Tentative Rulings

The Tentative Rulings for Tuesday, September 2, 2025 (MODIFIED AS TO DEPT 23 ONLY at 1:36 PM), are:

Re:                 Robinson, Robert vs. Token Farms Inc.

Case No.:   VCU311911

Date:            September 2, 2025

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:      Plaintiff’s Motions to Compel Further Responses to (1) Special Interrogatories, Set One and (2) Requests for Production of Document, Set One

Tentative Ruling: To continue both motions to September 9, 2025, 8:30 am, Dept. 2 to be heard with Defendant’s motions for protective orders.

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 Toste, John

Case No.:    VPR052904

Date:           September 2, 2025

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     Motion to Quash Business Records Subpoena; Request for Discovery Sanctions

Tentative Ruling:  The motion to quash is granted as to request nos. 2, 5 and 13 contained in attachment 3 of the business records subpoena; the request for sanctions is denied.

Wilma Marquez moves to quash a business records subpoena directed to Bank of America by Stephanie Toste (or Stephanie and Constance Toste) and requests discovery sanctions. 

The court notes, at the outset, a bit of confusion on the court’s part as to whether Stephanie alone, or Stephanie and Constance Toste, together, caused to be served the subpoena at issue.  There are contrary indications in their papers, but the court will simply assume that Stephanie and Constance together caused the business records subpoena to be issued and that Stephanie and Constance together join in the contentions and arguments in their brief; and will reference the subpoena and the opposition contentions and arguments in conformity with that assumption. 

Turning to substantive matter at hand, the subpoena in dispute, the court notes that it directs Bank of America to produce various records relating to Ponderosa Dairy; the John A. Toste Sr. Testamentary Trust; and Wilma Marquez, both individually and in her capacity as trustee of the Toste Sr. Trust, and any accounts, loans, and lines of credit thereof; and, further, the subpoena directions production of records relating to loans and lines of credit secured by the real property at issue in this litigation.

The court will address Wilma’s various arguments in support of her motion to quash below.

1. Improper Designation of Deposition Officer 

Wilma contends the subpoena improperly designates Stephanie’s and Constance’s attorney, Daniel Evans, as Deposition Officer, both because he “has a financial interest in the action” and because he “runs the risk of being called to testify as to the authenticity of records and, thus, violates” rule 3.7 of the California Rules of Professional Conduct, which provides, in part, “[a] lawyer shall not act as an advocate in a trial in which the lawyer is likely to be a witness … .”

Code of Civil Procedure section 2020.420 provides, in part, that “[t]he officer for a deposition seeking discovery only of business records … shall be a professional photocopier registered under Chapter 20 (commencing with Section 22450) of Division 8 of the Business and Professions Code, or a person exempted from the registration requirements of that chapter under Section 22451 of the Business and Professions Code.” 

Business and Professions Code section 22451 exempts “[a] member of the State Bar or his or her employees, agents, or independent contractors” from the registration requirements of chapter 20 of division 8 of that Code, but Code of Civil Procedure section 2020.420 additionally provides that the deposition officer “shall not be financially interested in the action, or a relative or employee of any attorney of the parties.”

Wilma presents no evidence that Evans has a financial interest in the action.  Her argument, rather, is simply that “[a]s an attorney in the case, Mr. Evans has a financial interest in the action,” which is supported, evidently, by a fragment of a single sentence from a declaration of her counsel, Jonette Montgomery, which mentions, in describing the subpoena, that it “identified Daniel L. Evans, Defendants’ attorney of record, as the deposition officer … .”

Being “attorney of record” does not self-evidently establish that Evans is “financially interested in the action.”  This ground fails. 

Wilma’s other ground is also unavailing.  Rule 3.7 is not implicated by Evans’s designation as deposition officer in the business records subpoena.  It is, in this court’s experience, not just unlikely, but virtually underheard of for party counsel to be called to testify at trial concerning the authenticity of records obtained by a business records subpoena. 

2. Relevance of Wilma’s Individual Bank Records; Privacy Issues

Wilma objects to the subpoena, on relevance grounds, to the extent it seeks her personal banking records. 

The subpoena includes requests for documents “pertaining to” “accounts in [Wilma’s] name [individually] or under [Wilma’s individual] signature authority” (request no. 1), “loans and/or lines of credit made to or co-signed by [Wilma, individually]” (request no. 5), and “[c]ustomer correspondence files for [Wilma, individually]” (request no. 13).

Wilma contends her personal bank records are not relevant because “there was no allegation or even the suggestion [that Wilma wrongfully diverted funds of the Toste, Sr. Trust to herself] in [Stephanie’s and Constance’s First Amended Cross-Complaint]” and “[t]he only financial accounts at issue in this case are the accounts for Ponderosa Dairy and the Trust.”

The court agrees.  Stephanie and Constance do not directly contradict Wilma’s assertion that there are no allegations in their cross-complaint that Wilma wrongfully diverted funds of the Toste, Sr. Trust to herself, and review of the complaint reveals that there are no such allegations in the cross-complaint.  The allegations of the cross-complaint concern Wilma’s disputed positions regarding the Toste, Sr. Trust’s responsibility for loan and other bills and expenses and the Toste, Sr. Trust’s entitlement to rents from the real property at issue, various funds allegedly loaned by John, Jr. and Constance to the Ponderosa Dairy, and Wilma’s alleged failure to take certain necessary actions as trustee of the Toste, Sr. Trust. 

None of the causes of action of the cross-complaint reflect claims to which Wilma’s personal accounts would be relevant.  Stephanie and Constance assert (1) a claim for breach of a loan contract, which Wilma allegedly breached by refusing to repay a loan, as trustee of the Toste, Sr. Trust; (2) a claim for breach of the Ponderosa Dairy partnership agreement (and indemnification); (3) a quantum meruit claim based on allegations that John, Jr. and Constance paid funds to the Ponderosa Dairy partnership used to pay debts and reasonably relied on repayment; (4) a claim for contribution for expenses of the subject property allegedly paid by John, Jr.’s estate; (5) for dissolution and windup of the Ponderosa Dairy partnership; and (6) for nuisance, based on allegations concerning Wilma’s conduct and actions at the subject property.

Stephanie and Constance allege Wilma removed personal property from a home on the subject property and attempted to remove Ponderosa Dairy books and documents (and was apparently stopped by Constance from doing so), and they further allege that they have demanded an accounting of trust assets and liabilities, but none of this supports that there are any claims in this litigation supporting that Wilma’s personal accounts are relevant to the matters in dispute in this litigation.  

Related to Wilma’s relevance argument is another argument that the subpoena impermissibly invades her and her husband’s right to privacy.  Wilma contends this request necessary encompasses her husband’s banking records because he shares bank accounts with her, and therefore, his privacy interests are also implicated. 

The court agrees that, given the lack of relevance to this action of Wilma’s personal banking records, the business records subpoena impermissibly infringes on Wilma’s right to privacy. 

The California Constitution identifies, amongst other “inalienable rights,” the right to privacy. (Id., art. I, § 1.)  “The party asserting a privacy right must establish a legally protected privacy interest, an objectively reasonable expectation of privacy in the given circumstances, and a threatened intrusion that is serious.”  (Williams v. Superior Court (2017) 3 Cal.5th 531, 552 [220 Cal.Rptr.3d 472, 398 P.3d 69] (Williams).)

Wilma makes that showing here.  It is to be “safely assume that the right of privacy extends to one's confidential financial affairs.”  (Valley Bank of Nev. v. Superior Court (1975) 15 Cal.3d 652, 656 [125 Cal.Rptr. 553, 542 P.2d 977].)  This right encompasses financial information a bank customer discloses to a bank, over which the customer maintains a “ ‘reasonable expectation of privacy.’ ”  (Ibid.)  In addition, it cannot be reasonably disputed that production of Wilma’s personal bank records constitutes a serious threatened intrusion of her constitutional privacy right. 

Wilma’s showing requires Stephanie and Constance to make a countervailing showing of legitimate, important interests that disclosure serves, which is then weighed against the seriousness of the prospective invasion of privacy resulting from their business records subpoena.   (Williams, at p. 557.)

The court finds that Stephanie and Constance cannot make such countervailing showing when, as a threshold matter, it cannot be established that the information they seek is relevant. 

Based on the foregoing, the court grants the motion to quash as to request nos. 2, 5 and 13 contained in attachment 3 of the business records subpoena.   

3. Sanctions

Wilma seeks discovery sanctions under Code of Civil Procedure section 1987.2, subdivision (a), which permits a court, in its discretion, to award sanctions if it finds a motion to quash was opposed “in bad faith or without substantial justification or that one or more of the requirements of the subpoena was oppressive.”

The court declines to make such a finding here. While the court finds the asserted basis for the subpoena, as to Wilma’s personal bank records, ultimately insufficient to establish their entitlement to those records, it finds that the asserted basis at least supports that Stephanie and Constance have not proceeded in a manner meriting sanctions under section 1987.2. The subpoena ultimately stated mostly unobjectionable requests; there was a facially plausible, even if insufficient, basis for the objectionable requests; and opposition to the motion was necessary and meritorious as to the substantively unobjectionable requests, given the deposition officer issue raised in 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:                Heredia, Juan Carlos vs. Merle Stone Chevrolet, Inc.

Case No.:   VCU313544

Date:           September 2, 2025

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     Defendant’s Motion to Compel Arbitration

Tentative Ruling: To grant the motion through enforcement of the delegation clause and to stay the matter pending resolution of the arbitration.

Facts

In this class action matter filed September 30, 2024, Plaintiff alleges various violations of the Labor Code and unfair competition.

On July 10, 2025, Defendants filed this motion to compel arbitration of these claims and to enforce the class action waiver.

Defendants provide what appear to be two arbitration agreements. The first, attached as Exhibit A to the declaration of Short, is noted as an application for employment.

The second agreement (“Second Arbitration Agreement”) attached as Exhibit B to the declaration of Short, states “…this agreement supersedes any and all prior agreements regarding these issues.” (Exhibit B – Section 5.)

Though unaddressed in the motion itself, the Court notes the Second Arbitration Agreement submitted as Exhibit B to the declaration of Short contains a delegation clause. (Exhibit B – Section 3.)

In opposition, Plaintiff argues that both agreements are unconscionable and therefore cannot be enforced.

The Court will therefore proceed first with determining whether the delegation clause in the Second Arbitration Agreement is enforceable. If the delegation clause is enforceable, then the Court’s position is that the arbitrator shall decide issues as to interpretation, application, enforceability, revocability or validity of the Second Arbitration Agreement.

Facts – Delegation Clause

As discussed above, the Second Arbitration Agreement contains the following:

“The arbitrator, and not any federal, state, or . local court or agency, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Agreement, including without limitation any claim that this Agreement is void or voidable. Thus, the Dealership and I voluntarily waive the right to have a court determine the enforceability and/or scope of this Agreement” (Exhibit B – Section 3.)

Authority and Analysis

Malone v. Superior Court (2014) 226 Cal.App.4th 1551 summarizes the applicable analysis with respect to delegation clauses:

“A delegation clause requires issues of interpretation and enforceability of an arbitration agreement to be resolved by the arbitrator. Delegation clauses have the potential to create problems of circularity. For example, suppose an arbitration agreement delegates the issue of enforceability to the arbitrator. If the arbitrator concludes that the arbitration agreement is, in fact, not enforceable, this would mean that the entire agreement, including the delegation clause, is unenforceable-a finding that would undermine the arbitrator's jurisdiction to make that finding in the first place. For this reason, courts have treated the delegation clause as a separate agreement to arbitrate solely the issues of enforceability…

“For this reason, when a party is claiming that an arbitration agreement is unenforceable, it is important to determine whether the party is making a specific challenge to the enforceability of the delegation clause or is simply arguing that the agreement as a whole is unenforceable. If the party's challenge is directed to the agreement as a whole--even if it applies equally to the delegation clause--the delegation clause is severed out and enforced; thus, the arbitrator, not the court, will determine whether the agreement is enforceable. In contrast, if the party is making a specific challenge to the delegation clause, the court must determine whether the delegation clause itself may be enforced (and can only delegate the general issue of enforceability to the arbitrator if it first determines the delegation clause is enforceable). (Rent-A-Center, West, Inc. v. Jackson (2010) 561 U.S. 63, 70)”

Challenge to Both Agreements in their Entirety as Unconscionable

Here, Plaintiff has challenged both agreements noted above as unconscionable. The Court, therefore, interprets this challenge, under Rent-A-Center and Malone, above, a challenge “…directed to the agreement as a whole--even if it applies equally to the delegation clause--the delegation clause is severed out and enforced; thus, the arbitrator, not the court, will determine whether the agreement is enforceable.” Therefore, the Court will sever out the delegation clause and enforce it.

Therefore, the Court grants the motion and compels issues of interpretation, applicability, enforceability, and formation to the arbitrator pursuant to the Second Agreement.

The Court further stays this matter pending the arbitrator’s rulings on these issues. A CMC regarding the status of the arbitration is set for April 24, 2026 at 8:30 AM in Department 2. If the arbitrator finds the agreement to arbitrate unenforceable, either party may contact the Tulare County Clerk to seek an earlier CMC for purposes of trial setting.

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 Hernandez, Ignacio V

Case No.:   VPR053534 

Date:            September 2, 2025

Time:           8:30 A.M. 

Dept.           2-The Honorable Bret D. Hillman

Motion:     Motion to Remove Trustee

Tentative Ruling:  To deny the motion without prejudice.

Petitioner in this action, Ignacio Hernandez, filed a petition to remove Abraham Hernadez as trustee of what is identified as a “short form deed of trust and assignment of rents,” and to appoint, as successor, Vincent Javier Herandez.  At the same time, petitioner filed an “affidavit” in support of a “motion” for what appears to be the same relief sought in the petition.  

Petitioner has not submitted any points and authorities; he identifies no legal authority for the granting, on his motion, of the relief requested; and the court is uncertain as to what, if any, authority would permit the court to consider granting the relief requested on the showing made. 

Accordingly, the motion is denied without prejudice. 

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

Re:                  Matthews, Kimberly Anne et al vs. California Department of Forestry and Fire Protection et al

Case No.:   PCU317529

Date:            September 2, 2025

Time:           8:30 A.M. 

Dept.           23-The Honorable Glade F. Roper

Motion:     Defendant States of California’s Demurrer to Complaint

Tentative Ruling: To sustain the demurrer without leave to amend as to the seventh cause of action only; to sustain the demurrer with leave to amend as to the remaining causes of action; Plaintiffs shall have ten (10) days to file an amended complaint addressing the issue identified herein.

Facts

The operative first amended complaint alleges general negligence, violation of mandatory duty, negligence through misuse of a hazardous device by employee, negligent hiring, negligent training and supervision, negligent storage, maintenance, and monitoring of hazardous materials, negligent per se and strict liability for ultrahazardous activity against the State of California, by and through the  Department of Forestry and Fire Protection (“State” or “Cal Fire”)

Plaintiffs allege that on December 21, 2023, Plaintiffs were at the home of Battalion Chief Tyler Attebury, employee of Cal Fire, located in Tulare County. (FAC ¶¶1,2, 14.) At that time, Attebury was “…on-call, assigned a CAL FIRE-issued vehicle, and entrusted with hazardous equipment, including a ‘Quick-Fire’ incendiary device [“Device” or “Devices”] which he was required to maintain in a state of readiness for emergency deployment as part of his employment duties…” (FAC ¶2,14.) The Device is an incendiary tool intended for use in remote, non-residential locations as part of backburning and other controlled wildfire suppression. (FAC ¶16.)

Additionally, that the Device, despite its “inherently dangerous nature” was allowed to be stored in “employee vehicles without enforcing proper oversight, safety protocols, or secure storage measures.” (FAC ¶16.)

Plaintiffs allege that Attebury retrieved the Device from his Cal Fire issued vehicle prior to, unbeknownst to Plaintiffs, placing the Device into or near a burning firepit. (FAC ¶¶4, 24) With Plaintiffs standing near the pit, the Device suddenly exploded and emitted molten material and extreme heat, injuring Plaintiffs. (FAC ¶¶5, 25.)

Plaintiffs further allege these Devices are “inherently dangerous; they are known for their explosive properties, molten material exceeding 4000°F, release of hazardous fumes, and the ability to cause severe injuries if mishandled” and that Defendant Cal Fire “failed to properly store, monitor, or restrict access to” them, “failed to adequately train, supervise or evaluate the competency of personnel authorized to handle them” and that Attebury had access to the Device because “it had been assigned to him as part of his emergency response equipment.” (FAC ¶¶, 17.)

Further, that “The DEVICE is intended solely for controlled wildfire suppression and requires strict adherence to safety protocols for secure storage, controlled use, constant monitoring, and appropriate extinguishing methods. Its use in residential settings or near open flames poses an unreasonable and foreseeable risk of catastrophic injury.” (FAC ¶18)

Further, that Defendant “…failed to implement or enforce protocols for the secure storage, monitoring, transportation, and regulation of the DEVICES. Despite CAL FIRE’s own written safety policies and internal mandates, Attebury was allowed to retain possession of the DEVICE as part of his on-call duties, which required maintaining the assigned vehicle and equipment in a state of readiness for emergencies. Defendants failed to ensure that the DEVICE was used only in its intended operational context and under proper supervision.” (FAC ¶19.)

Additionally, that Defendant knew Attebury was unfit or incompetent to handle the Device in a safe manner, yet still permitted access to the Device. (FAC ¶20.)

Further, Plaintiffs allege:

“Health and Safety Code, § 12151, “[A]ll explosives shall be kept or stored as specified in the rules or regulations adopted by the State Fire Marshal . . . .” Plaintiffs are informed and believe that other statutes and regulations in the Health and Safety Code, Penal Code, and Vehicle Code apply to the storage of explosive and/or incendiary materials, such as the DEVICE. Health and Safety Code, § 12151, and other statutes and regulations, are designed to protect against the risk of injury from explosions and fires caused by explosive and/or incendiary devices such as the DEVICE. These statute and regulations require secure storage, controlled access, trained handlers, and the restriction of hazardous equipment to qualified personnel acting under official emergency conditions.” (FAC ¶21.)

Defendant demurrers, as discussed below, to each cause of action and seeks judicial notice of Attebury’s timesheet to demonstrate Attebury was on vacation or off duty at the time of the incident.

In opposition, Plaintiffs submit extrinsic evidence as to the danger posed by the Device and various standards applicable to its use, storage and presentation, via declarations from counsel and a retained expert. The Court, on demurrer, disregards this extrinsic evidence in total. Additionally, Plaintiffs add allegations and various citations to other regulations in support of the direct and vicarious liability theories asserted. These allegations and citations, however, do not appear in the amended complaint.

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.)

Judicial Notice

The Court does not find the timesheet sought to be judicially noticed to qualify as an “official act” under the Evidence Code. Further, taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning. (See Middlebrook-Anderson Co. v. Southwest Sav. & Loan Assn. (1971) 18 Cal.App.3d 1023, 1038.)

Richtek USA, Inc. v. UPI Semiconductor Corporation (2015) 242 Cal.App.4th 651, 660 sums up the Court’s position as follows:

“A demurrer is simply not the appropriate procedure for determining the truth of disputed facts. The hearing on demurrer may not be turned into a contested evidentiary hearing through the guise of having the court take judicial notice of documents whose truthfulness or proper interpretation are disputable.” (internal quotations and citations omitted)

Therefore, the Court declines to turn the hearing “into a contested evidentiary hearing through the guise of having the court take judicial notice of affidavits, declarations, depositions, and other such material which was filed on behalf of the adverse party and which purports to contradict the allegations and contentions of the plaintiff. [Citation.]” (See Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 605.)

Therefore, the Court denies the request for judicial notice.

Authority and Analysis

The purpose of a demurrer is to test whether a complaint “states facts sufficient to constitute a cause of action upon which relief may be based.” (Young v. Gannon (2002) 97 Cal.App.4^th 209, 220.  To state a cause of action, a plaintiff must allege facts to support his or her claims, and it is improper and insufficient for a plaintiff to simply plead general conclusions. (Careau v. Security Pacific Business Credit, Inc. (1990) 222 Cal.App.3d 11371, 1390.) The complaint must contain facts sufficient to establish every element of that cause of action, and thus a court should sustain the demurrer if “the defendants negate any essential element of a particular cause of action.” (Cantu v. Resolution Trust Corp. (1992) 4 Cal.App.4^th 857, 879-80)

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

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

Public Entity Liability

The starting point is that, except as otherwise provided by statute, “[a] public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.”  (Gov. Code § 815(a).)  “[T]his section ‘abolished all common law or judicially declared forms of liability for public entities, except for such liability as may be required by the federal or state Constitution. Thus, in the absence of some constitutional requirement, public entities may be liable only if a statute declares them to be liable’ [Citation.]”  (Becerra v. County of Santa Cruz (1998) 68 Cal.App.4th 1450, 1457.)  It has been recognized that it is impermissible to sue a public entity for common law negligence. (Torres v. Department of Corrections and Rehabilitation (2013) 217 Cal.App.4th 844, 850.) 

Government tort claims must be pled with particularity. (Susman v. City of Los Angeles (1969) 269 Cal.App.2d 803, 809.) They must also be grounded in statute. (Gov. Code § 815; E.L. White, Inc. v. City of Huntington Beach (1978) 21 Cal.3d 497, 512, fn. 9.)

First Cause of Action - General Negligence

Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1127 notes “The Tort Claims Act draws a clear distinction between the liability of a public entity based on its own conduct, and the liability arising from the conduct of a public employee."

Further, “[a]lthough the Act provides that a public employee generally is liable for an injury caused by his or her act or omission 'to the same extent as a private person' (Gov. Code, § 820, subd. (a)) and that, when the act or omission of the public employee occurs in the scope of employment the public entity will be vicariously liable for the injury (Gov. Code, § 815.2), the Act contains no provision similarly providing that a public entity generally is liable for its own conduct or omission to the same extent as a private person or entity. Rather, the Act provides that a public entity is not liable for an injury '[e]xcept as otherwise provided by statute ....' (Gov. Code, § 815.) Certain statutes do provide expressly for public entity liability in circumstances that are somewhat parallel to the potential liability of private individuals and entities but, as past cases have explained, '"[T]he intent of the [Tort Claims Act] is not to expand the rights of plaintiffs in suits against governmental entities, but to confine potential governmental liability to rigidly delineated circumstances ...."' [Citation.]" (Id. at 1127-1128.)

Koussaya v. City of Stockton (2020) 54 Cal.App.5th 909, 943 summarizes the theories of recovery against a public entity as follows:

“When a party is injured by a tortfeasor and seeks to affix liability on the tortfeasor's employer, the injured party ordinarily must demonstrate either (1) the  employer violated a duty of care it owed to the injured party and this negligence was a proximate cause of the resulting injury (the direct liability theory), or (2) the tortfeasor-employee was liable for committing the tortious conduct that caused the injury while acting within the course and scope of his or her employment (the vicarious liability theory). [Citation.] When the employer is a governmental agency, the statutory framework permits the injured party to pursue the vicarious liability theory in accordance with these general common law principles. [Citation.] However, the statutory framework requires, as a condition to the injured party's recovery on a direct liability theory against a governmental agency, that the injured party identify a ‘specific statute declaring [the entity] to be liable, or at least creating some specific duty of care’ by the agency in favor of the injured party. [Citations.]” (de Villers v. County of San Diego (2007) 156 Cal.App.4th 238, 247–248, fn. omitted)”

The Court notes that the first cause of action references a number of direct liability allegations of duty, breach and causation against Defendant as well as vicarious liability via Government Code section 815.2 for the acts of Attebury.

As the Court has rejected the judicial notice request above, the Court overrules the demurrer on the basis of Attebury being on vacation or off duty.

Allegations of Direct Liability (Government Code Section 815.6) against Defendant

Government Code § 815.6 provides: “[w]here a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.”

A plaintiff asserting liability under Government Code section 815.6 must specifically allege the applicable statute or regulation. (Washington v. County of Contra Costa (1995) 38 Cal.App.4th 890, 896.) To impose a mandatory duty on a public entity, the “mandatory nature of the duty must be phrased in explicit and forceful language;” it is not sufficient to contain just some mandatory language. (Guzman v. County of Monterey (2009) 46 Cal. 4th 887, 910-911.)

“A public entity may be directly liable for failure to discharge a mandatory duty. …An enactment for purposes of section 815.6 may include both formal legislative measures, such as statutes, and quasi-legislative measures, such as regulations adopted by a state agency. [citation omitted.]” (Jacqueline T. v. Alameda County Child Protective Services (2007) 155 Cal.App.4th 456, 469.)

Government Code section 815.6 contains a three-pronged test for determining whether liability may be imposed on a public entity based upon a statute: (1) an enactment must impose a mandatory, not discretionary, duty; (2) the enactment must intend to protect against the kind of risk of injury suffered by the party asserting section 815.6 as a basis for liability; and (3) breach of the mandatory duty must be a proximate cause of the injury suffered.  (County of Los Angeles v. Superior Court (2002) 102 Cal.App.4th 627, 638-39.)  Additionally, whether an enactment is intended to impose a mandatory duty is a question of law for the court. (Id.) 

Additionally, the enactment upon which liability may be based under Government Code section 815.6, must create an obligatory, as opposed to discretionary or permissive, duty. (Haggis v. City of Los Angeles (2000) 22 Cal.4th 490, 498.) The statute at issue “must require, rather than merely authorize or permit, that a particular action be taken or not taken. [Citation.] It is not enough, moreover, that the public entity or officer have been under an obligation to perform a function if the function itself involves the exercise of discretion. [Citation.]” (Id.) "Therefore, a '"... litigant seeking to plead the breach of a mandatory duty must specifically allege the applicable statute or regulation." ' [Citation.] 'Unless the applicable enactment is alleged in specific terms, a court cannot determine whether the enactment relied upon was intended to impose an obligatory duty to take official action to prevent foreseeable injuries or whether it was merely advisory in character.' [Citation.]" (Becerra, supra, 68 Cal.App.4th at 1458)

The only statute cited in support is Health and Safety Code section 12151, which states “[A]ll explosives shall be kept or stored as specified in the rules or regulations adopted by the State Fire Marshal…” This, however, does not establish a duty under the above, as it remains unknown what rules or regulations have been adopted. That “Plaintiffs are informed and believe that other statutes and regulations in the Health and Safety Code, Penal Code, and Vehicle Code apply to the storage of explosive and/or incendiary materials, such as the DEVICE” is likewise insufficient under the standards stated above.

Additionally, the Court does not find Health and Safety Code section 12005, stating “This part does not apply to the transportation and use of explosives by representatives of the California Highway Patrol, the State Bureau of Criminal Identification and Investigation, local police departments, sheriff’s departments, and fire departments acting in their official capacity…” directly applicable here to provide immunity, where allegations under section 12151 discuss storage and keeping of explosives. (Health & Saf. Code, §§ 12005, 12151)

However, because demurrers do not lie as to only parts of causes of action, where some valid claim is alleged, the Court will examine the portions of the first cause of action for which section 815.2 is alleged as a basis for liability, as noted above. (Poizner v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 119 [“A demurrer must dispose of an entire cause of action to be sustained.”].)

Vicarious Liability under Section 815.2

As to section 815.2, Koussaya, supra, 4 Cal. App. 5^th at 943-944 further notes:

“Section 815.2 sets out the rule regarding vicarious public entity liability: “(a) A public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his [or her] employment if the act or omission would, apart from this section, have given rise to a cause of action against that employee or his [or her] personal representative. [¶] (b) Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.” In turn,  “section 820 delineates the liability of public employees themselves: ‘(a) Except as otherwise provided by statute (including Section 820.2), a public employee is liable for injury caused by his [or her] act or omission to the same extent as a private person. [¶] (b) The liability of a public employee established by this part … is subject to any defenses that would be available to the public employee if he [or she] were a private person.’ In other words, ‘the general rule is that an employee of a public entity is liable for his [or her] torts to the same extent as a private person (§ 820, subd. (a)) and the public entity is vicariously liable for any injury which its employee causes (§ 815.2, subd. (a)) to the same extent as a private employer (§ 815, subd. (b)).’ [Citation.]” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 868)”

Therefore, vicarious liability for an employee's actions "attaches if and when it is adjudged that the employee was negligent as well." (Munoz v. City of Union City (2004) 120 Cal.App.4th 1077, disapproved on other grounds in Hayes v. County of San Diego (2013) 57 Cal.4th 622, 639, fn. 1) Consequently "in order for vicarious public entity liability to attach, a public employee, either named as a defendant or at least 'specifically identified' by the plaintiff, must have engaged in an act or omission giving rise to that employee's tort liability." (Koussaya, supra, 54 Cal.App.5th at 945.)

Here, Attebury is specifically identified as the public employee in accordance with the above. As to Attebury’s negligence, the allegations consist of Attebury’s retrieval of the Device from the vehicle, the placement of the Device near a burning firepit, and the subsequent explosion injuring Plaintiffs. (FAC ¶¶3, 4, 5.)

In reply, Defendant argues that even if Attebury were on duty (an argument the Court assumes based on its denial of the request for judicial notice), the allegations of the complaint indicate acts outside the course and scope of employment, citing to Gipson v. Davis Realty Co. (1963) 215 Cal.App.2d 190, 209:

“It is elementary that the liability of the principal or employer is predicated upon the fact of employment. Accordingly, the principal or employer is not liable for the acts of his agent or employee while the latter is pursuing his own ends, even though the injury complained of could not have been committed without the facilities afforded to the agent or employee by his relation to his principal or employer. [citation omitted] Therefore, whether or not the principal or employer is responsible for the act of the agent or employee at the time of the injury depends upon whether the agent or employee was engaged at that time in the transaction of the business of his principal  or employer, or whether he was engaged in an act which was done for his own personal convenience or accommodation and related to an end or purpose exclusively and individually his own.”

Alma W. v. Oakland Unified School Dist. (1981) 123 Cal.App.3d 133, 140, citing to Gipson, supra, notes:

“Where an employee pursues his own ends, the use of property or facilities entrusted to him by the principal is an inadequate basis for imputing liability to the employer ( Gipson v. Davis Realty Co. (1963) 215 Cal.App.2d 190, 209.) For example, the fact that a dry cleaning operation affords an employee a unique opportunity to pilfer items inadvertently left in customer's clothing does not render the dry cleaning company vicariously liable for the employee's theft. [citation omitted.] Similarly, the custodian's use of the janitor's office, which arguably furnished a unique opportunity for A. B.'s action, does not impute liability to the school district. The mere fact that an employee has the opportunity to abuse facilities necessary to the performance of his duties does not render an employer vicariously liable for the abuse.”

The Court agrees that the operative amended complaint alleges Attebury’s pursuit of his own ends via Defendant’s property entrusted to Attebury. The Device is described as part of “wildfire suppression operations” and “The DEVICE is an incendiary tool intended for use in remote, non-residential locations as part of backburning and other controlled wildfire suppression” (FAC ¶16.) The use of the Device at a residence is not consistent with the alleged purpose and the Court finds the principles stated in Alma and Gipson applicable here.  Assuming that the allegations in the First Cause of Action are true, Defendant is not liable for them.

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

Second Cause of Action – Violation of Mandatory Duty

The Court has stated the applicable principles under section 815.6 above.

As to this cause of action, the only statute specifically identified is Health and Safety Code section 12151, which states “Except while in the custody of a common carrier or in course of transportation pending delivery to a consignee, all explosives shall be kept or stored as specified in the rules or regulations adopted by the State Fire Marshal pursuant to this part.”  [In its Demurrer Defendant referred repeatedly to “Health and Safety Code section 112151.”  The Court assumes that this was a scrivener’s error  and that Defendant intended to cite section 12151.]

The Court agrees that this section appears limited to storage of the Device, as opposed to security, usage, removal or the other allegations and that the operative complaint fails to set forth what the storage requirements are or the applicable rules and regulations therefrom.

The Court is not examining the operative complaint for the “how and why” (citing to Semole v. Sansoucie (1972) 28 Cal.App.3d 714), but rather “what” statute or regulations 12151 refers to for examination under the three pronged test. 

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

Third Cause of Action – Negligence – Misuse of Hazardous Device by Employee

In a similar fashion to the first cause of action, the allegations here combine “direct” negligence theories, but cite section 815.2 as to “negligent handling, transportation, deployment of the DEVICE, while on-call and assigned emergency response tools…”

For the same reasons as above, as to direct negligence, no specific statutory reference is alleged that provides for breach of a mandatory duty.

As for liability under section 815.2, the Court finds it insufficient for the same reasons as under the first cause of action.

Therefore, the Court sustains the demurrer.

Fourth Cause of Action – Negligence – Negligent Hiring and Fifth Cause of Action - Negligence – Negligent Training and Supervision

There is no statute authorizing suits against public entities for negligent hiring, supervision, or training  (deVillers v. City of San Diego (2007) 156 Cal.App.4th 238, 252-253.)

Section 815.6, as noted above, requires a statute meeting the three part test to establish a mandatory duty. The Court has rejected the theory that Health and Safety Code section 12151, alone, meets that test.

Plaintiffs argue that deVillers and Munoz do not apply, as those were “cases involved purely direct liability theories without scope-of-employment facts or statutory duties.” Rather, Plaintiffs argue these theories “allege supervisory negligence by CAL FIRE employees acting within the scope of their duties, making CAL FIRE vicariously liable under § 815.2” For this, Plaintiffs cite to
Gold v. Cal. Highway Patrol (N.D.Cal. 2025) 763 F. Supp. 3d 914, 933, which, without citation other than to 815.2 itself, states that “Vicarious liability based on negligent failure to supervise. Defendants are not entitled to summary judgment on Plaintiff's vicarious liability claim.”

Absent a special relationship such as was present in
C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 869, there is no statutory authority for the liability alleged here.  The Court sustains the demurrer to the fourth and fifth causes of action.

Sixth Cause of Action – Negligence – Negligent Storage, Maintenance and Monitoring of Hazardous Materials

Again, for the same reasons as above, the Court finds no directly liability under section 815.6 is established via Health and Safety Code section 12151.

Therefore, the Court sustains the demurrer to this cause of action

Seventh Cause of Action – Negligence – Negligence Per Se

“…[T]he doctrine of negligence per se is not a separate cause of action but creates an evidentiary presumption that affects the standard of care in a cause of action for negligence." (Das v. Bank of America, N.A. (2010) 186 Cal.App.4th 727, 737-738, quotations, citations omitted.)

Therefore the Court sustains the demurrer to this cause of action without leave to amend.

Eighth Cause of Action – Negligence – Strict Liability for Ultrahazardous Activity

As noted above, liability against a public entity requires a statutory basis. This cause of action cites no such statutory basis under either sections 815.2 or 815.6.

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

Leave to Amend

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

Except as to the seventh cause of action, the Court sustains the demurrer with leave to amend. Plaintiff shall have ten (10) days to file an amended complaint as to the issues identified herein.

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:                Citibank N.A. vs. Leyva, Amelia

Case No.:  PCL320446

Date:           September 2, 2025

Time:           8:30 A.M. 

Dept.          23-The Honorable Glade F. Roper

Motion:    Defendant’s Motion to Compel Arbitration

Tentative Ruling: To grant the motion; to stay this matter and to order Defendant to initiate arbitration within 90 days.

Facts

On April 18, 2025, Plaintiff Citibank filed this complaint for breach of contract. Exhibit A appears to be the credit account agreement, which contained an arbitration term.

The arbitration terms contain the following:

“You or we may arbitrate any claim, dispute or controversy between you and us arising out of or related to your Account, a previous related Account or our relationship (called "Claims’).

If arbitration is chosen by any party, neither you nor we will have the right to litigate that Claim in court or have a jury trial on that Claim.”

Further, that “We won't initiate arbitration to collect a debt from you unless you choose to  arbitrate or assert a Claim against us. If you assert a Claim against us, we can choose to arbitrate, including actions to collect a debt from you. You may arbitrate on an individual basis Claims brought against you, including Claims to collect a debt.”

Additionally, that:

“Arbitration shall be conducted by the American Arbitration Association ("AAA") according to this arbitration provision and the applicable AAA arbitration rules in effect when the claim is filed ("AAA Rules”), except where those rules conflict with this arbitration provision.”

Further, that:

“The arbitration shall be conducted by a single arbitrator in accord with this arbitration provision and the AAA Rules, which may limit discovery. The arbitrator shall not apply any federal or state rules of civil procedure for discovery, but the arbitrator shall honor claims of privilege recognized at law and shall take reasonable steps to protect Account information and other confidential information of either party if requested to do so. The arbitrator shall apply applicable substantive law consistent with the FAA and applicable statute of limitations, and may award damages or other relief under applicable law.”

Finally, that:

“We will pay your share of the arbitration fee for an arbitration of Claims of $75,000 or less if they are unrelated to debt collection. Otherwise, arbitration fees will be allocated according to the applicable AAA Rules. If we prevail, we may not recover our arbitration fees, unless the arbitrator decides your Claim was frivolous. All parties are responsible for their own attorney's fees, expert fees and any other expenses, unless the arbitrator awards such fees or expenses to you or us based on applicable law.”

On May 21, 2025, Defendant answered the complaint.

On June 24, 2025, Defendant moved to compel arbitration based on the terms of the credit account agreement between the parties.

On August 5, 2025, Plaintiff filed a limited non-opposition, agreeing that arbitration is required with AAA, but that Defendant must initiate it, that this matter be stayed, and that the Court require the initiation of arbitration by Defendant within 90 days or waive their right to arbitration.

The Court will grant the motion as requested by Defendant. The Court also stays this matter pending arbitration.

Because Defendant has demanded arbitration, she is ordered to initiate the  arbitration within the next 90 days.  If she fails to do so she will be deemed to have waived arbitration.  The matter is set for a Case Management Conference December 2, 2025 at 8:30 a.m. to make sure the arbitration has been initiated.  If no one appears the Court will assume that the arbitration has been initiated and the matter will be set for a further Case Management Conference June 2, 2026.  If a judgment or dismissal has been filed prior to that date the matter will be taken off calendar.

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

Re:                IMO CBC SETTLEMENT FUNDING, LLC

Case No.:  PCU324284

Date:           September 2, 2025

Time:           8:30 A.M. 

Dept.           23-The Honorable Glade F. Roper

Motion:      Petition to Transfer Structured Settlement

Tentative Ruling: To deny the petition without prejudice.

Facts

Payee R.M. is over 18 years old, unmarried, with no minor children or dependents. Payee indicates he is unemployed. Payee does not have any court ordered support payments.

Payee currently receives an annuity from USAA Life Insurance Company. Although this settlement occurred in 2024, Payee is unable to locate documents concerning the settlement or annuity.

The extent of the settlement and annuity, therefore is unknown. In any event, Payee seeks to transfer, via this petition, 240 monthly payments in the amount of $1,000.00 beginning January 1, 2026 through and including December 1, 2045 (a discounted present value equal to $149,974.02) in exchange for $75,000. This creates a discount rate of 15.1%

Payee indicates he will still receive $1,975.94 per month from the annuity.

Payee indicates that Payee “intend[s] to purchase an RV/Mobile-home in full and locate to a private lot.”

Payee indicates Payee is not likely to require future medical care and treatment for injuries sustained in connection with the settlement and that the settlement was not intended for such purposes. Payee has waived his right to seek independent counsel.

Authority and Analysis

A transfer of structured settlement payment rights is not effective unless the transfer has been approved in advance in a final court order based on the following express findings by the Court.

Under Ins. Code § 10139.5(a)(1), the Court must determine whether the “transfer is in the best interest of the payee, taking into account the welfare and support of the payee’s dependents.” The Court considers the following non-exclusive factors under Ins. Code § 10139.5(b):

(1) The reasonable preference and desire of the payee to complete the proposed transaction, taking into account the payee’s age, mental capacity, legal knowledge, and apparent maturity level.

(2) The stated purpose of the transfer.

(3) The payee’s financial and economic situation.

(4) The terms of the transaction, including whether the payee is transferring monthly or lump sum payments or all or a portion of his or her future payments.

(5) Whether, when the settlement was completed, the future periodic payments that are the subject of the proposed transfer were intended to pay for the future medical care and treatment of the payee relating to injuries sustained by the payee in the incident that was the subject of the settlement and whether the payee still needs those future payments to pay for that future care and treatment.

(6) Whether, when the settlement was completed, the future periodic payments that are the subject of the proposed transfer were intended to provide for the necessary living expenses of the payee and whether the payee still needs the future structured settlement payments to pay for future necessary living expenses.

(7) Whether the payee is, at the time of the proposed transfer, likely to require future medical care and treatment for the injuries that the payee sustained in connection with the incident that was the subject of the settlement and whether the payee lacks other resources, including insurance, sufficient to cover those future medical expenses.

(8) Whether the payee has other means of income or support, aside from the structured settlement payments that are the subject of the proposed transfer, sufficient to meet the payee’s future financial obligations for maintenance and support of the payee’s dependents, specifically including, but not limited to, the payee’s child support obligations, if any. The payee shall disclose to the transferee and the court his or her court-ordered child support or maintenance obligations for the court’s consideration.

(9) Whether the financial terms of the transaction, including the discount rate applied to determine the amount to be paid to the payee, the expenses and costs of the transaction for both the payee and the transferee, the size of the transaction, the available financial alternatives to the payee to achieve the payee’s stated objectives, are fair and reasonable.

(10) Whether the payee completed previous transactions involving the payee’s structured settlement payments and the timing and size of the previous transactions and whether the payee was satisfied with any previous transaction.

(11) Whether the transferee attempted previous transactions involving the payee’s structured settlement payments that were denied, or that were dismissed or withdrawn prior to a decision on the merits, within the past five years.

(12) Whether, to the best of the transferee’s knowledge after making inquiry with the payee, the payee has attempted structured settlement payment transfer transactions with another person or entity, other than the transferee, that were denied, or which were dismissed or withdrawn prior to a decision on the merits, within the past five years.

(13) Whether the payee, or his or her family or dependents, are in or are facing a hardship situation.

(14) Whether the payee received independent legal or financial advice regarding the transaction. The court may deny or defer ruling on the petition for approval of a transfer of structured settlement payment rights if the court believes that the payee does not fully understand the proposed transaction and that independent legal or financial advice regarding the transaction should be obtained by the payee.

(15) Any other factors or facts that the payee, the transferee, or any other interested party calls to the attention of the reviewing court or that the court determines should be considered in reviewing the transfer.”

The Court seeks additional information regarding Payee’s “(3)…financial and economic situation.” Information such as Payee’s monthly income and expenses would indicate to the Court the effect of the transferring the structured settlement payments at issue. The declaration contains insufficient information for the Court to fully analyze Payee’s economic situation, though the Court notes Payee indicates he is unemployed, but has income from the annuity.

The Court notes no hardship situation has been stated, but rather the proposed transfer is for a purchase of an RV/Mobile Home in full and to locate it on a private lot. The Court requires the same information to assist in determining whether Payee would qualify for a loan, has sufficient means to make the estimated monthly loan payments, pay monthly utilities and other related expenses of RV or mobile home ownership, including any costs and fees (one time or monthly) to locate it in a private lot, as well as an estimation of the costs of the RV or mobile home and associate recurring expenses.

Additionally, the Court finds the discount rate here higher than what is typically seen on these petitions.

Based on the information that the Court must evaluate when it considers the approval of the transfer of structured settlement funds, the Court finds that it is not in the best interests of the payee to approve the transfer of structured settlement. The Petition is denied without prejudice.

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

Re:                Torres, Juana et al vs. Mendoza Morales, Juan Pablo et al

Case No.:   PCU297734

Date:           September 2, 2025

Time:           8:30 A.M. 

Dept.          23-The Honorable Glade F. Roper

Motion:     Defendants’ Ex Parte Motion to Amend the Answer

Tentative Ruling: To deny the motion without prejudice

Facts

In this motor vehicle negligence action resulting in a death, Plaintiffs sue Defendants  Well Rehabilitation Services, Inc. and Gilberto Ochoa, amongst others.

 Defendants Well Rehabilitation and Ochoa answered the complaint on October 3, 2023, asserting a number of affirmative defenses which did not expressly include sudden emergency.

Defendants Well Rehabilitation and Ochoa move for summary judgment, asserting facts and argument as to the sudden emergency doctrine.

On August 20, 2025, Plaintiffs filed their opposition to the motion, arguing that the Court could not adjudicate the sudden emergency affirmative defense because Defendants had not included the affirmative defense in the answer.

On August 28, 2025, Defendants filed this ex parte motion to amend the answer to include the sudden emergency defense and to have the Court rule on the merits thereof on the summary judgment motion.

In support, Defendants state: “Upon review of the plaintiffs’ opposition to defendants’ MSJ on August 22, 2025, defendants learned that the Sudden Emergency Doctrine has to be pled as an affirmative defense.” (Declaration of Pierce ¶6.) Further, that “Defendants brought this issue to the Court’s attention via the instant ex parte application immediately after learning that the Sudden Emergency Doctrine has to be pled as an affirmative defense.” (Declaration of Pierce ¶8.)

A proposed amended answer is attached to the motion.

Authority and Analysis

The Court may, in the furtherance of justice, and upon any terms as may be proper, allow a party to amend any pleading.  (Code Civ. Proc. §§ 473, 576.)  In general, California courts liberally exercise discretion to permit amendment of pleadings in light of a strong policy favoring resolution of all disputes between parties in the same action.  (Nestle v. Santa Monica (1972) 6 Cal.3d 920, 939; Mesler v. Bragg Management Co. (1985) 39 Cal.3d 290, 296 [“[T]here is a strong policy in favor of liberal allowance of amendments.”].)  Pursuant to this policy, requests for leave to amend generally will be granted unless the party seeking to amend has been dilatory in bringing the proposed amendment before the Court, and the delay in seeking leave to amend will cause prejudice to the opposing party if leave to amend is granted.  (Hirsa v. Superior Court (1981) 118 Cal.App.3d 486, 490; Higgins v. Del Faro (1981) 123 Cal.App.3d 558, 564-565.)  The decision on a motion for leave is directed to the sound discretion of the trial court. 

Rule 3.1324 regulates the content of the motion and supporting declaration as follows:

“(a) Contents of motion

A motion to amend a pleading before trial must:

(1)  Include a copy of the proposed amendment or amended pleading, which must be serially numbered to differentiate it from previous pleadings or amendments;

(2)  State what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph, and line number, the deleted allegations are located; and

(3)  State what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located.

(b) Supporting declaration

A separate declaration must accompany the motion and must specify:

(1)  The effect of the amendment;

(2)  Why the amendment is necessary and proper;

(3)  When the facts giving rise to the amended allegations were discovered; and

(4)  The reasons why the request for amendment was not made earlier.”

Subsection (a) is complied with via the attached proposed amendment.

As to subsection (b), the Court finds sufficient information in the declaration as to the effect of the amendment and its necessity under (b)(1) and (b)(2).

However, as to (b)(3) and (b)(4), the answer in this matter was filed in October 2023 and nearly two years have passed without discovery of the absence of this affirmative defense. Neither discovery nor review of the answer revealed the absence. Only when Plaintiffs opposed the summary judgment, which was apparently filed without review of the answer and lack of affirmative defense, did Defendants move, a week before the summary judgment hearing, move to amend the answer so that the Court may consider the defense on summary judgment. The absence of the affirmative defense and facts in support thereof, appear to have been known, at least as of the date of the summary judgment’s filing. When Counsel became aware of the absence of the defense is not issue under (b)(3). Rather, the Court lacks any explanation whatsoever when the underlying facts that would support the defense became known to Defendants. Under the declaration provided, Defendants' assertions are not sufficiently detailed to provide a satisfactory explanation under Rule 3.1324(b)(3) and (b)(4).

Additionally, Code of Civil Procedure section 431.30(b) states that “[t]he answer to a complaint shall contain: (1) the general or specific denial of the material allegations of the complaint controverted by the defendant; (2) A statement of any new matter constituting a defense.”  An affirmative defense must be pleaded with the same sufficient ultimate facts – and not “evidentiary” matter or “legal conclusions” - that a plaintiff would be required to set forth in a complaint.  (Youndall v. Kaufman (1921) 55 Cal.App.363, 368.) The answer must aver facts “as carefully and with as much detail as the facts which constitute the cause of action and which are alleged in the complaint.” (FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 384.) An affirmative defense set forth in an answer will lie when the facts alleged in that defense constitute “new matter,” i.e., facts relied on by the defendant that the plaintiff’s complaint has not already put at issue.  (State Farm Mutual Auto Ins. Co. v. Superior Court (1991) 228 Cal.App.3d 721, 725.)

The proposed affirmative defense does not meet this standard.

As such, the Court is not inclined to permit this amendment at this time. The Court will also not continue the summary judgment motion hearing to permit compliance with the Rules of Court. For purposes of the summary judgment motion, the affirmative defense of sudden emergency has not been pled and will not be considered on the Court’s ruling.

Therefore, the ex parte motion is denied without prejudice.

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

Examiner Notes for Probate Matters Calendared

• Visalia Division 
• South County Justice Center Division