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: ...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...