Excerpt: ..., 2019. A valid and accepted offer of compromise is deemed a compromise settlement, which is enforceable under general principles of contract law. (Code of Civil Procedure section 998(b), (f); Goodstein v. Bank of San Pedro (1994) 27 Cal.App.4th 899, 905‐ 906.) In order for a Section 998 offer to be valid, it must be in writing; state the terms and conditions of the award; and contain a provision allowing the offeree to accept the offer by sign...

Excerpt: .... The dismissal of an action is a drastic sanction that is only applied after a party has had an opportunity to comply with a court order yet still fails to do so. (see PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR JUNE 20, 2019 AT 8:30 A.M. PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and Motion – Tentative Rulings Page 4 of 12 Ruvalcaba v. Governme...

Excerpt: ...ire plaintiffs to prove each element of the claim to meet their burden of proof. (Code of Civil Procedure section 437c(p)(1); Paramount Petroleum Corp. v. Superior Court (2014) 227 Cal.App.4th 226, 241.) They do not seek relief under Section 437c(t), so this subdivision does not apply. Ruling on Request for Judicial Notice Plaintiffs' request for judicial notice is granted under Evidence Code section 452. Ruling on Objections Plaintiffs' objectio...

Excerpt: ...ell established principles. A party may demur to a complaint where the pleading does not state facts sufficient to constitute a cause of action. (Code of Civil Procedure section 430.10(e).) The analysis focuses on the legal sufficiency of the pleadings, not the truth of 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 ma...

Excerpt: ...– Tentative Rulings Page 9 of 12 Ruling on Motion The unopposed motion is granted. The trial court shall grant a motion for summary adjudication where a party establishes there is no merit to one or more causes of action. (Code of Civil Procedure section 437c(f)(1).) In reviewing a motion for summary adjudication, the trial court must view the supporting evidence, and inferences reasonably drawn from such evidence, in the light most favorable t...

Excerpt: ...he third cause of action for negligent failure to warn, train, or educate and fifth cause of action for sexual harassment. The motion 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 defendant challenging a complaint must show either (1) the court has no jurisdiction over t...

Excerpt: ... number of hours reasonably expended multiplied by the reasonable hourly rate. (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095; Serrano v. Priest (Serrano III) (1977) 20 Cal.3d 25, 48‐49.) The lodestar figure may then be adjusted, based upon factors specific to the case, to fix the fees at a fair market value. (Ibid.) Steyer Lowenthal Fees The court has carefully reviewed submitted declarations and billing statements in conjunction with the...

Excerpt: ...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.) A review of the first cause of action shows there are insufficient factual allegations to support the claim for equitable indemnity/apportionment against the cross‐defendant. The demurrer is sustained without leave to amend since cross‐compl...

Excerpt: ...itration agreement is also a party to a pending court action or special proceeding with a third party arising out of the same transaction. (Code of Civil Procedure section 1281.2.) The arbitration statutes evidence a strong public policy in favor of arbitration that is frequently approved and enforced by the courts. (Madden v. Kaiser Foundation Hospitals (1976) 17 Cal.3d 699, 706; Laswell v. AG Seal Beach, LLC, et al. (2010) 189 Cal.App.4th 1399,...

Excerpt: ...ended complaint. The claims asserted by plaintiffs include (1) medical malpractice; (2) abuse of dependent adult; (3) medical battery; and (4) loss of consortium. The trial court shall grant a motion for summary judgment if “all the papers submitted show that there is no triable issue as to any material fact and the moving party is entitled to a judgment as a matter of law.” (Code of Civil Procedure section 437c(c).) A party to the action may...

Excerpt: ...otion The motion is granted with leave to amend. A motion for judgment on the pleadings has the same function as a demurrer but is brought when 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 plaintiff bringing such a motion must establish the complaint states facts sufficient to constitute a cause of action and the answer does ...

Excerpt: ...ot offering it earlier. (Mink v. Superior Court (1992) 2 Cal.App.4th 1338, 1342.) Plaintiff's PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR MAY 23, 2019 AT 8:30 A.M. PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and Motion – Tentative Rulings Page 2 of 9 supporting declaration fails to provide a sufficient explanation as to why the new evidence was no...

Excerpt: ...n is to penetrate through the pleading and expedite litigation by avoiding a needless trial on a claim. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843, 849, 855.) The trial court conducts a specific analysis when considering any request for summary adjudication. First, the scope of the PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR MAY 23, 2019 AT 8:30...

Excerpt: ...ful termination in violation of public policy [Tameny claim]; section cause of action for disability discrimination in violation of public policy; and third cause of action for negligent failure to prevent discrimination and retaliation [FEHA]. The burden differs between the first and second causes of action as opposed to the third cause of action, which shall be discussed in further detail below. First and Second Causes of Action – Wrongful Te...

Excerpt: ...ks summary adjudication of plaintiff's request for exemplary/punitive damages under Civil Code section 3340. A motion for summary adjudication may be brought against a claim for damages, specified in Civil Code section 3294, where there is no merit to the punitive damages claim. The moving party bears the initial burden of establishing that one or elements of the damages claim cannot be established. (Id. at 437c(p)(2).) Only when this initial bur...

Excerpt: ... in their entirety. Ruling on Motion The motion is granted. An action by a secured lender for specific performance of an assignment of rents provision in a deed of trust, mortgage, or separate assignment document. The appointment may be continued after entry of a judgment for specific performance if appropriate to protect, operate, or maintain real property encumbered by a deed of trust or mortgage or to collect rents therefrom while a pending no...

Excerpt: ... for general whistleblower violations under Labor Code section 1102.5. A demurrer is reviewed based upon well‐ established principles. A defendant may demur to a complaint where the pleading does not state facts sufficient to constitute a cause of action. (Code of Civil Procedure section 430.10(e).) The demurrer functions as a test regarding the legal sufficiency of the pleading; it does not address the truth of the allegations or accuracy of t...

Excerpt: ...egations or accuracy of the described conduct. (Bader v. Anderson (2009) 179 Cal.App.4th 775, 787.) For the purposes of a demurrer, the allegations in the pleading 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 FAC keeping these principles in mind. A review of the FAC, when the pleading is read as a whole, shows plaintiff has plead...

Excerpt: ....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.) Plaintiff's complaint alleges six separate causes of action. The allegations within each claim are disjointed, partially illegible, and conclusory in nature, failing to sufficiently allege facts against the moving...

Excerpt: ...al notice is granted in its entirety under Evidence Code section 452. The court notes, however, that taking judicial notice of a document is not akin to accepting the truth of the matters stated within the document. (Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374.) Ruling on Demurrer The demurrer is sustained with leave to amend. A demurrer is reviewed based upon well‐established principles. A defendant may demur to a complaint ...

Excerpt: ...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 PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR APRIL 25, 2019 AT 8:30 A.M. PLACER...

Excerpt: ...ed to these three claims in light of defendants' clarification regarding the scope of the demurrer. Ruling on Demurrer To reiterate, the current demurrer challenges only the fourth, fifth, and sixth causes of action in the FAC. A party may demur to a complaint where the pleading does not state facts sufficient to constitute a cause of action. (Code of Civil Procedure section 430.10(e).) A demurrer tests the legal sufficiency of the pleadings, not...

Excerpt: ...Ruling on Demurrer In the current request, defendant demurs to all six causes of action. A demurrer is reviewed based upon well‐established principles. A defendant may demur to a complaint where the pleading does not state facts sufficient to constitute a cause of action. (Code of Civil Procedure section 430.10(e).) The demurrer functions as a test regarding the legal sufficiency of the pleading; it does not address the truth of the allegations...

Excerpt: ...s of action alleged in plaintiff's TAC. A demurrer is reviewed based upon well‐established principles. A defendant may demur to a complaint where the pleading does not state facts sufficient to constitute a cause of action. (Code of Civil Procedure section 430.10(e).) The demurrer functions as a test regarding the legal sufficiency of the pleading; it does not address the truth of the allegations or accuracy of the described conduct. (Bader v. ...

Excerpt: ...f may move for summary adjudication as to one or more causes of action if that plaintiff contends there is no viable affirmative defense. (Code of Civil Procedure section 437c(f)(1).) A summary adjudication motion will only be granted where it completely disposes of the cause of action. (Ibid.) As with a summary judgment motion, the court engages in a specific analysis for review. First, it must define the scope of the motion by looking to the op...