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