Excerpt: ... 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.) All properly pled 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.) The court reviews the complaint keeping these principles in mind....

Excerpt: ....16(a); see also Sylmar Air Conditioning v. Pueblo Contracting Svcs., Inc. (2004) 122 Cal.App.4th 1049, 1055‐1056. In determining whether an action or claim is a SLAPP suit subject to a special motion to strike , the court evaluates first whether the claim arises out of the defendant's protected speech or petitioning activity, and second whether plaintiff can show a probability of success on the merits. Navellier v. Sletten (2002) 29 Cal.4th 82...

Excerpt: ...court approval of S.W.'s transfer of future life‐contingent payments in the amount of $835,048.21 in exchange for $10,000. S.W. states that he is 35 years old, with no minor children. He states that he is currently unemployed, experiencing a financial hardship, and that he will use the money to purchase an RV or mobile home, and an affordable car. S.W. states that he has applied to the court for approval of prior transfers of his structured set...

Excerpt: ...en moves to compel further responses to special interrogatories and requests for production of documents from defendant Hotel Heritage Group, Inc. (“HHG”). Precertification class discovery is not a matter of right. CVS Pharmacy, Inc. v. Superior Court (2015) 241 Cal.App.4th 300, 307. In determining whether discovery should be permitted, the court must employ the balancing test from Parris v. Superior Court (2003) 109 Cal.App.4th 285, 300‐30...

Excerpt: ... favor of arbitration that is frequently approved and enforced by the courts. Madden v. Kaiser Foundation Hospitals (1976) 7 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. The claims in this action arise fr...

Excerpt: ...n if she contends that there is no merit to one or more 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 her initial burden, the burden shifts to plaintiff to show the existence of a triable issue of material fact as to the cause ...

Excerpt: ...in defendant being unable to amount any defense against plaintiff's action. Practically speaking, all three of these requests seek terminating sanctions. The imposition of terminating sanctions is generally limited to extreme cases of discovery misuses that are so pervasive 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 te...

Excerpt: ...R COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR JANUARY 9, 2020 AT 8:30 A.M. action for injunctive relief. The court file, however, does not reflect plaintiffs have dismissed the third and fourth causes of action. In light of defendant's framing of his demurrer, the court will only address the challenge to the first cause of action for prescriptive easement and second cause of action for ...

Excerpt: ...ngs 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. Plaintiff alleges that Lacy Hart, a probation officer, submitted a falsified or inaccurate report in connection with a criminal action involving plaintiff. As a probation officer, defendant is entitled to absolute immunity from claims relating to the preparation, provision and filing of presenting re...

Excerpt: ...jurisdiction. Greener v. Workers' Compensation Appeals Board (1993) 6 Cal.4th 1028, 1037. However, plaintiff's moving papers raise certain issues which must be addressed before discharge may be granted. First, plaintiff's notice of motion indicates that the subject funds total $251,837.19, which plaintiff proposes to interplead. However, the declaration of Chere Tait indicates that the subject funds total $264,337.19, and the opposition filed by ...

Excerpt: ...927. Defendant must show that a suitable alternative forum exists, and that the balance of private and public interest factors makes it just that litigation proceed in the alternative forum. Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744, 751. Where plaintiff is a California resident, there is a strong presumption in favor of plaintiff's choice of forum. Nat'l Football League v. Fireman's Fund Ins. Co., supra, 216 Cal.App.4th at 926‐927. “[E]xc...

Excerpt: ...uses of action for reformation of instrument and declaratory relief. 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 element necessary to sustain a judgment in favor of the party. Cons...

Excerpt: ...ily Trust (“Maehler”), and defendant and cross‐complainant Rex Harrison (“Harrison”). Following two days of mediation, the parties entered into a settlement agreement and mutual release of claims (“the Settlement Agreement”), attached as Exhibit A to the declaration of Gregory Koonce. In relevant part, the Settlement Agreement states: b. Each Party shall grant to the other Parties an express non‐exclusive easement for ingress and ...

Excerpt: ... overruled. Defendants' objection to the supplemental declaration of Jay Brown is sustained. 3 Ruling on Motion Defendants move for summary adjudication as to plaintiff's prayer for punitive damages. A defendant may move for summary adjudication as to a claim for punitive damages if the party contends that there is no merit to the claim. Code Civ. Proc. § 437c(f)(1). A moving defendant has the initial burden of showing that a claim has no merit....

Excerpt: ...TION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR SEPTEMBER 26, 2019 AT 8:30 A.M. NOTICE TO ALL PARTIES WHO REQUEST ORAL ARGUMENT: UNLESS OTHERWISE NOTED, ORAL ARGUMENT WILL BE HEARD ON THURSDAY, OCTOBER 3, 2019 AT 8:30 A.M. IN DEPARTMENT 42. PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and Motion – Tentative Rulings Page 3 of 7 is generally limited to extreme cases of discovery misuses that are so pervasive...

Excerpt: ...tion of the state judicial proceeding to collect on a claim against the debtor. (Eskanos & Adler, P.C. v. Leetien (9th Cir. 2002) 309 F.3d 1210, 1214.) Since the automatic stay is selfexecuting and effective upon the filing of a bankruptcy petition, it was improper for the judgment to be entered in this case. (In Re Marriage of Sprague & Spiegel‐Sprague (IRMO Sprague) (2003) 105 Cal.App.4th 215, 219.) The default judgment, entered on April 3, 2...

Excerpt: ...ure 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 cross‐ complaint is reviewed keeping this...

Excerpt: ...ual statements therein. The request for judicial notice is otherwise granted. Defendant BBV Profit Sharing Plan, a 401 K Deferred Compensation Retirement Plan (“BBV”) demurs to plaintiffs' third 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 plainti...

Excerpt: ...tinuance under Code of Civil Procedure section 437c(h) as facts essential to justify opposition to defendants' motion may exist, but cannot, due to difficulties in obtaining necessary discovery, be presented at this time. Appearance is required in order to determine a reasonable continued hearing date for the motion. Motion to Expunge Lis Pendens The parties' requests for judicial notice are granted. 4 Defendants' motion to expunge lis pendens is...

Excerpt: ...intiff's objections to the declaration of Gary Sage are overruled. Defendant's objections to evidence are ruled on as follows: Objection No. 1 is sustained. The remaining objections are overruled. Ruling on Motion 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 defendant moving for summary judgment bears the burden o...

Excerpt: ...arty contends that there is no merit to the claim for punitive damages. Code Civ. Proc. § 437c(f)(1). A moving defendant has the initial burden of showing that a claim has no merit. 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. Code Civ. Proc. § 437c(p)(2). The trial court views the supporting evidence, and all inferences reasonably...

Excerpt: ...ction 452. Plaintiff's request for judicial notice, filed on September 3, 2019, is denied. Ruling on Motion In the current motion, plaintiff seeks an injunction to prevent defendants from foreclosing on the property subject to this litigation. The motion is denied. A preliminary injunction may be issued where it appears from the complaint that the plaintiff is entitled to the demanded relief and the plaintiff will suffer irreparable injury if the...

Excerpt: ...intiff'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, deduc...

Excerpt: ...rief. Defendants' request for judicial notice is granted. Defendants County of Placer and Devon Bell move for judgment on the pleadings as to the complaint filed by plaintiff Barbara Boyle. 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. 5 Proc. § 438. The same rules governing demurrers apply. Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 9...

Excerpt: ...led a dismissal of the action without prejudice. The memorandum of costs includes expert witness fees of $4,318.75, which are requested pursuant to Code of Civil Procedure section 998. Plaintiff moves to tax the expert witness fees on the grounds that defendant's Code of Civil Procedure section 998 offer was a token offer not made in good faith. 4 An offer to compromise under Code of Civil Procedure section 998 must be made in good faith, “real...

Excerpt: ...(Code of Civil Procedure section 430.10(e).) Further, a challenge PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR SEPTEMBER 5, 2019 AT 8:30 A.M. PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and Motion – Tentative Rulings Page 14 of 15 that a cause of action is barred by res judicata is available by demurrer if that ground appears on the face of the com...

Excerpt: ...on. (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. 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)...

Excerpt: ...tion 452.) Ruling on Motion In the current request, plaintiffs seek the issuance of a preliminary injunction to prohibit defendant from removing improvements they made to an encroachment area. A preliminary injunction may be issued where it appears from the complaint that the plaintiff is entitled to the demanded relief and the plaintiff will suffer irreparable injury if the enjoined action were allowed to proceed. (Code of Civil Procedure sectio...

Excerpt: ...ally set trial date. Such an interpretation would be inconsistent with the overall purpose of Section 437c to dispose of meritless claims. (Green v. Bristol Myers Co. (1988) 206 Cal.app.3d 604, 609.) The court shall proceed to consider the merits of the motion. /// PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR SEPTEMBER 5, 2019 AT 8:30 A.M. PLACER SUPERIOR COURT –...

Excerpt: ...e 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 (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 12...

Excerpt: ...her takes judicial notice of the fact that the motion was granted on June 14, 2019. Defendant Wells Fargo Bank (“Wells”) moves for judgment on the pleadings as to the first cause of action for violation of Civil Code section 2923.5, second cause of action for violation of Civil Code section 2923.7, seventh cause of action for violation of Civil Code section 2924.12, and ninth cause of action for unfair business practices, alleged in plaintiff...

Excerpt: ...e 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. Evans v....

Excerpt: ...76, 885. In making this determination the court considers the extent the defendants' 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; the convenience of the court to manage cases and efficient use of judicial resources; the interests of others not involved in the civil litigation; and the interests of t...

Excerpt: ...ather, defendant appeared at trial and signed a stipulation for entry of judgment. Defendant seeks to have the stipulated judgment set aside on grounds of mistake. Code Civ. Proc. § 473(b). Specifically, defendant asserts that she was mistaken in believing a statement by plaintiff's counsel that a continuance of the trial date “was not going to happen.” Defendant further claims that she was in a weakened frame of mind because she had been ho...

Excerpt: ...s, set one, are deemed admitted as to defendant Michele Laudon. Sanctions in the amount of $60.00 are imposed on defendant Michele Laudon pursuant to Code of Civil Procedure section 2033.280(c). /// PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR AUGUST 29, 2019 AT 8:30 A.M. PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and Motion – Tentative Rulings Pa...

Excerpt: ...as been described as follows: “ ‘Sometimes, the exchange reveals that one party plans to call experts on subjects the opposing party assumed would not require expert testimony. In such cases, the opposing party has the right to supplement its expert witness exchange by adding experts to cover subjects on which the other party indicates it plans to offer expert testimony, and on which the opposing party has not previously retained an expert to...

Excerpt: ...es of discovery misuses that are so pervasive 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. The totality of the circumstances surrounding the discovery violations are considered when ordering terminating sanctions: (1) whether the party's conduct was wil...

Excerpt: ...aswell 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 agreement. Engalla v. Permanente Medical ...

Excerpt: ... for damages or issue of duty. Code Civ. Proc. § 437c(f)(1). The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. If the moving party carries this burden, the burden shifts to opposing party to show the 5 existence of a triable issue of material fact. Id. The trial court views the supporting evidence, ...

Excerpt: ...overruled. Ruling on Motion Respondent County of Placer moves for summary judgment with respect to the claims set forth in petitioner's verified petition for alternative and peremptory writ of mandate and complaint for declaratory and injunctive relief. Alternatively, respondent requests summary adjudication. 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 matt...

Excerpt: ... 995, 999. Defendants contend that the applicable statute of limitations bars plaintiff's action. Plaintiff's claims in this action are governed by the limitations period set forth in Government Code section 945.6(a), which states: Except as provided in Sections 946.4 and 946.6 and subject to subdivision (b), any suit brought against a public entity on a cause of action for which a claim is required to be presented in accordance with Chapter 1 (c...

Excerpt: ...ollows: 1. Enjoining defendants from using any recipe obtained from plaintiffs that looks like plaintiffs' menu offerings of an Asian vegan nature, and specifically the items photographed and attached to plaintiffs' second amended complaint; 10 2. Enjoining defendants from offering for sale the menu items photographed and attached to plaintiffs' second amended complaint anywhere in Placer County; 3. Enjoining defendants from advertising for sale ...

Excerpt: ...ils to establish that the Release is not reasonably subject to dispute, and/or is capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy. Further, it is unclear, for the purposes of the demurrer, that the Release must apply to plaintiff's claims, which are based on defendant's alleged actions in barring plaintiff from the subject premises, setting forth ambiguous conditions regarding plaintiff's u...

Excerpt: ... 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 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 prop...

Excerpt: ...ry Restaurants, Inc. and The Cheesecake Factory Incorporated move for judgment on the pleadings as to plaintiff's complaint in this action. 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. The same rules governing demurrers apply. Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999. The complaint in this action alleges an enf...

Excerpt: ...it. Trackman v. Kenney (2010) 187 Cal.App.4th 175, 180. However, where extrinsic fraud or mistake exists, or where the judgment is facially void without resort to extrinsic evidence, the motion may be made at any time. Id. at 181. In this case, default judgment was entered against defendant based on the proof of service filed October 30, 2007. The proof of service indicates that defendant was served by substituted service at her dwelling house or...

Excerpt: ...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. Anderson (2009) 179 Cal.App.4th 775, 787.) For the purposes of a demurrer, the al...

Excerpt: ...tion 452.) Ruling on Motion PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR AUGUST 8, 2019 AT 8:30 A.M. NOTICE TO ALL PARTIES WHO REQUEST ORAL ARGUMENT: ORAL ARGUMENT WILL BE HEARD ON THURSDAY, AUGUST 15, 2019 AT 8:30 A.M. IN DEPARTMENT 42. PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and Motion – Tentative Rulings Page 15 of 23 In the current request,...

Excerpt: ...limited to extreme cases of discovery misuses that are so pervasive 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. The totality of the circumstances surrounding the discovery violations are considered when ordering terminating sanctions: (1) whether the p...

Excerpt: ...ure §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 summary judgment in addition to determining the scope of the motion. (Government Employees Ins. Co. v. Superior Court (2000) 79 Cal.App.4th 95, 98; Laabs v. City of Victorville (...