Tentative Rulings

The Tentative Rulings for Tuesday, November 18, 2025, are:

Re:              Gonzalez, Nicolas vs. Sun Pacific Farming Cooperative, Inc.

Case No.:     VCU283014

Date:           November 18, 2025

Time:          8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:  Hearing re: Final Distribution of Settlement

Tentative Ruling: On June 13, 2025, the Court signed the amended proposed order granting final approval of the settlement in this matter. On November 10, 2025, the settlement administrator filed a declaration indicating that the check cashing deadline is January 13, 2026. Therefore, the Court continues this hearing to February 10, 2026.  No appearances are required. 

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:              Renteria, Iris vs. Land O'Lakes, Inc.

Case No.:     VCU315751

Date:           November 18, 2025

Time:          8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motions:      Defendant’s Demurrer and Motion to Strike

Tentative Ruling:   To sustain the defendant’s demurrer with leave to amend. 

Defendant Land O’ Lakes, Inc. demurrers to the two causes of action in plaintiff Iris Renteria’s first amended complaint and moves to strike its “class allegations.”

Renteria pleads two causes of action: (1) for public injunctive relief for violation of Business and Professions Code section 17200, et seq.; and (2) for class action relief for violation of Business and Professions Code section 16600 et seq.

Renteria alleges she was employed by defendant from February 2021 to January 2023, when she was terminated by defendant. 

Renteria’s claims arise entirely from the inclusion of the following non-solicitation provision in an Invention and Trade Secret Agreement that defendant required her to sign upon commencement of her employment with defendant:

“While I am employed by Company and for one (1) year after the termination of my employment, I will not employ or solicit any Company employee, directly or indirectly, for employment by a firm or company engaged in or which is about to engage in the design, development, manufacturing, or marketing of any product, process, or service which resembles or competes with a product, process, or service about which I acquired proprietary information during employment with Company.”

Renteria states two claims against defendant, as revealed in allegations under both of her causes of action, which are:

1. that the non-solicitation provision is void under Business and Professions Code section 16600, under which “every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void”; and

2. that the non-solicitation provision constituted a “noncompete agreement” within the meaning of Business and Professions Code section 16600.1 (which makes it “unlawful … to require an employee to enter a noncompete agreement, that does not satisfy an exception in this chapter” (subd. (a))) and that defendant violated subdivision (b)(1) of section 16600.01, which requires an employer to notify “current employees, and … former employees employed after January 1, 2022, whose contracts include a noncompete clause, or who were required to enter a noncompete agreement, that does not satisfy an exception to this chapter” “that the noncompete clause or noncompete agreement is void,” by not having provided such notification to Renteria. 

In her first cause of action, Renteria alleges “Defendant has engaged in unlawful business acts by including the non-solicitation provision in the Agreement and failing to notify Plaintiff by February 14, 2024, that the non-solicitation provision in her Agreement is void”; that “Plaintiff is informed and believes, and thereon alleges, that Defendant has similarly included the non-solicitation provision, or substantially similar provisions, in the contracts of other members of the public employed by Defendant in California and has not advised them that such provisions are void”; and “[t]herefore,” that “Plaintiff seeks injunctive relief on behalf of the public (i.e., public injunctive relief) (a) notifying all current and former California employees who worked for Defendant and had an unlawful non-solicitation provision in their contracts that such provisions are void and unenforceable, and (b) enjoining Defendant from including and/or attempting to enforce such provisions in the contracts of their California employees in the future.”

Renteria additionally seeks, as part of her first cause of action, “her attorneys’ fees and costs.”

Regarding Renteria’s second cause of action, she alleges that she seeks to represent the following class and subclass:

A class composed of all persons employed by defendant from December 3, 2020, through trial of this action, whose contracts included “an unlawful non-solicitation provision.”

A subclass of all persons who were employed by defendant at any time on or after January 1, 2022, whose “contracts … included an unlawful non-solicitation provision, but who did not receive notice by February 14, 2024, from Defendant that the non-solicitation provision in their employment-related contracts were void.”

Under her second cause of action, Renteria alleges, as pertinent to claim (i) summarized above, that defendant “included [the non-solicitation provisions from her Invention and Trade Secret Agreement], or a provision substantially similar to this provision, in the employment-related contracts of the Class”; that “Plaintiff and the Class have been harmed by Defendant’s inclusion of the non-solicitation provisions in their employment-related contracts, in an amount to be determined at trial”; and that “Plaintiff seeks injunctive relief, on behalf of herself and the Class, prohibiting Defendant from seeking to enforce the non-solicitation provisions in included in its employment-related contract.”

And, under her second cause of action, as pertinent to claim (ii) summarized above, that the non-solicitation provision “acts as a de facto non-compete in that it restrains Plaintiff from engaging in her profession”; that “Defendant failed to comply with California Business and Professions Code section 16600.1 by failing to notify Plaintiff by February 14, 2024, that the non-solicitation provision in her employment contract is void”; that “Plaintiff is informed and believes, and thereon alleges, that Defendant has similarly included the non-solicitation provision, or substantially similar provisions, in the contracts of the Notice Subclass but has not advised the Notice Subclass that such provisions are void”; that “Plaintiff and the Notice Subclass have been harmed by Defendant’s failure to advise, or timely advise, Plaintiff and the members of the Notice Subclass that the non-solicitation provisions in their employment-related contracts are void, in an amount to be determined at trial”; and that “Plaintiff seeks injunctive relief, on behalf of herself and the Notice Subclass, requiring Defendant to issue the notice required by Section 16600.1, advising that the non-solicitation provision is void.”

Further, again under the second cause of action, Renteria indicates that she “and the Class and Notice Subclass also seek their attorney’s fees and costs.”

ANALYSIS

Plaintiff’s complaint significantly depends on the legal proposition that Business and Professions Code section 16600 generally renders non-solicitation agreements void in California as a matter of law. 

The lead issue presented in defendant’s challenge to the first amended complaint on demurrer concerns whether this is, in fact, the case.   Defendant contends it is not; that Business and Professions Code section 16600 does not prohibit employee non-solicitation clauses.

The court does not reach this issue here but notes the parties each cite a number of cases in support of their respective positions on the validity of non-solicitation agreements under California law. 

The court instead finds that Renteria fails to allege facts sufficient to establish standing and begins by noting at the outset that most of the cases cited by the parties arise from suits by a party attempting to enforce a non-solicitation agreement against a party alleged to have violated it by either hiring or soliciting employees of the suing party.  (See e.g., Loral Corp. v. Moyes (1985) 174 Cal.App.3d 268 [219 Cal.Rptr. 836] (Moyes); VL Systems, Inc. v. Unisen, Inc. (2007) 152 Cal.App.4th 708 [61 Cal.Rptr.3d 818]; Fillpoint, LLC v. Maas (2012) 208 Cal.App.4th 1170 [146 Cal.Rptr.3d 194]; AMN Healthcare, Inc. v. Aya Healthcare Services, Inc. (2018) 28 Cal.App.5th 923 [239 Cal.Rptr.3d 577] (AMN).)

One California case cited extensively by both parties, Edwards v. Arthur Andersen LLP (2008) 44 Cal.4th 937 [81 Cal.Rptr.3d 282, 189 P.3d 285], involved a suit in which a former employee alleged a noncompetition agreement violated section 16600, but that case expressly did not address non-solicitation agreements.  (Id., at p. 946, fn. 4.)

The posture of these cited cases is notable because, in cases where a defendant is alleged to have violated the provisions of a non-solicitation agreement, it is readily discernable that the defendant has a direct interest relative to assertion of section 16600’s prohibition against contracts “by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind” both in that, obviously, they are defending against suit, and, presumably further, in that the defendant is seeking to hire plaintiff’s former employees, or is, his or herself, a former employee seeking new employment.  Indeed, in this latter context, at least one Federal Court has remarked, in circumstances where a plaintiff sued a former employee that “[t]he chilling effect on competition may be more severe when cases are filed against those being hired, in addition to those that do the hiring, and an argument can be made that such a suit strikes at the heart of Section 16600.”  (Blueline Software Servs. v. Sys. Am., Inc. (N.D.Cal. July 14, 2017, No. 17-cv-01960-EMC) 2017 U.S.Dist.LEXIS 109753, at *8.)

An argument can be made here, however, that Renteria’s suit does not strike at the heart of section 16600.  Most evident at the outset:  Renteria, unlike the plaintiffs in the cases cited by the parties, alleges no facts support harm caused by the non-solicitation provision. 

The court, indeed, struggles to discern what interest at all Renteria particularly might allege in the outcome of this lawsuit, since nothing in the non-solicitation provision of the agreement would have any obvious effect on her ability to engage “in a lawful profession, trade, or business of any kind.”  Preliminarily, it would appear only those employees that Renteria would have been prevented from soliciting or employing would have an interest in the outcome of this suit. 

What’s more, whereas Renteria’s employment was terminated with defendant in January 2023, by January 2024 the non-solicitation provisions were of no further force or effect, having been limited in effect to a one-year period, and Renteria did not commence suit until November of 2024, at a time when Renteria had been free of any obligation not to hire or solicit defendant’s employees for 10 months. 

For Renteria’s part, she asserts that she need not allege harm at all because subdivision (e)(1) permits a “former employee … to enforce this chapter for injunctive relief or the recovery of actual damages, or both,” but the court is not clear what the argument being made here is.  It appears to have something to do, however, with Renteria’s attempt, in her first amended complaint, to style her claims as seeking “injunctive relief on behalf of the public.”

If this is her position, however, it is substantially complicated, firstly, by the fact that it is not clear how the injunctive relief sought in the complaint would prevent “unlawful acts that threaten future injury to the general public.”  (McGill v. Citibank, N.A. (2017) 2 Cal.5th 945, 955 [216 Cal.Rptr.3d 627, 393 P.3d 85].)

Further complicating Renteria’s position, though, is that the particular non-solicitation clause at issue in this case, which did not flatly prohibit Renteria from soliciting defendant’s employees from leaving to work for a competitor. 

Instead, Renteria was only prohibited from employing or soliciting defendant’s employees specifically in those instances where the hiring firm or company was “engaged in or which is about to engage in the design, development, manufacturing, or marketing of any product, process, or service which resembles or competes with a product, process, or service about which [Renteria] acquired proprietary information during employment with [the] Company.”

Given these circumstances, the assertion of a claim for public injunctive relief based on potential “future injury to the general public” is even more dubious.  It is not self-evident that the general public has an interest in employment, or being solicited for employment, at companies “engaged … or … about to engage in the design, development, manufacturing, or marketing of any product, process, or service” that are similar or competitive “with a product, process, or service” of defendant about which a former employee had “acquired proprietary information during employment with [the] Company,” or, instead, that the general public has an interest in being hired by defendant, and then free to take “proprietary information” about defendant to a new company that stands to benefit from use of that information, and to solicit or hire defendant’s employees after the fact. 

Based on the foregoing, the court finds that, as pled, Renteria simply fails to plead facts sufficient to establish her standing to pursue the claims set forth in the first amended complaint, whether based on private injury, or the enforcement of the law for public benefit.  Needless to say, the court accordingly also finds the complaint insufficient to support a basis for Renteria’s class claims, or that she is a proper representative plaintiff of the purported class and subclass. 

Accordingly, the demurrer is sustained with 10 days 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:              Duran Mariano et al vs. Farmers Insurance Exchange

Case No.:     VCU321509

Date:           November 18, 2025

Time:          8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:       Motion to Compel Initial Responses to (1) Form Interrogatories to Plaintiff Duran; (2) Form Interrogatories to Plaintiff Oregon; (3) Special Interrogatories to Plaintiff Duran; (4) Special Interrogatories to Plaintiff Oregon; (5) Requests for Production of Documents to Plaintiff Duran; (6) Requests for Production of Documents to Plaintiff Oregon;

                   Motion to Deem Admissions Admitted as to (7) Requests for Admissions to Plaintiff Duran; and (8)  Requests for Admissions to Plaintiff Oregon

Tentative Ruling: To treat the motion as eight motions, require payment of additional filing fees, and rule as follows:

(1) – (4) – Interrogatories: To grant the motions and order responses within thirty (30) days after payment of the remaining filing fees and service of notice of this ruling for this motion; Defendant shall give notice.

(5) and  (6) – Requests for Production: To grant the motions and order responses within thirty (30) days after payment of the remaining filing fees and service of notice of this ruling for this motion; Defendant shall give notice.

(7) and (8) – Requests for Admissions: To grant the motions, but the order shall be effective upon payment of the remaining filing fees;

To order sanctions against Plaintiff Duran, and counsel of record, jointly and severally, $520, consisting of one hour total for all four motions plus four (4) filing fees of $60 each.

To order sanctions against Plaintiff Oregon, and counsel of record, jointly and severally, $520, consisting of one hour total for all four motions plus four (4) filing fees of $60 each.

Facts

In this breach of contract and bad faith action involving homeowners’ insurance, Defendant Farmers served, on July 10, 2025, the following:

          (1) Form Interrogatories to Plaintiff Duran

(2) Form Interrogatories to Plaintiff Oregon

(3) Special Interrogatories to Plaintiff Duran

          (4) Special Interrogatories to Plaintiff Oregon

          (5) Requests for Production of Documents to Plaintiff Duran

          (6) Requests for Production of Documents to Plaintiff Oregon

          (7) Requests for Admissions to Plaintiff Duran

          (8)  Requests for Admissions to Plaintiff Oregon

Responses were due August 12, 2025.

As of the date of filing this motion on September 8, 2025, no responses have been received.

Defendant further seeks sanctions in the amount of $2,860 consisting of 10 hours at $280 per hour plus a single filing fee of $60.

No oppositions appear to have been filed.

Authority and Analysis

As an initial matter, the Court notes one motion fee has been submitted to this Court, but that eight motions are made here. The Court will not issue an order as to each motion until the remaining seven filing fees of $60 each are paid.

(1), (2), (3) and (4) Interrogatories

Based on Plaintiffs’ failures to respond to the first sets of form and special interrogatories, the Court orders under, Code of Civil Procedure section 2030.290(a), that Plaintiffs provide full and complete verified responses, without objection to Defendant’s first set of form interrogatories and first set of special interrogatories, within thirty (30) days after payment of the remaining filing fees and service of notice of this ruling for this motion. Defendant shall give notice.

(5) and (6) Requests for Production

Based on Plaintiffs’ failures to respond to the first sets of requests for production of documents, the Court orders under, Code of Civil Procedure section 2031.300(a) that Plaintiffs provide full and complete verified responses without objections to Defendant’s first sets of requests for production of documents, within thirty (30) days after payment of the remaining filing fees and service of notice of this ruling for this motion. Defendant shall give notice.

(7) and (8) 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. Here, Plaintiffs have failed to serve timely responses and Defendant has moved for an order to deem the admission admitted.

Defendants’ requests for admissions as to each Plaintiff shall be deemed admitted upon payment of the remaining filing fees for these motions. At that time, the Court grants the motion and deems the admissions admitted.

Sanctions

Plaintiff seeks sanctions in the amount of $2,860 consisting of 10 hours at $280 per hour and the $60 filing fee. Under Code of Civil Procedure sections 2030.290(c) (Interrogatories) and 2031.300(c) (Requests for Production), the Court imposes sanctions as follows:

• Against Plaintiff Duran, and counsel of record, jointly and severally, $520, consisting of one hour total for all four motions plus four (4) filing fees of $60 each.
• Against Plaintiff Oregon, and counsel of record, jointly and severally, $520, consisting of one hour total for all four motions plus four (4) filing fees of $60 each.

The Court notes there is no meet and confer requirement and all that is necessary to obtain the relief requested on this motion to compel initial responses is that the other party failed to respond within the designated time. Sanctions are due no later than thirty (30) days after payment of the remaining filing fees and service of notice of this ruling for this motion. Defendant shall 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:    Midland Credit Management, Inc. vs. Becerra, Maria

Case No.:     VCL198419

Date:           November 3, 2025

Time:          8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:       (1) Defendant’s Motion to Set Aside Default; (2) Defendant’s Continued Motion to Compel Further Responses

Tentative Ruling: (1) To inquire as to service of the motion and continue the motion for lack of proof of service (2) To find the motion moot.

(1) Defendant’s Motion to Set Aside Default

Facts

Plaintiff Midland, a debt collector, filed this action for account stated on June 2, 2021.

Plaintiff filed a proof of service indicating substitute service on Defendant Maria Becerra occurred at 4211 W Vine Ave, Visalia, CA 932391 on July 10, 2021 at 8:49 am on “Jane Doe, WHO REFUSED TO GIVE NAME, CO-RESIDENT, who tried to refuse service by closing the door and evading service (documents left, seen by subject), a brown-haired Hispanic female approx. 55-65 years of age, 5'6"-5'8" tall and weighing 160-180 lbs with an accent” and thereafter mailing the summons and complaint.

The proof of service was completed by a registered process server.

On October 7, 2021, default was entered.

On October 15, 2021, default judgment was entered in the amount of $5,607.75.

On September 8, 2025, the Court denied, without prejudice, a previously filed motion by Defendant seeking relief from default under Code of Civil Procedure sections 473(b), 473.5, and 473(d), Civil Code section 1788.61.

The Court previously found no relief available under Code of Civil Procedure sections 473(b) and 473.5 and Civil Code section 1788.61, as the time for such relief had expired based on a judgment entered in 2021.

As to relief under section 473(d), the Court found the motion timely, but that the declaration of Defendant insufficient to rebut the evidentiary presumption afforded by a proof of service completed by a registered California process server.

On September 18, 2025, Defendant filed this motion for relief under the same sections noted above. Defendant declares:

“1. My address is 4211 W. Vine Ave., Visalia, CA 93292,

2. I never received personal service of the summons and complaint. The proof of service describes a “Jane Doe” Hispanic female, 55-65 years old, which does not match me. This can be anyone. This description does not even state that I was serve nor has a proper description of me.

3. My home lacks a direct, secure mailbox, so mail can be misplaced.” (Declaration of Plaintiff ¶¶1-3.)

No proof of service of this motion, filed September 18, 2025, appears to have been made.

No opposition appears to have been filed.

Authority and Analysis

Code of Civil Procedure section 473(b), 473.5  and Civil Code section 1788.61

For the same reasons stated in the prior ruling, the Court denies the motion under these sections as beyond the permissible time period to seek relief from default judgment.

Code of Civil Procedure 473(d)

"'[C]ompliance with the statutory procedures for service of process is essential to establish personal jurisdiction. [Citation.] Thus, a default judgment entered against a defendant who was not served with a summons in the manner prescribed by statute is void. [Citation.]' [Citation.] Under section 473, subdivision (d), the court may set aside a default judgment which is valid on its face, but void, as a matter of law, due to improper service." (Ellard v. Conway (2001) 94 Cal.App.4th 540, 544.)

Such a motion under section 473(d), prior to the California Supreme Court’s decision in California Capital Ins. Co. v. Hoehn (2024) 17 Cal.5th 207, used to be subject to the two year statutory period provided by section 473.5 (See Trackman v. Kenney (2010) 187 Cal. App. 4th 175, 180, overruled by California Capital.)

However, under California Capital, supra, 17 Cal. 5^th at 225 “We hold that a section 473(d) motion to vacate a judgment that is void for lack of proper service is not subject to the judicially imposed two-year limitation”

Therefore, this motion is timely.

However, the Court lacks a proof of service of this motion. Absent service, the Court will not rule on the motion.

(2) Defendant’s Continued Motion to Compel Further Responses

On August 13, 2025, Defendant filed a motion to compel further responses. The Court, having found Defendant remained in default, continued the motion.

Defendant remains in default.

Defendant indicates that on June 4, 2025, Defendant served Plaintiff’s counsel with a request for production of documents via certified mail. Defendant provides a non-exhaustive list of three categories of documents sought, as well as an email containing approximately 8 requests.

Defendant’s declaration states that no responses were received and, as noted above, Defendant filed this motion August 13, 2025.

However, the supplemental declaration indicates that “On or about September 2025” Plaintiff responded and sent some documents.

Plaintiff filed a proof of service of responses to production of documents, set one and verification thereof on September 18, 2025.

Therefore, the Court has a motion to compel initial responses that has become moot by the production of documents. The Court cannot compel initial responses where some response was provided. This motion was made prior to the production.

As such, the motion appears moot by the responses. A motion to compel further responses is now appropriate if Defendant believes the responses inadequate and if Defendant obtains relief from default.

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:              L., D. vs. County of Tulare

Case No.:     VCU312233

Date:           November 18, 2025

Time:          8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:       County of Kings’ Continued Motion for Sanctions under Section 128.7

Tentative Ruling: To grant the motion and impose sanctions of $9,488.52 as requested.

Facts

Plaintiff initially filed this action in Fresno County June 9, 2022. On January 19, 2024, Plaintiff filed first and second amended complaints, alleging negligence against these defendants based on a number of alleged duties.

Defendants Kings and Tulare Counties filed demurrers to the second amended complaint and the County of Tulare filed a motion to strike.

Prior to adjudication of the demurrers and motion to strike, a change of venue motion was filed and granted, transferring this matter to Tulare County.

The Court previously sustained a demurrers by the County Defendants on grounds that no mandatory duty was pled and that discretionary immunity applied to the operative amended complaint. The demurrer was sustained with leave to amend.

Thereafter, Plaintiff filed a third amended complaint, to which the County Defendants demurred or joined to Tulare’s demurrer. The Court, after a motion for reconsideration of its ruling, sustained the demurrer in part regarding discretionary immunity and overruled the demurrer in part with respect to mandatory duties.

The third amended complaint alleged Plaintiff was removed from her biological family and placed into foster care in Tulare County. (TAC ¶31.) In approximately 1991, Defendants placed Plaintiff with Foster Parents where she resided in a foster home of located in Fresno and/or Kings County, California (TAC ¶33.) In approximately 1991, when Plaintiff was approximately nine (9) years old, Plaintiff alleges she was sexually abused and assaulted by the Foster Father, approximately daily for approximately three (3) to four (4) months while Plaintiff resided in the Foster Home. (TAC ¶34.)

Kings County now moves for monetary sanctions against Plaintiff, and counsel of record, under section 128.7 on the basis that Plaintiff was never placed in Kings County. In support, counsel for Kings County notes Plaintiff’s Tulare County juvenile records date back to 1985 and reveal that Plaintiff resided in Tulare County with her biological mother from at least 1985 until she was removed therefrom by Tulare County CWS in approximately 1992. (Dec. of C. Curtiss, ¶9, RJN, Ex. 1.)

Additionally, Kings County filed a Welfare and Institutions Code section 827 petition seeking the Kings County Child Welfare Services and Juvenile court file records of Plaintiff. (Dec. of. C. Curtiss, ¶12, RJN, Ex. 3.) The order on the petition noted Kings County Child Welfare Services did not locate any records responsive to the petition and that no court records were responsive to the request. (Dec. of. C. Curtiss, ¶13, RJN, Ex. 4.)

Plaintiff was put on notice of this issue in November 2023 by Tulare County, in its meet and confer process prior to filing the motion to change venue. On August 18, 2024 Deputy County Counsel Amy Myers filed the following declaration: “On November 1, 2023, I emailed Plaintiff's counsel, Param Purewal, and advised that I had received D.L.’s Tulare County juvenile records pursuant to a § 827 petition, and that having now reviewed the juvenile records, I saw no basis for including either Kings or Fresno County as defendants in this action because D.L. was a dependent of Tulare County. I further advised that, accordingly, I believe that the Tulare County Superior is the proper venue. My email requested that Mr. Purewal “please advise as to whether Plaintiff is willing to stipulate to the venue change and dismissal of Kings and Fresno Counties.” (Emphasis as in original) I further informed Mr. Purewal that I would like to discuss the content of Plaintiff's juvenile records with him at his earliest opportunity. A true and correct copy of my email is attached as Exhibit B and located on pages 3-4. (Dec. of Amy Myers ¶9)

Having received no response to my email, I sent a follow-up email on November 7, 2023. Again, Mr. Purewal did not respond; however, his paralegal, Ms. Stefanie Becerra did. Ms. Becerra advised that Mr. Purewal was out of the office and returning the following day, at which time she would bring my email to his attention. True and correct copies of these emails are attached as Exhibit B and located on page 2. (Dec. of Amy Myers ¶ 10)

“I sent another follow-up “reply all” email the following day, November 8, 2023 at 4:42 p.m., and asked Ms. Becerra if she could assist in scheduling a time for me to discuss the issues raised with Mr. Purewal. A true and correct copy of my email is attached as Exhibit B and located on pages 3-4. I received no response to my November 8, 2023 email from Mr. Purewal, nor his assistant, Ms. Becerra.”  (Dec. of Amy Myers ¶ 11-12)

On July 8, 2025, Kings County provided verified responses to discovery affirming that its Department of Social Services did not provide any services to Plaintiff at any time, affirmed Kings County had no relationship with the Plaintiff at any time, and further affirmed Kings Couty had no relationship with the alleged perpetrator at any time. (Dec. of. C. Curtiss ¶20.) Kings County also produced the order on the petition regarding access to the juvenile case file indicating no records were responsive. (Dec. of. C. Curtiss ¶21)

Counsel for Kings County sought a dismissal prior to filing this motion, stating in an email dated  February 7, 2025, “As you are aware, the evidence in this case establishes that your client was under the care and supervision of Child Welfare Services in Tulare County and not Kings County, as alleged in the Second Amended Complaint. As such, continuing to maintain the County of Kings as a defendant in this case when you are aware there is no evidentiary support for your client's factual contentions would not only be in bad faith, but would also potentially subject you and the Herman Law Firm to sanctions under Code of Civil Procedure section 128.7. A Request for Dismissal has been prepared on your behalf and is attached to this email communication. Please sign and return it to my office at your earliest convenience.” According to counsel, no reply to this email was received. (Dec. of. C. Curtiss ¶15.)

On September 15, 2025, Plaintiff was served with a Notice of Sanctions pursuant to Code of Civil Procedure § 128.7 and its complete unfiled sanctions pleadings by electronic transmission, pursuant to agreement of the parties. (Dec. of C. Curtiss ¶22, Ex. 6.)

On October 7, 2025, Kings County filed this motion seeking sanctions in the amount of $9,488.22 pursuant to Code of Civil Procedure section 128.7.

No opposition appeared to have been initially filed.

At the initial hearing on November 4, 2025, the Court continued this matter and ordered the opposition filed. On November 3, 2025, Plaintiff filed the opposition.

In opposition, Plaintiff argues the motion is procedurally and substantively defective.

Procedurally, Plaintiff argues that after service of notice of sanctions on September 15, 2025, Plaintiff’s counsel provided notice it had lost contact with Plaintiff. Despite this notice, Plaintiff’s counsel argues that proceeding with the filing of the  motion October 7, 2025 for sanctions was improper.

Substantively, Plaintiff argues that there was a good faith basis as to allegations against Kings County made in the third amended complaint, as the events took place over 30 years ago. Further, that the absence of records does not conclusively establish that Kings County played no role as to the allegations of the operative complaint. Finally, that Plaintiff’s counsel acted diligently and reasonably after losing contact with Plaintiff.

Authority and Analysis

Procedural Compliance with Safe Harbor Provisions – Section 128.7

The Court notes the requirement that the motion "shall be served as provided in Section 1010, but shall not be filed with or presented to the court unless, within 21 days after service of the motion, or any other period as the court may prescribe, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected." (Code Civ. Proc., § 128.7, subd. (c)(1).)

Strict compliance, not substantial compliance, with the safe harbor notice provisions is required. (CPF Vaseo Associates, LLC v. Gray (2018) 29 Cal.App.5th 997, 1007.) As one court described it: "Close is good enough in horseshoes and hand grenades, but not in the context of the sanctions statute." (Hart v. Avetoom (2002) 95 Cal.App.4th 410, 414.) Strict compliance serves the statutes' remedial purpose and underscores the seriousness of a motion for sanctions. (Galleria Plus, Inc. v. Hanmi Bank (2009) 179 Cal.App.4th 535, 538.)

Strict compliance applies to both the 21-day safe harbor period and the contents of the notice to be served. "Section 128.7 mandates that notices of motion 'shall be served as provided in Section 1010.' . . . Section 128.7's incorporation of section 1010 is compulsory not permissive." (Id. ) Section 1010 requires “Notices must be in writing, and the notice of a motion, other than for a new trial, must state when, and the grounds upon which it will be made, and the papers, if any, upon which it is to be based.”

Here, the Court, discerns no issue with the procedural requirements set forth above as to the safe harbor period and notice, as evidenced by Exhibit 6 containing the September 15, 2025 notice, motion, memorandum, request for judicial notice and declaration in support thereof. The unfiled motion and accompanying documents were served September 15, 2025 and filed October 7, 2025, which is after the expiration of the 21 day period.

The argument that Plaintiff’s counsel has sought to withdraw during that period is not persuasive to toll or delay the safe harbor period. Counsel reasonably should have been able to evaluate the issues raised by Kings County based on the information in their possession even without any further communication form their client, as discussed below.

Section 128.7 – Substantive Requirements

Section 128.7, provides, in relevant part, that “[e]very pleading…shall be signed by at least one attorney of record in the attorney's individual name…” (Code Civ. Proc. § 128.7(a).) Counsel, therefore, certifies that, to the best of his or her knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that:

“(1) It is not being presented primarily for an improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

(2) The claims, defenses, and other legal contentions therein are warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.

(3) The allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.

(4) The denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief. (Code Civ. Proc. § 128.7(b)(1)-(4).)

For purposes of sanctions under section 128.7(b), “[a] claim is factually frivolous if it is ‘not well grounded in fact’ and it is legally frivolous if it is ‘not warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law.’” (Peake v. Underwood (2014) 227 Cal. App. 4th 428, 440 (quoting Guillemin v. Stein (2002) 104 Cal. App. 4th 156, 167.) “’A claim is objectively unreasonable if ‘any reasonable attorney would agree that [it] is totally and completely without merit.’” (Id. at 440.)

The Peake court noted:

“[W]hen determining whether sanctions should be imposed, the issue is not merely whether the party would prevail on the underlying factual or legal argument. Instead, courts should apply an objective test of reasonableness, including whether ‘any reasonable attorney would agree that [the claim] is totally and completely without merit.’ [citations omitted]. Thus, the fact that a plaintiff fails to provide a sufficient showing to overcome a demurrer or to survive summary judgment is not, in itself, enough to warrant the imposition of sanctions. ([citations omitted]

…

Because our adversary system requires that attorneys and litigants be provided substantial breathing room to develop and assert factual and legal arguments, sanctions should not be routinely or easily awarded even for a claim that is arguably frivolous. Courts must carefully consider the circumstances before awarding sanctions.” (Id. at 441, 448)

“To avoid sanctions under section 128.7, ‘the issue is not merely whether the party would prevail on the underlying factual or legal argument,’ but rather whether any reasonable attorney would agree that the claim is totally and completely without merit. (Peake, supra, 227 Cal.App.4th at p. 448.) Hence, the evidentiary burden to escape sanctions under section 128.7 is light.” (Kumar v. Ramsey (2021) 71 Cal.App.5th 1110, 1126.)

Here, in light of the records of Plaintiff’s placement and removal, and lack of records regarding Plaintiff’s placement, removal or other connection to Kings County, the Court finds the claim against Kings County is factually frivolous.

Even if this claim was not frivolous at the time of filing, the discovery with respect to the juvenile files and lack of placement in Kings County makes the claim factually frivolous at this point in time. Given this, the claim is also deemed legally frivolous against Kings County, in that no mandatory duty of Kings County appears to be triggered under these facts.

The Court declined to sanction counsel in its ruling of October 21, 2025 as it found the difficulties in responding to discovery related to client communications issues.

Here, counsel had all the requisite information needed to know Kings County was not an appropriate party but apparently chose to ignore the issue when put on direct notice that sanctions would be sought. The information necessary to dismiss Kings County appeared available and was presented to Plaintiff’s counsel at least by November 1, 2023 and continuing through February 7, 2025, all during periods of time where Plaintiff’s counsel and Plaintiff were presumably in contact.

Further, On July 8, 2025, Kings County provided verified responses to Plaintiffs discovery requests reflecting the same: that Kings County did not provide any services to Plaintiff and had no relationship with either Plaintiff or the alleged perpetrator.

The lack of client communication or withdrawal motion filed months later does not absolve counsel from a failure to analyze the discovery provided and dismiss an inappropriate party.

Continuing to prosecute this matter given this information was objectively unreasonable in the Court’s opinion.

Finally, the argument that Kings County destroyed records is not persuasive in light of the records of Tulare County for the relevant time period that demonstrate Plaintiff’s residence in Tulare County from at least 1985 through removal by Tulare County CWS in 1992. The operative amended complaint alleges abuse occurred in 1991. (TAC ¶¶33-34.)

Therefore, the Court grants the motion.

Sanctions

Kings County seeks $9,488.22 in sanctions, consisting of 50.57 hours at the rate of $187.25. These hours span from the refusal to withdraw the second amended complaint against Kings County through this motion, including various discovery and law and motion work. These hours appear directly related to placing Plaintiff and counsel on notice that these claims against Kings County were factually and legally frivolous.

The Court finds these hours, and the rate, reasonable and will order the sanctions as requested, jointly and severally against Plaintiff and counsel of record.

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:              Dodson, Jennifer vs. Automobile Club of Southern California

Case No.:     VCU308283

Date:           November 4, 2025

Time:          8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:       Motion for Approval of PAGA Settlement

Tentative Ruling: To grant the motion and approve the settlement, as noted and modified herein; to set a final hearing as to distribution of the settlement fund for June 2, 2026, 8:30 am, Dept. 2.

Background Facts

Plaintiff Jennifer Dodson initially filed a class action complaint against Defendant Automobile Club of Southern California for Labor Code and Business and Professions Code violations.

The operative second amended complaint alleges a cause of action under PAGA for:

(1) Violations of the Equal Pay Act and all Equal Pay Discrimination and Related Wages; (2) Failure to Pay for All Hours Worked, including Minimum, Straight Time, and Overtime Wages; (3) Failure to Provide Meal Periods; (4) Failure to Authorize and Permit Rest Periods; (5) Failure to Pay All Earned Wages Twice Per Month and failure to timely pay all earned wages; (6) Failure to Maintain Accurate Records of Hours Worked and Meal Periods; (7) Failure to Timely Pay All Wages At Termination; (8) Failure to Furnish Accurate Itemized Wage Statements; (9) Failure to Indemnify for Necessary Expenditures; (10) Failure to Produce Requested Employment Records; (11) Recordkeeping Requirement Violations; (12) Violation of Wage Theft Protection Act of 2011; (13) Violation of California Labor Code sections 245-248.5, 2810.5, 226, 233, and 234; (14) Failure to Provide Supplemental Paid Sick Leave; (15) Refusal to Make Payment of Wages; (16) Secretly Paying Wages Lower Than Required; (17) Seating Violations; (18) Statutory Wage Violations; (19) Failure to Pay Vested Vacation/Paid Time Off; (20) Failure to Timely Provide Temporary Workers with Owed Wages; (21) Unlawful Agreements/Unlawful Criminal History Inquiries; (22) Preventing Employees from Using or Disclosing Skills, Knowledge, and Experience; (23) Whistleblower Violations; (24) Workplace Health and Safety Violations; (25) Failure to Provide One Day’s Rest in Seven; (26) Unlawfully Requiring Employees Waive PAGA and/or Representative Actions in Writing as Condition of Employment; and (27) Violation of Business and Professions Code Section 17200.

These PAGA claims include, but are not limited to, penalties and claims based on alleged violations of Labor Code sections 98.6, 201-204, 201.3, 210, 213, 213(d), 216, 218.5, 218.6, 223, 225.5, 226, 226(a), 226.2, 226.3, 226.4, 226.6, 226.7, 227.3, 232, 232.5, 233, 234, 245-248.5, 269, 432, 432.5, 432.7, 510, 512, 551, 552, 558, 558.1, 1024.5, 1102.5, 1174, 1174.5, 1182.12, 1185, 1194, 1194.2, 1197, 1197.1, 1197.5, 1198, 1198.5, 1199, 1670.5, 2698, 2699, 2699(f)- (g), 2699.3, 2800, 2802, 2810.5, 2926, 2927, and 6401-03, any applicable California Industrial Welfare Commission Wage Orders, any applicable California Code of Regulations, and Business and Professions Code 17200

The second amended complaint further alleges class action causes of action for violations of Labor Code sections 226, 510, 1194, 1197, 1197.1 and 2802, as well as Business and Professions Code section 17200.

The second amended complaint further added Drew Smith, Linda Peck, and Debra Willis as named representatives and added ACSC Management Services, Inc., Pleasant Holidays, LLC, and Wawanesa General Insurance Company as the named Defendant.

Dismissal of Class Claims

Plaintiffs have settled the PAGA claims and seek dismissal of the class claims. The proposed orders states “The Parties will submit a stipulation and proposed order per CRC 3.770 seeking dismissal of Plaintiffs’ class claims with prejudice and the class claims of the putative class without prejudice.”

On November 6, 2025, the parties submitted a stipulation and proposed order pursuant to California Rule of Court, rule 3.770. The stipulation states that review of an arbitration agreement likely prevents the class action portion of this case from proceeding, that the parties have otherwise settled the PAGA claims, the putative class members have not been provided formal notice of the pendency of this action, the parties believe dismissal will not prejudice any member of the putative class, as the claims are dismissed without prejudice, and that no notice is required. The Court finds the stipulation as of the dismissal of the class claims sufficient under the rule to dismiss the claims without a hearing under subsection (b).

1. Sufficiency of Amount of Settlement (Proposed Net Distribution: $1,154,147.89.)

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.)

The gross settlement is $1,875,000.

Plaintiff estimates approximately 8,675 aggrieved employees, consisting of all non-exempt hourly-paid employees employed by Defendant in the State of California who worked for Defendant during from February 4, 2023 through April 28, 2025.

Plaintiff’s counsel provides estimates of the maximum PAGA penalty liability of $30,000,000 ($100 per pay period x approximately 300,000.) Counsel notes the $200 per pay period penalty is not in effect because these are all “initial” violations and Defendant has not been found to have violated the statutes at issue previously.

Therefore, the settlement in the matter is approximately 6.25% of the maximum amount. The motion and declarations of counsel adequately set forth the relative strength and value of the PAGA claim as well as the risks, expense, complexity and likely duration of further litigation.

The parties reached the gross settlement figure after all-day mediation.

Plaintiffs’ deductions from the gross settlement are proposed as follows:

Proposed Attorney Fees (33.3%):	$ 625,000.00
Proposed Attorney Costs (up to):	$ 25,000.00
Proposed Enhancement Award to Plaintiff Dodson:	$ 15,000.00
Proposed Enhancement Award to Plaintiff Smith:	$ 15,000.00
Proposed Enhancement Award to Plaintiff Willis:	$ 15,000.00
Proposed Enhancement Award to Plaintiff Peck:	$ 15,000.00
Administrative Costs	$ 24,400.00
Net Settlement Fund	$ 1,154,147.89
LWDA Share (75% of Net Settlement Fund)	$ 865,610.92
Aggrieved Employee Share (25% of Net Settlement Fund):	$ 288,536.97

As noted above, the Court declines to find the settlement amount fair, adequate and reasonable under Moniz based on the dismissal of class action claims for the same Labor Code and Business and Professions Code violations. Therefore, the Court does not approve the gross settlement amount at this time.

2.  Notice

There is no notice period. The proposed notice adequately informs the aggrieved employees of adequate details regarding the case and PAGA settlement.

3.  Enhancement Awards to Representatives

An enhancement payment of $15,000 is proposed to as to each Plaintiff.

The court has, in past cases, approved enhancement awards of $5,000 routinely. While Plaintiffs have provided declarations detailing their involvement in this case, the Court does not find that these efforts should result in an enhancement award greater than the typical amount awarded by this Court.

The enhancement award of $5,000 each is approved.

4. Attorneys’ Fees and Costs

Attorneys’ fees of 33.3% of the gross settlement fund of $1,875,000 or $625,000 and costs up to $25,000 are sought by Plaintiffs’ 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, the Kick Law Firm has incurred 79.7 hours at rates ranging from $1,057 to $250 per hour, for a base lodestar of $65,552.50. (Declaration of Kick ¶6.) The Law Officers of Nick Rosenthal indicates 463.5 hours at $800 per hour, creating a base lodestar of $370,800. (Declaration of Rosenthal ¶30.)

Therefore, the combined, total base lodestar is $436,325.50. To award the amount requested, the Court would need to apply a multiplier of 1.49. The Court permits a multiplier on these matters of up to 1.5 and therefore the fees are approved.

Further, the presently incurred costs appear to be $11,352.11. (Declaration of Kick ¶5.) Therefore, the Court approves costs in the amount of $11,352.11.

5.  Claims Administrator

The claims administrator is designated as Phoenix Class Action Administration Solutions who has submitted a bid for $24,500 to administer the settlement. The Court approves the claims administrator based on the declaration of Lawrence, the bid and the Court’s experience with this administrator in past cases.

6. 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.

7. 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.)

8. 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 Rosenthal – Ex. E.)

Summary

Therefore, the Court approves the following distribution of the settlement:

Plaintiffs’ deductions from the gross settlement are proposed as follows:

Approved Attorney Fees (33.3%):	$ 625,000.00
Approved Attorney Costs (incurred):	$ 11,352.11
Approved Enhancement Award to Plaintiff Dodson:	$ 5,000.00
Approved Enhancement Award to Plaintiff Smith:	$ 5,000.00
Approved Enhancement Award to Plaintiff Willis:	$ 5,000.00
Approved Enhancement Award to Plaintiff Peck:	$ 5,000.00
Approved Administrative Costs	$ 24,400.00
Net Settlement Fund	$ 1,194,247.89
LWDA Share (75% of Net Settlement Fund)	$ 895,685.92
Aggrieved Employee Share (25% of Net Settlement Fund):	$ 298,561.97

The Court sets a final hearing as to distribution of the settlement fund for June 2, 2026, 8:30 am, Dept. 2.

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

Re:              Medina Farms, LLC, a California limited liability company vs. Martinez Gonzalez, et. al., Juan Manuel

Case No.:     PCU324261

Date:           November 18, 2025

Time:          8:30 A.M. 

Dept.          19-The Honorable Glade F. Roper

Motion:       Demurrer to Complaint

Tentative Ruling: To overrule the demurrer; to order Defendants to answer the complaint no later than ten (10) days from the date of this hearing. 

Facts

In this verified complaint, Plaintiff Medina sues Defendants Juan Manuel Martinez Gonzalez, Victor Manual Martinez and all persons unknown for “quiet title – prescriptive easement”, abatement of private nuisance, and for temporary restraining order, preliminary injunction and permanent injunction.

At issue is APN: 338-030-028 (“Subject Property”) which was owned by Union Pacific Railroad Company until June 13, 2025, when it was acquired by Defendants. (Complaint ¶7.)

Plaintiff further alleges it has owned and operated a vineyard from 2015 to present time and Plaintiff, through its prior owners, during that time, has used a dirt road on the Subject Property to access and maintain its vineyard. (Complaint ¶¶11, 12, 13.)

Union Pacific Railroad maintained a railroad track on the Subject Property where the dirt road is located and was aware of Plaintiff’s use of the Subject Property to maintain and access the vineyard. (Complaint ¶¶14, 15.)

After Defendants purchased the Subject Property, Defendants installed a metal fence along the edge of the vineyard to block Medina Farms from accessing or using the dirt road located on the Subject Property and the fence is constructed of reflective metal that “will cause heat damage” to the grapevines. (Complaint ¶¶16, 17.)

As to the first cause of action for quiet title – prescriptive easement, Plaintiff further alleges that since 2015, Plaintiff, and its predecessor in interest, has openly, notoriously, continuously, and adversely used the Subject Property in a manner hostile to the rights, interests and claims of Defendants. (Complaint ¶17.) Further, that an inspection of the Subject Property is sufficient to convey notice of Plaintiff’s use of the Subject Property. (Complaint ¶18.) Neither Defendants, nor Union Pacific, have permitted Plaintiff to use the Subject Property. (Complaint ¶19.) Via this cause of action, Plaintiff seeks a determination of its prescriptive easement interest. (Complaint ¶20.)

As to the second cause of action for abatement of private nuisance, Plaintiff alleges that since 2015, Plaintiff has used the Subject Property to access the northern section of the vineyard. (Complaint ¶20.) Plaintiff alleges that immediately after Defendants purchased the Subject Property, Defendants installed a metal fence that both prevents access and radiates heat onto the vines. (Complaint ¶¶22, 23, 24.) Further, that an ordinary person would be reasonably annoyed or disturbed by this conduct and that Plaintiff did not consent to the building of the fence. (Complaint ¶¶25, 26.) Further, that the seriousness of the harm to Plaintiff outweighs any public benefit of the conduct. (Complaint ¶28.)

As to the third cause of action, Plaintiffs allege no adequate remedy at law for the lack of access and heat damage and seeks an order to remove and tear down the fence.

Defendants demurrer to each cause of action for failure to state sufficient facts to allege a cause of action, as discussed in further detail below.

In opposition, Plaintiffs argue sufficient facts have been pled as to each cause of action.

Authority and Analysis

The purpose of a demurrer is to test whether a complaint “states facts sufficient to constitute a cause of action upon which relief may be based.” (Young v. Gannon (2002) 97 Cal.App.4th 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.4th 857, 879-80.)

To determine whether the complaint states facts sufficient to constitute a cause of action, the trial court may consider all material facts pleaded in the complaint and those that arise by reasonable implication therefrom; it may not consider contentions, deductions, or conclusion of fact or law (Moore v. Conliffe (1994) 7 Cal.4^th 634, 638.)

It is well-settled that all well-pled material facts in the complaint are assumed to be true for the purpose of the demurer.  (C & H Foods v. Hartford Ins. Co. (1984) 163 Cal.App.3d 1055, 1062) But “doubt in the complaint may be resolved against plaintiff and facts not alleged are presumed not to exist. (Id.)

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack; or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) No other extrinsic evidence can be considered (i.e., no "speaking demurrers"). (Ion Equip. Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881.)

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

First Cause of Action – Prescriptive Easement Quiet Title

A prescriptive easement is established where the claimant pleads “‘use of the property, for the statutory period of five years, which use has been (1) open and notorious; (2) continuous and uninterrupted; (3) hostile to the true owner; and (4) under claim of right.’” (Main Street Plaza v. Cartwright & Main, LLC (2011) 194 Cal.App.4th 1044, 1054.)

Defendants argue that the prescriptive easement sought would be the equivalent of an estate and therefore the elements of adverse possession must be met.

"A prescriptive easement requires use of land that is open and notorious, hostile to the true owner and continuous for five years. [Citation.] Unlike adverse possession, a prescriptive easement does not require the payment of taxes. [Citation.] It is not an ownership right, but a right to a specific use of another's property. But Kapner’s use of the land was not in the nature of an easement. Instead, he enclosed and possessed the land in question." (Kapner v. Meadowlark Ranch Assn (2004) 116 Cal.App.4th 1182, 1186-1187.)

Here, the use of the Subject Property sought is not the equivalent to an ownership right, as Plaintiffs have not enclosed and possessed the land, but rather seek access via the Subject Property a “specific use of another’s property.”

The Court does not find that the elements of adverse possession must be met here.

Further, the complaint alleges that the Subject Property is not public land, but is owned by Defendants as of June 2025 and that Union Pacific removed the railroad tracks years ago. (Complaint ¶¶ 8, 14.) As such, the Court does not find an application of Civil Code 1007 on these facts.

Further, much of the argument regarding the application of Civil Code section 1007 as to a right of way by railroad is supported by citations to “People v. County of Mendocino (1995) 36 Cal.App.4th 470, 480” and “Sprengel v. N.Y. & Cal. Oil Co. (1921) 185 Cal.5d 559.” The Court, like Plaintiffs, is unable to identify or locate these cases, or cases resembling these citations, that support this argument.

Therefore, the Court overrules the demurrer as to the first cause of action.

As it appears Defendants have cited cases that simply do not exist, the court is considering sanctions, and the parties should be prepared to address this issue at oral argument. 

Second Cause of Action – Private Nuisance

The elements of a private nuisance cause of action are: (1) an interference with Plaintiff's use and enjoyment of Plaintiff's property; (2) "the invasion of the plaintiff's interest in the use and enjoyment of the land must be substantial" causing the plaintiff to suffer "substantial actual damage"; (3) "the interference with the protected interest must not only be substantial, but it must also be unreasonable, i.e., it must be of 'such a nature, duration, or amount as to constitute unreasonable interference with the use and enjoyment of the land.'" (Mendez v. Rancho Valencia Resort Partners, LLC (2016) 3 Cal.App.5th 248, 262-263; San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 937.)

The latter two elements are to be judged by an objective standard and present questions of fact. (Mendez, supra, 3 Cal.App.5th at 263-264.) The question is whether an ordinary person would reasonably be annoyed or disturbed by the defendant's conduct. (See San Diego Gas, supra, 13 Cal.4th at 938-939; Mendez, a. 263-264.) “With respect to the unreasonableness element, '[t]he primary test for determining whether the invasion is unreasonable is whether the gravity of the harm outweighs the social utility of the defendant's conduct, taking a number of factors into account. [Citation.] Again, the standard is objective: the question is not whether the particular plaintiff found the invasion unreasonable, but "whether reasonable persons generally, looking at the whole situation impartially and objectively, would consider it unreasonable." [Citation.] ... "Fundamentally, the unreasonableness of intentional invasions is a problem of relative values to be determined by the trier of fact in each case in the light of all the circumstances of that case."' [San Diego Gas & Electric Co., at pp. 938-939]." (Mendez, supra, 3 Cal. App. 5that 263.) "'So long as the interference is substantial and unreasonable, and such as would be offensive or inconvenient to the normal person, virtually any disturbance of the enjoyment of the property may amount to a nuisance.' [Citation.]" (Koll-lrvine Center Property Owners Assn. v. County of Orange (1994) 24 Cal.App.4th 1036, 1041.)

Here, Plaintiffs have alleged that the gate interferes with their access to their vineyards and that the gate radiates heat in a manner affecting the grapevines. Taking the allegations of the complaint as true, that Plaintiffs have plead sufficient facts as to a prescriptive easement, Defendant’s interference with the prescriptive easement as well as interference with Plaintiff’s access to the Plaintiff’s property in general are sufficient to establish a private nuisance.

Therefore, the Court overrules the demurrer to the second cause of action.

Third Cause of Action – TRO and Injunctive Relief

The Court, having found Plaintiff has pled both causes of action in a sufficient manner above, overrules the demurrer to the third cause of action.

Therefore, the Court overrules the demurrer and orders Defendants to answer the 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.

Examiner Notes for Probate Matters Calendared

• Visalia Division 
• South County Justice Center Division