Excerpt: ...n by plaintiff's second amended complaint, filed on July 28, 2021. The second amended complaint alleges breach of contract, misappropriation of trade secrets, breach of the implied covenant of good faith and fair dealing, fraud, and conversion, each claim arising from the alleged breach of a settlement agreement entered into between plaintiff and defendants Herbert Feinberg, Harry Feinberg, Richard Tinervin, and Gotham Enterprises and Affiliates,...

Excerpt: ...ing, utilizing or sharing “any Smartrise trade secret or confidential information”, “any Smartrise document or property obtained during their employment”, and “any Company Invention created by any of the Individual Defendants at any time during employment with Smartrise.” The requested injunction would also prevent defendants from “deleting, modifying, altering, or otherwise destroying or hiding any information or item held by defen...

Excerpt: ... provided insufficient notice with respect to the hearing date which he scheduled for the motion. Second, a motion to vacate judgment does not lie following a ruling on a demurrer. Payne v. Radar (2008) 167 Cal.App.4th 1569, 1574, disapproved on other grounds by Ryan v. Rosenfeld (2017) 3 Cal.5th 124. As a demurrer tests only the sufficiency of the pleadings, there are no “conclusions of law” to be corrected from “uncontroverted evidence”...

Excerpt: ...e, a court rule, or an order of the court.” Code Civ. Proc. § 436. The grounds for a motion to strike must appear on the face of the pleading under attack, or from matter which the court may judicially notice. Code Civ. Proc. § 437. 4 Defendants' motion is denied as to Paragraphs 9, 10, 11, 12, 15, 16 and 18. The subject allegations were included in plaintiff's original complaint. As to those allegations which were identified in defendants' m...

Excerpt: ...aintiff asserted that the court has personal jurisdiction over the moving party. Accordingly, the motion remains premature. Defendant's request that the court dismiss the action must also be denied as no such request was stated in the notice of motion. Notwithstanding the denial of defendant's motion, based on the court's review of the file, grounds currently exist for discretionary dismissal of the action against all defendants based on the fail...

Excerpt: ...ror as opposed to presenting substantively new evidence. Nextitle's objections nos. 1 and 2 are overruled. Ruling on Motion The motion is denied. Initially, the court agrees with Nextitle's assertion that the fourth and sixth causes of action are no longer asserted against it. Nextitle was originally dismissed from the action and brought back as Doe 1. The fourth and sixth causes of action are not aimed at Doe 1. Thusly, the court reviews the cur...

Excerpt: ...tion The motion is denied. Skyline brings this motion seeking a new trial based upon (1) irregularities in the proceedings and (2) newly discovered evidence. (Code of Civil Procedure section 657(1), (4).) Skyline fails to make a sufficient showing to warrant a new trial. Skyline's primary contention focuses on purportedly newly discovered evidence. Specifically, Skyline asserts that the July 2021 letter drafted by defendant and attached to the co...

Excerpt: ...ppearance in this action. A special appearance is done so that a defendant can object to the court's jurisdiction, allowing the court to determine the sole issue of jurisdiction over the person. (see Greener v. Workers' Comp. Appeals Bd. (1993) 6 Cal.4th 1028, 1036– 1037; Titus v. Superior Court (1972) 23 Cal.App.3d 792, 801.) Defendant Fullmer's opposition to the current request is substantive in nature, it does not oppose the court's jurisdic...

Excerpt: ...vice on defendant on September 17, 2021. On September 20, 2021, the clerk served notice of time and place for trial on the parties, setting the case for trial on October 5, 2021. Defendant failed to appear at trial, and judgment was entered in favor of plaintiff. The court's records reflect that after trial concluded, the clerk erroneously set an order to show cause re dismissal hearing on January 31, 2022. Defendant moves to set aside the judgme...

Excerpt: ... stipulated: Defendants agree to vacate the subject premises by Sept. 15, 2021 and to pay the sum of $3390 by August 3, 2021. If this is done timely plaintiff agrees to dismiss the action with prejudice. If not, judgment shall enter for plaintiff upon default declaration. Plaintiff to dismiss/set aside default judgment against Cheryle Reed and Tiara Reed. According to plaintiffs, the monetary portion of the settlement agreement was timely paid. O...

Excerpt: ...ate actions that involve common questions of law or fact. Walker v. Walker (1960) 177 Cal.App.2d 89, 91‐92. The purpose of consolidation is to promote trial convenience and economy by avoiding duplication of procedure, especially with respect to the proof of issues common to both actions. See McClure, on Behalf of Caruthers v. Donovan (1949) 33 Cal.2d 717, 722‐723. Consolidation rests within the sound discretion of the trial court. Miller's r...

Excerpt: ...fendants' motion are not persuasive. Neither the court's jurisdiction over a now‐dismissed party nor Code of Civil Procedure section 664.6 are implicated by discovery requests seeking facts and documents in plaintiff's possession. While the court does not resolve the issue of defendants' entitlement to offset for the purposes of this motion, defendants adequately demonstrate the potential for offset based on the claims pleaded in this action, a...

Excerpt: ...at the court strike Calder's fifth, sixth, seventh, eighth and ninth causes of action, and further requested that the court strike Paragraphs 75, 77, 109, 117, 131, 145 and 154, on the grounds that the claims and allegations arose from protected activity. The court granted Jarvis's motion as to the sixth cause of action, and Paragraphs 75, 109, and 117(B), (C) and (F). The motion was otherwise denied. PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL ...

Excerpt: .... The remainder of the objections are overruled. Ruling on Application Plaintiff's application is granted subject to the posting of a $5,000 bond. The court may grant a preliminary injunction when it appears from the complaint that the plaintiff is entitled to the demanded relief and the plaintiff would suffer irreparable injury if the enjoined action were allowed to proceed. (Code of Civil Procedure section 526(a).) In making this determination,...

Excerpt: ... Inc. v. Superior Court (1999) 20 Cal.4th 449, 457, fn. 9. 9 Defendant and respondent City of Lincoln (“defendant”) demurs to the verified petition for writ of mandate and complaint for declaratory relief filed by plaintiffs and petitioners Shamus McClure, Ken Daley and Scott Daley (collectively “plaintiffs”). A demurrer tests the legal sufficiency of the pleadings, not the truth of the allegations or the accuracy of the described conduct...

Excerpt: ...The grounds for a motion to strike must appear on the face of the pleading under attack, or from matter which the court may judicially notice. Code Civ. Proc. § 437. To support a prayer 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 des...

Excerpt: ...d he turned the complaint over to his current insurance carrier, believing it would handle the claim. Mr. McGrath states that he first learned on or about June 1, 2021, that no answer had been filed. Defendant moves for discretionary relief from the default and default judgment pursuant to Code of Civil Procedure section 473(b). Discretionary relief may be granted if defendant demonstrates that its failure to timely respond to the complaint was b...

Excerpt: ...staurants, Inc. (collectively “defendants”). A party may move for summary adjudication if it contends that there is no merit to an affirmative defense. Code Civ. Proc. § 437c(f)(1). A moving plaintiff has the initial burden of showing that the affirmative defense has no merit. Code Civ. Proc. § 437c(p)(1). If plaintiff meets its initial burden, the burden shifts to defendant to show the existence of a triable issue of material fact as to th...

Excerpt: ... 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. Plaintiff's first cause of action alleges a dangerous condition of public property. Plaintiff alleges that on September 22, 2020, “the playground area and/or play equipment area” at Parker Whitney Elementary School (“the Premises”) was in a dangerous or defective ...

Excerpt: ...iled this amended answer. The court declines to take judicial notice of the document since it has not yet been filed with the court. Ruling on Petition The petition is granted. Initially, the court will not issue a statement of decision in this case. Defendant made a conditional request for a statement of decision in the event the court denied the petition. (Defendant's P&As, p. 14:23‐24.) The court grants the petition, thusly, there is no viab...

Excerpt: ...documents related to minor J.W., who plaintiff alleges sexually assaulted her. The parent of J.W. objects to the production of any documents. The documents sought here are student educational records, which are confidential under both federal and state law. (20 U.S.C section 1232g(b)(1); Education Code section 49076.) Absent parental consent, the records may only be disclosed via a court order or lawfully issued subpoena. (20 U.S.C. section PLACE...

Excerpt: ...llegations 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 FAC keeping this in mind. A review of the allegations within the FAC, when they are read as a whole, shows that they are sufficient to support the first and second causes of action at this pleading stage. The demurrer is overruled as to the first ...

Excerpt: ...A Fire & Casualty Insurance Company moves for summary judgment, or alternatively summary adjudication of each cause of action alleged by plaintiffs, as well as the prayer for punitive damages. 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 of persuasion that one o...

Excerpt: ...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 they may seem. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. In 2 rulin...

Excerpt: ...ustin Naranjo are ruled on as follows: Objection Nos. 1, 3, 4, 5, 9 and 10 are sustained. The remaining objections are overruled. Defendants' objections to the declaration of Sophia Perez are ruled on as follows: Objection Nos. 1, 3, 4, 5, 6, 10 and 11 are sustained. The remaining objections are overruled. Defendants' objections to the declaration of Anna Taran are ruled on as follows: Objections Nos. 1, 2, 4, 5, 6, 7, 10 and 11 are sustained. Th...

Excerpt: ...e standards set forth in Tech‐Bilt v. Woodward Clyde & Associates (1985) 38 Cal.3d 488, the settlement at issue is within the reasonable range of the settling cross‐defendant's proportionate share of liability for plaintiffs' injuries and therefore is in good faith within the meaning of Code of Civil Procedure section 877.6. Cross‐Defendant California Mantel & Fireplace, Inc.'s Motion for Determination of Good Faith Settlement The motion is...

Excerpt: ...e substantially code compliant and (2) the failure to timely respond was the result of mistake, inadvertence, or excusable neglect. (Ibid.) Defendant has made a sufficient showing to warrant relief from the waiver. This leaves the competing requests for sanctions brought by both parties. The court is compelled to note this request is not one that should have required court intervention. Both counsel play a technicalities game that assists neither...

Excerpt: ...ervices v. San Joaquin Valley Unified Air Pollution Control District (2003) 113 Cal.App.4th 597, 603.) The court reviews the subrogation complaint keeping these principles in mind. Defendants challenge both causes of action in the complaint, asserting a lessee cannot be held responsible for negligently causing fire damage where the lessor's insurance policy is for their mutual benefit. (W. Heritage Ins. Co. v. Frances Todd, Inc. (2019) 33 Cal.App...

Excerpt: ...d 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.) The current challenge is reviewed keeping this in mind. A review of the breach of contract claim reveals it is deficiently pleaded against the cross‐defendants. First, the allegations do not sufficiently allege crosscompla...

Excerpt: ...blished principles. The sufficiency of the pleadings, not the truth of allegations or accuracy of the described conduct, is tested. (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.) The court reviews the claims k...

Excerpt: ...little relevance to the matter pending before the court. Ruling on Demurrer In this instance, defendants demur to the single PAGA cause of action alleged in the original complaint. A demurrer is reviewed under well established principles. The complaint is read as a whole giving the pleading and its parts a reasonable interpretation. (Brown v. Ralphs Grocery Co. (2018) 28 Cal.app.5th 824, 833‐834.) All properly pleaded factual allegations and ma...

Excerpt: ... Moles are overruled. Defendant's objections to the declaration of Michael Mezzetti are overruled. Plaintiff moves to set aside default pursuant to Code of Civil Procedure section 473.5. Code of Civil Procedure section 473.5 gives the court discretion to grant relief from default or default judgment where service of summons has not resulted in actual notice to a party in time to defend the action. It is typically used in cases where service was m...

Excerpt: ... and requiring that any judgment obtained against defendant in this matter be paid from the equalization payment. Civil Code section 1708.6 authorizes the court to grant injunctive relief to prevent tortious conduct. The court is also generally authorized to grant injunctive relief in any civil action pursuant to the requirements of Code of Civil Procedure section 526. The court may grant a preliminary injunction when it appears from the complain...

Excerpt: ...uracy 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. Defendants argue that the termination notice attached to plaintiffs' complaint fails to comply with Code of Civil Procedure section 1161(2). This argument is inapplicable to the action as the complain...

Excerpt: ...ification of individuals who were involved in or otherwise witnessed plaintiff's condition, care and treatment while a resident at the “FACILITY”, defined as Crocus Holdings, LLC dba Roseville Care Center. Defendant raises two main objections to the foregoing interrogatories. First, defendant objects on the grounds that the information seeks personal information of employees and former employees in violation of those individuals' right to pri...

Excerpt: ...eclaration. Ruling on Motion Plaintiff seeks an order to enforce a particular portion of the parties' settlement agreement. Specifically, plaintiff seeks an order for sale of the property located PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 3 THE HONORABLE MICHAEL W. JONES TENTATIVE RULINGS FOR SEPTEMBER 23, 2021 AT 8:30 A.M. PLACER SUPERIOR COURT – DEPARTMENT 3 Thursday Civil Law and Motion – Tentative Rulings Page ...

Excerpt: ...ires Direct's demurrer to the complaint. The hearing on this motion, however, was set a few weeks after Tires Direct's demurrer. Asghar also did not file any supporting documents in conjunction with this motion, which presented the venue challenge as being improperly filed. It is also noted Tires Direct's demurrer did not mention Asghar's venue challenge. Further, Tires Direct did not file its nonopposition to the venue challenge until a day afte...

Excerpt: ...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 they may seem. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App...

Excerpt: ...al condition of the defendant if it finds, based on consideration of the supporting and opposing affidavits presented, that plaintiffs have established a substantial probability of prevailing on their punitive damages claim. An award of punitive damages requires a finding of oppression, fraud or malice on the part of the defendant. Civ. Code § 3294(a). Malice includes conduct which is intended by defendant to cause injury to plaintiff, or despic...

Excerpt: ..., 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 they may seem. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. Union Pacific's unopposed demurrer is sustained as to plaintiff's fourth cause of action for foreclosure of mechanic's lien. This claim fails to allege suf...

Excerpt: ...ants' request for judicial notice under Evidence Code section 452. Ruling on Motion In the current motion, defendants seek to expunge the lis pendens filed on April 15, 2020. The review for a motion to expunge lis pendens differs when it is brought after judgment in a case has been entered. The subject relief is generally required unless there is a pending appeal. (Amalgamated Bank v. Superior Court (2007) 149 Cal.App.4th 1003, 1015.) In this ins...

Excerpt: ...al jurisdiction in cases where the five‐day summons is not supported by a complaint which alleges the necessary allegations to support an unlawful detainer action against the defendant. Id. However, such a motion may not be used as a means to dispute the merits of the complaint's allegations, or to argue that plaintiff failed to comply with the specific pleadings requirements of Code of Civil Procedure section 1166. Id. at 391. For the purpose ...

Excerpt: ... Valley Resort, LLC moves for summary judgment, or in the alternative summary adjudication as to plaintiff Olja Mijic's causes of action for intentional interference with contractual relations and intentional interference with prospective economic relations. 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 mo...

Excerpt: ...equires the moving party to present new or different, facts, circumstances, or law that were unavailable at the time the order was made. (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212‐213.) This requires a showing that the moving party could not reasonably have discovered or produced the information at the time of the hearing. (Ibid; Garcia v. Hejmadi (1997) 58 Cal.app.4th 674, 690.) Ms. Casetta has made no such showing h...

Excerpt: ...the dispute between the parties. The document is extrinsic evidence submitted in an attempt to broaden review beyond the scope of the allegations within the complaint, which is improper. A court cannot convert a demurrer into an incomplete evidentiary hearing through the submission of extrinsic evidence under the guise of a judicial notice request. (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 114‐115.) Ruling on De...

Excerpt: ... here are at the heart of the dispute between the parties. The documents are extrinsic evidence submitted in an attempt to broaden review beyond the scope of the allegations within the complaint, which is improper. A court cannot convert a demurrer into an PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR SEPTEMBER 2, 2021 AT 8:30 A.M. PLACER SUPERIOR COURT – DEPARTME...

Excerpt: ...6. The grounds for a motion to strike must appear on the face of the pleading under attack, or from matter which the court may judicially notice. Code Civ. Proc. § 437. The court has not considered statements made in plaintiff's opposition, or in the declaration of plaintiff's counsel, which are not alleged in the first amended complaint, and for which no request for judicial notice has been made. The motion is denied. The first amended complain...

Excerpt: ...ce was proper. Dill v. Berquist Construction Co., Inc. (1994) 24 Cal.App.4th 1426, 1441‐1442. A proof of service filed May 26, 2021, states that defendant was served by personal service on May 17, 2021, at 5:05 p.m. Defendant generally denies that personal service was effectuated on that date, stating only that she found a copy of the summons and complaint on the ground in front of her garage on May 25, 2021. (Declaration of Linda Vaccarezza, �...

Excerpt: ...enied, as the motion was unopposed. Code Civ. Proc. § 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 Interrogatories (Emma Ledesm...

Excerpt: ...s 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. Defendant's demurrer to the first cause of action for negligence is overruled. The court previously sustained defendant's demurrer to the claim of negligence alleged in the complaint, finding that as pleaded, the claim was subject to the doctrine of primary assumption of risk. In the sporting con...

Excerpt: ...edure 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 Cal.4th 826, 843.) In this instance, defendant has made a sufficient showing regarding the applicability of the Privette doctrine. There is a presumption that an independent contr...

Excerpt: ...nsuring that the agreement is not a product of fraud, overreaching parties, or collusion and that the settlement, as a whole, is fair, reasonable, and adequate. (7‐Eleven Owners for Fair Franchising v. Southland Corp. (2000) 85 Cal.App.4th 1135, 1145.) A presumption of fairness exists where: (1) the settlement was reached through arms‐length bargaining; (2) the investigation and discovery were sufficient to allow class counsel and the court P...

Excerpt: ...n. (Code of Civil Procedure section 430.10(c).) Under a statutory plea of abatement the pendency of an earlier action arising from the same transaction and between the same parties is grounds for abatement of the second action. (People ex rel. v. American Autoplan, Inc. (1993) 20 Cal.App.4th 760, 770.) Here, defendant has not made a sufficient showing in support of statutory abatement. A PAGA claim is brought by an employee who acts a proxy for t...

Excerpt: ... sale of the subject property. Plaintiff's request is granted as to Exhibit 1. The remainder of plaintiff's request for judicial notice is denied. /// PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR AUGUST 26, 2021 AT 8:30 A.M. PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and Motion – Tentative Rulings Page 2 of 12 Ruling on the Motion In the current r...

Excerpt: ...tration where there is a written contract involving interstate or foreign commerce or maritime transactions. (9 U.S.C. §§1, 2.) Where the FAA governs, conflicting state law is preempted under the Supremacy Clause. (AT&T Mobility, LLC v. Concepcion (2011) 563 U.S. 333; 131 S.Ct. 1740, 1745‐1746.) Thus, the first step of the inquiry is to determine whether the subject arbitration provision is governed by the FAA. To reiterate, the FAA applies t...

Excerpt: ...he default entered against her on or about September 2, 2020. As a preliminary matter, the court notes that the motion was not timely served pursuant to Code of Civil Procedure section 1005. Nevertheless, as plaintiff has responded substantively and does not demonstrate any prejudice caused by the lack of sufficient notice, the court has considered the motion on its merits. The court finds that the motion has been timely made. Relief under Code o...

Excerpt: ...on of John Isaac Southerland are ruled on as follows: Objection Nos. 4, 6, 7, 8, 11, 12 and 13 are sustained. The remaining objections are overruled. The motion to strike the declaration in its entirety is denied. Ruling on Motion Plaintiff's motion to compel further responses to requests for production of documents, set one, is granted in part. The motion is granted as to Request No. 6 as defendant Ford Motor Company's response does not comply w...

Excerpt: ...in. Code Civ. Proc. § 430.10(e), (f). 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 contentions, deductions, or conclusions of facts or law. Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6. Dwelle demurs to ...

Excerpt: ...nt should be stricken since cross‐complainant did not serve the pleading within 30 days of issuance of the summons. Such relief is not proper under the circumstances. A cross‐complaint is subject to discretionary dismissal when the cross‐defendant is not served within two years after the action is commenced. (Code of Civil Procedure sections 583.420(a), 583.110.) The cross‐complainant may avoid discretionary relief by making a showing of ...

Excerpt: ...nt of $1,000, under Code of Civil Procedure section 473(c)(1)(B). A party may seek leave from a default within a reasonable time, no later than six months after its entry, upon a showing of mistake, inadvertence, surprise, or excusable neglect. (Code of Civil Procedure section 473(b).) A court shall grant relief, when timely brought and presented in the proper format, where an attorney submits a sworn affidavit attesting to the attorney's mistake...

Excerpt: ...nctions should be awarded upon the failure of the responding party to timely respond. (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 410‐411.) The court has carefully reviewed the declarations of counsel submitted in support of their respective positions. The circumstances surrounding the delay in responses may have initially been justifiable. However, the exceedingly lengthy period of time it...

Excerpt: ...athaway, James Middleton, Alliance United Insurance Company, and SelfServe Petroleum dba Gas & Shop. After issuance of the summons, but before PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR AUGUST 12, 2021 AT 8:30 A.M. PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and Motion – Tentative Rulings Page 16 of 25 providing proof of service, plaintiff dismis...

Excerpt: ...nt motion is a renewal motion pursuant to Code of Civil Procedure section 1008(b) lacks merit. Code of Civil Procedure section 1008(b) states: A party who originally made an application for an order which was refused in whole or part, or granted conditionally or on terms, may make a subsequent application for the same order upon new or different facts, circumstances, or law, in which case it shall be shown by affidavit what application was made b...

Excerpt: ..., fourth, and sixth causes of action are brought against Strauch & Company, who was dismissed from the action on January 27, 2021. The court file does not reflect there have been any amendments to allege these three claims against the moving defendants. In light of the posture of the court file, the court declines to entertain the motion as to the third, fourth, and PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HON...

Excerpt: ... 19, 20, 21, 22, 23, and 24 are overruled. Ruling on Motion Defendant SGE moves to quash service for lack of jurisdiction. Defendant SGE opposes the court exercising jurisdiction over it in this California action involving injury to a California plaintiff who was injured in Utah. On the other hand, plaintiff asserts this court has specific jurisdiction over SGE. California courts may exercise jurisdiction on any basis so long as it is not inconsi...

Excerpt: ... 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 reviews the demurrer keeping this in mind. In paragraph 20, plaintiffs allege “Corcoran acquired Oliver Luxury Real Estate in 2020, and that Corcoran lists Defendants Michael Oliv...

Excerpt: ...efendant is still required to PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR JULY 29, 2021 AT 8:30 A.M. UNLESS OTHERWISE NOTED, ANY ORAL ARGUMENT REQUESTED WILL BE HEARD ON TUESDAY, AUGUST 3, 2021 AT 8:30 A.M. IN DEPARTMENT 42. PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and Motion – Tentative Rulings Page 9 of 20 comply with its discovery obligation...

Excerpt: ...ers 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 the party contends there is no merit to one or more of the causes of action. (Code of Civil Procedure section 437c(f)(1).) In reviewing a motion for summary judgment or summary adjudication, the trial c...

Excerpt: ...ved by 12:00 p.m. on Thursday, August 5, 2021. Non‐Party Holly Piatyszek's Motion for Protective Order Preliminary Matters According to the notice of motion, the motion is directed at defendants Strauch & Company Inc. and Donnie Barksdale. Strauch & Company was dismissed PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR JULY 29, 2021 AT 8:30 A.M. UNLESS OTHERWISE NOTE...

Excerpt: ... requested in plaintiff's request for judicial notice. The remainder of the request is denied. New evidence submitted with reply papers generally will not be considered where the opposing party has not had the ability to address the new evidence. (Alliant Ins. Services, Inc. v. Gaddy (2009) 159 Cal.App.4th 1292, 1307‐1308; Plenger v. Alza Corp. (1992) 11 Cal.App.4th 349, 362, fn. 8.) PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION D...

Excerpt: ...ot 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.) The complaint is reviewed keeping this in mind. A review of the complaint reveals significant pleading deficiencies, making it di...

Excerpt: ... 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 reviews the demurrer keeping these principles in mind. /// PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB ...

Excerpt: ...79 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.) In this instance, the factual allegations in the complaint are insufficient to plead defendant is a corporate entity with liability for the prior entity the Lincoln City Colts. “Successor liability issues are equitable issues to be exam...

Excerpt: ...gations 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 complaint keeping these principles in mind. A review of the two causes of action reveal both suffer from pleading deficiencies. The third cause of action alleges a claim for professional negligence. Professional negligence specifically incorporates t...

Excerpt: ...iv. 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 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 Equip...

Excerpt: ...ctions, courts do not impose such a sanction lightly. Upon careful review of the moving papers and the court file, the court determines that terminating sanctions are appropriate in this instance. Plaintiff served defendant with discovery requests in June 2020, including interrogatories, requests for production of documents, and requests for admission. Defendant failed to serve any responses. Plaintiff moved to compel responses and to deem reques...

Excerpt: ...f America (1983) 141 Cal.App.3d 55, 58; Generale Bank Nederland, N.V. v. Eyes of the Beholder Ltd. (1998) 61 Cal.App.4th 1384, 1399. On February 22, 2021, defendants were served with an informational Notice of COVID‐19 Tenant Relief Act Extension and New Rental Assistance Program which instructed defendants regarding the necessary steps to protect against an unlawful detainer action for failure to pay rent. On March 4, 2021, defendants were ser...

Excerpt: ...rt. (Code 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).) The request is reviewed keeping this in mind. The motion is granted as to paragraphs 9, 10, 17, 19, 20, 21 and the prayer for punitive damages. The language in paragraphs 9, 10, 20, and 21 include PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL L...

Excerpt: ...b), 1013, 12a and 12c. In addition, although a proof of service executed by Allen Shamsari under penalty of perjury states that the motion was served by mail on Tuesday, June 1, 2021, defendant rebuts the presumption of proper service by showing that the documents it received were postmarked on Saturday, June 5, less than 16 court days prior to the scheduled hearing date. Demurrer to Complaint Defendant's request for judicial notice is granted. D...

Excerpt: ..., 374; StorMedia, Inc. v. Superior Court (1999) 20 Cal.4th 449, 457, fn. 9. The court may also take judicial notice of the legal effect of a document's language where that effect is clear. Poseidon Dev., Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117‐1118; see also McElroy v. Chase Manhattan Mortgage Corp. (2005) 134 Cal.App.4th 388, 394. Plaintiff's objections to evidence are ruled on as follows: Objection Nos. 1, 2, 3, 6...

Excerpt: ...no showing of prejudice to the opposing 4 party. Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428; Douglas v. Superior Court (1989) 215 Cal.App.3d 155, 158. Defendants fail to establish prejudice sufficient to deny plaintiff's motion. Given that it is plaintiff's burden to establish the elements of each of the alleged causes of action, including in some cases scienter and intent, the court is not persuaded that decedent Herbert Fei...

Excerpt: ...al notice of the legal effect of a document's language where that effect is clear. Poseidon Dev., Inc. v. Woodland Lane Estates, LLC (2007) 152 Cal.App.4th 1106, 1117‐1118; see also McElroy v. Chase Manhattan Mortgage Corp. (2005) 134 Cal.App.4th 388, 394. With respect to Exhibit 4, the court takes judicial notice of the 2009 loan modification agreement, but not numerous related documents included within the exhibit which do not constitute the ...

Excerpt: ...hat Ryan's moving papers argue that the entire FAC should be dismissed. Ryan argues that the FAC fails to join an indispensable party to the action. A party is considered indispensable if: (1) in his absence complete relief cannot be accorded among those already parties or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or imp...

Excerpt: ...E CHARLES D. WACHOB TENTATIVE RULINGS FOR JULY 15, 2021 AT 8:30 A.M. purportedly filed by defendant Aspen Earthworks. The court file reflects the subject objections were rejected by the clerk and not filed with the court. Since the objections were not properly filed with the court, Welsh Hagen's supplemental filings from July 12, 2021 will not be considered. Ruling on Objections Welsh Hagen's objections, filed on July 8, 2021, are sustained in th...

Excerpt: ...Executive Orders as does so. The request is denied as to Exhibit M. Plaintiffs' request for judicial notice is granted in its entirety. Ruling on Demurrer In the current request, defendants challenge all eleven causes of action alleged in the original complaint. They allege the complaint is deficient in several respects, focusing primarily on the assertion plaintiffs' action is moot. “California courts will decide only justiciable controversies...

Excerpt: ...ictorville (2013) 217 Cal.App.4th 218, 227.) Where a plaintiff brings a the motion, the plaintiff must establish the complaint states facts sufficient to constitute a cause 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).) A review of the complaint shows the single cause of action for breach of contract is sufficiently pleaded. A review of the answer ...

Excerpt: .... Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) The court reviews the crosscomplaint keeping these principles in mind. In this instance, cross‐defendants demur to the purported first cause of action in the cross‐complaint. The filing of the cross‐complaint was improper since cross‐complaints generally cannot be filed in unlawful detainer action. (Code of Civil Procedure section 1170; Knowles v. Robinson (1963) 60...

Excerpt: ... 30, 2020, by plaintiffs Jeannie Depalma (“Depalma”) and Patrick Shields, who allege that Depalma was injured when she slipped and fell on an unknown substance on the floor at defendant's premises. In its case management statement filed October 22, 2020, defendant acknowledged that Depalma “alleges that she slipped on water that had leaked from the ceiling HVAC system”. (Defendant's Case Management Statement filed October 22, 2020.) In th...

Excerpt: ...y judgment as to the claims alleged in plaintiff and cross‐defendant Van Jordan's (“plaintiff's”) complaint and defendants' second amended cross‐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 of persuasion that one or more elements of the causes...

Excerpt: ...ds should have been paid to them, instead of being interpled. 4 Pacific Loan Mgmt. Corp. v. Superior Court (1987) 196 Cal.App.3d 1485, 1489. Further, the order may not be made contingent upon plaintiff's compliance with alleged pending discovery obligations. Turning to the issue of plaintiff's requested fees and costs, the court may award plaintiff its reasonable attorneys' fees and costs incurred in this action pursuant to Code of Civil Procedur...

Excerpt: ...f asserts in its moving papers that “FCA responded to the Requests in the same obstructionist, bad faith manner that it routinely uses against California consumers who file Lemon Law claims.” Defendants make their own accusations, including for example “Nevertheless, in what has become all too common in California lemon law litigation, Plaintiffs here demand class action‐type discovery, in some instances, in violation of third‐party pri...

Excerpt: ... 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.) 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 t...

Excerpt: ...terrupted because of “the State's unprecedented quarantine response to COVID 19 and that, as a result, the trial was paused for over two and half months.” They claim this delay “and the fear of COVID 19 destroyed the continuity of EMS's case.” EMS and Gerhardt claim that when the trial resumed, the defendants/crosscomplainants were able to complete their evidence without an interruption. They assert this unfairly prejudiced their right to...

Excerpt: ...e 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 reviews both claims keeping these principles in mind. In the fifth cause of action, plaintiffs allege a claim for breach of fiduciary duty against defendant Dennis Socolean. A caus...

Excerpt: ...App.4th 775, 787.) The allegations in the pleadings are deemed to be true no matter how improbable they may seem. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) The court reviews the challenged causes of action keeping these principles in mind. The fifth cause of action asserts a claim for breach of fiduciary duty against National, alleging National was the insurance carrier for New Legend from 2018 through 2020. ...

Excerpt: ... motion to strike under Code of Civil Procedure section 436 lies against a claim for punitive damages where the facts alleged do not rise to the level of malice, fraud or oppression required to support such an award. Turman v. Turning Point of Central Cal., Inc. (2010) 191 Cal.App.4th 53, 63. 5 To support a prayer for punitive damages, plaintiff must allege ultimate facts supporting a finding of oppression, fraud or malice on the part of the defe...

Excerpt: ... THURSDAY, JUNE 24, 2021 AT 8:30 A.M. IN DEPARTMENT 42. PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and Motion – Tentative Rulings Page 2 of 5 Ruling on Motion The motion is granted. The trial court shall grant a motion for summary judgment if “all of 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 sectio...

Excerpt: ...under Code of Civil Procedure section 1008(b), which allows the moving party whose request was previously denied to renew the motion based upon “new or different facts, circumstances, or law”. Plaintiff has not made a sufficient showing to warrant renewed consideration of the prior motion. He does not present sufficient new or different facts, circumstances, or law that were not present or known to the parties at the time of the prior hearing...

Excerpt: ...uses of action subject to the current demurrer. 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. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) The court reviews these...

Excerpt: ...Judicial Notice PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and Motion – Tentative Rulings Page 4 of 7 PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR JUNE 10, 2021 AT 8:30 A.M. Defendants' request for judicial notice is denied. Ruling on Demurrer In the current request, the moving defendants challenge only the fourth cause of action for violations of...