October 17, 2017

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Civil Tentative Ruling Announcement
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If the Tentative Ruling in your case is satisfactory, you need not appear at the scheduled time, the ruling becomes final, and the prevailing party prepares the order.

However, if you are not satisfied with the Tentative Ruling, and wish to appear and argue the matter, YOU MUST NOTIFY the Clerk’s Office and opposing counsel of your intent before 4:00 p.m. TODAY. If a TELEPHONIC HEARING is requested per CCP §367.5, COURT CALL MUST be notified AND the Clerk’s Office MUST also be notified before 4:00 p.m. TODAY.

When doing so, you must indicate as to which issue(s) and/or motion(s) a hearing is being requested. If requesting a hearing for clarification of a tentative ruling, specify what matter(s) and/or issue(s) need clarification.

You may request a hearing by calling the calendar line at (209) 530-3162 or the main line at (209) 530-3100, prior to 4:00 p.m. - OR- by e-mailing at civil.tentatives@stanct.org Email requests must be made prior to 4:00 p.m. AND confirmed by return e-mail. If you do not receive confirmation e-mail from the clerk, you MUST call (209) 530-3162 to request your hearing.

Please refer to Local Rule of Court 3.21 (b) concerning Court reporter fees.

If a Hearing is required or you have requested a Hearing for a Law and Motion Matter Scheduled in Department 21, 22, 23 or 24 in Modesto, please contact the Court Reporter Coordinator at (209) 530-3105 to request a reporter and determine availability. If a Staff Reporter is not available, you may need to provide your own.

Effective April 2, 2012

Staff Court Reporters may be available, though it is not guaranteed, to report law and motion matters on the following schedule:

Department 21 -- Wednesdays and Fridays only. Staff Reporters may be available on Tuesdays and Thursdays. Please call to confirm.
Department 22 -- Tuesdays and Thursdays only. Staff Reporters may be available on Wednesdays and Fridays. Please call to confirm.
Department 23 -- Wednesdays and Fridays only. Staff Reporters may be available on Tuesdays and Thursdays. Please call to confirm.
Department 24 -- Tuesdays and Thursdays only. Staff Reporters may be available on Wednesdays or Fridays. Please call to confirm.

If a Staff Reporter is not available, counsel can make arrangements to have their hearing reported by a private CSR. Please contact the Court Reporter Coordinator at (209)530-3105 to request a Staff Reporter and to determine if a Staff Reporter will be available for your hearing.

October 17, 2017

 

 

The following are the tentative rulings for cases calendared before Judge Marie S. Silveira in Department 21:

 

 

2008849 – MESSER, STEVEN VS. CENTEX REAL ESTATE - a) Cross-Defendant DH Smith Company’s Motion for Leave to File Cross-Complaint, b) Cross-Defendant DH Smith Company’s Motion to Contest Creative Hardscapes Application for Determination of Good Faith Settlement –

a) GRANTED.  Although the compulsory cross-Complaint is late, Cross-Defendant’s tardiness appears to be the result of oversight, inadvertence, mistake, neglect or other (excusable) cause.  Code of Civil Procedure § 426.50. In addition, the Court notes that the statute “shall be liberally construed to avoid forfeiture of causes of action.”

b) DENIED.  Initially, the Court determines that the Order and Revised Order granting the application for good faith settlement signed on August 30, 2017 by the Honorable William Mayhew, were signed inadvertently;  that Order and Revised Order are hereby VACATED and SET ASIDE. Further, the Court finds that the settlement entered into by Creative Hardscape Inc. and set forth in the application and the Declaration of M. Troy Hazelton is entered into in good faith and within the meaning of Code of Civil Procedure § 877.6(a)(2) and Tech-Bilt Inc. v. Woodward Clyde & Associates (1985) 38 Cal.3d 488.  It is ordered that claims against Creative Hardscape Inc. based on equitable comparative contribution, or partial or comparative indemnity made by joint tortfeasors who are not parties to the settlement are hereby barred.

 

 

2023870 – VALLEY FIRST CREDIT UNION VS. FRIAS, JUAN – Plaintiff’s Motion for Order Establishing Admissions and Request for Sanctions - GRANTED, and unopposed.  The Requests for Admission, Set One, served on Defendant on or about June 13, 2017, are hereby DEEMED ADMITTED. Plaintiff is awarded sanctions in the amount of $360 payable immediately by Defendant to Plaintiff’s counsel, Stephen C. Ferlman.  Defendant is hereby notified that the amount of monetary sanctions awarded could increase if a hearing is requested in this matter.

 

 

2025049 – VICIJAN, NADA VS. BOARD OF PHARMACY – Petitioner for Writ of Administrative Mandate - CONTINUED on the Court’s own motion to November 30, 2017, at 8:30 a.m. in Department 21.  The Court requires additional time to review the parties pleadings as well as the administrative record.

 

 

The following are the tentative rulings for cases calendared before Judge Timothy W. Salter in Department 22:

 

 

2019139 – RANCANO, LESLIE VS. RANCANO, DAVID – Plaintiff’s Motion for Summary Adjudication – DENIED.  The Court notes that the moving Separate Statement is defective in that it fails to comply with California Rules of Court, rule 3.1350(b) and fails to set forth “plainly and concisely” the material facts which the moving parties contend are undisputed.  See Code of Civil Procedure § 437c(b)(1).  Many of the moving “facts” here are actually “argument” or statements of opinion.  And frankly, the Court does not believe that “facts” related to the parties’ discovery battles are relevant at all to a motion for summary adjudication on an accounting cause of action.  Even if Plaintiffs had carried their moving burden and the Court were prepared to grant the motion, Defendants would be required to conduct an accounting, not turn over to Plaintiffs all of the documents Plaintiffs seem to believe would somehow then be available to them. Further, even if Plaintiffs had carried their moving burden on the motion, Defendants, in opposition, submit sufficient evidence to dispute the material facts set forth in the moving separate statement.  Because the Court finds that the Plaintiffs did not meet their moving burden on the motion, it is not necessary for the Court to rule on Defendants’ objections to the Plaintiffs’ evidence.

 

 

2010657 – PATTERSON FROZEN FOODS VS. PATTERSON JOINT UNIFIED SCHOOL – Defendants’ Demurrer to Plaintiff’s First Amended Complaint - SUSTAINED in part and OVERRULED in part, with leave to amend. Defendant’s demurrer to the Plaintiff’s Second Cause of Action for Breach of the Covenant of Good Faith and Fair Dealing is OVERRULED.  Defendant’s demurrer to the Plaintiff’s Fifth Cause of Action for Conflict of Interest – Government Code § 1090 is SUSTAINED, with leave to amend, for failure to state facts sufficient to constitute a cause of action.  Two problems appear to the Court.  First, in California Taxpayers Action Network v. Taber Construction (2017) 12 Cal.App.5th 115 the Court allowed Plaintiffs to proceed with a cause of action for conflict of interest against the consultant to the public agency – Defendant Taber Construction, Inc. Pursuant to the analysis in Taber, Plaintiff here proceeds against the wrong entity in its conflict of interest cause of action, as Del Mar Farms stands in the shoes of “advisor” or “consultant” here. Second, and more importantly, Plaintiff does not allege that an illegal expenditure of funds has occurred.  That seems to the Court to be a prerequisite for stating a conflict of interest cause of action.  Plaintiff has leave to attempt to amend its Fifth Cause of Action accordingly, if it can.  Plaintiff’s amended Complaint, which should be styled its Second Amended, shall be due not later than November 7, 2017.

 

 

The following is the tentative ruling for a case calendared before Judge John D. Freeland in Department 23:

 

 

2016754 – BARAJAS GROUP VS. CENTRAL CAL INVST - a) Motion to be Relieved as Counsel for Defendant Rafael Castillo, b) Motion to be Relieved as Counsel for Defendants Adrian Castillo, Castle Real Estate Group and Associates, Inc. dba Castle Real Estate, Ceres Flea Market Group, LLC, and Central Cal Invst, LLC – a) and b) GRANTED.

The Court will modify the proposed order submitted by counsel to specify the date of the further Case Management Conference which was assigned to this matter subsequent to counsel’s filing of the instant motion, as follows:  February 5, 2018 at 9 a.m. in Dept. 23. The effective date of the order will be delayed until proof of service of a copy of the signed order on the client has been filed.  (California Rules of Court, rule 3.1362(e).)

 

 

The following are the tentative rulings for cases calendared before Judge Roger M. Beauchesne in Department 24:

 

 

2024021 – LUGO, JOSE VS. WINDSOR POST ACUTE HEALTHCARE CENTER OF MODESTO – a) Defendant’s Demurrer to Plaintiffs’ Complaint, b) Defendant’s Motion to Strike Portions of Plaintiffs’ Complaint – a) and b) MOOT.  Plaintiffs filed a timely First Amended Complaint on October 3, 2017.

 

 

2023471 – ROLLING F CREDIT UNION VS. MACHADO, HERMAN – Plaintiff’s Motion to Compel Discovery Responses and Request for Sanctions - GRANTED in part and DENIED in part, as follows.  Upon review of the opposition supplied by Defendant Herman Machado, the Court GRANTS the Plaintiff’s Motion to Compel Responses to Special Interrogatories, Set One, and DENIES the Plaintiff’s motion with regard to the other two discovery requests served on June 27, 2017 – Form Interrogatories, Set One, and Request for Production of Documents, Set One.  Responses to these two discovery requests were served on Plaintiff on or about September 7 and 11, 2017.  Exhibit 2 to Defendant’s Opposition to the Plaintiff’s Motion to Compel incorrectly claims to be responses to Plaintiff’s “Special Interrogatories, Set One”.  Actually, upon review the document contains Defendant’s responses to the Plaintiff’s Request for Production of Documents, Set One (again).  Therefore, Defendant Herman Machado shall provide full and complete responses to the Plaintiff’s Request for Production of Documents, Set One, on or before November 7, 2017.  Objections are waived.  In addition, Defendant shall pay to Plaintiff’s counsel, Bruce Ramsey, of Ulrich & Ramsey, the sum of $340.00 in monetary sanctions.

 

 

The following is the tentative ruling for a case calendared before Commissioner Jared D. Beeson in Department 19 located at the Turlock Division at 300 Starr Avenue, Turlock, CA:

 

 

2033293 – MORRIS, DEANA VS. WILSON, RICK – Defendants Motion to Set Aside Default – HEARING REQUIRED.