Excerpt: ...ey Fees, 04/20/2021 Cases, including ex parte matters, will be called at 9 a.m., or earlier, if the Parties are ready. Please check in withthecourtroom clerk by 8:45 a.m. If appearing by Court Call, please call in between 8:35 and 8:45 a.m. If you wish to submit on the court's tentative decision, please send an email to the court at:[email protected]. Absent waiver of notice and in the event an order is not signed at the hearing, ...

Excerpt: ...ey Fees, 04/20/2021 Cases, including ex parte matters, will be called at 9 a.m., or earlier, if the Parties are ready. Please check in withthecourtroom clerk by 8:45 a.m. If appearing by Court Call, please call in between 8:35 and 8:45 a.m. If you wish to submit on the court's tentative decision, please send an email to the court at:[email protected]. Absent waiver of notice and in the event an order is not signed at the hearing, ...

Excerpt: ...red document is irrelevant to the Court's determination of the instant motion. (People v. Rowland (1992) 4 Cal.4th 238, 268, fn. 6.) Defendant's motion for summary adjudication as to issues 1‐3 is DENIED. (Code Civ. Proc., § 437c, subd. (p)(2).) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c...

Excerpt: ...ary District to prepare proposed judgment. Demurrer to Plaintiff's Fourth Amended Complaint This is a civil action for reliance damages resulting from a report issued in 2014 allegedly overestimating the number of new customer hook‐up options into defendant's sewer system. The operative pleading has gone through a number of iterations, landing now at the Fourth Amended Complaint. Before the Court this day is a demurrer filed by both Jamestown S...

Excerpt: ...n…” (Platypus Wear, Inc. v. Goldberg (2008) 166 Cal.App.4th 772, 787 [“Platypus”].) However, “a trial court must be wary about freely granting a party the right to file an anti‐SLAPP motion past the 60–day deadline.” (Ibid.) “In exercising its discretion in considering a party's request to file an anti‐SLAPP motion after the 60–day period, a trial court must carefully consider whether allowing such a filing is consistent wit...

Excerpt: ...0 p.m. If you wish to appear for oral argument, you must so notify the Court and all other parties by 4:00 p.m. one court day before the hearing, pursuant to California Rules of Court, rule 3.1308. The phone number for Department 2 is (209) 533‐6555. The tentative ruling will become the ruling of the Court if the Court has not directed oral argument by its tentative ruling and notice of intent to appear has not been given. Page 3 of 3 This is a...

Excerpt: ...ican Textile (and sold at Walmart). Before the Court this day is a defense motion to bifurcate liability from damages. The defense concern is two‐fold: first, with liability being the main thrust in contention, having a trial on just this issue will avoid the cost associated with a damages phase; and second, by keeping liability separate from damages, there is less chance the jury will be improperly guided by sympathy in deciding the liability ...

Excerpt: ...g hit in the head by a falling pine tree – cut down by defendant. The dispute was submitted to a jury, which returned a verdict favorable to plaintiff in the amount of $37,085.00. Before the Court this day is a defense motion to tax costs and enter an amended judgment consistent with CCP §998. On 07/20/21, defendants caused to be served upon plaintiff a joint statutory offer to compromise in the amount of $40,000.00. On 08/04/21, trial commenc...

Excerpt: ... decision by the State Water Resources Control Board regarding clean water discharge from the Don Pedro and La Grange Projects along the Tuolumne Rover. Before the Court this day is a motion by the State Water Resources Control Board to transfer venue from here to “a neutral county” or to “an out‐of‐county judge” assigned to hear the matter here. Initially, this Court rejects the contention that the motion to transfer is time‐barred...

Excerpt: ...f the individual defendants. The demurrer is sustained with 30 days leave to amend. First, public entities are no longer liable for “general negligence,” and can only be held accountable pursuant to statute. See Gov. Code §815; Quigley v. Garden Valley Fire Protection Dist. (2019) 7 Cal.5th 798, 803‐ 804. A viable claim must be expressly tethered to a precise statute, and none of plaintiff's three causes of action identify any such statute...

Excerpt: ...ge” assigned to hear the matter here. Initially, this Court rejects the contention that the motion to transfer is time‐ barred in any way. Although both sides agree that motions to transfer should occur as promptly as possible, it made sense to await consolidation of the actions before presenting the motion to change venue. Otherwise, there would need to be two separate venue motions. On to the merits … Venue rules designate a particular co...

Excerpt: ...or oral argument, you must so notify the Court and all other parties by 4:00 p.m. one court day before the hearing, pursuant to California Rules of Court, rule 3.1308. The phone number for Department 2 is (209) 588‐2382. The tentative ruling will become the ruling of the Court if the Court has not directed oral argument by its tentative ruling and notice of intent to appear has not been given. Page 2 of 4 This is a personal injury action, arisi...

Excerpt: ...poenas for Plaintiff's Health Insurance Records, etc. Moving Party: Plaintiff Motion filed: October 1, 2021 Tentative ruling: Motions are continued to December 2, 2021, at 1:30 p.m., in Dept. 1, at 12855 Justice Center Drive, Sonora, CA. Parties are ordered to meet and confer with genuine attempt at resolving the discovery issues before them. The parties shall file at least 10 calendar days prior to Dec. 2, 2021, a joint statement – not to exce...

Excerpt: ...gainst it. Plaintiff contends that a section of Chicken Ranch Road just west of Nelson Road is a dangerous condition of public property because (1) there are no roadway markings prohibiting cars from passing one another and (2) overgrown foliage adjacent to a bend in the road makes the risk of injury while passing other vehicles substantial due to a limited line of sight (aka “blind curve”). Defendant counters that the absence of roadway mark...

Excerpt: ...unfulfilled expectations for use of land acquired for development. Before the Court this day is a demurrer by both defendants, directed at the operative Third Amended Complaint. A demurrer presents an issue of law regarding the sufficiency of the allegations set forth in the complaint. The challenge is limited to the “four corners” of the pleading (which includes exhibits attached and incorporated therein), or from matters outside the pleadin...

Excerpt: ... file a First Amended Complaint. The original complaint was filed 12/31/20, and contains what appeared to be two causes of action: one for property damage, and one for contempt. Plaintiffs request leave to add a new cause of action for quiet title over the ongoing boundary dispute, as well as a revised identification of the proper defendant party. Plaintiffs' first motion for leave was denied without prejudice due to a myriad of procedural defect...

Excerpt: ...hospitality industry. The operative pleading is the First Amended Complaint, which contains seven (7) causes of action and a single proposed class as follows: “all persons employed by Defendant First Light Resorts, LLC in a non‐exempt position at Rush Creek Lodge in Groveland, California, between 12/11/16 and 03/16/21.” The operative pleading was first filed on 06/09/21, which predates the pending motion by three weeks. Before the Court thi...

Excerpt: ...represented individual on 01/22/20. He seeks recovery in the pecuniary amount of $10M. Before the Court this day is a defense demurrer to the operative pleading, which is the First Amended Complaint filed 03/23/20. The pleading is on a Judicial Council form, and includes two causes of action: one for negligence, and another for “intentional tort.” The FAC fails to designate defendant capacities, which is complicated by the fact that plaintiff...

Excerpt: ...sis for the motion more closely resembles a plea in abatement under CCP §430.10(c) than a true motion to strike, for the reasons which follow, the motion for relief is MOOT. Procedural Background On January 5, 2021, plaintiff Stanley Redick III (hereinafter “plaintiff”) commenced a civil action for damages against Lowe's, relating to the referenced 2018 incident. That filing was assigned case number CV63539. This case has since been removed ...

Excerpt: ...t interest set forth in the Judicial Council form complaint at Paragraph 11.g. For the reasons which follow, the motion is denied. Before reaching the merits, it is important to point out that defense counsel failed to faithfully discharge his statutory obligation to meet and confer prior to filing the motion to strike. Pursuant to CCP §435.5(a), “before filing a motion to strike pursuant to this chapter, the moving party shall meet and confer...

Excerpt: ...osition has been filed. For the reasons which follow, the demurrer to the 2nd cause of action for intentional tort is SUSTAINED without leave to amend, but without prejudice to later motion for leave to amend if the facts discovered so warrant. Defendants to answer in 10 days. Legal Analysis by Demurrer of the Cause of Action for Intentional Tort A demurrer presents an issue of law regarding the sufficiency of the allegations set forth in the com...

Excerpt: ...unty of San Francisco (CV63828), which is set for a hearing on 08/17/21. Based on a review of the operative pleadings, is does appear that the two cases involve the same controversy and are likely to require substantial duplication if resolved separately. A Notice of Related Case has been filed, and the time to Tentative Rulings: Department 2 Tuesday, June 29, 2021 Civil Law and Motion Calendar 8:30 a.m. If you wish to appear for oral argument, y...

Excerpt: ...According to proofs of service filed herein, each of the four named defendants was personally served with the summons and complaint as follows:  Avalon Care Center – Sonora (04/12/21)  Avalon Health Care Management (04/12/21)  Avalon of California, LLC (04/12/21)  Genesis Leininger (04/19/21) Since a trial court gains personal jurisdiction over a putative defendant upon service of the summons, and there being no facial defect in the...

Excerpt: ...d of reasons, the default/judgment were void ab initio and must be set aside. The motion is GRANTED. Procedural Background On 01/19/21, plaintiff Stanley Redick III (hereinafter “plaintiff”) commenced the pending civil action for damages, naming “Tuolumne County Jail” as a defendant therein. Plaintiff described Tuolumne County Jail as (1) “a business organization, form unknown,” (2) “a public entity,” and (3) “a corporation or u...

Excerpt: ...ction of business records. Discovery demanded from a nonparty will generally be more limited, and consequently less subject to lengthy dispute, than discovery demanded from a party. See CCP §§ 1987(a), 2020.220(a), 2020.430; Board of Registered Nursing v. Superior Court (2021) 59 Cal.App.5th 1011, 1030‐1032; Unzipped Apparel, LLC v. Bader (2007) 156 Cal.App.4th 123, 130. Here, there are two non‐party subpoenas at issue, both issued by the d...

Excerpt: ...amend is DENIED. The motion is post‐trial and is not brought for the purpose of conforming to proof at trial. The motion is also DENIED because it does not contain a proposed amended complaint, nor does it contain a declaration indicating: (1) the effect of the amendment; (2) why the amendment is necessary and proper; (3) when the facts giving rise to the amended allegations were discovered; and (4) the reasons why the request for amendment was...

Excerpt: ...ve been accepted for filing by the Court Clerk's office. 2. Code of Civil Procedure section 430.10(c) provides that a party against whom a Complaint has been filed may object by Demurrer to the pleading on the ground that there is another action pending between the same parties on the same cause of action. Plaintiff's other lawsuit filed in this Court, Case No. CV63593 against the Tuolumne County District Attorney's Office appears to arise from t...

Excerpt: ...haracterizing as a “paradigmatic case” for granting an irrevocable license one in which a landowner allows his neighbor the right to use a right‐of‐way over his property, knowing the neighbor needs that right to develop his property, but then seeks to revoke the neighbor's permissive usage after the neighbor has built a house in reliance on the landowner's acquiescence]; Cooke v. Ramponi (1952) 38 Cal.2d 282 [plaintiffs were granted an ir...

Excerpt: ... for the parties to meet and confer as required by statute. If resolution of the issues raised in the demurrer was achieved through the meet‐and‐confer process, Defendant's counsel was ordered to promptly inform the Court and request that the demurrer be dropped from calendar. If resolution was not so achieved, Defendant's counsel was ordered, no later than two weeks prior to the next hearing (i.e., March 30, 2021), to file a declaration that...

Excerpt: ...the parties and to stay these proceedings. Plaintiffs contend that the contract between the parties violates the requirements of Business & Professions Code section 7159, which sets forth the terms that a licensed contractor must include in this type of construction contract. Plaintiffs claim that since the contract does not satisfy this code section, the contract is invalid. While the contract may arguably be voidable since Plaintiffs are the on...

Excerpt: ...into a walking path. (3/2/21 O'Connor decl. ¶¶ 3‐4.) While Defendant asserts the wheel stop was not “concealed” (Fact 11), Defendant's own photographic evidence of the wheel stop tends to support aspects of Plaintiff's description of blending into the surrounding environment due to its composition and the light conditions (12/30/20 Mendoza decl. & exhibits). Based on this evidence, the Court cannot make a determination that no reasonable ...

Excerpt: ...cates its tentative ruling on the renewed MSJ. A hearing has been set for February 9, 2021, at 8:30 a.m. should Winn and/or Plaintiffs request oral argument. The Court concludes that Winn failed to meet its initial burden of showing that the causes of action alleged against it have no merit. (Code Civ. Proc., § 437c, subd. (p)(2).) In undertaking its analysis, the Court has considered the moving papers from all of the dates set forth above, as w...

Excerpt: ...�and‐ confer process prior to the filing of the demurrer. Plaintiff is granted 20 days leave to amend the FAC to resolve those two errors. Given the centrality of the exhibits to all three of Plaintiff's causes of action and the uncertainty—at best—and impossibility—at worst—of evaluating the attacks on and defenses of the sufficiency of the allegations of the FAC without those exhibits, the demurrer is overruled without prejudice as to...

Excerpt: ...s attempted application of Lowry v. Port San Luis Harbor District (2020) 56 Cal.App.5th 211 to the instant case. The Lowry opinion does not discuss whether a new cause of action added to an existing complaint after the rejection of a government claim is barred by the Government Claims Act, and the Court does not understand that issue to have been one raised by the facts of Lowry. In the instant case, Plaintiff amended his complaint to add the FPB...

Excerpt: ...prior to the hearing date and should not be construed as a tentative ruling: On or around January 11, 2021, the Court received from Plaintiff, proceeding in pro per, a paper titled “Motion to Dismiss without Prejudice,” which reflected her request to “dismiss all causes of action in the complaint without prejudice.” Plaintiff appears to have intended to cite section 581 of the Code of Civil Procedure in support of her “motion.” This r...

Excerpt: ...papers prior to the hearing date and should not be construed as a tentative ruling: The Court intends to deny the motion on the basis of inadequate evidence of improper service of the summons and complaint. The parties are not expected to notify the Court or each other of an intention to appear on December 8, 2020. ...

Excerpt: ...action for fraud in his verified first amended cross-complaint The court's file for this action indicates that proper notice of this motion was given to all parties. There has been no response to this motion. This is an action for financial elder abuse and rescission/restitution brought by plaintiff and cross- defendant Daniel Flores. Defendant and cross-complainant Shane Headrick pleads causes of action for breach of contract and fraud. The subj...

Excerpt: ... a final compliance review hearing for January 5, 2021 at 8:30 a.m. in Department 7. If a sufficient declaration showing full compliance with the terms of the settlement is filed prior to the hearing, it will go off calendar. The court reviews the motion and Settlement Agreement for support that the settlement is fundamentally fair, reasonable, and adequate with reference to the public policies underlying PAGA. (O'Connor v. Uber Technols., Inc. (...

Excerpt: ...xcluding Plaintiff from Claiming Mental Distress Damages Moving party: Defendant Big Oak Flat‐Groveland Unified School District Motion filed: September 25 and 28, 2020 Tentative ruling: Reportedly due to various errors on the part of a service the District hired to file its moving papers, the moving papers were not filed on September 8, 2020, when the District intended, and instead were filed on September 25, 2020 (memorandum of points and auth...

Excerpt: ... be used at trial in the instant case “if the deponents are unable to be served (outside the state) and/or found for trial subpoenas and/or their use in trial for past recollection recorded and/or impeachment [sic].” (Memorandum of points and authorities [MPA] at 3:21‐23.) Plaintiffs list 14 deponents in their moving papers. (Id. at 5:16‐18.) Plaintiffs cite Code of Civil Procedure section 2025.620, subdivision (g) (hereafter section 2025...

Excerpt: ...at, at the time of its review of the file on September 21, 2020, there was no proof that a copy of the September 1, 2020, minute order had been served on Plaintiff.) The September 1, 2020, minute order also reflects the Court's intention to dismiss the case if the complaint is not served by the review hearing set for November 3, 2020. On June 23, 2020, Plaintiff filed what he titled a “Motion to Dismiss Action without Prejudice.” That “moti...

Excerpt: ...rties: Defendants WinnCompanies, LLC; Roxanne Cowee; and Erin Daniels (hereafter Winn Defendants) Joinder filed: July 23, 2020 Tentative ruling: The hearing will be CONTINUED to August 18, 2020, at 8:30 a.m., as set forth below. Analysis On July 20, 2020, while their motion for summary judgment was pending, Seller Defendants filed the instant motion. The instant motion requests an order striking Plaintiffs' expert disclosure pursuant to Code of C...

Excerpt: ...ivision (p)(2) by citing what it asserts are “factually devoid” responses to discovery requests (Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590; Krantz v. BT Visual Images, L.L.C. (2001) 89 Cal.App.4th 164, 170‐ 172), the instant motion is denied as to each cause of action in CSAA's complaint, as well as to the cross‐complaint of Gilroy Auto Outlet, Inc., dba Modesto Subaru (hereafter Modesto Subaru), because there are triabl...

Excerpt: ... this motion. Plaintiff is awarded $2,000 as a monetary sanction (reduced from the $6,172.50 sought) against Ross and its counsel. (Code Civ. Proc., § 2033.290, subd. (d).) The monetary sanction shall be paid within 20 days of service on Ross and its counsel of a copy of the order on this motion. Analysis On January 3, 2020, Plaintiffs requested an informal discovery conference regarding responses from Defendant Ross Dress for Less, Inc. (hereaf...

Excerpt: ... the Delores M. Delaney Living Trust. The complaint alleges causes of action for breach of contract, unjust enrichment/quantum meruit, constructive trust, injunctive relief, and declaratory relief. Delores Delaney filed an answer on May 28, 2019, in her individual capacity and in her capacity as trustee. Shea Garrett filed an answer on June 17, 2019, in his capacity as trustee of the same trust. Plaintiff filed a petition pursuant to Probate Code...

Excerpt: ...e to the exhibit, title, page, and line numbers.” Defendant failed to include the exhibit number of the evidence cited in support of most of its 157 undisputed material facts. Where exhibit numbers were included, Defendant failed to include the title (or description) of the evidence and, where applicable, page numbers for multiple‐page exhibits. One of the reasons for this rule is to facilitate the Court's efficient location of the evidence c...

Excerpt: ...ors, L.L.C. Motions filed: March 26, 2019 (hearings continued from May 10, 2019) Motion #3: Motion that Truth of Matters Be Deemed Admitted and for Payment of Sanctions Moving parties: Defendants 80 Oak Hills Apartments, L.P.; 80 Columbia Village Townhomes, L.P.; and 60 Forest View Senior Housing, L.P. Motion filed: March 26, 2019 (hearing continued from May 10, 2019) Tentative rulings: No tentative rulings are available regarding the above three...

Excerpt: ...eement containing the arbitration provision was entered into in the context of severance of employment. It was not an agreement for employment. Labor Code section 925 has no application in this context. Comment According to the caption thereof, Attorney Charles Stoner filed the opposition to the instant motion on behalf of Bryan Gerdau, Jennifer Gerdau, Jeffery Wagner, Charles “Stern,” and Kristin “Stern.” However, at the time of the Cour...

Excerpt: ...s Plaintiff appears to have understood the instant motion to target the first amended complaint (FAC) filed on March 15, 2019, the Court has analyzed the motion as applied to the FAC. The motion targets all four causes of action in the FAC for failure to state a cause of action. As a general matter, the Court has disregarded all purported statements of fact that appear in Defendant's moving and reply papers that go beyond or are different from th...

Excerpt: ...y 13, 2016. (Motion at 7:11‐12.) However, it asserts that service was “ineffective” because Defendant Leslie Allen, who is the sole owner of RPM LLC (4/24/19 Allen decl. ¶ 2), “never received the summons/complaint from this action from Mr. Willis.” (Motion at 7:13‐16.) For this proposition, RPM LLC cites National Equipment Rental, Limited v. Szukhent (1964) 375 Tentative Rulings: Department 4 Tuesday, July 2, 2019 Civil Law and Motio...