Excerpt: ...alifornia Rules of Court, Rule 2.550(c).) The court may order a record be filed under seal upon express findings of fact that establish: (1) an overriding interest that overcomes the public's right to access, (2) an overriding interest supporting sealing the record, (3) a substantial probability that the overriding interest will be prejudiced if the record is not sealed, (4) the sealing of the record is narrowly tailored, and (5) there are no les...

Excerpt: ... County Superior Court Case No. SCV42872, Sheena George vs. Meritage Homes of California, Inc., et al (“the George action”), and (3) Placer County Superior Court Case No. SCV‐43149, W1 Holdings, et al vs. Deutsche Bank AG, et al (“the W1 action”), for all purposes including trial. The motion is denied. A complete consolidation may be ordered where the parties are identical and the causes of action could have been joined. Hamilton v. Asb...

Excerpt: ...tiff takes the position that counsel was placed “at an obvious disadvantage that would raise reasonable suspicion in any case”. (Declaration of Maria L. Weitz, ¶ 6, emph. in orig.) Plaintiff's counsel also notes background noise during the deposition, hesitation with respect to certain answers, and one instance of the deponent reviewing a document that he expressly requested from defense counsel. Plaintiff moves to compel the deposition of d...

Excerpt: ... a class action settlement, the court is to give due regard to the parties' agreement, ensuring the agreement is not a product of fraud, overreaching parties, or collusion and that the settlement, as a whole, is fair, reasonable, and adequate. In re Cellphone Fee Termination Cases (2010) 186 Cal.App.4th 1380, 1389; Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1801; 7‐Eleven Owners for Fair Franchising v. Southland Corp. (2000) 85 Cal.App....

Excerpt: ...s denied. Ruling on Request for Judicial Notice Defendants' request for judicial notice is granted under Evidence Code section 452. Ruling on Motion The motion is denied without prejudice. In the current request, defendants seek to have plaintiff declared a vexatious litigant under Code of Civil Procedure section 391(b)(2) and (3). These subsections allow for a vexatious litigant determination where the person, acting in pro per, repeatedly attem...

Excerpt: ...itute a cause of action. Code Civ. Proc. § 430.10(e). A demurrer tests the legal sufficiency of the pleadings, not the truth of the allegations or the accuracy of the described conduct. Bader v. Anderson (2009) 179 Cal.App.4th 775, 787. The allegations in the pleadings are deemed true no matter how improbable they may seem. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. Plaintiff alleges that he was severely injure...

Excerpt: ... not the truth of the allegations or the accuracy of the described conduct. Bader v. Anderson (2009) 179 Cal.App.4th 775, 787. The allegations in the pleadings are deemed true no matter how improbable they may seem. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. The demurrer is sustained. Plaintiffs allege two causes of action under Civil Code section 2923.6(d) and (e). The statute states in relevant part: (d) If th...

Excerpt: ...the legal sufficiency of the pleadings, not the truth of the plaintiff's allegations or the accuracy of 3 the described conduct. Bader v. Anderson (2009) 179 Cal.App.4th 775, 787. The court assumes the truth of all facts properly pleaded, and accepts as true all facts that may be implied or reasonably inferred from facts expressly alleged, unless they are contradicted by judicially noticed facts. Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6. ...

Excerpt: ... or the accuracy of the described conduct. Bader v. Anderson (2009) 179 Cal.App.4th 775, 787. The allegations in the pleadings are deemed true no matter how improbable they may seem. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. The demurrer is sustained as to the first cause of action for professional negligence alleged by plaintiff Linda Clayton (“Clayton”). Plaintiffs fail to allege facts which support the c...

Excerpt: ...d fifth causes of action in the petition for negligence, intentional misrepresentation, and conversion. A demurrer tests the legal sufficiency of the pleadings, not the truth of the plaintiff's allegations or accuracy of the described conduct. Picton v. Anderson Union High School (1996) 50 Cal.App.4th 726, 733. All properly pleaded facts are assumed to be true as well as those that are judicially noticeable. Blank v. Kirwan (1985) 39 Cal.3d 311, ...

Excerpt: ...true no matter how improbable they may seem. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. The demurrer is overruled as to plaintiff's first cause of action for breach of implied warranty, and second cause of action for breach of express warranty. Based on a review of the complaint as a whole, plaintiff adequately alleges these claims. Contrary to the argument of defendant, plaintiff is not required to plead the te...

Excerpt: ...of defendant's Compendium of Evidence filed April 13, 2020. The remaining objections are overruled. Defendant's objections to evidence are ruled on as follows: Objection Nos. 1, 3‐14, 21‐ 23, 25, 30 and 35 are sustained. The remaining objections are overruled. Ruling on Motion Defendant Todd Jarvis moves for summary judgment, or alternatively summary adjudication, as to claims alleged in plaintiff Robin Calder's complaint. Summary judgment ma...

Excerpt: ... this was one day after defendant's opposition was filed, giving defendant no opportunity to respond. The failure to include a separate statement constitutes sufficient grounds to deny the motion. In addition, plaintiff does not make a sufficient showing that he informally attempted to resolve this matter with defendant. Code Civ. Proc. §§ 2030.300(b)(1), 2016.040. “A meet and confer declaration in support of a motion shall state facts showin...

Excerpt: ... of the Elections Code which are clearly inapplicable to the relief they apparently seek. It appears to the court that what petitioners are really seeking is for the court to grant them additional time to gather sufficient valid signatures to place a recall of four directors of the Foresthill Public Utility District on the November 2020 ballot and, in the process, ignore multiple provisions of the statutory elections scheme. As discussed below, t...

Excerpt: ... of 11 Ruling on Demurrer The demurrer is sustained with leave to amend. In the current request, defendants demur to the second, third, fourth, fifth, and sixth causes of action. A demurrer tests the legal sufficiency of the pleadings, not the truth of the plaintiff's allegations or accuracy of the described conduct. (Bader v. Anderson (2009) 179 Cal.App.4th 775, 787.) The allegations in the pleadings are deemed to be true no matter how improbabl...

Excerpt: ...forward on an earlier date due to a heavy trial calendar after October 21. (Declaration of Mary Talmanoff, Exh. I.) The parties did not resolve the issue at that time, and no further discussions were held until December 4, 2019. On that date, following inquiry by plaintiff's counsel, defense counsel conditionally offered February 3, 2020, but noted that she needed to clear the date with her client, and would follow up. (Id., Exh. J.) It does not ...

Excerpt: ...cluding objections to exhibits, are overruled. Defendant's objections to the declaration of Daniel McLain are ruled on as follows: Objection Nos. 2‐5 and Objection to Exhibits No. 2 are sustained. The remaining objections are overruled. Defendant's objections to the declaration of Sue Thompson are ruled on as follows: Objection Nos. 1‐2 and 6‐7 are sustained. The remaining objections are overruled. Defendant's objections to the declaration ...

Excerpt: ...s to give due regard to the parties' 2 agreement, ensuring that the agreement is not a product of fraud, overreaching parties, or collusion and that the settlement, as a whole, is fair, reasonable, and adequate. Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1801; 7‐Eleven Owners for Fair Franchising v. Southland Corp. (2000) 85 Cal.App.4th 1135, 1145. A presumption of fairness exists where: (1) the settlement was reached through arms‐len...

Excerpt: ...n (2009) 179 Cal.App.4th 775, 787. The allegations in the pleadings are deemed true no matter how improbable they may seem. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. Plaintiff alleges that he worked as a food server at Fat's Asian Bistro in Roseville for approximately one year before he was constructively discharged in October 2019. (Complaint, ¶10.) A few months prior to being suspended, plaintiff's manager S...

Excerpt: ...but must also include a copy of the papers upon which the notice is based. (Code of Civil Procedure section 1010; see Weinstein v. Blumberg (2018) 25 Cal.App.5th 316.) Plaintiff's notice of motion, filed on July 15, 2020, provides notice that the motion is based upon a memorandum, separate statement, and supporting declaration. However, these documents were not filed or served until a month after the original notice of motion was filed. Plaintiff...

Excerpt: ...employment when the physical altercation between Mr. Benton and plaintiff took place. The trial court shall grant a motion for summary PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR SEPTEMBER 3, 2020 AT 8:30 A.M. PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and Motion – Tentative Rulings Page 7 of 12 judgment if “all the papers submitted show that t...

Excerpt: ... Class certification may be ordered where the moving party demonstrates the existence of an ascertainable and sufficiently numerous class; a well‐defined community of interest; and a substantial benefit from certification rendering a class action superior to other alternatives. (Code of Civil Procedure section 382; Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1021.) After carefully reviewing the second amended complaint an...

Excerpt: ...y of the pleadings, not the truth of the plaintiff's allegations or accuracy of the described conduct. (Bader v. Anderson (2009) 179 Cal.App.4th 775, 787.) The allegations in the pleadings are deemed to be true no matter how improbable the allegations may seem. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Huckabee alleges claims for PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HO...

Excerpt: ...rson (2009) 179 Cal.App.4th 775, 787. The allegations in the pleadings are deemed true no matter how improbable they may seem. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. Plaintiff's first and third causes of action allege breach of express warranty under the Magnusson‐Moss Warranty Act and the Song‐Beverly Consumer Warranty Act, respectively. Both claims are subject to a four‐year statute of limitations. U...

Excerpt: ... of the State of California. The court recognizes and respects the importance of zealous advocacy, while realizing that there is an important, albeit hazy, line between effective advocacy and improper behavior. California case law authority, the Business and Professions Code, and State Bar Guidelines of Civility and Professionalism all forbid attorneys from discourteous conduct or other affronts upon the dignity of the court. Vigorous advocacy do...

Excerpt: ...erruled. Plaintiff's objections to the declaration of Jordan Meeks are ruled on as follows: Objection No. 2 is sustained. The remaining objections are overruled. Ruling on Motion Defendant La Familia Ramirez, Inc. dba Café Delicias moves for summary judgment as to plaintiff's negligence/premises liability claim arising from a slip‐and‐fall accident at defendant's restaurant. The court shall grant a motion for summary judgment if “all the p...

Excerpt: ...159 Cal.App.4th 1292, 1307‐1308.) Ruling on Objections Defendants' objections are overruled. Plaintiff's objections to the length of defendants' memorandum is overruled as the court granted defendants' ex parte application seeking relief to file a lengthy memorandum. Ruling on Motion Defendants assert several grounds for expungement of the lis pendens. First, defendants claim Martin failed to properly serve the Amended Notice of Lis Pendens on ...

Excerpt: ...ontract agreement between plaintiff and defendant JBS Ventures, LLC. A threshold question for any motion to compel arbitration is whether there exists an agreement to arbitrate. (Cruise v. Kroger Co. (2015) 233 Cal.App.4th 390, 396.) The moving party carries this initial burden by proving, by a preponderance of the evidence, the existence of a valid arbitration agreement. (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972.) Def...

Excerpt: ...; evidentiary sanction; and/or monetary sanctions. The court grants the request for terminating sanctions. The purpose of discovery sanctions is to prevent abuse of the discovery process and correct problems presented. (Do v. Superior Court (2003) 109 Cal.App.4th 1210, 1213‐1214.) It is not a weapon to provide for punishment, forfeiture, or avoidance of trial on the merits. (Ibid.) The imposition of terminating sanctions is generally limited to...

Excerpt: ...ntal disclosure on December 9, 2019. Defense counsel states he was unaware plaintiff had disclosed Lapin as an expert until plaintiff's counsel notified him that same day. Defendants then disclosed expert witness Steven Epcar in a supplemental disclosure the next day. Defendants seek relief from this tardy – by one day – supplemental disclosure of expert witness Epcar. Defendants assert they had no idea plaintiff objected to the untimely disc...

Excerpt: ...ns or accuracy of the described conduct. (Picton v. Anderson Union High School (1996) 50 Cal.App.4th 726, 733.) All properly pleaded facts are assumed to be true as well as those that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1153.) Initially, plaintiff concedes the allegations in the second cause of action for violations of the Homeowners Bill of Righ...

Excerpt: ...same function as a demurrer but is brought where the time for a demurrer has expired. (Code of Civil Procedure section 438(g); Southern California Edison Co. v. City of Victorville (2013) 217 Cal.App.4th 218, 227.) A defendant challenging a complaint must show the pleading fails to state sufficient facts to constitute a cause of action. (Code of Civil Procedure section 438(c)(1)(B).) “[J]udgment on the pleadings must be denied where there are m...

Excerpt: ...intiffs seek an injunction requiring defendants Vincent Procopio and John Procopio to remove boulders and/or other obstructions which they allegedly placed in front of the access gate at 10100 Sunset Lane, and preventing defendants from blocking or in any way restricting access between the property located at 10100 Sunset Lane (“the Property”), and Sunset Lane, which is alleged to be either a public right‐of‐way or a prescriptive roadway ...

Excerpt: ...y determination establishes an initial presumption of fairness…” In re General Motors Corp. (3d Cir. 1995) 55 F.3d 768, 784. “[I]f the proposed settlement appears to be the product of serious, informed, non‐collusive negotiations, has no obvious deficiencies, does not improperly grant preferential treatment to class representatives or segments of the class, and falls within the range of possible approval, then the court should direct that...

Excerpt: ...legations in the pleadings are deemed true no matter how improbable the allegations may seem. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. 8 A demurrer can only be used to challenge defects that appear on the face of the pleading, or from matters that are judicially noticeable. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. No other extrinsic evidence may be considered. Ion Equipment Corp. v. Nelson (1980) 110 Cal.App...

Excerpt: ...ations or the accuracy of the described conduct. Bader v. Anderson (2009) 179 Cal.App.4th 775, 787. The allegations in the pleadings are deemed true no matter how improbable they may seem. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. Tort liability against a public entity requires an authorizing statute or enactment. Gov. Code § 815(a); Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 802. Plaintif...

Excerpt: ...onal or contrary factual detail or context to the allegations. The cases cited by defendant do not suggest that judicial notice is appropriate in these circumstances. As to Exhibit H, although it is referenced in the complaint, it does not form the basis for any of plaintiffs' claims, and defendant does not explain why it is necessary for the court to take judicial notice of this document. Ruling on Demurrer to Complaint Defendant Lance Aizen (�...

Excerpt: ...to sufficiently allege facts that would support punitive damages. Initially, there are insufficient allegations of fraud as the complaint only alleges negligence based upon a motor vehicle collision. Nor does the complaint sufficiently allege oppressive conduct on the part of defendant. Oppression generally refers to despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard to that person's rights. (Civil Code ...

Excerpt: ...cted processing time for civil documents. In light of this, it is unclear whether cross‐complainant was informed of the rejection in a timely manner to resubmit his opposition. The matter is continued to afford cross‐complainant to opportunity to re‐file the opposition. Cross‐complainant Clifton Huckabee shall file his opposition by Tuesday, August 25, 2020. If cross‐complainant fails to file his opposition, the court will proceed to he...

Excerpt: ...ment debtor, and memoranda of costs filed May 19, 2020, is granted in part, and denied in part. In 2007, judgment creditors Tammy Phillips (“Phillips”) and Tammy R. Phillips, a Professional Law Corporation (“the Corporation”) obtained a judgment against Kevan Gilman (“Gilman”) on their cross‐complaint. The judgment states principal damages totaling $20,608, statutory damages totaling $750, and prejudgment interest of $1,585. Judgmen...

Excerpt: ... the demand.” Code Civ. Proc., § 2034.260(a). The exchange of expert witness information must include either of the following: “(1) A list setting forth the name and address of a person whose expert opinion that party expects to offer in evidence at the trial. (2) A statement that the party does not presently intend to offer the testimony of an expert witness.” Code Civ. Proc. § 2034.260(b). Pursuant to Code of Civil Procedure section 203...

Excerpt: ... Inc. (2010) 191 Cal.App.4th 53, 63. To support a prayer for punitive damages, plaintiffs must allege ultimate facts supporting a finding of oppression, fraud or malice on the part of the defendant. Civil Code § 3294(a). Malice includes conduct which is intended by the defendant to cause 14 injury to the plaintiff, or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others....

Excerpt: ... party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier; (3) the likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party; and (4) the length of time elapsed between the ...

Excerpt: ...y Nos. 29 and 30. Plaintiff's responses are sufficient under the requirements of the Code of Civil Procedure. On or before September 4, 2020, plaintiff shall serve a further response to Special Interrogatory No. 28 which complies with the requirements of Code of Civil Procedure section 2030.220. The parties' requests for sanctions are denied. Motion to Compel Further Responses to Requests for Production of Documents (RFP Nos. 1‐7, 9‐11 and 27...

Excerpt: ... determination establishes an initial presumption of fairness…” In re General Motors Corp. (3d Cir. 1995) 55 F.3d 768, 784. “[I]f the proposed settlement appears to be the product of serious, informed, non‐collusive negotiations, has no obvious deficiencies, does not improperly grant preferential treatment to class representatives or segments of the class, and falls within the range of possible approval, then the court should direct that ...

Excerpt: ...Bader v. Anderson (2009) 179 Cal.App.4th 775, 787. The allegations in the pleadings are deemed true no matter how improbable the allegations may seem. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. Plaintiffs assert six causes of action including (1) fraud in the inducement – intentional misrepresentation; (2) negligent misrepresentation; (3) fraud in the inducement – concealment; (4) fraud in the performance of...

Excerpt: ...improbable the allegations may seem. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) The court reviews each cause of action keeping these principles in mind. First Cause of Action – Fraud In the first cause of action, plaintiffs Gabriel Moreno and Josefina Del Rio allege a fraud claim against the moving defendant Keller Williams based upon a theory PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPAR...

Excerpt: ...especially where defendant has not made a request for judicial notice. Turning to the substance of the demurrer, defendant challenges the entire complaint due to defendant Quasar LLC's failure to register with the California Secretary of State. A party may demur to a complaint where the pleading does not state facts sufficient to constitute a cause of action. (Code of Civil Procedure section 430.10(e).) A limited liability corporation (LLC) organ...

Excerpt: ...fornia limited liability company, dba Sunstor Solar Electric (“Sunstor”). A party may demur where the pleading does not state facts sufficient to constitute a cause of action. Code Civ. Proc. § 430.10(e). A demurrer tests the legal sufficiency of the pleadings, not the truth of the allegations or the accuracy of the described conduct. Bader v. Anderson (2009) 179 Cal.App.4th 775, 787. The allegations in the pleadings are deemed true no matte...

Excerpt: ...t for judicial notice is granted. Defendant Berthel Fisher & Company Financial Services moves for judgment on the pleadings as to plaintiffs' complaint. A motion for judgment on the pleading may be granted where the complaint does not state sufficient facts to constitute a cause of action. Code Civ. Proc. § 438(c)(1)(B)(ii). The motion has the same function as a demurrer but is brought when the time for a demurrer has expired. Code Civ. Proc. §...

Excerpt: ...ertification class discovery may be obtained, the court must employ the “Parris balancing test” by weighing the actual or potential abuse of the class action procedure against the potential benefits that might be gained. See Starbucks Corp. v. Superior Court (2011) 194 Cal.App.4th 820, 825; Parris v. Superior Court (2003) 109 Cal.App.4th 295. Mahabala argues that plaintiff's discovery responses are deficient, and fail to identify particular v...

Excerpt: ...en the chance to review Capital One's documents in advance of his deposition is speculative, and not supported by credible evidence. Plaintiff's request for sanctions is denied. Motion to Compel Deposition Defendant Wilmington Savings Fund Society FSB, d/b/a Christiana Trust's (“Wilmington's”) motion to compel deposition of plaintiff's person most knowledgeable is granted. Wilmington duly served plaintiff with a notice of deposition of its pe...

Excerpt: ...oundation Hospitals (1976) 17 Cal.3d 699, 706; Laswell v. AG Seal Beach, LLC, et al (2010) 189 Cal.App.4th 1399, 1405. Under both federal and state law, a threshold question for any petition to compel arbitration is whether there exists an agreement to arbitrate. Cruise v. Kroger Co. (2015) 233 Cal.App.4th 390, 396. It is the petitioner that carries this initial burden of proving, by a preponderance of the evidence, the existence of a valid arbit...

Excerpt: ... Cal.App.3d 593, 604.) Plaintiff alleges she was injured while skiing when the snowboarding defendant collided with her. The doctrine of “primary assumption of the risk” limits a defendant's duty of care toward a plaintiff, and for that reason may be challenged by demurrer. (See Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 162–168.) Defendant points to case law holding that risks inherent in skiing fall within the primary ...

Excerpt: ...gment, or in the alternative, Summary Adjudication Preliminary Matters As an initial matter, the court denies plaintiffs' request for a continuance under Code of Civil Procedure section 437c(h). The matter has already been continued PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR JULY 30, 2020 AT 8:30 A.M. PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and...

Excerpt: ...e v. Kroger Co. (2015) 233 Cal.App.4th 390, 396.) The moving party carries this initial burden by proving, by a preponderance of the evidence, the existence of a valid arbitration agreement. (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972.) Aerotek presents sufficient evidence establishing the existence of a valid arbitration agreement between itself and plaintiff. (Petersen declaration, Exhibit E.) However, there is insuffi...

Excerpt: ...r summary judgment if “all the papers submitted show that there is no triable issue as to any material fact and the moving party is entitled to a judgment as a matter of law.” (Code of Civil Procedure section 437c(c).) A party to the action may also move for summary adjudication if that party contends there is no merit to one or more of the causes of action. (Code of Civil Procedure section 437c(f)(1).) However, a motion for summary adjudicat...

Excerpt: ...nder well PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR JULY 30, 2020 AT 8:30 A.M. PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and Motion – Tentative Rulings Page 11 of 12 established principles. It tests the legal sufficiency of the pleadings, not the truth of the plaintiff's allegations or accuracy of the described conduct. (Bader v. Anderson (200...

Excerpt: ...7 Defendant Mid‐Century Insurance Company (“Mid‐Century”) moves for summary judgment, or alternatively summary adjudication of each cause of action alleged by plaintiff. The party seeking summary judgment bears the burden of showing there is no triable issue of material fact and that the party is entitled to judgment as a matter of law. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If the moving party carries its initial...

Excerpt: ...o the parties' agreement, ensuring the agreement is not a product of fraud, overreaching parties, or collusion, and that the settlement as a whole is fair, reasonable, and adequate. (In re Cellphone Fee Termination Cases (2010) 186 Cal.App.4th 1380, 1389; Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1801; 7‐Eleven Owners for Fair Franchising v. Southland Corp. (2000) 85 Cal.App.4th 1135, 1145.) Reasonableness of the settlement may be dete...

Excerpt: ...se of action, and the answer does not state facts sufficient to constitute a defense to the complaint. (Code of Civil Procedure section 438(c)(1)(A).) The grounds for the motion must appear on the face of the challenged pleading, or be based on facts which the court may judicially notice. (Code of Civil Procedure section 438(d).) The court may take judicial notice of a defendant's uncontroverted admissions in responses to request for admissions o...

Excerpt: ...tions is denied. Motion to Strike First Amended Complaint Defendants move to strike the first amended complaint filed May 20, 2020, on the grounds that it was filed after the deadline imposed by the court. A motion to strike may be used to strike “all or any part of any pleading not drawn in conformity with the laws of this state, a court rule, or an order of the court.” (Code of Civil Procedure section 436.) The court has discretion to strik...

Excerpt: ... deemed filed as of the date they were first submitted to the Clerk's Office, May 6, 2020. Motion to Tax Costs (Sanctions Award/Cost Memo Filed 2‐24‐2020) Judgment debtor's motion to tax costs with respect to sanctions awards against attorney Mark Ellis, and the memorandum of costs filed February 24, 2020, is granted. Judgment creditors' memorandum of costs seeks to add attorneys' fees of $3,476 as enforcement costs to sanctions awards assess...

Excerpt: ...72, 75, 76 and 80‐82 are sustained. The remaining objections are overruled. Ruling on Request for Judicial Notice Defendants' request for judicial notice is granted. With respect to Exhibits 15, 16, 18‐ 25, 28, 30, 32‐34, and 36‐40, the court takes judicial notice of the fact that these documents were filed in a prior action, but not the truth of factual statements made therein. Ruling on Motion Defendant Brookfield Homeowners' Associatio...

Excerpt: ...gment/adjudication as to the plaintiff's complaint; Omni Structures & Management, Inc.'s cross‐ complaint; and Curtis Beresford's cross‐complaint. The trial court shall grant a motion for summary judgment if “all the papers submitted show that there is no triable issue as to any material fact and the moving party is entitled to a judgment as a matter of law.” (Code of Civil Procedure section 437c(c).) A party to the action may also move f...

Excerpt: ...ssue as to any material fact and the moving party is entitled to a judgment as a matter of law.” (Code of Civil Procedure section 437c(c).) The moving party bears the initial burden of establishing that one or elements of a cause of action cannot be established or there is a complete defense to the cause of action. (Id. at 437c(p)(2).) Only when this initial burden is met does the burden shift to the opposing party to establish a triable issue ...

Excerpt: ...er for punitive damages, plaintiff must allege ultimate facts supporting a finding of oppression, fraud or malice on the part of the defendant. Civil Code § 3294(a). Malice includes conduct which is intended by the defendant to cause injury to the plaintiff, or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. Civ. Code § 3294(c)(1). Oppression includes despicable c...

Excerpt: ...riefs filed by the parties. The parties' requests for judicial notice are granted. Defendant Wilmington Savings Fund Society FSB, d/b/a Christiana Trust as Trustee for PNPMS Trust II (“Wilmington”) moves to dissolve, or alternatively modify, the preliminary injunction granted in this action in December 2018, which enjoined defendants from proceeding with a foreclosure of subject property. Pursuant to Code of Civil Procedure section 533, an in...

Excerpt: ...uding breach of contract, failure to disclose, negligence, negligent misrepresentation, intentional misrepresentation and fraudulent concealment. A threshold question for any petition to compel arbitration is whether there exists an agreement to arbitrate. Cruise v. Kroger Co. (2015) 233 Cal.App.4th 390, 396. It is the moving party that carries this initial burden by proving, by a preponderance of the evidence, the existence of a valid arbitratio...

Excerpt: ... according to Water Audit, has for years blocked access to prime spawning grounds for protected fish. Respondent Nevada Irrigation District (“NID”) did not file an answer to the Petition. Instead, on January 30, 2020, the parties filed a fully executed stipulation for dismissal (“the Stipulation”). The Stipulation describes actions taken by NID with respect to Hemphill beginning in 2012, including actions to study or analyze removal or re...

Excerpt: ...ged in the second amended complaint. A party may demur to a complaint where the pleading does not state facts sufficient to constitute a cause of action. Code Civ. Proc. § 430.10(e). A demurrer tests the legal sufficiency of the pleadings, not the truth of the plaintiff's allegations or the accuracy of the described conduct. Bader v. Anderson (2009) 179 Cal.App.4th 775, 787. The court assumes the truth of all facts properly pleaded, and accepts ...

Excerpt: ...ings, not the truth of the allegations or the accuracy of the described conduct. Bader v. Anderson (2009) 179 Cal.App.4th 775, 787. The allegations in the pleadings are deemed true no matter how improbable the allegations may seem. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. The demurrer is sustained as to plaintiff's fourth cause of action for fraud. The elements for intentional misrepresentation are “(1) the ...

Excerpt: ..., 2020 AT 8:30 A.M. Ruling on Objections Cross‐defendants' objections to the Alves declaration nos. 1, 2, 3‐8, 10‐13, 15‐ 17, 22‐42 are sustained. Objections nos., 9, 14, 18, 19, 20 and 21 are overruled. Cross‐complainant Alves submitted a supplemental declaration in reply to the opposition filed by cross‐defendants. The court will not consider this declaration. (Plenger v. Alza Corp. (1992) 11 Cal.App.4th 349, 362, fn. 8; see Nazir...

Excerpt: ...s are sustained in their entirety as new evidence submitted with reply papers, especially in the context of a summary judgment motion, is improper where the opposing party has not had a sufficient opportunity to respond. (Plenger v. Alza Corp. (1992) 11 Cal.App.4th 349, 362, fn. 8.) K. Hovnanian's objections to the A. Maria Plumtree declaration are sustained in their entirety. K. Hovnanian's objections to the Joseph Callanan declaration are susta...

Excerpt: ... p. 4.) A proof of service of summons filed April 9, 2010, states that Hoehn was served by substituted service on “Shannon Smith, Girlfriend – Co‐Occupant” on April 1, 2010, after several unsuccessful attempts. A declaration of mailing states that the summons and complaint were mailed to the service address on April 2, 2010. No answer was filed within the time required by law, and Hoehn's default was entered on May 18, 2010. Hoehn moves t...

Excerpt: ...ty of perjury in compliance with Code of Civil Procedure section 2015.5. Ruling on Motion The motion is granted. The trial court shall grant a motion for summary judgment if “all the papers submitted show that there is no triable issue as to any material fact and the moving party is entitled to a judgment as a matter of law.” (Code of Civil Procedure section 437c(c).) The moving party bears the initial burden of establishing every element of ...

Excerpt: ...el arbitration is whether there exists an agreement to arbitrate. Cruise v. Kroger Co. (2015) 233 Cal.App.4th 390, 396. It is the moving party that carries this initial burden by proving, by a preponderance of the evidence, the existence of a valid arbitration agreement. Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972. Petitioners meet their burden here. The court disagrees with plaintiff's contention that her claim for speci...

Excerpt: ... Civil Procedure sections 12 and 12a. Ruling on Motion In the current motion, defendants seek judgment notwithstanding the jury's verdict in favor of plaintiff. They also seek the alternative relief of a new trial. The court will address each request separately. Judgment Notwithstanding the Verdict (JNOV) The authority to review a JNOV motion is proscribed by statute. “The court, before the expiration of its power to rule on a motion for new tr...

Excerpt: ...ion 533, an injunction may be modified or dissolved upon a showing that there has been a material change in the facts upon which the injunction was granted, that the law has changed, or that the ends of justice would be served by modification or dissolution. An injunction may be granted when it appears that the plaintiff is entitled to the demanded relief, and that plaintiff would suffer irreparable injury if the enjoined action 4 were allowed to...

Excerpt: ... LLC's (“SNP's”) prior motion to enforce, as well as a proposed judgment thereon. The court's ruling did not provide further 3 direction on the contents of the proposed judgment. Subsequent to this action, on March 16, 2020, the court entered a modified ruling on submitted matter and judgment thereon. SNP now moves to vacate the March 16, 2020 judgment (“the Judgment”) pursuant to Code of Civil Procedure section 663. In its reply brief, S...

Excerpt: ...McNally”) moves for summary judgment as to plaintiffs' cause of action for negligent misrepresentation. The party seeking summary judgment bears the burden of showing there is no triable issue of material fact and that the party is entitled to judgment as a matter of law. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. If the moving party carries its initial burden of production to make a prima facie showing that there are no tria...

Excerpt: ... CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR JUNE 18, 2020 AT 8:30 A.M. NOTICE TO ALL PARTIES WHO REQUEST ORAL ARGUMENT: UNLESS OTHERWISE NOTED, ORAL ARGUMENT WILL BE HEARD ON THURSDAY, JUNE 25, 2020 AT 8:30 A.M. stay of proceedings due to defendant filing a bankruptcy action in the Eastern District Federal Bankruptcy Court. Pursuant to 11 U.S.C., §362(a)(1), federal bankruptcy law imposes an automati...

Excerpt: ...equest for contempt. Contempt is a quasi‐criminal proceeding where the alleged contemnor is afforded the same rights as a criminal defendant. (In re M.R. (2013) 220 Cal.App.4th 49, 57.) Initiation of such proceedings requires the submission of an affidavit that sufficiently alleges the grounds for contempt. (Code of Civil Procedure section 1212.) The affidavit is essentially a charging document, framing the issues to be tried. (Reliable Enterpr...

Excerpt: ...ned with leave to amend. A party may demur to a complaint where the pleading does not state facts sufficient to constitute a cause of action. (Code of Civil Procedure section 430.10(e).) A demurrer tests the legal sufficiency of the pleadings, not the truth of the plaintiff's allegations or accuracy of the described conduct. (Bader v. Anderson (2009) 179 Cal.App.4th 775, 787.) The allegations in the pleadings are deemed to be true no matter how P...

Excerpt: ... discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier; (3) the likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party; and (4) the length of time elapsed between the date previously set, and the date presently set,...

Excerpt: ...ddresses a conflict between a party's right to choose its counsel and the overall needs of the judicial system to maintain ethical standards of professional responsibility for attorneys. Comden v. Superior Court (1978) 20 Cal.3d 906, 915; People ex rel. Dept. of Corrections v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1145 (SpeeDee Oil). “The paramount concern must be to preserve public trust in the scrupulous administration of j...

Excerpt: ...031.300(c). However, repeated conduct of failing to comply with discovery obligations may lead the court to find an abuse of the discovery process and award sanctions on that basis. Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, overruled on other grounds in Garcia v. McCutchen (1997) 16 Cal.4th 469, 478, fn. 4. Farmers Insurance Exchange's Motion to Compel Responses to Special Interrogatories Farmers Insurance Exchange's mo...

Excerpt: ...ruled. Ruling on Motion Plaintiff Barbara Farinha moves for preliminary approval of class action settlement. The court has broad discretion in determining whether (1) a settlement is fair and reasonable, (2) the class notice is adequate, and (3) certification of the class is proper. In re Cellphone Fee Termination Cases (2010) 186 Cal.App.4th 1380, 1389; Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 234‐235. 8 “[The] preliminary ...

Excerpt: ...m. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) The court reviews the claims keeping these principles in mind. Looking to the first and second causes of action as to defendant Stephanie Gard, the allegations within the complaint are insufficient to support either breach of contract or breach of fiduciary duty against Mrs. Gard. There are no allegations that Mrs. Gard was a partner. To the contrary, the complaint...

Excerpt: ...unction preserves the status quo until a final determination on the merits of the pending action. (Casmalia Resources, Ltd. v. County of Santa Barbara (1987) 195 Cal.App.3d 827, 832.) Preliminary injunctions, however, are not causes of action; a cause of action must exist before such injunctive relief may be granted. (Shell Oil Co. v. Richter (1942) 52 Cal.app.2d 164, 168.) The trial court must review two factors prior to issuing a preliminary in...

Excerpt: ...d in a limited civil case, which include title to personal property with an amount that does not exceed $25,000; when equity is pleaded as a defensive matter [pleaded in an answer, counter claim, or cross‐complaint]; and (3) cases to vacate a judgment or order obtained in a limited civil case. (Code of Procedure sections 85, 86(b)(1)‐(3); Strachan v. American Ins. Co. (1968) 260 Cal.App.2d 113, 117.) All other equitable claims are unlimited c...

Excerpt: ...'s motion to compel is granted in part, and denied in part, as follows: 9 Defendant's motion to compel further responses to Form Interrogatories Nos. 6.4, 6.5 and 6.7 is granted. Responses to interrogatories must be “as complete and straightforward as the information reasonably available to the responding party permits. If an interrogatory cannot be answered completely, it shall be answered to the extent possible.” Code Civ. Proc. § 2030.220...

Excerpt: ...”), but also determined that BBC's breaches did not cause damage to plaintiff Campus Oaks Apartments 1, LLC (“COA”). COA contends that a new trial should be granted because (1) the jury's verdict is unsupported by the evidence; and (2) the damages awarded are inadequate. The trial court's authority over a new trial motion is proscribed by statute. Code of Civil Procedure 657 provides, in part: “A new trial shall not be granted upon the gr...

Excerpt: ...aining, and/or supervision. The scope of the current motion is limited in light of this dismissal and is denied as moot as to the fourth cause of action, fifth cause of action, and as to individual claims of plaintiffs Ekaterina Polupan and Demitry Mediucho. Evidentiary Rulings Preliminarily, declarations in support of the motion are required to follow fundamental requirements. While declarations in civil law and motion practice are routine, such...

Excerpt: ... to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. Id. Plaintiff submits evidence establishing an agreement to provide legal services to defendant Paul Nau. (Pltf. SSUMF 1.) During the course of that representation, plaintiff sent defendant monthly billing statements which detailed the services provided, the time expended, the costs incurred, and the balance due. (Pltf. SSUMF 4.) Defendant m...

Excerpt: ...g objections are overruled. Plaintiffs' objections to the declaration of William Flournoy are ruled on as follows: Objection Nos. 3, 7 and 8 are sustained. The remaining objections are overruled. Plaintiffs' objections to the declaration of Frieda Fisher‐Dubois are ruled on as follows: Objection No. 2 is sustained. The remaining objections are overruled. Plaintiffs' objections to other evidence submitted by defendants are ruled on as follows: O...

Excerpt: ...ed the “supplemental opposition” filed by plaintiff on May 8, 2020. The court notes that plaintiff first filed opposition to defendant's motion on August 30, 2019. After the court granted a continuance pursuant to Code of Civil Procedure section 473c(h), plaintiff filed a subsequent opposition on March 6, 2020. The supplemental opposition would be the third responding memoranda to plaintiff's motion, and considering the supplemental oppositio...

Excerpt: ... may be made on the grounds that a cause of action does not state facts sufficient to constitute a valid cause of action. Code Civ. Proc. § 438. Defendant's motion seeks judgment on the complaint on the grounds that the complaint is not verified. As a preliminary matter, a motion for judgment on the pleadings does not appear to be the proper vehicle to challenge the complaint due to the lack of verification. The proper objection where a party fa...

Excerpt: ...expired. Code Civ. Proc. § 438. The same rules governing demurrers apply. Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999. 5 Tort liability against a public entity requires an authorizing statute or enactment. Gov. Code § 815(a); Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 802. Plaintiff points to no statutory authority to assert a claim against a public entity for general negligence, or for premises liability...

Excerpt: ...fession. Code Civ. Proc. § 483.010(c). Damages must be measurable by reference to the contract itself, and the basis for computing damages must be reasonable and certain. CIT Group/Equipment Financing, Inc. v. Super DVD, Inc. (2004) 115 Cal.App.4th 537, 541. Based upon review of the plaintiff's application, the court finds pursuant to Code of Civil Procedure section 483.010 that plaintiff has established the probable validity of the claim exceed...