Excerpt: ... the current request, defendant seeks to compel plaintiff to participate in arbitration under the FAA for his individual PAGA claim in light of plaintiff's execution of the arbitration agreement. A request to compel arbitration under the FAA may be brought in state court. (Southland Corp. v. Keating (1984) 465 U.S. 1, 16; Main v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1977) 67 Cal.App.3d 19, 24, disapproved of on other grounds in Rosenthal ...

Excerpt: ... improbable the allegations may seem. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) The court, however, does not accept the truth of contentions, deductions, or conclusions of law. (Genesis Environment Services v. San Joaquin Valley Unified Air Pollution Control District (2003) 113 Cal.App.4th 597, 603.) A review of the SAC shows that it is sorely deficient. The allegations are unintelligible, making it nearly im...

Excerpt: ..., 10, 13, 14, 15, and 16 are sustained. The remainder of the objections to the Torres declaration are overruled. Plaintiff's objections to the Boyle declaration no. 3, 4, 5, and 7 are sustained. The remainder of the objections to the Boyle declaration are overruled. Plaintiff's objections no. 1 to the Roseman declaration is sustained. Defendants' objections to the declaration are overruled in their entirety. Ruling on Motion The motion is denied....

Excerpt: ...nderson 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, The court reviews the demurrer keeping this in mind. As to the ninth cause of action, plaintiff concedes that this claim should not go forward and she intends to dismiss the cause of action. In light of this, the court sustains the demu...

Excerpt: ...Civil Procedure section 437c(c).) The moving party bears the initial burden of establishing that one or more elements of a cause of action cannot be established or there is a complete defense to the cause of action. (ld. 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 sup...

Excerpt: ...ant's failure to contribute the full escrow funds when the original complaint was filed on September 1, 2020. (TAC 942.) Delayed discovery may toll the statute of limitations where the plaintiff shows (1) the time and manner of discovery and (2) the inability to have made an earlier discovery despite reasonable diligence. (Fox v. Ethicon Endo-surgery, Inc. (2005) 35 Cal.4th 797, 808.) Plaintiff, however, has not plead sufficient facts to allege d...

Excerpt: ...rt weighs the likelihood of whether the moving party will prevail on the merits and the relative interim harm to the parties from the issuance or nonissuance of the injunction. (Hunt v. Superior Court (1999) 21 Cal.4th 984, 999- I(M.) Turning first to whether plaintiff will prevail on the merits, plaintiff relies heavily on its claim for declaratory relief. An action for declaratory relief requires an actual controversy relating to the legal righ...

Excerpt: ...In the current request, defendant seeks to compel plaintiff to participate in arbitration under the FAA for his individual PAGA claim in light of plaintiff's execution of the arbitration agreement. A request to compel arbitration under the FAA may be brought in state court. (Southland Corp. v. Keating (1984) 465 U.S. 1, 16; Main v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1977) 67 Cal.App.3d 19, 24, disapproved of on other grounds in Rosentha...

Excerpt: ... demurrer even where the challenge is untimely filed. (Jackson v. Doe (2011) 192 Cal.App.4th 742, 750.) Ruling on Demurrer The demurrer is sustained without leave to amend. A demurrer is reviewed under wellestablished principles. The challenge tests the legal 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.) In this vein, the allegations are dee...

Excerpt: ...ished principles. The challenge is brought where the pleading does not state facts sufficient to constitute a cause of action. (Code of Civil Procedure section 430.10(e).) A demurrer is also appropriate based upon the statute of limitations where the grounds appear on the face of the pleading. (Aaronoff v. Martinez-Seftner (2006) 136 Cal.App.4th 910, 918.) The applicable statute of limitations for personal injury claims is two years from the wron...

Excerpt: ...mary judgment/summary adjudication. A party may be granted leave to amend a complaint upon any terms that are necessary and just. (Code of Civil Procedure section 473(a)(1), (2).) This includes allowing for a postponement of trial along with the recovery of any costs to the adverse party. (Ibid.) While there has been a sufficient showing to support plaintiffs' amendments, the defendants will be significantly prejudiced by this sixth iteration of ...

Excerpt: .... Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) The court, however, does not accept the truth of contentions, deductions, or conclusions of law. (Genesis Environment Services v. San Joaquin Valley Unified Air Pollution Control District (2003) 113 Cal.App.4th 597, 603.) This is compared to a motion to strike, which is used to strike portions of a complaint that are irrelevant, false, or improperly pleaded. (Code of Civil ...

Excerpt: ..., litigation is an adversarial process. Nonetheless, “it is vital to the integrity of our adversary legal process that attorneys strive to maintain the highest standards of ethics, civility, and professionalism in the practice of law.” (People v. Chong (1999) 76 Cal.App.4th 232, 243.) Civility and courtesy are expectations of the legal profession, they are not weaknesses. “As officers of the court with responsibilities to the administration...

Excerpt: ...Rules of Court, Rule 7.955(a)(1); Schulz v. Jeppesen Sanderson, Inc. (2018) 27 Cal.App.5th 1167, 1174.) This includes the court weighing the factors set forth in Rule 7.955. (Ibid.) The court has carefully considered and weighed the factors, determining that a reduction is necessary to reflect a reasonable award. Anson's injuries arise from a high speed collision where he was a passenger in his parents' vehicle. Anson, his brother Alden, his moth...

Excerpt: ... in light of plaintiff's agreement to arbitration pursuant the terms of defendant's dispute resolution program. A petition seeking to compel arbitration under the FAA may be brought in state court. (Southland Corp. v. Keating (1984) 465 U.S. 1, 16; Main v. Merrill Lynch, Pierce, Fenner & Smith, Inc. (1977) 67 Cal.App.3d 19, 24, disapproved of on other grounds in Rosenthal v. Great Western Financial Securities Corp. (1996) 14 Cal.4th 394.) The FAA...

Excerpt: ...property taxes for the subject property. Defendant's response stated an inability to either admit or deny. Plaintiff later prevailed on her motion for summary adjudication as to defendant's twelfth affirmative defense for adverse possession. Plaintiff asserts the failure to admit to RFA no. 24 negated a key element to the adverse possession defense. The purpose of requests for admissions is to resolve triable issues, short of trial, to expedite t...

Excerpt: ... 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 more elements of a cause of action cannot be established or there is a complete defense to the cause of action. (Id. at 437c(p)(2).) ...

Excerpt: ... granted as to Exhibits 1 and 2 under Evidence Code section 452. The request is denied as to Exhibit 3. Plaintiff's request for judicial notice is denied. Ruling on Demurrer The demurrer is sustained in part. Defendants' demurrer is limited in scope. They challenge all six causes of action under Code of Civil Procedure section 430.10(a) and (c), arguing the court has no jurisdiction over the subject of the causes of action in the complaint as the...

Excerpt: ... further objections, to RFAs, set two, nos. 56 through 60 and 65 through 69 within 21 days of service of the signed order after hearing. The remainder of the plaintiff's request as to RFAs, set two, are denied. Plaintiff Amy Durham shall provide further verified responses, without further objections, to form interrogatories, set two, no. 17.1 as it pertains to RFAs nos. 36 through 42, 49, 50, 56 through 60, and 60 through 65 within 21 days of ser...

Excerpt: ...leave to file a cross‐ complaint. The court declines to grant either request. The court has inherent authority to stay a proceeding where it promotes the interests of justice and judicial efficiency. (Code of Civil Procedure section 128(a)(8); Freiberg v. City of Mission Viejo (1995) 33 Cal.App.4th 1484, 1489.) Neither the interests of justice nor judicial efficiency support a stay of this action pending resolution of the appeal in the Los Ange...

Excerpt: ...Defendant, for his part, rejects this characterization. This prompted plaintiff Richard Kemp to seek to compel further deposition responses and documents from defendant. It also prompted intervenor to seek a protective order regarding the attorney‐client privilege where intervenor and defendant hold a joint privilege. The court may grant a protective order to control a deposition proceeding or the information obtained from the proceeding. (Code...

Excerpt: ...ity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 114‐ 115.) Ruling on Demurrer The demurrer is overruled. A party may demur to a cross‐complaint where the pleading does not state facts sufficient to constitute a cause of action. (Code of Civil Procedure section 430.10(e).) A demurrer tests the legal sufficiency of the pleading, not the truth of the allegations or accuracy of the described conduct. (Bader v. Anderson (2009) 179 Cal....

Excerpt: ...upplemental declaration of counsel filed on 7/20/22 shows that the demurring attorney requested a meet and confer conference , which resulted in a scheduling of a time certain. When moving party counsel called he was informed plaintiff's counsel was at lunch Page 6 of 7 and would call back. Moving party counsel called two days following and was told the same time but plaintiff's counsel never returned the call. Factual and procedural background: ...

Excerpt: ...ls Co. (1981) 123 Cal.App.3d 593, 604.) The court, however, does not accept the truth of contentions, deductions, or conclusions of law. (Genesis Environment Services v. San Joaquin Valley Unified Air Pollution Control District (2003) 113 Cal.App.4th 597, 603.) The court reviews the amended complaint keeping this in mind. Plaintiffs allege three causes of action in their amended complaint: (1) wrongful death and/or survivor action for negligence;...

Excerpt: ...ns 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, however, does not accept the truth of contentions, deductions, or conclusions of law. (Genesis Environment Services v. San Joaquin Valley Unified Air Pollution Control District (2003) 113 Cal.App.4th 597, 603.) The demurrer is reviewed keeping this in mind. In this i...

Excerpt: ...n is necessary to a reflect rate comparable to the area. The court reduces the hourly rate to $300. The next part of the analysis is determination of the reasonable number of hours. Counsel billed 233.90 hours, which included extensive pre‐trial motion litigation. The court is familiar with this case and the motions brought by the parties. The court determines there was an excessive amount of hours expended on pre‐trial law and motion litigat...

Excerpt: ...as inherent authority to modify or dissolve a preliminary injunction based upon a proper showing by the moving party. (Union Interchange, Inc. v. Savage (1959) 52 Cal.2d 601.) The injunction may be modified or vacated where there has been a material change in the controlling facts or law upon which the injunction was determined or where the ends of justice would be served by a modification. (Code of Civil Procedure section 533; United Food & Comm...

Excerpt: ...proceeding; and (4) the length of time that has elapsed between a prior trial setting and the presently set trial date. (Code of Civil Procedure section 2024.050(b)(1)‐(4).) Any request to reopen discovery also requires a declaration outlining the moving party's attempts to informally resolve the issue: “This motion shall be accompanied by a meet and confer declaration under Section 2016.040.” [Emphasis added.] (Code of Civil Procedure sect...

Excerpt: ..., without further objections, to requests for admissions, nos. 25, 27, and 28 within 10 days of service of the signed order after hearing. The remainder of the motion is denied. Defendants' request for sanctions is denied. Initially, defendants did not prevail entirely on their motion as plaintiff properly asserted objections to requests that were much too broad and/or poorly tailored. Further, the court notes the meet and confer efforts here wer...

Excerpt: ...urt shall order arbitration if it determines that an agreement to arbitrate the controversy exists, unless it is shown that either (1) the petitioner waived the right to compel arbitration, (2) grounds for revocation of the agreement exist, or (3) a party to the arbitration agreement is also a party to a pending court action or special proceeding with a third party arising out of the same transaction. (Code of Civil Procedure section 1281.2.) A t...

Excerpt: ...est for summary adjudication unripe and moot. The court disagrees with this assessment. The ripeness requirement is a doctrine of justiciability, which prevents courts from issuing purely advisory opinions. (Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, 170‐171.) “ ‘The controversy must be definite and concrete, touching the legal relations of parties having adverse legal interests. [Citation.] It must be a real ...

Excerpt: ...the described conduct. (Bader v. Anderson (2009) 179 Cal.App.4th 775, 787.) There is no concern with the likelihood that the complainant will prevail or whether the complainant has evidence to support the allegations. (Gervase v. Superior Court (1995) 31 Cal.App.4th 1218, 1224.) Indeed, for the purposes of the demurrer, all material facts are deemed true no matter how improbable those facts appear. (Ibid; Del E. Webb Corp. v. Structural Materials...

Excerpt: ... is, however, an exception to this general principle under the doctrine of equitable estoppel. (Ibid.) A nonsignatory defendant may enforce arbitration where plaintiff's claims are intimately founded in and intertwined with the underlying contract obligations. (Id. at pp. 495‐496.) Equitable estoppel prevents the plaintiff from relying on contractual terms against a nonsignatory while repudiating an arbitration clause contained within the contr...

Excerpt: ...nderson (2009) 179 Cal.App.4th 775, 787.) There is no concern with the likelihood that the complainant will prevail or whether the complainant has evidence to support the allegations. (Gervase v. Superior Court (1995) 31 Cal.App.4th 1218, 1224.) Indeed, for the purposes of the demurrer, all material facts are deemed true no matter how improbable those facts appear. (Ibid; Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 60...

Excerpt: ...l arbitration where there is a written contract involving interstate or foreign commerce or maritime transactions. (9 U.S.C. §§1, 2.) Where the parties incorporate the FAA into the agreement, the FAA governs a party's request to compel arbitration. (Victrola 89, LLC v. Jaman Properties 8 LLC (2020) 46 Cal.App.5th 337, 346.) It is defendant that bears the burden of establishing the applicability of the FAA in this instance. (Hoover v. American I...

Excerpt: ...nd burdensome at this juncture. The notice process will identify the number of employees along with their various job titles, allowing plaintiff to propound more tailored, concise requests. Plaintiff's request for sanctions is also denied as plaintiff did not prevail on the motion. Plaintiff's Motion to Compel Further Responses to Request for Production of Documents and Sanctions The motion is denied. The court has carefully reviewed defendant's ...

Excerpt: ...rson (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 demurrer keeping this in mind. Defendants contend the entire FAC is barred since it was filed after the applicable statutes of limitations for each cause of action. Specifically, they argue the Governor h...

Excerpt: ...estraint when ordering terminating sanctions. The dismissal of an action is a drastic sanction that is only applied after a party has had an opportunity to comply with a court order yet still fails to do so. (see Ruvalcaba v. Government Employees Ins. Co. (1990) 222 Cal.App.3d 1579, 1581.) The totality of the circumstances surrounding the discovery violations are considered when ordering terminating sanctions: (1) whether the party's conduct was ...

Excerpt: ...cannot be established or there is a complete defense to the cause of action. (Id. at 437c(p)(2).) Only when this initial burden is met does the burden shift to the opposing party to establish a triable issue of material fact. (Ibid.) In reviewing a motion for summary judgment, the trial court must view the supporting evidence, and inferences reasonably drawn from such evidence, in the light most favorable to the opposing party. (Aguilar v. Atlant...

Excerpt: ...rt the discovery subpoenas are improper since Gene Jackson filed a bankruptcy proceeding that is still currently pending. “Upon the filing of a bankruptcy proceeding, federal bankruptcy law imposes an automatic stay on all state and federal proceedings outside the bankruptcy court against the debtor and the debtor's property. [Citations.]” “ ‘The automatic stay is self‐executing and is effective upon filing the bankruptcy petition. [Cit...

Excerpt: ... error in law. (Code of Civil Procedure section 657; Montoya v. Barragan (2013) 220 Cal.App.4th 1215, 1227; Oakland Raiders v. National Football League (2007) 41 Cal.4th 624, 633.) In this instance, defendant asserts irregularities in the proceedings; accident/surprise; excessive damages; and an error in law warrant a new trial. Defendant, however, has not made a sufficient showing to support relief under any of these grounds. “An ‘irregulari...

Excerpt: ... own attorney fees. [Citations] The Legislature codified the American rule in 1872 when it enacted Code of Civil Procedure section 1021, which states in pertinent part that ‘Except as attorney's fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties; …' [Citation.]” (Trope v. Katz (1995) 11 Cal.4th 274, 278‐ 279.) A...

Excerpt: ...tory pleading against petitioner. This first accusatory complaint was based upon the complaints of eight different patients who collectively received dental work from petitioner between 2010 through 2014. The allegations involved multiple acts of improper dental work causing significant pain, improper billings, unavailability, and improper record keeping. There were eight separate claims alleged against petitioner, which included seven counts of ...

Excerpt: ...17 Cal.App.4th 218, 227.) A defendant challenging a complaint must show either (1) the court has no jurisdiction over the subject matter within the complaint or (2) the complaint fails to state sufficient facts to constitute a cause of action. (Code of Civil Procedure section 438(c)(1)(B).) “[J]udgment on the pleadings must be denied where there are material factual issues that require evidentiary resolution. (Schabarum v. California Legislatur...

Excerpt: .... (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, PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE MICHAEL W. JONES TENTATIVE RULINGS FOR MAY 5, 2022 AT 8:30 A.M. PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and Motion – Tentative Rul...

Excerpt: ...atutes governing unlawful detainers are to be strictly construed. (WDT‐Winchester v. Nilsson (1994) 27 Cal.App.4th 516, 526.) Code of Civil Procedure section 1179.11(a) states a summons shall not be issued unless the plaintiff submits a filing stating, among other things, plaintiff has received no communication from the tenant that the tenant has applied for governmental rental assistance to cover the unpaid rental debt demanded from defendant ...

Excerpt: ...personal representative and the defendant's estate as defendants after the death of the defendant. The court has broad discretion in granting leave to amend a pleading with such discretion exercised liberally to permit amendments. (Howard v. County of San Diego (2010) 184 Cal.app.4th 1422, 1428.) Liberality is warranted here, especially in light of the unique factual circumstances. Contrary to defendants' assertions, the complaint is not barred o...

Excerpt: ...e SSUMF as required for a motion for summary adjudication. (Id. at subd. (d)(1)(A).) Due to these procedural deficiencies, the court limits its review to a motion for summary judgment only. Ruling on the Motion The motion for summary judgment is denied. Defendant seeks summary judgment or summary adjudication against all four causes of action in plaintiff's complaint. A party is entitled to bring a motion for summary judgment where PLACER COUNTY ...

Excerpt: ...cribed 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, however, does not accept the truth of contentions, deductions, or conclusions of law. (Genesis Environment Services v. San Joaquin Valley Unified Air Pollution Control District (2003) 1...

Excerpt: ...r to reopen discovery, which include (1) the necessity and reason for the discovery; (2) the diligence or lack of diligence in seeking the discovery and the reason it was not completed earlier; (3) the likelihood that granting the motion will delay trial; and (4) the length of time that has elapsed between the prior trial date and the current trial date. (Code of Civil Procedure section 2024.050(b).) The court has carefully reviewed the motion an...