GAVERT, JAMES vs CF MODESTO LLC

Stanislaus County - Civil - https://www.stanislaus.courts.ca.gov/online-services/tentative-rulings/civil-tentati ve-rulings Civil Tentative Rulings May 21, 2026

The following are the tentative rulings for cases calendared before Judge John R. Mayne in Department 21:

CV-22-001871 - STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY vs PETERS, DARRIN KEITH - Plaintiff State Farm Mutual Automobile Insurance Company's Motion to Vacate the Dismissal and Enforce a Settlement Agreement and Enter Judgment - HEARING REQUIRED. The Court notes a discrepancy between Defendant's mailing address as indicated in the underlying Settlement Agreement (Renee Drive) and the address indicated for Defendant on Plaintiff's Notices of Default and the Proof of Service for the instant motion (Maple Street). Counsel shall appear to advise the Court in this regard.

CV-23-004719 - WELLS FARGO BANK NA vs SCOTT, MOSES - Plaintiff's Motion to Vacate Dismissal Under CCP 664.6 & Enter Judgment Pursuant to Stipulation - DENIED with prejudice. Plaintiff appears to be seeking about ten times the amount owed. The Court has an affirmative duty under the canons to prevent future efforts of this sort and assumes this note will be effective prevention.

CV-24-008540 - TESORO HOMES INC vs BELSERA HOMEOWNERS ASSOCIATION - Defendant Belsera Homeowners Association's Motion to Deem Requests for Admission Admitted (CCP 2033.280) - DENIED. Defendant did not seek sanctions and has now received responses. The Court cannot grant the motion. (Code Civ. Proc. Sec. 2033.280(c); see, e.g. St. Mary v. Superior Court (2014) 223 Cal.App.4 th 762, 779-780.) Tesoro's choices concern the Court and I anticipate that the parties will substantially or completely resolve other discovery issues without its assistance.

CV-24-009801 - GAUSTON CORP vs VEC PARTNERS INC - Plaintiff Gauston Corp's Motion to Compel Further Responses and Production re: Request for Production, Set One, and Request for Sanctions - HEARING REQUIRED. No sanctions will be issued in this matter. The Court appreciates the parties' efforts to narrow the issues, and needs further assistance on the scope and nature of the documents MD opposes production of.

The following are the tentative rulings for cases calendared before Judge Stacy P. Speiller in Department 22:

CV-21-005754 - GAVERT, JAMES vs CF MODESTO LLC - a) Defendant's Motion for Judgment on the Pleadings - GRANTED in part and DENIED in part; b) Defendant, The Estate of Michael Brodie's Demurrer to First Amended Complaint - SUSTAINED in part, OVERRULED in part; c) Defendant, The Estate of Michael Brodie's Motion to Strike First Amended Complaint - GRANTED in part, DENIED in part.

a) On April 15, 2026, Defendant Andreh Saralou M.D. submitted the instant motion for judgment on the pleadings, accompanied by a Memorandum, a Request for Judicial Notice, and two declarations. On May 6, 2026, Plaintiffs submitted an Opposition. On May 12, 2026, Defendant Saralou submitted a Reply. For the reasons below, the motion as to the fourth cause of action for elder abuse is GRANTED with leave to amend; the motion as to the seventh cause of action for negligence is DENIED; the motion as to the eighth cause of action for negligent infliction of emotional distress is GRANTED without leave to amend; the motion as to the tenth cause of action for negligence per se is GRANTED without leave to amend.

Moving Party to submit a proposed order within five court days that conforms to this ruling. Plaintiff shall serve and file any amended complaint no later than 30 days after service of the signed order.

Dr. Saralou's Request for Judicial Notice

Dr. Saralou's unopposed Request for Judicial Notice is granted.

Whether the FAC fails to state sufficient facts to state a cause of action for elder abuse

Dr. Saralou argues that the fourth cause of action fails to state a claim fails because Dr. Saralou did not have the requisite care or custody relationship required to state a claim of neglect under the Elder Abuse Act. "[T]he Act does not apply unless the defendant health care provider had a substantial caretaking or custodial relationship, involving ongoing responsibility for one or more basic needs, with the elder patient." (Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 152.) "It is the nature of the elder or dependent adult's relationship with the defendant--not the defendant's professional standing--that makes the defendant potentially liable for neglect." (Ibid.)

Here, the First Amended Complaint does not plead sufficient facts showing that Dr. Saralou himself was a care custodian-- i.e., it does not plead facts showing that Dr. Saralou had an ongoing responsibility for one or more of Mr. Gavert's basic needs--as required by the Elder Abuse Act. Rather, the facts (as opposed to mere legal conclusions) pleaded merely allege that Dr. Saralou was negligent by failing to provide adequate wound care and treatment and by failing to monitor and recognize Mr. Gavert's deteriorating condition.

Such facts are insufficient to state a claim of neglect under the Elder Abuse Act. (Winn, 63 Cal.4th 148, 152 ["Because defendants did not have a caretaking or custodial relationship with the decedent, . . . plaintiffs cannot adequately allege neglect under the Elder Abuse Act."]; Frankland v. Etehad (2025) 113 Cal.App.5th 503, 516, review denied (Nov. 19, 2025) ["a physician [does not] automatically assume the requisite caretaking or custodial relationship simply because the elderly patient happens to reside in a skilled nursing facility and the physician provides services to patients in that facility"].)

Accordingly, the Court GRANTS with leave to amend Dr. Saralou's motion for judgment on the pleadings as to the fourth cause of action for elder abuse.

Whether the FAC fails to state sufficient facts to state a cause of action for negligence

Dr. Saralou argues that the seventh cause of action for negligence is duplicative of the first cause of action for professional negligence. The California Supreme Court has held that there cannot be "distinct causes of action for 'ordinary' as well as 'professional' negligence." (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 995.) But the Flowers case was decided on a motion for summary judgment, not a motion for judgment on the pleadings. Dr. Saralou cites no case in which a motion for judgment on the pleadings to a negligence claim was granted on the basis that it was duplicative of a professional negligence claim.

At the pleading stage, it appears prudent to allow the negligence causes of action to remain. Any asserted duplicativeness can be addressed at a later stage, once the parties have addressed which standard applies here. Accordingly, the Court DENIES Dr. Saralou's motion for judgment on the pleadings as to the seventh cause of action for negligence.

Whether the FAC fails to state sufficient facts to state a cause of action for negligent infliction of emotional distress

Dr. Saralou argues that the eighth cause of action for negligent infliction of emotional distress is duplicative of the causes of action for professional negligence and/or negligence. "[T]here is no independent tort of negligent infliction of emotional distress." (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 984.) "The tort is negligence, a cause of action in which a duty to the plaintiff is an essential element." (Ibid.; Wong v. Jing (2010) 189 Cal.App.4th 1354, 1377 ["A claim of negligent infliction of emotional distress is not an independent tort but the tort of negligence to which the traditional elements of duty, breach of duty, causation, and damages apply."].)

Courts may treat claims for negligence and negligent infliction of emotional distress as a single cause of action. (Los Angeles Cellular Telephone Co. v. Superior Court (1998) 65 Cal.App.4th 1013, 1016 ["negligent infliction of emotional distress is not an independent tort but simply the tort of negligence, with the traditional elements of duty, breach and causation. Our discussion of [plaintiff's] negligence claim therefore includes her causes of action for both simple negligence and negligent infliction of emotional distress"].)

Here, the First Amended Complaint pleads a cause of action for negligence by Mr. Gavert. There is no independent tort of negligent infliction of emotional distress. Accordingly, the Court GRANTS without leave to amend Dr. Saralou's motion for judgment on the pleadings as to the eighth cause of action for negligent infliction of emotional distress.

Whether the FAC fails to state sufficient facts to state a cause of action for negligence per se

Dr. Saralou argues that the tenth cause of action for tort per se is duplicative of the causes of action for professional negligence and negligence. "[T]he doctrine of negligence per se is not a separate cause of action, but creates an evidentiary presumption that affects the standard of care in a cause of action for negligence." (Turner v. Seterus, Inc. (2018) 27 Cal.App.5th 516, 534 [internal quotation marks and citation omitted].) Accordingly, the Court GRANTS without leave to amend Dr. Saralou's motion for judgment on the pleadings to the tenth cause of action for negligence per se.

b-c) On February 27, 2026, Defendant The Estate of Michael Brodie submitted the instant demurrer to and motion to strike Plaintiffs' First Amended Complaint. On April 3, 2026, Plaintiffs submitted Oppositions to both motions. On April 9, 2026, Defendant submitted Replies to both motions. On May 4, 2026, Defendant submitted a declaration of compliance with the meet and confer requirement.

The Estate of Michael Brodie's Demurrer and Motion to Strike

For the reasons below, the demurrer to the second cause of action for loss of consortium is OVERRULED; the demurrer to the fourth cause of action for elder abuse is SUSTAINED with leave to amend; the demurrer to the seventh cause of action for negligence is OVERRULED; the demurrer to the tenth cause of action for negligence per se is SUSTAINED without leave to amend; the motion to strike paragraphs 54 and 55 of the First Amended Complaint is DENIED; the motion to strike attorney's fees and costs and punitive damages pursuant to the Elder Abuse Act is GRANTED; the motion to strike exemplary damages is DENIED; and the motion to strike statutory damages and attorney's fees pursuant to Health and Safety Code section 1430(b) is DENIED.

Moving Party to submit a proposed order within five court days that conforms to this ruling. Plaintiff shall serve and file any amended complaint no later than 30 days after service of the signed order.

Second cause of action for loss of consortium

Defendant argues that Mrs. Gavert's loss of consortium cause of action is duplicative of Mrs. Gavert's cause of action for wrongful death. "[A] cause of action for wrongful death (and the right to recover loss of consortium damages as part of that action) [is] purely a creature of statute." (Boeken v. Philip Morris USA, Inc. (2010) 48 Cal.4th 788, 796 [emphasis in original].) "[A] common law action for loss of consortium is a civil action sounding in tort, and therefore punitive damages are available." (Ibid.) "Punitive damages are not available, however, in a statutory wrongful death action." (Ibid.) "As the Supreme Court itself has pointed out, the cause of action for loss of consortium does not resemble wrongful death because it has no statutory foundation but is entirely of judicial origin. [Citation.]" (Lantis v.

Condon (1979) 95 Cal.App.3d 152, 158.)" Loss of consortium and wrongful death are two distinct causes of action. The First Amended Complaint pleads harm both subsequent to Mr. Gavert's injuries and subsequent to Mr. Gavert's death. Mrs. Gavert may ultimately be unable to recover damages for the same alleged harms under more than one cause of action. (Boeken v. Philip Morris USA, Inc., 48 Cal.4th at 804 ["We conclude that the primary right at issue in plaintiff's current wrongful death action for loss of consortium is the same as the primary right at issue in her previous common law action for loss of consortium, and therefore the res judicata doctrine bars the wrongful death action insofar as it concerns loss of consortium."].)

However, at this stage of the litigation, the First Amended Complaint sufficiently states a claim for loss of consortium. The claim is not uncertain as the heading clearly states that it is brought by Mrs. Gavert only, despite the minor typographical error of plural "Plaintiffs" instead of using the singular "Plaintiff." Accordingly, the Court OVERRULES the demurrer to the second cause of action for loss of consortium; DENIES the motion to strike paragraphs 54 and 55 of the First Amended Complaint; and DENIES the motion to strike exemplary damages.

Fourth cause of action for elder abuse

Defendant argues that the fourth cause of action for elder abuse fails because Dr. Brodie did not have the requisite care or custody relationship required to state a claim of neglect under the Elder Abuse Act. "[T]he Act does not apply unless the defendant health care provider had a substantial caretaking or custodial relationship, involving ongoing responsibility for one or more basic needs, with the elder patient." (Winn v. Pioneer Medical Group, Inc. (2016) 63 Cal.4th 148, 152.) "It is the nature of the elder or dependent adult's relationship with the defendant--not the defendant's professional standing--that makes the defendant potentially liable for neglect." (Ibid.)

Here, the First Amended Complaint does not plead sufficient facts showing that Dr. Brodie himself was a care custodian as required by the Elder Abuse Act. Rather, the facts (as opposed to mere legal conclusions) pleaded merely allege that Dr. Brodie was negligent in his duties as the attending physician. Such facts are insufficient to state a claim of neglect under the Elder Abuse Act. (Winn, 63 Cal.4 th at 152 ["Because defendants did not have a caretaking or custodial relationship with the decedent, . . . plaintiffs cannot adequately allege neglect under the Elder Abuse Act."].; Frankland v.

Etehad (2025) 113 Cal.App.5th 503, 516, review denied (Nov. 19, 2025) ["a physician [does not] automatically assume the requisite caretaking or custodial relationship simply because the elderly patient happens to reside in a skilled nursing facility and the physician provides services to patients in that facility"].) Accordingly, the Court SUSTAINS with leave to amend the demurrer to the fourth cause of action for elder abuse; and GRANTS the Motion to Strike attorney's fees and costs and punitive damages pursuant to the Elder Abuse Act.

Seventh cause of action for negligence

Defendant argues that the seventh cause of action for negligence is duplicative of the first cause of action for professional negligence. The California Supreme Court has held that there cannot be "distinct causes of action for 'ordinary' as well as 'professional' negligence." (Flowers v. Torrance Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 995.) But the Flowers case was decided on a motion for summary judgment, not a motion for judgment on the pleadings. At the pleading stage, it appears prudent to allow the negligence causes of action to remain. Any asserted duplicativeness can be addressed at a later stage, once the parties have addressed which standard applies here. Accordingly, the Court OVERRULES the demurrer to the seventh cause of action for negligence.

Eighth cause of action for negligent infliction of emotional distress

Defendant argues that the eighth cause of action for negligent infliction of emotional distress is duplicative of the professional negligence and/or negligence causes of action. "[T]here is no independent tort of negligent infliction of emotional distress." (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 984.) "The tort is negligence, a cause of action in which a duty to the plaintiff is an essential element." (Ibid.; Wong v. Jing (2010) 189 Cal.App.4th 1354, 1377 ["A claim of negligent infliction of emotional distress is not an independent tort but the tort of negligence to which the traditional elements of duty, breach of duty, causation, and damages apply."].)

Courts may treat claims for negligence and negligent infliction of emotional distress as a single cause of action. (Los Angeles Cellular Telephone Co. v. Superior Court (1998) 65 Cal.App.4th 1013, 1016 ["negligent infliction of emotional distress is not an independent tort but simply the tort of negligence, with the traditional elements of duty, breach and causation. Our discussion of [plaintiff's] negligence claim therefore includes her causes of action for both simple negligence and negligent infliction of emotional distress"].)

Here, the First Amended Complaint pleads a cause of action for negligent infliction of emotional distress by Mr. Gavert only. Mr. Gavert may claim damages due to emotional distress under a cause of action for negligence. Accordingly, the Court SUSTAINS without leave to amend the demurrer to the eighth cause of action for negligent infliction of emotional distress.

Ninth cause of action for intentional infliction of emotional distress

Plaintiffs agree to dismiss the tenth cause of action against Defendant The Estate of Michael Brodie. (Opposition, 16.) Plaintiffs should submit a notice of dismissal.

Tenth cause of action for tort per se

Defendant argues that the tenth cause of action for tort per se is duplicative of the causes of action for professional negligence and negligence. "[T]he doctrine of negligence per se is not a separate cause of action, but creates an evidentiary presumption that affects the standard of care in a cause of action for negligence." (Turner v. Seterus, Inc. (2018) 27 Cal.App.5th 516, 534 [internal quotation marks and citation omitted].) Accordingly, the Court SUSTAINS without leave to amend the demurrer to the tenth cause of action for negligence per se.

Statutory Remedies under Health & Safety Code Sec. 1430(b)

The fifth cause of action for violation of resident rights is not asserted against The Estate of Michael Brodie. According, the Court DENIES the motion to strike statutory damages and attorney's fees pursuant to Health and Safety Code section 1430(b).

CV-26-002065 - VELASCO, IRINIEO vs PIERCE, JOSEPH STANLEY - Defendant's Motion to Quash Service of Summons and Complaint - GRANTED, and unopposed. On May 6, 2026, Defendants submitted the instant Motion to Quash Service of Summons and Complaint on the basis that the summons and complaint were served at a residence that is not the home or usual place of abode of Defendants and also on the basis that the individual defendant passed away before service was purportedly effectuated. The motion is unopposed.

Here, the proof of service indicates substituted service on a residential address that is not the dwelling house or usual place of abode of Defendant Joseph Stanley Pierce dba Mi Valley Dairy. (See Code Civ. Proc., Sec. 415.20.) In addition, Defendant Joseph Stanley passed away on March 10, 2026, which is before service was purportedly effectuated on March 23, 2026. Pursuant to Code of Civil Procedure Sec. 418.10, the unopposed motion is GRANTED. The proposed order submitted by Defendants inaccurately references opposing papers (and oral argument).

Moving party to submit a corrected proposed order that conforms to this ruling within five court days.

PR-24-000883 - IN THE MATTER OF KENNETH J OCKEY TRUST - Respondent Roxanne Ockey's Motion to Require Trustee/Petitioner Daryn A. Ockey to Give Bond - DENIED. Respondent Roxanne Ockey's motion to require Petitioner Daryn A. Ockey to post a bond is DENIED. The Court finds that Probate Code section 15602 does not provide authority to require a beneficiary or co-trustee to post a bond as a condition of prosecuting a petition challenging a trust amendment. The bond provision contained in the contested April 18, 2023 amendment is not a traditional trustee bond provision securing performance of fiduciary duties and, at this stage, will not be enforced as a litigation prerequisite.

The Court declines to impose a bond in the absence of a showing that such relief is necessary to protect the trust estate or beneficiaries. Respondent's objections to Petitioner's supplemental memorandum are SUSTAINED. The Court declines to consider the supplemental filing as unauthorized and untimely.

UD-26-000388 - LAL, RONALD vs POWELL, JAYMI - Defendant's Demurrer - HEARING REQUIRED.