Excerpt: ... motion. The court declines to provide any further continuance for the purposes of discovery. While plaintiffs do have a right to conduct discovery of the jurisdictional facts necessary to sustain their burden of proof, they must also demonstrate that discovery will likely lead to the production of evidence establishing jurisdiction. (In re Automobile Antitrust Cases I and II (2005) 135 Cal.App.4th 100, 127.) Plaintiffs make a general request for...

Excerpt: ...se of action, a demurrer is reviewed under wellestablished principles. A party may demur to a complaint where the pleading does not state facts sufficient to constitute a cause of action, testing the sufficiency of the pleading and not the truth of the allegations or the accuracy of the described conduct. (Code of Civil Procedure section 430.10(e); Bader v. Anderson (2009) 179 Cal.App.4th 775, 787.) The allegations in the pleading are deemed to b...

Excerpt: ...cle XI, Section 1(b) of the California Constitution by depriving the Placer County Board of Supervisors of its constitutional authority to set employee compensation. Respondent goes on to challenge the second and third causes of action as derivative of the first cause of action, failing to allege additional facts to support any separate legal theory. A demurrer is reviewed under well‐established principles. A party may demur where the pleading ...

Excerpt: ...75, 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.) Further, a complaint must be liberally construed with all inferences drawn in favor of plaintiff. (Code of Civil Procedure section 452; Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 43, fn. 7; Perez v. Golden Empire Transit Dist. (2012...

Excerpt: ...(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 evidence, and inferences reasonably drawn from such evidence, in the light most favorable to the opposing party. (Aguilar v. Atlantic Richfield Company (2001) 25 Cal.4th 826, 843.) The court reviews the motio...

Excerpt: ...ivil Procedure section 877.6. Defendants Aspen Earthworks, Inc. and Aspen Developers, Corp's Motion for Judgment on the Pleading as to Plaintiff's Complaint Ruling on Request for Judicial Notice The Aspen defendants' request for judicial notice is denied and plaintiff's objection no. 2 is sustained. They request the court take judicial notice of the original complaint filed by plaintiff, which was superseded through the filing of the first amende...

Excerpt: ...Hope shall provide verified responses, without objections, to form interrogatories, set one, within ten days of service of the signed order after hearing. Sanctions in the amount of $705.00 are imposed upon plaintiff Bank of Hope. The court notes plaintiff has engaged in a pattern of not responding to discovery propounded by defendants as seen in the court's prior orders after the June 18, 2020 hearings on defendants' discovery motions. Defendant...

Excerpt: ...duct. (Bader v. Anderson (2009) 179 Cal.App.4th 775, 787.) In this vein, the allegations are deemed to be true no matter how improbable they may seem. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) A review of the allegations within the first amended cross‐complaint, when read in conjunction with the partnership agreement attached to the pleading, are sufficient to plead both breach of fiduciary duty and neglige...

Excerpt: ...on no. 1. Ruling on Motion The motion is granted and defendants are awarded $18,060.00 in attorneys' fees. In the current request, defendants seek to expunge the lis pendens notice filed by plaintiffs on April 6, 2021 along with the related recorded document. The expungement of a lis pendens involves a two prong analysis. The first prong involves a review of the complaint to determine whether a real property claim is involved. (Code of Civil Proc...

Excerpt: ...iff's allegations or accuracy of the described conduct. (Bader v. Anderson (2009) 179 Cal.App.4th 775, 787.) In this vein, 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.) The demurrer is reviewed keeping this in mind. A review of the allegations within the complaint, when read as a whole and with the judicially ...

Excerpt: ...ation as to their first cause of action for quiet title and second cause of action for declaratory relief along with summary adjudication of the corresponding quiet title and declaratory relief claims alleged in defendant's cross‐complaint. The motion is improper to grant on procedural grounds since it is aimed at pleadings that have been superseded by amendments. PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HON...

Excerpt: ...s but noted she still had mood swings, irritable behavior, and difficulties sleeping. There are no updated medical records establishing Ava has completely recovered from the emotional issues, sleeping, and headaches as attested to in paragraph 8.a. in the petition. The current petition now attests that the monies will be transferred to a custodian for Ava's benefit under the California Uniform Transfers to Minors Act [UTMA]. The attachments to th...

Excerpt: ... section 473(d). Defendants assert the court had no jurisdiction to enter either since they were not served, so the court did not have personal jurisdiction over them. The court may set aside a void judgment at any time. (Code of Civil Procedure section 473(d); OC Interior Services, LLC v. Nationstar Mortgage, LLC (2017) 7 Cal.App.5th 1318, 1327.) A judgment is only considered void on its face where a review of court records, without the aid of e...

Excerpt: ...ode of Civil Procedure section 2030.290(c).) Nonetheless, 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.) Plaintiff Northern California Collection Service, Inc.'s Motion to Compel R...

Excerpt: ... 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. The complaint does not allege a valid cause of action for unlawful detainer. The complaint alleges the Tenant Protection Act of 2019 applies to this case. (Complaint para. 7(b).) Under this Act, when a landlord seeks at‐fault termination, the landlord must provide the t...

Excerpt: ...complaint in this action does not pray for attorneys' fees. However “where a party's right to attorneys' fees rests on section 1717, the fact that the entire contract was before the court in the original action is a sufficient ‘pleading' to authorize an attorneys' fees award.” See PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE MICHAEL W. JONES TENTATIVE RULINGS FOR FEBRUARY 10, 2022 AT 8:30 A.M. PLAC...

Excerpt: ...App.3d 593, 604.) Where a party has been previously granted leave to amend, the amendment may not extend beyond the scope of the court's prior permission. (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.) The allegations made in paragraphs 7 through 10, when read in conjunction with general allegations and breach of contract allegations within the first cause of action, are sufficient to allege a claim of breach of contract ag...

Excerpt: ...y is entitled to a judgment as a matter of law”, disposing of the entire action. (Code of Civil Procedure section 437c(c).) This is compared to summary adjudication, which disposes of one or more causes of action. (Code of Civil Procedure section 437c(f)(1).) The analysis for both challenges is the same. There are a few essential points the court focuses on when reviewing such a dispositive motion. The first involves a review of the operative p...

Excerpt: ...ned. The court is unable to rule on objections nos. 1 (to Exhibit No. 3) and 2 (to Exhibit No. 4) as the plaintiff did not file any documents containing the objected to exhibits. Ruling on Request for Judicial Notice Defendant's request for judicial notice is granted under Evidence Code section 452. Ruling on Motion The motion is denied. In the current request, plaintiff appears to seek summary judgment as to both his complaint and the defendant'...

Excerpt: ...ion to strike require clarification here. A demurrer is brought to challenge the legal sufficiency of a pleading. (Bader v. Anderson (2009) 179 Cal.App.4th 775, 787.) The analysis does not look to the truthfulness or accuracy of the allegations within the complaint. (Ibid.) The complaint is read to deem all material facts as true even if the truth of the facts seem improbable. (Gervase v. Superior Court (1995) 31 Cal.App.4th 1218, PLACER COUNTY S...

Excerpt: ...st for judicial notice is denied. Defendant William Palmer demurs to the fifth cause of action alleged in the first amended complaint. A party may demur to a complaint where the pleading does not state facts sufficient to constitute a cause of action. Code Civ. Proc. § 430.10(e). A demurrer tests the legal sufficiency of the pleadings, not the truth of the plaintiff's allegations or the accuracy of the described conduct. Bader v. Anderson (2009)...

Excerpt: ...ons The motion is granted. The matters encompassed in defendant Terri Brodsky's request for admissions, set two, nos. 13 through 21 are deemed admitted as to plaintiff Justin Mendoza. Sanctions in the amount of $1,170.00 are imposed upon plaintiff Justin Mendoza. Defendant Terri Brodsky's Motion to Compel Special Interrogatories at to Plaintiff Justin Mendoza and Sanctions The motion is granted. Plaintiff Justin Mendoza shall provide verified res...

Excerpt: ... 20, 2022 AT 8:30 A.M. PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and Motion – Tentative Rulings Page 2 of 5 Ruling on the Motion In the current request, plaintiff seeks summary judgment or summary adjudication against all defendants other than Kimberly Sheetz. A motion for summary judgment in an unlawful detainer action may be brought at any time after the answer is filed upon five days' notice. (Code Civ. Proc., § 1170.7.) A ...

Excerpt: ...E HONORABLE MICHAEL W. JONES TENTATIVE RULINGS FOR JANUARY 20, 2022 AT 8:30 A.M. PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and Motion – Tentative Rulings Page 5 of 5 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 pleading are deemed to be true no matter how improbable the allegations may seem. (Del E. Webb Corp. v. St...

Excerpt: ... Demurrer The demurrer is overruled. A demurrer is reviewed under well‐established principles. The sufficiency of the pleadings, not the truth of allegations or accuracy of the described conduct, is tested. (Picton v. Anderson Union High School (1996) 50 Cal.App.4th 726, 733.) All properly pleaded facts are assumed to be true as well as those that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Gomes v. Countrywide Home L...

Excerpt: ...Rulings Page 7 of 7 Ruling on Request for Judicial Notice Defendants' request for judicial notice is granted under Evidence Code section 452. Ruling on Demurrer The demurrer is sustained with leave to amend. A complaint is subject to demurrer where it is brought by someone other than the real party in interest. (Pillsbury v. Karmgard (1994) 22 Cal.App.4th 743, 753‐754.) A trust is not a separate entity from a trustee, thusly an action cannot be...

Excerpt: ...hat a less drastic sanction will not sufficiently address the discovery derelictions. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 796‐ 797.) In light of the extreme effect of terminating sanctions, courts do not impose such a sanction lightly. The purpose of discovery sanctions is to prevent abuse of the discovery process and correct problems presented. (Do v. Superior Court (2003) 109 Cal.App.4th 1210, 1213‐1214.) It is not a weapon to prov...

Excerpt: ... seek to compel non‐party and counsel for defendants Damrell, Nelson, Schrimp, Pallios & Silva to produce documents falling under the attorney‐client privilege. Plaintiffs have not sufficiently shown a basis for production of these privileged documents nor have plaintiffs sufficient shown any waiver of the attorney‐client privilege by PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE MICHAEL W. JONES TE...

Excerpt: ...rt also determines petitioner's opposition is timely and shall consider the filing. PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE MICHAEL W. JONES TENTATIVE RULINGS FOR JANUARY 6, 2022 AT 8:30 A.M. PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and Motion – Tentative Rulings Page 7 of 10 Objections Petitioner's objections are sustained in their entirety. Ruling on Motion The motion is denied...

Excerpt: ...– DEPARTMENT 42 Thursday Civil Law and Motion – Tentative Rulings Page 3 of 10 Ruling on Motion In the current request, plaintiff seeks $4,805.82 in costs/expenses and $80,430.00 in attorneys' fees under Civil Code section 1794(d). Plaintiff seeks the award as the prevailing party after accepting defendants' Code of Civil Procedure section 998 offer. Turning first to the costs and expenses sought by plaintiff, the request is granted in its en...

Excerpt: ...ants' Motion for Monetary Sanctions and Punitive Damages Defendants' motion for monetary sanctions and punitive damages against plaintiffs' counsel pursuant to Code of Civil Procedure section 128.5 is denied. Defendants do not demonstrate compliance with the safe harbor provisions of the statute. Code Civ. Proc. § 128.5(f)(B). The court does not find that plaintiffs' filing of a memorandum of costs in this action was done in bad faith, frivolous...

Excerpt: ...was issued on October 21, 2021, narrowing the scope to four (4) separate categories of records for conduct prior to May 30, 2019 related to minor J.W., who plaintiff alleges sexually assaulted her. The parent of J.W. again objects to the production of any documents. The documents sought here are student educational records, which are confidential under both federal and state law. (20 U.S.C section 1232g(b)(1); Education Code section 49076.) Absen...

Excerpt: ...he motion is denied. The trial court shall grant a motion for summary judgment if “all the papers submitted show that there is no triable issue as to any material fact and the moving party is entitled to a judgment as a matter of law.” (Code of Civil Procedure section 437c(c).) The moving party bears the initial burden of establishing that one or elements of a cause of action cannot be established or there is a complete defense to the cause o...

Excerpt: ...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 evidence, and inferences reasonably drawn from such evidence, in the light most favorable to the opposing party. (Aguilar v. Atlantic Richfie...

Excerpt: ... a reasonable belief that she would prevail on the issue of plaintiff's injuries when defendant denied RFAs nos. 9 and 18. Defendant, however, has not made a sufficient showing to support such a finding. To the extent defendant relied on the expert opinion of Dr. Peter Sfakianos, the evidence presented to the court shows Dr. Sfakianos identified soft tissue injury as a result of the collision. In light of this evidence, it was not reasonable for ...

Excerpt: ...sufficiency of the pleading, not the truth of the allegations or accuracy of the described conduct. (Bader v. Anderson (2009) 179 Cal.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.) The court reviews the FAC‐C keeping these principles in mind. Turning to the second cause of action, a breach ...

Excerpt: ...inst defendant. Nor can it be read that the alter ego allegations are applicable to other causes of action as the moving defendant is only named in the fifth causes of action. In light of these deficiencies, the demurrer is sustained in its entirety. A second amended complaint may be filed and served by December 17, 2021. Defendant Kara Schacke's Motion to Strike the First Amended Complaint (FAC) The motion is granted without leave to amend. A mo...

Excerpt: ...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 adjudication, 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 ...

Excerpt: ...y; (2) the diligence or lack of diligence in seeking discovery and the reasons discovery was not completed; (3) any likelihood 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. (Code of Civil Procedure section 2024.050.) In this instance, the moving party has not made a sufficient showing to suppor...

Excerpt: ... of the court. (Code of Civil Procedure section 436(a),(b).) In this instance, defendants seek to strike the prayer for damages and attorneys' fees alleged against them, asserting these allegations are improper since the claims against them do not warrant such relief. The court agrees. A review of the complaint shows the causes of action alleged against defendants include cancellation of instrument; PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LA...

Excerpt: ... Petitioner's objections. Petitioner testified on August 15, 2020, he was parked on the right side of the road, not blocking traffic, on his phone for about 15 to 18 minutes when contacted by Officer Wahl. (AR 113:19– 20; 114:2–10.) Officer Wahl wanted to take a breathalyzer, and when Petitioner said he wanted to speak to a lawyer, Officer Wahl arrested Petitioner. (AR 124:24–25; AR 125:9–12.) At the CHP office, Officer Wahl told Petition...

Excerpt: ... either category. There is nothing within the request to establish the document comes from the LWDA records, so it does not qualify as an official record under Evidence Code section 452(c). Nor can it be determined the contents of the letter are undisputed. Indeed, defendant's current challenge raises a dispute over the interpretation of the contents of the letter. Defendant's citations to unpublished federal cases to support judicial notice of t...

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

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

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

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

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

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

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

Excerpt: ...llegations in the pleadings are deemed to be true no matter how improbable the allegations may seem. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) The court reviews the FAC keeping this in mind. A review of the allegations within the FAC, when they are read as a whole, shows that they are sufficient to support the first and second causes of action at this pleading stage. The demurrer is overruled as to the first ...

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

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

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

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

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

Excerpt: ...blished principles. The sufficiency of the pleadings, not the truth of allegations or accuracy of the described conduct, is tested. (Picton v. Anderson Union High School (1996) 50 Cal.App.4th 726, 733.) All properly pleaded facts are assumed to be true as well as those that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1153.) The court reviews the claims k...

Excerpt: ...d conduct. (Picton v. Anderson Union High School (1996) 50 Cal.App.4th 726, 733.) All properly pleaded facts are assumed to be true as well as those that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The current challenge is reviewed keeping this in mind. A review of the breach of contract claim reveals it is deficiently pleaded against the cross‐defendants. First, the allegations do not sufficiently allege crosscompla...

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

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

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

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

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

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

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

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

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

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

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

Excerpt: ...y judgment as to the claims alleged in plaintiff and cross‐defendant Van Jordan's (“plaintiff's”) complaint and defendants' second amended cross‐complaint. Summary judgment may be granted where there is no triable issue as to any material fact, and moving party is entitled to judgment as a matter of law. Code Civ. Proc. § 437c(c). Defendants moving for summary judgment bear the burden of persuasion that one or more elements of the causes...

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

Excerpt: ...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: ...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: ...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: ...) 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: ...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: ...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: ...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: ...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: ...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: ...”), 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: ...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: ...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: ...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: ... 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: ...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,...