Tentative Rulings

The Tentative Rulings for Monday, April 21, 2025, are:

Re:                Warnke, Aaron vs. Wilson, Scott

Case No.:  VCU317425 

Date:          April 21, 2025

Time:          8:30 A.M. 

Dept.          1-The Honorable David C. Mathias

Motions:      (1) Demurrer; (2) Motion to Strike; and (3) Special Motion to Strike (Anti-SLAPP)

Tentative Ruling:  (1) The anti-SLAPP motion is denied as untimely.  (2) The demurrer is sustained without leave to amend, and (3) the ordinary motion strike is, accordingly, denied as moot. 

Aaron Warnke sues Scott Wilson in a complaint alleging general negligence, intentional tort, and “fraud perjury” causes of action. 

On February 28, 2025, Wilson filed a demurrer and motion to strike (Code Civ. Proc., §§ 435 et seq.).  On March 28, 2025, Wilson filed a special motion to strike (i.e., anti-SLAPP, Code Civ. Proc., § 425.16.)

Warnke has not filed an opposition to any of Warnke’s motions. 

Anti-SLAPP

Wilson’s anti-SLAPP motion was filed and served (according to the attached proof of service) less than 16 court days before the scheduled hearing.  That motion is, therefore, untimely (Code Civ. Proc., § 1005, subd. (b)) and is denied. 

The court accordingly turns to the demurrer and motion to strike. 

Request for Judicial Notice in support of Demurrer and Motion to Strike

The court declines to takes judicial notice relating to the identified filings and proceedings in the other Tulare Superior Court cases identified in Wilson’s request. 

Demurrer

The function of a demurrer is to test the sufficiency of a pleading and lies only where defects appear on the face of the pleading.  (Code Civ. Proc., § 430.30.)

Warkne’s complaint fails to state facts constituting the causes of action he purports to allege against Wilson (Code Civ. Proc., § 425.10) and, as a result, the demurrer is sustained as to the whole complaint. 

1. Negligence & Intentional Tort

Warnke used Judicial Council forms in preparing his complaint.  In his form PLD-PI-001(2) Cause of Action—General Negligence and form PLD-PI-001(3) Cause of Action—Intentional Tort attachments, Warnke alleges as follows under the form prompt “description of reasons for liability”:

NEW VIDEO AND STATEMENTS HAVE EMERGED WHERE THE DEFENDANT STATES HE IS NOT AFRAID OF ME AND WANTS TO “STICK IT TO ME" " MAKE SURE i GO AWAY FOR A LONG TIME” THESE ACCUSATIONS AND DEFAMATION HAVE LED TO PENDING CRIMINAL CHARGES AND LOSS OF EMPLOYMENT, TIME AWAY FROM MY SON, MENTAL AND EMOTIONAL DURESS.

Warnke’s allegations supporting his negligence cause of action do not identify the well-established negligence elements of legal duty and breach (Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917 [50 Cal.Rptr.2d 309, 911 P.2d 496]) and, accordingly, Warnke fails to state a cause of action for negligence.  (Code Civ. Proc., § 430.10, subd. (e).)

Warnke’s allegations concerning “Intentional Tort” do not clearly identify any primary right, corresponding duty on the part of Wilson, or a wrongful act constituting breach on the part of Wilson, and, therefore, fail to state a claim based on any recognizable tort.  (See Anderson v. Ford Motor Co. (2022) 74 Cal.App.5th 946, 968 [290 Cal.Rptr.3d 89], citing Crowley v. Katleman (1994) 8 Cal.4th 666, 681–682 [34 Cal. Rptr. 2d 386, 881 P.2d 1083] [“[A] ‘ “cause of action” is comprised of a “primary right” of the plaintiff, a corresponding ‘primary duty’ of the defendant, and a wrongful act by the defendant constituting a breach of that duty.’ ”].)

2. Fraud

As noted above, Warnke’s complaint indicates it states a cause of action for “fraud perjury,” but, based on the corresponding attached fraud cause of action form, Warnke apparently intends to plead solely a fraud cause of action, evidently based on both misrepresentation and concealment theories.  It is at least clear that no separate analysis is necessary as to any distinctly plead “perjury” cause of action. 

In Warnke’s form PLD-C-001(3) Cause of Action—Fraud attachment, he states the exact same allegations quoted above in his negligence cause of action as the basis of an indicated “Intentional or Negligent Misrepresentation” theory.  Under a subsection for that theory, that includes the form allegation that “[t]hese representations were in fact false,” where Warnke is to state the comparative “truth” relative to any indicated false representations, Warnke alleges:  “HE FILED AND FALSIFIED POLICE REPORTS IN ORDER TO ‘PUT ME AWAY FOR GOOD.’ ”

Under another subsection indicating a “concealment” theory, Warnke alleges Wilson “concealed or suppressed material facts as follows:  THAT HE IS NOT AFRAID AS HE STATES IN THE VIDEOS AND AS WITNESS DECLARATIONS SUPPORT HIS PRESECNE [sic] AT MY HOME.”

Warnke’s allegations in support of his fraud cause of action do not identify any fraudulent misrepresentation or fraudulent concealment (Civ. Code, § 1710), except where Warnke alleges Wilson “filed and falsified police reports in order to ‘put me away for good.’ ” That allegation, however, involves neither a misrepresentation made to, or concealment of facts from, Wilson.  (See Civ. Code, § 1709.)  Accordingly, Warke fails to state a cause of action for fraud. 

The court additionally notes, to the extent of any purported claim based on the filing of a police report, the ligation privilege codified in Civil Code section 47 protects any “privileged publication or broadcast” made in “any … official proceeding authorized by law” and that protection has been expressly held to apply to police reports.  (See, e.g., Williams v. Taylor (1982) 129 Cal.App.3d 745, 753-754 [181 Cal.Rptr. 423].)

Based on the foregoing, the demurrer is sustained. 

Because plaintiff has failed to file any opposition, the demurrer is sustained without leave to amend.  “ ‘Generally it is an abuse of discretion to sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment. . . . However, the burden is on the plaintiff to demonstrate that the trial court abused its discretion. Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading.’ ” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [134 Cal.Rptr. 375, 556 P.2d 737], citations omitted.)

Motion to Strike

Because the demurrer is sustained as to the whole complaint, the motion to strike is moot. 

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

Re:                 Valdivia, Marco Antonio Tinoco vs. Villalobos, Andres

Case No.:   VCU304189

Date:            April 21, 2025

Time:           8:30 A.M. 

Dept.           7-The Honorable Gary M. Johnson

Motion:     (1) Defendant/Cross-Complainant’s Motion to Expunge Lis Pendens (2) Defendant/Cross-Complainant’s Motion for Attorneys’ Fees

Tentative Ruling: (1) To grant the motion and award fees and costs in the amount of $410; (2) To grant the motion and award fees in the amount of $13,850 and costs in the amount of $2,062.

Facts Common to (1) and (2)

On February 1, 2024, Plaintiff Marco Antonio Tinoco Valdivia filed his First Amended Complaint (“FAC”) against Defendant Andres Villalobos for (1) Breach of Contract; (2) Constructive Trust; (3) Restitution Based on Quasi-Contract; and (4) Temporary Restraining Order/Preliminary Injunction.

The operative amended complaint involved real property located at 862 Belmont Street in Tulare (“Subject Property.”)

On January 26, 2024, Plaintiff recorded the lis pendens.

On March 18, 2024, Defendant cross-complained against Plaintiff and Maria Tinoco for ejectment, breach of written contract and quiet title based upon a written rental agreement containing a provision for attorneys’ fees to a prevailing party for recovery of rent or other moneys due under the agreement or by breach of any covenant, or to recover damages to the Subject Property or to enjoin any act thereon.

This matter came on for trial on January 15, 2025.

Thereafter, judgment was entered on January 27, 2025 on behalf of Defendant against Plaintiff. Plaintiff shall take nothing as to the complaint.

Judgment is entered in favor of Cross-Complainant Villabos against Cross-Defendants Maria Tinoco and Marco Tinoco, finding that as of April 13, 2007, Villabos was the sole owner of the entire fee interest in the Subject Property. Further, that Cross-Defendants, as well as their successors, heirs and assigns, own no right, title, estate, lien, or interest in the Subject Property.

Further, that Cross-Defendant Marco Tinoco owes Villabos $27,040 in unpaid rent.

Further, that Villabos is the prevailing party against Marco Tinoco.

Notice of entry of judgment was served January 30, 2025 by mail.

Villabos now seeks expungement of the lis pendens and attorney fees in the amount $13,680.00, paralegal fees in the amount of $10,145.00, and costs in the amount of $2,062.00 as set forth in the memorandum of costs.

No opposition appears to have been filed.

(1) Authority and Analysis – Expunge Lis Pendens

A lis pendens is a provisional remedy to be used sparingly. (Formula Inc. v. Superior Court (2008) 168 Cal.App.4th 1455, 1462.) A lis pendens clouds the title and effectively prevents the property's transfer until the litigation is resolved or the lis pendens is expunged. (Gale v. Superior Court (2004) 122 Cal.App.4th 1388, 1394-1395.)

"[T]he court shall order that the notice be expunged if the court finds that the claimant has not established by a preponderance of the evidence the probable validity of the real property claim. (Code Civ. Proc § 405.32) "Real property claim" means the cause or causes of action in a pleading which would, if meritorious, affect title to, or the right to possession of, specific real property. (Code Civ. Proc § 405.4). "Probable validity," means that it is more likely than not that the claimant will obtain a judgment against the defendant on the claim. (Code Civ. Proc § 405.3). For this, "the claimant shall have the burden of proof..." by a preponderance of the evidence. (Code Civ. Proc § 405.30). The Court makes an initial assessment of the merits of the claim, similar to the "likelihood of success" standard for issuing injunctive relief. (Howard S. Wright Construction Co. v. Superior Court (2003) 106 Cal.App.4th 314, 319-320.)

Here, Villabos has defended the real property claim in the operative complaint, given the judgment in favor of Villabos on the operative complaint and therefore the Court grants the motion.

Attorneys’ Fees as to Lis Pendens Expungement

The Court shall award reasonable attorneys' fees in favor of any party prevailing on a motion to expunge a lis pendens except where the court finds that the losing party acted with substantial justification such that an imposition of fees would in the case be unjust. (Code Civ. Proc. § 405.38.)

Here, Villabos seeks $640.00 in attorneys’ fees, $170.00 in paralegal fees and costs in the amount of $60.00 for a total of $870.00.

However, Villabos provides no evidentiary basis for the Court to evaluate the reasonableness of these fees. Here, this motion, made after judgment in favor of Villabos was relatively straightforward.

The Court’s analysis begins with the lodestar figure, based on the “careful compilation of the time spent and reasonable hourly compensation of each attorney . . . involved in the presentation of the case.”  (Serrano v. Priest (1977) 20 Cal.3d 25, 48.) “The reasonable hourly rate is that prevailing in the community for similar work.” (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095 [internal citation omitted].)

As to the reasonableness of the hours, “trial courts must carefully review attorney documentation of hours expended; ‘padding’ in the form of inefficient or duplicative efforts is not subject to compensation.” (Ketchum v. Moses, supra, 24 Cal.4th at p. 1132.) “[A]ny failure to maintain appropriate time records sufficient to provide a basis for determining how much time was spent on particular claims” properly permits reduction of the award. (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1320.)

Therefore, the Court, as to this motion, will award one hour at $350 per hour plus the $60 filing fee, for a total award of fees on this motion to expunge lis pendens of $410.

(2) Authority and Analysis – Attorneys’ Fees and Costs

Where there is an agreement for attorneys’ fees, Civil Code 1717 provides:

“(a) In an action on a contract, where the contract specifically provides that attorney’s fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney’s fees in addition to other costs. ...Reasonable attorney’s fees shall be fixed by the court and shall be an element of the costs of suit.”

Additionally, “The court, upon notice and motion by a party, shall determine who is the party prevailing on the contract for purposes of this section, whether or not the suit proceeds to final judgment. Except as provided in paragraph (2), the party prevailing on the contract shall be the party who recovered a greater relief in the action on the contract. The court may also determine that there is no party prevailing on the contract for purposes of this section…” (Civil Code § 1717(b)(1).)

Here, it appears undisputed that Villabos is the prevailing party under the rental agreement, having obtained an award of past due rent and possession of the Subject Property.

Therefore, the Court examines the fees and costs requested.

Here, the declaration of counsel indicates

“…attorney’s fees in this matter are $23,825.00 and costs are $2,062.00. Attorney fees are billed at hourly rates of $380.00, $350.00 and $320.00; and paralegal fees are billed at an hourly rate of $170.00. Current attorney fees and paralegal fees through March 3, 2025 are as follows: Attorney fees in the amount of $13,680.00 and paralegal fees in the amount of $10,145.00. Costs have been advanced in the amount of $2,062.00” (Declaration of Hannah ¶4.)

The Court’s analysis begins with the lodestar figure, based on the “careful compilation of the time spent and reasonable hourly compensation of each attorney . . . involved in the presentation of the case.”  (Serrano v. Priest (1977) 20 Cal.3d 25, 48.) “The reasonable hourly rate is that prevailing in the community for similar work.” (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095 [internal citation omitted].) A reasonable hourly rate reflects the skill and experience of the lawyer, including any relevant areas of particular expertise, and the nature of the work performed. (Hensley v. Eckerhart (1983) 461 U.S. 424, 433-434.) The reasonable market value of the attorney’s services is the measure of a reasonable hourly rate. This standard applies regardless of whether the attorneys claiming fees charge nothing for their services, charge at below-market or discounted rates, represented the client on a straight contingent fee basis, or are in house counsel. (PLCM Group v. Drexler, supra, 22 Cal.4th at p. 1094.)

To determine reasonable attorney’s fees, the court should consider the nature of the litigation, its difficulty, the amount involved, the skill required and employed in handling the matter, the attention given, the success of the attorney’s efforts, the intricacies and importance of the litigation, the labor and necessity for skilled legal training and ability in trying the cause, and the time consumed. (Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 659.) As to the reasonableness of the hours, “trial courts must carefully review attorney documentation of hours expended; ‘padding’ in the form of inefficient or duplicative efforts is not subject to compensation.” (Ketchum v. Moses, supra, 24 Cal.4th at p. 1132.) “[A]ny failure to maintain appropriate time records sufficient to provide a basis for determining how much time was spent on particular claims” properly permits reduction of the award. (Christian Research Institute v. Alnor (2008) 165 Cal.App.4th 1315, 1320.) “In determining a fee's reasonableness, the court may also consider whether the motion itself is reasonable, both in terms of (1) the amount of fees requested and (2) the credibility of the supporting evidence.” (Guillory v. Hill (2019) 36 Cal.App.5^th 802, 811.) The court may make a downward adjustment if the billing entries are vague, “blockbilled,” or unnecessary. (569 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 441.)

Here, the Court lacks itemized billing records indicating the amount of time and applicable rate.

The Court calculates nearly 60 hours of paralegal time at the $170 rate.

Using $350 per hour as an average, the Court calculates 39 hours of attorney time.

The Court will reduce the time to 30 hours of paralegal time and 25 hours of attorney time, at the $170 and $350 rates, respectively.

Therefore, the Court awards $8,750 at the attorney rate and $5,100 at the paralegal rate, for a total attorney fee award of $13,850.

As to costs, the Court notes a memorandum of costs filed and served March 11, 2025. Any notice of motion to strike or to tax costs must be served and filed 15 days after service of the cost memorandum. If the cost memorandum was served by mail, the period is extended as provided in Code of Civil Procedure section 1013. If the cost memorandum was served electronically, the period is extended as provided in Code of Civil Procedure section 1010.6(a)(4).

Here, the memorandum was served by mail, but even with the extension under section 1013, the time to file the motion to tax costs has expired.

Therefore, the Corut awards the costs as requested in the amount of $2,062.

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:                  Praster, Greg vs. FCA US LLC

Case No.:    VCU309582

Date:            April 21, 2025

Time:           8:30 A.M. 

Dept.           7-The Honorable Gary M. Johnson

Motion:      Plaintiff’s Motion to Compel Compliance as to Request for Production of Documents

Tentative Ruling: To grant the motion and order documents produced no later than thirty (30) days from the date of this hearing; to impose sanctions, jointly and severally against Defendant and its counsel of record in the amount of $235 due no later than thirty (30) days from the date of this hearing.

Facts

Plaintiff purchased a 2022 Dodge Ram 2500 for which FCA provided express and implied warranties. Plaintiff alleges that after purchasing the vehicle, he began to experience problems with the vehicle and delivered the vehicle to FCA’s authorized repair facilities on numerous occasions. Despite these repair presentations, Defendant was unable to conform the vehicle to its applicable warranties

Due to this failure, Plaintiff contacted FCA requesting remedy under the “lemon law,” California’s Song-Beverly Act. Although FCA proposed to repurchase the vehicle, Plaintiff contends that the proposed offer included improper terms and deductions, and Plaintiff contends that FCA required Plaintiff to execute a release of claims beyond the those under the Song-Beverly Act, rendering the offer improper under the Song-Beverly Act. Accordingly, Plaintiff filed the instant lawsuit alleging violations of the Song-Beverly Act.

On August 5, 2024, Plaintiff served their first set of special interrogatories and requests for production of documents.

On October 2, 2024, FCA served responses but without verifications. As of the filing of these motions, Plaintiff has not received verified responses. However, the responses that were served agreed to produce several responsive documents as to Nos. 1-4, 6 – 14, 16 – 21, 23 – 27, 29 -33.

Further, Plaintiff seeks sanctions in the amount of $2,400.

No opposition appears to have been filed.

Plaintiff filed a notice of non-opposition.

Authority and Analysis

 “If a party filing a response to a demand for inspection, copying, testing, or sampling under Sections 2031.210, 2031.220, 2031.230, 2031.240, and 2031.280 thereafter fails to permit the inspection, copying, testing, or sampling in accordance with that party’s statement of compliance, the demanding party may move for an order compelling compliance.”  (Code Civ. Proc., § 2031.320, subd. (a).) There is no fixed time limit on this motion and no requirement to show any attempt to resolve the matter informally. The only required showing is that the responding party failed to comply as agreed. (Standon Co., Inc. v. Superior Court (1990) 225 Cal.App.3d 898, 903.) 

Here, the Court grants the motion and orders the documents produced as to Nos. 1-4, 6 – 14, 16 – 21, 23 – 27, 29 -33. Documents shall be produced no later than thirty (30) days from the date of this hearing.

As to sanctions, the court shall impose a monetary against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel compliance with a demand, unless it finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.  (Code Civ. Proc. § 2031.320(b).)   

Here, the Court views this motion as relatively straightforward and will sanctions Defendant in the amount of $235, consisting of one half hour at the reasonable local rate of $350 plus the $60 filing fee. The sanctions are imposed jointly and severally against Defendant and its counsel of record and are due no later than thirty (30) 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:                Rhodes, Patricia vs. Kaweah Health Medical Center

Case No.:   VCU306460

Date:           April 21, 2025

Time:           8:30 A.M. 

Dept.           7-The Honorable Gary M. Johnson

Motion:      Continued Motion Appoint Discovery Referee

Tentative Ruling: To appoint Judge O’Hara; to order the Chain 1 Defendants to prepare a proposed order based on the following ruling, as indicated herein.

Facts

On January 14, 2025, Plaintiffs filed a motion to appoint a discovery referee. In support, Plaintiffs note substantial discovery issues in a complex elder abuse case warrants appointment of the referee. Plaintiffs note no stipulation has been reached by all parties as to appointing a discovery referee. The Court’s prior ruling agreed that a discovery referee was appropriate and ordered the parties attempt to stipulate to a referee or to submit a proposed list.

On March 3, 2025, Plaintiffs filed their list of referees as follows:

1. Hon. Robert Hight (Ret.)

2. Hon. Cecily Bond (Ret.), and

3. Hon. Ellen Sickles James (Ret.)

On March 3, 2025, the Chain 1 Defendants filed their list of referees as follows:

1. Honorable Patrick J. O'Hara;
2. Honorable Alan M. Simpson;
3. David M. Moeck

On March 3, 2025, the Chain 2 Defendants joined the list proposed by the Chain 1 Defendants.

At the prior hearing on March 17, 2024, the Court continued this matter as to the rates and maximum hours of the proposed referees.

On March 27, 2025, Plaintiffs provided additional details as to their list:

1. Hon. Robert C. Hight (Ret.): Daily Rate $8,000; Half Day Rate $5,000; and hourly rate $800/hr. In addition, Judge Hight (Ret.) utilizes an assistant clerk, Maraeen B. Dear, whose hourly fee is $300/hr.

2. Hon. Ellen Sickles James (Ret.): Daily Rate $11,000; hourly rate $1,100/hr.

3. Hon. Cecily Bond (Ret.): Daily Rate $9,000; hourly rate $900/hr.

On April 7, 2025, the Chain 1 Defendants submitted the following additional information as to the proposed list:

A) Honorable Patrick O'Hara (Ret.): Hourly Rate is $750.00; Half Day Rate is $3,000.00; and Full Day Rate is $6,000.00.

B) Honorable Alan M. Simpson (Ret.): Hourly Rate is $600.00; Half Day Rate is $3,000.00; and Full Day Rate is $5,000.00.

C) David M. Moeck: Hourly Rate is $600.00; Half Day is $3,250.00; and Full Day is $6,500.00

Authority and Analysis

Code of Civil Procedure section 639 states, in part, the following:

(a) When the parties do not consent, the court may, upon the written motion of any party, or of its own motion, appoint a referee in the following cases pursuant to the provisions of subdivision (b) of Section 640:…

(5) When the court in any pending action determines that it is necessary for the court to appoint a referee to hear and determine any and all discovery motions and disputes relevant to discovery in the action and to report findings and make a recommendation thereon….”

Further, subsection (c) states “(c) When a referee is appointed pursuant to paragraph (5) of subdivision (a), the order shall indicate whether the referee is being appointed for all discovery purposes in the action.”

Finally, subsection (d) states:

(d) All appointments of referees pursuant to this section shall be by written order and shall include the following:…

(2) When the referee is appointed pursuant to paragraph (5) of subdivision (a), the exceptional circumstances requiring the reference, which must be specific to the circumstances of the particular case.

(3) The subject matter or matters included in the reference.

(4) The name, business address, and telephone number of the referee.

(5) The maximum hourly rate the referee may charge and, at the request of any party, the maximum number of hours for which the referee may charge. Upon the written application of any party or the referee, the court may, for good cause shown, modify the maximum number of hours subject to any findings as set forth in paragraph (6).

(6)

(A) Either a finding that no party has established an economic inability to pay a pro rata share of the referee’s fee or a finding that one or more parties has established an economic inability to pay a pro rata share of the referee’s fees and that another party has agreed voluntarily to pay that additional share of the referee’s fee. A court shall not appoint a referee at a cost to the parties if neither of these findings is made.

(B) In determining whether a party has established an inability to pay the referee’s fees under subparagraph (A), the court shall consider only the ability of the party, not the party’s counsel, to pay these fees. If a party is proceeding in forma pauperis, the party shall be deemed by the court to have an economic inability to pay the referee’s fees. However, a determination of economic inability to pay the fees shall not be limited to parties that proceed in forma pauperis. For those parties who are not proceeding in forma pauperis, the court, in determining whether a party has established an inability to pay the fees, shall consider, among other things, the estimated cost of the referral and the impact of the proposed fees on the party’s ability to proceed with the litigation.”

Accordingly, in limited circumstances, the Court may appoint a referee, without agreement of the parties. (Code of Civil Procedure section 683(a); California Rule of Court 3.290(a).)

As to all six nominees, the Court has sufficient information under section 639(d)(1) through (6).

The Court will select Honorable Patrick O'Hara (Ret.) as to the following rates: Hourly Rate is $750.00; Half Day Rate is $3,000.00; and Full Day Rate is $6,000.00.

The Court orders the Chain 1 Defendants to prepare a proposed order reflecting compliance with section 639 and containing the following information:

The Court appoints, as discovery referee, Honorable Patrick O'Hara (Ret.), 300 North Willis Street, Visalia, CA 93291, (559) 429-4570 Office, (559) 799-8920 Mobile, judgeohara@judgeohara.com.

The Court finds that the number of named defendants, corresponding discovery requests and anticipated motions to compel warrant the appointment of a discovery referee. For instance, on October 29, 2024, Plaintiffs propounded 75 sets of discovery requests and approximately 1000 requests for production of documents on the Chain 1 Kaweah Defendants. Although the Court initially entered a protective order limited the first round of discovery, this was based, in part, by issues raised by the parties on demurrer and the motions to strike, as opposed to a substantive limitation on discovery as to the factual issues in this matter.

Given the volume of discovery sought to be propounded against over a dozen defendants, the protective orders filed by Defendants, the motion to compel deposition of PMQ filed by Plaintiffs, and the motion for protective order as to that PMQ by the Chain 1 Defendants, the Court finds it appropriate to appoint a discovery referee pursuant to Code of Civil Procedure section 639(a)(5) to hear all discovery motions and disputes relevant to discovery in this case. The Court finds good cause for a discovery referee to be appointed. (California Rule of Court, rule 3.922(e).)

With the volume of discovery, the breadth of discovery, the anticipated motions,  and the Court’s experience as to hours of judicial time that have been spent in other elder abuse actions, the Court finds it necessary and vital and that a referee shall “hear and determine any and all discovery motions and disputes relevant to discovery and to report findings and make a recommendation.” The Court finds that exceptional circumstances require the appointment in this case due to the substantial number of discovery issues that will need to be resolved, the anticipated number of discovery motions that will be filed, and that the present motions (as to the PMQ deposition and protective order) are merely ones in what appears to be a continuum of many more to come. The issues range from the adequacy of the meet-and-confer efforts, to the liability of all named Defendants, to issues potentially involving private health, personnel and financial information. Finally, the volume of paper submitted in connection with the various discovery motions makes the inquiry inordinately time-consuming given the Court's limited resources. The appointment will be for all discovery purposes in the action. (Code Civ. Proc., § 639, subds. (c), (d)(3).)

The appointment of Judge O’Hara shall be for all discovery matters, including written discovery and depositions, as well as law and motion.

The following rates shall be the maximum rates: Hourly Rate $750.00; Half Day Rate is $3,000.00; and Full Day Rate is $6,000.00.

No party has requested the maximum hours for which the referee may charge.

Finally, the Court notes no party has established an economic inability to pay a pro rata share of the referee’s fee. The Court notes these rates shall be charged or apportioned only to the parties involved. For example, if Plaintiffs move to compel further responses to a single Chain 1 Defendant’s discovery responses, the discovery referee will determine how the fees should be assessed limited to, in this hypothetical example, Plaintiffs and the single Chain 1 Defendant.

The Court will sign a proposed order reflecting the above.

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:                 Mejinez, Miguel vs. Zulay LLC

Case No.:   VCU307756

Date:           April 21, 2025

Time:           8:30 A.M. 

Dept.           7-The Honorable Gary M. Johnson

Motion:      Plaintiffs’ Motion to Compel Deposition of Defendant Zulay’s PMQ(s)

Tentative Ruling: To grant the motion and order the parties to meet and confer as to an agreeable date, no later than thirty (30) days from the date of this hearing, for the deposition of Defendant Zulay’s PMQ as to the remaining 22 categories; to decline to award sanctions to either side.

Facts

In this complaint for products liability, failure to recall, breach of implied warranty, medical malpractice and loss of consortium, Plaintiff Miguel Mejinez alleges the Zulay Single Cup Coffee Maker, Model LB – 190 (“Subject Coffee Maker”), malfunctioned and sprayed scalding on water onto his abdomen on December 18, 2023. (Declaration of Alch ¶3.) Plaintiff Miguel was hospitalized for two days and underwent debridement procedures. (Declaration of Alch ¶3.)

The Subject Coffee Maker was manufactured for and tested by Defendant Zulay LLC (“Zulay”), who then distributed it to Defendant Global Promotional Sourcing LLC (“GPS”),who distributed it to Tachi Palace Casino, where Plaintiff Miguel  obtained it. (Declaration of Alch ¶4.)

On September 6, 2024, Plaintiffs served four (4) deposition notices on Zulay pursuant to Code of Civil Procedure section 2025.230, to produce it person(s) most qualified (“PMQs”) to testify on its behalf regarding the issues including design/manufacture, safety, modifications and advertising. (Declaration of Alch ¶5.) The depositions were noticed for October 7, 8, 9 and 10, 2024. (Declaration of Alch ¶5.) No objection to the notice was served. (Declaration of Alch ¶5)

The parties appear to have agreed that Zulay would produce witnesses on January 10, 2025 and January 17, 2025, indicating that Tom Sledge would testify on all issues other than advertising, and that Gabriel Alvarado would testify regarding advertising/sales. (Declaration of Alch ¶6.)

The Court notes that Defendant indicates it informed Plaintiff that Sledge and Alvarado were the best employees who could address all topics from a general standpoint, as no current employees existed with personal knowledge as to all categories. (Declaration of Lehman ¶5.)

On December 19, 2024, Plaintiffs served notices of continuances of the PMQ depositions for January 10 and 25, 2025. (Declaration of Alch ¶¶7, 8.)

At the January 10, 2025 deposition of Tom Sledge, it was discussed that that Mr. Sledge was not the PMQ for twenty-two (22) of the forty-seven (47) categories, specifically Nos. 9, 12, and 20-39. (Declaration of Alch ¶¶ 9, 10, 11, 12.)

Following the deposition, on January 30, 2025 and February 4, 2025, Plaintiff’s counsel reached out to schedule the deposition of the PMQ(s) for the 22 categories for which Mr. Sledge was not the PMQ. (Declaration of Alch ¶¶13, 14.)

At that time, Defendant indicated to Plaintiff that it could not produce an employee with personal knowledge of the subject product, as that person or persons were no longer employed. (Declaration of Lehman ¶7)

Plaintiffs move to compel the deposition of Zulay’s PMQ as to the 22 categories noted above. Plaintiffs further seek sanctions in the amount of $3,640 against Defendant and counsel of record.  (Declaration of Alch ¶¶16, 17.)

In the amended opposition, Defendant indicates it produced the best available options for the various PMQ categories, noting however that no current employee has personal knowledge for the 22 topics still remaining. Additionally, Defendant argues it has attempted in good faith to address these issues informally as to scheduling various depositions. Defendant indicates identified a third employee, Peter Bardi during one deposition session, and agreed to produce him for deposition in February.

Defendant seeks sanctions against Defendant in the amount of $4,000.

Authority and Analysis

Section 2025.230 provides that “If the deponent named is not a natural person, the deposition notice shall describe with reasonable particularity the matters on which examination is requested. In that event, the deponent shall designate and produce at the deposition those of its officers, directors, managing agents, employees, or agents who are most qualified to testify on its behalf as to those matters to the extent of any information known or reasonably available to the deponent.”

Code of Civil Procedure section 2025.450 provides in relevant part: " "If, after service of a deposition notice, a party to the action or an officer, director, managing agent, or employee of a party, . . , without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document . . . described in the deposition notice, the party giving the notice may move for an order compelling the deponent's attendance and testimony, and the production for inspection of any document . . . described in the deposition notice." (Code Civ. Proc. § 2025.450(a).)

Section 2025.450(b) provides, "A motion under subdivision (a) shall comply with both of the following:

(1) The motion shall set forth specific facts showing good cause justifying the production for inspection of any document, electronically stored information, or tangible thing described in the deposition notice. 

(2) The motion shall be accompanied by a meet and confer declaration under Section 2016.040, or, when the deponent fails to attend the deposition and produce the documents, electronically stored information, or things described in the deposition notice, by a declaration stating that the petitioner has contacted the deponent to inquire about the nonappearance."

Here, it is in dispute whether Sledge or Alvarado were designated as the PMQ for 47 categories but were not, in fact, the PMQ for 22 of those categories and whether Defendant has otherwise identified a PMQ for the remaining categories.

Both parties cite Maldonado v. Superior Court (2002) 94 Cal.App.4th 1390 on this issue. In Maldonado, plaintiffs served deposition notices on a company seeking the "person most knowledgeable" about various matters including the company's responses to interrogatories. (Id. at 1392-1393.)

“In the period after petitioners were terminated or resigned, ICG underwent a financial reversal and is now in bankruptcy. It was forced to lay off a number of its employees ‘includ[ing] virtually all of Petitioners' [former] supervisors, as well as numerous human resources and management employees.’” (Id. at 1393.)

However, the deponent produced (the person in charge of human relations for the western regional states) testified that she had “…very little actual knowledge about the specific events that led to the terminations (or resignations) involved in the litigation. Nor did she seem to have knowledge about more general matters such as employment policies and the contents of personnel files.” (Id.)

The trial court denied the motion compelling the company to provide further depositions of the person most knowledgeable regarding the various issues and to fully respond to all outstanding requests for documents. (Id. at 1394.)

The appellate court vacated the denial and ordered the motion granted, noting, however, that:

“The code states that a party can procure the attendance of an individual at a deposition by way of notice only if the prospective deponent is "a party to the action" or "an officer, director, managing agent, or employee of a party . . . ." ( Code Civ. Proc., § 2025, subd. (h)(1).) "The attendance and testimony of any other deponent . . . requires the service on the deponent of a deposition subpoena under Section 2020." (§ 2025, subd. (h)(2).) The code applies by its language only to current officers, directors, managing agents, or employees. "Persons formerly affiliated with a party (e.g., former officers or employees) are not required to attend a deposition unless subpoenaed." (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial, supra, P 8:518, p. 8E-26.4.) Therefore, ICG was not required to produce former employees in response to the notice just because the former employees are far more knowledgeable about the litigation than anyone currently employed by the company. ICG's duty is limited, as we have said, to producing the most knowledgeable person currently in its employ and making sure that that person has access to information and documents reasonably available within the corporation. (Id. at 1398.)

Further, “Under the current law, ‘ [i]f the subject matter of the questioning is clearly stated, the burden is on the entity, not the examiner, to produce the right witnesses. And, if the particular officer or employee designated lacks personal knowledge of all the information sought, he or she is supposed to find out from those who do!’”(Id. at 1395-1396.)

As to the availability of employees as PMQs, the court noted:

“It is apparent from the record in this matter that the individuals selected by ICG to represent the company at the depositions knew very little about the topics specified in the notices. That is understandable since, as ICG explained, many of the employees who supervised or worked with petitioners are no longer employed by the company.” (Id. at 1396.)

That is the situation facing the Court presently, where Defendant has attempted to, in what appears to be good faith, produce employees with knowledge of the categories.

What has not been demonstrated to the Court is the same conduct present in Maldanado, which noted:

“What cannot be so easily overlooked was the cavalier attitude displayed at the depositions concerning information that should have been readily available to the witnesses. Haley, as a human resources manager, should,  for example, have been able to identify a personnel file when one was shown to her--particularly since it was the personnel file she was asked to produce. In addition, she should have been familiar enough with the contents of the file that when a specific question was asked--such as when the subject employee was hired or terminated or what positions he held at various times--she could answer by referring to information contained in the file.” (Id. at 1396.)

Therefore, the Court agrees that Defendant maintains the burden to produce an employee and must do so in good faith. The Court will grant the motion to compel as to producing an employee, if any, to the remaining 22 categories. Though Defendant cannot be compelled to produce a former employee who might have superior knowledge of one or more of the remaining categories, Defendant must produce “…the most knowledgeable person currently in its employ and making sure that that person has access to information and documents reasonably available within the corporation.”

The Court orders the parties to meet and confer as to an available date, no later than thirty (30) days from the date of this hearing.

The Court will decline to award sanctions to either side.

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