Excerpt: ...CHARLES D. WACHOB TENTATIVE RULINGS FOR NOVEMBER 19, 2020 AT 8:30 A.M. PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and Motion – Tentative Rulings Page 8 of 18 plaintiff Stephen Googooian in this action. Bruce Walkup died in 1994. Since then, I have never had any personal, social or other relationship with any attorney or person associated with the Walkup office. I have heard other matters in which attorneys from that office have ...

Excerpt: ...COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR NOVEMBER 19, 2020 AT 8:30 A.M. PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and Motion – Tentative Rulings Page 17 of 18 Materials Co. (1981) 123 Cal.App.3d 593, 604.) In the current request, defendant challenges the sufficiency of all three causes of action alleged in the complaint. Turning to the first cause o...

Excerpt: ...force pursuant to Code of Civil Procedure section 664.6, the court may not create material terms of the settlement agreement. Hines v. Lukes (2008) 167 Cal.App.4th 1174, 1182‐1183. 3 The settlement agreement between the Mauels and Walker contains the following terms: ¶B(3): Mauels and Walker shall conduct a walk‐through of the Subject Property, both interior and exterior, on a mutually agreeable date and develop a room‐by‐room and exteri...

Excerpt: ...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 this case, plaintiff concedes that his claims, except for PAGA claims added by amendment after the filing of defendant's motion, are subject to a valid arbitration agreement. However, plaintiff argues that defendant has waived the right...

Excerpt: ... Devon Bell demur to plaintiff's second amended complaint. A party may demur 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 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 th...

Excerpt: ...ral person for claims arising out of conduct by the defendant of a trade, business or profession. Code Civ. Proc. § 483.010(c). Damages must be measurable by reference to the contract itself, and the 7 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. Based upon review of the plaintiff's application, the court finds pursuant to Code of Civil Procedu...

Excerpt: ...015 Tort Claims Ordinance adopted by the UAIC, this court lacks jurisdiction over claims involving bodily injury, property damage, or personal injury, arising out of operation of the “Gaming Facility”. A challenge to the court's jurisdiction based on the doctrine of tribal sovereign immunity may be raised by a motion to quash. Great Western Casinos, Inc. v. Morongo Band of Mission Indians (1999) 74 Cal.App.4th 1407, 1416‐1418. Defendant est...

Excerpt: ...ibed conduct. Bader v. Anderson (2009) 179 Cal.App.4th 775, 787. The allegations in the pleadings 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. A demurrer can only be used to challenge defects that appear on the face of the pleading, or from matters that are judicially noticeable. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. No other 5 extrinsic evide...

Excerpt: ...aintiff Russell Roark's first amended complaint. A party may demur 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 allegations or the accuracy of the described conduct. Bader v. Anderson (2009) 179 Cal.App.4th 775, 787. The allegations are deemed true no matter how improbable they may seem. Del E. Webb Co...

Excerpt: ...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 as to Aizen's second cause of action for breach of the “AHAS Holdings/Controlling Shareholder Agreement”, alleged against defendants AHAS Holdings and the “Controlling Shareh...

Excerpt: ...malia Resources, Ltd. v. County of Santa Barbara (1987) 195 Cal.App.3d 827, 832. Prior to issuing a preliminary injunction, the trial court must first determine the likelihood that plaintiff will prevail on the merits of the action. Dept. of Fish & Game v. Anderson‐Cottonwood Irrigation Dist. (1992) 8 Cal.App.4th 1554, 1560; IT Corp. v. County of Imperial (1983) 35 Cal.3d 63, 69. Second, the court looks to the interim harm that will occur if th...

Excerpt: ...gner Law Firm) between June 16, 2020 and August 7, 2020. The trial court retains jurisdiction to award attorney's fees and costs related to an anti‐SLAPP motion where a dismissal is entered while the motion is pending. (Tourgeman v. Nelson & Kennard (2014) 222 Cal.App.4th 1447, 1456‐1457.) The moving party, however, may only recover fees and costs for legal services related to the anti‐SLAPP motion. (Lafayette Morehouse, Inc. v. Chronicle P...

Excerpt: ...UPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and Motion – Tentative Rulings Page 8 of 11 doctrine of res judicata. Defendant, however, has not sufficiently shown any of these warrants dismissal of the current action. First, the court notes defendant's assertions of lack of jurisdiction are actually claims that Humboldt County has exclusive concurrent jurisdiction over the action. This is not the same as a lack of jurisdiction. Exclusive c...

Excerpt: ... Rules of Court, rule 3.1345(c). As conceded by defendant, the separate statement sets forth the original responses, but not amended responses served prior to the motion being filed. The motion is granted as to special interrogatory No. 13. Plaintiff's response identifies several documents in response to the interrogatory. The response also notes additional 6 responsive information, but that providing this information would require creation of a ...

Excerpt: ...e ruled on as follows: Objection Nos. 1, 21, 24, 29, 30, 33, 34 and 35 are sustained. The remaining objections are overruled. Ruling on Motion Defendants Caliber Home Loans, Inc. (Caliber), Summit Management Company, LLC (Summit) and US Bank Trust move for summary judgment, or alternatively summary adjudication as to plaintiffs' claims for wrongful foreclosure, breach of contract, and unfair business practices. 3 Summary judgment may be granted w...

Excerpt: ...arties on the same cause of action. A plea in abatement requires that the identical cause of action is involved, such that a judgment in the first action would be res judicata on the claim in the second action. Bush v. Superior Court (1992) 10 Cal.App.4th 1374, 1384. In this case, the court finds that abatement is not appropriate as the PAGA claim alleged in the prior action filed in San Bernardino County Superior 9 Court, Javier Torrez, et al v....

Excerpt: ...ed “that discovery be considered closed and that only pre‐trial expert discovery related deadlines dates and deadlines shall be calculated based on the new trial date.” Defense counsel Nagano signed and returned the stipulation, which was subsequently approved and filed by the court. Having apparently failed to read the stipulation he signed, Mr. Nagano then demanded that the stipulation be withdrawn as he had not agreed to close discovery....

Excerpt: ...is. First, the court must determine whether the absent party is a necessary party under Code of Civil Procedure section 389(a). (Verizon California Inc. v. Board of Equalization (2014) 230 Cal.App.4th 666, 679.) Once it is determined the absent party is a necessary party, the court turns to the second part of the analysis, i.e. whether the party is also indispensable under Code of Civil Procedure section 389(b). (Ibid.) The court considers four f...

Excerpt: ...n (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 reviews the fraud cause of action keeping this in mind. The elements of a fraud claim include (1) a misrepresentation through either false representation, concealment, or nondisclosure; (2) scienter or knowledge of the...

Excerpt: ...p.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. Plaintiffs allege claims of fraud‐intentional misrepresentation, negligent misrepresentation, fraud‐omission, professional negligence, and breach of fiduciary duty, arising out of investments purchased through Berthel's registered representative Shawn Davis (“D...

Excerpt: ...pporting declaration. The court declines to grant judicial notice under Section 452(d). This section allows for permissive judicial notice of court records, which refers to documents within the court records. (see Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882.) The ten exhibits are deposition subpoenas issued by opposing counsel, not the court or a court clerk, and there is no record of these docum...

Excerpt: ... for summary judgment as to plaintiff CSAA Insurance Exchange's claims for negligence and strict liability. 4 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. If the moving party carries its initial burden of production to make a prima facie showing that there are no ...

Excerpt: ...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 overruled as to plaintiff's first cause of action for breach of implied warranty, and second cause of action for breach of express warranty. Based on a review of the complaint as a whole, plaintiff adequately alleges these claims. Contrary to the 11 argument of defendant, plaintiff is not required to plead the...

Excerpt: ...he arguments have not been waived. Accordingly, the court proceeds on the merits. Unclean Hands The jury determined that Canel is liable to BBC under the terms of the Guaranty, in the amount of $2,116,000. Canel contends that BBC is barred from recovery under the Guaranty based on the doctrine of unclean hands. Under the unclean hands doctrine, the plaintiff must “act fairly in the matter for which he seeks a remedy. He must come into court wit...

Excerpt: ...ield 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. Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at 850. Plaintiff is an unlicensed contractor who was injured while working on a job at defend...