Tentative Rulings

The Tentative Rulings for Monday, October 19, 2026, are:

Re:                Valadez, Brenda et al vs. DLR Management Group, Inc.

Case No.:   VCU310362

Date:          October 19, 2026

Time:           8:30 A.M. 

Dept.           9-The Honorable Nathan D. Ide

Motion:     Defendant Ryder’s Motion for Summary Judgment

Tentative Ruling: To deny the motion

Background Facts

Plaintiffs were the driver and passenger in a motor vehicle struck by a 2023 Freightliner Cascadia tractor (“Subject Vehicle”) owned by Defendant Ryder Truck Rental (“Ryder”), leased to Defendant AG Express Line, Inc (formerly Doe 1) (“AG”), operated at the time of the accident by Defendant John Kamohai.

Plaintiffs have sued Defendant Ryder for negligence in the second cause of action.

Ryder’s Motion for Summary Judgment

Defendant Ryder moves for summary judgment under the 49 U.S.C.A. § 30106, known as the Graves Amendment.

In support, Defendant provides the following material facts.

Ryder is engaged in the business of leasing and renting cars and trucks to commercial entities, and not individuals. (UMF No. 1.) As a part of its leasing business, Ryder owned the Subject Vehicle. (UMF No. 2.)

Ryder leased the Subject Vehicle to AG pursuant to a lease agreement in the normal course and scope of Ryder’s business as a fleet management company. (UMF No. 3.) Plaintiff disputes this fact on the basis of an objection discussed below. (Plaintiff’s Dispute to UMF No. 3.)

The motor vehicle accident at issue here occurred during the term of the lease agreement between AG and Ryder. (UMF No. 4.)

On the day of the incident, November 21, 2023, Defendant Kamohai was operating the Subject Vehicle. (UMF No. 5.) The Subject Vehicle was involved in the motor vehicle accident in this case. (UMF No. 6.) The Subject Vehicle was the only vehicle owned by Ryder that was involved in this accident. (UMF No. 7.)

No agent or employee of Ryder was involved in the motor vehicle accident. (UMF No. 8.) Plaintiff disputes this fact on the basis of an objection discussed below. (Plaintiff’s Dispute to UMF No. 8.)

At the time of the accident, Kamohai was not an agent or employee of Ryder. (UMF No. 9.) Plaintiff disputes this fact on the basis of an objection discussed below. (Plaintiff’s Dispute to UMF No. 9.)

Ryder did not know that Kamohai had been allowed to drive the Subject Vehicle until after the accident. (UMF No. 10.) Plaintiff disputes this fact on the basis of an objection discussed below. (Plaintiff’s Dispute to UMF No. 10.)

Ryder had and has no involvement in evaluating drivers who are authorized to use vehicles leased by AG. (UMF No. 11.) Ryder had and has no involvement in hiring AG employees. (UMF No. 12.)

Ryder has no authority to decide who is allowed by its lessees to drive vehicles leased to by Ryder. (UMF No. 13.) Plaintiff disputes this fact on the basis of an objection discussed below. (Plaintiff’s Dispute to UMF No. 13.)

The Subject Vehicle was a new vehicle at the time of the accident, Ryder has reviewed the maintenance records for the Subject Vehicle and there is no evidence that any maintenance or mechanical issues existed that may have caused or contributed to the accident. (UMF No. 14.) Plaintiff disputes this fact on the basis of an objection discussed below. (Plaintiff’s Dispute to UMF No. 14.)

Objections

No. 1

As to the first objection, which argues the entire declaration is insufficient due to the declarants use of “I am informed and believe that the following statements are true and correct to the best of my knowledge,” Plaintiffs cite to Bowden v. Robinson (1977) 67 Cal.App.3d 705.

There, in evaluating a declaration in support of summary judgment, the court noted:

“The declaration of D. N. Robinson, after being supplemented to add the required allegation that it was based on "personal knowledge," is totally insufficient to remove the factual issues raised under either the common law fraud or the section 25401 cause of action. For example, the declaration states that "To the best of my knowledge, neither Ronald Compton nor Norman Compton were ever formally elected to the positions of Vice President or any other office of G Comp, Inc."

The phrase "To the best of my knowledge" indicates something less than the "personal knowledge" required under Code of Civil Procedure section 437c, and implies that the declarant's statement is based on  something similar to information and belief. (See Code Civ. Proc., § 431.30.) Furthermore, none of the facts contained in the declaration show that the declarant was "competent to testify" as to whether the Comptons were ever elected officers of G Comp, Inc.” (Id. at 719-720.)

As such, the Court must examine the remainder of declaration to determine if the facts contained therein show the declarant is competent to testify as to the matters in the declaration with this initial statement in mind and sustains the objection to the extent supported by Bowden.

Nos. 2 through 5

Plaintiffs’ Objection Nos. 2 through 5 are based on Bowden and the discussion above, but the Court finds a sufficient demonstration of personal knowledge as to the statements challenged by these objections. The declarant has personal knowledge of his job title and responsibilities, indicates personal familiarity with the lease of the subject vehicle and lease agreement, as well as the date of the accident and its occurrence within the term of the lease.

As to the lease itself, the Court notes “A qualified witness need not be the custodian, the person who created the record, or one with personal knowledge in order for a business record to be admissible under the hearsay exception. (Jazayeri v. Mao (2009) 174 Cal.App.4th 301, 322; 1 Witkin, Cal. Evidence (5th ed. 2012) Hearsay, § 243, p. 1108.).” (Unifund CCR, LLC v. Dear (2015) 243 Cal.App.4th Supp. 1, 8.)

Therefore, the Court overrules Objection Nos. 2 through 5.

No. 9

Here, Plaintiffs object to Paragraph 14 of the declaration that states

“The subject vehicle was a new vehicle at the time of the accident. I have reviewed the maintenance records for the subject vehicle and there is no evidence that any maintenance or, mechanical issues existed that may have caused or contributed to the accident.”

Plaintiffs contrast this showing with that presented in YDM Management Co., Inc. v. Sharp Community Medical Group, Inc. (2017) 16 Cal.App.5th 613.

The court in YDM first examined Garibay v. Hemmat (2008) 161 Cal.App.4th 735, where the:

“defendant doctor offered the declaration of her medical expert in support of her motion for summary judgment… The defendant's medical expert stated that he had reviewed the relevant medical records regarding the care the defendant had provided to the plaintiff….However, the defendant did not offer the records of the procedure or her own deposition testimony regarding the procedure. Rather, the only evidence set forth on summary judgment by the defendant was the expert doctor's declaration, which summarized the details of the procedure based on records that were not supplied to the court.” (YDM, supra, 16 Cal.App.5^th at 629, summarizing Garibay, supra, 161. Cal App. 4^th at 739, 742.)

YDM further noted:

“The Garibay court concluded: “Without those hospital records, and without testimony providing for authentication of such records, Dr. Frumovitz's declaration had no evidentiary basis. Consequently his expert medical opinion on whether defendant Hemmat met the standard of care had no evidentiary value.” (YDM, supra, 16 Cal.App.5^th at 629, summarizing Garibay, supra, 161. Cal App. 4^th at 742.)

The YDM court stated additionally that Garibay involved professional negligence, which required expert opinion as to the standard of care and that, by contrast, the declaration in YDM “was offered to establish that Doctors Express had submitted claims…seeking payment for services that it had rendered, and to establish that Doctors Express had not utilized any CPT codes that would indicate that it had provided emergency services. [Declarant] offered testimony, through her declaration, regarding her knowledge of the CPT codes that Doctors Express had submitted…for the claims at issue in this case.” (YDM, supra, 16 Cal.App.5^th at 629-630.)

In finding the declaration sufficient in YDM, the court stated:

“[Declarant] laid a foundation for her testimony, and described her personal knowledge of the claims that Doctors Express submitted to Sharp for payment. [Declarant] attested that she is Sharp's vice-president for “Post-Acute Financial Services and Managed Care Operations,” that she has been employed in a variety of positions with Sharp since 1991, and that she is familiar with the process by which noncontracted health care providers submit claims to Sharp for payment, as well as the policies and procedures of the Department regarding the reimbursement of noncontracted health care providers. Wanke further attested to her familiarity with standard medical billing practices, including the use of CPT codes in billing. [Declarant] is familiar with the services described by CPT codes, and is knowledgeable about the codes used for emergency services. She also is familiar with place of services codes, which indicate the type of facility at which services were provided.

[Declarant]also attested to how she performed a search of Sharp's records to find information relevant to the claims that Doctors Express submitted to Sharp for payment that are at issue in this case. [Declarant]caused a spreadsheet to be prepared that included each claim for payment that Doctors Express submitted to Sharp for services provided between January 1, 2012, and December 31, 2014.

The spreadsheet included a column for the CPT codes submitted by Doctors Express to Sharp for services provided to Sharp members. [Declarant] attested that she reviewed these CPT codes and that none of the CPT codes used were the CPT codes for emergency services.” (Id. at 630.)

While the Court does not apply Garibay’s standard here as to attachment and authentication of the documents on which the testimony is based, the Court does find a dispositive contrast between the facts evidencing personal knowledge of the events in YDM with paragraph 14 of the declaration here. There is no sufficient factual details here as to access to maintenance records, search and review thereof, identification of potential issues, or other specifics. The Court finds the listing of the title and generalized descriptions in paragraph 2 stating “My main responsibility is the safety of all FMS employees in Noth America and compliance with all applicable federal and state regulations. I am personally familiar with RYDER’s business such as the transaction involved in this case”  insufficient to support the conclusion that the maintenance records revealed no issues. The Court, therefore, sustains Objection No. 9.

Nos. 6 through 8

The Court declines to rule on these objections pursuant to Code of Civil Procedure section 473c(q) (“In granting or denying a motion for summary judgment or summary adjudication, the court need rule only on those objections to evidence that it deems material to its disposition of the motion. Objections to evidence that are not ruled on for purposes of the motion shall be preserved for appellate review.”)

Authority and Analysis

A party may move for summary judgment in any action or proceeding if it is contended the action has no merit or that there is no defense to the action or proceeding. (Code Civ. Proc. § 437c(a).) “The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)

To prevail, the evidence submitted must show there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Code Civ. Proc. § 437c(c).) The motion cannot succeed unless the evidence leaves no room for conflicting inferences as to material facts; the court has no power to weigh one inference against another or against other evidence. (Murillo v. Rite Stuff Food Inc. (1998) 65 Cal.App.4th 833, 841.) In determining whether the facts give rise to a triable issue of material fact, “[a]ll d7oubts as to whether any material, triable, issues of fact exist are to be resolved in favor of the party opposing summary judgment…” (Gold v. Weissman (2004) 114 Cal.App.4th 1195, 1198-99.) “In other words, the facts alleged in the evidence of the party opposing summary judgment and the reasonable inferences there from must be accepted as true.” (Jackson v. County of Los Angeles (1997) 60 Cal.App.4th 171, 179.) However, if adjudication is otherwise proper the motion “may not be denied on grounds of credibility,” except when a material fact is the witness’s state of mind and “that fact is sought to be established solely by the [witness’s] affirmation thereof.” (Code Civ. Proc. § 437c(e).) 

Once the moving party has met their burden, the burden shifts to the opposing party “to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” (Code Civ. Proc. § 437c(p)(1).) “[T]here is no obligation on the opposing party... to establish anything by affidavit unless and until the moving party has by affidavit stated facts establishing every element... necessary to sustain a judgment in his favor.” (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 468.)

Contents of the Complaint 

“The pleadings play a key role in a summary judgment motion. The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues and to frame the outer measure of materiality in a summary judgment proceeding.” (Hutton v. Fidelity National Title Co. (2013) 213 Cal.App.4th 486, 493, quotations and citations omitted.) “Accordingly, the burden of a defendant moving for summary judgment only requires that he or she negate plaintiff's theories of liability as alleged in the complaint; that is, a moving party need not refute liability on some theoretical possibility not included in the pleadings.” (Id.) 

Relevant here to the negligence cause of action, Plaintiff alleges:

“At all relevant times, Defendant RYDER TRUCK RENTAL, INC., entrusted the motor vehicle and trailer to Defendant ROBERT JOHN KAMOHAI.” (Complaint ¶3)

“Defendants ROBERT JOHN KAMOHAI, RYDER TRUCK RENTAL, INC., and DOES 51 to 100, Inclusive, and each of them, recklessly, negligently and unreasonably entrusted, maneuvered, maintained, and/or operated the 2023 White Cascadia Freightliner and the white 2023 HYTR 3H3 trailer , and/or otherwise failed to use the appropriate caution or care to drive the freightliner, resulting in severe damages to Plaintiffs.” (Complaint ¶4)

“The negligence and lack of due care on behalf of all Defendants, and each of them, are not limited to the negligent and otherwise wrongful acts or omissions above, but include the negligent retaining, appointing, selecting, training, and supervising of those persons responsible for the foregoing acts or omissions.” (Complaint ¶12)

“Defendants ROBERT JOHN KAMOHAI, RYDER TRUCK RENTAL, INC., and DOES 51 to 100, Inclusive, and each of them, recklessly, negligently and unreasonably entrusted, maneuvered, maintained, and/or operated the 2023 White Cascadia Freightliner and the white 2023 HYTR 3H3 trailer causing Plaintiffs to be injured.” (Complaint ¶27)

“The negligence and lack of due care on behalf of Defendants, and each of them, are not limited to the negligent and otherwise wrongful acts or omissions above, but include the negligent retaining, appointing, selecting, training, and supervising of those persons responsible for the foregoing acts or omissions.” (Complaint ¶29.)

As noted by Plaintiffs, the complaint, therefore, alleges a single cause of action for negligence and asserts liability against Ryder on a number of theories including negligent retention, appointment, selection, training, entrustment, maintenance and operation of the subject vehicle.

Defendant Ryder moves for summary judgment on the basis of the Graves Amendment as well as a establishing a lack of proximate cause by Defendant Ryder.

Plaintiffs accept that the Graves Amendment can preclude vicarious liability theories, but that Defendant Ryder has not met its burden to establish a lack of negligence to its application here. Further, that Defendant Ryder has not established a lack of negligence as to, at least, the maintenance theory, based on Objection No. 9 to paragraph 14 of the declaration of Leavitt.

Graves Amendment and Proximate Cause

The Graves Amendment provides in pertinent part:

“An owner of a motor vehicle that rents or leases the vehicle to a person (or an affiliate of the owner) shall not be liable under the law of any State or political subdivision thereof, by reason of being the owner of the vehicle (or an affiliate of the owner), for harm to persons or property that results or arises out of the use, operation, or possession of the vehicle during the period of the rental or lease, if -

(1) the owner (or an affiliate of the owner) is engaged in the trade or business of renting or leasing motor vehicles; and

(2) there is no negligence or criminal wrongdoing on the part of the owner (or an affiliate of the owner).” (49 U.S.C. § 30106(a).)

While Defendant Ryder has established itself as the owner of a motor vehicle leased to Defendant AG Express Line, Inc., application of the Graves Amendment requires Defendant Ryder to establish a lack of negligence.

However, as noted by Plaintiffs, the only evidence in support of a lack of negligence is Paragraph 14 of the declaration of Leavitt, for which the Court has sustained the objection thereto.

Additionally, the elements of a cause of action for negligence are (1) the existence of a legal duty to use due care; (2) a breach of that duty; and (3) the breach as a proximate cause of the plaintiff's injury. (Wattenbarger v. Cincinnati Reds, Inc. (1994) 28 Cal.App.4th 746, 751.) As noted above, Plaintiffs’ theories include, amongst others, negligent maintenance of the subject vehicle.

"The law does not require that negligence of the defendant must be the sole cause of the injury complained of in order to entitle the plaintiff to damages therefor. All that is required in either respect is that the negligence in question shall be a proximate cause of the injury complained of." (Modica v. Crist (1954) 129 Cal.App.2d 144, 148.) "While proximate cause ordinarily is a question of fact, it may be decided as a question of law if ' "under the undisputed facts, there is no room for a reasonable difference of opinion." ' [Citation.]" (Grotheer v. Escape Adventures, Inc. (2017) 14 Cal.App.5th 1283, 1303.)

Here, however, the Court lacks undisputed facts as to, at least, the negating of proximate cause with respect to negligent maintenance. The Court’s sustaining of Objection No. 9 precludes a finding that Defendant has carried its initial burden on summary judgment as to the application of the Graves Amendment or negating proximate cause as to negligence.

Therefore, the Court denies the motion.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order. Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings.

Re:                County of Tulare vs. Bail Hotline Bail Bonds

Case No.:  VCL330067

Date:           October 19, 2026

Time:           8:30 A.M. 

Dept.          9-The Honorable Nathan D. Ide

Motion:     Set Aside/Vacate Summary Judgment

Tentative Ruling: This motion appears moot by the stipulation filed March 10, 2026 which set aside summary judgment and extended time to October 19, 2026.

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. Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings.

Re:                County of Tulare vs. Bail Hotline Bail Bonds

Case No.:   VCL330051

Date:           October 19, 2026

Time:           8:30 A.M. 

Dept.           9-The Honorable Nathan D. Ide

Motion:     Set Aside/Vacate Summary Judgment

Tentative Ruling: This motion appears moot by the stipulation filed March 10, 2026 which set aside summary judgment and extended time to October 19, 2026.

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. Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings.

Re:                Grant, Aimee vs. City of Exeter

Case No.:   VCU334919

Date:           October 19, 2026

Time:           8:30 A.M. 

Dept.          9-The Honorable Nathan D. Ide

Motion:     Defendant’s Motion to Strike

Tentative Ruling: To deny the motion

Background Facts and Motion to Strike

In the amended complaint filed in this matter, Plaintiff sues Defendant City of Exeter for hostile work environment, retaliation and failure to prevent both.

The City seeks to strike the following:

1. Page 2, lines 12-13 from the “Nature of the Action” section: “. . .and quietly placed Plaintiff under investigation while leaving Giefer in power.”  (Paragraph

2. Page 6, lines 15-17 from Paragraph 23: “. . .Plaintiff was never interviewed, and the investigation was allowed to languish for months.”;

3. Paragraph 24, in its entirety;

4. Page 7, lines 1-5 from Paragraph 25: “. . . and that she was willing to be interviewed. Chief Hall contacted the outside investigator and advised that Plaintiff wanted to participate in the investigation and be interviewed. Despite this, Plaintiff was not meaningfully interviewed and the City did not complete any timely or effective investigation.”;

5. Paragraph 26, in its entirety;

6. Page 7, lines 11-13 from Paragraph 27: “. . . For the next several months, Plaintiff was left in a state of ‘secret probation,’ under investigation but never interviewed, never cleared, and never protected, while Giefer continued working and spreading rumors about her.”;

7. Page 8, lines 8-13 from Paragraph 30: “Instead, she waited in good faith for the City to take corrective action and protect her from further harassment and retaliation. The City, however, took no steps . . . to complete the investigation . . . Left in an unsafe, hostile, and retaliatory environment with no meaningful protection or recourse, Plaintiff was forced to resign on or about March 26, 2025. A reasonable person in Plaintiff’s position would have felt compelled to resign under the same circumstances.”;

 8. Page 9, lines 17-18 from Paragraph 38: “. . .asking to be interviewed in connection with the City’s investigation . . .”;

 9. Page 9, lines 18-19 from Paragraph 38: “. . . and opposing the retaliatory allegations and investigation that Plaintiff reasonably believed originated from Giefer after she complained about him.”;

10. Page 9, lines 23-27 from Paragraph 39: “. . . placing and/or maintaining Plaintiff under an internal investigation initiated by, encouraged by, or based on retaliatory allegations from Giefer; failing to provide Plaintiff written notice of the allegations, charges, or any meaningful opportunity to respond; denying Plaintiff access to the ordinary complaint and investigation process after she repeatedly requested to be interviewed and have her harassment complaint addressed . . .”;

11. Page 10, line 10 from Paragraph 40: “. . . utilize the City’s complaint/investigation process on equal terms . . .”;

Plaintiff’s Allegations Relevant to Motion to Strike

Relevant here, Plaintiff alleges, in a section entitled nature of the action states:

“…Instead, City officials stalled, ignored the evidence, allowed the harassment to continue, and quietly placed Plaintiff under investigation while leaving Giefer in power.” (FAC at 2:12-13)

Plaintiff’s amended complaint further alleges employment by the City as Training Director Coordinator for the Exeter Police Department and that Defendant Michael Giefer, a police sergeant and later acting lieutenant, began engaging in conduct that was sexualized, hostile, and based on Plaintiff’s sex and gender. (FAC ¶¶12, 13, 14.) Plaintiff alleges “Giefer made derogatory and misogynistic remarks about women in Plaintiff’s presence, including stating that ‘there are two things women are good for, cooking and cleaning’ and that “Giefer began repeatedly following Plaintiff after work to the Best Western Hotel in Exeter, where Plaintiff stayed during the work week due to the distance from her home.” (FAC ¶¶14 and 15.) Further, that Plaintiff observed Giefer’s vehicle parked near or outside the hotel and that “Giefer told coworkers that he had “dirt” on Plaintiff in the form of photographs of City vehicles parked outside the hotel and that he intended to use this information for leverage if he did not receive a promotion. At the same time, Giefer spread false and sexually charged rumors within the department that Plaintiff was staying at the hotel in order to engage in an inappropriate relationship with the Chief of Police.” (FAC ¶¶16, 17.)

Plaintiff notes further that Plaintiff noticed items in a personally assigned locker were being moved and disturbed when Plaintiff was not present and that a later installed camera discovered Giefer entering Plaintiff’s locked office at night and going through her files and that Giefer continued to do so. (FAC ¶¶18, 19, 20, 21)

Plaintiff pleads further:  

“Plaintiff reported Giefer’s conduct, including his stalking, intrusion into her office, and sexualized rumormongering, to Chief Hall in or about April 2024. Chief Hall escalated Plaintiff’s complaint to City Manager Ennis. Despite the seriousness of the allegations and the existence of video evidence confirming Giefer’s misconduct, the City failed to take any meaningful action to protect Plaintiff, discipline Giefer, or stop the harassment. Ennis knew of Giefer’s harassment, received Plaintiff’s complaints, had access to video evidence, and deliberately failed to intervene, thereby ratifying and perpetuating the hostile work environment.” (FAC ¶22.)

Plaintiff alleges further: “Although an outside investigator was nominally assigned, Plaintiff was never interviewed, and the investigation was allowed to languish for months. During this time, Giefer remained in the workplace and continued spreading rumors about Plaintiff and discussing the allegations openly within the department.” (FAC ¶23.)

Plaintiff alleges additionally that:

“On or about October 16, 2024, Plaintiff was told that she herself was the subject of an “investigation,” but she was never provided with written notice of any charges or any meaningful explanation of the allegations. When Plaintiff met with City Manager Ennis, he admitted that he did not know the details of the allegations and stated that the matter had been “taken away from him very quickly.” Plaintiff told Ennis that she believed the allegations originated with Giefer in retaliation for her complaints against him.” (FAC ¶24.)

Further, that “On or about October 31, 2024, Plaintiff again informed Chief Hall that she wanted to report harassment by Giefer and that she was willing to be interviewed. Chief Hall contacted the outside investigator and advised that Plaintiff wanted to participate in the investigation and be interviewed. Despite this, Plaintiff was not meaningfully interviewed and the City did not complete any timely or effective investigation.” (FAC ¶25.)

Additionally, that “On or about January 15, 2025, Plaintiff met with City Manager Ennis and again stated that she wanted to be interviewed and that she still had not been contacted or provided any meaningful information concerning the investigation. The City still failed to provide Plaintiff notice, interview her, complete the investigation, or take corrective action.” (FAC ¶26.)

Plaintiff further alleges that: “Ennis responded that he simply wanted to “put this behind us.” For the next several months, Plaintiff was left in a state of “secret probation,” under investigation but never interviewed, never cleared, and never protected, while Giefer continued working and spreading rumors about her.” (FAC ¶27.)

Plaintiff states additionally that her personnel file was left unsecured and alleged that Plaintiff reasonably feared that Giefer now had access to her private identifying and financial information. (FAC ¶28.)

Plaintiff further alleges that “Plaintiff did not immediately resign. Instead, she waited in good faith for the City to take corrective action and protect her from further harassment and retaliation. The City, however, took no steps to discipline Giefer, to complete the investigation, to secure Plaintiff’s personal information, or to ensure her safety in the workplace. Left in an unsafe, hostile, and retaliatory environment with no meaningful protection or recourse, Plaintiff was forced to resign on or about March 26, 2025. A reasonable person in Plaintiff’s position would have felt compelled to resign under the same circumstances.” (FAC ¶30.)

As to retaliation, Plaintiff alleges “Plaintiff engaged in protected activity by reporting and opposing sexual harassment, gender based harassment, stalking, retaliation, and other unlawful workplace conduct, including by reporting Giefer’s conduct to Chief Hall and City management, requesting that the City investigate and correct the misconduct, asking to be interviewed in connection with the City’s investigation, and opposing the retaliatory allegations and investigation that Plaintiff reasonably believed originated from Giefer after she complained about him.” (FAC ¶38.)

Additionally, that “After Plaintiff engaged in protected activity, Defendant City of Exeter subjected Plaintiff to a pattern of retaliatory conduct and materially adverse employment actions. These included, but were not limited to, placing and/or maintaining Plaintiff under an internal investigation initiated by, encouraged by, or based on retaliatory allegations from Giefer; failing to provide Plaintiff written notice of the allegations, charges, or any meaningful opportunity to respond; denying Plaintiff access to the ordinary complaint and investigation process after she repeatedly requested to be interviewed and have her harassment complaint addressed; allowing Giefer to remain in a position of authority and continued access within Plaintiff’s workplace; permitting false sexual rumors about Plaintiff to continue within the Department; failing to secure Plaintiff’s office, work files, and confidential personnel information after she reported Giefer’s unauthorized intrusions; and knowingly permitting working conditions to become so unsafe, hostile, and intolerable that Plaintiff was constructively discharged.” (FAC ¶39.)

Additionally, that “Taken individually and collectively, the City’s conduct materially affected the terms, conditions, and privileges of Plaintiff’s employment, including Plaintiff’s ability to safely report to work, perform her duties without intimidation or surveillance, maintain the confidentiality of her work and personnel information, utilize the City’s complaint/investigation process on equal terms, preserve her professional reputation, and continue her employment. Plaintiff’s protected activity was a substantial motivating reason for the City’s conduct, and the City’s conduct was a substantial factor in causing Plaintiff’s harm and constructive discharge.” (FAC ¶40.)

Further, as to failure to prevent, that “Despite this knowledge, the City failed to take reasonable steps to prevent or correct the harassment and retaliation, including failing to complete the investigation, failing to discipline Giefer, and failing to protect Plaintiff.” (FAC ¶45.)

Defendant City argues the portions of the amended complaint identified above should be struck, as an investigation alone is not an adverse employment action for purposes of sexual harassment and retaliation. Further, that Plaintiff’s constructive discharge theory is contradictory because dissatisfaction with the investigative process was the reason why she resigned. Finally, that the method in which the investigations occurred falls under the discretionary immunity enjoyed by the City.

In opposition, Plaintiff argues the allegations sought to be struck are relevant to causes of action that the City does not challenge via demurrer, that the allegations plead a course of conduct, that the allegations support constructive discharge and that the immunities do not apply.

Authority and Analysis

Any party may file a timely notice of a motion to strike the whole or any part of a pleading. (Code Civ. Proc., § 435, subd. (b).) The motion may seek to strike any “irrelevant, false or improper matter inserted in any pleading” or any part of the pleading “not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ. Proc., § 436.) Irrelevant allegations include allegations that are not essential to the statement of a claim, allegations that are not pertinent to or supported by the claim and demands for judgment requesting relief not supported by the allegations. (Code Civ. Proc., § 431.10, subds. (b), (c).)

Investigation Related Allegations

"To establish a prima facie case of a hostile work environment, [the plaintiff] must show that (1) [plaintiff] is a member of a protected class; (2) [plaintiff] was subjected to unwelcome harassment; (3) the harassment was based on [plaintiff's] protected status; (4) the harassment unreasonably interfered with [plaintiff's] work performance by creating an intimidating, hostile, or offensive work environment; and (5) defendants are liable for the harassment." (Ortiz v. Dameron Hospital Assn. (2019) 37 Cal.App.5th 568, 581.)

Whether the conduct is sufficient must be evaluated under the totality of the circumstances, which include evaluating: “(1) the nature of the unwelcome sexual acts or works (generally, physical touching is more offensive than unwelcome verbal abuse); (2) the frequency of the offensive encounters; (3) the total number of days over which all of the offensive conduct occurs; and (4) the context in which the sexually harassing conduct occurred.” (Fisher v. San Pedro Peninsula Hospital (1989) 214 Cal.App.3d 590, 610.)

To state a cause of action for retaliation under FEHA, Plaintiff must allege facts showing "(1) that he engaged in a protected activity, (2) his employer subjected him to adverse employment action, and (3) there is a causal link between the protected activity and the employer's action." (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th 1028, 1042.)

Protected activity can take many forms and includes opposition to "any practices forbidden under this part or because the person has filed a complaint, testified, or assisted in any proceeding under this part." (Gov. Code § 12940(h).) “Although an employee need not formally file a charge in order to qualify as being engaged in protected opposing activity, such activity must oppose activity the employee reasonably believes constitutes unlawful discrimination, and complaints about personal grievances or vague or conclusory remarks that fail to put an employer on notice as to what conduct it should investigate will not suffice to establish protected conduct. . . .¶ It is not difficult to envision circumstances in which a subordinate employee may wish to avoid directly confronting a supervisor with a charge of discrimination and the employee engages in subtler or more indirect means in order to avoid furthering or engaging in discriminatory conduct.” (Yanowitz v. L’Oreal USA, Inc., supra, 36 Cal.4th at 1047.)

Defendant City cites to McRae v. Dept. of Corr. & Rehab. (2006) 142 Cal.App.4th 377, 392-393, arguing that “the court held that an investigation itself, irrespective of its reasons or outcome, did not materially change the terms or conditions of employment and was not itself actionable.”

However, the McRae court noted “ while Dr. McRae complained that the Department's conduct was unwarranted, she made no showing that the events leading up to and including the letter of instruction and the investigation forced her to work in an abusive working environment or that her supervisors sought to humiliate or demean her.” (Id. at 392.) Further, that, in that case “Similarly, the investigation itself, irrespective of the reasons for its initiation or its outcome, made no material change in the terms or conditions of Dr. McRae's employment” and in McRae, the plaintiff was ultimately transferred, as opposed to suspended or materially changed the plaintiff’s employment. (Id. at 392-393.)

Here, by contrast, Plaintiff alleges the investigations, and the manner in which they were conducted, did have a material affect on her employment via constructive termination.

As such, the Court denies the motion as to Nos. 1 through 12 on this theory.

Constructive Discharge Allegations

The Fifth District Court of Appeal summarized the constructive discharge doctrine as follows, citing to the California Supreme Court’s decision in
Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1244-1251 (internal citations omitted):

“ ‘Constructive discharge occurs when the employer's conduct effectively forces an employee to resign. Although the employee may say, “I quit,” the employment relationship is actually severed involuntarily by the employer's acts, against the employee's will. As a result, a constructive discharge is legally regarded as a firing rather than a resignation.’ ‘Under the cases, an employee cannot simply “quit and sue,” claiming he or she was constructively discharged. The conditions giving rise to the resignation must be sufficiently extraordinary and egregious to overcome the normal motivation of a competent, diligent, and reasonable employee to remain on the job to earn a livelihood and to serve his or her employer. The proper focus is on whether the resignation was coerced, not whether it was simply one rational option for the employee.’ ‘ “There appears to be no disagreement [in the cases] that one of the essential elements of any constructive discharge claim is that the adverse working conditions must be so intolerable that any reasonable employee would resign rather than endure such conditions.”’

‘The essence of the test is whether, under all the circumstances, the working conditions are so unusually adverse that a reasonable employee in plaintiff's position “‘“would have felt compelled to resign.”’” ([‘[T]he cases are in agreement that the standard by which a constructive discharge is determined is an objective one—the question is “whether a reasonable person faced with the allegedly intolerable employer actions or conditions of employment would have no reasonable alternative except to quit.”’].) Finally, ‘[a] constructive discharge is the practical and legal equivalent of a dismissal—the employee's resignation must be employer-coerced, not caused by the voluntary action of the employee or by conditions or matters beyond the employer's reasonable control.’ ([“a wrongful discharge claim may prevail only if an employee can show the employer, or those representing the employer, either created or knowingly permitted working conditions to remain intolerable”].)’

‘…In order to establish a constructive discharge, an employee must plead and prove, by the usual preponderance of the evidence standard, that the employer either intentionally created or knowingly permitted working  conditions that were so intolerable or aggravated at the time of the employee's resignation that a reasonable employer would realize that a reasonable person in the employee's position would be compelled to resign. [¶] For purposes of this standard, the requisite knowledge or intent must exist on the part of either the employer or those persons who effectively represent the employer, i.e., its officers, directors, managing agents, or supervisory employees.’…’Standing alone, constructive discharge is neither a tort nor a breach of contract, but a doctrine that transforms what is ostensibly a resignation into a firing. Even after establishing constructive discharge, an employee must independently prove a breach of contract or tort in connection with employment termination in order to obtain damages for wrongful discharge.’ (Atalla v. Rite Aid Corp. (2023) 89 Cal. App. 5th 294, 319-320).)”

However, while the Court agrees that the investigations themselves might not suffice as a basis for a cause of action independently, this does not mean that all allegations about the investigation are "irrelevant” as to a constructive discharge theory as a supporting adverse employment action. Plaintiff pleads the investigations were part of actions within the City’s control that made additional employment intolerable and that the failure to conduct a reasonable investigation was part of the City permitting Giefer’s conduct to go unchecked.

The Court, therefore, denies the motion to strike on this ground.

Discretionary Immunity

Defendant argues that it enjoys governmental immunity pursuant to Government Code section 821.6 for investigation related conduct, as those decisions were discretionary.

“Acts by a public employee that are preparatory to a potential institution of judicial proceedings, including acts in the course of an investigation of alleged wrongdoing, are covered by [§ 821.6]." (All Angels Preschool/Daycare v. Cty. of Merced (2011) 197 Cal.App.4th 394, 407) Thus, acts taken during an investigation prior are protected "because investigations are essential steps toward the institution of formal proceedings." (Id. at 408.)

Jacqueline T. v. Alameda County Child Protective Services (2007) 155 Cal.App.4th 456 is distinguishable where the allegations did not involve an employee-employer relationship, but instead involved the reporting of sexual abuse to a county employee by a minor plaintiff contending the response was inadequate. The Court does not find application of Jacqueline T on this motion to strike.

The investigation allegations appear relevant for purposes of showing harassment, retaliation or failure to prevent such. Additionally, as noted above, while the investigation would not appear to serve as an adverse employment action alone, the allegations as to its ineffectiveness form a basis as to retaliatory animus against Plaintiff.

Therefore, the Court denies the motion to strike.

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. Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings.

Re:                 Torres, Leticia et al vs. Nutrien Ag Solutions, Inc. et al

Case No.:   VCU330000

Date:           October 19, 2026

Time:           8:30 A.M. 

Dept.           9-The Honorable Nathan D. Ide

Motion:      Motion to Seal Petition re: Minor's Compromise

Tentative Ruling:  To grant the motion as indicated herein

Facts and Analysis

In this matter, Petitioner Leticia Torres filed an unredacted minor’s compromise petition on August 4, 2026.

Simultaneously, Torres filed this motion to seal the petition, noting that the settlement agreement contains a confidentiality clause, that the minor’s financial, medical and personal information is contained in the petition and that sealing of the petition, orders and supporting exhibits is necessary.

California law authorizes the sealing of court records containing confidential information.  (NBC Subsidiary, Inc. v. Superior Court (1999) 20 Cal.4th 1178, 1222, n. 46.) Orders to seal records in a civil proceeding implicate the First Amendment’s right of public access. (Id. at 1212.) “Unless confidentiality is required by law, court records are presumed to be open.” (Cal. Rules of Court, rule 2.550(c); In re Marriage of Tamir (2021) 72 Cal.App.5th 1068, 1079.)

 “A party requesting that a record be filed under seal must file a motion or an application for an order sealing the record. The motion or application must be accompanied by a memorandum and a declaration containing facts sufficient to justify the sealing.” (Cal. Rules Court, rule 2.551. (b)(1).) The proponent of the sealing order must also conditionally lodge the unredacted matter to be sealed with the court. (Cal. Rules of Court, rule 2.551(b)(4).)

“ ‘In delineating the injury to be prevented, specificity is essential. [Citation.] Broad allegations of harm, bereft of specific examples or articulated reasoning, are insufficient.” (Universal City Studios, Inc. v. Superior Court (2003) 110 Cal.App.4th 1273, 1282.) The factual findings requires to seal records require the court to expressly find that (1) there exists an overriding interest that overcomes the right of public access to the record; (2) the overriding interest supports sealing the record; (3) a substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; (4) the proposed sealing is narrowly tailored; and (5) no less restrictive means exist to achieve the overriding interest.  (Cal. Rules of Court, rule 2.550(d)(1)-(5).) 

Here, the Court agrees that the petition and settlement agreement contain the monetary consideration to be paid to the minor in exchange for a release of claims along with details describing the minor's injuries and treatment. Further, that the confidentiality provision in the settlement agreement is a material term of settlement. Further, the Court recognizes the minor has a significant privacy interest in her health care and financial affairs. (Cal. Const. Art. I, § 1.) Additionally, the parties have an overriding interest in their contractual obligation not to disclose the terms of their confidential settlement agreement. (Universal City Studios, Inc. v. Superior Court (2003) 110 Cal.App.4th 1273, 1284.)

Therefore, the Court grants the motion to seal the petition to approve the minor’s compromise and orders Plaintiffs to file a redacted public version of those records omitting confidential information including:

• the "Amount and terms of settlement" (Section 10 of the Petition and corresponding attachments/orders);
• "Settlement payment to others" (Section 11 of the Petition and corresponding attachments/orders);
• "The claimant's medical expenses" (Section 12 of the Petition and corresponding attachments/orders);
• "Claimant's attorney's fees and all other expenses" (Section 13 of the Petition and corresponding attachments/orders);
• "Net balance of proceeds for the claimant" (Section 15 of the Petition and corresponding attachments/orders);
• "Summary" (Section 16 of the Petition and corresponding attachments/orders);
• "Information about attorney representing or assisting petitioner" (Section 17 of the Petition and corresponding attachments/orders); and
• "Disposition of balance of claimant" (Section 18 of the Petition and corresponding attachments/orders).

Further, the Court orders that a nonredacted version of such records (the Petition and corresponding attachments/orders) be sealed.

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. Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings.

Re:                 Portfolio Recovery Associates, LLC vs. Cruz, Viridiana

Case No.:   VCL331947

Date:           October 19, 2026

Time:           8:30 A.M. 

Dept.           9-The Honorable Nathan D. Ide

Motion:     Defendant’s Motion to Set Aside Default

Tentative Ruling: To deny the motion

Facts

In this matter, Defendant was personally served April 4, 2026.

Default judgment was entered June 2, 2026 in the amount of $7,586.76.

On August 12, 2026, Defendant filed this motion to set aside the default judgment.

In support, Defendant states: “I did not understand the legal process and the gravity of the case, as soon as I found out the gravity I came to court to remedy this.” Beyond this statement, the boxes on the form are checked as to mistake, inadvertence and/or oversight, and that Defendant was prevented from responding due to an unexpected condition or situation. No facts, however, are stated in support of these categories.

Defendant raises no issues as to the service of the summons and complaint.

Authority and Analysis

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.)

“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.)

Defendant, however, makes no factual showing as to any of these categories. Defendant’s ignorance of the failure to respond is not excusable, as the summons states:

“NOTICE! You have been sued. The court may decide against you without your being heard unless you respond within 30 days. Read the information below. You have 30 CALENDAR DAYS after this summons and legal papers are served on you to file a written response at this court and have a copy served on the plaintiff. A letter or phone call will not protect you. Your written response must be in proper legal form if you want the court to hear your case… If you do not file your response on time, you may lose the case by default, and your wages, money, and property may be taken without further warning from the court.”

The Court, therefore, denies the motion.

If no one requests oral argument, under Code of Civil Procedure section 1019.5(a) and California Rules of Court, rule 3.1312(a), no further written order is necessary. The minute order adopting this tentative ruling will become the order of the court and service by the clerk will constitute notice of the order. Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings.

Re:                 Velocity Investments LLC vs. Mcquilliams, Tammy

Case No.:   VCL320204

Date:           October 19, 2026

Time:           8:30 A.M. 

Dept.           9-The Honorable Nathan D. Ide

Motion:     Motion to Deem Admissions Admitted

Tentative Ruling: To grant the motion and deem Admissions Nos. 1 through 11 admitted.

Facts

On or about December 30, 2025, Plaintiff served by mail Requests for Admissions, Set One on Defendant. The discovery was mailed to the address on Defendant’s answer. As of the date of the filing of this motion, no response has been received by Plaintiff. Plaintiff now seeks to deem Admissions Nos. 1 through 11 admitted.

Authority and Analysis

Code of Civil Procedure section 2033.280 states that if a party to whom requests for admissions have been directed fails to serve a timely response, the propounding party may move for an order that the truth of any facts specified in the requests for admissions be deemed admitted. Here, Defendant has failed to serve a timely response and Plaintiff has moved for an order to deem the admissions admitted.

Based on the foregoing, the Court grants Plaintiff’s motion. The facts and allegations alleged in Requests for Admissions Nos. 1 through 11 of Plaintiff’s First Set of Requests for Admission shall be deemed admitted.

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. Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings.

Re:                Tulare Lake Basin Water Storage District vs. Sandridge Partners, L.P.

Case No.:   VCU334947 

Date:           October 19, 2026

Time:           8:30 A.M. 

Dept.           9-Honorable Nathan D. Ide

Motion:      Continued Motion to Change Venue

Tentative Ruling: The motion is granted to order this case transferred to the Kings County Superior Court.  The parties’ sanctions requests are denied. 

This motion for transfer of venue returns for disposition following an additional round of briefing by the parties. 

The court finds Code of Civil Procedure section 392(a) governs original venue for this case.  Under section 392(a), the proper original venue for an action “for the determination in any form, of [a] right or interest [in real property]” is “the superior court in the county where the real property that is the subject of the action, or some part thereof, is situated.” (Id., subd. (a)(1).)

TLB’s interpleader complaint purports to show conflicting claims of Sandridge and RD 761 in a “Water Order placed by Sandridge Partners for RD 761 Kings River water to be delivered in the Blakeley Canal” and, impliedly, other such “order[s]” Sandridge “has or will place … with TLB to deliver RD 761 Kings River water for use outside of the Kings River Service Area during the Coordinated Run.”

Accordingly, this is an action for the determination of rights and interests in water.  Specifically, TLB’s action is an action for the determination of rights and interests in water released from Pine Flat Dam, which water thereafter flows in the Kings River and is ultimately conveyed to landowners within the jurisdiction of KRWA’s member units, such as Sandridge, a landowner within RD 761.

“[W]ater in its natural situation upon the surface of the earth, whether as a flowing stream, as a lake or pond, or as percolations in the soil, is real property.”  (Stanislaus Water Co. v. Bachman (1908) 152 Cal. 716, 725 [93 P. 858].)  Additionally, “[t]he right in water which has been diverted into ditches or other artificial conduits, for the purpose of conducting it to land for irrigation, has been uniformly classed as real property in this state. ‘The right to water must be treated … as a right running with the land and as a corporeal privilege bestowed upon the occupier or appropriator of the soil … .’ [Citation.] The right to have water flow from a river into a ditch is real property; and so also is the water while flowing in the ditch. [Citation.] … The right to take water from a river and conduct it to a tract of land is realty. [Citation.]” (Id., at pp. 726-727; see also, Abatti v. Imperial Irrigation Dist. (2020) 52 Cal.App.5th 236, 255 [266 Cal.Rptr.3d 26] (Abatti) [citing Fullerton v. State Water Resources Control Bd. (1979) 90 Cal.App.3d 590, 598 [153 Cal.Rptr. 518] for the proposition that, “[a]lthough there is no private property right in the corpus of the water … , the right to its use is classified as real property.”] (Fullerton).)

Because this is an action for the determination of rights and interests in water, and water, whether “in its natural situation upon the surface of the earth,” or diverted for the purposes of its use upon land, is real property (ibid.)—and, further, the right to use of water is classified as real property (Abatti, supra, 52 Cal.App.5th at p. 255; Fullerton, supra, 90 Cal.App.3d at p. 598)—this is an action for the determination of rights and interests in real property, and original venue is, accordingly, governed by Code of Civil Procedure section 392(a).

The question then becomes, though, where is the “the real property that is the subject of the action … situated”?  (Code Civ. Proc., § 392(a).)

The Kings River water that is the subject of this action runs, from Pine Flat Dam, roughly 29 to 30 miles in the Kings River in a southwesterly direction through Fresno County, where the river then enters Tulare County, running approximately six miles through the county’s northwestern edge until it crosses into Kings County at the county’s northernmost border.  Within Kings County, the Kings River diverges into multiple branches. As pertinent here, based on the allegations of TLB’s complaint, the subject water in the Kings River, once in Kings County, makes its way to “the Empire Weir No. 2 pool just south of the community of Stratford” in Kings County, and, by way of TLB’s operation of various headgates, the water is allowed to flow “into various water channels including the Blakeley Canal,” and by way of that canal, the water is delivered to landowners within the jurisdictional area of RD 761, such as Sandridge.  These allegations are not materially disputed.  Also not disputed is that, as TLB alleges, RD 761 is “wholly situated and doing business in the County of Kings” and that Sandridge “is a landowner within the jurisdictional boundaries of RD 761 … .”

TLB maintains that, “[i]n actions involving a party’s appurtenant right in a river or ditch, where the river or ditch is located in more than one county, California law has long held that an action may be brought in any county where the river or ditch is located.”  TLB cites Lower Kings River Water Ditch Co. v. Kings River & Fresno Canal Co. (1882) 60 Cal. 408 (Lower Kings River Water Ditch Co.); Last Chance Water Ditch Co. v. Emigrant Ditch Co. (1900) 129 Cal. 277 [61 P. 960] (Last Chance Water Ditch Co.); Sutter-Butte Canal Co. v. Great Western Power Co. (1924) 65 Cal.App. 597 (Sutter-Butte Canal Co.); E. Clemens Horst Co. v. New Blue Point Mining Co. (1918) 177 Cal. 631, [171 P. 417] (E. Clemens Horst Co.); and Wood v. Pendola (1934) 1 Cal.2d 435, 444 [35 P.2d 526] (Wood).).

Lower Kings River Water Ditch Co. and Last Chance Water Ditch Co. each involved litigated diversions of water from the Kings River.  In each case, the plaintiffs were owners of a ditch used to convey Kings River water, which water was, in turn, supplied to landowners for irrigation.  Both the plaintiffs had commenced suit based on claims that the respective defendants in their cases had constructed mechanisms of diversion of Kings River water upstream of their respective ditches, causing them injury incident to the loss of water they would otherwise receive from the Kings River.  In both cases, the point of diversion from the Kings River for the plaintiffs’ respective ditches was in Fresno County.  (Lower Kings River Water Ditch Co., supra, 60 Cal. at pp. 409-410; Last Chance Water Ditch Co., supra, 129 Cal. at pp. 277-278.)  In Lower Kings River Water Ditch Co., the plaintiff’s ditch ran from and through Fresno County and then into Tulare County, and the plaintiff commenced suit in Tulare County.  (Lower Kings River Water Ditch Co., supra, 60 Cal. at p. 409.)  In Last Chance Water Ditch Co., the plaintiff’s ditch ran from and through Fresno County and then into Kings County, and the plaintiff commenced suit in Kings County.  (Last Chance Water Ditch Co., supra, 129 Cal. at pp. 277-278.)

In both these cases, the California Supreme Court upheld denials of motions by the respective defendants to change venue to Fresno County, notwithstanding that the diversions at issue in both cases were constructed by the respective defendants in Fresno County.  (Lower Kings River Water Ditch Co., supra, 60 Cal. at p. 410; Last Chance Water Ditch Co., supra, 129 Cal. at p. 278.)

In Lower Kings River Water Ditch Co. the Supreme Court explained: “Plaintiff's ditch was an artificial watercourse. … The right of plaintiff, as stated in its complaint, to have the water flow in the river to the head of its ditch, is an incorporeal hereditament, appertaining to its watercourse. Granting that plaintiff does not own the corpus of the water until it shall enter its ditch, yet the right to have it flow into the ditch appertains to the ditch. Real property consists of land, that which is affixed to land, and that which is incidental or appurtenant to land. (Civil Code, 658.) If the watercourse, consisting of the bed and banks of the trench, and of the water therein, be real property, the right to have water flow to it is incidental and appurtenant thereto.” (Id., at p. at p. 410.)

Then, observing that “[t]he acts complained of are preventing water from flowing in plaintiff's ditch,” and that “the ditch is located in both [Fresno and Tulare] counties,” the Supreme Court concluded “the subject of the action [was] in both counties, and the action might have been brought in either.” (Ibid.)  Although, the Supreme Court acknowledged, “the specific act complained of, viz: the diverting of the water, occurred in Fresno county,” the Supreme Court reasoned that Tulare remained a proper court as “the consequences of [the defendant’s diversion of water] operated upon the whole of plaintiffs ditch, and was injurious as well to that part of it in Tulare County as to that in Fresno County” and “[i]n no sense [could] the injury be said to be confined to that part of the ditch in Fresno County.” (Ibid.)

In Last Chance Water Ditch Co., the Supreme Court found the case before it fell “directly within the principles declared in [Lower Kings River Water Ditch Co.], in which it was held that the plaintiff's right to have water flow in the ditch [was] coextensive with its right to the ditch, and that, although the act of diverting the water was committed in Fresno county, it was an injury to that portion of its ditch which was in Tulare county, and that the action was properly brought in the latter county.” (Ibid.)

Sutter-Butte Canal Co. presents in an analogous situation, on different facts, as the cases just discussed, and also followed Lower Kings River Water Ditch Co. 

Sutter-Butte Canal Co. involved a plaintiff public utility “engaged in the sale and distribution of water to the inhabitants of Butte and Sutter Counties for irrigation and domestic uses.”  (Id., at p. 598.) The plaintiff owned “a canal heading at a point on Feather River in Butte County and running thence through that county and Sutter County,” and owned rights to diver Feather River water through its canal.  (Ibid.)   Defendants claimed the water to which the plaintiff had appropriative rights adversely to the plaintiff and threatened to divert it above the plaintiff’s point of diversion.  (Ibid.)  Plaintiff commenced suit in Sutter County, but defendant demanded trial be had in Butte County “on the ground ‘that the cause of said action [was] for the determination of an estate or interest in real property and that the subject of said action, to wit, such real property and interest therein is situated, particularly the alleged property right in and to the alleged right of appropriation … of the waters of the Feather River, as alleged in said complaint, in the County of Butte.” (Id., at p. 599.)

Citing the above discussed principles from Lower Kings River Water Ditch Co., however, and noting plaintiff’s allegations that it was diverting its appropriated water “into its canal, through which the water is carried and distributed in both [Butte and Sutter] counties,” the court found the plaintiff’s action “could have been brought in either county.” (Id., at p. 600.)

E. Clemens Horst Co., which is referenced in Sutter-Butte Canal Co. as a “see also” citation without discussion (id., at p. 600), presents a different scenario than the cases discussed above.  E. Clemens Horst Co. is a California Supreme Court decision following appeal by one of multiple plaintiffs, E. Clemens Horst Company, “from parts of judgments identical in three cases involving the flow of Bear River and its tributary, Wolf Creek, to the lands of plaintiffs in Yuba and Placer counties.” (Id., at p. 632.)  “E. Clemens Horst Company (hereinafter to be known as ‘plaintiff’ or ‘appellant’) [had] owned for more than a quarter of a century land riparian to Bear River,” with “[t]he water flowing to said land com[ing] partly from a tributary of Bear River known as Wolf Creek, which has its confluence with the river above plaintiff's land.” (Id., at p. 632-633.)  It was determined that Wolf Creek received, and had been receiving, “water coming from sources without its watershed and known as ‘foreign water’ [e.g., water ‘made up of sewage from the city of Grass Valley and water discharged from mines and mills, the city, mines, and mills receiving their supply from a canal which leads from Yuba River’].” (Id., at p. 634.)  The question presented on appeal was, “[w]here the flow of a natural stream is augmented by artificial means [i.e., ‘foreign water’], does this artificial flow inure to the benefit of riparian owners or is it merely in the nature of abandoned personalty which may be appropriated by the first person who can take it from the stream?” (Id., at pp. 634-635.)

At the end of the Supreme Court’s opinion, it noted “[c]ertain of the respondents question[ed] the jurisdiction of the court to try [the] case and contend[ed] that they should have been awarded a judgment of dismissal … .” (Id., at p. 640.)  These respondents characterized the underlying action “an action to quiet title to the waters of Bear River and its tributaries, including Wolf Creek, and as the latter stream is entirely within the county of Nevada, they assert[ed] that the superior court in and for the said county alone had jurisdiction to entertain such a suit.” (Id., at pp. 640-641.)  Each of the three cases involved in the appeal were commenced, instead, in Yuba County. 

The Supreme Court held “[t]he action was properly commenced and tried in Yuba County,” as “[p]laintiff was seeking to quiet its right to the natural flow of Bear River at its lands in Yuba County,” and “[t]he mere fact that Wolf Creek has a separate name [than Bear River, of which Wolf Creek is a tributary and extends through another county [Nevada County] does not make it less a part of Bear River [and which does flow through Yuba County].” (Id., at p. 641, citations omitted.)

Wood is a later case that cited E. Clemens Horst Co. as well as all the cases discussed above.  Like E. Clemens Horst Co., Wood presents a different scenario than Lower Kings River Water Ditch Co., Last Chance Water Ditch Co., and Sutter-Butte Canal Co. 

In Wood, “[t]he plaintiff sued to quiet his title to an alleged appropriation right in the waters of Coyote Creek in Calaveras County, and for injunctive relief to enjoin the defendants' interference with the right alleged.” (Id., at p. 438.) 

Plaintiff “based his right to recovery on a judgment … rendered on September 21, 1887, in an action commenced in the Superior Court in and for the County of Calaveras by … the predecessor of the plaintiff, against … the defendants' predecessor in interest …” (Ibid.)  In that judgment, the title of the plaintiff to his alleged appropriative right in the waters of Coyote Creek was “decreed,” and the defendant’s predecessor was “perpetually enjoined from interfering with that right.” (Ibid.)

Defendants, on the other side, “founded their claim of right on a final judgment of the Superior Court in and for San Joaquin County rendered on November 14, 1929, which established and determined the several priorities, quantities and points of diversion and use by the parties hereto to the waters of Coyote Creek, following an order of determination by the division of water rights, department of public works, pursuant to the provisions of the Water Commission Act. (Stats. 1913, p. 1012, as amended.)” (Ibid.)  In this judgment, contrary to the unequivocal decree and perpetual injunction resulting from the 1887 judgment advanced by the plaintiff, rights to divert specified quantities of Coyote Creek water, of priority years 1868 and 1885, were determined in favor of a “Mrs. M. Pendola,” which rights were found by the trial court, with no showing the finding was unsupported, to be the rights of the defendants’ involved in the action before the trial court.  (Ibid.)

Defendants appealed a judgment in favor of the plaintiff on his quiet title action on the ground “that the court erred in basing its decree … on the judgment of 1887 [involving an exclusive appropriative right decreed in favor of plaintiff’s predecessor] rather than on the judgment of the Superior Court in San Joaquin County rendered on November 14, 1929 [recognizing the appropriative right of the defendants’ claimed in the quiet title action].” (Id., at p. 439.)

Defendants, on appeal, relied “on the rule that the last judgment in point of time involving the same parties and the same subject matter controls and determines the rights of the parties.” (Ibid.)

In opposing the effect of the rule relied upon the defendants, plaintiff made various arguments attacking the validity of the 1929 judgment.  Pertinent here, amongst these arguments, the plaintiff “contend[ed] that by the commencement of the proceeding [resulting in the 1929 judgment benefiting the defendants’ position] in the Superior Court in San Joaquin County there occurred a violation of the proviso of section 5 of article VI of the California Constitution that all actions for the recovery of the possession of, quieting the title to or for the enforcement of liens upon real estate, shall be commenced in the county in which the real estate, or any part thereof, affected by such action or actions, is situated, and of subdivision 4 of section 25 of article IV prohibiting the legislature from passing local or special laws providing for changing the venue in civil or criminal actions.” (Id., at p. 444.)

The Supreme Court, however, concluded that the “[t]he legislature obviously had in mind those sections of the Constitution when it provided by [indicated provisions of the Water Commission Act] that the order of determination of the water commission, transcript and evidence shall be filed in the county in which the stream system, or some part thereof, is situated,” and, further, it noted “[n]o reason [was] presented, and none [was] perceived, why the Stanislaus River and all of its tributaries may not constitute a stream system within the meaning of the act.” (Ibid.)

The court observed “[t]he joint petition initiating the proceeding before the water commission [leading to the 1929 judgment] claimed appropriative rights in the waters of the Stanislaus River,” and it found “[t]he claims of all of the upper appropriators, including the parties hereto, on that river or its tributaries, formed the proper subject of an action or proceeding to determine the respective rights of the petitioners and such other users.” (Id., at pp. 444-445.)  Further, the court observed, “[n]o contention [was] made that such an action or proceeding could not have been commenced by the same petitioners in the Superior Court in San Joaquin County, a portion of the southern boundary of which is formed by the Stanislaus River, to determine the same rights as are determined by the judgment of the Superior Court in San Joaquin County in the present case.” (Id., at p. 445.)

The court does not agree with TLB, having considered these cases together and the cited portions of them in their full context, that they support that, merely because a part of the Kings River runs through Tulare County, that TLB’s interpleader action may properly be commenced in Tulare County under Code of Civil Procedure section 392(a).

Lower Kings River Water Ditch Co., Last Chance Water Ditch Co., and Sutter-Butte Canal Co. each determined that venue was appropriate under section 392 in the counties through which the respective plaintiffs’ ditches (or, canal, in Sutter-Butte Canal Co.)—each an “artificial watercourse” (Lower Kings River Water Ditch Co., supra, 60 Cal. At p. 410, cited also in Sutter-Butte Canal Co., supra, 65 Cal.App. at p. 599)—ran, and the Supreme Court and Court of Appeal did not consider, in any of these cases, let alone determine, that venue would be proper in all counties through wherein some portion of the rivers from which those artificial watercourses diverted water flowed. 

E. Clemens Horst Co. and Wood, though they support venue in actions involving river waters in all counties where the subject rivers (and their tributaries) flowed, did so in the context of readily distinguishable actions. 

E. Clemens Hortst Co. involved a distinguishable question of whether “foreign water” augmenting the flow of Wolf Creek, a tributary of Bear River, could be considered part of the beneficial interest of holders of riparian interests to water from the Bear River, and in that distinguishable context, it was appropriate to consider these waters collectively as part of a singular water system, and to determine venue appropriate in any county through which waters of that system flowed. 

Wood involved a question of venue unique to the case attacked as having been commenced in an improper venue—the case resulting in the 1929 judgment—which case involved a broad adjudication of rights to waters of the Stanislaus river and its tributaries pursuant to the provisions of the Water Commission Act.  Similarly as in E. Clemens Hortst Co., it was uniquely appropriate in this distinguishable context to determine venue appropriate in any county through which waters of that river and its tributaries flowed. 

Civil Code section 658 clearly describes real property as consisting of both “[l]and” and “[t]hat which is incidental or appurtenant to land,” and Civil Code section 662 clearly provides that “[a] thing is deemed incidental or appurtenant to land when it is by right used with the land for its benefit, as in the case of a … watercourse … ,” but that does not mean that all counties through which water flows in making its way a landowner is properly deemed the place where water at issue in the case is “situated” for venue determination purposes under section 392(a).  The pertinent “watercourse” in a case such as presented by TLB here, for the purposes of determining where water is “situated,” is, based on this court’s reading of Lower Kings River Water Ditch Co., Last Chance Water Ditch Co., and Sutter-Butte Canal Co., those places where the water is diverted from its natural watercourse, by way of artificial watercourses, to the relevant recipients (in this case, Sandridge). 

Sandridge submits, and there is no showing to the contrary, that the whole of the relevant places and mechanisms of diversion from the Kings River involved in this case, including, as specifically identified in the complaint the “Empire Weir No. 2 pool,” the various identified “headgates,” and the “Blakeley Canal,” as well as the lands of Sandridge within the jurisdiction of RD 761, are within Kings County.

Based on the foregoing, the court finds that original venue of this case is properly in the Kings County Superior Court and it accordingly orders this case be transferred to that court. 

The court declines Sandridge’s invitation to undertake the second step of its two-step request and transfer this case to Kern.  Code of Civil Procedure section 394, as Sandridge expressly acknowledges, supplies a mechanism to transfer from “a venue that is otherwise proper under the general venue rules” to a designated “neutral county.”  (Arntz Builders v. Superior Court (2004) 122 Cal.App.4th 1195, 1203 [19 Cal.Rptr.3d 346]; § 394, subd. (a).)  Under section 394, “[a] county or other local agency must file an action against a nonresident defendant in a venue that is otherwise proper under the general venue rules,” but “[i]f that venue is in the county suing the nonresident defendant (or within which the local agency is located),” then the nonresident defendant may move for transfer to “a neutral county” and, “upon [such] timely application,” “the court must designate a neutral county to which the action will be transferred. [Citation.]” (Ibid.)

The plain language of section 394 contemplates that Sandridge must bring any motion to remove TLB’s action in “a venue that is otherwise proper under the general venue rules” and that it is the court in that venue, not this court, that is authorized to designate an appropriate neutral county, if it finds the motion must be granted in the first instance.  The court notes, if this court were properly authorized to determine an appropriate neutral county, there would be no reason this court could not properly determine itself to be a perfectly appropriate candidate as a neutral forum, or, perhaps, Fresno.  As a preliminary consideration, both these options appear to be nearer to the “real property” at issue in this case than Kern, and Sandridge presents no relevant consideration by way of the pending litigation in Kern.  The apparent fact of the existence of litigation between these same parties on the same or similar matters in Kern has no bearing on the question of the original proper venue for TLB’s action, at least based on the authority cited by Sandridge. 

Such considerations are exclusively pertinent, it appears, to potential applicability of the rule of exclusive concurrent jurisdiction (Mission Imports, Inc. v. Superior Court (1982) 31 Cal.3d 921, 926, fn. 3 [184 Cal.Rptr. 296, 647 P.2d 1075]; Travelers Indem. Co. v. Lara (2022) 84 Cal.App.5th 1119, 1129-1130 [301 Cal.Rptr.3d 57]), which, as Sandridge notes, will be a matter of consequence only in the event it brings a motion that, as of yet, it has declined to bring.   

There is, though the court notes, a ring of persuasiveness to these arguments.  It is evident that the same issues TLB seeks to litigate here are pending in Kern and this court would be strongly disinclined to wade, under the auspices of this purported “interpleader” action, into the deep waters of an approximately seven-year litigation on these same issues still pending in Kern county (and, apparently also, at least on some matters, the Fifth District Court of Appeal) to weigh in on the meaning and effect of a stipulated judgment apparently entered in the Kern litigation.  Indeed, were it determined that the litigation could properly proceed in this court, its best fate would inevitably be dismissal or abatement according to the rule of exclusive concurrent jurisdiction, and the court’s suspects this case will meet a similar fate in the face of such motion in whatever court that ends up being determined an appropriate neutral forum. 

Finally, the court again determines, as in the prior tentative ruling, that Sandridge’s and TLB’s respective requests for sanctions are denied.  As explained, Sandridge initially failed, and arguably has not still entirely succeeded, in identifying the applicable original venue statute (it only now states arguments supporting its position under both sections 395 and 392), and, beyond that, if failed to make an offer to stipulate to change of venue.  Sandridge’s failure to meet and confer, however, while ill-conceived, does not alone support sanctions in favor of TLB.  The court agrees with Sandridge that determination of venue in this case is, ultimately, a complicated matter. 

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. Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings.

Re:                 T.M. Nursery, Inc. vs. Nutrien Ag Solutions, Inc. et al

Case No.:   VCU334072

Date:           October 19, 2026

Time:           8:30 A.M. 

Dept.           9-The Honorable Nathan D. Ide

Motion:     Demurrer to Amended Complaint

Tentative Ruling: To sustain the demurrer with leave to amend; Plaintiff shall have ten (10) days to file an amended complaint.

Facts

In the amended complaint, Plaintiff sues Defendants Nutrien Ag Solutions, Inc. and Alex Del Rio, an alleged employee of Defendant Nutrien.

As against Defendant Nutrien, Plaintiff alleges breach of written contract, breach of oral contract, negligence, negligent interference, intentional interference with prospective economic advantage, intentional interference with contractual relationships, and violation of Business and Professions Code section 17200.

As against Defendant Del Rio, Plaintiff alleges breach of oral contract, negligence, negligent interference, intentional interference with prospective economic advantage, intentional interference with contractual relationships, and violation of Business and Professions Code section 17200.

Plaintiff alleges it is a nursery of plants and trees and that “Defendants agreed to provide goods and/or provide materials or other services at the Plaintiffs nurseries in Orosi, California and other locations in Tulare County (the "Nurseries") including but not limited to fertilizers, pesticides and/or other chemicals and advice concerning said materials and which ones to use and how to apply them (the "Work").” (FAC ¶¶6, 7.)

Further, that “Defendants represented to the Plaintiff that they would perform the Work in a timely manner, in compliance with all applicable laws, the material provided would be good quality and appropriate for all work done for the Plaintiffs business and at the Nurseries and that the Work would be performed by qualified individuals and be performed in a good and workmanlike manner” and that Defendants held a position of trust and confidence, and were fiduciaries to Plaintiff. (FAC ¶¶8,9.)

Further, that Defendants were aware that the Plaintiff relied on their assistance and that “Defendants failed to perform the Work as represented including but not limited to the Work and/or the materials were defective and/or not appropriate given the conditions and/or circumstances at the Nurseries. The Work did not comply with all applicable laws and the Work was not done in a good and workmanlike manner.” (FAC ¶¶10, 12.)

As to the first cause of action for breach of written agreement, Plaintiff alleges it and Defendant Nutrien, around December 2024, entered into written agreements (“Agreements”) concerning the Work as attached as Exhibit A. (FAC ¶14.) Plaintiff alleges “Defendants delivered and/or provided said advice, chemicals, fertilizers and/or materials on or about December 17, 2024 to the Plaintiffs.” (FAC ¶14.) Further, that they “herein agreed among other things that: the Defendants would comply with all applicable laws; the Work would be performed in a timely manner, and the Work would be performed in a good workmanlike manner and be appropriate for the conditions and/or circumstances of the Nurseries and the Plaintiff's plants, seeds, and/or trees.” (FAC ¶14.)

Plaintiff alleges Defendant Nutrien breached the Agreements by “…not complying with all applicable laws; not properly performing the Work, not performing the Work in a good workmanlike manner, and/or providing chemicals and/or pesticides that were not appropriate and the Defendants' chemicals damaged and/or killed the Plaintiffs trees and/ or greenhouse's plants.” (FAC ¶15.)

As to breach of oral agreement by Defendants, Plaintiff alleges “On or about December of 2024 Defendant Nutrien and the Plaintiff, verbally agreed that the Defendant would perform the Work at the Nurseries” and that “Said Defendants have and continue to materially breach the agreements as noted above from the respective dates noted above to the present.” (FAC ¶¶22, 23.)

As to negligence, Plaintiff alleges “Defendants had a duty to perform the Work in an appropriate manner. As a result of Defendants' actions, the Plaintiff suffered damages including but not limited to loss of seedlings and trees. The Defendants owed the Plaintiff a duty of care concerning the Work and also voluntarily assumed such a duty” and that “Defendant Del Rio represented, warranted, and/or advised that the chemicals and/or materials noted in Exhibit A were appropriate and would not damage and/or kill the Plaintiff's plants and/or trees.” (FAC ¶¶26, 27.) Further, that “Defendants voluntarily assumed a duty to provide the Plaintiff with professional advise and/or recommendations concerning what chemicals and/or materials to use on the Plaintiffs plants and/or trees to make them grow and/or produce high quality fruit.” (FAC ¶29.) 

As to negligent interference with prospective economic advantage, Plaintiff alleges “Given the Defendants' actions, the Plaintiff was unable to fulfill orders of its potential customers in California and other areas and/or provided trees and/or seedlings that were not of the quality that they should have been.” (FAC ¶39.)

As to intentional interference with prospective economic advantage, Plaintiff alleges “Plaintiff would be, has been, is and continues to be prevented from receiving the proceeds and profits from potential customers given their unlawful, wrongful, and improper conduct. The Defendants know or should have known of the decrease in proceeds and/or profits the Plaintiff would suffer. The Defendant's were not parties to these third parties prospective contractual relationships” (FAC ¶47.)  

As to intentional interference with contractual relationships, Plaintiff alleges “Plaintiff was unable to fulfill orders of its existing customers and/or provided plants, trees and/or seedlings that were not of the quality that they should have been. The Defendants knew that the Plaintiff had customers who had agreements to purchase trees and/or seedlings from the Plaintiff that were dependent upon the Work being done properly.” (FAC ¶54.)

As to the seventh cause of action for unfair business practices, Plaintiff alleges “Defendants have violated numerous State of California and County of Tulare laws and/or regulations including but not limited to California State of Regulations 3 CCR § § 14007 et seq.., 14011.5, 14012, 6618 et seq., 6622 et seq., 6624 et seq., and 6627 et seq. For example, the Defendants failed to timely prepare and/or submit pesticide use reports, report delivery and/or sale of products to the Plaintiff; prepare forms concerning the advice they have provided the Plaintiff concerning the Work; and/or timely prepare invoices and/or delivery slips concerning the Work.” (FAC ¶62.)

Defendants demurrer to each cause of action. As to the breach of contract causes of action, Defendants argue the Agreements attached as Exhibit A contradict the alleged promises as to the Work and breach thereof. Defendants argue that the negligence cause of action is barred by the economic loss doctrine as to the breach of contract claims. Further, that the interference claims fail to identify an existing relationship with a customer and are otherwise improper tort claims given the same conduct alleged as to breach of contract. Finally, that the sections cited by Plaintiff as to Business and Professions Code section 17200 either do no impose a duty on Defendants or that Defendants have satisfied the applicable statutes.

In opposition, Plaintiff argues that the causes of action are properly pled, as discussed below.

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.)

First Cause of Action

Breach of contract "requires a showing of (1) the existence of the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff." (D'Arrigo Bros. of California v. United Farmworkers of America (2014) 224 Cal.App.4th 790, 800.)

Here, Plaintiff alleges the Agreements, consisting of the “Shipping Paper” and “Customer Order / Delivery Ticket”  for two shipments, form the written contract applicable here.

The Court notes that the breach of contract appears to be based not on a failure to deliver products or delivery of incorrect products, but rather “advice concerning said materials and which ones to use and how to apply them” defined as the “Work.” Plaintiff alleges breach via Defendants acts of “not properly performing the Work, not performing the Work in a good workmanlike manner, and/or providing chemicals and/or pesticides that were not appropriate and the Defendants' chemicals damaged and/or killed the Plaintiffs trees and/ or greenhouse's plants.”

However, as Defendants note, the Agreements state “No Recommendation Made” and “No Recommendation has been made or provided by seller concerning the use of any pesticide covered by this invoice.”

As such, the Agreements fail to evidence a promise or term as to providing appropriate products for use by Plaintiff. The Court considers the allegations of “not properly performing the Work” and “not performing the Work in a good workmanlike manner” to mean that Defendants failed to provide proper or sufficient recommendations concerning the products reflected in the Agreements.

Breneric Associates v. City of Del Mar (1998) 69 Cal.App.4th 166, 180 notes “We also disregard allegations which are contrary to law or to facts which may be judicially noticed [citation omitted] or which are contradicted by the express terms of an exhibit incorporated into the complaint. [citation omitted].” The Court finds the allegations as to any promised advice concerning said materials and which ones to use and how to apply them contradicted by the terms of the Agreements.

While the Court agrees that invoices or delivery slips may, in some cases, constitute written contracts, the issue here is that the alleged breach of the alleged contract is directly contradicted by the terms stated in the delivery slip, as discussed above.

As such, the Court sustains the demurrer to the first cause of action.

Second Cause of Action – Breach of Oral Contract

As to breach of oral contract, the Court agrees that the Agreements attached also contradict the allegations of an oral agreement to perform the Work, as defined above. The Court, therefore, sustains the demurrer to the second cause of action.

Third Cause of Action – Negligence

Here, Defendants demurrer on the basis that the negligence cause of action seeks purely economic losses stemming from the breach of contract claims and otherwise identify no independent duty.

“Conduct amounting to a breach of contract becomes tortious only when it also violates an independent duty arising from principles of tort law." (Applied Equipment Corp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th 503, 515.) “Despite the fact that a negligent failure to perform contractual obligations constitutes a tort, the injured party may recover only contractual damages unless 'the duty that gives rise to tort liability is either completely independent of the contract or arises from conduct which is both intentional and intended to harm.'" (Stop Loss Ins. Brokers, Inc. v. Brown & Toland Medical Group (2006) 143 Cal.App.4th 1036, 1059, quoting Erlich v. Menezes (1999) 21 Cal.4th 543, 552.)

Defendant cites “Every person has a duty to exercise reasonable care to avoid injury to others. Cal Civ Code § 1714.” "Civil Code section 1714 establishes the default rule that each person has a duty to exercise, in his or her activities, reasonable care for the safety of others." (Lorenzo v. Calex Engineering, Inc. (2025) 110 Cal.App.5th 49, 54 [internal quotations and citations omitted.].) However, the amended complaint alleges no such independent duty as to performance of the “Work” and moreover any such allegation would contradict the Agreements as noted above.

The economic loss doctrine, in some cases, bars a tort action in the absence of personal injury or physical damage to property. (Robinson Helicopter Co. v. Dana Corp. (2004) 34 Cal.4th 979, 984.) "The economic loss rule requires a purchaser to recover in contract for purely economic loss due to disappointed expectations, unless he can recover harm above and beyond a broken contractual promise." (Id. at 988.) The holding of Robinson, permitting both recovery under fraud and contract, “is narrow in scope and limited to a defendant's affirmative misrepresentations on which a plaintiff relies and which expose a plaintiff to liability for personal damages independent of the plaintiff's economic loss." (Id. at 993.)

Here, Plaintiff has not pled an exception to the economic loss rule as to fraud.

The Court, therefore, sustains the demurrer to the third cause of action.

Fourth, Fifth and Sixth Causes of Action – Interference Claims

The elements of negligent interference with prospective economic advantage are (1) the existence of an economic relationship between the plaintiff and a third party containing the probability of future economic benefit to the plaintiff; (2) the defendant's knowledge of the relationship; (3) the defendant's knowledge (actual or construed) that the relationship would be disrupted if the defendant failed to act with reasonable care; (4) the defendant's failure to act with reasonable care; (5) actual disruption of the relationship; and (6) economic harm proximately caused by the defendant's negligence.  (Venhaus v. Shultz (2007) 155 Cal.App.4th 1072, 1077-1078.)

The elements of a claim for intentional interference with prospective economic advantage include: "(1) an economic relationship between the plaintiff and some third party, with the probability of future economic benefit to the plaintiff; (2) the defendant's knowledge of the relationship; (3) intentional or negligent acts on the part of the defendant designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm to the plaintiff proximately caused by the acts of the defendant." (Crown Imports, LLC v. Superior Court (2014) 223 Cal.App.4th 1395, 1404, citations, brackets, and quotation marks omitted.)

"The difference between intentional interference and negligent interference with prospective economic advantage relates to the defendant's intent." (Id. at 1404, FN. 10.)

The third element of either tort “…also requires a plaintiff to plead intentional wrongful acts on the part of defendant designed to disrupt the relationship.” (Marsh v. Anesthesia Services Medical Group, Inc. (2011) 200 Cal.App.4th 480, 504) "An act is independently wrongful if it is unlawful, that is, if it is proscribed by some constitutional, statutory, regulatory, common law, or other determinable legal standard, not merely the product of an improper, but lawful purpose or motive." (Redfearn v. Trader Joe's Co. (2018) 20 Cal.App.5th 989, 1006, internal citations and punctuations omitted.) "Such conduct must also be independently actionable, meaning the legal standards must provide for, or give rise to, a sanction or means of enforcement for a violation of the particular rule or standard that allegedly makes the defendant's conduct unlawful." (Id., internal citations and punctuations omitted.)

Moreover, a mere speculative expectancy of future business, without an existing relationship with an identifiable third party, is insufficient. (Roth v. Rhodes (1994) 25 Cal.App.4th 530, 546-547.) Actual disruption of the economic relationship is a required element of the claim. (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1165.)

Here, Plaintiff’s amended allegations fail to assert a duty independent of the Agreements, independent wrongful acts by Defendants and more than a mere, speculative expectancy of future business.

The Court agrees that the sixth cause of action for interference with contractual relationship requires Plaintiff to allege “a valid contract between plaintiff and a third party” and, of course, “intentional acts designed to induce,” and that actually induce, “a breach or disruption of the contractual relationship.”  (Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1126.) Here, no such valid contract is alleged.

Therefore, the Court sustains the demurrer to the fourth, fifth and sixth causes of action.

Seventh Cause of Action

“The UCL covers a wide range of conduct. It embraces ‘ “ ‘ “anything that can properly be called a business practice and that at the same time is forbidden by law.” ’ ” [Citations.]’ ” (Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1143 [131 Cal.Rptr.2d 29, 63 P.3d 937] (Korea Supply), citing Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co. (1999) 20 Cal.4th 163, 180 [83 Cal. Rptr. 2d 548, 973 P.2d 527] (Cel-Tech).)  “By proscribing ‘any unlawful’ business practice, ‘section 17200 “borrows” violations of other laws and treats them as unlawful practices’ that the unfair competition law makes independently actionable. [Citation.]”  (Cel-Tech, supra, 20 Cal.4th at p. 180.)

Here, Plaintiff alleges violations of 3 CCR sections 6618, 6622, 6624, 6627, and Food and Agriculture Code sections 14007, 14011.5, and 14012.

Defendants note, and the Court agrees, that 3 CCR sections 6618, 6622, 6624, 6627, and Food and Agriculture Code sections 14007 and 14011.5 appear, on their face, to apply to others than the seller or supplier of the pesticides.

As to Food and Agriculture Code section 14012, it states:

(a) Any person who is required to register pesticides under Article 4 (commencing with Section 12811) of Chapter 2, and who sells or transfers any restricted material, shall keep accurate records of the amount and type of material involved in every sale or transfer of any restricted material. The records shall be open during ordinary business hours to the inspection of the director.

(b) Each commissioner shall submit to the director a copy of each pesticide use report received pursuant to Section 14011.5, and any other relevant information the director may require. Copies of the reports from the commissioners shall be rendered to the director within one calendar month after they are received.

The contents of these reports shall be summarized quarterly by the director as to the type of material and amounts, and the summaries shall be made a public record. The director may publish or distribute the summaries.

The Court agrees that the Agreements appear to comply with the subsection (a) record keeping requirements and therefore this section cannot support a cause of action under Business and Professions Code section 17200.

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

Leave to Amend

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.)

The Court will permit leave to amend here. Plaintiff shall have ten (10) days to file an amended complaint.

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. Court reporters are usually not available for law and motion matters in the civil division. The parties and counsel must provide their own reporter if they want a transcript of the proceedings.

Honorable Bret D. Hillman Presiding - Department 2

Examiner notes for probate matters calendared October 19, 2026, that allow for posting:

Status:  Recommended for Approval (RFA), Appearance Required or Recommended, Approval Conditional Upon, etc.

Case Number	Case Name	Type	Status	Comments
VPR054206	In the Matter of Gonzales, Patrick Joseph	Spousal Property Hearing	Appearance Required	No supplemental documents filed. Previous issues remain
VPR054199	In the Matter of Macke, Joseph J.	Determine Succession to Primary Residence	Appearance Required	Continued hearing
VPR052954	In the Matter of Watson, Edward B. III	Final Distribution Hearing	Appearance Required	1. Inventory and Appraisal – Final inconsistencies: Attachment No. 2, page 2, has a total calculated value of $511,000, whereas page 1, Item 2 shows $511,770. 2. Inventory and Appraisal – Supplemental has not been filed. 3. Proposed Order - Page 5, paragraph 5: the attorney’s fees do not reflect the amount requested in Petition
VPR053697	In the Matter of Navo, Zachary Irving	Final Distribution Hearing	Appearance Required	The court to determine whether the personal property is community or separate property of the decedent—distribution to comply with intestate succession
VPR054337	In the Matter of Ropes, Caleb Preston	Appoint Temporary Conservator	Appearance Required	Notice of Hearing: POS, page 2 is incomplete; all relatives within the second degree are required to be listed in Petition
VPR054317	In the Matter of Bogan, Geneva	Appoint Temporary Conservator	Appearance Required	Order Appointing Court Investigator (GC-330), Declaration on Medical Ability to Attend Hearing (GC-325) and Capacity Declaration (GC-335) not filed. Attachment Requesting Special Orders Regarding a Major Neurocognitive Disorder (form GC-313) not attached to Petition
VPR054229	In the Matter of Sandoval, Juventina	Appoint Temporary Conservator	Appearance Required	Objections filed
VPR054170	In the Matter of Santoyo Gomez, Enrique	Appoint Temporary Conservator	Appearance Required	Documents in order
VPR054158	In the Matter of Diaz, John Anthony	Appoint Conservator	Appearance Required	Petition Item 3e omitted: Property value and income not listed, Probate C § 1821(g) Notice shall be mailed pursuant to Probate Code § 1822(d)

Honorable Russell Burke Presiding- Department 19

Examiner notes for probate matters:   Thursday, October 15, 2026

                                         

Status:  Recommended for Approval (RFA), Appearance Required or Recommended, Approval Conditional Upon, etc.

PLEASE NOTE:  All attempts possible are made to have the information on this page entered by 3:00 p.m. the day prior to hearing in order to allow for any needed continuances or travel if an appearance should be required.  For further information regarding a probate matter listed below you may contact the Probate Document Examiner at (559) 730-5000 x 1302 or 1430

Case Number	Case Name	Type	Status	Comments
PPR053427	In the Matter of Wheeler, Sidney C	Final Distribution Hearing	Appearance recommended	Order not submitted
PPR053476	In the Matter of SELK, SUITJYE	Final Distribution Hearing	Appearance recommended	Matter appears to be in order
PPR054047	In the Matter of Bedolla, Brian Henry	Appoint Conservator	Appearance required	Matter appears to be in order
PPR054188	In the Matter of Nieblas, Marciela	Letters of Administration	Appearance required	Caption- NOT SELECTED Authorization to Administer Under the Independent Administration of Estates Act. Selection made at 2c to act with FULL authority under IEAE    Petition item 3e re BOND WAIVER omitted - NO SELECTION MADE, NO ATTACHMENT  Petition item 5, (7) or (8) omitted - re any issue of a predeceased child Notice to Minor, pursuant to ProbC §1461.1, notice has not been properly given to a parent, guardian, or other person having legal custody of the minor, with whom the minor resides. NOT LODGED Orders & Letters
PPR054210	In the Matter of Singo, Sila	Probate Will/Issue Letters	Appearance required	Discrepancies: Petition Item 5(1) shows decedent is survived by spouse, whereas Item 8 lists spouse as “deceased” Petition Item 8: relationship of Lisa Singo to decedent is omitted Notice of Petition to Administer: notice of the court address is South County Justice Center; Page 2 – POS is incomplete Proof of Publication not filed Original will not lodged
PPR054235	In the Matter of Smothers, Barbara	Letters of Administration	Appearance required	Matter submitted to court; no Objection filed
PPR054236	In the Matter of Everhart, Joann	Letters of Administration	Appearance required	Matter submitted to court; no Objection filed
PPR054301	In the Matter of Marure, Jose Antonio	Determine Succession to Primary Residence	Appearance required	Petition item 8- inventory and appraisal not attached to the Petition Petition item 9- (3) or (4) omitted – re registered domestic partner; (7) or (8) omitted - re any issue of a predeceased child Petition item 11- 11(2) Missing facts upon which the petitioner bases the allegation that the described real property was the decedent’s primary residence – ie. copy deed, property tax, death certificate with the home address, mortgage statement from 2011. There is no statement of decedent’s interest in the property, doesn’t say the amount of interest decedent owned. Petition item 11- 11(3) Missing facts that show whether the property was community, separate, or quasi-community property Petition item 13-   The interest of each petitioner in the property is not included in Attachment 13 Petition item 14 - CIVIL POS FILED other names included in the POS are Moises Marure, Diana Marure, Yolanda Marure, John Marure but these persons are not listed in the Petition – this form doesn’t meet the probate notice requirement; Notice of Hearing—Decedent's Estate or Trust (DE-120) has not been filed and served on all parties, Prob C § 13153.

South County Justice Center & County Civic Center- Visalia

GUARDIANSHIP CASES

         SCJC- Honorable Russell Burke Presiding

         Visalia- Honorable Bret D. Hillman; Honorable Nathan D. Ide; Honorable David C. Mathias

Examiner notes for probate GUARDIANSHIP matters calendared AS STATED BELOW that allow for posting:

PLEASE NOTE:  All attempts possible are made to have the information on this page entered by 3:00 p.m. the day prior to hearing in order to allow for any needed continuances or travel if an appearance should be required.  For further information regarding a probate matter listed below you may contact the Probate Document Examiner at (559) 730-5000 x 1302.

Hearing Date & Time	Department Number	Case Number	Case Name	Comments
10/5/2026 8:30	Department 09	VPR054359	In the Matter of E.J.W.	NEED Notice of Hearing (GC-020) to be filed with proof of service to be in accordance with Prob Codes §2250(e) & 2250(e)(3). Service on Father Mr. Addison & Mother Mrs. Wiliams are required Temporary Order and Temporary Letters need to be lodged prior to hearing
10/6/2026 14:00	Department 09	VPR054113	In the Matter of Madera, Shanylle	NEED Notice of Hearing (GC-020) to be filed with proof of service indicating Petition for Appointment was served pursuant to Probate Code §1511 on all grandparents
10/6/2026 8:30	Department 02	VPR054358	In the Matter of Johnson, River Lynn	TEMP- NEED Notice of Hearing (GC-020) to be filed with proof of service to be in accordance with Prob Codes §2250(e) & 2250(e)(3), parents to be personally served 5 court day’s notice prior to hearing
10/6/2026 8:30	Department 01	VPR052277	In the Matter of Bennett, Zoey Lynn	NEED Notice of Hearing GC-020 form to be filed indicating parties to this case were served with a copy of the Notice of Hearing pursuant to Prob Code §1460, service to be given 15 calendar days before hearing
10/14/2026 8:30	Department 01	VPR053711	In the Matter of Allende, Jorge Jr	No issues to address
10/14/2026 8:30	Department 01	VPR047286	In the Matter of Clevenger, Brea Marie	Guardianship Status Review Report needs to be filed for 2026 NEED Notice of Hearing (GC-020) to be filed with proof of service indicating the relatives named in the Petition for Termination were served with 15 calendar days notice, as required by PROB Code §1460,1511, with a copy of the Notice of Hearing and Petition for Termination. The children may be of Native American ancestry, notice of termination proceedings must be given to the children’s tribe per ICWA NOT LODGED- Order Terminating Guardianship
10/15/2026 8:30	Department 19	PPR054192	In the Matter of Venegas, Analise Rose et al	No issues to address
10/15/2026 8:30	Department 19	PPR054155	In the Matter of Hernandez, Julian Carlos et al	NEED Notice of Hearing (GC-020) to be filed with proof of service indicating Petition for Appointment was served pursuant to Probate Code §1511, SERVICE to be completed on paternal grandfather DOJ Background record check appears to be outstanding for proposed guardian and household member
10/15/2026 8:30	Department 19	PPR050803	In the Matter of Aviles, Irie A	NEED Notice of Hearing (GC-020) to be filed with proof of service indicating the relatives named in the Petition for Termination were served with 15 calendar days notice, as required by PROB Code §1460, 1511, with a copy of the Notice of Hearing and Petition for Termination. Guardianship Status Review Report needs to be filed for 2026 NOT LODGED- Order Terminating Guardianship
10/15/2026 10:00	Department 09	VPR053787	In the Matter of Mendoza, Nolberto	Temporary guardianship for N.M. has terminated by operation of law as ward has reached the age of 18. NEED Notice of Hearing (GC-020) to be filed with proof of service indicating Petition for Appointment was served pursuant to Probate Code §1511, notice required by maternal grandparents DOJ Background record check appears to be outstanding
10/15/2026 10:00	Department 09	VPR053770	In the Matter of Mendoza, Paulette	household member is required to complete the DOJ background record check NEED Notice of Hearing (GC-020) to be filed with proof of service indicating Petition for Appointment was served pursuant to Probate Code §1511, by mail on the maternal grandparents and siblings 15 days prior to hearing
10/15/2026 8:30	Department 19	PPR054321	In the Matter of Pena, Rose Marie	Declaration of Due Diligence has not been filed for father Temporary Order and Temporary Letters need to be lodged prior to hearing
10/15/2026 8:30	Department 19	PPR054320	In the Matter of Rosales, Amelia Jade	NEED Notice of Hearing (GC-020) to be filed with proof of service to be in accordance with Prob Codes §2250(e) & 2250(e)(3). MOTHER to be personally served 5 court days prior to hearing Temporary Order and Temporary Letters need to be lodged prior to hearing
10/15/2026 8:30	Department 19	PPR054004	In the Matter of Leon, Ezra Invicto	No issues to address – notice to mother to be discussed at hearing