Excerpt: ...ns Plaintiff's objections are overruled in their entirety. Defendants' objections are overruled in their entirety. Ruling on Motion The motion for summary judgment is denied. 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...

Excerpt: ...e August 12, 2018 email to plaintiff's counsel; (2) destroy all forms of copies within the possession of defendants; and (3) limit defendants' ability to question Mr. Auger regarding the email. Plaintiff clarifies in his moving papers that he seeks an order precluding defendants “from asking any questions (interrogatories or deposition) on the subject of the August 12th email, including Mr. Auger's transmission of the attachment thereto.” (Pl...

Excerpt: ...al factual issues that require evidentiary resolution.” (Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216.) A review of the complaint shows that each of the common counts causes of action are sufficiently pleaded. The same is not true for defendant's answer, which essentially admits to the indebtedness in paragraph 5. Since defendant is not able to plead facts supporting a defense to the common counts claims, the motion is g...

Excerpt: ...d under well established principles. The challenge 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.) Furthermore, the failure to ple...

Excerpt: ...otion – Tentative Rulings Page 17 of 23 PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR NOVEMBER 21, 2019 AT 8:30 A.M. Ruling on Motion The motion is denied without prejudice. A party may be declared a vexatious litigant under the following circumstances: (1) the person, acting in pro per, has filed five or more actions within the last seven years that were either a...

Excerpt: ...al 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 cannot be established or there is a compl...

Excerpt: ...med at these defendants. 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 PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Ci...

Excerpt: ...stitute a cause of action. (Code of Civil Procedure section 438(c)(1)(B).) “[J]udgment on the pleadings must be denied where there are material factual issues that require evidentiary resolution. (Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216.) The court reviews the motion keeping these principles in mind. Defendant challenges all four causes of action asserting, among other things, each claim is deficiently pleaded. A re...

Excerpt: ...n 438(c)(1)(B).) “[J]udgment on the pleadings must be denied where there are material factual issues that require evidentiary resolution. (Schabarum v. California Legislature (1998) 60 Cal.App.4th 1205, 1216.) The court reviews the motion keeping these principles in mind. Defendants challenge all six causes of action asserting, among other things, that the claims are barred by the statute of limitations along with lacking the level of specifici...

Excerpt: ...BOATRIGHT, CHARLENE v. GONZALEZ, EFRAIN MOSQUEDA, OPHELIA v. GONZALEZ, EFRAIN ROSE, AMY v. GONZALEZ, EFRAIN BRELFORD, VIRGINIA v. GONZALEZ, EFRAIN BASILEU, JANET v. GONZALEZ, EFRAIN RODRIGUEZ, SARAI v. GONZALEZ, EFRAIN SOMERS, LUCY v. GONZALEZ, EFRAIN MUNOZ, DULCE v. GONZALEZ, EFRAIN BROADWAY, REBECCA v. GONZALEZ, EFRAIN ARAKELYAN, GOHAR v. GONZALEZ, EFRAIN ADAME, ULISES v. GONZALEZ, EFRAIN FRANCO, SNA v. GONZALEZ, EFRAIN LAVOW‐DAVIS, PATRICIA ...

Excerpt: ...ies to informally meet and confer in good faith prior to setting matters for hearing. Ruling on Request for Judicial Notice Defendant's request for judicial notice is granted under Evidence Code section 452. Ruling on Motion The motion is granted with leave to amend. 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 laws of the state or an ord...

Excerpt: ...f filed a partial satisfaction of judgment on February 8, 2016, after defendant was purportedly deceased. The proof of service for the current motion then shows plaintiff served defendant, who plaintiff claims is deceased, by mail at an address in Granite Bay, California. Further, plaintiff provides little legal authority to support the motion or the ability to vacate a judgment where a partial satisfaction has been filed. Finally, the declaratio...

Excerpt: ...s, set one, are deemed admitted as to defendant Michele Laudon. Sanctions in the amount of $60.00 are imposed on defendant Michele Laudon pursuant to Code of Civil Procedure section 2033.280(c). /// PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR AUGUST 29, 2019 AT 8:30 A.M. PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and Motion – Tentative Rulings Pa...

Excerpt: ...es 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 party's conduct was wil...

Excerpt: ...as been described as follows: “ ‘Sometimes, the exchange reveals that one party plans to call experts on subjects the opposing party assumed would not require expert testimony. In such cases, the opposing party has the right to supplement its expert witness exchange by adding experts to cover subjects on which the other party indicates it plans to offer expert testimony, and on which the opposing party has not previously retained an expert to...

Excerpt: ... 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 §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...

Excerpt: ...Net Proceeds Remaining from the Partition Sale The court determines the net proceeds remaining after the sale of the Granite Bay property is $161,536.56, which includes an unendorsed check for $6.30. The parties are instructed to both endorse this check within five days of service of the signed order after hearing. /// PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR A...

Excerpt: ...s demurrer is before the court largely because defense counsel would not respond to numerous attempts by plaintiff's counsel to meet and confer. The declaration of plaintiff's counsel shows he made over a dozen attempts by email or phone to confer with defense counsel to discuss a demurrer. However, plaintiff's counsel never could cajole or extract any substantive response from defense counsel. Thus, what should have been subject to a meaningful,...

Excerpt: ... action. (Code of Civil Procedure section 430.10(e).) The court “gives the complaint a reasonable interpretation, and treats the demurrer as admitting all material facts properly pleaded.” (Aubry v. Tri‐ City Hospital District (1992) 2 Cal.4th 962, 966‐967; see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) When reading the complaint to give it a reasonable interpretation, the court is reading the pleading in context. (Schifando v. City...

Excerpt: ...aw and Motion – Tentative Rulings Page 3 of 15 Ruling on Motion The motion is denied. 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 §437c(c).) The trial court engages in a specific analysis when reviewing a motion for summary judgment. First, it mus...

Excerpt: ...cience Associates (“ESA”), or subconsultants Tully & Young, Fehr & Peers, West Yost and Civil Engineering Solutions (collectively “subconsultants”), relating or referring to the Project, from January 1, 2013 through December 12, 2017; and (2) documents relating to any meeting or discussion between Richland, ESA, and the subconsultants. Petitioners further request that they be permitted to serve subpoenas for business records on ESA and th...

Excerpt: ...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. Anderson (2009) 179 Cal.App.4th 775, 787.) For the purposes of a demurrer, the al...

Excerpt: ...tion 452.) Ruling on Motion PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR AUGUST 8, 2019 AT 8:30 A.M. NOTICE TO ALL PARTIES WHO REQUEST ORAL ARGUMENT: ORAL ARGUMENT WILL BE HEARD ON THURSDAY, AUGUST 15, 2019 AT 8:30 A.M. IN DEPARTMENT 42. PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and Motion – Tentative Rulings Page 15 of 23 In the current request,...

Excerpt: ...42 Thursday Civil Law and Motion – Tentative Rulings Page 10 of 19 noneconomic damages for physical pain. The jury awarded plaintiff Eva Vesely $4,668.08 for economic damages for her past medical expenses; $1,375 for past noneconomic loss for physical pain; and $0 for future noneconomic damages for physical pain. Plaintiffs contend a new trial should be granted because (1) the damages awarded are inadequate; and (2) because the verdict is again...

Excerpt: ...on should not have been submitted for public filing. The minor has no primary role in this litigation; the circumstances of any alleged abuse of the minor are tangential, at best, to this action. The public has limited, if any, interest in or need for knowledge of these tangential issues involving the minor child. Whereas, there is an overriding interest to protect the health and well‐being of this child from any harassment, embarrassment, psyc...

Excerpt: ...are overruled. Ruling on Motion Campus Oaks Apartments 1, LLC (“COA”), Scott Canel (“Canel”) and the Scott I. Canel 2011 Family Trust (“Canel Trust”) move for summary adjudication as to the first, fourth and sixth causes of action alleged by defendant and crosscomplainant BBC Roseville Oaks, LLC (“BBC”) in its cross‐complaint. A defendant may move for summary adjudication if it contends that there is no merit to one or more caus...

Excerpt: ...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.) It is worth noting defendants failed to sufficiently challenge each cause of action within the FAC, limiting its moving papers to only the second and third causes of action. The attempt to include the first cause of ac...

Excerpt: ...ing, at a minimum, of a notice of hearing on any motion; the motion itself; and a memorandum in support of the motion. (California Rules of Court, Rule 3.1112(a).) The court file and defendants' proof of service show defendants failed to file and serve a notice of motion and a memorandum in support of this request. The failure to include these documents is fatal. Defendant has not been afforded proper notice of the motion and the court is unable ...

Excerpt: ...rther, it is noted plaintiff filed a notice of intent to appear at oral argument on July 9, 2019. This is an improper method to request oral argument. Plaintiff is referred to Placer Court Local Rule 20.2.3 for more information regarding the proper method to request oral argument in civil law and motion PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR JULY 11, 2019 AT ...

Excerpt: ...ction. (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 improbable the allegations may seem. (Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 604.) The demurrer is rev...

Excerpt: ...ate facts sufficient to constitute a cause of action. (Code of Civil Procedure section 430.10(e).) “A demurrer based on a statute of limitations is appropriate if the ground 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.) A demurrer tests the legal sufficiency of the pleadings, not the truth of the plaintiff's allegatio...

Excerpt: ... by the Social Security Administration. Mr. Fraidenburgh now seeks to terminate his appointment, without appointing a new GAL, contending plaintiff is competent to handle his own affairs. The request, however, suffers from a complete lack of admissible evidence to support his removal as GAL. First, Mr. Fraidenburgh fails to submit any declarations executed under the penalty of perjury. Second, none of the documents submitted are properly authenti...

Excerpt: ...vil Procedure section 473(b) with defendant claiming either excusable neglect or surprise in his failure to consider the offer. After carefully considering the briefing of the parties, the court denies defendant's request. Initially, the extension of Section 473(b) relief here does not appear proper. The section allows the court to relieve a party “from a judgment, dismissal, order, or other proceeding taken against him or her through his or he...

Excerpt: ...de of Civil Procedure section 128(a)(3) and (5) to compel Ms. Finnerty to produce his client file. While there is some case law and statutory authority to support the proposition that the court may grant the relief requested, the motion will be denied. First, the California Code of Professional Conduct already requires an attorney upon termination of representation to promptly release to the client, at the request of the client, all client materi...

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: ..., 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: ...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: ...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: ... 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: ...– 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: ...il such time as plaintiff provides a sufficient legal analysis and supporting evidence to address the following issues: Standard of Review for PAGA Claim Settlement Purporting to cite to Labor Code section 2699(l), plaintiff contends the court's review of the PAGA settlement is limited to a review of the penalties sought in the agreement. (Plaintiff's motion p. 1:14‐21.) This is a complete mischaracterization of the section. The actual language...

Excerpt: .... This is because a motion for summary judgment under Code of Civil Procedure section 437c may not be brought in a class action involving a CRLA claim. (Civil Code section 1781(c).) The proper method for challenging a CRLA claim is to file a motion for a no‐merit determination. (Civil Code section 1781(c)(3); Princess Cruise Lines, Ltd. v. Superior Court (2009) 179 Cal.App.4th 36, 41‐42.) Practically speaking, there is no difference in the an...

Excerpt: ...tion to Enforce the Settlement Agreement…upon which entry of Judgment was based…” Hintz submits his own declaration expressly stating, under penalty of perjury, that he had only retained his prior attorney Ulises Pizano‐Diaz “for an isolated matter unrelated to the instant lawsuit”. (Hintz declaration ¶7.) This statement is clearly untrue in light of the email string provided by plaintiff's counsel. PLACER COUNTY SUPERIOR COURT THURS...

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: ...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: ....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: ...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: ... 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: ... 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: ...bed 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 complaint keeping these principles in mind. The complaint does not identify the causes of action brought against the defendants in either the caption of the...

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: ...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: ...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: ...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: ...chool (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.) 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...

Excerpt: ...m. (In re Emery's Estate (1962) 199 Cal.App.2d 22.) The current guardian ad litem cannot simply withdraw from the action. He must bring a noticed motion and request a hearing seeking to withdraw along with discussing why a new guardian ad litem should not be appointed. (Ibid.) The court declines to consider any filings by plaintiff until such time as the issues surrounding the appointed guardian ad litem have been properly addressed. PLACER COUNT...

Excerpt: ...sor's website. Defendant Sero Amusement Company (Sero) objects to the entirety of these documents as either (1) having an improper showing the documents were actually recorded, (2) inadmissible hearsay, and (3) improper foundation. None of these objections are well taken. The recorded documents submitted to the court include certifications from the Placer County Clerk‐Recorder's Office, sufficiently establishing they were recorded. While Sero i...

Excerpt: ... Tentative Rulings Page 3 of 30 expert witness whom that party has subsequently retained. (Code of Civil Procedure section 2034.610.) The court looks to several factors when considering the motion, which include whether the moving party will be prejudiced by the amendment. (Code of Civil Procedure section 2034.620.) Initially, defendants have made a sufficient showing to support the need to amend their expert witness disclosure based upon the abr...

Excerpt: ...ils to submit a sufficient declaration showing Turner was properly served PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR APRIL 18, 2019 AT 8:30 A.M. PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and Motion – Tentative Rulings Page 4 of 30 written discovery for this litigation. Furthermore, Turner has presented sufficient evidence to contradict proper s...

Excerpt: ...d the opposition papers plaintiff filed to the ex parte application on March 22, 2019. Ruling on Defendant's Request to Present Oral Testimony On April 5, 2019, defendant filed a “Notice of Intention to Introduce Oral Testimony at hearing to Disqualify Counsel”. Defendant failed to submit an application seeking the introduction of oral testimony as required under California Rules of Court, Rule 3.1306. Further, the notice fails to sufficientl...

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...

Excerpt: ...uests on the grounds that the responses do not comply with Code of Civil Procedure section 2031.230. With respect to the production of documents, the motion is denied as moot. In opposition to the motion, the City represents that the subject documents were produced on January 17, 2019, the same date this motion was filed. Plaintiffs concede that the documents have now been produced. With respect to the wording of the City's responses, the motion ...

Excerpt: ...on. Second, there is no proof of service in the file demonstrating defendant has been properly served. It is noted service under Code of Civil Procedure section 415.10 et seq. is required since the court file does not reflect defendant has been served with the summons and complaint. Third, it is unclear whether plaintiff has the capacity to bring the current motion. According to the allegations in the complaint, the plaintiff in this action is Li...

Excerpt: ...irectly by plaintiff in a case where the court has appointed a guardian ad litem for him. Plaintiff cannot file motions on his own behalf until such time as the court approves the withdrawal of the guardian ad litem. (In re Emery's Estate (1962) 199 Cal.App.2d 22.) The current guardian ad litem cannot simply withdraw from the action. He must bring a noticed motion and request a hearing seeking to withdraw along with discussing why a new guardian ...

Excerpt: ...der Section 437c(b)(1). Ruling on Request for Judicial Notice Defendant's initial request for judicial notice and supplemental request for judicial notice are both granted under Evidence Code section 452. Indeed, judicial notice of such court records is mandatory under Evidence Code section 453 where the party makes a timely request, giving all adverse parties and the court sufficient notice to permit a response to it. (See 2 Jefferson's Californ...

Excerpt: ...il Law and Motion – Tentative Rulings Page 4 of 7 The motion is granted. Civil Code section 3426.4 allows a prevailing party to recover attorney's fees where a misappropriation claim is made in bad faith. A determination of bad faith, for the purposes of Section 3426.4, is made where the moving party establishes both (1) objective speciousness of the claim and (2) subject bad faith in bringing or maintaining the action. (Cypress Semiconductor C...

Excerpt: ... defendants proffer a position where plaintiffs did not make the vehicle substantively available for inspection. In presenting their papers, defendants do not appear to mention an August 24, 2018 ex parte application where defendants sought similar relief to what is requested in the current motion. At that time, plaintiffs filed an opposition framing the request as seeking a second inspection. The court denied the ex parte application but informe...

Excerpt: ...ibits A, B.) Defendant, however, has not sufficiently established the existence of a forum selection clause between the parties. Defendant submits a digital acceptance screenshot, stating it reflects plaintiff's acceptance of the agreement. (Id. at Exhibit B.) Neither the agreement nor the digital acceptance screenshot specifically identify plaintiff. (Ibid.) For his part, plaintiff submits a declaration stating his relationship with defendant be...

Excerpt: ... representation that the corporation will take steps to remedy the suspension of its corporate status. (Green declaration ¶5.) The court declines to dismiss the action so as to afford the corporation time to revive its corporate status. Plaintiff shall provide an update to the court on the revivor of Mountain Counties Plumbing's corporate status, in addition to further information regarding plaintiff's pending bankruptcy, at the June 11, 2019 ca...

Excerpt: ...aration or declaration stating the moving party contacted the deponent inquiring about the nonappearance. In the current request, plaintiff seeks to compel the attendance of defendant's PMK – along with the production of various documents – based upon the failure of the PMK to appear for the January 14, 2018 deposition. Plaintiff has not made a sufficient showing under Section 2025.450(b)(2) that he contacted defendant to inquire about the no...

Excerpt: ...gs Page 2 of 8 Ruling on Motion A motion for summary judgment in an unlawful detainer action may be brought at any time after the answer is filed upon five days notice. (Code of Civil Procedure section 1170.7.) A party is entitled to bring a motion for summary judgment where there are no triable issues of fact. (Code of Civil Procedure section 437c.) The party seeking summary judgment bears the burden of showing there is no triable issue of mater...

Excerpt: ...d separately. Request to File Third Amended Answer A party may seek leave to amend its pleading at any time prior to the commencement of trial and upon any terms that may be just. (Code of Civil Procedure sections 473(a)(1), 576.) Courts generally exercise liberality in permitting amendments to pleadings, especially for answers where the denial may amount to permanently depriving the defendant of a defense. (Hulsey v. Koehler (1990) 218 Cal.App.3...

Excerpt: ...ond. (see Lieberman v. Aetna Ins. Co. (1967) 249 Cal.app.2d 515, 523‐524.) The mistake must also be reasonable and justifiable. (Anderson v. Sherman (1981) 125 Cal.App.3d 228.) In this instance, defendants submit a single sentence statement in support of their request, “Did not receive denial of fee waiver.” This conclusion is insufficient to establish a material mistake to afford relief under Section 473(b). A review of the court file show...

Excerpt: ...ition is wrong or to arrive at a solution without involving the court. Defendant's motion seeks to compel further responses to a single RPD, RPD no. 27. The RPD requests the following: All DOCUMENTS, including, medical and psychological reports and records, prepared by House Psychiatric Clinic, Inc., which reflect, memorialize, refer to, or otherwise RELATE TO any treatment, opinion, or diagnosis of YOUR purported injuries alleged in the COMPLAIN...

Excerpt: ...pplemental declaration of Jolita Mikuleniene is not properly executed under Code of Civil Procedure section 2015.5 as the declaration is not executed under the penalty of perjury under the laws of the State of California. Defendant's motion for summary judgment or, in the alternative, summary adjudication is continued to March 28, 2019 at 8:30 a.m. in Department 42. Defendant may submit an amended declaration, properly executed under Code of Civi...

Excerpt: ...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 §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 summar...

Excerpt: ...l interrogatories, set one; and (3) request for production of documents, set one, by March 29, 2019. The request is denied as to the request for admissions. Defendant has made a sufficient showing that responses have been provided to plaintiff. PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR MARCH 7, 2019 AT 8:30 A.M. PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday C...

Excerpt: ...de of Civil Procedure section 526(a).) The plaintiff has the burden of showing he/she would be harmed if the preliminary injunction were not granted. (Casmalia Resources, Ltd. v. County of Santa Barbara (1987) 195 Cal.App.3d 827, 838.) Plaintiff has not made a sufficient showing of either harm or his ability to prevail on the claims within the complaint. To reiterate, it is plaintiff that bears the burden here. He must first establish the balanci...

Excerpt: ...ndings 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 PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR FEBRUARY 28, 2019 AT 8:30 A.M. PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and ...

Excerpt: ... Defendant filed its answer without retaining counsel, which is improper. For these reasons, the motion is granted. Defendant KD Homebuyers, Inc.'s answer, filed on May 8, 2018, is stricken. All related trial dates are vacated. A case management conference is set for April 2, 2019 at 10:00 a.m. in Department 40. Plaintiff shall request entry of default as to the defendant prior to the hearing ...

Excerpt: ... granted to strike irrelevant, false, or improper matters in a pleading; or to strike a pleading not drawn in conformity with the laws of the state or an order of the court. (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 judicially noticeable documents show defendant's corporate status is ...

Excerpt: ...laint is uncertain. (Code of Civil Procedure section 430.10(f).) 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.) In the...

Excerpt: ... COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR FEBRUARY 28, 2019 AT 8:30 A.M. PLACER SUPERIOR COURT – DEPARTMENT 42 Thursday Civil Law and Motion – Tentative Rulings Page 3 of 14 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 thi...

Excerpt: ...complaint is uncertain. (Code of Civil Procedure section 430.10(f).) 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.) PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHARLES D. WACHOB TENTATIVE RULINGS FOR FEBRUARY 28, 2019 AT 8:30 A.M. PLACER SUPERIOR COURT – DEP...

Excerpt: ...ows plaintiff was served on February 7, 2019. This provided only fourteen days notice, making notice insufficient. Second, defendant did not properly serve the motion on defendant. Code of Civil Procedure section 1013(e) allows the parties to serve by facsimile transmission where “the parties agree and a written confirmation of that agreement is made”. Defendant's proof of service shows service on plaintiff by facsimile transmission but does ...

Excerpt: ...edural requirements of California Rules of Court, Rule 3.350. Further, plaintiffs failed to make a sufficient showing to warrant consolidation of the two actions, which stem from separate vehicle collisions. This second motion continues to suffer from procedural and substantive deficiencies. Initially, the court notes this motion was filed on January 24, 2019, on the same date as the hearing on the original motion. Plaintiffs do not address wheth...

Excerpt: ...te the fact that the court only compelled further responses to request for admissions, set one, nos. 1, 2, and 4‐ 10. Plaintiff applies a tenuous interpretation of the court's prior order. It is an impractical interpretation to assume defendants were to respond to all of form interrogatory no. 17.1 where the further responses to the corresponding request PLACER COUNTY SUPERIOR COURT THURSDAY, CIVIL LAW AND MOTION DEPARTMENT 42 THE HONORABLE CHA...

Excerpt: ...itted 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 adjudication shall only be granted where it completel...

Excerpt: ... not as a result of disclosure of expert witnesses under Code of Civil Procedure section 2034.430. If Mr. McPartland is not considered an expert as defined by Code of Civil Procedure section 2034.430(a) at the time his deposition was taken, the court asks counsel to address what statutory authority governs the payment of Mr. McPartland's deposition fees. The court will grant counsel leave to file supplemental memoranda on this issue if requested....

Excerpt: ...w trial and/or vacate judgment did not comport with the requirements of either Code of Civil Procedure sections 659 or 663a. There was also no valid proof of service in the file showing plaintiff had served defendant with the purported motion and the motion was denied by operation of law under Sections 660 and 663a. Plaintiff provides no legal basis for the court to consider this second motion for new trial. Further, plaintiff's current motion fa...

Excerpt: ...contend no further discovery should be allowed until such time as plaintiff makes an evidentiary showing to warrant a broader scope of discovery. This limitation on discovery is improper in light of the California Supreme Court's opinion in Williams v. Superior Court (Marshall's of CA, LLC) (2017) 3 Cal.5th 531. The Williams case makes clear broad discovery is allowed in PAGA actions, generally rejecting a heightened burden of proof requirement b...

Excerpt: ...dant was seriously ill or feeble may be presented to support a claim for excusable neglect. (see Kesselman v. Kesselman (1963) 212 Cal.App.2d 196, 207‐208.) Defendant's supporting declaration sufficiently establishes he suffers from a serious illness excusing the neglectful conduct, which resulted in the entry of the default and default judgment. For these reasons, the motion is granted. The request for default and default judgment, both entere...