Excerpt: ...nder well PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR JULY 30, 2020 AT 8:30 A.M. PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and Motion – Tentative Rulings Page 11 of 12 established principles. It tests the legal sufficiency of the pleadings, not the truth of the plaintiff's allegations or accuracy of the described conduct. (Bader v. Anderson (200...

Excerpt: ...72, 75, 76 and 80‐82 are sustained. The remaining objections are overruled. Ruling on Request for Judicial Notice Defendants' request for judicial notice is granted. With respect to Exhibits 15, 16, 18‐ 25, 28, 30, 32‐34, and 36‐40, the court takes judicial notice of the fact that these documents were filed in a prior action, but not the truth of factual statements made therein. Ruling on Motion Defendant Brookfield Homeowners' Associatio...

Excerpt: ... deemed filed as of the date they were first submitted to the Clerk's Office, May 6, 2020. Motion to Tax Costs (Sanctions Award/Cost Memo Filed 2‐24‐2020) Judgment debtor's motion to tax costs with respect to sanctions awards against attorney Mark Ellis, and the memorandum of costs filed February 24, 2020, is granted. Judgment creditors' memorandum of costs seeks to add attorneys' fees of $3,476 as enforcement costs to sanctions awards assess...

Excerpt: ...tions is denied. Motion to Strike First Amended Complaint Defendants move to strike the first amended complaint filed May 20, 2020, on the grounds that it was filed after the deadline imposed by the court. A motion to strike may be used to strike “all or any part of any pleading not drawn in conformity with the laws of this state, a court rule, or an order of the court.” (Code of Civil Procedure section 436.) The court has discretion to strik...

Excerpt: ...7 Defendant Mid‐Century Insurance Company (“Mid‐Century”) moves for summary judgment, or alternatively summary adjudication of each cause of action alleged by plaintiff. 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...

Excerpt: ...o the parties' agreement, ensuring the agreement is not a product of fraud, overreaching parties, or collusion, and that the settlement as a whole is fair, reasonable, and adequate. (In re Cellphone Fee Termination Cases (2010) 186 Cal.App.4th 1380, 1389; Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1801; 7‐Eleven Owners for Fair Franchising v. Southland Corp. (2000) 85 Cal.App.4th 1135, 1145.) Reasonableness of the settlement may be dete...

Excerpt: ...se of action, and the answer does not state facts sufficient to constitute a defense to the complaint. (Code of Civil Procedure section 438(c)(1)(A).) The grounds for the motion must appear on the face of the challenged pleading, or be based on facts which the court may judicially notice. (Code of Civil Procedure section 438(d).) The court may take judicial notice of a defendant's uncontroverted admissions in responses to request for admissions o...

Excerpt: ...gment/adjudication as to the plaintiff's complaint; Omni Structures & Management, Inc.'s cross‐ complaint; and Curtis Beresford's cross‐complaint. 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 also move f...

Excerpt: ...ssue 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 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 triable issue ...

Excerpt: ...ings, 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 the allegations may seem. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. The demurrer is sustained as to plaintiff's fourth cause of action for fraud. The elements for intentional misrepresentation are “(1) the ...

Excerpt: ...ged 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. Bader v. Anderson (2009) 179 Cal.App.4th 775, 787. The court assumes the truth of all facts properly pleaded, and accepts ...

Excerpt: ... according to Water Audit, has for years blocked access to prime spawning grounds for protected fish. Respondent Nevada Irrigation District (“NID”) did not file an answer to the Petition. Instead, on January 30, 2020, the parties filed a fully executed stipulation for dismissal (“the Stipulation”). The Stipulation describes actions taken by NID with respect to Hemphill beginning in 2012, including actions to study or analyze removal or re...

Excerpt: ...uding breach of contract, failure to disclose, negligence, negligent misrepresentation, intentional misrepresentation and fraudulent concealment. 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 moving party that carries this initial burden by proving, by a preponderance of the evidence, the existence of a valid arbitratio...

Excerpt: ...riefs filed by the parties. The parties' requests for judicial notice are granted. Defendant Wilmington Savings Fund Society FSB, d/b/a Christiana Trust as Trustee for PNPMS Trust II (“Wilmington”) moves to dissolve, or alternatively modify, the preliminary injunction granted in this action in December 2018, which enjoined defendants from proceeding with a foreclosure of subject property. Pursuant to Code of Civil Procedure section 533, an in...

Excerpt: ...er for punitive damages, plaintiff must allege ultimate facts supporting a finding of oppression, fraud or malice on the part of the defendant. Civil Code § 3294(a). Malice includes conduct which is intended by the defendant to cause injury to the plaintiff, or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. Civ. Code § 3294(c)(1). Oppression includes despicable c...

Excerpt: ..., 2020 AT 8:30 A.M. Ruling on Objections Cross‐defendants' objections to the Alves declaration nos. 1, 2, 3‐8, 10‐13, 15‐ 17, 22‐42 are sustained. Objections nos., 9, 14, 18, 19, 20 and 21 are overruled. Cross‐complainant Alves submitted a supplemental declaration in reply to the opposition filed by cross‐defendants. The court will not consider this declaration. (Plenger v. Alza Corp. (1992) 11 Cal.App.4th 349, 362, fn. 8; see Nazir...

Excerpt: ...s are sustained in their entirety as new evidence submitted with reply papers, especially in the context of a summary judgment motion, is improper where the opposing party has not had a sufficient opportunity to respond. (Plenger v. Alza Corp. (1992) 11 Cal.App.4th 349, 362, fn. 8.) K. Hovnanian's objections to the A. Maria Plumtree declaration are sustained in their entirety. K. Hovnanian's objections to the Joseph Callanan declaration are susta...

Excerpt: ... p. 4.) A proof of service of summons filed April 9, 2010, states that Hoehn was served by substituted service on “Shannon Smith, Girlfriend – Co‐Occupant” on April 1, 2010, after several unsuccessful attempts. A declaration of mailing states that the summons and complaint were mailed to the service address on April 2, 2010. No answer was filed within the time required by law, and Hoehn's default was entered on May 18, 2010. Hoehn moves t...

Excerpt: ...ty of perjury in compliance with Code of Civil Procedure section 2015.5. Ruling on Motion The motion is granted. 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).) The moving party bears the initial burden of establishing every element of ...

Excerpt: ...el arbitration is whether there exists an agreement to arbitrate. Cruise v. Kroger Co. (2015) 233 Cal.App.4th 390, 396. It is the moving party that carries this initial burden by proving, by a preponderance of the evidence, the existence of a valid arbitration agreement. Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972. Petitioners meet their burden here. The court disagrees with plaintiff's contention that her claim for speci...

Excerpt: ...ion 533, an injunction may be modified or dissolved upon a showing that there has been a material change in the facts upon which the injunction was granted, that the law has changed, or that the ends of justice would be served by modification or dissolution. An injunction may be granted when it appears that the plaintiff is entitled to the demanded relief, and that plaintiff would suffer irreparable injury if the enjoined action 4 were allowed to...

Excerpt: ... Civil Procedure sections 12 and 12a. Ruling on Motion In the current motion, defendants seek judgment notwithstanding the jury's verdict in favor of plaintiff. They also seek the alternative relief of a new trial. The court will address each request separately. Judgment Notwithstanding the Verdict (JNOV) The authority to review a JNOV motion is proscribed by statute. “The court, before the expiration of its power to rule on a motion for new tr...

Excerpt: ... LLC's (“SNP's”) prior motion to enforce, as well as a proposed judgment thereon. The court's ruling did not provide further 3 direction on the contents of the proposed judgment. Subsequent to this action, on March 16, 2020, the court entered a modified ruling on submitted matter and judgment thereon. SNP now moves to vacate the March 16, 2020 judgment (“the Judgment”) pursuant to Code of Civil Procedure section 663. In its reply brief, S...

Excerpt: ...McNally”) moves for summary judgment as to plaintiffs' cause of action for negligent misrepresentation. 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 tria...

Excerpt: ... CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR JUNE 18, 2020 AT 8:30 A.M. NOTICE TO ALL PARTIES WHO REQUEST ORAL ARGUMENT: UNLESS OTHERWISE NOTED, ORAL ARGUMENT WILL BE HEARD ON THURSDAY, JUNE 25, 2020 AT 8:30 A.M. stay of proceedings due to defendant filing a bankruptcy action in the Eastern District Federal Bankruptcy Court. Pursuant to 11 U.S.C., §362(a)(1), federal bankruptcy law imposes an automati...