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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: 08/02/2015 at 7:19am



The Tentative Rulings for Monday, August 3, 2015 are:

Re:              Papion v. Diaz

Case No.:   VCU 259188

Date:          August 3, 2015

Time:          8:30 A.M. 

Dept.          1 – The Honorable Melinda Reed

Motions:      (1) Defendant Gabriel Diaz’s Motion to Deem Plaintiff Sally Ann Papion’s Responses to Defendant Gabriel Diaz’s Requests for Admissions, Set One, as Admitted;

(2) Defendant Gabriel Diaz’s Motion to Compel Plaintiff Sally Ann Papion’s Verified Responses to Defendant Gabriel Diaz’s Form Interrogatories, General, Set One;

(3) Defendant Gabriel Diaz’s Motion to Compel Plaintiff Sally Ann Papion’s Verified Responses to Defendant Gabriel Diaz’s Special Interrogatories, Set One;

(4) Defendant Gabriel Diaz’s Motion to Compel Plaintiff Sally Ann Papion’s Verified Responses to Defendant Gabriel Diaz’s Request for Production of Documents, Set One;

Tentative Rulings: There are no tentative rulings for these motions. The parties are directed to meaningfully meet and confer in order to resolve their discovery disputes. If the parties are unable to resolve, counsel are directed to personally appear at the hearing on the motions. No CourtCall is permitted if the parties have not fully resolved the motions on the merits.
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Re:             Nuckols, individually and dba Nuckols Farming v. City of Porterville, et al.

Case No.:   VCU 261084

Date:          August 3, 2015

Time:         8:30 A.M. 

Dept.         1 – The Honorable Melinda Reed

Motion:      Defendant City of Porterville’s Demurrer to Complaint

Tentative Ruling:  To overrule Defendant City of Porterville’s (City) Demurrer to the first through sixth causes of action of the complaint; and to sustain without leave to amend as to the seventh cause of action.

Plaintiff Robert Nuckols’, individually and dba Nuckols Farming, (Nuckols) complaint alleges several causes of action against the City based upon the City’s alleged breach of a reclamation area lease agreement that the parties entered into on November 1, 2014.

The City contends in its demurrer that the complaint fails to state proper claims because as a matter of law (1) it was entitled to terminate the lease agreement based upon Nuckols’ failure to obtain approval from the City to change the crop schedule, and (2) Nuckols waived damages. The City further asserts Nuckols’ claim of equal protection is deficient because Nuckols has not alleged he was a member of a protected class.

In review of a demurrer, if a contract described in the complaint (or attached as an exhibit) is deemed to be ambiguous, “parol evidence may be admitted to explain the meaning of a writing when the meaning urged is one to which the written contract term is reasonably susceptible or when the contract is ambiguous. Parol evidence cannot be admitted to show intention independent of an unambiguous written instrument.” (George v. Automobile Club of Southern California (2011) 201 Cal. App. 4th 1112, 1125 citing Hayter Trucking, Inc. v. Shell Western E&P, Inc. (1993) 18 Cal. App. 4th 1, 15.)

Hayter determined that “while the words in a contract are to be construed according to their plain, ordinary, popular or legal meaning, ‘particular expressions may, by trade usage, acquire a different meaning’ (ibid.), and parol evidence is admissible to establish the trade usage ‘even though the words in their ordinary or legal meaning are entirely unambiguous.’” (George v. Automobile Club of Southern California, supra, 201 Cal. App. 4th at p. 15.)

Further, in Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal. App. 4th 97, 114-115, the court upheld the general principal that “[a] court determining whether a contract is ambiguous must first consider extrinsic evidence offered to prove the parties’ mutual intention. If the court determines that the contract is reasonably susceptible of an interpretation supported by extrinsic evidence, the court must admit that evidence for purposes of interpreting the contract.” (Emphasis original.) (George v. Automobile Club of Southern California, supra, 201 Cal. App. 4th at p. 22.)

In order to survive a demurrer, the appellate court in George reasoned that after considering plaintiff’s parol evidence, the contract must be reasonably susceptible to the plaintiff’s interpretation. 

In regard to the crop plan specified in the lease, paragraph 13.5 of the lease states “Any amendment, requested by the lessee, to the biosolids management plan shall be submitted to the City in writing and must be approved by the City prior to October 1st of each year.” 

Here, Nuckols asserts he changed the crop plan without first seeking permission because the time had already expired to submit a request for planting crops in November and December 2014 when he entered into the lease agreement. Further, the complaint alleges that the planting called for in the crop schedule was infeasible, at risk of hindering production, and would cause an uptake of nitrates due to the conditions of the fields and the weather.

In that regard, the complaint additionally alleges (1) the stated overall objective of the Biosolids Management Plan was to maximize the reuse potential for effluent and biosolids, while staying below the nitrogen limits for the crops; (2) the Regional Water Quality Control Board’s regulatory compliance and the City’s objective were dependent upon the management of nitrogen levels; (3) under the lease Nuckols was required to conduct all operations according to good farming practices; and (4) changes may occur in the crop schedule according to the Biosolids Management Plan.

Accordingly, under these circumstances, Nuckols has sufficiently shown ambiguity in the lease and offered evidence that could establish a mutual understanding or custom or usage between the parties that permitted Nuckols to change the crop schedule without permission.

As to waiver of the City’s liability for crop loss (paragraph 12.4) and waiver of Nuckols’ rights for redemption in the event the City obtains possession of the premises in a lawful manner (paragraph 22.4), the lease also states the City is not responsible for lost or damaged property unless the City takes possession of the property (paragraph 33). Here, the complaint clearly asserts Nuckols’ crop loss occurred as a result of the City’s alleged unlawful conduct in terminating the lease and taking possession of his crops. As such, whether or not waiver has occurred is a question of fact and cannot be resolved on demurrer.

In regard to the seventh cause of action for a violation of equal protection, the complaint is deficient for failure to allege that the City acted against Nuckols based upon membership in a protected class as required by 42 U.S.C. section 1983. (See Freeman v. City of Santa Ana (1995) 68 F. 3d 1180.)  Nuckols’ argument that under Engquist v. Oregon Dept. of Agriculture (2008) 553 U.S. 591 he need only plead that he has been intentionally treated differently from others similarly situated does not bear scrutiny.

In Engquist the court determined that the class-of-one theory applies to “legislative or regulatory” classifications and not to the public employment context. Here, Nuckols was not subject to any governmental legislation or regulation, but instead was a party to a contract with the City. As such, this case is similar to Engquist and Nuckols’ class-of-one claim is unavailable in this context.

In sum, the allegations of the complaint are sufficient to show an ambiguity in the lease agreement that is reasonably susceptible to the meaning asserted by Nuckols. Thus, the court cannot conclude that the complaint conflicts with the plain words of the lease agreement at this stage of the proceedings or fails to state adequate causes of action as a matter of law. Accordingly, the demurrer is overruled as to the first through sixth causes of action.

However, the demurrer is sustained as to the seventh cause of action for a violation of equal protection. Given the circumstances of this case, there does not appear to be a reasonable probability the complaint can be properly amended to state Nuckols was subject to legislation or regulation or is a member of a protected class.

Therefore, the City’s demurrer is sustained to the seventh cause of action without leave to amend; and overruled as to all other causes of action. The City shall file its answer within ten days’ notice of the court’s ruling.  

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:             Moreno v. Visser Ranch, Inc. et al.  

Case No.:   VCU 254522

Date:          August 3, 2015

Time:          8:30 A.M. 

Dept.          1 – The Honorable Melinda Reed

Motions:     (1) Defendants Visser Ranch, Inc. and Graceland Dairy, Inc.’s Motion for Leave to File First Amended Answer; and (2) Defendant Ernesto Moreno Lopez’s Motion for Leave to File First Amended Answer

Tentative Rulings:  (1) To Grant Defendants Visser Ranch, Inc. and Graceland Dairy, Inc.’s (collectively Visser Ranch) Motion for Leave to File First Amended Answer; and (2) To Grant Defendant Ernesto Moreno Lopez’s Motion for Leave to File First Amended Answer.

Proof of service in the court’s file indicates that notice of the hearing and motions is adequate. No response to Lopez’s motion has been filed.

Here, Vissar Ranch seeks to amend its answer to plaintiff Ray D. Moreno’s complaint primarily to add an affirmative defense limiting any recovery by Moreno to $15,000.00 for permissive use under Vehicle Code section 17151.  Lopez wishes to add an affirmative defense alleging comparative negligence for Moreno’s alleged failure to wear a seatbelt at the time of the accident.

The court has discretion “in furtherance of justice” to grant leave to a party to amend any party’s pleading under Code of Civil Procedure section 473(a)(1). Leave to amend should be liberally granted “at any stage of the proceedings, up to and including trial” absent prejudice to the adverse party. (Atkinson v. Elk. Corp. (2003) 109 Cal. App. 4th 739, 761.) It is an abuse of discretion to deny a timely motion for leave to amend if the motion does not prejudice the opposing party. (Morgan v. Superior Court (1959) 172 Cal. App. 2d 527, 530-31.)

Here, Lopez’s answer presently alleges an affirmative defense of comparative negligence and his proposed amendment identifying failure to use a seatbelt simply clarifies one aspect of the defense.

Vissar Ranch’s request is based upon codified law under Vehicle Code sections 17150 and 17151 limiting the liability of the owner of a vehicle to $15,000.00 when the vehicle is used with the owner’s permission except when the driver of that automobile is the employee or agent of the owner.

Moreno’s argument that case law interpreting Vehicle Code section 17151 does not support the proposed amendment is unavailing. Both cases cited by Moreno are distinguishable. In Fremont Compensation Ins. Co. v. Harnett (1993) 19 Cal. App. 4th 669, the defendant’s liability was not based exclusively upon permissive use and included negligence. In Haynes v. Farmers’ Insurance Exchange (2004) 32 Cal. 4th 1998, the action was for declaratory relief against an insurance company regarding coverage limitations and permissive use under Vehicle Code section 17151 was not in issue.

Furthermore, Moreno is unable to show measurable prejudice by allowing Vissar Ranch’s proposed amendment since the question of whether Lopez was acting within the course and scope of his employment is already in issue in this case.

In sum, in the furtherance of justice, leave to amend Lopez’s and Vissar Ranch’s answers is granted.  Lopez and Vissar Ranch are directed to file and serve their proposed first amended answer within five days’ notice of the court’s ruling.

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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