Defendant's Motion to Leave to File Cross-Complaint
hearing to further address the issues herein.
CV-26-001432 - CARLOS, JUAN vs TEEPLES PLUMBING & DRILLING INC - Defendant Teeples Plumbing & Drilling, Inc's Demurrer to Plaintiff's First Amended Complaint - SUSTAINED, with leave to amend. The Court exercises its discretion to decline to consider Plaintiff's untimely opposition herein. Based on its review of the moving papers, the Court finds that the demurrer should be sustained in its entirety. (Code Civ. Proc. Sec. 430.10(e).) The allegations fail to plead statutory liability with the requisite specificity, particularly as to the elements of Defendant's knowledge and intent, Meta's underlying violation(s), and/or Plaintiff's cognizable damages, where applicable.
Moreover, the Court notes the absence of any binding California law applying the provisions of Penal Code Sec.Sec. 631(a) or 638.51 to instances of internet-based activities such as those alleged herein. Therefore, the Court harbors significant doubts about Plaintiff's ability to plead a viable claim under those statutes. Nevertheless, the Court will grant leave to amend in this instance. Plaintiff shall submit his Second Amended Complaint within 20 days.
The following are the tentative rulings for cases calendared before Judge David Hood in Department 24:
CV-23-001643 - EDVALSON, ERIC, III VS CITY OF MODESTO - Defendant City of Modesto's Motion for Summary Judgment - DENIED. As a preliminary matter Plaintiff's timing concerns regarding the original hearing date of this motion have been addressed by the continuance of the motion. Additionally, Defendant's objections to Plaintiff's Amended Separate Statement are overruled. While the court did not expressly grant Plaintiff leave to file a supplementary separate statement since the court granted Plaintiff leave to conduct the PMK deposition for purposes of being able to mount his defense to the Motion for Summary Judgment and given the importance of a separate statement as far as the Motion for Summary Judgment is concerned, it would be reasonably anticipated that Plaintiff would use the information obtained from said deposition including by the filing of an Amended Separate Statement.
Defendant's Request for Judicial Notice is granted, limited to the existence of the requested Exhibits. Evidence Code Sec.452. Plaintiff's Request for Judicial Notice is granted pursuant to Evidence Code Sec.Sec. 452 and 453.
After a review of all the testimony and evidence adduced, the Court finds that triable issues of material fact exist as to the applicable Statute of Limitations to Plaintiff's claims. The May 12, 2022, correspondence lists only "City of Modesto Risk Management Division," lacks an individual signature, and was served with a proof of service signed by a third-party employee in Bakersfield; raising a triable issue as to whether this constitutes written notice "of action taken" given "in the manner prescribed by Government Code Sec. 915.4" from an authorized source. This is a triable issue impacting the Government Code Sec. 913 predicate compliance. (Defendant's UMFs 1-9, Defendant's Exhibit 2, Plaintiff's Amended Additional UMFs 10-31, Plaintiff's Exhibit C, Braley Deposition pp. 5-6, 8-9,12-17,19, 20-22 and 24-25).
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A triable issue of material fact exists as to the authority underlying Defendant's alleged Government Code Sec.913 predicate compliance based on Defendant's inability to conclusively identify the City employee who rejected the claim or directed issuance of the May 12, 2022, notice; or to identify a decisionmaker or to identify any City Council resolution or written delegation to Risk Management. These unresolved facts determine whether the six’month provision under Government Code Sec.945.6(a)(1) was triggered by a Government Code Sec. 913?compliant notice or whether the two’year period under Sec. 945.6(a)(2) applies, making them outcome’determinative and precluding summary adjudication on Defendant's Statute of Limitations defense. Code of Civil Procedure Sec. 437c; Aguilar v Atlantic Richfield Co. (2001) 25 Cal.4th 826. Accordingly, Defendant's Motion for Summary Judgment is denied.
CV-23-004874 - POLOUS, MICHAEL vs ROSS F CARROLL INC - Defendant's Motion to Leave to File Cross-Complaint - GRANTED, unopposed.
A party against whom a cause of action has been asserted in a complaint or cross-complaint may file a cross-complaint setting forth any cause of action he has against a person alleged to be liable thereon, whether or not such person is already a party to the action, if the cause of action asserted in his cross-complaint (1) arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause brought against him or (2) asserts a claim, right, or interest in the property or controversy which is the subject of the cause brought against him.
Code of Civ. Proc., Sec. 428.50(b). The existing parties' proposed parties and claims are interconnected. Code Civ. Proc., Sec. 428.10 permits a party to an action to file a cross complaint against other than parties to the action at any time before the court has set a date for trial but requires leave to be obtained from the court and to be granted in the interest of justice. This rule imposes discretion in the court.”(City of Sacramento v. Superior Court in and for Sacramento County (1962), 205 Cal.App.2d 398.)
Code Civ. Proc., Sec. 426.50 also permits a party who fails to plead a cause of action whether through oversight, inadvertence, mistake, neglect, or other cause, to apply to the court for leave to amend his pleading, or to file a cross-complaint, to assert such cause at any time during the course of the action. The court shall grant leave after notice to the adverse party upon such terms as may be just if the moving party acted in good faith. Leave of the court to file a cross complaint is also required where a trial has been set.” Loney v. Superior Court (Moneta) 1984) 160 Cal.App.3d 719). Trial has been set here for May 2027 and leave of the court is thus required to file a cross complaint.
In Silver Organizations Ltd. v. Frank (1990) 217 Cal.App.3d 94, the Court held that a motion to file a cross complaint at any time during the course of an action must be granted unless bad faith of the moving party is demonstrated, where forfeiture would otherwise result. The court finds that no indication of bad faith exists here. A successful application must be supported by the proposed cross-complaint. Defendant's proposed cross complaint is attached to their application herein. Accordingly, Defendant's motion is granted. Defendants are hereby granted leave to join Mozingo Construction Inc. to this action within seven (7) days from the date of service of this order. Defendants shall submit a Proposed Order conforming to the Court's ruling no later than August 21, 2026.
CV-24-007318 - TOPETE, JAIME vs AMERICAN HONDA MOTOR CO INC - Defendant American Honda Motor Co., Inc's Motion for Relief Under CCP 473(b) - DENIED. Defendant has not met its burden to establish entitlement to discretionary relief under Code of Civil Procedure section 473(b). Although Defendant characterizes the $79,644.83 settlement amount in the accepted section 998 offer as an inadvertent drafting error, Defendant admits that no specific monetary figure was discussed or agreed upon before the offer was served. The written section 998 offer drafted and served by Defendant was accepted by Plaintiffs on December 30, 2025. Defendant's showing does not include contemporaneous documentation establishing that $39,822.41 was the authorized or agreed amount before the offer was served.
While Defendant's motion is timely filed, relative to Defendant's claim that the erroneous offer was discovered shortly after Plaintiff's December 30, 2025, acceptance, Defendant has not shown timely action in revoking the offer. The record contains competing evidence concerning when Defendant first advised Plaintiffs that it intended to vacate the settlement. Plaintiffs' evidence includes an April 16, 2026, email referencing a March 19, 2026, discussion regarding vacating the settlement, while the written record also shows post-acceptance communications concerning settlement performance and vehicle surrender up until April 15, 2026.
On this record, Defendant has not established reasonable diligence. "Where the mistake is excusable and the party seeking relief has been diligent, courts have often granted relief pursuant to the discretionary relief provision of section 473 if no prejudice to the opposing party will ensue." Zamora v. Clayborn Contracting Group, Inc. (2002), 28 Cal.4 th 249,258.
Plaintiffs assert a loss of their prevailing party status and their related entitlement to attorney fees on the motion they have filed in that regard. No such motion presently appears on the court files. Plaintiffs are prejudiced by a forfeiture of their March 2026, trial date and a return of this matter to calendar for trial under circumstances where Plaintiffs had been given the