Excerpt: ...d by the law firm Ogletree, Deakins, Nash, Smoak & Stewart, P.C. On October 27, 2020, counsel moved to be relieved as counsel. The motion to be relieved was granted on December 11, 2020, and was effective on December 15, 2020, leaving Sunfinity‐Solar‐CA, LLC without legal representation in this pending action. According to Sonji Winters, senior counsel and chief human resources officer for moving defendant, she took over responsibility for th...

Excerpt: ... enjoining defendants Chambers Landing Homeowners Association and Chambers Landing Recreation Association from allowing the Chambers Landing Bar & Grill to cook or grill hamburgers and other high lipid foods, and use their deep fryers, pending trial. 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...

Excerpt: ...isfactorily addressed by the parties in the first round of filings, and that it ordered a subsequent oneweek continuance of the hearing in order to complete review of the parties' substantial supplemental filings. Any implication that the hearing and motion have not proceeded as they otherwise should have or that the court has unreasonably delayed hearing the motion is not well taken. Plaintiffs Helio Fialho and Therese Fialho, as trustees of the...

Excerpt: ... 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. The first cause of action alleges defendant violated the Truth in Lending Act (TILA) when it failed to provide plaintiff w...

Excerpt: ...als Co. (1981) 123 Cal.App.3d 593, 604.) In the current request, defendant Mary Garcia challenges the sufficiency of the allegations in all five causes of action while defendant James Taylor challenges the allegation in the only claim brought against him found in the fifth cause of action. A review of the SAC shows each cause of action is still deficiently pleaded. The first cause of action asserts a claim for breach of contract. The allegations ...

Excerpt: ...ment Center's (“HCC's”) cross‐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 allegations in the pleadings are deemed to be true no mat...

Excerpt: ...ION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR MAY 27, 2021 AT 8:30 A.M. PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and Motion – Tentative Rulings Page 3 of 8 Ruling on Objections Defendant's objections nos. 1, 2, and 3 are sustained. Ruling on Motion 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 th...

Excerpt: ...rts have broad discretion in granting leave to amend a pleading and such discretion is usually exercised liberally to permit amendment to the pleading. (Howard v. County of San Diego (2010) 184 Cal.App.4th 1422, 1428.) Defendants concede in their opposition that the proposed amendments “simply reinforce that the claim is duplicative of the professional negligence claim. The allegations all relate to the diagnosis, care and treatment of the pati...

Excerpt: ... AT 8:30 A.M. PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and Motion – Tentative Rulings Page 7 of 8 on the loans exceeds the fair market value of the excavator and track loader. (Code of Civil Procedure section 515.010(b).) A writ of execution shall issue for the (1) 2018 Doosan DX140LCR‐5 Excavator, serial number DHKCEBBSKH0001897, and (2) 2018 Bobcat T595 Compact Track Loader, serial number B3NK30368, both located at 530 6th...

Excerpt: ...business records from Ethan Conrad Properties, Inc., a corporation, involving Sam Lilly and an entity called “Burn It”. The subject lease agreement, however, was executed by individual Ethan Conrad and corporation Functional Sport Solutions, LLC, with Samuel Lilly and Charro Lilly as guarantors. Plaintiff has not made a sufficient showing that these business records reflect the agreement subject to this litigation. The court declines to grant...

Excerpt: ...he accuracy of the described conduct. Bader v. Anderson (2009) 179 Cal.App.4th 775, 787. The allegations in the pleadings are 10 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 with respect to plaintiff's third cause of action for violation of the Ralph Civil Rights Act. Civil Code section 51.7(b) states: All persons within the jurisdiction...

Excerpt: ...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. Plaintiff's first amended complaint describes two promises made by Valliere. First, Valliere promised that if plaintiff gave her funds to construct improvements on her property, ...

Excerpt: ...ode 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. The demurrer is sustained as to plaintiff's second cause of action for ...

Excerpt: ...ction with discussions regarding a deposition of defendants' person most qualified, counsel for the parties discussed a continuance of the trial date and the hearing on the summary judgment motion. Defense counsel notified plaintiff's counsel that he was in agreement to continue the trial date approximately two months, and to continue the hearing on the summary judgment motion four weeks. Plaintiff's counsel responded, “[t]hat works for me.” ...

Excerpt: ...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 overruled with respect to plaintiff's first cause of action for breach of contract. Plaintiff alleges various terms of a combined verbal and written agreement with defendant Jay Kapila (“Kapila”), including a promise that he would be employed at a base salary of $200...

Excerpt: ...0(e). A demurrer tests the legal sufficiency of the pleadings, not the truth of the allegations or the accuracy of the described conduct. Bader 13 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 plaintiff's third cause of action for fraudulent inducement...

Excerpt: ...) and Bank of Stockton (“the Bank”) pursuant to Code of Civil Procedure sections 1281.97 and 1281.99. Code of Civil Procedure section 1281.97(a) states: In an employment or consumer arbitration that requires, either expressly or through application of state or federal law or the rules of the arbitration administrator, the drafting party to pay certain fees and costs before the arbitration can proceed, if the fees or costs to initiate an arbit...

Excerpt: ...n for new trial may not be used to challenge a pre‐trial motion which does not result in a judgment. In re Marriage of Veilock (1978) 81 Cal.App.3d 713, 719. Accordingly, the motion must be denied as it pertains to entry of default judgment against Zenaida Graves and denial of defendant's motion for sanctions. With respect to the court's ruling on plaintiff's motion for summary judgment, defendant argues that the court erred by not granting def...

Excerpt: ...expert witness as a result of mistake, inadvertence, surprise, or excusable neglect. (Code of Civil Procedure section 2034.620.) In this instance, the need to augment the disclosure is based upon plaintiff's purported mistake when he removed Dr. Luna from his expert witness disclosure designation. The motion is not supported by a declaration from the attorney who “de‐designated” Dr. Luna, along with several other experts, on May 5, 2021. Wi...

Excerpt: ... amend. A motion for judgment on the pleadings has the same function as a demurrer but is brought where the time for a demurrer has expired. (Code of Civil Procedure section 438(g); Southern California Edison Co. v. City of Victorville (2013) 217 Cal.App.4th 218, 227.) A respondent challenging a pleading must show the pleading fails to state sufficient facts to constitute a cause of action. (Code of Civil Procedure section 438(c)(1)(A).) “[J]ud...

Excerpt: ...Alliant Ins. Services, Inc. v. Gaddy (2009) 159 Cal.App.4th 1292, 1307‐1308.) Additionally, Request Nos. 2 and 3 contain materials not properly subject to judicial notice for purposes of demurrer or which are irrelevant for this purpose. Plaintiff's request for judicial notice, filed April 23, 2021, is granted except as to Requests Nos. 1, 2 and 5, which contain materials not properly subject to judicial notice for purposes of demurrer or which...

Excerpt: ...ngs Page 11 of 13 PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR MAY 20, 2021 AT 8:30 A.M. 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 FAC pleads sufficient factual allegations to support each of the causes of action. To plead ...

Excerpt: ...a party or counsel, or both “to pay the reasonable expenses, including attorney's fees, incurred by another party as a result of actions or tactics, made in bad faith, that are frivolous or solely intended to cause 4 unnecessary delay.” Code Civ. Proc. § 128.5(a). The imposed sanction may also “consist of, or include, directives of a nonmonetary nature.” Code Civ. Proc. § 128.5(f)(2). The basis of the motion, as set forth in the notice ...

Excerpt: ...l.App.4th 775, 787.) The allegations in the pleading 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 the current demurrer, defendants only challenge the sufficiency of the allegations within the fourth cause of action. A review of this claim reveals the allegations remain conclusory in nature, failing to allege sufficient facts against the ...

Excerpt: ...ot to Consent to a Court Commissioner as Temporary Judge, filed May 12, 2021,) is untimely since previous law and motion matters in this case have been heard by a commissioner. (Placer Court Local Rule 20.2; Walker v. San Francisco Housing Authority (2002) 100 Cal.App.4th 685, 691‐ 693 [the failure of a party to timely object to a commissioner hearing a matter is deemed a stipulation by the party to the commissioner hearing the matter.].) Furth...

Excerpt: ...st notice. (Cal. Judges Benchbook Civ. Proc. Before Trial, Section PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR MAY 13, 2021 AT 8:30 A.M. PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and Motion – Tentative Rulings Page 4 of 6 14.179.) Courts may regard such a request analogous to a motion for reconsideration and consider the factors set forth in Cod...

Excerpt: ...”), which Smith has been obligated to pay based on an indemnity provision in the agreement between Smith and ATC. First, as to the indemnity judgment against Smith, Smith fails to establish that he is contractually entitled to recover that amount from plaintiff Anna Murphy (“Murphy”). Attorneys' fees are sought pursuant to a provision in the Contract for Deed between Smith and Murphy, which states: Attorney Fees. Mediation first, then if li...

Excerpt: ...ecords Act (PRA). Pursuant to Government Code section 6259(d), “[t]he court shall award court costs and reasonable attorney's fees to the requester should the requester prevail in litigation filed pursuant to this section.” An award of fees and costs pursuant to this provision is mandatory if the plaintiff prevails. Belth v. Garamendi (1991) 232 Cal.App.3d 896, 899‐900. In PRA litigation, a losing plaintiff who does not achieve a favorable ...

Excerpt: ...2d 274, 278. In this case, defendant establishes an intentional relinquishment of the tax return privilege by plaintiffs. First, plaintiffs affirmatively stated in verified discovery responses that they intended to produce their W2s and 1099s for the period 2003‐2019, and that information sought by defendant in discovery could be obtained from such documents. Second, plaintiffs did in fact produce partial tax returns, before then claiming the p...

Excerpt: ...plication or stipulation of the parties. The case has also involved a significant amount of law and motion practice, including 11 separate discovery motions. Code of Civil Procedure section 438(e) states that “[n]o motion may be made pursuant to this section if a pretrial conference order has been entered pursuant to Section 575, or within 30 days of the date the action is initially set for trial, whichever is later, unless the court otherwise ...

Excerpt: ...s, LLC, on behalf of Air Methods Corporation. The present motion was filed concurrently with a petition to approve minor's compromise for plaintiff. Pursuant to Probate Code section 3601, in making an order approving a minor's compromise, the court is bestowed with broad power to authorize payment from the settlement. The statute empowers the court to determine reasonable expenses to be paid to doctors or other providers who are not parties to th...

Excerpt: ...contents of other documents. The objections to the Declaration of David Price are otherwise overruled. Defendant Jennifer Wilson's objections to the Declaration of Ryan Meyer are ruled on as follows: Objection Nos. 13‐16 are sustained on the grounds that the statements lack foundation, constitute inadmissible hearsay, and/or constitute improper expert opinion. Defendant Jennifer Wilson's objections to the Declaration of William J. Fimple are ru...

Excerpt: ... produce documents requested in their deposition subpoena. The court will address each request separately. PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and Motion – Tentative Rulings Page 5 of 12 PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR MAY 6, 2021 AT 8:30 A.M. A party may seek to compel compliance to inspection demands where the responding part...

Excerpt: ...cedure 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 of material fact. (Ibid.) In reviewing a motion for summary judgment, the trial court must view the supporting eviden...

Excerpt: ...de & Associates (1985) 38 Cal.3d 488.) In making this determination, the court considers various factors, including whether the settlement amount is proportionate to what a reasonable person at the time of settlement would estimate the settlor's liability to be and the settlor's financial condition and PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and Motion – Tentative Rulings Page 2 of 12 PLACER COUNTY SUPERIOR COURT THURSDAY, CI...

Excerpt: ...e 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.) Plaintiff alleges that he was severely injured while participating in the “Southwest Summer Trip”, a “summer education program” spon...

Excerpt: ...INGS FOR APRIL 29, 2021 AT 8:30 A.M. PLEASE NOTE THAT ANY ORAL ARGUMENT REQUESTED WILL BE HEARD ON TUESDAY, MAY 4, 2021 AT 8:30 A.M. IN DEPARTMENT 42. Ruling on Motion The motion is granted in part. Evidence sanctions may be imposed where a party misuses the discovery process by failing to obey a discovery order. (Code of Civil Procedure section 2023.020(c); Vallbona v. Springer (1996) 43 Cal.App.4th 1525, 1544‐1545.) Here, plaintiff Andrew Dry...

Excerpt: ...tiff's objections to the supplemental declaration of Nancy Sanchez are denied in their entirety. Ruling on Motion The motion is granted. In the current request, the defendant seeks to compel arbitration between the parties based upon an arbitration agreement. A threshold question for any motion to compel arbitration is whether there exists an agreement to arbitrate. (Cruise v. Kroger Co. (2015) 233 Cal.App.4th 390, 396.) PLACER SUPERIOR COURT –...

Excerpt: ...l withdrawal on March 16, 2020, less than two months before the then current trial date. Plaintiff represented herself until March 17, 2021 when current counsel substituted in as attorney of record. Plaintiff now seeks leave to file a second amended complaint. “ ‘Generally, “the trial court has wide discretion in determining whether to allow the amendment, but the appropriate exercise of that discretion requires the trial court to consider ...

Excerpt: ...ge a lis pendens on the grounds that the complaint does not contain a real property claim, or on the grounds that 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 ...

Excerpt: ...adings, 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. Plaintiff's first cause of action alleges violation of civil rights under 42 U.S.C. section 1983. Plaintiff alleges that on September 22, ...

Excerpt: ...ficiency 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 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. The court does ...

Excerpt: ...February 2, 2021. On plaintiff's claim for conversion, the court awarded damages in the amount of $11,780.39, plus interest at the rate of ten (10) percent per annum from July 26, 2019, to the date of entry of judgment. Plaintiff requests that the award of prejudgment interest be fixed in the total amount of $1,797.72. Pursuant to Civil Code section 3287(a): A person who is entitled to recover damages certain, or capable of being made certain by ...

Excerpt: ...elihood that permitting the reopening of discovery would interfere with the currently set trial date; and (4) the length of time that has elapsed between the prior trial date and the currently set trial date. Plaintiffs have not made a sufficient showing to support such a blanket request. Initially, there is no legal authority to support such an open ended request to keep discovery open. While it is true that the court has in many cases granted r...

Excerpt: ...ed investigator. The video surveillance is protected from discovery as qualified attorney work product. (Code of Civil Procedure sections 2018.020, 2018.030; Rodriquez v. McDonnell Douglas Corp. (1978) 87 Cal.App.3d 626, 647‐648, (disapproved on other grounds in Coito v. Superior Court (State of CA) (2012) 54 Cal.4th 480, 499; Suezaki v. Superior Court (1962) 58 Cal.2d 166, 177‐178.) “Photos or films reflecting counsel's strategies and tact...

Excerpt: ...uest for summary adjudication of the separate causes of action. Where a party seeks summary adjudication as alternative relief in a motion for summary judgment, the moving party must specifically state this in the notice of motion by identifying each separate cause of action. (California Rules of Court, Rule 3.1350(b).) The notice of motion does not expressly identify each of the causes of action subject to summary adjudication. The failure to se...

Excerpt: ... order to show as to whether defendant should not be enjoined from construction, modification and/or installation on plaintiffs' property, including construction, modification and/or 8 installation on the steel retaining wall system and revetment wall, that would compromise the structural integrity of any structures on the property, including but not limited to the single family home and the steel wall system, until further order of the court. Th...

Excerpt: ...rneys' fees and costs to the extent they were reasonable and necessary costs of enforcing the judgment. In assessing the reasonableness of judgment creditor's request, the court has reviewed the papers filed in support of and in opposition to the motion, as well as the entire file in this action, and draws upon its experience in assessing fee requests for cases of this type. Judgment creditor requests fees totaling $15,128.50, and costs totaling ...

Excerpt: ...ation of the private attorney general doctrine, which allows for the recovery of attorneys' fees where an action enforces an important public policy. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1288‐1289.) An award of attorneys' fees under Section 1021.5 requires the moving party to show the action resulted in the enforcement of an important right affecting the public interest. (Vasquez v. State of California (2008) 45 Cal.4th 243, 250‐251.) In...

Excerpt: ...is directed to issue a writ of possession for the Property. The court finds that defendant currently has no interest in the Property, and therefore waives plaintiff's undertaking requirement. Code Civ. Proc. § 515.010(b). In 5 order to prevent plaintiff from taking possession of the Property, defendant will be required to post an undertaking in the amount of $141,800. Code Civ. Proc. §§ 515.010(b), 515.020. Defendant is directed to transfer po...

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: ...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: ...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: ... 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: ...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: ...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: ...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: ...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: ...n or similar paper to the court impliedly certifies that it has legal and factual merit, and is subject to sanctions for violation of this certification. Code of Civil Procedure section 128.7 mandates a two‐step process in the filing of the motion. First, the sanctions motion must be served on the offending party without filing it. The opposing party then has 21 days to withdraw the improper pleading so as to avoid sanctions. If the pleading is...

Excerpt: ...uction of Documents, Set One, the motion is denied. The court notes that the subject discovery requests state in the instructions that 2 “[p]laintiff … hereby requests Defendant Mark Davide, respond under oath within the period of time provided by law to the Special Interrogatories propounded herein.” Setting aside the incorrect reference to special interrogatories, pursuant to Code of Civil Procedure section 2031.030(c)(2), a party demandi...

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...

Excerpt: ...As a preliminary matter, plaintiff's notice of intention to move for new trial states that the court's power to rule on the motion expires 60 days after service of notice of entry of judgment, which occurred on January 19, 2021. The court notes that pursuant to Code of Civil Procedure section 660(c), the power of the court to rule on the motion in fact expires 75 days after service of written notice of entry of judgment. Plaintiff Christopher She...

Excerpt: ...l Materials Co. (1981) 123 Cal.App.3d 593, 604.) In the current request, defendant challenges the sufficiency of the allegations within the second and third causes of action. Plaintiff alleges a fraud claim in the second cause of action. A fraud claim requires the plaintiff to plead a misrepresentation; knowledge of it falsity; intent to induce reliance; justifiable reliance; and damages. (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638.) Here...

Excerpt: ...r how improbable the allegations may seem. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) A review of the third cause of action shows allegations are conclusory statements that fail to allege sufficient factual allegations to support an intentional tort claim. For these reasons, the demurrer is sustained as to the third cause of action. Plaintiff is not afforded leave to amend the intentional torts claim as she fa...

Excerpt: ...generally exercised liberally so long as there is no showing of prejudice to the opposing 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. 4 Defendants assert that they will be prejudiced as the proposed amendments add additional causes of action for breach of contract and related claims, just weeks before the trial date. Plaintiff argues that no new causes of action...

Excerpt: .... 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. 10 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 first cause of action for fraud and deceit fails to state a valid claim. The elements ...

Excerpt: ...ts 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. No extrinsic evidence m...

Excerpt: ... that arbitration should be ordered based upon the existence of an arbitration agreement between plaintiff Dycus HVAC and defendant JBS Ventures, reiterating they are not signatories to the agreement. A threshold question for any motion to compel arbitration is whether there exists an agreement to arbitrate. (Cruise v. Kroger Co. (2015) 233 Cal.App.4th 390, 396.) The moving party carries this initial burden of proving, by a preponderance of the e...

Excerpt: ...aith Settlement The unopposed motion is granted. Based on the 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 shares of liability for plaintiffs' injuries and therefore is in good faith within the meaning of Code of Civil Procedure section 877.6. /// PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil...

Excerpt: ...ously sought leave to add a claim for negligent misrepresentation that was denied on October 27, 2015 and the ruling unchallenged by plaintiff. He has not made a sufficient showing that would support a reversal of the prior denial to add this claim to his operative pleading. The same is true for the breach of contract claim. Defendant Wells Fargo successfully challenged plaintiff's breach of contract claim with a demurrer. The court issued a ruli...

Excerpt: ...r the motion should be denied on the grounds of untimeliness, the court has taken into account the lengthy procedural history in this matter, including numerous discovery motions, and the circumstances under which the motion was set for hearing in the first place. This motion was set on shortened notice by the ex parte application of plaintiff. Plaintiff claimed in the ex parte application that the discovery needed was critically important. The e...

Excerpt: ... judgment debtor Kevan Gilman's (“Gilman's”) motion to tax judgment creditors' October 9, 2009 cost memorandum, the court rules as follows: Gilman's motion to tax judgment creditors' October 9, 2009 cost memorandum is denied as Gilman failed to effect service pursuant to the terms of Code of Civil Procedure section 685.070(c). The court notes that although Gilman filed PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and Motion – ...

Excerpt: ...2 of 24 PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR MARCH 11, 2021 AT 8:30 A.M. Defendants' objections to the Kirnon declaration are sustained in their entirety. Defendants' objections to the Patrick declaration are sustained in their entirety. Defendants' objections nos. to the Pruett declaration are sustained in their entirety. Ruling on Motion The application f...

Excerpt: ...sed 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 before, when and to what judge, what order or decisions were made, and what new or different facts, circumstances, or law are claimed to be shown. For a failure to comply with this 6 subdivision, any order made on ...

Excerpt: ...nformation to permit the court to assess whether the number of hours worked on each task was reasonable. In this case, the billing records submitted by counsel are redacted to the point that only the most general description is provided, such as “review”, “preparation”, “attend”, “research”, etc., with no further information regarding what was being reviewed, prepared, attended or researched. The court is unable to assess the reas...

Excerpt: ...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 Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881. The demurrer ...

Excerpt: ...al of the sixth cause of action, the only cause of action where defendant is named individually, was dismissed on September 9, 2020. The dismissal was filed prior to plaintiff's opposition and well before the hearing on the motion. PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and Motion – Tentative Rulings Page 1 of 10 PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATI...

Excerpt: ...t pursuant to Code of Civil Procedure section 473(b). Defendant claims that she was never served with documents in this lawsuit and was unaware that she had been sued, or that a judgment could be or had been entered against her in this action. Her statements are belied by several judicially noticeable facts. On June 26, 2019, an acknowledgement of receipt of the summons, complaint, civil case cover sheet and case management conference notice was ...

Excerpt: ...le 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 of action in question cannot be established, or that there is a complete defense thereto. Code Civ. Proc. § 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. If the moving party carries its ini...

Excerpt: ...s a complete defense thereto. Code Civ. Proc. § 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. If the moving party carries its initial burden of production, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. Id. Plaintiff alleges a single cause of action for medical negligence against defendants. The essence of such a claim is violation of the pre...

Excerpt: ...question cannot be established, or that there is a complete defense thereto. Code Civ. Proc. § 437c(p)(2); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. If the moving party carries its initial burden of production, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. Id. 9 Plaintiffs seek damages arising from an alleged slip and fall which occurred at defendan...

Excerpt: ...g on February 5, 2021. The motion was filed and served with sufficient notice pursuant to Code of Civil Procedure section 437c(a)(2). However, the scheduled hearing date violated Code of Civil Procedure section 437c(a)(3), as it was set less than 30 days before the scheduled trial date. The notice of motion expressly acknowledged the violation of Section 437c(a)(3), and notified plaintiff that defendant intended to apply for an order advancing th...

Excerpt: ... 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 Equipment Corp. v. Nelson (1980) 110 Cal.App.3d 868, 881. Plaintiff alleges that defendant entered into a two‐year t...

Excerpt: ... no merit to one or more of the causes of action. (Code of Civil Procedure section 437c(f)(1).) A plaintiff seeking summary judgment must establish each element of the cause of action to meet its initial burden. (Code of Civil Procedure section 437c(p)(1).) Once a plaintiff proves its prima facie case, the burden of proof shifts to the defendant to prove material facts. (Code of Civil Procedure section 437c(p)(1).) In reviewing a motion for summa...