Tentative Rulings

The Tentative Rulings for Tuesday, April 28, 2026, are:

Re:                 Collins, Tony vs. Greyhound Lines, Inc., a corporation

Case No.:   VCU315168

Date:           April 28, 2026

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:      Motion for Coordination of Cases

Tentative Ruling: To inquire as to whether all related cases have been settled and whether this motion for coordination of these cases remains necessary to be adjudicated.

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:                 Doe C.H., Jane vs. Nguyen, MD, John T.

Case No.:   VCU324049

Date:           April 28, 2026

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     (1) Demurrer and (2) Motion to Strike as to First Amended Complaint

Tentative Ruling: (1) To sustain the demurrer with leave to amend; Plaintiff shall have ten (10) days to file an amended complaint; (2) To grant the motion to strike without leave to amend, noting the availability of a noticed motion pursuant to Code of Civil Procedure section 425.13 as to punitive damages.

Facts Common to (1) and (2)

Relevant here, Plaintiff sues demurring Defendant Nguyen for assault, battery, IIED, negligence and professional negligence.

Plaintiff alleges that on July 27, 2024 at or near 590 W Putnam Ave., Porterville, CA 93257, Plaintiff “was receiving medical care” from Defendant Nguyen and that during the examination Defendant “instructed her to sit on the examination table and then forcibly pushed her shoulders back, causing her to lie down. Defendant JOHN T. NGUYEN, MD, proceeded to touch her abdomen, pulled down her pants, and placed his hand on her private area. When Plaintiff reacted to the contact, Defendant JOHN T. NGUYEN, MD stated, “Oh, I was just looking for your C-section scar.” (FAC ¶7) Further, that the examination was performed “without a female staff member present during the examination” and Plaintiff, feeling panicked, gathered her belongings and left the clinic. (FAC ¶8.)

As to assault, Plaintiff alleges that she believed she was about to be touched in a harmful and sexual manner, avoided contact with Defendant, that Defendant “sexually harassed and assaulted Plaintiff as he examined her” and that Plaintiff did not consent to this contact. (FAC ¶¶11-13.) Plaintiff seeks punitive damages as to this cause of action.

As to battery, Plaintiff alleges Defendant Nguyen “intentionally and with the intent to harm, sexually harassed and assaulted Plaintiff with such force that Plaintiff suffered injuries and damages,” that Plaintiff did not consent and that a reasonable person would have been offended. (FAC ¶¶18-21.) Plaintiff seeks punitive damages as to this cause of action.

As to IIED, Plaintiff alleges the “sexual harass[ment] and assault” was intentional, outrageous, socially unacceptable and Plaintiff seeks punitive damages. (FAC ¶¶24-28.)

As to negligence, Plaintiff alleges that the Subject Premises was “owned, rented, managed, leased, supervised, inspected, operated, maintained and/or controlled” in a negligent, careless and reckless matter as to proximately cause sexual assault. (FAC ¶¶36-39.)

As to professional negligence, Plaintiff alleges Defendant Nguyen “…owed Plaintiff a duty to exercise that degree of skill, care, knowledge, and professionalism ordinarily possessed and exercised by members of the medical profession under similar circumstances, including the duty to obtain informed consent, respect patient autonomy and dignity, and refrain from unnecessary, inappropriate, or non-consensual physical contact.” (FAC ¶44.) Further, that Defendant Nguyen “instructed Plaintiff to sit on an examination table. Without warning or consent, he forcibly pushed Plaintiff’s shoulders backward, causing her to lie down on the table” and “proceeded to touch Plaintiff’s abdomen, pulled down her pants, and placed his hand on Plaintiff’s private area, all without Plaintiff’s consent, explanation, medical justification, or legitimate medical necessity.” (FAC ¶¶45, 46.)

Defendant Nguyen demurrers to each cause of action and seeks to strike the allegations as to punitive damages based on a failure to obtain prior court authorization as to punitive damages pursuant to pursuant to Code of Civil Procedure section 425.13.

In opposition, Plaintiff argues that each cause of action has been pled sufficiently. However, Plaintiff has filed a non-opposition with respect to paragraphs referencing punitive damages.

Authority and Analysis

(1) Demurrer

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.)

A demurrer cannot be sustained without leave to amend where it appears that the facts alleged establish a cause of action under any possible legal theory or it is reasonably possible that the plaintiff can amend the complaint to allege any cause of action. (Canton Poultry & Deli, Inc v. Stockwell, Harris, Widom, and Woolverton (2003) 109 Cal.App.4^th 1219, 1226.)

Assault, Battery and IIED

"The essential elements of a cause of action for battery are: (1) defendant touched plaintiff, or caused plaintiff to be touched, with the intent to harm or offend plaintiff; (2) plaintiff did not consent to the touching; (3) plaintiff was harmed or offended by defendant's conduct; and (4) a reasonable person in plaintiff's position would have been offended by the touching. [Citations.]" (So v. Shin (2013) 212 Cal.App.4th 652, 669.) In order to establish a case of civil battery, the complaint must plead that Defendant acted with wanton, willful or reckless disregard of plaintiffs rights. (Lopez v. Surchia (1952) 112 Cal.App.2d 314, 318.)

The essential elements of a cause of action for battery are: (1) defendant touched plaintiff, or caused plaintiff to be touched, with the intent to harm or offend plaintiff; (2) plaintiff did not consent to the touching; (3) plaintiff was harmed or offended by defendant's conduct; and (4) a reasonable person in plaintiff's position would have been offended by the touching. (CACI No. 1300; Kaplan v. Mamelak (2008) 162 Cal.App.4th 637, 645.)

“The elements of a prima facie case for the tort of intentional infliction of emotional distress are: (1) extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard of the probability of causing, emotional distress; (2) the plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate causation of the emotional distress by the defendant's outrageous conduct.” (Cervantez v. J. C. Penney Co. (1979) 24 Cal.3d 579, 593.)

Allegations of intentional wrongdoing must be pled with specificity. (Allen v. Jones (1980) 104 Cal.App.3d 207, 215.)

In this case, the Court finds the allegations insufficient as to the type of medical procedure or examination for which Plaintiff arrived at the medical center and scope of consent of Plaintiff. The Court will require additional detail as to the scope of the medical examination for which Plaintiff sought treatment. The Court finds the allegation “without Plaintiff’s consent” conclusory and requiring further specificity.

Therefore, the Court sustains the demurrer to the first three causes of action with leave to amend.

Negligence

The elements of negligence are duty, breach, causation, and damages. (McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.) It is unclear to the Court how the allegations meet these elements as to Defendant Nguyen, given that paragraphs 36 and 37 discuss that Defendant Nguyen and Defendant Sequioa “owned, rented, managed, leased, supervised, inspected, operated, maintained and/or controlled” the clinic “in a negligent, careless and reckless manner so as to proximately cause the aforementioned sexual assault” and that Sequoia “negligently, carelessly, recklessly, and wantonly caused injury to Plaintiff in that Defendants, as the owners, lessors, sub-lessors, managing agents, landlords, renters, managers, operators, marketers, inspectors, maintainers and controllers of the SUBJECT PREMISES in which the subject sexual assault and harassment occurred, allowed Defendant JOHN T. NGUYEN, MD to conduct himself in such a manner that resulted in the sexual assault and harassment of Plaintiff.”

These paragraphs, and the remaining paragraphs in this cause of action fail to assert the duty of care or breach thereof and are conclusory as to the element of proximate cause.

Therefore, the Court sustains the demurrer to the fourth cause of action with leave to amend.

Professional Negligence

To state a claim for medical negligence, a plaintiff must allege (1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise, (2) a breach of the duty, (3) a proximate causal connection between the negligent conduct and the injury, and (4) resulting loss or damage. (Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968.)

However, the Court notes that Flowers v. Torrance Memorial Hosp. Med. Center (1994) 8 Cal.4th 992, for which a professional negligence and negligence claim of action were premised on the same set of facts, the California Supreme Court noted “as we have explained, whether the cause of action is denominated "ordinary" or "professional" negligence, or both, ultimately only a single standard can obtain under any given set of facts.” Here, via incorporation of all previously alleged facts, the Court finds these causes of action are duplicative.

Nevertheless, the Court will sustain the demurrer with leave to amend to clarify, if desired, one set of facts as to “ordinary” negligence and another set of facts as to “professional negligence.”

(2) Motion to Strike

The Court grants the unopposed motion to strike the references to punitive damages without leave to amend, absent a noticed motion pursuant to Code of Civil Procedure section 425.13.  

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:           April 28, 2026

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     Defendants’ Motion to Set Aside Judgment re: Summary Judgment Motion

Tentative Ruling: To deny the motion

Background Facts

In this matter, Plaintiff Lopez alleges two causes of action for breach of contract and one cause of action for breach of implied warranty against Defendants Baeto, Inc. and Adalberto Rivera Gallardo.

Defendants, on March 20, 2024, jointly answered the complaint and were represented by lan I. Brady of Kahn, Soars & Conway, LLP.

Trial was set for December 22, 2025.

On September 10, 2025, Counsel Brady filed and served a motion to be relieved as to both Defendants.

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 was represented in pro per. However, no substitution of counsel was filed as to Defendant Baeto at that time.

The opposition to the summary judgment motion would have been due November 19, 2026. No opposition to the summary judgment motion was filed by either Defendant Gallardo or Defendant Baeto.

This matter came on for hearing for Plaintiff’s motion for summary judgment on December 9, 2025 and the Court heard argument that the matter had been filed and served within the statutory time limits, but that the Court was unable to hear it until December 9, 2025. Further, that the motion was filed and served on September 18, 2025, eighty-two before the hearing date and, due to a court scheduling issue, the Court exercised its discretion under Code of Civil Procedure section 473c(a) and considered the merits of the motion.

The Court issued a ruling December 10, 2025 granting the motion and indicating it would enter judgment in the amount of $78.076.27, consisting of the general damages suffered from the breach of contract.

Judgment was entered in the amount of $78.076.27 on December 18, 2025.

On December 31, 2025, Attorney Starr Warson of Warson & Warson substituted in as counsel for both Defendants.

On March 3, 2026, Defendants filed this motion to set aside the judgment pursuant to Code of Civil Procedure section 473(b). Defendant Gallardo submits a declaration in support of the motion which states:

“18. I was represented by attorney Ian Brady of Kahn, Soares & Conway, LLP from the beginning. The attorney handled the defense and I didn’t know much of what was happening from day to day. Then, in September 2025, he did a motion to be relieved as my attorney. I got the papers in an email, but thought is was just another something telling me of the progress of the case. I don’t always follow emails when I’m working, but I always return calls. Ian never called, just emails. Sometime later, I read over the motion and called Ian to see what’s going on. He told me he had to ‘pull out’ of the case but did not explain much. I called again where he said his firm told him to stop as they thought the representation was more than I could afford. He went on to explain that the motion to be relieved made us opposing parties and because of that, he could not talk with me any more. As an alternative he said I should sign a different paper where I would represent myself. If I didn’t, I would have to go against my attorney at a hearing before the judge. That did not seem like a good thing.

19…Finally, I went to see Ian in November, I paid the bills but the way it was presented, I had no choice but to sign a voluntary ‘substitution’ of my attorney. Ether I had to sign the substitution and represent myself, or I had to litigate against my attorney at a hearing. Either way, I would not have an attorney and it was a little over a month to the trial…

20. On November 5, 2025, I signed the paper to represent myself and was told there was some sort of hearing on December 8, 2025. He wished me, ‘good luck’. I also received a bundle of papers which I later learned was a Motion for Summary Judgment. I had no idea what a summary judgment was or what it meant. I had no idea what I was to do, only that there was a hearing on the 8th, and I’d better be present.

21. At the December 8th hearing, Mr. Perez complained about how long the case had been going on, how much effort and time his office spent on it, and that it needed to be finished there and then. I had all my papers and evidence ready to go, but was never given the opportunity. I don’t remember all the legal terms being used, but finally, seeing no other option, I asked for some time to find a new lawyer. The next thing I heard was that the matter would be taken ‘under submission’ (I think that was the wording). At the end, I was given a paper from the clerk that I was to come back on December 22, 2025, to what I thought would be the trial…” (Declaration of Gallardo ¶¶18-21.)

On these facts, Defendants seeks relief as to “insufficient notice” of the summary judgment motion, mistake, inadvertence, surprise and excusable neglect. Further, that under Garcia v. Hejmadi (1997) 58 Cal.App.4th 677, 682, attorney abandonment is a basis for relief.

On April 17, 2026, Plaintiff filed an opposition arguing that the motion is improperly made under Code of Civil Procedure section 473(b), that the proper motion is one for a new trial under section 663, that such a motion is untimely and the Court’s jurisdiction to rule on the matter has expired.

Authority and Analysis

Here, Defendants seek to vacate entry of judgment following a motion for summary judgment for which no opposition was filed.

To start, there is no basis for mandatory relief under section 473(b) as to entry of judgment following a motion for summary judgment. “[T]he provision for mandatory relief does not apply to summary judgments.” (Las Vegas Land & Development Co., LLC v. Willkie Way, LLC (2013) 219 Cal.App.4th 1086, 1091; see Vandermoon v. Sanwong (2006) 142 Cal.App.4th 315, 321.) Therefore, as to any argument of attorney neglect regarding the failure of prior counsel to file the opposition, the Court finds no basis in the law to grant the relief requested.

Turning to the discretionary portion of section 473(b), the Court notes the following cases that analyze whether the standard for discretionary relief has been met where a party fails to timely oppose a summary judgment motion: Henderson v. Pacific Gas & Electric Co. (2010) 187 Cal.App.4th 215 and Huh v. Wang (2007) 158 Cal.App.4th 1406. Therefore, the Court does not find that relief is limited to a motion for new trial in this matter.

The Court first notes this motion is timely, where judgment was entered December 18, 2025, this motion was filed March 3, 2026 and such relief under section 473(b) must be sought within a “reasonable time” and in no case exceeding six months.

A trial court has broad discretion to vacate a judgment that preceded it. (Code Civ. Proc. § 473(b).) The discretionary portion of this section does not appear limited to default judgments. However, that discretion can be exercised only if the moving party establishes a proper ground for relief, by the proper procedure, and within the time limits. (Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 495.)

A party may seek discretionary relief from default under Code of Civil Procedure section 473(b) on grounds of “mistake, inadvertence, surprise or excusable neglect.”

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

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

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

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

The Court starts with the September 10, 2025 date where prior counsel Brady filed a motion to be relieved as counsel. At that point, Defendant Gallardo was placed on notice that he should either be prepared to represent himself in this matter or retain other counsel. Moreover, because a corporation cannot represent itself, that Defendant Baeto, Inc. would require representation. No such efforts are indicated in the declaration.

Next, the summary judgment motion is served on prior counsel Brady on September 18, 2025, and on November 5, 2025, Defendant Gallardo voluntarily substituted himself into the case and became aware of the pending summary judgment motion and that as of that date “I had no idea what a summary judgment was or what it meant. I had no idea what I was to do.” Defendant Gallardo does not indicate that he sought counsel in the over 30 days between the substitution and the hearing date. Rather, he continued to represent himself, failing to file either an opposition or seek a continuance to obtain new counsel. Rather, Defendant Gallardo chose to attend the hearing on December 9, 2025.

These actions, however, cannot constitute excusable mistake, surprise, neglect or inadvertence, because the law does not permit a party to proceed without counsel and then attempt to undo the results if adverse to the self-represented party. A party who voluntarily represents themselves “…is not, for that reason, entitled to any more (or less) consideration than a lawyer. Thus, any alleged ignorance of legal matters or failure to properly represent himself can hardly constitute mistake, inadvertence, surprise or excusable neglect' as those terms are used in section 473.” (Goodson v. The Bogerts, Inc. (1967) 252 Cal.App.2d 32, 40.) While the Court notes that Goodson involved a plaintiff who voluntarily initiated the case in propria persona, the Court finds the voluntary substitution of counsel sufficiently equivalent. “[W]hen a litigant accepts the risks of proceeding without counsel, he or she is stuck with the outcome, and has no greater opportunity to cast off an unfavorable judgment than he or she would if represented by counsel.” (Burnete v. La Casa Dana Apartments (2007) 148 Cal.App.4th 1262, 1267.) This is what occurred here. No opposition to the motion was due prior to November 19, 2025, providing two weeks to obtain counsel and seek a timely continuance of the matter. 

The Court, therefore, finds no basis under section 473(b) to grant the relief requested.

As to the alleged attorney abandonment under Garcia, supra, 58 Cal.App.4th at 682-683, the court stated:

“An exception to this rule [that “any neglect of the attorney is imputed to the client, who has the burden on the motion of showing this neglect was excusable”] allows relief where the attorney's neglect, although inexcusable, was so extreme as to constitute misconduct effectively ending the attorney-client relationship. "Abandonment" may afford a basis for relief, at least where the client is relatively free of fault, but performance which is merely inadequate will not. In Carroll v. Abbott Laboratories, Inc. (1982) 32 Cal. 3d 892, 898-901 the court found relief under section 473 was not warranted where the attorney did not abandon the client, but rather simply represented the client ineffectively. Contrast this with Buckert v. Briggs (1971) 15 Cal. App. 3d 296, 301-302, where the trial judge was found to have properly vacated judgment against the plaintiffs after their attorney not only failed to inform them of the trial date but also failed himself to appear at trial. Another variation appeared in Vartanian v. Croll (1953) 117 Cal. App. 2d 639, 646-647, where judgment was found properly vacated based upon the negligence of the plaintiff's attorney plus the fraud of the defendant's attorney. For the exception to apply, the attorney's misconduct must be sufficiently gross to effectively abrogate the attorney-client relationship, thereby leaving the client essentially unrepresented at a critical juncture in the litigation. Such an exception would not be needed if the errors of counsel could be relieved by section 473 on the same grounds as those committed by the client.”

Here, there is no failure to inform Defendant Gallardo of the summary judgment date, to provide Defendant Gallardo with the file, including the motion for summary judgment, and no fraud is demonstrated.

Therefore, the Court denies the motion under Garcia regarding abandonment.

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:                JPMorgan Chase Bank, N.A. vs. Lopresti, Katrina E

Case No.:   VCL321694

Date:           April 28, 2026

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     Defendant’s Motion for Relief from Default

Tentative Ruling: To deny the motion

Facts

The Court notes that Defendant previously filed a motion to set aside default judgment in this matter, but the Court voided the filing under Government Code section 68634 based on a denial of Defendant’s fee waiver and subsequent failure to pay a first appearance fee and thereafter file the proposed responsive pleading.

In this matter, Plaintiff sues for breach of contract.

On August 19, 2025, Plaintiff filed a proof of service indicating personal service on Defendant occurred on June 30, 2025, at 1649 S Demaree Street, Visalia, CA, at 2:27 PM “…with identity confirmed by physical description. The individual tried to refuse service by not opening door and did not state reason for refusal (documents left, seen by subject). The individual appeared to be a brown-haired Hispanic female contact 35-45 years of age, 5'4"-5'6" tall and weighing 120-140 lbs.” The proof was completed by a registered California process server.

On August 19, 2025, default and default judgment were entered.

On January 29, 2026, Defendant filed this motion for relief from default judgment.

In support, Defendant’s declaration states that Defendant was not personally served on June 30, 2025, but was at work. Further, that the physical description does not match her physical description. Defendant further declares that she first learned of the lawsuit on August 19, 2025 when she received an envelope that contained the judgment. Defendant attaches a proposed answer.

The Court continued this matter as to service of this motion, notes that service appears properly made and Plaintiff has filed an opposition.

In opposition, Plaintiff argues that the declaration is insufficient to rebut the evidentiary presumption from a facially valid proof of service completed by a registered California process server and there is no basis for relief under sections 473(b) and 473.5.

Authority and Analysis

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

“Section 473 is often applied liberally where the party in default moves promptly to seek relief, and the party opposing the motion will not suffer prejudice if relief is granted.  [Citations.]  In such situations ‘very slight evidence will be required to justify a court in setting aside the default.’  [Citation.]”  (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233.)

Under Evidence Code section 647: “[t]he return of a process server registered pursuant to Chapter 16 (commencing with Section 22350) of Division 8 of the Business and Professions Code upon process or notice establishes a presumption, affecting the burden of producing evidence, of the facts stated in the return.”  (Evid. Code § 647.) Under Evidence Code section 604: “[t]he effect of a presumption affecting the burden of producing evidence is to require the trier of fact to assume the existence of the presumed fact unless and until evidence is introduced which would support a finding of its nonexistence, in which case the trier of fact shall determine the existence or nonexistence of the presumed fact from the evidence and without regard to the presumption.  Nothing in this section shall be construed to prevent the drawing of any inference that may be appropriate.”  (Evid. Code § 604.)

Therefore, the proof of service establishes the presumption of valid service in this case.

The Court, turning to Defendant’s declaration, agrees that it does not sufficiently rebut the presumption of service as it states the physical description does not match Defendant in a conclusory manner.

Therefore, the Court denies the motion under section 473(b).

The Court notes that under Code of Civil Procedure section 473.5 where service of summons has not resulted in actual notice to a party and default has been entered, the party may file a notice of motion to set aside the default and for leave to defend the action. Under subsection (a), the motion must be made within a reasonable time, but “in no event exceeding the earlier of: (i) two years after entry of a default judgment against him or her; or (ii) 180 days after service on him or her of a written notice that the default or default judgment has been entered.”

Here, actual notice of the default occurred August 19, 2025, which results in this motion, filed March 3, 2026, beyond the applicable 180 day period.

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:                LVNV Funding LLC vs. Martins, Diane

Case No.:   VCL329250

Date:           April 28, 2026

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     Motion for Judgment on the Pleadings

Tentative Ruling: To grant the motion

Facts

On December 15, 2025, Plaintiff initiated this action for a single cause of action for breach of contract, alleging damages in the amount of $5,237.81.

On January 26, 2026, Defendant filed an answer to the complaint on Form PLD-C-010 checking the box 3(b) admitting all statements of the complaint and denying no statements contained in the complaint. Further, the answer states “I am aware that I owe this debt of $ 5,237.81 to you.”

On March 9, 2026, Plaintiff filed this motion for judgment on the pleadings, seeking entry of judgment in the amount of $5,650.81, consisting of the principal amount of $5,237.81 plus costs of $413.00.

No opposition appears filed.

Meet and Confer

Plaintiff states that counsel attempted to contact Defendant regarding this Motion in accordance with Code of Civil Procedure section 439(a). “Before filing a motion for judgment on the pleadings pursuant to this chapter, the moving party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to the motion for judgment on the pleadings for the purpose of determining if an agreement can be reached that resolves the claims to be raised in the motion for judgment on the pleadings.” (Code Civ. Proc., § 439, subd. (a).)

Authorities and Analysis

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

A motion for judgment on the pleadings may be based upon “matters properly the subject to judicial notice.” Saltarelli & Steponovich v. Douglas (1995) 50 Cal.App.4th 1, 5. Judicial notice may be taken “of a party’s admissions or concessions, but only in cases where the admissions “cannot reasonably be controverted,’ such as in answer to interrogatories or request for admissions, or in affidavits and declaration filed on the party’s behalf.” (Arce v. Kaiser Foundation Health Plan, Inc. (2010) 181 Cal.App.4th 471, 485.) Here, the answer filed by Defendant sufficiently provides the basis to grant this motion, as Defendant admits the allegations of the complaint.

The Court, therefore, grants the motion for judgment on the pleadings and will enter judgment as requested.

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:                Garcia, Maria vs. Super Center Concepts, Inc.

Case No.:  VCU319504

Date:           April 28, 2026

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     Motion to Continue Trial

Tentative Ruling: The Court does not issue tentative rulings on these motions. Counsel may appear in any manner.

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:                Estes, Jeremy Lee vs. Cheema Transport, Inc.

Case No.:   VCU289306

Date:           April 28, 2026

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     Hearing re: Final Compliance as to Distribution of Settlement

Tentative Ruling: No documents appear filed in connection with the final compliance hearing. The Court requires a declaration from the settlement administrator as to distribution of the settlement fund. Therefore, the Court continues this motion to May 26, 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:                 Ramirez, Carlos Alberto vs. Ramirez, Ramon

Case No.:    VCU326099

Date:            April 28, 2026

Time:            8:30 A.M. 

Dept.            2-The Honorable Bret D. Hillman

Motion:      Demurrer to First Amended Complaint

Tentative Ruling: To sustain the demurrer without leave to amend as to the fifth and sixth causes of action; to sustain the demurrer to the first, second, third, fourth, seventh and eight causes of action with leave to amend; to order the amended complaint filed no later than ten (10) days from the date of this hearing.

Facts

The verified first amended complaint alleges causes of action for quiet title as to three separate properties, for fraud, conversion of real property, quantum meruit / unjust enrichment, breach of oral contract, and specific performance. Plaintiff Carlos Ramirez sues Defendants Ramon Rafael Ramirez and Ramirez Family Revocable Living Trust, as well as Unknown Defendants who may claim any right to the subject properties. (FAC ¶¶1, 2, 7)

Plaintiff alleges “legal owner of interest in fee simple” as to three separate real property sites discussed below. (FAC ¶6.)

As to all quiet title claims, Plaintiff seeks to quiet title as to the date of the filing of the complaint. (FAC ¶¶29, 44, 59.)

As to the first cause of action regarding quiet title as to 12300-12302 Carmenita Road, Whittier CA 90605 (“Subject Property 1”), Plaintiff alleges legal ownership based on a 2018 oral agreement between “the parties” wherein Plaintiff would transfer title to Subject Property 1 to “DEFENDANT to hold temporarily and ultimately revert title ack to Plaintiff at a future date of Plaintiff’s choosing.” (FAC ¶11.) Further, that in 2002, Plaintiff purchased Subject Property 1 together with Abraham Ramirez, his brother, to qualify for financing, that in 2004, Plaintiff and Abraham deeded Subject Property 1 to “DEFENDANT for convenience and family purposes only, without any intent to permanently transfer beneficial ownership,” that in 2006, Defendant deeded Subject Property 1 back to Plaintiff as a married man as his sole and separate property, that in 2015, Plaintiff’s wife initiated dissolution proceedings, that in 2018, “DEFENDANT falsely represented to Plaintiff that Plaintiff would lose the Subject Property #1 unless he immediately deeded it to DEFENDANT.” (FAC ¶¶12-17.)

Further, that “DEFENDANT further promised and agreed that the transfer was temporary only and that DEFENDANT would reconvey the Subject Property #1 to PLAINTIFF upon request” and that “Relying on DEFENDANT?'s representations and promises, PLAINTIFF deeded the Subject Property #1 to DEFENDANT in 2018.” (FAC ¶18-19.)

Further, that during dissolution proceedings “the family court judge indicated that the 2018 transfer was not legally effective under California law and that PLAINTIFF remained the legal owner” and that “in 2025, DEFENDANT deeded the Subject Property #1 into the TRUST (Ramirez Family Revocable Living Trust), without PLAINTIFF's consent.” (FAC ¶21-22.)

Further that “DEFENDANT claims sole ownership of subject property #1 based on the issuance of a Grant Deed dated December 3, 2018. The December 7, 2018 Grant Deed from PLAINTIFF granted subject property #1 to DEFENDANT in its entirety as an Intra-Family Transfer. The December 3, 2018 Grant Deed was recorded in the Official Records of the County of Los Angeles, 201812073270019, on December 7, 2018” and further that “DEFENDANT did fraudulently, and deceptively induce PLAINTIFF to convey all interest in subject property #1 to DEFENDANT, for the sole purpose of depriving PLAINTIFF of subject property #1. PLAINTIFF contends that he signed the December 3, 2018 Grant Deed, without any knowledge of DEFENDANT's true purpose and intent.” (FAC ¶¶25, 26.)

Additionally, that “DEFENDANT fraudulently convinced PLAINTIFF that he would lose his interest in subject property #1 due to PLAINTIFF'S divorce proceedings, unless subject property #1 was placed solely in DEFENDANT'S name. DEFENDANT repeatedly assured PLAINTIFF that placing title of subject property #1 solely in DEFENDANT'S name would not negatively affect their interest in subject property #1, but rather would act to protect it from being divided in the divorce proceedings.” (FAC ¶27.)

As to the second cause of action regarding quiet title as to 1765 E. Kohn Avenue, Tulare CA 93274 (“Subject Property 2”), Plaintiff incorporates the same facts noted above, except that Subject Property 2 was purchased in 2012, that Plaintiff used approximately $20,000.00 of $90,000.00 in gift monies provided by his mother toward the purchase thereof, that Subject Property 2 was deeded to Defendant “with the express agreement that Defendant would reconvey the property to PLAINTIFF” and that Subject Property 2 was deeded into the Trust. (FAC ¶¶30-36.) Further that, Plaintiff has been solely responsible for mortgage payments, property taxes, insurance, and maintenance at all relevant times with respect to Subject Property 2. (FAC ¶37)

Additionally, that “DEFENDANT claims sole ownership of subject property #2 based on the issuance of a Grant Deed dated December 3, 2018. The December 3, 2018 Grant Deed from PLAINTIFF granted subject property #2 to DEFENDANT in its entirety as an Intra-Family Transfer. The December 3, 20: 8 Grant Deed was recorded in the Official Records of the County of Tulare, 2018-0069834, on December 11, 2018” (FAC ¶40.)

As to the third cause of action regarding quiet title as to 16324 Avenue 248, Visalia CA 93292 (“Subject Property 3”), Plaintiff alleges Plaintiff incorporates the same facts noted above, except that Subject Property 3 was purchased in 2013, that Plaintiff used gift monies provided by his mother as a partial down payment thereon, that in 2018, Plaintiff deeded Subject Property 3 in 2018 based on the same allegedly false representations noted above, that Plaintiff has been solely responsible for mortgage payments, property taxes, insurance, and maintenance at all relevant times with respect to Subject Property 3. (FAC ¶¶45-52.)

Additionally, that “DEFENDANT claims sole ownership of subject property #3 based on the issuance of a Grant Deed dated December 3, 2018. The December 3, 2018 Grant Deed from PLAINTIFF granted subject property #3 to DEFENDANT in its entirety as an Intra-Family Transfer. The December 3, 2018 Grant Deed was recorded in the Official Records of the County of Tulare, 2018-0069836, on December 11, 2018.” (FAC ¶55.)

As to fraud related to the 2018 transfers noted above as to all three subject properties, Plaintiff alleges an intentional effort to obtain title to these properties based on repeated false statements that Plaintiff would lose the properties during the dissolution proceedings and that Defendant would reconvey the properties at a future date of Plaintiff’s choosing, and that Defendant induced Plaintiff into the transfer. (FAC ¶¶60-70.)

As to the fifth cause of action for conversion, Plaintiff alleges conversion of real property. (FAC ¶¶71-75.)

As to the sixth cause of action for quantum meruit / unjust enrichment, Plaintiff alleges that Plaintiff has been deprived of his interest in the subject properties. (FAC ¶¶76-78.)

As to breach of oral contract, Plaintiff reincorporates the allegations above, noting the contract was entered into in 2018, that the terms were: “DEFENDANT claims sole ownership of subject property #3 based on the issuance of a Grant Deed dated December 3, 2018. The December 3, 2018 Grant Deed from PLAINTIFF granted subject property #3 to DEFENDANT in its entirety as an Intra-Family Transfer. The December 3, 2018 Grant Deed was recorded in the Official Records of the County of Tulare, 2018-0069836, on December 11, 2018.” (FAC ¶80.)

Additionally, that “…in December of 2024, Defendant showed his true intent to breach the contract by deeding the three subject properties into the "TRUST", without Plaintiff's consent.” (FAC ¶81.)

Finally, as to specific performance, Plaintiff states “PLAINTIFF has no adequate remedy at law, as the subject matter of the agreements consists of unique real property, and monetary damages alone would be insufficient to compensate PLAINTIFF for the loss of his ownership interests” and that “DEFENDANT is estopped from asserting the statute of frauds as a defense because PLAINTIFF fully performed under the agreements by transferring title and continuing to pay all ownership expenses, and because DEFENDANT accepted the benefits of PLAINTIFF's performance while repudiating his own obligation.” (FAC ¶¶91, 92.)

Defendant Ramon Ramirez demurrers to each cause of action for failure to allege sufficient facts that constitute a cause of action.

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.)

Fourth Cause of Action – Fraud

The necessary elements for fraud are: (1) a misrepresentation; (2) the defendant's knowledge of falsity; (3) the defendant's intent to defraud; (4) the plaintiff's justifiable reliance; and (5) resulting damage. (Conroy v. Regents of University of California (2009) 45 Cal.4th 1244, 1255.) Further, “any action sounding in fraud ... must be pleaded with particularity…” (City of Pomona v. Superior Court (2001) 89 Cal.App.4th 793, 803.) Therefore, to allege fraud, the complaint must plead facts to show "how, when, where, to whom, and by what means the representations [amounting to fraud] were tendered." (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73.)

The Court agrees that the facts seeking to establish fraud do not meet this specificity requirement, as they do not indicate how the statements were made, when exactly they were made, where they were made and by what means they were tendered.

As such, the Court sustains the demurrer on this ground.

Seventh Cause of Action – Breach of Oral Contract

To start, the Court notes Civil Code section 1624 provides that certain enumerated “contracts are invalid, unless they, or some note or memorandum thereof, are in writing and subscribed by the party to be charged or by the party's agent.” Contracts for the sale of real property are included within the statute of frauds (Civil Code §1623(a)(3).)

Here, the contract alleged is oral and concerns the purchase of real property. There is no written note or memorandum subscribed by Defendants as to this alleged agreement.

As such, the Court finds it violative of the statute of frauds.

However, exceptions to the statute of frauds exist, including part performance.

Sutton v. Warner (1993) 12 Cal App 4th 415 states: “Under the doctrine of part performance, the oral agreement for the transfer of an interest in real property is enforced when the buyer has taken possession of the property and either makes a full or partial payment of the purchase price, or makes valuable and substantial improvements on the property, in reliance on the oral agreement. [Citation] Payment of the purchase price alone, without the buyer obtaining possession or making substantial improvements to the property, is not sufficient part performance to preclude application of the statute of frauds." (Id. at 422.) “Possession will take an oral contract to convey real property out of the statute of frauds, but payment of money alone will not.” (Gaglione v. Coolidge (1955) 134 Cal.App.2d 518, 526.)

Here, there are no allegations with respect to possession which would effectuate the part-performance exception, despite allegations of partial payment of the purchase price and continued payment of the monthly payments, property taxes and expenses.

Therefore, the Court sustains the demurrer to the seventh cause of action with leave to amend.

Causes of Action One, Two and Three – 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.)

Although ordinarily an action to quiet title cannot be maintained by the owner of equitable title against the holder of legal title, an exception exists where legal title was acquired through fraud.  In such a fraud case, the holder of equitable title may bring an action to quiet title as against the legal title holder, who acquired “only bare legal title” and holds legal title as a constructive trustee for the benefit of the equitable title holder.  (Warren v. Merrill (2006) 143 Cal.App.4th 96, 113-114.)

The limited exception permitting the holder of an equitable interest to maintain a quiet title action against a legal owner is narrow and has been recognized primarily in cases involving fraud or breach of fiduciary duty by the holder of legal title.  (Strong v. Strong (1943) 22 Cal.2d 540, 545-46 (equitable rights could not be established in quiet title action absent finding of fraud); Warren, supra, 143 Cal.App.4th at 111-112 (judgment quieting title was proper in light of real estate agent’s breach of fiduciary duty to purchaser arising from agent’s fraudulent procurement of title to property.)

Here, as the Court has found an insufficient showing of fraud above, the Court sustains the demurrer, with leave to amend, as to the first three causes of action for quiet title for failure to establish an exception to the requirement that quiet title may be brought only by the legal title holder.

Fifth Cause of Action – Conversion

Conversion appears to apply solely to personal property and therefore the Court sustains the demurrer to the fifth cause of action without leave to amend. (Zaslow v. Kroenert (1946) 29 Cal.2d 541, 549.)

Sixth Cause of Action – Unjust Enrichment / Quantum Meruit

“Unjust enrichment is not a cause of action, however, or even a remedy, but rather ‘ “ ‘a general principle, underlying various legal doctrines and remedies” ’ … . [Citation.] It is synonymous with restitution. [Citation.]’ (Melchior v. New Line Productions, Inc. (2003) 106 Cal.App.4th 779, 793”) (McBride v. Boughton (2004) 123 Cal.App.4th 379, 387.)

Therefore, the Court sustains the demurrer to this cause of action without leave to amend.

Eighth Cause of Action – Specific Performance

The availability of the remedy of specific performance is premised upon: a showing by plaintiff of (1) the inadequacy of his legal remedy; (2) an underlying contract that is both reasonable and supported by adequate consideration; (3) the existence of a mutuality of remedies; (4) contractual terms which are sufficiently definite to enable the court to know what it is to enforce; and (5) a substantial similarity of the requested performance to that promised in the contract. (Tamarind Lithography Workshop, Inc. v. Sanders (1983) 143 Cal.App.4t 571, 411-412.)

As the Court has sustained the demurrer as to breach of oral contract above, the Court sustains the demurrer, with leave to amend, as to this separate cause of action, which it considers breach of contract seeking specific performance, for the same reasons.

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