April 17, 2025

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

CV-22-001527 – JASSO, ROSALINDA vs HERNANDEZ, KELLY PAIGE – a) Plaintiff/Cross-Defendant’s Motion for Appointment of Elisor - HEARING REQUIRED. b)Plaintiff/Cross-Defendant’s Motion for Enforcement of Judgment- HEARING REQUIRED. c)Plaintiff/Cross-Defendant’s Motion for Request for Attorney Fees and Costs – HEARING REQUIRED.

a-c) The Court does not find Plaintiff’s claim that no amount of bond is appropriate to be compelling. The Court intends to discuss this with the parties.

CV-24-008715 – VICTORY, DUANE vs REFRESCO BEVERAGES US INC – Defendant Refresco Beverages US INC.’s Motion to Compel Arbitration and Dismiss Proceedings – HEARING REQUIRED.

Defendant’s Request for Judicial Notice is DENIED. The Court notes that citation to unpublished appellate and Superior Court cases is generally not permitted. (See TBG Ins. Service Corp. v. Superior Court (2002) 96 Cal.App.4 ^th 443, 447 fn. 2; California Rule of Court 8.1115.) Counsel is now on notice of the rules and the Court believes this note will be sufficient corrective action.

It appears to the Court that the additional information in the reply declaration of Macfarlane repairs the most severe defects cited by Plaintiff. As this information was not available prior to the filing of the opposition, Plaintiff is entitled to a hearing or further briefing. (In Espejo v. Southern California Permanente Medical Group (2016) 246 Cal.App.4 ^th 1047 at 1060 the appellate court ruled that initial declarations could be amended after a challenge; in that case the amended declarations were filed after the motion but before the opposition was filed.)

The objections to the initial declaration are well-taken.

Plaintiff’s lack of memory is insufficient to defeat the claim that he signed an arbitration provision with VBC, for which the evidence is strong. When the Court reaches the issues raised by the Refresco arbitration clause, if it is found the agreement was entered into, the Court will need to consider the unconscionability argument.

Unconscionability

Unconscionability has two factors, which the Court must weigh, procedural and substantive unconscionability. ( Sanchez v. Valencia Holding Company , LLC (2015) 61 Cal.4 ^th 899; Armenderiz v. Foundation Health Psychcare Services, Inc . (2000) 24 Cal 4 ^th 83, 114.)

The Refresco agreement is a contract of adhesion, and thus has some element of procedural unconscionability.

As for substantive unconscionability, Plaintiff cites “innumerable defects,” with the Refresco agreement and the Court is unconvinced as to the innumerability of such defects and does not believe they are unconscionable. FAA agreements are permitted in California and enforceable. If there are unconscionable provisions.

As to the VBC agreement, the mass arbitration clause appears to have a meaningful degree of substantive unconscionability. However, in that agreement, the procedural unconscionability is slight at best.

Class Action Waiver

If the remainder is valid, the class action waiver appears to be valid. (See: Iskanian v. CLS Transportation Los Angeles LLC (2014) 59 Cal.4 ^th 348, 364.)

Conclusion

The Court will permit additional briefing and may permit an evidentiary hearing as to the issue of the entry into the arbitration contract.

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

CV-20-001252 – ZAGARIS, KAY vs GROESBECK, BERNARD W – Plaintiff’s Motion to Determination of Property Rights Pursuant to Probate Code, 850 – CONTINUED to May 16, 2025 at 8:30 a.m. in Department 22.Any opposition to the motion will be due no later than May 2, 2025.  Any reply in support of the motion will be due no later than May 9, 2025.

CV-23-001407 – CORREA, FELIZ vs ACE COMMERCIAL PLASTERING INC - Defendant’s Motion for Protective

Order – HEARING REQUIRED.

CV-25-002092 – CORDONI, PAULETTE vs MIDWEST INSURANCE CO – Petitioner’s Paulette Cordoni’s Motion for Protective Order and/or Order to Modify Deposition Subpoena’s for Production of Business Records and for Sanctions – GRANTED and unopposed.

Pursuant to Code of Civil Procedure Section 2017.010, discovery is limited to those matters which are relevant and/or reasonably calculated to lead to admissible evidence. However, privileged records are not discoverable.

In Britt v. Superior Court (1978) 20 Cal.3d 844 the California Supreme Court held that plaintiffs who seek recovery for a particular injury do not unseal their lifetime medical histories. Medical and psychotherapy records that are unrelated to the injuries claimed are protected from discovery.

Respondent has not limited its medical record discovery to the injuries claimed by Petitioner. Rather, it seeks “any and all” medical records from the witnesses identified in the subpoenas. The deposition subpoenas, as unlimited in scope, are therefore in violation of the California Civil Discovery Act.

Respondent Midwest Insurance Company shall immediately withdraw, reform, and or reissue its subpoenas in order that only those records and documents involving the incident and injuries at issue be subject to production. Additionally, the court awards petitioner Paulette Cordoni sanctions in the amount of $760 due to Respondent’s misuse of the discovery process pursuant to Code of Civil Procedure section 2023.010 et seq.

PR-23-000575 – IN THE MATTER OF HELEN SCHERR REVOCABLE TRUST – Jackson National Life Insurance Company’s Notice of Motion and Motion for Attorneys’ Fees and Costs, Discharge from Liability, and Dismissal; Memorandum of Points and Authorities; and Declaration of Grant Loyal - DROPPEDat the request of the moving party.

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

***There are no Tentative Rulings for Department 23***

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

CV-24-001980 – GALAN, RIGOBERTO QUINTANA vs GUTIERREZ, VELIA – Plaintiffs’ Motion for Terminating Sanctions on in the Alternative Discovery and Evidence Sanctions – GRANTED, in part, DENIED in part, unopposed.

The Court finds following Defendants’ material breach of its financial obligations regarding the parties’ arbitration agreement and subsequent failure/refusal to comply with the Court’s order of September 11, 2024, that Defendant is subject to sanctions. (Civ. Proc. Code §§ 1281.97 (a)(2) and (b)(1); and 1281.99). 

Accordingly, Defendant’s Answer is hereby stricken.

The Court notes that Plaintiffs are entitled to monetary sanctions but that Plaintiffs’ supporting declaration did not provide the Court with a sum claimed for said monetary sanctions. If Plaintiffs do not intend to waive said monetary sanctions they may proceed per a noticed motion.

CV-24-007393 – BANK OF AMERICA NA vs CENSULLOPALLESCHI, LAUREN ANN – Plaintiff’s Motion to Deem Request for Admissions Admitted (C.C.P Section 2033.80) – GRANTED, unopposed.

The Court finds that Defendant has failed to timely respond to Plaintiff’s Requests for Admissions, Set One, served on her on November 11, 2024, without substantial justification.

Plaintiff’s motion is accordingly granted.

Accordingly, all objections to said Requests for Admissions by Defendant are hereby waived.(Code of Civil Procedure §2033.280(a). Furthermore, said Request for Admissions, Set One, are hereby deemed admittedfor all purposes including trial.    (Civ Proc. Code §§.2033.010, 2033.020, 2033.250, 2033.280; St. Mary v. Superior Court (2014) 223 Cal.App.4th 762).

CV-24-008960 – RODRIGUEZ, OSCAR vs CUPCAKE BOUTIQUE LLC – Plaintiff’s Motion to Strike Answer by Defendant Cupcake Boutique, LLC – DENIED, without prejudice.

The Court notes that Defendant’s Answer at issue was filed in response to Plaintiff’s Complaint and that Plaintiff filed a First Amended Complaint prior to said Answer being filed.  It is unclear whether Defendant has been served with said First Amended Complaint. If at all served, said service was after Defendant’s Answer was filed.

In any case, an amended complaint supersedes the original and furnishes the sole basis for a cause of action, and the original complaint is thereafter dropped out of the case and ceases to have any effect as a pleading, or as a basis for judgment.  ( Hayes v. Risk (1967) 255 Cal.App.2d 613; Civ. Proc. Code § 471.5). Similarly, Defendant’s Answer to Plaintiff’s Complaint, which is sought to be stricken has no effect as a pleading following the filing of Plaintiff’s First Amended Complaint.

Defendant's Motion to Be Relieved as Counsel - GRANTED.

Good cause existing, Ian B. Wieland’s motion to be Relieved as Counsel for AOne Security is hereby granted. (Civ. Proc. Code § 284; CRC 3.1362).

The Court’s order relieving Counsel shall take effect upon proof of service of same upon the client.

The following are the tentative ruling 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***