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civil tentative rulings


The court does not issue tentative rulings on Writs of Attachment, Writs of Possession, Claims of Exemption, Claims of Right to Possession, Motions to Tax Costs After Trial, Motions for New Trial, or Motions to Continue Trial.


Under California Rules of Court, rule 3.1308 and Local Rule 701, any party opposed to the tentative ruling must notify the court, and other parties, by 4:00 p.m. on the court day before the hearing of their intention to appear for oral argument. The court's notice must be made by facsimile to 559-733-6774.


Timestamp: 03/03/2015 at 3:05am



The Tentative Rulings for Tuesday March 3, 2015 are:

Re:              LVN Funding, Inc. v. Juan A. Negrete

Case No.:   VCL 162694

Date:          March 3, 2015

Time:         8:30 A.M. 

Dept.         7 – The Honorable Bret Hillman

Motion:     Plaintiff’s Motion for Order that Matters in Requests for Admission of Truth of Facts Be Admitted and for Monetary Sanction Against Defendant Juan A. Negrete

Tentative Ruling:  To grant plaintiff’s motion for order that matters in requests for admission of truth of facts be admitted.  Defendant Juan A. Negrete shall pay monetary sanctions to defendant’s counsel in the amount of $332.50 within thirty days from the hearing date of this motion. 

Defendant shall be afforded thirty days’ leave to properly apply for relief from this order deeming admitted the facts and allegations set forth in plaintiff’s first set of request for admissions before plaintiff may take any action to seek or obtain a judgment in this case.

Defendant cannot seek relief under CCP §473 from an order that deems admitted the facts and allegations set forth in plaintiff’s first set of requests for admissions because CCP §2033.280 and §2033.300 exclusively set out the conditions under which a party my obtain relief from an order deeming matters admitted.  See St. Paul Fire and Marine Ins. Co. v. Superior Court (Advalloy, Inc.)(1992) 2 Cal.App.4th 843,853; Wilcox v. Birtwhistle (1999) 21 Cal.4th 973,983.

The Court notes that defendant’s opposition papers include an attempt to comply with CCP §2033.220 and this response attempts to deny each and every allegation set forth in plaintiff’s first set of requests for admissions.  But where these responses are not verified, nor comply with the provisions of CCP §2033.210, the Court cannot find defendant’s attempted responses to be in “substantial compliance” under CCP §2033.280(c) such that the Court would have discretion to deny the plaintiff’s 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.

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Re:              Herrera, et al. v. Leon, et al.

Case No.:   VCL 164371

Date:          March 3, 2015

Time:         8:30 A.M. 

Dept.         7 – The Honorable Bret Hillman

Motion      Plaintiffs’ Motion for Relief From Dismissal

Tentative Ruling:  To grant plaintiff’s motion for relief from dismissal.

Under CCP §473(b), when an application for relief is made no later than six months from dismissal entered against a party, and this application includes an attorney’s sworn affidavit that attests to his or her mistake, inadvertence, surprise, or neglect that resulted in the dismissal, the Court shall vacate the dismissal absent a finding that the dismissal was not the result of the attorney’s fault.

In this case, plaintiff’s counsel indicates that due to a clerical oversight in his office, the September 4, 2014 Case Management Conference for this case was never calendared for an appearance by plaintiff’s counsel. 

This resulted in the issuance of an Order to Show Cause by the Court to be heard on September 18, 2014, and for some inexplicable reason the Court’s notice of the hearing on this September 18, 2014 OSC was not received in the office of plaintiff’s counsel until September 22, 2014, which was after the Court had ordered the case dismissed at the September 18 OSC.

Plaintiff offers the declaration of Lizette Chavira, the calendar clerk in the office of plaintiff’s counsel who takes responsibility for the calendaring errors in this case that resulted in the dismissal of this action. 

Plaintiff also offers the declaration of his attorney Antonio Rodriguez in support of his motion to set aside the dismissal.  Although Mr. Rodriguez does not express direct responsibility in his declaration for the calendaring errors that resulted in the dismissal of this case, Mr. Rodriguez is responsible for the supervision of his staff, and therefore any error committed by his staff that resulted in a default or dismissal is deemed to be the “fault” of the attorney for purposes of CCP §473(b).  See Hu v. Fang (2002) 104 Cal.App.4th 61, 64.

Based on the mandatory provisions of CCP §473(b) where the Court is required to set aside the dismissal of an action where the dismissal is deemed to be the fault of the plaintiff’s counsel, the Court grants plaintiff’s motion to set aside the dismissal of this case that was entered on September 18, 2014

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.

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Re:              Discover Bank v. Souza, et al.

Case No.:   VCL 158036

Date:          March 3, 2015

Time:         8:30 A.M. 

Dept.         7 – The Honorable Bret Hillman

Motion:     Plaintiff’s Motion to Enter Judgment Pursuant to CCP §664.6

Tentative Ruling: To grant plaintiff’ Discover Bank’s Motion to Enter Judgment under CCP §664.6

Proof of service of the moving papers for this matter indicate that this motion was timely and properly served on Michael Souza at the address identified in defendant’s General Denial to plaintiff’s complaint.  The Court has not received any response from defendant Souza to this motion.

This motion arises out of a stipulated settlement agreement that the parties executed under CCP 664.6 that provided that defendant Michael Souza shall pay to plaintiff Discover Bank $8,224.04 by September 26, 2016 based on monthly payments of $230.00 each month from October 25, 2013 through August 25, 2016 with a final payment of $172.04 on or before September 25, 2016. This stipulation further provided that if Mr. Souza did not make the payments as indicated in the terms of the stipulation that he would be deemed to be in default.

Plaintiff’s moving papers allege that Mr. Souza is in default based on his failure to make payments for October, 2014 and every month thereafter, and that the current principal balance due to plaintiff is $5,199.54.

As per the terms of the stipulation, plaintiff sent its notice of default to Mr. Souza’s debt management company as requested by Mr. Souza, and afforded Mr. Souza ten days to cure the default on the stipulated settlement agreement. Plaintiff asserts that Mr. Souza did not cure the default during those ten days nor tender the outstanding balance due to plaintiff.

CCP §664.6 authorizes the court to enforce the terms of the Stipulated Settlement Agreement that the parties entered into in this action. The Supreme Court has held that the term “parties as used in §664.6 means the litigants themselves, and does not include their attorneys of record.  See Levy v. Superior Court (1995) 10 Cal.4th 578, 586. Therefore, the Court has jurisdiction to enforce the terms of any stipulated settlement executed under §664.6 by entering a judgment as per the terms of that stipulation.  Levy, at 586.

In this case, the stipulation at issue was signed by the litigants themselves, and the terms of this stipulation explicitly provide that the Court would retain jurisdiction to enter judgment if Mr. Souza failed to meet his obligations under the stipulated settlement agreement.

This stipulation also provides that plaintiff could file a motion to enforce the judgment under CCP §664.6 if Mr. Souza breached the settlement. See Exhibit “A” to plaintiff’s moving papers. Plaintiff is also required to give notice of the default to Mr. Souza as per the terms of the stipulation and Mr. Souza has failed to cure the default.

Based on the provisions of CCP §664.6, and good cause appearing therefor, the Court grants judgment to plaintiff against defendant Michael Souza in the principal sum of $5,199.54 and costs as per the terms of the stipulated settlement agreement that the parties in this case filed with the Court on November 7, 2013.

If no one requests oral argument, the Court is prepared to sign the “Order Entering Judgment Pursuant to CCP §664.6” that plaintiff Discover Bank lodged with the Court, and service by the clerk of this executed order on the defendant will constitute notice of the order.

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Re:              Financial Credit Network, Inc. v. Shannon P. Ezell, et al.

Case No.:   VCL 162732

Date:          March 3, 2015

Time:         8:30 A.M. 

Dept.         1 – The Honorable Melinda Reed

Motion:     Defendant Harold Dean Ezell’s Motion to Set Aside Default and Default Judgment

Tentative Ruling:  To Grant Defendant’s Harold Dean Ezell’s Motion to Set Aside Default and Default Judgment.

Here, default judgment was entered against defendant Harold Dean Ezell on July 29, 2014. Ezell claims he “was unaware that [this] case was even pending” or that default judgment had been entered until after plaintiff Financial Credit Network, Inc. (Financial Credit) began garnishing his wages in September 2014. 

Under Code of Civil Procedure section 473(b), default judgment may be set aside based upon excusable neglect if application is made within a reasonable time but within six months from default judgment. Additionally, Code of Civil Procedure section 473.5 provides for relief based upon lack of actual notice when application is made within a reasonable time but within two years after entry of default judgment. Both sections require that a proposed answer accompany the motion.

The court in Elston v. City of Turlock (1985) 38 Cal. 3d 227, 233, held that section 473 is to be liberally construed in favor of permitting trial on the merits and doubts in applying the section should be resolved in favor of the party seeking relief.

In regard to Ezell’s claim of lack of notice, proof of service in the court’s file shows Financial Credit served Ezell with the summons and complaint by substituted service at his home and that the documents were left with a person named Darcy, a co-tenant. Ezell’s declaration asserts that “he [does] not, nor [has] he had, anybody living at [his] home, or staying there, by that name.” Financial Credit has not submitted any evidence to the contrary.

Furthermore, Financial Credit failed to mail the request for entry of default and default judgment, writ of execution, and abstract of judgment to Ezell’s correct address. And, Financial Credit has not shown that Ezell received proper notice of entry of judgment or that it would suffer any prejudice if relief is granted.

Additionally, the evidence shows Ezell acted diligently in seeking relief from default as his attorney promptly contacted Financial Credit’s attorney after Ezell learned of the garnishment. After Ezell’s attorney’s attempts to secure a stipulation to set aside the default and default judgment were unsuccessful, the motion for relief was filed without undue delay and within six months from entry of default judgment.

Financial Credit’s argument that the motion for relief must be denied because Ezell neglected to include his proposed answer with the motion is unavailing. The requirement is not jurisdictional under Carmel, Ltd. v. Tavoussi (2009) 175 Cal.App.4th 393, 402-403 and on March 2, 2014, Ezell submitted his proposed answer to the court. The court assumes a copy of the pleading was also provided to Financial Credit.

In sum, any doubt in resolving Ezell’s claim of lack of notice is resolved in his favor given the submitted evidence in this case. Thus, the motion is granted under section 473(b) based upon excusable neglect and section 473.5 based upon lack of actual notice. Ezell is directed to file and serve his proposed answer within five days’ notice of the court’s order.

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.


This concludes the civil tentative rulings



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