Roseli Morales Vs Chris Cash

Re: Patricia F. v. Westcare California, Inc. Superior Court Case No. 24CECG00632 Hearing Date: July 18, 2024 (Dept. 503) Motion: Defendants Westcare California, Inc. and Westcare Foundation, Inc.’s Demurrer to the Complaint Tentative Ruling: To overrule. Demurring defendants shall file their responsive pleadings within ten (10) days from the date of this order. Explanation: A demurrer challenges defects apparent from the face of the complaint and matters subject to judicial notice. (Blank v. Kirwan (1985) 30 Cal.3d 311, 318.) A general demurrer is sustained where the pleading is insufficient to state a cause of action or is incomplete. (Code Civ. Proc., § 430.10, subd. (e); Estate of Moss (2012) 204 Cal.App.4th 521, 535.) In considering a demurrer, the court assumes the truth of the facts properly plead. (Hoyem v. Manhattan Beach City Sch. DIst. (1978) 22 Cal.3d 508, 517; Serrano v. Priest (1971) 5 Cal.3d 584, 591.) Demurring defendants contend plaintiff’s first cause of action for negligence is insufficiently plead because demurring defendants owed plaintiff no duty under the auspices of Beauchene v. Synanon Foundation, Inc.(1979) 88 Cal.App.3d 342, 348 (Beauchene). Beauchene involved a convicted person’s “eloping” from a private rehabilitation institution and subsequent “‘crime spree.’” (Id. at p. 345.) In particular, the First District considered a negligence claim brought by a victim shot in the arm by the defendant 13 days after he left the program. (Ibid.) Beauchene and its progeny have consistently held that private rehabilitation institutions do not owe a duty to the general public for the injurious acts of escaped residents because to do so would “detrimental[ly] effect prisoner release and rehabilitation programs.” (Beauchene, supra, 88 Cal.App.3d at p. 348; accord, Rice v. Center Point, Inc. (2007) 154 Cal.App.4th 949, 956; Cardenas v. Eggleston Youth Center (1987) 193 Cal.App.3d 331, 335-336.) In essence, the same policy underlying absolute immunity for public entities in relation to escaped prisoners, escaped persons, or persons resisting arrest (Gov. Code, § 845.8), also applies to private institutions. (Beauchene, supra, 88 Cal.App.3d at p. 348.) However, unlike the acts by an escapee in Beauchene, plaintiff here alleges injury by an adjoining resident who shared a bathroom with plaintiff. (Complaint, ¶ 15.) The absence of door locks or other security devices between the adjoining rooms allowed the alleged perpetrator undetected access to plaintiff and an opportunity to commit the alleged assault. (Id. at ¶¶ 22 - 24.) Demurring defendants rely on Beauchene and its progeny, yet, offer no authority applying that reasoning to assaults by co-residents. Plaintiff, on the other hand, notes the settled principle that, in relation to harm committed by co-prisoners, “there is a special relationship between jailer and prisoner which imposes a duty of care on the jailer on the prisoner.” (Giraldo v. Department of Corrections & Rehabilitation (2008) 168 Cal.App.4th 231, 252-253.) Considering plaintiff’s allegation that she was harmed by a co-resident, not an escapee, demurring defendants’ contention that a duty does not exist does not appear supported by their asserted authorities. Furthermore, plaintiff’s allegations (which must be accepted as true) tend to show unrestricted and undetected access between adjoining residents such that the alleged assault could reasonably be found to be foreseeable. (Tarasoff v. Regents of University of California (1976) 17 Cal.3d 425, 434-435 [“The most important of [the] considerations in establishing duty is forseeability.”].) Therefore, the demurrer is overruled. Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order. Tentative Ruling Issued By: __ jyh on 7/10/24 . (Judge’s initials) (Date)

Re: Baldeep Dhindsa v. Suretec Insurance Company Superior Court Case No. 21CECG02866 Hearing Date: July 16, 2024 (Dept. 502) Motion: Default Prove-Up Oral Argument, if timely requested, will be heard on Thursday, July 18, 2024 at 3:30 PM in Department 502. Tentative Ruling: To deny without prejudice. Explanation: Plaintiff Baldeep Dhindsa has not filed a Judicial Council Form Civ-100 Request for Entry of Court Judgment, and the Court may not proceed without it. Should Plaintiff calendar another hearing, the Court prefers a default packet that complies with California Rules of Court, rule 3.1800, and the Superior Court of Fresno County, Local Rules, rule 2.1.14, be submitted at least ten court days prior to the hearing in order to avoid unnecessary consumption of time at the hearing. Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order. Tentative Ruling Issued By: KCK on 07/15/24 . (Judge’s initials) (Date)

Re: John Gonzales v. Ashley Global Retail, LLC Superior Court Case No. 23CECG03985 Hearing Date: July 17, 2024 (Dept. 502) Motion: by Plaintiff John Gonzales for Orders Compelling Defendant Stoneledge Furniture, LLC to Provide Initial Verified Responses to Form Interrogatories, Set One; Special Interrogatories, Set One; Demand for Production of Documents, Set One; Deeming Matters in Requests for Admissions Admitted, Set One; and Imposing Monetary Sanctions. Oral Argument, if timely requested, will be heard on Thursday, July 18, 2024 at 3:30 PM in Department 502. Tentative Ruling: To continue these motions to Wednesday, July 31, 2024, at 3:30 p.m. in Department 502. Plaintiff must file copies of the propounded discovery, proofs of service for the propounded discovery, and the unverified responses. Such documentation must be filed by Friday, July 19, 2024 at 5:00 p.m. Explanation: Unverified Responses Responses to initial discovery requests must be signed under oath by the party to whom the discovery was directed. (Code Civ. Proc., §§ 2030.250 subd. (a), 2031.250 subd. (a), 2033.240 subd. (a).) Unsworn responses are tantamount to no responses at all. (Appleton v. Superior Court (1988) 206 Cal.App.3d 632, 636.) Where there are both responses and objections, both the party and the attorney must sign the response. If the responses consist entirely of objections, only the attorney’s signature is required. (Code Civ. Proc., §§ 2030.250 subd. (a), (c); 2031.250 subd. (a), (c); 2033.240 subd. (a), (c).) Here, defendant has not served plaintiff with verifications for the discovery responses. However, plaintiff has not claimed or demonstrated in his motions that the responses provided are not solely objections, which would render verifications unnecessary. It is not possible at this time to determine where a verification may be required and where it is not, since the responses to the propounded discovery were not attached to the motions. Lack of Proof of Properly Served Responses A propounding party may move for an order compelling response to its propounded interrogatories and/or demand. (Code Civ. Proc., §§ 2030.290, 2031.300.) A propounding party may move for an order that the genuineness of any documents and the truth of any matters specified in the requests for admissions be deemed admitted. (Code Civ. Proc., § 2033.280.) Timely and verified responses are due from the party on which discovery is propounded within 30 days after service. (Code Civ. Proc. §§ 2030.260, 2031.260.) Failing to respond to discovery within the 30-day time limit waives objections to the discovery, including claims of privilege and work product protection. (Code Civ. Proc., §§ 2030.290 subd. (a), 2031.300 subd. (a), 2033.280 subd. (a).) A motion to compel initial responses must show that the discovery was properly served on the opposing party, that the time to respond has expired, and that no response of any kind has been served. (Leach v. Superior Court (1980) 111 Cal.App.3d 902, 905- 06, see Sinaiko Healthcare Consulting, Inc. v. PacificHealthcare Consultants (2007) 148 Cal.App.4th 390, 404.) If the responses are ones that require verification (i.e. answers with or without objections), the lack thereof is tantamount to no responses at all. (Appleton v. Superior Court, supra, 206 Cal.App.3d 636.) Here, plaintiff argues that the unverified responses received on May 3, 2024 are equivalent to no responses received. Even should this prove to be correct and verifications are required, plaintiff has not demonstrated that the propounded discovery requests were properly served. Plaintiff has not attached the propounded discovery and no proof of service that shows the method and date of service of the discovery requests. Defendant has not filed opposition or otherwise appeared in a manner that would effectively waive insufficient notice. (See Alliance Bank v. Murray (1984) 161 Cal.App.3d 1, 7.) The court cannot yet rule on the merits of plaintiff’s motion because counsel’s declaration does not attach the propounded discovery (or defendant’s responses thereto) nor the proof of service of the discovery requests. Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order. Tentative Ruling Issued By: KCK on 07/15/24 . (Judge’s initials) (Date)

Re: Zachary Costi v. William Hanks, M.D. Superior Court Case No. 20CECG00415 Hearing Date: July 17, 2024 (Dept. 502) Motion: Defendant Penumbra, Inc.’s Demurrer to the Second Amended Complaint Oral Argument, if timely requested, will be heard on Thursday, July 18, 2024 at 3:30 PM in Department 502. Tentative Ruling: To sustain, with leave to amend. Should plaintiff desire to amend, the Third Amended Complaint shall be filed within ten (10) days from the date of this order. The new amendments shall be in bold print. Explanation: A demurrer challenges defects apparent from the face of the complaint and matters subject to judicial notice. (Blank v. Kirwan (1985) 30 Cal.3d 311, 318.) A general demurrer is sustained where the pleading is insufficient to state a cause of action or is incomplete. (Code Civ. Proc., § 430.10, subd. (e); Estate of Moss (2012) 204 Cal.App.4th 521, 535.) A special demurrer, though disfavored, is nevertheless sustained where a pleading is so uncertain that the defendant cannot reasonably respond to the subject pleading. (Khoury v. Maly’s of Calif., Inc. (1993) 14 Cal.App.4th 612, 616; A.J. Fistes Corp. v. GDL Best Contractors, Inc. (2019) 38 Cal.App.5th 677, 694.) Similarly, failure to comply with rules promulgated to promote clear and understandable pleadings “may render a complaint confusing and subject to a special demurrer for uncertainty.” (Williams v. Beechnut Nutrition Group (1986) 185 Cal.App.3d 135, 139 fn. 2.) Under long-settled rules, a demurrer “admit[s] all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law.” (Serrano v. Priest (1971) 5 Cal.3d 584, 591.) In other words, “[w]e disregard legal conclusions in a complaint; they are just a lawyer's arguments.” (Wexler v. California Fair Plan Association (2021) 63 Cal.App.5th 55, 70, emphasis added.) Plaintiff’s operative Second Amended Complaint (“SAC”) refers to its Exhibits A and B as identifying the allegedly defective medical equipment causing harm. (See, e.g., SAC, ¶¶ 11,12, and 16.) These exhibits, however, do not identify the alleged manufacturer, leaving Penumbra to unreasonably speculate which particular device it is being alleged to have been manufactured and/or controlled. (See Sindell v. Abbot Laboratories (1980) 26 Cal.3d 588, 597 [“[A]s a general rule, the imposition of liability depends upon a showing by the plaintiff that his or her injuries were caused by the act of the defendant or by an instrumentality under the defendant's control.”].) Although plaintiff substantively contends precision is unnecessary (Opp. at p. 5:10-14), considering the competiveness and numerosity of SAC Exhibits A and B, a more refined identification is required to inform Penumbra of the item it must defend. In light of the liberality offered to amendment, plaintiff is granted an opportunity to cure this uncertainty. Plaintiff also contends the demurrer is untimely. “A person against whom a complaint or cross-complaint has been filed may, within 30 days after service of the complaint or cross-complaint, demur to the complaint or cross-complaint.” (Code Civ. Proc., § 430.40, subd. (a).) The statute’s use of the “permissive expression ‘may’”, as opposed to the mandatory term “must”, has been applied to allow demurrers after expiration the time to respond to the complaint. (McAllister v. County of Monterey (2007) 147 Cal.App.4th 253, 280; see also Jackson v. Doe (2011) 192 Cal.App.4th 742, 750.) Penumbra has presented an email from plaintiff’s counsel which reflects an agreement between counsel to allow plaintiff until October 31, 2023 to file another amended pleading. (See Perkins, Decl., Ex. B.) No amended pleading was filed, and Penumbra’s counsel’s claim of inadequate participation in the meet and confer process is unaddressed in plaintiff’s opposition. Under these circumstances, Penumbra’s demurrer was considered on its merits. Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order. Tentative Ruling Issued By: KCK on 07/15/24 . (Judge’s initials) (Date)

Re: Violet Peloyan v. Ryan Jones Superior Court Case No. 24CECG00831 Hearing Date: July 17, 2024 (Dept. 503) Motion: By Defendant Ryan Jones to Set Aside Entry of Default and to Quash Service of Summons Tentative Ruling: To grant the motion to set aside Entry of Default as to defendant Ryan Jones. (Code Civ. Proc., § 473, subd. (b).) Defendant Ryan Jones is to file and serve his answer on plaintiff within 10 days of the clerk’s service of the minute order. To find the motion to quash moot based on the Proof of Service of the Summons and Complaint filed June 10, 2024. To deem the Proof of Service filed April 26, 2024 as to defendant RJ Freight LLC defective. To find the Entry of Default as to defendant RJ Freight LLC entered on April 26, 2024 void. Explanation: Set Aside The trial court has broad discretion to vacate the judgment and/or the clerk’s entry of default that preceded it. However, that discretion can be exercised only if the moving party establishes a proper ground for relief, by the proper procedure, and within the statutory time limits. (Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 495.) Here, defendant Ryan Jones has moved to set aside default entered against him on February 28, 2024, pursuant to the discretionary relief afforded under Code of Civil Procedure section 473, subdivision (b). First, default was not entered against defendant Jones on February 28, 2024, but on April 26, 2024. The complaint was filed on February 28, 2024. The court is construing this as a motion to set aside the entry of default as to defendant Ryan Jones entered April 26, 2024. A motion for relief from default based on discretionary relief must be filed within six months after the entry of default. (Code Civ. Proc., § 473, subd. (b).) Here, default was entered on April 26, 2024 and this motion was filed one week later on May 3, 2024. As such, it is timely. The court is empowered to relieve a party “upon any terms as may be just … from a judgment, dismissal, order, or other proceeding taken against him or her through his or her mistake, inadvertence, surprise, or excusable neglect. Application for this relief … shall be made within a reasonable time, in no case exceeding six months, after the judgment, dismissal, order, or proceeding was taken.” (Code Civ. Proc., § 473, subd. (b).) Policy strongly favors trial and disposition on the merits and doubts in the application of Code of Civil Procedure section 473 must be resolved in favor of the party seeking relief. (Elston v. City of Turlock (1985) 38 Cal.3d 227, 233 [superseded by statute on other grounds]; Fasuyi v. Permatex, Inc. (2008) 167 Cal.App.4th 681, 696.) Where the party seeking relief seeks such relief promptly and no prejudice will result to the opposing party, “very slight evidence will be required to justify a court in setting aside the default.” (Elston v. City of Turlock, supra, 38 Cal.3d 227, 233.) In order to demonstrate mistake, inadvertence, surprise, or excusable neglect, the moving party must include declarations or other evidence demonstrating such. Here, defendant Jones has included his own declaration stating that his 84-year-old grandmother was served with the papers and did not know what she was signing and that he did not receive them until after he returned from a truck driving job. (Jones Decl.) In response, plaintiff has filed her own declaration stating that she reviewed the documents with defendant’s grandmother, that the grandmother agreed to serve defendant, and that service happened on March 2, 2024 by defendant going to the grandmother’s to receive the documents. (Peloyan Decl.) Neither party has provided a declaration from Norma Kemmer, defendant’s grandmother. Plaintiff does not declare that she was personally present when defendant was served by his grandmother and it is unclear when the grandmother provided the signed proof of service to plaintiff for filing purposes. Defendant does not specify when he returned from the truck driving trip and became aware of the summons and complaint. Here, no prejudice will result to plaintiff by granting defendant relief. As such, very slight evidence is required to justify the court in setting aside the default. The court finds that it has sufficient evidence to set aside default here. Code of Civil Procedure section 473, subdivision (b) specifies that the application for relief shall be accompanied by a copy of the proposed answer. The term “accompanied” is interpreted liberally and relief may be granted where an answer is filed separately from the notice of motion, but before the hearing. (Austin v. Los Angeles Unified School Dist. (2016) 244, Cal.App.4th 918, 933.) Such filing constitutes substantial compliance with the requirements of Code of Civil Procedure section 473. (Ibid.) The purpose behind the requirement of including the proposed pleading is to show good faith and readiness to file the proposed pleading. (Ibid.) Here, defendant filed an answer on May 12, 2024, which was deemed void on May 30, 2024. As such, he has substantially complied with the requirement to include the proposed pleading. The court will set aside the entry of default as to defendant Jones entered April 26, 2024. Quash Defendant Jones has moved to quash the service of the summons and complaint as to him filed on April 16, 2024. Plaintiff has re-served the summons and complaint on defendant Jones with a new proof of service filed June 10, 2024. As such, the motion to quash service based on the April 16, 2024 proof of service is moot. Defective Service and Entry of Default as to Defendant RJ Freight LLC A Proof of Service was filed on April 26, 2024 indicating that defendant RJ Freight LLC was served with the Summons and Complaint on March 7, 2024 by personally serving the Agent for Service of Process, Koy Saechoa at 2710 Gateway Oaks Drive in Sacramento, California. However, the California Secretary of State business search indicates that the proper agent for service of RJ Freight LLC is 1505 Corporation, listing the following as agent authorized employees Joyce Yi, Sandra Menjivar, Jesse Camarena, and Arielle Devay at 101 North Brand Boulevard in Glendale, California. It does not appear the service is appropriate on Koy Saechoa. As such, the Proof of Service filed April 26, 2024 is deemed defective. Where service is defective as to RJ Freight LLC, the Entry of Default on April 26, 2024 as to RJ Freight LLC is void. (Code Civ. Proc., § 473, subd. (d).) Where there is not a valid service of summons, any judgment violates due process of law. (Peralta v. Heights Med. Ctr., Inc. (1988) 485 U.S. 80, 84-85.; Calvert v. Al Binali (2018) 29 Cal.App.5th 954, 960-961.) As it has been determined that the service of summons is invalid, the court is setting aside the Entry of Default. Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order. Tentative Ruling Issued By: jyh on 7/15/24 . (Judge’s initials) (Date)

Re: Singh v. Singh Superior Court Case No. 22CECG01712 Hearing Date: July 18, 2024 (Dept. 503) Motion: Motion to be Relieved as Counsel Tentative Ruling: The court intends to deny plaintiff counsel’s motion to be relieved as counsel, without prejudice. Explanation: Counsel’s declaration indicates the current address for his client was confirmed by mailing communications to his last known address and to the client’s email that has been used to communicate with him throughout the representation. (Declaration, Item 3b.(1)(d).) The declaration indicates none of these communications have been returned. The declaration does not confirm any additional efforts to locate the current address for the client. Counsel has not adequately confirmed the client’s current address. “As used in this rule, ‘current’ means that the address was confirmed within 30 days before the filing of the motion to be relieved. Merely demonstrating that the notice was sent to the client's last known address and was not returned or no electronic delivery failure message was received is not, by itself, sufficient to demonstrate that the address is current.” (Cal. Rules of Court, rule 3.1362, subd. (d).) Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order. Tentative Ruling Issued By: jyh on 7/16/24 . (Judge’s initials) (Date)

Re: Gonzales v. Contreras Superior Court Case No. 23CECG02610 Hearing Date: July 18, 2024 (Dept. 503) Motion: Petition to Approve Compromise of Disputed Claim of Minor Tentative Ruling: To grant. Order signed. No appearances necessary. Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order. Tentative Ruling Issued By: jyh on 7/16/24 . (Judge’s initials) (Date)

Re: J.C. v. Fresno Unified School District et al. Superior Court Case No. 23CECG03952 Hearing Date: July 18, 2024 (Dept. 503) Motion: by Plaintiff J.C. for Trial Preference Tentative Ruling: To grant. Explanation: Plaintiff J.C. (“Plaintiff”) seeks preferential setting of trial under Code of Civil Procedure section 36, subdivision (b). Code of Civil Procedure section 36, subdivision (b) provides, in pertinent part: A civil action to recover damages for wrongful death or personal injury shall be entitled to preference upon the motion of any party to the action who is under 14 years of age unless the court finds that the party does not have a substantial interest in the case as a whole. Here, Plaintiff submits evidence demonstrating that Plaintiff is under 14 years of age. (Trujillo Decl., ¶ 3.) Plaintiff further submits that, as the only plaintiff party, Plaintiff has a substantial interest in the case as a whole. (Id., ¶ 4.) Accordingly, preference is mandatory. (Code Civ. Proc. § 36, subd. (b).) Defendant Fresno Unified School District (“Defendant”) opposes. In opposition, Defendant relies on series of cases interpreting the intersection between Code of Civil Procedure section 36 and other statutes, such as the 5-year limit to bring the case to trial, or cases that have been coordinated. Defendant however concedes that no other statutes are in conflict that would require the harmonizing considerations put forth in Defendant’s cited authority. Rather, “subdivision (b) is mandatory; accordingly… the trial court does not have discretion to deny trial preference to a party under 14 who has a substantial interest in the litigation.” (Landry v. Berryessa Union School Dist. (1995) 39 Cal.App.4th 691, 696.) Defendant submits that to grant trial preference would be a denial of due process. Defendant relies on Western Steamship Lines, Inc. v. San Pedro Peninsula Hospital, which is inapposite. (Western Steamship Lines, Inc. v. San Pedro Peninsula Hospital (1994) 8 Cal.4th 100.) There, the issue was whether a judgment was binding to an indemnitor where the indemnitor had no opportunity to defend the action. (Id. at p. 118.) The authority did not consider the constitutionality of the present statute of Code of Civil Procedure section 36. Defendant further relies on Peters v. Superior Court; however, the opinion expressly does not address the issues of due process. (Peters v. Superior Court (1989) 212 Cal.App.3d 218, 227.) Additionally, the court there specifically found that the Legislature intended Code of Civil Procedure section 36, subdivision (b) to be mandatory. (Id. at pp. 223-224.) Finally, Defendant argues that Plaintiff fails to demonstrate good cause as required by California Rules of Court, rule 3.1335(b). Good cause is sufficiently demonstrated by and through Code of Civil Procedure section 36. Based on the above, the motion for trial preference is granted. Accordingly, trial shall be set not more than 120 days from the date of this order. (Code Civ. Proc. § 36, subd. (f).) Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order. Tentative Ruling Issued By: jyh on 7/16/24 . (Judge’s initials) (Date)

Re: Teresa Tarazi v. Robert Pimental, PHD Superior Court Case No. 23CECG00190 Hearing Date: July 18, 2024 (Dept. 502) Motion: Defendants’ Demurrer to Fifth Cause of Action Tentative Ruling: To sustain defendants’ demurrer to the fifth cause of action for failure to engage in the interactive process, as the plaintiff has failed to state facts sufficient to constitute a valid cause of action. To deny leave to amend. Explanation: The Fifth District Court of Appeal has ordered this court to consider the defendant SCCCD’s argument that plaintiff has not stated a valid cause of action for failure to engage in the interactive process with regard to her request for religious accommodation, as Government Code section 12940, subdivision (l)(1) does not expressly state that the employer must engage in the interactive process where the employee requests religious accommodation. (May 9, 2024 Order on Writ of Mandate, p. 1.) As directed by the Court of Appeal, this court set the matter for hearing on the issue of whether a cause of action for failure to engage in the interactive process will lie in religious discrimination cases and ordered the parties to submit supplemental briefing on the issue. The parties have now filed supplemental briefs addressing the issue. The defendants rely heavily on the fact that the language of Government Code section 12940, subdivision (l)(1) does not include any mention of the “interactive process”, and therefore they argue that the court should not impose a requirement that is not expressly imposed by the statute. Plaintiff, on the other hand, notes that, while section 12940(l)(1) does not include language requiring the employer to engage in the interactive process, it does require the employer to “explore any other available reasonable alternatives means of accommodating the religious belief.” (Govt. Code, § 12940, subd. (l)(1).) The California form jury instruction for failure to accommodate religious beliefs also requires the employer to explore reasonable alternatives to accommodate the employee’s religious beliefs. (CACI No. 2560.) Plaintiff contends that this language is essentially the same as requiring an interactive process. Plaintiff also cites to several federal cases interpreting Title VII and the Americans with Disabilities Act as containing a requirement to engage in the interactive process, even though those statutes also do not expressly state that the employer has to “engage in the interactive process” with regard to an employee’s request for an accommodation. First, there is no dispute that section 12940, subdivision (l)(1), does not include an express provision that requires the employer to “engage in the interactive process” in order to find a reasonable accommodation of the employee’s religious beliefs. However, section 1240(l)(1) does provide an exception for liability for failure to accommodate the employee’s request for a religious accommodation if “the employer … demonstrates that it has explored any available reasonable alternative means of accommodating the religious belief or observance, … but is unable to reasonably accommodate the religious belief or observance without undue hardship, … on the conduct of the business of the employer ….” (Govt. Code, § 12940, subd. (l)(1).) The California form jury instructions for religious discrimination cases also state that one of the elements of a claim is that “defendant did not explore available reasonable alternatives of accommodating plaintiff, including excusing plaintiff from duties that conflict with plaintiff’s religious belief or permitting those duties to be performed at another time or by another person, or otherwise reasonably accommodate plaintiff’s religious belief.” (CACI No. 2560, italics added.) As the Court of Appeal has noted, the lack of an express requirement to engage in the interactive process for religious discrimination cases under section 12940(l)(1) contrasts with the language of section 12940, subdivision (n), the disability discrimination statute, which does contain an express requirement to engage in the interactive process. “It is an unlawful employment practice… [f]or an employer … to fail to engage in a timely, good faith, interactive process with the employee or applicant to determine effective reasonable accommodations, if any, in response to a request for reasonable accommodation by an employee or applicant with a known physical or mental disability or known medical condition.” (Gov. Code, § 12940, subd. (n), italics added.) Thus, it is unlawful for an employer to fail to engage in the interactive process in disability discrimination cases. There is no similar language for religious discrimination cases under section 12940, subdivision (l)(1). The fact that the Legislature included an express requirement to engage in the interactive process for disability claims, but not for religious discrimination claims, suggests strongly that the Legislature did not intend to create a separate cause of action based on the failure of an employer to engage in the interactive process where the employee requests a religious accommodation. The court may not insert additional terms into a statute which are not already present, and instead it must simply interpret the statute based on the terms contained therein. “In the construction of a statute or instrument, the office of the Judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted, or to omit what has been inserted; and where there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all.” (Code Civ. Proc., § 1858.) Therefore, the court will not impose a requirement to engage in the interactive process for religious discrimination claims that is not clearly reflected in the language of section 12940(l)(1). Plaintiff argues that section 12940(l)(1) and the California jury instructions both state that an employer has a duty to accommodate an employee’s religious beliefs, unless the employer has explored reasonable alternatives and has been unable to find a reasonable accommodation that does not unduly burden the employer. (Govt. Code, § 12940, subd. (l)(1), CACI No. 2560.) Plaintiff contends that this is tantamount to a requirement that the employer engage in the interactive process where the employee requests a religious accommodation. In addition, plaintiff cites to several federal cases interpreting Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act, which have held that an employer has a duty to engage in the interactive process even though those statutes do not include an express requirement to engage in the interactive process. “Because of the similarity between state and federal employment discrimination laws, California courts look to pertinent federal precedent when applying our own statutes.” (Guz v. Bechtel Nat. Inc. (2000) 24 Cal.4th 317, 354, citations omitted.) It is true that federal courts have inferred a requirement for an employer to engage in the interactive process in religious and disability discrimination cases, despite the fact that the ADA and Title VII do not expressly require the employer to engage in the interactive process. “Generally speaking, there are no affirmative duties for employers to act under the federal employment discrimination statutes, but the law demands more of employers in the disability- and religious-discrimination contexts. Indeed, the ADA and Title VII's provisions for religious discrimination both require employers to reasonably accommodate employees' disabilities and religious observances. In these types of cases, the employer has a heightened duty to engage the employee in the interactive process to identify a reasonable accommodation.” (Suvada v. Gordon Flesch Co., Inc. (N.D. Ill., Sept. 13, 2013, No. 11 C 07892) 2013 WL 5166213, at *10, citations omitted.) “Title VII of the Civil Rights Act of 1964 requires that employers provide reasonable accommodation to employees who have religious beliefs that conflict with their employment responsibilities, unless the employer can show that the accommodation would either unduly burden the employer or other employees.” (E.E.O.C. v. AutoNation USA Corp. (9th Cir. 2002) 52 Fed. Appx. 327, 328, citations omitted.) “This court has recognized that ‘Title VII is premised on bilateral cooperation.’ An employee, therefore, has a ‘concomitant duty ... to cooperate in reaching an accommodation [under Title VII].’ An employee's ‘correlative duty to make a good faith attempt to satisfy his needs through means offered by the employer’ arises after the employer takes the ‘ “initial step’ towards accommodating [the employee's] conflicting religious practice’ by suggesting a possible accommodation.” (Id. at p. 329, citations omitted, italics in original.) “This statutory and regulatory framework, like the statutory and regulatory framework of the Americans with Disabilities Act (ADA), involves an interactive process that requires participation by both the employer and the employee.” (Thomas v. National Ass'n of Letter Carriers (10th Cir. 2000) 225 F.3d 1149, 1155, citations omitted.) However, the federal courts have discussed the requirement of an interactive process in the context of the employee’s claim for failure to accommodate their religious beliefs or disability, not in the context of a separate cause of action for failure to engage in the interactive process. (Thomas, supra, at p. 1155; E.O.C. v. AutoNation USA Corp., supra, 52 Fed. Appx., at pp. 328-329.) In other words, the requirement to engage in the interactive process is one of the elements of a failure to accommodate cause of action, rather than the basis for a separate cause of action for failure to engage in the interactive process. (Ibid.) Under the federal burden shifting procedure, the employee has the initial burden of showing that they have a religious belief that conflicts with an employment requirement, that they informed the employer of their belief, and that the employer fired the employee for failure to comply with the conflicting employment requirement. (Thomas, supra, at p. 115.) The burden then shifts to the employer to either conclusively rebut the plaintiff’s prima facie case, show that it offered a reasonable accommodation, or show that it was unable to accommodate the employee’s religious needs without undue hardship. (Id. at p. 1156.) The requirement to engage in the interactive process is part of the employer’s burden of defeating plaintiff’s case for failure to accommodate. It is not a separate cause of action unto itself. Therefore, the cases cited by plaintiff do not support her contention that she can state an entirely separate cause of action here for failure to engage in the interactive process. As discussed above, the language of section 12940(l)(1) indicates that an employer can show that it is not liable for failure to accommodate an employee’s request for a religious accommodation if it shows that it explored reasonably available alternative accommodations and determined that there were no reasonable accommodations for the employee’s religious beliefs that would not impose an undue hardship on the employer. (Govt. Code, § 12940, subd. (l)(1).) Thus, the provision allowing an employer to explore reasonably available alternative accommodations appears to be intended to allow the employer to rebut the employee’s initial prima facie showing that she requested an accommodation and that it was denied. In other words, section 12940(l)(1) appears to adopt the same type of burden-shifting procedure used by federal courts in disability and religious discrimination cases rather than creating an entirely new cause of action for failure to engage in the interactive process. (Thomas, supra, at p. 1156.) Here, plaintiff has already alleged a separate cause of action for failure to accommodate her religious beliefs. (See Complaint, Sixth Cause of Action.) Therefore, the fifth cause of action is duplicative of the sixth cause of action. Since there is no statutory basis for a separate cause of action for failure to engage in the interactive process with regard to religious beliefs, the court intends to sustain the demurrer to the fifth cause of action for failure to state facts sufficient to constitute a cause of action. Furthermore, there does not appear to be any reasonable possibility that plaintiff could amend her claim to cure the defect, as there is no basis in Government Code section (l)(1) for a separate claim for failure to engage in the interactive process. As a result, the court intends to sustain the demurrer without leave to amend. Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order. Tentative Ruling Issued By: KCK on 07/17/24 . (Judge’s initials) (Date)