Excerpt: ...tice of motion here only seeks summary judgment without specifically requesting summary adjudication. The failure to seek summary adjudication is also reflected in defendants' separate statement. A party seeking summary adjudication must identify each of the specific causes of action challenged in the separate statement. (California Rules of Court, Rule 3.1350(b), (d), (h).) Defendants failed to do this in their separate statement. The deficienci...

Excerpt: ... the court's June 14, 2018 ruling. The issuance of these writs against the defendants was improper. The June 14, 2018 ruling awarded plaintiffs $13,745 in attorney's fees and $474.37 in costs related to a motion to set aside defaults entered against defendants. The basis for the set aside was attorney fault under Code of Civil Procedure section 473(b) and the court's ruling clearly identifies attorney fault as the sole basis for setting aside the...

Excerpt: ...re 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 of action. (Code of Civil Procedure section 437c(f)(1).) The moving party bears the initial burden of establishing that one or elements of a cause of action ca...

Excerpt: ...by that firm in this action until July 30, 2020 when he PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and Motion – Tentative Rulings Page 10 of 13 PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR FEBRUARY 25, 2021 AT 8:30 A.M. became self‐represented. A sampling of only some of the many disparaging, accusatory and alarming comments made by respondent S...

Excerpt: ...n September 2, 2020. 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). A plaintiff moving for summary judgment bears the burden of persuasion that there is no defense to the action. Code Civ. Proc. § 437c(a)(1); Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. If the moving party carries its initial burden ...

Excerpt: ...h 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 the third cause of action for negligence. Government tort liability depends on the existence of an authorizing statute or enactment. Sear...

Excerpt: ...oes not state facts sufficient to constitute a cause of action. Code Civ. Proc. § 430.10(e). A demurrer tests the legal sufficiency of the pleadings, not the truth of the allegations or the accuracy of the described conduct. Bader v. Anderson (2009) 179 Cal.App.4th 775, 787. The allegations in the pleadings are deemed true no matter how improbable they may seem. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. The de...

Excerpt: ...nderson (2009) 179 Cal.App.4th 775, 787. 8 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 parties are advised that 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 is overruled with respect to the first cause of action for breach of ...

Excerpt: ... assertions to the contrary. Plaintiff shall serve verified further responses to special interrogatory Nos. 4, 44, 48, 84, 86, 88 and 89, without objections, on or before March 5, 2021. Defendant is awarded sanctions from plaintiff and his counsel, jointly and severally, in the amount of $547.50. Motion to Compel Deposition Defendant's motion to compel deposition is granted. Code of Civil Procedure section 2025.310(b) states: Subject to Section 2...

Excerpt: ...d appears on the face of the complaint or from matters of which the court may or must take judicial notice.” (Aaronoff v. Martinez‐Seftner (2006) 136 Cal.App.4th 910, 918.) Here, defendants challenge all five causes of action asserting each is barred by the applicable statute of limitations. However, the allegations within the complaint do not bear this out. Plaintiff alleges defendants acknowledged, promised to pay, and made payments on the ...

Excerpt: ...iciency 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 overruled as to plaintiff's first cause of action for negligence. With respect to this cause of action, plaintiff a...

Excerpt: ...09) 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.) In the current challenge, cross‐defendants contend the FACC is a sham pleading. Under the sham pleading doctrine, a pleader is precluded from amending complaints to omit harmful allegations, without explanation, to avoid a demurrer...

Excerpt: ...based upon the “self‐critical analysis privilege.” Defendant submits the court has inherent power to recognize the privilege, even though case law and the Evidence Code do not recognize the privilege. The court declines to recognize the claimed privilege. “The Evidence Code recognizes 13 privileges, each in a separate article. (Evid.Code, §§ 930–1063.) The self‐critical analysis privilege is not among them.” (Cloud v. Superior Cou...

Excerpt: ...fact plaintiff is not proceeding with the unlawful detainer based upon a nonpayment of rent. Plaintiff makes it clear that the action is based upon the failure to perform covenants other than the failure to pay rent. (Complaint ¶9.a(5).) Plaintiff maintaining the option to proceed with nonpayment of rent in her 3‐day notice does not require plaintiff to comply with Section 1179.03 when plaintiff chooses to proceed by the other performance cove...

Excerpt: ...437c(f)(1). 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. If the 3 moving party carries its initial burden of production to make a prima facie showing that there are no triable issues of material fact, the burden shifts to the opposing party to make a prima facie showing of the exist...

Excerpt: ...legations 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. As a preliminary matter, defendants have not complied with Code of Civil Procedure section 430.41(a)(3) by filing the required meet and confer declaration. However, based upon its review of the parties' filings in this action, the court concludes that requiring the parties to meet and con...

Excerpt: ...ns 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 the second cause of action for promissory estoppel. For the purpose of this cause of action, the complaint incorporates the allegations of plaintiff's firs...

Excerpt: ...e Civ. Proc. § 2024.050(a). Relevant factors that may be considered by the court in ruling on the motion include: (1) the necessity and the reasons for the discovery; (2) the diligence or lack of diligence of the party seeking the discovery or the hearing of a discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier; (3) the likelihood that permitting the discovery or hearing the d...

Excerpt: ... D. WACHOB TENTATIVE RULINGS FOR FEBRUARY 4, 2021 AT 8:30 A.M. PLEASE NOTE THAT ORAL ARGUMENT WILL BE HEARD ON TUESDAY, FEBRUARY 9, 2021 AT 8:30 A.M. IN DEPARTMENT 42. PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and Motion – Tentative Rulings Page 6 of 11 records requested in RPDs nos. 39 and 40. The motion cannot be granted as currently presented to the court. First, the motion does not include a separate statement as required u...

Excerpt: ... under the settlement agreement expressly applies only to FCM Capital Partners, Inc. and Chris Miller. The motion is denied as to defendants Chris Weber and Robert Keil. The settlement agreement entered into by all parties provides that plaintiff would enter dismissals, with prejudice, as to Mr. Weber and Mr. Keil within two business days of deposit of the settlement funds. (Vasquez declaration, Exhibit A – Settlement Agreement, ¶II.1(g).) Mr....

Excerpt: ...viving siblings of decedent Suzette Lowe who died as a result of an automobile collision caused by defendant's maintenance of a dangerous condition of its property. 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 for purposes of demurrer. (Del E. Web...

Excerpt: ...t of this, the court will not consider the demurrer as to these two causes of action. Ruling on Request for Judicial Notice Cross‐complainants' request for judicial notice is granted under Evidence Code section 452. Ruling on Demurrer Cross‐defendant All‐Pro demurs to the first, third, eighth, tenth, eleventh, twelfth, thirteenth and fourteenth causes of action of the cross‐complaint of James S. Caramaza, James A. Caramazza, Jaclyn Carama...

Excerpt: ...r 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, defendant challenges the sufficiency of the pleadings in plaintiff's single cause of action for gross negligence. A theory of gross negligence requires a plaintiff to allege facts showing either a want of even scant care or an extreme departure from the ordinary standard of conduct. (Anderson v. Fitne...

Excerpt: ...he 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. As a preliminary matter, the court previously ruled that the allegations of the first amended complaint did not establish that plaintiff's claims were barred the doctrine of unclean hands, and the court sees no...

Excerpt: ... 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 not assume the truth of contentions, deductions, or conclusions of facts or law. Id. As a preliminary matter, Firegang ...

Excerpt: ...ode of Civil Procedure section 403 is denied. Code of Civil Procedure section 403 states in part: A judge may, on motion, transfer an action or actions from another court to that judge's court for coordination with an action involving a common question of fact or law within the meaning of Section 404. The motion shall be supported by a declaration stating facts showing that the actions meet the standards specified in Section 404.1, are not comple...

Excerpt: ...d 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 not assume the truth of contentions, deductions, or conclusions of facts or law. Id. The demurrer is su...

Excerpt: ... the motion to coordinate the two cases pursuant to Code of Civil Procedure section 403 is denied. Code of Civil Procedure section 403 states in part: A judge may, on motion, transfer an action or actions from another court to that judge's court for coordination with an action involving a common question of fact or law within the meaning of Section 404. The motion shall be supported by a declaration stating facts showing that the actions meet the...

Excerpt: ...�48, and 51‐ 53, are sustained. The remaining objections are overruled. Defendant's objections to the declaration of Brian Kelley are ruled on as follows: Objection Nos. 1, 3‐5, 7‐13, 16, 19, 22, 24‐25, 27‐28, 30‐40, 42‐43, 45‐47, and 49, are sustained. The remaining objections are overruled. Ruling on Motion Capital One, N.A., (“Capital One”) moves for summary judgment with respect to plaintiff's claims of negligence and viol...

Excerpt: ...ction of documents. Mr. Huckabee was ordered to provide these responses by September 30, 2020 but failed to provide the written discovery to plaintiff. Plaintiff now returns to the court to enforce the prior court order along with seeking monetary sanctions. Alternatively, plaintiff seeks terminating sanctions. The court, at this time, does not find terminating sanctions to be warranted. Such sanctions are a method of last resort when all other o...

Excerpt: ...NORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR JANUARY 28, 2021 AT 8:30 A.M. PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and Motion – Tentative Rulings Page 8 of 11 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. Countrywi...

Excerpt: ...urt, Rule 3.1306(c); Lammers v. Superior Court (2000) 83 Cal.App.4th 1309, 1327, fn. 12.) Ruling on Demurrer The demurrer is sustained with leave to amend. 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 s...

Excerpt: ...ruth 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 first cause of action for breach of oral contract. As to TRC Trading and TRC Finance, plaintiff alleges no facts establish...

Excerpt: .... 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 not assume the truth of contentions, deductions, or conclusions of facts or law. Id. The demurrer is sustained a...

Excerpt: ...e current version of Section 2025.310 has broadened the usage of remote appearances in light of the current pandemic. However, Section 2025.310(d) still requires depositions to meet other statutory requirements, which include “provisions regarding the time, place, or manner in which a deposition shall be conducted.” This is where the interpretation of the parties diverge. Defendant asserts that the identification of the deposition as “remot...

Excerpt: ...l (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 demurrer keeping these principles in mind. First Cause of Action – Wrongful Foreclosure The first cause of action alleges a claim for wrongful foreclosure. A borrower may ass...

Excerpt: ...s to give due regard to the parties' agreement, ensuring 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. Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1801; 7‐Eleven Owners for Fair Franchising v. Southland Corp. (2000) 85 Cal.App.4th 1135, 1145. A presumption of fairness exists where: (1) the settlement was reached through arms‐lengt...

Excerpt: ...able amount not less than $500, that is unsecured or secured by personal property, and arising against a defendant who is a natural person for claims arising out of conduct by the defendant of a trade, business or profession. Code Civ. Proc. § 483.010(c). Damages must be measurable by reference to the contract itself, and the basis for computing damages must be reasonable and certain. CIT Group/Equipment Financing, Inc. v. Super DVD, Inc. (2004)...

Excerpt: ...accepted by defendant pursuant to Code of Civil Procedure section 998, defendant agreed to repurchase plaintiffs' vehicle, provide full restitution, and to pay attorneys' fees and costs to be determined by the court. Civil Code section 1794(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 commenceme...

Excerpt: ...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 agreement. Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972. “‘[A] party cannot be required to...

Excerpt: ...e regard to the parties' agreement, ensuring that the agreement is not a product of fraud, overreaching parties, or collusion and that the 3 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...

Excerpt: ...rmination establishes an initial presumption of fairness…” In re General Motors Corp. (3d Cir. 1995) 55 F.3d 768, 784. “[I]f the proposed settlement appears to be the product of serious, informed, non‐collusive negotiations, has no obvious deficiencies, does not improperly grant preferential treatment to class representatives or segments of the class, and falls within the range of possible approval, then the court should direct that the n...

Excerpt: ...ants in this action. SVSH and Alterra were served with the summons and complaint on or about February 19, 2019. Plaintiff filed a first amended complaint on June 3, 2019, and a second amended 4 complaint on August 22, 2019, neither of which have been served on SVSH or Alterra. Neither KSL nor JMA have been served with the summons or any iteration of the complaint. Moving defendants request dismissal pursuant to Code of Civil Procedure sections 58...

Excerpt: ...es. (Complaint, Exh. A, p. 16, Article 41.) JMK sought money damages in the total amount of approximately $142,000. Following a court trial in this action, judgment was entered in favor of plaintiff and against defendant Betsey Alessi (“Alessi”), awarding JMK damages of $80,440, plus prejudgment interest in the amount of $4896. Where neither party achieves a complete victory on all contract claims, it is within the court's discretion to deter...

Excerpt: ...ract, for a fixed or readily 9 ascertainable amount not less than $500, that is unsecured or secured by personal property, and arising against a defendant who is a natural person for claims arising out of conduct by the defendant of a trade, business or profession. Code Civ. Proc. § 483.010(c). Damages must be measurable by reference to the contract itself, and the basis for computing damages must be reasonable and certain. CIT Group/Equipment F...

Excerpt: ...onal infliction of emotional distress and fourth cause of action for defamation. In order to claim punitive damages, a plaintiff must allege facts that a defendant is guilty of oppression, fraud, or malice. (Civil Code section 3294.) The two claims do not allege fraudulent conduct on the part of defendant Cindy Giove. Thus, fraud is not a basis for punitive damages here. This leaves oppression or malice as a basis for punitive damages. Malice req...

Excerpt: ... Ms. Wenz's declaration that states, “after it was unable to independently determine or locate an active hazard insurance policy.” The remainder of the objection is overruled, which includes overruling the objection to Exhibit 4. Plaintiff's remaining objections are overruled. Ruling on Motion In the current request, defendant Shellpoint seeks either summary judgment or summary adjudication as to the first cause of action for negligence and t...

Excerpt: ...ling on Demurrer Defendant County of Placer (County) demurs to the Second Amended Complaint (SAC) filed by plaintiffs (collectively “TSI”). The SAC requests a refund of the Revenue and Taxation Code section 531.4 interest which was collected by the County. (SAC ¶ 32.) County contends the cause of action seeking recovery of interest is barred by the statute of limitations. TSI argues its claim for interest under section 531.4 is subsumed with...

Excerpt: ...mation campaign…” only), 27, 30‐33, 43, 48, 50‐56, 57 (as to statement beginning “As part of its misinformation campaign…” only), 60, 62, 64, and 68‐71 are sustained. The remaining objections are overruled. Plaintiff's objections to evidence are ruled on as follows: Objection Nos. 4, 7, 11, 13, 14, 18, 19, 21, 22, 24, 25, 26, and 27 are sustained. The remaining objections are overruled. Ruling on Motion Plaintiff California State ...

Excerpt: ...tate facts showing a reasonable and good faith attempt at informal resolution of each issue presented in the motion.” [Emphasis added.] Code Civ. Proc. § 2016.040. The statute requires the parties to seriously engage in negotiations and informal resolution. Townsend v. Superior Court (1998) 61 Cal.App.4th 1431, 1438. According to the declaration filed in support of the motion, counsel first sought to meet and confer regarding the subject disco...

Excerpt: ...rrogatory Nos. 4, 5 and 6, served on defendant Mahabala Investments, LLC (“Mahabala”). Plaintiff served the subject discovery on Mahabala on or about January 23, 2020. Special interrogatory No. 4 states: If YOU contend that this lawsuit cannot be properly maintained as a class action because individualized issues for COVERED MEMBERS who worked during the COVERED PERIOD will predominate, identify each and every fact YOU believe supports YOUR c...

Excerpt: ...ants”) entered into a settlement of the entire action on or about August 14, 2020. (Declaration of Aaron Rudin, ¶ 2, Exh. A.) Paragraph 2 of the settlement agreement provides that defendants will pay plaintiffs a certain sum within 45 days of execution. Paragraph 3 of the settlement agreement states: 3. Retrieval of Property. Within sixty (60) calendar days of the date of execution of this Settlement Agreement and on a mutually agreed upon dat...

Excerpt: ...SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and Motion – Tentative Rulings Page 11 of 16 Ruling on Combined Motion In this combined motion, defendants seek three forms of relief. First, defendants seek to quash service of the summons based upon a lack of jurisdiction. Defendants, however, have made a general appearance through the filing of this motion. They have accepted the jurisdiction of this court over the case. Thusly, the request...

Excerpt: ...tion The motion is denied in its entirety. The trial court shall grant a motion for summary judgment if “all the papers submitted show that there is no triable issue as to any material fact and the moving party is entitled to a judgment as a matter of law.” (Code of Civil Procedure section 437c(c).) A party to the action may also move for summary adjudication if that party contends there is no merit to one or more of the causes of action. (Co...

Excerpt: ...T 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR DECEMBER 17, 2020 AT 8:30 A.M. PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and Motion – Tentative Rulings Page 3 of 16 adjudication brought by defendant. Specifically, the current motion seeks to once again challenge plaintiff's causes of action for negligence and breach of the implied covenant. The court declines to consider summary adjudication of these two causes of ac...

Excerpt: ...tions may seem. (Del PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR DECEMBER 17, 2020 AT 8:30 A.M. PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and Motion – Tentative Rulings Page 13 of 16 E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) The court reviews the challenged claims keeping these principles in mind. Third Cause of ...

Excerpt: ...sed on the existence of evidence essential to oppose the motion that could not be timely presented, and moved for leave to file an amended complaint adding several claims against defendant. The court granted plaintiff's request to continue, and granted plaintiff's motion for leave to amend. Although it appears that plaintiff is no longer in custody, no first amended complaint has been filed, nor has plaintiff filed any further pleadings in opposi...

Excerpt: ... 391.7(c). Defendants Allmerica Financial Benefit Insurance (erroneously sued as The Hanover Insurance Group, The Hanover American Insurance, and Allmerica Financial Alliance Company), John Conner Roche, Gwen Jones, Arthur Anderson and Scot Erikson have filed a joinder to the motion. By order entered August 1, 2017, in Sacramento County Superior Court Case No. 34‐ 2017‐00211640, Hubbard v. Evett, plaintiff Donald Hubbard was deemed a vexatiou...

Excerpt: ...e settlement, the court is to give due regard to the parties' agreement, ensuring PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR DECEMBER 10, 2020 AT 8:30 A.M. PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and Motion – Tentative Rulings Page 3 of 6 that the agreement is not a product of fraud, overreaching parties, or collusion and that the settlement,...

Excerpt: ...SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR DECEMBER 10, 2020 AT 8:30 A.M. PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and Motion – Tentative Rulings Page 5 of 6 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 allega...

Excerpt: ...t 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 first cause of action for premises liability – dangerous condition of public property. To allege a dangerous cond...

Excerpt: ...th 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 cross‐ complainants' first cause of action for breach of written contract. In an action based on written contract, cross‐complainants must either attach a copy of the contract, set out the alleged terms verbatim, or plead the legal ef...

Excerpt: ...titute 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. 8 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. This action was initiated by complaint fil...

Excerpt: ...g claims of partition and malicious prosecution against Kishiyama. Kishiyama filed a special motion to strike with respect to the malicious prosecution claim pursuant to Code of Civil Procedure section 425.16, and a demurrer as to the partition claim. The court granted the anti‐SLAPP motion and sustained the demurrer. Thereafter, the court granted Kishiyama's motion for attorneys' fees and awarded him $10,000 in fees. 4 On April 2, 2018, Rice f...

Excerpt: ...os and Lecona, LLC, Ramos & Lecona Ventures, LLC, Ramos & Nava Ventures, LLC, Ramos Holdings, LLC and M.K.&A., LLC move for summary adjudication of plaintiff Michelle Hill's first cause of action for declaratory relief, second cause of action for conversion of partnership property, third cause of 2 action for breach of partnership agreement, fourth cause of action for breach of fiduciary duty, fifth cause of action for breach of fiduciary duty, e...

Excerpt: ...nt. A motion to strike may be granted to strike irrelevant, false, or improper matters in a pleading or to strike a pleading not drawn in conformity with the law. (Code of Civil Procedure section 436(a), (b).) In order to claim punitive damages, a plaintiff must allege facts that a defendant is guilty of oppression, fraud, or malice. (Civil Code section 3294.) A review of the language in the FAC shows that the allegations remain insufficient to s...

Excerpt: ...) Ruling on Request for Judicial Notice CBN's request for judicial notice is granted under Evidence Code section 452. Ruling on Motion The motion is denied. The power of the court to order the disqualification of counsel is statutory. “Every court shall have the power to do all of the following: [¶] … [¶] (5) [t]o control in furtherance of justice, the conduct of its ministerial officers, and all other persons in any manner connected with a...

Excerpt: ...asserts the final extension of time granted to defendant to file a motion to compel was October 30, 2020. In fact, the motion and all of its supporting papers were filed on October 30, 2020. However, from plaintiff's perspective, the motion should be considered untimely because it was not served until several days later, on November 2, 2020. The motion was set for hearing on December 3, 2020, still affording plaintiff ample opportunity to file an...

Excerpt: ...court. PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR DECEMBER 3, 2020 AT 8:30 A.M. PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and Motion – Tentative Rulings Page 3 of 13 Ruling on Request for Judicial Notice Defendants' request for judicial notice is granted under Evidence Code section 452. Plaintiff's request for judicial notice is granted as to t...

Excerpt: ...he evidence was not presented at an earlier time. (Code of Civil Procedure section 1008; Shiffer v. CBS Corp. (2015) 240 Cal.App.4th 246, 255.) Defendant has failed to make such a showing. First, defendant has not made a sufficient showing of new or different facts, circumstances, or law as it pertains to his claims regarding lack of due process. There is no new or different evidence presented that could not have been presented at the time of the...

Excerpt: ...ials 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. A review of the FAC supports her challenge. The first cause of action asserts a claim for breach of contract. The allegations, however, are inconsistent. Plaintiff alleges the parties entered into an oral contract while attaching an exhibit that purports to be written terms of the cont...

Excerpt: ... on August 19, 2020. In response to defendants' motion, plaintiff submits the declaration of process server Mark Rivera. Mr. Rivera details numerous attempts to effectuate personal service on defendants from August 4, 2020 to August 18, 2020. On August 5, 2020, Mr. Rivera observed Chen in his office and observed Chen's car in the office parking lot, but was informed by a different individual that Chen was not present. Mr. Rivera attempted service...

Excerpt: ...is to give due regard to the parties' agreement, ensuring 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. Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1801; 7‐Eleven Owners for Fair Franchising v. Southland Corp. (2000) 85 Cal.App.4th 1135, 1145. A presumption of fairness exists where: (1) the settlement was reached through arms‐leng...

Excerpt: ...reasonableness of the full amount of fees requested. The court continued the hearing to permit plaintiff the opportunity to provide additional information in support of the motion, including copies of billing statements with privileged information redacted, or a detailed summary of the number of hours expended by each attorney on each discrete task, and evidence in support of the request for costs. Despite the continuance based on insufficient in...

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

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

Excerpt: ...able 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 elements of a cause of action cannot be established or there is a complete defense to the cause of action. (Id. at PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE R...

Excerpt: ...1399, 1405. Under both federal and state law, a threshold question for any petition to compel arbitration is whether there exists an agreement to arbitrate. Cruise v. Kroger Co. (2015) 233 Cal.App.4th 390, 396. In this case, plaintiff concedes that his claims, except for PAGA claims added by amendment after the filing of defendant's motion, are subject to a valid arbitration agreement. However, plaintiff argues that defendant has waived the right...

Excerpt: ... Devon Bell demur to plaintiff's second amended complaint. A party may demur where the pleading does not state facts sufficient to constitute a cause of action. Code Civ. Proc. § 430.10(e). A demurrer tests the legal sufficiency of the pleadings, not the truth of the allegations or the accuracy of the described conduct. Bader v. Anderson (2009) 179 Cal.App.4th 775, 787. The allegations in the pleadings are deemed true no matter how improbable th...

Excerpt: ...ral person for claims arising out of conduct by the defendant of a trade, business or profession. Code Civ. Proc. § 483.010(c). Damages must be measurable by reference to the contract itself, and the 7 basis for computing damages must be reasonable and certain. CIT Group/Equipment Financing, Inc. v. Super DVD, Inc. (2004) 115 Cal.App.4th 537, 541. Based upon review of the plaintiff's application, the court finds pursuant to Code of Civil Procedu...

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

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

Excerpt: ...ibed conduct. Bader v. Anderson (2009) 179 Cal.App.4th 775, 787. The allegations in the pleadings are deemed true no matter how improbable the allegations may seem. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. A demurrer can only be used to challenge defects that appear on the face of the pleading, or from matters that are judicially noticeable. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. No other 5 extrinsic evide...

Excerpt: ...aintiff Russell Roark's first amended complaint. A party may demur where the pleading does not state facts sufficient to constitute a cause of action. Code Civ. Proc. § 430.10(e). A demurrer tests the legal sufficiency of the pleadings, not the truth of the allegations or the accuracy of the described conduct. Bader v. Anderson (2009) 179 Cal.App.4th 775, 787. The allegations are deemed true no matter how improbable they may seem. Del E. Webb Co...

Excerpt: ...of the described conduct. Bader v. Anderson (2009) 179 Cal.App.4th 775, 787. The allegations in the pleadings are deemed true no matter how improbable they may seem. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. The demurrer is sustained as to Aizen's second cause of action for breach of the “AHAS Holdings/Controlling Shareholder Agreement”, alleged against defendants AHAS Holdings and the “Controlling Shareh...

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

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

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

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

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

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

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

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

Excerpt: ...n (2009) 179 Cal.App.4th 775, 787.) The allegations in the pleadings are deemed to be true no matter how improbable the allegations may seem. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) The court reviews the fraud cause of action keeping this in mind. The elements of a fraud claim include (1) a misrepresentation through either false representation, concealment, or nondisclosure; (2) scienter or knowledge of the...

Excerpt: ...p.4th 775, 787. The allegations in the pleadings are deemed true no matter how improbable they may seem. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. Plaintiffs allege claims of fraud‐intentional misrepresentation, negligent misrepresentation, fraud‐omission, professional negligence, and breach of fiduciary duty, arising out of investments purchased through Berthel's registered representative Shawn Davis (“D...

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

Excerpt: ... for summary judgment as to plaintiff CSAA Insurance Exchange's claims for negligence and strict liability. 4 The party seeking summary judgment bears the burden of showing there is no triable issue of material fact and that the party is entitled to judgment as a matter of law. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. If the moving party carries its initial burden of production to make a prima facie showing that there are no ...

Excerpt: ...true no matter how improbable they may seem. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. The demurrer is overruled as to plaintiff's first cause of action for breach of implied warranty, and second cause of action for breach of express warranty. Based on a review of the complaint as a whole, plaintiff adequately alleges these claims. Contrary to the 11 argument of defendant, plaintiff is not required to plead the...

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

Excerpt: ...ield Co. (2001) 25 Cal.4th 826, 850. If the moving party carries its initial burden of production to make a prima facie showing that there are no triable issues of material fact, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at 850. Plaintiff is an unlicensed contractor who was injured while working on a job at defend...