Excerpt: ...'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, the court does not assume the truth of contentions, deductions,...

Excerpt: ...iciency 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, the cou...

Excerpt: ...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, 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...

Excerpt: ... 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 arbitration agreement. Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972. “‘[A] party cannot be required to submit to arbitration any dispute which he has ...

Excerpt: ...he court will exercise its discretion and consider the substance of defendants' motion, despite plaintiff's contention that notice was insufficient. Defendants' motion is denied. Defendants' notice of motion fails to set forth the statutory authority for coordination of the two cases. Coordination pursuant to Code of Civil Procedure sections 404 et seq. applies to civil actions pending in different courts. See Code Civ. Proc. § 404. Defendants' ...

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

Excerpt: ...otter's purchase of a 2012 Jeep Grand Cherokee. The complaint in this action was filed June 2, 2016. The parties settled the case on April 8, 2019, on the first day of trial. Defendants agreed to pay plaintiffs $122,000 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 by the buyer i...

Excerpt: ...ion, the court takes judicial notice of the entire file in this action. Cross‐complainants' objections to evidence are ruled on as follows: Objection Nos. 1, 2 and 4 are sustained. Objection No. 3 is overruled. Cross‐complainants' move for leave to amend their cross‐complaint. In determining whether leave to amend should be granted, the court is bound by Code of Civil Procedure section 426.50, which states: A party who fails to plead a caus...

Excerpt: ...ns 473(d), 473(b), or based on a lack of personal jurisdiction. As a preliminary matter, the court finds that Aizen was validly served with the summons and complaint in this matter, pursuant to Code of Civil Procedure section 415.20(b), which states: If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served, as specified in Section 416.60, 416.70, 416.80, or 416.90, a summons may be...

Excerpt: ...al factual issues that require evidentiary resolution.” (Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216.) A review of the complaint shows that each of the common counts causes of action are sufficiently pleaded. The same is not true for defendant's answer, which essentially admits to the indebtedness in paragraph 5. Since defendant is not able to plead facts supporting a defense to the common counts claims, the motion is g...

Excerpt: ...reasonably available to the responding party permits.” By suggesting that responding party is aware of the existence additional facts which are not described in the responses, defendant has not complied with his duty to provide complete answers. The motion is also granted as to Special Interrogatory No. 10. Defendant's response to this interrogatory is overly conclusory and states “some of the referenced damages may not yet have occurred” w...

Excerpt: ... by the current motion. Further, even if plaintiff had requested set aside of the dismissal, plaintiff requests judgment on terms that are not in conformance with the terms of the stipulation for settlement. First, plaintiff requests interest on the full amount of the stipulated judgment amount, $10,887.22, from December 1, 2017 to February 12, 2019, despite the fact that payment of $4,834.56 was made on January 8, 2018. Second, plaintiff request...

Excerpt: ...he language of the statute is mandatory, as opposed to permissive, and accordingly the court does not have discretion to deny judicial preference in cases where plaintiff is under 14 years of age and has a substantial interest in the case as a whole. Peters v. Superior Court (1989) 212 Cal.App.3d 218, 224. In this case, the parties do not dispute that plaintiffs Alex Azeltine and Franklin Azeltine are minors under the age of 14 who have a substan...

Excerpt: ...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, the court does not assume the truth of contentions, deductions, ...

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. Plaintiff's first cause of a...

Excerpt: ...h 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. Andersen contends that the allegations of the complaint est...

Excerpt: ... Tentative Rulings Page 3 of 30 expert witness whom that party has subsequently retained. (Code of Civil Procedure section 2034.610.) The court looks to several factors when considering the motion, which include whether the moving party will be prejudiced by the amendment. (Code of Civil Procedure section 2034.620.) Initially, defendants have made a sufficient showing to support the need to amend their expert witness disclosure based upon the abr...

Excerpt: ...sor's website. Defendant Sero Amusement Company (Sero) objects to the entirety of these documents as either (1) having an improper showing the documents were actually recorded, (2) inadmissible hearsay, and (3) improper foundation. None of these objections are well taken. The recorded documents submitted to the court include certifications from the Placer County Clerk‐Recorder's Office, sufficiently establishing they were recorded. While Sero i...

Excerpt: ...ils to submit a sufficient declaration showing Turner was properly served PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR APRIL 18, 2019 AT 8:30 A.M. PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and Motion – Tentative Rulings Page 4 of 30 written discovery for this litigation. Furthermore, Turner has presented sufficient evidence to contradict proper s...

Excerpt: ...m. (In re Emery's Estate (1962) 199 Cal.App.2d 22.) The current guardian ad litem cannot simply withdraw from the action. He must bring a noticed motion and request a hearing seeking to withdraw along with discussing why a new guardian ad litem should not be appointed. (Ibid.) The court declines to consider any filings by plaintiff until such time as the issues surrounding the appointed guardian ad litem have been properly addressed. PLACER COUNT...

Excerpt: ...chool (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.) 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...

Excerpt: .... 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 City's demurrer is sustained as to the first cause of action for ...

Excerpt: ...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 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 court assumes the truth of all facts properly pleaded, and accepts as true all facts tha...

Excerpt: ...zes 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 by the buyer in connection with the commencement and prosecution of such action.” Plaintiff is the prevailing party in this action, and entitled to attorneys' fees pursuant to this statute. Plaintiff asserts that the attorneys' fees billed by his counsel in this action total $24,000. Plaintiff ...

Excerpt: ...d the opposition papers plaintiff filed to the ex parte application on March 22, 2019. Ruling on Defendant's Request to Present Oral Testimony On April 5, 2019, defendant filed a “Notice of Intention to Introduce Oral Testimony at hearing to Disqualify Counsel”. Defendant failed to submit an application seeking the introduction of oral testimony as required under California Rules of Court, Rule 3.1306. Further, the notice fails to sufficientl...

Excerpt: ...hereas Charity has filed notice that he does not oppose issuance of the preliminary injunction. The court may grant a preliminary injunction when it appears from the complaint that the plaintiff is entitled to the demanded relief and the plaintiff would suffer irreparable injury if the enjoined action were allowed to proceed. Code Civ. Proc. § 526(a). When determining whether to issue a preliminary injunction, the court weighs the likelihood of ...

Excerpt: ...esses of the individual and/or company associated with the telephone number, a record of all phone calls made or received by that number, a record of all text messages, including the messages themselves, sent by or received by that number, 2 and the billing and payment records regarding same, and any further records of telephone numbers associated with Kammrin Bernard from April 1, 2009 to October 31, 2017. (Declaration of Erin Scharg, ¶ 4, Exh....

Excerpt: ...il Procedure section 877.6. Motion for Summary Judgment Defendant City of Auburn's motion for summary judgment is dropped in light of the settlement agreement entered into between the City and plaintiff. Motion to Compel Further Deposition Testimony Defendant City of Auburn's motion to compel further deposition testimony is dropped in light of the settlement agreement entered into between the City and plaintiff. ...

Excerpt: ...e 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 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: ...rt 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. Defendant argues that plaintiff's claims in this action are barred by the doct...

Excerpt: ...irectly by plaintiff in a case where the court has appointed a guardian ad litem for him. Plaintiff cannot file motions on his own behalf until such time as the court approves the withdrawal of the guardian ad litem. (In re Emery's Estate (1962) 199 Cal.App.2d 22.) The current guardian ad litem cannot simply withdraw from the action. He must bring a noticed motion and request a hearing seeking to withdraw along with discussing why a new guardian ...

Excerpt: ...on. Second, there is no proof of service in the file demonstrating defendant has been properly served. It is noted service under Code of Civil Procedure section 415.10 et seq. is required since the court file does not reflect defendant has been served with the summons and complaint. Third, it is unclear whether plaintiff has the capacity to bring the current motion. According to the allegations in the complaint, the plaintiff in this action is Li...

Excerpt: ...der Section 437c(b)(1). Ruling on Request for Judicial Notice Defendant's initial request for judicial notice and supplemental request for judicial notice are both granted under Evidence Code section 452. Indeed, judicial notice of such court records is mandatory under Evidence Code section 453 where the party makes a timely request, giving all adverse parties and the court sufficient notice to permit a response to it. (See 2 Jefferson's Californ...

Excerpt: ...uests on the grounds that the responses do not comply with Code of Civil Procedure section 2031.230. With respect to the production of documents, the motion is denied as moot. In opposition to the motion, the City represents that the subject documents were produced on January 17, 2019, the same date this motion was filed. Plaintiffs concede that the documents have now been produced. With respect to the wording of the City's responses, the motion ...

Excerpt: ...dicial notice is otherwise granted. Plaintiff's request for judicial notice is granted. On December 7, 2018, plaintiff applied ex parte for a temporary restraining order prohibiting defendants from performing the following acts: Selling, attempting to sell, listing for sale or private auction, recording a trustee's deed, or otherwise completing a non‐judicial trustee sale pertaining to the residential real estate with a physical address of 6021...

Excerpt: ...fact. Walker v. Walker (1960) 177 Cal.App.2d 89, 91‐92. The purpose of 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 w...

Excerpt: ...o 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 with discovery requests on 2 February 16, 2018, including interrogatories and requests for production. Plaintiff failed to serve any responses. Defendant moved to compel responses which motion was unopposed and granted January 8, 2019. Defend...

Excerpt: ...rguments or explained how co‐defendant's arguments relate to the allegations against moving defendants. As to the second cause of action, defendants rely on extrinsic evidence which may not be considered in ruling on a 3 motion for judgment on the pleadings. Based on all of the foregoing reasons, the motion must be denied. ...

Excerpt: ...cribed 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 ...

Excerpt: ...letters, the court has considered them to the extent discussed, infra. Defendant John Mourier Construction, Inc. (“JMC”) demurs to the first amended complaint filed in this action. 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 ...

Excerpt: ...s no longer at issue, which renders the case a normal civil matter where the summary proceedings of an unlawful detainer action are inapplicable. (Civil Code section 1952.3(a).) The plaintiff is then required to seek to amend the complaint. (Civil Code section 1952.3(a)(1).) Plaintiff has also made a sufficient showing in support of reclassification of the action. (Code of Civil Procedure section 403.040.) The case is incorrectly classified in li...

Excerpt: ... representation that the corporation will take steps to remedy the suspension of its corporate status. (Green declaration ¶5.) The court declines to dismiss the action so as to afford the corporation time to revive its corporate status. Plaintiff shall provide an update to the court on the revivor of Mountain Counties Plumbing's corporate status, in addition to further information regarding plaintiff's pending bankruptcy, at the June 11, 2019 ca...

Excerpt: ...ibits A, B.) Defendant, however, has not sufficiently established the existence of a forum selection clause between the parties. Defendant submits a digital acceptance screenshot, stating it reflects plaintiff's acceptance of the agreement. (Id. at Exhibit B.) Neither the agreement nor the digital acceptance screenshot specifically identify plaintiff. (Ibid.) For his part, plaintiff submits a declaration stating his relationship with defendant be...

Excerpt: ... defendants proffer a position where plaintiffs did not make the vehicle substantively available for inspection. In presenting their papers, defendants do not appear to mention an August 24, 2018 ex parte application where defendants sought similar relief to what is requested in the current motion. At that time, plaintiffs filed an opposition framing the request as seeking a second inspection. The court denied the ex parte application but informe...

Excerpt: ...il Law and Motion – Tentative Rulings Page 4 of 7 The motion is granted. Civil Code section 3426.4 allows a prevailing party to recover attorney's fees where a misappropriation claim is made in bad faith. A determination of bad faith, for the purposes of Section 3426.4, is made where the moving party establishes both (1) objective speciousness of the claim and (2) subject bad faith in bringing or maintaining the action. (Cypress Semiconductor C...

Excerpt: .... (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 triable issues of material fact, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. Id. Plaintiff submits evidence which establishes that the parties entered into an agreement whereby plaintiff extended a line of credit to defendant. (SSU...

Excerpt: ...f'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, the court does not assume the truth of contentions, deductions...

Excerpt: ...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 court has reviewed the complaint in this action in light of defendants'...

Excerpt: ...lement agreement filed in this action pursuant to Code of Civil Procedure section 664.6. Plaintiffs Wendy Wood and Robert G. Spohr, individuals and trustees of the Wendy Wood and Robert G. Spohr Revocable Trust, and Adrienne Spohr (“plaintiffs”) entered into a settlement agreement in this action with defendants Richard M. Dewante, individually and dba Tahoe Park Water Company, and Tahoe Park Water Company (“defendants”). The settlement ag...

Excerpt: .... 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). Defendants moving for summary judgment bear the burden of persuasion that one or more elements of the causes of action in question cannot be established, or that there is a complete defense thereto. Code Civ. Proc. § 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001)...

Excerpt: ...s 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 both federal and state law, a...

Excerpt: ...on defendant Scottish American Insurance General Agency, Inc. on March 24, 2018. Defendant served responses on May 14, 2018. Defendant's responses are a hybrid of objections and statements of compliance, and the responses are unverified. When a response contains both agreements to comply and objections, the response must be verified. (See Food 4 Less Supermarkets, Inc. v. Superior Court (1995) 40 Cal.App.4th 651, 657.) Unverified responses “are...

Excerpt: ...gs Page 2 of 8 Ruling on Motion A motion for summary judgment in an unlawful detainer action may be brought at any time after the answer is filed upon five days notice. (Code of Civil Procedure section 1170.7.) A party is entitled to bring a motion for summary judgment where there are no triable issues of fact. (Code of Civil Procedure section 437c.) The party seeking summary judgment bears the burden of showing there is no triable issue of mater...

Excerpt: ...d separately. Request to File Third Amended Answer A party may seek leave to amend its pleading at any time prior to the commencement of trial and upon any terms that may be just. (Code of Civil Procedure sections 473(a)(1), 576.) Courts generally exercise liberality in permitting amendments to pleadings, especially for answers where the denial may amount to permanently depriving the defendant of a defense. (Hulsey v. Koehler (1990) 218 Cal.App.3...

Excerpt: ...aration or declaration stating the moving party contacted the deponent inquiring about the nonappearance. In the current request, plaintiff seeks to compel the attendance of defendant's PMK – along with the production of various documents – based upon the failure of the PMK to appear for the January 14, 2018 deposition. Plaintiff has not made a sufficient showing under Section 2025.450(b)(2) that he contacted defendant to inquire about the no...

Excerpt: ...ond. (see Lieberman v. Aetna Ins. Co. (1967) 249 Cal.app.2d 515, 523‐524.) The mistake must also be reasonable and justifiable. (Anderson v. Sherman (1981) 125 Cal.App.3d 228.) In this instance, defendants submit a single sentence statement in support of their request, “Did not receive denial of fee waiver.” This conclusion is insufficient to establish a material mistake to afford relief under Section 473(b). A review of the court file show...

Excerpt: ...aint does not state facts sufficient to constitute a cause of action against the defendant. Code Civ. Proc. § 438(c). The grounds for the motion must appear on the face of the challenged pleading, or be based on facts which may be judicially noticed. Code Civ. Proc. § 438(d). Plaintiffs' fourth cause of action alleges a claim of negligence against Richard Yang, Frieda Yang and Madeline Yang. Plaintiffs' fifth cause of action alleges a claim of ...

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: ... 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, the court does not assume the truth of contentions, d...

Excerpt: ...rson (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. Plaintiff's complaint alleges tha...

Excerpt: ...pplemental declaration of Jolita Mikuleniene is not properly executed under Code of Civil Procedure section 2015.5 as the declaration is not executed under the penalty of perjury under the laws of the State of California. Defendant's motion for summary judgment or, in the alternative, summary adjudication is continued to March 28, 2019 at 8:30 a.m. in Department 42. Defendant may submit an amended declaration, properly executed under Code of Civi...

Excerpt: ...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 a motion for summar...

Excerpt: ...ition is wrong or to arrive at a solution without involving the court. Defendant's motion seeks to compel further responses to a single RPD, RPD no. 27. The RPD requests the following: All DOCUMENTS, including, medical and psychological reports and records, prepared by House Psychiatric Clinic, Inc., which reflect, memorialize, refer to, or otherwise RELATE TO any treatment, opinion, or diagnosis of YOUR purported injuries alleged in the COMPLAIN...

Excerpt: ...l interrogatories, set one; and (3) request for production of documents, set one, by March 29, 2019. The request is denied as to the request for admissions. Defendant has made a sufficient showing that responses have been provided to plaintiff. PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR MARCH 7, 2019 AT 8:30 A.M. PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday C...

Excerpt: ...ent with or supported by the facts in the case. (Code of Civil Procedure section 663(1); see Glen Hill Farm, LLC v. California Horse Racing Bd. (2010) 189 Cal.App.4th 1296, 1302.) A motion to vacate does not allow for a reweighing of the facts. (Simac Design, Inc. v. Alciati (1979) 92 Cal.App.3d 146, 153.) Defendant has failed to make a sufficient showing the judgment is based upon an incorrect or erroneous legal basis. Plaintiff's sister state j...

Excerpt: ...ded complaint as Exhibit A. Exhibit A is a document titled “verified complaint” (not first amended complaint). It appears that plaintiffs then attempted to file another version of the complaint, this one titled “verified first amended complaint”, which was rejected for filing. The court presumes that defendants' demurrer relates to the “verified complaint” attached as Exhibit A to the notice of errata, which though not labeled as such...

Excerpt: ...alleges that James Allen, on behalf of himself and as agent for Marie Allen, executed the operative contract which was subsequently breached by the defendants. Plaintiff alleges damages of $14,908. James Allen was subsequently dismissed from the lawsuit. A proof of service of summons filed December 8, 2014, states that Marie Allen was personally served with the first amended complaint and summons on November 25, 2014, at 3:25 p.m. Allen denies th...

Excerpt: ...ices, Inc. and Dennis F. Graham are hereby enjoined from directly or indirectly (1) competing with plaintiff in the business of providing heating, ventilation and air conditioning services to national retail commercial customers; (2) soliciting plaintiff's national retail commercial heating, ventilation and air conditioning service customers whose business and contracts were transferred to plaintiff pursuant to the Asset Purchase Agreement; and (...

Excerpt: ...s' (“SCP's”) responses to the requests at issue do not comply with the Code of Civil Procedure, as SCP does not clearly state whether it is complying with the request, or whether it is unable to comply. For example, in response to Request No. 1, SCP sets forth several objections, then states that “to the extent that relevant non‐privileged documents otherwise subject to production and responsive to this request actually exist within the R...

Excerpt: ...nstitute a cause of action against the defendant. Code Civ. Proc. § 438(c). The grounds for the motion must appear on the face of the challenged pleading, or be based on facts which may be judicially noticed. Code Civ. Proc. § 438(d). Nationstar's motion is granted without leave to amend as to plaintiffs' first cause of action for violation of Civil Code section 2923.5. The sole remedy for noncompliance with this statute is postponement of a fo...

Excerpt: ..., failure to provide meal and rest breaks, failure to provide accurate wage statements, and violations under the Private Attorneys General Act (“PAGA”). PAGA “authorizes an employee to bring an action for civil penalties on behalf of the state against his or her employer for Labor Code violations committed against the employee and fellow employees, with most of the proceeds of that litigation going to the state. Iskanian v. CLS Trans. L.A.,...

Excerpt: ...de of Civil Procedure section 526(a).) The plaintiff has the burden of showing he/she would be harmed if the preliminary injunction were not granted. (Casmalia Resources, Ltd. v. County of Santa Barbara (1987) 195 Cal.App.3d 827, 838.) Plaintiff has not made a sufficient showing of either harm or his ability to prevail on the claims within the complaint. To reiterate, it is plaintiff that bears the burden here. He must first establish the balanci...

Excerpt: ... COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR FEBRUARY 28, 2019 AT 8:30 A.M. PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and Motion – Tentative Rulings Page 3 of 14 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.) In thi...

Excerpt: ...laint is uncertain. (Code of Civil Procedure section 430.10(f).) 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.) In the...

Excerpt: ...complaint is uncertain. (Code of Civil Procedure section 430.10(f).) 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.) PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR FEBRUARY 28, 2019 AT 8:30 A.M. PLACER SUPERIOR COURT – DEP...

Excerpt: ... 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 of Civil Procedure section 436(a), (b).) The grounds for a motion to strike must appear on the face of the pleading or from judicially noticeable matters. (Code of Civil Procedure section 437(a).) The judicially noticeable documents show defendant's corporate status is ...

Excerpt: ...ndings 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 PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR FEBRUARY 28, 2019 AT 8:30 A.M. PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and ...

Excerpt: ... Defendant filed its answer without retaining counsel, which is improper. For these reasons, the motion is granted. Defendant KD Homebuyers, Inc.'s answer, filed on May 8, 2018, is stricken. All related trial dates are vacated. A case management conference is set for April 2, 2019 at 10:00 a.m. in Department 40. Plaintiff shall request entry of default as to the defendant prior to the hearing ...

Excerpt: ...ore causes of action alleged in the complaint. Code Civ. Proc. § 437c(f)(1). A moving defendant has the initial burden of showing that a cause of action has no merit, or there is a complete defense to the cause of action. Code Civ. Proc. § 437c(p)(2). If defendant meets its initial burden, the burden shifts to plaintiff to show the existence of a triable issue of material fact as to the cause of action or defense. Code Civ. Proc. § 437c(p)(2)....

Excerpt: ...questions of law or fact. Walker v. Walker (1960) 177 Cal.App.2d 89, 91‐92. The purpose of 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. 9 Plaintiffs seek to consolidate an unlimi...

Excerpt: ...��Murray”) fails to establish compliance with the meet and confer requirements of Code of Civil Procedure section 430.41(a). For the purpose of ruling on the instant demurrer, the court will excuse this defect. Defense counsel is advised that any future demurrers must demonstrate compliance with Code of Civil Procedure section 430.41(a). 3 Murray's demurrer to the first amended complaint is overruled in part, and sustained in part with leave to...

Excerpt: ...2019, at 8:30 a.m. in Department 33. Motion for Protective Order Plaintiffs move for a protective order with respect to 42,199 written discovery requests propounded by defendants. The court may issue a protective order to protect a party from “unwarranted annoyance, embarrassment, or oppression, or undue burden and expense”. Code Civ. Proc. §§ 2030.090(b); 2033.080(b); 2031.060(b). Defendants have propounded approximately 59 form interrogat...

Excerpt: ...ows plaintiff was served on February 7, 2019. This provided only fourteen days notice, making notice insufficient. Second, defendant did not properly serve the motion on defendant. Code of Civil Procedure section 1013(e) allows the parties to serve by facsimile transmission where “the parties agree and a written confirmation of that agreement is made”. Defendant's proof of service shows service on plaintiff by facsimile transmission but does ...

Excerpt: ... not as a result of disclosure of expert witnesses under Code of Civil Procedure section 2034.430. If Mr. McPartland is not considered an expert as defined by Code of Civil Procedure section 2034.430(a) at the time his deposition was taken, the court asks counsel to address what statutory authority governs the payment of Mr. McPartland's deposition fees. The court will grant counsel leave to file supplemental memoranda on this issue if requested....

Excerpt: ...itted 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 adjudication shall only be granted where it completel...

Excerpt: ...te the fact that the court only compelled further responses to request for admissions, set one, nos. 1, 2, and 4‐ 10. Plaintiff applies a tenuous interpretation of the court's prior order. It is an impractical interpretation to assume defendants were to respond to all of form interrogatory no. 17.1 where the further responses to the corresponding request PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHA...

Excerpt: ...edural requirements of California Rules of Court, Rule 3.350. Further, plaintiffs failed to make a sufficient showing to warrant consolidation of the two actions, which stem from separate vehicle collisions. This second motion continues to suffer from procedural and substantive deficiencies. Initially, the court notes this motion was filed on January 24, 2019, on the same date as the hearing on the original motion. Plaintiffs do not address wheth...

Excerpt: ...ader 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. Plaintiff's third cau...

Excerpt: ...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. Evans v. City of Berkeley (2006) 38 Cal.4th 1,...

Excerpt: ...prior hearing. The instant motion relates to defendant Elmira Abraamyan's motion to amend or withdraw deemed admissions of December 11, 2018. On December 10, 2018 the court published a tentative ruling granting the motion. Plaintiff requested oral argument, and the court conducted 2 a hearing. The court recalls plaintiff's arguments. Generally speaking he argued concerning the sufficiency of the moving papers and the authorities relied upon in th...

Excerpt: ...Default judgment was entered against defendant on June 20, 2008. This motion was filed over ten years later, on January 2, 2019. As defendant's motion was not timely made under the requirements of the applicable statute, it must be denied. Code Civ. Proc. § 473.5; Trackman v. Kenny (2010) 187 Cal.App.4th 175, 180. ...

Excerpt: ...ndant or any defendant resides at the commencement of the action”. Defendants admit that defendant Paul D. Booth, in his capacity as trustee of the Anything Trust dated October 12, 2007 (“Booth”) is a resident of Placer County. Further, pursuant to Probate Code section 17005(a)(1), the proper county for commencement of a proceeding concerning a trust is “[i]n the case of a living trust, the county where the principal place of administrati...

Excerpt: ...w trial and/or vacate judgment did not comport with the requirements of either Code of Civil Procedure sections 659 or 663a. There was also no valid proof of service in the file showing plaintiff had served defendant with the purported motion and the motion was denied by operation of law under Sections 660 and 663a. Plaintiff provides no legal basis for the court to consider this second motion for new trial. Further, plaintiff's current motion fa...

Excerpt: ...contend no further discovery should be allowed until such time as plaintiff makes an evidentiary showing to warrant a broader scope of discovery. This limitation on discovery is improper in light of the California Supreme Court's opinion in Williams v. Superior Court (Marshall's of CA, LLC) (2017) 3 Cal.5th 531. The Williams case makes clear broad discovery is allowed in PAGA actions, generally rejecting a heightened burden of proof requirement b...

Excerpt: ...dant was seriously ill or feeble may be presented to support a claim for excusable neglect. (see Kesselman v. Kesselman (1963) 212 Cal.App.2d 196, 207‐208.) Defendant's supporting declaration sufficiently establishes he suffers from a serious illness excusing the neglectful conduct, which resulted in the entry of the default and default judgment. For these reasons, the motion is granted. The request for default and default judgment, both entere...

Excerpt: ...v. 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. Evans v. Cit...

Excerpt: ...on (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 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. C...

Excerpt: ... Inc. and Ryan Zierman move for summary adjudication as to their fifth cause of action for violation of the California Franchise Investment Law (“CFIL”) and seventh cause of action for violation of the Unfair Competition Law (“UCL”). 4 A plaintiff may move for summary adjudication if it contends that there is no affirmative defense to one or more causes of action alleged in the complaint. Code Civ. Proc. § 437c(f)(1). A moving plaintiff ...

Excerpt: ...not filed until December 27, 2018. Defendant 3 contends that she was not personally served, but does not adequately rebut the presumption of proper service established by the proof of service filed January 17, 2013. See Floveyor Int'l, Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795. Further, defendant fails to show that her lack of notice in time to defend was not caused by inexcusable neglect. Tunis v. Barrow (1986) 184 Cal.App.3d 1069, 1...

Excerpt: ...ether the memoranda of costs were properly served. The court granted Gilman's request, and continued the hearing on this motion. The court has now considered Gilman's supplemental briefing re: service of memorandum of costs as well as the judgment creditors' response to supplemental memorandum, and issues the following tentative ruling: Gilman asserts that the memoranda of costs were not properly served pursuant to the Enforcement of Judgments La...