Excerpt: ...for reconsideration, a request for new trial and an appeal. First, with regard to a Motion for Reconsideration CCP section 1008 provides, in pertinent part: “(a) When an application for an order has been made to a judge, or to a court, and refused in whole or in part, or granted, or granted conditionally, or on terms, any party affected by the order may, within 10 days after service upon the party of written notice of entry of the order and bas...

Excerpt: ...58. Both cases involve the same issues of whether or not the foreclosure on the property where plaintiffs are now residing at 3178 Hagen Road, Valley Springs, was wrongful. The plaintiffs are requesting to stay the unlawful detainer action pending adjudication of the title to the property. Consolidation is appropriate when there are common issues of fact and overlapping issues of law. Based on the foregoing, plaintiffs' motion for consolidation i...

Excerpt: ...loria Bodenmuller Defts Siegfried and Gloria Bodenmuller's Motion for Protective Order for Dismisal from Deposition due to Doctor's Care and Elders 01/14/19 ‐ Motion Hearing; 01/11/19 ‐ Motion‐Summary Judgment / Summary Adjudication; 01/16/19 ‐ Trial Setting Conference Tentative Rulings: PLAINTIFF'S MOTIONS TO COMPEL ANSWERS TO INTERROGATORIES AND MONETARY SANCTIONS AGAINST SIEGFRIED BODENMULLER & GLORIA BODENMULLER On 6/14/18, pl...

Excerpt: ...unt Cattle Co. They borrowed money from Stockton Production Credit Association, but fell behind in payments. In 1983, Plaintiffs transferred their interest in the company to Defendant's husband, who in turn, granted Plaintiffs a hold harmless agreement. In 1984, Defendant's husband conveyed his interest in his home, referred to as the Mokelumne Hill property, to himself and Defendant. In February 1985, Defendant's husband died. The Credit Associa...

Excerpt: ...he First Amended Complaint; defendant timely Demurred. Defendant's demurrer as to the first, second and third cause of action is Overruled based on this Court's prior ruling. Defendant's demurrer to the fourth cause of action is Sustained, Without leave to amend. The amended cause of action merely reiterates plaintiff's prior contention that Government Code section 129409(a) confers a benefit that is not provided in the statute which only address...

Excerpt: ...agreement stated plaintiff was not to use asphalt to pave the driveway that runs through defendant's property unless defendant did not move the water main. Plaintiff used asphalt, after the water main was moved, in violation of the agreement. Both parties agree that per regulations, the asphalt driveway cannot now be completely removed because it has been connected with a County road. Plaintiff alleges he had to use asphalt per County Code. The C...

Excerpt: ...wever, at the settlement conference, a new trial date was set for November 7, 2018. On or about January 19, 2018, plaintiff originally filed a Motion to Reopen Discovery and Submit Tardy Expert Witness Information before trial. The Court denied that motion on February 23, 2018. The Court specifically stated “[p]laintiff's Motion . . . To Reopen Discovery is Denied, Without Prejudice to be renewed expeditiously with full compliance with all stat...

Excerpt: ...urisdiction of this matter therefore was transferred to the Third District Court of Appeal prior to the date for responses. While plaintiff is technically correct that the responses are past due, any enforcement is stayed pending the Court of Appeal's ruling. If the ruling is affirmed, upon remand defendants will have four (4) weeks to comply with this Court's order to respond to the requests for admissions (i.e., the amount of time this C ourt o...

Excerpt: ...MMARY ADJUDICATION On July 27, 2016, plaintiff filed a Complaint alleging breach of contract, unjust enrichment, intentional tort and general negligence against numerous defendants, including Live Well. The cause of actions stem from a reverse mortgage transaction on plaintiff's personal residence. Live Well purchased the loan from defendant Global Equity, who entered into an agreement with plaintiff for a reverse mortgage on his residence. On Ju...

Excerpt: ...e of Pendency of Action. In May 2018, defendant's motion to expunge the first notice was granted. Plaintiff sought appellate relief and the appellate court denied plaintiff's writ application. In July 2018, the order expunging the first notice was recorded. On July 3, 2018, plaintiff filed a new case, 18CV43381, involving the same property from CV35233. To date, defendants have not been served with the complaint or summons. On July 5, 2018, plain...

Excerpt: ... to conform to provisions of CEQA. Respondents seek to have the CEQA portions of the petition dismissed for petitioners' failure to request a hearing within 90 days of the filing of the petition pursuant to Public resources Code Section 21167.4. Petitioners oppose, contending the 90 days was triggered by the filing of the operative petition, i.e., the first amended petition filed on 4/26/18 or, alternatively, seek relief for attorney mistake purs...

Excerpt: ...ndents and real parties in interest demur contending petitioners failed to exhaust their administrative remedies under the “pay first, litigate later” doctrine and alternatively that the petition and complaint fail to plead facts constituting a cause of action largely based upon their interpretation of “registration” and “applicant” under the provisions of then‐existing county code chapter 17.95. Respondents' request for judicial no...

Excerpt: ...ttorney's fees provision, as well as Civil Code Section 5975, defendant now seeks an award of attorney's fees in the amount of $264,777.47. Plaintiff contests certain of the fees as unreasonable and unnecessary, and requests that the Court reduce the amount of attorney's fees to be awarded to $262,361.97. In general, the Court does not find persuasive the contentions that given tasks should have been completed in less time than what was billed �...

Excerpt: ...d duty to indemnify by payment of the settlement in the related underlying case of State Farm v Tidwell 12CV38248. Defendants concede the duty to defend (albeit contesting the effective date that said duty arose) and opposes the MSA on the issue of a duty to indemnify, both on macro grounds that coverage under the policies has not been established and micro grounds that the underlying settlement was excessive and/or the product of collusion and f...

Excerpt: ...n of produced documents. (The Court notes plaintiff's labeling of the motion as one to “compel production” oversimplifies the relief sought.) Plaintiff additionally seeks imposition of “monetary and contempt sanctions”; the Court notes its consideration of any sanctions involves provisions of the discovery act contained within the Code of Civil Procedure as there is no contempt proceeding before the Court. Defendants have not filed any op...

Excerpt: ... Petitioners contest the Calaveras County Board of Supervisors' action taken on January 10, 2018, banning cannabis cultivation in the county, seeking a preliminary injunction or, alternatively, an administrative stay, alleging in essence a failure to comply with the environmental impact report (EIR) requirements of CEQA (California Environmental Quality Act, codified as Public Resources Code Sections 2100 et seq.). Respondents oppose contending a...

Excerpt: .... Plaintiff infers the dismissal was based solely on the motion to dismiss critically leaving out that on 12/16/16 this Court sustained a demurrer to the complaint, without leave as to two causes of action, and with twenty (20) days leave to amend as to the remainder of the complaint. Plaintiff never filed a first amended complaint. Therefore, a motion to dismiss pursuant to Code of Civil Procedure Section 581(f)(2) could have been timely filed i...

Excerpt: ...lement in the related underlying case of State Farm v Tidwell 12CV38248. The Court notes that plaintiffs filed a second amended complaint on 5/8/18 that was served by mail making defendants' answer due to be filed and served no later than 6/13/18, i.e., five (5) days after the date noticed for hearing on the present motion. Although it is possible that any changes contained in the second amended complaint and any changes that might be contained i...

Excerpt: ...s and request this Court to schedule an Order To Show Cause hearing to determine if defendants are in contempt of the default judgment and consider other means for enforcement of court orders. Plaintiff has provided a sufficient affidavit under penalty of perjury containing the necessary prima facie showing of facts consisting of the making of the court order, defendants' knowledge of the order, defendants' ability to comply with the order, and d...

Excerpt: ...ugust 2018. Subsequently, counsel for defendant submitted a stipulation and proposed order to “reinstate” jury trial which was denied by this Court for the failure to assert the necessary good cause, albeit without prejudice to renew the request by way of noticed motion. Defendant now moves this Court to “reinstate” a jury trial asserting as the requisite good cause an inadvertence on the part of counsel to timely post the jury fee deposi...

Excerpt: ...firmatively evident from the pleading itself without consideration of any extrinsic evidence. (Sheehan v San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992.) In ruling on a demurrer, the Court must liberally construe the allegations in the pleading with the goal of attaining substantial justice among the parties. (Code of Civil Procedure Section 452; King v Central Bank (1977) 18 Cal.3d 840. (Even if the facts are not clearly stated, a pleading show...

Excerpt: ... responses have ever been provided. Code of Civil Procedure Section 2030.260 provides that responses to interrogatories be served within 30 days and CCP § 2030.290 provides that failure to timely provide responses waives any right to exercise the option to provide writings as responses and also waives any objections. Code of Civil Procedure Section 2031.260 provides that responses to requests for production of documents be served within 30 days ...

Excerpt: ...ed to deposit with the Court to be distributed upon agreement or determination among the competing claims regarding said funds. Plaintiff has been holding the funds in escrow since 12/28/11 and has received no response from the seller to two notices of escheat of unclaimed property leading to the filing of this interpleader action. No opposition having been filed and the requested relief appearing appropriate, the Court intends to sign the submit...

Excerpt: ... expressing that as a successor to the original contract it is not bound by the arbitration clause. Part of the Court's analysis of defendant's motion is taking into consideration that defendant represents herself while plaintiff is represented by counsel. Although the court has a general duty to treat a self‐represented litigant in the same manner as a person represented by counsel – i.e., no different, no better, no worse (Taylor v Bell (19...

Excerpt: ...fin Llp Tentative Ruling: On January 31, 2018, defendant Nationstar Mortgage LLC served requests for admission on plaintiff Rodney E. Weathers dba All Weather Construction. No responses have been served to date and Nationstar seeks to have the requests deemed admitted and sanctions imposed in the amount of $920. Code of Civil Procedure Section 2033.280 (c) mandates that the Court deem facts admitted and the genuineness of documents, and award san...

Excerpt: ...as moved to strike paragraph 70 of the first amended complaint and the associated portion of the prayer for relief seeking injunctive and restitution relief consisting of auditing, changing, and overseeing defendant's claims practices. A motion to strike is used to challenge the legal sufficiency of all or part of a pleading, in particular to challenge pleading defects that cannot be challenged by demurrer. (CLD Construction, Inc. v City of San R...

Excerpt: ...plaintiffs failed to comply with the notice requirements of Local Rule 3.3.7 as amended January 1, 2018. Said Local Rule explicitly includes a provision that failure to comply “may be a basis for the Court to deny the motion”. However, in light of defendant's disregard for the discovery statutes and the obligations they place on parties, the Court exercises its discretion to rule on the merits of the motion rather than its procedural shortcom...

Excerpt: ... and eventually a wine tasting room. Defendant Board of Supervisors took up the application twice, eventually denying the re‐zoning by a 3‐2 vote on August 22, 2017. Petitioner/Plaintiff then filed suit seeking to have this Court direct the Board to approve his application in essence contending the denial was arbitrary based on his tenant's small cannabis cultivation site on the parcel. Defendants' demur contending petitioner/plaintiff has no...

Excerpt: ...secured by a deed of trust on the involved property. After completion of the trustee's sale, defendants herein prevailed on a separate unlawful detainer action in which plaintiff herein's defense consisted of contesting the validity of the trustee's sale. When this matter proceeded to trial, the Court took judicial notice of the unlawful detainer action and then excluded evidence on the claim of irregularity in the foreclosure process ultimately ...

Excerpt: ...he information. Although defendant likely is correct on the merits that the reference to information that CPS may or even likely has is an insufficient response, the present motion suffers from two procedural flaws. Initially, the proof of service reflecting service by mail on March 23, 2018, for a hearing date of April 20, 2018, does not meet the combined minimum requirements of Code of Civil Procedure Sections 1005 and 1013. The sixteenth court...

Excerpt: ... constructively terminated from his employment at Mark Twain Medical Center stemming from his having raised numerous concerns about concerns about policies, practices and equipment at the medical facility, including a cause of action based on a claim he was retaliated against in violation of Health & Safety Code Section 1278.5. Defendant Dignity Health's motion seeks to strike that portion of the cause of action that includes a jury demand. Notin...

Excerpt: ... THE ALTERNATIVE, SUMMARY ADJUDICATION OF ISSUES Plaintiff alleges defendant Poker Flat Property Owners Association, Inc. breached her employment contract and committed various associated torts primarily by disclosing confidential employee information. Defendant Poker Flat moves for summary judgment or alternatively summary adjudication as to every cause of action. Poker Flat's Request for Judicial Notice is Granted as to Exhibits P and Q pursuan...

Excerpt: ..., Robert G; O'shea, Michael; Parker, Stacey; Schink, Julian; Schink, Roger Allan; Steenbakkers, Trevor J; Wingerter, Pamela W Atty: Towner, Bruce M; McCormick Barstow Sheppart Wayte & Carruth Llp TENTATIVE RULING ON DEFENDANTS MORRIS/WINGERTER/STEENBAKKERS' DEMURRER TO SECOND AMENDED VERIFIED COMPLAINT This shareholder derivative action contends the shareholders of the Burnette Company other than plaintiff damaged the company through improper...

Excerpt: ...atisfy the first mortgage lien on the property held by Umpqua Bank. Global Equity moves for judgment on the pleadings contending the complaint fails to state a basis for a breach of the contract or for unjust enrichment. (The Court notes that Global Equity requests judgment on the pleadings “against the Complaint” but asserts arguments only concerning the causes of action for breach of contract and unjust enrichment; the complaint actually co...

Excerpt: ... cultivate cannabis that was affirmed on appeal by the County Office of Administrative Hearings. Respondents (collectively referred to as County) have demurred (and concurrently filed a motion to strike) pursuant to Code of Civil Procedure Section 430.10 contending this Court lacks jurisdiction and alternatively that petitioner's pleadings fail to constitute a causer of action and/or are uncertain, ambiguous and unintelligible. Petitioner's plead...

Excerpt: ...ot, contending that he can only be assessed single member dues regardless of the number of lots he owns under the HOA's establishment as a tax exempt social and recreational club. Plaintiff now moves for summary adjudication on his fourth and fifth causes of action for declaratory relief and permanent injunction, respectively, contending these causes are proven as a matter of law by the sentence in defendant's verified answer admitting paragraph ...

Excerpt: ...raightforward case” which will not require more than one to two hours for a bench trial. Defendants further request that the matter be set for trial as soon as two weeks after the hearing on this motion. Initially, the Court concurs with defendants that the Court has wide discretion concerning trial management. Taking defendants' contentions that this is a “straightforward case” that will consume only 1‐2 hours for a bench trial at face v...

Excerpt: ...support of the motion acknowledges actual knowledge of the trial date as of September 1, 2017. The motion and declaration thereafter appear to somewhat place responsibility for the nonappearance on “changes related to staff” and/or failure to have “local appearance counsel conduct the bench trial” and asserts these shortcomings as “excusable neglect”. The Court is unpersuaded these assertions amount to “excusable” neglect pursuant...

Excerpt: ...that soured along the way leading to the current litigation that revolves around varying descriptions of who was at fault for the falling out. Cross‐defendants have demurred to the first cause of action for breach of contract contending it cannot state a cause of action as it is based on an illegal contract as cannabis is a controlled substance under federal law, as to the third cause of action for fraud fails because it does not state its alle...

Excerpt: ...i.e., she is more than 70 years of age and plaintiff's health is such that preference is necessary to prevent prejudicing plaintiff's interest in the litigation. However, this matter is not at issue as the Court's file contains no proof of service of the first amended complaint occurring after this Court granted leave to file said pleading on 11/17/17. Additionally, there is no answer, default, or dismissal of defendant Steven Mitchell with regar...

Excerpt: ...gainst the prior owners who had sold to plaintiffs, in essence contending alterations and improvements they made to the residence are the cause of the defects. The cross‐complaint alleges causes of action for indemnification, apportionment, declaratory relief, and negligence. Cross‐defendants move for summary judgment on the crosscomplaint. Defendant/cross‐complainant completed construction of the residence in 2005 after which it was purcha...

Excerpt: ...in judgments for Ponte and her attorneys in a total amount of $35,786.29 ($15,810.00 for Ponte to complete Lokey's purchase of the property under the settlement agreement, $11,886.93 for Ponte in executor's commissions and costs, and $8,089.36 for the law firm of Dambacher, Trujillo & Associates for attorney's fees and costs). Lokey has perfected appeals of this Court's Orders. Ponte now seeks relief from the stay to have this Court order the sal...

Excerpt: ...Carlson Law Group; McCormick Barstow Sheppart Wayte & Carruth Llp Tentative Ruling: RULING ON DEFENDANT MARK BATEMAN DBA MDL HOME INSPECTIONS' MOTION FOR SUMMARY JUDGMENT Plaintiffs have alleged a total of fourteen causes of action in their second amended complaint against various defendants regarding the purchase of their residence in Angels Camp. The only cause of action contained in the first amended complaint that contains allegations as to d...

Excerpt: ... CONTINUED RECORDATION Plaintiff filed this suit in 2008 contending defendants wrongfully conducted a trustee's sale after plaintiff defaulted on a promissory note secured by a deed of trust on the involved property. After completion of the trustee's sale, defendants herein prevailed on a separate unlawful detainer action in which plaintiff herein's defense consisted of contesting the validity of the trustee's sale. When this matter proceeded to ...

Excerpt: ... coordinated actions seeking to recover damages related to a fire that started at defendant's Madonna Retreat, plaintiff Laura Sternick has filed three motions that the Court interprets as interrelated seeking relief from her failure to timely disclose expert witnesses, requesting to reopen discovery, to allow her to serve a tardy disclosure of expert witnesses and/or quash objections to notices she has served in lieu of subpoenas (presumably of ...

Excerpt: ...985.3(g) and 1987.1 contending in essence they are overly broad in scope due to the lack of specificity as to body parts and time. Defendant contends they are permissible as they are reasonably calculated to lead to the discovery of admissible evidence given the plethora of body parts and symptoms plaintiff alleges were injured in the accident. Plaintiff herself lists her alleged injured body parts as “solely to her head, neck, upper back, knee...

Excerpt: ...October 30, 2017, as no responses have ever been provided. Code of Civil Procedure §2030.260 provides that responses to interrogatories be served within 30 days and CCP § 2030.290 provides that failure to timely provide responses waives any right to exercise the option to provide writings as responses and also waives any objections. Code of Civil Procedure §2031.260 provides that responses to requests for production of documents be served with...