Excerpt: .... Anderson (2009) 179 Cal.App.4th 775, 787. The court assumes the truth of all facts properly pleaded, and accepts as true all facts that may be implied or reasonably inferred from facts expressly alleged, unless they are contradicted by judicially noticed facts. Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6. However, the court does not assume the truth of contentions, deductions, or conclusions of facts or law. Id. As a preliminary matter, pl...

Excerpt: ...ina Koga (“Koga”) demur to the first cause of action for elder abuse and second cause of action for wrongful death alleged in the second amended complaint. A party may demur to a complaint where the pleading does not state facts sufficient to constitute a cause of action. Code Civ. Proc. § 430.10(e). A demurrer tests the legal sufficiency of the pleadings, not the truth of the plaintiff's allegations or the accuracy of the described conduct....

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

Excerpt: .... The dismissal of an action is a drastic sanction that is only applied after a party has had an opportunity to comply with a court order yet still fails to do so. (see PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR JUNE 20, 2019 AT 8:30 A.M. PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and Motion – Tentative Rulings Page 4 of 12 Ruvalcaba v. Governme...

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

Excerpt: ...ell established principles. A party may demur to a complaint where the pleading does not state facts sufficient to constitute a cause of action. (Code of Civil Procedure section 430.10(e).) The analysis focuses on the legal sufficiency of the pleadings, not the truth of plaintiff's allegations or the accuracy of the described conduct. (Bader v. Anderson (2009) 179 Cal.App.4th 775, 787.) The allegations in the pleadings are deemed to be true no ma...

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

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

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

Excerpt: ...an unlawful detainer action may be brought at any time after the answer is filed upon five days notice. Code Civ. Proc. §1170.7. The party seeking summary judgment bears the burden of showing there is no triable issue of material fact and that the party is entitled to judgment as a matter of law. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. The moving party has the burden of showing, by affidavit, facts establishing every elemen...

Excerpt: ... Code Civ. Proc. § 430.10(e). A demurrer tests the legal sufficiency of the pleadings, not the truth of the plaintiff's allegations or the accuracy of the described conduct. Bader v. Anderson (2009) 179 Cal.App.4th 775, 787. The court assumes the truth of all facts properly pleaded, and accepts as true all facts that may be implied or reasonably inferred from facts expressly alleged, unless they are contradicted by judicially noticed facts. Evan...

Excerpt: ...App.4th 775, 787.) The allegations in the pleadings are deemed to be true no matter how improbable the allegations may seem. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) A review of the first cause of action shows there are insufficient factual allegations to support the claim for equitable indemnity/apportionment against the cross‐defendant. The demurrer is sustained without leave to amend since cross‐compl...

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

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

Excerpt: ...he third cause of action for negligent failure to warn, train, or educate and fifth cause of action for sexual harassment. The motion has the same function as a demurrer but is brought where the time for a demurrer has expired. (Code of Civil Procedure section 438(g); Southern California Edison Co. v. City of Victorville (2013) 217 Cal.App.4th 218, 227.) A defendant challenging a complaint must show either (1) the court has no jurisdiction over t...

Excerpt: ...rring to arbitration proceedings.” Rowe v. Exline (2007) 153 Cal.App.4th 1276, 1282; Laswell v. AG Seal Beach, LLC, supra, at 1405. Under both federal and state law, a threshold question for any petition to compel arbitration is whether there exists an agreement to arbitrate. Cruise v. Kroger Co. (2015) 233 Cal.App.4th 390, 396. Defendants in this case do not dispute the existence of an arbitration agreement, but argue that plaintiffs have waiv...

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

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

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

Excerpt: ...ended complaint. The claims asserted by plaintiffs include (1) medical malpractice; (2) abuse of dependent adult; (3) medical battery; and (4) loss of consortium. The trial court shall grant a motion for summary judgment if “all the papers submitted show that there is no triable issue as to any material fact and the moving party is entitled to a judgment as a matter of law.” (Code of Civil Procedure section 437c(c).) A party to the action may...

Excerpt: ...itration agreement is also a party to a pending court action or special proceeding with a third party arising out of the same transaction. (Code of Civil Procedure section 1281.2.) The arbitration statutes evidence a strong public policy in favor of arbitration that is frequently approved and enforced by the courts. (Madden v. Kaiser Foundation Hospitals (1976) 17 Cal.3d 699, 706; Laswell v. AG Seal Beach, LLC, et al. (2010) 189 Cal.App.4th 1399,...

Excerpt: ...otion The motion is granted with leave to amend. A motion for judgment on the pleadings has the same function as a demurrer but is brought when the time for a demurrer has expired. (Code of Civil Procedure section 438(g); Southern California Edison Co. v. City of Victorville (2013) 217 Cal.App.4th 218, 227.) A plaintiff bringing such a motion must establish the complaint states facts sufficient to constitute a cause of action and the answer does ...

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

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

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

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

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

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

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

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

Excerpt: ... for general whistleblower violations under Labor Code section 1102.5. A demurrer is reviewed based upon well‐ established principles. A defendant may demur to a complaint where the pleading does not state facts sufficient to constitute a cause of action. (Code of Civil Procedure section 430.10(e).) The demurrer functions as a test regarding the legal sufficiency of the pleading; it does not address the truth of the allegations or accuracy of t...

Excerpt: ...egations or accuracy of the described conduct. (Bader v. Anderson (2009) 179 Cal.App.4th 775, 787.) For the purposes of a demurrer, the allegations in the pleading are deemed to be true no matter how improbable they may seem. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) The court reviews the FAC keeping these principles in mind. A review of the FAC, when the pleading is read as a whole, shows plaintiff has plead...

Excerpt: ....App.4th 726, 733.) All properly pleaded facts are assumed to be true as well as those that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1153.) Plaintiff's complaint alleges six separate causes of action. The allegations within each claim are disjointed, partially illegible, and conclusory in nature, failing to sufficiently allege facts against the moving...

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

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

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

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

Excerpt: ...bed conduct. (Bader v. Anderson (2009) 179 Cal.App.4th 775, 787.) For the purposes of a demurrer, the allegations in the pleading are deemed to be true no matter how improbable they may seem. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) The court reviews the complaint keeping these principles in mind. The complaint does not identify the causes of action brought against the defendants in either the caption of the...

Excerpt: ...s of action alleged in plaintiff's TAC. A demurrer is reviewed based upon well‐established principles. A defendant may demur to a complaint where the pleading does not state facts sufficient to constitute a cause of action. (Code of Civil Procedure section 430.10(e).) The demurrer functions as a test regarding the legal sufficiency of the pleading; it does not address the truth of the allegations or accuracy of the described conduct. (Bader v. ...

Excerpt: ...Ruling on Demurrer In the current request, defendant demurs to all six causes of action. A demurrer is reviewed based upon well‐established principles. A defendant may demur to a complaint where the pleading does not state facts sufficient to constitute a cause of action. (Code of Civil Procedure section 430.10(e).) The demurrer functions as a test regarding the legal sufficiency of the pleading; it does not address the truth of the allegations...

Excerpt: ...ed to these three claims in light of defendants' clarification regarding the scope of the demurrer. Ruling on Demurrer To reiterate, the current demurrer challenges only the fourth, fifth, and sixth causes of action in the FAC. A party may demur to a complaint where the pleading does not state facts sufficient to constitute a cause of action. (Code of Civil Procedure section 430.10(e).) A demurrer tests the legal sufficiency of the pleadings, not...

Excerpt: ...fact and that the party is entitled to judgment as a matter of law. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) The moving party has the burden of showing, by affidavit, facts establishing every element necessary to sustain a judgment in favor of the party. (Consumer PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR APRIL 25, 2019 AT 8:30 A.M. PLACER...

Excerpt: ... 15 Cal.3d 652, 656. Where discovery seeks to invade the constitutional right to privacy, the party seeking the discovery must show that the information sought is directly relevant to claims at issue in the litigation, there is a compelling need for the information, and the information is essential to a fair resolution of the lawsuit. Alch v. Superior Court (2008) 165 Cal.App.4th 1412, 1425. In response to the current motion, plaintiff asserts th...

Excerpt: ...bed conduct. Bader v. Anderson (2009) 179 Cal.App.4th 775, 787. The court assumes the truth of all facts properly pleaded, and accepts as true all facts that may be implied or reasonably inferred from facts expressly alleged, unless they are contradicted by judicially noticed facts. Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6. However, the court does not assume the truth of contentions, deductions, or conclusions of facts or law. Id. The dem...

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

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

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

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

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

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