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

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

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

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

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

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

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

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

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

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

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