Excerpt: ...e to hear this motion. The court set the hearing for December 20, 2019; and directed the following: the motion is to be filed and served by December 12, 2019; opposition papers are to be filed and served by December 17, 2019; and the reply is to be filed and served on December 19, 2019. The proof of service declares that on December 12, 2019 notice of the hearing and the moving papers were served by mail to the interested parties. At the time thi...

Excerpt: ... this litigation was filed plaintiff was reemployed by defendant and as part of that reemployment plaintiff executed an arbitration agreement on December 28, 2018 covering all past, present and future claims arising from employment and waiving all class action claims. Defendant contends: class action waivers are generally valid and enforceable as stated in Epic Systems Corp. v. Lewis (2018) 138 .Ct. 1612, 1632.); plaintiff's individual claims are...

Excerpt: ...nce; (3) concealment; (4) intentional misrepresentation; (5) negligent misrepresentation; and (6) declaratory relief against plaintiff/cross‐defendants Setter Construction Corporation and Patrick Setter. Cross‐ defendants now demur to the Second and Sixth Causes of Action on the basis that these claims fail to state a cause of action, and they also move to strike portions of the ACC. DEMURRER TO AMENDED CROSS‐COMPLAINT 1. Standard of Review...

Excerpt: ...cial meeting was to be held. The special meeting took place on August 7, 2019. Pending is plaintiff's motion to file a First Amended Complaint (filed Oct. 31, 2019). The motion is opposed by the Association. LaTour Hotels and Resorts filed a joinder to the Association's opposition. The motion is denied because it does not “relate back” to the original complaint and appears to be more akin to a supplemental complaint. (See Code of Civ. Proc. �...

Excerpt: ...(a)(2), requires that the plaintiff set forth in the motion the allegations in the previous pleading that are proposed for deletion, and where (by page, paragraph, and line number) the deleted allegations are located. Subdivision (a)(3) requires that the plaintiff set forth in the motion the allegations that are proposed to be added, and where (by page, paragraph, and line number) the additional allegations are located. Plaintiff also did not sub...

Excerpt: ...t on the 2nd amended complaint on the following grounds: defendant correctly calculated the annual changes in the variable interest rate on the loan as provided for by the agreement and charged the proper amount of interest under the terms of the subject agreement, therefore defendant did not breach the agreement; defendant did not charge 5.75% interest in March 2017 as alleged in paragraph 19 of the 2nd amended complaint, because a delinquent ac...

Excerpt: ... Cordonnier; deponent Mr. Cordonnier failed to appear at his scheduled deposition; and defendant incurred attorney fees in the amount of $1,300 representing four hours of attorney time to prepare the motion and costs of $60 for the filing fee. Defendant moves to compel Mr. Cordonnier's deposition and requests an award of monetary sanctions in the amount of $1,360. On October 25, 2019 the court granted plaintiff's counsel's motion to be relieved a...

Excerpt: ...for and then constructing an alternative bridge over the creek that runs over both properties in order to provide the Nygaard property its own access to the home on the Nygaard property without plaintiff having to use the existing bridge and driveway easement. On July 6, 2018 the court granted plaintiff's request for a TRO, which enjoined defendants, their officers, agents, employees and representatives from blocking, restricting, or impeding the...

Excerpt: ...ARD OF REVIEW A demurrer is directed at the face of the pleading and to matters subject to judicial notice. (Code of Civ. Proc. § 430.30, subd. (a).) “It is not the ordinary function of a demurrer to test the truth of the [petitioner's] allegations or the accuracy with which he describes the [respondent's] conduct. A demurrer tests only the legal sufficiency of the pleading.” (Comm. on Children's Television, Inc. v. Gen. Foods Corp. (1983) 3...

Excerpt: ...terrogatories are not ambiguous. Ambiguity is a valid objection, but only if the question is wholly unintelligible. An interrogatory must be answered if “the nature of the information sought is apparent.” (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 783 [149 Cal.Rtpr. 499].) Here, the nature of the information sought is apparent and not wholly unintelligible. Plaintiff states in her supplemental response that she is entitled to actual damages...

Excerpt: ... that some, but not all, of the pages of the passport were produced. In response, defendant states that all pages of the passport have now been produced. In reply, plaintiff does not address whether all pages of the passport have been received. Regardless, what is clear is that defendant still has not provided a verified written response to RP No. 24. Unverified responses to discovery demands are tantamount to no responses at all. (Appleton v. Su...

Excerpt: ...nd Eve Lowry, which was filed in 2006 (See PFL20060896.). Defendant Eve Lowry argues: the real and personal property rights raised in the civil action are subject to the jurisdiction of the Family Law Court that first acquired jurisdiction, thereby making the Family Law Court the exclusive jurisdiction for the civil causes of action to be heard. Plaintiff opposes the motion on the following grounds: the conduct of the named defendants occurred af...

Excerpt: ...ourt. The court will address each motion separately. Plaintiff's Motion to Deem Admitted Requests for Admission. Plaintiff's counsel declares: on July 25, 2019 requests for admission, set two were served on defendant; and defendant failed to provide any responses to requests for admission, set two. Plaintiff moves to deem admitted requests for admission, set two and further requests an award of monetary sanctions. The proof of service in the cour...

Excerpt: ...rds, including email communications between the Planning Division and four email domains, and records concerning a criminal investigation. Respondents answered on August 1, 2019. The parties' briefing is now complete and the matter is set for oral argument on the merits. Petitioner filed an opening brief and declaration (filed Sept. 23, 2019); respondents filed an answering brief and several declarations (filed Oct. 15, 2019); and petitioner file...

Excerpt: ...n the action .… [¶] … The motion shall be made on the grounds that the plaintiff resides out of the state … and that there is a reasonable possibility that the moving defendant will obtain judgment in the action or special proceeding.…” (Id., subds. (a), (b).) This matter was continued from November 22 in order for plaintiff to file a corrected declaration and to submit documentary evidence in support of her assertion that the motion s...

Excerpt: ...g Bergstedt Defendants' Good Faith Settlement Tahoe Realty's Motions to Quash Deposition Subpoenas re: DMV & DRE The motions to quash are granted. Tahoe Realty's Motion to Continue Trial, Joined by Nelson Group Good cause appearing, motion to continue trial is granted. The trial date, currently set to commence January 27, 2020, is hereby vacated. The matter is referred to the calendar clerk for setting of a Case Management Conference to select ne...

Excerpt: ...the MSC set for December 4, 2019. Plaintiff would not stipulate. On September 30, 2019 defense counsel received a letter from plaintiff's counsel stating plaintiff did not agree for the examination to take place more than 75 miles from her residence and plaintiff requested a nurse consultant be present at any examination. Defendants move to compel plaintiff to travel hundreds of miles from Hemet, California to Sacramento, California in order for ...

Excerpt: ...laintiff and Castaway Properties, a dissolved California LLC. (Compl., ¶¶ 14–15; Mot., Ex. 1, p. 8, ¶ 22.) Castaway Defendants cannot compel the other parties in this litigation to mediate and/or arbitrate based upon a Purchase Agreement to which they were not parties. Additionally, the statutes cited by Castaway Defendants in support of the motion, Code of Civil Procedure §§ 1281.2 and 1281.4, pertain to arbitration, not mediation. Additi...

Excerpt: .... (B) Realogy's Demurrer to Second Amended Complaint Visiting Judge David DeVore continued the May 3 hearing on Realogy's demurrer to May 17. Appearances are required for oral argument regarding the May 3 tentative ruling sustaining the demurrer without leave to amend. (C) Tahoe Realty Group's Demurrer to Second Amended Complaint Plaintiff Jeanne Kysar‐Carey's Second Amended Complaint (“SAC”) asserts 19 causes of action against a host of de...

Excerpt: ...suant to Code of Civil Procedure, § 36(b) on the following grounds: minor plaintiff Dylan B. is four years old and has a substantial interest in the action. Notice of the March 14, 2019 hearing on the motion for preference and the moving papers were served by mail to defendant Select Property Management, Inc. There was no opposition to the motion in the court's file and the motion was granted. Therefore, trial must be set to commence within 120 ...

Excerpt: ...ased upon new facts or, alternatively, for relief under Code of Civil Procedure § 473 based upon excusable mistake. Plaintiff's motion for reconsideration is granted. Upon reconsideration, the court will vacate its prior decision and enter a new order denying Nationstar's motion for order finding no right to a jury trial. California's constitutional history reflects a steadfast commitment regarding litigants' right to a civil jury trial, with li...

Excerpt: ... is a fatal defect as a misjoinder of parties within the meaning of Code of Civil Procedure, 430.10(d); the fraud based causes of action are fatally defective, because plaintiffs have failed to allege damages as a result of the alleged fraudulent conduct; the fraud based causes of action are vague, ambiguous, and uncertain in that they fail to plead facts with the required specificity to establish each of the elements of those causes of action; t...

Excerpt: ...led a verified complaint for (1) summary order under Corporations Code § 7511, subdivision (c); and (2) declaratory relief. Pending is defendant Tahoe Beach and Ski Club Owners Association's (“the Association”) demurrer to the entire complaint. 1. STANDARD OF REVIEW A demurrer is directed at the face of the complaint and to matters subject to judicial notice. (Code of Civ. Proc. § 430.30, subd. (a).) “It is not the ordinary function of a ...

Excerpt: ...UCC filings to send acknowledgments to the Angela Kim Carleton Trust and Deryl C. Zeleny. Default was entered against the respondents on February 26, 2019. On March 28, 2019 the court granted a default judgment striking and releasing the UCC liens and awarding petitioners attorney fees and costs in the amount of $12,835.50. Respondent Zeleny filed a motion to vacate and dismiss the complaint for fraud upon the court on behalf of both respondent Z...

Excerpt: ...nt would not release the vehicle to him without payment of an undisclosed amount by cashier's check. On April 5, 2019 the court reviewed plaintiffs' ex parte application for a temporary restraining order and preliminary injunction to prevent defendant Orchid Management from selling the vehicle to obtain payment for the purported disputed debt and to prevent the defendant DMV from transferring title pursuant to any such sale. The court granted the...

Excerpt: ...r 2016 the parties agreed to the following: the Oregon litigation between the parties would be dismissed without prejudice; plaintiff would refile the case in El Dorado County; defendants would appear and accept jurisdiction in El Dorado County; the parties will mediate the dispute; and if mediation fails, the parties will promptly submit to an arbitration of the dispute, which will be binding and not appealable. On February 14, 2018 the court gr...

Excerpt: ...ge in certain activities related to the subject real property. On August 27, 2018 respondent Rawat filed a notice of appeal from that order, which remains pending in the Third District Court of Appel. The filing of the appeal does not automatically stay the order appointing the receiver. “The perfecting of an appeal shall not stay enforcement of the judgment or order in the trial court if the judgment or order appealed from appoints a receiver,...

Excerpt: ...ty against defendant Milgard. Plaintiffs argue that they should be granted leave to amend for the following reasons: the facts or evidence that will support the causes of action for negligence and strict liability will be the same or similar to those facts used to support the claim for breach of express warranty against defendant Milgard; there is no surprise or prejudice to defendant by permitting the amendment; and depositions have not yet been...

Excerpt: ...ficient particularity a cause of action for dangerous condition of public property, because plaintiff failed to allege that the cause of action was premised upon Government Code, § 835. Plaintiff opposes the demurrers on the following grounds: the allegations of the general negligence cause of action sufficiently state a cause of action for a dangerous condition of public property; the facts alleged in the premises liability cause of action are ...

Excerpt: ...egations of the complaint and asserted two affirmative defenses that plaintiff had not complied with CEQA or NEPA requirements by failure to adequately consider and mitigate effects of the public project on defendant's property with respect to ingress and egress of vehicles onto the widened public highway. On February 8, 2019 defendant MHS Ponderosa Limited Partners filed a motion for leave to file an amended answer and a cross‐complaint. Defen...

Excerpt: ...ffs move to advance the trial date to be set within 120 days of May 24, 2019. Plaintiffs contend that there exists good cause to advance the trial date, because plaintiffs are suffering emotional distress and financial hardship from the litigation due to two last minute trial continuances. Defendants DeVincenzi and DeVincenzi and Associates, Inc. (DeVincenzi) oppose the motion on the following grounds: the interest of justice is not served by gra...

Excerpt: ..., 2018 order compelling the deposition. Plaintiffs also seek an award of $5,400 in monetary sanctions against defendant. Defendant Seymour West, LLC opposes the motion on the following grounds: plaintiffs failed to comply with the procedural requirements to maintain an action for civil contempt in that they failed to apply for issuance of an OSC Re: Contempt; defendant Seymour West, LLC is not in contempt, because the facts establish defendant ha...

Excerpt: ...possession on March 15, 2019, the court denied the claim. Bankruptcy Stay The court was informed on January 30, 2019 that the motion to stay and motion for relief from the automatic stay were set for hearing before the bankruptcy court on February 12, 2019. At the hearing on January 30, 2019 the court referred to Lee v. Baca (1999) 73 Cal.App.4th 1116, 1119‐1122 for the proposition that a bankruptcy petition filed after entry of judgment does n...

Excerpt: ...overning practice in civil actions generally apply to [partition] actions under this title except where they are inconsistent with the provisions of this title.” (Code of Civ. Proc. § 872.030.) The party moving for summary judgment bears the initial burden of making a prima facie showing of the nonexistence of a triable issue of material fact, and only if the moving party carries the initial burden does the burden shift to the opposing party t...

Excerpt: ...nment Code, § 815, because promissory estoppel is a common law claim and there is no specific statutory authority alleged in the complaint that declares governmental entities are liable for promissory estoppel; defendant County is immune from liability for the alleged misrepresentation related to leave coverage under Government Code, § 818.8; the failure to accommodate cause of action is fatally defective in that plaintiff admits her doctor adv...

Excerpt: ...e motion, ordered that venue be changed to the Los Angele County Superior Court, and ordered plaintiff to pay defendant $2,490 in attorney fees and costs incurred to pursue this motion. On January 9, 2019 plaintiff filed this motion to vacate the order pursuant to the provisions of Code of Civil Procedure, § 473(b). Plaintiff contends the order granting the motion was due to mistake, inadvertence, surprise, or excusable neglect due to the follow...

Excerpt: ... of the Board as mandated by Public Resources Code, § 21167.6(a) and Code of Civil Procedure, § 416.50. Respondent County also moves to dismiss the action with prejudice on the grounds that petitioner failed to properly serve respondent County within ten days of filing the petition as required by Public Resources Code, § 21167.6(a); and/or the action is barred by the applicable statute of limitations as it was not timely filed. Petitioner oppo...

Excerpt: ...rt to order the parties to the agreement to arbitrate a dispute. The court shall order arbitration, unless it determines that the right to compel arbitration has been waived by petitioner, that grounds exist for rescission of the agreement, or that a party to the agreement is also a party to a pending court action or special proceeding with a third party. “Such a petition essentially seeks specific performance of the arbitration agreement. [Cit...

Excerpt: ...y function of a demurrer to test the truth of the plaintiff's allegations or the accuracy with which he describes the defendant's conduct. A demurrer tests only the legal sufficiency of the pleading.” (Comm. on Children's Television, Inc. v. Gen. Foods Corp. (1983) 35 Cal.3d 197, 213 [197 Cal.Rptr. 783].) All properly pleaded allegations of fact in the complaint are accepted as true, but not the contentions, deductions, or conclusions of fact o...

Excerpt: ... Trustees of the Michael S. and Lori W. McKeen Family Trust; and John Cefalu and Judy Cefalu, individually and as Trustees of the Cefalu Family Revocable Trust. PRELIMINARY MATTERS Plaintiff raises two procedural objections to the demurrer. First, plaintiff argues the demurrer is defective because defendants did not file the actual demurrer. That objection is well taken. At a minimum, the papers filed in support of a demurrer must include the dem...

Excerpt: ...sponses to plaintiff's form interrogatories and request for production of documents. (Id., Ex. 2.) She objected to disclosure of the subject report on the basis of attorney‐client privilege and work‐ product doctrine, and declined to produce the report. (Ibid.) In a letter to defendant's attorney dated October 12, 2017, plaintiff's attorney raised the issue of the report, arguing that he believed he was legally entitled to it and that any pri...

Excerpt: ...cluding “Errors and Omissions, negligence, etc.” (Def.'s Mot. at 6:16–23.) Defendant states that Alling “refused to provide the insurance information.” (Id. at 6:24–25.) The discovery statutes “must be construed liberally in favor of disclosure unless the request is clearly improper by virtue of well‐established causes for denial.” (Greyhound Corp. v. Super. Ct. (1961) 56 Cal.2d 355, 377 [15 Cal.Rptr. 90].) The test of discovera...

Excerpt: ...rict. Now pending is the Resort Defendants' demurrer to plaintiffs' First Cause of Action for Negligence/Premises Liability/Failure to Warn. The demurrer is made on the basis that the First Cause of Action fails to state facts sufficient to constitute a valid cause of action because: (1) the Resort Defendants did not owe any legal duty to warn of or protect plaintiffs from alleged dangers on adjacent property that the Resort Defendants did not ow...

Excerpt: ...ion for order granting leave to file a first amendment to the answer. Defendant contends that as a result of a ruling made by the Probate Court in December 2018 regarding decedent's estate, additional meritorious affirmative defenses have arisen. Plaintiffs are opposed on the basis that the motion does not comply with rule 3.1324, subdivision (b), of the California Rules of Court. “The court may, in furtherance of justice, and on any terms as m...

Excerpt: ... removing or damaging the rock wall and/or otherwise interfering with Mr. Sebring's use of the Road Easement.” (CrossCompl. at 5:17–19.) 1. BACKGROUND Sebring and Bernstein own property in the Diablo Hills subdivision, El Dorado Hills, California. Sebring is the owner of Parcel B and Bernstein is the owner of Parcel A, as shown on the Parcel Map filed in the Office of the County Recorder, El Dorado County, in 1978. (Cross‐Compl., ¶ 1; Decl...

Excerpt: ...ant was served with the moving papers by mail on September 25, 2018. The hearing on the motion was set for October 26, 2018. On October 22, 2018, plaintiff's attorney filed a declaration stating that on September 24, 2018, her office received from defendant the responses to plaintiff's requests for admissions. Also on October 22, the court received a letter from defendant requesting that the October 26 hearing be vacated because he had served his...

Excerpt: ...ement.” (CrossCompl. at 5:17–19.) 1. BACKGROUND Sebring and Bernstein own property in the Diablo Hills subdivision, El Dorado Hills, California. Sebring is the owner of Parcel B and Bernstein is the owner of Parcel A, as shown on the Parcel Map filed in the Office of the County Recorder, El Dorado County, in 1978. (Cross‐Compl., ¶ 1; Decl. of Michael W. Thomas, Ex. A.) There is a 50' wide nonexclusive road and public utilities easement tha...

Excerpt: ...rida. “Article IV, section 1 of the United States Constitution provides that ‘[f]ull Faith and Credit shall be given in each State to the public Acts, Records and judicial Proceedings of every other State.' ‘It has long been the law that “the judgment of a state court should have the same credit, validity, and effect in every other court in the United States, which it had in the state where it was pronounced.” [Citations.]' [Citation.] ...

Excerpt: ...s Second Amended Complaint (“SAC”), filed November 5, 2018, asserts 10 causes of action against defendants Clear Recon Corp. and Ditech Financial (“Ditech”). Pending is Ditech's demurrer to the SAC. 1. STANDARD OF REVIEW A demurrer is directed at the face of the complaint and to matters subject to judicial notice. (Code of Civ. Proc. § 430.30, subd. (a).) “It is not the ordinary function of a demurrer to test the truth of the plaintiff...

Excerpt: ...iff alleges the defendants intentionally concealed, did not detect, or withheld knowledge regarding extensive problems with the home, including, but not limited to, insect and rodent infestation, mold, fungus, and asbestos. Pending are demurrers from two groups of defendants, as well as a motion to strike portions of the FAC. For simplicity's sake, the court will refer to these groups as the Nelson Group1 and the Tahoe Realty Group2. A. NELSON GR...