Excerpt: ...ghth and ninth causes of action alleged by plaintiff Albert Ristau, as successor trustee of the Wright 1990 Trust, on the grounds that the Wright 1990 Trust cannot assert elder abuse pursuant to Welfare and Institutions Code section 15610.30. 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...

Excerpt: ...Net Proceeds Remaining from the Partition Sale The court determines the net proceeds remaining after the sale of the Granite Bay property is $161,536.56, which includes an unendorsed check for $6.30. The parties are instructed to both endorse this check within five days of service of the signed order after hearing. /// PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR A...

Excerpt: ... 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 §437c(c).) The trial court engages in a specific analysis when reviewing a motion for summary judgment. First, it must define the scope of the motion by looking to the operative pleading. The pleadings serve as the “outer measure of materiality” for...

Excerpt: ...Clear Lake Riviera Community Association v. Cramer (2010) 182 Cal.App.4th 459, 473. However, in Clear Lake, the Court of Appeal analyzed a judgment for injunctive relief after trial, not a preliminary injunction requested pursuant to Code of Civil Procedure section 526(a). Plaintiffs fail to establish that the Clear Lake test applies for the purpose of this motion. In determining whether a preliminary injunction should be granted, the court must ...

Excerpt: ...e parties' settlement agreement filed by defendant Kila Tahoe LLC (“Kila”). In the prior motion, Kila sought to compel SNP to participate in binding mediation with the Honorable Fred K. Morrison (Ret.) of JAMS. SNP opposed the motion, arguing that the court could not modify the terms of the settlement agreement and compel SNP to participate in binding mediation with anyone other than Donald Person, or anyone to whom SNP did not expressly agre...

Excerpt: ...s demurrer is before the court largely because defense counsel would not respond to numerous attempts by plaintiff's counsel to meet and confer. The declaration of plaintiff's counsel shows he made over a dozen attempts by email or phone to confer with defense counsel to discuss a demurrer. However, plaintiff's counsel never could cajole or extract any substantive response from defense counsel. Thus, what should have been subject to a meaningful,...

Excerpt: ... action. (Code of Civil Procedure section 430.10(e).) The court “gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded.” (Aubry v. Tri‐ City Hospital District (1992) 2 Cal.4th 962, 966‐967; see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) When reading the complaint to give it a reasonable interpretation, the court is reading the pleading in context. (Schifando v. City...

Excerpt: ...cience Associates (“ESA”), or subconsultants Tully & Young, Fehr & Peers, West Yost and Civil Engineering Solutions (collectively “subconsultants”), relating or referring to the Project, from January 1, 2013 through December 12, 2017; and (2) documents relating to any meeting or discussion between Richland, ESA, and the subconsultants. Petitioners further request that they be permitted to serve subpoenas for business records on ESA and th...

Excerpt: ...aw and Motion – Tentative Rulings Page 3 of 15 Ruling on Motion The motion is denied. 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 §437c(c).) The trial court engages in a specific analysis when reviewing a motion for summary judgment. First, it mus...

Excerpt: ...filed a motion for attorneys' fees pursuant to Code of Civil Procedure section 473(b) and (c)(1). As set forth in detail in the opinion of the Court of Appeal filed March 29, 2019, this action has been plagued by “repeated errors and omissions by [plaintiff's] counsel”. After an order sustaining defendant's demurrer to the complaint, and imposing a deadline by which an amended complaint must be filed, plaintiff failed to file an amended compl...

Excerpt: ...against the HOA in plaintiffs' first amended complaint. A motion for judgment on the pleadings has the same function as a general demurrer, but is made after the time for demurrer has expired. Code Civ. Proc. § 438. 7 The same rules governing demurrers apply. Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999. The HOA contends that exculpatory provisions within the CC&Rs bar plaintiffs' claims against it. Specifically, Section 5.18 o...

Excerpt: ...s for issuance of an assignment order, an order for examination of a third party, and to strike various motions to tax filed by judgment debtor Gilman. Corporation's motions are GRANTED IN PART and DENIED IN PART. Preliminarily, it appears Gilman's oppositions were untimely. However, the Court perceives no preojudice to the opposing party in considering the late‐filed papers, and has done so. The parties are reminded, however, to comply with al...

Excerpt: ...th the current action. The motion is made pursuant to Code of Civil Procedure section 403, which states: A judge may, on motion, transfer an action or actions from another court to that judge's court for coordination with an action involving a common question of fact or law within the meaning of Section 404. The motion shall be supported by a declaration stating facts showing that the actions meet the standards specified in Section 404.1, are...

Excerpt: ...are overruled. Ruling on Motion Campus Oaks Apartments 1, LLC (“COA”), Scott Canel (“Canel”) and the Scott I. Canel 2011 Family Trust (“Canel Trust”) move for summary adjudication as to the first, fourth and sixth causes of action alleged by defendant and crosscomplainant BBC Roseville Oaks, LLC (“BBC”) in its cross‐complaint. A defendant may move for summary adjudication if it contends that there is no merit to one or more caus...

Excerpt: ...42 Thursday Civil Law and Motion – Tentative Rulings Page 10 of 19 noneconomic damages for physical pain. The jury awarded plaintiff Eva Vesely $4,668.08 for economic damages for her past medical expenses; $1,375 for past noneconomic loss for physical pain; and $0 for future noneconomic damages for physical pain. Plaintiffs contend a new trial should be granted because (1) the damages awarded are inadequate; and (2) because the verdict is again...

Excerpt: ...on should not have been submitted for public filing. The minor has no primary role in this litigation; the circumstances of any alleged abuse of the minor are tangential, at best, to this action. The public has limited, if any, interest in or need for knowledge of these tangential issues involving the minor child. Whereas, there is an overriding interest to protect the health and well‐being of this child from any harassment, embarrassment, psyc...

Excerpt: ...583.310 based on the failure to bring the action to trial or otherwise seek judgment within five years of commencement. Defendant and cross‐complainant Centex Homes, and dismissed intervenor Lexington Insurance Company filed responses to the OSC, which the court has considered. Code of Civil Procedure section 583.310 provides, “[a]n action shall be brought to trial within five years after the action is commenced against the defendant.” The ...

Excerpt: ...f action. Code Civ. Proc. § 430.10(e). A demurrer tests the legal 5 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 ...

Excerpt: ...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, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. Id. Plaintiffs' complaint in this action alleged five causes of action: (1) violatio...

Excerpt: ...e 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. 6 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 upon which the attachment is based, and that attachment is not sought for an improper purpose. Plaintiff is grante...

Excerpt: ...olicy in favor of arbitration that is frequently approved and enforced by the courts. Madden v. Kaiser Foundation Hospitals (1976) 8 17 Cal.3d 699, 706; Laswell v. AG Seal Beach, LLC (2010) 189 Cal.App.4th 1399, 1405. “A strong public policy favors the arbitration of disputes, and doubts should be resolved in favor of deferring to arbitration proceedings.” Rowe v. Exline (2007) 153 Cal.App.4th 1276, 1282; Laswell v. AG Seal Beach, LLC, supra,...

Excerpt: ...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.) It is worth noting defendants failed to sufficiently challenge each cause of action within the FAC, limiting its moving papers to only the second and third causes of action. The attempt to include the first cause of ac...

Excerpt: ...ct of terminating sanctions, courts do not impose such a sanction lightly. Upon careful review of the moving papers and the court file, the court determines that terminating sanctions are appropriate in this instance. Defendant served plaintiff Kuldip Bains with discovery requests, including interrogatories and requests for production. Plaintiff failed to serve any responses. Defendant moved to compel responses which motion was unopposed and gran...

Excerpt: ...ained. Ruling on Motion Defendant Sunworks, Inc. moves for summary judgment and/or summary adjudication as to the first amended complaint filed by plaintiff Douglass Stiegmann. Summary judgment may be granted where there is no triable issue as to any material fact, and moving party is entitled to judgment as a matter of law. Code Civ. Proc. § 437c(c). The party seeking summary judgment bears the burden of showing there is no triable issue of mat...

Excerpt: ... 3.350(a)(1)(A). The notice does not contain the captions of all cases sought to be consolidated. Cal. R. Ct., rule 3.350(a)(1)(B). The notice was not filed in each case sought to be consolidated. Cal. R. Ct., rule 3.350(a)(1)(C). The motion does not include a proof of service. Cal R. Ct., rule 3.350(a)(2)(C). Counsel for defendant U.S. Bank National Association (“U.S. Bank”) states that their office was never served with the motion. It appea...

Excerpt: ... 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 the court's review of the plaintiff's application, and the declarations submitted in support of the application, the court finds pursuant to Code of Civil Procedure section 483.010 that plaintiff has established the probable validity of the claim upon which the attachment is based, and...

Excerpt: ...rther, it is noted plaintiff filed a notice of intent to appear at oral argument on July 9, 2019. This is an improper method to request oral argument. Plaintiff is referred to Placer Court Local Rule 20.2.3 for more information regarding the proper method to request oral argument in civil law and motion PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR JULY 11, 2019 AT ...

Excerpt: ...ing, at a minimum, of a notice of hearing on any motion; the motion itself; and a memorandum in support of the motion. (California Rules of Court, Rule 3.1112(a).) The court file and defendants' proof of service show defendants failed to file and serve a notice of motion and a memorandum in support of this request. The failure to include these documents is fatal. Defendant has not been afforded proper notice of the motion and the court is unable ...

Excerpt: ... memorandum in support of the motion. (California Rules of Court, Rule 3.1112.) The current motion included only the notice, omitting the essential motion and memorandum from the supporting filings. The notice provides the court with insufficient information to substantively review plaintiff's request. Thus, the motion is incomplete and denied. To the extent the motion seeks relief under Code of Civil Procedure section 663, not only did plaintiff...

Excerpt: ...iff's complaint joins several separate causes of action, including both local and transitory claims, the transitory action controls as to venue. Central Bank v. Superior Court (1973) 30 Cal.App.3d 913, 917‐ 918. Transitory actions are subject to the general rule of venue that the action be tried in the county of defendant's residence. Under Code of Civil Procedure section 395(a), “[e]xcept as otherwise provided by law and subject to the power...

Excerpt: ...iff's complaint joins several separate causes of action, including both local and transitory claims, the transitory action controls as to venue. Central Bank v. Superior Court (1973) 30 Cal.App.3d 913, 917‐ 918. Transitory actions are subject to the general rule of venue that the action be tried in the county of defendant's residence. Under Code of Civil Procedure section 395(a), “[e]xcept as otherwise provided by law and subject to the power...

Excerpt: ...ode Civ. Proc. § 2030.220(b). Plaintiff's responses to form interrogatory (employment) Nos. 210.2, 210.3 and 212.6, and special interrogatory Nos. 4, 12 and 26 are insufficient as plaintiff does not respond completely to each interrogatory. Plaintiff shall serve further verified responses to form interrogatory (employment) Nos. 210.2, 210.3 and 212.6, and special interrogatory Nos. 4, 12 and 26, on or before July 12, 2019. The motion is otherwis...

Excerpt: ...ing interest will be prejudiced if the record is not sealed, (4) the sealing of the record is narrowly tailored, and (5) there are no less restrictive means to achieve the overriding interest. Cal. R. Ct., rule 2.550(d). Defendant moves to seal Exhibit F to the appendix of exhibits in support of defendant's motion for summary judgment/adjudication on the grounds that the exhibit contains personal compensation and benefits information relating to ...

Excerpt: ...Proc. § 2030.220(a). “If an interrogatory cannot be 3 answered completely, it shall be answered to the extent possible.” Code Civ. Proc. § 2030.220(b). The HOA's responses to form interrogatory Nos. 4.1, 12.1, 12.2, 12.3, 16.1, 16.2, 16.3, 16.7, 16.8, 16.9 and 17.1 are insufficient as the HOA does not respond completely to each interrogatory. The HOA shall serve further verified responses to the subject interrogatories on or before July 12,...

Excerpt: ...overruled. Ruling on Motion Intervenor Iana Shumeiko (“Intervenor”) moves to expunge the lis pendens recorded by plaintiff in connection with this action. A party may move to expunge a lis pendens on the grounds that the complaint does not contain a real property claim, or on the grounds that claimant has not established by a preponderance of the evidence the probable validity of any real property claim. Code Civ. Proc. §§ 405.31, 405.32. A...

Excerpt: ...the Alameda County litigation in connection with the instant motion. Based on the evidence provided, the court cannot determine that there are common questions of fact or law in the two actions, that the convenience of the parties, witnesses and counsel will be promoted by the transfer, or that there is a risk of inconsistent rulings if the transfer is not ordered. Plaintiffs' request that the causes of action in the cross‐complaint be stayed i...

Excerpt: ... therein. Plaintiff's objection to defendant's reply brief is overruled. Defendant BBV Profit Sharing Plan, a 401 K Deferred Compensation Retirement Plan (“BBV”) demurs to plaintiffs' 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...

Excerpt: ...de of Civil Procedure section 128(a)(3) and (5) to compel Ms. Finnerty to produce his client file. While there is some case law and statutory authority to support the proposition that the court may grant the relief requested, the motion will be denied. First, the California Code of Professional Conduct already requires an attorney upon termination of representation to promptly release to the client, at the request of the client, all client materi...

Excerpt: ...vil Procedure section 473(b) with defendant claiming either excusable neglect or surprise in his failure to consider the offer. After carefully considering the briefing of the parties, the court denies defendant's request. Initially, the extension of Section 473(b) relief here does not appear proper. The section allows the court to relieve a party “from a judgment, dismissal, order, or other proceeding taken against him or her through his or he...

Excerpt: ...ction. (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 improbable the allegations may seem. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) The demurrer is rev...

Excerpt: ...ate facts sufficient to constitute a cause of action. (Code of Civil Procedure section 430.10(e).) “A demurrer based on a statute of limitations is appropriate if the ground appears on the face of the complaint or from matters of which the court may or must take judicial notice.” (Aaronoff v. Martinez‐Seftner (2006) 136 Cal.App.4th 910, 918.) A demurrer tests the legal sufficiency of the pleadings, not the truth of the plaintiff's allegatio...

Excerpt: ... by the Social Security Administration. Mr. Fraidenburgh now seeks to terminate his appointment, without appointing a new GAL, contending plaintiff is competent to handle his own affairs. The request, however, suffers from a complete lack of admissible evidence to support his removal as GAL. First, Mr. Fraidenburgh fails to submit any declarations executed under the penalty of perjury. Second, none of the documents submitted are properly authenti...

Excerpt: ... a deposition subpoena duces tecum where the records sought are not within the permissible scope of discovery. In this case, plaintiff objects to the subpoena on the grounds that it seeks documents in violation of plaintiff's right to privacy in her financial affairs. A right of privacy exists as to a party's confidential financial affairs, even when the information sought is admittedly relevant to the litigation. Cobb v. Superior Court (1979...

Excerpt: ...t be answered completely, it shall be answered to the extent possible.” Plaintiff's responses to form interrogatory Nos. 7.1(c), 15.1 and 17.1 are insufficient as plaintiff does not respond completely to the interrogatory. Nor is plaintiff's failure to respond completely to each interrogatory excused by its responses to other discovery requests. Plaintiff shall serve further verified responses to form interrogatory Nos. 7.1(c), 15.1 and 17.1, w...

Excerpt: ...ina Koga (“Koga”) demur to the first cause of action for elder abuse and second cause of action for wrongful death alleged 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....

Excerpt: ...ied. Lexington was dismissed from this action on August 23, 2017. Although Lexington purports to move on behalf of defaulted defendants Energetic Painting & Drywall, Inc. and Energetic Lath & Plaster, Inc., Lexington has not intervened on behalf of these parties. Code of Civil Procedure section 583.310 states that “[a]n action shall be brought to trial within five years after the action is commenced against the defendant.” Code of Civil Proce...

Excerpt: .... 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, the court does not assume the truth of contentions, deductions, or conclusions of facts or law. Id. As a preliminary matter, pl...

Excerpt: ...ding or a portion of a pleading. Code Civ. Proc. § 435(b)(1). A motion to strike may be granted to strike irrelevant, false, or improper matters in a pleading; or to strike a pleading not drawn in conformity with the laws of the state or an order of the court. Code Civ. Proc. § 436(a), (b). Plaintiff establishes that defendant Promist Misting and Cooling Corporation, a California corporation dba Mistingpros Cooling Corporation's corporate statu...

Excerpt: ...ell established principles. 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).) The analysis focuses on the legal sufficiency of the pleadings, not the truth of plaintiff's 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 to be true no ma...

Excerpt: ..., 2019. A valid and accepted offer of compromise is deemed a compromise settlement, which is enforceable under general principles of contract law. (Code of Civil Procedure section 998(b), (f); Goodstein v. Bank of San Pedro (1994) 27 Cal.App.4th 899, 905‐ 906.) In order for a Section 998 offer to be valid, it must be in writing; state the terms and conditions of the award; and contain a provision allowing the offeree to accept the offer by sign...

Excerpt: .... 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 PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR JUNE 20, 2019 AT 8:30 A.M. PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and Motion – Tentative Rulings Page 4 of 12 Ruvalcaba v. Governme...

Excerpt: ...ire plaintiffs to prove each element of the claim to meet their burden of proof. (Code of Civil Procedure section 437c(p)(1); Paramount Petroleum Corp. v. Superior Court (2014) 227 Cal.App.4th 226, 241.) They do not seek relief under Section 437c(t), so this subdivision does not apply. Ruling on Request for Judicial Notice Plaintiffs' request for judicial notice is granted under Evidence Code section 452. Ruling on Objections Plaintiffs' objectio...

Excerpt: ... 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 as true all facts that may be implied or reasonably inferred from facts expressly alleged, unless they are contradicted by judicially noticed facts. Evan...

Excerpt: ...an unlawful detainer action may be brought at any time after the answer is filed upon five days notice. Code Civ. Proc. §1170.7. 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. The moving party has the burden of showing, by affidavit, facts establishing every elemen...

Excerpt: ...onditional settlement of the action with plaintiff on or about December 3, 2019. Defendant made three payments of $1,762.60 each before requesting in writing that he be permitted to skip the payment due in March 2019 because of a change in jobs. Plaintiff apparently did not respond to this request. Thereafter, on April 3, 2019, defendant informed plaintiff that he would have funds available for his next payment on April 12, 2019. Plaintiff also d...

Excerpt: ...y Responses Defendant's motion to compel further discovery responses was continued by stipulation of the parties to July 5, 2019, at 8:30 a.m. in Department 31. Motion for Leave to Amend Complaint Defendant Granite Financial Solutions, Inc. dba Granite Data Solutions' request for judicial notice is denied. Plaintiff's motion for leave to amend complaint is denied. Plaintiff moves for leave to file an amended complaint in this action to add three ...

Excerpt: ...rdingly, the dismissal may be vacated to permit entry of judgment pursuant to the terms of the settlement. The motion to vacate dismissal is granted. The motion to enter judgment in the amount of $9,416.30 is denied. In ruling on plaintiff's prior motion to enter judgment, the court noted errors in plaintiff's calculations. Plaintiff's current motion does not acknowledge the court's prior ruling, or correct the errors. Plaintiff is not entitled t...

Excerpt: ...– Tentative Rulings Page 9 of 12 Ruling on Motion The unopposed motion is granted. The trial court shall grant a motion for summary adjudication where a party establishes there is no merit to one or more causes of action. (Code of Civil Procedure section 437c(f)(1).) In reviewing a motion for summary adjudication, the trial court must view the supporting evidence, and inferences reasonably drawn from such evidence, in the light most favorable t...

Excerpt: ...he third cause of action for negligent failure to warn, train, or educate and fifth cause of action for sexual harassment. The motion has the 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 either (1) the court has no jurisdiction over t...

Excerpt: ... number of hours reasonably expended multiplied by the reasonable hourly rate. (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095; Serrano v. Priest (Serrano III) (1977) 20 Cal.3d 25, 48‐49.) The lodestar figure may then be adjusted, based upon factors specific to the case, to fix the fees at a fair market value. (Ibid.) Steyer Lowenthal Fees The court has carefully reviewed submitted declarations and billing statements in conjunction with the...

Excerpt: ...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.) A review of the first cause of action shows there are insufficient factual allegations to support the claim for equitable indemnity/apportionment against the cross‐defendant. The demurrer is sustained without leave to amend since cross‐compl...

Excerpt: ...rring to arbitration proceedings.” Rowe v. Exline (2007) 153 Cal.App.4th 1276, 1282; Laswell v. AG Seal Beach, LLC, supra, at 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. Defendants in this case do not dispute the existence of an arbitration agreement, but argue that plaintiffs have waiv...

Excerpt: ...rial conference, and July 8, 2019, trial date set in Case No. S‐CV‐39027 are vacated. The October 18, 2019, mandatory settlement conference, October 25, 2019, civil trial conference, and November 4, 2019, trial date set in Case No. S‐CV‐40015 shall remain as set for the consolidated actions. Motion to Compel Plaintiffs' Responses to Discovery Defendants' motion to compel plaintiffs' responses to form interrogatories, special interrogatori...

Excerpt: ...proper. See Deyo v. Kilbourne (1978) 84 Cal.3d 771, 783. Plaintiff's responses to form interrogatory Nos. 8.6, 8.7 and 17.1 are non‐responsive. Plaintiff fails to state the dates he did not work and for which he lost income, or the manner in which he calculated the total income he alleges he lost. Further, plaintiff's responses to each request for admission were not unqualified admissions, as he denied request Nos. 2‐11. In response to specia...

Excerpt: .... Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999. Defendants' motion is granted with leave to amend. The complaint alleges an enforcement action under the Private Attorneys General Act of 2004, California Labor Code sections 2698 et seq. (“PAGA”) to recover civil penalties for applicable violations occurring “at any time between one year prior to the filing of this complaint until judgment”. (Complaint at 1:4‐12.) Plaint...

Excerpt: ...tion to Enforce the Settlement Agreement…upon which entry of Judgment was based…” Hintz submits his own declaration expressly stating, under penalty of perjury, that he had only retained his prior attorney Ulises Pizano‐Diaz “for an isolated matter unrelated to the instant lawsuit”. (Hintz declaration ¶7.) This statement is clearly untrue in light of the email string provided by plaintiff's counsel. PLACER COUNTY SUPERIOR COURT THURS...

Excerpt: ...senger service rather than personal service. Second, amendment of a judgment to add a nonparty as an alter ego to the judgment is generally not available where plaintiff obtained a default judgment. (see Wolf Metals Inc. v. Rand Pacific Sales, Inc. (2016) 4 Cal.App.5th 698, 703‐704, 709‐709.) Third, plaintiff has not made a sufficient showing of successor corporation liability to warrant amendment to include the nonparty corporate entities. (...

Excerpt: .... This is because a motion for summary judgment under Code of Civil Procedure section 437c may not be brought in a class action involving a CRLA claim. (Civil Code section 1781(c).) The proper method for challenging a CRLA claim is to file a motion for a no‐merit determination. (Civil Code section 1781(c)(3); Princess Cruise Lines, Ltd. v. Superior Court (2009) 179 Cal.App.4th 36, 41‐42.) Practically speaking, there is no difference in the an...

Excerpt: ...il such time as plaintiff provides a sufficient legal analysis and supporting evidence to address the following issues: Standard of Review for PAGA Claim Settlement Purporting to cite to Labor Code section 2699(l), plaintiff contends the court's review of the PAGA settlement is limited to a review of the penalties sought in the agreement. (Plaintiff's motion p. 1:14‐21.) This is a complete mischaracterization of the section. The actual language...

Excerpt: ...itration agreement is also a party to a pending court action or special proceeding with a third party arising out of the same transaction. (Code of Civil Procedure section 1281.2.) 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 Cal.3d 699, 706; Laswell v. AG Seal Beach, LLC, et al. (2010) 189 Cal.App.4th 1399,...

Excerpt: ...ended complaint. The claims asserted by plaintiffs include (1) medical malpractice; (2) abuse of dependent adult; (3) medical battery; and (4) loss of consortium. 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...

Excerpt: ...ful termination in violation of public policy [Tameny claim]; section cause of action for disability discrimination in violation of public policy; and third cause of action for negligent failure to prevent discrimination and retaliation [FEHA]. The burden differs between the first and second causes of action as opposed to the third cause of action, which shall be discussed in further detail below. First and Second Causes of Action – Wrongful Te...

Excerpt: ...n is to penetrate through the pleading and expedite litigation by avoiding a needless trial on a claim. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843, 849, 855.) The trial court conducts a specific analysis when considering any request for summary adjudication. First, the scope of the PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR MAY 23, 2019 AT 8:30...

Excerpt: ...ot offering it earlier. (Mink v. Superior Court (1992) 2 Cal.App.4th 1338, 1342.) Plaintiff's PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR MAY 23, 2019 AT 8:30 A.M. PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and Motion – Tentative Rulings Page 2 of 9 supporting declaration fails to provide a sufficient explanation as to why the new evidence was no...

Excerpt: ...otion The motion is granted with leave to amend. A motion for judgment on the pleadings has the same function as a demurrer but is brought when 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 plaintiff bringing such a motion must establish the complaint states facts sufficient to constitute a cause of action and the answer does ...

Excerpt: ... Evidence Defendants' request for judicial notice is granted. While the court takes judicial notice of the existence of trial testimony of Bill Posey, the court may not take judicial notice of the truth of Mr. Posey's statements. Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882. Defendants' objections to the declaration of Terence McGee, M.D., are overruled. Plaintiffs' objections to defendants' reply...

Excerpt: ...ks summary adjudication of plaintiff's request for exemplary/punitive damages under Civil Code section 3340. A motion for summary adjudication may be brought against a claim for damages, specified in Civil Code section 3294, where there is no merit to the punitive damages claim. The moving party bears the initial burden of establishing that one or elements of the damages claim cannot be established. (Id. at 437c(p)(2).) Only when this initial bur...

Excerpt: ...plaintiffs' joinder, the same result would obtain. The motion filed in SCV‐39027 appears to seek judgment with respect to an equitable remedy pleaded in that action. No authority is provided for the ability of the court to issue the requested order in the current procedural context. Diamond v. Superior Court (2013) 217 Cal.App.4th 1172, cited in support of the motion, is not on point as that case involved the denial of a summary judgment motion...

Excerpt: ...mes Thompson's purchase of a 2013 Dodge Dart. The complaint in this action was filed March 28, 2017. The parties settled the case on September 24, 2018, just prior to commencement of trial. Defendants agreed to pay plaintiff $117,000 in settlement of the action. Civil Code section 1794(d) authorizes the recovery of attorneys' fees to a buyer who prevails in an action under that section, “determined by the court to have been reasonably incurred ...

Excerpt: ...al notice is granted in its entirety under Evidence Code section 452. The court notes, however, that taking judicial notice of a document is not akin to accepting the truth of the matters stated within the document. (Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374.) Ruling on Demurrer The demurrer is sustained with leave to amend. A demurrer is reviewed based upon well‐established principles. A defendant may demur to a complaint ...

Excerpt: ....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.) Plaintiff's complaint alleges six separate causes of action. The allegations within each claim are disjointed, partially illegible, and conclusory in nature, failing to sufficiently allege facts against the moving...

Excerpt: ...egations or accuracy of the described conduct. (Bader v. Anderson (2009) 179 Cal.App.4th 775, 787.) For the purposes of a demurrer, the allegations in the pleading are deemed to be 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 reviews the FAC keeping these principles in mind. A review of the FAC, when the pleading is read as a whole, shows plaintiff has plead...

Excerpt: ... for general whistleblower violations under Labor Code section 1102.5. A demurrer is reviewed based upon well‐ established principles. A defendant 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).) The demurrer functions as a test regarding the legal sufficiency of the pleading; it does not address the truth of the allegations or accuracy of t...

Excerpt: ... in their entirety. Ruling on Motion The motion is granted. An action by a secured lender for specific performance of an assignment of rents provision in a deed of trust, mortgage, or separate assignment document. The appointment may be continued after entry of a judgment for specific performance if appropriate to protect, operate, or maintain real property encumbered by a deed of trust or mortgage or to collect rents therefrom while a pending no...

Excerpt: ...icy in favor of arbitration that is frequently approved and enforced by the courts. 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. “A strong public policy favors the arbitration of disputes, and doubts should be resolved in favor of deferring to arbitration proceedings.” Rowe v. Exline (2007) 153 Cal.App.4th 1276, 1282; Laswell, supra, at p. 1405. Under...

Excerpt: ...ference. Terminating sanctions are an extreme sanction for those cases where misuses of the discovery process are so pervasive that a less drastic sanction will not sufficiently address the discovery derelictions. Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 796‐797. In light of the extreme effect of terminating sanctions, courts do not impose such a sanction lightly. Upon careful review of the moving papers and the court file, the court determi...

Excerpt: ... consolidation is to promote trial convenience and economy by avoiding duplication of procedure, especially with respect to the proof of issues common to both actions. See McClure, on Behalf of Caruthers v. Donovan (1949) 33 Cal.2d 717, 722‐723. Consolidation rests within the sound discretion of the trial court. Plaintiff seeks to consolidate an unlimited civil action in which she alleges breach of the Homeowners' Bill of Rights, fraud and viol...

Excerpt: ...bed conduct. (Bader v. Anderson (2009) 179 Cal.App.4th 775, 787.) For the purposes of a demurrer, the allegations in the pleading are deemed to be 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 reviews the complaint keeping these principles in mind. The complaint does not identify the causes of action brought against the defendants in either the caption of the...

Excerpt: ...s of action alleged in plaintiff's TAC. A demurrer is reviewed based upon well‐established principles. A defendant 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).) The demurrer functions as a test regarding the legal sufficiency of the pleading; it does not address the truth of the allegations or accuracy of the described conduct. (Bader v. ...

Excerpt: ...Ruling on Demurrer In the current request, defendant demurs to all six causes of action. A demurrer is reviewed based upon well‐established principles. A defendant 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).) The demurrer functions as a test regarding the legal sufficiency of the pleading; it does not address the truth of the allegations...

Excerpt: ...ed to these three claims in light of defendants' clarification regarding the scope of the demurrer. Ruling on Demurrer To reiterate, the current demurrer challenges only the fourth, fifth, and sixth causes of action in the FAC. 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...

Excerpt: ...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.) The moving party has the burden of showing, by affidavit, facts establishing every element necessary to sustain a judgment in favor of the party. (Consumer PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR APRIL 25, 2019 AT 8:30 A.M. PLACER...

Excerpt: ... 15 Cal.3d 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. In response to the current motion, plaintiff asserts th...

Excerpt: ...bed 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, the court does not assume the truth of contentions, deductions, or conclusions of facts or law. Id. The dem...

Excerpt: ...restitution, challenging the water rate structure adopted by respondent Foresthill Public Utility District (“the District”) on June 25, 2014. Petitioner sought a declaration that the District's water rate structure violated Proposition 218, California Constitution, Article XIIID, restitution of all fees and charges collected in violation of Proposition 218, a permanent injunction prohibiting the billing and collection of water charges or fees...

Excerpt: ...n Motion for Summary Judgment, or in the Alternative, for Summary Adjudication Defendant Schaffer's Mill Community Association (“the HOA”) moves for summary judgment or summary adjudication of plaintiffs' claims for breach of the CC&Rs, breach of fiduciary duty, and nuisance. “[T]he party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter...

Excerpt: ...n for Summary Judgment or Summary Adjudication Defendant and cross‐complainant South Sutter Water District (“the District”) moves for summary judgment or summary adjudication as to the claims pleaded by the District in the crosscomplaint. Summary judgment may be granted where there is no triable issue as to any material fact, and moving party is entitled to judgment as a matter of law. Code Civ. Proc. § 437c(c). A plaintiff moving for summ...

Excerpt: ...ily Trust”) move to quash or modify three depositions subpoenas served on U.S. Bank National Association, Sterling Bank and Southern Bank. Moving parties assert that particular requests for documents within the subpoenas are not reasonably particularized and seek documents protected by Canel and the Canel Family Trust's constitutional right to privacy. Broadly, the specific document requests to which moving parties object seek loan applications...

Excerpt: ...aint is granted in part and denied in part. In assaying this application, the court has sought to balance the principle of the law's general liberality in allowing amendment of pleadings on the one hand, against the forthcoming trial date on the other. As the court has previously observed, the amount of public resources that have been expended in more than thirty (30) law and motion matters in the year that this matter has been pending seems very...

Excerpt: ...f may move for summary adjudication as to one or more causes of action if that plaintiff contends there is no viable affirmative defense. (Code of Civil Procedure section 437c(f)(1).) A summary adjudication motion will only be granted where it completely disposes of the cause of action. (Ibid.) As with a summary judgment motion, the court engages in a specific analysis for review. First, it must define the scope of the motion by looking to the op...