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: ... 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...