Excerpt: ...ns Plaintiff's objections are overruled in their entirety. Defendants' objections are overruled in their entirety. Ruling on Motion The motion for summary judgment is denied. 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...

Excerpt: ...e August 12, 2018 email to plaintiff's counsel; (2) destroy all forms of copies within the possession of defendants; and (3) limit defendants' ability to question Mr. Auger regarding the email. Plaintiff clarifies in his moving papers that he seeks an order precluding defendants “from asking any questions (interrogatories or deposition) on the subject of the August 12th email, including Mr. Auger's transmission of the attachment thereto.” (Pl...

Excerpt: ...s to the portion of a settlement representing payment for medical expenses, in order to determine the amount available to satisfy the lien. The court is to be guided by the United States Supreme Court decision in Arkansas Department of Health and Human Services v. Ahlborn (2006) 547 U.S. 268, in determining what portion of a settlement represents payment for medical expenses or medical care. The total settlement amount in light of the total claim...

Excerpt: ...cannot be established, or that there is a complete defense thereto. Code Civ. Proc. § 437c(p)(2); 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 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. The court notes tha...

Excerpt: ...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) 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 mater...

Excerpt: ...e to duly served discovery requests. As conceded by defendants, defendants failed to provide identifying information relating to a fact witness who was a Lyft passenger in plaintiff's vehicle and who observed the car accident which is the subject of this action. This was despite the fact that documents in the possession of defendant Richard Montoya, and subsequently in the possession of defense counsel, contained this information. Plaintiffs cont...

Excerpt: ...iling party.” Bad faith may be shown by: (1) the objective speciousness of the claim; and (2) subjective bad faith in bringing or maintaining the action, i.e., for an improper purpose. Cypress 7 Semiconductor Corp. v. Maxim Integrated Prod., Inc. (2015) 236 Cal.App.4th 243, 260. Under the “objectively specious” standard, it is sufficient for defendants to point to the absence of evidence of misappropriation in the record. Id. at 260‐261. ...

Excerpt: ...e cited document is not attached to the request. Defendant's demurrer to complaint is sustained with leave to amend. Plaintiff fails to allege sufficient facts to establish a valid cause of action for professional negligence against defendant Nick Tziavaras. Any amended complaint shall be filed and served on or before January 10, 2020. Motion to Strike Defendant's request for judicial notice is granted as to Exhibit A. The request is denied as to...

Excerpt: ...s 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.” Plaintiffs request attorneys' fees in the amount of $38,468, which includes estimated fees relating to the current motion of $6,975. Plaintiff also requests a .3 multiplier resulting in additional attorneys' fees of...

Excerpt: ...harges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary.” Ladas v. Cal. State Auto. Ass'n (1993) 19 Cal.App.4th 761, 774. When the reasonableness of particular items is challenged, conclusory allegations do not satisfy the objecting party's burden. Id.; Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1266. Alternatively, where items are properly put in issue by objection, the burden of proof is ...

Excerpt: ...otion – Tentative Rulings Page 17 of 23 PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR NOVEMBER 21, 2019 AT 8:30 A.M. Ruling on Motion The motion is denied without prejudice. A party may be declared a vexatious litigant under the following circumstances: (1) the person, acting in pro per, has filed five or more actions within the last seven years that were either a...

Excerpt: ...al 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).) 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 compl...

Excerpt: ...med at these defendants. 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 PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Ci...

Excerpt: ...stitute a cause of action. (Code of Civil Procedure section 438(c)(1)(B).) “[J]udgment on the pleadings must be denied where there are material factual issues that require evidentiary resolution. (Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216.) The court reviews the motion keeping these principles in mind. Defendant challenges all four causes of action asserting, among other things, each claim is deficiently pleaded. A re...

Excerpt: ...n 438(c)(1)(B).) “[J]udgment on the pleadings must be denied where there are material factual issues that require evidentiary resolution. (Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216.) The court reviews the motion keeping these principles in mind. Defendants challenge all six causes of action asserting, among other things, that the claims are barred by the statute of limitations along with lacking the level of specifici...

Excerpt: ...d under well established principles. The challenge 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.) Furthermore, the failure to ple...

Excerpt: ...cedure section 1033(a) is denied. The court notes that plaintiff sought damages for actual medical expenses resulting from the incident, future medical expenses and general damages that far exceeded the jurisdictional maximum of a limited civil action. There is no showing that plaintiff acted unreasonably or in bad faith in asserting her claims. Defendant alternatively moves to tax discrete items of costs claimed by plaintiff. “If the items app...

Excerpt: ...jections to evidence are ruled on as follows: Objection Nos. 3, 5, 8, 9 and 10 to the declaration of Michelle Gallagher are sustained. Objection Nos. 1, 2, 5, 6 and 8 to the declaration of Anna Murphy are sustained. The remaining objections are overruled. Ruling on Motion Defendant and cross‐complainant Charley Smith, individually and as trustee of the Charley D. Smith Family Trust (“Smith”) moves for summary judgment of plaintiff and cross...

Excerpt: ...perty claim. Code Civ. Proc. §§ 405.31, 405.32. A real property claim means “a cause of action in a pleading which would, if meritorious, affect (a) title to, or the right to possession of, specific real property or (b) the use of an easement identified in the pleading”. Code Civ. Proc. § 405.4. The current action was dismissed by the court without prejudice on September 17, 2019, with plaintiff's consent. Although the action has been dism...

Excerpt: ...r of law. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. The moving party has the burden of showing, by 1 affidavit, facts establishing every element necessary to sustain a judgment in favor of the party. Consumer Cause, Inc. v. Smilecare (2001) 91 Cal.App.4th 454, 468. Once a plaintiff sets forth evidence establishing each element of its prima facie case, the burden of proof shifts to the defendant to prove a triable issue regardi...

Excerpt: ...erson (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 form complaint alleg...

Excerpt: ... letter to the Labor and Workforce Development Agency (“LWDA”) on February 6, 2019, alleging wage and hour violations against her former employer, defendant Williams‐Sonoma Stores, Inc. Farinha filed the complaint in this action on April 12, 2019, as a putative wage and hour class and representative action. Overton submitted a letter to the LWDA on May 2, 2019, alleging violations of the Labor Code and Industrial Welfare Commission Wage Ord...

Excerpt: ...beth Voss. A party may move to quash a subpoena directed to a third party where the records sought are not within the permissible scope of discovery. Plaintiff moves to quash the subject subpoena on several grounds, including that it is facially overbroad, seeks confidential and privileged information, and seeks information that has been improperly retained by a former employee. The subpoena served on Elizabeth Voss requests two categories of doc...

Excerpt: ...BOATRIGHT, CHARLENE v. GONZALEZ, EFRAIN MOSQUEDA, OPHELIA v. GONZALEZ, EFRAIN ROSE, AMY v. GONZALEZ, EFRAIN BRELFORD, VIRGINIA v. GONZALEZ, EFRAIN BASILEU, JANET v. GONZALEZ, EFRAIN RODRIGUEZ, SARAI v. GONZALEZ, EFRAIN SOMERS, LUCY v. GONZALEZ, EFRAIN MUNOZ, DULCE v. GONZALEZ, EFRAIN BROADWAY, REBECCA v. GONZALEZ, EFRAIN ARAKELYAN, GOHAR v. GONZALEZ, EFRAIN ADAME, ULISES v. GONZALEZ, EFRAIN FRANCO, SNA v. GONZALEZ, EFRAIN LAVOW‐DAVIS, PATRICIA ...

Excerpt: ...nstitute 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 9 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 j...

Excerpt: ...stitute 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 by judi...

Excerpt: ... overruled. Defendants' objections to evidence are ruled on as follows: Objection No. 4 is sustained. The remaining objections are overruled. 3 Ruling on Motion Defendants Madeline Yang (“Madeline”), Richard Yang (“Richard”) and Frieda Yang (“Frieda”) move for summary judgment with respect to plaintiffs' second amended complaint. The party seeking summary judgment bears the burden of showing there is no triable issue of material fact ...

Excerpt: ...award of sanctions pursuant to Code of Civil Procedure §§ 128.5 and 128.7, contending Judgment Debtor Gilman's motion for fees on appeal, filed on July 24, 2019, was filed in bad faith and was frivolous and devoid of any merit. Regarding Judgment Debtors' request for sanctions pursuant to Code of Civil Procedure § 128.5, the Court is not persuaded that the conduct at issue warrants sanctions under this provision. In ruling on the motion, the C...

Excerpt: ...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, 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. In...

Excerpt: ...f filed a partial satisfaction of judgment on February 8, 2016, after defendant was purportedly deceased. The proof of service for the current motion then shows plaintiff served defendant, who plaintiff claims is deceased, by mail at an address in Granite Bay, California. Further, plaintiff provides little legal authority to support the motion or the ability to vacate a judgment where a partial satisfaction has been filed. Finally, the declaratio...

Excerpt: ...ies to informally meet and confer in good faith prior to setting matters for hearing. Ruling on Request for Judicial Notice Defendant's request for judicial notice is granted under Evidence Code section 452. Ruling on Motion The motion is granted with leave to amend. A motion to strike may be 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 ord...

Excerpt: ... convenience of witnesses. In denying defendants' motion based on the convenience of witnesses, the court stated: Defendants' alternative request to transfer venue pursuant to Code of Civil Procedure section 397, based on the convenience of witnesses and the interests of justice, also fails. The motion is premature as not all defendants have answered the complaint. Code Civ. Proc. § 396b(d); Buran Equipment Co., Inc. v. Superior Court (1987) 190...

Excerpt: ...lly be exercised liberally to permit amendments to pleadings, “at any stage of the proceedings, up to and including trial”. Atkinson v. Elk Corp. (2003) 109 Cal.App.4th 739, 761. However, the policy of liberality in permitting amendments to the complaint should be applied only where no prejudice is shown to the adverse parties. Magpali v. Farmers Group, Inc. (1996) 48 Cal.App.4th 471, 487. Plaintiff's motion for trial setting preference due t...

Excerpt: ...k National Association is granted. This subpoena seeks “all documents and transaction history related to accounts owned by Shawn Whitney from 01/01/2017 to 01/01/2019”. Plaintiff's personal financial information is protected by the constitutional right to privacy. Valley Bank of Nevada v. Superior Court (1975) 15 Cal.3d 652, 656. Where discovery seeks to invade the constitutional right to privacy, the party seeking the discovery must show tha...

Excerpt: ...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 court does not assume the tru...

Excerpt: ...l, Ltd. v. Superior Court (1997) 59 Cal.App.4th 789, 795. Defendant denies personal service was effectuated, and states that she discovered the subject paperwork stuck in her security screen on September 28, 2019. Defendant denies knowledge of any attempts to personally serve her. In response to defendant's motion, plaintiff submits the declaration of process server Eric Meyer. Mr. Meyer details numerous attempts to effectuate personal service on...

Excerpt: ...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, or...

Excerpt: ...bsolute identity of parties. Plant Insulation Co. v. Fibreboard Corp. (1990) 224 Cal.App.3d 781, 789. Plaintiff argues that this requirement is not satisfied here, as she is not a named plaintiff in the Brown action. Both cases are representative actions brought under the Private Attorney General Act (“PAGA”). An employee suing under PAGA “does so as the proxy or agent of the state's labor law enforcement agencies.” Arias v. 12 Superior C...

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 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 properl...

Excerpt: ...§ 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 properly pleaded...

Excerpt: ...ve Rulings Page 3 of 7 PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR OCTOBER 17, 2019 AT 8:30 A.M. 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.) T...

Excerpt: ...nd hour of her deposition, arguing that defense counsel made excessive and inappropriate objections, that co‐defense counsel was ten minutes late, and that Dr. Serina produced substantial documents at her deposition in violation of Code of Civil Procedure section 2034.210(b). Code of Civil Procedure section 2034.430(b) states: A party desiring to depose an expert witness described in subdivision (a) shall pay the expert's reasonable and cus...

Excerpt: ..., nor whether she “stayed” at the property on dates outside of the periods when she leased the property. With respect to special interrogatory Nos. 22, 23 and 27, defendant argues that the information sought by the interrogatories is equally available to the propounding party, and that the information can be gleaned from documents that have been produced in this action. 7 Defendant's responses also set forth objections on the grounds that the...

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. Eva...

Excerpt: ...f 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 by judicially noticed fa...

Excerpt: ...dure section 128.5. Pursuant to this statute, the court may order a party or counsel, or both “to pay the reasonable expenses, including attorney's fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay.” Code Civ. Proc. § 128.5(a). Defendants contend that plaintiff and his counsel should be ordered to pay their attorneys' fees because they filed ...

Excerpt: ... is overruled. Defendants' objection to plaintiffs' request for judicial notice is overruled. Ruling on Motion Plaintiffs W1 Holdings, G4 Capital Partners, LLC and Sheena George move for summary judgment of this consolidated action, or alternatively summary adjudication of issues. With respect to plaintiffs' request for summary adjudication, plaintiffs' notice of motion states that plaintiffs seek “summary adjudication of issues” but does not...

Excerpt: ...e 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. (Consumer Cause, Inc. v. Smilecare (2001) 91 Cal.App.4th 454, 468.) Once a plaintiff proves its prima facie case, the burden of proof shifts to the defe...

Excerpt: ...ffirmative defense to the cause of action, that there is no merit to an affirmative defense to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil Code, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.” (Code of Civil Procedure section 437c(f)(1).) The trial court engages in a specific analysis when reviewing a motion for summary adjudicati...

Excerpt: ...om matters of which the court may or must take judicial notice.” (Aaronoff v. Martinez‐Seftner (2006) 136 Cal.App.4th 910, 918.) 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....