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: ...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: ...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: ...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: ...f 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) 35 Cal.3d 197, 213 [197 Cal.Rptr. 783].) All properly pleaded allegations of fact in the pleading are accepted as true, but not the contentions, deductions, or conclusions of fact or law. ...

Excerpt: ...n of documents; and (4) request for admissions. (Decl. of Arthur Zorio, Exs. B–E.) Plaintiff failed to provide any responses. (Id., ¶¶ 4–8.) On June 15, 2018, the court granted defendant's motion for an order to deem matters admitted, to compel plaintiff's responses, and ordered the payment of $1,000 in sanctions by July 14, 2018. (Id., Ex. F.) Plaintiff failed to comply with the June 15 order. On August 3, 2018, defendant moved for termina...

Excerpt: ...f plaintiff's claims, Nationstar is clearly the prevailing party. (See Civ. Code § 1717, subd. (b)(1).) The deed of trust and the note that plaintiff signed in January 2004 when he borrowed $476,000 for a mortgage loan both contain broad attorney fee provisions. Specifically, section 9 of the deed of trust provides that if there is a legal proceeding that might significantly affect the lender's interest in the property and/or rights under the de...

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: ...ocess of finalizing settlement agreements with several defendants. She requests that proceedings with these defendants be stayed pending full execution of the agreements. Motion for stay pending full execution of the settlement agreements is granted. Plaintiff's Motion for Hearing re: Subpoenas for Documents Plaintiff's motion pertains to DMV records, Department of Real Estate (“DRE”) records, and the file from Old Republic Title. Plaintiff's...

Excerpt: ...¶ 1.) On June 12, 2019, defendants served unverified responses. (Id., ¶ 2 & Exs. 10– 18.) On June 17, 2019, plaintiff's counsel sent a letter to defendants' counsel regarding deficiencies in the responses and the lack of verification. (Id., ¶ 3 & Ex. 19.) Supplemental responses were served on June 28, 2019, but the responses were verified by defendants' attorney and not the parties. (Id., ¶ 4 & Exs. 20–28.) On July 1, 2019, plaintiff's co...

Excerpt: ...form interrogatories—general (set one). 1. BACKGROUND In May 2018 TKPOA moved to compel responses from TK Marina to these same discovery demands, in addition to a motion to deem matters admitted. On June 15, 2018, the court granted TKPOA's motion in its entirety and ordered TK Marina to pay $1,000 as a sanction under the Discovery Act. In August 2018 TKPOA moved for terminating sanctions, monetary sanctions, and contempt sanctions for TK Marina...

Excerpt: ..., ¶ 2.) On March 26, 2019, when no discovery responses had been served, plaintiff's attorney contacted defendant's attorney in an attempt to meet and confer about the issue. (Id., ¶ 3.) On April 23, 2019, the attorneys discussed the overdue discovery. (Id., ¶ 4.) Defendant's attorney promised that responses would be served within two weeks of their conversation. (Ibid.) As of May 17, 2019, plaintiff's counsel had not received any responses. (I...

Excerpt: ...iff's motion for summary judgment or, alternatively, summary adjudication, against defendant Simms. 1. STANDARD OF REVIEW “A plaintiff … has met his or her burden of showing that there is no defense to a cause of action if that party has proved each element of the cause of action entitling the party to judgment on the cause of action. Once the plaintiff … has met that burden, the burden shifts to the defendant … to show that a triable iss...

Excerpt: ...icia alleges that Mark violated two provisions of the Agreement: (1) he did not make the Shroud of Turin casting available to Alicia to take photographs and to make copies of available documents, and he has not coordinated its sale; and (2) he did not honor her irrevocable right of first refusal to purchase, at 92% of market price or third party offer, with at least 4 months' notice when Mark or Jonathan decided to sell the residence at 1230 Marg...

Excerpt: ...furnish and maintain copies of accurate wage statements. Defendants now move for summary judgment or, alternatively, summary adjudication. 1. BACKGROUND Plaintiff was employed as an hourly, nonexempt restaurant server at Jimmy's Restaurant located inside The Landing Resort and Spa in South Lake Tahoe from August 2016 to July 2017. (Pl.'s Separate Stmt. of Disputed Material Facts (“DMF”), ¶ 1.) On August 7, 2017, plaintiff submitted letters t...

Excerpt: ...hlin was denied on May 7, 2019. As such, there is no basis to stay any matters pending resolution of that motion. Additionally, Code of Civil Procedure § 404.5 pertains to the coordination of cases, which is not applicable here. Defendant's Motion to Expunge Lis Pendens Pending is a motion to expunge lis pendens by defendant California Department of Veteran Affairs. The motion is opposed. 1. LEGAL PRINCIPLES RE: LIS PENDENS A lis pendens is a re...

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: ...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: ...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: ...ited to, insect and rodent infestation, mold, fungus, and asbestos. Pending is defendant Realogy Holdings' (“Realogy”) demurrer to the fourth, fifth, sixth, eleventh, and twelfth causes of action. 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's all...

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: ...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: ...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: ...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: ... 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: ...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: ...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: ...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: ...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: ... 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: ...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: ...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...

Excerpt: ...t 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. (Gov't Employees Ins. Co. v. Super. Ct. (2000) 79 Cal.App.4th 95, 98 [93 Cal.Rptr.2d 820]; Laabs v. City of Victorville (2008) 163 Cal.App....

Excerpt: ...on July 11, 2018, by first class mail, postage prepaid, and return receipt requested. Default was entered against Ditech on August 21, 2018. To date, judgment has not been entered against Ditech. On December 7, 2018, Ditech filed its motion to set aside default. Ditech's motion is made pursuant to Code of Civil Procedure § 473, which provides in part: “The court may, upon any terms as may be just, relieve a party … from a judgment, dismissal...

Excerpt: ... not oppose the motion. If opposition papers are not timely filed, the court, in its discretion, may deem it a waiver of any objections and treat it as an admission that the motion is meritorious and may grant the motion. (Local Rules of the El Dorado County Superior Court, Rule 7.10.02(C).) The court will exercise its discretion and deem plaintiff's non‐opposition as an admission the motion is well taken. Defendants' motion to sever the statut...

Excerpt: ...A motion for judgment on the pleadings has the same purpose and effect as a general demurrer. (Smiley v. Citibank (1995) 11 Cal.4th 138, 146 [44 Cal.Rptr.2d 441].) Like a demurrer, a motion for judgment on the pleadings admits, for purposes of the motion, the truth of all material facts that have been pleaded. (Consol. Fire Prot. Dist. v. Howard Jarvis Taxpayers' Ass'n (1998) 63 Cal.App.4th 211, 219 [73 Cal.Rptr.2d 586].) The motion raises the le...

Excerpt: ...al. Thus, the court could not yet make a ruling on defendant's demurrer made on the basis of res judicata. Plaintiffs' appeals in the California state courts are now exhausted. Plaintiffs recently requested a continuance of this hearing in order to request review from the United States Supreme Court (“SCOTUS”). Plaintiffs' request for another continuance is denied. Plaintiffs' underlying cases are now final since there is no other level of th...