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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ... 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: ...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: ...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: ...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...