TENTATIVE RULINGS

June 20, 2023

Department S-26
Judge David Cohn

Tentative Rulings for Department S-26 are posted on the court’s website
(https://www.sb-court.org/divisions/civil/civil-tentative-rulings) at 3:00 p.m. or at 7:00 p.m. the
court day before the hearing. If no tentative ruling is posted at 3:00 p.m., please check again
after 7:00 p.m. If you do not wish to submit on a tentative ruling, you must appear for the
hearing, either in person or remotely.

1. To attend the hearing remotely via Zoom at no charge:

a. Via PC: https://www.zoomgov.com/my/dept.s26

b. Via Phone: 1 669 254 5252 or 1 669 216 1590
c. Use Meeting ID: 160 2319 7614

2. To attend the hearing remotely via CourtCall, make a reservation through CourtCall:
(888-882-6878 or www.courtcall.com). Video CourtCall is available at no extra
charge.

Failure to appear at the hearing (either in person or remotely) is deemed a waiver of

oral argument. If all parties submit on a tentative ruling, the tentative ruling will become the
ruling of the court. The tentative ruling may note particular issues on which the court requests
the parties to provide further argument at the hearing. If so directed, attendance at the hearing
is mandatory, either in person or remotely. The party prevailing on a motion or other hearing
shall serve written notice of the court’s ruling unless all parties waive notice of the ruling.

ATTENTION: The Court no longer provides an official Court Reporter to transcribe

proceedings in this Department absent a fee waiver covering a reporter’s transcript. Parties
who wish to have an official record of the proceedings other than a minute order must retain a
private Certified Shorthand Reporter for the hearing and must submit a “Stipulation and Order
to Use Certified Shorthand Reporter” to the court. An exemplar stipulation is attached to these
tentative rulings. If counsel are appearing for the hearing remotely,1 the Stipulation can be
emailed to the Judicial Assistant for Department S-26 at jmorales@sb-court.org. The Court
will sign the Order appointing the Certified Shorthand Reporter as the official Court Reporter
Pro Tempore. Parties who do not retain a Certified Shorthand Reporter to be designated as
an official Court Reporter Pro Tempore are deemed to have waived an official Court Reporter
for the proceeding.

1
In this Department, remote appearances are authorized for all Law and Motion matters, unless the Court
has specifically ordered otherwise. Counsel are encouraged, however, to appear in person for contested motions
whenever possible. Nevertheless, the Court recognizes that financial constraints or other factors may make in-
person appearances impractical. No explanation is required for remote appearances.

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15. Aegis Builders, Inc. v. Hollingsworth el al.
CIVDS1824039
Motion for Leave to File Third Amended Complaint
Motion to Quash
Tentative Ruling:

Motion for Leave to File Third Amended Complaint

Denied.

Plaintiff seeks to add a new claim for civil penalties under Penal Code section 496,
subdivision (c).2

Code of Civil Procedure section 473, subdivision (a)(1), provides:

The court may, in furtherance of justice, and on any terms as may

be proper, allow a party to amend any pleading or proceeding by
adding or striking out the name of any party, or by correcting a
mistake in the name of a party, or a mistake in any other respect….
The court may likewise, in its discretion, after notice to the adverse
party, allow, upon any terms as may be just, an amendment to any
pleading or proceeding in other particulars….

A motion to amend a pleading must:

1. Include a copy of the proposed amended pleading, which must be serially numbered
to differentiate it from previous pleadings or amendments;
2. State what allegations in the previous pleading are deleted or added (if any) and
where, by page, paragraph, and line number, the deleted or additional allegations
are located; and
3. Contain a separate declaration specifying (a) the effect of the amendment, (b) why
the amendment is necessary and proper, (c) when the facts discovered that give rise
to the amended allegations, and (d) the reasons why the request for amendment
was not made earlier.
(Rules of Court, rule 3.1324(a)-(b).)

Leave to amend is within the court’s sound discretion. (Code Civ. Proc., §473.) Since
judicial policy favors resolution on the merits, courts liberally grant leave to amend. (Nestle v.
Santa Monica (1972) 6 Cal.3d 920, 939.) If a motion to amend is timely made and the granting

2
Penal Code section 496, subdivision (a), states, “Every person who buys or receives any property that
has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to
be so stolen or obtained, or who conceals, sells, withholds, or aids in concealing, selling, or withholding any
property from the owner, knowing the property to be so stolen or obtained, shall be punished by imprisonment….”
Subdivision (c) provides that if any person is injured by a violation of subdivision (a) may bring an action for 3x the
amount of actual damages, cost of suit, and attorney fees.

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 TENTATIVE RULINGS
of the motion will not prejudice the opposing party, it is an error to refuse permission to amend,
and, where the refusal also results in a party being deprived of the right to assert a meritorious
cause of action or a meritorious defense, it is not only error but abuse of discretion. (Morgan v.
Superior Court (Morgan) (1959) 172 Cal.App.2d 527, 530.)

The policy of liberal amendment, however, applies only when no prejudice to the
defendant is shown. (Mesler v. Bragg Mgt. Co. (1985) 39 Cal.3d 290, 297.) Prejudice exists
when the amendment would require delaying the trial, resulting in a loss of critical evidence,
adding costs of preparation, or increasing the burden of discovery. (Magpal v. Farmers Group,
Inc. (1996) 48 Cal.App.4th 471, 486-488.) However, even if some prejudice is shown, the
judge may still permit amendment, but impose conditions, e.g., the judge may continue the trial
date, limit discovery, or order the party seeking the amendment to pay the costs and fees
incurred by the opposing party in preparing for trial. (Code Civ. Proc., §§473, subd. (a)(1)-(2),
576; Fuller v. Vista Del Arroyo Hotel (1941) 42 Cal.App.2d 400, 404-05.)

Plaintiff provides a copy of the proposed amendment.3 The changes are the addition of
the new claim and removal of the names of dismissed defendants. But contrary to the
requirements of Rule 3.31324, plaintiff fails to submit a declaration attesting to the effect of the
amendment, why it is necessary and proper, when the facts were discovered giving rise to the
amendment, and the reason it was not sought earlier. Nevertheless, the motion addresses
some of these points, albeit not under oath.

Plaintiff argues that it seeks to add the claim so it can recover treble damages, cost of
suit, and attorney fees, that no additional discovery will be necessary, and that the basis to add
the claim from the decision in Siry Investment, L.P. v. Farkhondehpour (2022) 13 Cal.5th 333,
which was issued on July 21, 2022. Siry held that subdivision (c) of the statute allows a
plaintiff to recover treble damages and attorney fees when the property has been obtained by
theft, and, in particular, it will apply to the fraudulent diversion of partnership funds. (Id. at p.
361.)

But Siry does not set forth any new law. Siry simply agreed with Bell v. Feibush (2013)
212 Cal.App.4th 1041, 1048, and Switzer v. Wood III (2019) 35 Cal.App.5th 116, 121, 126-28
(Siry, supra, 13 Cal.5th at pp. 347-351, 354-58.)

Therefore, plaintiff did not need the Siry decision for grounds to seek the treble
damages under Penal Code section 496, either when it filed its complaint in 2018, or at the
latest, soon after the Switzer decision in 2019. Moreover, insofar as Siry was the catalyst for
the motion, it was published nearly a year ago. Yet plaintiff waited until three months before
the trial to file its motion, schedule to be heard two months before trial. Plaintiff demonstrates
no valid reason for this delay.

As addressed above, prejudice exists, among other circumstances, when an

amendment would require delaying the trial and increasing the burden of discovery. (Magpal
v. Farmers Group, Inc. (1996) 48 Cal.Ap..4th 471, 486-488.) Both would be required here

3
The pleading is erroneously labeled as a second amended complaint, rather than a third. This
typographical error is inconsequential.

Page 3 CVS26062023
 TENTATIVE RULINGS
because defendants would be entitled to conduct discovery on the new claim, even if plaintiff
believes it needs no discovery. This would require continuing the trial date and reopening
discovery, a costly undertaking by any measure, though that has not been quantified for the
court. This additional burden could easily have been avoided if plaintiff had timely sought
leave to amend rather than waiting shortly before trial without legitimate excuse for doing so.
Furthermore, plaintiff has failed to comply with the mandatory Rules of Court in seeking
amendment.

Therefore, the motion to amend is denied.

Motion to Quash

This motion to quash is directed to a subpoena dated April 13, 2023. That subpoena,
however, was replaced by another subpoena, dated April 23, 2023. Therefore, the issue is
moot. The deponent need not respond to the April 13 mooted subpoena; the operative
subpoena is dated April 23, which this motion does not address. Sanctions are denied.

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12. Gonzales v. Pacific Western Bank
CIVSB2127657
Motion for Final Approval of Class Action and PAGA Settlement
Tentative Ruling:

Granted. However, the itemized costs total $8,537.28 as listed in the Blumenthal
declaration, not $21,470.33 as stated in the motion. Additionally, a number of the items
appear to be duplicates. If they are not duplicates, counsel must explain. If there are costs in
addition to those listed in the Blumenthal declaration, counsel must direct the court to them.

13. Ramirez v. Comav Technical Services

CIVDS2021583
Motion for Final Approval of Class Action and PAGA Settlement
Tentative Ruling:

Granted. However, costs are not authenticated. While the Leviant declaration states
that costs total $20,119.22, they are not itemized or otherwise documented. Unsubstantiated
costs cannot be awarded. The Nourmand declaration itemizes $7,246.46 in costs.
Photocopies, however, are calculated at $0.20 per page, but the court does not award
photocopying costs in excess of $0.06 per page. Additionally, there is a $10.00 charge listed
for e-filing, but e-filing was not operational at that time. The court will deduct $153.82 from the
Nourmand-listed costs, for an award of $7,246.46. If there are costs in addition to those listed
in the Nourmand declaration, counsel must direct the court to them.

14. Aguilar v. Precision Hermetic Technology

CIVSB2128517
Motion for Final Approval of Class Action and PAGA Settlement
Tentative Ruling:

Granted.

Page 5 CVS26062023
 NAME, ADDRESS, AND TELEPHONE NUMBER OF ATTORNEY OR PARTY WITHOUT ATTORNEY: STATE BAR NUMBER Reserved for Clerk’s File Stamp

ATTORNEY FOR (Name):

SUPERIOR COURT OF CALIFORNIA, COUNTY OF SAN BERNARDINO
COURTHOUSE ADDRESS:
247 West Third Street, San Bernardino, CA 92415
PLAINTIFF:

DEFENDANT:

CASE NUMBER:
STIPULATION AND ORDER
TO USE CERTIFIED SHORTHAND REPORTER

1. Reporter Information

Name: License No:

(PRINT)
Bus. Address: Telephone:
E-mail:

2. Court Reporter Agreement

By signing this agreement, and accepting this appointment as an official Court Reporter Pro Tempore in this
matter, the Reporter confirms and agrees: (1) to maintain a valid, current California Certified Shorthand Reporter License
and maintain current contact information with the Court as directed by the Court's Director of Courtroom
Support; (2) that appearance fees, including real time fees, are the responsibility of the party or parties who
arranged the reporter services, and may not be charged to the Court; (3) to comply with statutes and rules
applicable to official Court Reporters Pro Tempore, including the duty to timely prepare transcripts in the proper
appellate form; (4) to leave reporting notes or an electronic copy with the Court as directed by the Court's Director
of Courtroom Support; (5) to follow directions from the Court, and to be subject to the jurisdiction of the Court to the
same extent as an official reporter; (6) to be available for reading of notes back to the jury if serving during a jury trial.

Date: Signature:

Order Appointing Court Reporter Pro Tempore

Pursuant to Government Code sections 68086, 70044, and California Rule of Court 2.956, and the stipulation of
the appearing parties set forth on the pages following this order, the above identified Certified Shorthand Reporter
is appointed as an official Court Reporter Pro Tempore in these proceedings, and is ordered to comply with the terms of
the Court Reporter Agreement set forth above. Any party who orders proceedings transcribed by the official Court
Reporter Pro Tempore may be ordered to lodge a copy of the transcript with the Court.

Good Cause Appearing therefor, IT IS SO ORDERED

Date:
Judicial Officer

Cal. Rules of Court, rule 2.956

Gov. Code, §§ 68086 & 70044
SHORT TITLE: CASE NUMBER:

Stipulation of the Appearing Parties

The parties or their counsel appearing in this matter hereby stipulate to the Court appointing an official Court reporter
pro tempore as set forth in the Order and Agreement herein.

Date: Name: Attorney for:

(PRINT)

Signature:

Date: Name: Attorney for:

(PRINT)

Signature:

Date: Name: Attorney for:

(PRINT)

Signature:

Date: Name: Attorney for:

(PRINT)

Signature:

Date: Name: Attorney for:

(PRINT)

Signature:

Date: Name: Attorney for:

(PRINT)

Signature:

Date: Name: Attorney for:

(PRINT)

Signature:

Date: Name: Attorney for:

(PRINT)

Signature:

Date: Name: Attorney for:

(PRINT)

Signature:

Additional stipulations are attached to this document.