Tentative Rulings

The Tentative Rulings for Monday, April 28, 2025, are:

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

Case No.:     VCU293068

Date:           April 28, 2025

Time:          8:30 A.M. 

Dept.           7-The Honorable Gary M. Johnson

Motion:       Defendant’s Counsel’s Motion to be Relieved as Counsel

Tentative Ruling: To grant the motion; the order will be deemed effective upon the filing with the court of proof of personal service of the order as indicated herein.

Facts

On March 5, 2025, Defendant’s Counsel Daniel Evans filed a motion to be relieved as counsel as to Defendant Trakkxpay, LLC. Defendant’s Counsel filed the following with respect to withdrawing:

(1) MC-051 - Notice of Motion and Motion to be Relieved as Counsel;

(2) MC-052 – Declaration in Support of Attorney's Motion to Be Relieved as Counsel; and

(3) MC-053 - Order Granting Attorney's Motion to Be Relieved as Counsel

Additionally, Defendant’s Counsel has filed proof of service of these documents by mail at the last known address of Defendant and on opposing counsel.

Authority and Analysis

Code of Civil Procedure section 284 provides that “[t]he attorney in an action or special proceeding may be changed at any time before or after judgment of final determination, as follows: 1. Upon the consent of both client and attorney, filed with the clerk, or entered upon the minutes; [or] 2. Upon the order of the court, upon the application of either client or attorney, after notice from one to the other.”

California Rule of Court 3.1362(a) requires that the “notice of motion and motion to be relieved as counsel under Code of Civil Procedure section 284(2) must be directed to the client and must be made on the Notice of Motion and Motion to Be Relieved as Counsel-Civil (form MC-051).”

As noted above, counsel has complied with California Rule of Court 3.1362(a) by submitting the notice and motion on MC-051 and by directing the notice and motion to all parties.

California Rule of Court 3.1362 (c) further mandates that: “The motion to be relieved as counsel must be accompanied by a declaration on the Declaration in Support of Attorney's Motion to Be Relieved as Counsel--Civil (form MC-052). The declaration must state in general terms and without compromising the confidentiality of the attorney-client relationship why a motion under Code of Civil Procedure section 284(2) is brought instead of filing a consent under Code of Civil Procedure section 284(1). Specifically, the declaration that Rule 3.1362(c) requires must state that the moving attorney attempted to secure a “Substitution of Attorney” from the client as required under Code of Civil Procedure section 284(1) and that the client refused to so stipulate.

Here, the declaration is properly made on form MC-052, as well as a supplemental declaration attached to the Notice, and uses general terms without compromising confidentiality and indicates that counsel has attempted to obtain a substitution by stipulation, but that Defendant has refused.

Next, service under Rule 3.1362(d) requires personal service, electronic service, or mail and counsel’s declaration must note the service made. Here, service was by mail. The declaration of counsel indicates that Defendant’s address was confirmed as current by telephone and conversation.

Finally, Rule 3.1362(e) requires the proposed order be lodged with the Court on MC-053 with the moving papers, specifying all hearing dates scheduled, including date of trial. Defendant’s Counsel has complied with this requirement.

Therefore, the Court grants Defendant’s Counsel’s Motion to Withdraw as to Defendant Trakkxpay, LLC. If no one requests oral argument, the Court is prepared to sign the order entitled “Order Granting Attorney’s Motion to be Relieved as Counsel - Civil” that the moving party lodged with the Court.  This order will be deemed effective upon the filing with the court of a proof of personal service of the “Order Granting Attorney’s Motion to be Relieved as Counsel – Civil” as to Defendant.

The Court further directs counsel to attach to the Order an additional notice of the date, time, and Department of this court for any future hearing dates for this case as calendared.

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, Sabrina Veronica vs. Gomez, Jennifer

Case No.:   VCL296115

Date:           April 28, 2025

Time:           8:30 A.M. 

Dept.           7-The Honorable Gary M. Johnson

Motion:     Motion for Leave to File Amended Complaint

Tentative Ruling: To grant the unopposed motion

Background Facts

On or about February 24, 2023, Plaintiff filed the complaint in this matter. The Court sustained Defendants Farmersville, Brogan, Vasquez and Gomez’s (“Defendants”) demurrer with leave to amend on uncertainty grounds and for violations of California Rule of Court, rule 2.112.

On July 14, 2023, Plaintiff filed the First Amended Complaint alleging two tort-based causes of action against Defendants and alleging that Plaintiff had filed a simple “complaint form” with the Farmersville Police Department in 2021 in satisfaction of the tort claims presentation requirement. The Court again sustained Defendants’ demurrer with leave to amend to permit pleading compliance with the presentation of tort claims requirements.

On October 11, 2023, Plaintiff filed the Second Amendment Complaint alleging negligence, sexual battery, and negligent and intentional infliction of emotional distress related to an interaction with police officers of the named Defendant, Farmersville Police Department and naming individual Defendants Jenifer Gomez, Jay Brock, Jeremy Brogan, Luis Frausto and Ralph Vasquez. Plaintiff seeks between $8 billion and $88 billion in damages. The Court again sustained a demurrer for failure to plead compliance with the Tort Claims Act.

On December 13, 2023, Plaintiff filed this Third Amended Complaint alleging (1) negligence; (2) battery; (3) sexual battery; (4) intentional infliction of emotional distress; (5) negligent infliction of emotional distress; and (6) defamation against Defendant Farmersville Police Department and individual Defendants Jenifer Gomez, Jay Brock, Jeremy Brogan, Luis Frausto and Ralph Vasquez. Plaintiff sought between $8 billion and $88 billion in damages depending on the cause of action.

On February 26, 2024, the trial court sustained the demurrer without leave to amend this time because of the appellant’s failure to comply with the presentation requirement.

The February 26, 2024 ruling did not address the inclusion of Plaintiff’s 42 U.S.C § 1983 claim, included in the third amended complaint.

Plaintiff appealed this decision on the basis that no claim presentation was required as to a 1983 claim.

On September 10, 2024, the Appellate Division of the Superior Court of Tulare County issued its decision reversing the ruling on demurrer as it pertains to the 1983 claim and permitting leave to amend the complaint as to the 1983 claim.

On October 2, 2024 and October 29, 2024, Plaintiff filed additional amended complaints, thereafter served one or more of the amended complaints on various other defendants.

Facts as to Amendment of Complaint

On March 24, 2025, Plaintiff filed this motion for leave to file a seventh amended complaint. Plaintiff states “The proposed amendments to the complaint have the addition of new legal cases and statutes, and California legal procedures to support previously existing causes of action, a John Doe Defendant added on the Name of the Case who was plead about previously, and additions to the Plaintiff’s prayer for relief.”

Plaintiff provides a 33 page proposed seventh amended complaint alleging 15 causes of action under the 14^th Amendment and 42 USC 1983.

Defendants have filed a non-opposition to this motion.

Authority and Analysis

The Court may, in the furtherance of justice, and upon any terms as may be proper, allow a party to amend any pleading.  (Code Civ. Proc. §§ 473, 576.)  In general, California courts liberally exercise discretion to permit amendment of pleadings in light of a strong policy favoring resolution of all disputes between parties in the same action.  (Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939; Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290, 296 [“[T]here is a strong policy in favor of liberal allowance of amendments.”].)  Pursuant to this policy, requests for leave to amend generally will be granted unless the party seeking to amend has been dilatory in bringing the proposed amendment before the Court, and the delay in seeking leave to amend will cause prejudice to the opposing party if leave to amend is granted.  (Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 490; Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564-565.)  The decision on a motion for leave is directed to the sound discretion of the trial court. 

In light of the non-opposition, the Court grants the motion and orders the proposed seventh amended complaint filed no later than ten (10) days from the date of this hearing.

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

Re:                 In the Matter of W.T. Capital Lender Services

Case No.:   VCU315512

Date:            April 28, 2025

Time:            8:30 A.M. 

Dept.            7-The Honorable Gary M. Johnson

Motion:      Hearing on Claims on Deposited Surplus Funds

Tentative Ruling: To distribute the fund to Asset Recovery.

Facts

This matter involves a deposit of surplus funds following the sale of real property located at 118 South Ash Street, Pixley, CA 93256 (“Subject Property”) by Trustee W.T. Capital Lender Services (“Trustee”) on March 8, 2023. The sale price was $181,000. The surplus proceeds from the sale were $69,385.24. Trustee’s fees and expenses total $4,010.00.

Trustee, thereafter, sent notice, pursuant to Civil Code section 2924j(a), to Estate of Earnest Mathenia 118 Ash Street Pixley, CA 93256.

Thereafter, Trustee received one claim from a potential claimant, Asset Recovery Inc.

On November 4, 2024, Trustee filed the petition initiating this matter. The petition notes Trustee has exercised due diligence, but that it has determined there is a conflict between potential claimants.

Specifically, Trustee indicates Asset Recovery, Inc. has made a claim on behalf it is client Rickie Mathenia, who claims to be an heir to Earnest Mathenia. Rickie Mathenia, through Asset Recovery, is claiming his respective share of the surplus funds.

Trustee states that Earnest Mathenia's obituary, published in December 2021, indicates "Earnest was preceded in death by his wife Dorothy in August of 2012. He is survived by numerous nieces and nephews in Tulare and Pixley area."

Trustee, therefore, cannot determine who is entitled to said surplus funds.

Trustee notes the following list of potential claimants:

Estate of Earnest Mathenia 118 Ash Street Pixley, California 93256;

Estate of Dorothy Mathenia 118 Ash Street Pixley, California 93256;

Earnest Mathenia c/o Scotty York Post Office Box 182 Pixley, California 93256;

John Fox Asset Recovery Inc. 910 16th Street Denver, Colorado 80202;

Resident of the Property Subject to the Foreclosure Sale 118 Ash Street Pixley, California 93256;

Dorothy Mathenia c/o Scotty York Post Office Box 182 Pixley, California 93256;

Diala Debbas, Esq. Aldridge Pite, LLP 8880 Rio San Diego Drive Suite 725 San Diego, California 92108;

Rickie Don Mathenia 820 North Belmont Street Porterville, California 93257; and

“Unidentified Numerous Nieces and Nephews”

On December 10, 2024, Trustee deposited $65,375.24 with this Court as surplus from the sale.

On December 31, 2024, Asset Recovery filed a motion in support of its claim for surplus funds, indicating that Rickie Mathenia is the nephew of Earnest and heir to all or some of the surplus proceeds. Rickie Mathenia subsequently transferred and assigned his claims to Asset Recovery via a written assignment.

Although the Court denied the motion filed by Asset Recovery, the Court noted it would consider Asset Recovery to have filed a timely claim for the funds based on its motion.

The Court then set this hearing as to claims on the surplus funds and ordered Asset Recovery to publish notice of the claim hearing on April 28, 2025, Dept. 7, 8:30 am hearing as to the surplus funds from the sale of 118 Ash Street Pixley, California 93256 to any and all “Nieces and Nephews of Earnest Mathenia,” for four consecutive weeks.

On April 2, 2025, Asset Recovery filed a proof of publication.

The Court, itself, on March 20, 2025, noticed this hearing to all parties listed in the petition.

The Court notes no claims have been filed, other than Asset Recovery’s claim via the initial motion.

Authority and Analysis

When a trustee's sale is concluded and there are surplus funds, the trustee has 30 days from the execution of the trustee's deed to send written notice to individuals with a recorded interest in the real property prior to the trustee's sale. (Civ. Code § 2924j(a).) This allows those individuals to make a claim to the surplus funds. (Civ. Code § 2924j(a)(3).) Claimants have 30 days to make a claim. (Civ. Code § 2924j(a)(4).) Once claims have been received, the trustee must exercise due diligence to determine the priority of the claims. (Civ. Code § 2924j(b).) If there is no dispute as to the priority, the trustee pays out the funds within 30 after the conclusion of the notice period. (Civ. Code § 2924j(b).) If, however, the trustee fails to determine priority or there is a dispute, the trustee must deposit the funds with the Court pursuant to Civil Code § 2924j(c).

Trustee, has deposited the funds under Civil Code § 2924j(c), as it found a dispute as to the distribution of the funds between competing claims.

The funds were deposited December 10, 2024.

Within 90 days after deposit with the clerk, the court shall consider all claims filed at least 15 days before the date on which the hearing is scheduled by the court, the clerk shall serve written notice of the hearing by first-class mail on all claimants identified in the trustee's declaration at the addresses specified therein…The court shall distribute the deposited funds to any and all claimants entitled thereto." (Civ. Code § 2924j(d).)

Pursuant to Civil Code section 2924j(d), the Court, set this hearing for April 28, 2025 and provided notice thereof, though the Court notes this hearing took place beyond 90 days from the date of deposit.

Therefore, the Court itself noticed the following persons, as identified in the petition:

Estate of Earnest Mathenia 118 Ash Street Pixley, California 93256;

Estate of Dorothy Mathenia 118 Ash Street Pixley, California 93256;

Earnest Mathenia c/o Scotty York Post Office Box 182 Pixley, California 93256;

John Fox Asset Recovery Inc. 910 16th Street Denver, Colorado 80202;

Resident of the Property Subject to the Foreclosure Sale 118 Ash Street Pixley, California 93256;

Dorothy Mathenia c/o Scotty York Post Office Box 182 Pixley, California 93256;

Diala Debbas, Esq. Aldridge Pite, LLP 8880 Rio San Diego Drive Suite 725 San Diego, California 92108;

Rickie Don Mathenia 820 North Belmont Street Porterville, California 93257

Additionally, Asset Recovery published notice described above to “Unidentified Numerous Nieces and Nephews” in the Porterville Recorder for four weeks.

As no other claims have been filed, the Court examines Asset Recovery’s claim to the funds.

Here, Asset Recovery claims the suprlpus based upon an October 6, 2023, execution of Transfer and Assignment of Rights to Claim Surplus Proceeds from Foreclosure Sale of the Property to Asset Recovery (“Assignment”) from Rickie Mathenia to Asset Recovery.

Rickie is a nephew of Earnest Mathenia (“Earnest”), who along with Dorothy Mathenia (“Dorothy”), was a vested owner of record of the Property pursuant to a Quitclaim Deed recorded October 10, 2012, in Official Records of Tulare County (the “Deed”). Rickie declares he is a successor in interest and heir of Earnest.

Having no opposition or competing claims, the Court distributes the entirety of the surplus fund to Asset Recovery.

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

Re:                Wells Fargo Bank, N.A. vs. Salierno, I. Flores

Case No.:   VCL309030

Date:           April 28, 2025

Time:           8:30 A.M. 

Dept.           7-The Honorable Gary M. Johnson

Motion:      Motion for Judgment on the Pleadings

Tentative Ruling: To grant the motion and enter judgment in favor of Plaintiff

Facts

On May 16, 2024, Plaintiff initiated this action for a breach of express and implied contract, for an open book account for money due within the last four years, based on a writing for money lent by Plaintiff to Defendant at Defendant’s request, and account stated. Plaintiff’s alleged damages in the amount of $8,092.11.

On January 27, 2025, the Court adopted its tentative ruling as to Plaintiff’s motion to deem admissions admitted, deeming admitted the truth of each matter specified in requests for admissions numbers 1 through 9.

Plaintiff now moves for judgment on the pleadings as to all counts.

No opposition appears to have been filed. Plaintiff has provided a sufficient proof of service and declaration as to the meet and confer requirement.

Authorities and Analysis

A motion for judgment on the pleadings is used to challenge a pleading in the same manner as a general demurrer, i.e., the challenged pleading (1) establishes that the court does not have subject matter jurisdiction or (2) does not allege facts sufficient to support a cause of action or defense. (Code Civ. Proc. § 438(c)(1), see International Assn. of Firefighters v. City of San Jose (2011) 195 Cal.App.4^th 1179,1196; Bufil v. Dollar Financial Group (2008) 162 Cal.App.4^th 1193, 1202.)  Like a demurrer, the grounds for this motion must appear on the face of the pleading or be based on facts capable of judicial notice, including court records.  (See Bufil, at 1202; Stencel Aero Engineering Corp. v. Superior Court (1976) 56 Cal.App.3d 978, 986, and fn. 6.)

Here, Plaintiff seeks judgment on the basis of its requests for admissions, deemed admitted by the Court. A “deemed admitted order established, by judicial fiat, that a nonresponding party has responded to the requests by admitting the truth of all matters contained therein.” (Wilcox v. Birtwhistle (1999) 21 Cal.4th 973, 979.) Further, this motion may be based upon “matters properly the subject to judicial notice.” (Saltarelli & Steponovich v. Douglas (1995) 50 Cal.App.4th 1, 5.) Judicial notice may be taken “of a party’s admissions or concessions, but only in cases where the admissions “cannot reasonably be controverted,’ such as in answer to interrogatories or request for admissions, or in affidavits and declaration filed on the party’s behalf.” (Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 485.)

Breach of Contract

To establish a claim for breach of contract, Plaintiff must establish: (1) the existence of the contract, (2) Plaintiffs' performance or excuse for nonperformance, (3) defendants' breach, and (4) the resulting damage to Plaintiff." (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.)

Here, the first element is met by Nos. 1, 2, 4, 5 and 8.

The second element is met by Nos. 1, 2 and 3.  

The third element is met by Nos. 4, 5, 6, 7, and 8

The fourth element is met by Nos. 6, 7 and 8.

Open Book

Plaintiff claims that there was an open book account in which financial transactions between the parties were recorded and that Defendant owes it  money on the account. Plaintiff therefore must establish the following:

1.That Plaintiff and Defendant had financial transactions with each other;

2.That Plaintiff, in the regular course of business, kept a written account of the debits and credits involved in the transactions;

3.That Defendant owes Plaintiff money on the account; and

4.The amount of money that Defendant owes Plaintiff. (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460; CACI 372)

Here, the first element is met by Nos. 1, 2 and 8. 

The second element is met by Nos. 4, 5, 6.

The third element is met by No. 6.

The fourth element is met by No. 6.

Account Stated

Plaintiff alleges a cause of action for account stated. “The essential elements of an account stated are: (1) previous transactions between the parties establishing the relationship of debtor and creditor; (2) an agreement between the parties, express or implied, on the amount due from the debtor to the creditor; (3) a promise by the debtor, express or implied, to pay the amount due.  [Citations.]  [Citation.]” (Leighton v. Forster (2017) 8 Cal.App.5th 467, 491 (internal quotation marks omitted).)

Here, first element is met by Nos. 1 through 5 and 8, the second element by Nos. 1, 2 and 8, and the third element by Nos. 1 through 6.

Therefore, the Court grants the motion as to all causes of action in the complaint.

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

Re:                 Maxey, John L. Jr vs. Kaweah Health Medical Center

Case No.:   VCU314996

Date:           April 28, 2025

Time:           8:30 A.M. 

Dept.           7-The Honorable Gary M. Johnson

Motion:     Kaweah’s (1) Demurrer and (2) Motion to Strike Amended Complaint

Tentative Ruling: (1) To sustain the demurrer without leave to amend; (2) To find the motion to strike moot based on the ruling on demurrer.

Facts Common to (1) and (2)

Following the Court’s ruling to sustain the demurrer to the complaint with leave to amend, Plaintiff filed an amended complaint alleging the following:

Plaintiff alleges medical negligence resulting from treatment at Defendant Kaweah’s medical center on December 6, 2016. (FAC ¶¶1, 14.) Plaintiff alleges that he underwent received a Qualified Medical Examination on June 11, 2024, which documented the extent of the injuries and their connection to the incident date (FAC ¶6.)

Plaintiff further alleges “However, as time passed and his condition failed to improve, Plaintiff began to question whether his injuries had been misdiagnosed or inadequately treated. His ongoing pain, limited mobility, and worsening neurological symptoms did not align with what he had been led to expect upon discharge.” (FAC ¶23.)

Plaintiff alleges “Plaintiff's first reasonable suspicion of medical negligence arose only when he realized that his symptoms were persisting abnormally and worsening over time. This suspicion—not definitive medical confirmation—triggered the tolling of the statute of limitations.” (FAC ¶24.) 

Plaintiff alleges Defendant’s attending physician failed to recognize or evaluate probable concussion, failed to identify and treat a scratched cornea, failed to assess and diagnose a herniated disc, failure to identify correctly Plaintiff’s injuries and prematurely discharged Plaintiff in 2016. (FAC ¶36.)

Additionally, that “Plaintiff was not made fully aware of the extent of his injuries or the causal relationship to the negligence of Defendant Kaweah Health Medical Center until the QME concluded in June 2024. However, Plaintiff first reasonably suspected that his injuries were not adequately diagnosed or treated in May 2024. At that time, Plaintiff began to question whether the ongoing pain, limited mobility, and worsening symptoms were due to medical negligence, particularly given the persistence of his issues over several years.” (FAC ¶44.)

Additionally, that “In light of this delayed discovery of suspicion, Plaintiff contends that the statute of limitations is tolled until May 2024, when he reasonably suspected medical negligence, and that this Complaint is therefore timely filed.” (FAC ¶46.)

Defendant Kaweah demurs to the complaint on the basis that Plaintiff’s complaint is time barred by the statute of limitations and that the complaint fails to allege facts sufficient to state a cause of action.

No opposition appears to have been filed.

(1) Demurrer - Authority and Analysis

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

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

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

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.]”

Section 340.5, applicable to professional negligence medical malpractice causes of action, states:

“In an action for injury or death against a health care provider based upon such person’s alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first. In no event shall the time for commencement of legal action exceed three years unless tolled for any of the following: (1) upon proof of fraud, (2) intentional concealment, or (3) the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person...”

The applicable limitations period for a particular cause of action "runs from the moment a claim accrues." (Arey v. Cannon Business Solutions, Inc. (2013) 55 Cal.4th 1185, 1191.) "A cause of action accrues when it is complete with all of its elements—those elements being wrongdoing, harm, and causation. This is the 'last element' accrual rule; ordinarily, the statute of limitations runs from 'the occurrence of the last element essential to the cause of action.'" (Id.)

The elements of medical malpractice are: "(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence." (Simmons v. West Covina Medical Clinic (1989) 212 Cal.App.3d 696, 701-702; citations omitted.)

“[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.)

Here, the allegations of Plaintiff’s complaint indicate accrual occurred December 6, 2016 when Plaintiff experienced “severe pain, disorientation, and difficulty with mobility” and was admitted to Defendant Kaweah’s facility. (FAC ¶16.) He alleges he was treated by a health care professional and that the attending physician neglected to recognize or properly evaluate Plaintiff’s symptoms of head trauma and other. (FAC ¶36) Plaintiff has pled some, even if not all, injury occurred upon admission and discharge on December 16, 2016.  Plaintiff need not be aware of the full extent of the injuries in order for the elements of this cause of action to be complete. The extent of damage is not an element of a cause of action in tort, and the general rule is that the cause of action is complete on the sustaining of "actual and appreciable harm," on which the recoverable damages would be more than nominal. (Davies v. Krasna (1975) 14 Cal. 3d 502, 504.) Therefore, absent delayed discovery,  this case appears filed beyond the statute of limitations set forth in section 340.5.

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, Plaintiff had at least a suspicion of wrongdoing upon discharge from Kaweah in December 2016. The Court does not find Plaintiff has sufficiently pled facts indicating diligence, blameless ignorance or a lack of opportunity to obtain the facts at some point after discharge in 2016. It is not sufficient to toll the statute of limitations based on “delayed discovery of suspicion.” Plaintiff has not pled the time and manner of discovery of the injury after December 2016 or the inability to have made earlier discovery despite reasonable diligence prior to May 2024.

Therefore, the Court sustains the demurrer.

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.)

Absent a showing of reasonably possibility of amendment, the Court is inclined to sustain the demurrer without leave to amend.

(2) Motion to Strike – Authority and Analysis

Based on the ruling on demurrer, the Court finds the motion to strike moot.

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

Re:                 Oliphant Financial LLC vs. Boss, Joe

Case No.:   VCL315856

Date:           April 28, 2025

Time:           8:30 A.M. 

Dept.           7-The Honorable Gary M. Johnson

Motion:     Cross-Defendant’s Demurrer to Cross-Complaint

Tentative Ruling: To sustain the demurrer with leave to amend; Boss shall have ten (10) days from the date of this hearing to file an amended cross-complaint.

Facts

In this matter, Plaintiff Oliphant sues Defendant Boss for common counts, seeking recovery of $10,48.66. Oliphant appears to be a debt collector who purchased the debt of Boss.

In response, Boss answered the complaint and simultaneously cross-complained against Oliphant. The cross-complaint attaches a form as to “common counts” but alleges “Cross-Complainant specifically provided that this case was included in a Identity Theft FRAUD CASE, AND that the statue [sic] of limitations for this case according to the evidence submitted expired 3/24,” that “Statue of Limitations to pursue this debt has expired/ There was no payments made on this account for mor than 4 yrs,” that “Compliantant [sic] has stated that all records and claim to any debt made by Plaintiff were done so by fraud. and that the original creditor was aware that a claim for Identity theft had been made, In addtion [sic] the ststue [sic] of limitations has expired and there is no legal ground for this claim.”

Oliphant demurrers to the cross-complaint, arguing that it fails to allege facts sufficient to state a cause of action in that no facts are alleged.

In opposition, Boss “denies” the claims in the demurrer and further sets forth that the attachments to the cross-complaint demonstrate no debt is owed.

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)

Common Counts

“The only essential allegations of a common count are "(1) the statement of indebtedness in a certain sum, (2) the consideration, i.e., goods sold, work done, etc., and (3) nonpayment." (4 Witkin, op. cit. supra, § 508, at p. 543.) A cause of action for money had and received is stated if it is alleged the defendant "is indebted to the plaintiff in a certain sum 'for money had and received by the defendant for the use of the plaintiff.'” (Farmers Ins. Exchange v. Zerin (1997) 53 Cal.App.4th 445, 460. [citations omitted].)

The cross-complaint does not allege that Oliphant owes Boss a debt, but rather operates, in the Court’s view, as a denial of the allegations of the complaint and the assertion of defenses such as the statute of limitations. These, however, are not proper causes of action as to a cross-complaint.

Therefore, the Court sustains the demurrer 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.) Boss shall have ten (10) days from the date of this hearing to file an amended cross-complaint that alleges a cause of action against Oliphant.

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:                Vasquez, Don M. vs. Saputo Cheese USA Inc.

Case No.:   VCU282978

Date:           April 28, 2025

Time:           8:30 A.M. 

Dept.           7-The Honorable Gary M. Johnson

Motion:      Hearing re: Distribution of Settlement

Tentative Ruling: On April 18, 2025, the settlement administrator filed a declaration indicating that all settlement checks were valid for 180 days from the date the check was mailed, or until March 26, 2025. Following the deadline, 307 checks remained uncashed, totaling $61,927.68

Pursuant to the terms of the Settlement Agreement, the unclaimed funds were transmitted to the cy pres recipient, Legal Aid at Work, on April 16, 2025.

The Court finds that the settlement fund has been distributed pursuant to the approved settlement in this matter. No appearances are required.

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:              Mireles, Javier State of California Ex. Rel. vs. Central Valley Construction

Case No.:     VCU293499

Date:           April 28, 2025

Time:          8:30 A.M. 

Dept.           7-The Honorable Gary M. Johnson

Motion:       Motion for Approval of PAGA Settlement

Tentative Ruling: The Court previously continued this matter and ordered supplemental filings as to the estimates of maximum PAGA liability and any discounts applicable thereto, as well as sufficient information for the Court to calculate the lodestar for comparison to the fees requested.

The Court’s file reflects a stipulation seeking to continue this hearing past June 6, 2025.

Therefore, the Court continues to this matter to June 16, 2025, 8:30 am, Dept. 7.

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

Re:                 McCormick, Rebecca vs. Greyhound Lines, Inc.

Case No.:   VCU308514

Date:           April 28, 2025

Time:           8:30 A.M. 

Dept.           7-The Honorable Gary M. Johnson

Motion:      Defendant’s Motion to Compel Neuropsychological Examination

Tentative Ruling: To grant the motion to compel the neuropsychological testing sought by Defendant, but to modify the proposed order as to the recording and transmittal of raw data; to order the parties to meet and confer as to an appropriate protective order as to the raw data based upon this ruling and the cases cited herein.

Facts

This action arises from an August 3, 2022 bus accident on the 99 North Freeway near Tulare, California. Plaintiff was a passenger on the bus.

Defendant Greyhound seeks to obtain a neuropsychological examination of Plaintiff.

Defendant notes that Plaintiff has alleged the following issues in response to discovery:  

“Traumatic brain injury and concussion, post traumatic concussion syndrome and/or postconcussional state associated with, including but not limited to, nausea, vomiting, headaches and/or migraines and/or head pain, dizziness, balance difficulties, postraumatic disequilibrium, speech, difficulty with word selection and communication, memory impairment including difficulty with recall, short term and long term memory problems and/or memory loss, cognitive dysfunction with diminished memory, executive function and general cognition disorders, confusion, altered behavior, tinnitus, hearing difficulties and/or hearing impairment, light sensitivity, blurred and/or impaired vision, loss of smell; mental and emotional distress and anguish, including but not limited to, flashbacks, frustration, sudden mood swings, mood dysfunction, irritability, insomnia, trouble sleeping, anxiety, depression, anguish, post-traumatic stress syndrome/disorder, detachments from everyday life and ordinary activities, and feelings of hopelessness and helplessness.”

Based on this, Defendant, pursuant to Code of Civil Procedure sections 2032.310 and 2032.320, et seq, seek an order compelling Plaintiff to appear for a neuropsychological examination as follows:

Neuropsychological examination by Dr. Howard Glidden to determine the extent, scope, and nature of any psychological injury to Plaintiff. The examination will take place on May 21, 2025, at 8:00 a.m., at 1660 East Herndon, Suite 150, Fresno, CA 93720.

Dr. Glidden is a Neuropsychologist with over 30 years of experience in the field of Clinical Neuropsychology and is licensed to practice in the state of California. The examination will be conducted within 75 miles of the residence of the examinee, in Dr. Glidden ’s office, under normal conditions.

The neuropsychological examination will take up to 8 hours to conduct. The examination will not involve any invasive, dangerous, or painful physical procedures other than the subjective pain or distress ordinarily associated with the recall of psychologically and/or emotionally upsetting events and situations in one’s life.

The examination will consist of two parts. The first will part of the examination will involve a history taking and observation of Plaintiff for the purpose of gathering information in specific areas. These specific areas shall include current symptoms for which care might be sought, and the history of the alleged injuries, including subjective report of the events leading to the psychological/neuropsychological damage. A further history shall be obtained concerning the development of psychological, cognitive, and physical symptoms, what treatments have been received, and the effect of those treatments on symptoms.

In addition to the history of the incident and psychological damages at issue, the examination will gather important information about past psychological/psychiatric and medical illnesses and difficulties, and educational and occupational history. It will also gather important developmental information concerning plaintiff’s family origin; psychological, psychiatric, and medical difficulties within that family; their educational background; their work history; and social development history, including information about marriages and children. Simultaneous with this first part of the examination, Dr. Glidden will make observations and inquiries necessary for a full mental status evaluation of plaintiff, including moods and thoughts processes, and thought content.

The second part of the examination will consist of the administration to Plaintiff a number of standard, validated psychological and neuropsychological tests. The tests are not duplicative of the first part of the examination and are accepted by the psychological and neuropsychological community as useful for an informed and objective opinion as to the cause, nature, and degree of emotional distress and cognitive dysfunction being claimed by Plaintiff.

Dr. Glidden will conduct some or all of the following tests/exams, which are widely accepted by the neuropsychological community for determining the conditions and diagnoses, if any, and the severity of said conditions and diagnoses:

Animal Naming; b Test; Brief Visual spatial Memory Test – Revised; California Verbal Learning Test – II; Coin in Hand Test; Controlled Oral Word Association Test; Dot Counting Test; Finger Agnosia; Finger Tapping; Miller Forensic Assessment of Symptoms Test; Mini-Mental State Examination; Minnesota Multiphasic Personality Inventory - 3; Neuropsychological Assessment Battery; Pain Disability Index; Personality Assessment Inventory; Portland Digit Memory Test; Rey 15-item plus recognition; Rey Auditory Verbal Learning Test; Rey-Osterrieth Complex Figure; Rey Word Recognition Test; Shipley-2; Stroop Test; Structured Interview of Reported Symptoms – 2; Test of Memory Malingering; Trailmaking; Victoria Symptom Validity Test; Word Memory Test; Warrington Recognition Memory Test; Wechsler Adult Intelligence Scale – III or IV; Wechsler Memory Scale – III or IV; Wide Range Achievement Test - 4; and Wisconsin Card Sorting Test.

Pursuant to Golfland Entertainment Centers, Inc. v. Super. Ct., 108 Cal. App. 4th 739 (2003), no videotaping or third-party observation (by any person, including but not limited to attorneys and court reporters) will be allowed in connection with the examination. Plaintiff may audio-record the interview, but only Dr. Glidden will audio-record the testing portion of the examination and she will subsequently convey the audio-recording directly to Plaintiff’s retained licensed psychologist expert only, in order to ensure compliance with position papers issued by neuropsychological organizations which prohibit the release of certain protected psychological test information to non-psychologists. Likewise, and for the same test security and protection reasons, copies of the psychological test data sheets used to document Plaintiff’s test performance can only be forwarded to plaintiff’s retained, licensed psychologist expert.

Dr. Glidden charges $600.00 per hour for the time reserved for the examination for any cancellation made less than three (3) business days before the date of examination. Should Plaintiff attempt to cancel or cause the examination to be pre-maturely suspended or terminated, or change the appointment, Plaintiff will be responsible for all fees. Should Plaintiff not appear at this scheduled appointment or attempt to change the appointment or cause the examination to be pre-maturely suspended or terminated three (3) business days before the date of examination, Plaintiff will be responsible for Dr. Glidden’s $600.00 per hour for the time reserved for the examination. Please see Dr. Glidden’s Fee Schedule for professional services.”

On March 13, 2025, Plaintiff served an objection to the Notice. Among the objections were: “At the conclusion of the DME and/or the conclusion of any psychological testing of Plaintiff, all raw test data, all test results regarding Plaintiff, and a copy of the audio recording of the entire examination, including the testing, interview, test instructions, and anything else included in the exam, must be transmitted within thirty (30) days via messenger to Plaintiff’s counsel. Plaintiff’s counsel may only distribute the audio recording and raw test data with Plaintiff’s expert consultants, subject to a Protective Order agreed to and signed by the parties.”

Defendant notes that Plaintiff relies on Randy’s Trucking, Inc. v. Superior Court (2023) 91 Cal.App.5th 818 as to the issue of transmittal of raw data to the Plaintiff’s expert as opposed to Plaintiff’s counsel. Defendant, alternatively, provides a protective order should the Court order the raw data be produced to Plaintiff’s counsel.

In opposition, Plaintiff cites to Randy’s Trucking, argues a protective order is sufficient to address the issues raised by Defendant, that the vast majority of tests are available publicly and that Plaintiff will be substantially prejudiced if Plaintiff’s counsel is not given the raw test data directly and Plaintiff’s counsel will be entirely unable to meaningfully cross-examine Dr. Glidden if Dr. Glidden is permitted to testify while refusing to produce his raw data.

Authority and Analysis

A defendant may obtain a physical or mental examination of the plaintiff, in accordance with those provisions, if the plaintiff has placed his or her physical or mental condition in controversy. (Carpenter v. Superior Court (2006) 141 Cal.App.4th 249, 258, citing Code Civ. Proc. §§ 2032.020, subd. (a), 2032.310.)

Here, Defendant properly seeks a neuropsychological examination of Plaintiff, as Plaintiff alleges a number of psychological injuries. (Doyle v. Superior Court (1996) 50 Cal. App. 4th 1878, 1886–1888)

It appears undisputed that Defendant may seek this examination of Plaintiff. However, the contours of the examination itself, and the production of various information or materials related to the examination, remain at issue.

Further, as noted by Plaintiff, a party is entitled to all reports of the examining doctor under Code of Civil Procedure section 2032.610 which requires production, upon request of, “[a] copy of a detailed written report setting out the history, examinations, findings, including the results of all tests made, diagnoses, prognoses, and conclusions of the examiner.”)

Recording

Defendant’s motion seeks the following restriction as to recording:

“Pursuant to Golfland Entertainment Centers, Inc. v. Super. Ct., 108 Cal. App. 4th 739 (2003), no videotaping or third-party observation (by any person, including but not limited to attorneys and court reporters) will be allowed in connection with the examination. Plaintiff may audio-record the interview, but only Dr. Glidden will audio-record the testing portion of the examination and she will subsequently convey the audio-recording directly to Plaintiff’s retained licensed psychologist expert only, in order to ensure compliance with position papers issued by neuropsychological organizations which prohibit the release of certain protected psychological test information to non-psychologists. Likewise, and for the same test security and protection reasons, copies of the psychological test data sheets used to document Plaintiff’s test performance can only be forwarded to plaintiff’s retained, licensed psychologist expert.

To start, the Court agrees, that per Golfland, supra, no videotaping or observation by counsel is appropriate as to this neuropsychological examination:

“The express authorization for the attorney's presence in subdivision (g)(1) (dealing with a physical examination) and its omission in subdivision (g)(2) of section 2032 (dealing with a mental examination) strongly indicates the Legislature's intent that counsel ordinarily should not be present at a mental examination” (Golfland, supra, 108 Cal. App. 4^th at 747.)

Golfland appeared to permit a third party non-attorney to attend the mental examination. (Id. at 748-749.)

Additionally, Golfland also appears to preclude the next portion of the proposed examination: “Plaintiff may audio-record the interview, but only Dr. Glidden will audio-record the testing portion of the examination”

Golfland notes:

“The mental examination statute, section 2032, subdivision (g)(2), states in relevant part: "The examiner and examinee shall have the right to record a mental examination on audio tape” and “Nothing in the applicable statute suggests that the right of the examiner or examinee is limited to recording only selected parts of the examination.” (Id. at 750.)

Therefore, the Court declines to order that that only Dr. Glidden may audio-record the testing portion.

Production of the Raw Testing Data

The proposed order also seeks the following:

“Dr. Glidden…will subsequently convey the audio-recording directly to Plaintiff’s retained licensed psychologist expert only, in order to ensure compliance with position papers issued by neuropsychological organizations which prohibit the release of certain protected psychological test information to non-psychologists.”

Defendant argues that, despite the holding in Randy's Trucking, Inc. v. Superior Court (2023) 91 Cal.App.5th 818 that “denied defendants’ request to limit transmission of the test data and materials to a licensed psychologist or neuropsychologist; instead, the court ordered defendants’ neuropsychologist to transfer raw data and an audio recording of the examination to plaintiffs' attorney subject to a protective order (the transmission order),” that court lacked the declaration entitled the “Collective Statement of Importance of Protection of Psychological Test Materials” signed by hundreds of prominent neuropsychologists, attached as Exhibit H.

In Randy's Trucking, the plaintiff alleged she suffered a traumatic brain injury after a motor vehicle accident. (Id. at 824.) As noted above, the trial court granted defendants' motion to compel the plaintiff to undergo a mental examination, but it ordered defendants' neuropsychologist to transfer to plaintiffs' attorney, among other things, the audio recording of the examination. (Id.)

The appellate court thereafter denied defendants' writ of mandate, finding that the trial court did not abuse its discretion when it ordered defendants' neuropsychologist to provide plaintiff with the audio recording of the examination. (Id. at 825, 842.)

In doing so, it noted, as this Court noted above as to the audio recording, that  pursuant to section 2032.530, "[b]oth the examiner and examinee 'have the right to record a mental examination by audio technology.' [Citation.]" (Id. at 834.) Further, as to the issue here, "[t]here is no statutory authority ... precluding a trial court from ordering the disclosure of test materials or test data when ordering a mental examination. [Citation.]" (Id. at 834.) Further, noting that, "[w]hile [Carpenter v. Superior Court (2006) 141 Cal.App.4th 249] did not decide whether the examiner's ethical and professional obligations precluded disclosing the test questions and the examinee's answers to the examinee, the appellate court recognized the trial court has discretion to order the disclosure of such materials even if no statute authorizes it" (Id. at 835.)

The appellate court concluded:

"[S]ince section 2032.530, subdivision (a) grants the examinee the right to record a mental examination by audio technology, it implies the examinee may retain a copy of the audio recording. Where, as here, the trial court ordered the examiner to record the examination, the trial court had discretion to order the examiner to provide a copy to the examinee. Therefore, we conclude the trial court here had the discretion to order the production of the raw data and audio recording, as stated in its order." (Id. at 837.)

Further, the court noted plaintiff’s “…right to take discovery and cross-examine defendants' expert witnesses, which includes being able to examine the expert on the matter upon which the expert's opinion is based and the reasons for that opinion. [Citation.] Without the raw data and audio recording, plaintiffs cannot effectively scrutinize the way the data was collected, determine if there are discrepancies, and cross-examine the neuropsychologist on the basis and reasons for the neuropsychologist's opinion." (Id. at 838.) Additionally that, disclosure of such materials would "…help to protect against abuse and disputes over what transpired during the examination." (Id.) Finally,  the appellate court found that plaintiffs "should not be forced to retain an expert to gain access to these materials and even if they do retain one, that expert can only assist the attorney in preparing for cross-examination; to prepare and conduct an effective cross-examination, 'the attorney must themselves possess more than a second-hand understanding of the information being scrutinized.'” (Id.)

Defendant argues that the Randy’s Trucking court’s decision was driven, at least in part, by the lack of expert evidence as to the professional responsibility of sharing raw data, noting:

“The only evidence on this issue that was before the trial court was Dr. Victor's declaration.” (Id. at 837.) “While Dr. Victor explained the dangers associated with TPO, she did not explain why a protective order would not ameliorate those dangers. She also did not explain why her ethical obligations would be violated if a court ordered her to disclose the raw data and audio recording to plaintiffs' attorney subject to a protective order. Dr. Victor identified numerous standards in the APA Ethical Standards by number which she claimed could be violated if TPO were allowed, but Dr. Victor did not explain the potential violations and the APA Ethical Standards were not submitted to the trial court.” (Id. at 837-838.)

Therefore, in support of this motion, as noted above, Defendant submits Exhibit H that contains the following:

• “why a protective order would not ameliorate those dangers”— See paragraphs 10-12, page 5 line 14 to page 8 line 12.
• “why her ethical obligations would be violated if a court ordered her to disclose the raw data and audio recording to plaintiffs' attorney”—See paragraphs 2-9, page 1 line 12 to page 5 line 13.
• “explain[s] the potential violations [of] the APA Ethical Standards”—See paragraphs 6 and 8, page 4 line 8 to page 5 line 3. 

The Court’s review of Exhibit H, however, does not address the following from the Randy’s Trucking opinion:

“Standard 9.04 of the APA Ethical Standards, which according to Business and Professions Code section 2936 sets the standard of care for psychologists in California, allows for the release of 'test data,' which is defined as 'raw and scaled scores, client/patient responses to test questions or stimuli, and psychologists' notes and recordings concerning client/patient statements and behavior during an examination,' as well as '[t]hose portions of test materials that include client/patient responses,' pursuant to a client/patient release. In the absence of a release, 'psychologists provide test data only as required by law or court order.'" (Randy's Trucking, supra, 91 Cal.App.5 at 839, fn. 11, emphasis added.) 

"Thus, the ethical standards arguably are not violated where, as here, a court orders release of test data." (Id.)

The Court’s issue with the refusal or reluctance to release the data except to Plaintiff’s retained expert is that, as addressed by the Randy’s Trucking opinion, a Plaintiff should not be forced to retain an expert to obtain the results of the examination. Defendant’s position, and that the position taken in Exhibit H, is that the data would not be released to the Plaintiff directly, ever. But the Plaintiff, as the client or patient, would otherwise have a right to their own medical information or records.

Therefore, the Court will not order that the examiner “…convey the audio-recording directly to Plaintiff’s retained licensed psychologist expert only…”

Copies of Data Test Sheets

The proposed order also seeks:

Likewise, and for the same test security and protection reasons, copies of the psychological test data sheets used to document Plaintiff’s test performance can only be forwarded to plaintiff’s retained, licensed psychologist expert.

On this issue, Randy’s Trucking, citing Carpenter, is instructive:

“The appellate court recognized resolution of this issue was within the trial court's discretion, but the trial court's decision to deny access to the written test questions was based on an erroneous conclusion regarding copyright law. (Carpenter, supra, 141 Cal.App.4th at p. 272.) The appellate court found the evidence before the trial court was insufficient to support the finding that providing a copy of the tests would be a copyright infringement, as the evidence did not indicate which test the examiner would use, the terms by which the examiner came into possession of the tests, or any limitations on their disclosure. (Id. at p. 273.) Moreover, “[e]ven if it could be presumed that all ‘written standardized tests’ evaluating emotional and cognitive functioning were subject to copyright protection, it was not established that providing a copy of the test questions, after an examination and by court order, would violate copyright law in every instance.” (Ibid.)

“For the benefit of the trial court and parties on remand, the appellate court considered material the defendant presented on the writ that were from two copyright holders concerning certain standardized psychological tests. (Carpenter, supra, 141 Cal.App.4th at p. 273.) The appellate court noted in those materials, both copyright holders suggested a satisfactory way to provide the tests after the mental examination—the test questions and answers could be given to the plaintiff's counsel or a designated psychologist, “subject to a protective order strictly limiting the use and further disclosure of the material, and providing for other safeguards against access that would compromise the integrity and validity of the tests.” (Id. at p. 274.)” (Randy’s Trucking, supra, 91 Cal. App. 5^th at 835, FN 9.)

Therefore, the Court finds a protective order of the same nature appropriate here as to the copyright concerns.

Proposed Order

Under Code of Civil Procedure section 2032.320, “[a]n order granting a physical or mental examination shall specify the person or persons who may perform the examination, as well as the time, place, manner, diagnostic tests and procedures, conditions, scope, and nature of the examination.”  (Code Civ. Proc., § 2032.320, subd. (d).)  Further, a trial court order must “describe in detail who will conduct the examination, where and when it will be conducted, the conditions, scope and nature of the examination, and the diagnostic tests and procedures to be employed. The way to describe these ‘diagnostic tests and procedures’—fully and in detail—is to list them by name.” (Carpenter, supra, 141 Cal.App.4th at 260.)

Except as noted above, the proposed order complies these requirements.

Protective Order

The Court concludes that Plaintiff may record the interview pursuant to statute and therefore access the raw data. Any concerns about maintaining test security can be satisfied with an appropriate protective order. (See Randy's Trucking, supra, 91 Cal.App.5th at 838.) Further Exhibit H does appear to consider attorneys' own ethical obligations or presented evidence, in this case, of a substantial risk that counsel will deliberately violate a protective order or fail to put in place safeguards to prevent the inadvertent breach of test security. 

Therefore, the Court grants the motion to compel the neuropsychological testing sought by Defendant, but will require a proposed order consistent with the above ruling. Additionally, the Court orders the parties to meet and confer as to an appropriate protective order based upon this ruling and the cases cited herein.

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:                Munger Bros., LLC vs. Nutrien AG Solutions, Inc.

Case No.:   VCU311567

Date:           April 28, 2025

Time:           8:30 A.M. 

Dept.           7-The Honorable Gary M. Johnson

Motion:      Defendants’ Application for Admission Pro Hac Vice of Nicholas Warden

Tentative Ruling: To grant the application of attorney Nicholas A. Warden of Bailey & Glasser LLP to appear as counsel pro hac vice for Defendants.

Facts and Analysis

The Court’s file indicates that timely and proper notice was given to all parties affected by attorney Warden’s application to appear pro hac vice for Defendants.

The Court finds that attorney Warden meets the statutory requirements under California Rule of Court 9.40(a) to submit applications to appear pro hac vice before this Court, and that the contents of this application of attorney Warden indicates that association with California counsel Joshua N. Kastan of DKM Law Group, LLP, and as such meets the statutory requirements of California Rule of Court 9.40(c) and (d).

The Court further notes that attorney Warden’s application meets the other statutory requirements under California Rule of Court 9.40(d) for pro hac vice applications and that attorney Warden’s current appearance in Fresno County is not sufficiently numerous to warrant denial of the present application under California Rule of Court 9.40(b).

Additionally, the Court notes the filing of a March 18, 2025 notice indicates that that the applicable fees that must be paid to the State Bar of California under Rule 9.40(e) to support applications for admission pro hac vice have been tendered to the State Bar. The Court had not previously reviewed this filing prior to the April 7, 2025 hearing on this application.

Based on the foregoing, the application of attorney Nicholas A. Warden of Bailey & Glasser LLP to appear as counsel pro hac vice for Defendants is granted.

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