyond the mere commission of a tort. (Taylor v. Superior Court (1979) 24 Cal.3d 890, 894-895.)  “Notwithstanding relaxed pleading criteria” permissible with other claims, punitive damages “demand firm allegations.”  (G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 29.)

Civil Code section 3294, subdivision (c) defines the terms “malice,” “oppression,” and “fraud” for purposes of punitive damages liability: “(1) ‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. [¶] (2) ‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights. [¶] (3) ‘Fraud’ means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.”

“Used in its ordinary sense, the adjective 'despicable' is a powerful term that refers to circumstances that are 'base,' 'vile,' or 'contemptible.' As amended to include this word, [Civil Code §3294] indicates that absent an intent to injure the plaintiff, 'malice' requires more than a 'willful and conscious' disregard of plaintiffs' interests. The additional component of 'despicable conduct' must be found.” College Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 725. "Despicable conduct is conduct that is so vile, base, contemptible, miserable, wretched or loathsome that it would be looked down upon and despised by ordinary decent people. Such conduct has been described as having the character of outrage frequently associated with crime." (Scott v. Phoenix Schools, Inc. (2009) 175 Cal.App.4th 702, 715.)

Here, the Court views the operative amended cross-complaint as alleging Cross-Defendant’s mere failure to contribute to the upkeep and maintenance of the property, though derived from an oral partnership agreement. The amendments fails to plead sufficient facts that would reach the malice, fraud or oppression definitions noted above or the commission of some act beyond breach of fiduciary duty. The failure to pay money as contribution to the partnership does not arise to malice, fraud or oppression.

The Court, therefore, grants the motion to strike without leave to amend.

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 October 19, 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
VPR054206	In the Matter of Gonzales, Patrick Joseph	Spousal Property Hearing	Appearance Required	No supplemental documents filed. Previous issues remain
VPR054199	In the Matter of Macke, Joseph J.	Determine Succession to Primary Residence	Appearance Required	Continued hearing
VPR052954	In the Matter of Watson, Edward B. III	Final Distribution Hearing	Appearance Required	1. Inventory and Appraisal – Final inconsistencies: Attachment No. 2, page 2, has a total calculated value of $511,000, whereas page 1, Item 2 shows $511,770. 2. Inventory and Appraisal – Supplemental has not been filed. 3. Proposed Order - Page 5, paragraph 5: the attorney’s fees do not reflect the amount requested in Petition
VPR053697	In the Matter of Navo, Zachary Irving	Final Distribution Hearing	Appearance Required	The court to determine whether the personal property is community or separate property of the decedent—distribution to comply with intestate succession
VPR054337	In the Matter of Ropes, Caleb Preston	Appoint Temporary Conservator	Appearance Required	Notice of Hearing: POS, page 2 is incomplete; all relatives within the second degree are required to be listed in Petition
VPR054317	In the Matter of Bogan, Geneva	Appoint Temporary Conservator	Appearance Required	Order Appointing Court Investigator (GC-330), Declaration on Medical Ability to Attend Hearing (GC-325) and Capacity Declaration (GC-335) not filed. Attachment Requesting Special Orders Regarding a Major Neurocognitive Disorder (form GC-313) not attached to Petition
VPR054229	In the Matter of Sandoval, Juventina	Appoint Temporary Conservator	Appearance Required	Objections filed
VPR054170	In the Matter of Santoyo Gomez, Enrique	Appoint Temporary Conservator	Appearance Required	Documents in order
VPR054158	In the Matter of Diaz, John Anthony	Appoint Conservator	Appearance Required	Petition Item 3e omitted: Property value and income not listed, Probate C § 1821(g) Notice shall be mailed pursuant to Probate Code § 1822(d)

Honorable Russell Burke Presiding- Department 19

Examiner notes for probate matters:   Thursday, October 15, 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
PPR053427	In the Matter of Wheeler, Sidney C	Final Distribution Hearing	Appearance recommended	Order not submitted
PPR053476	In the Matter of SELK, SUITJYE	Final Distribution Hearing	Appearance recommended	Matter appears to be in order
PPR054047	In the Matter of Bedolla, Brian Henry	Appoint Conservator	Appearance required	Matter appears to be in order
PPR054188	In the Matter of Nieblas, Marciela	Letters of Administration	Appearance required	Caption- NOT SELECTED Authorization to Administer Under the Independent Administration of Estates Act. Selection made at 2c to act with FULL authority under IEAE    Petition item 3e re BOND WAIVER omitted - NO SELECTION MADE, NO ATTACHMENT  Petition item 5, (7) or (8) omitted - re any issue of a predeceased child Notice to Minor, pursuant to ProbC §1461.1, notice has not been properly given to a parent, guardian, or other person having legal custody of the minor, with whom the minor resides. NOT LODGED Orders & Letters
PPR054210	In the Matter of Singo, Sila	Probate Will/Issue Letters	Appearance required	Discrepancies: Petition Item 5(1) shows decedent is survived by spouse, whereas Item 8 lists spouse as “deceased” Petition Item 8: relationship of Lisa Singo to decedent is omitted Notice of Petition to Administer: notice of the court address is South County Justice Center; Page 2 – POS is incomplete Proof of Publication not filed Original will not lodged
PPR054235	In the Matter of Smothers, Barbara	Letters of Administration	Appearance required	Matter submitted to court; no Objection filed
PPR054236	In the Matter of Everhart, Joann	Letters of Administration	Appearance required	Matter submitted to court; no Objection filed
PPR054301	In the Matter of Marure, Jose Antonio	Determine Succession to Primary Residence	Appearance required	Petition item 8- inventory and appraisal not attached to the Petition Petition item 9- (3) or (4) omitted – re registered domestic partner; (7) or (8) omitted - re any issue of a predeceased child Petition item 11- 11(2) Missing facts upon which the petitioner bases the allegation that the described real property was the decedent’s primary residence – ie. copy deed, property tax, death certificate with the home address, mortgage statement from 2011. There is no statement of decedent’s interest in the property, doesn’t say the amount of interest decedent owned. Petition item 11- 11(3) Missing facts that show whether the property was community, separate, or quasi-community property Petition item 13-   The interest of each petitioner in the property is not included in Attachment 13 Petition item 14 - CIVIL POS FILED other names included in the POS are Moises Marure, Diana Marure, Yolanda Marure, John Marure but these persons are not listed in the Petition – this form doesn’t meet the probate notice requirement; Notice of Hearing—Decedent's Estate or Trust (DE-120) has not been filed and served on all parties, Prob C § 13153.

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
10/5/2026 8:30	Department 09	VPR054359	In the Matter of E.J.W.	NEED Notice of Hearing (GC-020) to be filed with proof of service to be in accordance with Prob Codes §2250(e) & 2250(e)(3). Service on Father Mr. Addison & Mother Mrs. Wiliams are required Temporary Order and Temporary Letters need to be lodged prior to hearing
10/6/2026 14:00	Department 09	VPR054113	In the Matter of Madera, Shanylle	NEED Notice of Hearing (GC-020) to be filed with proof of service indicating Petition for Appointment was served pursuant to Probate Code §1511 on all grandparents
10/6/2026 8:30	Department 02	VPR054358	In the Matter of Johnson, River Lynn	TEMP- NEED Notice of Hearing (GC-020) to be filed with proof of service to be in accordance with Prob Codes §2250(e) & 2250(e)(3), parents to be personally served 5 court day’s notice prior to hearing
10/6/2026 8:30	Department 01	VPR052277	In the Matter of Bennett, Zoey Lynn	NEED Notice of Hearing GC-020 form to be filed indicating parties to this case were served with a copy of the Notice of Hearing pursuant to Prob Code §1460, service to be given 15 calendar days before hearing
10/14/2026 8:30	Department 01	VPR053711	In the Matter of Allende, Jorge Jr	No issues to address
10/14/2026 8:30	Department 01	VPR047286	In the Matter of Clevenger, Brea Marie	Guardianship Status Review Report needs to be filed for 2026 NEED Notice of Hearing (GC-020) to be filed with proof of service indicating the relatives named in the Petition for Termination were served with 15 calendar days notice, as required by PROB Code §1460,1511, with a copy of the Notice of Hearing and Petition for Termination. The children may be of Native American ancestry, notice of termination proceedings must be given to the children’s tribe per ICWA NOT LODGED- Order Terminating Guardianship
10/15/2026 8:30	Department 19	PPR054192	In the Matter of Venegas, Analise Rose et al	No issues to address
10/15/2026 8:30	Department 19	PPR054155	In the Matter of Hernandez, Julian Carlos et al	NEED Notice of Hearing (GC-020) to be filed with proof of service indicating Petition for Appointment was served pursuant to Probate Code §1511, SERVICE to be completed on paternal grandfather DOJ Background record check appears to be outstanding for proposed guardian and household member
10/15/2026 8:30	Department 19	PPR050803	In the Matter of Aviles, Irie A	NEED Notice of Hearing (GC-020) to be filed with proof of service indicating the relatives named in the Petition for Termination were served with 15 calendar days notice, as required by PROB Code §1460, 1511, with a copy of the Notice of Hearing and Petition for Termination. Guardianship Status Review Report needs to be filed for 2026 NOT LODGED- Order Terminating Guardianship
10/15/2026 10:00	Department 09	VPR053787	In the Matter of Mendoza, Nolberto	Temporary guardianship for N.M. has terminated by operation of law as ward has reached the age of 18. NEED Notice of Hearing (GC-020) to be filed with proof of service indicating Petition for Appointment was served pursuant to Probate Code §1511, notice required by maternal grandparents DOJ Background record check appears to be outstanding
10/15/2026 10:00	Department 09	VPR053770	In the Matter of Mendoza, Paulette	household member is required to complete the DOJ background record check NEED Notice of Hearing (GC-020) to be filed with proof of service indicating Petition for Appointment was served pursuant to Probate Code §1511, by mail on the maternal grandparents and siblings 15 days prior to hearing
10/15/2026 8:30	Department 19	PPR054321	In the Matter of Pena, Rose Marie	Declaration of Due Diligence has not been filed for father Temporary Order and Temporary Letters need to be lodged prior to hearing
10/15/2026 8:30	Department 19	PPR054320	In the Matter of Rosales, Amelia Jade	NEED Notice of Hearing (GC-020) to be filed with proof of service to be in accordance with Prob Codes §2250(e) & 2250(e)(3). MOTHER to be personally served 5 court days prior to hearing Temporary Order and Temporary Letters need to be lodged prior to hearing
10/15/2026 8:30	Department 19	PPR054004	In the Matter of Leon, Ezra Invicto	No issues to address – notice to mother to be discussed at hearing