Tentative Rulings

The Tentative Rulings for Tuesday, December 9, 2025, are:

Re:                 Gamez, Jose L. vs. Setton Pistachio of Terra Bella, Inc.

Case No.:   VCU298711

Date:            December 9, 2025

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     Hearing re: Final Distribution

Tentative Ruling: No documents have been filed with respect to the final distribution of the settlement fund. Therefore, the Court continues this matter to January 27, 2026, 8:30 am, Dept. 2.

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

Re:                 Diaz, Mayra vs. Kaweah Delta Health Care District

Case No.:    VCU297155

Date:            December 9, 2025

Time:            8:30 A.M. 

Dept.            2-The Honorable Bret D. Hillman

Motion:     Hearing re: Final Distribution

Tentative Ruling: On December 2, 2025, the settlement administrator, through its case manager, filed a declaration indicating that the check cashing deadline is December 8, 2025 and that, as of the date of this declaration, 2,174 checks, totaling $49,264.16 remain uncashed. Further, the declaration states:

“After the December 8, 2025, check cashing deadline, Phoenix will inform the State Controller of unclaimed property from this Settlement. At their behest, and per the State Controller’s Office of Unclaimed Property – Dormancy Periods, Phoenix is to hold the uncashed funds for one (1) year from the date of notification, at which point Phoenix will then be able to transmit the unclaimed amounts in the Class Member’s name. Phoenix estimates all unclaimed property from this Settlement will be distributed to the State in approximately December 2026.”

Therefore, the Court sets a final hearing as to distribution of the unclaimed fund to the State Controller’s Office for December 8, 2026, 8:30 am, Dept. 2.

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

Re:                 Lopez, Joe vs. Gallardo, Adalberto Rivera

Case No.:    VCU304254

Date:            December 9, 2025

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     Plaintiff’s Motion for Summary Judgment

Tentative Ruling: To deny the motion under Code of Civil Procedure section 437c(a)

Facts and Analysis

In this complaint, Plaintiff sues Defendants Baeto, Inc. and Adalberto Rivera Gallardo for breach of contract and breach of warranty.

Defendants jointly answered the complaint on March 20, 2024.

Trial is set for this matter December 22, 2025.

On September 18, 2025, Plaintiff filed this motion for summary judgment and served the motion via personal service with a hearing date of December 9, 2025.

On November 5, 2025, Defendant Gallardo substituted counsel and now is represented in pro per.

The Court notes this substitution of counsel does not expressly involve Defendant Baeto, Inc. and the Court considers Defendant Baeto, Inc. represented by the same counsel who answered the complaint.

A motion for summary judgment must be heard no later than 30 days before trial, unless the court orders otherwise for good cause. (Code Civ. Proc. § 473c(a).)

No motion or ex parte application has been filed to hear this motion less than thirty days prior to trial.

Moreover, a finding of good cause must be made prior to the time the moving party notices the motion:

“Defendants noticed their motion for hearing within 30 days of the trial date without first obtaining a determination of good cause from the trial court. (See § 437c, subd. (a).) Unless and until the trial court found good cause, the notice of the hearing was invalid.”  (Robinson v. Woods (2008) 168 Cal.App.4th 1258, 1268.) (emphasis added.)

Like here, “…[the moving party] had not sought such a ruling, nor had the court made one.” (Id. at. 1260.)

Here, the motion is set to be heard less than thirty days prior to the trial date of December 22, 2025, the moving party has not sought to shorten the time via a showing of good cause, and such a motion or application must be made prior to the filing and service of the notice of hearing.

Therefore, the Court denies the motion.

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

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

Case No.:   VCU318533

Date:            December 9, 2025

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     (1) Defendant’s Motion to Vacate Judgment on Dismissal; (2) Defendant’s Motion for Attorneys’ Fees after Dismissal of Second Amended Complaint;  (3) Cross-Defendants’ Motion to Tax Costs; (4) Cross-Complainant’s Motion to Amend Cross-Complaint

Tentative Ruling: (1) To deny the motion; (2) To deny the motion; (3) To grant the motion in part, deny the motion in part, and award $3,105 in costs (4) To grant the motion and order the proposed amended cross-complaint filed no later than ten (10) days from the date of this hearing.

(1) Defendant’s Motion to Vacate Judgment on Dismissal

Facts

The complaint in this matter was initially filed February 26, 2025.

A first amended complaint was filed May 15, 2025,

At issue is ownership of the real property located at 43000 Kaweah River Drive, Three Rivers, CA 93271 (the “Subject Property”). (FAC ¶1.)

Plaintiffs Kevin C. Duncan and Sally J. Duncan, Trustees, or Any Successors in Trust, under the Duncan Family Trust Dated July 23, 2021 and Any Amendments Thereto filed this first amended complaint for partition, slander of title, quiet title, declaratory relief and cancellation of instrument related to the Subject Property against Defendants LuAnn Olson-Kirsch, Randell Kirsch, Bryn Kirsch, Taylor Kirsch, Quinn Kirsch, Aubrielle Kirsch, and Jeanne Case.

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

After the Court sustained Defendants’ demurrer to the first amended complaint in part, and overruled the demurrer in part, Plaintiffs filed a second amended complaint on August 15, 2025. The second amended complaint alleges partition, slander of title, quiet title and declaratory relief.

On August 19, 2025, Plaintiffs requested, and were granted, dismissal of the complaint without prejudice.

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

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

On September 22, 2025, Cross-Complainants LuAnn Olson-Kirsch and Randell Kirsch filed a motion to vacate judgment on dismissal.

Cross-Complainants assert that dismissal is improper on where affirmative relief is sought as to statutory buyout of the interest in a partition action, where dismissal will frustrate the law, where procedural steps have begun, and where Plaintiffs have committed a fraud on the Court.

In opposition, Plaintiffs argue that they may dismiss their complaint anytime before trial, that the affirmative relief claims raised by Defendants do not interfere with this right to dismiss, that the cross-complaint remains pending, that no statutory scheme is frustrated and that the claim of any “fraud on the court” is unsupported by the evidence or the law.

Authority and Analysis

The starting point is set forth in Sanabria v. Embrey (2001) 92 Cal.App.4th 422, 425 as follows:

“Code of Civil Procedure section 581 sets forth the situations in which a plaintiff may voluntarily dismiss the complaint or the entire action. A plaintiff may not unilaterally dismiss the entire action if a cross-complaint or complaint in intervention is pending. (Code Civ. Proc., § 581, subd. (i); Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2001) PP 11:7, 11:9, pp. 11-3 to 11-5.) However, a plaintiff may unilaterally dismiss the complaint before trial regardless of the pendency of such other pleadings. (Code Civ. Proc., § 581, subd. (c); Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial, supra, P 11:7, p. 11-3.) Entry of dismissal is entered in the clerk's register and is effective when entered. (Code Civ. Proc., § 581d.) Entry of dismissal terminates the action against the dismissed defendants. (6 Witkin, Cal. Procedure (4th ed. 1997) Proceedings Without Trial, § 272, p. 692.) The action then proceeds as to other parties. (Code Civ. Proc., § 579.)”

The Court, again, notes here that Cross-Complainants have filed a cross-complaint, which they now seek to amend as noted below, for partition, as it currently stands, involving the same Subject Property.

The Court finds the affirmative relief sought by Cross-Complainants is preserved by the cross-complaint, including the buyout options and partition procedures.

There is no frustration of the law because of the existence of the cross-complaint. Gray v. Superior Court (1997) 52 Cal.App.4th 165, 172 is pertinent to this case, but not for the reasons asserted by Cross-Complainants. In Grey, dismissal would have frustrated the affirmative relief sought in the answer to a partition action because no cross-complaint for partition of the same property was filed. Here, the cross-complaint’s declaratory relief as to partition cause of action means no law is frustrated by dismissal. Additionally, Defendants have not filed an answer to the complaints filed in this matter.

Further, the appointment of the appraiser is not affected by the dismissal for the same reasons. The appointment of the appraiser remains effective as to the declaratory relief for partition cause of action remaining in the cross-complaint, as the same Subject Property and underlying right of first refusal term remain at issue. The Court expressly appointed the appraiser after the voluntary dismissal.

For the same reasons, any issues of alleged fraud regarding the transfer of interest in the Subject Property may be dealt with in the cross-complaint.

The Court has finds the existence of the cross-complaint for partition of the same Subject Property sufficiently protects the interests at stake here. 

(2) Defendants’ Motion for Attorneys’ Fees and (3) Plaintiffs’ Motion to Tax or Strike Costs

Facts Common to (2) and (3)

As noted above, Plaintiffs voluntarily dismissed the second amended complaint on August 19, 2025.

On September 5, 2025, Defendants filed a memorandum of costs seeking the following:

Cost	Amount	Challenge by Plaintiffs?
1. Filing and Motion Fees	$3,983.00	Yes
10. Attorney Fees	$43,487.50	Yes
16. Other	$400.00	Yes
Total	$47,870.50

On September 5, 2025, Defendants filed a motion for attorneys fees expressly under Code of Civil Procedure sections 1021, 1032, 1033.5, 873.820, 874.010, and 874.040, as well as this Court’s inherent equitable authority in such actions.

In opposition, Plaintiffs argue that the partition statute is not a prevailing party statute and that fees are not authorized under these circumstances.

On September 19, 2025, Plaintiffs filed a motion to tax costs, arguing chiefly that attorneys’ fees are neither contractually or statutorily fixed in a partition action. Further, that it is unclear who the prevailing party is and who is claiming costs. Further, that only reasonable costs should be allowed.

In opposition, Defendants note they have filed a separate motion for attorneys’ fees, that they are the prevailing party upon voluntary dismissal and that the motion to strike or tax costs insufficiently challenges the costs and fees sought.

(2) Authority and Analysis - Attorneys’ Fees

Partition is an equitable action that is governed by statute. (Civ. Proc. Code, §§ 872.010 et seq.) Pursuant to the Civil Procedure Code, property may be partitioned by physical division, sale of the property and division of the proceeds, or court approved and supervised partition by appraisal. (Civ. Proc. Code, §§ 873.210-290, 873.510-850 & 873.910-980.)

The law states that “[a]t the trial, the court shall determine whether the plaintiff has the right to partition.” (Code Civ. Proc. § 872.710(a).) If the court finds that the plaintiff is entitled to partition, the court shall make an interlocutory judgment that determines the interests of the parties in the property and orders the partition of the property. (Code Civ. Proc. § 872.720(a).)

Other than the cause of action for partition, the Court finds no statutory basis for attorneys’ fees under Code of Civil Procedure sections 1021, 1032, 1033.5.

As to partition, the Court recognizes that under Code of Civil Procedure section 874.010, costs of partition expressly include “(a) Reasonable attorney’s fees incurred or paid by a party for the common benefit.” (Code Civ. Proc. §874.010(a).)

However, such fees incurred regarding partition under section 873.820 are paid from the proceeds of the sale and determined when the final decree of partition is made. (Code Civ. Proc. §873.820(b).)  "Such costs and fees as plaintiff may be entitled to recover, of any, should be determined when the final decree of partition is made. The interlocutory decree, which directs the sale, is not the place for such an award." (Southern California Title Clearing Co. v. Laws (1969) 2 Cal.App.3d 586, 590-591.)

As to slander of title, the Court notes that the fees awarded in Sumner Hill Homeowners' Assn., Inc. v. Rio Mesa Holdings, LLC (2012) 205 Cal.App.4th 999 were recoverable as pecuniary damages as opposed to a prevailing party determination.

Therefore, the Court finds no other legal or  basis or authority to award attorneys’ fees to Defendants based on the voluntary dismissal of the operative complaint.

As such, the Court denies the motion for attorneys’ fees.

(3) Authority and Analysis – Tax Costs

Given the ruling above, the Court notes that it grants the motion to strike costs as to Category No. 10.

However, recovery of costs is not based solely on the partition action, but rather on Defendants’ status as prevailing parties based on Plaintiff’s voluntary dismissal.

The right to recover costs of suit is determined by statute. (Code Civ. Proc, § 1032.) Code of Civil Procedure "section 1032 provides for recovery of costs as a matter of right if the party fits one of the four prevailing party definitions listed in section 1032, subdivision (a)(4)," which includes "a defendant in whose favor a dismissal is entered." (Charton v. Harkey (2016) 247 Cal.App.4th 730, 741.) "If a party satisfies one of these four definitions of a prevailing party, the trial court lacks discretion to deny prevailing party status to that party." (Id.) (See Santisas v. Goodin (1998) 17 Cal.4th 599, 606 [voluntarily dismissed defendant is entitled to costs]; See also Cano v. Glover (2006) 143 Cal.App.4th 326, 331 [dismissed defendant prevails, regardless of whether the dismissal is voluntary or involuntary and "regardless of whether the dismissal is with or without prejudice"]

Here, there can be no doubt that, as to recovery of costs, Defendants are the prevailing parties based on the voluntary dismissal of the complaint.

Item 1 - Filing and Motion Fees

As noted above, Defendant seek $3,983 in this category.

The Court notes seven first appearance fees at the cost of $435 each for a total of $3,045 in initial filing fees incurred by Defendants.

Additionally, the Court’s file reflects an additional $60 motion fee paid by Defendants as to the filing on July 7, 2025.

Therefore, the Court is prepared to award $3,105 in filing and motion sought.

Exhibit 4 to the declaration in support of the motion for attorneys’ fees indicates a number of fees for “title,” the filing of a declaration, the filing of the cross-complaint, the filing cost of various proofs of service, additional filing fees for motions and replies, as well as the amended complaint.

This category, however, covers filing and motion fees or costs, not fees for electronic filing, service, or other costs incurred outside of the costs collected by the Court.

The Court, therefore, grants the motion in part and taxes $878 in costs.

Item 16 - Other

As noted above, Defendant seek $400 in this category. The Court presumes this is attributed to the $400 fee incurred o August 23, 2024 for “Title for 43000 Kaweah River Drive, #3.” The Court will, in its discretion, decline to award this cost,

Therefore, the Court strikes this $400.

Summary

Therefore, the Court awards $3,105.00 in costs as follows:

Cost	Amount Sought	Amount Awarded
1. Filing and Motion Fees	$3,983.00	$3,105.00
10. Attorney Fees	$43,487.50	$0.00
16. Other	$400.00	$0.00
Total	$47,870.50	$3,105.00

(4) Cross-Complainant’s Motion to Amend Cross-Complaint

The verified cross-complaint filed in this matter by Cross-Complainants LuAnn Olson-Kirsch and Randell Evan Kirsch (“Cross-Complainants”)  seeks declaratory relief as to partition rights of the 3000 Kaweah River Drive, #3, Three Rivers, CA 93271, (“Property”), the same property at issue in the formerly operative complaint.

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

The Court previously granted a motion to strike the answer on August 5, 2025.

On September 22, 2025, Cross-Complainants filed this motion for leave to file an amended cross-complaint. On November 5, 2025, Cross-Complainants filed an amended motion for leave to file an amended cross-complaint.

In support, the amended motion and declaration indicate that “On August 21, 2025, Plaintiffs Kevin and Sally Duncan recorded a Grant Deed, listed as a “Parent to Child Gift Transfer – No Consideration,” which purports to transfer the Plaintiffs’ 50% interest in the Property to a family member, “Emily Nicole Duncan, a married woman as her sole and separate Property.”” (Amended Declaration of Ramirez ¶9.)

Further, that Plaintiffs’ former counsel appeared on August 26, 2025, represented, at that time, that Plaintiffs remained the owners of the Property and did not disclose the August 21, 2025 Grant Deed until a September 12, 2025 letter. (Amended Declaration of Ramirez ¶¶11, 12.)

Cross-Complainants seek to amend the complaint to allege two new causes of action:

“(1) a cause of action to independently enforce the buyout of Plaintiffs’ interest pursuant to the signed First Right of Refusal Agreement between the Parties which was attached to the most recent version of the Complaint, and (2) a cause of action to void the fraudulent transfer of Plaintiffs’ interest in the Property to their daughter, made in blatant effort to circumvent ongoing legal process.” (Amended Declaration of Ramirez ¶14.)

Attached as Exhibit 6 is a copy of the proposed amended cross-complaint. (Amended Declaration of Ramirez ¶14 – Ex. 6.)

Cross-Defendants have filed a notice of non-opposition to this motion to amend.

Authority and Analysis

The Court may, in the furtherance of justice, and upon any terms as may be proper, allow a party to amend any pleading.  (Code Civ. Proc. §§ 473, 576.)  In general, California courts liberally exercise discretion to permit amendment of pleadings in light of a strong policy favoring resolution of all disputes between parties in the same action.  (Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939; Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290, 296 [“[T]here is a strong policy in favor of liberal allowance of amendments.”].)  

Pursuant to this policy, requests for leave to amend generally will be granted unless the party seeking to amend has been dilatory in bringing the proposed amendment before the Court, and the delay in seeking leave to amend will cause prejudice to the opposing party if leave to amend is granted.  (Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 490; Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564-565.)  

The decision on a motion for leave is directed to the sound discretion of the trial court. 

Rule 3.1324 regulates the content of the motion and supporting declaration as follows:

“(a) Contents of motion

A motion to amend a pleading before trial must:

(1)  Include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments;

(2)  State what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph, and line number, the deleted allegations are located; and

(3)  State what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located.

(b) Supporting declaration

A separate declaration must accompany the motion and must specify:

(1)  The effect of the amendment;

(2)  Why the amendment is necessary and proper;

(3)  When the facts giving rise to the amended allegations were discovered; and

(4)  The reasons why the request for amendment was not made earlier.”

Here, subsection (a) is complied with as to the amended motion, amended declaration of counsel and Exhibits 6 and 7 as to the changes to the proposed amended cross-complaint.

Further, subsection (b) is complied via the declaration of counsel, the events that have occurred after the filing of the cross-complaint, the disclosure of such facts in the September 12, 2025 letter and the relative time frame during which this motion was initially filed.

Further, the Court discerns no prejudice to Cross-Defendants via these amendments.

Further, the motion is expressly not opposed by Cross-Defendants.

The Court, therefore, grants the motion and orders Cross-Complainants to file the proposed amended cross-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:                 Lira, Armando Melchor vs. Wileman Bros. & Elliott, Inc.

Case No.:   VCU324256

Date:           December 9, 2025

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     Defendant’s Motion to Compel Arbitration

Tentative Ruling: To deny the motion re: unconscionability

Background Facts

Plaintiff brings this complaint, individually and on behalf of the State of California, under PAGA for various Labor Code violations against Defendant Wileman Bros. & Elliott.

Defendant seeks to compel arbitration of the “individual” claims and to stay the remaining “representative” claims.

Facts – Agreement to Arbitrate

In support, Defendant submits the declaration of its CEO and CFO who oversaw human resource related matters, employment policies and procedures, including the practice of preparing, collecting and maintaining employee records. (Declaration of Johnson ¶2, 3.) As custodian of records, Johnson further indicates that records are made and kept in the regular course of business, at or near the time of the act of providing the documents and obtaining signed copies thereof, and such documents are thereafter placed in the employee’s file. (Declaration of Johnson ¶3.)

Johnson further indicates that Plaintiff was employed from November 2016 to December 2024 and that Exhibit A is a true and correct copy of the Arbitration Agreement signed by Johnosn on June 13, 2018 given to Plaintiff to review and sign. (Declaration of Johnson ¶7 – Ex. A.)

Both Johnson and the Court note Exhibit A is in the Spanish language.

Defendant further submits the declaration of its Accounting Clerk who indicates “I am also fluent in both the English and Spanish languages, and I can adequately read, write and speak both languages,” that she compared Exhibit A to Exhibit B, written in English, and that “The English version of the arbitration agreement attached to this declaration as Exhibit “B” is a true and correct translation of [Exhibit A].” (Declaration of Valenica ¶¶2-5, Exs. A and B.)

In opposition to these facts, Plaintiff challenges the failure to provide a certified translation pursuant to Rule of Court, rule 3.1110(g), which requires “Exhibits written in a foreign language must be accompanied by an English translation, certified under oath by a qualified interpreter.”

Authority and Analysis – Agreement to Arbitrate

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

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

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

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

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

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

Here, Defendant has provided the Agreement, Exhibit A, in purported satisfaction of this requirement, as well as Exhibit B, an English version of the Agreement.

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

Here, however, Plaintiff challenges that Exhibit B violates California Rule of Court, rule 3.1110(g) which requires, as noted above: “Exhibits written in a foreign language must be accompanied by an English translation, certified under oath by a qualified interpreter.”

The Court compares the four corners of each document, noting Exhibit A is four pages and Exhibit B is five pages and that various headings in Exhibit A are underlined, italicized, and bolded. In other words, the Court would appear to have an English version of the Agreement as Exhibit B, but not a translation of Exhibit A.

Additionally, the Court is readily familiar with certified interpreters who assist the Court with live testimony, including the qualifications thereof. While the declaration is under oath, fluency in both English and Spanish is not the equivalent of a qualified interpreter, in the Court’s experience. Further, as to translated documents, the interpreter provides an English language translation, certified under oath, as well as a description of the translator's qualifications or certification. This permits the Court to confirm the accuracy of the translation, if necessary. Therefore, the Court agrees that Exhibit B fails to comply with the Rule of Court.

However,  Plaintiff points to no translation or accuracy issues and opposes the motion and Agreement on substantive grounds. As such the Court will find an Agreement exists and examine the arguments by the parties.

Facts – Scope of Agreement

The Agreement states:

“Company and Employee mutually agree to arbitrate before a neutral arbitrator (the "Arbitrator") any and all disputes or claims by and between Employee, on the one hand, and Company, its parent, subsidiary, and affiliated corporations and entities, and each of their present and former officers, directors, agents, and employees (the "Company Parties"), on the other hand, including but not limited to any and all claims arising from or relating to Employee's recruitment, hiring, and employment, the termination of that employment, and any claims arising post-employment, including claims by or against the Company Parties, whether such disputes or claims arise in tort, in contract, or under a statute, regulation, or ordinance now in existence or that may in the future be enacted or recognized, or on any other basis, including but not limited to the following claims…”

The list of included claims encompass, expressly Labor Code violations. The Agreement further states it applies to “All other claims arising by and between Employee and the Company Parties or any of them.”

Further, the Agreement states, as to the individual arbitration and representative actions, the following:

“CLASS ACTION WAVER: Both the Company and Employee agree to bring any dispute in arbitration on an individual basis only, and not on a class or collective basis. There will be no right or authority in arbitration for any dispute to be brought, heard, or arbitrated as a class, collective, or representative, or for either patty to be a participant in any purported class, collective, or representative, including without limitation pending but not certified class actions. (Hereafter, this agreement will be referred to as the Class Action Waiver.) Disputes regarding the validity and enforceability of this Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. In any case in which (1) the dispute is filed as a class, collective, or representative action, and (2) a civil court of competent jurisdiction finds all or part of the Class Action Waiver unenforceable, the class, collective, and/or representative action to that extent must be litigated in a civil court of competent jurisdiction, but the portion of the Class Action Waiver that is enforceable shall be enforced in arbitration.”

Further:

“PRIVATE ATTORNEYS GENERAL ACT (PAGA) CLAIMS: Private attorneys general representative actions brought on behalf of the State under the California Labor Code are not arbitrable, are not within the scope of this Agreement, and may be maintained in a court of law, but any claim on your own behalf as an aggrieved employee for recovery of underpaid wages (as opposed to representative claims for civil penalties) shall be arbitrable.”

Authority and Analysis – Scope of Agreement

As noted above, Plaintiff brings class claims for violations of PAGA under the Labor Code. Subject to the Class Action Waiver section’s references to “representative” and “individual” claims, as well as the PAGA Claims term, the Court finds the scope of the Agreement covers the claims at issue here.

Facts – FAA Applicability

The Agreement states:

“This Agreement and its validity, construction, and performance shall be governed by the Federal Arbitration Act (the "FAA") and cases decided thereunder and, to the extent relevant, the laws of the State of California. Further, the terms and procedures governing the enforcement of this Agreement shall be governed by and construed and enforced in accordance with the FAA, and not individual state laws regarding enforcement of arbitration agreements.”

Additionally, Defendant’s Grower Accountant indicates that Defendant is a grower, packer and shipper of citrus products to various states within the United States and countries outside thereof. (Declaration of Robinson ¶2.) Further, Defendant’s CEO indicates Plaintiff’s positions included a shipping clerk which included organizing pallets for shipment, and supervising the packing line. (Declaration of Johnson ¶6.)

Plaintiff does not dispute that Defendant engages in interstate commerce, arguing that Plaintiff, however, should be subject to the transportation worker exemption. 

Authority and Analysis - FAA Applicability

The Agreement expressly applies the FAA. The party asserting that the Federal Arbitration Act (“FAA”) applies to an agreement has “the burden to demonstrate FAA coverage by declarations and other evidence.” (Hoover v. American Income Life Ins.Co. (2012) 206 Cal.App.4th 1193, 1207.)

However, Plaintiff challenges the application of the FAA’s substantive provisions via a private agreement, acknowledging that that the procedural provisions of the FAA may be agreed to by contract.

The Court notes, however, “A trilogy of cases, Rosenthal, Cronus, and DIRECTV, recognizes that if a contract involves interstate commerce, the FAA's substantive provision (9 U.S.C. § 2) applies to the arbitration” (Valencia v. Smyth (2010) 185 Cal.App.4th 153, 173-174.) As such, the Court finds the FAA’s substantive provisions apply based on the involvement in interstate commerce and the procedural provisions apply via the terms of the Agreement. Defendant has provided evidence of participation in interstate commerce and Plaintiff concedes this involvement in interstate commerce via the argument that Plaintiff should be treated as exempt due to transportation work, addressed below.

Therefore, the Court finds the FAA applies.

Authority and Analysis – FAA Exception

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

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

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

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

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

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

The Ninth Circuit continued:

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

The Court contrasts the transporting of goods in interstate commerce as in Ortiz and Saxon with the work related to the growing and shipping of produce products here here. In both Ortiz and Saxon, the exempt workers appeared to take goods already in the stream and move them further through their journey in interstate commerce. Although the products produced at issue here are placed into the stream of interstate commerce, Plaintiff did not play a necessary part in facilitating “continued movement” in interstate commerce akin to Ortiz and Saxon, as opposed to the initial placement into the stream.  Therefore, the Court does not find the transportation exception applies.

Authority and Analysis – Labor Code sections 432.6 and 229

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

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

FAA Application to Individual Arbitration Term

To start, the Court notes “[t]here is no individual component to a PAGA action because '"every PAGA action . . . is a representative action on behalf of the state."' [Citation.]" (Kim v. Reins International California, Inc. (2020) 9 Cal.5th 73, 87.)

The term "individual" refers to those claims brought by a plaintiff as a representative of the State and which seek to recover civil penalties under PAGA for Labor Code violations experienced by the plaintiff. (See Galarsa v. Dolgen California, LLC (2023) 88 Cal.App.5th 639, 648 [referring to these claims as "Type A" claims].) The term “non-individual” refers to those claims brought by a plaintiff as a representative of the State and which seek to recover civil penalties under PAGA for Labor Code violations experienced by employees other than the plaintiff. (Galarsa, at 649 [referring to these claims as "Type O" claims].)

Prior the Supreme Court’s decision in Viking River Cruises, Inc. v. Moriana (2022) 142 S.Ct. 1906, PAGA claims could not be waived, could not be split, and could not be compelled to arbitration pursuant to Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348. (Viking River at 1916.)

“Under Iskanian, this provision was invalid if construed as a wholesale waiver of PAGA claims. And under our holding, that aspect of Iskanian is not preempted by the FAA, so the agreement remains invalid insofar as it is interpreted in that manner.” (Id. at 1924-25.) Therefore, “the FAA preempts the rule of Iskanian insofar as it precludes division of PAGA actions into individual and non-individual claims through an agreement to arbitrate.”  (Id. at 1924.) 

That rule referred to above in Iskanian was that “PAGA claim ‘lies’ completely ‘outside the FAA’s coverage because it is not a dispute between an employer and an employee arising out of their contractual relationship.’  [Citation.]  It is . . . a dispute between an employer and the state, which alleges directly or through its agents—either the Labor and Workforce Development Agency or aggrieved employees—that the employer has violated the Labor Code.”  (Iskanian, supra, 59 Cal.4th at 395-396.)

Viking River therefore holds that the PAGA claim may be split into Type A and Type O claims and that, pursuant to a proper agreement, that the Type A claim may be compelled to arbitration under the FAA and that the Type O claim remains and cannot be submitted to arbitration. (Viking River at 1924-1925.)

As summarized by Adolph: "The high court explained that an anti-splitting rule 'unduly circumscribes the freedom of parties to determine "the issues subject to arbitration" and "the rules by which they will arbitrate," [citation], and does so in a way that violates the fundamental principle that "arbitration is a matter of consent."' (Viking River, at p. 659.) Requiring parties to adjudicate a PAGA action entirely in one proceeding, the high court said, 'compels parties to either go along with an arbitration in which the range of issues under consideration is determined by coercion rather than consent, or else forgo arbitration altogether. Either way, the parties are coerced into giving up a right they enjoy under the FAA.' (Viking River, at p. 661.) Thus, Viking River requires enforcement of agreements to arbitrate a PAGA plaintiff's individual claims if the agreement is covered by the FAA." (Adolph, supra, 14 Cal.5th at 1118-1119.)

The court in Mondragon v. Sunrun Inc. (2024) 101 Cal. App. 5th 592 carved out the entire PAGA action (Type A and Type O) claims, finding “representative claims filed under” PAGA applied to both all such claims are “representative.”

In Mondragon, the carve out provision excluded claims brought “as a representative of the state of California as a private attorney general under” the Private Attorney General Act of 2004 (PAGA; Lab. Code, § 2698 et seq.)” and the trial court denied the motion to compel Plaintiff’s causes of action under PAGA to arbitration. (Id. at 599-601.)

The Mondragon court concluded that “There is no other language in the arbitration agreement suggesting the parties intended to treat PAGA claims seeking penalties for violations regarding Mondragon (i.e., individual PAGA claims) separately from PAGA claims seeking penalties for violations regarding other employees (i.e., non-individual PAGA claims). The PAGA carve-out is not reasonably susceptible to the interpretation…” that it applies only to Type A “individual” claims. (Id. at 613.)

Here, unlike in Mondragon, the Class Action Waiver section and PAGA Claims section are read together, evidencing an intent to split these claims into arbitrable and non-arbitrable claims.

As such, the Court examines any defenses to enforcement.

Facts – Defense to Enforcement – Unconscionability

Plaintiff argues the Agreement is both procedurally and substantively unconscionable.

As to procedural unconscionability, Plaintiff notes the Agreement states “This Agreement is binding on Employee and Company regardless of whether Employee signs below and without the need for Company to sign it” and “if Employee refuses to sign this Agreement, this Agreement shall apply to Employee within 30 days after Employee has been provided with a copy of this Agreement and Employee continues with his or her employment with Company.” Further, that the Agreement was presented on a preprinted form and that there was no negotiation of any term of the Agreement between the parties. Further, that the Agreement fails to provide a copy of the governing rules and includes a broken hyperlink to the rules and procedures.

As to substantive unconscionability, Plaintiff argues the scope of the Agreement is overbroad, the duration is indefinite, there is a lack of mutuality, there is an unlawful wholesale jury waiver, the hyperlink regarding the rules is broken and that these issues cannot be severed to save the Agreement.

Authority and Analysis – Defense to Enforcement – Unconscionability

The inquiry into unconscionability consists of two prongs: A contract will be revoked if it is both procedurally unconscionable and substantively unconscionable. (Armendariz v. Foundation Health Psychcare Service, Inc. (2000) 24 Cal.4th 82, 102.) Procedural and substantive unconscionability need not be present to the same degree. “[T]he more substantively oppressive the contract term, the less evidence of procedural unconscionability is required to come to the conclusion that the term is unenforceable, and vice versa.” (Id. at 114.)

Procedural Unconscionability

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

The Court also considers whether circumstances of the contract’s formation created such oppression or surprise that closer scrutiny of its overall fairness is required. (OTO, L.L.C. v. Kho (2019) 8 Cal.5th 111, 126-127.) “The circumstances relevant to establishing oppression include, but are not limited to (1) the amount of time the party is given to consider the proposed contract; (2) the amount and type of pressure exerted on the party to sign the proposed contract; (3) the length of the proposed contract and the length and complexity of the challenged provision; (4) the education and experience of the party; and (5) whether the party's review of the proposed contract was aided by an attorney.” (Id.) As OTO recognizes, the pressure exerted on a standard employee to accept an adhesive arbitration agreement as a condition of employment is “particularly acute,” which indicates oppression.  (Id. at 127.)

“An adhesive contract is standardized, generally on a preprinted form, and offered by the party with superior bargaining power on a take-it-or-leave-it basis. (Baltazar v. Forever 21, Inc. (2016) 62 Cal.4th 1237, 1245.) Arbitration contracts imposed as a condition of employment are typically adhesive. (Armendariz, supra, 24 Cal.4th at 114-115; Serpa v. California Surety Investigations, Inc. (2013) 215 Cal.App.4th 695, 704.) But the fact that an agreement is adhesive is not, alone, sufficient to render it unconscionable. (Malone v. Superior Court (2014) 226 Cal.App.4th 1551, 1561.) “[A] compulsory pre-dispute arbitration agreement is not rendered unenforceable just because it is required as a condition of employment or offered on a ‘take it or leave it’ basis.” (Lagatree v. Luce, Forward, Hamilton & Scripps (1999) 74 Cal.App.4th 1105, 1127.)

Here, the Agreement is mandatory and applies whether the Plaintiff executed it or not, which renders it a contract of adhesion. Further, the Agreement is preprinted form and no negotiation of any term occurred between the parties, nor would any negotiation occur as Plaintiff would have been bound by the Agreement regardless of signature.

As to the broken link, the Court does find this procedurally unconscionable to a degree. While the California Supreme Court in Baltazar v. Forever 21, Inc. (2016) 62 Cal.4th 1237, 1246 noted that a failure  to attach a copy of the arbitration rules becomes an issue only where the plaintiff challenges the rules themselves, here the link to the rules is broken, preventing Plaintiff from challenging them. The Court finds, therefore, additional procedural unconscionability where a broken link to the rules of arbitration is provided.

Under the above, the Court finds procedural unconscionability has been established to a medium degree.

Substantive Unconscionability

“Substantive unconscionability occurs when a contract, particularly, contracts of adhesion, impose terms “that have been variously described as overly harsh, unduly oppressive, so one-sided as to shock the conscience, or unfairly one-sided. All of these formulations point to the central idea that the unconscionability doctrine is concerned not with a simple old-fashioned bad bargain, but with terms that are unreasonably favorable to the more powerful party. Unconscionable terms impair the integrity of the bargaining process or otherwise contravene the public interest or public policy or attempt to impermissibly alter fundamental legal duties.” (OTO, L.L.C. v. Kho, supra, 8 Cal. 5th at 129–30, internal quotations and citations omitted.)

Armendariz sets forth elements of essential substantive fairness as follows:

(1) provide for a neutral arbitrator:

(2) provide for adequate discovery;

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

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

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

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

Scope and Duration

Here, the Agreement applies to “any and all disputes or claims” expressly including any claims that arise “post-employment” and applies to “any and all existing and future disputes or claims arising by and between the parties.” The Agreement does exclude three claims for workers compensation, express exclusion by federal statute and employee benefit plan claims.

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

The Cook court contrasted its clause with the one in  Roman v. Superior Court (2009) 172 Cal.App.4th 1462. In Roman, the clause at issue stated it applied to “all disputes and claims arising out of the submission of this application," and “all disputes . . . which might arise out of my employment with the company.” (Id. at 1467.) Cook noted: "In Roman, unlike here, the arbitration clause in question was expressly limited to claims arising from the employee's job application and subsequent employment." (Cook, supra, 102 Cal.App.5th at 323.)

Here, there is no limit to the claims, absent the three excluded claims noted above and include post-employment claims, in tort, contract or any other basis. This term requires Plaintiff to arbitrate claims that are unrelated to Plaintiff’s employment with Defendant. Therefore, the Court, finds the scope overbroad, as it applies, without limitations to arbitrate all claims, even those outside of employment and after employment has ended.

As to the duration, the Agreement appears to apply indefinitely. Read together with the scope of the Agreement noted above, the reasonable interpretation of this term is that it applies indefinitely. (See Cook, supra, 102 Cal.App.5th at 325 ["…the arbitration agreement was unconscionable because it survived indefinitely following Cook's termination from USC") While the agreement in Cook could not be revoked except for the president of USC signing it, there is no limit on the duration here where post-employment claims are within the scope of the Agreement.

As such, the Court finds the duration and scope substantively unconscionable.

Mutuality

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

Here, Plaintiff notes the Agreement requires Plaintiff to bring any and all existing and future claims Plaintiff may have against Defendant, its parent, subsidiary, and affiliated corporations and entities and each of their present and former officers, directors, agents, and employees (“Company Parties”), but that those Company Parties and Defendant  are not likewise required to arbitrate their claims against Plaintiff.

However, the Court’s review of the Agreement indicates that the Defendant, and Company Parties must also bring any claims against Plaintiff in arbitration, as the Agreement sates “including claims by or against the Company Parties.”

The Court does not find a lack of mutuality. 

Jury Waiver

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

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

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

The Lange court described the arguments as follows:

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

The court resolved this, noting:

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

The Agreement at issue here states the jury waiver applies only to disputes within the scope of arbitration and not, as in Lange, to claims that are to be determined in this Court.

Therefore, the Court does not find the pretrial jury waiver to be unconscionable. 

Hyperlinked Rules

Here, as noted above, the rules of arbitration were linked in the Agreement, but the hyperlink directs to, at least at this point in time, a webpage that does not exist. Plaintiff cites to Hasty v. American Automobile Assn. etc. (2023) 98 Cal.App.5th 1041, 1060-1061 which notes, in addressing substantive unconscionability:

“Furthermore, although not addressed by the parties, we note the hyperlink to the “JAMS [e]mployment [a]rbitration [r]ules and [p]rocedures” in the arbitration agreement does not lead to a page with arbitration rules or procedures, and there is no evidence in the record to suggest that it ever worked. The link leads to a webpage stating, “Page Not Found” (last accessed October 26, 2023). [FN3] Even if the hyperlink worked when Hasty signed the agreement, however, the arbitration agreement nonetheless provides that arbitration shall be conducted “in accordance with the applicable employment rules of JAMS then in effect.” It is unclear how an employee would know what terms he, she, or they were agreeing to at the time of signing the agreement when the rules and procedures may be different when a dispute arises in the future.”

Here, the Agreement states that the most current rules will be imposed, which may differ from the rules that the employee initially agreed to in the Agreement.

As such, the Court finds this indicative of some substantive unconscionability.

Severability

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

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

Here, the Agreement provides for severance stating “Severability. If any term or portion of this Agreement shall, for any reason, be held to be invalid or unenforceable or to be contrary to public policy or any law, then the remainder of this Agreement shall not be affected by such invalidity or unenforceability but shall remain in full force and effect, as if the invalid or unenforceable term or portion thereof had not existed within this Agreement.”

However, the Court finds it cannot cure the overbreadth of the scope of the arbitration term, the indefinite duration or the broken hyperlink issue via severance. “An arbitration agreement can be considered permeated by unconscionability if it contains more than one unlawful provision . . . Such multiple defects indicate a systematic effort to impose arbitration not simply as an alternative to litigation, but as an inferior forum that works to the employer's advantage." (Dougherty, supra, 47 Cal.App.5th at 107.) The Court will not rewrite the scope and duration terms of the Agreement and cannot modify the various references to arbitration via AAA’s rules.

The Court having found some procedural unconscionability, finds sufficient substantive unconscionability to prevent enforcement of the arbitration term. Therefore, the Court denies the motion.

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

Re:                 L., D. vs. County of Tulare

Case No.:   VCU312233

Date:            December 9, 2025

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:    (1) Plaintiff’s Counsel’s Motion to be Relieved; (2) Stipulation to Continue Trial

Tentative Ruling: (1) To grant the motion; the order will be deemed effective upon the filing with the court of proof of personal service of the order as indicated herein; (2) The Court does not issue tentative rulings on these motions; Counsel may appear in any manner

(1) Plaintiff’s Counsel’s Motion to be Relieved

Facts

On October 6, 2025, Plaintiff’s Counsel Brian Plummer of Herman Law filed a motion to be relieved as counsel as to Plaintiff D.L. Plaintiff’s Counsel filed the following with respect to withdrawing:

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

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

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

Additionally, Plaintiff’s counsel has filed proof of service of these documents by mail at the last known address.

Authority and Analysis

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

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

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

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

Here, the declaration is properly made on form MC-052, uses general terms without compromising confidentiality, but does not expressly indicate that counsel has attempted to obtain a substitution by stipulation, but that Plaintiff has refused.

However, the declaration does state that Plaintiff and counsel have not been able to communicate despite the efforts of Plaintiff’s counsel. The Court finds this sufficient under the circumstances.

Next, service under Rule 3.1362(d) requires personal service, electronic service, or mail and counsel’s declaration must note the service made. Here, service was by mail. The declaration of counsel indicates that Plaintiff’s address was confirmed within the past 30 days as current and return receipt was requested.  

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

Therefore, the Court grants Plaintiff’s Counsel’s Motion to Withdraw as to Plaintiff D.L.

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

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

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

Re:                 Discover Bank vs. Valdez, Roger Jr

Case No.:   PCL308784

Date:            December 9, 2025

Time:           8:30 A.M. 

Dept.          19-The Honorable Glade F. Roper

Motion:     Plaintiff’s Motion for Summary Judgment

Tentative Ruling: To grant the motion

Undisputed Material Facts

Defendant applied to plaintiff for a credit card account and entered into a written credit card account agreement with plaintiff for the account number ending in 3547 (the “Account”). (UMF Nos. 1, 10.)

The defendant agreed to be bound by the terms and conditions set forth in the Cardmember Agreement when the defendant applied for, received or used the credit card account. In addition, the Cardmember Agreement provides that use of the card constitutes acceptance of the agreement. (UMF Nos. 2, 11.)

After receiving the credit card, purchases were made by the use of the account and the charging of various goods, services and cash advances. Plaintiff complied with its obligations under the Agreement by paying vendors for all charges that were made on Defendant’s account. The principal balance of $8,453.15 prayed for in the complaint results from the defendant’s use of said account. (UMF Nos. 3, 12.)

Payments and charges are duly reflected on the computerized credit card record regularly kept and maintained by plaintiff in connection with defendant’s credit card accounts. Those records were mailed on a monthly basis in the form of billing statements to defendant reflecting all debits and credits to defendant’s credit account. (UMF Nos. 4, 13.)

There is no record that there is any unresolved dispute between the parties and/or that the defendant asserted a valid objection to the balance shown as due and owing on the monthly statements provided to the defendant. (UMF Nos. 5, 14.)

Before 02/13/23, the defendant defaulted in making the payments due under the terms of the cardmember agreement and plaintiff accelerated the account balance so that the entire unpaid balance on the account became immediately due and payable. (UMF Nos. 6, 15.)

The last payment applied to the account was on or about 10/30/24. (UMF Nos. 7, 16.)

Defendant owes to plaintiff $8,453.15 principal and court costs. (UMF Nos. 8, 17.)

Defendant’s affirmative defenses, if any, fail to raise any triable issues of fact material to this action and therefore do not preclude granting of summary judgment. (UMF Nos. 9, 18.)

The Court notes from its file that timely and proper notice of this motion by mail was given to the Defendant at the address stated on Defendant’s answer.  The Court has not received any opposition to this motion.

Authority and Analysis

This motion for summary judgment arises out of Defendant’s default on a credit card obligation to Plaintiff. The complaint pleads common counts of open book account and account stated.

A plaintiff moving for summary judgment must make a prima facie showing that there are no triable issues of fact to meet its initial burden of production. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.App.4th 826, 861.)  “[A] [plaintiff] moving for summary judgment [must] present evidence, and not simply point out that the [plaintiff] does not possess, and cannot reasonably obtain, needed evidence.” Aguilar, at 854, fn. omitted.  Circumstantial evidence to support a plaintiff’s summary judgment motion “can consist of factually devoid discovery responses from which an absence of evidence can be inferred,” but the burden should not shift without stringent review of the direct, circumstantial, and inferential evidence.” (Scheiding v. Dinwiddle Construction Co. (1999) 69 Cal.App.4th 64, 83.)

Once the plaintiff has met its burden, the burden shifts to the defendant to make a prima facie showing that a triable issue of material fact exists. Aguilar, at 850.  “A prima facie showing is one that is sufficient to support the position of the party in question. [citation] No more is called for.” (Aguilar, supra, 25 Cal.App.4th at 851.) The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material facts and that the moving party is entitled to a judgment as a matter of law. (Code Civ. Proc. 437c(c).)

From a review of the undisputed material facts supplied in Plaintiff’s separate statement of undisputed material facts and the evidence that offered in support of these material facts that plaintiff supplied in this response, the Court finds that Plaintiff has met its burden to that no triable issues of fact exist as to each of the causes of action set forth in Plaintiff’s complaint.

As to the cause of action for open book account, Plaintiff must prove the following:

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

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

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

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

Here, the first element is met by UMF Nos. 1, 2, and 3.

The second element is met by UMF Nos. 4, 5, 6, and 7.

The third and fourth elements are met by UMF Nos. 5, 6, 7, 8 and 9.

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

The first element for account stated is met by UMF Nos. 10, 11, 12, 13, and 14

The second element is met by UMF Nos. 10 and 11.

The third element is satisfied by UMF Nos. 10, 11, 13, 14, and 17.

Moreover, Defendant’s failure to file written opposition creates the inference that the motion is meritorious. Where no opposition to a motion is timely filed with the Court, the Court may only hear argument limited to a request for a continuance of the hearing to afford an opportunity for written opposition, and the Court cannot hear oral argument from the responding party to a discovery motion that goes to the merits of the motion. The basis for this rule is patently intended to prevent the introduction of legal theories without prior notice to opposing counsel and the court.  (Sexton v. Superior Court (Mullikin) (1997) 58 Cal.App.4th 1403, 1410.)

Therefore, the Court grants the motion.

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

Re:                 Ayon, Yoana vs. Peltzer Farm Management, INC.

Case No.:   PCU316778

Date:           December 9, 2025

Time:           8:30 A.M. 

Dept.          19-The Honorable Glade F. Roper

Motion:     Defendants Peltzer and Garcia’s 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, Plaintiffs Yoana Ayon, Miguel Ayon and Gael Ayon sue Defendants Peltzer Farm Management and Roberto Garcia for negligence on a number of theories.

The complaint alleges an automobile collision that occurred on or about December 9, 2024, on Road 248, in the City of Terra Bella when Plaintiff Yoana Ayon was travelling southbound on Road 248 with Plaintiffs Miguel and Gael as passengers. Defendant Garcia suddenly reversed his vehicle from an orange grove adjacent to Road 248 onto the roadway and collided with Plaintiffs’ vehicle.

On March 5, 2025, Defendant Peltzer answered the complaint.

On April 17, 2025, Defendant Garcia answered the complaint.

On October 23, 2025, Defendants filed this motion for leave to file a cross-complaint against Plaintiff Yoana Ayon.

In support, Defendants note that during Plaintiff Yoana Ayon’s September 23, 2025, deposition, she testified that she was travelling at a speed ranging from 40mph-42mph. (Declaration of Noyes ¶4 – Ex. B.) Defendants note that this testimony otherwise confirms statements and conclusions found in the Traffic Crash Report produced in discovery that Plaintiff Yoana Ayon was driving her vehicle at an unsafe speed for the reduced visibility due to fog in violation of Vehicle Code Section 22350 at the time of the accident. (Declaration of Noyes ¶¶4, 5.)

Defendants further note that the Traffic Crash Report states that on December 9, 2024, Plaintiff Yoana Ayon was driving southbound on Road 248 south of Avenue 92, at a stated speed of 45 to 50 miles per hour and Defendant Garcia was backing eastbound out of an orchard to the west of the road, south of Plaintiff Yoana Ayon’s vehicle, at a stated speed of less than 5 miles per hour. (Declaration of Noyes ¶7.) Further, that the visibility in the area was reduced to approximately 80 feet due to fog. (Declaration of Noyes ¶7.)

As such, Defendants seek to file a cross-complaint for apportionment of fault, indemnity and declaratory relief against Plaintiff Yoana Ayon.

Trial is set for May 2026.

No opposition appears to have been filed.

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, they must obtain permission from the court to file the cross-complaint.  (Code of Civ. Proc.§§ 426.50, 428.50(c).) 

Here, Defendants properly seek leave to file a cross-complaint against named Plaintiff Yoana Ayon.

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 transaction and occurrences, that is the same accident at issue.  

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, the facts supporting the proposed cross-complaint were confirmed via the testimony of Plaintiff Yoana Ayon at the deposition which took place September 23, 2025. This motion was filed approximately one month later and the Court discerns no bad faith on the part of Defendants to bring this cross-complaint at the time of the answer of either of them.

Therefore, the Court grants the motion and orders Defendants to file the proposed cross-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:                 RODRIGUEZ, EDDIE vs. QUIRAM, AN INDIVIDUAL, AND AS TRUSTEE OF THE 2020 SEPARATE, ETHEL E et al

Case No.:   PCU325443

Date:            December 9, 2025

Time:            8:30 A.M. 

Dept.           19-The Honorable Glade F. Roper

Motion:      Demurrer to Complaint for Quiet Title

Tentative Ruling: To overrule the demurrer; to order Defendant Edmundo to answer the verified complaint no later than ten (10) days from the date of this hearing.

Facts

In this matter, Plaintiff Eddie Rodriguez seeks to quiet title as to APN: 262-270-037-000 (“Subject Property”) as to Defendants ETHEL E. QUIRAM, Individually, and as Trustee of the 2020 Separate Property Trust (Defendant “Quiram”), EDMUNDO RODRIGUEZ (Defendant “Edmundo”), JOSE ROSARIO VEGA (Defendant “Vega”) and VERONICA CERVANTES (Defendant “Cervantes”) as well as any other party with an interest in the Subject Property.

The complaint alleges that prior to March 22, 2021, the Subject Property was owned by Quiram, individually or as Trustee of the 2020 Ethel E. Quiram Separate Property Trust, created and dated February 13, 2020. (Complaint ¶8.)

The complaint further alleges that “On or about March 14, 2008, a quitclaim deed was recorded in the official records of the County of Tulare as Document No. 2008-0018705, purporting to transfer ownership of the Property from Quiram to Cervantes. This document contains the forged signature of Quiram and is a wild deed outside the chain of title.” (Complaint ¶8)

Further, that on or about April 2, 2021, a quitclaim deed was recorded in the official records of the County of Tulare as Document No. 2021-0022883, wherein Vega quit-claimed any interest he had in the Subject Property to Edmundo. (Complaint ¶9.)

Additionally, that On or about September 3, 2021, a grant deed was recorded in the official records of the County of Tulare as Document No. 2021-0065060, wherein Edmundo transferred all his interest in the Subject Property to Plaintiff. (Complaint ¶10.)

Further, that On or about November 4, 2022, a grant deed was recorded in the official records of the County of Tulare as Document No. 2022-0068713, wherein Defendant Quiram, as Trustee of the 2020 Separate Property Trust, transferred all of her interest in the Property to Plaintiff. (Complaint ¶11.)

The complaint further alleges that Defendants have no right, title, estate, lien, or interest whatever in the Property adverse to Plaintiff, and that title is sought to be quieted in favor of Plaintiff as the owner in fee simple as of the date of the filing of this complaint. (Complaint ¶¶12-16.)

On November 5, 2025, Defendant Edmundo filed a demurrer to the complaint, alleging it fails to state a cause of action against him and that the Court lacks jurisdiction because the Subject Property is the subject of a pending Elder Abuse Restraining Order.

In opposition, Plaintiff argues that the complaint alleges Defendant Edmundo has a recorded interest in the Subject Property based on the condition of title guarantee and that it is alleged that Defendant Edmundo attempted to quit-claim his interest to Plaintiff via the September 3, 2021 grant deed. (Complaint ¶¶9,10.)

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.)

Quiet Title

The elements of a cause of action for quiet title are:  (i) a description of the property including both its legal description and its street address or common designation; (ii) the plaintiff’s title and the basis upon which it is asserted; (iii) the adverse claims as against which a determination is sought; (iv) the date as of which a determination is sought and, if other than the date the complaint is filed, a statement why the determination is sought as of that date; and (v) a prayer for determination of plaintiff’s title against the adverse claims.  (Cal. Civ. Proc. Code § 761.020.)

Defendant Edmundo argues that the complaint alleges he previously held title, but executed a deed transferring title in 2021. Therefore, Defendant argues there is no support for the allegation that Defendant Edmundo still claims an adverse interest and that no adverse claim, cloud, or recorded interest is alleged.

In response, Plaintiff notes that the quitclaim from Defendant Edmundo still remains on the title report and therefore this action is necessary.

The Court finds a sufficient basis to bring this action to quiet title as to any issue regarding the 2021 quit claim deed from Defendant Edmundo to Plaintiff. The Court overrules the demurrer on this ground.

The Court notes that, as to the argument regarding an existing elder abuse restraining order, Defendant Rodriguez provides no request for judicial notice for which the Court to examine the alleged pending claim. The Court overrules the demurrer on this ground

The Court, therefore, overrules the demurrer. Defendant Edmundo is ordered to file an answer to the verified 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.

Examiner Notes for Probate Matters Calendared

• Visalia Division 
• South County Justice Center Division