Tentative Rulings

The Tentative Rulings for Tuesday, February 24, 2026 (modified as to D19, Case No. PCU308085 only at 2:10 pm) , are:

Re:                Gillespie, Luci vs. Plum Healthcare Group, LLC

Case No.:   VCU285376

Date:           February 24, 2026

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     Hearing re: Final Distribution of Settlement Fund

Tentative Ruling: No documents appear filed in connection with this hearing. Therefore, the Court continues this matter to March 17, 2026, 8:30 am Dept. 2

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.

Re:                 Ledesma Gomez, Maria vs. Pro-Youth

Case No.:   VCU302539

Date:           February 24, 2026

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     Hearing re: Distribution of PAGA Settlement Fund

Tentative Ruling: No documents appear filed in connection with this hearing. Therefore, the Court continues this matter to March 17, 2026, 8:30 am Dept. 2

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.

Re:                Enriquez, Veronica vs. All American Labor Service, Inc.

Case No.:   VCU310439

Date:           February 24, 2026

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

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

Tentative Ruling: To grant the motion; to set the Final Compliance Hearing for October 27, 2026, 8:30 am in Department 2.

Facts and Analysis

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 February 24, 2026.  The Court finds and rules as follows:

On February 4, 2026, the settlement administrator IYLM Group, through its Case Manager, filed a declaration detailing the following events.

On September 12, 2025, the administrator  received a mailing list of 2,673 individuals (however 768 of these records were missing a valid mailing address.) Specifically, 2,602 individuals were identified as potential class members from Defendant’s counsel with names, contact information, social security numbers and relevant employment information. On October 15, 2025, 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. A total of 345 notices were returned, 50 updated addresses were obtained and therefore 295 notices are deemed undeliverable.

The settlement administrator indicates Class members had only 45 days, until December 1, 2023 to submit objections, disputes and/or requests for exclusions. However, as of February 4, 2026, the date of this declaration,  Zero (0) requests for exclusion and zero (0) objections were received from class members. Therefore, all 2,602 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 (c) class counsel have particularized experience with the claims at issue in the case, and (d) there appear to be no disputes or objections.  (Dunk v. Ford Motor Co. (1996) 48 Cal.App.4^th 1794, 1802.) 

A net settlement amount of $139,557.21 is available to pay to the class members in accordance with the terms of settlement with an average gross payment of $53.63, an estimated highest gross payment of $1,039.61 and an estimated lowest gross payment of $4.28.

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 an updated declaration in support of the requests for attorney fees representing 33.3% of the $300,000 gross settlement or $100,000. Counsel indicates spending 150.1 hours at rates ranging from $800 to $750, creating an updated total lodestar figure of $115,700.

Counsel has additionally provided sufficient cost information indicating actual costs incurred in the amount of $9,492.79.

The Court believes the requested attorney fees 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 $15,950. The Court believes the amount requested as compensation for the administrator appears reasonable. 

The settlement agreement designates Valley Children’s Hospital as recipient of unclaimed settlement proceeds.  (Code Civ. Proc. § 384.)

The Court previously approved a representative payment of $5,000 and finds that the requested class representative payment is appropriate under the circumstances.

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.

Therefore, the following deductions from the gross settlement of $300,000 are approved as follows:

Approved Attorney Fees (33.3%):	$100,000.00
Approved Attorney Costs (incurred):	$9,492.79
Approved Enhancement Payment to Plaintiff :	$5,000.00
Approved Settlement Administrator Costs	$15,950.00
Approved PAGA Allocation	$30,000.00
Approved Net Settlement Amount	$139,557.21

The Court shall enter its order of final approval and judgment in this case on the proposed form submitted by Plaintiff on February 4, 2026.

Final Compliance Hearing is set for October 27, 2026, 8:30 am in Department 2.

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.

Re:                Kevin C. Duncan and Sally J. Duncan vs. Olson-Kirsch, Luann

Case No.:   VCU318533

Date:           February 24, 2026

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     (1) Cross-Complainants’ Motion to Determine Value re: Appraisal; Cross-Defendants’ (2) Demurrer and (3) Motion to Strike Amended Cross-Complaint

Tentative Ruling: (1) To confirm the appraisal price; to deny the motion as to other remaining requests; (2) To overrule the demurrer as to the first cause of action; to sustain the demurrer to the second and third causes of action, with ten (10) days leave to amend; (3) To deny the motion to strike as to portions of the prayer; to grant the motion to strike as to paragraphs 10 and 26, with ten (10) days leave to amend.

(1) Cross-Complainants’ Motion to Determine Value re: Appraisal

Via its August 27, 2025, ruling and consistent with an agreement of the parties, the Court appointed Edward Savery as the appraiser under First Right of Refusal Agreement dated July 15, 1991 (“ROFR”) to appraise the real property at 43000 Kaweah River Drive, Three Rivers, CA 93271. However, Savery was unavailable and the Court, thereafter, appointed Mark Medellin as appraiser.

On December 10, 2025, Medellin visited the Property and from there completed his Appraisal report, assessing the current value of the Property at $465,000.00. Cross-Complainants indicate having paid Medellin his fee in full in the amount of $650.00.

On December 31, 2025, Cross-Complainants filed this motion to determine the value of the Subject Property according to Medellin’s valuation, to assign the costs of appraisal equally and set a deadline for reimbursement, and to send buyout notices as to Cross-Complainant’s buyout option commencing to proceed either under the Partition of Real Property Act or ROFR.

The motion, thereafter, argues that the Partition of Real Property Act’s next steps should be followed, but fails to address the impact of the ROFR.

The Court notes the ROFR states the following:

In consideration of mutual love and affection and a desire to keep family property within the family, we the undersigned, as share owners of record in the above property, do hereby agree that we shall not sell; gift, or otherwise dispose of our share of the subject property without the written consent of all of the other part owners of record. We further agree that in the event of an agreement to the sale of our share of the property, the following procedures will be followed:

1. Notice of intent to sell will be sent by registered mail to all above listed parties. The seller will arrange for an appraisal for the purpose of establishing the value of the property. Owners must agree on one licensed appraiser, or, in the event - they do not agree, threes licensed appraisers will be used and the owners agree to be bound to the average fair-market value established by these three appraisers. Appraisals will be done within 60 days of receiving the registered letter of intent to sell.

2. The seller will notify each listed party, by registered mail, of the appraised value of the property. (Determined as described in #1 above.) Within 30 days of receipt of this notification, each individual will notify the seller by registered mail of his acceptance or refusal to purchase sellers portion of the property.

3. If the seller has not been contacted within 30 days after the receipt by each listed party of a registered mail notification of intent to sell and appraised value of the property, the seller is relieved of any further obligation to the nonresponding party.

4. In the event that more than one owner wishes to buy the seller‘s share of the property, all interested parties will share equally in the purchase price and will increase their shares equally.

5. The seller will bear all costs incurred in transferring ownership including the appraisal fees

6. Owners, Owners-in-Trust, Pat V. Dunean and Jeanne V. Kirsch will be contacted in the order specified in the attached ‘ORDER OF PRECEDENCE.’”

The Order of Precedence document states:

“The signers of the First Right of Refusal for Kirsch and Duncan Families Dated July 15, 1991, agree to abide by the following order of precedence at the tine transfer of ownership is considered, and to contact individuals in the order listed: first contacting all those listed in the #1 group, and if all of those decline interest in possession, then contacting all those listed in #2, following all procedures in the Kirsch/Duncan First Right of Refusal Agreement, Dated July 15, 1991.

I. For          Robert A. Kirsch,                     Anna U. Kirsch Group #1     Randell E. Kirsch                    Jeanne V. Kirsch Group #2    Kevin C. Duncan                    Terree L. Duncan                    Pat V. Duncan	II. For         Randell E. Kirsch                     LuAnn O. Kirsch Group #1     Robert A. Kirsch                    Jeanne V. Kirsch Group #2    Kevin C. Duncan                    Terree L. Duncan                    Pat V. Duncan
III. For       Kevin C. Duncan                    Sally J. Duncan Group #1    Terree L. Duncan                    Pat V. Duncan Group #2     Robert A. Kirsch                    Randell E. Kirsch                    Jeanne V. Kirsch	IV. For       Terree L. Duncan Group #1    Kevin C. Duncan                    Pat V. Duncan Group #2     Robert A. Kirsch                    Randell E. Kirsch                    Jeanne V. Kirsch

In opposition, Cross-Defendants argue the procedural requirements for a determination of value have not been followed, the ROFR waives the Partition Act’s procedures, the valuation and buyout cannot occur without a pending partition action and the ROFR’s conditions have not been met as to initiate either a buyout or a determination of value.

Authority and Analysis

The Court, absent authority, intends to follow the procedures of the ROFR.

Here, it appears paragraph 1 of the ROFR has been accomplished, as the appraisal has been completed, the price set at $465,000. The Court considers this condition triggered by the Cross-Defendant’s initial filing of the complaint, and amendments thereto, for partition and Cross-Complainant’s position in the first cause of action for declaratory relief, as found in the Court’s August 27, 2025 ruling appointing the appraiser.

Paragraph 2 of the ROFR requires the “seller” defined above as any or all of Kevin Craig Duncan 50% share owner in trust, Robert Alfred Kirsch 25% share owner, and Randell Evan Kirsch 25% share owner, or subsequent trusts or owners, to notify each listed party by registered mail of the appraised value of the property.

This does not appear to have been accomplished, as Cross-Complainants request the Court send out buyout notices.

As to paragraph 3, it indicates that a failure to contact the seller after notice relieves the seller of any further obligation to the nonresponding party.

Paragraph 4 deals with the various combinations of purchasers and sharing of the purchase price.

Paragraph 5 indicates the seller will bear all costs incurred in transferring ownership, including the appraisal fees.

Here, Randell Evan Kirsch, Cross-Complainant, is expressly listed as an “undersigned owner” and, via the cross-complaint seeks partition of the Subject Property by sale. As such, the Court considers Cross-Complainant Randell Evan Kirsch a “seller” under these circumstances.

As such, the Court will not, as requested by Cross-Complainants, assign the costs of appraisal equally, set a deadline for reimbursement, or send buyout notices as to Cross-Complainant’s buyout option. These issues are squarely addressed by the ROFR and the Court will not order relief beyond the ROFR absent authority applying the Partition of Real Property Act.

Therefore, the Court confirms the appraisal amount of $465,000 and denies the remainder of the motion.

Cross-Defendants’ (2) Demurrer and (3) Motion to Strike Amended Cross-Complaint

Facts Common to (2) and (3)

The operative first amended verified cross-complaint filed by LuAnn Olson-Kirsch and Randell Kirsch seeks declaratory relief as to the Partition of Real Property Act, breach of contract and recission of fraudulent transfer.

The property at issue is 43000 Kaweah River Dr., Three Rivers, California (the “Property”) (FACC ¶2.)

Cross-Complainants LuAnn Olson-Kirsch and Randell Kirsch assert 50% ownership in the Property as tenants in common. (FACC ¶3.)

Cross-Defendants and Plaintiffs Kevin C. Duncan and Sally J. Duncan, trustees of the Duncan Family Trust dated July 23, 2021 “hold and/or have held the remaining 50% ownership interest in the Property as tenants-in-common.” (FACC ¶4.) Further, that “Cross-Defendant Emily Nicole Duncan is a resident of the State of California, who purports to hold the 50% ownership interest in the Property of Cross-Defendants Kevin and Sally Duncan as a tenant-in-common” (FACC ¶5.)

The amended cross-complaint further alleges that on or around March 20, 1992, Cross-Complainants and Cross-Defendants each signed and notarized a “First Right of Refusal Agreement for Kirsch and Duncan Families” which was further recorded with Tulare County on April 7, 1992 (the “Agreement”). (FACC ¶9.)

Further, that:

“This Agreement (1) acknowledged Cross-Defendants Kevin and Sally Duncan’s fifty-percent (50%) ownership of the Property, and (2) affirmed an explicit agreement that if any Party should seek or attempt to sell, gift, or otherwise dispose of their interest in the Property, then the other Party owners shall be afforded the opportunity to obtain an appraisal and buy out the first Party’s interest at the appraised value—i.e., the first right of refusal.” (FACC ¶10.)

Further that “Cross-Complainants file this Cross-Complaint to invoke their rights under the Partition of Real Property Act, including their rights to buy all of the Cross-Defendants’ interests.” (FACC ¶13.)

Additionally that “On August 21, 2025, Cross-Defendants Kevin and Sally Duncan purported to transfer the Cross-Defendants’ 50% interest in the Property to a family member, “Emily Nicole Duncan, a married woman as her sole and separate Property.” (FACC ¶14.)

As to the first cause of action for declaratory relief, the operative amended cross complaint alleges the parties each have an undivided interest, Cross-Defendants seek to sell the entire Property to a third person, Cross-Complainants assert that they have a right to purchase the property prior to its sale under the Partition of Real Property Act and Cross-Complainants seek a judicial declaration of the respective rights and duties with respect to the Partition of Real Property Act.

As to the second cause of action for breach of contract, Cross-Complainants allege the Right of First Refusal Agreement states “to keep family property within the family, we the undersigned, as share owners of record in the above property, do hereby agree that we shall not sell, gift, or otherwise dispose of our share of the subject property without the written consent of the other part owners of record” and that “ if one Party seeks to sell, gift, or otherwise dispose of their interest in the Property, and another Party wishes to purchase that interest, then the latter Party shall be afforded the opportunity to purchase the former Party’s interest, at a fair market value determined by appraisal.” (FACC ¶¶25, 26.)

Further, that “Cross-Defendants breached the Agreement by purporting to transfer the Cross-Defendants’ 50% interest in the Property to Emily Nicole Duncan without complying with the Agreement, and refusing to sell their interest in the Property to the Cross-Complainants.” (FACC ¶27.)

As to the third cause of action for recission of fraudulent transfer, Cross-Complainants allege claims for relief against Cross-Defendants, including various rights of first refusal, which are inexorably tied to the Property, and which arose before the supposed transfer in August 2025. (FACC ¶32.)

Further, that “Cross-Complainants accordingly hold status as a “creditor” against Cross-Defendants Kevin and Sally Duncan as a “debtor” under California’s Uniform Voidable Transfers Act (Civ. Code section 3439 et seq.)” (FACC ¶33.)

The operative amended cross-complaint further alleges that “Cross-Defendants purported to transfer their rights in the Property for no consideration in order to avoid these debts in violation of Cross-Complainants’ rights” and “Cross-Defendants…transferred substantially all of their 50% interest in the Property without receiving reasonably equivalent value, in violation of Civ. Code sections 3439.04(a)(2) and 3439.05(a).” (FACC ¶¶34, 35.)

Additionally, that “…Cross-Defendants conspired to, and actually, transferred substantially all of their 50% interest in the Property with actual intent to hinder, delay, or defraud Cross-Complainants in their claims for relief, in violation of Civ. Code section 3439.04(a)(1).” (FACC ¶36.)

Cross-Complainants allege further that “Cross-Defendants (1) made their transfer to an insider; (2) retained possession or control of the Property transferred after the transfer; (3) concealed their transfer; (4) made the transfer to avoid the execution of Cross-Complainants’ rights, (5) transferred all or substantially all of their interest in the Property; (6) made their transfer with the intent to remove or conceal assets; and (7) made their transfer without receiving a reasonably equivalent value in exchange—all of which is entitled to consideration by a court of law under Civ. Code section 3439.04(b)(1-11) as determinative of Cross-Defendants’ intent, as well as the fraudulent, and thus voidable, nature of their transfer” (FACC ¶37.)

Cross-Complainants seek punitive damages and to set aside the transfer under Civ. Code section 3439.07, as well as under Code Civ. Proc. section 872.120, common law authorities related to fraudulent transfers, and the Court’s inherent equitable powers. (FACC ¶¶38, 39.)

Cross-Defendants demurrer to each cause of action for failure to state facts and seek to strike various allegations in the second cause of action

In opposition, Cross-Complainants argue that this is an improper attempt to relitigate issues in this matter and that all causes of action have been properly pled.

(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.)

First Cause of Action – Declaratory Relief

In the Court’s ruling on August 27, 2025, as to appointment of its appraiser, it stated the following:

“The Court notes that Plaintiffs dismissed their complaint in this matter on August 19, 2025. At the hearing on August 26, 2025, counsel for plaintiff argued that the cross-complaint sought only declaratory relief and in the absence of a complaint for partition, no appraisal was proper. Counsel for cross-complainants argued that the appraisal should continue and asserted they could amend their cross-complaint if necessary. The cross-complaint is titled as a Verified Cross-complaint for Partition of Real Property and seeks declaratory relief. They seek the right to purchase the property rather than partition by sale. The court finds this to be an action to partition of real property under CCP 874.313. An appraisal to determine value is also squarely within the terms of the First Right of Refusal Agreement dated July 15, 1991.”

The parties argue whether the Partition of Real Property Act applies in light of the ROFR and whether this cause of action can be maintained if no partition action under the Act is expressly alleged.

The Court does not view the allegations as to the first cause of action as narrowly as the demurring parties. This cause of action appears to seek a judicial declaration as to whether the Act applies and/or whether the ROFR applies.  

The Court has already found that the prior version of the cross-complaint containing a cause of action for declaratory relief to be an action for partition. Whether application of the Act requires an express cause of action for partition would not appear to completely dispose of this cause of action, as it seeks to adjudicate rights under the ROFR, at the very least.

Additionally, at the inception of this case, Cross-Defendants Kevin C. Duncan and Sally J. Duncan, as Plaintiffs, sought partition as to the Property in all versions of the complaint filed, and thereafter amended, naming as Defendants all those with ownership interests to the Property. Cross-Complainants now seek division of the Property via a declaration of rights to either partition or purchase the shares. The Court views this as all parties sufficiently agreeing to a sale or disposal of some of the shares. This is a sufficient posture of this case, including the allegations in the amended cross-complaint, on demurrer, to trigger the ROFR’s “agreement to the sale of our share” term and therefore a present controversy exists for the Court to adjudicate. 

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

Second Cause of Action – Breach of Contract

As to this cause of action, Cross-Defendants argue that the conditions of underlying contract, the ROFR, have not been met because there is no sale proposed by a party listed in the ROFR.

The ROFR does use language such as “in the event of an agreement to the sale of our share of the property” and “if and when we decide to sell our share.” However, the ROFR also contains language such as “a desire to keep family property within the family, we the undersigned, as share owners of record in the above property, do hereby agree that we shall not sell; gift, or otherwise dispose of our share of the subject property without the written consent of all of the other part owners of record” and “do[es] herby grant to [the designees] the first right of refusal to purchase our share of the subject property if and when we decide to sell our share.”

The ROFR’s plain language, in the Court’s view, indicates a first agreement:

“In consideration of mutual love and affection and a desire to keep family property within the family, we the undersigned, as share owners of record in the above property, do hereby agree that we shall not sell; gift, or otherwise dispose of our share of the subject property without the written consent of all of the other part owners of record.”

As well as a second agreement: “We further agree that in the event of an agreement to the sale of our share of the property, the following procedures will be followed:…”

Under this language, a gift would not appear to trigger the purchase rights under the second promise, a gift does invoke the first promise not to “gift…without the written consent of all of the others part owners of record.” This cause of action appears directed at whether the purchase rights under the ROFR are triggered by the gift, as opposed to a breach of the “shall not…gift…without the written consent of all of the other part owners…”

As such, the Court does not find the allegations to allege a breach of the ROFR as to the purchase rights, will sustain the demurrer, and will permit leave to amend. Cross-Complainants shall have ten (10) days to file an amended cross-complaint.

Third Cause of Action – Recission of Fraudulent Transfer

Here, Cross-Defendants argue that the facts, as alleged, do not constitute a violation of the UVTA. In response, Cross-Complainants argue the cause of action incorporates the other allegations and therefore a common law fraudulent transfer is alleged.

The only allegation related to this transfer is found at paragraph 14:

“On August 21, 2025, Cross-Defendants Kevin and Sally Duncan purported to transfer the Cross-Defendants’ 50% interest in the Property to a family member, “Emily Nicole Duncan, a married woman as her sole and separate Property.” This purported transfer involved a Grant Deed dated August 19, 2025, recorded with Tulare County as Doc. No. 2025-0040593 on August 21, 2025.”

This, to the Court, does not allege a common law voidable transfer, though the Court notes the transfer occurred during pending litigation. However, no allegations as to a common law voidable transfer cause of action are otherwise pled, as paragraphs 32 through 39 expressly cite to provisions of the UVTA as to definitions of terms, specific violations of sections of the UVTA, while stating generally “common law  authorities related to fraudulent transfers…” as to a potential remedy.

As such, the Court does not find a sufficient cause of action pled under common law, sustains the demurrer on this theory, and will permit leave to amend.

As to the UVTA application to the facts alleged, the Court does not find there is “right to payment” and therefore no “claim” as defined under the UVTA as “a right to payment, whether or not the right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured.” Cross-Complainants seek a judicial determination of an alleged right to purchase shares under a ROFR or otherwise seek partition of the Property, and alleged breach of the ROFR.

Therefore, the Court sustains the demurrer on this argument, with leave to amend. Cross-Complainants shall have ten (10) days to file an amended cross-complaint.

(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, Cross-Defendants seek to strike the following:

• In paragraph 10 of the Kirsches’ general allegations, they allege the Agreement “affirmed an explicit agreement that if any Party should seek or attempt to sell, gift, or otherwise dispose of their interest in the Property, then the other Party owners shall be afforded the opportunity to obtain an appraisal and buy out the first Party’s interest at the appraised value–i.e., the first right of refusal. (FACC, ¶ 10, p. 4:17-22.)
• In paragraph 26 of their breach of contract cause of action, the Kirsches allege: “The Agreement goes on to state that if one Party seeks to sell, gift, or otherwise dispose of their interest in the Property, and another Party wishes to purchase that interest, then the latter Party shall be afforded the opportunity to purchase the former Party’s interest, at a fair market value determined by appraisal.” (FACC, ¶ 26, p. 6:11-14.)
• Prayer: “determining that Cross-Complainants are entitled to buy Cross-Defendant’s interests at the value determined by the Court pursuant to the Parties’ First Right of Refusal Agreement.”

As to paragraphs 10 and 26, Cross-Defendants argue that these allegations conflict with the ROFR because the ROFR does not include a “gift” or donative transfer as a trigger for the right of first refusal procedure. Rather, Cross-Defendants argue, the ROFR is limited to situations where: “We further agree that in the event of an agreement to the sale of our share of the property, the following procedures will be followed . . . .”

The Court has examined this issue above and agrees that the ROFR’s right of first refusal provision is not expressly triggered by a gift to a family member and therefore the Court will strike Paragraphs 10 and 26, with leave to amend, consisting with the Court’s sustaining of the demurrer above. Cross-Complainants shall have ten (10) days to file an amended cross-complaint.

As to the relief requested in the prayer, the Court has also examined this issue above, finding that the agreement to the sale of shares of the Property exists via the filing of the complaint and cross-complaint in this matter, consistent with the Court’s August 27, 2025 ruling that there is a present action “to partition of real property under CCP 874.313” and that the appraisal was appropriate as the first step under the ROFR. Therefore, the Court denies the motion to strike the prayer.

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.

Re:                 Gonzalez, Zaulo Rodriguez vs. Milky Way Farms, LLC

Case No.:   VCU323416

Date:            February 24, 2026

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     Motion to Continue 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.

Re:                Ghilarducci, Jeff vs. Dowling, Nicole

Case No.:   VCL326198

Date:           February 24, 2026

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     Motion to Set Aside Default

Tentative Ruling: No documents appear filed in connection with this motion. Therefore, the Court takes the matter 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.

Re:                Kennedy, David et al vs. Burch, Carolyn et al

Case No.:  PCU328579

Date:           February 24, 2026

Time:           8:30 A.M. 

Dept.           19-The Honorable Russell P. Burke

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

Tentative Ruling: (1) To overrule the demurrer; (2) To deny the motion to strike; To order Defendant Burch to answer the complaint no later than ten (10) days from the date of this hearing.

Facts Common to (1) and (2)

Plaintiffs allege causes of action for trespass to land and nuisance.

In this matter, the Kennedy Plaintiffs indicate ownership of 211 Cedar Drive, Camp Nelson, CA 93265 or the “Kennedy Property.” (Complaint ¶6.)

Defendant Burch is the owner, as of May 6, 2021, of 237 Cedar Drive, Camp Nelson, California, 93265 or the “Burch Property.” (Complaint ¶7.)

The Kennedy Property and the Burch Property are adjacent to each other and in order to access the Burch Property, there is an easement of record for the Burch Property that crosses the Kennedy Property along the Kennedy Road. (Complaint ¶8.)

Plaintiffs attached a copy of the easement as Exhibit 3 to the complaint. (Complaint ¶8.) Plaintiffs allege that the easement of record should run with the land. (Complaint ¶8.) Plaintiffs allege the easement is limited to “ingress and egress” and there is no “utility easement” in favor of Defendant Burch or the Burch Proerty. (Complaint ¶10.) Exhibit 3, as to the easement states:

“A non-exclusive easement for access, ingress, and egress purposes over and across Parcel No, 1 of Parcel Map No. 2800 In the County of Tulare, State of California, as per Map recorded In Book 29, page 1 of Parcel Maps, in the office of the County Recorder of said County, as such roadway now exists, meandering In a general Southwesterly direction from it’s intersection with Cedar Lane shown and located within said Parcel Map”

In summer of 2023, Plaintiff alleges that Defendant Burch hired Defendant Bates to install an entirely new waterline underneath the Kennedy Road on the Kennedy Property, in excess of the scope of the easement. (Complaint ¶10.) Plaintiffs further allege that the waterline was not installed out of necessity, and was “…moved from its historic path where it entered the Burch Property crossing a separate and different parcel than the Kennedy Property.” (Complaint ¶11.)

Further, that Defendant Burch thereafter used the Burch Property as a vacation rental, which increased the traffic on the Kennedy Road and exceeded the historical scope of the easement of record. (Complaint ¶13.)

Additionally, that Defendant Burch:

“…refused to enforce the long standing practice of keeping access to the properties limited. There are two gates along the Kennedy Road that have historically been locked: one gate at the entrance from the public road and one gate about three quarters of the distance from the public road to the Burch Property. Both gates were locked with a daisy chain, with one lock belonging to the US Forest Service and one lock belonging to Southern California Edison. The Kennedys and easement holders had the combination to both locks. Defendant Burch removed the daisy chain under the guise of needing access for her vacation rental.” (Complaint ¶14.)

Additionally, on June 17, 2024, Plaintiffs “observed an individual who identified himself the Defendant Burch’s brother who had parked his camper on the Kennedy Property. The Kennedys did not give permission for this individual to be on their property. The trespassing individual stated that he was directed to park his camper on the Kennedy Property by the Defendant Burch.” (Complaint ¶15.) Plaintiffs allege that “The camper was next to a freshwater source used by the Kennedys and was contaminating the water source by dumping gray water in the natural water stream.” (Complaint ¶15.)

As to trespass, specifically, Plaintiffs allege intentional, reckless or negligent acts as to the water pipeline, business invitee use including the taking of firewood from the Kennedy Property, parking of Defendant Burch’s brother’s trailer on the Kennedy Property, and other “illegal entries” for which Plaintiffs did not give permission and for which exceed any easement rights. (Complaint ¶¶21-24.)

Plaintiffs seek monetary damages and equitable relief as to removal of the water line, restoration of the Kennedy Road, cease and desist as use of the Kennedy Road by business invitees, use of a proper lock, and “an order that Defendant Bates cease and desist entering the Kennedy Property and Kennedy Road for any reason, including any work to be done for Defendant Burch, without obtaining the prior consent of Plaintiffs.” (Complaint ¶25.)

As to nuisance, Plaintiffs allege the installation of the waterline, damage to the Kennedy Road, pollution of water flowing into public waterways, business invitee use and leaving access to the Kennedy Property unsecured via the locking system in place, are “harmful to health, offensive, and an obstruction to the free use of the Kennedy Property so as to interfere with the comfortable enjoyment of the Kennedy Property.” (Complaint ¶28.)

Plaintiffs seek similar monetary and equitable relief.

Defendant Burch demurrers to the complaint for failure to allege sufficient facts to state a cause of action and seeks to strike various allegations of the complaint and prayer for relief.

In opposition, Plaintiff notes a failure to meet and confer and otherwise argues that the causes of action are sufficiently pled.

Authority and Analysis

(1) 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.)

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.)

Trespass

The elements of a trespass claim are: "(1) the plaintiff's ownership or control of the property; (2) the defendant's intentional, reckless, or negligent entry onto the property; (3) lack of permission for the entry or acts in excess of permission; (4) harm; and (5) the defendant's conduct was a substantial factor in causing the harm." (Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal. App. 5th 245, 262.) If there is consent to enter the property, there is no trespass. (Cobb v. City of Stockton (2011) 192 Cal. App. 4th 65, 72.) However, this defense does not apply if defendant exceeds the scope of the consent. (Mangini v. Aerojet-General Corp. (1991) 230 Cal. App. 3d 1125, 1141-1142.)

Defendant argues that Plaintiff’s trespass claim is speculative and conclusory, that no facts are alleged that Defendant personally entered the Kennedy Property or intentionally caused an unauthorized entry. Further, that the allegations as to the waterline and business invitees does not exceed the scope of the easement.

The Court does not find the allegations as to trespass speculative and conclusory, as Plaintiffs have alleged specific instances of conduct constituting entry onto the land.

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)

As to the argument that there is no allegation Defendant personally entered the Kennedy Property or committed the acts alleged as to trespass, “ ‘[A] trespass may be committed by the continued presence on the land of a structure, chattel, or other thing which the actor has tortiously placed there, whether or not the actor has the ability to remove it.’ Under this definition, ‘tortious conduct’ denotes that conduct, whether of act or omission, which subjects the actor to liability under the principles of the law of torts.” (Newhall Land & Farming Co. v. Superior Court (1993) 19 Cal.App.4th 334, 345.)

Further, “Where one has permission to use land for a particular purpose and proceeds to abuse the privilege, or commits any act hostile to the interests of the lessor, he becomes a trespasser. [¶] ‘A good faith belief that entry has been authorized or permitted provides no excuse for infringement of property rights if consent was not in fact given by the property owner whose rights are at issue. Accordingly, by showing they gave no authorization, [plaintiffs] established the lack of consent necessary to support their action for injury to their ownership interests.’ ” (Cassinos v. Union Oil Co. (1993) 14 Cal.App.4th 1770, 1780.)

The complaint sufficiently alleges that Defendant authorized the entry by others as to the installation of the water line, the parking of the trailer, the use of the road in excess of the permitted use, and other acts for which Plaintiff alleges Defendant is liable. Therefore, the Court overrules the demurrer as to this argument.

As to the scope of the easement, the demurrer is stage is inappropriate to adjudicate this issue. It is sufficient that Plaintiffs allege that Defendant’s acts exceed the historical scope of the easement.

Therefore, the Court overrules the demurrer to trespass.

Nuisance

The elements of a nuisance claim are (1) interference with use and enjoyment of plaintiff's property that is (2) substantial and (3) unreasonable. (Mendez v. Rancho Valencia Resort Partners, LLC (2016) 3 Cal. App. 5th 248, 262-263.) Similar to trespass, consent is a defense to nuisance. See Mangini, supra, 230 Cal. App. 3d at 1141-1142)

Defendant effectively repeats the same arguments as to nuisance. However, for the same reasons as above, the Court finds the cause of action pled sufficiently for purposes of demurrer.

Therefore, the Court overrules the demurrer on this argument.

Mandatory Equitable Relief

Further, the Court notes that Plaintiffs will be required to prove the elements as to a mandatory injunction to remove the water line and restore the roadway, but that such relief is sufficiently pled for purposes of demurrer. At this point the Court is not being asked to grant the injunction prior to adjudication of the claims in the complaint. (See Teachers Ins. & Annuity Assn. v. Furlotti (1999) 70 Cal.App.4th 1487, 1493. [“The granting of a mandatory injunction pending trial is not permitted except in extreme cases where the right thereto is clearly established.”].)

Affirmative Defenses

Further, Defendant asserts affirmative defenses of laches and estoppel, which require allegations outside the four corners of the complaint and are not appropriate to adjudicate on demurrer.

(2) Motion to Strike

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).)

The Court does not find paragraph 12 conclusory or argumentative, noting that the damage sustained is a matter of proof. Therefore, the Court denies the motion as to No. 1.

The Court does not find portions of paragraph 15 “improperly based on speculation and belief” or “unsupported by factual allegations” where a complaint may allege, for instance, certain facts on information and belief, subject to proof at trial or dispositive motion. Therefore, the Court denies the motion as to Nos. 2 and 3.

Similarly, the Court denies the motion as to No. 4 regarding speculative allegations and does not find the referenced allegations, on belief, and that sufficient facts are alleged in support of the allegations.

As to No. 5, the Court will deny the motion and strike the reference to “additional illegal entries and damages to be shown according to proof at trial” noting that it sufficiently apprises Defendant of the types of claims for which discovery will reveal facts thereto.

As to No. 6, the Court will deny the motion as to Paragraph 24 and the third paragraph of the prayer, as the Court agrees that Defendant is liable for the foreseeable acts of business invitees with respect to taking firewood.

As to Nos. 7 and 8, the Court will deny the motion as the pleading in paragraphs 28(c) and 28(e) is sufficiently alleged.

As to No. 9, the Court denies the motion, that the locking of the gate and permitting access thereto is an issue that goes to the scope of the easement and cannot be resolved on a motion to strike.

Therefore, the Court denies the motion to strike.

The Court, having overruled the demurrer and denied the motion to strike, orders Defendant Burch to answer the 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.

Re:                 CARDONA, DAVID vs. WOODSIDE 06N, LP et al

Case No.:   PCU327784

Date:           February 24, 2026

Time:           8:30 A.M. 

Dept.           19-The Honorable Russell P. Burke

Motion:     Defendants Woodside and Burkett’s (1) Motion to Compel Arbitration and (2) Demurrer; Defendant Kimmel’s Continued (3) Demurrer and (4) Motion to Strike

Tentative Ruling:  (1) To grant the motion based on the delegation clause; (2) To find the demurrer moot by the ruling on the motion to compel arbitration; (3) and (4): To stay the action as to Defendant Kimmel’s claims pending arbitration of the claims against Defendants Woodside and Burkett.

Defendants Woodside and Burkett’s (1) Motion to Compel Arbitration

Background Facts

In this matter, Plaintiff sues Defendant Woodside for breach of contract, fraud, negligence, breach of implied covenant, Business and Professions Code section 17200, Song-Beverly, and breach of warranty.

Additionally, Plaintiff sues Defendant Burkett for fraud, negligence, and breach of implied covenant.

Additionally, Plaintiff sues Defendant Builders Flooring for violation of Business and Professions Code section 17200, negligence, Song-Beverly, breach of warranty.

Additionally, Plaintiff sues Defendant Kimmel for fraud and breach of implied covenant.

These causes of action relate to Plaintiff’s home located at 264 Ridge Creek Estates Way, Dinuba, CA 93618 (“Subject Property”) and the installation of the flooring used in the Subject Property. (Complaint ¶¶11, 12.) Plaintiff alleges that Woodside and Builders failed to install the flooring in accordance with the manufacturer’s guidelines, that subsequent repairs did not remedy the issues, and that in May 2025, Woodside commissioned Defendant Kimmel to perform an inspection, which was inadequate and failed to include a full assessment. (Complaint ¶¶ 11-20.)

Defendants Woodside and Burkett seek to compel arbitration based on the written sales contract’s arbitration term which Plaintiff entered into regarding construction of the Subject Property. In support, Defendants Woodside and Burkett provide a copy of the purchase agreement containing the arbitration term and note a delegation clause as to issues of interpretation and enforceability. Defendant seek to compel arbitration of their claims

In opposition, Plaintiff argues that the Court must determine enforceability as a threshold issue and argues the arbitration agreement is both procedurally and substantively unconscionable.

In opposition, Defendant Kimmel argues that the arbitration agreement cannot be enforced against him and that the Court, if it compels arbitration, should not stay this matter.

Facts – Agreement to Arbitrate and Delegation Clause

There appears to be no dispute that Plaintiff as buyer and Defendant Woodside, as Seller, entered into a purchase agreement containing Addendum “2” as to “Arbitration of Disputes.”

The Court notes at the outset the following:

“ANY DISPUTE CONCERNING THE INTERPRETATION OR THE ENFORCEABILITY OF THIS SECTION 1, INCLUDING, WITHOUT LIMITATION, ITS REVOCABILITY OR VOIDABILITY FOR ANY CAUSE, ANY CHALLENGES TO THE ENFORCEMENT OR THE VALIDITY OF THIS OFFER OR THE AGREEMENT, OR THIS SECTION 1, OR THE SCOPE OF ARBITRABLE ISSUES UNDER THIS SECTION 1, AND ANY DEFENSE RELATING TO THE ENFORCEMENT OF THIS SECTION 1, INCLUDING, WITHOUT LIMITATION, WAIVER, ESTOPPEL, OR LACHES, SHALL BE DECIDED BY AN ARBITRATOR IN ACCORDANCE WITH THIS SECTION 1 AND NOT BY A COURT OF LAW.” (Addendum 2 – Section 1.1.)

Additionally, that:

“BUYER AND SELLER EXPRESSLY AGREE AND ACKNOWLEDGE THAT THIS OFFER AND THE AGREEMENT INVOLVE AND CONCERN INTERSTATE COMMERCE AND ARE GOVERNED BY THE PROVISIONS OF THE FEDERAL ARBITRATION ACT (9 U.S.C. §1, ET SEQ.) NOW IN EFFECT AND AS THE SAME MAY FROM TIME TO TIME BE AMENDED, TO THE EXCLUSION OF ANY DIFFERENT OR INCONSISTENT STATE OR LOCAL LAW, ORDINANCE, REGULATION, OR JUDICIAL RULE. ACCORDINGLY, ANY AND ALL DISPUTES SHALL BE ARBITRATED – WHICH ARBITRATION SHALL BE MANDATORY AND BINDING – PURSUANT TO THE FEDERAL ARBITRATION ACT” (Addendum 2 – Section 1.4.1.)

Authority and Analysis – Delegation Clause

Malone v. Superior Court (2014) 226 Cal.App.4th 1551 summarizes the applicable analysis with respect to delegation clauses:

“A delegation clause requires issues of interpretation and enforceability of an arbitration agreement to be resolved by the arbitrator. Delegation clauses have the potential to create problems of circularity. For example, suppose an arbitration agreement delegates the issue of enforceability to the arbitrator. If the arbitrator concludes that the arbitration agreement is, in fact, not enforceable, this would mean that the entire agreement, including the delegation clause, is unenforceable-a finding that would undermine the arbitrator's jurisdiction to make that finding in the first place. For this reason, courts have treated the delegation clause as a separate agreement to arbitrate solely the issues of enforceability…

“For this reason, when a party is claiming that an arbitration agreement is unenforceable, it is important to determine whether the party is making a specific challenge to the enforceability of the delegation clause or is simply arguing that the agreement as a whole is unenforceable. If the party's challenge is directed to the agreement as a whole--even if it applies equally to the delegation clause--the delegation clause is severed out and enforced; thus, the arbitrator, not the court, will determine whether the agreement is enforceable. In contrast, if the party is making a specific challenge to the delegation clause, the court must determine whether the delegation clause itself may be enforced (and can only delegate the general issue of enforceability to the arbitrator if it first determines the delegation clause is enforceable). (Rent-A-Center, West, Inc. v. Jackson (2010) 561 U.S. 63, 70)”

Here, Plaintiff argues the entire agreement is unconscionable, failing to make a specific challenge to the delegation clause itself.

The Court, therefore under Rent-A-Center and Malone, above, severs out the delegation clause and enforces it, leaving the determination of the enforceability, and defenses thereto, of the Agreement to an arbitrator

Applicability as to Defendant Kimmel and Stay

Code of Civil Procedure section 1281.2(c) allows the court to refuse to enforce an arbitration agreement where a party to the arbitration is also a party to a pending court action with a third party arising out of the same transaction and there is a possibility of conflicting rulings. Under Maxwell v. Atria Management Co., LLC (2024) 105 Cal.App.5th 230, 247 “[a]s used in the statute, a ‘third party’ is one who is neither bound by nor entitled to enforce the arbitration agreement.”

Here, however, where the FAA’s procedural provisions apply, as noted in Valencia v. Smyth (2010) 185 Cal.App.4th 153, 157, the Court may not stay or deny arbitration:

“The Federal Arbitration Act (FAA) (9 U.S.C. §§ 1–16) does not permit a trial court to stay or deny arbitration in those circumstances. Rather, the FAA requires the arbitration of all claims within the scope of an arbitration provision even if the action includes nonarbitrable claims by or against third parties. (See 9 U.S.C. §§ 3, 4.)”

Further, the Valencia court noted that "[T]he FAA's procedural provisions (9 U.S.C. §§3, 4, 10, 11) do not apply unless the contract contains a choice-of-law clause expressly incorporating them." (Id. at 174.) "The question of whether the Agreement incorporated the FAA's procedural provisions, thereby eliminating the trial court's authority under section 1281.2[, subdivision ](c), 'is a question of law involving interpretation of statutes and the contract (with no extrinsic evidence).''" (Id. at 161-162.) 

Here, the Agreement states claims “…SHALL BE ARBITRATED PURSUANT TO THE FEDERAL ARBITRATION ACT (9 U.S.C. §1, ET SEQ.)” and that the transaction is “…GOVERNED BY THE PROVISIONS OF THE FEDERAL ARBITRATION ACT (9 U.S.C. §1, ET SEQ.” This, in the Court’s opinion, is sufficiently distinct from the language in Valencia at 159-160 and the Court notes Valencia did not involve a delegation clause. (See also Victrola 89, LLC v. Jaman Properties 8 LLC (2020) 46 Cal.App.5th 337, 342-343, 346 (FAA governed motion to compel instead of CAA where agreement stated enforcement was “governed by the [FAA]”.) 

As such, the Court cannot stay or deny the motion to compel arbitration based on the inclusion of what appear to be claims against the “third party” Defendant Kimmell.

Therefore, the Court grants the motion with respect to delegation to the arbitrator and stays this matter as to Defendants Kimmel and Builders Flooring.

Defendants Woodside and Burkett’s (2) Demurrer

Based on the ruling above as to the motion to compel arbitration and stay, the Court finds the demurrer moot.

Defendant Kimmel’s Continued (3) Demurrer and (4) Motion to Strike

Based on the ruling above, Defendant Kimmel’s claims, including the pending demurrer and motion to strike, are stayed pending completion of arbitration.

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:                John WL Doe v. Porterville USD, et al

Case No.:  PCU318676

Date:           February 24, 2026

Time:           8:30 A.M. 

Dept.           19-The Honorable Russell P. Burke

Motion:     Plaintiff’s Motion for Protective Order re: Deposition of Plaintiff

Tentative Ruling: To deny the motion

Facts

In this negligence, intentional infliction of emotional distress, public entity liability, assault, sexual battery, sexual harassment and gender violence action, Plaintiff sues Defendant Porterville Unified School District and Defendant Carrasco.

Plaintiff’s counsel coordinated Plaintiff’s deposition with counsel for Porterville Unified School District to take place in person in Fresno, California on January 20, 2026. However, Plaintiff’s counsel indicates the following:

“I am in my late second trimester of a high risk pregnancy. In late December 2025, on or about December 29, 2025, I was informed by my ObGyn that I should avoid any unnecessary travel for the remainder of my pregnancy. After becoming informed of my inability to travel from Orange County, California to Fresno, California, I informed counsel for Porterville Unified School District of my medical issue and requested that the deposition be conducted by Zoom. Counsel for Porterville Unified School District advised that the deposition could not take place via Zoom. I subsequently offered to cover the expense of counsel’s travel to Orange County, California so that the deposition could take place at my Irvine, California office, counsel for defendant Porterville Unified School District declined this offer.” (Declaration of Charboneau ¶5)

Further that “Counsel for Porterville Unified School District’s only proposal was that I obtain coverage from a colleague for the deposition. However, Plaintiff John WL Doe is requesting that only I defend him at deposition.” (Declaration of Charboneau ¶5.)

Trial is set for July 2026.

Plaintiff seeks a protective order either permitting the deposition to occur remotely so that Plaintiff’s counsel may defend the deposition personally.

In opposition, Defendant notes that there are other attorneys employed at Plaintiff’s firm who could defendant the deposition, that Defendant’s counsel has a statutory right to attend the deposition in person and that given the allegations of the complaint, an in person deposition is necessary.

Authority and Analysis

“Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order. The motion shall be accompanied by a meet and confer declaration under Section 2016.040. (Code Civ. Proc., § 2025.420(a).)

Code of Civil Procedure section 2025.420, subdivision (b), notes that

"(b) The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. This protective order may include, but is not limited to, one or more of the following directions: “[¶](4) That the deposition be taken at a place other than that specified in the deposition notice, if it is within a distance permitted by Sections 2025.250 and 2025.260. [¶](5) That the deposition be taken only on certain specified terms and conditions.”

If such "good cause" is shown, the court can exercise its discretionary power to limit discovery. (In re Providian Credit Card Cases (2002) 96 Cal.App.4th 292, 298-99.) The granting or denial of relief lies within the sound discretion of the Court. (Greyhound Corp. v. Superior Court (1961) 56 Cal.2d 355, 379-81 [overruled on other grounds pertaining to attorney work product privilege.])

Here, section 2025.250 permits a distance of “either within 75 miles of the deponent’s residence, or within the county where the action is pending and within 150 miles of the deponent’s residence” as to the deposition of a natural person.

As Defendant PUSD seeks to depose Plaintiff within these limits, the Court does not find an application of section 2025.260 and its factors as to taking a deposition beyond those geographical limits.

Code of Civil Procedure section 2025.310(b) states: “Subject to Section 2025.420, any party or attorney of record may, but is not required to, be physically present at the deposition at the location of the deponent. If a party or attorney of record elects to be physically present at the location of the deponent, all physically present participants in the deposition shall comply with local health and safety ordinances, rules, and orders.”

Here, as Plaintiff’s counsel Charboneau is not a solo practitioner, the Court cannot find good cause to grant the protective order with respect to another attorney in the firm defending the deposition in person. The Court acknowledges the nature of this case and the development of counsel Charboneau’s attorney-client relationship with Plaintiff, but this is insufficient to either order a remote deposition or that the deposition occur in Orange County to avoid travel.

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:                 Figueroa, Shallon vs. Rivera, Primitivo et al

Case No.:    PCU325958

Date:            February 24, 2026

Time:           8:30 A.M. 

Dept.           19-The Honorable Russell P. Burke

Motion:     Defendant Alex Velasquez’s Motion to Quash

Tentative Ruling: To find the motion moot by the service of an amended complaint.

Facts and Analysis

In this negligence, breach of habitability, nuisance and breach of covenant of quiet enjoyment action, Plaintiff sued, amongst other defendants, Defendant Alex Velasquez.

On October 10, 2025, Plaintiff filed a proof of service indicating personal service occurred on Defendant Velasquez at 8:47 am, at “440 E MARIN AVENUE, EARLIMART, CA 93219” and describing Defendant Velasquez as “Age: 45, Sex: M, Race/Skin Color: HISPANIC, Height: 5'8", Weight: 185, Hair: BALD, Glasses: N, Eyes: BROWN.” Further, that service occurred via a registered California process server.

On January 15, 2026, Plaintiff filed an amended complaint, but did not serve the amended complaint until January 22, 2026 via substitute service.

On January 16, 2026, Plaintiff filed this motion to quash stating an improper service address, failure to comply with Code of Civil Procedure sections 415.20 and 418.20 and indicating “Defendant has not resided at address mentioned above since on active-duty orders (Aug 2021 – Nov 2025).”

On February 5, 2026, Plaintiff filed an opposition to the motion noting no proof of service, that Defendant’s time to file a motion to quash had expired based on the October 10, 2025 service, and that the presumption of service by a registered California process server is sufficient evidence that service occurred.

The Court, however, finds the motion to quash moot by the service of the amended complaint and summons via purported substitute service. Defendant’s motion, having been filed January 15, 2026, cannot be directed at service of the amended complaint and summons.

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:                 Central Business Bureau, Inc. vs. Bejarano, Ursulo

Case No.:   PCU331422

Date:           February 24, 2026

Time:           8:30 A.M. 

Dept.           19-The Honorable Russell P. Burke

Motion:     Ex Parte Application for TRO and OSC re: Preliminary Injunction

Tentative Ruling: To deny the application

Facts

On February 19, 2026, Plaintiff, Central Business Bureau, Inc. filed this complaint for judicial foreclosure and accounting of rents and profits (in rem – no deficiency sought) against Defendant Ursulo Bejarano

Plaintiff states that on April 20, 2005, it obtained a money judgment against Defendant Bejarano, that the judgment a renewed on April 2, 2015 in the amount of $2,721.40, exclusive of post judgment interest, fees and costs. (Declaration of Chambers ¶ 2.)

On May 16, 2005, Plaintiff recorded an abstract of judgment, creating a judgment lien attached to real property located at 338 East Garden Ave., Porterville, CA 93257. (Declaration of Chambers ¶¶3,4.)

The lien remains unsatisfied.

A public auction sale of the property at issue has been scheduled for February 26, 2026 (Declaration of Chambers ¶5.)

Via this ex parte application for temporary restraining order and order to show cause re: preliminary injunction, Plaintiff seeks to enjoin the sale in order to effectuate its own judicial foreclosure action via this complaint.

Plaintiff seeks the TRO “solely to preserve the status quo pending a hearing on a preliminary injunction…” (Declaration of Chambers ¶8.)

No proof of service or notice of the ex parte has been indicated in the application.

Defendants have not appeared in this matter.

Authority and Analysis

Here, Plaintiff seeks a TRO and an OSC re: preliminary injunction by ex parte.

California Rule of Court, rule 3.1150, entitled “Preliminary injunctions and bonds” subdivision (g) states:

“(g) Ex parte temporary restraining orders Applications for ex parte temporary restraining orders are governed by the ex parte rules in chapter 4 of this division.”

As such, California Rule of Court, rule 3.1206 entitled “Service of papers” states:

“Parties appearing at the ex parte hearing must serve the ex parte application or any written opposition on all other appearing parties at the first reasonable opportunity. Absent exceptional circumstances, no hearing may be conducted unless such service has been made.”

No proof of service has been filed. No exceptional circumstances are demonstrated in the application or declaration of Counsel.

Further, the application lacks compliance with California Rule of Court, rule 3.1204 subdivisions (b) and (c) entitled “Contents of notice and declaration regarding notice” states:

(b) Declaration regarding notice An ex parte application must be accompanied by a declaration regarding notice stating:

(1) The notice given, including the date, time, manner, and name of the party informed, the relief sought, any response, and whether opposition is expected and that, within the applicable time under rule 3.1203, the applicant informed the opposing party where and when the application would be made;

(2) That the applicant in good faith attempted to inform the opposing party but was unable to do so, specifying the efforts made to inform the opposing party; or

(3) That, for reasons specified, the applicant should not be required to inform the opposing party.

(c) Explanation for shorter notice If notice was provided later than 10:00 a.m. the court day before the ex parte appearance, the declaration regarding notice must explain:

(1) The exceptional circumstances that justify the shorter notice; or

(2) In unlawful detainer proceedings, why the notice given is reasonable.

Further, California Rule of Court, rule 3.1202, entitled “Contents of application” which, under subdivision (a), requires the following:

(a) Identification of attorney or party An ex parte application must state the name, address, e-mail address, and telephone number of any attorney known to the applicant to be an attorney for any party or, if no such attorney is known, the name, address, e-mail address, and telephone number of the party if known to the applicant.

Additionally, California Rule of Court, rule 3.1150, entitled “Preliminary injunctions and bonds” notes, in subsection (a), that:

“A party requesting a preliminary injunction may give notice of the request to the opposing or responding party either by serving a noticed motion under Code of Civil Procedure section 1005 or by obtaining and serving an order to show cause (OSC). An OSC must be used when a temporary restraining order (TRO) is sought, or if the party against whom the preliminary injunction is sought has not appeared in the action. If the responding party has not appeared, the OSC must be served in the same manner as a summons and complaint.” (California Rules of Court, rule 3.1150(a).) (emphasis added.)

Here, an OSC appears properly sought by Plaintiff as Plaintiff seeks a TRO and Defendants have not appeared in the action.

However,  Rule of Court, rule 3.1150, subdivision (c) states:

(c) Form of OSC and TRO The OSC and TRO must be stated separately, with the OSC stated first. The restraining language sought in an OSC and a TRO must be separately stated in the OSC and the TRO and may not be incorporated by reference. The OSC must describe the injunction to be sought at the hearing. The TRO must describe the activities to be enjoined pending the hearing. A proposed OSC must contain blank spaces for the time and manner of service on responding parties, the date on which the proof of service must be delivered to the court hearing the OSC, a briefing schedule, and, if applicable, the expiration date of the TRO.”

Here, the OSC is not stated first, the restraining language sought in the OSC is not stated separately in the OSC, the OSC does not describe the injunction, and the proposed OSC does not contain appropriate blank spaces as to service, proof of service, or a briefing schedule.

Additionally, the burden is on plaintiff to show all elements necessary to support issuance of the injunction.  (O’Connell v. Superior Court (2006) 141 Cal.App.4th 1452, 1481.)  “A superior court must evaluate two interrelated factors when ruling on a request for a preliminary injunction: (1) the likelihood that the plaintiff will prevail on the merits at trial and (2) the interim harm that the plaintiff would be likely to sustain if the injunction were denied as compared to the harm the defendant would be likely to suffer if the preliminary injunction were issued.  (Smith v. Adventist Health System/West (2010) 182 Cal.App.4th 729, 749.)  The court employs a more probable than not standard.  (Robbins v. Superior Court (1985) 38 Cal.3d 199, 206.)

The ex parte application fails to demonstrate success on the merits of the judicial foreclosure or accounting of rents causes of action. The existence of a judgment lien by this Plaintiff, without more, is insufficient as to establishing probable validity on a judicial foreclosure action.

Therefore, the Court denies the application.

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:                People of the State of California vs. Gonzalez, Benjamin Joseph

Case No.:  PCU328243

Date:           February 24, 2026

Time:           8:30 A.M. 

Dept.           19-The Honorable Russell P. Burke

Motion:      Petition to Challenge Determination of Disqualified Person under Penal Code section 26206

Tentative Ruling: To deny the petition

Facts

On or about January 12, 2023, a Domestic Violence Prevention Temporary Restraining Order (DVRO) was issued restraining the defendant. One condition of the DVRO was that the defendant was to relinquish his firearm. On February 3, 2023, the DVRO was extended and an expiration date was set on March 3, 2023.

On or about August 24, 2023, the defendant was issued a standard concealed carry permit with license number DDRAHL6CI.

On or about August 24, 2025, the defendant applied to have his concealed carry permit renewed and it was denied on or about November 13, 2025, due to the DVRO that was issued on January 12, 2023.

On November 13, 2025, the Tulare County Sheriff’s Department notified the defendant that his license to carry a concealed firearm renewal was denied.

On November 19, 2025, the defendant filed a BOF 1031 – (Department of Justice Request for Hearing to Challenge Disqualified Person Determination).

On January 23, 2026, the County of Tulare filed their opposition to the defendant’s disqualification challenge.

On February 19, 2026, the People filed a response to the People’s opposition. 

Authority and Analysis

Petitioner, the People of the state of California, bear the burden of showing by a preponderance of the evidence that the applicant is a disqualified person in accordance with Pen. Code § 26202 or 26195.

The People contend that the defendant is disqualified from maintaining a concealed carry weapon pursuant to Pen. Code § 26202, subd. (a)(3).

Pen. Code § 26202, subd.(a)(3) states:

(a) Unless a court makes a contrary determination pursuant to Section 26206, an applicant shall be deemed to be a disqualified person and cannot receive or renew a license pursuant to Section 26150, 26155, or 26170 if the applicant satisfies any one or more of the following:

…

(3) Has been subject to any restraining order, protective order, or other type of court order issued pursuant to the following statutory provisions, or any federal law or law of any other state that includes comparable elements of those statutory provisions, unless that order expired or was vacated or otherwise canceled more than five years prior to the licensing authority receiving the completed application, or that order expired or was vacated or otherwise canceled and the applicant did not receive notice and an opportunity to be heard before the order was issued:

(A) Section 646.91 or Part 3 (commencing with Section 6240) of Division 10 of the Family Code.

(B) Part 4 (commencing with Section 6300) of Division 10 of the Family Code.

(C) Sections 136.2 and 18100.

(D) Section 527.6, 527.8, or 527.85 of the Code of Civil Procedure.

(E) Section 213.5, 304, 362.4, 726.5, or 15657.03 of the Welfare and Institutions Code.

Here, the defendant was restrained by a DVRO issued pursuant to Family Code § 6240. The Court notes that based off the date of the DVRO and the initial issuance of the defendant’s concealed carry license, the defendant should have never been issued a concealed carry permit.

Therefore, the Court denies the petition.

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:                FARIAS-GAITAN, JOSE vs. RICE, JANICE et al

Case No.:  PCU308085

Date:           February 24, 2026

Time:           8:30 A.M. 

Dept.           19-The Honorable Russell P. Burke

Motion:      Plaintiff’s Ex Parte Application for Motion for Relief from Dismissal and Leave to File Amended Complaint Dismiss for Failure to File Amended Complaint

Tentative Ruling: To grant the application; to order the second amended complaint filed no later than five (5) days from the date of this hearing; to impose sanctions of $410 against Plaintiff’s counsel due no later than ten (10) days from the date of this hearing.

Facts

On January 27, 2026, this Court sustained Defendant Jerry Walker’s demurrer without leave to amend as to the first and fourth causes of action and sustained Defendant’s demurrer with leave to amend as to the second and third causes of action. The ruling provided ten (10) days to file an amended complaint. Counsel for Plaintiff was present at the hearing.

On February 9, 2026, Defendant Jerry Walker filed an ex parte application for dismissal based on the failure of Plaintiff to file an amended complaint within 10 days after the demurrer hearing. On February 11, 2025, the Court granted the motion and dismissed this Defendant.

On February 23, 2026, Plaintiff filed this motion for relief from the dismissal and for leave to file a second amended complaint via this ex parte application. Plaintiff’s counsel has filed a declaration attesting to neglect and inadvertence as to the failure to file the amended complaint.

Authority and Analysis

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

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

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

“…Notwithstanding any other requirements of this section, the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any (1) resulting default entered by the clerk against his or her client, and which will result in entry of a default judgment, or (2) resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.” (Code Civ. Proc. § 473(b))

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

Counsel for Plaintiff has submitted a sworn declaration attesting to the failure to file an amended complaint. “Relief is mandatory when a complying affidavit is filed, even if the attorney's neglect was inexcusable.” (SJP Limited Partnership v. City of Los Angeles (2006) 136 Cal.App.4th 511, 516-517; Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 225.)

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

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

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

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

Therefore, the motion is granted.

Reasonable attorney’s fees and costs are mandatory when granting a motion for relief from default based on an attorney’s affidavit of fault. (Code Civ. Proc.  § 473(b) [“The court shall, whenever relief is granted based on an attorney’s affidavit of fault, direct the attorney to pay reasonable compensatory legal fees and costs to opposing counsel or parties.”].)

The Court will impose fees of $410 payable by counsel for Plaintiff, consisting of 1 hour as to the ex parte motion filed by Defendant on February 9, 2026 and the $60 filing fee for the same. Sanctions are due 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.

Examiner Notes for Probate Matters Calendared

• Visalia Division 
• South County Justice Center Division