GIBB v. TOYOTA MOTOR CREDIT CORP.

LAW AND MOTION TENTATIVE RULINGS DATE: AUGUST 28, 2026 TIME: 8:30 A.M.

TENTATIVE RULINGS ARE NOT POSTED IN UNLAWFUL DETAINER CASES

Notice to prevailing parties: Local Rule 2.10.01 requires you to submit a proposed formal order incorporating, verbatim, the language of any tentative ruling – or attaching and incorporating the tentative by reference - or an order consistent with the announced ruling of the Court, in accordance with California Rule of Court 3.1312. Such proposed order is required even if the prevailing party submitted a proposed order prior to the hearing with two exceptions: (1) in unopposed matters where the moving party has provided a detailed proposed order or JCC form of order, or (2) where the tentative is simply to “grant”. Failure to comply with Local Rule 2.10.01 may result in the imposition of sanctions following an order to show cause hearing, if a proposed order is not timely filed.

No. 26CV00034

GIBB v. TOYOTA MOTOR CREDIT CORP.

RESPONDENT’S DEMURRER TO THIRD AMENDED PETITION FOR WRIT OF MANDATE

The demurrer is sustained without leave to amend.

I. BACKGROUND AND DEMURRER

Petitioner Ian Gibb (petitioner) filed a series of Code of Civil Procedure section 1085 writs of mandate against respondent Toyota Motor Credit Corporation (respondent). Petitioner alleges that his vehicle was removed, without his consent from a parking lot in Napa County in April of 2025. Petitioner contends that respondent, either directly or indirectly, possessed his vehicle and caused its removal. (TAP at ¶¶ 2-4.) Beginning May 18, 2025, petitioner made multiple written requests seeking documents, information, and clarification regarding the grounds for the removal of his vehicle from the property owned or controlled by respondent.

Gibb asserts violations of Vehicle Code section 22658, subdivision (f) and seeks a writ of mandate, ordering respondent to perform its duties pursuant to this section. Petitioner argues that a writ is required because respondent withheld the grounds for the tow, which limits his ability to pursue a post-storage hearing pursuant to Vehicle Code section 22852.

Respondent filed demurrers to each of petitioner’s writs. The court sustained with leave to amend, the second amended petition for writ of mandate. Petitioner filed a third amended petition (TAP) for writ of mandate pursuant to Code of Civil Procedure section 1085. In response, respondent filed this demurrer, alleging the TAP fails to correct the deficiencies noted by this court in its prior ruling on the demurrer to the second amended petition for writ.

LAW AND MOTION TENTATIVE RULINGS DATE: AUGUST 28, 2026 TIME: 8:30 A.M.

Respondent contends that the TAP fails to state facts sufficient to constitute a cause of action because the Vehicle Code does not impose petitioner’s claimed duties on respondent and fails to allege that ministerial duties attach to Vehicle Code sections 22658 or 22852 and so fails to allege he is entitled to a writ under Code of Civil Procedure section 1085.

II. DISCUSSION

“A demurrer tests the pleading alone, and not the evidence or the facts alleged.” (City of Atascadero v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1998) 68 Cal.App.4th 445, 459.)

Petitioner cites Code of Civil Procedure section 1085 as the basis for his writ, which provides, “(a) [a] writ of mandate may be issued by any court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded by that inferior tribunal, corporation, board, or person.”

“To obtain a writ of mandate under Code of Civil Procedure section 1085 a petitioner must show, among other things, ‘that the respondent has failed to perform an act despite a clear, present and ministerial duty to do so, and that the petitioner has a clear, present and beneficial right to that performance.’ [Citation.]” (Hendrix v. Superior Court (2011) 191 Cal.App.4th 889, 893.)

“Mandamus is an appropriate means for compelling a public official to perform an official act that is required by law. [Citation.] It generally will lie only to compel the public official's performance of a duty which is purely ministerial in nature. [Citation.] Where a public official is required by law to exercise his or her discretion, mandamus will lie to compel the official to exercise his or her discretion under a proper interpretation of the law. [Citation.] It will not lie to compel the public official to exercise his or her discretion in a particular manner, however. [Citation.]” (Young v.

Gannon (2002)97 Cal.App.4th 209, 221.) “An ordinary mandamus action under Code of Civil Procedure section 1085 permits judicial review of ministerial duties as well as quasi-legislative acts of public agencies.” (Carrancho v. California Air Resources Board (2003) 111 Cal.App.4th 1255, 1264-1265.)

As stated in its earlier ruling on respondent’s demurrer to the second amended petition, petitioner has not provided a basis for this court to compel respondent to perform acts which are entirely between a private individual and private company under Code of Civil Procedure section 1085.

Code of Civil Procedure section 1086 states that a writ must be issued “where there is not a plain, speedy, and adequate remedy, in the ordinary course of law.” Vehicle Code section

LAW AND MOTION TENTATIVE RULINGS DATE: AUGUST 28, 2026 TIME: 8:30 A.M.

22658 provides for damages, including subdivision (d) which states that “[t]he owner of a vehicle removed from private property pursuant to subdivision (a) may recover for any damage to the vehicle resulting from any intentional or negligent act of a person causing the removal of, or removing, the vehicle.” There are further penalties and damages permitted against a tow company for damage to the vehicle and excessive charges. There is no basis to impose a writ of mandate directive on a private company under the facts alleged. Petitioner cites Beverly v. Anderson (1999) 76 Cal.App.4th 480 in his opposition; however, in Beverly, unlike this case, the defendant was a public agency.

According to the TAP, the reason why petitioner wants the information is to engage in a post-storage hearing pursuant to Vehicle Code section 22852. As pointed out by respondent, this section applies when an authorized member of a public agency directs the storage of a vehicle. There are no allegations that a public agency is involved in the towing of petitioner’s vehicle; therefore, there would be no reason or right to a post-storage hearing.

Petitioner filed an “objection to the separately calendared demurrer hearing and request for relief”, arguing the demurrer is inconsistent with the procedure proscribed in Code of Civil Procedure section 1094. However, petitioner did not file a Code of Civil Procedure section 1094 writ, so this objection is irrelevant and is overruled.

Petitioner has tried three times without success to amend his petition to state a claim, therefore demurrer is sustained without leave to amend.

No. 24CV02633

KITCHELL v. HOTEL SOLARES, et al.

PLAINTIFF’S MOTION FOR NEW TRIAL

Plaintiff brings this motion pursuant to Code of Civil Procedure sections 657, 658, and 659 after the court granted defendants’ motion for summary judgment. Plaintiff asserts that a new trial is warranted because the court failed to rule on her Code of Civil Procedure section 437c, subdivision (h) request and ruled on the motion for summary judgment without ruling on this request. (MPA at p. 7.) As discussed below, the motion is denied.1

1 This court must hear the motion because Judge Carter is unavailable. (Code Civ. Proc., § 661; Kelly v. Sparling Water Co. (1959) 52 Cal.2d 628, 633.)