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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: 06/29/2016 at 11:44pm



The Tentative Rulings for Thursday June 30, 2016 are:

Re:             Chicago Title Company v. Hada

Case No.:   VCL 139171

Date:          June 30, 2016

Time:          8:30 A.M. 

Dept.           2– The Honorable David Mathias

Motion:       Motion for Release of Interplead Funds on Deposit with Court

Tentative Ruling:   To grant the motion of Gerry K. Hada, Successor Trustee of the Kay K. Hada and Shizuye Hada Revocable Living Trust dated January 10, 1997 for release of interplead funds on deposit with this Court as specified in the terms of this ruling.

The Clerk of the Court is directed to release the sum of $17,319.63 interplead funds on deposit with court to the Kay K. Hada and Shizuye Hada Revocable Living Trust dated January 10, 1997 (“the Hada Trust) upon the filing by the City of Dinuba of a declaration or related document that affirms the representations in the declaration of the moving party’s counsel that the City of Dinuba has indeed disclaimed any interest as to any of the funds on deposit with the Court that are the subject of this motion.  

The funds on deposit with the Court as to this action are the by-product of an interpleader action brought by plaintiff Chicago Title Company to determine the proper distribution of $20,000 that Chicago Title deposited with this Court.  This $20,000 sum arises out of funds that SugarPlum Homes, LLC deposited with Chicago Title to open an escrow account to further the purchase of real property from the Hada Trust. 

The terms of the sales contract for the sale of this real estate contained a liquidated damage clause that provided that the funds that SugarPlum deposited into the Chicago Title escrow account would be distributed to the Hada trust if this proposed real estate sale was not completed. 

After SugarPlum failed to complete the sale of this real estate from the Hada trust, SugarPlum assigned its interest to the City of Dinuba and then went out of business.  The City of Dinuba subsequently purchased this property from the Hada trust under different and new terms and conditions than had been negotiated in the sales contract between SugarPlum and the Hada Trust.

On or about March 9, 2016, this Court issued and served on all potentially affected parties a “Notice of Funds Remaining on Deposit with Court and Order Re: Application for Release of Deposited Funds.” 

This notice indicated that on or about September 30, 2016, the Court directed that sum of $2,608.37 from the $20,000.00 that Chicago Title deposited with the Court be distributed to plaintiff Chicago Title Company, which left a balance due of $17,319.63.  This notice further indicated that a default judgment had been entered against all the named defendants.

Under the original sales contract between SugarPlum and the Hada trust, the only potential claimants to the balance of funds from the Chicago Title escrow account that remain on deposit with the Court would be the Hada trust, SugarPlum Homes LLC and the City of Dinuba as the assignee of the rights previously afforded to SugarPlum that are set forth in the SugarPlum/Hada Trust sales contract. 

The Hada trust’s moving papers for this motion indicate that SugarPlum is no longer an active corporation in its original state of incorporation (Utah). The website for the California Secretary of State further indicates that SugarPlum’s status as an entity licensed to do business in California has been “cancelled.”

As to the City of Dinuba (as the successor-in-interest to SugarPlum’s rights under the Hada Trust sales contract) counsel for the Hada trust indicates in his declaration in support of this motion to distribute the balance of the funds remaining in the Chicago Title escrow account that the City of Dinuba has disclaimed any interest in these funds. 

But to ensure that City of Dinuba has indeed waived any claim to these remaining funds on deposit with Chicago Title, and to avoid the potential of further litigation as to the proper distribution of these funds, the Court directs counsel for the Hada trust to contact the City of Dinuba to advise them to file notice with the Court that confirms that City of Dinuba has indeed disclaimed any interest in the funds from the Chicago Title escrow account that are currently on deposit with this Court.

Based on the foregoing, and if no one requests oral argument, counsel for the moving party shall prepare an Order for the Court’s signature that memorializes the terms of this ruling with attached documentation from the City of Dinuba that disclaims any interest in these subject funds.  Upon execution of this Order, counsel for the Hada trust is directed to serve conformed copies of this executed order on all affected parties, and file with the Court a “Proof of Service of Order granting the motion of Gerry K. Hada, Successor Trustee of the Kay K. Hada and Shizuye Hada Revocable Living Trust dated January 10, 1997 for release of interplead funds on deposit.”

Re:             Bragg v. Driven Motor Sports

Case No.:   VCU 258582

Date:          June 30, 2016

Time:          8:30 A.M. 

Dept.          2– The Honorable David Mathias

Motion:      Defendants James Gregory Nunley, Nunley Racing, LLC, La Tula Investments, LLC, Great Valley Builders LLC, and Driven Motor Sports’ Motion for Determination of Good Faith Settlement

Tentative Ruling:   To grant defendants James Gregory Nunley, Nunley Racing, LLC, La Tula Investments, LLC, Great Valley Builders LLC, and Driven Motor Sports’ (the Nunley defendants) motion for determination of good faith settlement

Proof of service in the Court’s file for this action reflects that all necessary parties received timely and proper notice of this motion.  The Court has not received any response from any of the involved parties in this action.

This action arises out a single-vehicle accident (a Chevrolet truck) that plaintiff Lori Bragg was driving in Baja California, Mexico on November 15, 2012. Ms. Bragg suffered crippling injuries in this accident that rendered her a paraplegic. One of the passengers in this truck (a Mark Eriksson) was killed in this accident and left a wife and minor children.

Lori and Gregory Bragg (Lori’s husband) filed a complaint with this Court that alleged causes of action for (1) negligence per se; (2) negligence; (3) strict products liability against General Motors, and (4) loss of consortium.

The Braggs’ complaint further alleges that (1) Lori was an employee of the Nunley defendants and defendants John and Riggs Lennon and that these defendants did not maintain active workers’ compensation insurance; (2) the truck that she was operating was negligently loaded by agents for the Nunley defendants and the Lennon defendants such that it caused the truck to lose control; (3) the truck was unsafe for its intended use by reasons of defects in its design, manufacturing, and/or failure to warn, and that GM should be held liable for these defects.

Gregory Bragg further alleges in this complaint that he lost his wife’s love, companionship, affection, society, moral support, and solace.

General Motors has recently agreed to a settlement with the Braggs, and this Court will hear GM’s motion for determination of good faith settlement on July 21, 2016.

On April 30, 2014, the heirs of decedent Mark Eriksson filed a separate action in Los Angeles County arising out of this same November 12, 2014 accident.  The Eriksson’s complaint names as defendants Lori Bragg, the Nunley and Lennon defendants, and Score International, Inc. 

The thrust of the Erickson family’s complaint is that the Nunley and Lennon defendants and Score International, Inc. were vicariously liable for Lori Bragg’s negligence based on agency, employment and joint venture liability. 

Specifically, the Eriksson charge that the equipment that Lori Bragg was carrying was negligently loaded onto the truck, and that this truck was negligently entrusted to her.  The trial in the Eriksson case is currently on calendar for August 29, 2016.

As the result of a day long mediaton followed by a month of further negotiations, the Nunley defendants reached an agreement with both the Bragg and Eriksson plaintiffs to settle each of their respective cases.  The total settlement for both cases was $5,500,000.00 with the Eriksson family receiving $4,975.000 and the Braggs receiving a lump sum payment of $525,000.00. 

This total settlement amount of  $5,500,000.00 was the sum total of the policy limits of the Nunley defendants’ vehicle protection and umbrella policies that Encompass Insurance issued to these defendants with 75% distributed to the Eriksson family and the remaining 25% to the Bragg plaintiff. 

The Nunley defendants contend that they do not have any other liability insurance coverage that could further compensate the Eriksson or Bragg plaintiffs for the damages that they sustained in the accident that is at issue in both of their cases. 

The Nunley defendants now move the court to approve this amount offered to Mr. and Mrs. Bragg as a good faith settlement as per CCP §877.6.

CCP §877.6 (a)(1) provides that any party to an action where it is alleged that two or more parties are joint tortfeasors. . . shall be entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff or other claimant and one or more of the alleged tortfeasors . . by giving notice in the manner provided in subdivision (b) of Section 1005.

The Supreme Court in Tech-Bilt v. Woodward Clyde & Associates (1985) 38 Cal.3d 488 established the factors that the Court shall consider to determine whether a settlement was made in good faith. 

The Tech-Bilt factors that are at issue in this present motion are (1) a rough approximation of the plaintiff’s projected total recovery and the settlor’s proportionate liability; (2) the amount paid in settlement; (3) a recognition that a settlor should pay less in settlement that he would if he was found liable after trial; and (4) the financial condition and insurance policy limits of the settling defendants.

From a review of the Nunley defendants’ moving papers for this application for good faith settlement, the Court finds that it has adequately satisfied the guidelines that Tech-Bilt requires for the Court to approve its application.

The Court must consider not only the settlor’s proportionate liability to the plaintiff, but also its proportionate share of culpability as among all parties alleged to be liable for the same injury based on the Court’s review of the evidence supplied by the applicant that shows that the settlement reflects proportionate liability.  See TSI Seismic Tenant Space, Inc. v. Superior Court (2007) 149 Cal.App.4th 159, 166; Mattco Forge v. Arthur Young & Co. (1995) 38 Cal.App.4th 1337, 1352.

The Tech-Bilt court ruled that unless the proposed settlement was “so far out of the ballpark” based on the factors that the Tech-Bilt court outlined to determine whether a settlement was offered in good faith that it would be inconsistent with the equitable objectives of the good faith settlement statute.  See Barth-Witmore v. H.R. Murphy Enterprises, Inc. (1985) 169 Cal.App.3e 124, 134.

Here, the Court finds that the Nunley defendants have acted in good faith by offering $525,000.00 to settle Mr. and Mrs. Bragg’s case against them in light of the $5,500,000 policy limits of insurance policies held by the Nunley defendants, the facts of this case, and the apportionment of these insurance policy limits proceeds based on the relative extent of injuries sustained by Bragg family verses the substantially more extensive damages sustained by the Erickson family due to the loss of Mr. Erickson as a husband and father to the minor Erickson children.

Nor does the Court find any evidence in the Nunley defendants’ moving papers of fraud, collusion, or other tortious conduct that would impact the interests of any of the other parties to this action were the Court to determine that the settlement proposed to resolve the litigation between the Braggs and the Nunley defendants was reach in good faith through mediation and subsequent follow-up negotiations between the Braggs and the Nunley defendants
 
Based on the foregoing, the Court grants defendants James Gregory Nunley, Nunley Racing, LLC, La Tula Investments, LLC, Great Valley Builders LLC, and Driven Motor Sports’ motion for determination of good faith settlement.

If no one requests oral argument, the Court is prepared to sign the “Order Re Motion for Good Faith Settlement by defendants James Gregory Nunley, Nunley Racing, LLC, La Tula Investments, LLC, Great Valley Builders LLC, and Driven Motor Sports” that the Nunley defendants have lodged with the Court.  Counsel for the Nunley defendants is directed to serve a conformed copy of this signed order on counsel for all parties to this action, and file with the Court a “Notice of Service of Order Re Motion for Good Faith Settlement by defendants James Gregory Nunley, Nunley Racing, LLC, La Tula Investments, LLC, Great Valley Builders LLC, and Driven Motor Sports” that documents the service of this Order on all affected parties.

Re:              Bassett v. Bassett

Case No.:   VCU 264854

Date:          June 30, 2016

Time:          8:30 A.M. 

Dept.           2– The Honorable David Mathias

Motion:       Plaintiff’s Motion to Compel Arbitration and Stay the Litigation

Tentative Ruling:   To grant plaintiff Russell D. Bassett, Jr.’s motion to compel arbitration and stay the litigation

Proof of service in the Court’s file for this action reflects that all necessary parties received timely and proper notice of this motion.  The Court has not received any response from any of the involved parties in this action.

This is an action for breach of contract and specific performance based on an agreement by defendant Jonathan E. Bassett to sell his 24% of stock that he presently owns in Bassett’s Cricket Ranch, Inc. to plaintiff Russell Bassett. Russell Bassett also presently owns 24% of the stock in this corporation.

This agreement was the product of a mediation between the Bassetts where Judge Howard E. Broadman (ret.) served as mediator.  This agreement expressly provides that “The parties waive the provisions of California Evidence Code relating to mediation confidentiality as so far as is necessary to enforce this Agreement; thereby rendering this Agreement enforceable.”  Jonathan Bassett now refuses to arbitrate this dispute as to the appraisal value and sale of his 24% interest in Bassett’s Cricket Ranches, Inc.

This mediated Agreement further provides in relevant part that “The mediator shall bindingly arbitrate any and all disputes over . . . the interpretation, enforcement, application or performance of this and the above-described (to be prepared) documents, using CCP section 1280 et seq. procedures and rules. If any conflict(s) of interest exists or arises as a result of the Mediator also serving as the binding arbitrator of such disputes, then such conflicts are now waived by all parties."
 
The California Arbitration Act (CAA) presumes that an arbitration agreement is enforceable and, importantly, mandates arbitration when such an agreement exists:

“On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate the controversy, and that a party thereto refuses to arbitrate such controversy the court shall order the petitioner and respondent to arbitrate the controversy if it deems an agreement to arbitrate controversy exists.”  See CCP §1281.2.

Exhibit “A” to Russell Bassett’s complaint clearly reflects that Russell and Jonathan Bassett executed an agreement that provides that any dispute as to the valuation of Jonathan’s 24% stock interest in Bassett’s Cricket Ranch, Inc., and/or that he would sell this stock interest to Russell Bassett, and/or that he would sell this stock interest to Russell Bassett would be submitted to arbitration before Judge Broadman.

Given that Jonathan Bassett has not offered any response to Russell’s motion to compel arbitration that would offer any interpretation of this mediated agreement other than what this agreement plainly states on its face, i.e., that any disputes that arise as to either of the parties’ duties under this agreement would be submitted to arbitration before Judge Broadman, the Court grants plaintiff Russell D. Bassett, Jr.’s motion to compel arbitration.

The Court is also persuaded that CCP §1281.4 warrants a stay of this present litigation until the dispute identified in Russell Bassett’s complaint has been resolved through arbitration as expressly provided in the parties agreement to arbitrate any dispute that might arise under this mediation agreement:

“If an application has been made to a Court of competent jurisdiction . . .for an order to arbitrate a controversy, which is an issue involved in an action or proceeding pending before a court of this State and such application is undetermined, the court in which such action or proceeding is pending shall, upon motion of a party to such action or proceeding, stay the action or proceeding until the application for an order to arbitrate is determined, and if arbitration of such controversy is ordered, until an arbitration is had in accordance with the order to arbitrate or until such earlier time as the court specified”

Based on the provisions of §1281.4, the Court orders that the action that is presently pending before this Court be stayed until such time as the disputes identified in plaintiff Russell D. Bassett, Jr.’s complaint have been resolved through the arbitration process, and Russell or Jonathan Bassett applies to this Court for further relief based upon the findings of the arbitrator.

If no one requests oral argument, the Court is prepared to sign the “Order On Motion to Compel Arbitration and Stay the Litigation” that plaintiff Russell D. Bassett, Jr. has lodged with the Court. Counsel for plaintiff is directed to serve a conformed copy of this signed order on counsel for all parties to this action, and file with the Court a “Notice of Service of Order On Motion to Compel Arbitration and Stay the Litigation” that documents the service of this Order on all affected parties.

Re:             Labogin v. Velasquez, et al.

Case No.:   VCL 174093

Date:          June 30, 2016

Time:          8:30 A.M. 

Dept.           7– The Honorable Bret Hillman

Motion:        Defendants Victor Velasquez Jr. and Virginia Velasquez aka Virginia Escarsega’s Demurrer to Complaint for Unlawful Detainer

Tentative Ruling: Defendants Victor Velasquez Jr. and Virginia Velasquez aka Virginia Escarsega’s Demurrer to Complaint for Unlawful Detainer is overruled. Defendants are directed to answer the plaintiff’s complaint within five days from service of notice of this ruling.

This is an unlawful detainer action based on a written, one-year residential lease executed by defendants Victor Velasquez Jr. and Virginia Velasquez aka Virginia Escarsega on July 21, 2015 for property located at 305 N. E. Second Avenue, Visalia, California that is owned by plaintiff Susan Labogin.

The terms of this lease provide for monthly rental payments of $800.00 made payable to plaintiff Susan Labogin or her designated agents.  Defendants’ demurrer to this unlawful detainer action on the grounds that the plaintiff’s complaint as presently pled fails to state a cause of action.

A demurrer tests whether a pleading states a cause of action or defense, and in the words of the California Supreme Court in Moore v. Regents of the Univ. of Cal. (1990) 51 Cal.3d 120, 125:“

“Accordingly, we assume that complaint’s properly pleaded material allegations are true and give the complaint a reasonable interpretation by reading it as a whole and all of its parts in their context . . . we do not, however, assume the truth of the contentions, deductions, or conclusions of fact or law . . .” (citations omitted.)

For the purpose of testing the sufficiency of a cause of action, the demurrer admits the truth of all material facts properly pleaded – no matter how unlikely or improbably the allegations may be.  See Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 966-967, The plaintiff’s ability or inability to prove the allegations is of no concern at the demurrer stage. See Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197-213-214.

Thus, the function of a demurrer is to test the sufficiency of a pleading by raising questions of law.  See Whitcomb v. County of Yolo (1977) 73 Cal.App.3d 698,702. 

All presumptions are against the pleader and all doubts as to whether a cause of action is pled are resolved against the proponent of the pleading, since it is presumed that the pleading states the cause as favorably as possible.  See Richmond Development Agency v. Western Title Guarantee (1975) 48 Cal.App.3d 343,349.

“The demurrer tests the pleading alone and not the evidence or other extrinsic matters which do not appear on the face of the pleading or cannot be properly inferred from the factual allegations of the complaint.” See Executive Landscape Corp. v. San Vicente Country Villas IV Assn. (1983) 145 Cal.App. 3d 496, 499

The standard of review for a demurrer is based on the judicial policy that favors the resolution of cases on their merits rather than through technical defects in the pleadings.  A demurrer raises issues of law, not fact, in its challenge to the opposing party’s pleading.  See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.

Additional facts may be implied or inferred from those facts expressly pled in the complaint, and to the extent that there are factual issues in dispute, the court must assume the truth of not only all facts properly pled, but also those facts that may be implied or inferred from these expressly stated in the complaint.  See City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.

Even where the Court finds that the demurer is well taken as to any cause of action, the plaintiff should be granted leave to amend the complaint to allege any additional facts that the Court finds lacking or to clarify any unclear or ambiguous allegations. “Liberality in permitting amendment is the rule, if a fair opportunity to correct any defect has not been given.” See Angie M. v. Superior Court (Hiemstra)(1995) 37 Cal.App;.4th 1217, 1227.

From a review of the plaintiff’s complaint, the Court finds that the plaintiff has plead sufficient facts to state a cause of action against the defendants for unlawful detainer.  The plaintiff’s verified complaint identifies the existence of a written tenancy agreement with defendants as to property owned by the plaintiff, that the defendants are in arrears in rent as per the terms of their lease for the plaintiff’s property in the approximate amount of $2,385.00 as of the plaintiff’s filing of her unlawful detainer complaint, and that both defendants were timely and properly served with the summons and complaint for this action on June 21, 2016. 

Plaintiff also alleges at paragraph 10 of her complaint that the filing of this action was preceded by personal service on each of the defendants on May 27, 2016 of a “Three Day Notice to Pay Rent or Quit” that CCP §1161 requires as a prerequisite to filing and prosecuting an unlawful detainer action.

Based on the foregoing, the Court finds that plaintiff Susan Labogin has plead in her complaint sufficient facts to state a cause of action for unlawful detainer against the defendants, and also met the statutory requirements that the Code of Civil Procedure mandates to withstand any challenge to her complaint.

Accordingly, the demurrer of defendants Victor Velasquez Jr. and Virginia Velasquez aka Virginia Escarsega’s demurrer to plaintiff’s complaint for unlawful detainer is overruled in its entirety. Defendants are directed to answer the plaintiff’s complaint within five days from service of notice of this 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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