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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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