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: ... p. 4.) A proof of service of summons filed April 9, 2010, states that Hoehn was served by substituted service on “Shannon Smith, Girlfriend – Co‐Occupant” on April 1, 2010, after several unsuccessful attempts. A declaration of mailing states that the summons and complaint were mailed to the service address on April 2, 2010. No answer was filed within the time required by law, and Hoehn's default was entered on May 18, 2010. Hoehn moves t...

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: ...el arbitration is whether there exists an agreement to arbitrate. Cruise v. Kroger Co. (2015) 233 Cal.App.4th 390, 396. It is the moving party that 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. Petitioners meet their burden here. The court disagrees with plaintiff's contention that her claim for speci...

Excerpt: ...ion 533, an injunction may be modified or dissolved upon a showing that there has been a material change in the facts upon which the injunction was granted, that the law has changed, or that the ends of justice would be served by modification or dissolution. An injunction may be granted when it appears that the plaintiff is entitled to the demanded relief, and that plaintiff would suffer irreparable injury if the enjoined action 4 were allowed to...

Excerpt: ... Civil Procedure sections 12 and 12a. Ruling on Motion In the current motion, defendants seek judgment notwithstanding the jury's verdict in favor of plaintiff. They also seek the alternative relief of a new trial. The court will address each request separately. Judgment Notwithstanding the Verdict (JNOV) The authority to review a JNOV motion is proscribed by statute. “The court, before the expiration of its power to rule on a motion for new tr...

Excerpt: ... LLC's (“SNP's”) prior motion to enforce, as well as a proposed judgment thereon. The court's ruling did not provide further 3 direction on the contents of the proposed judgment. Subsequent to this action, on March 16, 2020, the court entered a modified ruling on submitted matter and judgment thereon. SNP now moves to vacate the March 16, 2020 judgment (“the Judgment”) pursuant to Code of Civil Procedure section 663. In its reply brief, S...

Excerpt: ...McNally”) moves for summary judgment as to plaintiffs' cause of action for negligent misrepresentation. 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 burden of production to make a prima facie showing that there are no tria...

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: ...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: ... 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: ...ddresses a conflict between a party's right to choose its counsel and the overall needs of the judicial system to maintain ethical standards of professional responsibility for attorneys. Comden v. Superior Court (1978) 20 Cal.3d 906, 915; People ex rel. Dept. of Corrections v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1145 (SpeeDee Oil). “The paramount concern must be to preserve public trust in the scrupulous administration of j...

Excerpt: ...031.300(c). However, repeated conduct of failing to comply with discovery obligations may lead the court to find an abuse of the discovery process and award sanctions on that basis. Laguna Auto Body v. Farmers Ins. Exchange (1991) 231 Cal.App.3d 481, overruled on other grounds in Garcia v. McCutchen (1997) 16 Cal.4th 469, 478, fn. 4. Farmers Insurance Exchange's Motion to Compel Responses to Special Interrogatories Farmers Insurance Exchange's mo...

Excerpt: ...ruled. Ruling on Motion Plaintiff Barbara Farinha moves for preliminary approval of class action settlement. The court has broad discretion in determining whether (1) a settlement is fair and reasonable, (2) the class notice is adequate, and (3) certification of the class is proper. In re Cellphone Fee Termination Cases (2010) 186 Cal.App.4th 1380, 1389; Wershba v. Apple Computer, Inc. (2001) 91 Cal.App.4th 224, 234‐235. 8 “[The] preliminary ...

Excerpt: ... discovery motion, and the reasons that the discovery was not completed or that the discovery motion was not heard earlier; (3) the likelihood that permitting the discovery or hearing the discovery motion will prevent the case from going to trial on the date set, or otherwise interfere with the trial calendar, or result in prejudice to any other party; and (4) the length of time elapsed between the date previously set, and the date presently set,...

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: ...'s motion to compel is granted in part, and denied in part, as follows: 9 Defendant's motion to compel further responses to Form Interrogatories Nos. 6.4, 6.5 and 6.7 is granted. Responses to interrogatories must be “as complete and straightforward as the information reasonably available to the responding party permits. If an interrogatory cannot be answered completely, it shall be answered to the extent possible.” Code Civ. Proc. § 2030.220...

Excerpt: ...”), but also determined that BBC's breaches did not cause damage to plaintiff Campus Oaks Apartments 1, LLC (“COA”). COA contends that a new trial should be granted because (1) the jury's verdict is unsupported by the evidence; and (2) the damages awarded are inadequate. The trial court's authority over a new trial motion is proscribed by statute. Code of Civil Procedure 657 provides, in part: “A new trial shall not be granted upon the gr...

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: ...ed the “supplemental opposition” filed by plaintiff on May 8, 2020. The court notes that plaintiff first filed opposition to defendant's motion on August 30, 2019. After the court granted a continuance pursuant to Code of Civil Procedure section 473c(h), plaintiff filed a subsequent opposition on March 6, 2020. The supplemental opposition would be the third responding memoranda to plaintiff's motion, and considering the supplemental oppositio...

Excerpt: ... may be made on the grounds that a cause of action does not state facts sufficient to constitute a valid cause of action. Code Civ. Proc. § 438. Defendant's motion seeks judgment on the complaint on the grounds that the complaint is not verified. As a preliminary matter, a motion for judgment on the pleadings does not appear to be the proper vehicle to challenge the complaint due to the lack of verification. The proper objection where a party fa...

Excerpt: ...g objections are overruled. Plaintiffs' objections to the declaration of William Flournoy are ruled on as follows: Objection Nos. 3, 7 and 8 are sustained. The remaining objections are overruled. Plaintiffs' objections to the declaration of Frieda Fisher‐Dubois are ruled on as follows: Objection No. 2 is sustained. The remaining objections are overruled. Plaintiffs' objections to other evidence submitted by defendants are ruled on as follows: O...

Excerpt: ... to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. Id. Plaintiff submits evidence establishing an agreement to provide legal services to defendant Paul Nau. (Pltf. SSUMF 1.) During the course of that representation, plaintiff sent defendant monthly billing statements which detailed the services provided, the time expended, the costs incurred, and the balance due. (Pltf. SSUMF 4.) Defendant m...

Excerpt: ...expired. Code Civ. Proc. § 438. The same rules governing demurrers apply. Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999. 5 Tort liability against a public entity requires an authorizing statute or enactment. Gov. Code § 815(a); Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 802. Plaintiff points to no statutory authority to assert a claim against a public entity for general negligence, or for premises liability...

Excerpt: ...fession. Code Civ. Proc. § 483.010(c). Damages must be measurable by reference to the contract itself, and the basis for computing damages must be reasonable and certain. CIT Group/Equipment Financing, Inc. v. Super DVD, Inc. (2004) 115 Cal.App.4th 537, 541. Based upon review of the plaintiff's application, the court finds pursuant to Code of Civil Procedure section 483.010 that plaintiff has established the probable validity of the claim exceed...

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: ...to make a prima facie showing that there are no triable issues of material fact, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. Id. The motion for summary judgment must be supported by evidence establishing the moving party's right to relief. Regents of Univ. of Cal. v. Superior Court (1996) 41 Cal.App.4th 1040, 1044. “There is no obligation on the opposing party … t...

Excerpt: ...ng, by affidavit, facts establishing every element necessary to sustain a judgment in favor of the party. Consumer Cause, Inc. v. Smilecare (2001) 91 Cal.App.4th 454, 468. If the moving party carries its initial burden of production to make a prima facie showing that there are no triable issues of material fact, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. Aguilar v. A...

Excerpt: ...ments which he contends are responsive to these requests, and states that he has produced all responsive documents. Defendant submits no evidence suggesting that plaintiff may have additional documents which are responsive to these requests which have not been produced. The motion is denied as to Request Nos. 13 and 14. Plaintiff did not waive applicable objections as to these requests, as the objections were timely served within the one week ext...

Excerpt: ...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 facts. Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6. However, the court does not assume the truth of contentions, deductions, or conclusions of facts or law. Id. Pride's dem...

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: ...nce; and (3) medical negligence, against defendants County of Placer, Devon Bell, and Does 1‐10. Defendants moved for judgment on the pleadings as to the second and third causes of action. On September 19, 2019, the court entered a ruling on submitted matter, granting defendants' motion for judgment on the pleadings without leave to amend. On January 15, 2020, the Third Appellate District filed notice that it was considering issuing a peremptor...

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: ... are ruled on as follows: Objection Nos. 4 (as to the last sentence only), 8, 10, 11 (as to the second sentence only), 12, 13, 15, 18, 19, 20, 29, 32, 40, 41 and 42 are sustained. The remaining objections are overruled. 8 Ruling on Request for Judicial Notice Defendants' request for judicial notice is granted. With respect to Exhibits 15, 16, 18‐ 25, 28, 30, 32‐34, and 36‐40, the court takes judicial notice of the fact that these documents ...

Excerpt: ... amount of $810 from plaintiffs' counsel. Code Civ. Proc. § 2033.280(c). Motion to Quash Depositions Subpoenas and for Protective Order As a preliminary matter, the court has considered plaintiffs' untimely reply in ruling on this motion. Plaintiffs move to quash a deposition subpoena for production of business records served on law firm Wells, Small, Fleharty & Weil, and depositions subpoenas served on Steve A. Small, Esq. and Dara Stead. Depos...

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: ...e ruling on submitted matter issued September 2, 2019, upon which the November 4, 2019 judgment is based, and enter an amended ruling on submitted matter and new and different judgment. Code of Civil Procedure section 663 empowers the trial court to set aside a judgment based on a decision by the court., where there is an incorrect or erroneous legal basis for the 2 decision, not consistent with or not supported by the uncontroverted facts. Glen ...

Excerpt: ... 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 facts. Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6. However, the court does not assume the truth of content...

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: ...1.2, 945.4. If the application is not timely presented, the injured party may apply for leave to present a late claim within a reasonable time, not to exceed one year. Gov. Code § 911.4. If the application is denied, the injured party may petition to the trial court for relief from the provisions of Government Code section 945.4. Gov. Code § 946.6. In order to be entitled to relief under Government Code section 946.6, petitioner must establish ...

Excerpt: ...guage of Code of Civil Procedure section 643(c) does not expressly allow for the filing of reply briefs when an objector files objections to a referee's recommendations. Monier's reply brief, however, is limited in scope and addresses a significant issue surrounding the payment of claims. The brief addresses further 3 legal arguments on issues raised by the parties. The court will consider Monier's reply brief in light of the significance of the ...

Excerpt: ...ble of being made certain by calculation, and the right to recover which is vested in the person upon a particular day, is entitled also to recover interest thereon from that day, except when the debtor is prevented by law, or by the act of the creditor from paying the debt. As a preliminary matter, the court finds that the motion is not barred as untimely. Neither Civil Code section 3287 nor any other rule specifies when prejudgment interest mus...

Excerpt: ...ion including (1) fraud in the inducement – intentional misrepresentation; (2) negligent misrepresentation; (3) fraud in the inducement – concealment; (4) fraud in the performance of contract – intentional misrepresentation; (5) violation of the SongBeverly Act; and (6) violation of the Consumers Legal Remedies Act. Defendants contend that each of plaintiffs' claims is barred by the applicable statute of limitations. Defendants also contend...