Excerpt: ...of Civil Procedure section 415.20(b), which states: If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served, as specified in Section 416.60, 416.70, 416.80, or 416.90, a summons may be served by leaving a copy of the summons and complaint at the person's dwelling house, usual place of abode, usual place of business, or usual mailing address other than a United States Postal Servic...

Excerpt: ...duction 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. The motion for summary judgment must be supported by evidence establishing the moving party's right to relief. Regents of Univ. of Cal. v. Superior Court (1996) 41 Cal.App.4th ...

Excerpt: ...t may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading”. Code Civ. Proc. § 473(a)(1). The court's discretion will generally 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 ...

Excerpt: ...rays for holdover damages beginning on November 1, 2019, a date that is prior to expiration of the 3‐day notice, in addition to seeking past‐due rent of $3,800. The 3‐day notice suggests that the total requested may include amounts that do not constitute unpaid rent, such as “late penalties or other fees accumulated”. Finally, the 3‐day notice fails to comply with Code of Civil Procedure section 1161(2), as it fails to state how the r...

Excerpt: ...or judicial notice is granted under Evidence Code section 452. Ruling on Motion In the current motion, defendants The Frank Law Group, P.C. and Brett Rosenthal seek summary judgment as to plaintiff's second cause of action for professional malpractice, which is the only remaining cause of action aimed at these defendants. The trial court engages in a specific analysis when reviewing a motion for summary judgment. First, it must define the scope o...

Excerpt: ...mary judgment, or in the alternative, summary adjudication of plaintiff American River Bank's (“ARB's”) causes of action for breach of contract, breach of the implied covenant of good faith and fair dealing, and unfair business practices. 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. (200...

Excerpt: ...ent 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 the allegations may seem. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. The first amended comp...

Excerpt: ... for a fixed or readily ascertainable amount not less than $500, that is unsecured or secured by personal property, and arising against a defendant who is a natural 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 basis for computing damages must be reasonable and certain. CIT Group/Equipment Financin...

Excerpt: ... objections, which included objections to RPD no. 4. From April 2019 through October 2019, the parties engaged in a significant informal discussion regarding the scope of discovery. During this meet and confer process, the parties agreed to limit the scope of RPD no. 4 to “dental records for patients whose treatment was billed to Denti‐Cal from March 11, 2015 to June 13, 2016 for the following dental procedures that are identified in the comp...

Excerpt: ...d an opportunity to respond. (Plenger v. Alza Corp. (1992) 11 Cal.App.4th 349, 362, fn. 8.) Ruling on Objections Defendants' objections nos. 1 through 3 are sustained in their entirety. Plaintiff's objection and request for continuance of the motion is denied. Code of Civil Procedure section 437c(h) allows for a party to seek a continuance to obtain discovery. The party seeking such a continuance must make a good faith showing, by affidavit, to e...

Excerpt: ...oes 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 the allegations may seem. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, ...

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 tr...

Excerpt: ...1. Nevertheless, the court maintains discretionary power to grant relief. Id. at 289‐290; Lee v. Wells Fargo Bank, N.A. (2001) 88 Cal.App.4th 1187, 1200. In this case, the court finds that plaintiff's failure to timely file its motion for fees was due to the excusable neglect of counsel. The court further finds that the motion for relief was made within a reasonable time, and that defendant will not be prejudiced by permitting relief. According...

Excerpt: ...e of Civil Procedure section 436(a), (b).) The grounds for a motion to strike must appear on the face of the pleading or from judicially noticeable matters. (Code of Civil Procedure section 437(a).) Here, defendant seeks to strike various allegations within paragraph 10 of the complaint that refer to negligence per se presumptions along with presumed statutory violations of Business & Professions Code section 725 and 1680. The court has carefully...

Excerpt: ...erit to one or more of the causes of action. (Code of Civil Procedure section 437c(f)(1).) However, a motion for summary adjudication shall only be granted where it completely disposes of a cause of action. (Ibid.) The moving party bears the initial burden of establishing every element of the cause of action. (Id. at 437c(p)(1).) Only when this initial burden is met does the burden shift to the opposing party to establish a triable issue of mater...

Excerpt: ...Ins. Services, Inc. v. Gaddy (2009) 159 Cal.App.4th 1292, 1307‐1308.) Ruling on Motion In the current motion, plaintiff seeks leave to amend her original complaint to include additional defendants along with adding allegations regarding punitive damages. Plaintiff's request is granted as to the naming of additional PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR JAN...

Excerpt: ... 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.) All properly pled 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.) The court reviews the complaint keeping these principles in mind....

Excerpt: ....16(a); see also Sylmar Air Conditioning v. Pueblo Contracting Svcs., Inc. (2004) 122 Cal.App.4th 1049, 1055‐1056. In determining whether an action or claim is a SLAPP suit subject to a special motion to strike , the court evaluates first whether the claim arises out of the defendant's protected speech or petitioning activity, and second whether plaintiff can show a probability of success on the merits. Navellier v. Sletten (2002) 29 Cal.4th 82...

Excerpt: ...court approval of S.W.'s transfer of future life‐contingent payments in the amount of $835,048.21 in exchange for $10,000. S.W. states that he is 35 years old, with no minor children. He states that he is currently unemployed, experiencing a financial hardship, and that he will use the money to purchase an RV or mobile home, and an affordable car. S.W. states that he has applied to the court for approval of prior transfers of his structured set...

Excerpt: ...en moves to compel further responses to special interrogatories and requests for production of documents from defendant Hotel Heritage Group, Inc. (“HHG”). Precertification class discovery is not a matter of right. CVS Pharmacy, Inc. v. Superior Court (2015) 241 Cal.App.4th 300, 307. In determining whether discovery should be permitted, the court must employ the balancing test from Parris v. Superior Court (2003) 109 Cal.App.4th 285, 300‐30...

Excerpt: ... favor of arbitration that is frequently approved and enforced by the courts. Madden v. Kaiser Foundation Hospitals (1976) 7 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. The claims in this action arise fr...

Excerpt: ...n if she contends that there is no merit to one or more causes of action alleged in the complaint. Code Civ. Proc. § 437c(f)(1). A moving defendant has the initial burden of showing that a cause of action has no merit, or there is a complete defense to the cause of action. Code Civ. Proc. § 437c(p)(2). If defendant meets her initial burden, the burden shifts to plaintiff to show the existence of a triable issue of material fact as to the cause ...

Excerpt: ...in defendant being unable to amount any defense against plaintiff's action. Practically speaking, all three of these requests seek terminating sanctions. The imposition of terminating sanctions is generally limited to extreme cases of discovery misuses that are so pervasive 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 te...

Excerpt: ...R COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR JANUARY 9, 2020 AT 8:30 A.M. action for injunctive relief. The court file, however, does not reflect plaintiffs have dismissed the third and fourth causes of action. In light of defendant's framing of his demurrer, the court will only address the challenge to the first cause of action for prescriptive easement and second cause of action for ...

Excerpt: ...927. Defendant must show that a suitable alternative forum exists, and that the balance of private and public interest factors makes it just that litigation proceed in the alternative forum. Stangvik v. Shiley Inc. (1991) 54 Cal.3d 744, 751. Where plaintiff is a California resident, there is a strong presumption in favor of plaintiff's choice of forum. Nat'l Football League v. Fireman's Fund Ins. Co., supra, 216 Cal.App.4th at 926‐927. “[E]xc...