Excerpt: ...76, 885. In making this determination the court considers the extent the defendants' Fifth Amendment rights are implicated; the interests of the plaintiff in proceeding expeditiously and the potential prejudice of a delay; the burden the proceedings may impose on the defendants; the convenience of the court to manage cases and efficient use of judicial resources; the interests of others not involved in the civil litigation; and the interests of t...

Excerpt: ...ather, defendant appeared at trial and signed a stipulation for entry of judgment. Defendant seeks to have the stipulated judgment set aside on grounds of mistake. Code Civ. Proc. § 473(b). Specifically, defendant asserts that she was mistaken in believing a statement by plaintiff's counsel that a continuance of the trial date “was not going to happen.” Defendant further claims that she was in a weakened frame of mind because she had been ho...

Excerpt: ...her takes judicial notice of the fact that the motion was granted on June 14, 2019. Defendant Wells Fargo Bank (“Wells”) moves for judgment on the pleadings as to the first cause of action for violation of Civil Code section 2923.5, second cause of action for violation of Civil Code section 2923.7, seventh cause of action for violation of Civil Code section 2924.12, and ninth cause of action for unfair business practices, alleged in plaintiff...

Excerpt: ...e Civ. Proc. § 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 facts. Evans v....

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: ...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: ...aswell v. AG Seal Beach, LLC, et al (2010) 189 Cal.App.4th 1399, 1405. Under both federal and state law, a threshold question for any petition to compel arbitration is whether there exists an agreement to arbitrate. Cruise v. Kroger Co. (2015) 233 Cal.App.4th 390, 396. It is the petitioner that carries this initial burden of proving, by a preponderance of the evidence, the existence of a valid arbitration agreement. Engalla v. Permanente Medical ...

Excerpt: ...overruled. Ruling on Motion Respondent County of Placer moves for summary judgment with respect to the claims set forth in petitioner's verified petition for alternative and peremptory writ of mandate and complaint for declaratory and injunctive relief. Alternatively, respondent requests summary adjudication. Summary judgment may be granted where there is no triable issue as to any material fact, and moving party is entitled to judgment as a matt...

Excerpt: ... for damages or issue of duty. Code Civ. Proc. § 437c(f)(1). The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. If the moving party carries this burden, the burden shifts to opposing party to show the 5 existence of a triable issue of material fact. Id. The trial court views the supporting evidence, ...

Excerpt: ... 995, 999. Defendants contend that the applicable statute of limitations bars plaintiff's action. Plaintiff's claims in this action are governed by the limitations period set forth in Government Code section 945.6(a), which states: Except as provided in Sections 946.4 and 946.6 and subject to subdivision (b), any suit brought against a public entity on a cause of action for which a claim is required to be presented in accordance with Chapter 1 (c...

Excerpt: ...ghth and ninth causes of action alleged by plaintiff Albert Ristau, as successor trustee of the Wright 1990 Trust, on the grounds that the Wright 1990 Trust cannot assert elder abuse pursuant to Welfare and Institutions Code section 15610.30. A party may demur to a complaint where the pleading does not state facts sufficient to constitute a cause of action. Code Civ. Proc. § 430.10(e). A demurrer tests the legal sufficiency of the pleadings, not...

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: ...e parties' settlement agreement filed by defendant Kila Tahoe LLC (“Kila”). In the prior motion, Kila sought to compel SNP to participate in binding mediation with the Honorable Fred K. Morrison (Ret.) of JAMS. SNP opposed the motion, arguing that the court could not modify the terms of the settlement agreement and compel SNP to participate in binding mediation with anyone other than Donald Person, or anyone to whom SNP did not expressly agre...

Excerpt: ...Clear Lake Riviera Community Association v. Cramer (2010) 182 Cal.App.4th 459, 473. However, in Clear Lake, the Court of Appeal analyzed a judgment for injunctive relief after trial, not a preliminary injunction requested pursuant to Code of Civil Procedure section 526(a). Plaintiffs fail to establish that the Clear Lake test applies for the purpose of this motion. In determining whether a preliminary injunction should be granted, the court must ...

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: ...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: ... 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: ...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: ...th the current action. The motion is made pursuant to Code of Civil Procedure section 403, which states: A judge may, on motion, transfer an action or actions from another court to that judge's court for coordination with an action involving a common question of fact or law within the meaning of Section 404. The motion shall be supported by a declaration stating facts showing that the actions meet the standards specified in Section 404.1, are...

Excerpt: ...s for issuance of an assignment order, an order for examination of a third party, and to strike various motions to tax filed by judgment debtor Gilman. Corporation's motions are GRANTED IN PART and DENIED IN PART. Preliminarily, it appears Gilman's oppositions were untimely. However, the Court perceives no preojudice to the opposing party in considering the late‐filed papers, and has done so. The parties are reminded, however, to comply with al...

Excerpt: ...against the HOA in plaintiffs' first amended complaint. A motion for judgment on the pleadings has the same function as a general demurrer, but is made after the time for demurrer has expired. Code Civ. Proc. § 438. 7 The same rules governing demurrers apply. Cloud v. Northrop Grumman Corp. (1998) 67 Cal.App.4th 995, 999. The HOA contends that exculpatory provisions within the CC&Rs bar plaintiffs' claims against it. Specifically, Section 5.18 o...

Excerpt: ...filed a motion for attorneys' fees pursuant to Code of Civil Procedure section 473(b) and (c)(1). As set forth in detail in the opinion of the Court of Appeal filed March 29, 2019, this action has been plagued by “repeated errors and omissions by [plaintiff's] counsel”. After an order sustaining defendant's demurrer to the complaint, and imposing a deadline by which an amended complaint must be filed, plaintiff failed to file an amended compl...

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: ...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: ...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: ...583.310 based on the failure to bring the action to trial or otherwise seek judgment within five years of commencement. Defendant and cross‐complainant Centex Homes, and dismissed intervenor Lexington Insurance Company filed responses to the OSC, which the court has considered. Code of Civil Procedure section 583.310 provides, “[a]n action shall be brought to trial within five years after the action is commenced against the defendant.” The ...

Excerpt: ...f action. Code Civ. Proc. § 430.10(e). A demurrer tests the legal 5 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 ...

Excerpt: ...olicy in favor of arbitration that is frequently approved and enforced by the courts. Madden v. Kaiser Foundation Hospitals (1976) 8 17 Cal.3d 699, 706; Laswell v. AG Seal Beach, LLC (2010) 189 Cal.App.4th 1399, 1405. “A strong public policy favors the arbitration of disputes, and doubts should be resolved in favor of deferring to arbitration proceedings.” Rowe v. Exline (2007) 153 Cal.App.4th 1276, 1282; Laswell v. AG Seal Beach, LLC, supra,...

Excerpt: ...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, the burden shifts to the opposing party to make a prima facie showing of the existence of a triable issue of material fact. Id. Plaintiffs' complaint in this action alleged five causes of action: (1) violatio...

Excerpt: ...e 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. 6 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 upon which the attachment is based, and that attachment is not sought for an improper purpose. Plaintiff is grante...

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: ...ained. Ruling on Motion Defendant Sunworks, Inc. moves for summary judgment and/or summary adjudication as to the first amended complaint filed by plaintiff Douglass Stiegmann. Summary judgment may be granted where there is no triable issue as to any material fact, and moving party is entitled to judgment as a matter of law. Code Civ. Proc. § 437c(c). The party seeking summary judgment bears the burden of showing there is no triable issue of mat...

Excerpt: ... 3.350(a)(1)(A). The notice does not contain the captions of all cases sought to be consolidated. Cal. R. Ct., rule 3.350(a)(1)(B). The notice was not filed in each case sought to be consolidated. Cal. R. Ct., rule 3.350(a)(1)(C). The motion does not include a proof of service. Cal R. Ct., rule 3.350(a)(2)(C). Counsel for defendant U.S. Bank National Association (“U.S. Bank”) states that their office was never served with the motion. It appea...

Excerpt: ... 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 the court's review of the plaintiff's application, and the declarations submitted in support of the application, the court finds pursuant to Code of Civil Procedure section 483.010 that plaintiff has established the probable validity of the claim upon which the attachment is based, and...

Excerpt: ...ct of terminating sanctions, courts do not impose such a sanction lightly. Upon careful review of the moving papers and the court file, the court determines that terminating sanctions are appropriate in this instance. Defendant served plaintiff Kuldip Bains with discovery requests, including interrogatories and requests for production. Plaintiff failed to serve any responses. Defendant moved to compel responses which motion was unopposed and gran...

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: ...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: ... memorandum in support of the motion. (California Rules of Court, Rule 3.1112.) The current motion included only the notice, omitting the essential motion and memorandum from the supporting filings. The notice provides the court with insufficient information to substantively review plaintiff's request. Thus, the motion is incomplete and denied. To the extent the motion seeks relief under Code of Civil Procedure section 663, not only did plaintiff...

Excerpt: ...iff's complaint joins several separate causes of action, including both local and transitory claims, the transitory action controls as to venue. Central Bank v. Superior Court (1973) 30 Cal.App.3d 913, 917‐ 918. Transitory actions are subject to the general rule of venue that the action be tried in the county of defendant's residence. Under Code of Civil Procedure section 395(a), “[e]xcept as otherwise provided by law and subject to the power...

Excerpt: ...iff's complaint joins several separate causes of action, including both local and transitory claims, the transitory action controls as to venue. Central Bank v. Superior Court (1973) 30 Cal.App.3d 913, 917‐ 918. Transitory actions are subject to the general rule of venue that the action be tried in the county of defendant's residence. Under Code of Civil Procedure section 395(a), “[e]xcept as otherwise provided by law and subject to the power...

Excerpt: ...the Alameda County litigation in connection with the instant motion. Based on the evidence provided, the court cannot determine that there are common questions of fact or law in the two actions, that the convenience of the parties, witnesses and counsel will be promoted by the transfer, or that there is a risk of inconsistent rulings if the transfer is not ordered. Plaintiffs' request that the causes of action in the cross‐complaint be stayed i...

Excerpt: ...ode Civ. Proc. § 2030.220(b). Plaintiff's responses to form interrogatory (employment) Nos. 210.2, 210.3 and 212.6, and special interrogatory Nos. 4, 12 and 26 are insufficient as plaintiff does not respond completely to each interrogatory. Plaintiff shall serve further verified responses to form interrogatory (employment) Nos. 210.2, 210.3 and 212.6, and special interrogatory Nos. 4, 12 and 26, on or before July 12, 2019. The motion is otherwis...

Excerpt: ...Proc. § 2030.220(a). “If an interrogatory cannot be 3 answered completely, it shall be answered to the extent possible.” Code Civ. Proc. § 2030.220(b). The HOA's responses to form interrogatory Nos. 4.1, 12.1, 12.2, 12.3, 16.1, 16.2, 16.3, 16.7, 16.8, 16.9 and 17.1 are insufficient as the HOA does not respond completely to each interrogatory. The HOA shall serve further verified responses to the subject interrogatories on or before July 12,...

Excerpt: ...ing interest will be prejudiced if the record is not sealed, (4) the sealing of the record is narrowly tailored, and (5) there are no less restrictive means to achieve the overriding interest. Cal. R. Ct., rule 2.550(d). Defendant moves to seal Exhibit F to the appendix of exhibits in support of defendant's motion for summary judgment/adjudication on the grounds that the exhibit contains personal compensation and benefits information relating to ...

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: ...senger service rather than personal service. Second, amendment of a judgment to add a nonparty as an alter ego to the judgment is generally not available where plaintiff obtained a default judgment. (see Wolf Metals Inc. v. Rand Pacific Sales, Inc. (2016) 4 Cal.App.5th 698, 703‐704, 709‐709.) Third, plaintiff has not made a sufficient showing of successor corporation liability to warrant amendment to include the nonparty corporate entities. (...

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: ...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...