Petitioner's Petition of Writ of Administrative Mandate
patient requires an individual assessment, e.g., to determine whether a contract was formed, whether class members performed, whether there was a breach, and whether patients actually paid anything.
Plaintiff replies that Defendant's own practice was to treat each emergency patient as if they signed the COA even when the patient could not sign due to incapacity, gave verbal consent, or had another sign on the patent's behalf. Plaintiff argues that there is limited to no relevance of any purported patent estimate that is separate and apart from the COA. Plaintiff also replies that whether the ER Visitation Fee is for services rendered or is for overhead has nothing to do with the individual services the patient received. The common question is whether any ER Visitation Fee should be charged, not which one was charged.
As above, Defendant's arguments appear to be either beside the point or germane to identifying class members, not whether the class members have predominant common questions of law or fact. Defendant's arguments regarding affirmative defenses, the adequacy of Plaintiff as a class representative, and Plaintiff's trial plan fail for the same reason. The common question is whether Defendant breached the COA, and the class is defined to include only patients who were charged and paid all or some of the ER Visitation Fee. The Court will hold a hearing on the motion for class certification.
b) On April 20, 2026, Defendant Doctors Medical Center of Modesto, Inc., dba Emanual Medical Center submitted a Motion to Seal Records Filed in Connection with Plaintiff's Motion for Class Certification pursuant to rules 2.550 and 2.551 of the California Rules of Court. Defendant seeks an order to seal select records and information in Plaintiff's class certification memorandum and the Declaration of Gretchen Carpenter because they contain information or references to information that Defendant has designated Highly Confidential and/or Confidential according to the September 30, 2025 Amended Stipulation and Protective Order, namely, information relating to sensitive patient details and/or proprietary business information.
On June 5, 2026, Plaintiff submitted a notice of non-opposition. Accordingly, pursuant to California Rules of Court, rule 2.550, the unopposed motion to seal is GRANTED. The Court intends to sign the proposed order Defendant submitted on April 20, 2026.
c) On May 15, 2026, Defendant Doctors Medical Center of Modesto, Inc., dba Emanual Medical Center submitted a Motion to Seal Records Filed in Connection with Its Opposition to Plaintiff's Motion for Class Certification pursuant to Rules 2.550 and 2.551 of the California Rules of Court. Defendant seeks an order to seal select records and information in Defendant's (1) Opposition to Plaintiff's Motion for Class Certification, (2) Declaration of Jeffrey B. Margulies In Support of EMC's Opposition, (3) Declaration of Kristen Ramirez In Support of EMC's Opposition, and (4) Declaration of Jason-Alec Soto In Support of EMC's Opposition, because they contain information or references to information that Defendant has designated Highly Confidential and/or Confidential according to the September 30, 2025 Amended Stipulation and Protective Order, namely, information relating to sensitive patient details and/or proprietary business information.
Looking for case law or statutes not cited here? Search published authorities
Examples: “Why did the court rule this way?” · “What were the procedural grounds?” · “Is appearance required?”
On June 5, 2026, Plaintiff submitted a notice of non-opposition. Accordingly, pursuant to California Rules of Court, rule 2.550, the unopposed motion to seal is GRANTED. Moving party to submit a proposed order within 5 court days of this ruling.
CV-25-010287 - MCDONALD, VENUS vs CITY OF MODESTO CITY COUNCIL - Petitioner's Petition of Writ of Administrative Mandate - HEARING REQUIRED. The Court will hold a hearing on the issue of standing.
Background
Petitioners Venus McDonald and Modesto Smoke Shop submitted the instant petition for writ of administrative mandate pursuant to Code of Civil Procedure section 1094.5 on October 23, 2025. On November 5, 2025, Petitioners submitted a notice of motion. On December 9, 2025, Petitioners submitted an opening brief. On January 14, 2026, Respondent City of Modesto ("City") submitted an opposition brief. On January 23, 2026, Petitioners submitted a reply brief. On March 2, 2026, Petitioners submitted an additional pleading stating that Modesto Police Department has denied Modesto Smoke Shop's application for a permit.
Writ of Administrative Mandate
"Where the writ is issued for the purpose of inquiring into the validity of any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal, corporation, board, or officer, the case shall be heard by the court sitting without a jury." (Code Civ. Proc., Sec. 1094.5(a).)
"The inquiry in such a case shall extend to the questions whether the respondent has proceeded without, or in excess of, jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion." (Code Civ. Proc., Sec. 1094.5(b).)
"Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence." (Ibid.)
"If the administrative decision involved or substantially affected a 'fundamental vested right,' the superior court exercises its independent judgment upon the evidence disclosed in a limited trial de novo in which the court must examine the administrative record for errors of law and exercise its independent judgment upon the evidence. [Citations.]" (JKH Enterprises, Inc. v. Department of Industrial Relations (2006) 142 Cal.App.4th 1046, 1057.)
"Where no fundamental vested right is involved, the superior court's review is limited to examining the administrative record to determine whether the adjudicatory decision and its findings are supported by substantial evidence in light of the whole record." (Ibid.)
Petition
The gravamen of the petition is that Modesto Smoke Shop was improperly issued a citation for carrying flavored tobacco products when, on or about June 14, 2025, Modesto Police Department officers conducted a compliance check at Modesto Smoke Shop, seized Zig-Zag Orange rolling papers and hemp-derived CBD gummies, and issued a citation to Modesto Smoke Shop. According to Petitioners, the Zig-Zag Orange rolling papers are orange in color but not in flavor; and the CBD gummies contain no THC.
The petition seeks judicial review of the City's final administrative decision dated September 17, 2025, which upheld a June 14, 2025 citation that was issued to Modesto Smoke Shop on the basis that the City's final decision lacks substantial evidence, is preempted by state law, exceeds the City's jurisdiction, violates due process, violates equal protection, and fails to meet the City's burden of proof.
The City does not dispute that a citation was issues for the Zig-Zag Orange rolling papers, which City refers to as "Orange tobacco wraps" in its papers. City states that the CBD gummies were prohibited by the Governor's emergency regulations but denies that any citation was issued for the CBD gummies.
Standing
City argues that Modesto Smoke Shop failed to exhaust its administrative remedies and thus is barred from bringing a writ because Modesto Smoke Shop itself did not appeal the citation or appear at the hearing. Instead, as City admits, Petitioner Venus McDonald appealed the citation, Petitioner McDonald appeared at the administrative hearing and presented evidence and cross-examined witnesses, and then City made a final decision affirming the citation. Therefore, City's argument that Modesto Smoke Shop failed to exhaust its administrative remedies lacks merit.
City allowed Petitioner McDonald to appear at the hearing, City allowed Petitioner McDonald to present evidence and cross-examine witnesses, and then City issued a final decision on the merits based on the evidence Petitioner McDonald presented at the hearing. City is estopped from now arguing that administrative hearing was procedurally faulty or somehow improper.
Next, City argues that Petitioner McDonald lacks standing because the citation was issued to Modesto Smoke Shop, not Petitioner McDonald. According to City, because Petitioner McDonald, who is the manager of Modesto Smoke Shop, was not present when the citation was issued and because there is no evidence that she is financially impacted by the citation, she has no standing.
"Ordinarily, a petitioner seeking a writ of mandate or administrative mandate must show that he or she is beneficially interested in the outcome." (Sacramento County Fire Protection Dist. v. Sacramento County Assessment Appeals Bd. II (1999) 75 Cal.App.4th 327, 331.)
"'Ordinarily, a party to the administrative proceeding has a sufficient interest to seek review of the decision.' [Citations.]" (Ibid., 331 n.1.)
"The requisite standing to maintain an action for administrative mandamus under Code of Civil Procedure s 1094.5 exists where, as here, the petitioner was a party to the administrative proceeding which the court is to review." (Beverly Hills Federal Sav. & Loan Ass'n v. Superior Court for Los Angeles County (1968) 259 Cal.App.2d 306, 317.)
"It is settled law in California that if a person is permitted by statute to appear and take part in an administrative hearing, he is sufficiently beneficially interested to seek a writ of mandate to review the administrative decision or disposition." (Memorial Hosp. of So. Cal. v. State Health Planning Council (1972) 28 Cal.App.3d 167, 178.)
Ultimately, whether Petitioner McDonald has standing to bring the petition depends on whether Petitioner McDonald can establish the requisite beneficial interest and/or that she was a party to the administrative hearing. Here, Petitioner McDonald participated in the administrative proceeding. Petitioner McDonald is identified as the "Appellant" in the administrative record, including but not limited to the Administrative Appeal Hearing Transcript. (E.g., AR3-7; AR2-10) And City allowed Petitioner McDonald to appear at the hearing, City allowed Petitioner McDonald to present evidence and cross-examine witnesses, and then City issued a final decision on the merits based on the evidence Petitioner McDonald presented at the hearing. The parties should be prepared to address this issue at the hearing and the Court may request further briefing.
Finally, City argues that Petitioner McDonald is not a licensed attorney and thus, cannot represent Modesto Smoke Shop. Because Ms. McDonald does not indicate that she is a California-licensed attorney, she cannot represent the smoke shop.
"'A corporation cannot represent itself in court, either in propria persona or through an officer or agent who is not an attorney." [Citations.]" (Merco Constr. Engineers, Inc. v. Municipal Court (1978) 21 Cal.3d 724, 729.) The Court once again encourages Modesto Smoke Shop to promptly seek legal advice from a California-licensed attorney regarding this matter.
PR-25-001101 - IN THE MATTER OF EOFF, MATTHEW - Petitioner's Motion to Compel Further Responses to Form Interrogatories, Set One, and for Monetary Sanctions - CONTINUED to June 25, 2026, at 8:30 am in Department 22. This matter is CONTINUED on the Court's own motion to June 25, 2026, at 8:30 am in Department 22, to be heard with the related discovery motion on calendar that day.
The following are the tentative rulings for cases calendared before Judge Clifford Tong in Department 23:
CV-23-002816 - THE PEOPLE OF THE STATE OF CALIFORNIA vs VIVEROS, ROBERT, Jr - Plaintiff's Motion for Summary Judgment - GRANTED, and unopposed. Based on the moving papers, the declaration of counsel and attached evidence, and the Court's order deeming matters admitted on 12-18-25, as well as the lack of opposition hereto, the Court finds that the Petitioner, as the moving party, has demonstrated fulfillment of the statutory requirements for forfeiture of the subject funds and is entitled to judgment herein. (Code Civ. Proc. Sec. 437c(p)(1); Health & Saf. Code Sec.Sec. 11470(f), 11488.4, and 11488.5, et seq.) The subject funds shall be distributed pursuant to Health & Saf. Code Sec. 11489.
CV-24-005251 - AVILES, JOSUE vs SMOLINSKIY, YURIY - Plaintiff's Motion to Deem Admissions as Admitted; Request for Monetary Sanctions Against Yuriy Smolinskiy in the Amount of $500 - GRANTED, and unopposed. The Court finds that Defendant has failed to respond to the subject discovery entirely and objections have been waived. (Code Civ. Proc. Sec. 2033.280(a).) Accordingly, the Court has no discretion but to grant Plaintiff's request. (Code Civ. Proc. Sec. 2033.280(c); St. Mary's v. Superior Court (Schellenberg) (2014) 223 Cal.App.4 th 762, 777-778.).
The matters contained in Request for Admissions, Set One, are deemed admitted. The Court further finds that Plaintiff is entitled to an award of monetary sanctions in connection with this motion. (Code Civ. Proc. Sec.Sec. 2033.280(c), 2023.010, 2030.030 et seq.) Therefore, monetary sanctions in the amount of $500 are awarded against Defendant Yuriy Smolinskiy, payable to Plaintiff's counsel.
CV-24-008809 - TIMMINS, LACEY vs CLEARCAPITALCOM INC - a) Plaintiff's Motion for Order Compelling Further Response to Plaintiff's Requests for Special Interrogatories from Rocket Mortgage LLC and for Monetary Sanction - HEARING REQUIRED. b) Plaintiff's Motion for Order Compelling Further Response to Plaintiff's Requests for Production from Rocket Mortgage LLC and for Monetary Sanction - HEARING REQUIRED. c) Plaintiff's Motion for Order Compelling Further Response to Plaintiff's Requests for Special Interrogatories from Clearcapital.com Inc. and For Monetary Sanction - HEARING REQUIRED. d) Plaintiff's Motion for Order Compelling Further Response to Plaintiff's Requests for Production from Clearcapital.com Inc. and for Monetary Sanction - HEARING REQUIRED. e) Defendant Clear Capital's Motion to Phase Discovery to Address Plaintiff's