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Tentative Rulings

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

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

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

Civil Tentative Rulings & Probate Examiner Recommendations

The Tentative Rulings for Tuesday, February 27, 2024, are:

Re:              Haslam, Tamara vs. Adventist Health Tulare et al

Case No.:     VCU291016

Date:           February 27, 2024

Time:          8:30 A.M. 

Dept.           7-The Honorable Bret D. Hillman

Motion:  Defendant Nelson’s Motion for Summary Judgment

Tentative Ruling: To grant the motion.

Background Facts

Defendant Nelson bring this motion for summary judgment as to Plaintiff’s single cause of action for professional negligence. In addition to submitting expert testimony via declaration in support of the standard of care, Nelson also argues that Plaintiff failed to comply with the one-year statute of limitations under Code of Civil Procedure section 340.5 and cannot rely on section 474 as to naming of a Doe Defendant.

Material Facts

On March 24, 2022, Plaintiff filed her complaint for a single count of negligence against a number of Defendants but did not name Nelson as a Defendant. (UMF No. 12.)

Plaintiff first presented to Defendant Nelson for treatment on February 18, 2021, after Plaintiff had fallen and sustained several fractures at her left foot. (UMF No. 10.) Nelson noted that the patient had been walking on her splint since the initial injuries at the left foot several weeks prior. (UMF No. 5.)  Nelson also noted that the patient's splint had a hole at the back of the leg. (UMF No. 5.) During the initial date of treatment, Nelson provided Plaintiff with a surgical shoe and ordered x-rays, advising her to follow up in one week. (UMF Nos. 5, 10.)

Plaintiff returned to Nelson on March 4, 2021 (UMF Nos. 7, 11.) Nelson noted that prior x-rays had revealed a dislocation Lisfranc fracture around the first metatarsal joint, with a Charcot reaction. (UMF No. 7) Nelson ordered a CAM walking boot and prescribed Doxycycline to help with redness and swelling in the event of cellulitis. (UMF No. 7.)  Nelson noted that, due to the magnitude of the patient's fracture and the Charcot deformity, it was highly likely that she would require surgery and a foot amputation in the future. (UMF No. 7) Once Plaintiff was out of the acute phase of Charcot and her blood sugar levels returned to a safe level for surgery, the plan was to move forward with a possible open reduction and internal fixation. (UMF No. 7.)

Plaintiff also contends that defendants failed to provide the proper treatment, worsening her condition, eventually leading to amputation of the left foot. (UMF No. 1.) 

On April 24, 2023, Plaintiff named Nelson as a Doe Defendant. (UMF No. 13.)

Nelson moves for summary judgment based upon expert opinion as to the duty and causation. Nelson also moves for summary judgment based on a failure to file this matter within the applicable statute of limitations and that Plaintiff’s doe amendment was improper under the facts and law.

Plaintiff’s Opposition and Amended Opposition

On November 21, 2023, Plaintiff filed a “joint opposition” to this motion for summary judgment as well as other motions for summary judgment filed by other Defendants Tate, Princewill and CEP. Plaintiff also filed a separate statement of facts as to Nelson’s motion at the same time.  

The Court granted summary judgment in favor of Tate, Princewill and CEP thereafter and denied Plaintiff’s motion for reconsideration.

Plaintiff, on February 13, 2024, filed an “amended opposition” and “amended statement of undisputed facts.” The Court’s review of these amended documents indicate similar arguments and presentation of facts as Plaintiff attempted to introduce on the prior reconsideration motion.

The Court will focus on the statute of limitations facts. Plaintiff disputes UMF No. 14 that Plaintiff failed to comply with the statute of limitations and cannot meet the requirements under section 474 as to a Doe amendment as to Nelson. In dispute, Plaintiff argues:

“When the Code of Civil Procedure §474 is met, the defendant is considered a party to the action from its commencement. The Code of Civil Procedure §474 is met because even if the plaintiff knows of the defendant’s existence, the plaintiff is ignorant if she lacks knowledge of the defendant’s connection with the case or injuries. Even if Haslam was aware of the existence of the defendant, she did not have the facts to connect the defendant as to why or how they were negligent or had sufficient facts to determine if Nelson was negligent to connect him to the amputation of her leg. Additionally, at the time that Dr. Panek was retained, he opined that there were other negligent parties that counsel had not added into the suit that should be added because of their negligent conduct. Among those parties was Dr. Terry Nelson, DPM. Therefore, the Doe amendment relates back to when the Complaint was filed due to plaintiff’s ignorance. Supported Evidence: SOE Ex. B . Decl. Waters ¶23, Ex. D. Decl. Panek ¶¶6, 15, Fuller v. Tucker (2000) 84 Cal.App.4th 1163, Plaintiff’s Amended Opposition to Defendant’s Motion for Summary Judgment.” (Plaintiff’s Amended Separate Statement - Dispute to UMF No. 14.)

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 doubts 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.) 

“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.)

Code of Civil Procedure section 340.5, section 474 and the Relation Back Doctrine

The motion argues both that “Haslam failed to comply with the one-year statute of limitations as against Dr. Nelson” and that “Plaintiff had knowledge of the necessary facts to identify Moving Defendant Dr. Nelson as a potential Defendant at the time the original Complaint was filed on March 24, 2022” (Motion 13:12-13, 13:1-3.) Because, as noted below, the analysis is different under the statute of limitations issue as compared to the Doe amendment issue, the Court will examine both here.

Code of Civil Procedure section 340.5

Code of Civil Procedure section 340.5’s one year statute of limitations term:

“In an action for injury or death against a health care provider based upon such person's alleged professional negligence, the time for the commencement of action shall be three years after the date of injury or one year after the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, whichever occurs first. In no event shall the time for commencement of legal action exceed three years unless tolled for any of the following: (1) upon proof of fraud, (2) intentional concealment, or (3) the presence of a foreign body, which has no therapeutic or diagnostic purpose or effect, in the person of the injured person. Actions by a minor shall be commenced within three years from the date of the alleged wrongful act except that actions by a minor under the full age of six years shall be commenced within three years or prior to his eighth birthday whichever provides a longer period. Such time limitation shall be tolled for minors for any period during which parent or guardian and defendant's insurer or health care provider have committed fraud or collusion in the failure to bring an action on behalf of the injured minor for professional negligence.”

The limitations period begins once a plaintiff has notice or information to put a reasonable person on inquiry. (Jolly v. Eli Lilly & Co. (1988) 44 Cal.3d 1103, 1110-1112.) A plaintiff “need not be aware of the specific ‘facts’ necessary to establish the claim” for the statute to being to run. (Id. at 1111.) Rather, “[o]nce the plaintiff has suspicion of wrongdoing, and therefore an incentive to sue, she must decide whether to file suit or sit on her rights. So long as a suspicion exists, it is clear that the plaintiff must go find the facts; she cannot wait for the facts to find her.” (Id.) Thus, a “malpractice litigant is required to diligently pursue her claim through discovery of the cause of her injury. And if she fails to do so faces the prospect that the action will be time barred." (Artal v. Artal (2003) 1111 Cal.App.4th 273, 279.)

However, the one-year limitations period “does not begin to run until the plaintiff discovers both his or her injury and its negligent cause.” (Drexler v. Petersen (2016) 4 Cal. App. 5th 1181, 1189.) “Injury” in this context "refer[s] to the damaging effect of the alleged wrongful act and not to the act itself.” (Id. at 1190.)

Here, it is undisputed the complaint was filed March 24, 2022.

On March 4, 2021, during Plaintiff’s follow-up and final visit, Nelson noted that, due to the magnitude of the patient's fracture and the Charcot deformity, it was highly likely that she would require surgery and a foot amputation in the future. (UMF No. 7.) Thus, by that date, Plaintiff knew, or should have known, that some wrongful act, either by a prior treating medical professional or Nelson via the initial February 18, 2021 visit, occurred resulting in the anticipated future amputation.

Additionally, as noted by Nelson on reply, the amended declaration of Panek, Plaintiff’s expert, indicates he was retained March 16, 2023. The retention of the expert on which Plaintiff relies on did not occur until almost a year after the case was filed and is not demonstrative of Plaintiff “…go[ing] to find the facts.” 

The Court cannot say Plaintiff diligently pursued her claims against Nelson by filing this lawsuit over a year after the last visit to Nelson. The Court, in this section of its analysis, is applying only the section 340.5 standard and cases in support thereof. Section 340.5 has a reasonable diligence requirement, as noted by the case cited above. When Plaintiff returned to the hospital for a second consultation with Dr. Nelson and was informed that amputation of her foot was likely, she certainly had the requisite knowledge putting her on notice to inquire further. As to that standard, in the Court’s view, Defendant Nelson has met the initial burden on this motion that Plaintiff, as a matter of law, had at least a suspicion of wrongdoing standard under section 340.5, thus triggering Plaintiff’s accrual date of March 4, 2021, as to Nelson. The filing of the complaint March 24, 2022, therefore, is beyond the one-year statute of limitations.

Plaintiff has not carried Plaintiff’s burden in opposing this motion on the statute of limitations defense. The retention of an expert outside the initial limitations period, as well as one year after the filing of the case, is not demonstrative of the reasonable diligence required here.

Code of Civil Procedure Section 474 and Duty/Causation

The Court, therefore, does not rule on the section 474 or duty and causation arguments and opposition thereto raised by the parties.

Therefore, the Court grants summary judgment in favor of Nelson under section 340.5

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:              Leija, Jacqueline vs. Westmont Living, Inc. et al

Case No.:     VCU285994

Date:           February 27, 2024

Time:          8:30 A.M. 

Dept.           7-The Honorable Bret D. Hillman

Motion:       Motion for Approval of PAGA Settlement

Tentative Ruling: To grant the motion; Hearing as to distribution set for August 6, 2024, 8:30 am, Department 2.

The Court notes that the operative first amended complaint alleges a single cause of action under Labor Code section 2699, et seq, the Private Attorney General Act (“PAGA”) for violations of 1) unpaid wages, (2) unreimbursed expenses; (3) meal period violations, (4) rest period violations, (5) failure to pay all wages owed upon separation, (6) inaccurate wage statements, and (7) inaccurate records.

The Court granted Defendants motion to compel arbitration as to the individual PAGA claims by Plaintiff and stayed the representative PAGA claims.

The parties appear to have resolved this matter without the aid of mediation, having discussed the matter at length from the filing of this case in February 2021. The Court notes this matter was resolved after the California Supreme Court’s decision in Adolph v. Uber Technologies (2023) 14 Cal.5th 1104, which held that a plaintiff does not lose standing to assert representative PAGA claims in court merely by virtue of that plaintiff’s individual PAGA claims being compelled to arbitration.

1. Sufficiency of Amount of Settlement (Proposed Net Distribution: $27,398.04.)

The gross settlement amount is $52,000.

Plaintiff estimates approximately 211 aggrieved employees, consisting of all current and former nonexempt employees of Fresno Operations, LP who worked at Westmont of Fresno from February 16, 2022 through the date the Court signs an order approving this Settlement.

In deciding whether to grant approval of the proposed PAGA settlement, the primary issues to be decided is whether the settlement is fair, adequate, and reasonable. (Moniz v. Adecco USA, Inc. (2021) 72 Cal.App.5th 56, 77.) “Because many of the factors used to evaluate class action settlements bear on a settlement's fairness—including the strength of the plaintiff's case, the risk, the stage of the proceeding, the complexity and likely duration of further litigation, and the settlement amount—these factors can be useful in evaluating the fairness of a PAGA settlement.” (Id.) “Given PAGA's purpose to protect the public interest, we also agree with the LWDA and federal district courts that have found it appropriate to review a PAGA settlement to ascertain whether a settlement is fair in view of PAGA's purposes and policies.” (Id. citing O’Connor v. Uber Technologies, Inc. (N.D. Cal. 2016) 201 F.Supp.3d 1110, 1133.)

Here counsel for Plaintiff indicates that the settlement was reached after extensive litigation involving motion practice at the trial court level, an unsuccessful writ petition at the Court of Appeal and a several month long negotiation period. Plaintiff had access to informally provided payroll and statistical data for the covered employees. Plaintiff’s counsel provides estimates of the maximum PAGA penalty liability of $1,459,750. (Declaration of Scheppach ¶59-66.)  Counsel notes the discretionary nature of PAGA penalties and the defenses asserted in this matter support the realistic exposure of $145,975. The settlement figure reached, therefore, is approximately one third of the expected recovery. The Court finds the gross settlement amount fair, adequate, and reasonable under Moniz.

As noted above, the parties reached gross settlement figure of $52,000.  

Plaintiff’s proposed deductions from the gross settlement are as follows:

Proposed Attorney Fees (35%):

$ 18,375.00

Proposed Attorney Costs (up to):

$ 3,726.96

Proposed Administrative Costs

$ 3,000.00

Net Settlement Fund    

$ 27,398.04

LWDA Share (75% of Net Settlement Fund)

$ 20,548.53

Aggrieved Employee Share (25% of Net Settlement Fund): 

$ 6,849.51

2.  Notice

There is no notice period. The proposed notice adequately informs the aggrieved employees of adequate details regarding the case and distribution of their portion of the net settlement fund.

3. Attorneys’ Fees and Costs

Attorneys’ fees of 35% of the gross settlement fund of $52,000 or $18,375 and approval of costs not to exceed $5,000 are sought by Plaintiff’s counsel.

Counsel has utilized the percentage of common fund methodology as well as provided adequate lodestar information to evaluate the reasonableness of the fee request.

Here, Counsel indicates that the firm has spent 250 hours on this case (inclusive of the 10 proposed anticipated hours), at a rate $625 per hour, producing a lodestar of $156,250 (Declaration of Scheppach ¶¶ 73-86.)

Counsel has also provided the current costs expended in amounts of $3,726.96. (Declaration of Scheppach ¶¶ 87-89.)

The Court approves the fees and costs.

4.  Claims Administrator

The claims administrator is designated as Atticus Administration, LLC who has submitted a bid for $3,000 to administer the settlement. The Court approves the claims administrator. (Declaration of Scheppach ¶91 -Ex. 5.)

5. Unclaimed Settlement Proceeds

The Court approves the distribution of unclaimed settlement proceeds to the California Secretary of State’s Unclaimed Property Division in the name of the Aggrieved Employee, in accordance with Code of Civil Procedure section 384.

6. Release

The Court finds the proposed limited release of PAGA claims reasonable and within the law under a PAGA only settlement as to the aggrieved employees. (Arias v. Sup. Ct., (2009) 46 CA4th 969, 986-987.) Further, the Court notes that the Representative Plaintiff, though under a separate heading, appears to be releasing only the PAGA related claims, as opposed to a general release of other, unrelated claims or under Civil Code section 1542.

Therefore, the Court finds that the releases here, including Plaintiff’s, are supported by the distribution of the PAGA net settlement fund to the Aggrieved Employees, including Plaintiff. The Court notes that Plaintiff is not receiving a separate, additional amount as the named Plaintiff in this matter. (Declaration of Scheppach ¶90.)

7. LWDA Notice

The Court finds confirmation from the LWDA of receipt of proof of submission of the proposed settlement agreement. (Lab. Code, § 2699, subd. (l)(2).) (Declaration of Scheppach ¶ 41– Ex. 2.)

The Court, therefore, grants the motion and sets a hearing as to distribution of the net settlement fund to the LWDA and Aggrieved Employees on August 6, 2024, 8:30 am, Department 2.

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

Re:              Kaweah Delta Health Care District vs. George Christiansen, AIA

Case No.:     VCU292789

Date:           February 27, 2024

Time:          8:30 A.M. 

Dept.           7-The Honorable Bret D. Hillman

Motion:       Cross-Defendant Zumalt’s Motion to Compel Initial Responses by Christiansen as to (1) Form Interrogatories, Set One, (2) Special Interrogatories, Set One, (3) Requests for Production of Documents, Set One and (4) To Deem Admissions Admitted; and for sanctions.

Tentative Ruling: (1) – (3) To grant the unopposed motion and order responses, without objections, no later than thirty (30) days from the date of this hearing; (4) To grant the unopposed motion and deem the Requests for Admissions, Set One, Nos. 1 through 40 admitted; to impose sanctions of $940 in favor of Cross-Defendant Zumalt and against Cross-Complainant Christiansen and counsel of record, jointly and severally, payable no later than thirty (30) days from the date of this hearing.

Facts

On October 19, 2023, Cross-Defendant Zumalt served (1) Form Interrogatories, Set One, (2) Special Interrogatories, Set One, (3) Requests for Production of Documents, Set One and (4) Requests for Admissions, Set One, on Defendant/Cross-Complainant Christiansen.

Responses were due, pursuant to the Code of Civil Procedure, no later than November 27, 2023.

The parties appear to have exchanged communications as to the lack of responses. However, as of the date of this motion, no responses have been received.

The reply indicates that on February 14, 2024, Christiansen served unverified responses to Requests for Admissions and unverified responses to Form Interrogatories. Those responses were served with a document that states “Verification to Follow.” No responses to the Special Interrogatories or Requests for Production of Documents were provided.

Authority and Analysis

(1) and (2) Interrogatories

Based on Cross-Complainant’s failure to respond to the first set of special interrogatories, the Court orders under, Code of Civil Procedure section 2030.290(a), that Cross-Complainant’s provide full and complete verified responses without objection to Cross-Defendant’s first set of special interrogatories no later than thirty days from the date of this hearing.  

As unverified responses are tantamount to no response at all. (Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636.) Therefore, the Court makes the same order as to the first set of form interrogatories, requiring full and complete verified responses, without objections, no later than thirty days from the date of this hearing. 

(3) Requests for Production

Based on Cross-Complainant’s failure to respond to the first set requests for production of documents, the Court orders under, Code of Civil Procedure section 2031.300(a) that Cross-Complainant’s provide full and complete verified responses without objection to Cross-Defendant’s first set of requests for production of documents no later than thirty days from the date of this hearing. 

(4) Requests for Admissions

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.

As noted above, an unverified response is tantamount to no response at all. Here, Cross-Complainant has failed to serve a timely response and Cross-Defendant has moved for an order to deem the admission admitted.

Based on the foregoing, the Court grants Cross-Complainant’s motion. The facts and allegations alleged in Requests for Admissions 1 through 40 of Plaintiff’s First Set of Requests for Admission shall be deemed admitted.

Sanctions

Under Code of Civil Procedure sections 2033.280(c) (Admissions), 2030.290(c) (Interrogatories) and 2031.300(c) (Requests for Production), the Court imposes sanctions as requested by Cross-Defendant in the total amount of $940.00 ($350 per hour, two hours total for these four motions, plus the $240 filing fee for the four motions) against Cross-Complainant and counsel of record, jointly and severally, due no later than thirty 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:              Hart, Beth Mae vs. Hart, Robert

Case No.:     VCU286706

Date:           February 27, 2024

Time:          8:30 A.M. 

Dept.           7-The Honorable Bret D. Hillman

Motion:       (1) Plaintiff’s Motion for Attorneys’ Fees and (2)  Robert Hart’s Motion to Expunge Debt; (3) Plaintiff’s Application for Issuance of Sale of Dwelling (Continued from 1-9)

Tentative Ruling: (1) To grant the motion and award $2,993.75 in fees and $378 in costs, as detailed below; (2) To deny the motion (3) To deny the motion  

(1)     Plaintiff Beth Hart’s Motion for Attorneys’ Fees (for September 28, 2023 through November 16, 2023)

Facts

On June 27, 2023, this Court granted a motion by Plaintiff for attorneys’ fees as to the collection of the judgment in the amount of $7,996.25 in fees and $2,029.50 in costs. This prior motion, filed May 16, 2023 included fees up to May 10, 2023.

Plaintiff thereafter filed a second motion for fees and costs incurred May 11, 2023 to July 12, 2023, also in collection of the judgment and related specifically to the motion for receiver issue previously adjudicated. The Court granted the second motion for fees in the amount of $7,105 and for costs in the amount of $453.10.

Plaintiff thereafter filed a third motion for fees and costs incurred July 14, 2023 through September 27, 2023 as to further efforts with respect to the appointment of a receiver to effectuate the sale of property to satisfy the judgment entered in this matter. The Court granted this third motion for fees in the amount of $6,048 and costs in the amount of $3,128.

Plaintiff now files this fourth motion for fees and costs incurred September 28, 2023 through November 16, 2023. Plaintiff seeks $7,944.75 in fees and $378.00 in costs. As with the previous motions, Plaintiff seeks the fees and costs incurred as to enforcement of the judgment. Plaintiff seeks these fees pursuant to Code of Civil Procedure section 685.080(a) “because satisfaction for purposes of post-judgment motions requires payment in accordance with Code Civ. Proc. § 724.010(a); (Wertheim LLC v. Currency Corp. (2019) 35 Cal. App. 5th 1124, 1131— 1135).”

Plaintiff has provided an itemized billing statement for the Court’s review.

On February 21, 2024, Defendant Robert Hart filed a late opposition to this motion. The opposition does specifically challenge various billing entries in addition to attempting to relitigate the underlying claims, judgments and facts of this case.

Authority and Analysis

Substantively, the Court notes that Wertheim, supra,  states:

“Pursuant to the Enforcement of Judgments Law (§ 680.010 et seq.), a judgment creditor may claim authorized costs incurred while enforcing a judgment, including authorized attorney fees (§§ 685.040, 685.090). Section 685.080 requires that a motion for such costs be made before the judgment is “satisfied in full.” (§ 685.080, subd. (a).) The time limitation is “‘“to avoid a situation where a judgment debtor has paid off the entirety of what he [justifiably] believes to be his obligation in the entire case, only to be confronted later with a motion for yet more fees.”’” [citations omitted]” (Id. at 1133.)

Here, there has been no satisfaction of the Judgment in full. The motion is therefore timely.

The Court, therefore, turns to the reasonableness of the fee request.

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

To determine reasonable attorney’s fees, the court should consider the nature of the litigation, its difficulty, the amount involved, the skill required and employed in handling the matter, the attention given, the success of the attorney’s efforts, the intricacies and importance of the litigation, the labor and necessity for skilled legal training and ability in trying the cause, and the time consumed. (Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 659.) As to the reasonableness of the hours, “trial courts must carefully review attorney documentation of hours expended; ‘padding’ in the form of inefficient or duplicative efforts is not subject to compensation.” (Ketchum v. Moses, supra, 24 Cal.4th at p. 1132.) “In determining a fee's reasonableness, the court may also consider whether the motion itself is reasonable, both in terms of (1) the amount of fees requested and (2) the credibility of the supporting evidence.” (Guillory v. Hill (2019) 36 Cal.App.5th 802, 811.)

The general rule is ‘[t]he relevant “community” is that where the court is located.’ (Altavion, Inc. v. Konica Minolta Systems Laboratory, Inc. (2014) 226 Cal.App.4th 26, 71.)” (Marshall v. Webster (2020) 54 Cal.App.5th 275, 285.) “The experienced trial judge is the best judge of the value of professional services rendered in his court.” (PLCM, supra, 22 Cal.4th at 1095.)  Additionally, the determination of the value of the legal services is committed to the discretion of the trial court without necessity of expert testimony. (Cordero-Sacks, v. Housing Authority (2011) 200 Cal App 4th 1267, 1286.)

The Court agrees as to the hourly rate here for $300 as for attorney entries.

As to the number of hours and work completed, detailed time records are not required, though courts have expressed a preference for contemporaneous billing and an explanation of work. (Raining Data Corp. v. Barrenechea (2009) 175 Cal.App.4th 1363, 1375.)  “Of course, the attorney's testimony must be based on the attorney's personal knowledge of the time spent and fees incurred. (Evid.Code, § 702, subd. (a) [‘the testimony of a witness concerning a particular matter is inadmissible unless he has personal knowledge of the matter’].) Still, precise calculations are not required; fair approximations based on personal knowledge will suffice.” (Mardirossian & Associates, Inc. v. Ersoff (2007) 153 Cal.App.4th 257, 269.)  The starting point for the determination as to hours is the attorney’s submitted time records. (Horsford v. Board of Trustees of Calif. State Univ. (2005) 132 Cal. App. 4th 359, 395-397—verified time records entitled to credence absent clear indication they are erroneous.)

The Court may make a downward adjustment if the billing entries are vague, “blockbilled,” or unnecessary. (569 East County Boulevard LLC v. Backcountry Against the Dump, Inc. (2016) 6 Cal.App.5th 426, 441.)

The Court will reduce the following entries:

  • 10-17-23 - From a total of 4.5 hours to 1 hour re: ex parte request to stay, lien holder correspondence and the drafting of the OSC as to SRW (-3.5 hours);
  • 10-17-23 – From 1.4 hours to .4 hours as to reply and review of attorney fee opposition and other block billed activities as to ANG (-1 hour);
  • 10-18-23 – From 1.4 hours to .4 hours as to review of the request for sale and other block billed activities as to ANG (-1 hour);
  • 10-18-23 – From 1.75 hours total to .5 as to correspondence re: discovery and preparation of supplemental declaration as to SRW (-1.25 hours);
  • 10-19-23 – From 3.5 hours to 1 hour as to legal research and preparation of applications for order to show cause and related documents as to SRW (-2.5 hours);
  • 10-20-23 – From 1.25 hours to .5 as to preparation of another order to show cause as to SRW (-.75 hours);
  • 10-23-23 – From 1.5 hours to .5 as to preparation of documents related to the order to show cause as to SRW (-1 hour);
  • 10-24-23 – From 1 hour to .25 as to the reply to opposition and additional research re: “equivalent value” as to SRW (-.75 hours);
  • 10-26-23 – From 1 hour to 0 hours as to the motion to compel responses because the Court issued sanctions as to that motion for the fees incurred as to SRW (-1 hour);
  • 10-27-23 – From .5 hours to 0 hours as to the motion to compel for the same reason as above as to ANG (-.5 hours);
  • 10-31-23 – From 1 hour to 0 hours as to attendance re: the motion to compel for the same reasons as above as to SRW (-1 hour);
  • 11-1-23 – From 2 hours total to .5 hours as to “review of defendants record of 10-31-2023 hearing” and application of additional order to show cause documents as to SRW (-1.5 hours)
  • 11-7-23 – From 1 hour to .5 hours as to the ex parte application as to SRW (-.5 hours);
  • 11-14-23 – From 2.25 hours to .5 hours as to the blockbilled entries re: ex parte application and declaration as to SRW (-1.75 hours)

The Court, therefore, reduces the SRW hours to 8.75 total and the ANG hours to 2.95 and awards $2,993.75 in fees. 

There is no challenge to the costs sought of $378, the Court’s review of these costs indicates consistency with established filing fees and copies and the Court will award those costs as requested.

(2)  Defendant Robert Hart’s Motion to Expunge Debt

On December 22, 2023, Defendant filed this motion to “expunge debt” which appears to attempt to attack the underlying judgment rendered in this matter.  Defendant, again, seeks answers to a series of questions about his contentions, the underlying judgment and the case as a whole. Essentially Defendant reiterates his arguments that Plaintiff was not injured, the interest rate charged was not usurious, that payments were improperly credited and that the jury was misled. Defendant asserts that this case was groundless resulting in a miscarriage of justice.

To the extent that Defendant Robert seeks reconsideration of any of the Court’s rulings, the time for such motions has passed.  The time to file various other post-judgment motions challenging the judgment have likewise expired. The court declines to readdress the issues outlined in the motion as they have been previously addressed and the time for reconsideration has passed.

Defendant cites a number of cases and statutes from throughout the state and federal jurisdictions of the United States. The Court notes Defendant also filed a supplemental brief in support of this motion that contains a number of various legal maxims. This ruling will not address any of these issues, cases or statutes.

There appears to be no statutory or common law basis for Defendant Hart, at this time, to essentially relitigate and challenge the legal and factual principles at issue that resulted in the judgment against him in this matter. There is no motion to expunge debt under these circumstances.

The motion is denied.

(3) Plaintiff’s Application for Issuance of Sale of Dwelling

On January 9, 2024, the Court continued the hearing relating to the sale of 47246 Dry Creek Drive, Badger, CA 93603 (the “Badger Property”) pursuant to Code of Civil Procedure section 704.770.

The court still does not have information necessary to grant the requested relief. The court can’t determine from the information before it whether defendant judgment debtor has been served with an order to show cause or the order to show cause has been posted or served in accordance with CCP Section 704.770.

Likewise, it appears the property is a homestead as defined in CCP Section 704.780, which requires further information, again not supplied in any moving papers before the court. The court has no information about the fair market value as defined in CCP Section 704.780, and what the potential sales proceeds would be. Although some perfunctory information about liens in provided by the moving party, the court does not have the information required by CCP Section 704.780 and can’t make a determination of the proper amount of the liens and the sales proceeds to be paid to any party or lienholder.

In the absence of the statutorily required information, 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.

Re:              Keaster, Jason vs. Urbane Cafe Founders, Inc.

Case No.:     VCU301216

Date:           February 27, 2024

Time:          8:30 A.M. 

Dept.           7-The Honorable Bret D. Hillman

Motion:       Motion to Have Complaint Filed Nunc Pro Tunc

Tentative Ruling: To grant the unopposed motion.

Facts

This complaint involves a personal injury action arising from a slip and fall that is alleged to have occurred August 11, 2021. The Court’s file reflects that this complaint was filed August 23, 2023.

On January 4, 2024, Plaintiff filed this motion for an order deeming the complaint filed August 11, 2023, nunc pro tunc.

Plaintiff’s counsel indicates that its office, on August 11, 2023, submitted the following documents to its e-filing provider: Request to Waive Court Fees FW-001; Order on Court Fee Waiver FW-003; Civil Case Cover Sheet; Summons; Complaint – Personal Injury, Property Damage, Wrongful Death PLD-PI-001, Cause of Action – Premises Liability PLD-PI-001(4) (the “Documents”).

The Documents were e-filed using One Legal LLC by Plaintiff’s counsel’s paralegal Holleman. The issue involves the Court’s electronic acceptance of the fee waiver and order on fee waiver as follows.

First, Ms. Holleman checked the box when adding the Plaintiff that asks if there is a Fee Waiver Request. Upon checking this box, an option appears to upload the Request to Waive Court Fees FW-001, which Ms. Holleman did.

Ms. Holleman then added the defendant’s name and was taken to the page where documents are uploaded. Once there, Ms. Holleman discovered the option to select the document Order on Court Fee Waiver FW-003 was not listed.

Plaintiff indicates that some courts do not require the order to be filed with the request and instead, upon approval, the order will be prepared by the court clerk. Unsure as to the procedure of the County of Tulare, Ms. Holleman created one pdf containing both documents: Request to Waive Court Fees FW-001 and Order on Court Fee Waiver FW-003.

When Ms. Holleman was prompted to upload the Request to Waive Court Fees, Ms. Holleman uploaded the pdf containing both the request and order. Ms. Holleman included a message to the clerk; “I have no other option. Please accept this filing, I included the order with the fee waiver app. since some courts require it and some do not.”

Ms. Holleman submitted the filing on August 11, 2023 at 4:17 p.m.

On August 15, 2023 at 8:51 am, the Notice of Court Rejection of Electronic Filing was generated by the clerk of the Superior Court of California, County of Tulare stating: “Reject Reason Other: The Order on Fee Waiver must be submitted separately from the Request before the documents can be filed.”

On August 23, 2023 at 8:23AM, the Civil Case Cover Sheet; Summons; Complaint – Personal Injury, Property Damage, Wrongful Death PLD-PI-001, and Cause of Action – Premises Liability PLD-PI-001(4) were filed through the One Legal portal, Order #21061521.

No fee waiver appears sought via the second attempt to file this case and the filing fee of $435.00 was paid. 

Plaintiff personally served Defendant Urbane Café Founders, Inc. on January 26, 2024 with the summons, complaint, this motion, and related documents. No opposition appears to have been filed.

Authority and Analysis

“…[T]he local superior court may not condition the filing of a complaint on local rule requirements. Instead, so long as a complaint complies with state requirements, the clerk has a ministerial duty to file.” (Mito v. Temple Recycling Center Corp. (2010) 187 Cal.App.4th 276, 280, quoting Carlson v. Department of Fish & Game (1998) 68 Cal.App.4th 1268, 1270.)

However, there appears to be an exception to this rule where there is a filing fee involved. In Duran v. St. Luke's Hospital (2003) 114 Cal.App.4th 457, 459, the appellate court noted: “An unbroken line of decisions by our Supreme Court holds that it is mandatory for court clerks to demand and receive the fee required by statute before documents or pleadings are filed.”

Therefore, the issue is whether it was within the clerk’s ministerial duty authority here to reject the filing that contained no filing fee, but rather an improperly formatted fee waiver and order.

In Duran, the plaintiff's attorney used an overnight carrier to deliver a medical malpractice complaint to a superior court for filing a few days prior to the expiration of the statute of limitations. (Id. at 458.) The filing package included a check for the filing fee that “was $3 short of the amount required to file [the] complaint.” (Id.) The clerk of the court received the pleading one day prior to the deadline of the applicable statute of limitations but refused to file it because of the insufficient funds. (Id. at 459.) "By the time plaintiffs' attorney learned of the situation and tendered the correct filing fee, the statute of limitations had expired.” (Id.) The court of appeal upheld a judgment of dismissal based on the statute of limitations.

The Duran court cited to and relied upon on Government Code section 6100 and “[a]n unbroken line of decisions by our Supreme Court hold[ing] that it is mandatory for court clerks to demand and receive the fee required by statute before documents or pleadings are filed.” (Id.)  

However, the Court notes that facts of Duran do not involve electronic filing, fee waiver issues and rejection thereof. Nevertheless, in both cases, an insufficient filing fee was submitted with the initial complaint: In Duran, the payment was $3 less than the required filing fee and in the case at hand, there was no attempt to pay the filing fee because of the submission of the fee waiver.

However, the Duran opinion also predates California Rule of Court, rule 1.20 [“Unless otherwise provided, a document is deemed filed on the date it is received by the court clerk”].

In the Court’s view, the fee waiver issue presents a separate, distinct issue from that presented in Duran. Counsel’s office appears to have made diligent efforts to properly submit the fee waiver form and order in a method and manner pursuant to the Code of Civil Procedure. Plaintiff’s counsel’s office recognized the potential issue upon the initial filing as to the separation of the form and order, but could not find a technical way to submit the electronic filing request in a way that would have permitted processing of the fee waiver.

The Court, therefore, grants the unopposed 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.

Re:              Brown, Anamarie vs. Ball, Mark

Case No.:     VCU295533

Date:           February 27, 2024

Time:          8:30 A.M. 

Dept.           7-The Honorable Bret D. Hillman

Motion:       Defendant’s Motion for Judgment on the Pleadings

Tentative Ruling: There is no tentative ruling.  On February 21, 2024, plaintiffs filed a request for dismissal of the entire action that was entered as requested.  

Re:              Jimenez, Ulises vs. Delta View Farms, LLC

Case No.:     VCU293548

Date:           February 27, 2024

Time:          8:30 A.M. 

Dept.           7-The Honorable Bret D. Hillman

Motion:       Continued Motion for Preliminary Approval of Class Action and PAGA Settlement

Tentative Ruling: To grant the motion; to set the Final Approval Motion for September 10, 2024, 8:30 am, Dept. 2. 

This Court previously continued this matter for additional information from Plaintiff’s counsel as to the calculation of the lodestar for comparison to the fee requested. On February 20, 2024, supplemental documents were filed in support of the motion.

Attorneys’ Fees and Costs

Attorneys’ fees of 33.3% of the gross settlement fund of $270,000 or $90,000 and costs not to exceed $20,000 are sought by Plaintiff’s counsel.

Counsel has utilized the percentage of common fund methodology as well as provided adequate lodestar information to evaluate the reasonableness of the fee request.

Here, Counsel indicates that the firm has spent 265 hours on this case, at rates ranging from $550 to $150 per hour totaling a lodestar of $107,462.50, resulting in a negative lodestar multiplier of .83. (Supplemental Declaration of Korobkin ¶ 4.)

Counsel has also provided the current costs expended in amounts of $11,051.30 (Supplemental Declaration of Korobkin ¶8.) The Court preliminarily approves costs not to exceed $20,000.00.

The Court further finds that Plaintiff’s counsel are experienced class action attorneys through the declarations of counsel.

Therefore, the Court preliminarily approves the deductions from the gross settlement of $285,000 as follows:

Preliminarily Approved Attorney Fees (33.3%):

$90,000

Preliminarily Approved Attorney Costs (up to):

$20,000

Preliminarily Approved Enhancement Payment to Plaintiff :

$5,000

Preliminarily Approved Settlement Administrator Costs

$9,000

Preliminarily Approved PAGA Payment (Total)

$25,000

Preliminarily Approved Net Settlement Amount

$136,000

Therefore, the Court sets the Final Approval Motion for September 10, 2024, 8:30 am, Dept. 2. 

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

Re:              In the Matter of FLORES, AN INDIVIDUAL, YESENIA

Case No.:     PCU304121

Date:           February 27, 2024

Time:          8:30 A.M. 

Dept.          19-The Honorable Glade F. Roper

Motion:       Continued Petition for Relief from Claims Statute

Tentative Ruling: The Court’s tentative ruling is to deny the Petition as to Respondent’s Respondents City of Porterville and Sierra View Local Health Care District, but to reserve its final ruling under Government Code section 946.6(e) based upon any evidence that may be presented at the hearing; Counsel may appear in any manner; the Court notes that it issues no ruling as to Respondents State of California and County of Tulare based upon a lack of proper service of the Petition on these Respondents.

Background Facts

The Court continued this matter previously and sought supplemental facts underling the calendaring error claimed as the basis for this petition. The Court is in receipt of Plaintiff’s counsel’s declaration dated February 2, 2024 in response to the Court’s prior ruling.

The Court notes that Respondents City of Porterville and Sierra View Local Health Care District were served by personal service of this petition on January 17, 2024. These Respondents have filed oppositions to the petition.

The Court notes that the third Respondent, State of California, and fourth Respondent, County of Tulare, would not appear to have been served personally with this petition. “It is, therefore, concluded that service of the petitions should have been effected in the same manner as service of summons in order to give the court jurisdiction to enter an order against the public entity.” (Thierfeldt v. Marin Hosp. Dist. (1973) 35 Cal.App.3d 186, 200.) Thus, this Court lacks jurisdiction to relieve Plaintiff as to the State of California and County of Tulare absent service in the same manner as service of summons.

It appears that Plaintiff’s counsel’s supplemental declaration filed February 2, 2024 was served on Respondents by mail.

Facts

Petitioner seeks relief from the claims presentation requirement via this petition as to a medical malpractice that accrued August 16, 2022.

The petition states that on August 16, 2023, Petitioner applied to Defendants Sierra View Local Health Care District, Tulare County, City of Porterville, and State of California for permission to file a late claim under Government Code section 911.4. No presentation of claim had occurred as to any Defendant under Government Code section 911.2 within the six month time period. As the Court lacks jurisdiction over the State of California and County of Tulare, the Court will not further discuss the application to present a late claim process as to these public entities.

As to Sierra View, Plaintiff addressed the August 16, 2023 late claim application to “Sierra View Local Health Care District, Attn: Gilda Sada 465 West Putman Ave. Porterville, CA 93257.”

As to the City of Porterville, Plaintiff addressed the application to “City Clerk City of Porterville 291 N. Main Street Porterville, CA 93257.”

The City of Porterville denied the application in writing on September 6, 2023.

Sierra View, however, did not respond to the application and it was deemed denied by operation of law after 45 days on September 30, 2023.

As to the underlying basis for the petition, Petitioner’s counsel states:

 “Petitioner's claim was not filed during the statutory period specified by Government Code Section 911.2 against the SIERRA VIEW LOCAL HEALTH CARE DISTRICT;TULARE COUNTY; CITY OF PORTERVILLE; STATE OF CALIFORNIA due to mistake, inadvertence, surprise, and excusable neglect of Petitioner’s counsel’s staff. Petitioner’s counsel’s staff erroneously calendared the six month deadline for September 2023 instead of February 2023. Upon a statute review of the August cases, in August 2023, it came to Plaintiff’s counsel’s attention that the government claim deadlines were calculated incorrectly.” (Declaration of Fradkin ¶2.)

The supplemental declaration adds further that Plaintiff “…retained Downtown L.A. Law Group on August 17, 2022. (Supplemental Declaration of Fradkin ¶4.)

As to the calendaring error, “At the time we were retained, the file was set up in our internal case management system where all pertinent case information is input including applicable claim deadlines and statutes of limitations, which are also calendared.” (Supplemental Declaration of Fradkin ¶5.) “Plaintiff’s counsel’s staff accidentally entered the wrong numbers for the claims deadlines and statute of limitations. The tort claim deadline was entered as September 16, 2023, instead of February 16th, 2023.” (Supplemental Declaration of Fradkin ¶6.)

Counsel further states “Plaintiff’s counsel’s office diligently pursuing the claim including gathering documents and investigating the claim.” (Supplemental Declaration of Fradkin ¶7.) “This case came up on our office’s calendar for review, as is standard practice, 30 days prior to the entered deadline. Upon review of the file, it came to our attention that the date for the deadline was accidentally mis-calendared by our staff at the time of intake, in our case management software. Our office, thereafter, submitted the Government Claims forms right away.” (Supplemental Declaration of Fradkin ¶9.) “Upon information and belief, at the time the errors were made, my office was in transition and various support positions were either being filled with new hires and/or other support staff were reallocated. I believe the error was made by one of the newer support staff members in entering the deadlines into the file and onto the calendars.” (Supplemental Declaration of Fradkin ¶6.)

In opposition, Respondent Sierra View argues the late claim application was improperly presented because Plaintiff failed to present it to the “board” as required by Government Code section 946.6(b). Additionally. Sierra View argues a lack of reasonable diligence and no excusable mistake, inadvertence, surprise or neglect occurred as to the initial failure to present the initial claim.

Respondent City of Porterville argues Plaintiff has failed to establish excusable neglect under the law.

Authority and Analysis

Tort Claims Act

Under the Government Claims Act (the “Act”), a plaintiff bringing suit for monetary damages against a public entity or employees thereof must first present a claim to the public entity (“government claim”) which must be acted upon or deemed rejected by the public entity.  (Gov. Code § 945.4) To be timely, a government claim for damages must be presented to the public entity within 6 months of the date the cause of action accrued.  (Gov. Code §911.2.)

Here, it appears undisputed that the accrual date of this cause of action is August 16, 2022.

It is further undisputed that Petitioner did not present a claim to any public entity defendant within the six month time period.

Rather, Petitioner appears to have mailed applications to present a late claim to Sierra View and City of Porterville on August 16, 2023. The Court, therefore, will examine the requirements of the late claim application as a condition precedent to this application for relief.

As noted above, Sierra View specifically challenges the manner in which the application was addressed and presented to it.

Petitioner’s Application for Late Claim

When, as here, Petitioner fails to present a government claim within the 6-month period, he or she may apply to the public entity for permission to file a late claim. (Gov. Code §911.4.)  Such an application must be presented within a reasonable time, and not later than one year after the cause of action’s accrual. (Gov. Code §911.4(b).)

Here, the application for presentation of late claim was mailed August 16, 2023, which is exactly one year from the date of accrual and within 911.4(b).  Government Code section 915.2(a) states the following, as to the date the application is deemed presented:

If a claim, amendment to a claim, or application to a public entity for leave to present a late claim is presented or sent by mail under this chapter, or if any notice under this chapter is given by mail, the claim, amendment, application, or notice shall be mailed in the manner prescribed in this section. The claim, amendment, application, or notice shall be deposited in the United States post office, a mailbox, sub-post office, substation, mail chute, or other similar facility regularly maintained by the government of the United States, in a sealed envelope, properly addressed, with postage paid. The claim, amendment, application, or notice shall be deemed to have been presented and received at the time of the deposit.” (emphasis added.)

Thus, neither the date of mailing nor deeming the application presented and received at the time of deposit would appear to be in dispute. However, Sierra View challenges to whom the application was addressed, citing Government Code section 946.6(b)’s requirement that “(b) The petition shall show each of the following: (1) That application was made to the board under Section 911.4 and was denied or deemed denied…” Sierra View focuses on the term “made to the board” and argues that addressing the application to Sierra View at the attention of “Gilda Sada” is not consistent with “made to the board.”

To start, the Court notes the memorandum of points and authorities states, without evidentiary support via declaration or documentation, that Gilda Sata is “SVMC's Risk Claims Coordinator.” (Sierra View’s Opposition 3:21.)  What is presented to the Court is simply argument of counsel. (See Fuller v. Tucker (2000) 84 Cal.App.4th 1163, 1173 [“Argument of counsel is not evidence”]; See also Ponte v. County of Calaveras (2017) 14 Cal.App.5th 551, 556 [“the arguments of counsel in a motion are not a substitute for evidence...”)

Thus the Court will examine whether addressing the application as noted above is proper under the law.

Section 946.6(b)(1) expressly requires the application made to the board under section 911.4.

Section 911.4(b) notes “(b) The application shall be presented to the public entity as provided in Article 2 (commencing with Section 915)…“ 

As applicable to Sierra View, section 915 of the Government Code, subsection (a) states:

“(a) A claim, any amendment thereto, or an application to the public entity for leave to present a late claim shall be presented to a local public entity by any of the following means:

(1) Delivering it to the clerk, secretary, or auditor thereof.

(2) Mailing it to the clerk, secretary, auditor, or to the governing body at its principal office.

(3) If expressly authorized by an ordinance or resolution of the public entity, submitting it electronically to the public entity in the manner specified in the ordinance or resolution.”

While 946.6(b)(1) uses the express language “to the board” the underlying sections referenced, 911.4 and 915 appear to permit presentation through mail to the clerk, secretary, auditor or governing body at its principal office.

Sierra View presents no evidence that mailing the late claim to “Sierra View Local Health Care District Attn: Gilda Sada 465 West Putman Ave. Porterville, CA 93257” is not mailing to the governing body at its principal office.

That Sierra View did not respond to the application and that it was deemed denied by operation of law is not dispositive to the Court, absent declarations from Sierra View personnel, that the application was improperly addressed under section 915.

“Filing a late-claim application within one year after the accrual of a cause of action is a jurisdictional prerequisite to a claim-relief petition.” (Munoz v. State of California (1995) 33 Cal.App.4th 1767, 1779.) As to Sierra View and the City of Porterville, the late claim application appears to have been timely presented and the Court, as to those two Respondents, will evaluate the merits of the petition.

Petition for Relief from Claims Act (Section 946.6)

Timeliness of Petition

The Court notes that if the public entity denies the application for permission to file a late claim or the application is denied after passage of time, a plaintiff may file a civil petition for relief from the requirements of section 945.4 of timely claim presentation prior to suit.  (Gov. Code §946.6.) 

The petition must be filed within six months after the application to the public entity is denied or deemed to be denied. (Govt. Code §946.6(b).)

Here, it is undisputed that this Petition, filed December 12, 2023, is timely based upon the City’s rejection on September 6, 2023 and Sierra View’s rejection by matter of law after 45 days on September 30, 2023.

Petition Requirements

As to the substantive requirements of such a petition, it must show: (1) that an application was made to the public entity under section 911.4 and was denied or deemed denied; (2) the reason for failure to timely present the claim to the public entity within the time limit specified in section 911.2; and (3) the information required by section 910.  (Govt. Code §946.6(b).)

There is no dispute as to (1), as addressed above. Further there is no dispute as to (3), as each application for presentation of late claim contained the requisite claim information under section 910.

Reason for Failure to Timely Present Claim

As to the reason for failure to present the claim, “(a) the failure to timely present the claim was through mistake, inadvertence, surprise, or excusable neglect, unless the public entity establishes that it would be prejudiced in the defense of the claim if the court relieves the petitioner from the requirements of section 945.4…”  (Govt. Code §946.6(c).)

The showing required for relief under Government Code section 946.6 because of mistake, inadvertence, surprise, or excusable neglect is the same as required under Code of Civil Procedure 473 for relieving a party from a default judgment. (Viles v. State (1967) 66 Cal. 2d 24, 29.) “Although the statutes refer, as a requirement for relief, to 'mistake, inadvertence, surprise or excusable neglect,' only 'neglect' is qualified by the adjective 'excusable.' However, it is uniformly held that for relief on any or all of the stated grounds it must be shown that one's misconception was reasonable, or that it might have been the conduct of a reasonably prudent person under similar circumstances.” (Kaslavage v. West Kern County Water Dist. (1978) 84 Cal.App.3d 529, 539 n.1.)

The Court notes that “Section 946.6 is a remedial statute intended to provide relief from technical rules which otherwise provide a trap for the unwary claimant. [citation] The remedial policies underlying the statute are ‘that wherever possible cases be heard on their merits, and any doubts which may exist should be resolved in favor of the application.’ [citation].” (Ebersol v. Cowan (1983) 35 Cal.3d 427, 435.)

The court in Dep't of Water & Power v. Superior Court (2000) 82 Cal.App.4th 1288, 1293 noted that “The mere recital of mistake, inadvertence, surprise or excusable neglect is not sufficient to warrant relief.” Further, “[t]here must be more than the mere failure to discover a fact; the party seeking relief must establish the failure to discover the fact in the exercise of reasonable diligence” including establishing “diligen[ce] in investigating and pursuing the claim” and establishing “the necessary elements justifying relief by the preponderance of the evidence.” (Id.)

The Court agrees that De Vore v. Department of California Highway Patrol (2013) 221 Cal.App.4th 545, Viles v. State of California (1967) 66 Cal.2d 24 and  Kaslavage v. West Kern County Water Dist., (1978) 84 Cal.App.3d 529 are distinguishable from the facts of the instant case and do not support Petitioner’s requested relief here. Additionally, the Emergency Rules instituted as a result of COVID-19 would not assist Petitioner. The Court has found that Petitioner failed to present a timely claim but timely presented the late claim application by mailing.

Here, the Court is presented with a calendaring issue and the Court will examine the calendaring issue and reasonable diligence cases below.

Calendaring Errors and Reasonable Diligence

The Court notes that “…‘calendar errors by an attorney or a member of his staff are, under appropriate circumstances, excusable.’ [citation omitted.]” (Tackett v. City of Huntington Beach (1994) 22 Cal.App.4th 60, 65.)

In Tackett, the Appellate Court affirmed the trial court's judgment denying the petition for relief, holding that it was impossible to characterize neglect as excusable when appellant's attorney had not described the circumstances of the calendaring error. (Id. at 66.)  The court further held counsel had not established a calendaring error with declarations or other competent evidence, nor did he provide an explanation for the total failure to act during the five months after appellant became a client and the six months after respondent city denied the application for leave to file a late claim. (Id.)

In Nilsson v. Los Angeles (1967) 249 Cal.App.2d 976, 980 the court found “calendar errors by an attorney or a member of his staff are, under appropriate circumstances, excusable.” However, while the court noted “the law firm's failure to calendar the then 100-day statute for filing a tort claim was unexplained, the reviewing court determined it was excusable,” this appears to be based upon a failure to object to the declaration and its contents by the public entities. The Nilsson court noted:

“The City points out that the affidavit of appellant's attorney does not state facts showing how the calendaring error occurred in that it does not indicate what office procedure was followed in order to make timely entries, nor does it indicate who made the error.  We agree that the affidavit sets forth the crucial event in conclusional terms; however, conclusional or not, the averments of the affidavit became competent evidence when no objection to their use was made in the trial court. [citations omitted] The failure to show an established office calendaring procedure was not a critical omission. (See Toon v. Pickwick Stages, Inc., supra, 66 Cal.App. 451, 453 [no established procedure, several changes in office staff]; compare H. G. B. Alexander & Co. v. Martz, supra, 90 Cal.App. 360, 361 [same clerk for eight years].) Under the circumstances of this case the trial court's denial of the petition for leave to present a late claim was an abuse of its discretion.” (Id. at 982-983.) (emphasis added.)

In Renteria v. Juvenile Justice, Department of Corrections and Rehabilitation (2006) 135 Cal.App.4th 903, the Appellate Court found an attorney's reliance on an existing office calendar system was not unreasonable, nor was it unreasonable for the calendaring secretary to remove the six-month public entity statute of limitations from the calendar under the particular circumstances of the case. (Id. at 907.) The secretary had removed the deadline based on her assumption the public entity had received notice of that claim as the entity had promised to preserve evidence for litigation of the claim. (Id.)

Renteria noted: “‘A number of cases deal with the realities of office practice, including the inevitable misfiling of papers or erroneous clerical entries, and usually this neglect is considered excusable.’” (Id. at 911.) Renteria concluded that:

“The attorney's reliance on an existing office calendar system was not unreasonable. ‘Generally lawyers who are actively engaged in professional duties adopt a system or plan by which their manifold duties may be directed to their attention, and they become so accustomed to the functioning of the system that when a break in the chain occurs, they should not be held to the same strict accountability as though the habit of reliance upon the system had not been formed.’ [citation omitted]” (Id. at 912)

While the calendaring error in Renteria was based upon some act by the public entity that caused the law office to remove the calendaring deadline, there is no such similar factual situation before the Court. Further, there is no explanation as to why a 13 month statute of limitations reminder was set in the first place on this type of case. The general and conclusory statement, which is not even based upon personal knowledge, “Upon information and belief, at the time the errors were made, my office was in transition and various support positions were either being filled with new hires and/or other support staff were reallocated. I believe the error was made by one of the newer support staff members in entering the deadlines into the file and onto the calendars” is wholly insufficient to support the relief requested here. (Supplemental Declaration of Fradkin ¶6.)

Additionally, the supplemental declaration indicates that Petitioner became a client one day after the accrual date. (Supplemental Declaration of Fradkin ¶4.) However, instead of calendaring a six-month date in February, a thirteen-month date in September was calendared as to the filing of the initial claim. (Supplemental Declaration of Fradkin ¶¶ 5. 6.) The error was discovered, pursuant to “standard practice,” one month before the incorrect September calendar entry based upon a review of the upcoming statutory deadlines. (Supplemental Declaration of Fradkin ¶¶7, 9.) The declarations by Petitioner’s counsel, however, fail to establish diligence between the time the Petitioner retained counsel and the mailing of the late claim application almost a year later. The statement “Plaintiff’s counsel’s office diligently pursuing the claim including gathering documents and investigating the claim” is too general for the Court to find diligence, even under the Code of Civil Procedure section 473(b) standard. Rather, a lack of diligence is demonstrated by the facts presented. Petitioner retained counsel immediately, only for counsel to fail to present a six month claim and wait until the very last day to mail the late claim application. Almost a year had elapsed without sufficient explanation as to Counsel’s actions during that time. In the Court’s view, any amount of significant work on this matter at any time during the year Petitioner retained counsel would have caused a reasonably diligent attorney and firm to discover the error at an earlier time than the last possible day under section 911.4 to present the late claim application.

Therefore, the Court does not find a sufficient factual basis via either declaration submitted in support of this Petition to find excusable mistake, neglect, inadvertence or surprise, nor reasonable diligence in investigating and pursuing the claim.

Government Code section 946.6(e)

In ruling on a claim relief petition, the “court shall make an independent determination upon the petition. The determination shall be made upon the basis of the petition, any affidavits in support of or in opposition to the petition, and any additional evidence received at the hearing on the petition.” (Gov. Code § 946.6, subd. (e).) (emphasis added.) Where no testimony is received, the trial court may rule on the basis of the petition and any declarations. (Santee v. Santa Clara County Office of Educ. (1990) 220 Cal.App.3d 702, 708-709.)

Therefore, while the Court’s tentative ruling is to deny the petition as to Respondents City of Porterville and Sierra View, the Court recognizes its duty under the Government Code to determine the Petition based upon any additional evidence received at the hearing. Counsel may appear in any manner.

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

Re:              Bank of America, N.A. vs. Quevedo, Angela T

Case No.:     PCL301829

Date:           February 27, 2024

Time:          8:30 A.M. 

Dept.          19-The Honorable Glade F. Roper

Motion:       Plaintiff’s Motion Deem Admissions Admitted

Tentative Ruling: To grant the motion and deem the requests for admission admitted

Facts

This is collections case. On or about November 22, 2023, 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 5 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 5 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.

Re:              LVNV Funding LLC vs. Tovar, Fatima

Case No.:     PCL298346

Date:           February 20, 2024

Time:          8:30 A.M. 

Dept.          19-The Honorable Glade F. Roper

Motion:       Plaintiff’s Motion to Enter Judgment

Tentative Ruling: To grant the motion.

Facts

On May 15, 2023, Plaintiff filed this action against Defendant for money due on breach of contract money lent, paid or expended, in the principal amount of $4,405.18.

Defendant was served via substitute service on June 5, 2023.

Thereafter, on August 11, 2023, Plaintiff filed a notice of conditional settlement of entire case, with a dismissal to be filed no later than November 21, 2024. No dismissal has been filed.

On December 18, 2023, Plaintiff filed this motion for entry of judgment pursuant to a settlement agreement between the parties executed by Defendant on July 3, 2023. Defendant acknowledged the principal sum of $4,405.18 owed on account number 4592. This amount would be deemed satisfied pursuant to the agreement if Defendant paid $400 on or before June 13, 2023 and $400 each month until a total of $4,405.18 was paid.

In the event of default, the stipulation indicates that Plaintiff is entitled to entry of judgment for the judgment amount noted above, less any credits.

The stipulation indicates that the Court shall retain jurisdiction under Code of Civil Procedure section 664.6. However, the Court notes that this matter has not been dismissed and the Court has not lost jurisdiction over the parties and this matter.

Plaintiff indicates that Defendant made two payments of $400 each, for a total of $800, but has not made any payments thereafter and is in breach of the stipulation.

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.”

“The court’s retention of jurisdiction under section 664.6 includes jurisdiction over both the parties and the case itself, that is, both personal and subject matter jurisdiction.” (Lofton v. Wells Fargo Home Mortgage (2014) 230 Cal.App.4th 1050, 1061.) “Section 664.6 permits the trial court judge to enter judgment on a settlement agreement without the need for a new lawsuit.” (Osumi v. Sutton (2007) 151 Cal.App.4th 1355, 1360.)

As indicated above, the Court retains jurisdiction over the parties and this matter and therefore is prepared to “enter judgment pursuant to the terms of the settlement.”

Defendant appears to have breached the settlement, based upon the declaration of Plaintiff’s counsel and, the Court, having no opposition, grants the motion and enters judgment in the amount requested of $3,944.68, consisting of the principal amount due of $4,405.18 plus the costs of $285.00 less credits for the $800.00 paid.  

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

Examiner Notes for Probate Matters Calendared

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