Excerpt: ... Process re Dr. Bergeson $0,395.00 Item 14— Electronic Filing/service Fees Incurred After July 30, 2021 $0,101.03 TOTAL $3,068.97 Plaintiff's memorandum of costs, filed on August 10, 2023, is taxed by $3,068.97. Plaintiff is awarded $14,092.59. Plaintiff Lachlynn Lusk's Motion to Tax Costs The motion is granted in part. The current request involves a challenge to the recovery of costs after the tender of a viable Code of Civil Procedure section...

Excerpt: ...l Procedure section 430.10(e).) This is compared to a motion to strike, which challenges a portion of a pleading that is irrelevant, false, or improperly pleaded. (Id. at section 437(a).) A motion to strike is the common method used to challenge the sufficiency of punitive damages allegations. (see Turman v. Turning Point of Central Calif., Inc. (2010) 191 Cal.App.4th 53, 63.) The court reviews the request as seeking to strike the punitive damage...

Excerpt: ...efendants challenge both the sufficiency of the allegations within all three pleaded causes of action along with challenging the standing of the plaintiffs to bring the wrongful death and survivor claims. A demurrer tests the legal sufficiency of the pleading, 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...

Excerpt: ...'s chosen allegations do not meet the basic pleading requirements in this instance. Specifically, plaintiff does not sufficiently allege the basis for recovery against defendant. Plaintiff alleges there was a prior lease agreement involving a former tenant and defendant occupied the premises with the former tenant. However, plaintiff does not allege any of the terms of this prior lease agreement or whether that agreement identified other occupant...

Excerpt: ...n Motion In the current challenge, defendants seek to strike the entirety of the complaint and all pleaded causes of action pursuant to Code of Civil Procedure section 425.16(c)(1). Section 425.16, commonly referred to as the anti‐SLAPP statute, applies to causes of action brought against a defendant arising from acts in furtherance of a person's right of petition or free speech. The anti‐SLAPP statute creates “a two‐step process for dete...

Excerpt: ...act (RISC) executed by plaintiffs and Auburn Honda. Plaintiffs purchased a new 2022 Honda Civic from Auburn Honda, who is not named as a defendant in this action. Defendant relies on the arbitration provision found in the RISC, where plaintiffs agreed to arbitrate with Auburn Honda regarding: “Any claim or dispute, whether in contract, tort, statute or otherwise (including the interpretation and scope of this Arbitration Provision, and the arbi...

Excerpt: ...complaint, granting plaintiff leave to amend. On April 14, 2022, the court sustained defendants' demur to plaintiff Grand's FAC. In doing so, the court specified that plaintiff Grand was granted leave to amend only as to the first, second, third, fourth, fifth and tenth causes of action. The court sustained defendants' demur to the sixth, seventh, eighth and ninth causes of action without leave to amend. Plaintiff Grand obtained an extension of t...

Excerpt: ...ay or must take judicial notice.” (Aaronoff v. Martinez‐Seftner (2006) 136 Cal.App.4th 910, 918.) The court reviews the complaint keeping this in mind. The applicable statute of limitations for personal injury claims is two years from the wrongful act. (Code of Civil Procedure section 335.1.) A review of the allegations within the complaint shows that each of the two causes of action for motor vehicle negligence are based upon injuries that o...

Excerpt: ...2) states that a court may dismiss the complaint after a demurrer is sustained with leave and the plaintiff fails to amend within the time allotted by the court. Dismissal here is discretionary; the court has discretion to accept an untimely amended pleading. (Harlan v. Department of Transportation (2005) 132 Cal.App.4th 868, 873.) The delay in filing the SAC was brief. Plaintiff filed the SAC five days after the timeline set by the court. The em...

Excerpt: ...t of fraud, overreaching parties, or collusion and that the settlement, as a whole, is fair, reasonable, and adequate. (7‐Eleven Owners for Fair Franchising v. Southland Corp. (2000) 85 Cal.App.4th 1135, 1145.) A presumption of fairness exists where: (1) the settlement was reached through armslength bargaining; (2) the investigation and discovery were sufficient to allow class counsel and the court to act intelligently; (3) class counsel is exp...

Excerpt: ...equires the moving party to present new or different, facts, circumstances, or law that were unavailable at the time the order was made. (New York Times Co. v. Superior Court (2005) 135 Cal.App.4th 206, 212‐213.) This requires a showing that the moving party could not reasonably have discovered or produced the information at the time of the hearing. (Ibid; Garcia v. Hejmadi (1997) 58 Cal.app.4th 674, 690.) Ms. Casetta has made no such showing h...

Excerpt: ...the dispute between the parties. The document is extrinsic evidence submitted in an attempt to broaden review beyond the scope of the allegations within the complaint, which is improper. A court cannot convert a demurrer into an incomplete evidentiary hearing through the submission of extrinsic evidence under the guise of a judicial notice request. (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 114‐115.) Ruling on De...

Excerpt: ... here are at the heart of the dispute between the parties. The documents are extrinsic evidence submitted in an attempt to broaden review beyond the scope of the allegations within the complaint, which is improper. A court cannot convert a demurrer into an PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR SEPTEMBER 2, 2021 AT 8:30 A.M. PLACER SUPERIOR COURT – DEPARTME...

Excerpt: ...edure section 437c(c).) In reviewing a motion for summary judgment, the trial court must view the supporting evidence, and inferences reasonably drawn from such evidence, in the light most favorable to the opposing party. (Aguilar v. Atlantic Richfield Company (2001) 25 Cal.4th 826, 843.) In this instance, defendant has made a sufficient showing regarding the applicability of the Privette doctrine. There is a presumption that an independent contr...

Excerpt: ...nsuring that the agreement is not a product of fraud, overreaching parties, or collusion and that the settlement, as a whole, is fair, reasonable, and adequate. (7‐Eleven Owners for Fair Franchising v. Southland Corp. (2000) 85 Cal.App.4th 1135, 1145.) A presumption of fairness exists where: (1) the settlement was reached through arms‐length bargaining; (2) the investigation and discovery were sufficient to allow class counsel and the court P...

Excerpt: ...n. (Code of Civil Procedure section 430.10(c).) Under a statutory plea of abatement the pendency of an earlier action arising from the same transaction and between the same parties is grounds for abatement of the second action. (People ex rel. v. American Autoplan, Inc. (1993) 20 Cal.App.4th 760, 770.) Here, defendant has not made a sufficient showing in support of statutory abatement. A PAGA claim is brought by an employee who acts a proxy for t...

Excerpt: ... sale of the subject property. Plaintiff's request is granted as to Exhibit 1. The remainder of plaintiff's request for judicial notice is denied. /// PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR AUGUST 26, 2021 AT 8:30 A.M. PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and Motion – Tentative Rulings Page 2 of 12 Ruling on the Motion In the current r...

Excerpt: ...tration where there is a written contract involving interstate or foreign commerce or maritime transactions. (9 U.S.C. §§1, 2.) Where the FAA governs, conflicting state law is preempted under the Supremacy Clause. (AT&T Mobility, LLC v. Concepcion (2011) 563 U.S. 333; 131 S.Ct. 1740, 1745‐1746.) Thus, the first step of the inquiry is to determine whether the subject arbitration provision is governed by the FAA. To reiterate, the FAA applies t...

Excerpt: ...nt should be stricken since cross‐complainant did not serve the pleading within 30 days of issuance of the summons. Such relief is not proper under the circumstances. A cross‐complaint is subject to discretionary dismissal when the cross‐defendant is not served within two years after the action is commenced. (Code of Civil Procedure sections 583.420(a), 583.110.) The cross‐complainant may avoid discretionary relief by making a showing of ...

Excerpt: ...nt of $1,000, under Code of Civil Procedure section 473(c)(1)(B). A party may seek leave from a default within a reasonable time, no later than six months after its entry, upon a showing of mistake, inadvertence, surprise, or excusable neglect. (Code of Civil Procedure section 473(b).) A court shall grant relief, when timely brought and presented in the proper format, where an attorney submits a sworn affidavit attesting to the attorney's mistake...

Excerpt: ...nctions should be awarded upon the failure of the responding party to timely respond. (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal.App.4th 390, 410‐411.) The court has carefully reviewed the declarations of counsel submitted in support of their respective positions. The circumstances surrounding the delay in responses may have initially been justifiable. However, the exceedingly lengthy period of time it...

Excerpt: ... 19, 20, 21, 22, 23, and 24 are overruled. Ruling on Motion Defendant SGE moves to quash service for lack of jurisdiction. Defendant SGE opposes the court exercising jurisdiction over it in this California action involving injury to a California plaintiff who was injured in Utah. On the other hand, plaintiff asserts this court has specific jurisdiction over SGE. California courts may exercise jurisdiction on any basis so long as it is not inconsi...

Excerpt: ..., fourth, and sixth causes of action are brought against Strauch & Company, who was dismissed from the action on January 27, 2021. The court file does not reflect there have been any amendments to allege these three claims against the moving defendants. In light of the posture of the court file, the court declines to entertain the motion as to the third, fourth, and PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HON...

Excerpt: ...athaway, James Middleton, Alliance United Insurance Company, and SelfServe Petroleum dba Gas & Shop. After issuance of the summons, but before PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR AUGUST 12, 2021 AT 8:30 A.M. PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and Motion – Tentative Rulings Page 16 of 25 providing proof of service, plaintiff dismis...

Excerpt: ... described conduct. (Bader v. Anderson (2009) 179 Cal.App.4th 775, 787.) The allegations in the pleadings are deemed to be true no matter how improbable the allegations may seem. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) The court reviews the demurrer keeping this in mind. In paragraph 20, plaintiffs allege “Corcoran acquired Oliver Luxury Real Estate in 2020, and that Corcoran lists Defendants Michael Oliv...

Excerpt: ...ot the truth of the plaintiff's allegations or accuracy of the described conduct. (Bader v. Anderson (2009) 179 Cal.App.4th 775, 787.) The allegations in the pleadings are deemed to be true no matter how improbable the allegations may seem. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) The complaint is reviewed keeping this in mind. A review of the complaint reveals significant pleading deficiencies, making it di...

Excerpt: ... accuracy of the described conduct. (Bader v. Anderson (2009) 179 Cal.App.4th 775, 787.) The allegations in the pleadings are deemed to be true no matter how improbable the allegations may seem. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) The court reviews the demurrer keeping these principles in mind. /// PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB ...

Excerpt: ...efendant is still required to PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR JULY 29, 2021 AT 8:30 A.M. UNLESS OTHERWISE NOTED, ANY ORAL ARGUMENT REQUESTED WILL BE HEARD ON TUESDAY, AUGUST 3, 2021 AT 8:30 A.M. IN DEPARTMENT 42. PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and Motion – Tentative Rulings Page 9 of 20 comply with its discovery obligation...

Excerpt: ... requested in plaintiff's request for judicial notice. The remainder of the request is denied. New evidence submitted with reply papers generally will not be considered where the opposing party has not had the ability to address the new evidence. (Alliant Ins. Services, Inc. v. Gaddy (2009) 159 Cal.App.4th 1292, 1307‐1308; Plenger v. Alza Corp. (1992) 11 Cal.App.4th 349, 362, fn. 8.) PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION D...

Excerpt: ...ers submitted show that there is no triable issue as to any material fact and the moving party is entitled to a judgment as a matter of law. (Code of Civil Procedure section 437c(c).) A party to the action may also move for summary adjudication if the party contends there is no merit to one or more of the causes of action. (Code of Civil Procedure section 437c(f)(1).) In reviewing a motion for summary judgment or summary adjudication, the trial c...

Excerpt: ...ved by 12:00 p.m. on Thursday, August 5, 2021. Non‐Party Holly Piatyszek's Motion for Protective Order Preliminary Matters According to the notice of motion, the motion is directed at defendants Strauch & Company Inc. and Donnie Barksdale. Strauch & Company was dismissed PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR JULY 29, 2021 AT 8:30 A.M. UNLESS OTHERWISE NOTE...

Excerpt: ...rt. (Code of Civil Procedure section 436(a), (b).) The grounds for a motion to strike must appear on the face of the pleading or from judicially noticeable matters. (Code of Civil Procedure section 437(a).) The request is reviewed keeping this in mind. The motion is granted as to paragraphs 9, 10, 17, 19, 20, 21 and the prayer for punitive damages. The language in paragraphs 9, 10, 20, and 21 include PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL L...

Excerpt: ...gations 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 complaint keeping these principles in mind. A review of the two causes of action reveal both suffer from pleading deficiencies. The third cause of action alleges a claim for professional negligence. Professional negligence specifically incorporates t...

Excerpt: ...79 Cal.App.4th 775, 787.) The allegations in the pleadings are deemed to be true no matter how improbable the allegations may seem. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) In this instance, the factual allegations in the complaint are insufficient to plead defendant is a corporate entity with liability for the prior entity the Lincoln City Colts. “Successor liability issues are equitable issues to be exam...

Excerpt: ...E CHARLES D. WACHOB TENTATIVE RULINGS FOR JULY 15, 2021 AT 8:30 A.M. purportedly filed by defendant Aspen Earthworks. The court file reflects the subject objections were rejected by the clerk and not filed with the court. Since the objections were not properly filed with the court, Welsh Hagen's supplemental filings from July 12, 2021 will not be considered. Ruling on Objections Welsh Hagen's objections, filed on July 8, 2021, are sustained in th...

Excerpt: ...Executive Orders as does so. The request is denied as to Exhibit M. Plaintiffs' request for judicial notice is granted in its entirety. Ruling on Demurrer In the current request, defendants challenge all eleven causes of action alleged in the original complaint. They allege the complaint is deficient in several respects, focusing primarily on the assertion plaintiffs' action is moot. “California courts will decide only justiciable controversies...

Excerpt: ...ictorville (2013) 217 Cal.App.4th 218, 227.) Where a plaintiff brings a the motion, the plaintiff must establish the complaint states facts sufficient to constitute a cause of action and the answer does not state facts sufficient to constitute a defense to the complaint. (Code of Civil Procedure section 438(c)(1)(A).) A review of the complaint shows the single cause of action for breach of contract is sufficiently pleaded. A review of the answer ...

Excerpt: .... Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) The court reviews the crosscomplaint keeping these principles in mind. In this instance, cross‐defendants demur to the purported first cause of action in the cross‐complaint. The filing of the cross‐complaint was improper since cross‐complaints generally cannot be filed in unlawful detainer action. (Code of Civil Procedure section 1170; Knowles v. Robinson (1963) 60...

Excerpt: ...e described conduct. (Bader v. Anderson (2009) 179 Cal.App.4th 775, 787.) The allegations in the pleadings are deemed to be true no matter how improbable the allegations may seem. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) The court reviews both claims keeping these principles in mind. In the fifth cause of action, plaintiffs allege a claim for breach of fiduciary duty against defendant Dennis Socolean. A caus...

Excerpt: ...App.4th 775, 787.) The allegations in the pleadings 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.) The court reviews the challenged causes of action keeping these principles in mind. The fifth cause of action asserts a claim for breach of fiduciary duty against National, alleging National was the insurance carrier for New Legend from 2018 through 2020. ...

Excerpt: ... triable issue of material fact and that the party is entitled to judgment as a matter of law. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) The moving party has the burden of showing, by affidavit, facts establishing every element necessary to sustain a judgment in favor of the party. (Consumer Cause, Inc. v. Smilecare (2001) 91 Cal.App.4th 454, 468.) Once a plaintiff proves its prima facie case, the burden of proof shifts to t...

Excerpt: ...terrupted because of “the State's unprecedented quarantine response to COVID 19 and that, as a result, the trial was paused for over two and half months.” They claim this delay “and the fear of COVID 19 destroyed the continuity of EMS's case.” EMS and Gerhardt claim that when the trial resumed, the defendants/crosscomplainants were able to complete their evidence without an interruption. They assert this unfairly prejudiced their right to...

Excerpt: ...f asserts in its moving papers that “FCA responded to the Requests in the same obstructionist, bad faith manner that it routinely uses against California consumers who file Lemon Law claims.” Defendants make their own accusations, including for example “Nevertheless, in what has become all too common in California lemon law litigation, Plaintiffs here demand class action‐type discovery, in some instances, in violation of third‐party pri...

Excerpt: ... THURSDAY, JUNE 24, 2021 AT 8:30 A.M. IN DEPARTMENT 42. PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and Motion – Tentative Rulings Page 2 of 5 Ruling on Motion The motion is granted. The trial court shall grant a motion for summary judgment if “all of 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 sectio...

Excerpt: ...under Code of Civil Procedure section 1008(b), which allows the moving party whose request was previously denied to renew the motion based upon “new or different facts, circumstances, or law”. Plaintiff has not made a sufficient showing to warrant renewed consideration of the prior motion. He does not present sufficient new or different facts, circumstances, or law that were not present or known to the parties at the time of the prior hearing...

Excerpt: ...uses of action subject to the current demurrer. A demurrer tests the legal sufficiency of the pleadings, not the truth of the plaintiff's allegations or accuracy of the described conduct. (Bader v. Anderson (2009) 179 Cal.App.4th 775, 787.) The allegations in the pleadings are deemed to be true no matter how improbable the allegations may seem. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) The court reviews these...

Excerpt: ...Judicial Notice PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and Motion – Tentative Rulings Page 4 of 7 PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR JUNE 10, 2021 AT 8:30 A.M. Defendants' request for judicial notice is denied. Ruling on Demurrer In the current request, the moving defendants challenge only the fourth cause of action for violations of...

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

Excerpt: ... the described conduct. (Bader v. Anderson (2009) 179 Cal.App.4th 775, 787.) The allegations in the pleadings are deemed to be true no matter how improbable the allegations may seem. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) The court reviews the demurrer keeping these principles in mind. The first cause of action alleges defendant violated the Truth in Lending Act (TILA) when it failed to provide plaintiff w...

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

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

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

Excerpt: ...ION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR MAY 27, 2021 AT 8:30 A.M. PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and Motion – Tentative Rulings Page 3 of 8 Ruling on Objections Defendant's objections nos. 1, 2, and 3 are sustained. Ruling on Motion The trial court shall grant a motion for summary judgment if “all the papers submitted show that there is no triable issue as to any material fact and th...

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

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

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

Excerpt: ...ngs Page 11 of 13 PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR MAY 20, 2021 AT 8:30 A.M. allegations in the pleadings are deemed to be true no matter how improbable the allegations may seem. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) The FAC pleads sufficient factual allegations to support each of the causes of action. To plead ...

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

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

Excerpt: ...l.App.4th 775, 787.) The allegations in the pleading are deemed to be true no matter how improbable the allegations may seem. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) In the current demurrer, defendants only challenge the sufficiency of the allegations within the fourth cause of action. A review of this claim reveals the allegations remain conclusory in nature, failing to allege sufficient facts against the ...

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

Excerpt: ...e pleadings, not the truth of the allegations or the accuracy of the described conduct. (Bader v. Anderson (2009) 179 Cal.App.4th 775, 787.) The allegations in the pleadings are deemed true no matter how improbable they may seem. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) Plaintiff alleges that he was severely injured while participating in the “Southwest Summer Trip”, a “summer education program” spon...

Excerpt: ...cedure section 437c(c).) The moving party bears the initial burden of establishing that one or elements of a cause of action cannot be established or there is a complete defense to the cause of action. (Id. at 437c(p)(2).) Only when this initial burden is met does the burden shift to the opposing party to establish a triable issue of material fact. (Ibid.) In reviewing a motion for summary judgment, the trial court must view the supporting eviden...

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

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

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

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

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

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

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

Excerpt: ...riable issue as to any material fact and the moving party is entitled to a judgment as a matter of law.” (Code of Civil Procedure section 437c(c).) The moving party bears the initial burden of establishing that one or more elements of a cause of action cannot be established or there is a complete defense to the cause of action. (Id. at 437c(p)(2).) Only when this initial burden is met does the burden shift to the opposing party to establish a t...

Excerpt: ... are sustained solely as to the hearsay statements presented within the documents. Ruling on Motion The motion is denied. “Summary judgment is proper if the supporting papers are sufficient to sustain a judgment in favor of the moving party as a matter of law and the opposing party presents no evidence giving rise to a triable issue as to any material fact. [Citation.] To prevail on a summary judgment motion, the defendant must conclusively neg...

Excerpt: ...ars the initial burden of showing there is no triable issue of material fact as to the defense or that plaintiff is entitled to judgment on the defense as a matter of law. (Code of Civil Procedure section 437c(p)(1); See's Candy Shops, Inc. v. Superior Court (2012) 210 Cal.App.4th 889, 899‐900.) In meeting this burden, plaintiff must either negate an essential element of the defense or establish defendant has no evidence to support the defense....

Excerpt: ...ith reply papers. ‘‘[T]he inclusion of additional evidentiary matter with the reply should only be allowed in the exceptional case ...'' and if permitted, the other party should be given the opportunity to respond. (Plenger v. Alza Corp. (1992) 11 Cal.App.4th 349, 362, fn. 8; Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252; San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 316.) Here, the court decline...

Excerpt: ...was dismissed in September 2013. In the current motion, the moving parties seek an order from the court to file under seal the settlement agreement reached in this action, in a separate action currently pending against them, Ehlers Law Corporation v. Des Jardins, case no. S‐CV‐0045532. A request for a right to attach order and writ of attachment is PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES...

Excerpt: ... Finally, defendants do not sufficiently establish the relevancy of these materials. Ruling on Objections Plaintiffs' objections are sustained in their entirety. The court also notes that new evidence and arguments submitted in the reply papers is improper to consider where the opposing party has not had the opportunity to respond. (Plenger v. Alza Corp. (1992) 11 Cal.App.4th 349, 362, fn. 8; Alliant Ins. Services, Inc. v. Gaddy (2009) 159 Cal.Ap...

Excerpt: ...plaintiff can plead California has a “special obligation” to undertake the massive burden of a nationwide class action. Osborne v. Subaru of America (1988) 198 C.A.3d 646 held that California courts should not, lacking a “special obligation” to do so, undertake the massive burden of adjudicating nationwide class action lawsuits when to do so would require the trial court to adjudicate issues by application of numerous different rules of l...

Excerpt: ...trial court shall grant a motion for summary judgment if “all the papers submitted show that there is no triable issue as to any material fact and the moving party is entitled to a judgment as a matter of law.” (Code of Civil Procedure section 437c(c).) A party to the action may also move for summary adjudication if that party contends there is no merit to one or more of the causes PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law an...

Excerpt: ... “all the papers submitted show that there is no triable issue as to any material fact and the moving party is entitled to a judgment as a matter of law.” (Code of Civil Procedure section 437c(c).) In reviewing a motion for summary judgment, the trial court must view the supporting evidence, and inferences reasonably drawn from such evidence, in the light most favorable to the opposing party. (Aguilar v. Atlantic Richfield Company (2001) 25 C...

Excerpt: ...is moving defendant. A demurrer tests the legal sufficiency of the pleadings, not the truth of the plaintiff's allegations or accuracy of the described conduct. (Picton v. Anderson Union High School (1996) 50 Cal.App.4th 726, 733.) All properly pleaded facts are assumed to be true as well as those that are judicially noticeable. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318; Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149, 1153.) T...

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

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

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

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

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

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

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

Excerpt: ...aith Settlement The unopposed motion is granted. Based on the standards set forth in Tech‐Bilt v. Woodward Clyde & Associates (1985) 38 Cal.3d 488, the settlement at issue is within the reasonable range of the settling cross‐defendant's proportionate shares of liability for plaintiffs' injuries and therefore is in good faith within the meaning of Code of Civil Procedure section 877.6. /// PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil...

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

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

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

Excerpt: ...re is no triable issue as to any material fact and the moving party is entitled to a judgment as a matter of law.” (Code of Civil Procedure section 437c(c).) A party to the action may also move for summary adjudication if that party contends there is no merit to one or more of the causes of action. (Code of Civil Procedure section 437c(f)(1).) The moving party bears the initial burden of establishing that one or elements of a cause of action ca...

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

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

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

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

Excerpt: ...09) 179 Cal.App.4th 775, 787.) The allegations in the pleadings are deemed to be true no matter how improbable the allegations may seem. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) In the current challenge, cross‐defendants contend the FACC is a sham pleading. Under the sham pleading doctrine, a pleader is precluded from amending complaints to omit harmful allegations, without explanation, to avoid a demurrer...

Excerpt: ...iciency of the pleadings, not the truth of the allegations or the accuracy of the described conduct. Bader v. Anderson (2009) 179 Cal.App.4th 775, 787. The allegations in the pleadings are deemed true no matter how improbable they may seem. Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604. The demurrer is overruled as to plaintiff's first cause of action for negligence. With respect to this cause of action, plaintiff a...

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

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