Excerpt: ... under the settlement agreement expressly applies only to FCM Capital Partners, Inc. and Chris Miller. The motion is denied as to defendants Chris Weber and Robert Keil. The settlement agreement entered into by all parties provides that plaintiff would enter dismissals, with prejudice, as to Mr. Weber and Mr. Keil within two business days of deposit of the settlement funds. (Vasquez declaration, Exhibit A – Settlement Agreement, ¶II.1(g).) Mr....

Excerpt: ...r 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, defendant challenges the sufficiency of the pleadings in plaintiff's single cause of action for gross negligence. A theory of gross negligence requires a plaintiff to allege facts showing either a want of even scant care or an extreme departure from the ordinary standard of conduct. (Anderson v. Fitne...

Excerpt: ...viving siblings of decedent Suzette Lowe who died as a result of an automobile collision caused by defendant's maintenance of a dangerous condition of its property. 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 for purposes of demurrer. (Del E. Web...

Excerpt: ...t of this, the court will not consider the demurrer as to these two causes of action. Ruling on Request for Judicial Notice Cross‐complainants' request for judicial notice is granted under Evidence Code section 452. Ruling on Demurrer Cross‐defendant All‐Pro demurs to the first, third, eighth, tenth, eleventh, twelfth, thirteenth and fourteenth causes of action of the cross‐complaint of James S. Caramaza, James A. Caramazza, Jaclyn Carama...

Excerpt: ...ction of documents. Mr. Huckabee was ordered to provide these responses by September 30, 2020 but failed to provide the written discovery to plaintiff. Plaintiff now returns to the court to enforce the prior court order along with seeking monetary sanctions. Alternatively, plaintiff seeks terminating sanctions. The court, at this time, does not find terminating sanctions to be warranted. Such sanctions are a method of last resort when all other o...

Excerpt: ...NORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR JANUARY 28, 2021 AT 8:30 A.M. PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and Motion – Tentative Rulings Page 8 of 11 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. Countrywi...

Excerpt: ...urt, Rule 3.1306(c); Lammers v. Superior Court (2000) 83 Cal.App.4th 1309, 1327, fn. 12.) Ruling on Demurrer The demurrer is sustained with leave to amend. 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 s...

Excerpt: ...e current version of Section 2025.310 has broadened the usage of remote appearances in light of the current pandemic. However, Section 2025.310(d) still requires depositions to meet other statutory requirements, which include “provisions regarding the time, place, or manner in which a deposition shall be conducted.” This is where the interpretation of the parties diverge. Defendant asserts that the identification of the deposition as “remot...

Excerpt: ...l (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 demurrer keeping these principles in mind. First Cause of Action – Wrongful Foreclosure The first cause of action alleges a claim for wrongful foreclosure. A borrower may ass...

Excerpt: ...onal infliction of emotional distress and fourth cause of action for defamation. In order to claim punitive damages, a plaintiff must allege facts that a defendant is guilty of oppression, fraud, or malice. (Civil Code section 3294.) The two claims do not allege fraudulent conduct on the part of defendant Cindy Giove. Thus, fraud is not a basis for punitive damages here. This leaves oppression or malice as a basis for punitive damages. Malice req...

Excerpt: ... Ms. Wenz's declaration that states, “after it was unable to independently determine or locate an active hazard insurance policy.” The remainder of the objection is overruled, which includes overruling the objection to Exhibit 4. Plaintiff's remaining objections are overruled. Ruling on Motion In the current request, defendant Shellpoint seeks either summary judgment or summary adjudication as to the first cause of action for negligence and t...

Excerpt: ...ling on Demurrer Defendant County of Placer (County) demurs to the Second Amended Complaint (SAC) filed by plaintiffs (collectively “TSI”). The SAC requests a refund of the Revenue and Taxation Code section 531.4 interest which was collected by the County. (SAC ¶ 32.) County contends the cause of action seeking recovery of interest is barred by the statute of limitations. TSI argues its claim for interest under section 531.4 is subsumed with...

Excerpt: ...tions may seem. (Del PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR DECEMBER 17, 2020 AT 8:30 A.M. PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and Motion – Tentative Rulings Page 13 of 16 E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) The court reviews the challenged claims keeping these principles in mind. Third Cause of ...

Excerpt: ...T 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR DECEMBER 17, 2020 AT 8:30 A.M. PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and Motion – Tentative Rulings Page 3 of 16 adjudication brought by defendant. Specifically, the current motion seeks to once again challenge plaintiff's causes of action for negligence and breach of the implied covenant. The court declines to consider summary adjudication of these two causes of ac...

Excerpt: ...SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and Motion – Tentative Rulings Page 11 of 16 Ruling on Combined Motion In this combined motion, defendants seek three forms of relief. First, defendants seek to quash service of the summons based upon a lack of jurisdiction. Defendants, however, have made a general appearance through the filing of this motion. They have accepted the jurisdiction of this court over the case. Thusly, the request...

Excerpt: ...tion The motion is denied in its entirety. 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 also move for summary adjudication if that party contends there is no merit to one or more of the causes of action. (Co...

Excerpt: ...e settlement, the court is to give due regard to the parties' agreement, ensuring PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR DECEMBER 10, 2020 AT 8:30 A.M. PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and Motion – Tentative Rulings Page 3 of 6 that the agreement is not a product of fraud, overreaching parties, or collusion and that the settlement,...

Excerpt: ...SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR DECEMBER 10, 2020 AT 8:30 A.M. PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and Motion – Tentative Rulings Page 5 of 6 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 allega...

Excerpt: ...nt. A motion to strike may be granted to strike irrelevant, false, or improper matters in a pleading or to strike a pleading not drawn in conformity with the law. (Code of Civil Procedure section 436(a), (b).) In order to claim punitive damages, a plaintiff must allege facts that a defendant is guilty of oppression, fraud, or malice. (Civil Code section 3294.) A review of the language in the FAC shows that the allegations remain insufficient to s...

Excerpt: ...) Ruling on Request for Judicial Notice CBN's request for judicial notice is granted under Evidence Code section 452. Ruling on Motion The motion is denied. The power of the court to order the disqualification of counsel is statutory. “Every court shall have the power to do all of the following: [¶] … [¶] (5) [t]o control in furtherance of justice, the conduct of its ministerial officers, and all other persons in any manner connected with a...

Excerpt: ...asserts the final extension of time granted to defendant to file a motion to compel was October 30, 2020. In fact, the motion and all of its supporting papers were filed on October 30, 2020. However, from plaintiff's perspective, the motion should be considered untimely because it was not served until several days later, on November 2, 2020. The motion was set for hearing on December 3, 2020, still affording plaintiff ample opportunity to file an...

Excerpt: ...court. PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR DECEMBER 3, 2020 AT 8:30 A.M. PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and Motion – Tentative Rulings Page 3 of 13 Ruling on Request for Judicial Notice Defendants' request for judicial notice is granted under Evidence Code section 452. Plaintiff's request for judicial notice is granted as to t...

Excerpt: ...he evidence was not presented at an earlier time. (Code of Civil Procedure section 1008; Shiffer v. CBS Corp. (2015) 240 Cal.App.4th 246, 255.) Defendant has failed to make such a showing. First, defendant has not made a sufficient showing of new or different facts, circumstances, or law as it pertains to his claims regarding lack of due process. There is no new or different evidence presented that could not have been presented at the time of the...

Excerpt: ...ials 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. A review of the FAC supports her challenge. The first cause of action asserts a claim for breach of contract. The allegations, however, are inconsistent. Plaintiff alleges the parties entered into an oral contract while attaching an exhibit that purports to be written terms of the cont...

Excerpt: ...COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR NOVEMBER 19, 2020 AT 8:30 A.M. PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and Motion – Tentative Rulings Page 17 of 18 Materials Co. (1981) 123 Cal.App.3d 593, 604.) In the current request, defendant challenges the sufficiency of all three causes of action alleged in the complaint. Turning to the first cause o...

Excerpt: ...able 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 elements of a cause of action cannot be established or there is a complete defense to the cause of action. (Id. at PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE R...

Excerpt: ...CHARLES D. WACHOB TENTATIVE RULINGS FOR NOVEMBER 19, 2020 AT 8:30 A.M. PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and Motion – Tentative Rulings Page 8 of 18 plaintiff Stephen Googooian in this action. Bruce Walkup died in 1994. Since then, I have never had any personal, social or other relationship with any attorney or person associated with the Walkup office. I have heard other matters in which attorneys from that office have ...

Excerpt: ...gner Law Firm) between June 16, 2020 and August 7, 2020. The trial court retains jurisdiction to award attorney's fees and costs related to an anti‐SLAPP motion where a dismissal is entered while the motion is pending. (Tourgeman v. Nelson & Kennard (2014) 222 Cal.App.4th 1447, 1456‐1457.) The moving party, however, may only recover fees and costs for legal services related to the anti‐SLAPP motion. (Lafayette Morehouse, Inc. v. Chronicle P...

Excerpt: ...UPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and Motion – Tentative Rulings Page 8 of 11 doctrine of res judicata. Defendant, however, has not sufficiently shown any of these warrants dismissal of the current action. First, the court notes defendant's assertions of lack of jurisdiction are actually claims that Humboldt County has exclusive concurrent jurisdiction over the action. This is not the same as a lack of jurisdiction. Exclusive c...

Excerpt: ...ed “that discovery be considered closed and that only pre‐trial expert discovery related deadlines dates and deadlines shall be calculated based on the new trial date.” Defense counsel Nagano signed and returned the stipulation, which was subsequently approved and filed by the court. Having apparently failed to read the stipulation he signed, Mr. Nagano then demanded that the stipulation be withdrawn as he had not agreed to close discovery....

Excerpt: ...is. First, the court must determine whether the absent party is a necessary party under Code of Civil Procedure section 389(a). (Verizon California Inc. v. Board of Equalization (2014) 230 Cal.App.4th 666, 679.) Once it is determined the absent party is a necessary party, the court turns to the second part of the analysis, i.e. whether the party is also indispensable under Code of Civil Procedure section 389(b). (Ibid.) The court considers four f...

Excerpt: ...n (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 fraud cause of action keeping this in mind. The elements of a fraud claim include (1) a misrepresentation through either false representation, concealment, or nondisclosure; (2) scienter or knowledge of the...

Excerpt: ...pporting declaration. The court declines to grant judicial notice under Section 452(d). This section allows for permissive judicial notice of court records, which refers to documents within the court records. (see Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882.) The ten exhibits are deposition subpoenas issued by opposing counsel, not the court or a court clerk, and there is no record of these docum...

Excerpt: ...alifornia Rules of Court, Rule 2.550(c).) The court may order a record be filed under seal upon express findings of fact that establish: (1) an overriding interest that overcomes the public's right to access, (2) an overriding interest supporting sealing the record, (3) a substantial probability that the overriding interest will be prejudiced if the record is not sealed, (4) the sealing of the record is narrowly tailored, and (5) there are no les...

Excerpt: ...s denied. Ruling on Request for Judicial Notice Defendants' request for judicial notice is granted under Evidence Code section 452. Ruling on Motion The motion is denied without prejudice. In the current request, defendants seek to have plaintiff declared a vexatious litigant under Code of Civil Procedure section 391(b)(2) and (3). These subsections allow for a vexatious litigant determination where the person, acting in pro per, repeatedly attem...

Excerpt: ... of the Elections Code which are clearly inapplicable to the relief they apparently seek. It appears to the court that what petitioners are really seeking is for the court to grant them additional time to gather sufficient valid signatures to place a recall of four directors of the Foresthill Public Utility District on the November 2020 ballot and, in the process, ignore multiple provisions of the statutory elections scheme. As discussed below, t...

Excerpt: ... of 11 Ruling on Demurrer The demurrer is sustained with leave to amend. In the current request, defendants demur to the second, third, fourth, fifth, and sixth causes of action. 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 improbabl...

Excerpt: ...y 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.) Huckabee alleges claims for PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HO...

Excerpt: ...but must also include a copy of the papers upon which the notice is based. (Code of Civil Procedure section 1010; see Weinstein v. Blumberg (2018) 25 Cal.App.5th 316.) Plaintiff's notice of motion, filed on July 15, 2020, provides notice that the motion is based upon a memorandum, separate statement, and supporting declaration. However, these documents were not filed or served until a month after the original notice of motion was filed. Plaintiff...

Excerpt: ... Class certification may be ordered where the moving party demonstrates the existence of an ascertainable and sufficiently numerous class; a well‐defined community of interest; and a substantial benefit from certification rendering a class action superior to other alternatives. (Code of Civil Procedure section 382; Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004, 1021.) After carefully reviewing the second amended complaint an...

Excerpt: ...employment when the physical altercation between Mr. Benton and plaintiff took place. The trial court shall grant a motion for summary PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR SEPTEMBER 3, 2020 AT 8:30 A.M. PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and Motion – Tentative Rulings Page 7 of 12 judgment if “all the papers submitted show that t...

Excerpt: ...159 Cal.App.4th 1292, 1307‐1308.) Ruling on Objections Defendants' objections are overruled. Plaintiff's objections to the length of defendants' memorandum is overruled as the court granted defendants' ex parte application seeking relief to file a lengthy memorandum. Ruling on Motion Defendants assert several grounds for expungement of the lis pendens. First, defendants claim Martin failed to properly serve the Amended Notice of Lis Pendens on ...

Excerpt: ...ontract agreement between plaintiff and defendant JBS Ventures, LLC. 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 by proving, by a preponderance of the evidence, the existence of a valid arbitration agreement. (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972.) Def...

Excerpt: ...; evidentiary sanction; and/or monetary sanctions. The court grants the request for terminating sanctions. The purpose of discovery sanctions is to prevent abuse of the discovery process and correct problems presented. (Do v. Superior Court (2003) 109 Cal.App.4th 1210, 1213‐1214.) It is not a weapon to provide for punishment, forfeiture, or avoidance of trial on the merits. (Ibid.) The imposition of terminating sanctions is generally limited to...

Excerpt: ...ntal disclosure on December 9, 2019. Defense counsel states he was unaware plaintiff had disclosed Lapin as an expert until plaintiff's counsel notified him that same day. Defendants then disclosed expert witness Steven Epcar in a supplemental disclosure the next day. Defendants seek relief from this tardy – by one day – supplemental disclosure of expert witness Epcar. Defendants assert they had no idea plaintiff objected to the untimely disc...

Excerpt: ...ns 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.) Initially, plaintiff concedes the allegations in the second cause of action for violations of the Homeowners Bill of Righ...

Excerpt: ...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 the pleading fails to state sufficient facts to constitute a cause of action. (Code of Civil Procedure section 438(c)(1)(B).) “[J]udgment on the pleadings must be denied where there are m...

Excerpt: ...to sufficiently allege facts that would support punitive damages. Initially, there are insufficient allegations of fraud as the complaint only alleges negligence based upon a motor vehicle collision. Nor does the complaint sufficiently allege oppressive conduct on the part of defendant. Oppression generally refers to despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard to that person's rights. (Civil Code ...

Excerpt: ...cted processing time for civil documents. In light of this, it is unclear whether cross‐complainant was informed of the rejection in a timely manner to resubmit his opposition. The matter is continued to afford cross‐complainant to opportunity to re‐file the opposition. Cross‐complainant Clifton Huckabee shall file his opposition by Tuesday, August 25, 2020. If cross‐complainant fails to file his opposition, the court will proceed to he...

Excerpt: ...especially where defendant has not made a request for judicial notice. Turning to the substance of the demurrer, defendant challenges the entire complaint due to defendant Quasar LLC's failure to register with the California Secretary of State. 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 limited liability corporation (LLC) organ...

Excerpt: ...improbable the allegations may seem. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) The court reviews each cause of action keeping these principles in mind. First Cause of Action – Fraud In the first cause of action, plaintiffs Gabriel Moreno and Josefina Del Rio allege a fraud claim against the moving defendant Keller Williams based upon a theory PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPAR...

Excerpt: ... Cal.App.3d 593, 604.) Plaintiff alleges she was injured while skiing when the snowboarding defendant collided with her. The doctrine of “primary assumption of the risk” limits a defendant's duty of care toward a plaintiff, and for that reason may be challenged by demurrer. (See Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 162–168.) Defendant points to case law holding that risks inherent in skiing fall within the primary ...

Excerpt: ...gment, or in the alternative, Summary Adjudication Preliminary Matters As an initial matter, the court denies plaintiffs' request for a continuance under Code of Civil Procedure section 437c(h). The matter has already been continued PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR JULY 30, 2020 AT 8:30 A.M. PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and...

Excerpt: ...e v. Kroger Co. (2015) 233 Cal.App.4th 390, 396.) The moving party carries this initial burden by proving, by a preponderance of the evidence, the existence of a valid arbitration agreement. (Engalla v. Permanente Medical Group, Inc. (1997) 15 Cal.4th 951, 972.) Aerotek presents sufficient evidence establishing the existence of a valid arbitration agreement between itself and plaintiff. (Petersen declaration, Exhibit E.) However, there is insuffi...

Excerpt: ...r 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 of action. (Code of Civil Procedure section 437c(f)(1).) However, a motion for summary adjudicat...

Excerpt: ...nder well PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR JULY 30, 2020 AT 8:30 A.M. PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and Motion – Tentative Rulings Page 11 of 12 established principles. It tests the legal sufficiency of the pleadings, not the truth of the plaintiff's allegations or accuracy of the described conduct. (Bader v. Anderson (200...

Excerpt: ...tions is denied. Motion to Strike First Amended Complaint Defendants move to strike the first amended complaint filed May 20, 2020, on the grounds that it was filed after the deadline imposed by the court. A motion to strike may be used to strike “all or any part of any pleading not drawn in conformity with the laws of this state, a court rule, or an order of the court.” (Code of Civil Procedure section 436.) The court has discretion to strik...

Excerpt: ...7 Defendant Mid‐Century Insurance Company (“Mid‐Century”) moves for summary judgment, or alternatively summary adjudication of each cause of action alleged by plaintiff. The party seeking summary judgment bears the burden of showing there is no 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.) If the moving party carries its initial...

Excerpt: ...o the parties' agreement, ensuring the agreement is not a product of fraud, overreaching parties, or collusion, and that the settlement as a whole is fair, reasonable, and adequate. (In re Cellphone Fee Termination Cases (2010) 186 Cal.App.4th 1380, 1389; Dunk v. Ford Motor Co. (1996) 48 Cal.App.4th 1794, 1801; 7‐Eleven Owners for Fair Franchising v. Southland Corp. (2000) 85 Cal.App.4th 1135, 1145.) Reasonableness of the settlement may be dete...

Excerpt: ...se 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).) The grounds for the motion must appear on the face of the challenged pleading, or be based on facts which the court may judicially notice. (Code of Civil Procedure section 438(d).) The court may take judicial notice of a defendant's uncontroverted admissions in responses to request for admissions o...

Excerpt: ...gment/adjudication as to the plaintiff's complaint; Omni Structures & Management, Inc.'s cross‐ complaint; and Curtis Beresford's cross‐complaint. 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 also move f...

Excerpt: ...ssue 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 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 ...

Excerpt: ..., 2020 AT 8:30 A.M. Ruling on Objections Cross‐defendants' objections to the Alves declaration nos. 1, 2, 3‐8, 10‐13, 15‐ 17, 22‐42 are sustained. Objections nos., 9, 14, 18, 19, 20 and 21 are overruled. Cross‐complainant Alves submitted a supplemental declaration in reply to the opposition filed by cross‐defendants. The court will not consider this declaration. (Plenger v. Alza Corp. (1992) 11 Cal.App.4th 349, 362, fn. 8; see Nazir...

Excerpt: ...s are sustained in their entirety as new evidence submitted with reply papers, especially in the context of a summary judgment motion, is improper where the opposing party has not had a sufficient opportunity to respond. (Plenger v. Alza Corp. (1992) 11 Cal.App.4th 349, 362, fn. 8.) K. Hovnanian's objections to the A. Maria Plumtree declaration are sustained in their entirety. K. Hovnanian's objections to the Joseph Callanan declaration are susta...

Excerpt: ...ty of perjury in compliance with Code of Civil Procedure section 2015.5. Ruling on Motion The motion is granted. 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).) The moving party bears the initial burden of establishing every element of ...

Excerpt: ... CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR JUNE 18, 2020 AT 8:30 A.M. NOTICE TO ALL PARTIES WHO REQUEST ORAL ARGUMENT: UNLESS OTHERWISE NOTED, ORAL ARGUMENT WILL BE HEARD ON THURSDAY, JUNE 25, 2020 AT 8:30 A.M. stay of proceedings due to defendant filing a bankruptcy action in the Eastern District Federal Bankruptcy Court. Pursuant to 11 U.S.C., §362(a)(1), federal bankruptcy law imposes an automati...

Excerpt: ...equest for contempt. Contempt is a quasi‐criminal proceeding where the alleged contemnor is afforded the same rights as a criminal defendant. (In re M.R. (2013) 220 Cal.App.4th 49, 57.) Initiation of such proceedings requires the submission of an affidavit that sufficiently alleges the grounds for contempt. (Code of Civil Procedure section 1212.) The affidavit is essentially a charging document, framing the issues to be tried. (Reliable Enterpr...

Excerpt: ...ned with leave to amend. 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 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 P...

Excerpt: ...unction preserves the status quo until a final determination on the merits of the pending action. (Casmalia Resources, Ltd. v. County of Santa Barbara (1987) 195 Cal.App.3d 827, 832.) Preliminary injunctions, however, are not causes of action; a cause of action must exist before such injunctive relief may be granted. (Shell Oil Co. v. Richter (1942) 52 Cal.app.2d 164, 168.) The trial court must review two factors prior to issuing a preliminary in...

Excerpt: ...d in a limited civil case, which include title to personal property with an amount that does not exceed $25,000; when equity is pleaded as a defensive matter [pleaded in an answer, counter claim, or cross‐complaint]; and (3) cases to vacate a judgment or order obtained in a limited civil case. (Code of Procedure sections 85, 86(b)(1)‐(3); Strachan v. American Ins. Co. (1968) 260 Cal.App.2d 113, 117.) All other equitable claims are unlimited c...

Excerpt: ...m. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) The court reviews the claims keeping these principles in mind. Looking to the first and second causes of action as to defendant Stephanie Gard, the allegations within the complaint are insufficient to support either breach of contract or breach of fiduciary duty against Mrs. Gard. There are no allegations that Mrs. Gard was a partner. To the contrary, the complaint...

Excerpt: ...aining, and/or supervision. The scope of the current motion is limited in light of this dismissal and is denied as moot as to the fourth cause of action, fifth cause of action, and as to individual claims of plaintiffs Ekaterina Polupan and Demitry Mediucho. Evidentiary Rulings Preliminarily, declarations in support of the motion are required to follow fundamental requirements. While declarations in civil law and motion practice are routine, such...

Excerpt: ..., 12, 13, 14, 15, 16, 17, 18 and 20 are overruled. Defendant's objections nos. 2, 3, 4, 5, 6, 9, 19, 21, 22 and 23 are sustained. Ruling on Motion Defendant European Rocklin, Inc., doing business as Audi Rocklin, seeks summary adjudication against what Audi Rocklin frames as a claim for negligent entrustment alleged in plaintiffs' complaint. The trial court engages in a specific analysis when reviewing a motion for summary adjudication. First, it...

Excerpt: ...tion includes (1) the county where the agreement was made or is to be performed; (2) the county where any party to the court proceeding resides or has a place of business; and (3) any county in the state. Petitioner's corporate headquarters are located in Placer County and petitioner executed the agreement in Placer County. These facts provide the court with both jurisdiction and venue over the current petition. Turning to the substance of the re...

Excerpt: ... before the court with a unique posture. The motion is aimed at the original notice of lis pendens and the original complaint, neither of which is operative at this juncture. Plaintiff filed an unverified first amended complaint on February 3, 2020, followed by an amended notice of lis pendens filed on February 28, 2020. To further complicate matters, defendants insist that the first amended complaint should not be considered and the motion shoul...

Excerpt: ... Civil Procedure section 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 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 fac...

Excerpt: ...on. (Code of Civil Procedure section 1290; Mercury Ins. Group v. Superior Court (1998) 19 Cal.4th 332, 349.) Ruling on Motion The motion is denied. In the current request, Hilt seeks to compel arbitration between the parties based upon the arbitration provision found in the parties' residential purchase agreement (RPA). A threshold question for any motion to compel arbitration is whether there exists an agreement to arbitrate. (Cruise v. Kroger C...

Excerpt: ...ful anti‐ SLAPP motion. 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 defendant challenging a complaint must show either (1) the court has no PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE ...

Excerpt: ... A.M. PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and Motion – Tentative Rulings Page 4 of 16 with the defendants. The dispute is in the amount of fees that should be awarded in this instance. Determining the reasonable amount of attorney's fees begins with the lodestar method, i.e. the number of hours reasonably expended multiplied by the reasonable hourly rate. (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095; Serrano v. Pri...

Excerpt: ...he 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 complaint and its three pleaded causes of action are reviewed keeping this in mind. �...

Excerpt: ...iff'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.) A review of the complaint shows that it suffers from significant pleading deficiencies. The complaint does not identify causes of action, making unclear claims of discriminatory a...

Excerpt: ...omply with the court's prior order entered on June 14, 2019. Initially, the court declines to plaintiff's request for terminating sanctions or monetary sanctions. Terminating sanctions are an extreme sanction for those cases where misuses of the discovery process are so pervasive that a less drastic sanction will not sufficiently address the discovery derelictions. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 796‐797.) The purpose of discovery ...

Excerpt: ... objections, which included objections to RPD no. 4. From April 2019 through October 2019, the parties engaged in a significant informal discussion regarding the scope of discovery. During this meet and confer process, the parties agreed to limit the scope of RPD no. 4 to “dental records for patients whose treatment was billed to Denti‐Cal from March 11, 2015 to June 13, 2016 for the following dental procedures that are identified in the comp...

Excerpt: ...d an opportunity to respond. (Plenger v. Alza Corp. (1992) 11 Cal.App.4th 349, 362, fn. 8.) Ruling on Objections Defendants' objections nos. 1 through 3 are sustained in their entirety. Plaintiff's objection and request for continuance of the motion is denied. Code of Civil Procedure section 437c(h) allows for a party to seek a continuance to obtain discovery. The party seeking such a continuance must make a good faith showing, by affidavit, to e...

Excerpt: ...e 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).) Here, defendant seeks to strike various allegations within paragraph 10 of the complaint that refer to negligence per se presumptions along with presumed statutory violations of Business & Professions Code section 725 and 1680. The court has carefully...

Excerpt: ...erit to one or more of the causes of action. (Code of Civil Procedure section 437c(f)(1).) However, a motion for summary adjudication shall only be granted where it completely disposes of a cause of action. (Ibid.) The moving party bears the initial burden of establishing every element of the cause of action. (Id. at 437c(p)(1).) Only when this initial burden is met does the burden shift to the opposing party to establish a triable issue of mater...

Excerpt: ...Ins. Services, Inc. v. Gaddy (2009) 159 Cal.App.4th 1292, 1307‐1308.) Ruling on Motion In the current motion, plaintiff seeks leave to amend her original complaint to include additional defendants along with adding allegations regarding punitive damages. Plaintiff's request is granted as to the naming of additional PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR JAN...

Excerpt: ... 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.) All properly pled 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 complaint keeping these principles in mind....

Excerpt: ...in defendant being unable to amount any defense against plaintiff's action. Practically speaking, all three of these requests seek terminating sanctions. The imposition of terminating sanctions is generally limited to extreme cases of discovery misuses that are so pervasive a less drastic sanction will not sufficiently address the discovery derelictions. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 796‐797.) In light of the extreme effect of te...

Excerpt: ...R COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR JANUARY 9, 2020 AT 8:30 A.M. action for injunctive relief. The court file, however, does not reflect plaintiffs have dismissed the third and fourth causes of action. In light of defendant's framing of his demurrer, the court will only address the challenge to the first cause of action for prescriptive easement and second cause of action for ...

Excerpt: ...tion of the state judicial proceeding to collect on a claim against the debtor. (Eskanos & Adler, P.C. v. Leetien (9th Cir. 2002) 309 F.3d 1210, 1214.) Since the automatic stay is selfexecuting and effective upon the filing of a bankruptcy petition, it was improper for the judgment to be entered in this case. (In Re Marriage of Sprague & Spiegel‐Sprague (IRMO Sprague) (2003) 105 Cal.App.4th 215, 219.) The default judgment, entered on April 3, 2...

Excerpt: ...TION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR SEPTEMBER 26, 2019 AT 8:30 A.M. NOTICE TO ALL PARTIES WHO REQUEST ORAL ARGUMENT: UNLESS OTHERWISE NOTED, ORAL ARGUMENT WILL BE HEARD ON THURSDAY, OCTOBER 3, 2019 AT 8:30 A.M. IN DEPARTMENT 42. PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and Motion – Tentative Rulings Page 3 of 7 is generally limited to extreme cases of discovery misuses that are so pervasive...

Excerpt: ...ure section 430.10(e).) 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 cross‐ complaint is reviewed keeping this...

Excerpt: ...ction 452. Plaintiff's request for judicial notice, filed on September 3, 2019, is denied. Ruling on Motion In the current motion, plaintiff seeks an injunction to prevent defendants from foreclosing on the property subject to this litigation. The motion is denied. A preliminary injunction may be issued where it appears from the complaint that the plaintiff is entitled to the demanded relief and the plaintiff will suffer irreparable injury if the...

Excerpt: ...ally set trial date. Such an interpretation would be inconsistent with the overall purpose of Section 437c to dispose of meritless claims. (Green v. Bristol Myers Co. (1988) 206 Cal.app.3d 604, 609.) The court shall proceed to consider the merits of the motion. /// PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR SEPTEMBER 5, 2019 AT 8:30 A.M. PLACER SUPERIOR COURT –...

Excerpt: ...tion 452.) Ruling on Motion In the current request, plaintiffs seek the issuance of a preliminary injunction to prohibit defendant from removing improvements they made to an encroachment area. A preliminary injunction may be issued where it appears from the complaint that the plaintiff is entitled to the demanded relief and the plaintiff will suffer irreparable injury if the enjoined action were allowed to proceed. (Code of Civil Procedure sectio...

Excerpt: ...on. (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. 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)...

Excerpt: ...(Code of Civil Procedure section 430.10(e).) Further, a challenge PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR SEPTEMBER 5, 2019 AT 8:30 A.M. PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and Motion – Tentative Rulings Page 14 of 15 that a cause of action is barred by res judicata is available by demurrer if that ground appears on the face of the com...

Excerpt: ...limited to extreme cases of discovery misuses that are so pervasive a less drastic sanction will not sufficiently address the discovery derelictions. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 796‐797.) In light of the extreme effect of terminating sanctions, courts do not impose such a sanction lightly. The totality of the circumstances surrounding the discovery violations are considered when ordering terminating sanctions: (1) whether the p...

Excerpt: ...ure §437c(c).) The trial court engages in a specific analysis when reviewing a motion for summary judgment. First, it must define the scope of the motion by looking to the operative pleading. The pleadings serve as the “outer measure of materiality” for a motion for summary judgment in addition to determining the scope of the motion. (Government Employees Ins. Co. v. Superior Court (2000) 79 Cal.App.4th 95, 98; Laabs v. City of Victorville (...