Excerpt: ...pitals (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 arbitration agreem...

Excerpt: ...ntract, regardless of who initiates the action. Pacific Custom Pools, Inc. v. Turner Construction Co. (2000) 79 Cal.App.4th 1254, 1268. One who is not a party to the contract may be able to recover fees under section 1717 only if it would have been liable for such fees had it lost the action. Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 128‐ 129. A nonsignatory defendant seeking to recover fees under Civil Code section 1717 must establ...

Excerpt: ... of the pleadings, not the truth of the allegations or the accuracy of the described conduct. Bader v. Anderson (2009) 179 Cal.App.4th 775, 787. The allegations in the pleadings are deemed true no matter how improbable they may seem. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. However, the court does not assume the truth of contentions, deductions, or conclusions of facts or law. Evans v. City of Berkeley (2006) ...

Excerpt: ...(Id. at 437c(p)(2).) Only when this initial burden is met does the burden shift to the opposing party to establish a triable issue of material fact. (Ibid.) In reviewing a motion for summary judgment, the trial court must view the supporting evidence, and inferences reasonably drawn from such evidence, in the light most favorable to the opposing party. (Aguilar v. Atlantic Richfield Company (2001) 25 Cal.4th 826, 843.) The court reviews the motio...

Excerpt: ...5 involves a complaint filed by plaintiffs Kim Johnson and KD Johnson and Associates (collectively “Johnson”), against defendant Aimee Lubell (“Lubell”), and a cross‐complaint by Lubell against Johnson. The pleadings arise from counseling services provided by Johnson to Lubell and her two sons, Jonathan Scharrer and Jaxon Scharrer. Johnson alleges claims against Lubell arising from Lubell's alleged failure to pay in full for the service...

Excerpt: ... 29, 2014 (“the Trust action”). Code of Civil Procedure section 1048 permits consolidation of multiple actions which involve common questions of law or fact. In determining whether multiple actions pending in the same court should be consolidated, the court examines various issues, including the timeliness of the motion, whether granting consolidation would cause undue confusion or complexity, and whether consolidation would adversely prejudi...

Excerpt: ...Trust action”). 3 Code of Civil Procedure section 1048 permits consolidation of multiple actions which involve common questions of law or fact. In determining whether multiple actions pending in the same court should be consolidated, the court examines various issues including the timeliness of the motion, whether granting consolidation would cause undue confusion or complexity, and whether consolidation would adversely prejudice the rights of ...

Excerpt: ...motion, or through a cost memorandum at the conclusion of the litigation). Johnson filed a special motion to strike the first, second, third, fourth and ninth causes of action alleged by defendant and cross‐complainant Aimee Lubell (“Lubell”) in the first amended cross‐complaint. The court granted the motion as to the first, second, and fourth causes of action in their entirety, and as to Paragraph Nos. 51, 53 and 54 of the third cause of...

Excerpt: ...and the exhibits attached thereto, and Exhibit 4 to the Plaintiffs' Motion for Summary Judgment. /// PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE MICHAEL W. JONES TENTATIVE RULINGS FOR MARCH 17, 2022 AT 8:30 A.M. PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and Motion – Tentative Rulings Page 2 of 10 Ruling on the Motion In the current request, plaintiffs seek summary judgment against def...

Excerpt: ...ivil Procedure section 877.6. Defendants Aspen Earthworks, Inc. and Aspen Developers, Corp's Motion for Judgment on the Pleading as to Plaintiff's Complaint Ruling on Request for Judicial Notice The Aspen defendants' request for judicial notice is denied and plaintiff's objection no. 2 is sustained. They request the court take judicial notice of the original complaint filed by plaintiff, which was superseded through the filing of the first amende...

Excerpt: ...��scorched earth'; nor does it mean lack of civility. [Citations.] Zeal and vigor in the representation of clients are commendable. So are civility, courtesy, and cooperation. They are not mutually exclusive.” In re Marriage of Davenport (2011) 194 Cal.App.4th 1507, 1537. As one court stated, “[t]he timbre of our time has become unfortunately aggressive and disrespectful. Language addressed to opposing counsel and courts has lurched off the p...

Excerpt: ...rder to prevent a trustee's sale of her home due to several alleged violations of the California Homeowner Bill of Rights (“HBOR”). The fees were awarded pursuant to Civil Code section 2924.12(h), which states: A court may award a prevailing borrower reasonable attorney's fees and costs in an action brought pursuant to this section. A borrower shall be deemed to have prevailed for purposes of this subdivision if the borrower obtained injuncti...

Excerpt: ...e overruled. Ruling on Motion Defendant Placer Valley Sports Complex, Inc. seeks summary adjudication as to the first, third, fourth and sixth causes of action alleged in the complaint filed by Sherry Larsen, 4 individually and dba California State Enterprises. A party may move for summary adjudication if there is no merit to one or more causes of action and the motion completely disposes of a cause of action. Code Civ. Proc. § 437c(f)(1). The m...

Excerpt: ...ay time limit for response, responses have been filed, and 2 there is no evidence that any abuse of the discovery process was intended or occurred (C.C.P. § 2030.290(c)). Defendant's companion request to be relieved from the statutory waiver of objections to interrogatory responses is granted. The responses served by Defendant are substantially compliant with the requirements of the Discovery Act and, as previously noted, the failure to serve ti...

Excerpt: ...Hope shall provide verified responses, without objections, to form interrogatories, set one, within ten days of service of the signed order after hearing. Sanctions in the amount of $705.00 are imposed upon plaintiff Bank of Hope. The court notes plaintiff has engaged in a pattern of not responding to discovery propounded by defendants as seen in the court's prior orders after the June 18, 2020 hearings on defendants' discovery motions. Defendant...

Excerpt: ...duct. (Bader v. Anderson (2009) 179 Cal.App.4th 775, 787.) In this vein, the allegations 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.) A review of the allegations within the first amended cross‐complaint, when read in conjunction with the partnership agreement attached to the pleading, are sufficient to plead both breach of fiduciary duty and neglige...

Excerpt: ...reinafter be referred to as “attorney defendants.” Attorney defendants caused a 3‐day notice to perform or quit to be served on plaintiff for an alleged violation of the lease. Attorney defendants thereafter filed against plaintiff a verified complaint for unlawful detainer. The unlawful detainer action is set for trial. In Count 4 of his First Amended Complaint, plaintiff alleges the 3‐ day notice and the verified complaint for unlawful ...

Excerpt: ... further response if the propounding party deems that any of the following apply: (1) An answer to a particular interrogatory is evasive or incomplete.”) See also Leach v. Superior Court (1980) 111 Cal.App.3d 902, 95 (noting that no meet and confer is required where there is a “total failure to respond to interrogatories within the time prescribed by statute”). In light of the substance of the motion, it is subject to the 45‐day limit set...

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

Excerpt: ...on no. 1. Ruling on Motion The motion is granted and defendants are awarded $18,060.00 in attorneys' fees. In the current request, defendants seek to expunge the lis pendens notice filed by plaintiffs on April 6, 2021 along with the related recorded document. The expungement of a lis pendens involves a two prong analysis. The first prong involves a review of the complaint to determine whether a real property claim is involved. (Code of Civil Proc...

Excerpt: ...iff's allegations or accuracy of the described conduct. (Bader v. Anderson (2009) 179 Cal.App.4th 775, 787.) In this vein, the allegations in the pleading are deemed to be true no matter how improbable the allegations may seem. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) The demurrer is reviewed keeping this in mind. A review of the allegations within the complaint, when read as a whole and with the judicially ...

Excerpt: ...ery in the civil action while the criminal action is pending. Avant! Corp. v. Superior Court (2000) 79 Cal.App.4th 876, 885. In determining whether to grant a defendant's request to stay discovery, the court considers the extent to which the defendant's Fifth Amendment rights are implicated; the interests of the plaintiff in proceeding expeditiously and the potential prejudice of a delay; the burden the proceedings may impose on the defendants; t...

Excerpt: ...laintiff's counsel to defense counsel, which defendant argues was a valid settlement offer to settle plaintiff's claims against defendant for policy limits. Defendant further argues that the offer was accepted, and that a binding settlement agreement was entered into. This claim is the basis for defendant's second amended cross‐ complaint, which seeks specific performance of the alleged settlement agreement. Defendant moved for summary judgment...

Excerpt: ...surable by reference to the contract itself, and the basis for computing damages must be reasonable and certain. CIT Group/Equipment Financing, Inc. v. Super DVD, Inc. (2004) 115 Cal.App.4th 537, 541. In this case, defendant fails to establish that the claim sued on is a commercial claim. Against an individual, attachment lies only on a claim that arises “out of the conduct by the defendant of a trade, business or profession.” Code Civ. Proc....

Excerpt: ...ation as to their first cause of action for quiet title and second cause of action for declaratory relief along with summary adjudication of the corresponding quiet title and declaratory relief claims alleged in defendant's cross‐complaint. The motion is improper to grant on procedural grounds since it is aimed at pleadings that have been superseded by amendments. PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HON...