Excerpt: ...22, defendant caused to be served upon plaintiff a verified response to the Requests for Admissions. As it relates to RFA Nos 4-7, 9, and 13-22 (that plaintiff did no wrong and was not comparatively at fault for the accident), defendant responded as follows: “Admit. Discovery and investigation are continuing.” On 11/16/22, defendant sat for a deposition, at which time he reportedly opined that plaintiff may have been driving too fast and that...

Excerpt: ...tion is procedurally defective. Pursuant to Calaveras County Superior Court Local Rule 3.3.7, “all matters noticed for the Law & Motion calendar shall include” specified language in the Notice of Motion, and “failure to include this language in the notice may be a basis for the Court to deny the motion.” Although plaintiff is representing himself, he is still required to adhere to all the procedural requirements for law and motion; Moreov...

Excerpt: ...ocking” plaintiffs' use of the disputed easement, and to affirmatively remove barriers to that access. Since the sliding scale analysis associated with preliminary injunctions includes consideration of affirmative defenses (see Aiuto v. City & County of San Francisco (2012) 201 Cal.App.4th 1347, 1355), and given that there are motions set next week attacking the answer filed on 01/05/23, the hearing on this application is better suited for cons...

Excerpt: ...ound In November of 2007, Gus Zamora (father, now deceased), Dave Zamora (son and acting trustee of father's trust) and Clyde Clapp (Gus' close friend) pooled together their respective resources to acquire APN 073- 044-006, commonly known as 1521 Country View Drive in Valley Springs. Although all three were to share equally in the $138,000 down payment, Dave or Gus (the pleading is unclear) advanced Clyde's share. The balance of the purchase pric...

Excerpt: ...ure to include this language in the notice may be a basis for the Court to deny the motion.” Defendant did not include this required language. Second, it is not clear from defendant's general appearance what its legal status is. A properly-formed company/entity cannot appear “in pro per” in litigation in a court of general jurisdiction, and cannot appear through an officer or agent who is not an attorney. (Merco Constr. Engineers, Inc. v. M...

Excerpt: ... to the story, warranting a review of this tortured history that is Gold Strike Heights. Pertinent Background In 2002, the subdivision's developer – Westwind Development, Inc. (hereinafter “Westwind”) – recorded CC&Rs describing Gold Strike Heights as a senior citizen housing development consisting of a Phase 1 (45 “buildable” lots with ordinary common areas) and a Phase 2 (43 “buildable” lots with ordinary common areas and a recr...

Excerpt: ...opposition to the motion appears in the court file, although it does appear that plaintiff and creditor‐assignee were provided notice by mail of today's motion. Nevertheless, the absence of opposition does not immediately equate with a grant of the relief requested. Initially, the Court notes moving defendant failed to comply with Local Rule 3.3.7's required notice mandated to be included in the notice of motion. Said local rule additionally pr...

Excerpt: ...tility District (hereinafter “EBMUD”) to both the first (general negligence) and second (premises liability) causes of action, as well as to the distinct count within the second cause of action for “dangerous condition of public property.” The overarching theme of the demurrer is that the claims are not well‐pled, and that statutory immunities prohibit plaintiff from maintaining a personal injury cause of action against this particular ...

Excerpt: ... impact, of any, of defendants' pending appeal (C097344) of this Court's 09/16/22 order denying the defense motion to set aside Referee Foley's decision. Perfecting an appeal stays proceedings in the trial court which are embraced in or affected by the issue currently up on appeal. (CCP §916(a).) The purpose of the automatic stay provision is to protect the appellate court's jurisdiction by preserving the status quo until the appeal is decided. ...

Excerpt: ...n. Pursuant to CCP §1281.4, once a dispute is referred to contractual arbitration, the case is generally stayed “until an arbitration is had in accordance with the order to arbitrate or until such earlier time as the court specifies.” Since the arbitration is now complete, plaintiff's request to lift the stay is GRANTED. Pursuant to CCP §1286, once a motion to confirm an arbitration award is duly served and filed, “the court shall confirm...

Excerpt: ...ch were previously stayed pending resolution of a related action in bankruptcy court: 1. Motion to expunge lis pendens filed by defendant IRBC2 Properties; 2. Demurrer by: a. Orion Financial and Connie Riggsby (1st – 5 th COAs); b. IRBC2 Properties and Park Tree Investments (1st – 4 th COAs); c. FCI Lender Services (1st – 7 th COAs); d. Real Time Resolutions (6th COA); and e. 2005 Residential Trust 3‐2 by Wilmington Savings Fund Society (...

Excerpt: ... Based on the amortization schedule provided by escrow, plaintiffs were not due to be paid in full until after two of three plaintiffs have reached the age of 107. Plaintiffs allege in their Complaint that many of the terms “understood” by the parties did not make it into the Residential Purchase Agreement actually signed by the parties, such as defendants' obligation to secure financing to pay off the promissory note in due course. There are...

Excerpt: ...tween co‐defendants Oakdale Irrigation District and the South San Joaquin Irrigation District. Tri‐Dam holds a federal license to operate and maintain a hydroelectric project, which effectively gives it authority to regulate events and activities affecting Lake Tulloch's shoreline. ▪ In 1986, plaintiff acquired ownership of the subject property (APN 098‐022‐003), a 1.2‐acre lot in a newly‐released section of Tract 378 in Lake Tulloc...

Excerpt: ...ffs to secure a quiet title judgment via default; and the other by defendants to set aside the entry of default. Given the unique nature of default proceedings in quiet title actions, a quick primer/reminder is warranted. In a quiet title action, after a defendant defaults, the plaintiff must prove the merits of its claim and the grounds for the relief sought with admissible evidence at a live hearing in open court, and the defendant has a due pr...

Excerpt: ...in the Notice of Motion, and “failure to include this language in the notice may be a basis for the Court to deny the motion.” The notice of motion herein fails to include the required warning regarding tentative rulings, necessitating a DENIAL of the motion without prejudice to refile, to the extent it otherwise is timely and appropriate pursuant to relevant statutes. Moreover, while there is no substantive opposition to the motion, plaintif...

Excerpt: ...d complaint on 08/03/21. On 09/20/21, plaintiff requested entry of default and a clerk's judgment based upon the amount in controversy, with no request for prejudgment interest or legal fees. That same day, the clerk entered default and a judgment thereon. Nine months later, on 06/07/22, plaintiff filed its first motion to have that default judgment set aside. The first motion was denied on procedural grounds. The second motion was denied on the ...

Excerpt: ...is another motion to deem a settlement to have been made in good faith, this time by Mozingo Construction. Mozingo would not be dismissed from the action whichever way the Court decides (given Reed's express indemnity cause of action). Unlike the earlier motions and applications, this pending motion is opposed. This state has a strong public policy promoting civil settlements. To this end, parties who settle disputes in good faith are immunized f...

Excerpt: ...at (1) the complaint states facts sufficient to constitute a viable cause of action against the defendant and (2) the answer does not state facts sufficient to constitute a defense to that cause of action. (CCP §438(c); see Templo v. State of California (2018) 24 Cal.App.5th 730, 735; Bezirdjian v. O'Reilly (2010) 183 Cal.App.4th 316, 321.) The grounds for the motion must appear on face of pleadings (the complaint and the answer), or from facts ...

Excerpt: ...sed on the amortization schedule provided by escrow, plaintiffs were not due to be paid in full until after two of three plaintiffs have reached the age of 107. Plaintiffs allege in their Complaint that many of the terms “understood” by the parties did not make it into the Residential Purchase Agreement actually signed by the parties, such as defendants' obligation to secure financing to pay off the promissory note in due course. There are al...

Excerpt: ... dissolution of long‐term (60 yr) marriage. RFO re spousal support and property control were denied, but Court ordered David to give Carolyn equalizing payments of $1,200/month. Carolyn died before any ruling on support or community property. Dismissed. 20EA44667 04/09/20 David's petition for protection (EARO) from son‐ in‐law Rodd. Court granted 3 yr RO w/stay away. RO terminated early due to David's passing. 20DV44888 08/24/20 Carolyn's p...

Excerpt: ...tute permitting this claim to be made, on the ground that it constitutes an unauthorized gift of public funds. Subsumed within the same argument is the related contention that Legislative revival of the cause of action for limitations purposes does not retroactively forgive plaintiff's failure to timely file a government tort claim. The demurrer and motion to strike require for success what could be described as a trial court going rouge, for no ...

Excerpt: ...tute permitting this claim to be made, on the ground that it constitutes an unauthorized gift of public funds. Subsumed within the same argument is the related contention that Legislative revival of the cause of action for limitations purposes does not retroactively forgive plaintiff's failure to timely file a government tort claim. The demurrer and motion to strike require for success what could be described as a trial court going rouge, for no ...

Excerpt: ...l Relief Act. Plaintiff objects. Pursuant to 50 USC §3932, any civil litigant currently serving in the military is entitled to a stay of the action “for a period of not less than 90 days” upon a showing (1) that the servicemember's “duty requirements materially affect the servicemember's ability to appear,” and (2) that “military leave is not authorized for the servicemember at the time.” The first element can be established by “a ...

Excerpt: ...relation to the earlier ruling on demurrer (entered 07/22/22), the right to challenge assignments set forth in Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, was limited to post‐foreclosure, and only for pre‐foreclosure assignments void ab initio. (See also Morris v. JPMorgan Chase Bank, N.A. (2022) 78 Cal.App.5th 279.) Since the operative pleading was deficient, and the related Notice of Lis pendens defective, the previous clou...

Excerpt: ...without resort to judicial intervention, and in fact brokered a settlement agreement regarding the second (breach of oral contract) cause of action (though issues with that settlement apparently persist). There is apparently an agreement to buy out or sell the property, which is presently alleged to be under consensual forbearance from a nonjudicial foreclosure sale. Before the Court this day is the specially‐set hearing on plaintiff's applicat...