Tentative Rulings

The Tentative Rulings for Monday, April 22, 2024, are:

Re:                 Gilbert, Sabrina vs. Central California Baking Company

Case No.:   VCU291467

Date:            April 22, 2024

Time:           8:30 A.M. 

Dept.           7-The Honorable Gary M. Johnson

Motion:      Motion for Final Approval of Class Action and PAGA Settlement

Tentative Ruling: To grant the motion, approve the final class action settlement including fees, costs and service awards, as modified herein. Final Compliance Hearing is set for October 28, 2024, 8:30 am in Department 7.

Plaintiff’s motion for final approval of class action and PAGA settlement, attorneys’ fees, costs, enhancement award, LWDA payment and class certification for settlement purposes came on for hearing on April 22, 2024.  The Court finds and rules as follows:

On Mach 28, 2024, the settlement administrator Phoenix, through its Case Manager, filed a declaration detailing the following events.

On January 23, 2024, the administrator received a mailing list of 265 potential class members from Defendant’s counsel with names, contact information, social security numbers and relevant employment information. On January 26, 2024, after the administrator processed the names through the National Change of Address Database and updated the list with any updated addresses located, the administrator sent class notice by mail. Of the thirteen (13) returned notices, none (0) had a forwarding address and eleven (11) updated addresses were obtained. Therefore, twp (2) notice packets have been deemed undeliverable.

Class members had sixty (60) days, until March 26, 2024 to submit objections, disputes and/or requests for exclusions. Zero (0) request for exclusion and zero (0) valid objections have been received from class members. Therefore, 265 class members or 100% of the class will participate in the settlement.

The Court presumes the settlement is fair and reasonable given (a) that it was reached through arms-length bargaining at mediation, (b) that there was sufficient time for investigation and discovery since commencement of litigation on April 26, 2022 (c) class counsel have particularized experience with the claims at issue in the case, and (d) there appear to be zero disputes and zero objections.  (Dunk v. Ford Motor Co. (1996) 48 Cal.App.4^th 1794, 1802.) 

A net settlement amount of $223,383.93 is available to pay to the class members in accordance with the terms of settlement, with an average individual share of at least $842.96 per class member, the lowest estimated share of $52.99 and the highest estimated share of $2,437.68.The Court believes basic information about the nature and magnitude of the claims in question and the basis for concluding that the consideration being paid for the release of those claims represents a reasonable compromise under the circumstances, in accordance with Kullar v. Foot Locker Retail, Inc. (2008) 168 Cal.App.4^th 116, 133.  This case involved extensive informal discovery and investigation of disputed claims, including review and analysis by Plaintiff’s expert.  The settlement avoids significant risks and delay that would result from further litigation of the case, which would include, amongst other matters, certification proceedings, trial, and the possibility of further delay and cost resulting from appeals.

Class counsel has provided a number of declarations in further support of the requests for attorney fees representing 33.3% of the $400,000 gross settlement amount or $133,333.33 

Here, Counsel Lee indicates spending 9.2 hours at a rate of $750 per hour, creating a lodestar figure of $6,900. (Supplemental Declaration of Lee ¶¶2. 3.)

Counsel Agnew indicates incurring 35.8 hours at a rate of $700 per hour, creating a lodestar figure of $25,060. (Declaration of Agnew ¶12.)

The Court notes that Counsel Rosenthal indicated, at the time of preliminary approval, spending 79.3 hours at a rate of $700 per hour, creating a lodestar figure of $55,510. (Supplemental Declaration of Rosenthal ¶¶3, 4.) No updated declaration has been provided.

Therefore, the total, current lodestar for counsel for Plaintiff is $87,470. The Court has not included anticipated hours in this calculation. In order for the Court to award the requested amount of $133,333.33, the Court would need to utilize a multiplier of 1.5, the maximum permitted by this Court on these motions.

The Court, therefore, approves the $133,333.33 in fees.

As to costs, counsel indicates $8,782.74 incurred, which is approximately half of the $15,000 previously approved.

The Court believes the requested attorney fees, as adjusted, and costs appear reasonable under the circumstances. Additionally, counsel has provided a sufficient declaration to demonstrate adequate previous experience with class actions to further support the reasonableness of the award.

The settlement administrator has provided, in the declaration describing the work it has performed on the case, a value of services totaling $9,500, which is amount that was estimated in the motion for preliminary approval.  The Court believes the amount requested as compensation for the administrator appears reasonable. 

Legal Aid at Work is designated as the cy pres recipient in accordance with Code of Civil Procedure section 384 as to any unclaimed proceeds. (Code Civ. Proc. § 384.)

The Court previously approved representative payment of $5,000 and believes that the requested class representative payment is appropriate under the circumstances. Enhancement payments “are fairly typical in class action cases.” (Cellphone Termination Fee Cases (2010) 180 Cal.App.4th 1110, 1393.) Enhancement payments “are intended to compensate class representatives for work done on behalf of the class, to make up for financial or reputational risk undertaken in bringing the action, and, sometimes, to recognize their willingness to act as a private attorney general.” (Rodriguez v. West Publishing Corp. (9th Cir. 2009) 563 F.3d 948, 958-959.) “[T]he rationale for making enhancement or incentive awards to named plaintiffs is that he or she should be compensated for the expense or risk he has incurred in conferring a benefit on other members of the class.” (Clark v. American Residential Services LLC (2009) 175 Cal.App.4^th 785, 806.)

The Court’s review of the declaration of Plaintiff indicates justification for the $5,000 award, but no amount higher.

Finally, the Court confirms its conditional certification of the settlement class. The Court finds no significant events have occurred that would cause it to change its prior determination that the settlement class met all requirements under Code of Civil Procedure section 382 for certification for settlement purposes at the time it granted Plaintiff’s motion for preliminary approval.

On review of the declarations and pleadings submitted, the Court finds, given the established presumption that the settlement is fair and reasonable under the circumstances of this case, and, particularly, given the absence of any objection or opposition following the class notice, that the settlement is fair and reasonable and that the motion for final approval should be, and is hereby, granted.

The approved deductions from the gross settlement amount of $400,000 are approved as follows:

Court Approved Attorney Fees (33.3%):	$133,333.33
Attorney Costs:	$8,782.74
Enhancement Payment to Plaintiff:	$5,000
Settlement Administrator Costs	$9,500
PAGA payment to the LWDA	$20,000
Net Settlement Amount	$223,383.93

The Court shall enter its order of final approval and judgment in this case on the proposed form, modified as to the above, submitted by Plaintiffs on March 24, 2024, and orders that notice of entry of judgment be given as provided in the judgment following entry thereof. 

Final Compliance Hearing is set for October 28, 2024, 8:30 am in Department 7.

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

Re:                Zamora, Maricel vs. Sandoval Crespo, Juan Jose

Case No.:   VCU296072

Date:           April 22, 2024

Time:           8:30 A.M. 

Dept.           7-The Honorable Gary M. Johnson

Motion:      Defendants Sandoval Crespo and Herrera’s Motion for Summary Judgment

Tentative Ruling: To deny the motion.

Facts

Plaintiffs, wrongful death beneficiaries of Decedent, have sued moving Defendants Sandoval Crespo and Herrera for negligence and negligence per se causes of action arising out of an automobile versus semitruck and trailer accident.

Defendants Sandoval Crespo and Herrera present the following facts in support of their theory on summary judgment that Defendant Lagula’s conduct, described below, is a superseding cause under Schrimscher v. Bryson (1976) 58 Cal.App.3d 660 and prevents liability from attaching to these moving Defendants.

At the time of the incident, Defendant Lagula was driving under the influence in violation of Vehicle Code section 23152 and this caused the accident. (Undisputed Material Facts (“UMF”) No. 1.) Plaintiff disputes this fact to the extent it infers that Lagula was the sole cause of the accident and provide evidence as to Defendants Sandoval Crespo and Herrera liability, described in further detail below. (Plaintiffs’ Dispute to UMF No. 1.)

Defendant Lagula was charged with felony manslaughter from the subject accident and she pleaded nolo contendere. (UMF No. 2.)

The subject trailer was parked parallel to the curb. (UMF No. 3.)

There is a dispute as to whether Defendant Lagula knew or did not know there were at least 20 feet between the parked trailer and the center divider. (UMF No. 4; Plaintiffs’ Dispute to UMF No. 4.) Additionally, Plaintiff adds there is no “center divider” at the area of the accident. (Plaintiffs’ Dispute to UMF No. 4.)

It is further in dispute whether Officer Sorensen’s deposition can support the fact presented by moving Defendants that “the applicable roadway was approximately 34.6 feet from center line to curb and there were approximately 23 feet of open roadway between trailer and center divider” because Plaintiff notes Officer Sorensen did not take any measurements at the scene and there is no “center divider” on the incident road. (UMF No. 5; Plaintiffs’ Dispute to UMF No. 5.)

Plaintiffs, in opposition, add the following facts.

In the Complaint, Plaintiffs allege Defendants Sandoval Crespo and Herrera were negligent and negligent per se for operating the Subject Semi in violation of Title 49 of the Code of Federal Regulations (“C.F.R.”) section 392.22(a) & (b).  (AUMF Nos. 7, 8, 9 and 10.)

Plaintiffs further allege that Defendants Sandoval Crespo and Herrera were negligent for stopping and parking the Subject Semi with no hazard warning lights or other warning devices active to warn oncoming drivers and for leaving the Subject Semi in a dangerous location near the roadway exposed to passing motorists. (AUMF No. 11.)

On December 8, 2021, Decedent attended a barbeque at his friend’s house and  Defendant Lagula also attended the barbeque. (Plaintiff’s Additional Undisputed Material Facts (“AUMF”) No. 1.)  Defendant Lagula and Decedent got into Lagula’s vehicle. (AUMF No. 2.) Around 6:30 pm, Defendant Lagula was traveling northbound on Church Road and planned to turn right onto Martin Avenue to head towards Decedent’s home. (AUMF No. 3.)

Defendant Lagula missed the Martin Avenue turn and immediately struck the back left side of the Subject Semi. (AUMF Nos. 4, 13.) After looking right towards the missed turn, Lagula testified that she brought her line of vision back to Church Road where she immediately collided with the Subject Semi. (AUMF No. 14.) It was dark outside and there were no streetlights in the road at the time of the incident. (AUMF No. 15.) There were no hazard lights or cones surrounding the Subject Semi. (AUMF No. 16.) Before impact, Lagula did not see the Subject Semi. (AUMF No. 17.)

Officer Kyle Sorensen responded to the scene of the collision. (AUMF No. 19.) Officer Sorensen confirmed that there were no streetlights on Church Road to illuminate the Subject Semi. (AUMF No. 20.)

The entire right portion of Lagula’s vehicle was destroyed. (AUMF No. 5.) Decedent was killed in the collision. (AUMF No. 6.)

Last, the Court notes Defendant Lagula has filed an opposition to Defendants Sandoval Crespo and Herrera’s separate statement, but the Court’s file does not reflect a memorandum of points and authorities in violation of California Rule of Court, rule 3.1113. The Court has not considered these documents filed by Defendant Lagula. However, the Court notes that the motion for summary judgment, despite any arguments on reply, was not directed at the cross-complaint by Lagula against Defendants Sandoval Crespo and Herrera. Any doubt is removed by the proposed order filed in this matter by moving Defendants, which states:

“Defendants/Cross-Defendants JUAN JOSE SANDOVAL CRESPO, an Individual, dba JUAN SANDOVAL TRUCKING, and PATRICIA V. HERRERA’s (“Defendants”) Motion for Summary Judgment against plaintiffs, MARICEL ZAMORA, SOPHIA VERGARA, and DANIELLE VERGARA (“Plaintiffs”) came on for hearing upon notice on March 4, 2024, in Department 2 of this court.”  (emphasis added.)

Therefore, the Court’s lack of consideration of Defendant Lagula’s pleadings filed in opposition of this motion does not impact the Court’s analysis.

Objections

The Court sustains objection Nos. 1 through 4 by Plaintiffs, as the Court’s review of the deposition testimony indicates it does not support the disputed facts noted above.

The Court finds the objections by Defendants Sandoval Crespo and Herrera  nonmaterial to the disposition of this motion under Code of Civil Procedure section 473c(q).

Authority and Analysis

A party may move for summary judgment in any action or proceeding if it is contended the action has no merit or that there is no defense to the action or proceeding. (Code Civ. Proc. § 437c(a).) “The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)

To prevail, the evidence submitted must show there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Code Civ. Proc. § 437c(c).) The motion cannot succeed unless the evidence leaves no room for conflicting inferences as to material facts; the court has no power to weigh one inference against another or against other evidence. (Murillo v. Rite Stuff Food Inc. (1998) 65 Cal.App.4th 833, 841.) In determining whether the facts give rise to a triable issue of material fact, “[a]ll doubts as to whether any material, triable, issues of fact exist are to be resolved in favor of the party opposing summary judgment…” (Gold v. Weissman (2004) 114 Cal.App.4th 1195, 1198-99.) “In other words, the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences there from must be accepted as true.” (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 179.) However, if adjudication is otherwise proper the motion “may not be denied on grounds of credibility,” except when a material fact is the witness’s state of mind and “that fact is sought to be established solely by the [witness’s] affirmation thereof.” (Code Civ. Proc. § 437c(e).) 

 Once the moving party has met their burden, the burden shifts to the opposing party “to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” (Code Civ. Proc. § 437c(p)(1).) “[T]here is no obligation on the opposing party... to establish anything by affidavit unless and until the moving party has by affidavit stated facts establishing every element... necessary to sustain a judgment in his favor.” (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.) 

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

Negligence and Negligence Per Se Causes of Action

To start, negligence per se does not appear to be a separate tort cause of action. Rather, it is an evidentiary doctrine whereby negligence may be presumed, if the evidentiary requirements are met. The court in Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256, 1285 notes:

"[T]he doctrine of negligence per se does not establish tort liability. Rather, it merely codifies the rule that a presumption of negligence arises from the violation of a statute which was enacted to protect a class of persons of which the plaintiff is a member against the type of harm that the plaintiff suffered as a result of the violation"

…

"Accordingly, to apply negligence per se is not to state an independent cause of action. The doctrine does not provide a private right of action for violation of a statute. [Citation.] Instead, it operates to establish a presumption of negligence for which the statute serves the subsidiary function of providing evidence of an element of a preexisting common law cause of action.”

The elements of a cause of action for negligence are well established: (1) a legal duty to use due care; (2) a breach of such legal duty; and (3) the breach as the proximate or legal cause of the resulting injury. (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917.)

Here, Defendants Sandoval Crespo and Herrera argue a superseding cause prevents liability because a superseding cause breaks the chain of proximate or legal causation.

Superseding Cause

In support of this motion, Defendants Sandoval Crespo and Herrera rely chiefly on
Schrimscher v. Bryson (1976) 58 Cal.App.3d 660, while also citing to Capolungo v. Bondi (1986) 179 Cal.App.3d 346 and Victor v. Hedges (1999) 77 Cal.App.4th 229.

To start, the Court notes that in Schrimscher, the underlying motion for summary judgment was based on a stipulation of underlying facts. (Schrimscher, supra, 58 Cal.App.3d at 662.) There, the defendant, while driving intoxicated and travelling on the freeway, was involved in a collision with another vehicle. (Id.) Shortly after the accident, the plaintiff, an on duty California Highway Patrol officer, saw the damaged car partially off of the shoulder, parked the patrol vehicle on the shoulder and proceeded to conduct an investigation. (Id. at 662-663.) During the investigation, the defendant, at the plaintiff’s instruction, moved the vehicle completely off the freeway and defendant was then handcuffed and placed in the back of the plaintiff’s patrol car. (Id. at 663.) The plaintiff then went to his patrol car to call for a tow truck and, within 20 minutes of the original accident, a third party’s (Shelton’s) vehicle struck the defendant’s car, knocking it into plaintiff and injuring him. (Id.) 

The trial court granted, and the appellate court affirmed, summary judgment in favor of the defendant “…because defendant had been physically removed from the scene and handcuffed, his previous negligence was not a proximate cause of plaintiff's injuries.” (Id.)

The appellate court in Schrimscher appears to have applied two separate rationales, as explained by the court in Jackson v. Ryder Truck Rental, Inc. (1993) 16 Cal.App.4th 1830, 1851: 

“First, the conduct of drunk driver number  two [Shelton] was an independent intervening act which broke the chain of causation because it was unforeseeable as a matter of law, because it was ‘criminal in nature’ and ‘not a natural or ordinary consequence of the situation created by the defendant,’ and because ‘the foreseeability of the likelihood of that conduct [was not] one of the factors contributing to the negligent character of defendant's conduct’; thus this conduct was a superseding cause of the officer's injury which relieved defendant of liability. ([Schrimscher, supra,] 58 Cal.App.3d at pp. 664-665.)  Second, as a matter of policy, persons arrested by traffic officers should not be liable in tort to those officers if, while the officers are performing their ordinary duties, they are injured by the acts of third parties (Schrimscher]. at p. 665).”

As to the second rationale, the Jackson court noted it was a “mere extension of the ‘firefighter's rule,’” which does not appear applicable under the facts here.

As to the first rationale, the Court agrees that Schrimscher does not set forth a broad rule that all criminal acts, such as driving under the influence, constitute a superseding cause. The application of this first rationale involved a law enforcement officer performing an ordinary duty. The criminality of the second driver’s operation of a vehicle while under the influence was only part of the analysis. The court also found the conduct was unforeseeable as a matter of law because it was not an ordinary or natural consequence of the situation created by the defendant.

Therefore, a foreseeability analysis appears proper here. Causation is typically a question of fact for the trier of fact. (Schrimscher, supra, 58 Cal.App.3d at 664 [  “Generally speaking the determination of whether the intervening act is foreseeable is a question of fact unless under the undisputed facts there is no room for a reasonable difference of opinion.”].) Schrimscher involved stipulated undisputed material facts in contrast to the present case.

Additionally, California is a pure comparative fault state, rather than an all-or-nothing regime. (Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 808.) “Under the principles of comparative fault, a person's negligent conduct [is] assigned a share of fault greater than zero percent … when the conduct was a substantial factor in the causation of the pertinent injuries. [Citations.]” (Pfeifer v. John Crane, Inc. (2013) 220 Cal.App.4th 1270, 1287.) "'[L]iability for damage will be  borne by those whose negligence caused it in direct proportion to their respective fault.' [Citation.]" (Aidan Ming-Ho Leung v. Verdugo Hills Hosp. (2012) 55 Cal.4th 291, 303.)

Further, “[a] defendant's negligent conduct may combine with another factor to cause harm; if a defendant's negligence was a substantial factor in causing the plaintiff's harm, then the defendant is responsible for the harm; a defendant cannot avoid responsibility just because some other person, condition, or event was also a substantial factor in causing the plaintiff's harm; but conduct is not a substantial factor in causing harm if the same harm would have occurred without that conduct.” (Yanez v. Plummer (2013) 221 Cal.App.4th 180, 187.)

The Court notes Cabral v. Ralphs Grocery Co., (2011) 51 Cal.4th 764, though analyzing the foreseeability issue under duty (but noting the same result would likely be precluded under the same reasoning), stated the potential foreseeability scenarios as to drivers:

“Drivers are supposed to control their vehicles and keep them on the traveled roadway, but common experience shows they do not always do so. Freeway drivers may be intoxicated, distracted, blinded by the weather or sun, sleepy or sick, and for any of these reasons or others may drive off the roadway. Mechanical problems with their vehicles can also force motorists to suddenly leave the freeway. If they do so at freeway speeds and collide with another vehicle parked alongside the road, they are likely to be injured, or to injure other occupants of the vehicles, or both. This general foreseeability is reflected in the Official Reports, in that numerous decisions have involved collisions between vehicles leaving a highway and vehicles or other obstacles on the roadside. As we observed in Bigbee v. Pacific Tel. & Tel. Co. (1983) 34 Cal.3d 49, 58 (albeit in discussing an issue of breach, not duty), ‘it is not uncommon for speeding and/or intoxicated drivers to lose control of their cars and crash into poles, buildings or whatever else may be standing alongside the road they travel—no matter how straight and level that road may be.’”

Here, it is undisputed that Lagula was intoxicated, but this intoxication does not as a matter of law act as a superseding cause because, as recognized in Cabral, drivers may be foreseeably intoxicated, in violation of the law, and operate their vehicles, causing injuries.

Further, Plaintiff’s AUMFs establish that the semitruck and trailer lacked hazard lights or other warning devices, in an area with minimal lighting, parked on the side of the road. (AUMF Nos. 15, 16, 20.) Here, Plaintiff’s complaint alleges negligence by Defendants Sandoval Crespo and Herrera based upon C.F.R. section 392.22(a) and (b). Section 392.22(a) of Title 49 of the C.F.R. requires the activation of vehicular hazard warning signs when a commercial vehicle is stopped upon the roadway for any cause other than necessary traffic stops. Section 392.22(b) of C.F.R requires the placement of warning devices around the commercial vehicle within ten minutes of stopping the vehicle for anything other than a necessary traffic stop. The Court agrees that, unlike in Capolungo v. Bondi (1986) 179 Cal.App.3d 346 and Victor v. Hedges (1999) 77 Cal.App.4th 229, these statutes cited above are intended to prevent the type of accident that occurred.

Here, the Court does not find as a matter of law that Lagula’s driving under the influence is a supervening factor that cuts off liability that may be imposed on Defendants Sandoval Crespo and Herrera. The respective liability of the Defendants in this matter appears to be an issue required to be determine by trier of fact. The Court denies the motion.

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

Re:               Ortega, Lucila Gil vs. Andrade, Rene

Case No.:  VCU300161

Date:          April 22, 2024

Time:          8:30 A.M. 

Dept.          7-The Honorable Gary M. Johnson

Motion:     Defendant’s Motion to Sell Real Property

Tentative Ruling: To deny the motion.

Facts

In this matter, Plaintiff filed a complaint for breach of fiduciary duty and partition of real property located at 33701 Road 156, Visalia, CA 93292.

Defendant has answered the complaint, admitting and denying various paragraphs of the verified complaint.

Defendant now brings a motion entitled “motion to sell real property.” The motion provides no statutory authority. The motion provides no documentary or testimonial evidence. The Court has only the arguments of counsel in the memorandum of points and authorities which states “Defendant is agreeable” to the sale.

In opposition, Plaintiff argues this motion is procedurally improper.

Authority and Analysis

As noted above, there is no authority, statutory or otherwise, in support of this motion. The Court, however, reviews the statutory authority below applicable here.

Partition is an equitable action that is governed by statute. (Civ. Proc. Code, §§ 872.010 et seq.) Pursuant to the Civil Procedure Code, property may be partitioned by physical division, sale of the property and division of the proceeds, or court approved and supervised partition by appraisal. (Civ. Proc. Code, §§ 873.210-290, 873.510-850 & 873.910-980.) Plaintiff here seeks partition by sale via the complaint.

The law further states that “[a]t the trial, the court shall determine whether the plaintiff has the right to partition.” (Code Civ. Proc. § 872.710(a).) If the court finds that the plaintiff is entitled to partition, the court shall make an interlocutory judgment that determines the interests of the parties in the property and orders the partition of the property. (Code Civ. Proc. § 872.720(a).)

The Code of Civil Procedure specifically states that this determination can be made “at trial.” (Code Civ. Proc. § 872.810.) It appears that the Court may also make this determination in the other ways that determinations underlying a judgment are normally made – such as by motion for summary judgment. (See LEG Investments v. Boxler (2010) 183 Cal. App. 4th 484 [reversing denial of summary judgment and ordering trial court to grant plaintiff’s motion for summary adjudication on partition cause of action.].)

This statutory scheme envisions that an interlocutory judgment of partition shall not be entered until after the court determines the interests of the parties in the property and that plaintiffs are entitled to partition. (Code Civ. Proc. § 872.720(a); see also Summers v. Superior Court (2018) 24 Cal.App.5th 138, 143-144 [court cannot order partition sale prior to resolving the parties’ respective ownership interest in property].)

The court in Finney v. Gomez (2003) 111 Cal.App.4th 527, 532, also appears to permit the entry of the interlocutory judgment after obtaining entry of default.

The Court opines also that an interlocutory judgment may be entered via stipulation between the parties under section 872.820, which provides:

“Notwithstanding Section 872.810, the court shall order that the property be sold and the proceeds be divided among the parties in accordance with their interests in the property as determined in the interlocutory judgment in the following situations: (a) The parties agree to such relief, by their pleadings or otherwise; (b) The court determines that, under the circumstances, sale and division of the proceeds would be more equitable than division of the property. For the purpose of making the determination, the court may appoint a referee and take into account his report.”

However, the Court lacks a basis under any of these avenues to enter an interlocutory judgment necessary to proceed with the sale. (See Fuller v. Tucker (2000) 84 Cal.App.4th 1163, 1173 [“Argument of counsel is not evidence”]; See also Ponte v. County of Calaveras (2017) 14 Cal.App.5th 551, 556 [“the arguments of counsel in a motion are not a substitute for evidence...”].) The motion is denied on this basis.

Further, sale does not, pursuant to the Code, through a licensed real estate agent chosen by one of the parties.  Code of Civil Procedure section 873.010 states, “the court shall appoint a referee to divide or sell the property as ordered by the court.” Additionally, Code of Civil Procedure section 873.510 states that “[t]he referee appointed by the court to make a sale of the property shall sell the property in the manner and following the procedures provided in this chapter.” Defendant’s counsel’s proposal, therefore, to use a real estate agent is not feasible under the Code.

The Court denies the motion.

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

Re:               In the Matter of Peachtree Settlement Funding, LLC

Case No.: VCU305820

Date:          April 22, 2024

Time:          8:30 A.M. 

Dept.          7-The Honorable Gary M. Johnson

Motion:     Petition for Approval of Transfer of Structured Settlement

Tentative Ruling: The Court has signed the order on March 15, 2024 and this motion appears moot.

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

Re:                Teddleton, Nicholas vs. Pixley Union Elementary School District

Case No.:   VCU290600

Date:           April 22, 2024

Time:           8:30 A.M. 

Dept.           7-The Honorable Gary M. Johnson

Motion:     Motion for Continuance of Trial

Tentative Ruling: The Court does not issue tentative rulings on these motions. Counsel may appear in any manner.

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

Re:                 M., J. vs. Visalia Unified School District

Case No.:   VCU292469

Date:           April 22, 2024

Time:           8:30 A.M. 

Dept.           7-The Honorable Gary M. Johnson

Motion:      Motion for Continuance of Trial

Tentative Ruling: The Court does not issue tentative rulings on these motions. Counsel may appear in any manner.

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

Re:                 Diaz, Adalberto vs. Double J Farm Labor, Inc.

Case No.:   VCU295370

Date:            April 22, 2024

Time:            8:30 A.M. 

Dept.            7-The Honorable Gary M. Johnson

Motion:      Plaintiff’s Motion to Compel Initial Responses

Tentative Ruling: To grant the motion and order responses, without objections, no later than thirty (30) days after service of notice of this ruling; to impose sanctions in the amount of $410 due no later than thirty (30) days after service of notice of this ruling; Plaintiff is ordered to give notice.

In this class action and PAGA case, Plaintiff served Defendant Double J Farm Labor, Inc. with discovery, including Requests for Production of Documents and Special Interrogatories, on November 16, 2023.

The Court notes that it granted Defendant Double J Farm Labor, Inc.’s former counsel’s motion to withdraw on November 13, 2023.

Defendant has failed to respond to the discovery. It is unclear if Defendant, a corporation, has retained counsel at this time.

Plaintiff brings this motion to compel initial responses to this outstanding discovery and seeks sanctions in the amount of $$

Authority and Analysis

Requests for Production

Based on Defendant’s failure to respond to the first set requests for production of documents, the Court orders under, Code of Civil Procedure section 2031.300(a) that Defendant provide full and complete verified responses without objection to Plaintiff’s first set of requests for production of documents, within thirty days after service of the notice of this ruling for this motion. Plaintiff shall give notice.

Interrogatories

Based on Defendant’s failure to respond to the first set special interrogatories, the Court orders under, Code of Civil Procedure section 2030.290(a), that Defendant provide full and complete verified responses without objection to Plaintiff’s first set of special interrogatories, within thirty days after service of the notice of this ruling for this motion. Plaintiff shall give notice.

Sanctions

Under Code of Civil Procedure sections 2030.290(c) (Interrogatories) and 2031.300(c) (Requests for Production), the Court imposes sanctions in the amount of $410, consisting of $60 filing fee and one hour for this motion at the reasonable rate of $350 per hour.

Sanctions are imposed against Defendant alone and are due within thirty days after service of the notice of this ruling for this motion. Plaintiff shall give notice.

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

Re:                 Martinez, Sincerely Nicole vs. Tucker, Clarence Franklin

Case No.:   VCU293922

Date:            April 22, 2024

Time:            8:30 A.M. 

Dept.            7-The Honorable Gary M. Johnson

Motion:      Defendant Gonzales-Martinez’ Motion to Bifurcate

Tentative Ruling: To deny the motion

Facts

This case involves two vehicular collisions. Plaintiff alleges that on December 11, 2021, Plaintiff’s vehicle was initially struck from behind by a vehicle driven by Defendant Tucker, causing Plaintiff’s vehicle to stop on the roadway. Moments later, Plaintiff’s vehicle was struck a second time by Defendant Gonzales-Martinez.

Defendant Gonzales-Martinez seeks to bifurcate the trial into liability and damages phases under Code of Civil Procedure sections 598 and 1048(b).

In support, Defendant Gonzales-Martinez does not dispute that Plaintiff was injured in this matter as Plaintiff sustained multiple injuries in the collisions which necessitated a 39-day hospitalization. However, Defendant Gonzales-Martinez argues that the injuries will be “emotionally charged damages evidence” that will encompass “many days of expert testimony” on “dense subject material” including eight experts retained by Defendant Gonzales-Martinez on “neurology, neurosurgery, orthopedics, neuropsychology, economics, vocational rehabilitation, life care planning, and medical billing.” (Declaration of Woods ¶2.) Defendant Gonzales-Martinez notes Plaintiff’s ten (10) treating providers expected to testimony. (Declaration of Woods ¶2.)

By contrast, Defendant Gonzales-Martinez estimates that the liability phase will take no more than 2-3 days to complete.

In opposition, Defendant, Cross-Complainant, and Cross-Defendant Tucker argues that bifurcation, as suggested, would create three trials and requests that the Court utilize its discretion to deny the motion.

Authority and Analysis

Whether to order bifurcation of issues for trial is typically discretionary (Code Civ. Proc. §§ 598, 1048(b); Grappo v. Coventry Financial Corp. (1991) 235 Cal.App.3d 496, 504).

The objective of bifurcation is to avoid wasting time and money on the trial of damages if the liability issue is resolved against plaintiff.  (Horton v. Jones (1972) 26 Cal.App.3d 952, 954.) Granting or denying of a motion for bifurcation lies within the trial court’s sound discretion and is subject to reversal on appeal only for clear abuse.  (Grappo v. Coventry Financial Corp. (1991) 235 Cal.App.3d 496, 503-504.) 

Under Code of Civil Procedure section 1048(b):

“The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action, including a cause of action asserted in a cross-complaint, or of any separate issue or of any number of causes of action or issues, preserving the right of trial by jury required by the Constitution or a statute of this state or of the United States.”  

Similarly, Code of Civil Procedure section 598 provides: 

“The court may, when the convenience of witnesses, the ends of justice, or the economy and efficiency of handling the litigation would be promoted thereby, on motion of a party, after notice and hearing, make an order, no later than the close of pretrial conference in cases in which such pretrial conference is to be held, or, in other cases, no later than 30 days before the trial date, that the trial of any issue or any part thereof shall precede the trial of any other issue or any part thereof in the case, except for special defenses which may be tried first pursuant to Sections 597 and 597.5. The court, on its own motion, may make such an order at any time.”

Section 598 was expressly adopted as the result of Judicial Council recommendations and “Its objective is avoidance of waste of time and money caused by unnecessary trial of damage questions in cases where the liability issue is resolved against the plaintiff.”  (Trickey v. Superior Court (1967) 252 Cal.App.2d 650, 653)

Finally, Evidence Code section 320 states that: “[e]xcept as otherwise provided by law, the court in its discretion shall regulate the order of proof.” “Under these provisions, trial courts have broad discretion to determine the order of proof in the interests of judicial economy.”  (Grappo v. Coventry Financial Corp. (1991) 235 Cal.App.3d 496, 504.)

California courts have recognized that bifurcation is proper where liability is a simple matter while damages require testimony from multiple witnesses, or where only a small fraction of the evidence would be repeated, and the trial court had determined the ends of justice would be served by bifurcation.  (See Trickey, supra, at 652-653 – one witness in addition to the parties; Kaiser Steel Corp. v. Westinghouse Elec. Corp. (1976) 55 Cal.App.3d 737, 745-746 (superseded by statute on other grounds in Barnett v. American-Cal Medical Services (1984) 156 Cal.App.3d 260 [“the trial court could properly conclude that while some evidence relating to damages would also be necessary on the issue of liability, only a small fraction of the evidence would be repeated so that the ends of justice were served by bifurcation.”].)

Here, Defendant Gonzales-Martinez has failed to provide sufficient, specific information as to the two proposed phases. While Defendant Gonzales-Martinez notes his own eight experts retained, there is no time estimate for these experts or the amount of time proposed to be saved by the two phases. While Defendant Gonzales-Martinez has provided the identity of Plaintiff’s treating physicians, there is no estimate of their testimony. There is no estimated time, based on evidence, of the amount of time saved if a defense verdict is entered on liability as compared to the additional time needed for an extra set of openings/closings and an extra round of jury deliberations if Plaintiff prevails.

The generalized arguments set forth by Defendant are concerns in every case that involves liability and damages. Jurors will likely be instructed as to their own emotions, compassions and sympathies, thereby reducing any concern of bias or undue prejudice. The severity of the injuries and the underlying facts of this case are not facts that uniquely tend to evoke an emotional bias against a defendant without relevancy, as least within the standard set forth by Evidence Code section 352. (People v. Kipp (2001) 26 Cal.4th 1100, 1121.)

The Court does not find the evidence indicated above unduly prejudicial to warrant bifurcation. Finally, the Court will not weigh the evidence or likelihood of Defendant prevailing on the course and scope issue on the motion to bifurcate.

Based on the above, the Court denies the motion.

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

Examiner Notes for Probate Matters Calendared

• Visalia Division 
• South County Justice Center Division