Tentative Rulings

The Tentative Rulings for Tuesday, May 20, 2025, are:

Re:                Lawrence, Elizabeth vs. Lucio, Jennifer

Case No.:   VCU312446

Date:           May 20, 2025

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     Defendant’s (1) Demurrer and (2) Motion to Strike

Tentative Ruling: (1) To sustain the unopposed demurrer as to uncertainty based on the failure to comply with Rule 2.112; (2) To find the motion to strike moot by the ruling on demurrer.

Facts Common to (1) and (2)

At the prior hearing, the Court continued these matters based on the declaration of Plaintiff’s counsel seeking a continuance.

The complaint alleges Decedent Elias Chavez Lucio, Senior died testate August 31, 2021 and that Plaintiff Elizabeth Lawrence is the duly appointed and acting personal representative of Decedent’s estate. (Complaint ¶2.)

The complaint further alleges that at the time of his death, Decedent owned, as his sole and separate property, a deposit account at Bank of the Sierra with funds in the sum of at least three hundred fifty thousand dollars ($350,000.00) (“Separate Deposit Account”) (Complaint ¶4.)

The complaint further alleges “On or about August, or September 2021, a negotiable instrument in the form of a check payable to [Decedent] was drawn on the Separate Deposit Account. The instrument purported to be drawn on the order of [Decedent] and was payable to [Decedent] in the sum of three hundred fifty thousand dollars. ($850,000.00) This instrument had not been negotiated at the time of the death of [Decedent] Elias Chavez Lucio, Senior. (“Negotiable Instrument”)” (Complaint ¶5.)

As of August 2021, Decedent and Defendant “were joint owners of a deposit account other than that described in paragraph 4 of this complaint, maintained at a financial institution. (“Joint Deposit Account”).” (Complaint ¶6.)

“Without authority of either [Decedent], or the Estate of Elias Chavez Lucio Senior, Deceased, on or about September 1, 2021, [Plaintiff] presented and/or deposited the Negotiable Instrument into the Joint Deposit Account and thereby unlawfully converted that instrument and the funds on deposit in the Separate Deposit Account represented by that Negotiable Instrument to her own use, possession and control.” (Complaint ¶8.)

The complaint alleges the presentation or deposit of the “Negotiable Instrument” was “…fraudulent in that it constituted a false representation by [Defendant] that [Decedent] had endorsed the Negotiable Instrument to [Defendant] and [Decedent] jointly, or that he had endorsed the Negotiable Instrument at all which he had not. In the alternative, the presentation, or deposit of the Negotiable Instrument by Jennifer Lucio as alleged was fraudulent in that it constituted a false representation that the funds were being deposited to the benefit of [Decedent] on September 1, 2021 when on that date [Defendant] was the sole and separate owner of the Joint Deposit Account by reason of the death, on August 31, 2021 of Elias Chavez Lucio, Deceased.” (Complaint ¶9.)

Plaintiff alleges damages of $350,000, as well as interest and seeks exemplary damages for fraud. (Complaint ¶¶10, 11.)

The Court notes the term “conversion” appears under the case number, but the Court observes no express labelling of causes of action.

Defendant demurrers to the complaint, arguing first that it is improperly formatted under California Rules of Court, rule 2.112 and therefore is uncertain. Additionally, Defendant argues that the specificity requirements for fraud causes of action are not met by the allegations of the complaint.

Additionally, Defendant moves to strike the punitive damages allegations.

No opposition to either the demurrer or motion to strike appears to have been filed.

(1) 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)

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)

California Rule of Court, Rule 2.112

Rule 2.112 entitled “Separate causes of action, counts, and defenses” states the following:

Each separately stated cause of action, count, or defense must specifically state:

(1) Its number (e.g., "first cause of action");

(2) Its nature (e.g., "for fraud");

(3) The party asserting it if more than one party is represented on the pleading (e.g., "by plaintiff Jones"); and

(4) The party or parties to whom it is directed (e.g., "against defendant Smith").

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.) A demurrer for uncertainty may lie if the failure to label the parties and claims renders the complaint so confusing defendant cannot tell what he or she is suppose to respond to. (Williams v Beechmint Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.)

The complaint’s reference to “conversion” and “fraud” add to the uncertainty caused by the failure to comply with Rule 2.112.

The Court will sustain the demurrer with leave to amend on these grounds.

The Court expressly does not rule on the sufficiency of allegations related to either conversion or fraud and orders the complaint amended to comply with Rule 2.112.

The parties filed a joint stipulation to stay pending mediation on May 16, 2025. It does not contain a signature line for the court to order this requested stay or a mediation date. The court declines to stay the action as requested. The court will set the matter for trial at the case management conference allowing sufficient time for the parties to complete mediation before trial.

Plaintiff shall have ten (10) days to file an amended complaint.

(2) Authority and Analysis – Motion to Strike

Based on the ruling on demurrer, the Court finds the motion to strike 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:                 Doe, Jane vs. Jones, Dejuan et al

Case No.:   VCU313685

Date:           May 20, 2025

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     Motion to Compel Compliance with Subpoena

Tentative Ruling: To grant the motion in part as to the contact information for witnesses; to order in camera review of the remainder of the investigatory file for redaction and disclosure.

Facts

In this matter involving childhood sexual assault, Plaintiff, on March 1, 2025, served a subpoena on third party Visalia Police Department as to the following:

“Any and all documents and evidence relating to an investigation of Dejaun Jones, aka Dejuan Jones, DOB: 10/04/1985, that began in 2023 related to conduct towards students(s) at Mt. Whitney High School, including but not limited to reports, supplemental reports, statements, correspondence, emails, photographs, videotapes, CDs, notes, pleadings, video and/ or audio recordings, and any other documents and evidence contained within your file, including but not limited to report # 23-032627.”

Plaintiff’s counsel’s declaration states the subpoena seeks the “investigative file and reports related to [Defendant] Jones” as Defendant Jones has been arrested by the Visalia Police Department ("VPD") for his misconduct towards Plaintiff, who attended Mt. Whitney High School ("Whitney High")…Jones's arrest was a result of an investigation conducted by VPD. It is believed that additional criminal charges may be or have been brought against Jones as a result of his misconduct towards other students of Whitney High, who also may have been a part of VPD' s investigation.” (Declaration of Gilbert ¶¶3, 4.)

In response, VPD declined to produce the records pursuant to Government Code section 7923.600.

Additionally, Defendant Jones objected to under “unfair prejudice, hearsay and relevance.”

On March 17, 2025, Plaintiff filed this motion for an order compelling Visalia Police Department to comply with a subpoena issued by Plaintiff related to its investigation of defendant Dejuan Jones for sexually harassing and abusing students at Mt. Whitney High School, including all reports, audio and/or video recordings, and evidence, in its possession pursuant to Code 2 of Civil Procedure sections §§ 2017.010, 2025.480 and 1987.1.

As to any VUSD employees identified, Plaintiff argues they are percipient witnesses whose contact information may be disclosed. As to any minors interviewed, Plaintiff agrees to redacting identifying information.

No opposition to the motion appears to have been filed.

Authority and Analysis

Pursuant to Code of Civil Procedure section 1987.1, the Court may, upon motion reasonably made by a party to the action, issue an order compelling compliance with a subpoena. 

A motion to compel compliance with a deposition subpoena must be made within 60 days after completion of the deposition record, the date objections are served, or the date specified for production. (Code Civ. Proc., §2025.480(b); Board of Registered Nursing v. Sup.Ct. (Johnson & Johnson) (2021) 59 CA5th 1011, 1032-1033.)

Here, the motion is timely.

California Code of Civil Procedure section 1987.1, subdivision (a) provides:

If a subpoena requires the attendance of a witness or the production of books, documents, or other things before a court, or at the trial of an issue therein, or at the taking of a deposition, the court, upon motion reasonably made by any person described in subdivision (b), or upon the court's own motion after giving counsel notice and an opportunity to be heard, may make an order quashing the subpoena entirely, modifying it, or directing compliance with it upon those terms or conditions as the court shall declare, including protective orders. In addition, the court may make any other order as may be appropriate to protect the person from unreasonable or oppressive demands, including unreasonable violations of the right of privacy of the person.

There is no requirement that the motion contains a meet and confer declaration. (See Code of Civ. Proc., § 1987.1.)

No separate statement appears required under California Rule of Court, rule 3.1345(b) as no responses were provided as to the subpoena.

Government Code Section 7923.600

Government Code section 7923.600 “…does not require the disclosure of records of complaints to, or investigations conducted by, or records of intelligence information or security procedures of, the office of the Attorney General and the Department of Justice, the Office of Emergency Services and any state or local police agency, or any investigatory or security files compiled by any other state or local police agency, or any investigatory or security files compiled by any other state or local agency for correctional, law enforcement, or licensing purposes.”

However, section 7923.605 expressly states:

(a) Notwithstanding Section 7923.600, a state or local law enforcement agency shall disclose the names and addresses of persons involved in, or witnesses other than confidential informants to, the incident, the description of any property involved, the date, time, and location of the incident, all diagrams, statements of the parties involved in the incident, the statements of all witnesses, other than confidential informants, to the victims of an incident, or an authorized representative thereof, an insurance carrier against which a claim has been or might be made, and any person suffering bodily injury or property damage or loss, as the result of the incident caused by arson, burglary, fire, explosion, larceny, robbery, carjacking, vandalism, vehicle theft, or a crime as defined by subdivision (b) of Section 13951, unless the disclosure would endanger either of the following:

(1) The safety of a witness or other person involved in the investigation.

(2) The successful completion of the investigation or a related investigation.

(b) However, this article does not require the disclosure of that portion of those investigative files that reflects the analysis or conclusions of the investigating officer.” (emphasis added).

On this issue, the Court notes County of Orange v. Superior Court (2000) 79 Cal. App. 4th 759, 765 indicates that “the provisions of the Public Records Act are inapplicable to civil discovery proceedings” while acknowledging that the Act expressly exempts police investigative files, reinforcing the view these documents are confidential in nature.

Therefore, the refusal to produce under the Public Records Act does not appear valid, but indicates to the Court, as it did in County of Orange, the confidentiality of some of the information in the documents.

The Court notes that, even if the Act did apply to civil discovery proceedings, some limited disclosure is permitted even under section 7923.600 as to the contact information of persons involved in or witnesses thereto. (See People v. Dixon (2007) 148 Cal.App.4th 414, 443 [applying the Civil Discovery Act, noting “The disclosure of the names and addresses of potential witnesses is a routine and essential part of pretrial discovery.”]; see also Puerto v. Superior Court (2008) 158 Cal.App.4th 1242, 1251-1252 [“[A] percipient witness's willingness to participate in civil discovery has never been considered relevant-witnesses may be compelled to appear and testify whether they want to or not."].)

This would appear to apply also to compelling VUSD to provide the contact information for any minor witnesses.

Here, "[a] school district shall not permit access to pupil records to a person without written parental consent or under judicial order except as set forth in this section and as permitted by Part 99 (commencing with Section 99.1) of Title 34 of the Code of Federal Regulations." (Educ. Code § 49076(a).) However, "Information concerning a student shall be furnished in compliance with a court order or a lawfully issued subpoena." (Educ. Code § 49077.)

In any event, the Court does not consider the contact information or “directory information” requested by these interrogatories to be “pupil records.” The term “pupil record” is defined as “means "any information directly related to an identifiable pupil, other than directory information, that is maintained by a school district or required to be maintained by an employee in the performance of his or her duties whether recorded by handwriting, print, tapes, film, microfilm, or other means." (Educ. Code § 49061(b) [emphasis added].)

The term "Directory information" is defined to include a "pupil's name, address, telephone number, date of birth, email address " (Educ. Code. § 49061(c).)

Thus, the Education Code sections noted above do not absolutely preclude disclosure, even absent parental consent or a Court order. These statutes are "directed at institutional records maintained in the normal course of business by a single, central custodian of the school. Typical of such records would be registration forms, class schedules, grade transcripts, discipline records, and the like." (BRV, Inc. v. Superior Court (2006) 143 Cal.App.4th 742, 754.)

The instant request, therefore, which seeks contact information or "directory information" of student witnesses, is not precluded from disclosure by the Education Code. Additionally, as explained below, this contact information would not appear to be investigatory. The Court recognizes the discovery of potential witnesses is essential, as noted above.

The Court, notes, however, that the subpoena’s scope is much wider than contact information for witnesses, as it seeks “…reports, supplemental reports, statements, correspondence, emails, photographs, videotapes, CDs, notes, pleadings, video and/ or audio recordings, and any other documents and evidence contained within your file…”

On this issue, the Court notes County of Orange, supra, 79 Cal. App. 4^th instructive. There, the County, its sheriff, and various employees thereof sought writ relief from the trial court’s order allowing suspects/ in an ongoing criminal investigation to review the contents of the criminal investigative file through the medium of civil discovery. (Id. at 761.)

There plaintiffs were suspects in the homicide of their child and filed an action for defamation, conversion, spoliation of evidence, and violation of various civil rights related to the sheriff department's investigation. (Id. at 762.) Those plaintiffs served a request for production that requested the sheriff's entire investigative file related to the murder, the County refused to produce any of the requested items asserting that the investigative file was protected by the official information privilege under Evidence Code section 1040(b)(2), and plaintiffs moved to compel production. (Id. at 762-763.) The trial court conducted an in camera review of the investigative file and an in camera hearing on the applicability of the privilege, and ordered production of all requested documents subject to a protective order. (Id. at 763.)

The Court of Appeal found that the trial court erred in granting discovery of the file, and concluded "that the contents of police investigative files sought in civil discovery must remain confidential so long as the need for confidentiality outweighs the benefits of disclosure in any particular case." (Id. at 765)

After balancing the interests, the Court of Appeal concluded that the public interest in solving the homicide and bringing the perpetrator(s) to justice outweighed the plaintiffs' interest in obtaining the discovery sought at that time, noting that the order being reviewed was made less than a year after the civil action was filed and it was still less than three years since the action was filed, and found that the trial court "abused its discretion in ordering production of the investigative file to the" plaintiffs' attorney. (Id. at 767.)

The Court of Appeal additionally explained as follows:

“This is not to say, however, that the Wus can never obtain the requested discovery. Law enforcement investigative files are not on equal footing with grand jury proceedings, which, except in very limited circumstances, remain forever secret where no indictment is returned…

The appropriate remedy in this case is for the trial court to stay discovery of investigative information in the civil action in order to allow the sheriffs department the necessary time to investigate. (Pacers, Inc. v. Superior Court (1984) 162 Cal. App. 3d 686, 690.) And, should that become necessary, the trial court should stay the entire action in the interest of justice to avoid a potential statutory dismissal. (See Code Civ. Proc, § 583.110 et seq.) We are cognizant of the Wus' concern that the County not be allowed to "immunize [itself from] any lawsuit by the Wus forever simply by keeping the case open." Our order is intended to preserve the confidentiality of the investigative file for some reasonable period of time, but not forever." (Id. at 767-768.)

At this time, then, staying discovery of investigative information in the civil action appears necessary. However, the Court intends to conduct  in camera review to determine the scope of any disclosure, such as to witnesses information or outside of an “investigative file,” that is necessary at this time.

Plaintiffs here note Jones has been arrested and “It is believed that additional criminal charges may be or have been brought against  Jones as a result of his misconduct towards other students of Whitney High, who also may have been a part of VPD' s investigation.” Thus, there appears to be an ongoing criminal investigation which would preclude the turning over of the entire investigatory file in discovery.

Therefore, the Court will order disclosure of contact information of persons named in VPD’s files, with redaction as necessary, as well as in camera review of the remainder of the documents or files. The Court also orders the parties to meet and confer as to the sufficiency of a protective order as to this information. Should the investigation or criminal matter(s) against Jones conclude, the Court intends to revisit this issue of disclosure at that time.

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:                JPMorgan Chase Bank, N.A. vs. Ortiz, Carmen M

Case No.:   VCL314277

Date:           May 20, 2025

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     Plaintiff’s Motion to Set Aside / Vacate Judgment and Dismiss Case

Tentative Ruling: To grant the motion and dismiss this matter without prejudice

Facts

In this matter, Plaintiff obtained default judgment on December 26, 2024 in the amount of $9,929.77

Plaintiff now moves to set aside the judgment on the basis that Defendant filed for Chapter 7 bankruptcy prior to the entry of default judgment.

The Court, in light of the bankruptcy filing and discharge, grants the motion and vacates the judgment. Further, the Court, as requested by Plaintiff, dismisses the matter without prejudice.

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

Re:               JPMorgan Chase Bank, N.A. vs. Ortiz, Carmen M

Case No.: VCL314280

Date:          May 20, 2025

Time:          8:30 A.M. 

Dept.          2-The Honorable Bret D. Hillman

Tentative Ruling: To grant the motion and dismiss this matter without prejudice

Facts

In this matter, Plaintiff obtained default judgment on December 26, 2024 in the amount of $7,840.91.

Plaintiff now moves to set aside the judgment on the basis that Defendant filed for Chapter 7 bankruptcy prior to the entry of default judgment.

The Court, in light of the bankruptcy filing and discharge, grants the motion and vacates the judgment. Further, the Court, as requested by Plaintiff, dismisses the matter without prejudice.

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

Re:                 Huerta, John vs. Kaweah Container, Inc.

Case No.:   VCU316514

Date:            May 20, 2025

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     Defendant’s Motion to Compel Arbitration

Tentative Ruling: Pursuant to Defendant’s filing on May 13, 2025, this motion is off calendar.

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

Re:                 Truck Lines Express, Inc. vs. Trakkxpay, LLC

Case No.:   VCU293068

Date:            May 20, 2025

Time:           8:30 A.M. 

Dept.           7-The Honorable Gary M. Johnson

Motion:     Plaintiff’s (1) Motion to Set Aside Dismissal of Pittman and Enter Judgment and (2) Motion to Amend Judgment as to Trakkxpay

Tentative Ruling: (1) To continue the hearing to June 23, 2025, 8:30 am, Dept. 7 pursuant to the May 8, 2025 stipulation between Plaintiff and Pittman (2) To deny the motion.

(2) Plaintiff’s Motion to Amend Judgment as to Defendant Trakkxpay

Facts

On March 21, 2025, the Court granted Plaintiff’s motion to enter judgment pursuant to settlement as against Defendant Trakkxpay and entered judgment against Defendant for $75,000.

Plaintiff now seeks to amend the judgment to add Riolo Transportation, Inc. and John Lozito as judgment debtors on the theory of alter ego of Defendant Trakkxpay. In support, Plaintiff’s counsel provides a declaration that states:

“John Lozito is the managing member of Trakkxpay, LLC and directed the litigation on  behalf of the company

On information and belief, John Lozito is also the President ofRiolo Transportation, LLC. And it's majority shareholder.

Between November 2020 and March 2021, Plaintiff received at least 15 wire transfers from Riolo Transportation, Inc., a company controlled by Lozito, which satisfied the debts of Trakkxpay. These payments are shown in the attached Exhibit 2, which includes redacted bank statements and a summary pay sheet.

On information and belief, Trakkxpay and Riolo Transportation are used interchangeably by Lozito, who disregards the separate corporate identities” (Declaration of Weber.)

In opposition, Defendant Trakkxpay objects to the declaration of counsel on grounds of lack of personal knowledge, hearsay and lack of foundation as to the factual statements therein and the attached Exhibit 2.

The Court notes that Plaintiff has filed a reply brief and supplemental declaration “ …in response to objections raised in the Opposition to Plaintiff's Motion to Amend Judgment, and to further authenticate and lay foundation for the bank records and payment data previously submitted.” (Supplemental Declaration ¶2.) Plaintiff’s counsel now attests to personally reviewing bank states and financial documents obtained from its client and produced during litigation. (Supplemental Declaration ¶3.) Counsel states the documents were maintained in the regular course of Plaintiff’s business. (Supplemental Declaration ¶5.)

Authority and Analysis

Code of Civil Procedure section 187 provides,

When jurisdiction is, by the Constitution or this Code, or by any other statute, conferred on a Court or judicial officer, all the means necessary to carry it into effect are also given; and in the exercise of this jurisdiction, if the course of proceeding be not specifically pointed out by this Code or the statute, any suitable process or mode of proceeding may be adopted which may appear most conformable to the spirit of this Code.(Code Civ. Proc., § 187.)

It "has been long recognized" that Code of Civil Procedure section187 provides the Court with authority to "amend a judgment to add a nonparty alter ego as a judgment debtor," and thereby make the additional judgment debtor liable upon the judgment. (Toho-Towa Co., Ltd. v. Morgan Creek Productions, Inc. (2013) 217 Cal.App.4th 1096, 1106.)

Amending a judgment, pursuant to Code of Civil Procedure section 187, in order to add an alter ego of an original judgment debtor is an equitable procedure based upon the theory that the Court is not amending the judgment to add a new defendant, but is merely inserting the correct name of the real defendant. (McClellan v. Northridge Park Townhome Owners Assn. (2001) 89 Cal.App.4th 746, 752.)

To prevail on the motion, the judgment creditor must show, by a preponderance of the evidence, that: “(1) the parties to be added as judgment debtors had control of the underlying litigation and were virtually represented in that proceeding; (2) there is such a unity of interest and ownership that the separate personalities of the entity and the owners no longer exist; and (3) an inequitable result will follow if the acts are treated as those of the entity alone.” (Relentless Air Racing, LLC v. Airborne Turbine Ltd. Partnership (2013) 222 Cal.App.4th 811, 815-816.)

The decision to grant or deny the motion lies within the sound discretion of the trial court and will not be disturbed on appeal if there is a legal basis for the decision and substantial evidence supports the same. (Id. at 815)

In determining whether there is a sufficient unity of interest and ownership, the Court considers factors, including “the commingling of funds and assets of the two entities, identical equitable ownership in the two entities, use of the same offices and employees, disregard of corporate formalities, identical directors and officers, and use of one as a mere shell or conduit for the affairs of the other.” (Troyk v. Farmers Group, Inc. (2009) 171 Cal.App.4th 1305, 1342.) Inadequate capitalization of the original judgment debtor is another factor. (Zoran Corp. v. Chen (2010) 185 Cal.App.4th 799, 811-812 [reciting "long list" of inexhaustive factors:

"`[1] [c]ommingling of funds and other assets, failure to segregate funds of the separate entities, and the unauthorized diversion of corporate funds or assets to other than corporate uses . . .; [2] the treatment by an individual of the assets of the corporation as his own . . .; [3] the failure to obtain authority to issue stock or to subscribe to or issue the same . . .; [4] the holding out by an individual that he is personally liable for the debts of the corporation . . .; the failure to maintain minutes or adequate corporate records, and the confusion of the records of the separate entities . . .; [5] the identical equitable ownership in the two entities; the identification of the equitable owners thereof with the domination and control of the two entities; identification of the directors and officers of the two entities in the responsible supervision and management; sole ownership of all of the stock in a corporation by one individual or the members of a family . . .; [6] the use of the same office or business location; the employment of the same employees and/or attorney . . .; [7] the failure to adequately capitalize a corporation; the total absence of corporate assets, and undercapitalization . . .; [8] the use of a corporation as a mere shell, instrumentality or conduit for a single venture or the business of an individual or another corporation . . .; [9] the concealment and misrepresentation of the identity of the responsible ownership, management and financial interest, or concealment of personal business activities . . .; [10] the disregard of legal formalities and the failure to maintain arm's length relationships among  related entities . . .; [11] the use of the corporate entity to procure labor, services or merchandise for another person or entity . . .; [12] the diversion of assets from a corporation by or to a stockholder or other person or entity, to the detriment of creditors, or the manipulation of assets and liabilities between entities so as to concentrate the assets in one and the liabilities in another . . .; [13] the contracting with another with intent to avoid performance by use of a corporate entity as a shield against personal liability, or the use of a corporation as a subterfuge of illegal transactions . . .; [14] and the formation and use of a corporation to transfer to it the existing liability of another person or entity.' . . .”]

No single factor governs—courts must consider all of the circumstances of the case in determining whether it would be equitable to impose alter ego liability. (Troyk, supra, 171 Cal.App.4th at 1342.) An inequitable result is shown as a matter of law where the judgment debtor is insolvent due to the actions of an alter ego; proof of wrongful intent is not required. (See, Toho-Towa, supra, 217 Cal.App.4th at p. 1109 [inequitable to allow alter ego to shift liability to separate entity where judgment creditor originally negotiated contract with alter ego and alter ego structured financial operations to ensure entity would have no funds to pay debts].)

However, alter ego "is an extreme remedy, sparingly used." (Sonora Diamond Corp. v. Superior Court (2000) 83 Cal.App.4th 523, 539.) "The standards for the application of alter ego principles are high, and the imposition of [alter ego] liability...is to be exercised reluctantly and cautiously." (Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290, 306.)

Still, "[t]he greatest liberality is to be encouraged" in allowing judgments to be amended to add the "real defendant," or alter ego of the original judgment debtor, "in order to see that justice is done." (Carr v. Barnabey's Hotel Corp. (1994) 23 Cal.App.4th 14, 20)

Code of Civil Procedure section 187 contemplates amending a judgment pursuant to a noticed motion. (Wells Fargo, v. Weinberg (2014) 227 Cal.App.4th 1, 9.) The Court is not required to hold an evidentiary hearing on a motion to amend a judgment but may rule on the motion based solely on declarations and other written evidence. (Id.)

Here, the Court cannot find a preponderance of evidence is met based on the declaration of counsel, most of which is made on information and belief and for which the Court sustains the objections thereto. The declaration lacks foundational facts establishing how counsel has personal knowledge of the statements in the declaration.

As to the supplemental declaration of counsel that he obtained these documents by virtue of his representation of Plaintiff, this insufficient to establish the business records exception under MacLean v. City & County of San Francisco (1957) 151 Cal.App.2d 133, 143 [“The chief foundation of the special reliability of business records is the requirement that they must be based upon the first-hand observation of someone whose job it is to know the facts recorded…But if the evidence in the particular case discloses that the record was not based upon the report of an informant having the business duty to observe and report, then the record is not admissible under this exception, to show the truth of the matter reported to the recorder.”]

Even if the Court considered the declarations, the Court notes it fails to address a number of factors set forth above as to alter ego analysis.

Therefore, the Court denies the motion.

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

Re:                Wells Fargo Bank, N.A. vs. Mangmoradeth, Phonexay

Case No.:  PCL316918

Date:           May 20, 2025

Time:           8:30 A.M. 

Dept.           23-The Honorable Glade F. Roper

Motion:     Plaintiff’s Motion to Deem Admissions Admitted

Tentative Ruling: To grant the motion and deem Admissions Nos. 1 through 11 admitted.

Facts

On or about February 11, 2025, Plaintiff served by mail Requests for Admissions, Set One on Defendant. The discovery was mailed to the address on Defendant’s answer. As of the date of the filing of this motion, no response has been received by Plaintiff. Plaintiff now seeks to deem Admissions Nos. 1 through 11 admitted.

Authority and Analysis

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

Based on the foregoing, the Court grants Plaintiff’s motion. The facts and allegations alleged in Requests for Admissions Nos. 1 through 11 of Plaintiff’s First Set of Requests for Admission shall be deemed admitted.

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