Tentative Rulings

The Tentative Rulings for Thursday, January 23, 2025, are:

Re:              Sanchez, Roxann vs. Alejandro, Gabriel Anthony

Case No.:    VCU307507

Date:            January 23, 2025

Time:           8:30 A.M. 

Dept.           1-The Honorable David C. Mathias

Motion:      Motion for Appointment of Receiver

Tentative Ruling: To order the filing and service of a proposed interlocutory judgment; to continue the motion to appoint the receiver and CMC to February 20, 2025; 8:30 am; D1.

Facts

On April 3, 2024, Plaintiff filed this verified complaint for partition of real property against Defendant Alejandro.

Plaintiff seeks partition by sale of 1624 El Paso Way, Dinuba, California, 93618 (“Subject Property”).

The filed proof of service indicates personal service on Defendant occurred August 11, 2024.

Entry of default occurred October 9, 2024.

Plaintiff now seeks entry of interlocutory judgment via a prove up hearing and appointment of Ryan Sullivan as receiver.

In support, Plaintiff provides declarations of herself and counsel as to the entry of judgment and appointment of receiver, discussed below.

No opposition to this motion has been filed. The Court notes service of this motion by mail appears to have occurred December 20, 2024.

Authority and Analysis

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

The Code of Civil Procedure specifically states that this determination can be made “at trial.” (Code Civ. Proc. § 872.810.) It appears that the Court may also make this determination in the other ways that determinations underlying a judgment are normally made – such as by motion for summary judgment. (See LEG Investments v. Boxler (2010) 183 Cal. App. 4th 484 [reversing denial of summary judgment and ordering trial court to grant plaintiff’s motion for summary adjudication on partition cause of action.].)

This statutory scheme envisions that an interlocutory judgment of partition shall not be entered until after the court determines the interests of the parties in the property and that plaintiffs are entitled to partition. (Code Civ. Proc. § 872.720(a); see also Summers v. Superior Court (2018) 24 Cal.App.5th 138, 143-144 [court cannot order partition sale prior to resolving the parties’ respective ownership interest in property].)

The court in Finney v. Gomez (2003) 111 Cal.App.4th 527, 532, however, appears to permit the entry of the interlocutory judgment after obtaining entry of default. Therefore, the correct sequence of events appears to be the following: entry of default, interlocutory judgment ordering partition by sale, sale, default prove up hearing to determine entry of judgment for a specific dollar amount based upon the parties interest in the property and any set off or expense amounts. (Id. at 532-533.)

In this case, the Court finds that Plaintiff is entitled to partition as a matter of right pursuant to Code of Civil Procedure section 872.710(b) based on the concurrent interests of the parties as undivided owners. (See LEG Investments v. Boxler (2010) 183 Cal.App.4th 484, 493.) Plaintiff’s declaration indicates Plaintiff and Defendant jointly purchased the Subject Property in 2013, but that the parties split in 2017 and Defendant remained a resident of the Subject Property. (November 25, 2024 Declaration of Plaintiff ¶¶3, 4, 9.)

Further Code of Civil Procedure section 872.820 provides, “Notwithstanding Section 872.810, the court shall order that the property be sold and the proceeds be divided among the parties in accordance with their interests in the property as determined in the interlocutory judgment in the following situations: (a) The parties agree to such relief, by their pleadings or otherwise; (b) The court determines that, under the circumstances, sale and division of the proceeds would be more equitable than division of the property. For the purpose of making the determination, the court may appoint a referee and take into account his report.”

In this case, the property at issue is a single residential parcel and is not suitable for partition in kind.

As to Mr. Sullivan, the proposed referee, Code of Civil Procedure section 873.010 states, “the court shall appoint a referee to divide or sell the property as ordered by the court.” Additionally, Code of Civil Procedure section 873.510 states that “[t]he referee appointed by the court to make a sale of the property shall sell the property in the manner and following the procedures provided in this chapter.”

The Court, however, lacks a declaration from Mr. Sullivan as to his experience as a referee, his lack of bias or interest as to the parties or the Subject Property and Mr. Sullivan’s consent to the appointment.

Additionally, the Court lacks a proposed interlocutory judgment and a proposed order appointing the receiver. The Court notes a number of proposed equitable reimbursements as to trust deed payments on the Subject Property’s loan by  Plaintiff as well as significant attorneys’ fees allegedly incurred that should be included on the proposed judgment.

The Court, therefore, is inclined to enter interlocutory judgment in this matter upon service of the proposed judgment on Defendant and review by this Court.

The Court will continue the motion to appoint the receiver to February 20, 2025; 8:30 am; D1 and order a declaration from Mr. Sullivan to be filed with this Court and served on Defendant.

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

Re:                 Maupin, Shayne vs. County of Tulare

Case No.:   VCU300612

Date:           January 23, 2025

Time:           8:30 A.M. 

Dept.           1-The Honorable David C. Mathias

Motion:     Defendants’ (1) Continued Motion to Compel Further Interrogatories; (2) Continued Motion to Compel Further Requests for Production of Documents

Tentative Ruling: There are no tentative rulings on the merits for these motions. The parties are directed to meaningfully meet and confer before the hearing of these motions to resolve the discovery disputes identified in the moving and opposition papers for these discovery motions. If unable to resolve, counsel are directed to personally appear for the hearing on these discovery motions. No CourtCall or Zoom appearances will be permitted if the parties are unable to resolve this matter prior to the scheduled hearing.

Re:                Scott, Natasha vs. General Motors

Case No.:  VCU309749

Date:          January 23, 2025

Time:          8:30 A.M. 

Dept.          1-The Honorable David C. Mathias

Motion:     Plaintiff’s Motion to Compel Further Responses to (1) Special Interrogatories and (2) Requests for Production of Documents

Tentative Ruling: There are no tentative rulings on the merits for these motions. The parties are directed to meaningfully meet and confer before the hearing of these motions to resolve the discovery disputes identified in the moving and opposition papers for these discovery motions. If unable to resolve, counsel are directed to personally appear for the hearing on these discovery motions. No CourtCall or Zoom appearances will be permitted if the parties are unable to resolve this matter prior to the scheduled hearing.

Re:              Anaya, Luis Alvarado vs. County of Tulare

Case No.:     VCU308194

Date:           January 23, 2025

Time:          8:30 A.M. 

Dept.           1-The Honorable David C. Mathias

Motion:       County’s Motion for Leave to File Cross-Complaint

Tentative Ruling: To grant the motion and order the proposed cross-complaint filed no later than ten (10) days from the date of this hearing.

Facts

This case involves a motor vehicle accident that occurred on September 27, 2023 involving four vehicles.

The complaint alleges Plaintiff was traveling on the U.S. 101 Freeway, when a vehicle driven by Defendant Velasco, an employee of Defendant County, traveling at a high rate of speed, struck Plaintiff's vehicle, resulting in injuries and damages to Plaintiff. (Complaint at p. 4.) The complaint alleges a number of Vehicle Code section violations by Defendant Velasco, including an unsafe lane change. (Complaint at p. 4.)

Defendants answered the complaint May 22, 2024. No cross-complaint was filed at the time of the answer.

On November 5, 2024, Plaintiff filed a Doe Amendment to the complaint naming Defendant Payan as Doe 1.

Defendant County now seek to file a cross-complaint against Plaintiff, the registered owner of Plaintiff’s vehicle Crystal Torres Anaya and Defendant Payan.

In support, Defendant’s counsel states that when the complaint was answered, the case was in its infancy and the facts of the underlying incident were vague. (Declaration of Varner ¶4.) 

At some point after the answer was filed, Defendant Payan was deposed, “wherein she testified that a vehicle matching the description of the one Plaintiff was driving approached from behind her “very fast” and was driving “very quickly”, faster than the flow of traffic and faster than her blind-spot sensor.” (Declaration of Varner ¶6.)

Thereafter, Defendant County “moved as quickly as possible to locate Plaintiff’s vehicle and conduct an expert inspection, specifically with the goal of retrieving data from the event data recorder (“EDR”) to see if it would corroborate Ms. Payan’s testimony.” (Declaration of Varner ¶7.) The vehicle inspection was conducted on September 23, 2024 in Irwindale, California and approximately one week later, the preliminary results showed that Plaintiff was driving at 86 mph leading up to the accident. (Declaration of Varner ¶8.)

Plaintiff provided their initial written discovery responses on September 10, 2024 which revealed that Plaintiff had been driving without a valid driver’s license and that the vehicle was owned by his wife, Crystal Torres Anaya. (Declaration of Varner ¶9.)

Although the facts in support of filing a cross-complaint against Plaintiff were known in September 2024, Defendant notes it is a public entity and requires Board of Supervisor approval to initiate litigation. (Declaration of Varner ¶12.)

Defendant County calendared the matter for a closed-session meeting and received Board of Supervisor approval to initiate litigation on October 8, 2024. (Declaration of Varner ¶12.)

On November 20, 2024, Defendant County filed this motion.

No opposition appears to have been filed.

Authority and Analysis

A cross-complaint against any of the parties who filed the initial complaint or cross-complaint against the cross-complainant must be filed before or at the same time as the answer to the initial complaint or cross-complaint, which answer must be filed within 30 days of service of the complaint or cross-complaint.  (Code of Civ. Proc. §§ 412.20(a)(3), 428.50(a), 432.10.)  Any other cross-complaint may be filed at any time before the court has set a trial date.  (Code of Civ. Proc. § 428.50(b).) 

If a party fails to file a cross-complaint within the time limits described above, the party must obtain permission from the court to file the cross-complaint.  (Code of Civ. Proc.§§ 426.50, 428.50(c).) 

In this case, Defendant County did not file the cross-complaint concurrently with the answer and the Court has set trial in this matter. Therefore, Defendant County now properly seeks leave to file the cross-complaint.

The Court’s review of the cross-complaint indicates it is compulsory.

Code of Civil Procedure section 426.30(a) defines a compulsory cross-complaint as having any related cause of action which the plaintiff alleges in the complaint. Code of Civil Procedure section 426.10 (c) defines “related cause of action” means a cause of action which arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause of action which the plaintiff alleges in his complaint. The courts use a logical relationship test, which requires “’not an absolute identity of factual backgrounds for the two claims, but only a logical relationship between them.’” (Currie Medical Specialties, Inc. v. Bowen (1982) 136 Cal.App.3d 774, 777.) “At the heart of the approach is the question of duplication of time and effort; i.e., are any factual or legal issues relevant to both claims?” (Id.)

Here, the cross-complaint involves related causes of action regarding same accident involving Plaintiff, the former doe, Defendant Payan and the owner of the Subject Vehicle, Plaintiff’s spouse.

Where the proposed cross-complaint arises out of the same transaction as plaintiff’s claim, the court must grant leave to file the cross-complaint so long as defendant is acting in good faith. (Code Civ. Proc., § 426.50.)  Section 426.50 further provides that:

“A party who fails to plead a cause of action subject to the requirements of this article, whether through oversight, inadvertence, mistake, neglect, or other cause, may apply to the court for leave to amend his pleading, or to file a cross-complaint, to assert such cause at any time during the course of the action. The court, after notice to the adverse party, shall grant, upon such terms as may be just to the parties, leave to amend the pleading, or to file the cross-complaint, to assert such cause if the party who failed to plead the cause acted in good faith. This subdivision shall be liberally construed to avoid forfeiture of causes of action.” (Emphasis added.)

Leave may be granted in the interest of justice at any time during the course of the action.  (Id., § 428.50(c).)  Indeed, where a cause of action would otherwise be lost, leave to amend is appropriate even if the party was negligent in not moving for leave to amend earlier.  “The legislative mandate is clear.  A policy of liberal construction of section 426.50 to avoid forfeiture of causes of action is imposed on the trial court.  A motion to file a cross-complaint at any time during the course of the action must be granted unless bad faith of the moving party is demonstrated where forfeiture would otherwise result.”  (Silver Organizations, Ltd. v. Frank (1990) 217 Cal.App.3d 94, 98-99.) “[A] strong showing of bad faith [must] be made in order to support a denial of the right to file a cross-complaint under this section.” (Sidney v. Superior Court (1988) 198 Cal.App.3d 710, 718.) 

Here, the Court, based on the sequence of events described by the County’s counsel above as to discovery and Board of Supervisors approval, finds no bad faith demonstrated.

Therefore, the Court grants the motion. The County is ordered to file the proposed cross-complaint no later than ten (10) days from the date of this hearing.

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

Re:                 Bank Of America, N.A. vs. Jimenez, Mark A

Case No.:    VCL202318

Date:           January 23, 2025

Time:           8:30 A.M. 

Dept.           1-The Honorable David C. Mathias

Motion:     Plaintiff’s Motion to Enforce Settlement

Tentative Ruling: To deny the motion.

Facts

On May 20,  2022, Plaintiff filed this action against Defendant for open book and account stated in the amount of $10,877.76.

Defendant was served with the summons and complaint by personal service on July 21, 2022, but did not file an answer.

Default judgment was entered October 20, 2022.

Thereafter, on February 7, 2023, a notice of conditional settlement was filed.

On December 4, 2024, Plaintiff filed this motion to enforce the settlement as a judgment.

Authority and Analysis

Section 664.6 (a) states: 

“If parties to pending litigation stipulate, in a writing signed by the parties outside of the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.”

Judgement, by default, has already been entered in this matter. The Court cannot enter a further judgment based on the stipulation absent relief from default judgment.

This motion, therefore, is denied, without prejudice.

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

Re:                 Agostini, Eddie vs. Progressive

Case No.:   VCU310223

Date:            January 23, 2025

Time:            8:30 A.M. 

Dept.           1-The Honorable David C. Mathias

Motion:     Defendant’s Demurrer to Complaint

Tentative Ruling: To sustain the demurrer with leave to amend; Plaintiff shall have ten (10) days from notice of this ruling to file an amended complaint; Defendant is ordered to give notice. CMC is continued to April 2, 2025; 8:30 am; D1.

Facts

The complaint alleges breach of contract, bad faith and negligence against Defendant “Progressive” based on “Property owned by Plaintiff is and covered by Insured…and the Policy issued by Insurer was purchased at PROGRESSIVE’S Visalia location…” (Complaint ¶4.) Plaintiff attaches, as Exhibit A, “copies of the Policies form November 2023 through November 2024. (Complaint ¶8.)

On November 7, 2023, Skyler Tompkins served a demand for payment against Plaintiff’s driver, Dennis Brakenridge, alleging that Brakenridge caused a collision with Tompkins. (Complaint ¶9.) The complaint further alleges that Defendant, without thorough investigation, tendered the sum of $160,000 to Tompkins under the policy via a release and settlement. (Complaint ¶10.)

The Court here notes that Exhibit A to the complaint lists “Agostini Transport LLC” as the “insured” and “certificate holder.”

Defendant demurrers, arguing a lack of standing, lack of legal capacity, incorrect Defendant named, and for failure to state facts sufficient to constitute a cause of action. In support, Defendant provides the declaration of its Senior Claims Generalist who attaches relevant portions of motor carrier policy issued to Agostini Transport LLC by United Financial Casualty Company.

No opposition appears filed.

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.)

Standing and Self-Representation

Plaintiff is alleged as Eddi Agostini and the complaint further alleges that Plaintiff held insurance policies, including the policy at issue and referenced in Exhibit A to the complaint. However, the Court’s review of Exhibit A indicates that “Agostini Transport LLC” is listed as the “insured” and “certificate holder.” Additionally, Plaintiff purports to represent himself without counsel.

Code of Civil Procedure section 367 provides that "[e]very action must be prosecuted in the name of the real party in interest, except as otherwise provided by statute." (Code Civ. Proc. § 367.)

A complaint filed by someone other than the real party in interest is subject to general demurrer if it fails to state a cause of action by the plaintiff because the claim sued upon belongs to somebody else. (Carsten v. Psychology Examining Committee of Bd. of Med. Qual. Assur. (1980) 27 Cal.3d 793, 796.) "Where the complaint shows the plaintiff does not possess the substantive right or standing to prosecute the action, 'it is vulnerable to a general demurrer on the ground that it fails to state a cause of action.'" (Schauer v. Mandarin Gems of Cal., Inc. (2005) 125 Cal. App. 4th 949, 955.)

"Typically, the issue of standing is decided by reference to the allegations made in a party's complaint." (Shapell Industries, Inc. v. Sup. Ct. (2005) 132 Cal. App. 4th 1101, 1111.) However, the Court reviews the exhibits attached to the complaint notes that, if facts appearing in the exhibits contradict those alleged, the facts in the exhibits will take precedence. (Holland v. Morse Diesel Intern., Inc. (2001) 86 Cal.App.4th 1443, 1447.)

Generally, the real party in interest is the person who has the right to sue under the substantive law, i.e., the person who owns or holds title to the claim or property involved, as opposed to others who may be interested or benefited by the litigation. (See Gantman v. United Pac. Ins. Co. (1991) 232 Cal.App.3d 1560, 1566.)

When a party lacks standing to sue, the action must be dismissed, unless the complaint can be amended by substituting a party who has standing. (Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 1004-11.)

Here, the Court’s review of the complaint’s allegations and Exhibit A indicate that Plaintiff is not the named insured on the policy at issue, but that Agostini Transport LLC is the insured and therefore the real party in interest with standing to bring this lawsuit.

However, “under a long-standing common law rule of procedure, a corporation, unlike a natural person, cannot represent itself before courts of record in propria persona, nor can it represent itself through a corporate officer, director or other employee who is not an attorney.  It must be represented by licensed counsel in proceedings before courts of record.”  (CLD Construction, Inc. v. City of San Ramon (2004) 120 Cal.App.4th 1141, 1145; Paradise v. Nowlin (1948) 86 Cal.App.2d 897, 898 [“A composite rule in the decided cases, overwhelmingly sustained by the authorities, be thus stated: A natural person may represent himself and present his own case to the court although he is not a licensed attorney.  A corporation is not a natural person.  It is an artificial entity created by law and as such it can neither practice law nor appear or act in person. . . . [I]n matters in court it can act only through licensed attorneys.  A corporation cannot appear in court by an officer who is not an attorney and it cannot appear in propria persona.” ].) 

The Court applies this rule to limited liability companies like Agostini Transport LLC, the named insured on the policy at issue.

As Plaintiff has filed this complaint on behalf of himself, the Court notes that any amendment that Agostini Transport LLC is the Plaintiff will necessarily require counsel to be retained. On this issue, the Court notes a substitution of attorney has been filed, indicating that Plaintiff Eddi Agostini is now represented by counsel.

Therefore, the Court sustains the demurrer on the issue of standing. The Court expressly does not reach the other issues raised by Defendant in its demurrer as to the sufficiency of the facts pled in support of the causes of action.

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.)

Therefore, the Court sustains the demurrer with leave to amend. Plaintiff shall have ten (10) days from notice of this ruling to file an amended complaint. Defendant is ordered to give notice.

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

Re:                 Conceicao, Maria vs. Sierra Eye Medical Group et al

Case No.:   VCU313486

Date:            January 23, 2025

Time:            8:30 A.M. 

Dept.           1-The Honorable David C. Mathias

Motion:     Defendant’s Demurrer to Complaint

Tentative Ruling: To sustain the demurrer to the first cause of action with leave to amend; Plaintiff shall have ten (10) days from notice of this ruling to file an amended complaint; Defendant is ordered to give notice; to sustain the demurrer to the second cause of action with leave to amend. The Court’s comments related to the second cause of action may be addressed by way of amendment, if possible.  CMC is continued to April 2, 2025; 8:30am; D1.

Facts

The complaint states two causes of action for negligence and medical malpractice against Defendants Sierra Eye Medical Group and Steven Cantrell. The complaint appears to allege a cataract surgery by Dr. Cantrell and discovery of severe and permanent injuries in November and December 2023.

The Plaintiff, though not expressly identified, is listed on the complaint as “Maria Conceicao.” However, the complaint appears signed, electronically, by “David Fernandez.”  There is no identification of Mr. Fernandez as a California licensed attorney on the face of the complaint.

There is no specific identification of which cause of action applies to which Defendant. Additionally, Defendant Sierra Eye is not referenced in the body of the complaint.

On December 23, 2024, Defendants filed this demurrer, arguing the first cause of action fails to identify which defendant the cause of action is asserted against and that the first cause of action is uncertain and fails to state facts sufficient to constitute a cause of action. Defendants further demurrer to the second cause of action under uncertainty as duplicative of the first and for failure to state facts sufficient to constitute a cause of action.

No opposition appears to have been filed based upon the Court’s file and Defendants’ reply brief.

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)

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)

California Rule of Court, Rule 2.112

Rule 2.112 entitled “Separate causes of action, counts, and defenses” states the following:

Each separately stated cause of action, count, or defense must specifically state:

(1) Its number (e.g., "first cause of action");

(2) Its nature (e.g., "for fraud");

(3) The party asserting it if more than one party is represented on the pleading (e.g., "by plaintiff Jones"); and

(4) The party or parties to whom it is directed (e.g., "against defendant Smith").

A demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.  (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) A demurrer for uncertainty may lie if the failure to label the parties and claims renders the complaint so confusing defendant cannot tell what he or she is suppose to respond to. (Williams v Beechmint Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2).

Here, the failure to allege any facts as to Sierra Eye despite naming them as a Defendant in this matter and the failure to comply with Rule of Court 2.112(4) as to each defendant renders the complaint sufficiently uncertain as to warrant sustaining the demurrer.

Failure to Allege Facts Sufficient to State a Cause of Action

"The elements of a cause of action for medical malpractice are: (1) a duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) a breach of the duty; (3) a proximate causal connection between the negligent conduct and the injury; and (4) resulting loss or damage." (Lattimore v. Dickey (2015) 239 Cal.App.4th 959, 968.)

As noted above, there are no facts in the body of the complaint as to the conduct of Defendant Sierra Eye or its connection to Defendant Dr. Cantrell. As such, the Court sustains the demurrer to the first cause of action as to Defendant Sierra Eye on this basis.

As to Dr. Cantrell, the complaint generally alleges a duty of a doctor, breach through cataract surgery, misdiagnosis and incorrect “continuous” treatment, and that this breach proximately caused eyesight loss. However, as noted in the demurrer, the statement that Plaintiff “discovered” the injuries in November and December 2023 does not sufficiently allege these acts occurred within the applicable statute of limitations and, in the Court’s view, are conclusory.

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.)

Therefore, the Court sustains the demurrer to the first cause of action for failure to allege facts sufficient to state a cause of action.

The Court sustains the demurrer to the first cause of action with 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.)

Therefore, Plaintiff shall have ten (10) days to file an amended complaint from notice of this ruling. Defendant to give notice.

Duplicative Causes of Action

Bellamy v. Appellate Department (1996) 50 Cal.App.4th 797, 804 holds that "a plaintiff cannot, on the same facts, state causes of action for ordinary negligence as well as professional negligence, as a defendant has only one duty that can be measured by one standard of care under any given circumstances."

“'Professional negligence' means a negligent act or omission to act by a health care provider in the rendering of professional services, which act or omission is the proximate cause of a personal injury or wrongful death, provided that such services are within the scope of services for which the provider is licensed and which are not within any restriction imposed by the licensing agency or licensed hospital." (Code Civ. Proc. § 340.5(2).) The test of whether an act or omission is considered ordinary negligence or professional negligence, is "not whether the situation calls for a high or low level of skill, or whether a high or low level of skill was actually employed, but rather the test is whether the negligent act occurred in the rendering of services for which the health care provider is licensed." (Murillo v. Good Samaritan Hospital (1979) 99 Cal.App.3d 50, 57.)

Here, both causes of action allege the same set of facts arising out of services by a health care provider. 

A "merely duplicative pleading which adds nothing to the complaint by way of fact or theory" is not sufficient to survive demurrer. (Award Metals, Inc. v. Superior Court (1991) 228 Cal.App.3d 1128, 1135.)

Because Plaintiff pleads a separate cause of action for medical malpractice, the second cause of action for negligence is duplicative. Therefore, the Court sustains the demurrer to the second cause of action with leave to amend.

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

Re:                 City of Exeter vs. Dignan, Lillian Eileen

Case No.:   VCU315971

Date:            January 23, 2025

Time:            8:30 A.M. 

Dept.           1-The Honorable David C. Mathias

Motion:     Motion for Appointment of Receiver

Tentative Ruling: To continue the motion to February 27, 2025: 8:30 am; D1 based upon the foreclosure sale. PennyMac to provide Plaintiff with contact information for any 3^rd party purchaser at sale, if applicable, to allow City of Exeter to provide notice of future hearing dates. 

Facts

On December 13, 2024, Plaintiff City of Exeter filed this verified complaint for nuisance abatement, violation of state housing laws and receivership against Defendants Dignan and Pennymac Loan Service, LLC.

On January 3, 2025, default was entered as to Defendant Dignan.

On January 6, 2025, Defendant Pennymac answered the complaint.

On January 7, 2025, Plaintiff filed an ex parte motion for appointment of receiver. The Court denied the ex parte application but entered an order shortening time to hear this motion on this date.

On January 2, 2025, Plaintiff filed a notice of pending litigation. 

Plaintiff indicates that the parcel of real property known as 313 South C Street, Exeter, California 93221, Assessor’s Parcel Number 135-142-005-000 (“Subject Property”), consists of a single-story, single-family residence located in a densely populated residential neighborhood. (Phillips Declaration ¶¶ 5, 6; Ramos Declaration ¶¶ 4, 5.)

Defendant Dignan is the record title owner of 100% of the Subject Property.  (Phillips Decl., ¶ 7; Ramos Decl., ¶ 6; Morrissey Declaration ¶ 2; Ex. A [Grant Deed]; Ex B [Death Certificate of Joint Tenant]; RJN ¶ 1.)

The Subject Property has numerous violations of law, including but not limited to: unpermitted converted structures, an active water leak, exposed electrical wiring, inadequate sanitation, dead and overgrown vegetation, massive accumulation of junk, trash, and debris, and general dilapidation, amongst other code violations. (Phillips Decl., ¶ 6; Ramos Decl., ¶ 5.)

Since at least July 2019, the Subject Property has been the subject of citizen complaints and City enforcement efforts.

In July 2019, the City received a complaint from a neighbor regarding overgrown vegetation, trash and debris in the backyard and alley, items hanging on the alley fence, an unpermitted yard sale, hoarding, and an illegal structure in the backyard. (Phillips Decl., ¶ 8; Ramos Decl., ¶ 7.) On July 3, 2019, a courtesy Notice of Violation was issued for violation of Exeter Municipal Code (“EMC”) section 8.24.040(D), and section 5.52.020 for a yard sale without a permit. (Phillips Decl., ¶ 9; Ramos Decl., ¶ 8; Ex. C [July 3, 2019, Notice of Violation]; RJN ¶ 3.)

Thereafter, the City received additional complaints from neighbors involving g illegal and unpermitted construction, the dangerous and improper use of electrical extension cords, wiring, sidewalk obstructions, shopping carts in the front yard, couches in the front yard, a bulging back fence due to debris being piled against it, wood pallets, and other potential fire hazards in the backyard and alley, trash cans left on the street overnight, and blocked paths of ingress and egress causing substantial risk to emergency crews and fire responders. (Phillips Decl., ¶ 10; Ramos Decl., ¶ 9.)

In February of 2020, the Exeter Police Department discovered that the Subject Property was in disarray, the stove in the kitchen was unhooked, there was no running water, and there was miscellaneous junk, trash, and debris piled throughout. (Phillips Decl., ¶ 12; Ramos Decl., ¶ 11.)

In 2020, the City conducted at least nine (9) inspections of the Subject Property, issued three (3) Administrative Citations, requested to inspect the interior of the Subject Property, issued one (1) Notice of Violation, and red-tagged the Subject Property on August 14, 2020. (Phillips Decl., ¶¶ 13-22; Ramos Decl., ¶ 12-20; Exs. D-K; RJN ¶¶ 4-12.)

On March 24, 2021, City Staff conducted a follow-up exterior and interior inspection of the Subject Property and confirmed that the previous violations continued. (Phillips Decl., ¶ 23; Ramos Decl., ¶ 21; Ex. L [March 24, 2021, photographs]; RJN ¶ 13.)

The City continued to monitor the Subject Property through the remainder of 2021 and 2022 and observed the violations worsened. As such, on December 19, 2022, due to the continued violations of the EMC, City Staff issued another Administrative Citation. (Phillips Decl., ¶ 24; Ramos Decl., ¶ 22; Ex. M [December 19, 2022, Administrative Citation]; RJN ¶ 14.)

In June 2024, City Staff was informed that the exterior violations were still visually present from the public right-of-way and requested voluntary consent from Defendant Owner to inspect the Subject Property. (Phillips Decl., ¶ 26; Ramos Decl., ¶ 23.)

On July 16, 2024, City Staff conducted a public right-of-way inspection and observed a couch present in the front yard along with other miscellaneous junk, trash, and debris and observed trash cans and other miscellaneous junk, trash, and debris at the rear gate. (Phillips Decl., ¶ 27; Ramos Decl., ¶ 24; Ex. N [July 16, 2024, photographs]; RJN, ¶ 15.)

City Staff then obtained an inspection warrant authorizing the City to conduct a full interior and exterior inspection of the Subject Property. (Phillips Decl., ¶ 28; Ramos Decl., ¶ 24.)

On July 29, 2024, City inspectors conducted an inspection of the interior and exterior of the Subject Property and identified 37 substantially dangerous and hazardous violations of State and local laws. (Phillips Decl., ¶¶ 28-29; Ramos Decl., ¶ 25.)

On September 18, 2024, the City issued a Notice and Order to Repair or Abate (“N&O”) for the Subject Property identifying the 37 substandard and dangerous conditions that existed on the Subject Property and providing initial and completion compliance deadlines. (Phillips Decl., ¶ 30; Ramos Decl., ¶ 28; AOE Ex. P [NoP with attached N&O]; RJN, ¶ 16.)

The N&O was recorded on title on September 25, 2024.

After the N&O was issued, City inspectors have continued to monitor the Subject Property. Despite having been provided more than a reasonable time and adequate opportunity to rehabilitate the Subject Property, no one has stepped forward to take responsibility to rehabilitate the Subject Property and bring it into compliance with State and local laws. (Phillips Decl., ¶¶ 31–33; Ramos Decl., ¶ 29-34.)

The Subject Property continues to fall into greater disrepair and substantially endangers the health and safety of surrounding residents. (Phillips Decl., ¶¶ 34-39; Ramos Decl., ¶¶ 31-36.)

The Subject Property was listed in a foreclosure auction to occur on January 14, 2025.

On these facts, Plaintiff seeks appointment of a receiver under Health and Safety Code section 17980.7(c).

In opposition, the lender PennyMac notes that the initial borrower passed away in February 2023, and thereafter the loan went into default. The notice of default was recorded September 26, 2023, the notice of trustee’s sale was recorded on December 27, 2023, a foreclosure sale is currently scheduled is January 28, 2025, and that as of January 9, 2025, the amount of $150,184.87 remains outstanding on the loan. PennyMac further argues that upon learning of the health and safety code violations, it proactively engaged with the borrower’s daughter, defendant Dignan to address the issues. However, Dignan took no further action to remediate the violations, as indicated by the recitation of facts above. PennyMac further challenges the showing of immediate danger of irreparable injury due solely to the foreclosure sale because the City has waited four years from the initial violations to file this action.

Authority and Analysis

Opportunity to Correct

Pursuant to Health & Safety Code section 17980.6, "[i]f any building is maintained in a manner that violates any provisions of this part, the building standards published in the State Building Standards Code relating to the provisions of this part, any other rule or regulation adopted pursuant to the provisions of this part, or any provision in a local ordinance that is similar to a provision in this part, and the violations are so extensive and of such a nature that the health and safety of residents or the public is substantially endangered, the enforcement agency may issue an order or notice to repair or abate pursuant to this part."

"If the owner fails to comply within a reasonable time with the terms of the order or notice issued pursuant to Section 17980.6….the court may order, the appointment of a receiver for the substandard building pursuant to this subdivision." (Health & Safety Code §17980.7(c).)

Section 17980.7(c) states further:

“(1) In appointing a receiver, the court shall consider whether the owner has been afforded a reasonable opportunity to correct the conditions cited in the notice of violation.”

As noted above, on September 18, 2024, the City issued its N&O, which identified 37 dangerous conditions and violations of law. The 100 day period expired October 18, 2024 without correction of the issues identified in the N&O. The Court finds Defendants have been afforded a reasonable opportunity to correct the conditions. (See City of Santa Monica v. Gonzalez  (2008) 43 Cal.4th 905, 928 where 30 days to comply was held sufficient.)

However, PennyMac argues it should be permitted to proceed with the foreclosure sale and thereafter correct the numerous deficiencies identified by the City. “If PennyMac acquires title to the Property at the foreclosure sale, PennyMac will undertake immediate efforts to take possession of the Property and remediate the outstanding violations.”  PennyMac argues the Court should continue this hearing to a time after the foreclosure sale and should provide PennyMac the opportunity to correct the violations with the Subject Property unoccupied. Any subsequent buyer of the property would likewise be obliged to correct the listed deficiencies based on the notice of pending litigation, assuming that it has been properly recorded.  The Court expects the deficiencies to be immediately corrected after foreclosure by PennyMac or any subsequent purchaser.  In the event the deficiencies are not corrected the City may proceed with its request for receiver. 

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

Examiner Notes for Probate Matters Calendared

• Visalia Division 
• South County Justice Center Division