Tentative ruling on Jul. 10, 2024 in Fresno County, CA - Case no: xxxxx468

Re: Higgins v. Gooch Case No. 20CECG2931 Hearing Date: July 23, 2024 (Dept. 503) Motion: Defendant Elite Restaurant Group’s Motion to Dismiss Defendant Elite Restaurant Group and Mimi’s North’s Demurrer to Second Amended Complaint Defendant Le Duff America’s Demurrer to Second Amended Complaint Tentative Ruling: To deny defendant Elite Restaurant Group’s motion to dismiss plaintiffs’ complaint. To sustain the demurrers of defendants Elite, Mimi’s North, and Le Duff for failure to state facts sufficient to constitute a cause of action, with leave to amend. Plaintiffs shall serve and file their third amended complaint within ten days of the date of service of this order. All new allegations shall be in boldface. To deny Le Duff’s motion for its attorney’s fees and costs, as premature and unsupported by statutory or contract language. Explanation: Elite’s Motion to Dismiss: “The summons and complaint shall be served upon a defendant within three years after the action is commenced against the defendant. For the purpose of this subdivision, an action is commenced at the time the complaint is filed.” (Code Civ. Proc., § 583.210, subd. (a).) “Section 583.210 applies to a defendant sued by a fictitious name from the time the complaint is filed and to a defendant added by amendment of the complaint from the time the amendment is made.” (Legislative Committee Comments to Code Civ. Proc., § 583.210, citations omitted, italics added.) “Dismissal is mandatory as to a party who has not been served with summons within three years from the commencement of the action unless the case comes within one of the exceptions expressly stated in the statute or implied, as the case law has interpreted it. The appearance of some parties within the three year period does not preclude dismissal of other parties who have not been served.” (Elling Corp. v. Superior Court (1975) 48 Cal.App.3d 89, 93, citations omitted.) However, “[t]he case law does distinguish between parties named in the original complaint and parties added by amendment later. If a new party is added later, the action commences as to him on the date of the amendment.” (Id. at p. 94, citation omitted.) “It is established that, as to a party named in the original complaint, the action commences for purposes of section 581[now section 583.210] on the date of the filing of the complaint. The same rule is appropriate where the defendant was named in the original complaint by fictitious name. On the other hand, when a new party is added to the action, the action commences as to him on the date of the order adding him as a party or on the date of filing of the pleading naming him as a new party.” (Warren v. Atchison, T. & S. F. Ry. Co. (1971) 19 Cal.App.3d 24, 38, citations omitted, italics added.) Here, plaintiffs did not add Elite as a defendant to the action until the second amended complaint was filed on December 21, 2023. Thus, the action did not “commence” as to Elite until December 21, 2023. As a result, plaintiffs had to serve Elite with the summons and complaint within three years of December 21, 2023. They actually served Elite on December 22, 2023, only one day after Elite was added to the action. As a result, plaintiffs did not violate the three-year service rule under section 583.210. In its motion, Elite cites to Higgins v. Superior Court (2017) 15 Cal.App.5th 973 for the proposition that the relation back doctrine does not prevent dismissal of the action against it for failure to serve it within three years. In Higgins, the Court of Appeal rejected the plaintiff’s argument that, “because the filing of the third amended complaint in which she identified Higgins as Doe 2 relates back to the filing of the original complaint, the service of the summons and third amended complaint also relates back to the filing of the original complaint. The relation-back doctrine applicable to a fictitiously named defendant and the requirement that a plaintiff serve the summons and complaint within three years are independent concepts. Thus, even where the filing of an amended complaint on a Doe defendant relates back to the filing of an original complaint, the plaintiff must nonetheless identify and serve a Doe defendant with a summons and complaint within three years of the commencement of the action.” (Id. at p. 982, citations omitted.) Here, however, plaintiffs are not relying on the relation-back doctrine to show that it served Elite as of the filing of the original complaint. Instead, they rely on the fact that the action was not “commenced” against Elite until it was added to the action as a defendant upon the filing of the second amended complaint. Since plaintiffs served Elite within three years of commencing the action against Elite, the action was timely served and is not subject to being dismissed under section 583.210. As a result, the court intends to deny the motion to dismiss Elite from the action under section 583.210. Demurrers: Plaintiffs have alleged claims under FEHA for sexual harassment, sex discrimination, retaliation, and failure to prevent harassment, as well as claims under Labor Code section 1102.5, Labor Code sections 6310 and 6311, failure to provide adequate meal and rest breaks under Labor Code sections 226.7 and 512, violation of Labor Code section 1198.5, violation of Civil Code section 52.1, aka the Bane Act, adverse action in violation of public policy, and loss of consortium. The plaintiffs’ causes of action have statutes of limitations of one to three years. (Govt. Code, § 12960, subd. (f)(B): one-year statute after issuance of right to sue letter for claims under FEHA; three years for Labor Code claims; three years for Bane Act claim; two years for adverse action in violation of public policy; two years for loss of consortium.) Here, however, plaintiffs did not file their first amended complaint adding Le Duff and Mimi’s North as defendants until June 20, 2023, more than three years after Ms. Higgins resigned from her employment at SWH Mimi’s Café in October of 2019, and over two years after plaintiffs received a right to sue letter from the DFEH on August 10, 2020. Plaintiffs did not file their second amended complaint adding Elite Restaurant Group as a defendant until December 21, 2023, over four years after she resigned from Mimi’s and more than three years after they received a right to sue letter from the DFEH. Thus, plaintiffs’ claims against defendants Le Duff, Elite, and Mimi’s North are time-barred unless they relate back to the filing of the original complaint. Under Code of Civil Procedure section 474, “When the plaintiff is ignorant of the name of a defendant, he must state that fact in the complaint, … and such defendant may be designated in any pleading or proceeding by any name, and when his true name is discovered, the pleading or proceeding must be amended accordingly…” (Code Civ. Proc., § 474.) Thus, “[a] plaintiff ignorant of the identity of a party responsible for damages may name that person in a fictitious capacity, a Doe defendant, and that time limit prescribed by the applicable statute of limitations is extended as to the unknown defendant.” (Munoz v. Purdy (1979) 91 Cal.App.3d 942, 946.) “When the complaint is amended to substitute the true name of the defendant for the fictional name, the defendant is regarded as a party from the commencement of the suit, provided the complaint has not been amended to seek relief on a different theory based on a general set of facts other than those set out in the original complaint.” (Ibid, citations omitted.) “The statute (§ 474) must be liberally construed to enable a plaintiff to avoid the bar on the statute of limitations where he is ignorant of the identity of the defendant.” (Ibid, citations omitted.) “Where a complaint sets forth, or attempts to set forth, a cause of action against a defendant designated by fictitious name and his true name is thereafter discovered and substituted by amendment, he is considered a party to the action from its commencement so that the statute of limitations stops running as of the date of the earlier pleading.” (Austin v. Massachusetts Bonding & Ins. Co. (1961) 56 Cal.2d 596, 599, citations omitted.) “The modern rule with respect to actions involving parties designated by their true names in the original complaint is that, where an amendment is sought after the statute of limitations has run, the amended complaint will be deemed filed as of the date of the original complaint provided recovery is sought in both pleadings on the same general set of facts.” (Id. at p. 600, citations omitted.) “Decisional authority has evolved a liberal rule in permitting plaintiffs to amend pleadings and to substitute named defendants for charged fictitious defendants without incurring the bar of the statute of limitations; this is so in order that cases may be fairly decided on their merits.” (Ingram v. Superior Court (1979) 98 Cal.App.3d 483, 491, citations omitted.) However, “[w]hile we recognize the Supreme Court's liberal attitude toward allowing amendments of pleadings to avoid the harsh result imposed by a statute of limitations, that attitude is not unfettered by reasonable requirements. Some discipline in pleading is still essential to the efficient processing of litigation… [I]n the case of substitution of a named defendant for a fictitiously named and charged defendant, great liberality is allowed. However, a party may only avail himself of the use of naming Doe defendants as parties when the true facts and identities are genuinely unknown to the plaintiff…. The straightforward rule is that amendment after the statute of limitations has run will not be permitted when the result is the addition of a party who, up to the time of the proposed amendment, was neither a named nor a fictitiously designated party to the proceeding.” (Id. at pp. 491–492, citations omitted.) In the present case, plaintiffs contend that their claims against the newly added defendants are not time-barred because they relate back to the date when the complaint was originally filed. They also contend that they have not added any new legal theories against the new defendants, and their claims are based on the same set of facts alleged in the original complaint. Therefore, they conclude that the relation- back doctrine applies here and prevents their claims from being barred by the statutes of limitation. However, plaintiffs’ argument ignores the fact that they did not add the new defendants to the action by substituting them in place of Doe defendants in accordance with the procedure under section 474. Instead, they sought leave to amend the complaint under section 473, which does not provide a procedure for substituting the named defendants in the place of fictitiously named defendants. Since plaintiffs did not comply with the Doe substitution procedure under section 474, and instead simply amended the complaint to add the new defendants, they cannot use the relation-back doctrine to prevent the running of the statute of limitations. “The straightforward rule is that amendment after the statute of limitations has run will not be permitted when the result is the addition of a party who, up to the time of the proposed amendment, was neither a named nor a fictitiously designated party to the proceeding.” (Ingram, supra, at pp. 491-492.) Therefore, plaintiffs’ claims against the newly named defendants are time-barred and fail to state a valid cause of action against them. Still, some courts have treated the failure to substitute a new defendant in place of a fictitiously named defendant as a mere procedural defect that can be cured by amendment. They have also been lenient in permitting rectification of the defect. (Woo v. Superior Court (1999) 75 Cal.App.4th 169, 176–177.) Indeed, some courts have held that it was an abuse of discretion for the trial court to deny leave to amend where the only problem was that the plaintiff failed to substitute the proper defendant in place of a fictitiously named defendant where the actual defendant’s identity was unknown to the plaintiff and the complaint would otherwise state a valid claim against the defendant. (Streicher v. Tommy’s Electric Co. (1985) 164 Cal.App.3d 876, 884-885.) Other courts may require strict compliance with the procedures of section 474 and refuse to allow the plaintiff to cure the defect. (Woo, supra, at p. 177.) Here, the court intends to grant leave to amend, as plaintiffs can cure the defect in their pleadings by simply substituting Elite, Mimi’s North, and Le Duff in place of the existing Doe defendants rather than adding them as new defendants. It appears that plaintiffs were genuinely ignorant of the existence of Elite, Mimi’s North, and Le Duff and their ownership of Mimi’s Café until after the original complaint was filed. Plaintiffs have also stated facts that support their claims against Elite, Mimi’s North, and Le Duff based on their alleged ownership of Mimi’s Cafe, their alleged employment of plaintiff, or their liability as successors to SWH Mimi’s Café. It appears that plaintiffs’ failure to substitute the new defendants in place of the Does was a simple oversight, and it would be unduly harsh to deny leave to amend add them under the procedure set forth in section 474. Indeed, some courts have found that it is an abuse of discretion to deny leave to amend under similar circumstances. (Streicher v. Tommy’s Electric Co., supra, 164 Cal.App.3d at pp. 884-885.) Therefore, the court intends to grant leave to amend the complaint to add Elite, Mimi’s North, and Le Duff in place of the existing Doe defendants. This will allow the claims against the newly added defendants to relate back to the filing of the original complaint, which will prevent the statute of limitations from barring plaintiffs’ claims. Defendants also demur to the first through fourth cause of action under FEHA on the ground that plaintiffs failed to name them in their administrative complaint to the DFEH (now the California Civil Rights Department or CRD). Thus, defendants contend that plaintiffs’ FEHA claims are barred as they failed to exhaust their administrative remedies as to them before filing their complaint. “Under California law ‘an employee must exhaust the ... administrative remedy’ provided by the Fair Employment and Housing Act, by filing an administrative complaint with the California Department of Fair Employment and Housing (DFEH) (Gov. Code, § 12960; cf. id., §§ 12901, 12925, subd. (b)) and obtaining the DFEH's notice of right to sue (id., § 12965, subd. (b)), ‘before bringing suit on a cause of action under the act or seeking the relief provided therein ....’ … We have recognized, in the context of the Fair Employment and Housing Act, that ‘[t]he failure to exhaust an administrative remedy is a jurisdictional, not a procedural, defect,’ and thus that failure to exhaust administrative remedies is a ground for a defense summary judgment.” (Martin v. Lockheed Missiles & Space Co. (1994) 29 Cal.App.4th 1718, 1724, some citations omitted.) The employee must file their administrative complaint alleging sexual discrimination within three years of the date of the occurrence of the unlawful practice. (Gov. Code, § 12960, subd. (e)(3).) However, the time to file an administrative complaint is extended “[f]or a period of time not to exceed one year following a rebutted presumption of the identity of the person's employer under Section 12928, in order to allow a person allegedly aggrieved by an unlawful practice to make a substitute identification of the actual employer.” (Gov. Code, § 12960, subd. (e)(6)(B).) Also, “[t]he department may amend an open complaint of discrimination to: (3) cure technical defects or omissions, including correcting a case number, address, or name of a party; (4) add new bases, respondents, or complainants after the expiration of the one-year statute of limitations where the amendment either relates back to the same material facts set forth in the original complaint, or the original complaint contains language that specifically references or identifies the bases, respondents, or complainants to be added.” (Cal. Code Regs., tit. 2, § 10022(a)(3)(4), paragraph breaks omitted, italics added.) “[W]here a plaintiff fails to name a defendant in either the body or caption of a DFEH complaint, the plaintiff has failed to exhaust his administrative remedy against that defendant.” (Clark v. Superior Court (2021) 62 Cal.App.5th 289, 302, citations omitted.) “To allow a complainant to sue individuals in a state court action on a FEHA cause of action without having brought them within the scope of the comprehensive administrative process by naming them as perpetrators of discrimination at the outset would undermine the purposes of the fair employment statute. The Legislature certainly did not intend that the administrative process should be circumvented by allowing a civil lawsuit under the FEHA against individuals who allegedly discriminated but who were not mentioned in the administrative charge.” (Cole v. Antelope Valley Union High School Dist. (1996) 47 Cal.App.4th 1505, 1514.) “Similarly, in Alexander, the court found no basis ‘to carve an equitable exception out of mandatory statutory language where an unnamed defendant receives actual notice of a FEHA complaint,’ because the purposes of the exhaustion doctrine would not be served by the creation of such an exception.” (Clark v. Superior Court, supra, 62 Cal.App.5th at p. 303, quoting Alexander v. Community Hospital of Long Beach (2020) 46 Cal.App.5th 238, 251.) On the other hand, if the body of the complaint contains sufficient information to provide a basis for an investigation into the employee’s claim of discrimination against an employer, even if the defendant is not named in the caption of the complaint, courts have found that the plaintiff exhausted administrative remedies against that defendant. (Clark, supra, at p. 304, citing Martin v. Fisher (1992) 11 Cal.App.4th 118, 122.) For example, in Saavedra v. Orange County Consolidated Transportation etc. Agency (1992) 11 Cal.App.4th 824, the Court of Appeal found that plaintiff had exhausted her administrative remedies against her former supervisor even though she had not named him specifically in the administrative complaint, and only described him as “the individual who demoted [her] for nonperformance.” (Id. at p. 827.) “Winterbottom was the only individual identified in the administrative complaint. He was the only person with whom Saavedra dealt. His actions were those of CTSA. He was put on notice and had an opportunity to pursue a ‘voluntary settlement had he so desired.’” (Saavedra, supra, 11 Cal.App.4th at p. 827.) Likewise, in Clark v. Superior Court, supra, the Court of Appeal held that the plaintiff had exhausted her administrative remedies as to the defendant employer, ALSC, even though she did not use ALSC’s legal name in the DFEH complaint. (Id. at pp. 305-306.) “The caption of Clark's DFEH Complaint named ‘Oasis Surgery Center LLC,’ and ‘Oasis Surgery Center, LP’ as respondents —names that are very similar to ALSC's actual fictitious business name, ‘Oasis Surgery Center.’ Further, no reasonable person could think that Clark intended to identify an entity other that ALSC as a respondent, since the body of Clark's DFEH Complaint named her managers, supervisors, coworkers, job title, and period of employment at ALSC. Thus, any administrative investigation into Clark's DFEH Complaint would have certainly identified ALSC as an intended respondent, particularly since DFEH is mandated to ‘liberally construe all complaints to effectuate the purpose of the laws the department enforces ....’” (Ibid, citations omitted.) “Moreover, because any administrative investigation into Clark's DFEH Complaint would have revealed ALSC as an intended respondent, Clark's DFEH Complaint also fully served the purpose of the FEHA administrative exhaustion doctrine, i.e., to give the administrative agency an opportunity to investigate and conciliate the claim.” (Clark v. Superior Court (2021) 62 Cal.App.5th 289, 305–306, citations omitted.) The Clark court also extended the holding of Saavedra to hold that the plaintiff may exhaust administrative remedies against a partnership or corporate defendant not identified by name in the administrative complaint, as long as they are capable of being identified through an investigation based on the allegations in the body of the complaint. (Id. at p. 307.) “The reasoning in Saavedra would seem to apply with equal force where the employer is a partnership or a corporate entity, rather than an individual; as long as the DFEH complaint identifies the complainant's employer as having discriminated against complainant, we see no basis for precluding the complainant from bringing a lawsuit against that employer even if the employer is not referred to by its proper legal name in the DFEH complaint. This is particularly true since there is no textual basis for treating persons and employers differently for purposes of FEHA's exhaustion requirement.” (Ibid., italics in original.) Clark also noted that federal cases have found that the exhaustion requirement was met despite failure to name the defendant by its correct name in the administrative complaint, as long as an investigation would have revealed the defendant’s involvement. (Id. at p. 308.) In addition, the Clark court noted that California law allows the substitution of the defendant by its proper name where the original complaint misnamed the defendant and thus avoid the running of the statute of limitations. (Id. at p. 308-309.) “Similarly, in this case, while Clark misnamed her employer in her DFEH Complaint, using a variant of its fictitious business name rather than the employer's legal name, in both the administrative proceeding and in this lawsuit, Clark was charging a single entity, her former employer, with alleged discrimination. Clark's error in misnaming ALSC in her DFEH Complaint should not result in the dismissal of her lawsuit, just as such an error would not have resulted in the dismissal of her case if she had made the same error in drafting her complaint in this action.” (Id. at p. 309.) Here, plaintiff Tiffany Higgins filed an administrative complaint with the DFEH on August 10, 2020, which named SWH Mimi’s Café as her employer. (Brockley decl., Exhibit B.) The complaint did not name Elite, Mimi’s North, or Le Duff as her employer, or as persons liable for the discrimination and harassment committed against her. (Ibid.) However, on February 23, 2024, plaintiffs filed an amended complaint with the CRD which named Elite, Mimi’s North, and Le Duff as her employers. (Exhibit 7 to Lubin decl.) She also filed her first and second amended complaints in Superior Court naming Elite, Mimi’s North, and Le Duff as defendants. It appears that, under the reasoning of Clark and Saavedra, plaintiffs’ initial complaint to the DFEH was sufficient to exhaust her administrative remedies. Plaintiffs’ complaint named SWH Mimi’s as her employer, and it contained enough facts to show that she was asserting claims against her employer for sexual harassment, discrimination, retaliation and failure to prevent harassment and discrimination against her employer. It was only years later that plaintiff learned that Le Duff, Elite, and Mimi’s North were also her employers, or successors to SWH Mimi’s. She then added Le Duff, Elite, and Mimi’s North to her CRD complaint and her civil action. While plaintiff did not name Elite, Mimi’s North or Le Duff in her original DFEH complaint, she made it clear in her complaint that she was alleging claims for sexual harassment, discrimination, and retaliation against her employer. An investigation into plaintiffs’ allegations would presumably have revealed the involvement of Le Duff, Elite, and Mimi’s North as owners, employers or successors in interest to plaintiff’s employers. Just as plaintiff can amend her complaint to substitute in the correctly named defendants in place of Doe defendants, she can amend her CRD complaint to add the correct names of her employers and other persons or entities that are liable for the alleged harassment, discrimination, and retaliation. (Clark, supra, at pp. 305-309.) Therefore, the fact that plaintiff did not name Elite, Mimi’s North, or Le Duff as employers in the initial complaint to the DFEH does not bar plaintiffs from bringing their civil action against the defendants here. As a result, the court will not sustain the demurrers for failure to exhaust administrative remedies. While the court does intend to sustain the demurrers for failure to state a cause of action because the new defendants were not properly substituted into the case in place of the Doe defendants, that defect can be cured by amendment, as discussed above. Therefore, the court intends to sustain the demurrers of Elite, Mimi’s North, and Le Duff, with leave to amend. Le Duff’s Motion for Fees and Costs: Finally, the court intends to deny Le Duff’s request for its attorney’s fees and costs. Le Duff’s request for fees and costs is premature, as it has not been dismissed from the case or otherwise established that it is the “prevailing party” for the purpose of fees and costs. Le Duff also has not cited to any statute or contractual language that would support its request for fees here. Therefore, Le Duff has not shown that it is entitled to an award of fees and costs at this time. 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 7/22/24 . (Judge’s initials) (Date)

Re: Samrech v. Saint Agnes Medical Center et al. Superior Court Case No. 23CECG01594 Hearing Date: July 25, 2024 (Dept. 403) Motion: by Defendant Saint Agnes Medical Center for Summary Judgment If oral argument is timely requested, it will be entertained on Thursday, August 1, 2024, at 3:30 p.m. in Department 403. Tentative Ruling: To grant. Defendant Saint Agnes Medical Center is directed to submit to this court, within five days of service of the minute order, a proposed judgment consistent with the court’s order. Explanation: Defendant Saint Agnes Medical Center (“Defendant”) moves for summary judgment based on the declarations of medical experts, Robert Cole, M.D.; Laura Garminde, BSN, RN; and John Evank, M.D., who opined that Defendant’s care and treatment of plaintiff Samuel Samrech (“Plaintiff”) did not fall below the standard of care. The Complaint alleges as to Defendant one cause of action for medical malpractice, based on care provided on April 8, 2022 regarding a surgical procedure of a left inguinal incarcerated hernia repair, resulting in injuries and removal of the left testicle.1 A trial court shall grant summary judgment where there are no triable issues of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc. §437c(c); Schacter v. Citigroup (2009) 47 Cal.4th 610, 618.) The issue to be determined by the trial court in consideration of a motion for summary judgment is whether or not any facts have been presented which give rise to a triable issue, and not to pass upon or determine the true facts in the case. (Petersen v. City of Vallejo (1968) 259 Cal.App.2d 757, 775.) The moving party bears the initial burden of production to make a prima facie showing of the nonexistence of any triable issue of material fact; if he or she carries this burden, the burden shifts to plaintiff to make a prima facie showing of the existence of a triable issue. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849.) “The standard of care in a medical malpractice case requires that physicians exercise in diagnosis and treatment that reasonable degree of skill, knowledge and care ordinarily possessed and exercised by members of the medical profession under similar circumstances. ‘“The standard of care against which the acts of a physician are to be 1 Defendant’s Request for Judicial Notice is granted. measured is a matter peculiarly within the knowledge of experts; it presents the basic issue in a malpractice action and can only be proved by their testimony, unless the conduct required by the particular circumstances is within the common knowledge of the layman.”’” (Munro v. Regents of Univ. of Cal. (1989) 215 Cal.App.3d 977, 983–984, internal citations omitted.) Normally, the question of whether a medical professional’s care and treatment of a patient fell within the standard of care or caused the plaintiff’s injuries is a matter that can only be established through expert testimony. (Landeros v. Flood (1976) 17 Cal.3d 399, 410.) Expert evidence is the standard for summary judgment in medical malpractice cases. (Willard v. Hagemeister (1981) 121 Cal.App.3d 406, 412.) When a defendant moves for summary judgment and supports his motion with expert declarations that his conduct fell within the community standard of care, he is entitled to summary judgment unless the plaintiff comes forward with conflicting expert evidence. (Ibid.) Affidavits of the moving party must be strictly construed and those of the opponent liberally construed. (Petersen, supra, 259 Cal.App.2d at p. 775.) The facts in the affidavits shall be set forth with particularity. (Ibid.) The movant's affidavit must state all of the requisite evidentiary facts and not merely the ultimate facts or conclusions of law or conclusions of fact. (Ibid.) All doubts as to the propriety of granting the motion are to be resolved in favor of the party opposing the motion. (Hamburg v. Wal-Mart Stores, Inc. (2004) 116 Cal.App.4th 497, 502.) Here, Defendant submits, among others, the declaration of Robert Cole, M.D. (Defendant’s Statement of Evidence [“SOE”], Ex. 3.) Dr. Cole is a board-certified physician in Surgery since 1988. (Id., Ex. 3, ¶ 2.) He has significant experience in the diagnosis, clinical treatment, surgical repair, and post-operative care of hernia patients such as Plaintiff, having treated thousands of patients with similar conditions. (Id., Ex. 3, ¶ 5.) He is aware of the standard of care of medical health providers, including nursing, staff, and other hospital personnel. (Id., Ex. 3, ¶ 7.) He is aware of a legal cause of injury. (Id., Ex. 3, ¶ 8.) Following his review of the medical records, Dr. Cole opined that the nursing staff met the standard of care in treating Plaintiff. (Defendant’s SOE, Ex. 3, ¶ 12.) Namely, the nursing staff followed physician instruction and otherwise had no role in the surgical procedure. (Id., Ex. 3, ¶ 14(a).) After the hernia repair surgery, the nursing staff appropriately: documented the care provided to Plaintiff; did not place any undue pressure on the scrotum area; communicated with physicians and followed all orders; and provided standard and appropriate discharge instructions for a left inguinal hernia repair. (Id., Ex. 3, ¶ 14(b).) Dr. Cole opined that signs of testicular torsion would not be apparent at discharge, and usually takes 12 to 24 hours to manifest. (Id., Ex. 3, ¶ 14(c).) Upon return to Defendant’s Emergency Department, the nursing staff and personnel expediently worked up Plaintiff’s care. (Id., Ex. 3, ¶ 14(d).) Dr. Cole further opined that nothing Defendant’s nursing staff or personnel did or failed to do caused Plaintiff’s injury of a left testicle removal. (Id., Ex. 3, ¶ 16.) Defendant further submits the declaration of Laura Gaminde, BSN, RN, who has over 43 years of nursing experience, the majority of which is in perioperative and surgical services. (Defendant’s SOE, Ex. 4, ¶¶ 1, 3.) She has experience in the management and care of patients and conditions such as those of Plaintiff. (Id., Ex. 4, ¶ 4.) She concludes after review of the medical records that the nursing staff of Defendant appropriately performed Plaintiff’s preoperative assessment; reviewed Plaintiff’s history; took vitals; asked all of the appropriate questions; and completed a review of Plaintiff, as documented in the charts. (Id., Ex. 4, ¶ 10(a).) The nursing staff also followed physician’s instructions, attended to their duties, and documented the same. (Id., Ex. 4, ¶ 10(c).) Post- operative care was also appropriate. (Id., Ex. 4, ¶ 10(d).) Emergency Department care was also diligent. (Id., Ex. 4, ¶ 10(e).) Under the circumstances, Defendant has met its burden of showing that Plaintiff cannot prevail on his claim against Defendant for medical malpractice, on the issue of a breach of duty and standard of care. The burden shifts to Plaintiff to come forward with conflicting expert evidence. No opposition was filed. The court finds that there are no remaining triable issues of material fact as to the only cause of action against Defendant, for medical malpractice. Accordingly, the motion for summary judgment is granted in favor of defendant Saint Agnes Medical Center and against plaintiff Samuel Samrech.2 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: JS on 7/24/2024 . (Judge’s initials) (Date) 2 Defendant further submits that informed consent was obtained. This appears to be in response to one of the seven sentences that comprise Plaintiff’s complaint, referring to a failure to provide informed consent for the surgical procedure. Dr. Cole opined that informed consent was obtained by the treating physician. (Defendant’s SOE, Ex. 3, ¶ 13.) No opposition was filed to refute the expert opinion. Nor is it apparent from the face of the Complaint that there are any allegations of agency among the defendants, including the treating physician.

Re: Cen-Cal Refrigeration, Inc. v. Maple Venture, LLC et al. Superior Court Case No. 20CECG01342 Hearing Date: July 23, 2024 (Dept. 403) Motion: By Defendant Engineered Structures, Inc. on Demurrer to Fourth Amended Complaint If oral argument is timely requested, it will be entertained on Tuesday, July 30, 2024, at 3:30 p.m. in Department 403. Tentative Ruling: To sustain as to the eighth cause of action for harassment, without leave to amend. (Code Civ. Proc. § 430.10, subd. (e).) To overrule on all other grounds. (Code Civ. Proc. § 430.10, subd. (e).) Defendant Engineered Structures, Inc. is directed to file an answer within ten days of service of the order by the clerk. Explanation: On May 4, 2020, plaintiff Cen-Cal Refrigeration, Inc. filed a Complaint against, among others defendant Engineered Structures, Inc. dba Idaho ESI, Inc. (“Defendant”). The original Complaint was subsequently amended to add plaintiffs Tua Cha, Jamal Borjquez, and Tang Vang (collectively with plaintiff Cen-Cal Refrigeration, Inc., “Plaintiffs”). Following the sustaining of demurrer to, among other causes of action of the Third Amended Complaint, the sixth cause of action for fraud, the seventh cause of action for intentional infliction of emotional distress, the eighth cause of action for harassment, and the tenth cause of action for violation of the Business and Professions Code section 17200, on June 30, 2022, Plaintiffs filed a Fourth Amended Complaint (“4AC”).1 On April 2, 2024, Defendant filed the instant demurrer. Plaintiffs oppose on a threshold inquiry of timeliness. The time to file a demurrer is within 30 days after service of the complaint. (Code Civ. Proc. § 430.40, subd. (a).) The proof of service attached to the 4AC is unsigned, but dates service to June 30, 2022. No other date establishes the date of service. In any event, on reply, Defendant submits statements from counsel for Plaintiffs’ office indicating, in effect, an open continuance to respond to the 4AC. (Chrissinger Decl. in support of Reply, ¶ 7, and Ex. 1.) 2 There was no duty Defendant owed to aid in the prosecution against it, to seek clarification or affirmation of when Plaintiffs intended to amend their pleading. Neither is there any evidence suggesting that Plaintiffs rescinded the open continuance. Accordingly, the demurrer is timely filed, and the court proceeds. 1 Plaintiffs’ Request for Judicial Notice is granted. 2 Generally, evidence on reply is inappropriate. However, the emails submitted appear to be statements transmitted from opposing counsel’s office. On a demurrer a court's function is limited to testing the legal sufficiency of the complaint. A demurrer is simply not the appropriate procedure for determining the truth of disputed facts. (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113-114.) It is error to sustain a demurrer where plaintiff “has stated a cause of action under any possible legal theory. In assessing the sufficiency of a demurrer, all material facts pleaded in the complaint and those which arise by reasonable implication are deemed true.” (Bush v. Cal. Conservation Corps (1982) 136 Cal.App.3d 194, 200.) In determining a demurrer, the court assumes the truth of the facts alleged in the complaint and the reasonable inferences that may be drawn from those facts. (Miklosy v. Regents of University of California (2008) 44 Cal.4th 876, 883.) On demurrer, the court must determine if the factual allegations of the complaint are adequate to state a cause of action under any legal theory. (Barquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94, 103.) A plaintiff is not required to plead evidentiary facts supporting the allegation of ultimate fact; the pleading is adequate if it apprises defendant of the factual basis for plaintiff's claim. (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6.) Here, Defendant challenges the sufficiency of the facts alleged as to the sixth and tenth causes of action by plaintiff Cen-Cal Refrigeration, Inc., for, respectively, fraud, and violation of the Business and Professions Code, section 17200.; and the seventh and tenth causes of action by plaintiffs Tua Cha, Jamal Borjquez and Tang Vang, for, respectively intentional infliction of emotional distress, and harassment. Fraud Defendant argues that the sixth cause of action fails to allege actionable misrepresentation, instead alleging bases for breaches of contract. The elements which give rise to a tort action for fraud are: (1) a misrepresentation (or concealment); (2) knowledge of the falsity; (3) intent to defraud or induce reliance; (4) justifiable reliance; and (5) resulting damages. (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 974.) Fraud must be pled specifically; general and conclusory allegations do not suffice. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 645.) The policy of liberal construction of pleadings will not ordinarily be invoked to sustain a pleading defective in any material respect for allegations of fraud. (Ibid.) The requirement necessitates pleading facts which show how, when, where, to whom, and by what means the representations were tendered. (Ibid.) Here, the 4AC sufficiently alleges a cause of action for fraud. The 4AC alleges that defendant Adam Bancroft (“Bancroft”) is an officer and project manager for Defendant. (4AC, ¶ 54.) Bancroft stated and made general representations in or around November and December 2018, that plaintiff Cen-Cal Refrigeration would be hired, perform work, and get paid for that work. (Id., ¶¶ 53, 56.) Defendant did so without the intent to do any of those represented actions. (Id., ¶ 57.) Contrary to those representations, Defendant intended to obtain labor and materials from plaintiff Cen-Cal Refrigeration without payment and terminate plaintiff Cen-Cal Refrigeration from the project. (Id., ¶¶ 58-59.) Accordingly, Bancroft and Defendant made those representations knowing they were false. (Id., ¶ 60.) Plaintiff Cen-Cal Refrigeration relied on the representations and rejected other work while incurring substantial debt to perform on those representations, therefore suffering damages as a consequence of that reliance. (Id., ¶¶ 61-62.) Based on the above, the 4AC states sufficient facts, with particularity, to state a claim for fraud. Defendant’s argument that the facts stated in support of the fraud cause of action mirroring the facts stated in support of the breach of contract cause of action is of no moment to the fraud cause of action. As Defendant’s authority reveals and as Plaintiffs argue in opposition, a fraud cause of action may be concurrently pled with a breach of contract as an alternative basis for relief. (E.g., Tenzen v. Superscope, Inc. (1985) 39 Cal.3d 18, 28-30.) The substantial difference, as highlighted by the California Supreme Court, is that an action on a fraudulent promise must also produce evidence of the promisor’s intent to mislead. (Id. at p. 30.) A mere promise made and unfulfilled alone does not support a claim for fraud. (Ibid.) As noted above, the 4AC alleges that Defendant intended to mislead with the representations made. While contentions, deductions, and conclusions of law are not presumed as true (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967), a plaintiff is not required to plead evidentiary facts supporting the allegation of ultimate facts; the pleading is adequate if it apprises the defendant of the factual basis for the plaintiff's claim (Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6). Here, Defendant is apprised of the statements that were made, by whom, when, and the substances thereof. Defendant is sufficiently positioned to answer as to whether it agrees to those allegations and what it intended on those allegations. The demurrer is overruled as to the sixth cause of action for fraud. Intentional Infliction of Emotional Distress Defendant demurs to the seventh cause of action for intentional infliction of emotional distress, arguing that the conduct alleged is insufficiently outrageous to constitute a cause of action. Specifically, Defendant submits that mere insults, indignities, threats, annoyances, petty oppressions, and other trivialities do not rise to the level of actionable conduct. (Hughes v. Pair (2009) 46 Cal.4th 1035, 1051.) Defendant does not challenge any of other elements of the cause of action. Previously, the court found that the allegations as to racial slurs was not specific enough to support the otherwise conclusory allegations that Defendant’s conduct was inherently outrageous, distasteful and morally questionable. The subsequent 4AC amends to provide context of the racial slurs previously alleged. (4AC, ¶¶ 70-75.) Consequently, the 4AC alleges sufficient facts to support the conclusion of law. Whether such conduct actually rises to the level of outrageous is a factual inquiry that is inappropriate on demurrer. (See Hughes v. Pair, supra, 46 Cal.4th at pp. 1050-1051 [review on summary judgment]; see also Plotnik v. Meihaus (2012) 208 Cal.App.4th 1590, 1613- 1614 [considering whether a jury could reasonably conclude that alleged acts constituted outrageous conduct intended to inflict emotional distress].) The demurrer is overruled as to the seventh cause of action for intentional infliction of emotional distress. Harassment Defendant submits that a demurrer to the eighth cause of action for harassment was previously sustained, and the 4AC contains no changes. In opposition, Plaintiffs appear to concede the challenge and do not address the eighth cause of action at all. The demurrer to the eighth cause of action for harassment is sustained, without leave to amend. Unfair Business Defendant relies on the arguments against the fraud cause of action to conclude that the tenth cause of action for violation of the Business and Professions Code section 17200 also fails to state sufficient facts to support the cause of action. Specifically, Defendant argues that the 4AC fails to allege the existence of any fraudulent statement. As above, the fraudulent statements are sufficiently identified in the fraud cause of action. (4AC, ¶¶ 53, 56.) As the demurrer to the sixth cause of action for fraud is overruled, the demurrer to the tenth cause of action is also 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: JS on 7/22/2024 . (Judge’s initials) (Date)

Re: Jacob Salcido v. PB Loader Corporation/COMPLEX Superior Court Case No. 23CECG04509 Hearing Date: July 23, 2024 (Dept. 502) Motion: Defendant PB Loader Corporation’s Motion to Stay the Representative PAGA Action Tentative Ruling: To grant defendant PB Loader Corporation’s motion to stay the representative PAGA action pending arbitration of plaintiff Jacob Salcido’s individual PAGA claim. (Code Civ. Proc., § 1281.4.) Explanation: If a court of competent jurisdiction has ordered arbitration of an issue involved in a pending action, the court, upon motion of a party to the action, shall stay the action until an arbitration is had in accordance with the order to arbitrate. (Code Civ. Proc., § 1281.4.) Specifically, “the trial court may exercise its discretion to stay the non-individual [PAGA] claims pending the outcome of the arbitration [of a plaintiff’s individual PAGA claims] pursuant to section 1281.4 of the Code of Civil Procedure.” (Adolph v. Uber Technologies, Inc. (2023) 14 Cal.5th 1104, 1123.) The opposing party would need to present a convincing argument as to why this would be an impractical manner of proceeding. (Id., at 1124.) The court has discretion to stay the action until after arbitration. As set forth in Adolph, the determination of whether the plaintiff is an aggrieved employee and the ensuing judgment on the issue is one that will affect the plaintiff’s standing to prosecute the non-individual PAGA claim. (Adolph v. Uber Technologies, Inc., supra, 14 Cal.5th, 1124.) As the court has already ordered arbitration for what could be a dispositive issue, and there has been no clear showing of prejudice that will result from staying the action, the court is inclined to order a stay of the proceedings until after arbitration of plaintiff’s individual PAGA claim. 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 07/22/24 . (Judge’s initials) (Date)

Re: CVE Contracting Group, Inc. v. Disaster Restoration International - DRI, Inc., et al. Superior Court Case No. 22CECG01744 Hearing Date: July 24, 2024 (Dept. 403) Motion: by Plaintiff for Summary Adjudication If oral argument is timely requested, it will be entertained on Wednesday, July 31, 2024, at 3:30 p.m. in Department 403. Tentative Ruling: To continue the hearing on the motion to Wednesday, August 14, 2024 at 3:30 p.m. in Department 403. Moving party must file its separate statement with proof of service by 5:00 p.m. on Wednesday, July 24, 2024. Explanation: Code of Civil Procedure section 437c, subdivision (b)(1) states in relevant part: The supporting papers shall include a separate statement setting forth plainly and concisely all material facts that the moving party contends are undisputed. Each of the material facts stated shall be followed by a reference to the supporting evidence. The failure to comply with this requirement of a separate statement may in the court's discretion constitute a sufficient ground for denying the motion. (Emphasis added.) The memorandum filed in support of the motion references multiple numbered undisputed material facts, however no separate statement was filed with the moving papers. There is also no proof of service indicating a separate statement was served on the opposing parties. As such, the court intends to continue the hearing on plaintiff’s motion for summary adjudication to allow the separate statement with proof of service to be filed, correcting what appears to be a filing error. Filing deadlines for the opposing and reply papers remain based on the original hearing date. 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: JS on 7/23/2024 . (Judge’s initials) (Date)

Re: Ka Moua v. The Permanente Medical Group, Inc. Superior Court Case No. 23CECG03246 Hearing Date: July 24, 2024 (Dept. 502) Motion: by Plaintiff Ka Youa Moua to Compel Further Responses to Request for Production of Documents Tentative Ruling: To grant as to Requests for Production, No. 16, 17, 18, 30, 31, 32, 33, 34, and 35. Defendant The Permanente Medical Group, Inc. is directed to serve verified responses to these requests and produce all relevant documents within 30 days of service of the order by the clerk. To deny as to Request for Production No. 15. Explanation: At issue are disputes arising out an employment relationship between plaintiff Ka Youa Moua (“Plaintiff”) and defendant The Permanente Medical Group, Inc. (“Defendant”). Plaintiff now seeks an order compelling Defendant to further respond to certain requests for production of documents. The parties generally agree that the requests comprise two categories: (1) Requests No. 15 through 18, regarding email files containing certain key terms; and (2) Requests No. 30 through 35, for documents pertaining informal or formal complaints involving retaliation and discrimination claims, Labor Code violation claims and Health and Safety Code violation claims filed with Defendant.1 Requests No. 15 through 18 Plaintiff submits that these requests seek relevant documents of emails housing key terms in the pending matter. Specifically, Request No. 15 seeks emails by Plaintiff that contain any one or more of approximately 38 key terms. (Yoon Decl., ¶ 2, Ex. A.) In response, Defendant answered that all documents that would have been responsive to the request no longer exists due to internal policy. (Id., ¶ 3, Ex. B.) The response was verified. (Ibid.) Plaintiff submits that in other cases, documents were produced in contra to the cited internal policy, and therefore the response is not credible. This is not a basis to compel further responses. Defendant’s response, verified under penalty of perjury, states that no documents responsive to the request exists and is therefore a complete response. Plaintiff does not suggest that Defendant intentionally destroyed evidence 1 Defendant objects to the sufficiency of the meet-and-confer efforts prior to filing the instant motion. Defendant suggests only that it was improper for Plaintiff to resubmit the exact same request for a pretrial discovery conference before and after the meet-and-confer efforts. Defendant does not suggest what material issue required amending between the filed requests. Accordingly, the court does not review the implied finding of sufficiency of the meet and confer made in its prior order, and proceeds. while the present matter was pending. There is nothing further to compel.2 The motion as to Request No. 15 is denied. Requests No. 16 through 18 seek emails of others, Juliane Adams, Rachel Pancotti, and Melanie Reno, with the same approximately 38 key term list. The requests are limited to two years prior to Plaintiff’s termination. Defendant objected on the grounds of oppression and undue burden, and relevance. Defendant answered that it cannot produce documents responsive to the requests. The objection of undue burden to an interrogatory requires an evidentiary showing of the quantum of work required. (West Pico Furniture Co. v. Superior Court (1961) 56 Cal.2d 407, 417.) The objection of oppression requires a showing of either an intent to create an unreasonable burden or that the ultimate effect of the burden is incommensurate with the result sought. (Ibid.) Burden alone is not a grounds for objection. (Ibid.) Some burden is inherent in all demands for discovery. (Id. at p. 418.) Only when the burden is demonstrated to result in injustice is the objection sustained. (Ibid.) Defendant submits that as originally sought, the search terms resulted in excess of 40,000 items across Requests No. 15 through 18. (McNamara Decl., ¶ 6.) Following meet- and-confer efforts on the issue, on February 28, 2024, counsel for Defendant referenced the gross count of results, but concedes that “[t]he ball is in my court on [these] items.” (Yoon Decl., ¶ 10, Ex. 1.) In opposition, Defendant describes its efforts to identifying responsive documents to the requests. (McNamara Decl., ¶ 16.) The efforts limited terms to within 10 words between email addresses and the search terms, which reduced the items down to 5,232. (Ibid.) Following, review continues of the items in question, which counsel for Defendant estimates to be half complete. (Id., ¶ 19.) From the above, Defendant does not contest that Plaintiff is entitled to a further response. Accordingly, the motion as to Requests No. 16 through 18 is granted. Defendant is directed to provide further responses and produce all documents responsive to the requests. Requests No. 30 through 35 These requests pertain to “Me Too” discovery, and seeks all complaints in the past three years pertaining to retaliation, discrimination, and other statutory violations. Defendant objected on the grounds of oppression and undue burden, and relevance. However, in opposition, Defendant does not contest Plaintiff’s right to seek these documents. Rather, Defendant agrees to produce documents relevant to the requests within the agreed-upon 3-year limitation, and limited to the working facility where Plaintiff was employed. Plaintiff on reply confirms that while she agreed to the time limitation, she did not agree to limit the inquiry to Plaintiff’s working facility. 2 On reply, Plaintiff relies on the depositions of Julie Adams and Esther Lock, submitted improvidently as evidence on reply. Neither deposition transcript lays any foundation as to who these individuals are. Nor do the transcripts cited support a conclusion that there is no policy to destroy former employee’s emails. That Julie Adams was unaware of such a policy, or that Esther Lock has participated in litigation that involved Defendant’s legal department does not address the existence of the policy in question. The requests in question share the same general language of “at the same location where Plaintiff worked.” Defendant submits that it will produce all document by any employee of the laboratory at the Fresno Medical Center. This is responsive to the request. Accordingly, the court finds that Defendant has agreed to provide further responses and documents responsive to Requests No. 30 through 35. The objections as to oppression and undue burden are in any event overruled due to Defendant’s failure to demonstrate how or why the requests are unduly burdensome. Plaintiff protests Defendant’s location limitation, arguing that administration is located outside of the laboratory at the Fresno Medical Center. Plaintiff contends that administration is necessarily involved with any lodged complaints. In effect, Plaintiff appears to seek any complaint lodged by anyone employed by Defendant in any department. It is unclear why those claims outside of Plaintiff’s department are relevant to her claims, which places her manager’s actions at issue. While the reply brief suggests a United States Supreme Court opinion in support of why she is entitled to broadly all complaints across all non-decision makers at other facilities, there is no citation provided. Plaintiff otherwise relies on a federal opinion out of the Sixth Circuit Court of Appeals that appears to have had federal Title VII issues as well as the Ohio Civil Rights Act, neither of which are relevant to the present matter. (Griffin v. Finkbeiner (6th Cir. 2012) 689 F.3d 584, 590.) Moreover, the analysis was of the Federal Rules of Civil Procedure and Evidence. (Id. at p. 592.) It is unclear how or why these cited authorities stand for the proposition that Plaintiff is entitled to every complaint lodged by any individual across every department of the entire company. Neither do the cases cited in the moving papers suggest why the requests should be broadly construed as Plaintiff seeks. In every case cited by Plaintiff, the issue was the conduct of a specific supervisor. (E.g., Johnson v. United Cerebral Palsy/Spastic Children’s Foundation (2009) 173 Cal.App.4th 740, 759-760 [noting that the evidence comprised employees who worked at the same facility where the plaintiff worked, and were supervised by the same people who supervised the plaintiff, who were subject to termination allegedly related to pregnancy].) If Plaintiff seeks documents of written complaints by the same employer, at the same facility, but with different supervisors, those complaints will be captured by Defendant’s proffered response. As propounded, the requests will additionally capture all documents evidencing those complaints, including what appears to be Plaintiff’s objective, the investigation of those complaints by administration.3 Plaintiff however does not demonstrate that the relevance of every complaint lodged by any individual across every department of the entire company. 3 The right to discovery is broad. Any party may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter involved in the pending action if the matter itself is admissible in evidence or appears reasonably calculated to lead to the discovery of admissible evidence. (Code Civ. Proc. § 2017.010.) “For discovery purposes, information is relevant if it ‘might reasonably assist a party in evaluating the case, preparing for trial, or facilitating settlement.’ Admissibility is not the test and information, unless privileged, is discoverable if it might reasonably lead to admissible evidence. The phrase ‘reasonably calculated to lead to the discovery of admissible evidence’ makes it clear that the scope of discovery extends to any information that reasonably might lead to other evidence that would be admissible at trial. ‘Thus, the scope of permissible discovery is one of reason, logic and common sense.’ These rules are applied liberally in favor of discovery.” (Lipton v. Superior Court (1996) 48 Cal.App.4th 1599, 1611–1612, internal citations and italics omitted.) (See Johnson v. United Cerebral Palsy/Spastic Children’s Foundation, supra, 173 Cal.App.4th at pp. 766-767 [concluding that evidence of nonparties alleging discrimination at the hands of people not involved in the adverse employment decisions against the plaintiff is neither per se admissible nor relevant].) Based on the above, the motion as to Requests No. 30 through 35 is granted. Defendant is directed to provide further responses and produce all documents responsive to the requests as to all documents evidencing written complaints filed against Defendant in the past three years in laboratory where Plaintiff worked in the Fresno Medical Center. 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 07/23/24 . (Judge’s initials) (Date)

Re: Kirsten Krejcik v. City of Fresno Superior Court Case No. 23CECG03634 Hearing Date: July 24, 2024 (Dept. 403) Motion: 1) Defendant J. Francisco Alvarez’s Demurrer to the Second Complaint; 2) Defendant J. Francisco Alvarez’s Motion to Strike as to the Second Amended Complaint; and 3) Defendant City of Fresno’s Demurrer to the Second Complaint If oral argument is timely requested, it will be entertained on Wednesday, July 31, 2024, at 3:30 p.m. in Department 403. Tentative Ruling: To sustain defendant City of Fresno’s demurrer to the second and third causes of action in the Second Amended Complaint, with leave to amend. To sustain defendant J. Francisco Alvarez’s demurrer to the fifth cause of action, with leave to amend. To sustain defendant Alvarez’s demurrer to the sixth cause of action, without leave to amend. To grant defendant J. Francisco Alvarez’s motion to strike as to the fourth cause of action as alleged against him. To strike the eighth and ninth causes of action entirely. Plaintiff is granted 10 days’ leave to file the Third Amended Complaint, which will run from service by the clerk of the minute order. New allegations/language must be set in boldface type. Explanation: MOTION TO STRIKE Code of Civil Procedure section 436 subdivision (b) provides the court with discretion to strike a pleading which is not filed in conformity with the laws of this state, a court rule, or a court order. Here, the court previously ruled on March 7, 2024, that the fourth cause of action could not be alleged against defendant Alvarez. (See Minute Order, March 7, 2024.) As such, the court strikes the fourth cause of action as to defendant Alvarez in the Second Amended Complaint (“SAC”). Plaintiff did not properly seek leave of the court to add causes of action to the amended complaint. (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.) As such, the court strikes the eighth and ninth causes of action in their entirety. DEMURRER The function of a demurrer is to test the sufficiency of a plaintiff’s pleading by raising questions of law. (Plumlee v. Poag (1984) 150 Cal.App.3d 541, 545.) The test is whether plaintiff has succeeded in stating a cause of action; the court does not concern itself with the issue of plaintiff’s possible difficulty or inability in proving the allegations of his complaint. (Highlanders, Inc. v. Olsan (1978) 77 Cal.App.3d 690, 697.) In assessing the sufficiency of the complaint against the demurrer, we treat the demurrer as admitting all material facts properly pleaded, bearing in mind the appellate courts’ well established policy of liberality in reviewing a demurrer sustained without leave to amend, liberally construing the allegations with a view to attaining substantial justice among the parties. (Glaire v. LaLanne-Paris Health Spa, Inc. (1974) 12 Cal.3d 915, 918.) Alvarez Defendant Alvarez demurs as to the fourth, fifth, sixth, eighth, and ninth causes of action. The court has already found that the fourth, eighth, and ninth causes of action are subject to striking. As such, the court will only address the demurrer as to the fifth and sixth causes of action. Nuisance A ''nuisance'' includes anything that is injurious to health (including, but not limited to, the illegal sale of controlled substances), or is indecent or offensive to the senses, or an obstruction of the free use of property, so as to interfere with the comfortable enjoyment of life or property. (Civ. Code, §3479.) In the SAC, the acts alleged against defendant Alvarez consist of 1) failing to properly list a property for sale (SAC, ¶ 10), 2) being a friend and associate of the City’s Code Enforcement Director (SAC, ¶ 11), and 3) being in a vehicle near plaintiff’s property while plaintiff’s property was inspected (SAC, ¶ 16). Plaintiff alleges that defendants’ acts constitute a private nuisance because they caused a substantial and unreasonable interference with the quiet enjoyment of her property. (SAC, ¶ 59.) As with the First Amended Complaint, it remains unclear what conduct Alvarez engaged in to cause a private nuisance. As such, the court sustains the demurrer to the fifth cause of action, with leave to amend. Trespass Trespass is the unlawful interference with possession of property. (Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 261.) To demonstrate a trespass, a plaintiff must show 1) plaintiff’s ownership or control of property, 2) defendant’s intentional, reckless, or negligent entry onto the property, 3) lack of permission or acts in excess of permission, 4) harm, and 5) the defendant’s conduct was a substantial fact in causing the harm. (Id. at p. 262.) Here, plaintiff has not alleged that defendant Alvarez entered her property, only that the City’s Director of Code Enforcement entered her property. (SAC, ¶ 66.) Government Code section 820.2 provides that public employees are not liable for injuries where their actions are the result of exercising discretion, regardless of whether their discretion was abused. (Gov. Code, § 820.2; Odello Bros. v. County of Monterey (1998) 63 Cal.App.4th 778, 792.) The court in Odello found that trespass was a tort claim, making Government Code section 820.2 potentially applicable, if the acts were discretionary. (Odello Bros. v. County of Monterey, supra, 63 Cal.App.4th at p. 793.) Here, plaintiff has not provided any information suggesting that code enforcement is not discretionary. Additionally, plaintiff has not alleged trespass against the City, suggesting that plaintiff agrees that this could not be alleged against the City. While it is true that a trespass claim can be made for causing another to trespass property, here, where the allegations are that a public employee entered the property to engage in code enforcement, the claim for trespass is insufficiently alleged. (Martin Marietta Corp. v. Insurance Co. of North America (1995) 40 Cal.App.4th 1113, 1132.) As such, the court sustains the demurrer to the sixth cause of action, without leave to amend as it does not appear that an amendment would cure the defective pleading. City of Fresno Defendant City demurs to the second and third causes of action. Breach of Mandatory Duty For the second cause of action, the City asserts that this is barred by plaintiff’s failure to file a government claim pursuant to the Government Claims Act. Government Code section 900 et seq. provides the procedure for filing a lawsuit against a public entity. Prior to filing such, a plaintiff must first timely file a claim with the public entity. (Gov. Code, § 911.2) Failure to file a claim bars plaintiff from bringing a lawsuit against that entity. (Gov. Code, § 945.4.) The City argues that the second cause of action here is subject to the Government Claims Act and that plaintiff has failed to allege compliance with the Act. For the second cause of action alleging breach of mandatory duty, pursuant to Government Code section 815.6, compliance with the Government Claims Act is required. (Guzman v. County of Monterey (2009) 46 Cal.4th 887, 897.) Here, the SAC now alleges a claim was filed on March 18, 2024. (SAC, ¶ 36.) This is the same day the SAC was filed. As such, plaintiff has not alleged timely filing of a claim. Plaintiff’s failure to allege compliance with the claims presentation requirement does act as a bar to this cause of action. Thus, the court sustains the City’s demurrer as to this cause of action, with leave to amend as to any further details regarding compliance. Additionally, plaintiff has not stated facts sufficient to show this cause of action. Breach of a mandatory duty, pursuant to Government Code section 815.6, must be based on an enactment creating an obligatory duty, not a discretionary or permissive duty. (Thompson v. County of Los Angeles (2022) 85 Cal.App.5th 376, 380.) Three elements are required to establish breach of a mandatory duty: 1) a mandatory duty imposed on the public entity by an enactment, 2) the enactment was designed to protect against the particular kind of injury suffered, and 3) the injury was proximately caused by the entity’s failure to discharge its mandatory duty. (All Angels Preschool/Daycare v. County of Merced (2011) 197 Cal.App.4th 394, 400.) Here, plaintiff alleges “several mandatory ministerial duties requiring sufficient due process prior to assessment of code enforcement fines.” (SAC, ¶ 45.) However, plaintiff still only cites Fresno Municipal Code section 15-104(A)(2), a code regulating land use. This particular portion of the municipal code does not indicate any duties requiring due process for enforcement fines. As such, plaintiff has not shown the first element. The court sustains the demurrer as to the second cause of action, with leave to amend. Government Policy Violating Constitutional Rights For plaintiff’s claim of a government policy violating constitutional rights pursuant to 42 U.S.C. section 1983, plaintiffs must allege 1) that plaintiff was deprived of a constitutional right, 2) the government entity had a policy, 3) the policy amounted to deliberate indifference to plaintiff’s constitutional right, and 4) the policy was the moving force behind the constitutional violation. (Perry v. County of Fresno (2013) 215 Cal.App.4th 94, 105-106.) Here, plaintiff has alleged that she was informed by contractors that the City and the Code Enforcement Director Mark Medina are “shady”. (SAC, ¶ 22.) It is unclear how being shady amounts to a policy. Additionally, the complaint still makes reference to juvenile court proceedings, which are not at issue here. (SAC, ¶ 52.) The court sustains the demurrer to the third cause of action, with 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: JS on 7/23/2024 . (Judge’s initials) (Date)

Re: Wells Fargo Bank, N.A., v. Jones Superior Court Case No. 21CECG02532 Hearing Date: July 25, 2024 (Dept. 503) Motion: by Plaintiff to Vacate Judgment Tentative Ruling: To grant. The judgment entered against Ken L. Jones on December 04, 2023 is vacated and the complaint is dismissed without prejudice. Explanation: “The law is well settled that ‘(i)f the plaintiff or defendant was dead before the action was begun, the judgment is void and subject to collateral attack, because he Never was a party, i.e., the court never acquired jurisdiction of the person.” (Walter v. National Indem. Co. (1970) 3 Cal.App.3d 630, 634, citations omitted.) “The cases enunciating this rule were concerned with judgments, in which there was a living party of whom the court could have acquired jurisdiction, but of whom it only acquired apparent but not actual jurisdiction because of lack of service of process or unauthorized appearance of an attorney. Because of the death … there was no defendant over whom the court could acquire or exercise jurisdiction.” (Garrison v. Blanchard (1932) 127 Cal.App. 616, 621.) Since defendant passed away on October 23, 2020, which was before this action’s commencement, there was no defendant over whom the court could acquire or exercise jurisdiction. Accordingly, the plaintiff’s motion to vacate the judgment entered against defendant on December 4, 2023, is granted. 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 7/23/24 . (Judge’s initials) (Date)