June 13, 2025

The following are the tentative rulings for cases calendared before Judge John R. Mayne in Department 21:

CV-22-003478 JACKSON, MICHAEL vs GRASPOINTNER MANAGEMENT CO INC – Final Fairness – HEARING REQUIRED.

CV-24-009363 – DC MODESTO LLC vs SARKIS, ANGILBERT – Defendants Phenos Collective, Inc. and Patient Care First, Inc.’s Demurrer to Plaintiffs’ First Amended Complaint – OVERRULED in part; SUSTAINED in part with leave to amend.

The Court overrules the demurrer as to the first three causes of action, and sustains the last

Procedural and Factual Summary: Plaintiffs DC Modesto LLC, CV Merced Inc., and CV McHenry Inc. (collectively known and referred to as “Levels”) allege that Defendants Angilbert “Bert” Sarkis (Sarkis), Phenos Collective, Inc., and Patient Care First, Inc. (collectively known as “The Premier Group” or just “Premier”), are engaging in anti-competitive practices to monopolize the cannabis market in California’s Central Valley.

In the First Amended Complaint filed on January 21, 2025, Levels accuses Premier (alleged to be the largest cannabis dispensary in the region) of using its market power to coerce vendors into exclusive agreements, thereby harming Levels’ ability to compete.

Levels alleges that since May 2023, Premier (and sometimes Sarkis personally) has pressured vendors to cease supplying Levels, with threats of economic sanctions if the vendors do not comply.

Levels’ FAC includes four causes of action against all named defendants: 

1. Violation of the Cartwright Act (Business and Profession Code Section 16700 et seq.);
2. Unfair Competition under Business and Profession Code Section 17200;
3. Intentional Interference with Prospective Economic Advantage; and
4. Unjust Enrichment.

Defendant Sarkis filed an answer to the FAC on 3/3/25.

Defendants Phenos Collective, Inc. (“Phenos”) and Patient Care First, Inc. (“PCF”) demur generally to each of the four c/a contained in the FAC stating as follows in their notice of demurrer:

There has been extensive litigation on the first three issues resulting in the Court issuing an order against Defendants.

Summary of ruling: The Court finds sufficient allegations to meet the pleading requirements on the first three causes of action. The Court disbelieves that the Unjust Enrichment Cause of Action is sufficiently pled via a Quasi Contract theory or other legal theory. The law appears somewhat murky in this field; Plaintiff cites to federal (persuasive) authority to consider an unjust enrichment claim as, essentially, a mistitled quasi contract claim.

The Court expresses no opinion on whether the failure of the unjust enrichment claim affects the remedies available to Plaintiff.

Analysis:

First Cause of Action: Cartwright Act:

Levels alleges the following in support of the First Cause of Action for a violation of the Cartwright Act:

1. Premier allegedly conspired with distributors to stop selling to Levels, resulting in a “secondary boycott”, which Levels contends is considered a “per se” illegal restraint of trade under the Cartwright Act.

2. Premier’s actions are claimed to have had a substantially adverse effect on competition in the relevant market, violating the Cartwright Act under the “rule of reason.”

3. As a direct result of Premier’s secondary boycott, Levels alleges it suffered significant injury and was deprived of the benefits of free and fair competition in the Central Valley region retail cannabis market.

4. Levels asserts that unless Premier’s anticompetitive conduct is stopped, Levels will continue to unreasonably limit competition and prevent Levels from competing fairly.

5. Due to Premier’s actions, Levels has suffered losses exceeding $5,000,000, including lost sales, increased expenses, and reputational harm, and seeks compensatory and treble damages, injunctive relief, and attorneys' fees (as allowed) under the Cartwright Act - Business and Professions Code section 16750.

Premier argues that the First Cause of Action is deficient because: Levels’ Cartwright Act claim fails to allege harm to competition or consumers, as Levels only suggests “vertical agreements” between Premier and individual distributors without any agreement among distributors (aka “horizontal agreements”) or “orchestration” by Premier.

The “rule of reason” requires Levels to prove that Premier’s restrictive trade practices have substantial anticompetitive effects within the relevant market.

To state a claim for violation of the Cartwright Act, Levels must plead “actual net harm to competition under the rule of reason”.  (See Flagship Theatres of Palm Desert, LLC v. Century Theatres, Inc. (2020) 55 Cal.App.5th 381)

While Premier claims that Levels does not allege “net harm to competition” under the rule of reason, the allegations are sufficient to show a secondary boycott. Levels goes on to allege that even if the secondary boycott is not a per se illegal restraint of trade under the Cartwright Act, “[Premier’s] actions had and continue to have they substantially adverse effect on competition in the relevant market, and therefore harms competition more than promotes it.”

While this is at least somewhat conclusory, the pleading appears sufficient.

  In Quelimane Co. v. Stewart Title Guar. Co. (1998) 19 Cal.4th 26 the California Supreme Court set out what a plaintiff needs to plead to state a cause of action under the Cartwright Act. Although “a plaintiff cannot merely restate the elements of a Cartwright Act violation,” it need not allege every relevant detail of the dispute. (Internal citation omitted.) Instead, the plaintiff need only state “certain facts in addition to the elements of the alleged unlawful act so that the defendant can understand the nature of the alleged wrong.” (Internal citation omitted.)

In Quelimane , the court recognized that when it comes to antitrust agreements “conspirators rarely make such agreements in the open or document their illicit agreements. Rather it is usually the situation that such agreements are made covertly, thereby making it difficult for a plaintiff to allege the full details of such … agreement(s) prior to its ability to engage in the ‘rock turning’ allowed by discovery.”

The contention that the conclusions will be unsupportable with the facts as they are is not a matter addressable in a demurrer.

Second Cause of Action: Unfair Competition

The Second Cause of Action is, as noted by the parties, heavily derivative of the Cartwright Act claims. As the Court views the Cartwright Act claims as sufficiently pled, it overrules the demurrer on this claim.

Third Cause of Action – Intentional Interference with Prospective Economic Advantage:

Levels alleges they had clear economic relationships with multiple cannabis distributors, which are crucial for their business operations.

Levels alleges Premier was aware of these relationships and allegedly threatened distributors to stop doing business with Levels.

This Cause of Action is also derivative of the other causes. While Premier suggests the competition privilege applies, the Court does not reach the conclusion that the pleading is entirely forestalled by any privilege at the pleading stage.

Fourth Cause of Action - “Unjust Enrichment”:

Even assuming, as the Ninth Circuit has, that this may be a misnomer for a quasi-contract claim, the Court nonetheless sees insufficient means to reach a quasi contract assertion. Premier’s citation to Peterson v. Celico Partnership (2008) 164 Cal.App.4 ^th 1583, 1595 appears apt.

The Court grants leave to amend, given the uncertainty over whether this can be repaired. As the primary reason for sustaining the demurrer is the state court rule that such an action is not generally a stand-alone action, the Court expresses no opinion on whether this affects the damages portion of the case.

Plaintiff is to file an amended complaint within 15 days.

The following are the tentative rulings for cases calendared before Judge Stacy P. Speiller in Department 22:

CV-24-003147 – SOLIS, TARA vs SUTTER HEALTH – Plaintiff’s Motion to Compel Further Responses to Plaintiff’s Request for Identification and Production of Documents, Set One – DENIED without prejudice.

The motion was untimely filed only 13 court days before the hearing instead of 16 court days as required by Code of Civil Procedure § 1005(b). Consequently, the motion is DENIED without prejudice.

CV-24-009325- MITSOPOULAS, TOM vs CITY OF CERES – a) Defendant City of Ceres’ Demurrer to First Amended Complaint – OVERRULED; b)Defendant City of Ceres’ Motion to Strike Portions of First Amended Complaint – DENIED.

Both the demurrer and motion to strike rely on Defendant’s request for judicial notice, which ask the Court to take judicial notice of the following:

• Exhibit 4 to the Declaration of Attorney Maria Fatima Gioletti : Ceres Municipal Code sections 18.34.010, 18.30.110, 18.04.170 - These sections of the municipal code are relevant to the case and are attached to the Supporting Declaration of Maria Fatima Gioletti.

All other exhibits are attached to the Declaration of Deputy City Clerk Cristina Aguilar:

• Exhibit A : Affidavit of Publication - This affidavit relates to the notice of the May 2, 2022 City of Ceres Planning Commission Public Hearing.
• Exhibit B : Notice of Public Hearing - This notice pertains to the May 2, 2022 City of Ceres Planning Commission Public Hearing.
• Exhibit C : Meeting Agenda and Attachments - These documents are for the May 2, 2022 City of Ceres Planning Commission Public Hearing.
• Exhibit D : Meeting Minutes - These minutes are from the May 2, 2022 City of Ceres Planning Commission Hearing.
• Exhibit E : Approval of Tentative Map (TPM 21-09) - This document shows the City Planning Commission's approval of a tentative map on May 2, 2022.
• Exhibit F : Conditional Use Permit (CUP 21-11) - This permit was approved by the City Planning Commission on May 2, 2022.
• Exhibit G : Site Plan Application (SPA 12-10) - This application was approved by the City Planning Commission on May 2, 2022.
• Exhibit H : Letter from George A. Petrolakis - This letter, dated January 8, 2024, was addressed to Major Javier Lopes, City Councilmembers, and the City of Ceres.
• Exhibit I : Central San Joaquin County Valley Risk Management Authority Claim Form - This claim form was filed and stamped "Received" on April 24, 2024.
• Exhibit J : Notice of Rejection - This notice pertains to Claimant Tom Mitsopoulas and is dated May 20, 2024.

The Court takes judicial notice of the contents of Exhibit 4 pursuant to Evidence Code §§ 452 and 453. As for the exhibits attached to the Declaration of Deputy City Clerk Aguilar, Exhibit H, a letter, is not appropriate for judicial notice. The Court takes judicial notice of the existence of the remainder of the documents, but not the truth of any hearsay matters stated therein. (See Fremont Indem. Co. v. Fremont Gen. Corp. (2007) 148 Cal.App.4th 97, 113; Arce v. Kaiser Found. Health Plan, Inc. (2010) 181 Cal.App.4th 471, 482-484; Scott v. JPMorgan Chase Bank, N.A. (2013) 214 Cal.App.4th 743, 752-761, as modified on denial of reh'g (Apr. 16, 2013) .)

a) Demurrer

For the reasons stated in the opposition, the demurrer is OVERRULED.

Defendant is seeking to try the case through a demurrer, which is not appropriate. It is not the function of a demurrer to challenge the truthfulness of the allegations. Rather, a demurrer can be used only to challenge defects that appear on the face of the pleading under attack, or it must be based on matters that are judicially noticeable. (See Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)

As stated above, the Court acknowledges the existence of most of the documents for which judicial notice has been requested. But that does not mean that the contents of the documents are true . For example, the existence of a tentative map and a site plan application does not mean that those plans were followed. The fact that minutes exist for a public meeting does not mean those minutes accurately reflect what occurred. And the fact that a notice of public hearing was created does not address the issues of who received the notices and how they were disseminated.

As Defendant itself explains in its own memorandum, Government Code § 65091(a)(4) requires that notice be mailed to all owners of real property within a certain radius of a city planning or zoning change. Here, Plaintiff is contending that he did not receive such a notice of the City’s intent to install a median that would affect access to his shopping center. The City argues that it did send the notice, but that is a factual dispute not subject to demurrer.

Defendant also argues that “traffic safety measures which do not completely impair access to abutting property owners, do not constitute compensable takings as a matter of law.” (Reply, at p. 2.) However, the degree of impairment is again a question of fact. Furthermore, the Court notes that this section of the Defendant’s supporting memorandum relies on case law where factual determinations were made, not on black-letter authority. (See Mem., at pp. 14-16.) For example, the brief cites heavily to Holman v. State (1950) 97 Cal.App.2d 237 ( Holman ). But Holman is procedurally inapposite; the opinion addressed an appeal from a judgment, not a ruling on demurrer.

Regarding the contention that Plaintiff failed to exhaust his administrative remedies, the FAC asserts at paragraph 5 that Plaintiff did submit a claim to the City that was subsequently rejected. Furthermore, “a party may be excused from exhausting [an administrative remedy] if an exception applies.” ( Plantier v. Ramona Municipal Water Dist. (2019) 7 Cal.5th 372, 384.) Similarly, there is a factual question here as to when the statute of limitations was triggered. And the issue of immunity is also a factually dependent question.

As for Defendant’s demurrer to each of the causes of action based on uncertainty, such a demurrer should be sustained only where the pleading is so unintelligible, a defendant cannot reasonably respond. (See Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 615.) Such is not the case here.

For the foregoing reasons, the demurrer is OVERRULED in its entirety.

b) Motion to Strike

By way of this motion, Defendant seeks to strike the following portions of the FAC:

1. Prayer for Relief ¶ 1, page 4, lines 20-21: "For economic damages in an amount yet unknown, but in excess of the jurisdictional limit of this Court;"
2. Prayer for Relief ¶ 2, page 4, line 22: "Or alternatively, for Defendant to construct a left turn in the center divide;"
3. Prayer for Relief ¶ 4, page 4, lines 25-26 and page 5 lines 1-2: "For a determination of the amount of just compensation Plaintiff is entitled to under the United States and California constitutions or, alternatively, for an proceeding to determine the amount of just compensation that Plaintiff is entitled to under the United States and California constitutions as to the 1st Cause of Action for Inverse Condemnation;"
4. Prayer for Relief ¶ 6, page 5, line 5: "Appropriate injunctive relief to effectively stop Defendant’s constitutional violations."

Additionally, the Defendant seeks to strike the following paragraphs of the First Amended Complaint in their entirety, contending that these portions are contradicted by items contained in the request for judicial notice:

• ¶ 8 at p. 2, lines 21-22: "At no point was Plaintiff given any notice of any hearings regarding the center divide that took place with the City."
• ¶ 9 at p. 2, lines 22-23: "The City never gave notice of its hearing regarding the center divide nor did it give notice of any decisions it made regarding the center divide."
• ¶ 13 at p. 3, lines 7-8: "Without notice, Defendant constructed a center divide without a left turn cutout on Morgan Road in front of Plaintiff's property."
• ¶ 21 at p. 3, lines 23-23: "No notices were given to Plaintiff, nor was there a public hearing, prior to the taking and the building of the median."
• ¶ 22 at p. 3, lines 25-26: "Given the location of Plaintiff's property, he should have legally been given notice of all hearings so he had an opportunity to be heard. He was given no notices."
• ¶ 26 at p. 4, lines 10-11: "No notices were given to Plaintiff, nor was there a public hearing, prior to the taking and the building of the median."
• ¶ 27 at p. 4, lines 14-15: "Defendant had a custom, practice, and policy of taking property without giving any notice or an opportunity to be heard."
• ¶ 28 at p. 4, lines 16-17: "Defendant did not even follow its own municipal code when it failed to give Plaintiff any notice or an opportunity to be heard."

As with the demurrer, Defendant’s motion to strike is based on the assumption that the hearsay information contained in the judicially noticed documents is true, which is improper. For this reason, the motion to strike is DENIED.

The following are the tentative rulings for cases calendared before Judge John D. Freeland in Department 23:

CV-21-005103 – GRAYS, WILLIE, JR vs LIU MINGHUI, MD – Defendant Minghui Liu, M.D.’s Motion for Summary Judgment – CONTINUED to September 3, 2025 at 8:30 a.m. in Department 23.

Plaintiff’s request for a continuance of the hearing date is GRANTED.  (Code Civ. Proc. § 437c(h).) Therefore, the hearing is continued, as above; the parties shall submit supplemental opposition and reply briefs within the time frames prescribed by Code Civ. Proc. § 437c.

CV-22-005711 – STEWART & JASPER ORCHARDS vs L&L INVESTMENTS LLC – Defendant’s Motion to Vacate Judgment and Enter Different Judgment (CCP 663) – DENIED.

The hearing date falls outside the Court’s jurisdictional time within which to rule on the merits of the motion, as set forth in Code Civ. Proc. § 663a(b).  Moreover, to the extent the motion seeks an order granting a new trial pursuant to the provisions of Code Civ. Proc. § 657, that request is also untimely, as set forth in Code Civ. Proc. § 660(c).

The Court’s file demonstrates that notice of entry of judgment was served on 3-21-25; the controlling Code sections require the instant motions to be determined within 75 days of such service, which expired on 6-4-25.

CV-24-005117 – MCCOY FAMILY APIARIES LLC vs BARIOS, AL – Plaintiff’s Motion to Amend Judgment to Include the Name Change of Judgment Debtor – GRANTED, and unopposed.

The Court finds that Plaintiff has submitted satisfactory evidence that the judgment debtor herein is known by additional names.  Therefore, the Court exercises its authority pursuant to Code Civ. Proc. §187 to amend the judgment to reflect the same.  The Court will sign the proposed order submitted by Plaintiff.  

CV-24-009607 – MADRIGAL, JOSE ALBERTO vs TESLA INC – Defendant Tesla, Inc.’s Motion to Compel Binding Arbitration – GRANTED.

Defendant has demonstrated the existence of 2 enforceable arbitration agreements which apply to Plaintiff’s claims herein. In addition, the express terms of the arbitration provisions contained within the Online Motor Vehicle Agreement identify the parties’ intent to make such provisions controlling over any other applicable arbitration agreements. Therefore, the matter shall be compelled to arbitration as set forth in the terms of that agreement.

The following are the tentative rulings for cases calendared before Judge Sonny S. Sandhu in Department 24:

CV-23-005286 – APPLEGATE, JERRY SHERIDAN vs SOLECON INDUSTRIAL CONTRACTORS INC – a) Defendant Victor Manuel Ochoa’s Motion to Bifurcate Punitive Damages – HEARING REQUIRED; b)Defendant Solecon Industrial Contractors’ Motion to Bifurcate Trial on Liability – GRANTED.

a) The Court is inclined to grant the motion but is unclear to the extent of bifurcation being requested and therefore requires a hearing for clarification.

b) The Court finds, based on the date that Defendant filed this motion relative to the available hearing dates on the Court’s calendar, the present motion was timely filed. (Civ. Proc. Code § 598). Furthermore, Civ. Proc. Code § 1048 (b) by which Defendant also proceeds, does not mandate the statutory deadline of 30 days before trial.

The Court finds that the convenience of witnesses, the ends of justice, judicial economy, and the avoidance of prejudice support the bifurcation of the trial of liability and damages issues herein. (Code of Civil Procedure §§ 1048 (b) and 598; Horton v. Jones , (1972) 26 Cal. App. 3d 952; Trickey v. Superior Court In and For Sacramento County, (1967) 252 Cal.App.2d 650 ; People v. Cline, (1998) 60 Cal.App.4th 1327).

Defendant Solecon Industrial Contractor’s Inc.’s motion is therefore granted.

The Court therefore accordingly exercises its discretion and hereby orders the trial of liability and damages issues herein to be bifurcated.  ( National Elec. Supply Co. v. Mt. Diablo Unified School Dist . (1960) 187 Cal.App.2d 418).

CV-24-002844 – JPMORGAN CHASE BANK NA vs EISAVI, MELISA – Plaintiff’s Motion to Vacate Judgment and Enter Dismissal – GRANTED.

Based on the exercise of the Court’s inherent and equitable jurisdiction, Plaintiff’s motion is hereby granted. (Civ. Proc. Code § 187; Phillips, Spallas & Angstadt, LLP v. Fotouhi (201)1197 Cal.App.4th 1132; Lofton v. Wells Fargo Home Mortgage (2014) 230 Cal.App.4th 1050).

The default judgment issued by the Court herein on August 26, 2024, is hereby set aside and vacated. This action is also hereby dismissed without prejudice.

CV-24-009962 – THE AGRI GROUP INC vs LEAVITT, BURNS D – Defendant’s Demurrer to Second and Third Causes of Actions (Failure to State a Claim) – CONTINUED, on the Court’s own motion.

The Court notes Defendant incomplete filings to support this demurrer and concludes that Defendant’s demurrer is not properly before the Court at this time.( Rule 3.1112; Cal. Prac. Guide (Rutter Guide) Civ. Pro. Before Trial Ch. 7(I)-A).

Accordingly, this matter is continued for Defendant to render his pleadings on this demurrer compliant.

This matter is continued to Wednesday, June 25, 2025, at 8:30 am in Department 24 of this Court.If Defendant intends to file a reply same shall be filed with this Court at least five (5) court days before this hearing.

The following are the tentative rulings for cases calendared before Commissioner Jared D. Beeson in Department 19 located at the Turlock Division at 300 Starr Avenue, Turlock, CA:

***There are no Tentative Rulings for Department 19***