Excerpt: ... 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 Group, Inc. (1997) 15 Cal.4th 951, 972. “‘[A] party cannot be required to submit to arbitration any dispute which he has ...

Excerpt: ...he court will exercise its discretion and consider the substance of defendants' motion, despite plaintiff's contention that notice was insufficient. Defendants' motion is denied. Defendants' notice of motion fails to set forth the statutory authority for coordination of the two cases. Coordination pursuant to Code of Civil Procedure sections 404 et seq. applies to civil actions pending in different courts. See Code Civ. Proc. § 404. Defendants' ...

Excerpt: ...'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 contentions, deductions,...

Excerpt: ...iciency 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. City of Berkeley (2006) 38 Cal.4th 1, 6. However, the cou...

Excerpt: ...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, at 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...

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: ...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 cited document is not attached to the request. Defendant's demurrer to complaint is sustained with leave to amend. Plaintiff fails to allege sufficient facts to establish a valid cause of action for professional negligence against defendant Nick Tziavaras. Any amended complaint shall be filed and served on or before January 10, 2020. Motion to Strike Defendant's request for judicial notice is granted as to Exhibit A. The request is denied as to...

Excerpt: ...iling party.” Bad faith may be shown by: (1) the objective speciousness of the claim; and (2) subjective bad faith in bringing or maintaining the action, i.e., for an improper purpose. Cypress 7 Semiconductor Corp. v. Maxim Integrated Prod., Inc. (2015) 236 Cal.App.4th 243, 260. Under the “objectively specious” standard, it is sufficient for defendants to point to the absence of evidence of misappropriation in the record. Id. at 260‐261. ...

Excerpt: ...e to duly served discovery requests. As conceded by defendants, defendants failed to provide identifying information relating to a fact witness who was a Lyft passenger in plaintiff's vehicle and who observed the car accident which is the subject of this action. This was despite the fact that documents in the possession of defendant Richard Montoya, and subsequently in the possession of defense counsel, contained this information. Plaintiffs cont...

Excerpt: ...the causes of action in question cannot be established, or that there is a complete defense thereto. Code Civ. Proc. § 437c(p)(2); 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 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 mater...

Excerpt: ...s to the portion of a settlement representing payment for medical expenses, in order to determine the amount available to satisfy the lien. The court is to be guided by the United States Supreme Court decision in Arkansas Department of Health and Human Services v. Ahlborn (2006) 547 U.S. 268, in determining what portion of a settlement represents payment for medical expenses or medical care. The total settlement amount in light of the total claim...

Excerpt: ...cannot be established, or that there is a complete defense thereto. Code Civ. Proc. § 437c(p)(2); 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 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 court notes tha...

Excerpt: ...ion, the court takes judicial notice of the entire file in this action. Cross‐complainants' objections to evidence are ruled on as follows: Objection Nos. 1, 2 and 4 are sustained. Objection No. 3 is overruled. Cross‐complainants' move for leave to amend their cross‐complaint. In determining whether leave to amend should be granted, the court is bound by Code of Civil Procedure section 426.50, which states: A party who fails to plead a caus...

Excerpt: ...otter's purchase of a 2012 Jeep Grand Cherokee. The complaint in this action was filed June 2, 2016. The parties settled the case on April 8, 2019, on the first day of trial. Defendants agreed to pay plaintiffs $122,000 in settlement of the action. Civil Code section 1794(d) authorizes the recovery of attorneys' fees to a buyer who prevails in an action under that section, “determined by the court to have been reasonably incurred by the buyer i...

Excerpt: ...to constitute a cause of action. Code 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 b...

Excerpt: ...ns 473(d), 473(b), or based on a lack of personal jurisdiction. As a preliminary matter, the court finds that Aizen was validly served with the summons and complaint in this matter, pursuant to Code of Civil Procedure section 415.20(b), which states: If a copy of the summons and complaint cannot with reasonable diligence be personally delivered to the person to be served, as specified in Section 416.60, 416.70, 416.80, or 416.90, a summons may be...

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: ...harges, the burden is on the party seeking to tax costs to show that they were not reasonable or necessary.” Ladas v. Cal. State Auto. Ass'n (1993) 19 Cal.App.4th 761, 774. When the reasonableness of particular items is challenged, conclusory allegations do not satisfy the objecting party's burden. Id.; Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1266. Alternatively, where items are properly put in issue by objection, the burden of proof is ...

Excerpt: ...s the recovery of attorneys' fees to a buyer who prevails in an action under that section, “determined by the court to have been reasonably incurred by the buyer in connection with the commencement and prosecution of such action.” Plaintiffs request attorneys' fees in the amount of $38,468, which includes estimated fees relating to the current motion of $6,975. Plaintiff also requests a .3 multiplier resulting in additional attorneys' fees of...

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: ...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: ...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: ...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: ...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: ...cedure section 1033(a) is denied. The court notes that plaintiff sought damages for actual medical expenses resulting from the incident, future medical expenses and general damages that far exceeded the jurisdictional maximum of a limited civil action. There is no showing that plaintiff acted unreasonably or in bad faith in asserting her claims. Defendant alternatively moves to tax discrete items of costs claimed by plaintiff. “If the items app...

Excerpt: ...jections to evidence are ruled on as follows: Objection Nos. 3, 5, 8, 9 and 10 to the declaration of Michelle Gallagher are sustained. Objection Nos. 1, 2, 5, 6 and 8 to the declaration of Anna Murphy are sustained. The remaining objections are overruled. Ruling on Motion Defendant and cross‐complainant Charley Smith, individually and as trustee of the Charley D. Smith Family Trust (“Smith”) moves for summary judgment of plaintiff and cross...

Excerpt: ...beth Voss. A party may move to quash a subpoena directed to a third party where the records sought are not within the permissible scope of discovery. Plaintiff moves to quash the subject subpoena on several grounds, including that it is facially overbroad, seeks confidential and privileged information, and seeks information that has been improperly retained by a former employee. The subpoena served on Elizabeth Voss requests two categories of doc...

Excerpt: ... letter to the Labor and Workforce Development Agency (“LWDA”) on February 6, 2019, alleging wage and hour violations against her former employer, defendant Williams‐Sonoma Stores, Inc. Farinha filed the complaint in this action on April 12, 2019, as a putative wage and hour class and representative action. Overton submitted a letter to the LWDA on May 2, 2019, alleging violations of the Labor Code and Industrial Welfare Commission Wage Ord...

Excerpt: ...perty claim. Code Civ. Proc. §§ 405.31, 405.32. A real property claim means “a cause of action in a pleading which would, if meritorious, affect (a) title to, or the right to possession of, specific real property or (b) the use of an easement identified in the pleading”. Code Civ. Proc. § 405.4. The current action was dismissed by the court without prejudice on September 17, 2019, with plaintiff's consent. Although the action has been dism...

Excerpt: ...r of law. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850. The moving party has the burden of showing, by 1 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. Once a plaintiff sets forth evidence establishing each element of its prima facie case, the burden of proof shifts to the defendant to prove a triable issue regardi...

Excerpt: ...erson (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. Plaintiff's form complaint alleg...

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: ...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, 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. In...

Excerpt: ...award of sanctions pursuant to Code of Civil Procedure §§ 128.5 and 128.7, contending Judgment Debtor Gilman's motion for fees on appeal, filed on July 24, 2019, was filed in bad faith and was frivolous and devoid of any merit. Regarding Judgment Debtors' request for sanctions pursuant to Code of Civil Procedure § 128.5, the Court is not persuaded that the conduct at issue warrants sanctions under this provision. In ruling on the motion, the C...

Excerpt: ... overruled. Defendants' objections to evidence are ruled on as follows: Objection No. 4 is sustained. The remaining objections are overruled. 3 Ruling on Motion Defendants Madeline Yang (“Madeline”), Richard Yang (“Richard”) and Frieda Yang (“Frieda”) move for summary judgment with respect to plaintiffs' second amended complaint. The party seeking summary judgment bears the burden of showing there is no triable issue of material fact ...

Excerpt: ...nstitute a cause of action. Code 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 9 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 j...

Excerpt: ...��Murray”) fails to establish compliance with the meet and confer requirements of Code of Civil Procedure section 430.41(a). For the purpose of ruling on the instant demurrer, the court will excuse this defect. Defense counsel is advised that any future demurrers must demonstrate compliance with Code of Civil Procedure section 430.41(a). 3 Murray's demurrer to the first amended complaint is overruled in part, and sustained in part with leave to...

Excerpt: ...2019, at 8:30 a.m. in Department 33. Motion for Protective Order Plaintiffs move for a protective order with respect to 42,199 written discovery requests propounded by defendants. The court may issue a protective order to protect a party from “unwarranted annoyance, embarrassment, or oppression, or undue burden and expense”. Code Civ. Proc. §§ 2030.090(b); 2033.080(b); 2031.060(b). Defendants have propounded approximately 59 form interrogat...

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: ...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: ...ader 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. Plaintiff's third cau...

Excerpt: ...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. City of Berkeley (2006) 38 Cal.4th 1,...

Excerpt: ...prior hearing. The instant motion relates to defendant Elmira Abraamyan's motion to amend or withdraw deemed admissions of December 11, 2018. On December 10, 2018 the court published a tentative ruling granting the motion. Plaintiff requested oral argument, and the court conducted 2 a hearing. The court recalls plaintiff's arguments. Generally speaking he argued concerning the sufficiency of the moving papers and the authorities relied upon in th...

Excerpt: ...ndant or any defendant resides at the commencement of the action”. Defendants admit that defendant Paul D. Booth, in his capacity as trustee of the Anything Trust dated October 12, 2007 (“Booth”) is a resident of Placer County. Further, pursuant to Probate Code section 17005(a)(1), the proper county for commencement of a proceeding concerning a trust is “[i]n the case of a living trust, the county where the principal place of administrati...

Excerpt: ...Default judgment was entered against defendant on June 20, 2008. This motion was filed over ten years later, on January 2, 2019. As defendant's motion was not timely made under the requirements of the applicable statute, it must be denied. Code Civ. Proc. § 473.5; Trackman v. Kenny (2010) 187 Cal.App.4th 175, 180. ...