Excerpt: ...riable 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 that one or more 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 t...

Excerpt: ... are sustained solely as to the hearsay statements presented within the documents. Ruling on Motion The motion is denied. “Summary judgment is proper if the supporting papers are sufficient to sustain a judgment in favor of the moving party as a matter of law and the opposing party presents no evidence giving rise to a triable issue as to any material fact. [Citation.] To prevail on a summary judgment motion, the defendant must conclusively neg...

Excerpt: ...ars the initial burden of showing there is no triable issue of material fact as to the defense or that plaintiff is entitled to judgment on the defense as a matter of law. (Code of Civil Procedure section 437c(p)(1); See's Candy Shops, Inc. v. Superior Court (2012) 210 Cal.App.4th 889, 899‐900.) In meeting this burden, plaintiff must either negate an essential element of the defense or establish defendant has no evidence to support the defense....

Excerpt: ...ith reply papers. ‘‘[T]he inclusion of additional evidentiary matter with the reply should only be allowed in the exceptional case ...'' and if permitted, the other party should be given the opportunity to respond. (Plenger v. Alza Corp. (1992) 11 Cal.App.4th 349, 362, fn. 8; Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252; San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 316.) Here, the court decline...

Excerpt: ...t claimant has not established by a preponderance of the evidence the probable validity of any real property 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. In this case, plaintiffs alleged real prope...

Excerpt: ...court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney's sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any … resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney's mistake, inadvertence...

Excerpt: ...prejudgment interest pursuant to Civil Code section 3287(a), or alternatively, Civil Code section 3287(b). Crosscomplainants prevailed in this action on their breach of contract claims, and were awarded damages against cross‐defendants Essential Mechanical Services, Inc. (“EMS”) and Tim Gerhardt (“Gerhardt”) in the total amount of $1,677,967.12. Pursuant to Civil Code section 3287(a): A person who is entitled to recover damages certain,...

Excerpt: ...sufficient information regarding counsel's admission to the California State Bar, defendant asserts that it was erroneously sued under the name of a now‐dissolved corporation, and Judge Wachob is not presiding over this matter. Turning to the substance of the demurrer, a party may demur to a complaint where the pleading does not state facts sufficient to constitute a cause of action, or where it is uncertain. Code Civ. Proc. § 430.10(e), (f). ...

Excerpt: ...was dismissed in September 2013. In the current motion, the moving parties seek an order from the court to file under seal the settlement agreement reached in this action, in a separate action currently pending against them, Ehlers Law Corporation v. Des Jardins, case no. S‐CV‐0045532. A request for a right to attach order and writ of attachment is PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES...

Excerpt: ...e remaining objections are overruled. Plaintiff seeks to attach the amount of $750,000 against certain identified property of defendant Larry Lake (“Lake”). The application is based on the January 29, 2009 Letter Agreement executed by Lake, Richard G. Feld, and Matt Stowe, which states: This will confirm our agreement regarding your capital contribution in Topaz‐Moreno Valley, LLC. In consideration of your continued efforts in support of ou...

Excerpt: ...mprobable they may seem. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. No extrinsic evidence may be considered in ruling on the demurrer. Ion Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881. Plaintiff's complaint alleges claims of negligence and battery, arising from an incident which occurred on June 4, 2020. Plaintiff alleges that defendant, who was intoxicated at the time, intentionally “gunned” the...

Excerpt: ...4(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 by the buyer in connection with the commencement and prosecution of such action.” Plaintiff requests attorneys' fees under the lodestar method in the amount of $89,285, plus a .5 multiplier in the amount of $44,642.50, and costs and expenses in the amount of $16,314.07, for a total ...

Excerpt: ...st amended complaint. 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). Defendants moving for summary judgment bear the burden 3 of persuasion that one or more elements of 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. Atlanti...

Excerpt: ...spitals (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 agree...

Excerpt: ... Finally, defendants do not sufficiently establish the relevancy of these materials. Ruling on Objections Plaintiffs' objections are sustained in their entirety. The court also notes that new evidence and arguments submitted in the reply papers is improper to consider where the opposing party has not had the opportunity to respond. (Plenger v. Alza Corp. (1992) 11 Cal.App.4th 349, 362, fn. 8; Alliant Ins. Services, Inc. v. Gaddy (2009) 159 Cal.Ap...

Excerpt: ...plaintiff can plead California has a “special obligation” to undertake the massive burden of a nationwide class action. Osborne v. Subaru of America (1988) 198 C.A.3d 646 held that California courts should not, lacking a “special obligation” to do so, undertake the massive burden of adjudicating nationwide class action lawsuits when to do so would require the trial court to adjudicate issues by application of numerous different rules of l...

Excerpt: ...ll as and including paragraphs 75, 77, 109, 117, 131, 145 and 154. 4 A motion brought under Code of Civil Procedure section 425.16, also known as an antiSLAPP motion, is a procedural remedy designed to dispose of lawsuits that are brought primarily to chill the valid exercise of a party's constitutional right of petition or free speech. Code Civ. Proc. § 425.16(a); see also Sylmar Air Conditioning v. Pueblo Contracting Svcs., Inc. (2004) 122 Cal...

Excerpt: ... 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, but does not assume the truth of contentions, deductions, or conclusions of facts or law. Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6. The demurrer is sustained as the complaint in its entirety on the grounds that it is uncertain...

Excerpt: ...ded 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, but does not assume the truth of c...

Excerpt: ...009) 179 Cal.App.4th 775, 787. The court 8 assumes the truth of all facts properly pleaded, but does not assume the truth of contentions, deductions, or conclusions of facts or law. Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6. The demurrer is overruled as to plaintiff's first cause of action for breach of written contract. Although plaintiff alleges oral representations at variance with the terms of the parties' listing agreement, plaintiff ...

Excerpt: ...irreparable injury if the enjoined action were allowed to proceed. Code Civ. Proc. § 526(a). A request for injunctive relief requires a (1) balancing of the hardships of the parties and (2) a showing by the plaintiff of a reasonable probability of prevailing on the merits. Baypoint Mortgage Corp. v. Crest Premium Real Estate etc. Trust (1985) 168 Cal.App.3d 818, 824; Robbins v. Superior Court (1985) 38 Cal.3d 199. Generally, the purpose of a pre...

Excerpt: ...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 for summary adjudication if that party contends there is no merit to one or more of the causes PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law an...

Excerpt: ... “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).) 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 C...

Excerpt: ...is moving defendant. A demurrer tests the legal sufficiency of the pleadings, not the truth of the plaintiff's allegations or accuracy of the described conduct. (Picton v. Anderson Union High School (1996) 50 Cal.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.) T...

Excerpt: ...oc. §§ 2030.290(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. Motion to Compel Responses to Special Interrogatories (Sunfinity Solar‐CA, LLC) Plaintiffs' motion to...