Giumarra Brothers Fruit Co. v. Mora

(03) Tentative Ruling

Re: Giumarra Brothers Fruit Co. v. Mora Case No. 23CECG03466

Hearing Date: May 7, 2026 (Dept. 503)

Motion: Defendant’s Motion to Strike First Amended Answer to Second Amended Cross-Complaint

Defendant’s Motion to Compel Further Responses to Requests for Production of Documents

Plaintiff’s Motion for an Order to Show Cause for Contempt

Demurrer

Defendant’s Motion for Summary Judgment

Plaintiff’s Motion for Summary Adjudication

Tentative Ruling:

To deny defendant’s motion to compel further responses to requests for production of documents, as untimely. To grant sanctions against defendant in the amount of $2,250. Defendant shall pay sanctions to plaintiff within 30 days of the date of service of this order.

To deny defendant’s motion strike plaintiff’s first amended answer to defendant’s second amended cross-complaint.

To take the demurrer off calendar, as no moving papers have been filed.

To grant plaintiff’s motion for an order to show cause for contempt.

To deny defendant’s motion for summary judgment or adjudication of plaintiff’s complaint.

To grant plaintiff’s motion for summary adjudication of defendant’s fourth and fifth cross-claims in the second amended cross-complaint.

Explanation:

Defendant’s Motion to Compel Further Responses to Requests for Production of Documents: Under Code of Civil Procedure section 2031.310, subdivision (c), “Unless notice of this motion is given within 45 days of the service of the verified response, or any supplemental verified response, or on or before any specific later date to which the

demanding party and the responding party have agreed in writing, the demanding party waives any right to compel a further response to the demand.” The 45-day deadline to bring a motion to compel is mandatory. The court has no jurisdiction to grant a motion brought after the deadline has run, and such an untimely motion must be denied. (Golf & Tennis Pro Shop, Inc. v. Superior Court (2022) 84 Cal.App.5th 127, 137; Vidal Sassoon, Inc. v. Superior Court (1983) 147 Cal.App.3d 683.) Here, defendant did not file his motion to compel further responses within 45 days of the date plaintiff served its supplemental responses to the requests for production.

Plaintiff served the responses on December 19, 2025. Service was by electronic delivery. There is no evidence that the parties agreed to extend the deadline to file the motion to a later date. Thus, defendant had 47 days in which to file his motion to compel. In other words, the motion had to be filed by February 4, 2026. When meet and confer efforts failed to resolve the dispute, defendant filed a request for pretrial discovery conference on February 4, 2026, which tolled the running of the deadline to file the motion to compel until the court ruled on the request. (Fresno Sup.

Ct. Local Rules, rule 2.1.17 G.) The court issued its order denying the request for a pretrial discovery conference and granting leave to file a motion to compel on March 26, 2026. The court’s order noted that the deadline was tolled for 16 days. The clerk electronically served the order on March 30, 2026. Thus, defendant needed to file the motion to compel no later than April 1, 2026. However, defendant did not file his motion to compel until April 24, 2026, 23 days after the deadline to file the motion expired.

Thus, the motion to compel was not timely filed, and the court must deny it without reaching its merits. In defendant’s ex parte application to deem the motion timely filed, defense counsel claims that she tried to file the motion electronically on April 10, 2026 but the documents were not accepted by the court, apparently because of technical issues. Thus, defendant admits that the motion was not filed in a timely manner. Yet, even if the filing had been successful on April 10, 2026, it would have still been too late to meet the deadline, which expired on April 1, 2026.

Therefore, since the motion to compel was not filed within the deadline to bring a motion to compel further responses to document requests, the court has no jurisdiction to grant the motion. Consequently, the court must deny the motion without reaching its merits. The court will also deny defendant’s request for sanctions against plaintiff, as defendant has not prevailed on his motion. Finally, the court intends to grant monetary sanctions against defendant for bringing an untimely and unjustified motion to compel. “ (Code Civ.

Proc., § 2031.310, subd. (h).) However, the court will reduce the amount of sanctions. Plaintiff seeks $8,330 against defendant and his counsel based on total attorney time of 17.15 hours billed at rates of $450 per hour and $575 per hour. The amount of time spent is excessive for this type of motion. The court will award sanctions against defendant in the amount of $2,250 based on five hours billed at $450 per hour. Plaintiff’s Motion for an OSC for Contempt: “The following acts or omissions in respect to a court of justice, or proceedings therein, are contempts of the authority of the court: ...

Disobedience of any lawful judgment, order, or process of the court.” (Code Civ. Proc., § 1209, subd. (a)(5).) “As a general rule, the elements of contempt include (1) 4

a valid order, (2) knowledge of the order, (3) ability to comply with the order, and (4) willful failure to comply with the order.” (In re Ivey (2000) 85 Cal.App.4th 793, 798, citations omitted.)

Here, there is no dispute that the court issued a valid order requiring defendant to pay plaintiff’s attorney’s fees of $12,625.50 on January 21, 2026. There is also no dispute that the order was served on defendant, and that he has knowledge of the order. In addition, there is no dispute that defendant has not paid the attorney’s fees as ordered by the court despite the passage of over four months since the order was made. However, while defendant does not deny that he has failed to pay fees as ordered, he contends that his failure to pay was not willful because he is unable to pay the full amount ordered by the court.

He claims that he is in financial distress due to the ongoing litigation and plaintiff’s alleged interference with his ability to sell his fruit crop, as well as his divorce. He alleges that he has offered to pay $500 per month to plaintiff, but that plaintiff has refused his offer and brought the present motion in a bad faith effort to drive him out of business. “Contempt is a proper sanction only for willful misconduct.” (Runnion v. Workers' Comp. Appeals Bd. (1997) 59 Cal.App.4th 277, 286, citation omitted.) “Wilfulness is merely ‘a purpose or willingness to commit the act, or make the omission’ in issue in the contempt hearing. ‘We would not construe “willful” as pertaining to contempt as meaning only a deliberate intention to disregard a court order, but rather as encompassing an indifferent disregard of the duty to obey it promptly.’” (In re Karpf (1970) 10 Cal.App.3d 355, 372, citations omitted.) “An element of an indirect contempt is that the person subject to the order has the ability to comply with the order.

When a contempt is classified as punitive in nature, the Fourteenth Amendment due process clause requires the moving party prove its case beyond a reasonable doubt.” (In re Cassil (1995) 37 Cal.App.4th 1081, 1087, citations omitted.) “It is not a contempt of court for a party to fail to pay a sum, however small, when it is not in his power so to do, and it does not help the case to recite in the order that he wilfully refuses.” (In re McCausland (1955) 130 Cal.App.2d 708, 709, quoting In re Cowden (1903) 139 Cal. 244, 245-246.) “While we admit that Courts are the exclusive judges of their own contempts, still, by our statute, a party cannot be imprisoned for neglecting or refusing to perform an act, where it appears that it is not in his power to perform the same.” (Adams v.

Haskell (1856) 6 Cal. 316, 318, citation omitted.) Here, while defendant claims that he is unable to pay the court-ordered attorney’s fees, he has not provided any evidence of his current financial condition that would establish that he has no ability to pay the fees. He does not state what assets or funds he has available to pay the fees, or whether he can obtain money to pay them through a loan, sale of assets, or some other means. He claims that he can only afford to pay $500 per month toward the fees, but he does not provide any further information to show why he cannot afford to pay more.

Defendant cannot simply ignore the court’s order for months, and then offer an alternative payment plan that would take over two years to pay off the fees. The court’s order is valid and enforceable, and defendant has not attempted to obtain reconsideration of the order, modify it, or appeal it. Thus, he is required to comply with the order, not to offer his own alternative plan for paying off the fees.

As a result, the court intends to issue the OSC re: contempt and order defendant to appear and show cause why he should not be held in contempt of the court’s order requiring him to pay plaintiff’s attorney’s fees. Demurrer: There is also a demurrer on calendar for May 7, 2026. However, it does not appear that any documents have been filed in support of the demurrer, or any opposition or reply. Therefore, it appears that the demurrer is not going forward, and the court will take the matter off calendar.

Defendant’s Motion to Strike First Amended Answer to Second Amended Cross- Complaint: Defendant moves to strike the 21st affirmative defense as an improper sham pleading because he claims that it includes factual allegations that directly contradict plaintiff’s prior judicial admission in plaintiff’s original answer to the SACC. Defendant points out that plaintiff’s 23rd affirmative defense alleged that defendant “lacks standing to seek injunctive relief because he terminated his relationship with Cross-Defendant after the 2022 harvest season and faces no threat of future harm.” (Answer to SACC, 23 rd Affirmative Defense.)

However, in its first amended answer to the SACC, plaintiff alleges in its 21st affirmative defense that “Cross-Defendant terminated his relationship with Cross- Defendant by materially and totally breaching the Sublicense Agreement and Marketing Agreement on or about July 8, 2023, when he diverted his crop to an unauthorized packer.” (First Amended Answer to SACC, 21st Affirmative Defense.) Defendant contends that the plaintiff cannot now allege that defendant breached the contracts in July 8, 2023 when it previously admitted that defendant terminated the agreements “after the 2022 harvest season.”

Thus, defendant concludes that the new 21st affirmative defense is a false and sham pleading, and it should be stricken.

Under Code of Civil Procedure section 436, “[t]he court may strike any irrelevant, false, or improper matter inserted in any pleading.” Here, defendant has moved to strike the 21st affirmative defense to the SACC under the sham pleading doctrine. “Under the sham pleading doctrine, plaintiffs are precluded from amending complaints to omit harmful allegations, without explanation, from previous complaints to avoid attacks raised in demurrers or motions for summary judgment. A noted commentator has explained, ‘Allegations in the original pleading that rendered it vulnerable to demurrer or other attack cannot simply be omitted without explanation in the amended pleading.

The policy against sham pleadings requires the pleader to explain satisfactorily any such omission.’” (Deveny v. Entropin, Inc. (2006) 139 Cal.App.4th 408, 425–426, citations and footnote omitted, italics in original.) “Thus, superseded pleadings may be used at trial as admissions against interest; however, the party who made the pleadings must be allowed to explain the changes. This general rule usually precludes summary judgment that relies on a superseded pleading. The sham pleading doctrine is not ‘intended to prevent honest complainants from correcting erroneous allegations ... or to prevent correction of ambiguous facts.’ Instead, it is intended to enable courts ‘to prevent an abuse of process.’” (Id. at p. 426, citations omitted.) “‘Generally, after an amended pleading has been filed, courts will disregard the original pleading.

However, an exception to this rule is found ... where an amended complaint attempts to avoid defects set forth in a prior complaint by ignoring them. The court may examine the prior complaint to ascertain whether the amended complaint is merely a sham.’ ... Moreover, any inconsistencies with prior pleadings must be explained; 6

if the pleader fails to do so, the court may disregard the inconsistent allegations. Accordingly, a court is ‘not bound to accept as true allegations contrary to factual allegations in former pleading in the same case.’” (Larson v. UHS of Rancho Springs, Inc. (2014) 230 Cal.App.4th 336, 343–344, citations omitted.) “[A]n answer which on its face states a good defense may be shown by extrinsic evidence (usually affidavits or declarations) to be false or sham. As the court stated in White Lighting Co. v.

Wolfson, ‘The motion to strike has traditionally been, and should continue to be, invoked to attack defects not apparent upon the face of the pleading.’ However, this power to strike is necessarily a limited one. The court does not decide the issues but only determines whether issues exist under pleadings offered in good faith. The answer will not be stricken if the defendant files an affidavit or declaration in support of his pleaded defense.” (Ford Motor Co. v. Superior Court (1971) 16 Cal.App.3d 442, 446, citations omitted.) “A different situation is presented when a motion is made to dismiss, as sham, a pleading which is good on its face, supported by facts outside the pleading.

A court should treat this motion as one for summary judgment and decide it on the basis of the requirements of Code of Civil Procedure section 437c.” (Ibid, citations omitted.) “Judicial admissions may be made in a pleading, by stipulation during trial, or by response to request for admission. Facts established by pleadings as judicial admissions ‘are conclusive concessions of the truth of those matters, are effectively removed as issues from the litigation, and may not be contradicted by the party whose pleadings are used against him or her.’ ‘[A] pleader cannot blow hot and cold as to the facts positively stated.’” (Myers v.

Trendwest Resorts, Inc. (2009) 178 Cal.App.4th 735, 746, citations and some quote marks omitted.) In the present case, defendant argues that plaintiff’s 21st affirmative defense is a sham pleading because it contradicts the allegations of its prior 23rd affirmative defense in the original answer to the SACC. However, it does not appear that the two defenses allege inconsistent facts, so the sham pleading doctrine does not apply here. Plaintiff originally alleged in the 23rd affirmative defense that “Cross-Complainant lacks standing to seek injunctive relief because he terminated his relationship with Cross- Defendant after the 2022 harvest season and faces no threat of future harm.” (Answer to SACC, 23rd Affirmative Defense.)

In the first amended answer, plaintiff alleges in its 21st affirmative defense that “Cross-Complaint terminated his relationship with Cross- Defendant by materially and totally breaching the Sublicense Agreement and Marketing Agreement on or about July 8, 2023, when he diverted his crop to an unauthorized packer.” (First Amended Answer to SACC, 21st Affirmative Defense.) While defendant contends that the plaintiff’s allegation in the original answer that defendant “terminated his relationship with [plaintiff] after the 2022 harvest season” is completely inconsistent with its current allegation that defendant beached the agreements “on or about July 8, 2023”, the two allegations are not inconsistent with each other.

July 8, 2023 is “after the 2022 harvest season”, so the allegation that defendant breached the agreements on July 8, 2023 is not inconsistent with the allegation that he terminated the contractual relationship with plaintiff “after the 2022 harvest season.” Defendant seems to read plaintiff’s allegation in the original answer as admitting that defendant terminated the contractual relationship at the end of the 2022 harvest season, immediately after the 2022 harvest season, or promptly after the season ended.

However, plaintiff did not allege that the termination occurred at the end of, immediately after, or promptly after the 2022 harvest season ended. It only alleged that the termination occurred at some point in time “after the 2022 harvest season”, which would include a termination by breach on July 8, 2023. Obviously, July 8, 2023 is after the 2022 harvest season. Thus, the allegation that defendant breached the contracts on July 8, 2023 is not inconsistent with the allegation that defendant terminated the contractual relationship after the 2022 harvest season.

Also, defendant seems to imply that plaintiff has admitted that defendant properly terminated the relationship at the end of the 2022 harvest season by giving written and timely notice of his intent to terminate the relationship. Again, however, plaintiff has only alleged that the defendant “terminated his relationship with [plaintiff] after the 2022 harvest season”, not that the defendant provided timely written notice of this intent to terminate as required under the contracts. Therefore, the allegation that defendant breached the agreements in July of 2023 is not inconsistent with the earlier allegation that defendant terminated the contractual relationship with plaintiff after the 2022 harvest season.

In addition, plaintiff has consistently alleged from the outset of the case that defendant breached the agreements in July of 2023, when he gave his fruit crop to an outside packer rather than giving it to plaintiff. For example, plaintiff’s complaint filed in August of 2023 alleges that defendant breached the agreements on July 8, 2023 when he gave his 2023 crop to Peters Family Farms for packing and allowing it to be sold by Mountain View to its customers without plaintiff’s consent. (Complaint, ¶ 11.)

Defendant has also admitted in its responses to discovery that he gave his 2023 crop to Mountain View. (Exhibits 4 and 5 to Plaintiff’s Compendium of Evidence in Opposition to Motion to Strike.) Thus, to the extent that defendant has argued that plaintiff’s 21st affirmative defense is inconsistent with its prior pleadings or other evidence, defendant is mistaken. The 21st affirmative defense is entirely consistent with plaintiff’s complaint, as well as defendant’s own admissions in discovery. As discussed above, the 21 st affirmative defense is also consistent with the allegations of the 23rd affirmative defense.

Therefore, the 21st affirmative defense is not a sham pleading, and the court intends to deny the motion to strike the 21st affirmative defense. Defendant’s Motion for Summary Judgment or Adjudication of Plaintiff’s Complaint: First, defendant argues that plaintiff has admitted that defendant terminated the contractual relationship between the parties “after the end of the 2022 harvest season”, and thus there was no contract for defendant to breach in July of 2023 when he sent his fruit to another packer and allowed it to be sold to another buyer.

However, defendant’s argument fails for the same reasons set forth above with regard to the motion to strike plaintiff’s first amended answer to the second amended cross-complaint. Contrary to defendant’s contention, plaintiff’s 23rd affirmative defense does not state that defendant terminated the contracts immediately after the 2022 harvest season, or that he terminated the contracts before July of 2023. Plaintiff’s answer merely states that defendant terminated the contractual relationship “after the 2022 harvest season”, which would include any time after the end of the 2022 season, including July of 2023.

Plaintiff has also consistently alleged in its other pleadings, including its original complaint and its first amended answer to the second amended cross-complaint, that the defendant breached the agreements on July 8, 2023, when he gave his fruit to 8

another packer and allowed it to be sold to another buyer without plaintiff’s consent. In addition, defendant has himself admitted that he sent his fruit to another packer in June of 2023 without plaintiff’s consent. (SACC, ¶ 82.) Defendant has also admitted that the first time he gave written notice of his intent to terminate the contracts was on July 28, 2023, three weeks after he gave his fruit to another packer. (Defendant’s Amended Responses to Plaintiff’s Form Interrogatories, Set One, No. 17.1.)

As a result, plaintiff has not admitted that the contract was terminated in 2022, and in fact plaintiff has consistently alleged and has presented evidence that defendant breached the contract in July of 2023. Therefore, defendant has not met his burden of showing that he is entitled to summary judgment on plaintiff’s claims because he terminated the contracts in 2022 at the end of the harvest season. Next, defendant has argued that plaintiff cannot prevail on its claims because plaintiff did not have an exclusive license to sell the Monalise White Nectarines, and thus it could not have entered into a valid sublicense with defendant to grow and sell the fruit.

Defendant points out that plaintiff has alleged that it has an exclusive license to grow and sell the Monalise White Nectarines in the United States, but it has refused to produce the license agreement with Star Fruits Diffusion S.A.S. Plaintiff claims the license agreement is subject to confidentiality and trade secret protection. (UMF Nos. 5, 7, 14, 16.) Defendant has filed a motion to compel plaintiff to produce the agreement, which is also set for hearing on May 7, 2026. (See discussion above regarding the motion to compel.)

Also, defendant alleges that the Monalise variety is not a federally protected variety of fruit, and it is not covered by a plant patent. (UMF Nos. 3, 12.) Therefore, defendant concludes that, since plaintiff has not produced the license agreement with Star Fruits, and since the fruit is not federally protected or patented, plaintiff cannot show that the sublicense agreement is valid and enforceable, and that the agreement fails for lack of consideration. Without a valid agreement to sublicense the fruit, defendant contends that plaintiff cannot prevail on its breach of contract and other related claims.

However, to the extent that defendant relies on affirmative defenses like lack of consideration, federal preemption of the contracts, lack of a valid license from Star Fruits, or unlawful contractual subject matter, defendant did not plead any affirmative defenses based on these theories in its answer to the complaint. The answer pleads 16 affirmative defenses, but none mentions lack of consideration, lack of a license for the fruit, or lack lawful subject matter for the agreement. (See Defendant’s Answer.)

A party cannot move for summary judgment or defend against a summary judgment based on claims or defenses not pled in the complaint or the answer. (Kendall v. Walker (2009) 181 Cal.App.4th 584, 598.) Here, defendant is relying on unpled affirmative defenses to support his summary judgment motion, which is improper. Therefore, the court will not grant summary judgment based on theories of unlawful subject matter, lack of federal licenses, lack of consideration, or lack of patent protection, as defendant did not raise these affirmative defenses in his answer.

In any event, even if defendant had pled affirmative defenses based on lack of federal certificates or patent protection, the lack of such protections would not render the underlying sublicense invalid or illegal. Parties are free to enter into a contract under state law even if they intended to have the subject of the contract be covered by a

federal patent and the patent is never granted. (Aronson v. Quick Point Pencil Co. (1979) 440 U.S. 257, 262.) “Commercial agreements traditionally are the domain of state law. State law is not displaced merely because the contract relates to intellectual property which may or may not be patentable; the states are free to regulate the use of such intellectual property in any manner not inconsistent with federal law.” (Ibid, citation omitted.) Here, defendant has not cited to any authorities showing that federal law preempted state contract law with regard to growing and marketing the fruit at issue in this case.

Thus, defendant has not shown that the parties were not free to enter into an agreement to grow and sell the fruit, even in the absence of federal patents or protections. The sublicense agreement does not expressly state that its validity is dependent on the existence or issuance of a patent for the fruit. It is only states that, “The Variety may be protected by sub-license agreements, plant patents, or trademark.” (Exhibit A to Complaint, Grower Test Agreement, Sub-license and Marketing Agreement Addendum, Exhibit A, Testing Agreement and Sublicense Terms, italics added.)

Therefore, it does not appear that the existence of plant patent or other federal protections or certifications were central to the agreement, or that the lack of such protections would cause the agreement to become invalid or illegal. In addition, while defendant argues that there was no consideration for the agreement because there was no federal protection for the fruit variety, he has failed to meet his burden of showing a lack of consideration. As discussed above, it does not appear that the existence of a patent or other federal protection was an essential aspect of the parties’ agreement.

In fact, federal protections such as patents are barely mentioned in the agreement. There was also ample other consideration for the bargain, as defendant received the right to grow and sell Monalise White Nectarines, and obtain rootstock from the sole source of the budwood for the fruit trees. (Complaint, ¶¶ 7, 9, and Exhibits A and B.) Having access to grow and sell a new type of fruit is clearly a form of valuable consideration for the agreement. Defendant agreed to pay plaintiff royalties in exchange for the right to grow and market the fruit, as well as agreeing to give his fruit only to packers approved by plaintiff, and to pay a commission to plaintiff. (Ibid.)

Thus, there was adequate consideration for the agreement. In addition, defendant performed under the agreements for four consecutive growing seasons without objection, which indicates that both parties believed that the agreement was supported by adequate consideration. Consequently, defendant has failed to show that the agreements are void for lack of consideration. Next, defendant has argued that plaintiff cannot prevail on its breach of contract claim because it has refused to produce the license agreement with Star Fruits, which defendant argues is essential to show that plaintiff had a right to sublicense the fruit to defendant.

Defendant cites to Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826 for the proposition that a defendant can obtain summary judgment by showing that plaintiff cannot establish one or more of the elements of its cause of action. (Aguilar, supra, at pp. 853-854.) In Aguilar, the California Supreme Court found that the defendant could prevail on summary judgment by “showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence...” (Id. at p. 854, citation omitted.)

Here, defendant claims that the existence of the underlying license agreement with Star Fruits is essential to show that the parties here entered into a valid sublicense agreement to grow and sell the fruit, and that, since plaintiff has not produced the 10

agreement, therefore it cannot prove an essential element of its claims. However, while there is no dispute that plaintiff has so far refused to produce the license agreement with Star Fruits due to trade secret and confidentiality claims, there is no reason to believe that the license agreement does not exist or that plaintiff does not possess and cannot reasonably obtain the agreement. In fact, both plaintiff and defendant seem to agree that the license agreement exists, but that plaintiff simply refuses to produce it.

To the extent that defendant contends that the agreement is important to defend against plaintiff’s claims or prove his cross-claims, the proper remedy would be to move to compel production of the agreement, not to move for summary judgment because plaintiff has not yet produced it. In any event, the fact that plaintiff has not produced the license agreement with Star Fruits does not mean that it cannot prove its claim for breach of the sublicense agreement. “[T]he elements of a cause of action for breach of contract are (1) the existence of the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v.

Goldman (2011) 51 Cal.4th 811, 821, citation omitted.) Here, there is no dispute that the parties entered into a sublicense agreement to grow and market the fruit. Plaintiff has also alleged that it performed under the sublicense agreement that provided defendant with rights to grow the fruit, that defendant breached the agreement by giving the fruit to a packer not authorized by plaintiff, and by allowing someone other than plaintiff to sell the fruit without paying any royalties to plaintiff.

The sublicense agreement is complete in itself, and thus plaintiff does not have to prove the existence of the underlying license agreement in order to prove that it has a valid contract with defendant regarding growing and selling the fruit. Therefore, plaintiff does not have to provide the license agreement in order to prove its breach of contract claim, and the court intends to deny the motion for summary adjudication of the breach of contract claim. Finally, the court intends to deny defendant’s motion for summary adjudication of the other causes of action in the complaint.

Defendant’s motion with regard to the second, third and fourth causes of action depends on the court granting summary adjudication of the first cause of action for breach of contract because defendant allegedly terminated the contracts in 2022. Since the court intends to deny the motion with regard to the first cause of action, it will also deny the motion with regard to the other causes of action. Plaintiff’s Motion for Summary Adjudication of Defendant’s Fourth and Fifth Cross- Claims: Plaintiff has met its burden of showing that the fourth and fifth cross-claims in defendant’s second amended cross-complaint are barred by the applicable statutes of limitation.

The fourth cause of action for conversion is subject to a three-year statute of limitation. (Code Civ. Proc., § 338, subd. (c)(1) [three-year statute for an action for taking, detaining, or injuring goods or chattels, including an action for the specific recovery of personal property].) “Under California law, the general rule is well established: ‘[T]he statute of limitations for conversion is triggered by the act of wrongfully taking property.’” (AmerUS Life Ins. Co. v. Bank of America, N.A. (2006) 143 Cal.App.4th 631, 639, citations omitted.)

Here, defendant’s conversion claim is based on the allegation that plaintiff improperly culled much of defendant’s nectarine crop and then sold it to another buyer 11

without paying defendant any of the sale proceeds. (UMF No. 2, SACC, ¶¶ 50, 115.) Defendant alleges that, “[o]n or about July 4, 2020, Mora visited Giumarra’s packing shed, and discovered culled Nectarines being placed in bins that were not designated as trash. Mora discovered that these culls were being sold to a cull collection company owned by Julian Hernandez. Mr. Hernandez reported to Mora that he consistently purchased culled fruit from Giumarra, including Mora’s Nectarines.” (SACC, ¶ 50.) “Upon discovery that Giumarra was selling Mora’s culled Nectarines and refusing to pay Mora for the culled Nectarines, Mora contacted Jeannine Martin, Giumarra’s Director of Sales, in order to report this fraudulent conduct.

On or about December 9, 2020, Mora had an in person meeting with Jeannine Martin, John Thiessen, Kevin Kehoe, and Lori Balkman, all employees of Giumarra, at Giumarra’s facilities to further discuss the fraudulent sales of the culled fruit. Martin apologized to Mora and indicated she would authorize a check for culled Nectarines; that check was never paid to Mora. Martin additionally promised Giumarra would have more oversight of the culled fruits, acknowledging that Nectarines were being sold without payment to Mora.

Following that meeting, the culled Nectarines continued to be sold without payment to Mora.” (Id. at ¶ 51.) “Mora has discovered that Giumarra has a standard operating procedure of selling culled fruit and not paying growers for the fruit.” (Id. at ¶ 52.) However, in his deposition, defendant stated that he first saw plaintiff improperly culling his fruit sometime between July 7 and July 12, 2020. (UMF No. 3, citing Mora depo., pp. 224:19 - 225:3.) He testified that he was “getting a very low pack out from the fruit that I was delivering to the packinghouse and my first intuition as a grower was to go visit the packinghouse and see what the heck was going on.

I walking into the packinghouse and observed people diverting my trash supposedly into different containers that were being sold.” (Mora depo., pp. 224:22 – 225:3.) Defendant spoke with representatives of Giumarra in December of 2020 or January of 2021 about the culling situation. (Id. at pp. 238:14-239:14.) Ms. Martin of Giumarra offered him money to “try to make things right.” (Id. at p. 239:24 – 240:12.) Giumarra gave him a check for around $1,700 to $2,000, but he never cashed it because he did not agree with that payout. (Id. at pp. 241:13 - 242:2.)

Later, another Giumarra representative offered to pay him $6,000, but he never received a check for that amount. (Id. at p. 243:11-25.) Defendant also testified that there was a significant difference in the packouts for 2021, and that the difference was “in a good way.” (Id. at p. 245:3-8.) He did not observe any more culling issues after the first time he saw the culling in July of 2020, although he was not allowed to visit the packinghouse again, so he “couldn’t tell you for sure that wasn’t a [cull] issue.” (Id. at p. 245:10-15.)

Thus, defendant admitted that he first observed the allegedly improper culling of his fruit sometime between July 4 and 12, 2020, and that he knew that his fruit was being set aside as “trash”, but then being sold to another buyer without paying him. He was upset enough about the situation to have at least two meetings with plaintiff’s representatives in late 2020 or early 2021, and they offered to pay him between $2,000 and $6,000 to “make things right.” As a result, plaintiff’s claim for conversion accrued sometime between July 4 and 12, 2020, and he needed to file his complaint by July 12, 2023.

However, plaintiff’s complaint was not filed until August 24, 2023, over a month

after the statute had run on the conversion claim. (UMF No. 8.) Consequently, plaintiff has met its burden of showing that defendant’s conversion claim is time-barred. Defendant argues that his claim is not time-barred because his claim did not accrue until November 30, 2020, when defendant failed to pay him the proceeds from the sale of the culled nectarines. He points out that the Marketing Agreement provides that plaintiff shall pay the grower the proceeds for any sale of culled fruit by November 30, 2020. (Marketing Agreement, § 14(a).)

Thus, defendant concludes that all of the elements of his conversion claim were not complete until November 30, 2020, when plaintiff failed to pay him for the culled fruit. However, a claim for conversion is based on the fact that the defendant improperly exercised dominion over the plaintiff’s personal property, not dominion over money that the defendant owed to the plaintiff. The mere failure to pay money owed under a contract is not conversion. (Kim v. Westmoore Partners, Inc. (2011) 201 Cal.App.4th 267, 284.) “A cause of action for conversion of money can be stated only where a defendant interferes with the plaintiff's possessory interest in a specific, identifiable sum, such as when a trustee or agent misappropriates the money entrusted to him. ‘ “Money cannot be the subject of a cause of action for conversion unless there is a specific, identifiable sum involved, such as where an agent accepts a sum of money to be paid to another and fails to make the payment.”’” (Ibid, citations omitted, italics in original.)

When a defendant fails to pay money owed on a contract, the plaintiff’s claim is for breach of contract, not a tort such as conversion. (Aas v. Superior Court (2002) 24 Cal.4th 627, 643.) “A person may not ordinarily recover in tort for the breach of duties that merely restate contractual obligations. Instead, ‘“[c]ourts will generally enforce the breach of a contractual promise through contract law, except when the actions that constitute the breach violate a social policy that merits the imposition of tort remedies.”’” (Ibid, citations omitted.)

Here, to the extent that defendant is seeking to recover money owed to him for the sale of the culled fruit pursuant to the terms of the Marketing Agreement, his claim is based on breach of contract rather than a tort like conversion. While he claims that plaintiff was essentially holding the money for him as his agent, he apparently admits that there was not a specific, readily identifiable sum of money that plaintiff was holding for him. The actual damages from the alleged conversion, if any, were caused when plaintiff improperly culled the fruit in July of 2020, not when plaintiff failed to pay defendant for the culled fruit in November of 2020.

Thus, defendant has not shown that the statute on his conversion claim started to run on November 30, 2020. Instead, the statute started to run in mid-July of 2020, when defendant first saw plaintiff’s employees improperly culling his fruit and putting it in bins to be sold to another buyer. Defendant has also argued that the delayed discovery rule applies here and prevents the statute from running, as plaintiff allegedly fraudulently concealed the fact that it was culling his fruit improperly and then failing to pay him for the fruit. “To the extent our courts have recognized a “discovery rule” exception to toll the statute [for conversion claims], it has only been when the defendant in a conversion action fraudulently conceals the relevant facts or where the defendant fails to disclose such facts in violation of his or her fiduciary duty to the plaintiff.

In those instances, ‘the statute of limitations does not commence to run until the aggrieved party discovers or ought to 13

have discovered the existence of the cause of action for conversion.’” (AmerUS Life Ins. Co. v. Bank of America, N.A., supra, 143 Cal.App.4th at p. 639, citations omitted.) Here, the delayed discovery rule does not assist defendant. While he argues that plaintiff fraudulently concealed its practice of culling and then selling his fruit, his own cross-complaint admits that he first learned that plaintiff was improperly culling his fruit and selling it without paying him in July of 2020. (SACC, ¶ 61.)

He confirmed in his deposition that he knew about the culling sometime between July 7 and 12, 2020, and he was upset enough about the practice that he met with plaintiff’s representatives on several occasions and they offered to pay him as much as $6,000 to “make things right.” (UMF Nos. 3, 4, 31, 32.) Thus, defendant was clearly aware of the fact that plaintiff was allegedly improperly culling his fruit and not paying him for it by mid-July of 2020. He has not presented any evidence that the improper culling continued after the 2020 season, and in fact he admitted that his packouts were significantly better “in a good way” after he complained about the culling in late 2020. (UMF Nos. 6, 7.)

As a result, defendant cannot rely on the delayed discovery rule, as he was aware of the facts underlying his conversion claim by mid-July of 2020, and his claim accrued at that time. Also, to the extent that defendant is relying on the continuing misconduct doctrine, he has admitted that his packouts significantly improved after he complained about the culling in late 2020 or early 2021, and that he is not aware of any further culling issues after the 2020 season. (UMF Nos. 6, 7.) Thus, there is no basis for his claim that plaintiff’s continuing misconduct delayed the accrual of his conversion claim.

Because the undisputed facts show that defendant’s conversion claim accrued no later than July 12, 2020, and since the complaint was not filed until August 24, 2023, defendant’s conversion claim is time-barred and the court intends to grant summary adjudication of the fourth cross-claim. The court will also grant summary adjudication of defendant’s fifth cross-claim for violation of Penal Code section 496, which is time-barred as well. There is a one-year statute for claims based on Penal Code section 496, which provides for mandatory treble damages in a civil action based on theft. (Code Civ.

Proc., § 340, subd. (a); Menefee v. Ostawari (1991) 228 Cal.App.3d 239, 243 [one-year statute applies to claims for mandatory treble damages].) Here, as discussed above, defendant has admitted that he first learned of the fact that plaintiff was allegedly culling his fruit improperly and selling it to another buyer without paying him in mid-July of 2020. (UMF Nos. 2-7.) He is not aware of any improper culling after the 2020 season, and in fact he observed a significant improvement in his packouts in 2021 after he complained about the culling. (UMF Nos. 6, 7.)

Therefore, defendant’s theft claim accrued in mid-July of 2020, and he needed to file his complaint within one year of that date. The complaint was not actually filed until August 24, 2023, over three years after the last alleged theft of his fruit. (UMF No. 8.) Defendant argues that he had no reason to suspect any wrongdoing by plaintiff at the time he observed the fruit being culled, so his theft claim did not accrue until after plaintiff withheld the funds for the sale of the culled fruit. However, defendant’s own cross-complaint as well as his deposition testimony clearly indicate that he suspected that plaintiff was improperly culling and selling his fruit without paying him in July of 2020.

He alleges that he saw plaintiff’s employees culling his fruit and putting it in containers to be sold to a different buyer in July of 2020. (SACC, ¶ 61.) Thus, he clearly suspected wrongdoing by plaintiff at the time. In fact, he was so upset about plaintiff’s culling practices that he complained to plaintiff, who apologized and offered to pay him up to $6,000 to “make things right.” (SACC, ¶ 62, UMF Nos. 31, 32.) He did not observe any further problems with culling after 2020. (UMF No. 34.) Therefore, defendant was on notice of plaintiff’s alleged theft of his fruit by mid- July of 2020, and he needed to file his complaint within one year of that date. Since he did not do so, his theft claim is time-barred, and the court intends to grant summary adjudication of the fifth cross-claim in the second amended cross-complaint.

Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: JS on 5/5/2026. (Judge’s initials) (Date)

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