Tentative Rulings

The Tentative Rulings for Tuesday, July 15, 2025, are:

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

Case No.:   VCU310439

Date:           July 15, 2025

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

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

Tentative Ruling: To continue the motion to August 12, 2025, 8:30 am, Dept. 2 and to order counsel is directed to provide a supplemental declaration as to the attorney rate and hours information to calculate the lodestar and the presently incurred costs.

Background Facts and Consolidation

Plaintiff filed a Private Attorney’s General Act (“PAGA”) complaint against Defendant on January 25, 2024, Case No. VCU305475.

Thereafter, Plaintiff filed this class action complaint against Defendant on June 25, 2024.

On June 24, 2025, this Court, pursuant to the stipulation of the parties, consolidated these matters.

On June 20, 2025, Plaintiff filed a motion for preliminary approval of both the class action and PAGA settlement, which the Court will examine below.

1. Sufficiency of Amount of Settlement (Net Estimated: $114,050)

The gross settlement amount is $300,000. Plaintiff estimates approximately 2,447 proposed Class Members, providing an estimated average payout of $46.61 per member.

The Class Members consist of:

“All persons directly employed by Defendant in California and classified as a non-exempt employee who worked during the Class Period, which extends from June 25, 2020, through the date of the Preliminary Approval Order, which date is subject to change by Defendant in Defendant’s sole discretion pursuant to the escalator provision in the Settlement Agreement which allows for up to a 10% increase in workweek”

Plaintiff primarily alleged unpaid wages, failure to provide meal and rest breaks, failure to reimburse business expenses, failure to provide wage statements and failure to provide timely wages. Additionally, as noted above, Plaintiff has consolidated the PAGA claim into this matter.

Plaintiff provides 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 Koulloukian ¶¶ 14, 15.) The total estimated maximum recovery in the event of an outright victory is $10,187,308. (Declaration of Koulloukian ¶15.e.)

Plaintiff has provided a detailed discussion of the value of each claim, applied various discount rates regarding the chance of success as to each claim which corresponds to the final gross settlement amount. Counsel estimates a  potential recovery of approximately $1,375,323 and therefore the proposed settlement of $300,000 represents approximately 22% of this reasonably forecasted figure. (Declaration of Koulloukian ¶15.e.)

As to the PAGA penalties, Plaintiff estimates a maximum recovery of $742,500 based on 14,850 pay periods. (Declaration of Koulloukian ¶15.f.) The settlement provides or $30,000 in PAGA penalties.

After agreeing to participate in early mediation, Defendants informally produced 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 reached the settlement after a full day of mediation. 

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.

Plaintiff’s deductions from the gross settlement of $300,000 are proposed as follows:

Court Approved Attorney Fees (33.3%):	$100,000
Attorney Costs (up to):	$30,000
Enhancement Payment to Plaintiff :	$10,000
Settlement Administrator Costs	$15,950
Total PAGA Allocation	$30,000
Net Settlement Amount	$114,050

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. Therefore, 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 Plaintiff Veronica Enriquez, as Class Representative for purposes of settlement. The proposed enhancement award to Plaintiff is $10,000.

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 declaration of Plaintiff indicates justification for the $5,000 award, but no amount higher. The Court finds that Plaintiff engaged in typical participation in discovery and resolution of this matter and the award of $5,000 adequately compensates Plaintiff for this participation, including any reputational risk undertaken.

The Court, therefore, will approve the enhancement award of $5,000.

4. Attorneys’ Fees and Costs

Attorneys’ fees of 33.3% of the gross settlement fund of $300,000 or $100,000 and costs not to exceed $30,000 are sought by Plaintiff’s 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 $30,000.00 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 ILYM Group, Inc. as the claims administrator for this class action based both on prior experience with this settlement administrator in other class actions litigated in this court and on the Declaration of Sean Hartranft, Senior Vice President of Sales for IYLM. The Court preliminarily approves administration costs not to exceed $15,950 based upon the Declaration of Mullins and the itemized estimate. (Declaration of Mullins – Exhibit C.)

6. Unclaimed Settlement Proceeds

The court preliminarily approves the distribution of unclaimed settlement proceeds to Valley Children’s Hospital, 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

Counsel’s declaration indicates confirmation from the LWDA of receipt of proof of submission of the proposed settlement agreement. (Lab. Code, § 2699, subd. (l)(2).) (Declaration of Koulloukian ¶8 – Exhibit 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 declaration of Counsel Koulloukian sufficiently sets forth the basis for finding the class is numerous and ascertainable as 2,447 employees have been identified through Defendant’s employment records. Additionally, common questions of law and fact predominate within the individual causes of action based on class wide policies and procedures of Defendant. Further, the class representative, through their declaration, indicates they will adequately and fairly represent the Class Members and will not place their interests above any Class Member. The Class Representative was employed by Defendant during the relevant time period and thus worked under the same policies and procedures as the Class Members.

Based on the above, the motion to preliminarily approve the settlement is continued.  Counsel is directed to provide a supplemental declaration which provides information relating to the attorney rate and hours to calculate the lodestar and the presently incurred costs.

The hearing on this matter is continued to August 12, 2025, 8:30 am, Dept. 2.  

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

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

Case No.:   VCU305475

Date:           July 15, 2025

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     Motion for Approval of PAGA Settlement

Tentative Ruling: To find this motion moot by the consolidation and motion for preliminary approval of both the class action and PAGA claims, filed in VCU310439.

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:                Herrera, Maynor vs. James Jongsma Dairy

Case No.:   VCU296028

Date:           July 15, 2025

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     Hearing re: Final Compliance

Tentative Ruling: On July 10, 2025, the settlement administrator, through its senior case manager, filed a declaration with respect to distribution of the settlement. As the declaration indicates the check cashing deadline is September 3, 2025, the Court will continue this matter to September 23, 2025, 8:30 am, Dept. 2 as to the status of the settlement distribution. If a further supplemental declaration is filed by the settlement administrator, no appearance will be 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:                 Reif, Chase vs. Temmerman Corp.

Case No.:   VCU302082

Date:           July 15, 2025

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     Cross-Defendant Clint Reif’s Motion for Judgment on the Pleadings

Tentative Ruling: To grant the motion without leave to amend.

Background Facts

On September 25, 2023, Plaintiff Chase Reif, a minor by and through his guardian ad litem Kelsi Reif, filed this negligence, premises liability and dangerous condition of public property action against Defendants Temmerman Corp. and City of Tulare.

On or about April 27, 2022, Plaintiff, six years old at the time, accidentally fell while riding his dirt bike on a track when another rider went off a dirt ramp and landed on the back of Plaintiff’s head causing him to sustain a traumatic brain injury and other injuries and damages. Defendant Temmerman Corp. owned, operated, maintained, constructed, supervised, and controlled the DT1 MX Park, as well as the dirt biking tracks and courses contained therein, located at 2300 W. Paige Avenue.

On January 3, 2024, Defendants jointly answered the complaint. On November 14, 2024, the City of Tulare was dismissed.

On February 6, 2025, Cross-Complainant Temmerman filed the cross-complaint for express indemnity, implied indemnity, equitable indemnity, contribution and for declaratory relief against Clint Reif. The Court sustained a demurrer with leave to amend as to the express indemnity action and Cross-Complainant filed an amended cross-complaint for the same causes of action.

Cross-Defendant Clint Reif had demurred, answered and moved for judgment on the pleadings as to the amended cross-complaint.

The Court previously struck the demurrer, left the answer filed and now has before it the motion for judgment on the pleadings filed May 9, 2025.

First Amended Cross-Complaint and Motion for Judgment on the Pleadings

Cross-Defendant moves for judgment on the pleading as to the first cause of action for express indemnity.

The First Amended Cross-Complaint alleges Cross-Defendant Clint Reif “is a former professional moto-cross racer who taught Plaintiff how to ride a motocross dirt motorcycle (hereinafter, “motocross bike” or “bike”), supervised him while he rode a motocross bike both at home and at motocross facilities such as the Park, and was the parent who was supposed to be supervising Plaintiff at the Park on April 27, 2022” (First Amended Cross-Complaint ¶8.)

Further,  “Cross-Defendant took Plaintiff to ride motocross bikes at the Park on at least four occasions prior to April 27, 2022. When entering the gate at the Facility on each visit, Cross-Defendant signed a document titled “RELEASE AND WAIVER OF LIABILITY, ASSUMPTION OF RISK AND INDEMNITY AGREEMENT” (the “Waiver(s)”) on Plaintiff’s behalf and using Plaintiff’s name.” (First Amended Cross-Complaint ¶9.)

Temmerman attaches the Waivers from October 9, 2021; November 21, 2021; December 8, 2021; February 27, 2022; and April 27, 2022, the date of the incident at issue. (First Amended Cross-Complaint ¶9; Exhibits A – E.)

The Waivers state:

“…EACH OF THE UNDERSIGNED, for himself, his personal representative, heirs and next of kin:

2. HEREBY RELEASES, WAIVES, DISCHARGES AND COVENANTS NOT TO SUE the promoters, participants, racing associations, sanctioning organizations or any subdivision therefore, track operators, track owners, officials, car owners, drivers, pit crews, rescue personnel, any persons in any RESTRICTED AREA, sponsors, advertisers, owners and leassees of premises used to conduct the EVENT(S), premises and event inspectors, surveyors, underwriters, consultants and others who give recommendations, directions, or instructions or engage in risk evaluation or loss control activities regarding the premises or EVENT(S) and each of them, their directors, officers, agents, employees, representatives, owners, members, affiliates, successors and assigns all for the purposes herein referred to as “Releasees,” FROM ALL LIABILITY TO THE UNDERSIGNED, his personal representatives, assigns, heirs, and next of kind FOR ANY AND ALL LOSS OR DAMAGES, AND ANY CLAIM OR DEMANDS THEREFOR ON ACCOUNT OF INJURY TO THE PERSON OR PROPERTY OR RESULTING IN DEATH OF THE UNDERSIGNED ARISING OUT OF OR RELATED TO THE EVENT(S), WHETHER CAUSED BY NEGLIGENCE OF THE RELEASEES OR OTHERWISE.

3. HEREBY AGREES TO INDEMNIFY AND SAVED AND HOLD HARMLESS the Releasees and each of them FROM ANY LOSS, LIABILITY, DAMAGE, OR COST they may incur arising out of or related to the UNDERSIGNED’S INJURY OR DEATH, WHETHER CAUSED BY THE NEGLIGENCE OF THE RELEASEES OR OTHERWISE.

4. HEREBY ASSUMES FULL RESPONSIBILITY FOR ANY RISK OF BODILY INJURY, DEATH OR PROPERTY DAMAGE arising out of or related to the EVENT(S) whether caused by the NEGLIGENCE OF RELEASEES or otherwise” (First Amended Cross-Complaint - Exs. A through E.)

The operative amended cross-complaint further alleges “Cross-Defendant expressly assumed the position of Plaintiff by signing the Waivers on behalf of Plaintiff as his legal guardian, thereby taking full legal responsibility for Plaintiff’s conduct while Plaintiff participated in motocross at the Facility and agreeing to indemnify Cross-Complainant in relation to any injuries Plaintiff incurred or caused during his participation.” (First Amended Cross-Complaint ¶10.)

Additionally, “Since Cross-Defendant signed this Waiver on behalf of Plaintiff when they entered the Facility on at least four separate occasions prior to April 27, 2022, Cross-Defendant had full knowledge and a clear expectation that he would be required to assume full personal and legal responsibility for any injuries incurred or caused by Plaintiff before Plaintiff could ride motocross at the Facility on April 27, 2022.” (First Amended Cross-Complaint ¶11.)

Additionally, that “Cross-Defendant had a general expectation that when he arrived at the motocross facility that there were waivers that needed to be signed before riding. It was cross- defendant’s understanding that the waiver included that he was signing a waiver of liability. It was cross-defendant’s understanding that it was necessary for a waiver to be signed prior to entering and participating at the track. It was cross-defendant’s understanding that the waiver was for minors and he was signing for his kids. It was also cross-defendant’s understanding that the waiver included that he could be held personally liable and responsible for injuries.” (First Amended Cross-Complaint ¶11.)

Further, “It is well established within California law that a contract entered by a parent on behalf of their minor child cannot be disaffirmed. Furthermore, parents have long had a legal duty to exercise reasonable supervision and control of their children under California tort law.” (First Amended Cross-Complaint ¶24.)

“Cross-Defendant expressly assumed the position of Plaintiff and contracted with Cross-Complainant on Plaintiff’s behalf by signing Waivers as Plaintiff’s legal guardian before Plaintiff participated in motocross activities at the Facility on October 9, 2021; November 21, 2021; December 8, 2021; February 27, 2022; and April 27, 2022. There is nothing within these Waivers which limit the scope of the agreement to a single day or any limiting time period.” (First Amended Cross-Complaint ¶25.)

Additionally, that “By signing the Waivers on behalf of Plaintiff, assuming Plaintiff’s position in relation to the agreement therein, and allowing Plaintiff to ride motocross bikes at the Facility on April 27, 2022, Cross-Defendantly [sic] expressly agreed to indemnify and hold Cross-Complainant harmless for any injuries incurred or caused by Plaintiff at the Facility.”  (First Amended Cross-Complaint ¶26.)

In support of the motion for judgment on the pleadings, Cross-Defendant notes the Court’s prior ruling on demurrer, that “the Waivers at issue does not indicate that Cross-Defendant’s signature thereon bound any other person, including his minor child, or that the Waivers were executed on the child’s behalf” and that the first cause of action relies on the same Waivers the Court previously reviewed. Cross-Defendant argues the defect identified in the demurrer ruling has not been cured by amendment. Cross-Defendant again cites to primarily to Brown v. El Dorado Union High Sch. Dist. (2022) 76 Cal.App.5th 1003 and Aaris v. Las Virgenes Unified School Dist. (1998) 64 Cal.App.4th 1112 as to the argument that the Waivers refer to the “undersigned,” and only releases claims for injuries sustained by the “undersigned” and that the undersigned is solely Clint Reif.

In opposition, Temmerman argues that the language in the Waivers as to “heirs and next of kin” is sufficient and the Waiver  mimic “exactly the intention and fact of express language as the waiver samples from Brown and Aaris.”

Authority 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.)

 Express Waivers and Minors

As it did previously, the Court starts with Brown, supra, 76 Cal.App.5th at 1022, where the court found the release a valid express release of liability and assumption of risk that covers both the plaintiff’s injury and the actions of the defendant’s employees. The express waiver or release of liability contained the following:

“Prior to the start of the 2015–2016 football season, Nick and his father signed this form. The release states, ‘my son … may participate in the school-related activities designated above.’ Someone checked the boxes for baseball and football on the release Read and Nick signed.

The release provides that if Nick ‘is hurt, injured, or even dies, I/we (i.e., the student, his/her parent/s, guardian/s, heir/s …) will not make a claim against or sue the El Dorado Union High School District (hereinafter EDUHSD), its trustees, officers, employees, and agents, or expect them to be responsible or pay for any damages.’

The release included the following:

‘I, the undersigned, understand and acknowledge that the above-named student has voluntarily chosen to participate in school-related activities at his/her own risk. I/We know and fully understand that said school-related activities may involve numerous risks, dangers, and hazards, both known and unknown, where serious accidents can occur, and where participants can sustain physical injuries, damage to their property, or even die. Regardless of whether the school-related activity involves physical contact or not, any activity may have inherent risks of injury which are inseparable from the activity. I/We acknowledge and willingly assume all risks and hazards of potential injury, paralysis, and death in the school-related activity/ies … .’

…’In consideration for EDUHSD, allowing the above-named students to participate in the school-related activity/ies specified above, I/we voluntarily agree to release, waive, discharge, and hold harmless the EDUHSD and its trustees, officers, employees, and agents from any and all claims of liability arising out of their negligence, or any other act or omission which causes the above-named student illness, injury, death or damages of any nature in any way connected with the student's participation in the school-related activity/ies….’

‘As parent or legal guardian of the student/participant under 18 years of age, I have read and voluntarily agree that my son/daughter may participate in the school-related activity/ies designated above and I sign this release on his/her behalf. In signing this document I fully recognize and understand that if my son/daughter is hurt, dies, or his/her property is damaged, I am giving up my right and the right of his/her heirs to make a claim or file a lawsuit against the EDUHSD, its trustees, officers, employees, and agent[.]’

‘By signing below, I/we acknowledge that I/we: (1) have read this document and understand that I/we give up substantial actual or potential rights in order to allow the above-named student to participate in the school-related activity/ies and any associated field trip or excursion; (2) have voluntarily signed as evidence of acceptance of this Agreement without any inducement or assurance of any nature, with full appreciation of the all [sic] risks inherent in the school-related activity/ies; (3) have no question regarding the scope or intent of this Agreement and I (parent/guardian/non-minor student) have the right and authority to enter into this Agreement and to bind myself, the student, and any other family member, personal representative, assign, heir, trustee, or guardian to the terms of this Agreement. This is a release of all claims.” (emphasis added.)

The court found, as to this release, that the father’s signature was sufficient to bind the son to its terms, without much further analysis. (Id. citing to Eriksson v. Nunnink (2015) 233 Cal.App.4th 708, 721 [“courts have held that the right to disaffirm a minor's contract does not extend to a release of liability signed by a parent on behalf of the minor”].)

In Eriksson, supra, 233 Cal. App. 4^th at 720, the release at issue was contained the following “9. When the Trainer, Rider and (if minor) Rider's parent sign this Release, it will then be irrevocable and binding on all parties, subject to the above terms and conditions” and was signed by the “Trainer”, the minor as “Rider” and by one of the parents as “Rider’s Parent.”

The Eriksson court noted “we observe that [Rider] was 17 years old at the time she signed the release and at the time of her death. Although minors may enter into contracts (Fam. Code, § 6700), Family Code section 6710 provides that such contracts ‘may be disaffirmed by the minor before majority or within a reasonable time afterwards or, in case of the minor's death within that period, by the minor's heirs or personal representative.’ (Fam. Code, § 6710; …However, courts have held that the right to disaffirm a minor's contract does not extend to a release of liability signed by a parent on behalf of the minor.[citations omitted.]” (Id. at 720-721.)

In finding that the release bound the minor and could not be disaffirmed, the Eriksson court noted the release was expressly “entered into” between the trainer, minor and minor’s parent and upon the signature of all three, the release was irrevocable and binding on all parties, subject to the above terms and conditions. (Id. at 721.) “By signing as [minor’s] parent, [the parent] approved of the terms of the release and understood that her signature made the release ‘irrevocable and binding.’” (Id.)

Turning again to Aaris, supra, 64 Cal.App.4th at 1120, the release at issue there stated:

"I hereby give my consent for the above named student to compete in the Las Virgenes High School approved activity program ... and travel with the school representative on authorized school trips. I, the undersigned, hereby release and discharge the Las Virgenes Unified School District, officers, employers, agents, servants and volunteers (herein collectively referred to as 'District') from all liability arising out of or in connection with the above described activity or all liabilities associated with any and all claims related to such activity that may be filed on behalf of or for the above named minor. For the purposes of this agreement, liability means all claims, demands, losses, causes of action, suits or judgments of any and every kind ... that occurs during the above described activity and that results from any cause other than the negligence of the District." (emphasis added)

There, the court found “It is well established that a parent may execute a release on behalf of his or her child” citing to Hohe v. San Diego Unified Sch. Dist. (1990) 224 Cal. App. 3d 1559, 1565. (Id. at 1120.)

By contrast, as noted by Cross-Defendant, the Waivers at issue does not indicate that Cross-Defendant’s signature thereon bound any other person, including his minor child, or that the Waivers were executed on the child’s behalf.

“It is the parties' expressed objective intent, not their unexpressed subjective intent, that governs.” (Koenig v. Warner Unified School Dist. (2019) 41 Cal.App.5th 43, 57-58 citing In re Tobacco Cases I (2010) 186 Cal.App.4th 42, 47.) Therefore, the additional allegation that “It was cross-defendant’s understanding that it was necessary for a waiver to be signed prior to entering and participating at the track. It was cross-defendant’s understanding that the waiver was for minors and he was signing for his kids. It was also cross-defendant’s understanding that the waiver included that he could be held personally liable and responsible for injuries” does not impact this analysis, as this unexpressed, subjective “understanding” or intent is not reflected in the express language of the Waivers. (First Amended Cross-Complaint ¶11.)

The releases in Brown, Eriksson and Aaris all expressly contemplated a parent’s signature on behalf of the minor or included the minor’s signature and were expressly concerning the minor’s participation in an activity. Additionally, the Waivers at issue here do not indicate that Cross-Defendant intended to release potential claims on behalf of the minor, the Plaintiff in this case.

The Court agrees that Cross-Defendant here only agreed to expressly indemnify Cross-Complainant for injuries that Cross-Defendant himself sustained. The Waivers repeatedly refer only to the “undersigned” without reference to any third party or minor child of Cross-Defendant and the use of “heirs and next of kin”

The portions of the waivers highlighted by Cross-Complainant appear to the Court to preclude Cross-Defendant’s heirs or next of kin from initiating or continuing a lawsuit on Cross-Defendant’s behalf against Cross-Complainant. This is evident to the Court when the Waivers are read as a whole.

“…EACH OF THE UNDERSIGNED, for himself, his personal representative, heirs and next of kin:

2. HEREBY RELEASES, WAIVES, DISCHARGES AND COVENANTS NOT TO SUE the [“Releasees”] FROM ALL LIABILITY TO THE UNDERSIGNED, his personal representatives, assigns, heirs, and next of kind [sic] FOR ANY AND ALL LOSS OR DAMAGES, AND ANY CLAIM OR DEMANDS THEREFOR ON ACCOUNT OF INJURY TO THE PERSON OR PROPERTY OR RESULTING IN DEATH OF THE UNDERSIGNED ARISING OUT OF OR RELATED TO THE EVENT(S), WHETHER CAUSED BY NEGLIGENCE OF THE RELEASEES OR OTHERWISE.” (Exhibits – Waivers)

Here, Cross-Defendant is waiving liability for injuries or death to the undersigned only. The Court’s interpretation is guided too by the comparison to the language in the waivers from Brown, Eriksson and Aaris. The waivers in those cases indicated that the parent was waiving liability for injuries to the child, as opposed to waiving liability for injuries to the parent on a claim brought by the child in the future (as heir or next of kin.)

While the law remains that a parent may executed a binding, irrevocable release on behalf of a child, the express language of these Waivers precludes such a result here.

Therefore, the Court grants the motion for judgment on the pleadings as to the first cause of action.

No Leave to Amend

A motion for judgment on the pleadings, like 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 [as to demurrers].)

Here, the language of the Waivers cannot be modified on a further amended cross-complaint and the express language appears to control the issue of express indemnity based on the Waivers. Cross-Complainant has not demonstrated a reasonable possibility of amendment as to this cause of action and therefore the Court grants the motion without leave to amend.

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:                 Reyna, Fortino vs. City of Dinuba

Case No.:   VCU306615

Date:           July 15, 2025

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:      Motion to Compel Further Responses

Tentative Ruling: No documents appear filed in connection with this motion. The Court takes the hearing off calendar.

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

Re:                Esparza, Thomas vs. Powell, Cassandra L.

Case No.:   VCU311492

Date:           July 15, 2025

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     Motion for Leave to File Cross-Complaint

Tentative Ruling: To grant the motion and order the proposed cross-complaint filed no later than ten (10) days from the date of this hearing.

Facts

In this matter, Plaintiff Thomas Esparza, on July 31, 2024, filed a complaint for breach of contract, specific performance, temporary and permanent injunction and for declaratory relief against Defendant Cassandra Powell.

The complaint alleges:

“On or about July 2, 2021, in the City of Visalia, County of Tulare, State of California, while they were living with each other, Plaintiff and Defendant entered into an oral] agreement by the terms of which they agreed to jointly purchase real property located at 330 North Clay Street, Visalia, California (“Residence”). During the escrow for purchase of said Residence, it came to the attention of Plaintiff and Defendant that Defendant’s credit was better than Plaintiffs credit and Defendant had issues with his taxes, and thus the parties could obtain a more favorable interest rate on a mortgage loan for the purchase of the Residence if Defendant purchased the Residence in her name alone. Defendant agreed that she would add Plaintiff to the title to the property after the close of escrow. Nonetheless, Plaintiff and Defendant agreed to treat the Residence as joint property. The parties agreed that Plaintiff would make the down payment of $67,000.00, pay $4,000.00 to reserve the lot, and monthly mortgage payments of the Residence, including, but not necessarily limited to, the down payment, mortgage payments, insurance, taxes, utilities, repairs, maintenance and upkeep. The agreement was to terminate when the parties ceased to live with each other and one party expressed his or her intention not to continue the relationship with the other. The parties agreed that in such an event each would receive one-half of the equity in said real property.” (Complaint ¶5.)

On September 26, 2024, Powell answered the complaint.

On May 7, 2025, Powell filed this motion for leave to file a cross-complaint. The proposed cross-complaint alleges the following:

6. In October/November of 20219, the parties jointly opened a business named Aplus Electric (hereinafter “business”) which was placed solely in Cross-Complainant’s name for credit-worthiness purposes, The business account associated with this business was also placed solely in Cross-Complainant’s name. The parties agreed that Cross-Complainant would be paid from the business for performing all administrative duties associated with the business, including but not limited to, managing the business and performing bookkeeping services for the business. The parties also agreed to divide the profits and debts of the venture evenly between them, after Cross-Complainant was paid for performing all administrative duties associated with the business.

5. [sic] On July 21, 2021, after years of contemplating the purchase of her own home, Cross-Complainant purchased real property located at 330 N. Clay Street, Visalia, California (hereinafter “subject property”). Cross-Complainant provided all funds for the down payment of the property from monies from her own personal bank account, monies gifted to her, monies borrowed from Maxine Ormsby (Cross-Complainant’s maternal aunt), a $5,000 credit from the seller and approximately $10,000 that Cross-Complainant withdrew from her 401K.

…

10. After the parties separated, Cross-Defendant’s father file a fictitious business name statement for a new business bearing the exact same name as the parties’ joint business (Aplus Electric). Cross-Defendant then deposited monies into this business account for work performed by and due to the parties original Aplus Electric business. Cross-Defendant did this in order to benefit solely from these monies and in order to deprive Cross-Complainant of the benefits of these monies.”

Powell’s proposed cross-complaint brings causes of action for breach of oral contract and for an accounting related to the “original Aplus Electric.”

In support, Powell’s counsel’s declaration states:

“3. The cross complaint was not filed because Defendant only realized that she had valid causes of action when she received Plaintiff's discovery responses and because she was reluctant to initiate yet another action arising out of the same circumstances that Plaintiff's action is. Defendant only recently made the decision to file a cross-complaint against Plaintiff instead of initiating another action.

4. It is in the interest of justice that leave be granted to file the cross complaint in that if leave is not granted, Defendant will file a separate action against Plaintiff which will require a separate trial; whereas if leave is granted, all controversies between the parties can be resolved in the within action.” (Declaration of Perez ¶¶3, 4.)

Powell attaches a copy of the proposed cross-complaint as Exhibit A to the declaration and motion.

In opposition, Esparza argues a lack of explanation as to why the cross-complaint was not filed at the time of the answer, that Esparza will be prejudiced due to “re-opening discovery, delaying trial, and increasing litigation costs” and that the cross-complaint is retaliatory and dilatory, given its filing after an unsuccessful meditation. Esparza notes the mediation took place March 18, 2025.

Authority and Analysis

A cross-complaint against any of the parties who filed the initial complaint or cross-complaint against the cross-complainant must be filed before or at the same time as the answer to the initial complaint or cross-complaint, which answer must be filed within 30 days of service of the complaint or cross-complaint.  (Code of Civ. Proc. §§ 412.20(a)(3), 428.50(a), 432.10.)  Any other cross-complaint may be filed at any time before the court has set a trial date.  (Code of Civ. Proc. § 428.50(b).) 

If a party fails to file a cross-complaint within the time limits described above, he or she must obtain permission from the court to file the cross-complaint.  (Code of Civ. Proc.§§ 426.50, 428.50(c).) 

Given the setting of the trail date and answer on file by Powell, leave to properly sought as to the proposed cross-complaint.

The Court’s review of the cross-complaint indicates it is compulsory. Code of Civil Procedure section 426.30(a) defines a compulsory cross-complaint as having any related cause of action which the plaintiff alleges in the complaint. Code of Civil Procedure section 426.10 (c) defines “related cause of action” means a cause of action which arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause of action which the plaintiff alleges in his complaint. The courts use a logical relationship test, which requires “’not an absolute identity of factual backgrounds for the two claims, but only a logical relationship between them.’” (Currie Medical Specialties, Inc. v. Bowen (1982) 136 Cal.App.3d 774, 777.) “At the heart of the approach is the question of duplication of time and effort; i.e., are any factual or legal issues relevant to both claims?” (Id.) Here, the cross-complaint involves the same occurrence as to the permanent separation of the parties, though it involves causes of action directed at a business instead of at the Residence.

Where the proposed cross-complaint arises out of the same transaction as plaintiff’s claim, the court must grant leave to file the cross-complaint so long as defendant is acting in good faith. (Code Civ. Proc., § 426.50.)  Section 426.50 further provides that:

“A party who fails to plead a cause of action subject to the requirements of this article, whether through oversight, inadvertence, mistake, neglect, or other cause, may apply to the court for leave to amend his pleading, or to file a cross-complaint, to assert such cause at any time during the course of the action. The court, after notice to the adverse party, shall grant, upon such terms as may be just to the parties, leave to amend the pleading, or to file the cross-complaint, to assert such cause if the party who failed to plead the cause acted in good faith. This subdivision shall be liberally construed to avoid forfeiture of causes of action.” (Emphasis added.)

Leave may be granted in the interest of justice at any time during the course of the action.  (Id., § 428.50(c).)  Indeed, where a cause of action would otherwise be lost, leave to amend is appropriate even if the party was negligent in not moving for leave to amend earlier.  “The legislative mandate is clear.  A policy of liberal construction of section 426.50 to avoid forfeiture of causes of action is imposed on the trial court.  A motion to file a cross-complaint at any time during the course of the action must be granted unless bad faith of the moving party is demonstrated where forfeiture would otherwise result.”  (Silver Organizations, Ltd. v. Frank (1990) 217 Cal.App.3d 94, 98-99.) “[A] strong showing of bad faith [must] be made in order to support a denial of the right to file a cross-complaint under this section.” (Sidney v. Superior Court (1988) 198 Cal.App.3d 710, 718.) 

Here, though the Court agrees leave to amend is dilatory and was sought after mediation was unsuccessful, the Court does not find the requisite strong showing of bad faith. Although Powell argues that another case could simply be filed and thereafter tried, negating the issue of forfeiture, the Court finds a sufficient showing of oversight, inadvertence, mistake or neglect.

Therefore, the Court grants the motion and orders the cross-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 Godinez, Yaneli

Case No.:    VCU316848

Date:            July 15, 2025

Time:            8:30 A.M. 

Dept.            2-The Honorable Bret D. Hillman

Motion:      Motion Set Aside Dismissal

Tentative Ruling: To grant the motion and set aside dismissal upon explanation of the failure to attend the OSC hearing

Facts and Analysis

Petitioner seeks relief from dismissal of this matter for failure to attend the order to show cause hearing on April 17, 2025 and demonstrate proof of publication as to the name change petition.

Petitioner  does not indicate why Petitioner did not appear at the OSC hearing. The Court, under Code of Civil Procedure 473(b), must be shown mistake, surprise, inadvertence or excusable neglect in order to grant the motion.

The Court notes that Petitioner appears to have published the requisite notice of the OSC hearing for the requisite number of weeks. However, the Court requires a factual basis for relief from the dismissal.

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