Tentative Rulings

The Tentative Rulings for Thursday, April 3, 2025, are:

Re:                 Acosta, Tanner vs. Sequioa Beverage Company LP

Case No.:   VCU298896

Date:           April 3, 2025

Time:            8:30 A.M. 

Dept.           1-The Honorable David C. Mathias

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

Tentative Ruling: To continue this matter to May 20, 2025; 8:30 am; D1; to order supplemental declarations filed prior to the hearing as to the notice period, information to calculate the current lodestar, the presently incurred costs and proof of submission of the proposed settlement to the LWDA.

1. Sufficiency of Amount of Settlement (Net Estimated: $499,000)

The gross settlement amount is $900,000. Plaintiff estimates approximately 268 proposed Class Members, providing an estimated average payout of $1,862 per member.

The Class Members consist of: all current and former hourly-paid or non-exempt employees of Defendants within the State of California employed at any time during June 5, 2019 through October 10, 2024, unless Defendants choose to end the Class Period earlier under Paragraph 36 of the Settlement Agreement.

The operative amended complaint alleges (1) Violation of California Labor Code §§ 510 and 1198 (Unpaid Overtime); (2) Violation of California Labor Code §§ 226.7 and 512(a) (Unpaid Meal Period Premiums); (3) Violation of California Labor Code § 226.7 (Unpaid Rest Period Premiums); (4) Violation of California Labor Code §§ 1194, 1197, and 1197.1 (Unpaid Minimum Wages); (5) Violation of California Labor Code §§ 201 and 202 (Final Wages Not Timely Paid); (6) Violation of California Labor Code § 204 (Wages Not Timely Paid During Employment); (7) Violation of California Labor Code § 226(a) (Non-Compliant Wage Statements); (8) Violation of California Labor Code § 1174(d) (Failure To Keep Requisite Payroll Records); (9) Violation of California Labor Code §§ 2800 and 2802 (Unreimbursed Business Expenses); (10) Violation of California Business & Professions Code §§ 17200, et seq. (11) Violation of California Labor Code § 2698, et seq. (California Labor Code Private Attorneys General Act of 2004.)

After agreeing to participate in mediation, Defendant informally produced all time and pay records for Settlement Class members, key class data points, and other documents and information relevant to the claims alleged in advance of mediation. The parties did not reach settlement after mediation, but resolved the matter afterwards in part to continue negotiations and a mediator’s proposal.

Plaintiff provide estimates of the maximum recovery for each of the asserted wage and hour claims and penalties with information showing how the estimates were calculated including the damages models utilized. (Declaration of Sweeny ¶¶  8– 13.) The total estimated maximum recovery in the event of an outright victory is approximately $8,428,023.40. (Declaration of Sweeney ¶12.)

Plaintiff has a provided detailed discussion of the value of each claim, applied various discount rates regarding the chance of success as to each claim which correspond to the final gross settlement amount. Counsel estimates the realistic recovery of approximately $907,332.67. (Declaration of Sweeney ¶12.)

The Court finds the information provided in support of the gross settlement amount sufficient for the Court to preliminarily approve the gross settlement amount, as the settlement amount appears to be within the recognized range of reasonableness given the claims and defenses asserted in this case.

Plaintiffs’ proposed deductions from the gross settlement of $900,000 are as follows:

Proposed Court Approved Attorney Fees (35%):	$315,000
Proposed Attorney Costs (up to):	$15,000
Proposed Enhancement Payment to Plaintiff Acosta:	$7,500
Proposed Enhancement Payment to Plaintiff Jensen:	$7,500
Proposed Settlement Administrator Costs	$6,000
Proposed Total PAGA Payment	$50,000
Proposed Net Settlement Amount	$499,000

2.  Class Notice

The settlement agreement provides no claim form will be required of class members to participate in distributions.  Only those wishing to object or opt out must file notice with the settlement administrator. 

Objections or opt out notices are to be made within 45 days.

The Court regularly approves notice periods of 60 days or longer. The class notice period is not approved.

With respect to the content of the Notice, the Court finds the Class Notice to be reasonable.  It clearly provides to the class member an estimate of the settlement share the employee is to receive and provides adequate instructions for any class member to opt out of the settlement or to submit an objection.

3.  Enhancement Awards to Class Representatives

The Court preliminarily approves Plaintiffs Acosta and Tanner as Class Representatives for purposes of settlement only. The proposed enhancement award to Plaintiffs is $7,500 each.

The Court has, in past cases, approved enhancement awards of $5,000.00 routinely.

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

The Court’s review of the declarations of Plaintiffs indicate justification for the $5,000 award, but no amount higher. The Court approves an enhancement payment of $5,000 each.

4. Attorneys’ Fees and Costs

Attorneys’ fees of 35% of the gross settlement fund of $900,000 or $315,000 and costs not to exceed $20,000 are sought by Plaintiffs’ counsel.

Although the Court recognizes the utilization of the percentage of the common fund methodology to award attorneys’ fees, the Court requires a declaration from counsel that provides an estimate as to what the lodestar would be in this case. The ultimate goal of the Court is to award reasonable attorneys’ fees irrespective of the method of calculation. As such, the court needs to know the estimate of the approximate lodestar supported by declarations for preliminary approval. Counsel should submit information as to the time spent on this action and the hourly rates of all counsel working on the case. Without such information, the Court declines to preliminarily approve the fees.

The Court also cannot preliminarily approve costs up to $20,000.00 without a declaration which states the costs currently expended. 

The Court, however, finds that Plaintiff’s counsel are experienced class action attorneys through the declarations of counsel.

5.  Claims Administrator

The Court preliminary approves Phoenix Settlement Administrators as the claims administrator for this class action based on prior experience with this settlement administrator in other class actions litigated in this Court.  The Court preliminarily approves administration costs not to exceed $6,000.

6. Unclaimed Settlement Proceeds

The Court denies the distribution of unclaimed settlement proceeds to Legal Aid of Los Angeles. The court will approve the distribution of such funds to an agency or entity local to Tulare County in accordance with Code of Civil Procedure section 384.

7. Release

The Court finds the proposed release of claims reasonable under the circumstances.

8. LWDA Notice

Counsels’ declarations fail to indicate confirmation from the LWDA of receipt of proof of submission of the proposed settlement agreement. (Lab. Code, § 2699, subd. (l)(2).)

9. Class Certification

Code of Civil Procedure section 382 permits certification “when the question is of a common or general interest, of many persons, or when the parties are numerous, and it is impracticable to bring them all before the court.”  (Code Civ. Proc. § 382.)  The plaintiff bears the burden of demonstrating that class certification under section 382 is proper.  (See City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 460.)  To do so, “[t]he party advocating class treatment must demonstrate the existence of an ascertainable and sufficiently numerous class, a well-defined community of interest, and substantial benefits from certification that render proceeding as a class superior to the alternatives.”  (Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1021.) 

Here, the Motion and accompanying declarations sufficiently set forth the basis for finding the class is numerous and ascertainable 268 employees have been identified through Defendants’ employment records. Additionally, common questions of law and fact predominate within the individual causes of action based on class wide policies and procedures of Defendants. Further, the class representatives, through their declaration, indicate they will adequately and fairly represent the Class Members and will not place their interests above any Class Member. The Class Representatives were employed by Defendant during the relevant time period and thus worked under the same policies and procedures as the Class Members.

Therefore, the Court continues this matter to May 20, 2025; 8:30 am; D1. The Court orders supplemental declarations as to the notice period, information to calculate the current lodestar, the presently incurred costs, cy pres recipiant and proof of submission of the proposed settlement to the LWDA.

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:                 Choa, James vs. FCA US, LLC.

Case No.:   VCU315303

Date:            April 3, 2025

Time:            8:30 A.M. 

Dept.           1-The Honorable David C. Mathias

Motion:     Defendant’s Demurrer to Fraud Cause of Action

Tentative Ruling: To overrule the demurrer; to order Defendant to answer the complaint no later than ten (10) days from the date of this hearing. CMC is continued to June 5, 2025: 8:30 am; D1.

Facts

In this Song Beverly vehicle action, Plaintiff pleads multiple causes of action, including, at issue on this demurrer, fraudulent inducement against demurring Defendant FCA.

Plaintiff alleges that “On or about June 23, 2018, Plaintiff entered into a warranty contract with Defendant FCA regarding a 2018 Jeep Wrangler, vehicle identification number 1C4HJXDG1JW132294 (hereafter "Vehicle"), which was manufactured and or distributed by Defendant FCA.” (Complaint ¶10.) “The warranty contract contained various warranties, including but not limited to the bumper-bumper warranty, powertrain warranty, emission warranty, etc.” (Complaint ¶11.)

Further, that “These causes of action arise out of the warranty obligations of FCA US LLC. in connection with a motor vehicle for which FCA US LLC. issued a written warranty.” (Complaint ¶14.) Such defects include “…engine defects, transmission defects, electrical defects; among other defects and non-conformities.” (Complaint ¶15.)

It is alleged Plaintiff purchased the Subject Vehicle as manufactured with FCA’s defective engine. (Complaint ¶¶18, 64.) Further, that “FCA knew since prior to Plaintiff purchasing the Subject Vehicle, that the 2018 Jeep Wrangler vehicles equipped with the 3.6L engine have one or more defects that can result loss of power, stalling, engine running rough, engine misfires, failure or replacement of the engine (the “Engine Defect”)” (Complaint ¶¶19, 64.)

It is further alleged that the Engine Defect is a safety concern because it can suddenly affect the driver’s ability to control the vehicle or cause a non-collision vehicle fire and that the Engine Defect can cause the vehicle to fail without warning, while the Vehicle is moving at highway speeds.” (Complaint ¶¶20, 69, 71)

Plaintiff alleges further, on information and belief, that prior to Plaintiff acquiring the Vehicle, FCA was well aware and knew that the Vehicle was defective but failed to disclose this fact to Plaintiff at the time of sale and thereafter. (Complaint ¶¶21, 66) Plaintiff further alleges that “FCA acquired its knowledge of the Engine Defect prior to Plaintiff acquiring the Vehicle, through sources not available to consumers such as Plaintiff, including but not limited to pre-production and post-production testing data; early consumer complaints about the Engine Defect made directly to FCA and its network of dealers; aggregate warranty data compiled from FCA’s network of dealers; testing conducted by FCA in response to these complaints; as well as warranty repair and part replacements data received by FCA from FCA’s network of dealers, amongst other sources of internal information.” (Complaint ¶¶22, 66.)

Additionally, that FCA concealed and failed to disclose the defective nature of the Vehicle and its Engine Defect to its sales representatives and Plaintiff at the time of sale and thereafter, with FCA omitting mention of the Engine Defect to its consumers. (Complaint ¶¶23, 66)

Further, it is alleged that “Plaintiff is a reasonable consumer who interacted with sales representatives, considered FCA’s advertisement, and/or other marketing materials concerning the FCA Vehicles prior to purchasing the Subject Vehicle. Had FCA revealed the Engine Defect, Plaintiff would have been aware of it and would not have purchased the Subject Vehicle.” (Complaint ¶¶24, 69, 70)

Additionally, that “FCA was inundated with complaints regarding the Engine Defect but rather than repair the problem under warranty, FCA dealers either inform consumers that their vehicles are functioning properly or conduct repairs that merely mask the defect” and FCA had exclusive knowledge of the Engine Defect. (Complaint ¶¶25-29.)

As to the sixth cause of action for fraudulent inducement, Plaintiff’s allegations are incorporated into the facts noted above.

Defendant FCA demurrers to the sixth cause of action, arguing the cause of action fails to state facts sufficient to constitute a cause of action pursuant to Code of Civil Procedure  section 430.10(e) and Civil Code sections 1709, 1710. FCA argues that Plaintiff fails to meet California’s heightened pleading standards for fraud as no factual allegations as to the purchase of the Subject Vehicle or that “FCA even knew or should have known the vehicle was sold to Plaintiff.” Defendant further argues “Plaintiff never alleges any specific defect in this vehicle, much less that FCA had knowledge of the defect. Plaintiff relies on ambiguous qualifiers such as  “can cause the vehicle to fail” or “may result in loss of power,” without alleging any other occurrences of failure of similar vehicles, much less actual failure to this specific vehicle,” citing to paragraphs 64 through 71 of the complaint.   

In opposition, Plaintiff argues sufficient pleading under Dhital v. Nissan N. Am., Inc. (2022) 84 Cal.App.5th 828 as to fraud by concealment, noting that Defendant’s exclusive knowledge of the material facts as to the Engine Defect.

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.)

Fraudulent Inducement

“As with all fraud claims, the necessary elements of a concealment/suppression claim consist of ‘“(1) misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (scienter); (3) intent to defraud (i.e., to induce reliance); (4) justifiable reliance; and (5) resulting damage.”’” [citation omitted]”  (Dhital v. Nissan North America, Inc. (2022) 84 Cal.App.5th 828, 843.)  “Suppression of a material fact is actionable when there is a duty of disclosure, which may arise from a relationship between the parties, such as a buyer-seller relationship.  [citation omitted]” (Id.)

Concealment must be pled with specificity.  (Id. at 843-844) General and conclusory allegations are not sufficient. (Nagy v. Nagy (1989) 210 Cal.App.3d 1262, 1268.) Unlike most causes of action where the “the policy of liberal construction of the pleadings,” fraud requires particularity, that is, “pleading facts which show how, when, where, to whom, and by what means the representations were tendered.” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) Every element of a fraud cause of action must be alleged both factually and specifically. (Cooper v. Equity General Insurance (1990) 219 Cal.App.3d 1252, 1262.) Less specificity is required when "it appears from the nature of the allegations that the defendant must necessarily possess full information concerning the facts of the controversy," (Bradley v. Hartford Acc. & Indem. Co. (1973) 30 Cal. App. 3d 818, 825.) "Even under the strict rules of common law pleading, one of the canons was that less particularity is required when the facts lie more in the knowledge of the opposite party ...." (Turner v. Milstein (1951) 103 Cal. App. 2d 651, 658.)

Dhital, supra, 84 Cal.App.5th at 844 is instructive on the issue of specificity at the pleading stage, providing in relevant part:

“Plaintiffs alleged the above elements of fraud in the SAC. As we have discussed, plaintiffs alleged the CVT installed in numerous Nissan vehicles (including the one plaintiffs purchased) were defective; Nissan knew of the defects and the hazards they posed; Nissan had exclusive knowledge of the defects but intentionally concealed and failed to disclose that information; Nissan intended to deceive plaintiffs by concealing known transmission problems; plaintiffs would not have purchased the car if they had known of the defects; and plaintiffs suffered damages in the form of money paid to purchase the car….

Nissan also contends plaintiffs did not provide specifics about what Nissan should have disclosed. But plaintiffs alleged the CVT were defective in that they caused such problems as hesitation, shaking, jerking, and failure to function. The SAC also alleged Nissan was aware of the defects as a result of premarket testing and consumer complaints that were made both to National Highway Traffic Safety Administration and to Nissan and its dealers. It is not clear what additional information Nissan believes should have been included. We decline to hold (again in the absence of a more developed argument on this point) that plaintiffs were required to include in the SAC more detailed allegations about the alleged defects in the CVT. We conclude plaintiffs' fraud claim was adequately pleaded.” (Dhital, supra, 84 Cal.App.5th at 844.)

Here, Plaintiff pleads the Engine Defect installed in numerous FCA vehicles with the same 3.6L engine, that FCA knew or should have known of the Engine Defect, that FCA had exclusive knowledge thereof as a result of internal sources or data, that FCA failed to disclose the Engine Defect, that Plaintiff would not have purchased the car but for the Engine Defect and that Plaintiff suffered damages in the form of payment for the Subject Vehicle. (Complaint ¶¶18-28; 64-71.)

Further, to the Court, this goes beyond the defects that are presupposed by the warranty and Plaintiff has alleged the Engine Defect existed in vehicles of the same make, model and year of the Subject Vehicle, in contrast to the holding in Santana v. FCA US, LLC (2020) 56 Cal.App.5th 334, 344. (Complaint ¶¶19, 21, 22, 23.)

Therefore, the Court overrules the demurrer. Defendant is ordered to answer the complaint no later than ten (10) days from the date of this hearing.

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

Re:                 Cuevas, Rosa vs. City of Tulare

Case No.:   VCU312132

Date:           April 3, 2025

Time:           8:30 A.M. 

Dept.           1-The Honorable David C. Mathias

Motion:     Demurrer to Amended Second Amended Cross-Complaint

Tentative Ruling: To sustain the demurrer with leave to amend; Cross-Complainant’s shall have ten (10) days to file an amended complaint.

Facts

The complaint filed in this matter seeks damages for injuries to Plaintiff Cuevas caused by Defendants/Cross-Complainants City of Tulare and Ryan Garcia, amongst others, following a traffic stop wherein Plaintiff was a passenger in a vehicle she owned and the driver of the vehicle refused to stop and attempted to evade police. Defendants are alleged to have engaged a police canine to assist in apprehending Plaintiff, the driver and a third person in the vehicle. The driver of the vehicle shot at the canine and Defendant Ryan Garcia, killing the canine and injuring the officer. Defendants responded by firing their guns at the vehicle, killing the driver and striking Plaintiff a number of times. Plaintiff sued for negligence, battery, intentional infliction of emotional distress and for violation of the Bane Act.

City of Tulare and Ryan Garcia filed a cross complaint against Plaintiff for negligence, negligence per se, assault and battery and for equitable contribution. The assault and battery cause of action was dismissed by stipulation.

The Court sustained the demurrer to the cross-complaint by Cuevas with leave to amend on the basis of the firefighter’s rule and a lack of application of any exceptions thereto.

The City and Garcia filed an amended cross-complaint alleging negligence and equitable contribution causes of action. The Court sustained the demurrer to the cross-complaint by Cuevas with leave to amend on the basis of the firefighter’s rule and a lack of application of any exceptions thereto.

The City and Garcia filed a second amended cross-complaint alleging the following:

“8. On or about December 9, 2018, Cross-Defendant Rosa Cuevas (hereafter “Cuevas”) was the registered owner of a 2001 Mercury, California license, 4MXL570, which she negligently entrusted to Quinntin Castro (hereafter “Castro”) despite knowing that he was a convicted felon with a history of violence toward law enforcement officers and was, at the time, under the influence of methamphetamine and armed with an illegally possessed handgun. In doing so, Cuevas violated Vehicle Code § 14604(a), a statute expressly enacted to protect the public (including police officers) from the dangers posed by unlicensed drivers such as Castro. Entrusting her vehicle to an individual she knew or should have known was under the influence further endangered officers and members of the public. Cuevas was aware of and involved in a variety of criminal activities when Tulare Police Officers attempted to initiate a lawful car stop with a marked police vehicle for observed traffic infractions. The initial reason for officers contacting Cuevas’ vehicle was solely to issue a routine citation for running a stop sign. There was no indication or reason to believe that officers would be exposed to any additional risk or danger based on the purpose of the initial contact

9. However, after officers attempted to initiate a routine traffic stop, Castro attempted to evade officers by accelerating to reckless speeds, endangering the public, Officer Ryan Garcia (hereafter “Garcia”), other officers and Cuevas. Knowing of the presence of Garcia and other officers and, fully aware of Castro’s obligation to yield to officers, Cuevas instead negligently and recklessly gave Castro verbal encouragement to continue to attempt to evade arrest, further endangering Garcia and other officers. Once the pursued vehicle became disabled in mud, Castro and Cuevas had a duty to obey, but refused lawful commands of Officer Garcia and other officers to exit the vehicle. Unaware of any danger posed by occupants of the vehicle, Sgt. Garcia broke the drivers window of Cuevas’ vehicle in an attempt to improve communications with the occupants. Knowing only that the purpose of the initial contact was related to a traffic infraction, Officer Garcia then approached the vehicle to communicate with and gain the cooperation of Castro, Cuevas and any other occupants of the vehicle. Officer Garcia was completely unaware that Castro was armed with a handgun and the officer did not approach the vehicle with the expectation or purpose of getting shot in a traffic related stop.

10. Seated next to Castro, Cuevas knew that Castro had a loaded handgun on the front seat in plain view next to her left leg. However, when Sgt. Garcia broke the driver’s window to improve communications, Cuevas was clearly aware of officers’ presence and was uniquely situated in a special relationship with approaching and vulnerable officers to have a duty to warn them of the deadly, but otherwise unforeseeable, risk presented. This deadly risk was not inherent in a traffic related stop and was not the purpose for which Garcia was attempting to make contact with Cuevas and other occupants of the vehicle. Yet, having a clear opportunity to warn Officer Garcia of the hidden risk of a deathly encounter, Cuevas breached her duty to warn Garcia and other officers which proximately and directly resulted in the death of police K9 “Bane” and career ending gunshot wounds to Garcia. As the owner of the involved vehicle she had entrusted to Castro, Cuevas had the ability and legal duty to control Castro’s conduct, but further breached that duty by negligently and recklessly encouraging Castro to endanger Garcia and other officers.” (SACC ¶¶8, 9, 10.)

Additionally, the operative amended cross-complaint alleges Cuevas’s acts and omissions occurred after she was aware of the officers’ presence and that the risks to law enforcement were unforeseeable and not expected to assume as part of their occupation. (SACC ¶¶11.)

Further, that “Cross-Defendant, individually and acting together with others, owed a general duty of care to Cross-Complainant’s employees, including Officer Ryan Garcia, so as to not expose them to an unreasonable risk of harm occasioned by Plaintiffs/Cross-Defendant’s conduct. This duty initially arose and was breached with Cross-Defendant’s entrustment of her vehicle to the unlicensed Castro in violation of Vehicle Code § 14604(a), a statute expressly enacted to protect the public, including police officers such as Garcia….” (SACC ¶14.)

Additionally, that “…Cuevas negligently and recklessly gave Castro verbal encouragement to continue to flee so as to endanger officers far beyond the initial risks inherent in a simple traffic stop. Once Castro became stuck, Cross-Defendant knew that Castro possessed a loaded firearm and that approaching officers, including Garcia, would be exposed to an otherwise unforeseeable or risk as they initially attempted to establish communications with the vehicle occupants. Cross-Defendant had a general and special duty to warn approaching officers, including Garcia, that they would be vulnerable to an otherwise unknown deadly risk known only to Cross-Defendant and other vehicle occupants. Once the window had been broken, Cross-Defendant had ample opportunity to warn officers of this new risk.” (SACC ¶15.)

Cuevas demurrers to the amended cross-complaint based on an application of the firefighter’s rule and a lack of applicable exceptions thereto. Cuevas additionally argues that there are no new factual allegations contained in the second amended cross-complaint and that this is, in essence, a motion for reconsideration of the Court’s prior ruling.

In opposition, the Cross-Complaints argue the firefighter’s rule is not applicable to the facts alleged in the operative amended cross-complaint based on the underlying policies of the rule and that, in any event, two statutory exceptions under Code of Civil Procedure section 1749.1(a)(1) and (a)(2) apply.

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.)

Application of Firefighter’s Rule

The firefighter's rule, which applies equally to firefighters and to police officers injured in the line of duty, is an application of the doctrine of primary assumption of risk (Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532, 538.)

Under the firefighter's rule, one whose conduct causes the intervention of the police officer owes no duty of care with respect to the original negligence that caused the police officer's intervention. (Id.) Therefore, absent exceptions, an injured police officer cannot seek damages from the negligent party for the original act of negligence. (Id.)

“Stated in its most traditional terms, the firefighter's rule ‘is that which negates liability to [firefighters] by one whose negligence causes or contributes to the fire which in turn causes the death or injury of the [firefighter].’ [citation omitted]” (Calatayud v. State (1998) 18 Cal. 4th 1057, 1061.) “The undergirding legal principle of the rule is assumption of the risk … .” (Id.) Under the rule, there is no legal duty to protect individuals from the inherent risk of harm that they are employed to confront (Id.) A claim for an injury arising out of a routine, occupational risk is barred regardless of the source of the injury-causing conduct. (See Gregory v. Cott (2014) 59 Cal. 4th 996, 1001–1002.)

There exist a number of justifications for this rule grounded in public policy. (Walters v. Sloan (1977) 20 Cal. 3d 199, 204.) Those within the ambit of the rule, may not recover for negligence that is the reason for their employment. (Neighbarger, supra, 8 Cal. 4th at 539–540.) Further, the firefighter's rule serves as a cost spreading mechanism because the taxpayers have “…purchased exoneration from the duty of care and should not have to pay twice, through taxation and through individual liability, for that service.” (Id. at 542–543.)

Before examining the exceptions to this rule, the Court will examine its application.

Here, the Court initially applies the rule, as Garcia was on duty when he, and others, attempted to apprehend the individuals in the car following the traffic stop and subsequent pursuit. The dangers Garcia and others confronted, that is a person who failed to stop, fled and attempted to evade arrest, was both the reason for the presence of law enforcement and a risk normally associated with the occupation of law enforcement.

In Hodges v. Yarian (1997) 53 Cal. App. 4th 973, an off-duty police officer was injured when he confronted an intruder in the parking garage of his apartment building, but the court found the officer's “original reason for being on the premises was irrelevant; the firefighter's rule was triggered because the officer reacted as a police officer to the disturbance, and deliberately encountered the danger posed.” (Id. at 976-977, 984.) Here, the cross-complaint alleges Officer Garcia reacted as a police officer to the chase, and deliberately encountered the danger posed.

The Court contrasts Malo v. Willis (1981) 126 Cal. App. 3d 543, 548 where a California Highway Patrol officer ordered the defendant and another speeding motorist to pull their vehicles over to the side of the road and thereafter the officer parked his patrol car between the two detained vehicles. The defendant in Malo then pressed the clutch pedal instead of the brake pedal, striking the patrol car and causing the officer to sustain a serious whiplash injury. (Id.) The appellate court did not find that the firefighter’s rule applied because the injuries to the officer were caused by the defendant driver’s unfamiliarity with the manual transmission, a risk that was neither "a reason for [the patrolman's] presence at the accident scene," nor one of the risks normally associated with apprehending speeding motorists. (Id.)

Here, the dangers of apprehending a fleeing suspect were a risk that was the reason for Officer Garcia’s presence and a risk associated, in the Court’s view, with apprehending a driver who has previously refused to stop after contact by law enforcement.

In Orozco v. Cty. of Yolo (1992) 814 F. Supp. 885, 898, the District Court found when law enforcement officer “participated in the execution of the warrant he took precautions against an armed suspect, including drawing his weapon and checking all biding spaces along the corridor” and that “[Officer] was called to the scene because drug activity was suspected. He knew that drug activities present a significant risk that an officer will be shot.” Therefore, the District Court concluded, citing Lenthall v. Maxwell (1982) 138 Cal.App.3d 716, that the firefighter’s rule applied in such circumstances “where a police officer. . . should reasonably anticipate that one of the persons whom he was called on to subdue might resist him by the use of the firearms involved.” (Id.)

Though no warrant is present here, the Court finds it significant that the events preceding the shooting involved an attempted stop, a failure to stop, a chase involving reckless speed where the vehicle in pursuit was stopped by mud, and for which law enforcement felt it to be understandably necessary to approach the vehicle, break a window and utilize a police canine suggests increased risks and reasonable anticipation thereof. The Court finds this is an acknowledged risk falling squarely within the facts contemplated by the rule because the risk was a part of the high risk traffic stop that ensued after a high speed chase which caused the suspect vehicle to become stuck in the mud.  The negligently created risk which caused the injury was part of the reason why law enforcement officers were summoned to the scene in their professional capacity.

Additionally, the Court does not find this situation akin to Terhell v. American Commonwealth Associates (1985) 172 Cal.App.3d 434, where no application was found when the property owners created an unguarded and concealed opening in the roof, failed to alert the firefighter of its presence and where the unguarded hole in the roof was not the cause of the firefighter’s presence at the scene. (Id. at 441.)

The Court does not find that “independent acts of misconduct” were “committed after the officer has initially arrived” to preclude application of the rule. Rather, the attempted traffic stop, pursuit, and subsequent discharging of firearms is part of the same sequence of events.

Therefore, the Court finds the rule applies to the allegations of the amended cross-complaint and will examine its exceptions.

Exceptions to the Firefighter’s Rule

As noted above, the firefighter's rule contains statutory exceptions. (Calatayud, supra, 18 Cal. 4th at 1063.) Cross-Complainants argue that the statutory exceptions in Civil Code section 1714.9(a)(1) and (2) apply to the facts alleged in the cross-complaint.

Civil Code section 1714.9(a)(1) provides that the firefighter's rule does not apply when the defendant/cross-defendant’s negligent “conduct causing the injury occurs after the person knows or should have known of the presence of the peace officer, firefighter, or emergency medical personnel.” The exception appears to apply "only to conduct committed after the officer responds to a call for assistance, or while he is in the performance of his duties with respect to a specific incident, and such conduct increases the risk of injury to the officer." (Seibert Security Services, Inc. v. Superior Court (1993) 18 Cal.App.4th 394, 410.)

Here, the primary conduct causing injury is the firing of the weapon.

However, the Court examines whether the alleged failure by Cuevas to warn of the presence of the gun also constitutes conduct causing the injury.

Terhell, supra, 172 Cal.App.3d at 439 notes that while a property owner does not incur liability for negligently starting a fire, the owner thereafter " 'has generally been held liable if, after a [firefighter] arrives, the owner negligently fails to advise the [firefighter] of some special danger on the property which ultimately causes the officer's injury. [Citations.]' " In Terhell, the plaintiff “while engaged in the course and scope of his employment as a [firefighter], was on the roof of said building . . . unaware of the concealed opening and fell through it, causing him serious injuries and damages . . . .” (Id. at 438.) The defendant owners of the building knew of the opening and its hazard but failed to warn the plaintiff or anyone else of its presence. (Id.) Further, the court noted “application of the rule has been consistently denied where plaintiffs have alleged negligent failure to warn of a hidden known danger.” (Id. at 441.)

Here, it is alleged the Cuevas knew of the presence of the gun and failed to warn law enforcement of the presence of the gun. The application of this exception appears to turn on whether the presence of a gun in this situation is a special, hidden danger for which Cuevas would have a duty to warn law enforcement of conduct increasing the risk of injury to the officer. As noted by the court in Stapper v. GMI Holdings (1999) 73 Cal. App. 4th 787, 794, “’Inherent risk’ does not refer to the type of injury that the plaintiff sustains or the manner in which the injury occurred, but rather the reason for the injury.”

As discussed above, in the Court’s view, the allegations of the amended cross-complaint indicate an attempt to “evade officers by accelerating to reckless speeds” and the use of a police canine to apprehend the suspects indicate this to be a higher risk traffic stop, one which contemplates that the person fleeing may be armed and dangerous. The Court still cannot say here that the risk of being shot at by a fleeing criminal suspect is a special danger outside of that involved in this traffic stop, one which followed a failure to yield to law enforcement, involved reckless speeds, where the vehicle was stopped not voluntarily but by mud, and where law enforcement felt it appropriate to utilize a police canine after breaking a window in the vehicle.

Boon v. Rivera (2000) 80 Cal.App.4th 1322 is factually distinguishable from the case at hand. There:

“Boon responded to a 911 call for police help initiated by a representative of Pinegrove. The emergency call was placed from the Reynaldo residence. Boon was the first officer to arrive at the scene, where Reynaldo had barricaded himself in the house…

[Reynaldo’s wife] also advised Boon and other officers that Reynaldo was not violent. She also stated that she had not taken all the guns from the residence and that she did not know the type or number of guns still in the house. Even though she knew there was an M-16 rifle and a gun safe in the house and that Reynaldo had threatened to kill the first police officer who arrived at the residence, she did not disclose those facts to the police. Boon relied on the information that Milagro conveyed to him and other officers that Reynaldo was not violent and, therefore, responded with nonlethal force. If he had been told the true facts about the threat, he would have responded with different tactics and with lethal force.” (Id. at 1325-1326.)

The plaintiff in Boon was injured when the barricaded person Reynaldo pointed a firearm at plaintiff and fired several shots, striking plaintiff. (Id. at 1326.)

Here, there is no affirmative misrepresentation by Cuevas. At most, Cross-Defendants have alleged a failure to warn of the presence of the firearm and therefore the Court finds no application of Boon. Again, the Court views the initial stop, pursuit and subsequent shooting part of the series of events that necessitated the summoning of law enforcement. "The rule does not apply to conduct other than that which necessitated the summoning of the firefighter or police officer, and it does not apply to independent acts of misconduct that are committed after the firefighter or police officer has arrived on the scene." (Id. at 1327.)

Therefore, the Court does not find that the (a)(1) exception applies.

Civil Code section 1714.9(a)(2) further excepts from the firefighter's rule those cases “[w]here the conduct causing injury violates a statute, … and the conduct causing injury was itself not the event that precipitated either the response or presence of the peace officer, firefighter, or emergency medical personnel.” 

Section 1714.9(a)(2) contemplates the imposition of liability for a statutory violation that is independent of the incident that necessitated the officer’s presence. The amended cross-complaint alleges that Cuevas’ violation of the Vehicle Code caused the pursuit and eventual injury to Officer Garcia. Therefore, it is alleged that Cuevas’ alleged failure to comply with the statutory requirements of the Vehicle Code was itself the event that precipitated Officer Garcia’s presence at the end of the pursuit. The allegations of violations of Vehicle Code section 14604 are not independent of the traffic stop, the pursuit and the attempts to apprehend the persons in the vehicle.

Therefore, the Court does not find the (a)(2) exception applies.

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, in an abundance of caution, permits leave to amend here. Cross-complainants shall have ten (10) days to file an amended cross-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:                 Accelerated Inventory Management, LLC vs. Vasquez, Fatima

Case No.:   VCL304793

Date:           April 3, 2025

Time:            8:30 A.M. 

Dept.           1-The Honorable David C. Mathias

Motion:     Motion to Set Aside Default

Tentative Ruling: To inquire as to notice and service of this motion; if no notice was provided, to deny the motion without prejudice; if notice of this motion was provided and the documents were served, the Court intends to grant the motion and set aside the default judgment and entry of judgment.

Facts

In this collection matter asserting causes of action for breach of contract, open book account, account stated and unjust enrichment, Plaintiff filed a proof of service indicating substitute service on Defendant Fatima Vasquez occurred via service on Luis Vasquez, age 45, describe as Hispanic with brown hair, weighing 210 pounds with a height of five foot nine inches on January 21, 2024 at 6:07 pm at 3044 W Mill Creek Dr., Visalia, CA 93291. The proof of service was completed by a registered California process server who also indicates that the proof and summons were mailed to the same address. The proof of service also contains a declaration of due diligence indicating two prior attempts at service before substitute service.

Entry of default occurred September 17, 2024. Default judgment was entered September 20, 2024.

On November 1, 2024, Defendant Vasquez filed a memorandum and declaration in support seeking relief from default judgment. Defendant has provided a proposed answer to the complaint.

On December 19, 2024, the Court denied the motion without prejudice, finding that the statement “I was never served a copy of the Summons and Complaint” conclusory and insufficient to rebut the presumption afforded by the registered process server’s proof of service.

On March 5, 2025, Defendant filed the current motion to set aside default and default judgment. In support, Defendant’s declaration states no one named “Luis Vasquez” or anyone who fits the description resides or was present at the residence on Mill Creek Drive on the date of alleged substitute service. (Declaration of Vasquez ¶7.) Plaintiff indicates her husband is named Daniel, weighs 170 pounds and has black and grey hair. (Declaration of Vasquez ¶7.) Further, two minor children reside at the Mill Creek Drive residence and one adult child, a female, resides there as well. (Declaration of Vasquez ¶8.)

Defendant indicates further that her father is named Luis Contreras, but resides at his own residence and does not match the description provided by the process server. (Declaration of Vasquez ¶9.)

Defendant indicates that the only notice received of this action was the notice of default in September 2024. (Declaration of Vasquez ¶10.)

Defendant has previously provided a proposed answer to the complaint.

Defendant moves for relief from default under Code of Civil Procedure sections 473(b) and 473.5.

No opposition appears to have been filed, but, it is unclear if this March 5, 2025 motion was served on Plaintiff, as the Court lacks a proof of service thereof.

Authority and Analysis

First, the Court must inquire as to service of this motion on Defendant and notice of this hearing.

If the documents were not properly served, the Court denies the motion without prejudice.

If service was properly made, the Court rules as follows.

The Court may relieve a party or counsel from a judgment, dismissal, order or other proceeding taken against the party resulting from mistake, inadvertence, surprise, or excusable neglect.  (Code Civ. Proc., § 473, subd. (b).)  The application for relief must be made within a reasonable time, not to exceed six months, after the judgment, dismissal, order or proceeding was taken.  (Id.)  

Here, there is no issue as to the timing of this motion.

“A ‘mistake’ exists when a person, under some erroneous conviction of law or fact, does, or omits to do, some act which, but for the erroneous conviction, he would not have done, or omitted. It may arise either from unconsciousness, ignorance, forgetfulness, imposition, or misplaced confidence.” (Salazar v. Steelman (1937) 22 Cal.App.2d 402, 405, 410.) 

“Surprise” is defined as “some condition or situation in which a party to a cause is unexpectedly placed to his injury, without any default or negligence of his own, which ordinary prudence could not have guarded against.” (Miller v. Lee (1942) 52 Cal.App.2d 10, 16.)

Further, “excusable neglect” has been defined as “neglect that might have been the act or omission of a reasonably prudent person under the same or similar circumstances.” (Ebersol v. Cowan (1983) 35 Cal.App.3d 427, 435.)

“Finally, as for inadvertence or neglect, ‘[t]o warrant relief under section 473 a litigant's neglect must have been such as might have been the act of a reasonably prudent person under the same circumstances. The inadvertence contemplated by the statute does not mean mere inadvertence in the abstract. If it is wholly inexcusable it does not justify relief.’ ” (Hearn v. Howard (2009) 177 Cal.App.4th 1193, 1206.)” (Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215, 230.)

The Court starts with the completed proof of service. A properly completed proof creates a rebuttable presumption that the documents as indicated in the proof of service were received.  (Colleen M. v. Fertility & Surgical Assocs. (2005) 132 Cal.App.4th 1466, 1479-1480.)  The presumption of proper service can be rebutted by introducing evidence that the document was not received.  (Phay Him v. City & County of San Francisco (2005) 133 Cal.App.4th 437, 445.)  A rebuttal of the presumption of proper service should be supported by sworn testimony that neither the attorney of record nor the party received the document.  (Bonzer v. City of Huntington Park (1993) 20 Cal.App.4th 1474, 1479-1480.)

“Section 473 is often applied liberally where the party in default moves promptly to seek relief, and the party opposing the motion will not suffer prejudice if relief is granted.  [Citations.]  In such situations ‘very slight evidence will be required to justify a court in setting aside the default.’  [Citation.]”  (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233.) “… [T]he law favors disposing of cases on their merits, ‘any doubts in applying section 473 must be resolved in favor of the party seeking relief from default [citations].’” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980.).

Here, the declaration properly rebuts the description of the person on whom substitute service was allegedly provided. No person matching the description was present at the residence at the time of service based on the declaration of Defendant.

Therefore, the Court finds the very slight evidence sufficient under surprise or excusable neglect above, given that service does not appear to have occurred.

The Court, therefore, grants the motion and orders Defendant to file the proposed answer 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:                 Chavez Mendoza, Norma vs. Latino Farm Labor Service, Inc.

Case No.:   VCU314256

Date:            April 3, 2025

Time:           8:30 A.M. 

Dept.           1-The Honorable David C. Mathias

Motion:     Motion for Judgment on the Pleadings

Tentative Ruling: To grant the motion with leave to amend; Plaintiff shall have ten (10) days to file an amended complaint. CMC is continued to June 5, 2025: 8:30 am; D1.

Facts

In the operative amended complaint, Plaintiff alleges the following:

“8. Defendant Latino Farm Labor Service, Inc. hired Plaintiff on or about August 18, 2021, as a staffroom assistant.

9. Plaintiff conducted her duties in a diligent and competent manner.

10. Plaintiff’s protected status and activity:

a. Plaintiff suffered an arm injury during the course of her employment duties while carrying trays.

b. Plaintiff sought medical attention and was recommended to perform stretches to alleviate the condition.

c. Plaintiff informed a manager of her injury and need for accommodation to perform these stretches as part of her recovery.

d. Plaintiff complained of unlawful action by Defendants.

11. Defendants’ adverse employment actions and behavior:

a. The manager disregarded Plaintiff’s injury and request for accommodation.

b. Plaintiff was terminated promptly after notifying the manager of her injury on or about October 20, 2023.” (FAC ¶¶ 8-11.)

On these facts, Plaintiff alleges disability discrimination as to the termination of her employment, failure to prevent discrimination, failure to engage in interactive process, failure to provide reasonable accommodation and retaliation for engaging in protected activity as to the accommodation.

Plaintiff attaches various right to sue letters and a complaint before the Civil Rights Department (“CRD”) that states:

“Complainant alleges that on or about April 13, 2023, respondent took the following adverse actions: Complainant was harassed because of complainant's sex/gender, sexual harassment-hostile environment. Complainant was discriminated against because of complainant's age (40 and over), sexual harassment-hostile environment and as a result of the discrimination was terminated.”

Defendant answered the amended complaint.

Defendant now moves for judgment on the pleadings on the basis that Plaintiff’s injury and damages are within the exclusive jurisdiction of workers compensation statutes and that Plaintiff’s amended complaint is outside the scope of the complaint filed with the CRD and the right to sue notice.

In opposition, Plaintiff argues that there was an insufficient meet and confer process, that Plaintiff notified Defendant of the intent to amend the pleadings and seeks sanctions under Code of Civil Procedure section 128.7

Authority and Analysis

Judgment on the Pleadings

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.)

Meet and Confer

Per California Code of Civil Procedure section 439(a), "[b]efore filing a motion for judgment on the pleadings pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion for judgment on the pleadings … for the purpose of determining if an agreement can be reached that resolves the claims to be raised in the motion for judgment on the pleadings." (Code Civ. Proc., § 439(a).)

However, the Court notes that under subsection (a)(4) “A determination by the court that the meet and confer process was insufficient shall not be grounds to grant or deny the motion for judgment on the pleadings.”

Here, the declaration indicates that two days prior to filing this motion, counsel met and conferred over telephone and could not reach an agreement to modify the amendment.

This appears sufficient and the Court notes no pending motion for leave to amend by Plaintiff, which would be required as to an amended pleading under Code of Civil Procedure section 472.

Section 128.7

Code of Civil Procedure section 128.7 requires that the motion "shall be served as provided in Section 1010, but shall not be filed with or presented to the court unless, within 21 days after service of the motion, or any other period as the court may prescribe, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected." (Code Civ. Proc., § 128.7, subd. (c)(1).)

Strict compliance, not substantial compliance, with the safe harbor notice provisions is required. (CPF Vaseo Associates, LLC v. Gray (2018) 29 Cal.App.5th 997, 1007.) As one court described it: "Close is good enough in horseshoes and hand grenades, but not in the context of the sanctions statute." (Hart v. Avetoom (2002) 95 Cal.App.4th 410, 414.) Strict compliance serves the statutes' remedial purpose and underscores the seriousness of a motion for sanctions. (Galleria Plus, Inc. v. Hanmi Bank (2009) 179 Cal.App.4th 535, 538.)

Additionally, under section 128.7(c)(1), this motion must be made separately from other motions. (Code Civ. Proc. § 128.7(c)(1).)

Here, there is no showing as to the safe harbor period and the motion is not separate from the opposition filed. The Court denies any relief requested under section 128.7.

Workers Compensation Exclusivity

California’s workers compensation system provides the exclusive remedy “in lieu of any other liability whatsoever” for injury or damages sustained by an employee arising out of and in the course of employment. (Labor Code §§ 3600, 3602 et seq.) The Supreme Court noted that the essence of the Labor Code’s “compensation and the exclusive remedy provisions is an injury sustained and arising out of the course of employment….” (Cole v. Fair Oaks Fire Protection (1987) 43 Cal.3d 148, 160.) If injuries are sustained because of an act “arising out of employment” an action is barred “no matter what its name or technical form….” (Id.)

The Worker's Compensation Act's exclusivity provisions preempt not only those causes of action premised on a compensable workplace injury, but also those causes of action premised on injuries “collateral to or derivative of” such an injury. (King v Compartners. Inc. (2018) 5 Cal.5th 1039, 1051-1052) Such collateral or derivative injuries include injuries stemming from conduct occurring in the workers' compensation claims process.

However, conduct in violation of the FEHA outside the scope of the employment relationship or the compensation bargain at the heart of the workers' compensation system. (Light v. Department of Parks & Recreation (2017) 14 Cal.App.5th 75, 96-97; M.F. v. Pac. Pearl Hotel Mgmt LLC (2017) 16 Cal. App. 5th 693, 700 [“…the workers' compensation exclusivity doctrine is inapplicable to claims under the FEHA.”].) The Court applies this to all five claims in the amended complaint under FEHA. While the recovery of damages for the physical injury to her arm may be within the workers compensation exclusivity doctrine, the claims are pled as violations of FEHA.

Therefore, the Court denies the motion under this argument.

Scope of CRD Complaint and Right to Sue

To bring a civil action alleging violations of the FEHA, a plaintiff must first exhaust administrative remedies by filing a timely complaint with the CRD and receive a right-to-sue letter. (Gov't Code § 12965(b).)

The scope of the CRD complaint is important as it “defines the scope of the subsequent civil action.” (Rodriguez v. Airborne  Express (9th Cir. 2001) 265 F.3d 890, 896.) "Allegations in a complaint that fall outside the scope of the administrative charge are barred for failure to exhaust." (Okoli v. Lockheed (1995) 36 Cal.App.4th 1607, 1617.)

"The administrative exhaustion requirement is satisfied the allegations of the civil action are within the scope of the [CRD] charge, any [DRD] investigation actually completed, or any investigation that might reasonably have been expected to grow out of the charge." (Wills v. Superior Court (2011) 195 Cal.App.4th 143, 154 [citing Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 266-267].)

The Wills court further noted that:

“Specifically, the Nazir court adopted the following standard used to determine the permissible scope for civil actions under title VII of the federal Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.) after an employee files an administrative complaint with the federal Equal Employment Opportunity Commission (EEOC): “ ‘The administrative exhaustion requirement is satisfied if the allegations  of the civil action are within the scope of the EEOC charge, any EEOC investigation actually completed, or any investigation that might reasonably have been expected to grow out of the charge. Thus, the judicial complaint may encompass any discrimination “like and reasonably related to” the allegations of the EEOC charge.’ ” (Wills, supra, 195 Cal. App. 4th at 154-155.)

"To exhaust his or her administrative remedies as to a particular act made unlawful by the Fair Employment and Housing Act, the claimant must specify that act in the administrative complaint, even if the complaint does specify other cognizable wrongful acts." (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal. App. 4th 1718, 1724.)

Here, the right to sue letter and complaint wholly fail to allege the physical injury suffered by Plaintiff while employed was the basis for disability discrimination and the related causes of action. Rather, the CRD documents reflect harassment and discrimination based solely on Plaintiff’s sex/gender and age.

Therefore, the Court grants the motion on the basis of failure to exhaust administrative remedies as to the allegations and causes of action contained in the amended operative complaint.

The Court, however, will permit leave to amend. The Court takes the position that, like a demurrer, a motion for judgment on the pleadings cannot be granted 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.)

Here, it appears that Plaintiff could modify the complaint in order to come within the scope of the CRD documents. Plaintiff shall have ten (10) days to file an amended complaint consistent with this ruling.

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:                 Starnet Insurance Company vs. CPM Wolverine Proctor, LLC

Case No.:   VCU295263

Date:           April 3, 2025

Time:           8:30 A.M. 

Dept.           1-The Honorable David C. Mathias

Motion:     Defendant Rockwell’s Motion to Determine Good Faith Settlement

Tentative Ruling: To grant the unopposed motion.

Facts

In this matter, Plaintiffs Starnet, Treehouse and Lloyds allege damages from a fire alleged to have started from a roaster that occurred at an almond processing facility on January 18, 2021.

As against Defendant Rockwell Automation Inc. dba Allen Bradley PLC, Plaintiffs assert strict products liability and negligence contending that Defendant Rockwell’s “Control System with starters and burner management, which failed in use and failed to safely regulate the temperature in the ROASTER, which caused approximately 4,000 of raw almonds to reach their autoignition temperature and ignite which ultimately caused a catastrophic fire on January 18, 2021.” (Complaint ¶6.)

Defendant Rockwell seeks approval of a settlement reached between itself and Plaintiffs based on the following.

On March 25, 2015, Treehouse entered into a contract with CPM for the purchase of Wolverine Proctor Roaster for Whole Natural Almonds. (Golodnitska Decl., ¶ 5.) The Roaster was equipped with a B-6 wide stainless-steel conveyor. (Golodnitska Decl., ¶ 5.) The Roaster was configured with two (2) roasting zones (Zone 12 and Zone 2) and one (1) ambient cooling zone. (Golodnitska Decl., ¶ 5.) The Roaster was delivered to the Subject Property on August 15, 2015. (Golodnitska Decl., ¶ 5.) The Roaster was assembled and started up in May 2016. (Golodnitska Decl., ¶ 5.)

Plaintiffs allege that on May 25, 2016 Treehouse production manager, Carl Tristao emailed CPM’s Chuck Kovacs and advised that the fans in Zone 1 of the Roaster were out of balance, vibrating and wobbling up and down. (Golodnitska Decl., ¶ 6.) In response, CPM sent out its engineer Vinnie Davignon to troubleshoot the alleged issue. (Golodnitska Decl., ¶ 6.) Also engaged, was a local contractor, Rutter who re-balanced the fans in the Roaster on or about June 27, 2016. (Golodnitska Decl., ¶ 6.)

Plaintiffs further contend that on the day of the January 18, 2021 incident, one of the original fans again came out of balance, began vibrating and wobbled until the steel welded joints and the fan blade welds failed, at which time the fan remains became wedged against the outer chamber door within Zone 1 of the Roaster. (Golodnitska Decl., ¶ 6.) Plaintiffs claim that as a result, the fan at issue stopped circulating the heat, which began to rise to an unsafe level, until the point when the raw almonds ignited. (Golodnitska Decl., ¶ 6.)

It is further asserted that Zone 1 of the Roaster was not equipped with a functional high limit switch or sensor necessary to shut off the natural gas supply and stop the continued supply of heat on the day of the January 18, 2021 incident. (Golodnitska Decl., ¶ 7.) Plaintiffs also claim that Zone 1 of the Roaster was not equipped with a functional internal fire suppression system, designed to extinguish the fire. (Golodnitska Decl., ¶ 7.)

Plaintiffs’ liability expert, in opposing Rutter’s motion for summary judgment, opined that the Roaster’s fan and lack of proper fire suppression system caused the incident. (Golodnitska Decl., ¶ 7.)

The Roaster allegedly failed to operate properly, which led to an overheating event, causing over 4,000 pounds of raw almonds to auto-ignite. (Golodnitska Decl., ¶ 8.)

Plaintiffs seek over $23,000,000 in damages, though this amount is in dispute. (Golodnitska Decl., ¶ 8.)

Rockwell’s subsidiary, Allen-Bradley designed and manufactured a PLC Control System that was subsequently used in connection with the Roaster (“Controller”). (Golodnitska Decl., ¶ 9.) This is an “off-the shelf” product and was not custom-manufactured for the Roaster. (Golodnitska Decl., ¶ 9)

Rockwell was not involved in installation, assembly, start-up, maintenance, repairs, inspections and/or examination of the Roaster or any of its component parts, including but not limited to the Controller at any time at the Subject Property. (Golodnitska Decl., ¶ 9.) Nor did Rockwell program the Controller. (Golodnitska Decl., ¶ 9.)

The Controller did not control and had no connection whatsoever, to the fans inside the roaster or any functionality thereof. (Golodnitska Decl., ¶ 10.) The Controller was not responsible for the high limit temperature switch, internal and/or external fire suppression system on the Roaster. (Golodnitska Decl., ¶ 10.) The high limit temperature switch was manufactured by a company called Future Design. (Golodnitska Decl., ¶ 10.) The Controller did not control or otherwise had any connection to the Future Design high limit temperature switch. (Golodnitska Decl., ¶ 10.)

Rockwell further notes that, at their respective depositions, witnesses unequivocally conceded that they did not personally experience nor are aware of anyone else experiencing problems or issues with the Controller at any time prior to the incident. (Golodnitska Decl., ¶ 10.)

On December 13, 2024, Rockwell reached settlement with Plaintiffs. (Golodnitska Decl., ¶ 12.) The terms of the settlement agreement required payment of $50,000 by Rockwell, and a waiver of costs and fees, for a full dismissal of Plaintiffs’ respective claim against Rockwell with prejudice. (Golodnitska Decl., ¶ 12.) Other Defendants CPM, Beeler, California Boiler, Rutter and Brother’s Welding were not parties to this settlement. (Golodnitska Decl., ¶ 12.)

No opposition to this motion appears to have been filed.

Authority and Analysis

“Any party to an action in which it is alleged that two or more parties are joint tortfeasors or co-obligors on a contract debt shall be entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors or co-obligators, upon giving notice in the manner provided in subdivision (b) of Section 1005 . . .” (Code Civ. Proc., § 877.6, subd. (a)(1).)

“A determination by the court that the settlement was made in good faith shall bar any other joint tortfeasor or co-obligor from any further claims against the settling tortfeasor or co-obligor for equitable comparative contribution, or partial or comparative indemnity, based on comparative negligence or comparative fault.” (Code Civ. Proc., § 877.6, subd. (c).)

Code of Civil Procedure section 877.6 affords the court with the discretion to determine whether a settlement reached by opposing parties in litigation is in good faith such that it is “within the reasonable degree of the settling tortfeasor's proportional share of comparative liability for the plaintiff's injuries” based on the facts and circumstances in the particular case. (Tech-Bilt. Inc. v. Woodward-CIyde & Associates (1985) 38 Cal. 3d 488, 499.)

"In moving under section 877.6 for a good faith settlement determination, the moving party must set forth the value of the consideration paid and an evidentiary basis for that valuation, and must demonstrate that the valuation 'was reached in a sufficiently adversarial manner to justify the presumption that a reasonable valuation was reached, '" (See Franklin Mint Co. v. Superior Court (2005) 130 Cal.App.4^th 1550, 1558.)

However, the moving party’s initial evidentiary burden depends on whether the good faith of the settlement is being contested. If the nonsettling defendants do not oppose the motion on the good faith issue, a “barebones” motion which sets forth the grounds of good faith, accompanied by a declaration which sets forth a brief background of the case, is sufficient. (City of Grand Terrace, supra, 192 Cal.App.3d at 1261.)

Here, Rockwell’s initial burden in moving for good faith determination is to prove there has been a settlement.  (See Franklin Mint Co. v. Superior Court (2005) 130 Cal.App.4th 1550, 1558.) The Court finds a settlement has been reached between Rockwell and Plaintiffs. 

There is no precise yardstick for measuring “good faith” of a settlement with one of several tortfeasors. “Good faith” depends upon what the plaintiffs knew about liability at the time of settlement, not evidence that might be acquired later. (Tech-Bilt, Inc. v. Woodward-Clyde & Assocs. (1985) 38 Cal.3d 488, 499.) The following factors have been identified to assist in determining good faith:

(a) A rough approximation of plaintiffs' total recovery and the settlor's proportionate liability;

(b) The amount paid in settlement;

(c) A recognition that a settlor should pay less in settlement than if found liable after a trial;

(d) The allocation of the settlement proceeds among plaintiffs;

(e) The settlor's financial condition and insurance policy limits, if any; and

(f) Evidence of any collusion, fraud, or tortious conduct between the settlor and the plaintiffs aimed at making the nonsettling parties pay more than their fair share. (Id. at 499.)

The Court finds that the motion adequately demonstrates that the proposed settlement complies with Tech-Bilt, noting that the motion is unopposed and the “barebones” showing has been made via the moving papers. For this reason and because it is unopposed, the Court grants the motion. (Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410.)

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