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Announcement: Tulare County Superior Court Introduces Our Virtual Public Counter -

The Tulare County Superior Court is excited to announce our new service, the Virtual Public Counter.  Accessed via mobile device or computer, our virtual public counter offers real-time, face-to-face interactions with our Superior Court support team, potentially alleviating the need for a physical visit to the court. They assist with a variety of services like court records requests, payments, and self-help.  Due to procedural logistics some services may require an in-person visit.  Click here to try it now.

Tentative Rulings

Civil Tentative Rulings and Probate Examiner Recommendations are available below. All attempts possible are made to have the information on these pages updated by 3:00pm the day prior to hearing in order to allow for any needed continuances or travel if an appearance should be required.

Civil Tentative Rulings: The court does not issue tentative rulings on Writs of Attachment, Writs of Possession, Claims of Exemption, Claims of Right to Possession, Motions to Tax Costs After Trial, Motions for New Trial, or Motions to Continue Trial. Under California Rules of Court, rule 3.1308 and Local Rule 701, any party opposed to the tentative ruling must notify the court and other parties by 4:00 p.m. today of their intention to appear for oral argument. The court's notice must be made by facsimile (fax) to 559-733-6774.

Probate Examiner Recommendations: For further information regarding a probate matter listed below you may contact the Probate Document Examiner at 559-730-5000 ext #1353; the Document Examiner (South County Justice Center ) at  559-782-3700  ext #2342. The Probate Calendar Clerk may be reached at 559-730-5000 Option 4, then Option 6.

Civil Tentative Rulings & Probate Examiner Recommendations

The Tentative Rulings for Monday, June 24, 2024, are:

Re:                Mendivil, Sayda vs. HG Foods LLC

Case No.:  VCU296223

Date:           June 24, 2024

Time:           8:30 A.M. 

Dept.           7-The Honorable Gary M. Johnson

Motion:      Motion to Approve PAGA Settlement

Tentative Ruling: No documents have been filed in connection with this motion. The Court’s review of Plaintiff’s CMC statement indicates settlement has been reached and that the parties are drafting a long form settlement agreement. The Court, therefore, will take this hearing off calendar.

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

Re:                Parnell, Dennis vs. Kaweah Delta Healthcare District

Case No.:   VCU292139

Date:           June 24, 2024

Time:           8:30 A.M. 

Dept.           7-The Honorable Gary M. Johnson

Motion:     Dr. John’s Motion for Summary Judgment/Adjudication

Tentative Ruling: To grant the unopposed motion

Facts

The following facts are unopposed.

Plaintiff presented to Kaweah Health Medical Center on October 18, 2021 for claudication of the left leg. (UMF No. 1.) Directed lytic therapy was ordered by Dr. Joyce Lu and initially proceeded without complication. (UMF No. 2.) The night of October 19, 2021, plaintiff developed a headache, nausea, and vomiting. (UMF No. 3.)

At approximately 0127 on October 20, 2021, the CT scan of the head revealed an intraparenchymal hemorrhage with extravasation into the ventricle. (UMF No. 4.) Plaintiff was transferred immediately to the ICU, and orders were placed for Neurosurgical and Neurology consults (UMF No. 5.)

Dr. John was asked to consult when plaintiff was transferred to the ICU. (UMF No. 6.)

Plaintiff left the ICU shortly after 0230 for the Cath Lab for urgent catheter removal and did not return to the ICU until approximately 0430. (UMF No. 7.) Once plaintiff returned to the ICU, the cryoprecipitate could be infused. Pursuant to the transfusion records, plaintiff received cryoprecipitate at 0457 and 0513. (UMF No. 8.)

Defendant’s expert, Christian Sandrock opines that Dr. John complied with the standard of care at all times and that no act or contribution by Dr. John caused the injuries in this case.

Authority and Analysis

“[T]he initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.”  (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.)  A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.”  (Code Civ. Proc., § 437c, subd. (p)(2).)  To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.”  (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.)  It is insufficient for the defendant to merely point out the absence of evidence.  (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.)  The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.”  (Ibid.)  The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken.  (Aguilarsupra, 25 Cal.4th at p. 855.)

“Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.”  (Code Civ. Proc., § 437c, subd. (p)(2).)  The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.”  (Ibid.)  “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

When multiple theories are alleged in complaint, a defendant must negate all of them to prevail on a motion for summary judgment. (Teselle v. McLoughlin (2009) 173 Cal.App.4th 156, 161-162.

Medical Malpractice

In a medical malpractice action, a plaintiff must establish the following elements: “(1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional's negligence.  [citations.]”  (Galvez v. Frields (2001) 88 Cal.App.4th 1410, 1420.)

Applicable Standard of Care

A defendant moving for summary judgment in a medical malpractice action must “present evidence that would preclude a reasonable trier of fact from finding it was more likely than not that their treatment fell below the standard of care.”  (Johnson v. Superior Court (2006) 143 Cal.App.4th 297, 305.)  The standard of care against which the acts of health care providers are to be measured is a matter within the knowledge of experts.  (Elcome v. Chin (2003) 110 Cal.App.4th 310, 317.)  Unless the conduct required by the particular circumstances is within the common knowledge of the layman, the standard of care in a malpractice action can only be proved by an expert’s testimony.  (Id.) 

Here, Plaintiff does not dispute that Defendant’s expert is qualified to render an opinion, understands the standard of care and breach thereof applicable to the facts of this situation and that Defendant’s expert opines that no act or omission by Dr. John breached the standard of care.

The Court, therefore, grants summary adjudication as to the standard of care.

Causation

In order to establish that defendant's negligence was a “substantial factor” in causing injury, the plaintiff must prove the negligence was of itself sufficient to bring about that harm.  (Bromme v. Pavitt (1992) 5 Cal.App.4th 1487, 1498.)  “The law is well settled that in a personal injury action causation must be proven within a reasonable medical probability based upon competent expert testimony.  Mere possibility alone is insufficient to establish a prima facie case.  [Citations.]  That there is a distinction between a reasonable medical ‘probability’ and a medical 'possibility' needs little discussion.  There can be many possible ‘causes,’ indeed, an infinite number of circumstances which can produce an injury or disease. A possible cause only becomes ‘probable’ when, in the absence of other reasonable causal explanations, it becomes more likely than not that the injury was a result of its action.  This is the outer limit of inference upon which an issue may be submitted to the jury.”  (Id.; citing Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402 403.)

Defendant’s Expert

As with the duty issue, “causation must be proven within a reasonable medical probability based upon competent expert testimony.” (Dumas v. Cooney (1991) 235 Cal.App.3d 1593, 1603.) As with the above, Plaintiff does not challenge the qualifications or expertise of Defendant’s expert nor the opinion that, to a reasonable degree of medial certainty, Dr. John did not cause the damage alleged by Plaintiff.

Therefore, the Court grants summary adjudication as to causation.

The Court, therefore, grants summary judgment in favor of Dr. John.

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:                 Mashael, Aeede vs. Rose, Destiny

Case No.:   VCL299818

Date:           June 24, 2024

Time:           8:30 A.M. 

Dept.           7-The Honorable Gary M. Johnson

Motion:      Application for Writ of Prejudgment Attachment

Tentative Ruling: To deny the application

Facts

This matter involves the sale of a vehicle to Defendant Rose by Plaintiff Aeede Mashael dba AM Motors. Plaintiff’s verified, amended complaint alleges causes of action for breach of contract based on a retail sales installment contract (“RISC”), open book, claim and delivery, and fraud.

The Court notes that while the initiating complaint appears to have been served personally on Defendant Rose on August 20, 2023, Defendant has not appeared in this action.

Plaintiff thereafter filed an amended complaint. Plaintiff also filed this application for writ of possession.

The Court lacks a proof of service of any kind as to the amended complaint and this application for writ of possession initially filed on February 21, 2024.

The Court, on this issue, continued the matter a number of times. The Court’s file, however, does not reflect a proof of service of the amended complaint and application for writ of possession filed February 21, 2024.

The Court notes an affidavit of due diligence as to attempted service of Defendant Rose.

Authority and Analysis

“Upon the filing of the complaint or at any time thereafter, the plaintiff may apply pursuant to this chapter for a writ of possession by filing a written application for the writ with the court in which the action is brought.”  (Code Civ. Proc. § 512.010(a).)

Before the hearing on the writ of possession, the defendant must be served with (1) a copy of the summons and complaint; (2) a notice of application and hearing; and (3) a copy of the application and any affidavit in support thereof.  (Code Civ. Proc. § 512.030.)

As noted above, the only proof of service in the Court’s file reflects service of the initial complaint, initial summons and prior notice of application and copy of application, indicating personal service occurred on August 20, 2023. The Court lacks a proof of service as to the now operative complaint and the application filed February 21, 2024.

The affidavit of due diligence filed April 5, 2024 does not constitute service.

The various subpoenas that Plaintiff has caused to be issued that purport compel Defendant attendance at these hearings also do not constitute service of the amended complaint and application. Moreover, the Court lacks any indication or proof that these subpoenas were served on Defendant, given the affidavit of due diligence indicating that Defendant has not been located.

The Court denies the application for failure to serve it on Defendant.

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

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