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191 Results

Location: Calaveras x
2021.12.07 Motion to Strike 154
Location: Calaveras
Judge: Sanders, David M
Hearing Date: 2021.12.07
Excerpt: ...ivate nuisance. Pursuant to CCP §§ 435 and 436, a party may move for an order striking from a pleading “any irrelevant, false or improper matter” or “any part of any pleading not drawn in conformity” with laws, rules or orders. A motion to strike is to be used sparingly, and only as is warranted to excision averments that have no basis in the action or which are not recoverable as a matter of law. See Ferraro v. Camarlinghi (2008) 161 C...
2021.12.03 Motion to Deem RFAs Admitted 420
Location: Calaveras
Judge: Sanders, David M
Hearing Date: 2021.12.03
Excerpt: ... date for compliance on 08/30/21. Defendant did not timely (or ever) serve responses. (See Freshman Decl Para 3.) Pursuant to CCP §2033.280(b), the party propounding RFAs may “move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction.” The trial court “shall” grant the motion unless it finds that the party to whom the requests for ...
2021.12.03 Motion for Leave to File Complaint 004
Location: Calaveras
Judge: Sanders, David M
Hearing Date: 2021.12.03
Excerpt: ...ure to include this language in the notice may be a basis for the Court to deny the motion.” Although defendant is representing himself, he is still required to adhere to all the procedural requirements for law and motion, including all local rules. Based on defendant's failure to include the required language, the motion is DENIED, without prejudice to refile, to the extent it otherwise is timely and appropriate pursuant to relevant statutes. ...
2021.12.03 Motion for Judgment on the Pleadings 077
Location: Calaveras
Judge: Sanders, David M
Hearing Date: 2021.12.03
Excerpt: ...er “P&J”). According to the allegations of the operative pleading, both Callison and P&J had vested interests in the referenced real property transaction. On 10/06/21, new counsel for Callison filed a Request for Dismissal on behalf of P&J, despite there being no documentation in the court file that P&J ever retained Attorney Jeffrey in this action or that said counsel had in fact substituted as that party's representative. The dismissal was ...
2021.12.03 Motion for Attorney Fees 810
Location: Calaveras
Judge: Sanders, David M
Hearing Date: 2021.12.03
Excerpt: ...ng party in a civil action may recover, as a matter of right, attorney's fees when authorized by contract or statute. The “prevailing party” is the party with a net monetary recovery or for whom judgment is entered. (CCP §1032(a)(4).) There is no question here that defendant is the prevailing party, having secured both a judgment in its favor (see 06/18/18 Judgment), as well as in the instant matter an unqualified affirmance before the Third...
2021.11.19 Motion to Set Aside Default Judgment 405
Location: Calaveras
Judge: Sanders, David M
Hearing Date: 2021.11.19
Excerpt: ..., plaintiffs commenced the within action, naming “Sherry Crum” as a codefendant. On 09/09/20, plaintiffs effectuated substituted service upon “Sherry Crum” by leaving a copy of the summons and complaint with “Thomas Crum (an occupant)”. On 10/27/20, plaintiffs filed and served a Request for Entry of Judgment against “Sherry Jeffcrum” to the same address used for substituted service; Default was entered. On 07/01/21, this Court –...
2021.11.19 Motion for Leave to File SAC 103
Location: Calaveras
Judge: Sanders, David M
Hearing Date: 2021.11.19
Excerpt: ...s a desire to specify additional building standards. To amend a pleading already at issue, the sponsoring party is required first to seek leave of court by way of noticed motion. (CCP §473(a)(1).) Motions for leave are to follow the regular notice requirements contained in CCP §1005(b). Pursuant to California Rules of Court, Rule 3.1324, the moving party must: a) Specify in the moving papers by page, paragraph, and line number the allegations p...
2021.11.12 Objection to Violation of Stipulation, Request for Sanctions 171
Location: Calaveras
Judge: Sanders, David M
Hearing Date: 2021.11.12
Excerpt: ... defective because there is no indication in the moving papers that petitioner served a copy of the motion and waited the required 21 days “safe harbor” before filing this motion. (See CCP §128.7(c)(1); Primo Hospitality Group, Inc. v. Haney (2019) 37 Cal.App.5th 165, 173‐174; Martorana v. Marlin & Saltzman (2009) 175 Cal.App.4th 685, 698.) The safe harbor period is mandatory, and the full 21 days must be provided absent a court order shor...
2021.11.12 Motion to Enforce Settlement 331
Location: Calaveras
Judge: Sanders, David M
Hearing Date: 2021.11.12
Excerpt: ...l be scheduled. According to plaintiffs' counsel, the parties also agreed that if the survey showed encroachments, “they would be removed.” On 05/21/19, defendant Carol Gordon passed away. The oral settlement was never reduced to writing. On 04/10/20, plaintiffs filed a “Creditor's Claim” in a related Heggstad petition for the ostensible purpose of protecting the oral settlement. (See 19PR8204.) On 05/04/20, the estate tendered to plainti...
2021.11.05 Motion for Change of Venue 139
Location: Calaveras
Judge: Sanders, David M
Hearing Date: 2021.11.05
Excerpt: ...ere they are sued. Venue is not jurisdictional in the fundamental sense, though certain actions can “only” be brought in specific counties. The test largely begins with whether the main relief sought in the original operative pleading relates to rights in realty (local) or personalty (transitory). Venue is to be determined at the outset of the action based on the averments set forth in the operative pleading when the motion to transfer is fir...
2021.11.05 Motion to Consolidate Complaints for Quiet Title 758
Location: Calaveras
Judge: Sanders, David M
Hearing Date: 2021.11.05
Excerpt: ...g Claim, (hereinafter referred to as “subject property”). Before the Court is an unopposed motion to consolidate this civil action with a nearlyidentical civil action filed by plaintiffs (21CV45366). Both lawsuits involve claims of adverse possession to the same property by the same putative owners against many of the same defendants. Both complaints were verified (though only the 2021 lawsuit was verified by both Gilbert and David). The case...
2021.11.05 Motion to Deem Matters Admitted 502
Location: Calaveras
Judge: Sanders, David M
Hearing Date: 2021.11.05
Excerpt: ...erved upon defendant Requests for Admission, Set One, by regular US Mail at defendant's service address. Pursuant to CCP §§ 1013 and 2033.250, defendant had 35 days from the mailing to provide a verified written response. Defendant did not timely (or ever) serve responses. (See Kenosian Declaration, Paragraph 5.) Pursuant to CCP §2033.280(b), the party propounding RFAs may “move for an order that the genuineness of any documents and the trut...
2021.11.05 Motion to Expunge Lis Pendens 713
Location: Calaveras
Judge: Sanders, David M
Hearing Date: 2021.11.05
Excerpt: ...cial Notice is granted pursuant to Evidence Code Sections 452 and 453 as to all eight offered exhibits; see 18CV43734 and 19CV44032). (This is a renewed motion, the prior having been denied without prejudice for failing to comply with Local Rule 3.3.7.) Pursuant to CCP §405.30, anyone with an interest in real property may move a court for an order expunging a lis pendens. A court “shall” grant a motion to expunge if either of the following c...
2021.11.05 Motion to Transfer Action, for Attorney Fees 397
Location: Calaveras
Judge: Sanders, David M
Hearing Date: 2021.11.05
Excerpt: ... provide defendant (homeowner) with landscape services for a fixed amount of $9,480.00. According to plaintiff, this was a heavily discounted estimate, offered on defendant's promise that she had more future projects. Apparently, those “other” projects never came to fruition, and the former working relationship degenerated. On 09/05/20, defendant filed a small claims action (apparently in Contra Costa or Alameda County) against plaintiff and ...
2021.10.29 Motion to Consolidate Actions for Pre-Trial Purposes 103
Location: Calaveras
Judge: Sanders, David M
Hearing Date: 2021.10.29
Excerpt: ...s, and duplication. As an initial matter, through his support memorandum, Vorhees “requests that Special Master Sarah Burke manage both the Valley Springs and Voorhees matters.” (Support Memo at 6:16‐17.) Voorhees did not, however, include this relief, or the grounds therefore, in the notice of motion. As such, the matter is not properly before the Court through the present motion. (See CCP §1010: “the notice of a motion, other than for ...
2021.10.29 Motion to Compel Responses, Production of Docs 854
Location: Calaveras
Judge: Sanders, David M
Hearing Date: 2021.10.29
Excerpt: ...ct discovery. Moving party has failed to comply with Local Rule 3.3.7, enacted January 1, 2018, in that the Notice of Motion does not include the mandatory language regarding the Court's tentative ruling system. Pursuant to said local rule, lack of compliance provides a specific ground to deny any such procedurally‐deficient motion. Based solely upon moving party's failure to comply with Local Rule 3.3.7, the motion is DENIED without prejudice ...
2021.10.29 Motion for Judgment on the Pleadings 407
Location: Calaveras
Judge: Sanders, David M
Hearing Date: 2021.10.29
Excerpt: ...ion. A Plaintiff may only move for Judgment on the Pleadings pursuant to Code of Civil Procedure section 438, on grounds “that the complaint states facts sufficient to constitute a cause or causes of action against the defendant and the answer does not state facts sufficient to constitute a defense to the complaint.” (Cal Code Civ. Proc., § 438, subd. (c)(1)(A).) “The grounds for motion provided for in this section shall appear on the face...
2021.10.15 Motion to Strike, Answer, to File Amended Complaint, to Continue Trial Date 298
Location: Calaveras
Judge: Sanders, David M
Hearing Date: 2021.10.15
Excerpt: ...ted, the Court finds that KDI is a suspended corporation. KDI appears to concede the point by failing to file an opposition to the motion. A suspended corporation may not prosecute or defend an action in a California court. (See Ransome‐Crummey Co. v. Super. Ct. (1922) 188 Cal. 393, 396‐97.) Based on the foregoing, the motion is GRANTED. The clerk shall provide notice of this ruling to the parties forthwith. PMZ is to prepare a formal Order p...
2021.10.01 Motion to Compel Further Responses 129
Location: Calaveras
Judge: Sanders, David M
Hearing Date: 2021.10.01
Excerpt: ...esponses are incomplete and evasive. Defendant further requests the Court impose monetary sanctions pursuant to Code of Civil Procedure sections 2030.300 (d) and 2031.310 (h), against Plaintiff and his counsel in the amount of $500. Plaintiff's request for judicial notice is GRANTED. The Court takes judicial notice of the Complaint filed in this action. A. INTERROGATORIES A party propounding interrogatories has the burden of filing a motion to co...
2021.10.01 Demurrer 174
Location: Calaveras
Judge: Sanders, David M
Hearing Date: 2021.10.01
Excerpt: ...pecially without a motion required by Rule of Court 8.36.” Plaintiff's request for judicial notice is GRANTED. The Court takes judicial notice of the subject matters thereof. The gravamen of Defendant's demurrer is that the entire action must be dismissed because the original Plaintiff was not the real party in interest, and further because the original Plaintiff lacked the capacity to maintain an action in California. (See Demurrer at 2:15‐2...
2021.09.24 Motion to Dismiss 112
Location: Calaveras
Judge: Sanders, David M
Hearing Date: 2021.09.24
Excerpt: ...o comply with Local Rule 3.3.7, the motion is DENIED, without prejudice to refile, to the extent it otherwise is timely and appropriate pursuant to relevant statutes. However, the Court additionally notes that all authorities cited by Defendant are to the Federal Rules of Civil Procedure, the Federal Rules of Evidence, and/or federal appellate cases, none of which are applicable to a state court proceeding such as this; even had defendant complie...
2021.09.24 Demurrer 171
Location: Calaveras
Judge: Sanders, David M
Hearing Date: 2021.09.24
Excerpt: ...d to substitute a third amended petition upon conferring with his client but to date has not signed a stipulation regarding same. Concerned about statutory time limits, respondent filed the present demurrer. No opposition has been filed to the demurrer. The Court interprets the uncontroverted assertion that petitioner's counsel agreed to file a third amended petition, in conjunction with the lack of filed opposition to the demurrer, as a tacit ad...
2021.09.03 Motion to Compel Responses 221
Location: Calaveras
Judge: Sanders, David M
Hearing Date: 2021.09.03
Excerpt: ... voluntarily comply with the aforementioned discovery requests.” (Notice of Motion at 1:24‐2:7.) Plaintiffs concede that they have failed to timely produce responses to the subject discovery requests. (See Opposition at 2:8‐14.) Plaintiffs therefore do not oppose the present motion. (See Id. at 2:8‐9.) The Court finds good cause for issuing an order compelling Plaintiffs to produce responses to Defendant's Form Interrogatories Sets One, S...
2021.09.03 Demurrer 843
Location: Calaveras
Judge: Sanders, David M
Hearing Date: 2021.09.03
Excerpt: ...intiff's Complaint on the ground that it fails to state facts sufficient to constitute a cause of action against any of them for Fraudulent Conveyance. (See id. at 2:6‐7.) Defendants first argue that all three causes of action fail as to Defendant Laughlin Trust because a trust cannot be sued. This is true for “an express trust [that is] merely a relationship by which one person or entity holds property for the benefit of some other person or...
2021.08.20 Motion for Leave to File Amended Complaint and Substitute New Class Reps 460
Location: Calaveras
Judge: Sanders, David M
Hearing Date: 2021.08.20
Excerpt: ...n and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of motion.” (Carlton v. Quint (2000) 77 Cal.App.4th 690, 697, quoting Tate v. Super. Ct. (1975) 45 Cal.App.3d 925, 930.) “This rule applies even when no notice was given at all.” (Ibid.) The Notice of Motion asserts that Plaintiffs move, pursuant to Code of Civil Procedure sections 473, subdivision (a)(1) and 382, for leave to ...
2021.08.13 Motion for Attorney Fees 132
Location: Calaveras
Judge: Sanders, David M
Hearing Date: 2021.08.13
Excerpt: ...ly to have evidentiary support and/or contained denials of contentions that are not warranted based on the evidence.1 Plaintiff also moves for an award of sanctions against Defendant's counsel Ashley Gonzalez, pursuant to Section 128.7, on the same asserted grounds. As to Plaintiff's request pursuant to section 426.16, “[i]f the court finds that a special motion to strike [brought pursuant to this section] is frivolous or is solely intended to ...
2021.08.06 Motion to Sever Trial of Complaint from Interpleader Complaint, for Trial Preference 212
Location: Calaveras
Judge: Sanders, David M
Hearing Date: 2021.08.06
Excerpt: ...ocedure Section 1048 governs severance of trial based on causes of action.1 “The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action, including a cause of action asserted in a cross‐complaint, or of any separate issue or of any number of causes of action or issues, preserving the right of trial by jury required by the...
2021.08.06 Petition for Writ of Mandate 275
Location: Calaveras
Judge: Sanders, David M
Hearing Date: 2021.08.06
Excerpt: ...gal non‐ conforming use; [and] (b) direct the [Board] to grant the appeal on the grounds that the Angels Gun Club's activities on [the subject parcels of real property] have expanded and [therefore] no longer constitute a legal non‐conforming use….” (Second Amended Petition (SAP) at 8:22‐27.) “Administrative mandamus under section 1094.5 is appropriate to inquire ‘into the validity of any final administrative order or decision made ...
2021.07.30 Motion for Leave to Amend FAC 119
Location: Calaveras
Judge: Sanders, David M
Hearing Date: 2021.07.30
Excerpt: ...int (Proposed SAC). “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; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any term...
2021.07.23 Motion to Compel Arbitration and Stay Further Proceedings 384
Location: Calaveras
Judge: Sanders, David M
Hearing Date: 2021.07.23
Excerpt: ...the written agreement at issue in the litigation contains a mandatory arbitration provision for which no exception applies. California law strongly favors arbitration. (Prima Donna Development Corp. v. Wells Fargo Bank, N.A. (2019) 42 Cal.App.5th 22, 35 (Prima Donna).) A proceeding to compel arbitration is, in essence, a suit in equity to compel specific performance of a contract. (California Teachers Assn. v. Governing Bd. (1984) 161 Cal.App.3d ...
2021.07.23 Demurrer 365
Location: Calaveras
Judge: Sanders, David M
Hearing Date: 2021.07.23
Excerpt: ...Civil Procedure section 430.10 (a), on the grounds that the action is moot. A party may demurrer to a CCP 1085 petition for writ of mandate (CCP §1089.) In ruling on a demurrer, the Court must accept as true all allegations of fact contained in the petition. (Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 998.) The Court must also accept as true facts that may be inferred from those expressly alleged. (Cundiff v. GTE Cal., Inc. (200...
2021.07.02 Motion to Compel Further Responses 844
Location: Calaveras
Judge: Sanders, David M
Hearing Date: 2021.07.02
Excerpt: ...oud moves, pursuant to Code of Civil Procedure sections 2030.300, 2031.310, and 2031.320, for an ordering requiring Defendant Victor Vieira to: (1) provide further, complete, verified, objection‐free responses to Form Interrogatories Nos. 7.1 through 7.3; (2) provide further, complete, verified, objectionfree responses to Special Interrogatories Nos. 1 and 15; and (3) provide further, complete, verified objection‐ free responses and documents...
2021.07.02 Motion for Summary Judgment, Adjudication, to Compel Deposition of PMQ 976
Location: Calaveras
Judge: Sanders, David M
Hearing Date: 2021.07.02
Excerpt: ...itations on discovery conducted by Plaintiff. Specifically, “Defendant requests the Court issue a protective order limiting questioning to a maximum of four hours, directing Plaintiff's counsel to prioritize areas of inquiry needed to oppose [Defendant's pending Motion for Summary Judgment], and limiting the questioning to the valid topics of inquiry not previously covered in the first day of PMQ deposition. (See Motion at 2:7‐11.) Defendant ...
2021.07.02 Demurrer 171
Location: Calaveras
Judge: Sanders, David M
Hearing Date: 2021.07.02
Excerpt: ...n. Respondent further demurs to the “purported claim for relief for breach of the Brown Act…on the ground that it fails to state facts sufficient to constitute a cause of action, in that Petitioner's claim is not timely and fails to allege facts constituting a breach of the Brown Act's statutory provisions.” (See Demurrer at 2:21‐24.) A party may demurrer to a petition, brought under Code of Civil Procedure section 1085, for writ of manda...
2021.06.25 Demurrer 668
Location: Calaveras
Judge: Sanders, David M
Hearing Date: 2021.06.25
Excerpt: ...at the Court will not enforce such a contract. (See id. at 2:24‐28.) A complaint must contain “facts constituting the cause of action.” (Code Civ. Proc., § 425.10, subd. (a)(1).) Where it does not, the party against whom the complaint has been filed may object by demurrer. (See id. At §430.10, subd. (e).) A demurrer is treated as “admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or la...
2021.06.18 Motion to Recover Costs 474
Location: Calaveras
Judge: Sanders, David M
Hearing Date: 2021.06.18
Excerpt: ...lleged in the Petition for Inspection and Abatement Warrant (Petition). City fails to identify any authority by which this Court may make such an order. The Court agrees with City's assertion that Government Code section 38773.5 authorizes City to adopt an ordinance establishing “a procedure for the abatement of a nuisance and make the cost of abatement of a nuisance upon a parcel of land a special assessment against that parcel.” (Gov. Code,...
2021.06.04 Motion to Set Aside Entry of Default 905
Location: Calaveras
Judge: Sanders, David M
Hearing Date: 2021.06.04
Excerpt: ...r. Peters so moves on the grounds that the default was entered as a result of his mistake of fact and/or excusable neglect. No opposition appears in the Court's file. The Court finds from the evidence presented that Mr. Peters was under a good faith belief that he had timely filed a pleading in response to the Complaint. (See Peters' Declaration at ¶¶ 5 6.) The Court had ordered this pleading stricken, as to Mr. Peters only, based on Mr. Peters...
2021.06.04 Motion to Compel Further Responses 365
Location: Calaveras
Judge: Sanders, David M
Hearing Date: 2021.06.04
Excerpt: ...d 88. The motion is GRANTED. Plaintiffs' request for sanction is DENIED. A. General Discussion “In the…context of a request to produce documents, a party who seeks to compel production must show ‘good cause' for the request (§ 2031, subd. (l)) – but where…there is no privilege issue or claim of attorney work product, that burden is met simply by a fact‐specific showing of relevance.” (Glenfed Development Corp. v. Super. Ct. (1997) ...
2021.05.21 Motion Consolidate for Trial Only 119
Location: Calaveras
Judge: Sanders, David M
Hearing Date: 2021.05.21
Excerpt: ...mber 18, 2019. Although no trial date has been set, plaintiff filed this motion on April 27, 2021. Plaintiff's Request for Judicial Notice is GRANTED as to Exhibits 1, 2, and 3, pursuant to Evidence Code sections 452 and 453. Code of Civil Procedure §1048(a) provides that “[w]hen actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actio...
2021.05.21 Motion for Summary Judgment, Adjudication 909
Location: Calaveras
Judge: Sanders, David M
Hearing Date: 2021.05.21
Excerpt: ...defendant Hanford has not complied with Local Rule 3.3.7 enacted January 1, 2018, by failing to include the mandatory language in the notice of motion regarding the Court's tentative ruling system. Pursuant to said local rule, lack of compliance provides a specific ground to deny any such procedurally‐ deficient motion. Based solely upon cross‐defendant Hanford's failure to comply with Local Rule 3.3.7, the motion is DENIED without prejudice...
2021.05.21 Motion for Judgment on the Pleadings, to Dismiss 112
Location: Calaveras
Judge: Sanders, David M
Hearing Date: 2021.05.21
Excerpt: ...dmitted he was issued the subject credit card, he was to repay the principal amount and finance charges, he received monthly statements, and he does not dispute the amount owed. Defendant filed this motion on March 25, 2021. Plaintiff's Request for Judicial Notice was GRANTED as to Exhibits 1 and 2 pursuant to Evidence Code section 452(d) on March 29, 2021. As this is a debt collection case in which plaintiff provided sufficient evidence as to th...
2021.05.07 Special Motion to Strike 132
Location: Calaveras
Judge: Sanders, David M
Hearing Date: 2021.05.07
Excerpt: ...bing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly....
2021.04.23 Motion to Strike Claim 083
Location: Calaveras
Judge: Sanders, David M
Hearing Date: 2021.04.23
Excerpt: ...k to strike her claims as untimely. Health & Safety Code §11488.5(a)(1), provides, in pertinent part, that “[a]ny person claiming an interest in the property seized pursuant to Section 11488 may, unless for good cause shown the court extends the time for filing, at any time within 30 days . . . after receipt of action notice, file with the superior court of the county in which the defendant has been charged with the underlying or related crimi...
2021.04.23 Demurrer 160
Location: Calaveras
Judge: Sanders, David M
Hearing Date: 2021.04.23
Excerpt: ...or failure to comply with Local Rule 3.3.7. On March 29, 2021, defendant refiled the general and special demurrer to the fourth cause of action on the grounds that plaintiff failed to state facts sufficient to constitute a viable cause of action. Defendant's request for judicial notice as to plaintiff's original Complaint, plaintiff's First Amended Complaint, and plaintiff's Second Amended Complaint, pursuant to Evidence Code sections 452 and 453...
2021.04.09 Motion for Terminating Sanctions 876
Location: Calaveras
Judge: Sanders, David M
Hearing Date: 2021.04.09
Excerpt: ...n filed a motion to compel that the Court granted on December 11, 2020, and ordered plaintiff to fully answer both sets of interrogatories and produce all requested documents (included proper verification) by the close of business on January 8, 2021. On December 21, 2020, Mr. Vitton's responses to both sets of interrogatories and request for production of documents were found at the front door of Ms. Johnson's attorney's office. The responses wer...
2021.04.09 Demurrer 554
Location: Calaveras
Judge: Sanders, David M
Hearing Date: 2021.04.09
Excerpt: ...acts necessary to establish each element of the cause of action pleaded. (Committee on Children's TV, Inc. v General Foods Corp. (1983) 35 Cal.3d 197, 212.) A pleading does not sufficiently state a cause of action when any facts necessary to establish an essential element of a cause of action are missing. (Baldwin v Marina City Props., Inc. (1978) 79 Cal.App.3d 393, 410.) Although plaintiff incorporated by reference all prior paragraphs of the co...
2021.03.26 Demurrer 160
Location: Calaveras
Judge: Sanders, David M
Hearing Date: 2021.03.26
Excerpt: ...t complied with Local Rule 3.3.7 enacted January 1, 2018, by failing to include the mandatory language in the notice of motion regarding the Court's tentative ruling system. Pursuant to said local rule, lack of compliance provides a specific ground to deny any such procedurally‐deficient motion. Based solely upon defendant's failure to comply with Local Rule 3.3.7, the demurrer is OVERRULED, without prejudice to refile, to the extent it otherwi...
2021.03.19 Petition to Compel Arbitration 987
Location: Calaveras
Judge: Sanders, David M
Hearing Date: 2021.03.19
Excerpt: ...Vazquez, Melba C. Atty: Carlson Law Group; Foster Garvy Pc Tentative Ruling: Defendants contend that the binding arbitration clause of the Residential Purchase Agreement entered into on or about July 26, 2020, compels that process be ordered in lieu of these court proceedings; plaintiff opposes largely on procedural grounds. While the language of the agreement provides a provision to compel binding arbitration, there is a condition precedent, in ...
2021.03.05 Demurrer, Motion to Strike 302
Location: Calaveras
Judge: Sanders, David M
Hearing Date: 2021.03.05
Excerpt: ...r the plaintiff to allege its own construction of the contract. As long as the complaint does not place a clearly erroneous construction on the provisions of the contract, in passing upon the sufficiency of the complaint, the judge must accept as correct the plaintiff's allegations as to the meaning of the contract. (Rutherford Holdings, LLC v Plaza Del Rey (2014) 223 Cal.App. 4th 221, 229.) Both parties agree Business and Professions Code §7159...
2021.02.26 Application for Good Faith Settlement 718
Location: Calaveras
Judge: Sanders, David M
Hearing Date: 2021.02.26
Excerpt: ... On January 11, 2021, defendants Coyle filed this motion contesting Peninsula's application. Defendants Coyle erroneously assert Peninsula bears the burden to prove this a good faith settlement, contrary to statutory authority as California Code of Civil Procedure §877.6(d) provides the “party asserting the lack of good faith shall have the burden of proof on that issue.” The California Supreme Court in Tech‐Bilt, Inc. v Woodword‐Clyde &...

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