Tentative Rulings

The Tentative Rulings for Tuesday, August 5, 2025, are:

Re:                Escobar, Jose Luis Martinez vs. Sierra Land and Cattle Company, LLC

Case No.:   VCU293343

Date:           August 5, 2025

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:      Hearing re: Final Compliance of Distribution of Settlement

Tentative Ruling: To inquire as to distribution of the settlement.

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:           August 5, 2025

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     Defendant’s Motion to Compel Arbitration

Tentative Ruling: To deny the motion.

Background Facts

Plaintiff filed this class action complaint for various violations of the Labor Code and Business and Professions Code section 17200.

Defendant seeks to compel arbitration of the claims via verified petition on an individual basis pursuant an arbitration agreement contained within Defendant’s employee handbook.

Facts – Agreement to Arbitrate

The petition to compel arbitration and exhibits are verified by Kaweah’s authorized agent, executive, and representative Jeremy Marroquin.

The petition states Plaintiff was employed by Defendant as a general laborer. (Petition ¶3.) The petition further states “John Huerta signed the Kaweah Container Employee Handbook, which contains an arbitration provision and class action waiver.” (Petition ¶4 -  Ex. A) Further, that “The Employee Handbook Acknowledgement Form signed by John Huerta, right above his signature, states "I agree to follow the dispute resolution provision, including the final and binding arbitration procedure and class action waivers, to resolve any dispute I may have with the Company.” (Petition ¶4 – Ex. A)

The last page of the Handbook contains an acknowledgment form where it appears Plaintiff has printed his name, signed his name and dated the document on August 3, 2023. (Ex. A.)

In opposition, Plaintiff’s declaration states “I do not recall ever being asked to sign any documents containing an agreement to arbitrate, and I do not believe that I ever signed any documents containing an agreement to arbitrate… I also do not recall being provided with an Employee Handbook and I did not sign any acknowledgement of any employee handbook.” (Declaration of Plaintiff ¶3.)

Authority and Analysis – Agreement to Arbitrate

“On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists, unless it determines that: (a) The right to compel arbitration has been waived by the petitioner; or (b) Grounds exist for the revocation of the agreement.”  (Code Civ. Proc. § 1281.2(a), (b).) (emphasis added.) The motion to compel arbitration requires the facts are to be proven by affidavit or declaration and documentary evidence with oral testimony taken only in the court’s discretion. (Code Civ. Proc., §1290.2; Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 413–414.) The motion must set forth the provisions of the written agreement and the arbitration clause verbatim, or such provisions must be attached and incorporated by reference. (Cal. Rules of Court, rule 3.1330; see Condee v. Longwood Mgmt. Corp. (2001) 88 Cal.App.4th 215, 218.)

Absent a challenge by the nonmoving party, this burden is met by simply providing a copy of the arbitration agreement.  (Baker v. Italian Maple Holdings, LLC (2017) 13 Cal. App. 5th 1152, 1160; Cal. Rules of Court, rule 3.1330.)  “For purposes of a petition to compel arbitration, it is not necessary to follow the normal procedures of document authentication.” (Condee, supra, 88 Cal.App.4th at 218; Sprunk v. Prisma LLC (2017) 14 Cal.App.5th 785, 793.)  

However, when the opposing party disputes the agreement, then the opposing party must provide evidence to challenge its authenticity.  (Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 165.) 

Under California law, "[t]he burden of persuasion is always on the moving party to prove the existence of an arbitration agreement with the opposing party by a preponderance of the evidence …." (Gamboa, supra, 72 Cal.App.5th at 164-165.)

"However, the burden of production may shift in a three-step process." (Gamboa, supra, 72 Cal.App.5th at. 165.)

"First, the moving party bears the burden of producing 'prima facie evidence of a written agreement to arbitrate the controversy.' [Citation.]" (Gamboa, supra, 72 Cal.App.5th at p. 165.) "The moving party 'can meet its initial burden by attaching to the [motion or] petition a copy of the arbitration agreement purporting to bear the [opposing party's] signature.' [Citation.]" (Id.) "For this step, 'it is not necessary to follow the normal procedures of document authentication.' [Citation.]” (Id.)

Here, Defendant has provided the Acknowledgement of the Handbook containing the arbitration provision. This is sufficient under the first step noted above.

"If the moving party meets its initial prima facie burden and the opposing party disputes the agreement, then in the second step, the opposing party bears the burden of producing evidence to challenge the authenticity of the agreement." (Gamboa, supra, 72 Cal.App.5th at 165.) “The opposing party can do this in several ways. For example, the opposing party may testify under oath or declare under penalty of perjury that the party never saw or does not remember seeing the agreement, or that the party never signed or does not remember signing the agreement.” (Id.)

In Gamboa, the Court of Appeal found that the plaintiff “met her burden on the second step by filing an opposing declaration, saying she did not recall the agreement and would not have signed it if she had been aware of it: ‘I do not remember these documents at all .... Had I been made aware of the existence of an arbitration agreement, and been explained its provisions, I would not have signed any such documents.’” (Gamboa, supra, 72 Cal.App.5th at 167.)

However, under Ramirez v. Golden Queen Mining Co., LLC (2024) 102 Cal.App.5th 821, Plaintiff’s declaration is insufficient, as Plaintiff fails to deny the signature presented is their own:

“There is a split of authority among the Courts of Appeal as to what constitutes sufficient evidence to create a factual dispute about the authenticity of a handwritten signature on a document agreeing to arbitration. (Compare Iyere v. Wise Auto Group (2023) 87 Cal.App.5th 747, 757–758, review den. Apr. 26, 2023, S278817 with Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158, 164–165) We join Iyere in concluding that an individual is capable of recognizing his or her handwritten signature and if that individual does not deny a handwritten signature is his or her own, that person's failure to remember signing the document does not create a factual dispute about the signature's authenticity. (Iyere, supra, at p. 757.)” (Id. at 825.)

In Ramirez, the appellate court found that the employer had met the initial burden via a declaration that asserted the employee was employed, that the declarant was the custodian of records, that the personnel file containing employee documents was kept in the regular course and scope, that a personnel file was maintained for the employee, that the employee signed the agreement and that true and correct copies were attached to the declaration. (Id. at 831.)

Under Ramirez, Plaintiff’s failure to deny the signature was theirs is fatal. The Ramirez court noted that “Ramirez's declaration stated (1) he did “not recall ever being presented with an arbitration agreement,” (2) he did “not recall ever signing an arbitration agreement,” (3) no one informed him about an arbitration agreement, informed him of a desire that he sign an arbitration agreement, or explained to him what an arbitration agreement was, and (4) if someone had explained to him what an arbitration agreement was, he would not sign it.” (Id. at 836.) The court, therefore, found the declaration insufficient to challenge the authenticity, stating “His declaration does not assert the signature on that document is not his and, furthermore, does not even state that he cannot recall signing that particular document.  Consequently, we conclude Ramirez, like the plaintiffs in Iyere, has offered no admissible evidence creating a dispute as to the authenticity of the handwritten signature on the acknowledgement.” (Id. at 836-837.)

Therefore, the Court finds an agreement to arbitrate has been formed based on the handbook acknowledgment form.

Facts – FAA Application and the Transportation Worker Exemption

The Agreement states arbitration shall be conducted under the provisions of the Federal Arbitration Act (Ex. A.)

Plaintiff’s declaration notes “I worked for Defendant as a forklift operator in Defendant's shipping department from August through September of 2023 . Defendant produces cardboard boxes and ships them to various locations all across the Western U.S. My job duties consisted of removing boxes from the line, stacking the product onto pallets, and then transporting them to a different area in the warehouse. The pallets were then prepared to be shipped to their final destinations across the Western U.S. The trucks leaving the warehouse would deliver the boxes to Defendant's customers at various locations throughout the Western U.S., a substantial amount of which were out of state locations. I was aware that many of the shipments were going out of state based on the labels that I would frequently see.” (Declaration of Plaintiff ¶2.)

Authority and Analysis – FAA Application and the Transportation Worker Exemption

The party asserting that the Federal Arbitration Act (“FAA”) applies to an agreement has “the burden to demonstrate FAA coverage by declarations and other evidence.” (Hoover v. American Income Life Ins. Co. (2012) 206 Cal.App.4th 1193, 1207.) By expressly designated the FAA as the law governing the arbitration, the parties “adopted the FAA – all of it – to govern their arbitration.” (Rodriguez v. American Technologies, Inc. (2006) 136 Cal.App.4th 1110, 1122; Victrola 89, LLC v. Jaman Properties 8 LLC (2020) 46 Cal.App.5th 337, 355.) The arbitration term expressly states that the FAA shall apply. Additionally, Plaintiff’s declaration appears to establish Defendant is involved in interstate commerce. Further, Plaintiff’s argument that Plaintiff is exempt from the application of the FAA admits the FAA applies.

Section 1 of the FAA exempts from its coverage "contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce." (9 U.S.C. §1.) The exemption applies to only to transportation workers engaged in interstate or foreign commerce. (Bissonnette v. LePage Bakeries Park St., LLC (2024) 601 U.S. 246, 252-253.) A transportation worker is defined as “…one who is actively engaged in the transportation of good across borders via the channels of foreign or interstate commerce." (Id. at 256 [internal citations omitted].) The worker "…must at least play a direct and necessary role in the free flow of goods across borders." (Id.)

"A transportation worker need not work in the transportation industry to fall within the exemption from the FAA provided by §1 of the Act." (Id.) Conversely, not every worker who works in the transportation industry is an exempt transportation   worker. (Southwest Airlines Co. v. Saxon (2022) 596 U.S. 450, 460.) The focus for purposes of the exemption is not the industry the worker's employer is engaged in, but instead the individual worker's job duties. (Bissonnette, supra, 610 U.S. at 256.)

Further, a worker does not have to personally transport goods across state lines to qualify as a transportation worker. (Saxon, supra, 596 U.S. at 458-459.)

In Saxon, the plaintiff was a ramp supervisor who trained and supervised teams of ramp agents who physically loaded and unloaded cargo on and off airplanes that travel across the county. (Id.) The plaintiff declared that she "frequently" loaded and unloaded cargo alongside the ramp agents. (Id.) The Supreme Court held that workers who frequently load and unload cargo to and from vehicles that travel in interstate commerce are "transportation workers" under the FAA exemption. (Id. at 456.)

In Ortiz v. Randstad Inhouse Services, LLC (9th Cir. 2024) 95 F.4th 1152, the plaintiff worked at a warehouse that received products from foreign shippers and then prepared them for further distribution across state lines. (Id. at 1157-1158.) Ortiz's job was to transport packages to different areas of the warehouse and to help prepare the packages for shipment, all within the warehouse. (Id. at 1158.)

The Ninth Circuit concluded that the plaintiff in Ortiz was a transportation worker in interstate commerce, noting that his "job description met all three benchmarks laid out in Saxon. Both Ortiz and Saxon fulfilled an admittedly small but nevertheless 'direct and necessary' role in the interstate commerce of goods: Saxon ensured that baggage would reach its final destination by taking it on and off planes, while Ortiz ensured that goods would reach their final destination by processing and storing them while they awaited further interstate transport." (Id. at 1162.)

The Ninth Circuit continued:

"Both were also 'actively engaged' and 'intimately involved with' transportation: Saxon handled goods as they journeyed from terminal to plane, plane to plane, or plane to terminal, while Ortiz handled them as they went through the process of entering, temporarily occupying, and subsequently leaving the warehouse--a necessary step in their ongoing interstate journey to their final destination. [Citation.] Both were actively engaged in the interstate commerce of goods. If Saxon is an exempt transportation worker, Ortiz is, too." (Id.)

The Court compares the transporting of goods in interstate commerce as in Ortiz and Saxon with the work related to the manufacture or production of products here. In both Ortiz and Saxon, the exempt workers appeared to take goods in the stream and move them through their journey in interstate commerce. Although the products produced at issue here appear to be place into the stream of interstate commerce, Plaintiff did not play a necessary part in facilitating “continued movement” in interstate commerce akin to Ortiz and Saxon. Therefore, the Court does not find the transportation exception applies.

Facts – Scope of Agreement

The arbitration section of the Handbook states it applies to “... ANY AND ALL DISPUTES BETWEEN YOU AND THE COMPANY” It also states that “Class action lawsuits, class-wide arbitration, and combining individual proceedings without the consent of all parties, shall not be allowed.” The acknowledgement form further states “”I agree to follow the dispute resolution provision, including the final and binding arbitration procedure and class action waivers, to resolve any dispute I may have with the Company.”

Authority and Analysis – Scope of Agreement

The application to any and all disputes includes the claim Plaintiff has brought in this complaint.

Authority and Analysis – Class Action Waiver

As the FAA applies, the class action waiver is enforceable. (Viking River Cruises v. Moriana (2022) 596 U.S. 639, 651 ["'a party may not be compelled under the FAA to submit to class arbitration unless there is a contractual basis for concluding that the party agreed to do so'"]; AT&T Mobility LLC v. Concepcion (2011) 563 U.S. 333, 352 [holding class action waivers are enforceable under FAA and California rule to contrary preempted].)

Because the FAA applies, Gentry v. Superior Court (2007) 42 Cal.4th 443 is inapplicable. Therefore, absent an applicable defense to contract formation, the Court finds the waiver valid.

Authority and Analysis – Labor Code sections 432.6 and 229

Labor Code section 432.6 does not invalidate an arbitration agreement otherwise enforceable under the FAA. Labor Code section 432.6 states, in part: "[n]othing in this section is intended to invalidate a written arbitration agreement that is otherwise enforceable under the Federal Arbitration Act…" (Labor Code §432.6(f)). Further, after rehearing, the Ninth Circuit concluded that "the FAA preempts AB 51 as whole to the extent it applies to arbitration agreements.".
(Chamber of Commerce of the United States v. Bonta (9th Cir. 2023) 62 F.4th 473, 490.)

Additionally, because the FAA applies, Labor Code section 229 is preempted. (Perry v. Thomas (1987) 482 U.S. 483, 491 [“"clear federal policy places § 2 of the Act in unmistakable conflict with California's § 229 requirement that litigants be provided a judicial forum for resolving wage disputes. Therefore, under the Supremacy Clause, the state statute must give way.”].)

Facts – Unconscionability

Plaintiff argues the acceptance of the term of arbitration was mandatory, as acknowledgment of the Handbook was a condition of employment. Further, that Plaintiff was not permitted to negotiate the documents or have them reviewed by counsel. Additionally, Plaintiff notes the arbitration terms are on page 46 of the handbook. Further, that the arbitration agreement fails to explain how to initiate arbitration, where the arbitration will take place and who will provide the arbitration services.

Additionally, Plaintiff argues the scope of the Agreement is overbroad, is indefinite in duration and lacks mutuality. Plaintiff argues the Agreement improperly waives a hearing under Berman, is overbroad as to its pre-dispute jury waiver, improperly waives PAGA claims and that severance cannot cure these defects.

Authority and Analysis -  Unconscionability

The inquiry into unconscionability consists of two prongs: A contract will be revoked if it is both procedurally unconscionable and substantively unconscionable. (See Armendariz, 24 Cal.4th 83, 102.) Procedural and substantive unconscionability need not be present to the same degree. “[T]he more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa.” (Id. at 114.)

Procedural Unconscionability

“‘Procedural unconscionability’ concerns the manner in which the contract was negotiated and the circumstances of the parties at that time.  It focuses on the factors of oppression and surprise. The oppression component arises from an inequality of bargaining power of the parties to the contract and an absence of real negotiation or a meaningful choice on the part of the weaker party. The component of surprise arises when the challenged terms are ‘hidden in a prolix printed form drafted by the party seeking to enforce them.’” (Nyulassy v. Lockheed Martin Corp. (2004) 120 Cal.App.4th 1267, 1281.)

Where a contract of adhesion includes the unequal bargaining power of contracting parties, with the weaker party’s inability to negotiate, this may indicate procedural unconscionability in the form of oppression. (See Thompson v. Toll Dublin, LLC (2008) 165 Cal.App.4th 1360, 1372.) “The term ‘adhesion contract’ refers to standardized contract forms offered to consumers of goods and services on essentially a ‘take it or leave it’ basis without affording the consumer a realistic opportunity to bargain and under such conditions that the consumer cannot obtain the desired product or services except by acquiescing in the form contract. [Citations.] The distinctive feature of a contract of adhesion is that the weaker party has no realistic choice as to its terms. [Citations.]” (Wheeler v. St. Joseph Hospital (1976) 63 Cal.App.3d 345, 356.) 

“[A] compulsory pre-dispute arbitration agreement is not rendered unenforceable just because it is required as a condition of employment or offered on a ‘take it or leave it’ basis.” (Lagatree v. Luce, Forward, Hamilton & Scripps (1999) 74 Cal.App.4th 1105, 1127.) However, the fact that an arbitration agreement is mandatory for employment may be a factor in determining that it is procedurally unconscionable. (See, e.g., Trivedi v. Curexo Technology Corp. (2010) 189 Cal.App.4th 387, 393; Armendariz, supra, 24 Cal.4th at pp. 114-115.) Where a contract of adhesion includes the unequal bargaining power of contracting parties, with the weaker party's inability to negotiate, this may indicate procedural unconscionability in the form of oppression. (See Thompson v. Toll Dublin, LLC (2008) 165 Cal.App.4th 1360, 1372.) 

Here, the Court agrees that the mandatory nature of the acknowledgement of the arbitration policy, its location on page 45 of 55 and Plaintiffs testimony as to the execution of the acknowledgment creates a medium degree of procedural unconscionability. The Court notes that the arbitration term is referenced just before signature on the acknowledgment of the handbook and on the acknowledgment on the application.

Substantive Unconscionability

“ ‘Substantive unconscionability’ focuses on the terms of the agreement and whether those terms are so one-sided as to ‘shock the conscience.’ ” (Kinney v. United HealthCare Services, Inc. (1999) 70 Cal.App.4th 1322, 1330 (citations omitted).) The paramount consideration in assessing [substantive] conscionability is mutuality. (Ibid.) Substantive unconscionability looks to overly harsh or one-sided results. (Armendariz, supra, 24 Cal.4th at 99.)

Armendariz sets forth elements of essential substantive fairness as follows:

(1) provide for a neutral arbitrator:

(2) provide for adequate discovery;

(3) require the arbitrator to issue a written decision that permits limited judicial review;

(4) provide for the same remedies that would otherwise be available to the employee in court;

(5) not require the employee to bear costs unique to arbitration; and

(6) provide a “modicum of bilaterality” between the employer and employee. (Armendariz, supra. 24 Cal 4th at 102-113, 117-118.)

Scope

Here, Plaintiff argues first that the scope of the arbitration is overbroad and therefore substantively unconscionable. The agreement indicates it applies to:

“…ANY AND ALL DISPUTES BETWEEN YOU AND THE COMPANY (OR ANY OFFICER, EMPLOYEE, OR AGENT (INCLUDING, BUT NOT LIMITED TO, CPA’s, ATTORNEYS, AND CONSULTANTS) OF THE COMPANY) WHICH OCCUR AT ANY TIME FOR ANY REASON [including but not limited to, any disputes resulting from, relating to, or arising out of the application for hire process or the interpretation of this agreement, the employment relationship, working conditions, working relationships or any other acts or events occurring between the parties in any way relating to the employment relationship (including but not limited to wrongful termination claims and employment discrimination/retaliation claims, etc.)]” (emphasis in original)

Plaintiff cites to  Cook v. University of Southern California (2024) 102 Cal.App.5th 312, where the court found agreement was overbroad in scope because it required arbitration of "all claims, whether or not arising out of Employee's University employment, remuneration or termination." (Id. at 321.)  The court found the term substantively unconscionable as it "required Cook to arbitrate claims that are unrelated to her employment with USC." (Id.)

The Cook court contrasted its clause with the one in  Roman v. Superior Court (2009) 172 Cal.App.4th 1462. In Roman, the clause at issue stated it applied to “all disputes and claims arising out of the submission of this application," and “all disputes . . . which might arise out of my employment with the company.” (Id. at 1467.)

Cook noted: "In Roman, unlike here, the arbitration clause in question was expressly limited to claims arising from the employee's job application and subsequent employment." (Cook, supra, 102 Cal.App.5th at 323.)

Therefore, the Court, finds the scope overbroad, as it applies, without limitations to arbitrate all claims, even those outside of employment.

Duration

Here, the arbitration term applies to disputes “WHICH OCCUR AT ANY TIME FOR ANY REASON.” Read together with the scope of the term above, the reasonable interpretation of this term is that it applies indefinitely. (See Cook, supra, 102 Cal.App.5th at 325 ["…the arbitration agreement was unconscionable because it survived indefinitely following Cook's termination from USC")

Mutuality

Here, Plaintiff argues the agreement lacks mutuality, as it requires Plaintiff to arbitrate all of its claims against various non-signatories to the handbook, but those parties are not similarly bound:

“…YOU AND THE COMPANY THEREBY AUTOMATICALLY ACKNOWLEDGE OUR AGREEMENT THAT ANY AND ALL DISPUTES BETWEEN YOU AND THE COMPANY (OR ANY OFFICER, EMPLOYEE, OR AGENT (INCLUDING, BUT NOT LIMITED TO, CPA’s, ATTORNEYS, AND CONSULTANTS) OF THE COMPANY)…”

Again, Cook examined this issue, noting “The agreement requires Cook to arbitrate any and all claims she may have against USC 'or any of its related entities, including but not limited to faculty practice plans, or its or their officers, trustees, administrators, employees or agents, in their capacity as such or otherwise.' However, the agreement does not require USC's 'related entities' to arbitrate their claims against Cook." (Cook, supra, 102 Cal.App.5th at 326.) The court concluded “This confers a benefit on USC and its broadly defined 'related entities' that is not mutually afforded to Cook.” (Id. at 327.)

Here, the Court finds the agreement only requires the Defendant to arbitrate its claims against Plaintiff, without a corresponding obligation for the Defendant’s officers, employees, or agents, including but not limited to CPA’s, attorneys and consultants. Therefore, like in Cook, the agreement lacks mutuality.

Jury Waiver

 "[I]t has always been understood without question that parties could eschew [a] jury trial . . . by agreeing to a method of resolving [a] controversy, such as arbitration, which does not invoke a judicial forum. . . . [P] . . . [P]  When parties agree to submit their disputes to arbitration they select a forum that is alternative to, and independent of, the judicial . . . ." ((Madden v. Kaiser Foundation Hospitals (1976) 17 Cal.3d 699, 713-714.)

In Lange v. Monster Energy Co. (2020) 46 Cal.App.5th 436, 451-453, the jury waiver provision stated:

“Without in any way detracting from the intent and obligation of the Company and you to arbitrate all disputes and controversies between them in accordance with the above provisions, in the event that any controversy or claim is determined in a court of law, both you and the Company hereby irrevocably waive any and all rights to trial by jury in any legal proceeding arising out of or relating to this Agreement, the breach thereof or  the employee's employment or other business relationship. Except as otherwise required by law, both you and the Company hereby specifically waive any claims for punitive or exemplary damages or for any other amounts awarded for the purposes of imposing a penalty….YOU AGREE TO WAIVE THE RIGHT TO A JURY AND TO SUBMIT DISPUTES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR YOUR EMPLOYMENT  TO NEUTRAL, BINDING ARBITRATION.”

The Lange court described the arguments as follows:

Lange contends that the agreement's jury trial waiver is substantively unconscionable. Monster responds that the jury waiver was an inherent component of the parties' agreement to resolve disputes through arbitration and is, therefore, not unconscionable.”

The Court resolved this, noting:

“Lange and Monster are not arguing about the same jury trial waiver. While Monster refers to a jury trial waiver inherent in arbitration agreements, Lange's argument is focused on the jury trial waiver preceded by the words “in the event that any controversy or claim is determined in a court of law.” And that jury trial waiver is not susceptible to any interpretation other than as an unconscionable predispute jury trial waiver. (See Grafton Partners v. Superior Court (2005) 36 Cal.4th 944, 961.)” (Id.)

The agreement at issue here states “The parties hereto understand and acknowledge that this arbitration agreement also separately constitutes a waiver of any and all right to a jury trial. If for any reason this arbitration agreement is ever declared unenforceable, then the parties agree that any and all above-described disputes shall be resolved by trial wherein the trier-of-fact shall be a Judge, rather than a jury.”

Here, the Court interprets the waiver at issue in line with Lange. While it appears that a waiver of a jury trial of claims compelled to arbitration is enforceable, when those claims are outside of arbitration (“determined in a court of law” under Lange; “if…this…agreement is ever declared unenforceable” here), Lange indicates the waiver is unconscionable predispute jury waiver. (See also
Dougherty v. Roseville Heritage Partners (2020) 47 Cal.App.5th 93, 107, [where the arbitration term attempted to waive the right to a jury trial for “any dispute for which arbitration was not allowed by law.”].)

As such, the Court finds this term substantially unconscionable.

Other Terms

The Court’s findings above preclude the necessity to examine the arguments as to waiver of a Berman hearing and the wholesale PAGA waiver terms.

Severance

Courts have discretion to sever unconscionable clauses and enforce the remainder of the contract. (Civ. Code, § 1670.5, subd. (a); Armendariz v. Foundation Health Psychcare Services, Inc., supra, 24 Cal.4th at p. 1244.)

There is a strong preference for courts to sever unconscionable provisions unless unconscionability permeates the entire agreement. (De Leon v. Pinnacle Property Management Services, LLC (2021) 72 Cal.App.5th 476, 492.) However, if "the central purpose of the contract is tainted with illegality, then the contract as a whole cannot be enforced." (Armendariz v. Foundation Health Psychcare Services, Inc., supra, 24 Cal.4th at p. 124.) But if "the illegality is collateral to the main purpose of the contract, and the illegal provision can be extirpated from the contract by means of severance or restriction, then such severance and restriction are appropriate." (Id.)

Here, the agreement does not expressly provide for severance, stating: “If for any reason this arbitration agreement is ever declared unenforceable, then the parties agree that any and all above-described disputes shall be resolved by trial wherein the trier-of-fact shall be a Judge, rather than a jury.”

 Even if a severance clause was expressly stated, the Court finds it cannot cure the overbreadth of the scope of the arbitration term, the lack of mutuality, the infinite duration or the jury waiver via severance. “An arbitration agreement can be considered permeated by unconscionability if it contains more than one unlawful provision . . . Such multiple defects indicate a systematic effort to impose arbitration not simply as an alternative to litigation, but as an inferior forum that works to the employer's advantage." (Dougherty, supra, 47 Cal.App.5th at 107)

The Court having found some procedural unconscionability, finds sufficient substantive unconscionability to prevent enforcement of the arbitration term. 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:                Gomez, Baltazar vs. Madpaim, Inc.

Case No.:   VCU313528

Date:           August 5, 2025

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     Plaintiff’s Motion Reconsideration, or alternatively, for Relief from Waiver of Jury Trial

Tentative Ruling: To grant the motion for relief from waiver. Jury fees are to be posted forthwith. The court sets further trial readiness conference on February 6, 2026 at 8:30 AM in Dept. 2. All pretrial documents (i.e. proposed jury instructions, special verdict forms, neural statements, motions in limine, witness lists and trial briefs) to be filed by the Monday before the readiness conference. Lead trial counsel must be present. No remote appearances for settlement conference, readiness conference or trial.

Facts

Plaintiff filed this wage and hour, discrimination, harassment, retaliation and wrongful termination action September 30, 2024. The filed complaint reflects the initial case management conference set for January 29, 2025, 8:30 am, Dept 2.

Plaintiff’s counsel attended the January 29, 2025 case management conference and the Court continued the conference to March 6, 2025, 8:30 am, Dept. 2. 

Counsel for both Plaintiff and Defendants attended the March 6, 2025 case management conference. The Court continued the conference to June 4, 2025.

Counsel for both Plaintiff and Defendants attended the June 4, 2025 case management conference. The Court set trial and found that the right to a jury trial was waived by both parties for failure to timely post jury fees.

On June 4, 2025, Plaintiffs counsel served on Defendants a Notice of Posting Jury Fees.  On June 5, 2025, the fees were rejected by the Court.

On June 16, 2025, Plaintiff filed this motion for relief from waiver of jury trial. Plaintiff notes each filed case management conference statement checked the box for a jury trial. Plaintiff further notes that the complaint references the request for a jury trial.

Plaintiff further notes Plaintiff had previously filed a complaint against Defendants other than those named in this case. However, before Plaintiff dismissed that case (without prejudice) on September 26, 2024, he timely paid the jury fees and demanded a jury trial.

As to the failure to post the fees, Plaintiff’s counsel states:

“The previous attorney on the same case, Ofelia Yerzinkyan, had been responsible for filing the CMC statement and ensuring with the office staff that the scheduling and calendaring of posting jury fees would notify me and other office staff of the paying of jury fees, and also to make sure they would have been paid on or prior to the first CMC in this case on January 29, 2025. In our first CMC statement filed on January 14, 2025, the attorney provided information that Plaintiff sought a jury trial of 5-7 days and provided dates for future jury trials. Based on previous experience with other associates’ cases the nonpayment of the jury fees by that date was an inadvertent or mistaken omission as we regularly calendar the precise date of jury fees associated with the first CMC statement and CMC date. The previous calendaring assistant who calendared the previous CMC and other filing deadlines also left my firm in early May 2025, and I had not had a previous instance where a jury fee was not timely paid and calendared in cases she was involved in with the attorney the case was assigned to. I have not been able to understand nor would I expect either the previous attorney or assistant to have any knowledge as to the oversight in calendaring and paying the jury fees in a timely manner, as we do in all cases that we seek a jury trial on the date that they are due. Our standard practice is to regularly calendar payment of jury fees to be paid before the submission of the first CMC statement, to make sure that we do not have any issue proceeding with scheduling a jury trial at the court’s first opportunity when the case is at issue on the first CMC. For reasons, I still cannot understand, our regular routine was not followed but I am ultimately the person responsible for overseeing the work of the attorneys and assistants in my firm on behalf of our clients.”

Plaintiff’s counsel states new facts as to reconsideration include the Court’s rejection of the jury fees on June 4, 2025 or June 5, 2025.

Plaintiff’s counsel further argues inadvertent waiver under Code of Civil Procedure section 473(b) based on a calendaring or scheduling error.

In opposition, Defendants argue no exception to waiver under Code of Civil Procedure section 631 is present here, that section 631 does not require Defendants to demonstrate prejudice to avoid relief from the waiver, and Plaintiff has not demonstrated good cause for relief. The Court notes no jury fee posted by Defendants.

Authority and Analysis

Code of Civil Procedure section 631 states, in relevant part, the following:

“(a) The right to a trial by jury as declared by Section 16 of Article I of the California Constitution shall be preserved to the parties inviolate. In civil cases, a jury may only be waived pursuant to subdivision (f).

(b) At least one party demanding a jury on each side of a civil case shall pay a nonrefundable fee of one hundred fifty dollars ($150), unless the fee has been paid by another party on the same side of the case

(c) The fee described in subdivision (b) shall be due on or before the date scheduled for the initial case management conference in the action…

(f) A party waives trial by jury in any of the following ways:

(1) By failing to appear at the trial.

(2) By written consent filed with the clerk or judge.

(3) By oral consent, in open court, entered in the minutes.

(4) By failing to announce that a jury is required, at the time the cause is first set for trial, if it is set upon notice or stipulation, or within five days after notice of setting if it is set without notice or stipulation.

(5) By failing to timely pay the fee described in subdivision (b), unless another party on the same side of the case has paid that fee.

(6) By failing to deposit with the clerk or judge, at the beginning of the second and each succeeding day’s session, the sum provided in subdivision (e).

Here, the initial case management conference was January 29, 2025. By failing to pay the jury fee on or before that date, Plaintiff waived jury trial.

Nevertheless, under subsection (g) “The court may, in its discretion upon just terms, allow a trial by jury although there may have been a waiver of a trial by jury.”

The factors for the Court to consider are disputed by each side here. However, the California Supreme Court stated that ““[T]he primary consideration is … whether granting relief from waiver would result in any hardship to other parties or to the court, such as delay in rescheduling the trial for a jury or inconvenience to witnesses. But courts have also regularly considered other factors, including the timeliness of the request; whether the requester is willing to comply with applicable requirements for payment of jury fees; and the reasons supporting the request.” (TriCoast Builders, Inc. v. Fonnegra (2024) 15 Cal.5th 766, 779.)

Further, that “[w]hen a party that has timely given notice that it desires trial by jury then loses the jury right because of technical noncompliance with some element of statutory procedure—such as failure to pay jury fees at the right time or in the right amount—lack of hardship to the other parties or the court is generally controlling, absent other factors that weigh against relief.”  (Id. at 782.)

Further, that “Section 631(g) alleviates the harshness of this result by allowing courts to forgive a party's technical noncompliance when the party has fulfilled the core objective of the statute, which is to give timely notice that a jury is demanded. At least in the absence of countervailing factors, courts have generally granted such forgiveness where to do so would not result in hardship.” (Id. at 782-783)

The standard was summarized by the TriCoast opinion as follows:

“Must a trial court always grant relief from a jury waiver if proceeding with a jury would not cause hardship to other parties or to the trial court? We conclude that the answer is no; a trial court's discretion is not so constrained. The presence or absence of hardship is always a primary consideration, and it is often dispositive in cases where the litigant has given timely notice that it desires a jury trial and seeks relief from mere technical statutory waiver, such as failure to post the required jury fee at the correct time or in the correct amount. But a request for relief from jury waiver always calls for consideration of multiple factors in addition to hardship, including the timeliness of the request and the reasons supporting the request.” (Id. at 773-774.)

Plaintiff indicated a jury trial was desired via the complaint and case management conference statements. Here, although under section 631, jury waiver occurred at the time of the first case management conference, as Plaintiff failed to post fees, Plaintiff thereafter timely attempted to post fees and filed this motion for relief from waiver.

The granting of waiver is mitigated somewhat by the fact this appears to have occurred in another case under substantially similar circumstances. Additionally, the Court has set a court trial pursuant to its availability. Some hardship exists in rescheduling the trial to include a jury.

"In exercising such discretion, courts are mindful of the requirement 'to resolve doubts in interpreting the waiver provisions of section 631 in favor of a litigant's right to jury trial.'" (Tesoro del Valle Master Homeowners Assn. v. Griffin (2011) 200 Cal.App.4th 619, 638 [quoting Grafton Partners v. Superior Ct. (2005) 36 Cal.4th 944, 956].) Denial of a trial by jury to one constitutionally entitled thereto is "both reversible error and an act in excess of jurisdiction." (Olivia N. v. Nat'l Broad. Co. (1977) 74 Cal.App.3d 383, 389.)

Given the minimal hardship identified, the waiver’s technical nature as to the failure to post fees, the timeliness of the attempt to post fees upon the setting of the court trial, the Court grants 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:                Gomez, Jimmy vs. Madpaim, Inc.

Case No.:   VCU313531

Date:           August 5, 2025

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     Plaintiff’s Motion for Relief from Waiver of Jury Trial

Tentative Ruling: To grant the motion for relief from waiver.  Jury fees are to be posted forthwith. The court sets further trial readiness conference on February 6, 2026 at 8:30 AM in Dept. 2. All pretrial documents (i.e. proposed jury instructions, special verdict forms, neural statements, motions in limine, witness lists and trial briefs) to be filed by the Monday before the readiness conference. Lead trial counsel must be present. No remote appearances for settlement conference, readiness conference or trial.

Facts

Plaintiff filed this wage and hour, discrimination, harassment, retaliation and wrongful termination action September 30, 2024. The filed complaint reflects the initial case management conference set for January 29, 2025, 8:30 am, Dept 2.

Plaintiff’s counsel attended the January 29, 2025 case management conference and the Court continued the conference to March 6, 2025, 8:30 am, Dept. 2. 

Counsel for both Plaintiff and Defendants attended the March 6, 2025 case management conference. The Court continued the conference to June 4, 2025.

Counsel for both Plaintiff and Defendants attended the June 4, 2025 case management conference. The Court set trial and found that the right to a jury trial was waived by both parties for failure to timely post jury fees.

On June 4, 2025, Plaintiffs counsel served on Defendants a Notice of Posting Jury Fees.  On June 5, 2025, the fees were rejected by the Court.

On June 16, 2025, Plaintiff filed this motion for relief from waiver of jury trial. Plaintiff notes each filed case management conference statement checked the box for a jury trial. Plaintiff further notes that the complaint references the request for a jury trial.

Plaintiff further notes Plaintiff had previously filed a complaint against Defendants other than those named in this case. However, before Plaintiff dismissed that case (without prejudice) on September 26, 2024, he timely paid the jury fees and demanded a jury trial.

As to the failure to post the fees, Plaintiff’s counsel states:

“The previous attorney on the same case, Ofelia Yerzinkyan, had been responsible for filing the CMC statement and ensuring with the office staff that the scheduling and calendaring of posting jury fees would notify me and other office staff of the paying of jury fees, and also to make sure they would have been paid on or prior to the first CMC in this case on January 29, 2025. In our first CMC statement filed on January 14, 2025, the attorney provided information that Plaintiff sought a jury trial of 5-7 days and provided dates for future jury trials. Based on previous experience with other associates’ cases the nonpayment of the jury fees by that date was an inadvertent or mistaken omission as we regularly calendar the precise date of jury fees associated with the first CMC statement and CMC date. The previous calendaring assistant who calendared the previous CMC and other filing deadlines also left my firm in early May 2025, and I had not had a previous instance where a jury fee was not timely paid and calendared in cases she was involved in with the attorney the case was assigned to. I have not been able to understand nor would I expect either the previous attorney or assistant to have any knowledge as to the oversight in calendaring and paying the jury fees in a timely manner, as we do in all cases that we seek a jury trial on the date that they are due. Our standard practice is to regularly calendar payment of jury fees to be paid before the submission of the first CMC statement, to make sure that we do not have any issue proceeding with scheduling a jury trial at the court’s first opportunity when the case is at issue on the first CMC. For reasons, I still cannot understand, our regular routine was not followed but I am ultimately the person responsible for overseeing the work of the attorneys and assistants in my firm on behalf of our clients.”

Plaintiff’s counsel states new facts as to reconsideration include the Court’s rejection of the jury fees on June 4, 2025 or June 5, 2025.

Plaintiff’s counsel further argues inadvertent waiver under Code of Civil Procedure section 473(b) based on a calendaring or scheduling error.

In opposition, Defendants argue no exception to waiver under Code of Civil Procedure section 631 is present here, that section 631 does not require Defendants to demonstrate prejudice to avoid relief from the waiver, and Plaintiff has not demonstrated good cause for relief. The Court notes no jury fee posted by Defendants.

Authority and Analysis

Code of Civil Procedure section 631 states, in relevant part, the following:

“(a) The right to a trial by jury as declared by Section 16 of Article I of the California Constitution shall be preserved to the parties inviolate. In civil cases, a jury may only be waived pursuant to subdivision (f).

(b) At least one party demanding a jury on each side of a civil case shall pay a nonrefundable fee of one hundred fifty dollars ($150), unless the fee has been paid by another party on the same side of the case

(c) The fee described in subdivision (b) shall be due on or before the date scheduled for the initial case management conference in the action…

(f) A party waives trial by jury in any of the following ways:

(1) By failing to appear at the trial.

(2) By written consent filed with the clerk or judge.

(3) By oral consent, in open court, entered in the minutes.

(4) By failing to announce that a jury is required, at the time the cause is first set for trial, if it is set upon notice or stipulation, or within five days after notice of setting if it is set without notice or stipulation.

(5) By failing to timely pay the fee described in subdivision (b), unless another party on the same side of the case has paid that fee.

(6) By failing to deposit with the clerk or judge, at the beginning of the second and each succeeding day’s session, the sum provided in subdivision (e).

Here, the initial case management conference was January 29, 2025. By failing to pay the jury fee on or before that date, Plaintiff waived jury trial.

Nevertheless, under subsection (g) “The court may, in its discretion upon just terms, allow a trial by jury although there may have been a waiver of a trial by jury.”

The factors for the Court to consider are disputed by each side here. However, the California Supreme Court stated that ““[T]he primary consideration is … whether granting relief from waiver would result in any hardship to other parties or to the court, such as delay in rescheduling the trial for a jury or inconvenience to witnesses. But courts have also regularly considered other factors, including the timeliness of the request; whether the requester is willing to comply with applicable requirements for payment of jury fees; and the reasons supporting the request.” (TriCoast Builders, Inc. v. Fonnegra (2024) 15 Cal.5th 766, 779.)

Further, that “[w]hen a party that has timely given notice that it desires trial by jury then loses the jury right because of technical noncompliance with some element of statutory procedure—such as failure to pay jury fees at the right time or in the right amount—lack of hardship to the other parties or the court is generally controlling, absent other factors that weigh against relief.”  (Id. at 782.)

Further, that “Section 631(g) alleviates the harshness of this result by allowing courts to forgive a party's technical noncompliance when the party has fulfilled the core objective of the statute, which is to give timely notice that a jury is demanded. At least in the absence of countervailing factors, courts have generally granted such forgiveness where to do so would not result in hardship.” (Id. at 782-783)

The standard was summarized by the TriCoast opinion as follows:

“Must a trial court always grant relief from a jury waiver if proceeding with a jury would not cause hardship to other parties or to the trial court? We conclude that the answer is no; a trial court's discretion is not so constrained. The presence or absence of hardship is always a primary consideration, and it is often dispositive in cases where the litigant has given timely notice that it desires a jury trial and seeks relief from mere technical statutory waiver, such as failure to post the required jury fee at the correct time or in the correct amount. But a request for relief from jury waiver always calls for consideration of multiple factors in addition to hardship, including the timeliness of the request and the reasons supporting the request.” (Id. at 773-774.)

Plaintiff indicated a jury trial was desired via the complaint and case management conference statements. Here, although under section 631, jury waiver occurred at the time of the first case management conference, as Plaintiff failed to post fees, Plaintiff thereafter timely attempted to post fees and filed this motion for relief from waiver.

The granting of waiver is mitigated somewhat by the fact this appears to have occurred in another case under substantially similar circumstances. Additionally, the Court has set a court trial pursuant to its availability. Some hardship exists in rescheduling the trial to include a jury.

"In exercising such discretion, courts are mindful of the requirement 'to resolve doubts in interpreting the waiver provisions of section 631 in favor of a litigant's right to jury trial.'" (Tesoro del Valle Master Homeowners Assn. v. Griffin (2011) 200 Cal.App.4th 619, 638 [quoting Grafton Partners v. Superior Ct. (2005) 36 Cal.4th 944, 956].) Denial of a trial by jury to one constitutionally entitled thereto is "both reversible error and an act in excess of jurisdiction." (Olivia N. v. Nat'l Broad. Co. (1977) 74 Cal.App.3d 383, 389.)

Given the minimal hardship identified, the waiver’s technical nature as to the failure to post fees, the timeliness of the attempt to post fees upon the setting of the court trial, the Court grants 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:                Kevin C. Duncan and Sally J. Duncan vs. Olson-Kirsch, Luann

Case No.:   VCU318533

Date:           August 5, 2025

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     (1) Defendants’ Demurrer to First Amended Complaint (2) Cross-Complainants’ Demurrer to Answer to Cross-Complaint (3) Cross-Complainants’ Motion to Strike Answer to Cross-Complaint (4) Defendants/Cross-Complainants’ Motion to Determine Value

Tentative Ruling:

(1)  To sustain the demurrer to the third cause of action as to slander of title with leave to amend on the issue of malice and fifth cause of action on the basis of the statute of limitations with leave to amend as to specific facts involving delayed discovery; Plaintiff shall have ten (10) days to file an amended complaint as to these issues; to overrule the demurrer as to the remaining arguments on these causes of action and as to quiet title.

(2) To overrule the demurrer to the fourth affirmative defense; to sustain the demurrer as to affirmative defenses one through three and five through eight with leave to amend; Cross-Defendants shall have ten (10) days to file an amended answer to the cross-complaint as to alleging facts in support of the affirmative defenses;

(3) To grant the motion without leave to amend;

(4) To deny the motion.

(1) Defendants’ Demurrer to First Amended Complaint

This case was initiated February 26, 2025. At issue here is ownership of the real property located at 43000 Kaweah River Drive, Three Rivers, CA 93271 (the “Subject Property”). (FAC ¶1.) Plaintiffs Kevin C. Duncan and Sally J. Duncan, Trustees, or Any Successors in Trust, under the Duncan Family Trust Dated July 23, 2021 and Any Amendments Thereto filed this first amended complaint for partition, slander of title, quiet title, declaratory relief and cancellation of instrument related to the Subject Property against Defendants LuAnn Olson-Kirsch, Randell Kirsch, Bryn Kirsch, Taylor Kirsch, Quinn Kirsch, Aubrielle Kirsch, and Jeanne Case.

Plaintiffs allege they own an undivided one-half interest in the Subject Property via grant deed recorded on August 24, 2021. (FAC ¶2.) The litigation guarantee procured for this action showed the Plaintiffs with a 25% interest each and Defendants Jeanne Kirsch/Case with a 25% interest and Defendants Richard Kirsch and Jeanne Kirsch/Case with a 25% interest. (FAC ¶12.)

Defendants demurrer to the second, third and fifth causes of action on the basis of statute of limitations, that quiet title cannot be maintained in light of the partition claim and against owners of legal title, a lack of standing as to cancellation and that any defects in title were cured by subsequent deeds.

As to slander of title, it is alleged against “DEFENDANTS LUANN OLSON-KIRSCH AND RANDELL EVAN KIRSCH, INDIVIDUALLY AND AS TRUSTEES.” Plaintiffs allege that Defendants Luann and Randell’s transfer of a 20% interest on January 21, 2021 to a Fynn Kirsch as trustee was invalid because Fynn was a minor at the time. (FAC ¶23.) Further, that at an unknown time, Defendants Luann and Randell transferred a 20% interest to Quinn Kirsch, as trustee, who lacked mental capacity to fulfill the duties of a trustee. (FAC ¶¶25, 26.)

The amended complaint further alleges “That instead of working with the DUNCANS to fix the title issues with a competent attorney, the KIRSCH DEFENDANTS further clouded title with a correctory deed and a subsequent grant deed, see Attached as Exhibit “D.” For example, the first “correctory” deed purports to change previous ownership transfer and not just correct a deed.” (FAC ¶28.)

Plaintiffs indicate they were unaware the transfers were invalid until “they began investigating title issues, within the past two years.” (FAC ¶23.)

Plaintiffs allege damages in the form of “…immediate and direct financial harm by incurring legal  expenses necessary to remove the doubt cast by the deeds and to clear title to the Property.” (FAC ¶30.)

As to quiet title against all Defendants, it is note that “…as of 1982, Patricia Vestey Duncan and JEANNE VESTEY KIRSCH aka JEANNE VESTEY CASE each owned a fifty percent (50%) interest in the Subject Property according to the Subject Property’s title history.” (FAC ¶33.) The amended complaint alleges that each family intended to hold 50% interest in the Subject Property. (FAC ¶33.)

Additionally “That through a deed recorded on December 7, 1989, RICHARD KIRSCH AND JEANNE VESTEY KIRSCH as trustees granted themselves individually a twenty-five percent (25%) 17 interest and to Robert Alfred Kirsch and Randall Evan Kirsch a twelve and a half percent (12.5%) interest each in the Subject Property.” (FAC ¶34.) The amended complaint alleges further that “Subsequently, multiple deeds were recorded purporting to transfer interest from the Richard and Jeanne Vestey Kirsch Trust to others, but the trust no longer had any interest in the Subject Property.” (FAC ¶34.)

Further, that “on May 20, 1991, two correctory deeds were recorded purporting to correct previous deeds where the Richard and Jeanne Vestey Kirsch Trust would correct part of their interest, yet that interest had already been transferred to themselves individually…” (FAC ¶35.)

Plaintiffs “seek determination as of the August 24, 2021 deed…” (FAC ¶37.)

Finally, as to cancellation of instrument, Plaintiffs seek to cancel the deed described as follows:

“On January 22, 2021, Defendant THE KIRSCH FAMILY TRUST, DATED 2/20/2008, LUANN OLSON-KIRSCH AND RANDELL EVAN KIRSCH, TRUSTEES transferred a twenty percent (20%) interest (of the 50% interest) each to THE TAYLOR JOY KIRSCH LIVING TRUST DATED 1/20/2021, TAYLOR JOY KIRSCH, TRUSTEE; THE BRYN KNEALE KIRSCH LIVING TRUST DATED 1/20/2021, BRYN KNEALE KIRSCH, TRUSTEE; THE AUBRIELLE EDEN KIRSCH LIVING TRUST DATED 1/20/2021, AUBRIELLE EDEN KIRSCH, TRUSTEE; THE QUINN OLSON KIRSCH LIVING TRUST DATED 1/20/2021, QUINN OLSON KIRSCH, TRUSTEE; and THE FYNN KIRSCH LIVING TRUST DATED 1/20/21, FYNN STRIDER TOBIAS KING KIRSCH, TRUSTEE, via a Grant Deed recorded in the Office of the County Recorder, County of Tulare, on January 22, 2021 as Document Number 2021-0005444” (FAC ¶¶ 11, 43.)

Plaintiffs allege the deed is void or voidable because Defendants Luann and Randell “fraudulently transferred shares of interest in the Property to a minor trustee of a trust, when they transferred twenty percent (20%) of their interest to THE FYNN KIRSCH LIVING TRUST, DATED 1/20/21, FYNN STRIDER TOBIAS KING KIRSCH, TRUSTEE” and when Defendants Luann and Randell “fraudulently transferred shares of interest in the Property to a person lacking mental capacity who was also wrongfully appointed trustee of a living trust when they transferred twenty percent (20%) of their interest to THE QUINN OLSON KIRSCH LIVING TRUST DATED 1/20/2021, QUINN OLSON KIRSCH, TRUSTEE.” (FAC ¶¶45, 46.)

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.)

Statute of Limitations

Committee for Green Foothills v. Santa Clara County Bd. Of Supervisors (2010) 48 Cal.4^th 32, 42 states, “ ‘ “A demurrer based on a statute of limitations will not lie where the action may be, but is not necessarily, barred. [Citation.] In order for the bar . . . to be raised by demurrer, the defect must clearly and affirmatively appear on the face of the complaint; it is not enough that the complaint shows that the action may be barred. [Citation.]” [Citation.]’ [Citation.]”

As to slander of title and cancellation of instrument, Defendants argue that the January 22, 2021 deed commences the running of the statute of limitations for either three years as to slander of title under Code of Civil Procedure section 338(g) or four years as to cancellation of instrument under Civil Code section 3412 and Code of Civil Procedure section 343. Therefore, the filing of the action on February 22, 2025 is beyond both sets of limitations periods.

Further, Defendants argue that any delayed discovery of the deed at issue has been inadequately pled.

Plaintiff, in opposition, argues that Exhibit D to the first amended complaint alleges slander of title against two deeds recorded in 2024. Further, that in cases of fraud or mistake, the statute of limitations does not begin running until the discovery of the facts of the mistake.

As to slander of title, the Court agrees that multiple deeds appear challenged in this cause of action, including deeds recorded in 2024, as noted by Exhibit D. Demurrers do not lie as to only parts of causes of action, where some valid claim is alleged. (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119 [“A demurrer must dispose of an entire cause of action to be sustained.”].)

Therefore, the Court overrules the demurrer on the statute of limitations argument as to slander of title.

As to cancellation of written instrument, it appears specific to the January 22, 2021 deed. Here, Plaintiffs have inadequately pled delayed discovery.

“[A] cause of action accrues and the statute of limitations begins to run when the plaintiff has reason to suspect an injury and some wrongful cause, unless the plaintiff pleads and proves that a reasonable investigation at that time would not have revealed a factual basis for that particular cause of action. In that case, the statute of limitations for that cause of action will be tolled until such time as a reasonable investigation would have revealed its factual basis.” (Fox v. Ethicon Endo-Surgery, Inc. (2005) 35 Cal. 4th 797, 803.)

A plaintiff asserting delayed discovery, “must specifically plead facts to show (1) the time and manner of discovery and (2) the inability to have made earlier discovery despite reasonable diligence. In assessing the sufficiency of the allegations of delayed discovery, the court places the burden on the plaintiff to show diligence; conclusory allegations will not withstand demurrer.” (Fox, supra, 35 Cal. 4th at 808.)  This “delayed discovery rule” can excuse untimely compliance to protect those “blamelessly ignorant” of the accrual of their cause of action. (Leaf v. City of San Mateo (1980) 104 Cal. App. 3d 398, 408.) It is applied when the plaintiff neither had information of the circumstances sufficient to put a reasonable person on inquiry notice nor had the opportunity to obtain such knowledge from sources available upon reasonable investigation. (Bastian v. Cnty. of San Luis Obispo (1988) 199 Cal. App. 3d 520, 527.)

In assessing the sufficiency of the allegations of delayed discovery, the court places the burden on the plaintiff to “show diligence”; “conclusory allegations will not withstand demurrer.” (McKelvey v. Boeing North American, Inc. (1999) 74 Cal.App.4th 151, 160.) “Once the plaintiff has a suspicion of wrongdoing, and therefore an incentive to sue, she must decide whether to file suit or sit on her rights. So long as a suspicion exists, it is clear that the plaintiff must go find the facts; she cannot wait for the facts to find her.”  (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1111.) 

Here, the allegations in support of delayed discovery consist of “…Plaintiffs were unaware that these transfers were invalid until they began investigating title issues, within the past two years” and “that Plaintiff has promptly acted to rescind the Deed upon discovery that it is voidable within the past 24 months” (FAC ¶¶23, 48.) This is insufficient as to the requirements of the delayed discovery rule. Therefore, the Court sustains the demurrer to the fifth cause of action on the basis of the statute of limitations with leave to amend.

Finally, as the demurrer noted, there appears to be no set, specific limitations period for quiet title. "The Legislature has not established a specific statute of limitations for actions to quiet title. . . . Generally, the most likely time limits for a quiet title action are the five-year limitations period for adverse possession, the four-year limitations period for the cancellation of an instrument, or the three-year limitations period for claims based on fraud and mistake." (Salazar v. Thomas (2015) 236 Cal.App.4th 467, 476 - 477, footnotes omitted.) "'"[A]s a general rule, the statute of limitations [for a quiet title action] does not run against one in possession of land."' [Citation.] Part of the rationale for this special rule for quiet title actions is an unwillingness to convert a statute of limitations into a statute that works a forfeiture of property rights on the person holding the most obvious and important property right—namely, possession." (Id. at 477.)

For the same reasons as above as to slander of title, the Court overrules the demurrer, noting that multiple deeds, some recorded in 2024, are at issue.

Slander of Title

To establish slander of title, a plaintiff must show: "(1) a publication, (2) which is without privilege or justification, (3) which is false, and (4) which causes direct and immediate pecuniary loss." (Klem v. Access Insurance Co. (2017) 17 Cal.App.5th 595, 612-613)

Defendants note that “A publication is slanderous only if it ‘is reasonably understood to cast doubt upon the existence or extent of another’s interest in land.’ (Sumner Hill Homeowners’ Assn., Inc. v. Rio Mesa Holdings, LLC (2012) 205 Cal.App.4th 999, 1030)” and that an effect on the other 50% of title held does nothing to impede or otherwise affect the 50% held by Plaintiffs. However, “The main thrust of the cause of action is protection from injury to the salability of property” (Howard, supra, 113 Cal.App. 4d at 264.) The Court finds that transferring various interests as to the Defendants’ 50% does effect the ability to sell the Subject Property and the Court will not sustain the demurrer on this argument to this cause of action.

Additionally, the Court overrules the demurrer on the argument that Plaintiffs have not alleged the transfer effectuated by the January 2021 deed is invalid. Plaintiffs allege that both a transfer to Quinn Kirsch and Fynn Kirsch was invalid, for different reasons. (FAC ¶¶23-28.) Additionally, that the “corrective” deeds purported to change ownership interests and that Plaintiffs cannot obtain a litigation guarantee that matches the interests purported to be transferred and thereafter corrected. (FAC ¶28.) Therefore, the Court finds a sufficient pleading that the January 2021 deed is invalid.

However, an essential element of slander of title is malice: "It is essential however, to the maintenance of such an action that the party claiming to be aggrieved by an alleged slanderous disparagement of his title should show, among other things, not only that the statements complained of were false, but that they were maliciously made with the intent to defame and thereby disparage the title involved." (Howard v. Schaniel (1980) 113 Cal.App.3d 256, 263; see also Smith v. Commonwealth Land Title Ins. Co. (1986) 177 Cal.App.3d 625, 630-31 (demurrer sustained to cause of action for slander of title because plaintiff failed to allege malice by a title company); Hill v. Allan (1968) 259 Cal.App.2d 470, 490 (a false communication, by itself, does not indicate malice).)…"

Here, Plaintiffs allege a continuing slander of title via the 2021 deed and the corrective deeds following it. However, the Court finds no sufficient allegation as to malice. The statement that “That on information and belief LUANN AND RANDELL did this intentionally to muddy title and depreciate the value of the Subject Property” appears insufficient. Therefore, the Court sustains the demurrer as to this cause of action on the issue of actual malice.

Quiet Title

" 'A quiet title action seeks to declare the rights of the parties in realty....' " (Chao Fu, Inc. v. Chen (2012) 206 Cal.App.4th 48, 58.) " 'The object of the action is to finally settle and determine, as between the parties, all conflicting claims to the property in controversy, and to decree to each such interest or estate therein as he may be entitled to....' " (Id. at 59.)

"A cause of action to quiet title is clearly not a tort claim, and it does not seek to hold a defendant liable for damages. Rather, actions to quiet title, like true declaratory relief actions, are generally equitable in nature. A quiet title action is a statutory action that seeks to declare the rights of the parties in realty. The object of the action is to finally settle and determine, as between the parties, all conflicting claims to the property in controversy, and to decree to each such interest or estate therein as he may be entitled to. The purpose of a quiet title action is to determine any adverse claim to the property that the defendant may assert, and to declare and define any interest held by the defendant, so that the plaintiff may have a decree finally adjudicating the extent of his own interest in the property in controversy." (Weeden v. Hoffman (2021) 70 Cal.App.5th 269, 291 [cleaned up].)

Under this standard, quiet title appears appropriate as to a determination of interests in the property. The Court does not find the partition causes of action in either the amended complaint nor cross-complaint purely duplicative of quiet title. Given the pleading of the litigation guarantee issue by Plaintiffs, the Court finds adjudication of the quiet title issue may necessarily precede the adjudication of the partition claim. This is despite that both sides plead partition actions and it would appear that both sides concede that Plaintiffs and Cross-Complainants hold legal title to the Subject Property in percentages that aggregate to 100 percent.

Finally, on demurrer, the Court will not adjudicate the issue of whether subsequent deeds correct these issues and therefore clear any defects in title.

Leave to Amend

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.)

The Court sustains the demurrer to the third cause of action as to slander of title with leave to amend on the issue of malice and fifth cause of action on the basis of the statute of limitations with leave to amend as to specific facts involving delayed discovery.

(2) Cross-Complainants’ Demurrer to Answer to Cross-Complaint and (3) Cross-Complainants’ Motion to Strike Answer to Cross-Complaint

Facts Common to (2) and (3)

The verified cross-complaint filed in this matter by Cross-Complainants LuAnn Olson-Kirsch and Randell Evan Kirsch (“Cross-Complainants”)  seeks partition of the Subject Property at issue in the operative complaint.

Relevant here, Plaintiffs and Cross-Defendants Kevin C. Duncan and Sally J. Duncan, Trustees, or Any Successors in Trust, under the Duncan Family Trust Dated July 23, 2021 and Any Amendments Thereto filed a verified answer to the cross-complaint, as well as eight affirmative defenses.

The Court notes here no facts appear alleged as to each affirmative defense asserted.

Additionally, the answer to the cross-complaint appears to include Defendants Bryn Kirsch, Taylor Kirsch, Quinn Kirsch, Aubrielle Kirsch, and Jeanne Case (“Defendants”) as cross-complainants, despite that the cross-complaint was filed only by LuAnn Olson-Kirsch and Randell Evan Kirsch.

Cross-Complainants demurrer to the answer on the basis that each affirmative defense is either not an affirmative defense or fails to state facts sufficient to constitute a defense. Additionally, that the answer is uncertain.

In opposition, Cross-Defendants argue defectively pled defenses are permitted, that failure to state a cause of action can be pled in an answer at any time and that the filing of the demurrer and motion to strike is harassing.

(2) Demurrer - Authority and Analysis

The function of a demurrer is to test the sufficiency of a pleading by raising questions of law.  (Whitcomb v. County of Yolo (1977) 73 Cal.App.3d 698,702.) All presumptions are against the pleader and all doubts as to whether a cause of action is pled are resolved against the proponent of the pleading, since it is presumed that the pleading states the cause as favorably as possible.  (Richmond Development Agency v. Western Title Guarantee (1975) 48 Cal.App.3d 343,349.)

Code of Civil Procedure section 431.30(b) states that “[t]he answer to a complaint shall contain: (1) “the general or specific denial of the material allegations of the complaint controverted by the defendant; (2) A statement of any new matter constituting a defense.”

Code of Civil Procedure section 430.20(a) adds that a demurrer to an answer will lie when the answer does not state facts sufficient to constitute a defense. (Timberidge Enters. v. City of Santa Rosa (1978) 86 Cal.App.3d 873, 880.)

An affirmative defense must be pleaded with the same sufficient ultimate facts – and not “evidentiary” matter or “legal conclusions” - that a plaintiff would be required to set forth in a complaint.  (Youndall v. Kaufman (1921) 55 Cal.App.363, 368.) The answer must aver facts “as carefully and with as much detail as the facts which constitute the cause of action and which are alleged in the complaint.” (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 384.)

An affirmative defense set forth in an answer will lie when the facts alleged in that defense constitute “new matter,” i.e., facts relied on by the defendant that the plaintiff’s complaint has not already put at issue.  (State Farm Mutual Auto Ins. Co. v. Superior Court (1991) 228 Cal.App.3d 721, 725).  Where the text of an affirmative defense merely contradicts an essential allegation of the plaintiff’s complaint, the affirmative defense does not set forth facts that constitute “new matter” sufficient to sustain the affirmative defense, but only a traverse. (Id.) A new matter is one in which the defendant has the burden of proof. (Harris v. City of Santa Monica (2013) 56 Cal.4th 203, 239.)

Cross-Defendants’ opposition does not appear to address affirmative defenses one through three and five through eight, other than arguing they should be permitted to plead vague or defective affirmative defenses at this stage in the case. The Court, under the law set forth above, rejects this contention.

As to the fourth affirmative defense, failure to state a cause of action, the Court overrules the demurrer. Failure to state a cause of action is not a true affirmative defense, hence it would not appear to require the Defendant to plead additional facts. This objection is never waived, and it can be raised at any time, regardless of whether it is pleaded. (See Code Civ. Proc. §430.80; Walsh v. West Valley Mission Community College Dist (1998) 66 Cal.App.4th 1532, 1547.) Its inclusion in the answer is essentially harmless, even when, admittedly, the cross-complaint is verified and requires a verified answer with corresponding admissions or denials.

The Court does not find the filing of a demurrer, motion to strike or motion to determine value within a few weeks harassing conduct.

Therefore, the Court overrules the demurrer to the fourth affirmative defense.

The Court sustains the demurrer as to the remainder of the affirmative defenses, with leave to amend. 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.) Cross-Defendants shall have ten (10) days to file an amended answer to the cross-complaint that alleges sufficient facts in support of affirmative defenses one through three and five through eight.

(3) Motion to Strike Answer to Cross-Complaint

Additional Facts

As discussed briefly above, Cross-Complainants note the answer to the cross-complaint includes all Defendants as Cross-Complainants, but that Cross-Complainants expressly exclude Defendants Taylor Kirsch, Bryn Kirsch, Aubrielle Kirsch, Quinn Kirsch, and Jeanne Case, individually and as trustees, and these “Remaining Defendants” are not seeking declaratory relief by way of partition.

Additionally, Cross-Complainants note answer to the cross-complaint also erroneously lists Defendant Richard K. Kirsch, also not a cross-complainant.

Therefore, Cross-Complainants seek to strike:

Paragraph “0”, Page 2, Lines 8-13: “THE TAYLOR JOY KIRSCH LIVING TRUST DATED 1/20/2021, TAYLOR JOY KIRSCH, TRUSTEE; THE BRYN KNEALE KIRSCH LIVING TRUST DATED 1/20/2021, BRYN KNEALE KIRSCH, TRUSTEE; THE AUBRIELLE EDEN KIRSCH LIVING TRUST DATED 1/20/2021, AUBRIELLE EDEN KIRSCH, TRUSTEE; THE QUINN OLSON KIRSCH LIVING TRUST DATED 1/20/2021, QUINN OLSON KIRSCH, TRUSTEE; RICHARD K. KIRSCH; JEANNE VESTEY KIRSCH AKA JEANNE VESTEY CASE”

In opposition, Cross-Defendants argue the Court has discretion to deny the motion and that the cross-complaint does list the “Remaining Defendants” as “cross-complainants” on the first page of the document, stating:

“This is false. The caption of the Cross-Complaint states “LUANN OLSON-KIRSCH AND RANDELL IO EVAN KIRSCH INDIVIDUALLY AND AS TRUSTEES OF THE KIRSCH FAMILY TRUST, DATED 2/20/2008, TRUSTEES; THE TAYLOR JOY KIRSCH LIVING TRUST DATED 1/21/2021, TAYLOR JOY KIRSCH, TRUSTEE; THE BRYN KNEALE KIRSCH LIVING TRUST DATED 1/21/2021, BRYN KNEALE KIRSCH, TRUSTEE; THE AUBRIELLE EDEN KIRSCH LIVING TRUST DATED 1/21/2021, AUBRIELLE EDEN KIRSCH, TRUSTEE; THE QUINN OLSON KIRSCH LIVING TRUST DATED 1/21/2021, QUINN OLSON KIRSCH, TRUSTEE; and JEANNE VESTEY KIRSCH AKA JEANNE VESTEY CASE” as CrossComplainants. Further, they are all mentioned in the very first line of the Cross-Complaint.

Authority and Analysis

The court may, upon a motion, or at any time in its discretion, and upon terms it deems proper, strike any irrelevant, false, or improper matter inserted in any pleading. (Code Civ. Proc., § 436(a).) The court may also strike all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court. (Code Civ. Proc. § 436(b).) This provision is for “the striking of a pleading due to improprieties in its form or in the procedures pursuant to which it was filed.” (Ferraro v. Camarlinghi (2008) 161 Cal.App.4th 509, 528.) The grounds for moving to strike must appear on the face of the pleading or by way of judicial notice. (Code Civ. Proc § 437.) “When the defect which justifies striking a complaint is capable of cure, the court should allow leave to amend.” (Vaccaro v. Kaiman (1998) 63 Cal.App.4th 761, 768.)

The Court observes the confusion by Cross-Defendants appears to be, in part, by the statement at the top of the first page of the cross-complaint under the attorney contact information that states:

“Attorneys for Defendants and Cross-Complainants LuAnn Olson-Kirsch, Randell Kirsch, Bryn Kirsch, Taylor Kirsch, Quinn Kirsch, Aubrielle Kirsch, and Jeanne Case”

Viewed in isolation, this would suggest all listed persons are both defendants and cross-complainants. However, reviewing the remainder of the first few pages of the cross-complaint indicates that only LuAnn Olson-Kirsch and Randell Evan Kirsch are Cross-Complainants here. (Cross-Complaint 2:26-27; ¶3)

As such, the Court grants the motion to strike. The Court does not, at this point, believe there to be a reasonable possibility that amendment would cure this defect, as the answer to the cross-complaint appears to simply list more parties than are actual Cross-Complainants. The motion, therefore is granted without leave to amend.

(4) Defendants/Cross-Complainants’ Motion to Determine Value

Facts

As noted above, the real property that is the subject of this action is a single-family home located at 43000 Kaweah River Drive, Three Rivers, CA 93271 (the “Subject Property”).

Plaintiffs Kevin C. Duncan and Sally J. Duncan, trustees of the Duncan Family Trust dated July 23, 2021, (the “Duncans”) filed the operative first amended complaint against the Kirsches for partition by sale of the Subject Property, slander of title, and various other claims against Defendants LuAnn Olson-Kirsch, Randell Kirsch, Bryn Kirsch, Taylor Kirsch, Quinn Kirsch, Aubrielle Kirsch, and Jeanne Case

Cross-Complainants LuAnn Olson-Kirsch and Randell Evan Kirsch seek partition as to the Subject Property via cross-complaint, invoking a statutory right to a buyout of the Duncans’ interests in the Property under the Partition of Real Property Act (“PRPA”)

On June 30, 2025, Cross-Complainants move to (1) to appoint Mark Medellin as appraiser to determine the fair market value of the Subject Property (2) to assign the costs of appraisal equally between Plaintiffs and Defendants and set a deadline for their payment within 10 business days of the hearing on this Motion, (3) to set a hearing to determine the fair market value, or alternatively to order the Property to be sold, and (4) to send a buyout notice with a deadline for compliance—under Code of Civil Procedure sections 872.720, 872.810, 873.010, 874.316, 874.317, 874.318.

In support, counsel for Defendants/Cross-Complainants provides a declaration which traces the ownership interest of Cross-Complainants and the Plaintiffs/Cross-Defendants, indicating Cross-Complainants hold a 50% interest. That declaration includes a copy of the operative amended complaint, which contains Exhibit F, a right of first refusal discussing purchase of the Subject Property and a procedure for appraisal.

Further, a declaration of the proposed appraiser is provided, who indicates he was previously hired to appraise the Subject Property in 2023 and that his fee would be $600.

In opposition, Plaintiffs/Cross-Defendants argue that  Cross-Complainants LuAnn Olson-Kirsch and Randell Evan Kirsch and Plaintiffs/Cross-Defendants have all executed a right of first refusal (Exhibit F to First Amended Complaint) which overrides the statutory provisions cited in the motion, and that additionally a method of valuation is contained in the right of first refusal. Further, Plaintiffs/Cross-Defendants argue the cost of the appraisal therefore outweighs its evidentiary value.

Authority and Analysis

Code of Civil Procedure section 874.316(a)-(c) state the following:

“(a) Except as otherwise provided in subdivisions (b) and (c), the court shall determine the fair market value of the property by ordering an appraisal pursuant to subdivision (d).

(b) If all cotenants have agreed to the value of the property or to another method of valuation, the court shall adopt that value or the value produced by the agreed method of valuation.

(c) If the court determines that the evidentiary value of an appraisal is outweighed by the cost of the appraisal, the court, after an evidentiary hearing, shall determine the fair market value of the property and send notice to the parties of the value.”

Here, the right of first refusal found in Exhibit F to the operative complaint appears to provide an agreed method of valuation with respect to appraisal, thereby invoking subdivision (b) and restricting the Court’s ability to order an appraisal or make a further determination as to the value of the appraisal.

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:                 Galvizo, Maylene vs. Cortez, Maria Estella

Case No.:   VCU306227

Date:            August 5, 2025

Time:            8:30 A.M. 

Dept.            2-The Honorable Bret D. Hillman

Motion:      Notice of Case Status

Tentative Ruling: To set a case management conference on September 5, 2025, at 8:30 AM in Dept. 2.

Facts and Analysis

In this matter, a notice of conditional settlement was filed, indicating that the terms of the settlement would be completed no later than October 31, 2025.

On July 3, 2025, Plaintiff’s counsel filed a notice of case status hearing and declaration seeking to vacate the notice of conditional settlement, stating:     

4. The reason why the case was a tentative resolution is because there were inadequate amounts of available insurance coverage under defendant's policy to adequately compensate all three claimants in this matter, Miguel Ochoa, Daniel Fuentes, and plaintiff, Maylene Galvizo.

5. Plaintiff's counsel requested defendant complete the attached Declaration of No Assets or Additional Insurance so we could finalize the settlement.

6. On May 8, 2025, plaintiff's counsel reached out to defendant's counsel Matthew Jaime, Esq ., and Tommy Lininger, Esq ., to inquire about the status of completing the Declaration.

7. On June 2, 2025, plaintiff's counsel again reached out to Matthew Jaime, Esq ., and Tommy Lininger, Esq., to inquire about them executing the attached Declaration of No Additional Assets or Insurance.

8. On June 2, 2025, plaintiff left a message for defendant's counsel requesting a follow-up all. 9. In the meantime, plaintiff has also requested production of billing records from claimant Miguel Ochoa, who's represented by the Grossman Law Offices. These requests, on numerous occasions, have gone unanswered.

10. As such plaintiff has been unable to consummate a settlement in this matter and therefore, no settlement has been reached.” (Declaration of Nunes ¶¶4-10.)

As the case has not been dismissed and based on the above, the Court vacates the notice of conditional settlement and sets a case management conference, pursuant to Code of Civil Procedure sections 128 and 473(b) on September 5, 2025, at 8:30 AM in 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 and service by the clerk will constitute notice of the order.

Re:                Davis, Amanda R vs. Champion Home Builders, Inc.

Case No.:   VCU298623

Date:            August 5, 2025

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     Plaintiff’s Motion to Withdraw from Arbitration and Reinstate Previously Dismissed Claims

Tentative Ruling: To grant the motion as to the withdrawal from arbitration; to deny the motion as to the reinstatement of the previously dismissed claims. To set a Case Management Conference on August 26, 2025 at 8:30 AM in Dept. 2 to set the matter for trial as to the remaining claims. The parties are ordered to file updated CMC statements.

Facts

Plaintiff initially filed this matter as a class action for various violations of the Labor Code. Plaintiff thereafter amended the complaint to add a cause of action under PAGA.

After Defendant’s counsel presented an arbitration agreement alleged to have been signed by Plaintiff and pursuant to Plaintiff’s application, the Court dismissed, without prejudice, the individual Labor Code claims and class wide claims, leaving only the PAGA claim. On December 2, 2024, the parties stipulated to stay the proceedings pending completion of arbitration.

On December 5, 2024, Plaintiff’s PAGA claims were submitted to arbitration, with the Court staying the case.

On April 15, 2025, JAMS issued an invoice indicating that Defendant’s counsel, Littler Mendelson, owed $43,500, indicating “Payment is due upon receipt.”

On May 20, 2025, Plaintiff’s counsel emailed JAMS and Defense Counsel to confirm whether Defendants had paid the fees from the April 15, 2025, invoice by the applicable deadline.

JAMS confirmed that Defendants did not pay the invoice by that deadline.

Plaintiff seeks to withdraw the matter from arbitration and “reinstate” the claims previously, voluntarily dismissed.

In opposition, Defendants argue Hernandez v. Sohnen Enterprises, Inc. (2024) 102 Cal.App.5th 222 indicates sections 1281.97 and 1281.98 are preempted and that the delay in payment, if any, was not willful or prejudicial.

Authority and Analysis

Split of Authority as to Preemption

Hernandez v. Sohnen Enterprises, Inc. (2024) 102 Cal.App.5th 222, 242 supports the argument that the FAA precludes application of section 1281.97. However Keeton v. Tesla, Inc. (2024) 103 Cal.App.5th 26, 37, fn. 5 recognized the federal courts are split on this issue, before noting the recent ruling in Hernandez.

The Court notes a petition for review was granted in Hernandez, noting the opposite decision was reached in Hohenshelt v. Superior Court (2024) 99 Cal.App.5th 1319, 1325, which held “The question of whether section 1281.98, as well as sections 1281.97 and 1281.99, are preempted by the FAA was addressed and answered in Gallo [v. Wood Ranch USA, Inc. (2022) 81 Cal.App.5th 621], and followed thereafter by other courts.”

Here, the Court will exercise its discretion and follow Hohenshelt as opposed to Hernandez, noting “Gallo held these state laws are not preempted “because the procedures they prescribe further—rather than frustrate—the objectives of the FAA to honor the parties' intent to arbitrate and to preserve arbitration as a speedy and effective alternative forum for resolving disputes.” (Gallo, supra, 81 Cal.App.5th at p. 630.)” (Hohenshelt, supra, 99 Cal.App.5th at 1325-1326.) (See also
(Sanders v. Superior Court (May 6, 2025, No. B340707) ___Cal.App.5th___ [2025 Cal. App. LEXIS 294, at *21-*31].)

Code of Civil Procedure section 1281.97

Under Code of Civil Procedure section 1281.97, subdivision (a), in an employment or consumer arbitration that requires, either expressly or through application of state or federal law or the rules of the arbitration provider, the drafting party to pay certain fees and costs before the arbitration can proceed, if the fees or costs to initiate an arbitration proceeding are not paid within 30 days after the due date the drafting party is in material breach of the arbitration agreement, is in default of the arbitration, and waives its right to compel arbitration under Section 1281.2.  (Code Civ. Proc. § 1281.97, subd. (a)(1), (b).)

Additionally section 1281.97(a)(2) states:

“(2) After an employee or consumer meets the filing requirements necessary to initiate an arbitration, the arbitration provider shall immediately provide an invoice for any fees and costs required before the arbitration can proceed to all of the parties to the arbitration. The invoice shall be provided in its entirety, shall state the full amount owed and the date that payment is due, and shall be sent to all parties by the same means on the same day. To avoid delay, absent an express provision in the arbitration agreement stating the number of days in which the parties to the arbitration must pay any required fees or costs, the arbitration provider shall issue all invoices to the parties as due upon receipt.”  

Section 1281.97 establishes a simple bright-line rule that a drafting party's failure to pay outstanding arbitration fees within 30 days after the due date results in its material breach of the arbitration agreement.  (De Leon v. Juanita's Foods (2022) 85 Cal.App.5th 740, 753.)  

Under the plain language of the statute, then, the event entitling the nondrafting party to remedies is nothing more than nonpayment of fees within the 30-day period—the statute specifies no other required findings, such as whether the nonpayment was deliberate or inadvertent, or whether the delay prejudiced the nondrafting party.  (Espinoza v. Superior Court (2022) 83 Cal.App.5th 761, 776.)

Here, JAMS appears to confirm that the fees listed on the April 15, 2025 invoice, payable upon receipt, were not paid within 30 days. Therefore, the Court finds a material breach of the agreement.

Although Defendant notes payments of deposits on February 12, 2024 and June 7, 2024, noting that JAMS indicates a credit balance as of May 20, 2025, there appears to be no argument that the fees listed as due on April 15, 2025 were timely paid. Rather, Defendant argues that a transition of counsel from one law firm to another caused the prior firm to fail to forward emails concerning the payment of the April 15, 2025 invoice, that the failure to pay was therefore inadvertent and no prejudice was suffered as a result. However, that would not appear to be the standard under the law.

"Under the plain language of the statute, then, the triggering event is nothing more than nonpayment of fees within the 30-day period—the statute specifies no other required findings, such as whether the nonpayment was deliberate or inadvertent, or whether the delay prejudiced the nondrafting party. …" (Espinoza v. Superior Court (2022) 83 Cal.App.5th 761, 776; See also De Leon v. Juanita's Food (2022) 85 Cal.App.5th 740, 753 [noting “…the statute's language establishes a simple bright-line rule that a drafting party's failure to pay outstanding arbitration fees within 30 days after the due date results in its material breach of the arbitration agreement.”) “The Legislature sought a clear rule for determining whether the late payment of a fee by a drafting party constituted a material contract breach." (Cvvejic v. Skyview Capital, LLC (2023) 92 Cal.App.5th 1073, 1078.)

Therefore, the Court need not consider the circumstances of the failure to pay the April 15, 2025 invoice within 30 days.

If the drafting party materially breaches the arbitration agreement and is in default under subdivision (a), the employer or consumer may do either of the following: (1) withdraw the claim from arbitration and proceed in a court of appropriate jurisdiction; or (2) compel arbitration in which the drafting party shall pay reasonable attorney’s fees and costs related to the arbitration.  (Code civ. Proc. § 1281.97, subd. (b)(1)-(b)(2).)  If the employee or consumer proceeds with an action in a court of appropriate jurisdiction, the court shall impose sanctions on the drafting party in accordance with CCP section 1281.99.  (Code Civ. Proc. § 1281.97, subd. (d).) 

Here, Plaintiff has elected to withdraw the claim from arbitration and proceed in Court.

Therefore, the Court grants the motion as to the withdrawal from arbitration and reinstates the PAGA claim in this Court.

Reinstatement of Other Claims Voluntarily Dismissed

Plaintiff also seeks to reinstate the individual and class claims under the Labor Code which were voluntarily dismissed pursuant to Plaintiff’s application on October 26, 2023.

Plaintiff provides no legal argument in support of this request.

What the Court has reinstated above concerns only the October 6, 2023 first amended complaint containing a single cause of action under PAGA. Absent legal authority that permits the “reinstatement” of claims previously dismissed, the Court is not inclined to permit amendment to the complaint via this motion.

The Court, therefore, denies this portion of 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:                 Perez, Araceli Vizcarra vs. Jimenez, Victorina

Case No.:   PCU298046

Date:           August 5, 2025

Time:           8:30 A.M. 

Dept.           23-The Honorable Glade F. Roper

Motion:      Motion to Approve Sale

Tentative Ruling: To continue this matter to August 26, 2025, 8:30 am, Dept. 23 and order Plaintiff filed a report or declaration from the referee Laster pursuant to Code of Civil Procedure section 873.710.

Facts

In this partition action, the Court entered interlocutory judgment after the default prove up hearing on March 26, 2024. A referee was appointed to effectuate the sale of 5477 Ellis Road, Alpaugh, CA 93201 (“Subject Property”) by order of the Court.

At a prior hearing on July 30, 2024, Defendant requested an opportunity to purchase the Subject Property. Plaintiff had indicated there was a pending cash sale. The Court received sworn testimony from the referee then. The Court thereafter granted a thirty-day continuance to provide additional information as to the value of the Subject Property.

The Court thereafter continued this motion due to a lack of declaration from the referee, discussion of the appraisal, discussion of other offers and evidence thereof. The Court previously ordered the referee and counsel to personally appear at the hearing on August 27, 2024.

At the August 27, 2024 hearing, the Court was informed the prior offer had been withdrawn and there is no sale pending. The Court granted a continuance October 29, 2024.

On September 18, 2024, the referee, Gilberto Pardon, filed a declaration seeking to withdraw from his position as referee due to circumstances related to his health.

On October 29, 2024, the Court heard testimony and argument as to the appointment of Gail Laster, Creekside Realty as the new referee. Thereafter, Gail Laster accepted the appointment.

On July 1, 2025, Plaintiff filed this notice of motion and motion for approval of the sale of the Subject Property. The motion indicates, on April 11, 2025, the Plaintiff entered into a written agreement with the prospective buyer that is contingent on court approval. The buyer is identified as Apolinar Mendez. Plaintiff has attached the proposed purchase contract and states the proposed sales price is $100,000.

As to service, the Court notes the August 5, 2025 proof of service appears to indicate service of the notice of motion and motion on Defendant Jimenez, the referee and the prospective purchaser, Mendez.

The Court notes no declaration from the referee, no discussion of the appraisal of the property, no discussion of other offers, and that Plaintiff’s counsel’s argument in the motion itself is not evidence thereto.

Authority and Analysis

As noted above, interlocutory judgment was entered in this matter and Lester was appointed as referee pursuant to Code of Civil Procedure sections 872.720, 872.810, 872.820, 872.830. 873.010.

Under Code of Civil Procedure section 873.720:

(a) A purchaser, the referee, or any party may move the court to confirm or set aside the sale.

(b) The moving party shall give not less than 10 days’ notice of motion to:

(1) The purchaser if the purchaser is not the moving party; and

(2) All other parties who have appeared in the action.” (Code Civ. Proc., § 873.720)

The Court finds sufficient service of the motion.

However, pursuant to section 873.710(a):  “Upon making a sale of property, the referee shall report the sale to the court.” Here, there is no report to consider.

Code of Civil Procedure section 873.520, entitled “Determination of public or private sale” states, in part: “The property shall be sold at public auction or private sale as the court determines will be more beneficial to the parties…” Absent some factual basis for the conclusion that the sale price is fair and reasonable, the Court cannot determine what would be more beneficial.

Additionally, “An action for partition is governed by the broad principles of equity jurisprudence, and ‘the courts have adhered, in adjusting the rights of co-tenants and defining their interests in the common property, to the classic formulas encapsulated in the maxims that equity is equality and he who seeks equity must do equity, and have dispensed equitable relief only upon condition that the equitable rights of a co-tenant are respected and safeguarded.’ [citation omitted]” (Wallace v. Daley (1990) 220 Cal.App.3d 1028, 1035.)

Therefore, the Court continues this matter to August 26, 2025, 8:30 am, Dept. 23 and orders Plaintiff filed a report or declaration from the referee Laster pursuant to section 873.710.

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