Excerpt: ...th 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. However, 5 the court does not assume the truth of contentions, deductions, or conclusions of facts or law. Id. The demurrer is overruled as to plaintiffs' first cause ...

Excerpt: ... action alleged in plaintiff Change Lending, LLC's 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 prope...

Excerpt: ...l arbitration where there is a written contract involving interstate or foreign commerce or maritime transactions. (9 U.S.C. §§1, 2.) Where the parties incorporate the FAA into the agreement, the FAA governs a party's request to compel arbitration. (Victrola 89, LLC v. Jaman Properties 8 LLC (2020) 46 Cal.App.5th 337, 346.) It is defendant that bears the burden of establishing the applicability of the FAA in this instance. (Hoover v. American I...

Excerpt: ...nd burdensome at this juncture. The notice process will identify the number of employees along with their various job titles, allowing plaintiff to propound more tailored, concise requests. Plaintiff's request for sanctions is also denied as plaintiff did not prevail on the motion. Plaintiff's Motion to Compel Further Responses to Request for Production of Documents and Sanctions The motion is denied. The court has carefully reviewed defendant's ...

Excerpt: ...rson (2009) 179 Cal.App.4th 775, 787.) The allegations in the pleading 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.) The court reviews the demurrer keeping this in mind. Defendants contend the entire FAC is barred since it was filed after the applicable statutes of limitations for each cause of action. Specifically, they argue the Governor h...

Excerpt: ...Inc. v. Moriana. The Court heard oral argument in March 2022. At issue is the enforceability of arbitration agreements which prohibit an employee from pursuing representative claims in the PAGA context. A decision is expected within the next couple months. Under current law, PAGA claims cannot be arbitrated. Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 384. Thus defendants would have no justification to file a motion to ...

Excerpt: ... in ruling on the motion include: (1) the necessity and the reasons for the discovery; (2) the diligence or lack of diligence of the 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 oth...

Excerpt: ...ied. Plaintiff first argues that plaintiff is barred from asserting an unlawful detainer claim under the COVID‐19 Rental Housing Recovery Act. As the current action is not based on the nonpayment of rental debt which accumulated due to the COVID‐19 pandemic, the COVID‐19 Rental Housing Recovery Act does not apply to this action. Defendant also raises factual and evidentiary issues regarding the propriety of a lease agreement between defenda...

Excerpt: .... Madden v. Kaiser Foundation 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 existe...

Excerpt: ...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 of material fact. (Ibid.) In reviewing a motion for summary judgment, the trial court must view the supporting evidence, and inferences reasonably drawn from such evidence, in the light most favorable to the opposing party. (Aguilar v. Atlant...

Excerpt: ...estraint when ordering terminating sanctions. The dismissal of an action is a drastic sanction that is only applied after a party has had an opportunity to comply with a court order yet still fails to do so. (see Ruvalcaba v. Government Employees Ins. Co. (1990) 222 Cal.App.3d 1579, 1581.) The totality of the circumstances surrounding the discovery violations are considered when ordering terminating sanctions: (1) whether the party's conduct was ...

Excerpt: ...ctions, to special interrogatories, set one, numbers 1, 7, 8, 9, 10, 12, 14, 15, 16, 18, 19, 20, and 21. Defendant Onyems shall serve further verified responses on plaintiff no later than May 31, 2022. Plaintiff's request for sanctions is denied, because imposition would be unjust. (Code Civ. Proc., § 2030.300, subd. (d).) However, repeated failures to comply with discovery obligations may lead the court to find an abuse of the discovery process...

Excerpt: ...e settlement is approved …” (Declaration of Jordan W. Maurer, ¶ 4.) Specifically, the dispute between plaintiff and the City involves whether compliance with Medicare requirements means that the settlement agreement must provide for a Medicare Set‐aside Arrangement (“MSA”). The pleadings filed by plaintiff and the City comprehensively discuss the Medicare Secondary Payer (“MSP”) Act, the prohibition on Medicare making payment for a...

Excerpt: ...is uncertain. Code Civ. Proc. § 430.10(e), (f). 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. The court does not assume the truth of contentions,...

Excerpt: ...erson (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. However, the court does not assume the truth of contentions, deductions, or conclusions of facts or law. Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6. The demurrer is overruled. The allegations of the complaint are sufficient to state cause...

Excerpt: ...rt the discovery subpoenas are improper since Gene Jackson filed a bankruptcy proceeding that is still currently pending. “Upon the filing of a bankruptcy proceeding, federal bankruptcy law imposes an automatic stay on all state and federal proceedings outside the bankruptcy court against the debtor and the debtor's property. [Citations.]” “ ‘The automatic stay is self‐executing and is effective upon filing the bankruptcy petition. [Cit...

Excerpt: ... error in law. (Code of Civil Procedure section 657; Montoya v. Barragan (2013) 220 Cal.App.4th 1215, 1227; Oakland Raiders v. National Football League (2007) 41 Cal.4th 624, 633.) In this instance, defendant asserts irregularities in the proceedings; accident/surprise; excessive damages; and an error in law warrant a new trial. Defendant, however, has not made a sufficient showing to support relief under any of these grounds. “An ‘irregulari...

Excerpt: ... own attorney fees. [Citations] The Legislature codified the American rule in 1872 when it enacted Code of Civil Procedure section 1021, which states in pertinent part that ‘Except as attorney's fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties; …' [Citation.]” (Trope v. Katz (1995) 11 Cal.4th 274, 278‐ 279.) A...

Excerpt: ...1422, 1428; Douglas v. Superior Court (1989) 215 Cal.App.3d 155, 158. Courts must apply a policy of great liberality in permitting amendments to the complaint “at any stage of the proceedings, up to and including trial,” absent prejudice to the adverse party. Elling Corp. v. Superior Court (1975) 48 Cal.App.3d 89. A motion for leave to amend must be accompanied by a declaration which specifies the purpose and effect of the proposed amendments...

Excerpt: ...v. 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. The court does not assume the truth of contentions, deductions, or conclusion...

Excerpt: ... strike is entitled to an award of attorneys' fees incurred in filing the motion. Code Civ. Proc. § 425.16(c)(1). The purpose of the fee‐ shifting provision is to discourage meritless lawsuits and also to provide financial relief to the victims of lawsuits which are subject to the anti‐SLAPP law. City of Los Angeles v. Animal Defense League (2006) 135 Cal.App.4th 606, 627. Courts have held that only fees and costs incurred on the motion to s...

Excerpt: ...vertheless, the court is permitted to take judicial notice of the legal effect of a document's language where that effect is clear. Poseidon Dev., Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117‐1118; see also 11 McElroy v. Chase Manhattan Mortgage Corp. (2005) 134 Cal.App.4th 388, 394 (judicial notice taken of recordation of notice of default under deed of trust, date of recording, and amount stated as owing). Defendant Wi...

Excerpt: ...rt rulings of other state and federal courts are not binding on this court. Plaintiff's objections to evidence are overruled. Defendant Starbucks Corporation moves to compel arbitration of plaintiff Tessa Turner's claims, and to stay the action pending arbitration. The arbitration statutes evidence a strong public policy in favor of arbitration that is frequently approved and enforced by the courts. Madden v. Kaiser Foundation Hospitals (1976) 17...

Excerpt: ...motion is substantively deficient in other ways. Defendant's motion argues that the subpoena is facially defective and/or procedurally defective, but defendant does not provide evidence regarding the timing of service of any documents, nor does the motion include the subpoena itself. Defendant does not demonstrate that the subpoena is duplicative or burdensome. Defendant does not demonstrate that the subpoena seeks documents that are irrelevant t...

Excerpt: ...ly filed pursuant to Code of Civil Procedure section 472, the court will deem the amended answer as having been filed in accordance with the court's granting of leave to amend. 7 Motion to Strike Sourdough Solutions, Incorporated's Answer Plaintiff and cross‐defendant John P. Casper Family Partnership's motion to strike Sourdough Solutions, Incorporated's (“Soudough's”) answer is granted with leave to amend on the grounds that the answer wa...

Excerpt: ...joined action were allowed to proceed. (Code Civ. Proc., § 526, subd. (a).) In making this determination, “the court must consider whether the party seeking the injunction is likely to prevail on the merits” and balances the relative harm to the parties. (Mitsui Manufacturers Bank v. Texas Commerce Bank‐Ford Worth (2d Dist. 1984) 159 Cal.App.3d 1051, 1059.) The plaintiff has the burden of showing they would be harmed without a preliminary ...

Excerpt: ... (Code Civ. Proc., § 2019.210. emphasis added.) The reasonable particularity requirement is meant “to help the court shape discovery, and to give the defendant the opportunity to develop defenses.” (Brescia v. Angelin (2d Dist. 2009) 172 Cal.App.4th 133, 149–50.) Reasonable particularity does not mean the claimant “has to define every minute detail of its claimed trade secret at the outset of the litigation. Nor does it require a . . . t...

Excerpt: ...tory pleading against petitioner. This first accusatory complaint was based upon the complaints of eight different patients who collectively received dental work from petitioner between 2010 through 2014. The allegations involved multiple acts of improper dental work causing significant pain, improper billings, unavailability, and improper record keeping. There were eight separate claims alleged against petitioner, which included seven counts of ...

Excerpt: ...17 Cal.App.4th 218, 227.) A defendant challenging a complaint must show either (1) the court has no jurisdiction over the subject matter within the complaint or (2) the complaint 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 material factual issues that require evidentiary resolution. (Schabarum v. California Legislatur...

Excerpt: .... (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, PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE MICHAEL W. JONES TENTATIVE RULINGS FOR MAY 5, 2022 AT 8:30 A.M. PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and Motion – Tentative Rul...

Excerpt: ...er identified as DR6045‐6120 (“the Draft Agreement”), ordering the continued deposition of Michael Devereaux, and appointing a discovery referee to oversee the continued deposition. The Draft Agreement was produced in discovery by plaintiff Donyne Ranch LLC, in response to a request for production of documents served by defendant. As described by defense counsel, it contains handwritten notations. Defense counsel believes that the notations...

Excerpt: ...rt has jurisdiction to consider defendant's motion for attorney's fees. Defendant is the prevailing party in this action, as the court granted defendant's motion for summary judgment. Defendant requests attorneys' fees pursuant to Civil Code section 1717 totaling $51,595, plus $60 in costs incurred in the filing of the current motion. The first amended complaint alleged a single cause of action against defendant for breach of written contract. Th...

Excerpt: ...om the parties regarding the issue of whether a private right of action existed under Health and Safety Code section 1280.18, or CCR, Title 16, § 1881(d). The court's file reflects that plaintiffs filed a supplemental brief on March 28, 2022, and that defendants filed a supplemental brief on March 29, 2022. The parties reference an earlier supplemental brief purportedly filed by defendants on or about March 22, 2022. However, the court's file re...

Excerpt: ...atutes governing unlawful detainers are to be strictly construed. (WDT‐Winchester v. Nilsson (1994) 27 Cal.App.4th 516, 526.) Code of Civil Procedure section 1179.11(a) states a summons shall not be issued unless the plaintiff submits a filing stating, among other things, plaintiff has received no communication from the tenant that the tenant has applied for governmental rental assistance to cover the unpaid rental debt demanded from defendant ...

Excerpt: ...personal representative and the defendant's estate as defendants after the death of the defendant. The court has broad discretion in granting leave to amend a pleading with such discretion exercised liberally to permit amendments. (Howard v. County of San Diego (2010) 184 Cal.app.4th 1422, 1428.) Liberality is warranted here, especially in light of the unique factual circumstances. Contrary to defendants' assertions, the complaint is not barred o...

Excerpt: ...cluding (1) delays and last‐minute cancellations of the deposition of Cross; (2) inadequate document productions; (3) failure to cooperate with the Receiver; (4) late payment of sanctions and non‐payment of other charges requested by plaintiff; (5) unprofessional and uncivil correspondence from defense counsel; and (6) the failure to respond to meet and confer letters. Terminating sanctions are an extreme sanction for those cases where misuse...

Excerpt: ...sing out of plaintiff Greg Boas's purchase of a 2008 Ford F250 on or about January 1, 2009. The complaint in this action was filed on April 29, 2019. A notice of settlement was filed August 30, 2021. Defendant agreed to pay plaintiff $66,335 in exchange for surrender of the subject vehicle, plus fees and costs to be determined by motion. Plaintiff now moves for an award of attorneys' fees and costs. Civil Code section 1794(d) authorizes the recov...

Excerpt: ... 652, 656. Where discovery seeks to invade the constitutional right to privacy, the party seeking the discovery must show that the information sought is directly relevant to claims at issue in the litigation, there is a compelling need for the information, and the information is essential to a fair resolution of the lawsuit. Alch v. Superior Court (2008) 165 Cal.App.4th 1412, 1425. The subject subpoena seeks the following documents: 14 1. Your Fi...

Excerpt: ...ommissioner was “vested with the authority to hear any future or further hearings or the trial in this case, whether contested or uncontested, as Judge Pro Tempore.” Upon stipulation of the parties, a court commissioner is empowered to adjudicate a “cause” until its final determination. Cal. Const., art. VI, § 21. The determination of a cause encompasses subsequent proceedings that are its “direct progeny,” but not those considered �...

Excerpt: ... Rulings on Pride's Request for Judicial Notice and Edelweiss's Objection Pride's request for judicial notice is granted. Edelweiss's objection to Pride's April 12, 2022, filing is sustained. 11 Ruling on the Motion Pride's motion is denied. The settlement of fewer than all joint tortfeasors must be made in good faith with respect to the remaining defendants. (Code Civ. Proc., §§ 877, 877.6.) “The party asserting the lack of good faith shall ...

Excerpt: ... Health Sacramento Sierra Region dba Sutter Roseville Medical Center (“Sutter”) in the memorandum of costs filed February 2, 2022. The memorandum of costs states total costs in the amount of $53,788.39. However, the court notes that this total does not include expert witness fees in the amount of $38,944.37, which are set forth only in the memorandum of costs worksheet. Sutter's opposition to the motion confirms that Sutter also seeks expert ...

Excerpt: ...e SSUMF as required for a motion for summary adjudication. (Id. at subd. (d)(1)(A).) Due to these procedural deficiencies, the court limits its review to a motion for summary judgment only. Ruling on the Motion The motion for summary judgment is denied. Defendant seeks summary judgment or summary adjudication against all four causes of action in plaintiff's complaint. A party is entitled to bring a motion for summary judgment where PLACER COUNTY ...

Excerpt: ...cribed conduct. (Bader v. Anderson (2009) 179 Cal.App.4th 775, 787.) The allegations in the pleading 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.) The court, however, does not accept the truth of contentions, deductions, or conclusions of law. (Genesis Environment Services v. San Joaquin Valley Unified Air Pollution Control District (2003) 1...

Excerpt: ...urchased medical device from defendant Cynosure, LLC (“Cynosure”), which was financed by a loan obtained from MMP pursuant to an Equipment Finance Agreement (“EFA”). Plaintiff alleges breach of contract, breach of the implied covenant of good faith and fair dealing, fraud, and unfair competition claims against Cynosure. Plaintiff alleges breach of contract, breach of the implied covenant of good faith and fair dealing, and unfair competit...

Excerpt: ...exatious because of his connections with vexatious litigant Rodney Quigley (“Quigley”). To that end, defendants provide evidence that Quigley has involved himself in the current action by corresponding with defendants and counsel under the auspices of “representing” Harmoning's interests, or having been directed by Harmoning to send communications. Defendants also note that the formatting and style of pleadings filed by Harmoning and corr...

Excerpt: ...al 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 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. However, ...

Excerpt: ...son (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 court does not assume the truth of contentions, deductions, or conclusions of facts or law. Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6. The court previously sustained a demurrer to the verified petition and complaint as to the claims as...

Excerpt: ...r to reopen discovery, which include (1) the necessity and reason for the discovery; (2) the diligence or lack of diligence in seeking the discovery and the reason it was not completed earlier; (3) the likelihood that granting the motion will delay trial; and (4) the length of time that has elapsed between the prior trial date and the current trial date. (Code of Civil Procedure section 2024.050(b).) The court has carefully reviewed the motion an...

Excerpt: ... motion. The court declines to provide any further continuance for the purposes of discovery. While plaintiffs do have a right to conduct discovery of the jurisdictional facts necessary to sustain their burden of proof, they must also demonstrate that discovery will likely lead to the production of evidence establishing jurisdiction. (In re Automobile Antitrust Cases I and II (2005) 135 Cal.App.4th 100, 127.) Plaintiffs make a general request for...

Excerpt: ...cle XI, Section 1(b) of the California Constitution by depriving the Placer County Board of Supervisors of its constitutional authority to set employee compensation. Respondent goes on to challenge the second and third causes of action as derivative of the first cause of action, failing to allege additional facts to support any separate legal theory. A demurrer is reviewed under well‐established principles. A party may demur where the pleading ...