Excerpt: ...da Potier on be half of Plaintiffs Genesis PVB; 3NT Management, LLC; and Craig Bordon. * A Demurrer to the Second Amended Complaint, was partially sustained and partially overruled. Attorney Jasun Molinelli of Hanson Bridgett LLP filed an Answer, for Defendants George Gr afer; Raquel Grafer; George 7820, LLC; George 7820, Inc.; Raquel 1331, LLC; and Two Grafers Management, LLC [May 23, 2019]. * A Cross complaint was filed [May 23, 2019] on beha...

Excerpt: ...ue to unnecessar y delay in seeking the amendment, the court may refuse permission to file an amended pleading. CrossDefendant argues that Cross- Complainant has unjustifiably delayed the request and that actual prejudice exists. ln considering the questions of unnecessary delay and prejudice to cross -defendant, the court previously was persuaded that it is necessary to include all family members on the title to the real property in the pleadi...

Excerpt: ...arty to comp lete their tasks with no harassment. On May 3, 2023, the parties executed and filed a Stipulation and Order formalizing the agreement. An enforceable settlement agreement under Code of Civil Procedure (CCP) §664.6 must either be entered into orally before a court or be in writing and signed by the parties. (S ee In re Marriage of A ssemi (1994) 7 Cal.4th 896, 905.) These alternative requirements aim to minimize misunderstandings. D...

Excerpt: ...ther the alle gations in the 5AC, “fairly describe what [the] entity is alleged to have done.” (Stockett v. Association of Cal. Water Agencies Joint Powers Ins. Authority (2004) 34 Cal.4th 441, 446.) While a government claim need not match the specificity of a pleading in a civil action, it must still provide a reasonable account of what the entity is alleged to have done. When a civil action follows the rejection of a government claim, the ...

Excerpt: ... pay all escrow fees an d carry back the entire purchase price (minus $1,000) as a promissory note with only 3% interest. Based on the amortization schedule provided by escrow, plaintiffs were not due to be paid in full until after two of three plaintiffs had reached the age of 1 07. Plaintiffs allege in their Complaint that many of the terms “understood" by the parties did not make it into the Residential Purchase Agreement (RPA) signed by...

Excerpt: ...plaintiff's cause of ac tion and raises the legal issue, regardless of the existence of triable issues of fact, of whether the complaint states a cause of action. The standard of review for a motion for judgment on the pleadings is the same as that for a general demurrer. The pl eadings are to be treated as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. “We review the complaint ...

Excerpt: ...sen concerning t he survey described in the settlement. To summarize, plaintiff's surveyor first provided a thirty -foot easement centered on the existing easement then, after receiving defendant's objections, reduced the width to eighteen feet. Defendant nevertheless refus es to execute and allow the recording of the Deed of Easement, wanting the width of the entire linear easement surveyed and reflected in the deed. An enforceable settlement ...

Excerpt: ...d for the Law & Motion calendar shall include the following language in the notice: 3.3.7 Tentative Rulings (Repealed Eff. 7/1/06; As amended 1/1/18) All parties appearing on the Law and Motion calendar shall utilize the tentative ruling system. Tentative Rulings are av ailable by 2:00 p.m. on the court day preceding the scheduled hearing and can be accessed either through the court's website or by telephoning 209- 754-6285. The tentative ruling ...

Excerpt: ...ge is limited to the "four comers" of the pleading (which includes exhibits attached and incorporated therein), or from matters outside the pleading which are judicially noticeable. The complaint is read as a whole. Material facts properly pleaded are assumed true, but conte ntions, deductions or conclusions of fact/law are not. In general a pleading is adequate if it contains a reasonably precise statement of the ultimate facts, in ordin...

Excerpt: ...never agreed to, or intended, between the Parties. On October 10, 2024, Special Interrogatories, Set Two, were served on defendant. By letter to defense counsel dated December 5, 2023, plaintiff demanded that answers (without objection) and extended the date to Decembe r 19, 2023. When defense counsel was relieved, plaintiff further extended the time to respond to the discovery to January 26, 2024. This motion was filed on February 9. 2024. To d...

Excerpt: ...� The latest cross -complaint was filed after a January 19, 2024, hearing where the Court granted leave to file the Fourth Amended Cross -Complaint. Cross - defendant argues for reconsideration of this ruling because cross -complainant had inexcusably delayed the request, that actual prejudice to the parties exists, and procedurally that facts in support of the motion were improperly included in the reply brief instead of the moving pleadings. ...

Excerpt: ...ties LLC. v Foster in Calaveras County Superior Court Case No.20 UD13121.” (Motion for Leave to File Amended Answer, 2:10 -15.) Courts have long exercised liberality in permitting amendments to pleadings, particularly amendments to answers. Permalab - Metalab Equipment Corp. v. Maryland Cas. Co. (1972) 25 Cal.App.3rd 465, 472. Defendants' remedy is to request leave of the court to amend their answer to assert the defenses. " If either party...

Excerpt: ...imary grounds fo r the motions are the unenforceability of an illegal contract, i.e., unpermitted cannabis cultivation. Defendant contends that he is entitled to summary judgment/adjudication because plaintiff cannot recover on any of the causes of action stated in the C omplaint (Breach Of Oral Contract, Breach Of Written Contract, Common Count: Goods and Services Rendered, Intentional Misrepresentation, Negligent Misrepresentation, and False Pr...

Excerpt: ...ide a default or default judgment on such terms as may be just and to allow the defendant to defend the action on a finding that the defendant's motion to set aside the default or default judgment was made within the period permitted by CCP §  473.5(a), and that defendant 's lack of actual notice of the action in time to defend was not caused by his or her avoidance of service of summons or inexcusable neglect. An evaluation of an attorney...

Excerpt: ...ame a participatin g mental health and substance abuse provider in the defendant's network. Plaintiff alleges that defendant improperly terminated the agreement and therefore plaintiff's participating provider status. Defendant has moved for an order compelling all claims to arbitration and stay court proceedings under the Federal Arbitration Act (“FAA”) and the terms of the arbitration clause of the parties' agreement. Defendant makes three ...

Excerpt: ...the inclusion of the following language on all matters noticed for the Law & Motion calendar: Pursuant to Local Rule 3.3.7, the Court will make a tentative ruling on the merits of this matter by 2:00 p.m. the court day before the hearing. The complete text of the tentative ruling may be accessed on the Court's website or by calling 209 -754- 6285 and listening to the recorded tentative ruling. If you do not call all other parties and the Court by...

Excerpt: ... argue that Lambert entitles them to the expungement of the recorded mechanic's lien for two reasons: (1) the lien is unjustiÞed because defendant was not licensed during the subject construction project; and (2) the amount of the lien, is overstated (and therefore unjustiÞed). A Lambert motion to remove a mechanic's lien is recognized as a device that allows the property owner to obtain speedy relief from an unjustiÞed lien, or a lien of an u...

Excerpt: ...o separate discovery motions brought by plainti
¯. On October 11 2023 plainti
¯ served second set of form interrogatories second set of special interrogatories second set of requests for admission and second set of document production requests to defendant who has not responded to these discovery requests requested an extension of time to respond or contacted plainti
¯'s counsel (Initial Motion). Plainti
¯'s 330-page Second Motion soug...

Excerpt: ...ion and viability. Specifically, defendants claim that plaintiff has engaged in a pattern of collecting rent from various Park renters and entering into new rental agreements purporting to let spaces she is not legally entitled to lease, interfering with Park financial obligations, such as payments and payroll, and that plaintiff intends to continue taking those rent or lease payments. The motion is based on a request for judicial notice, declara...

Excerpt: ...ing commerce." (9 U.S.C. S 2.) The US Supreme Court has interpreted the FDA's application broadly, stating that the FAA is a "body of substantive law enforceable in both state and federal courts." (Perry v. Thomas, (1987) 482 U.S. 483, 489 [citing Southland Corp. v. Keating (1984) 465 U.S. 1, 11—12]. Here, the arbitration agreements signed by each plaintiff expressly provide that the FAA governs their terms and that they evidence a transaction ...

Excerpt: .... (Code of Civil Procedure 5430.30(a).) Objections to a complaint may be made on grounds including the court lacking subject matter jurisdiction of the cause of action alleged, and the complaint not stating facts sufficient to constitute a cause of action. (CCP. S 430.10.) "Where written documents are the foundation of an action and are attached to the complaint and incorporated therein by reference, they become a part of the complaint and may be...

Excerpt: ...that the trial of any issue or any part thereof shall precede the trial of any other issue or any part thereof in the case." Additionally, CCP S 1048(b) allows the court to order a separate trial of any cause of action, any separate issue, or any number of causes of action or issues "in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy . "As the cases explain, the objective of th...

Excerpt: ...tion of a class action, a fee refund, and a declaration that an element of defendant's fee is invalid. Defendant has demurred pursuant to Code of Civil Procedure section 430.10 (e), contending the second amended complaint fails to state facts sufficient to constitute a cause of acton in that they are barred by the applicable statute of limitations outlined in Government Code section 53759 (a), and asserting that the Court has no jurisdiction over...

Excerpt: ...ught by plaintiff. On October 11, 2023, plaintiff served second set of form interrogatories, second set of special interrogatories, second set of requests for admission, and second set of document production requests to defendant who has not responded to these discovery requests, requested an extension of time to respond, or contacted plaintiff's counsel (Initial Motion). The 330-page Second Motion seeks to compel further responses to the supplem...

Excerpt: ...). During the deposition, the deponent made it clear that he would not answer any questions regarding the purpose of his meetings and communications with Carolyn or Francille Peters (Carolyn's daughter whom Mr. Cottrell says was authorized to speak for Carolyn) unless a court ordered him to do so. The Separate Statement filed in conjunction with this motion, sets out five questions where Mr. Cottrell was instructed not to answer the question: 1. ...

Excerpt: ...he plaintiff must plead facts showing two elements: (1) the defendant has subjected an elder to statutorily defined physical abuse, neglect or financial abuse; and (2) the defendant acted with recklessness, malice, oppression, or fraud in the commission of the abuse. (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 407.) "The plaintiff must allege (and ultimately prove by clear and convinc:ing evidence) facts establishi...

Excerpt: ...te motions brought by plaintiff/cross-defendant: 1. Motion to Strike Cross-complaint; 2. Demurrer to Cross-complaint; 3. Demurrer to Answer; 4. Demurrer to Cross-complaint; and 5. Demurrer to Answer. Notices of Nan-opposition have been filed on each as defendant/cross-complainant has did not file any opposition or response. The court is entitled to consider that lack of opposition to be an admission that the demurrers and motions to strike are me...

Excerpt: ...ard of attorney's fees is a mandatory form of relief regardless of whether the plaintiff is awarded any other form of relief (Arace v. Medico Investments, LLC (2020) 48 Cal. App. 5th 977.) Similarly, a trial court's award of attorney's fees is reviewed for an abuse of discretion, and the appellate court will not disturb the trial court's judgment unless it is clearly wrong (See Meridian Financial Services, Inc. v. Phan (2021) 67 Cal. App. 5th 657...

Excerpt: ...cs was the holder of a right-to-apply for a commercial cannabis cultivation permit, a limited number of which have been issued and acknowledged by Calaveras County. (See Calaveras County Code of Ordinances, tit. 17, art. 2, Ch. 17.95.) Plaintiff argues that the right-to-apply is a government "franchise" that has substantial value and is transferable (i.e., saleable). In this matter, plaintiff sold GC Organics the subject righto-apply before the p...

Excerpt: ...ach cause of action stated therein. A demurrer presents an issue of law regarding the sufficiency of the allegations set forth in the complaint. The challenge is limited to the "four corners" of the pleading (which includes exhibits attached and incorporated therein), or from matters outside the pleading which are judicially noticeable. The complaint is read as a whole. Material facts properly pleaded are assumed true, but contentions, deductions...

Excerpt: ...rom representation of defendant Initially, the Court notes moving party failed to include the mandatory notce language of Local Rule 3.3.7 (adopted 1/1/18) which provides: Pursuant to Local Rule 3.3.7, the Court will make a tentative ruling on the merits of this matter by 2m p.m. the court day before the hearing. The complete text of the tentative ruing may be accessed on the Court's website or by calling 209-754-5285 and listening to the recorde...

Excerpt: ...07.03. Plaintiff Smith seeks to enjoin WolfSmith from transferring assets or monies to defendant Wolfman. REQUEST FOR STAY Plaintiff filed a Request for Dismissal of the Fifth Cause of Action for Dissolution of Limited Liability Company, on October 12, 2023, thus rendering the Request for Mandatory stay MOOT; on that basis, the Mohon For stay is DENIED. ORDER to SHOW CAUSE and MOTION for PRELIMINARY INJUNCTION The general rule concerning pleading...

Excerpt: ...aud occurred. A vague inclusion of terms contained in the second amended complaint such as: "under the false pretense that false promises," "intentional representations," and/or "The fraud of Defendants, and each of them, was and is malicious, oppressive, despicable, and justifies the recovery of punitive and exemplary damages in amounts according to proof" does not provide the requisite specificity. The effect of this general rule is twofold: (1...

Excerpt: ...challenges the imposition and collection of portions of water rates charged to customers. The plaintiff seeks a certification of class action, a fee refund and a declaration that an element of the UPIJD fee is invalid. Defendant UPUD has demurred pursuant to Code of Civil Prc„cedure section 430.10 (e), alleging plaintiff fails to state facts suffcient to constitute a cause of action in that the contentions are barred by the applicable statute o...

Excerpt: ... and special interrogatories. Although the practice of filing commingled motions for further responses is generally frowned upon, a review of the papers reveals a relatively simple solution. As for the merits, a review of the papers on file reveals that defendants' written responses are not A party to special interrogatories has an obligation to provide responses which are "as complete and straightforward" as pssible, which obligates the party to...

Excerpt: ...udicaton because neither of the two causes of action stated in the operative First Amended Complaint (negligence and premises liability) can succeed against it. According to UPC, it did not owe plaintiff any duty of care to protect him from injuries caused by diving into a submerged boulder because: 1. UPC had no control over the water level in the lake, and thus had no ability to warn or guard against a boulder that became invisible; 2. plaintif...

Excerpt: ...nt on co-defendant Fox Realty and Management Co. by leaving a copy of the papers with Valerie Slagle — who is reported to be assistant to Colin Lightfoot, owner and principal of Fox Realty and Management Co, and she also is Fox' registered agent for service of process. Fox does not dispute receiving actual notice via the summons. On 10/18/22, plaintiff effectuated personal service of the summons and complaint on codefendant Cathy Nitchey. She w...

Excerpt: ...edure SS 512.060 and 515.010, a writ of possession "shall" issue if (1) the plaintiff has established the probable valid-ty of its claim to possession of tangible property and (2) the plaintiff has provided an undertaking of not less than twice the value of defendant's interest, if any, in the property. To establish probable validity, plaintiff must show that it is "more likely than not" that the plaintiff will obtain a judgment against the defen...

Excerpt: ...ny service; instead, the bill appears to be based on Electric Rule 17.2. Before the Court is a demurrer to the operative Complaint, which includes a challenge to each cause of action stated therein. A demurrer presents an issue of law regarding the sufficiency of the allegations set forth in the complaint. The challenge is limited to the "four corners" of the pleading (which includes exhibits attached and incorporated therein), or from matters ou...

Excerpt: ...ed at the operative First Amended Complaint, and all five causes of action stated therein. Short of the merits, this Court noted that defense counsel has failed to faithfully discharge his statutory obligaton to file with the demurrer a declaration attesting to a meet and confer. The declaration filed fails to identify how the meet and confer conference took place, and falls to provide any details relating thereto. Given the date of service for t...

Excerpt: ...-party for more than double what plaintiffs offered. Before the Court is plaintiffs' motion for entry of a default judgment (specific performance), and defendant's motion to set aside entry of default. Neither motion is opposed. Procedurally, the Court will decide first on defendant's motion for reasons that will become clear in the ruling. Defendant seeks discretionary relief under CCP 5473. To qualify for discretionary relief, the party seeking...

Excerpt: ...Plaintiff seeks permission to add new defendants and new causes of action. There is, at present, no trial date set. To amend a pleading already at issue, the sponsoring party is required first to seek leave of court by way of noticed motion. (CCP Pursuant to CRC 3.1324, the moving party must: (a) specify in the moving papers by page, paragraph, and line number the allegations proposed to be added and/or deleted; and (b) include with the moving pa...

Excerpt: ...ndant, the prayer for punitive damages is not drawn in conformity with the laws due to a lack of sufficient averments. Contrary to popular folklore, there is no heightened pleading requirement for a punt-ive damage prayer based on malice or oppression. However, in light of the future evidentiary burden facing plaintiff, it is reasonable to consider that the averments should at least permit a factfinder to have "no substantial doubt" that defendan...

Excerpt: ... "the Ranch"). The property was previously burdened by a 16.5 foot prescriptive easement belonging to Linkletter Properties for ingress and egress to adjacent property (with the right to erect a fence with a gate), but plaintiff maintained a co-equal easement over a similar strip for cattle grazing and herding. According to plaintiff, the dueling co-equal easements were unburdened by judgment, merger and eventual extinguishment. Despite the loss ...

Excerpt: ...ime to file an amended pleading as a matter of right has lapsed (CCP 5472), leaving this Court with the requisite task of deciding whether defendant's objection to the Complaint is well-taken, and if any method of cure is feasible. Pertinent Background In or about December of 2019, the brother of Charles Laguna (hereinafter "Charles" for ease of reference) purchased property on Black Oak Drive next door to Elizabeth Mary Edwards (hereinafter "dec...

Excerpt: ...plication indicates that his previously-disclosed mailing address (P.O. Box 1592, San Andreas) is no longer valid. Nonjudicial forfeiture proceedings must comport with various due process protections, including proper notice to persons who claim a lawful possessory interest in the property seized. (Ramirez v. Tulare County District Attorney's Office (2017) 9 Cal.App.5th 911, 925-930; Cuevas v. Superior Court (2013) 221 Cal.App.4th 1312, 1320-1327...

Excerpt: ...Limit Partners LLC to be registered with the Secretary of State using plaintffs' home address as its principal physical address. On 04/21/23, plaintiffs reported the mail and false filing to the Sheriff's Department. They also reported same to the Attorney General, the Secretary of State, and the Postmaster General. According to plaintiffs, their prompt reaction was guided in large part from a fear that they might (again) be the victims of some i...

Excerpt: ...ttle during trial. Motions in limine minimize sidebar conferences and disruptions during trial, enhance efficiency of the trial process, reduce the need for special limiting instructions, and — in some cases — reduce the number of appellate concerns.l There are two types of motons in limine: evidentiary, and Defendant's motion is evidentiary, which is presumptively authorized by Evidence Code 5353 (objection waived if not timely raised). (See...

Excerpt: ...73, 21UD13416, and 21CH45278). Before the court is a motion by Attorney Loving to withdraw from his ongoing representation of Smith in cases 21CV45132, 21 UD13373, and 21 UD13416. No opposition is noted from Smith himself. The motion filed in 210013373 is MOOT in light of the recently filed substitution of attorney. An attorney may withdraw as counsel of record if the client breaches the agreement to pay fees, insists on pursuing invalid claims o...

Excerpt: ...crossaction for conversion. Cross-complainant also wishes to augment the amount in controversy. Service appears to be proper. No opposition appears in the Court's registry of action. To amend a pleading already at issue, the sponsoring party is required first to seek leave of court by way of noticed motion. (CCP S473(a)(1).) Pursuant to CRC 3.1324, the moving party must: (a) specify in the moving papers by page, paragraph, and line number the all...

Excerpt: ...to special interrogatories; 3. Defendant's motion to compel an initial response to RPDs; 4. Defendant's moton to have the RFAs deemed admitted. In addition to discovery orders, defendant also seeks a total of $1,600.00 in sanctions. One of the motions is technically deficient in that it combines three distinct motions in one. (See CCP 51003.) Pursuant to Govt Code 570617, defendant was required to tender $60 for each motion seeking an order even ...

Excerpt: ...icaton because neither of the two causes of action stated in the operative First Amended Complaint (negligence and premises liability) can succeed against it. According to UPC, it did not owe plaintiff any duty of care to protect him from injuries caused by diving into a submerged boulder 1. UPC had no control over the water level in the lake, and thus had no ability to warn or guard against a boulder that became invisible; 2. Plaintiff's injury ...

Excerpt: ...report was taken. The investigating officer noted that the golf cart operator was at fault for failing to set the parking brake when leaving the cart at the top of an embankment. The officer further noted in the report that the golf cart was insured through the California Fair Service Authority. On 12/09/22, petitioners submitted to the County of Calaveras an application to present a late claim for damages associated with the gold cart incident. ...

Excerpt: ...re. (City of Stockton v. superior court 42 cal.4th 730, 738; E.M. v. LA Unified school Dist. (2011) 194 cal.App.4th 736, 748; Westcon Construction Corp. v. County of Sacramento (2007) 152 Cal.App.4th 183, 2Cü)+ As such, no suit for money or damages may be maintained against a governmental entity unless a formal claim has been presented to such entity within six months of accrual of the cause of acton. (Govt. Code 5911.2; Munoz v. State of Calif....

Excerpt: ... seek leave of court byway of noticed motion. (CCP Pursuant to CRC 3.1324, the moving party must: (a) specify in the moving papers by page, paragraph, and line number the allegations proposed to be added and/or deleted; and (b) include with the moving papers a copy of the proposed amended pleading and a declaration specifying (1) the effect of the amendment(s); (2) why the amendment is necessary and proper; (3) when the facts giving rise to the a...

Excerpt: ...property"). There is a related action (17CV42758). Before the Court is a moton by plaintiff for leave to file a First Amended Complaint. No opposition is noted, though it is further noted that plaintiffs have not served any of the defendants and apparently intend to seek permission to serve by publication at some point into the future. Since plaintiffs "may amend [their] pleading once without leave of the court at any time before the answer, demu...

Excerpt: ...s for admissions. Plaintiff also seeks monetary sanctions. There is no opposition on file. First, the discovery motion is technically deficient in that it combines three distinct motions in one. (See CCP 51003.) Pursuant to Govt Code 570617, plaintiff was required to tender $60 for each motion seeking an order even if the motions are heard together. In other words, although one commingled memorandum is permissible (CRC 3.1112(c)), counsel still h...

Excerpt: ... if the client breaches the agreement to pay fees, insists on pursuing invalid claims or an illegal course of conduct, or when other conduct by the client renders it unreasonably difficult for the attorney to do his job, including when there is a breakdown in the attorney-client relationship. Ifthe attorney does not have the client's consent, he or she must proceed by way of noticed motion consistent with CCP SS 284 and 1005, CRPC 1.16 and CRC 3....

Excerpt: ...possession of tangible property and (2) the plaintiff has provided an undertaking of not less than twice the value of defendant's interest, if any, in the property. To establish probable validity, plaintiff must show that it is "more likely than not" that the plaintiff will obtain a judgment against the defendant on the possession claim. (See People v. Superior Court (2002) 27 Cal.4th 888, 919.) To meet this standard, the plaintiff must show (1) ...

Excerpt: ...ackground (borrowed from prior ruling) Defendant Tri-Dam is a cooperative venture between co-defendants Oakdale Irrigation District and the South San Joaquin Irrigation District (collectively referred to as "TriDam"). Tri- Dam holds a federal license to operate and maintain a hydroelectric project between the Tulloch Dam, the Donells Dam and the Beardsley Dam, and encompassing the Tulloch Reservoir, Tulloch Penstock, Tulloch Powerhouse and Tulloc...

Excerpt: ...ndar shall include" specified language in the Notice of Motion pertaining to the Court's tentative ruling procedure, and "failure to include this language in the notice may be a basis for the Court to deny the motion." The pending motion fails to include the required language, subjecting it to summary denial. However, since the issue will no doubt resurface, and again noting plaintiff did not oppose the motion, the Court elects to reach the merit...

Excerpt: ...fore the Court this day is a moton by plaintiff to strike the unverified answer. The original notice for the motion was defective. See Local Rule 3.3.7. A timely amendment was served and filed. No opposition is noted, though defendant did recently attempt to cure the defect by filing a stand-alone verification (which the clerk's office rejected). Pursuant to CCP SS 435 and 436, a party may move for an order striking a pleading "not drawn in confo...

Excerpt: ...fornia Rule of Court 3.1324, the moving party must specify in the moving papers by page, paragraph, and line number the allegations proposed to be added and/or deleted; and include with the moving papers a declaration specifying (1) the effect of the amendment(s); (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and (4) the reasons why the request was not made earlier. The s...

Excerpt: ...ents and now seek to have this Court enforce the settlement provisions pursuant to CCP Section 654.6 (which is explicitly incorporated in the agreement in paragraph 18). Although subsequent filed declarations reflect that the necessary payments have now been made, making the request to reduce the owed amounts to civil judgments moot, the Court notes all such payments were made after filing and service of the instant motion. Paragraph 18 of the se...

Excerpt: ... of these motions (even though the service was technically imperfect). There is no opposition filed, which suggests to this Court that either the amount in controversy does not warrant the effort, or that plaintiff concedes the points raised in the motons. Either way, an independent review is required. Defendant's motion to "dismiss" is actually a motion for judgment on the pleadings. It is defective since the moton lacks a 5439 meet and confer d...

Excerpt: ...ed) in 21PR8424 (see Minute Order dtd 10/28/22). That order occurred prior to consolidation, and was based largely on the fact that 21PR8424 only involved an alleged oral promise to Manuel, not the alleged financial irregularities at issue in the other related actions. Also before the Court this day is a motion to substitute a new personal representative. Motion to Quash Business Record An allegation has been made that, before her passing, Caroly...

Excerpt: ...relief). As this Court has previously noted, plaintiff's general theory of the lawsuit is that California TD Specialists did not have legal authority to conduct, on behalf of Residential Trust 3-2 by Wilmington Savings Fund Society FSB, a nonjudicial foreclosure sale of plaintiff's residence because (1) one of the entities in the chain (IRBC-2) was misidentified and (2) assignments within the chain were untimely. Because the issue of lawful stand...

Excerpt: ...lanned gated residential community off Highway 26 in Valley Springs, CA. Phase 1 was to include 130 homes along Cosgrove Creek, as well as the common area with a clubhouse, tennis courts and a swimming pool. Phase 2 was to include 82 additional homes. Phase 3 was to include another 171 homes. Eventually Phases 1 and 2 were combined into a single Phase, but with designations Unit 1 and Unit 2. In 1997, Ryan Voorhees incorporated CRV Enterprises (h...

Excerpt: ...wer, a motion to strike the operative answer, and an application for a preliminary injunction to bar defendants from “blocking” plaintiffs' use of the disputed easement (and to affirmatively remove barriers to that access.) Pertinent Background In June of 1965, Charles and Cleo Stoddard split a parcel they owned by deeding parts of it away as follows: ▪ Parcel 1: to Jim and Dorryl Stoddard (grantors' son and daughter-in- law), the northwest...

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: ...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: ...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: ... 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: ...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: ...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: ... 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: ...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...

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: ...eflected in the various legal proceedings between them. (See 20CH45068, 21UD13373, 21UD13416, and 21CH45278.) In this seemingly straightforward civil action, plaintiff alleges thirteen (13) causes of action, ranging from breach of contract to invasion of privacy and assault. Before the Court is plaintiff's motion for reconsideration of this Court's ruling denying plaintiff's motion for judgment on defendant's unverified answer, pursuant to CCP §...

Excerpt: ...her barriers. The stated goal was to keep plaintiff and her guests/workers off defendant's property. Boundary line disputes are all‐too‐common in Calaveras County, often dating back to the railroads' abandonment of rights‐of‐way, outdated mining claims, and even Spanish land grants. Before the Court is plaintiff's application for a preliminary injunction barring defendant from – among other things – interfering with her historical use...

Excerpt: .../22/22), the right to challenge assignments set forth in Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919, was limited to those assignments which were void ab initio, not those which were merely voidable. (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 therefore defective, the previous cloud was ordered expunged. Plaintiff has si...

Excerpt: ...seeks an order “vacating” that decision, while plaintiff seeks an order confirming the decision. Although the parties (and at times, this Court) have liberally referred to the reference as an “arbitration,” it was in actuality a consensual reference per CCP §638 et seq. References of this nature are not subject to trial court review for confirmation, correction or vacation as would an arbitration award. The referee's decision must be ent...

Excerpt: ...t 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 a motion to have that default judgment set aside. That motion was summarily denied pursuant to Local Rule 3.3.7. Plaintiff has now renewed the same motion. There is no memorandum of points and authorities accompanying ...