Tentative Rulings

These are the Court’s tentative rulings.  In order to argue at the hearing, you must notify the parties and, thereafter, notify the clerk’s office by email at OA@nccourt.net or by calling (530)362-4309 by 4:00 p.m. the court day prior to the date and time set for hearing.  If you do not so notify all other parties and the Court, the tentative ruling shall become the final ruling of the Court.  Any argument is limited to five (5) minutes per party, unless the Court determines additional argument time is needed.  See California Rule of Court 3.1308, Local Rule 4.05.3.

Personal appearances are permitted.  You may also appear via video by arranging a remote Zoom appearance at the time notice of request for oral argument is made by emailing: nccounter@nccourt.net 

Unless the Court orders otherwise, the Court will not be able to provide court reporters for probate or civil law and motion hearings and does not provide court reporters for case management conferences.  Any litigant who wants a record of a law and motion matter or a case management conference must arrange for the presence of a court reporter at his or her expense.  See Local Rule 10.00.3 B.

FOR ALL LAW AND MOTION MATTERS, UNLESS OTHERWISE ORDERED, THE PREVAILING PARTY SHALL SUBMIT A FORMAL ORDER SETTING OUT VERBATIM THE TENTATIVE RULING ANNOUNCED HEREIN (OR THE ORDER OF THE COURT FOLLOWING ORAL ARGUMENT SHOULD IT DIFFER FROM THE TENTATIVE RULING) IN COMPLIANCE WITH CALIFORNIA RULE OF COURT 3.1312 AND SHALL, THEREAFTER, PREPARE, FILE AND SERVE NOTICE OF THE ORDER PURSUANT TO THE RULE OF COURT.

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January 31, 2025 Dept. 6 Civil Law and Motion Tentative Rulings

1.         CU0000410    Taylor Strunk v. Stagecoach Motel, et al.

No appearances are required or authorized.  On the court’s motion, plaintiffs’ November 22, 2024 motion for relief pursuant to Code of Civil Procedure section 473(b) is continued to February 14, 2025 at 10:00 a.m., in Dept. 6.

2.         CU0000982    James Mistron, et al. vs. General Motors, LLC

No appearances are required or authorized.  A hearing was originally scheduled at the request of plaintiffs for their potential motion for a directed verdict.  Plaintiffs have not filed a motion.  The hearing is vacated.   Defendant is directed to file an appropriate judgment, approved as to form by plaintiffs, by no later than February 14, 2024.  The clerk shall serve a copy of the minutes on all parties.    

3.         CU0001533    In the Matter of Mark O'Geen

Argument for the petition for a writ of mandate is continued from 10:00 a.m. to 3:30 p.m., January 31, 2025, in Dept. 6.  Appearances are required. 

4.         SC0000372     Thomas Deal v. Fred Gerkensmeyer

No appearances are required or authorized.  On the court’s motion, plaintiff’s November 13, 2024 (third) motion for reconsideration of Judge La Porte’s September 26, 2024 ruling regarding trial de novo is continued to February 14, 2025 at 10:00 a.m., in Dept. 6.

January 24, 2025 Dept. 6 Civil Law and Motion Tentative Rulings

1.  CL0001447           Vanessa Starkey vs. Jeremiah Storer

No appearances are required.  Defendant’s December 17, 2024 motion to strike plaintiff’s request to set trial and motion to re-open discovery was advanced to December 20, 2024 and denied on that date.  The current hearing date is vacated.

2.  CL0001974           Tri Counties Bank vs. Visitacion B. Lupton

Defendant’s December 19, 2024 motion to set aside default is denied.

Code of Civil Procedure section 473(b) allows a court, “upon terms as may be just”, to set aside a default and default judgment entered against a party through that party’s mistake, inadvertence, surprise, or excusable neglect.  The motion must be made within a reasonable time not to exceed six months, and it must include a copy of the proposed answer.

While a trial court has broad discretion to grant relief under Code of Civil Procedure section 473(b), a defendant must show that they exercised due diligence in seeking relief after learning of the default. See Cruz v. Fagor America, Inc. (2007) 146 Cal.App.4th 488, 503. 

Defendant’s motion does not attach a copy of her proposed answer, although it does note that she will file form UD-105 if her motion is granted.  Thus, she has failed to fulfill this prerequisite to relief.   

Defendant, a self-represented party, bases her motion on the ground of surprise and excusable neglect arguing that she did not understand that she was supposed to file a responsive pleading.  The court is not persuaded.  Defendant filed a September 20 and October 21, 2024 motion to quash service of summons and demurrer.  When the court denied the same on November 8, 2024, the court specifically directed defendant to file an answer by November 18, 2024.  Defendant has offered no credible explanation and no excusable basis for her failure.  

In addition, it is clear that this is a situation where plaintiff would suffer some prejudice were relief granted.  A foreclosure sale for the instant property transpired in June 2024.  Following unlawful judgment litigation, a judgment for possession by default entered in favor of plaintiff, a writ issued, lockout has been effectuated and plaintiff has now recovered possession.  In addition, plaintiff has catalogued the personal property remaining, has served notice to reclaim the abandoned property, and is already in discussion with a real estate broker to list and sell the real property when the personal property has been reclaimed (or properly disposed of) and prepared for sale.

The motion for relief from the default is denied. 

3.  CU0000512           eCapital Asset Based Lending v. Nicole Medina, et al.

No appearances are required.  On the court’s motion, the December 20, 2024 motion to consolidate for all purposes is continued to February 28, 2025, at 10:00 a.m. in Department 6 after the February 21, 2025 hearing on defendant Medina’s et al. motion for summary judgment. 

4.  P21-16971             In the Matter of David Freeman

No appearances are required.  On the court’s motion, the December 20, 2024 motion to consolidate for all purposes is continued to February 28, 2025, at 10:00 a.m. in Department 6 after the February 21, 2025 hearing on defendant Medina’s et al. motion for summary judgment. 

5.  PR0000069            In the Matter of Tracy Freeman

No appearances are required.  On the court’s motion, the December 20, 2024 motion to consolidate for all purposes is continued to February 28, 2025, at 10:00 a.m. in Department 6 after the February 21, 2025 hearing on defendant Medina’s et al. motion for summary judgment. 

6.  CU0000562           Don Zeppenfeld, et al. v. Martin T. Reilley, et al.

No appearances are required.  The case has settled.  Plaintiff’s motion to compel defendants’ further responses to plaintiff’s special interrogatories and request for production of documents is denied without prejudice as moot.  A status hearing regarding settlement and dismissal is scheduled for February 3, 2025, at 9:00 a.m. 

7.  CU0001418           John Albert Bacon, et al. vs. Statewide Homes, Inc.

Motion to Remove Mechanic Lien

John and Sandra Bacon (the Bacons)’ October 21, 2024 motion to remove a mechanic’s lien is granted.

Preliminary Rulings

The Bacons’ October 21, 2024 request for judicial notice is granted. 

The court need not rule on the Bacons’ December 6, 2024 supplemental request for judicial notice.  The court did not consider the requested information as part of its decision set forth below.

The court need not rule on Statewide’s December 10, 2024 request for judicial notice or the Bacons’ December 11, 2024 objection thereto.  The court did not consider the requested information as part of its decision set forth below.

The court need not rule on Statewide’s December 2, 2024 evidentiary objections or the Bacons’ December 6, 2024 evidentiary objections.  For purposes of the decision below, the court assumed that all evidence presented was admissible. 

Standard

“A motion to remove a mechanic's lien is recognized as a device that allows the property owner to obtain speedy relief from an unjustified lien or a lien of an unjustified amount without waiting for trial on the action to foreclose the lien.”  Howard S. Wright Construction Co. v. Superior Court (2003) 106 Cal.App.4th 314, 318. “A motion to remove a mechanic's lien should be granted only when the lienholders fail to make a threshold showing of the ‘probable validity of the lien.’ "  Manela v. Stone (2021) 66 Cal.App.5th 90, 102.  When a lien is challenged, “the burden is on the party opposing the motion to expunge—i.e., the claimant-plaintiff—to establish the probable validity of the underlying claim. (Code Civ. Proc., § 405.30.)”  Howard S. Wright Construction Co., 106 Cal.App.4th 314 at 319.  “The claimant-plaintiff must establish the probable validity of the claim by a preponderance of the evidence. (Code Civ. Proc., § 405.32.)”.  Ibid. 

The Merits

The Bakers seek removal of Statewide’s mechanic’s lien on a variety of grounds.  The Bakers argue that the mechanic’s lien was untimely.  The court agrees.

At bar, the court finds and concludes, under a preponderance standard, that Statewide timely filed its mechanic’s lien.  The court finds, based on the credible record presented, as follows:  The lien was recorded on July 3, 2024. Work appeared to cease on the installation of the manufactured home on April 20, 2023 (at the earliest) or May 31, 2023 (at the latest).  No further work was performed thereafter. The deadline to file a mechanics lien expired no later than 150 days after the work ceased.  See Civil Code § 8180(a)(3) (work complete 60 days after work cessation); Civil Code §§ 8414(b)(1), 8412(a) (90-day deadlines for recording lien after completion). In other words, the deadline to file a mechanics lien was no later October 28, 2023.  There is insufficient credible evidence presented by Statewide to find that “labor associated with the work of improvement continued up until or about April 17, 2024.”  Def. Op. 10:21, citing Murray and Shafer Decls.  On this record, the lien was untimely.   

The Bakers also argue that the manufactured home at issue is personal property not affixed to real property and hence, not subject to a mechanic’s lien.  The court agrees.

As a general matter, “[r]eal property is subject to a mechanic's lien for labor and materials only if the chattels installed became fixtures attached to the realty … and the labor performed resulted in a permanent improvement to the realty.” Vieira Enterprises, Inc. v. City of East Palo Alto (2012) 208 Cal.App.4th 584, 600 (citations omitted), quoting Cornell v. Sennes (1971) 18 Cal.App.3d 126, 131.  “Manufactured homes are personal property until ‘affixed’ to land.”  Id. at 596. ; see Comm. Code § 2105 (“Goods” means “all things (including specially manufactured goods) which are movable at the time of identification to the contract for sale ….”); see also Comm. Code § 9102(a)(44)(v) (providing that “goods” include manufactured homes). Thus, in the case of manufactured homes, a party can “record mechanic's liens only if the manufactured homes had become fixtures attached to the [real] properties” at issue.  Vieira Enterprises, Inc., 208 Cal.App.4th at 600; see Miller & Starr, California Real Estate (4th ed.), Chapter 27. Mobilehomes, Manufactured Housing, and Mobilehome Parks § 27:3 (“A mechanics or materialman's lien may attach to a … manufactured home … if it constitutes real property, but not while it remains unaffixed as personal property.”)  

Current Health and Safety Code section 18551 (a) “provides a procedure for establishing the mobilehome as a fixture that constitutes real property.”  Miller & Starr, California Real Estate, at § 27:3.   Health and Safety Code section 18551(a)(2)(A) provides, in pertinent part, “Notwithstanding any other law, prior to a manufactured home, mobilehome, or commercial modular being deemed a fixture or improvement to the real property, the installation shall comply with” four enumerated requirements including, “the issuance of the certificate of occupancy for the manufactured home, mobilehome, or commercial modular by the appropriate enforcement agency….” (Italics added).    Here it is undisputed that no such certificate has issued.  As such, the manufactured home is considered personal property or a good and is not subject to a mechanic’s lien.

Vieira Enterprises (applying the common law of fixtures instead of the then applicable Health and Safety Code section 18551) does not require a result to the contrary.  Health and Safety Code section 18551 was specifically amended in 2013 after the 2012 Vieira decision and makes it clear that “notwithstanding any other law” the requirements of the statute must be satisfied “prior to,” i.e., before, a manufactured home can be “deemed a fixture.”  In this context, thus, the otherwise applicable common law of fixtures has been specifically preempted by this statutory requirement.

The court need not and does not reach the other grounds asserted for relief. 

Demurrer

The October 21, 2024 demurrer of John and Sandra Bacon (the Bacons) as to the first amended cross-complaint by Statewide Homes, Inc. (Statewide) is sustained in part and overruled in part.

Preliminary Rulings and Standard

The Bacons’ request for judicial notice is granted.

The court applies the well-established standard regarding demurrers.

First Cause of Action to Enforce Mechanic’s Lien

The Bacons argue that Statewide lacks standing because it has not alleged valid licensure as a contractor to perform installation work and that it cannot recover compensation for work that was performed by a third party.  The court is not persuaded.  Under Business and Professions Code section 7026.2(c), Statewide is not a contractor and not subject to the otherwise applicable prohibitions of Business and Professions Code section 7031(a).    Statewide has standing to sue and has alleged sufficient facts regarding the same pursuant to section 7026.2(c).   

The Bacons argue that Statewide has failed to allege that the manufactured home was affixed to the real property and can be the subject of a mechanic’s lien.  The court agrees for the reasons noted in connection with the motion to remove mechanic’s lien, above.   The demurrer is sustained without leave to amend on this ground. 

The Bacons argue that the mechanic’s lien claim is untimely because the deadline expired 150 days after work ceased, no later than September 17, 2023, citing Civil Code sections 8180 and 8414.  The court agrees that the July 3, 2024 mechanic’s lien appears to be untimely under the current cross-complaint.  Statewide alleges that it and its subcontractor were on the Bacon property seventy-seven days prior to the recording of the mechanic’s lien; there is no support in the operative pleading for the suggestion that Statewide and its subcontractors provided labor as recently as April 17, 2024. 

Second Cause of Action for Breach of Contract

The Bacons argue that Statewide cannot plead and recover damages because Statewide lacks standing due to a lack of licensure and the work was done by a third party.  The court is not persuaded for the reasons noted above.  In addition, the operative pleading, accepted as true for purposes of demurrer, alleges that: the parties entered into a contract wherein the Bacons agreed to pay a sum of money to Statewide for additional work as the Bacons might require, and the Bacons’ breach of the same by failing to pay for various items of work performed and materials supplied by Statewide under the contract. 

The Bacons argue that the damages sought by statewide are unclear.  The court disagrees.  Damages have been alleged with sufficient certainty in the claim and prayer.

Third Case of Action for Common Counts

The Bacons argue that this claim fails to state a cause of action or is uncertain because Statewide lacks standing to sue for work performed when it was not a licensed contractor and because Statewide cannot plead that it performed the work which was actually performed by a third party.  The court disagrees for the reasons noted above with respect to count two. 

8.         CU19-084309 Michael Rainey, et al. vs. Nevada Irrigation District, etc.

Motion for Cost of Proof Sanctions

Defendant’s December 3, 2024 motion for cost of proof sanctions is granted in part. 

Timeliness of Plaintiffs’ Opposition

Plaintiffs’ opposition was untimely.  In the exercise of discretion, the court will nevertheless consider the same as well as defendant’s reply.  Plaintiffs are admonished that they must timely submit all briefs in accordance with the rules of procedure.   

Motion

The applicable standard for this motion is well articulated by Orange County Water Dist. v. The Arnold Engineering Co. (2018) 31 Cal.App.5th 96:

“A party to a civil action may propound a written request that another party ‘admit the genuineness of specified documents, or the truth of specified matters of fact, opinion relating to fact, or application of law to fact.’ ” (City of Glendale v. Marcus Cable Associates, LLC (2015) 235 Cal.App.4th 344, 351-352, 185 Cal.Rptr.3d 331 (City of Glendale).) Section 2033.420, subdivision (a) provides for an award of costs of proof where a party responding to such a request fails to admit the truth of a matter that is later proved: “If a party fails to admit the genuineness of any document or the truth of any matter when requested to do so under this chapter, and if the party requesting that admission thereafter proves the genuineness of that document or the truth of that matter, the party requesting the admission may move the court for an order requiring the party to whom the request was directed to pay the reasonable expenses incurred in making that proof, including reasonable attorney's fees.” Such an award must be made unless, among other things, “[t]he party failing to make the admission had reasonable ground to believe that that party would prevail on the matter” or “[t]here was other good reason for the failure to admit.” (§ 2033.420, subd. (b)(3)-(4).)

“Requests for admission are not restricted to facts or documents, but apply to conclusions, opinions, and even legal questions. [Citations.] Thus, requests for admission serve to narrow discovery, eliminate undisputed issues, and shift the cost of proving certain matters. As such, the requests for admission mechanism is not a means by which a party obtains additional information, but rather a dispute resolution device that eliminates the time and expense of formal proof at trial.” (City of Glendale, supra, 235 Cal.App.4th at pp. 353-354, 185 Cal.Rptr.3d 331.)

“The primary purpose of requests for admissions is to set at rest triable issues so that they will not have to be tried; they are aimed at expediting trial. [Citation.] The basis for imposing sanctions under [the statute] is directly related to that purpose. Unlike other discovery sanctions, an award of expenses pursuant to [the statute] is not a penalty. Instead, it is designed to reimburse reasonable expenses incurred by a party in proving the truth of a requested admission where the admission sought was ‘of substantial importance’ [citations] such that trial would have been expedited or shortened if the request had been admitted.” (Brooks [v. American Broadcasting Co. (1986) 179 Cal.App.3d 500,] 509, 224 Cal.Rptr. 838.)

 

“Unlike sanctions imposed as a penalty for the nine types of discovery misconduct itemized in Code of Civil Procedure section 2023.010, an award of costs of proof for a denial of a request for admission involves the weighing of a number of factors, such as whether the matter denied was of ‘substantial importance’; whether there was a ‘reasonable basis’ for the denial; whether the party making the denial knew or should have known at the time that the requested matter was of ‘substantial importance’ and was true; whether there were ‘other good reasons for the denial’; and whether and to what extent the responding party made a good faith effort otherwise to resolve the matter. [Citations.] Also, unlike sanctions for discovery misconduct, costs of proof under section 2033.420 are awarded after trial; therefore, an award of such costs is not a device used by trial courts to control pretrial proceedings. Instead, as with attorney fees and costs awarded after judgment to a prevailing party, an award of costs of proof is a fee shifting and cost allocation mechanism that is available against parties. And, unlike sanctions for discovery misconduct, such costs cannot be awarded against attorneys.” (City of Glendale, supra, 235 Cal.App.4th at p. 354, 185 Cal.Rptr.3d 331.)

 “ ‘In evaluating whether a “good reason” exists for denying a request to admit, “a court may properly consider whether at the time the denial was made the party making the denial held a reasonably entertained good faith belief that the party would prevail on the issue at trial.” [Citation.]’ ” (Grace v. Mansourian (2015) 240 Cal.App.4th 523, 529, 192 Cal.Rptr.3d 551 (Grace); accord, Laabs, supra, 163 Cal.App.4th at p. 1276, 78 Cal.Rptr.3d 372; Miller v. American Greetings Corp. (2008) 161 Cal.App.4th 1055, 1066, 74 Cal.Rptr.3d 776 (Miller).) A party's reasonable belief must be grounded in the evidence; it cannot be based merely on “hope or a roll of the dice.” (Grace, at p. 532, 192 Cal.Rptr.3d 551.) It is also not enough for a party making the denial to “ ‘hotly contest’ ” the issue; instead, “there must be some reasonable basis for contesting the issue in question before sanctions can be avoided.” (Brooks, supra, 179 Cal.App.3d at p. 511, 224 Cal.Rptr. 838.) Indeed, “the mere fact [that a party] presented evidence at trial is not an automatic justification for denial of the requests. Rather, the issue is whether, in light of that evidence, [the party] could reasonably believe they would prevail.” (Grace, at p. 531, 192 Cal.Rptr.3d 551.)

On the other hand, “[e]xpenses of proving disputed facts which an opposing party denies in response to a request for admission are not recoverable simply because the party promulgating the request prevails at trial.” (Brooks, supra, 179 Cal.App.3d at p. 513, 224 Cal.Rptr. 838.) The opposing party must have no reasonable basis to believe it would prevail. (Grace, supra, 240 Cal.App.4th at p. 531, 192 Cal.Rptr.3d 551.)

Like other evidence, expert opinion evidence may provide a party with a reasonable ground to believe it will prevail on a matter covered by an RFA. (See, e.g., Grace, supra, 240 Cal.App.4th at p. 533, 192 Cal.Rptr.3d 551.) And, like other evidence, the credibility and persuasiveness of expert opinion evidence must be evaluated to determine whether it would be reasonable for a party to believe it would prevail based on it. Because expert opinion evidence necessarily covers matters that are to some extent beyond common experience (see Evid. Code, § 801, subd. (a) ), a party's assessment of the likelihood of prevailing on a matter heavily reliant on expert opinion evidence will be different from a matter that does not involve expert testimony. A party may not be able to fully assess an expert's choice of methodology and the substance of his or her analysis. For this reason, federal courts applying a similar standard have found that a party may reasonably deny an RFA based on credible expert opinion evidence, even where the expert opinion evidence is not ultimately believed by the trier of fact. (See, e.g., Benson Tower Condo. Owners Ass'n v. Victaulic Co. (D.Or. 2015) 105 F.Supp.3d 1184, 1197 [“Given the scientific and technical complexity of these issues, the Court finds that Defendant's denials were not unreasonable.”]; Scheufler v. General Host Corp. (D.Kan. 1995) 915 F.Supp. 236, 239.)

Ibid. at 114–117 (footnote omitted).

Request for Admissions Nos. 4 and 6

Defendant seeks cost of proof sanctions against plaintiff Rainey after having to incur fees and costs to prove the matters that plaintiff either objected to or unequivocally denied in response to Request Nos. 4 and 6. 

Defendant has made a sufficient showing under Code of Civil Procedure §2033.420 that it proved the truth of the matters in these requests. 

Defendant has also made a sufficient showing that none of the exceptions excusing reimbursement applies.  First, the court did not sustain plaintiff’s objections to these requests, and defendant did not waive its right to a response.  Second, these requests were of substantial importance with respect to the statute of limitations issue.  Finally, plaintiff did not have reasonable ground to believe that he would prevail on the matters that were the subject of these requests for admissions, and there was no other good reason for his failure to admit them. 

The court is not persuaded by plaintiff’s argument that he stipulated to these facts during the summary judgment motion itself.  It would have been one thing if plaintiff stipulated to the relevant facts prior to the motion; he did not, forcing defendant to seek summary judgment as to the claims at issue.    

Request for Admissions Nos. 11-13 as to Rainey and 9-11 as to Pachaud

Defendant seeks cost of proof sanctions against plaintiffs who denied the requests for admissions relating to the spring, natural precipitation and causation, that is, request for admissions 11-13 as to plaintiff Rainey and request for admissions 9-11 as to plaintiff Pachaud. 

Defendant has made a sufficient showing under Code of Civil Procedure §2033.420 that it proved the truth of the matters in these requests.

The more difficult question is whether any of the exceptions excusing reimbursement apply.  The first two factors do not weigh in favor of plaintiffs.  The court did not sustain plaintiffs’ objections to these requests, and defendant did not waive its right to a response.  Moreover, these requests were of substantial importance to the questions of liability for inverse condemnation. 

Query whether plaintiffs had reasonable grounds to believe that they would prevail on the matters that were the subject of these requests for admissions, and whether there was any other good reason for their failure to admit them?  Plaintiffs argue that they had reasonable grounds to deny those requests, that is, the opinion of their expert, Tory Walker.  As pointed out in defendant’s reply, Mr. Walker’s testimony was given in March 2024, almost four years after plaintiffs had already denied these requests in November 2020.  Thus, plaintiffs could not have specifically relied on that expertise and testimony at the time they made their denials. 

That said, the court presided over a trial of this matter.  Suffice it to say that the claims at trial involved significantly contested factual issues of great scientific and technical complexity regarding: 1) the inherent risks of leakage/seepage from the NID canal as deliberately designed, constructed or maintained, 2) whether the inherent risks manifested, i.e., leakage/seepage from the NID canal; and 3) whether such leakage/seepage was a substantial cause of plaintiffs’ landslide property damage.  At trial, the parties presented conflicting lay and expert testimony regarding the topics raised in the requests for admissions including: the exact location of the subsurface natural spring in connection with the subject properties as well as its role in causing damage to the properties;  how and to what degree precipitation falling on the properties potentially contributed to the unstable soils and landslides related to the properties; and whether water escaping from the canal was a substantial factor in causing damages to the properties.  Considering the totality of the evidence ultimately adduced at trial by plaintiffs the court concludes that, at the time plaintiffs denied the RFAs, plaintiffs held a reasonably entertained good faith belief that they would prevail on the issues at trial particularly given the complex scientific and technical issues raised. Stated another way, the court cannot conclude that plaintiffs had “no reasonable basis to believe [they] would prevail” in connection with the complex and technical issues raised.  (See Orange County Water Dist., 31 Cal.App.5th at 116.)

Amount of Fees

A party moving for cost of proof sanctions is required to identify the attorney’s fees and costs incurred in proving the matters that responding party unreasonably denied.  (See In re Tobacco Cases II (2015) 240 Cal. App. 4th 779, 807-808.)  The moving party cannot recover costs or fees for proving matters other than the matters covered by the improperly denied requests. (See Garcia v. Hyster Co. (1994) 28 Cal.App.4th 724, 736-737.)  “The requested amounts must be segregated from costs and fees expended to prove other issues.”  (Grace v. Mansourian (2015) 240 Cal.App.4th 523, 529.)

At bar, the court need only review fees/costs in connection with Request Nos. 4 and 6. 

According to defendant:

NID moved for summary adjudication to obtain a judicial confirmation that Plaintiff Rainey’s 2019 Claim arose out of the same facts as those giving rise to his 2018 Claim. NID incurred the following attorney’s fees after the denials to prove those facts: $16,135.00. (Exhibit 18 [Schedule of Attorney Fees pertaining to Summary Judgment]).

In the instant motion, defendant correctly points out that it prevailed on a statute of limitations defense as to defendant Rainey’s second and third cause of action under Government Code section 945.6(a)(1) in 2023. (See, e.g., 12/12/23 Memorandum Decision; 10/13/23 Defense Renewed Motion for Summary Judgment.)  Defendant has not submitted any attorney’s fees and costs associated with that 2023 motion; instead, it submitted, via Exhibit 18, a description of fees totaling $16,135.00 associated with the July 2021 motion for summary judgment that raised six separate issues including the statute of limitations issue under section 945.6(a)(1).  (See Defendant’s 7/21/21 Motion for Summary Judgment.)  Defendant has not specifically identified the actual fees/costs incurred in proving the matters that plaintiff Rainey unreasonably denied, as was his obligation.  In addition, the court observes that plaintiff devoted one paragraph of its 22 page brief to this issue.  In the exercise of discretion, the court will award one sixth of the total fees as cost of proof sanctions for these two improper denials, that is, $2,689.17. 

Motion to tax costs

Plaintiff’s December 13, 2024 motion to tax costs is granted in part.  The court strikes $2,507.12 from defendant’s memorandum of costs and awards defendant $9,918.91 in costs. 

California Code of Civil Procedure section 1032(b) provides: “Except as otherwise expressly provided by statute a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.”  The requested costs must be “reasonably necessary to the conduct of litigation and reasonable in amount.” Perko's Enterprises, Inc. v. RRNS Enterprises (1992) 4 Cal.App.4th 238, 244-245.  The trial court has broad discretion in determining the questions of reasonableness and necessity.  Ibid. at 243.

When items in a cost bill are properly challenged, the burden shifts to the party claiming costs to prove their necessity and reasonableness.  This requires documentation to sustain that party’s burden.  Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1265.

In the case at bar, plaintiffs seek to strike $2,646.22 from defendant’s requested deposition costs.  The invoices attached to defendant’s opposition confirm deposition costs of $8,443.22 (there was no invoice supporting the claimed deposition and travel costs for the Kull deposition).  The court strikes $1,644.42 in deposition costs.   

Plaintiffs request an order striking the entire amount of $1,763.20 for service of process costs.  The legible invoices attached to defendant’s opposition confirm $900.50 in service of process costs.  The court strikes the remaining $862.70. 

Plaintiffs did not object to defendant’s request for $153.60 in costs for exhibits or to defendant’s request for $421.59 in filing fees.  Defendant shall recover those costs, which total $575.19. 

9.  CU20-084697        Barbara Miller vs. Pamela Gorman, et al. 

On its own motion, the court continues plaintiff’s motion for a new trial to March 14, 2025, at 10:00 a.m.

The court is uncertain it has jurisdiction to entertain plaintiff’s motion for a new trial.

Code of Civil Procedure Section 659 provides:

(a) The party intending to move for a new trial shall file with the clerk and serve upon each adverse party a notice of their intention to move for a new trial, designating the grounds upon which the motion will be made and whether the same will be made upon affidavits or the minutes of the court, or both, either:

(1) After the decision is rendered and before the entry of judgment.

(2) Within 15 days of the date of serving notice of entry of judgment by the clerk of the court pursuant to Section 664.5, or service upon them by any party of written notice of entry of judgment, or within 180 days after the entry of judgment, whichever is earliest; provided, that upon the filing of the first notice of intention to move for a new trial by a party, each other party shall have 15 days after the service of that notice upon them to file and serve a notice of intention to move for a new trial.

(b) That notice of intention to move for a new trial shall be deemed to be a motion for a new trial on all the grounds stated in the notice. The times specified in paragraphs (1) and (2) of subdivision (a) shall not be extended by order or stipulation or by those provisions of Section 1013 that extend the time for exercising a right or doing an act where service is by mail.

(Italics added).

Code of Civil Procedure section 660(c) provides:

Except as otherwise provided in Section 12a of this code, the power of the court to rule on a motion for a new trial shall expire 75 days after the mailing of notice of entry of judgment by the clerk of the court pursuant to Section 664.5 or 75 days after service on the moving party by any party of written notice of entry of judgment, whichever is earlier, or if that notice has not been given, 75 days after the filing of the first notice of intention to move for a new trial. If the motion is not determined within the 75-day period, or within that period as extended, the effect shall be a denial of the motion without further order of the court.   (Italics added).

“[A]n order granting a new trial is in excess of jurisdiction and void if, for example, it is made ... upon a notice of intention that is filed … too late …, or if the court purports to grant the motion after expiration of the statutory time for ruling.”  Kabran v. Sharp Memorial Hospital (2017) 2 Cal.5th 330, 337 (citations omitted).

At bar, defendant served a notice of entry of judgment on May 30, 2024.  Did the court lose jurisdiction in connection with the same given that a notice of intention was not filed within 15 days of the same, that is, by Wednesday, May 29, 2024?  Did the power of the court to rule on any motion for new trial in connection with this judgment expire 75 days later on Tuesday, August 30, 2024?

In the alternative, plaintiff filed her notice of intention to move for a new trial on November 5, 2024, apparently in connection with the November 4, 2024 final judgment.  Did the power of the court to rule on any motion for a new trial expire 75 days later (excluding the Sunday and Monday holiday) on Tuesday, January 21, 2025?

The parties shall submit briefs of no more three pages regarding these issues no later than February 24, 2025. 

10.  CU0001651         Joseph Sacks vs. Navy Federal Credit Union

No appearances are required.  On the court’s motion, defendant’s demurrer is continued until March 14, 2025 at 10:00 a.m.

11.  CU0001760         In the Matter of County of Nevada

The unopposed petition of the County of Nevada for an order to abate sub-standard building and appoint Richardson C. Griswold as receiver is granted as prayed.  Health and Safety Code section 17890.7 authorizes the court to appoint a receiver to oversee the rehabilitation of properties deemed to be substandard if the property owner fails to comply with an order or notice issued by a local agency pursuant to Health and Safety Code section 17980.6 after a reasonable time. 

In the instant action, petitioner has made a sufficient showing that the subject property is a danger to occupants and the surrounding community.  Respondent was given more than a reasonable amount of time (some 13 years) to rehabilitate the subject property with no response.

The court denies, without prejudice, petitioner’s request for any immediate order as to costs of enforcement relating to the subject property, including attorneys’ fees.  The county may seek recovery of such costs and fees at a later date by appropriate noticed motion.   

January 17, 2025 Dept. 6 Civil Law and Motion Tentative Rulings

1.  CU0000591           Antonio De La Pena vs. Nevada Woods Apartments, et al.

Defendants' January 25, 2024 motion for summary judgment as to plaintiffs' complaint is granted.

Plaintiffs’ Objections to Defendants’ Separate Statement of Undisputed Facts

Plaintiffs do not dispute defendants’ Undisputed Fact Nos. 1-4, and 6.  Accordingly, those facts remain undisputed.

Plaintiffs dispute defendants’ Undisputed Fact No. 5.  However, their opposition and supporting evidence do not actually dispute this fact, as they provide no evidence that plaintiffs knew that the occupants of Apartment # 5 were manufacturing drugs. This fact remains undisputed.

Plaintiffs dispute defendants’ Undisputed Fact Nos. 7 and 8. However, their opposition and supporting evidence do not dispute these facts and they remain undisputed. 

Plaintiffs argue that Undisputed Fact No. 9 relating to plaintiffs’ reports about the conduct of tenants not living in Apartment # 5 is not a material fact.  The court agrees.  See California Rules of Court, rule 3.1350, subd. (d)(2).

Plaintiffs argue that Undisputed Fact No. 10 is vague, ambiguous, and overbroad in that plaintiffs cannot discern the meaning of “other incidents”.  That term relates back to Undisputed Fact No. 9.  As that is not a material fact, the court also finds that Undisputed Fact No. 10 is also not a material fact. 

Defendant’s Request for Judicial Notice

Defendant’s unopposed request for judicial notice is granted in its entirety.

Defendants’ Objections to Plaintiffs’ Opposition Separate Statement

Defendants do not dispute plaintiffs’ Undisputed Fact Nos. 1-28.  Accordingly, all of plaintiffs’ other material facts remain undisputed.

Defendants’ Objections to Plaintiffs’ Evidence

Defendants do not object to plaintiffs’ separate statement.   For purposes of deciding this motion, the court assumes that plaintiff’s evidence is admissible.    The court need not and does not rule on defendants’ objections.

Legal Standard

Code of Civil Procedure §437c allows a party to move for summary judgment if it is contended that an action has no merit or that there is no defense to the action or proceeding.  Code of Civil Procedure section 437c(p)(2) provides:

A defendant or cross-defendant has met that party’s burden of

showing that a cause of action has no merit if the party has shown

that one or more elements of the cause of action, even if not separately

pleaded, cannot be established, or that there is a complete defense to

the cause of action.

A defendant moving for summary judgment need not affirmatively disprove an element of the plaintiff’s case.  Aguilar v. Atlantic Richfield Co. (2001) 25 Cal. 4th 826, 853-855.  Rather, the defendant’s initial burden may be met by presenting evidence that negates any one of the necessary elements of the challenged cause of action to justify entry of summary judgment. See Code Civ. Proc. § 437c(o)(1).

Code of Civil Procedure section 437c(p)(2) further provides:

Once the defendant or cross-defendant has met [its] burden, the burden

shifts to the plaintiff or cross-complainant to show that a triable issue of

one or more material facts exists as to the cause of action or a defense

thereto. The plaintiff or cross-complainant shall not rely upon the allegations

or denials of its pleadings to show that a triable issue of material fact exists

but, instead, shall set forth the specific facts showing that a triable issue of

material fact exists as to the cause of action or a defense thereto.

In determining a motion for summary judgment, the evidence must be viewed by the court in the light most favorable to the non-moving party, and any factual conflicts must be resolved in favor of the non-moving party. See Chesny v. Grisham, (1976) 64 Cal.App.3d 120, 125.  The moving party bears the burden of furnishing supporting documents that establish that the claims of the adverse party are entirely without merit on any legal theory.  See Lipson v. Superior Court (1982) 31 Cal.3d 362, 374. 

Motion

In order to establish a cause of action for premises liability, which is a form of negligence, see Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1619, a plaintiff must prove duty, breach of duty, causation, and damages.  See Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 480.  Summary judgment is proper if a defendant presents evidence that negates any one of these elements.  See Code Civ. Proc. § 437c(o)(1). 

The determination that a defendant owes the plaintiff no duty of care is a complete defense to a cause of action for premises liability/negligence; the issue of whether a duty exists in the first place is a question of law to be determined by the court.  See Brooks v. Eugene Burger Management Corp. (1989) 215 Cal.App.3d 1611, 1620.  Foreseeability, which is a crucial factor in determining the existence of a duty, is likewise a question of law to be decided by the court.  See Ann M. v. The Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 676-678 (disapproved on other grounds); Frances T. v. Village Green Owners Association (1986) 42 Cal.3d 490, 501. 

Generally, “a duty to take affirmative action to control the wrongful acts of a third party will be imposed only where such conduct can be reasonably anticipated.” Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 676; see Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1146.  As the Court of Appeal noted in Janice H. v. 696 North Robertson, LLC (2016) 1 Cal App 5th 586:

The Court's focus in determining duty is not to decide whether a

particular plaintiff's injury was reasonably foreseeable in light of a

particular defendant's conduct, but rather to evaluate more generally

whether the category of negligent conduct at issue is sufficiently likely

to result in the kind of harm experienced that liability may appropriately

be imposed on the negligent party.  [W]e look to the circumstances of the case to see if the defendant was on notice of facts making the harm at issue foreseeable. 

Ibid at 594 (quotations and citations omitted).

The Supreme Court recently has adopted the following approach to the duty analysis:

“ ‘First, the court must determine the specific measures the plaintiff asserts the defendant should have taken to prevent the harm. This frames the issue for the court's determination by defining the scope of the duty under consideration. Second, the court must analyze how financially and socially burdensome these proposed measures would be to a landlord, which measures could range from minimally burdensome to significantly burdensome under the facts of the case. Third, the court must identify the nature of the third party conduct that the plaintiff claims could have been prevented had the landlord taken the proposed measures, and assess how foreseeable (on a continuum from a mere possibility to a reasonable probability) it was that this conduct would occur. Once the burden and foreseeability have been independently assessed, they can be compared in determining the scope of the duty the court imposes on a given defendant. The more certain the likelihood of the harm, the higher the burden a court will impose on a landlord to prevent it; the less foreseeable the harm, the lower the burden a court will place on a landlord.’ ”Castaneda v. Olsher (2007) 41 Cal.4th 1205, 1214, quoting Vasquez v. Residential Investments, Inc. (2004) 118 Cal.App.4th 269, 285.

Addressing the first factor, plaintiffs argue that the defendants should have followed their no drug use policy and terminated the tenancy of Patche and Rex in order to prevent their criminal conduct and the ultimate explosion resulting therefrom.  Stated another way, plaintiffs argue that defendants had a duty to evict tenants known to be using drugs.  They argue:

Defendants did not act reasonably by failing to follow their own polices and protocols regarding the discovery of drug use on the premises. Defendants first failed to follow their own written policies in the lease agreement which clearly stated that a single violation was a terminating offense. Defendants then failed to follow their own relaxed standards which they arbitrarily implemented where three complaints should have been enough to terminate the tenancy. Plaintiffs further contend that had their complaints about drug use by Kyle Patche and Heidi Rex been addressed according to Defendants' own standards, then the subject explosion would have never occurred.

Turning to the second factor, burden, “[a] landlord ordinarily has more opportunity to judge the behavior of an existing tenant than of a rental applicant.  Castaneda, 41 Cal.4th at 1219.  “In assessing the danger an existing tenant poses, the landlord can rely on his or her own observations or those of a property manager and, where the circumstances make these reliable, on complaints of the other tenants.”  Ibid.  “On the other hand, undertaking eviction of a tenant cannot be considered a minimal burden. The expense of evicting a tenant is not necessarily trivial, and eviction typically results in the unit sitting vacant for some period.” Ibid.  Moreover, “undertaking eviction of a hostile tenant … could subject the landlord or property manager to retaliatory harassment….”  Ibid.   

“ Not surprisingly in light of the burden involved, courts in this and other states have recognized a tort duty to evict a vicious or dangerous tenant only in cases where the tenant's behavior made violence toward neighbors or others on the premises highly foreseeable.”  Ibid. (italics added), citing and comparing Andrews v. Mobile Aire Estates (2005) 125 Cal.App.4th 578, 596 (“one mobilehome park resident's harassing and annoying behavior toward another (splashing mud onto the plaintiff's newly washed cars, aiming a video camera at his living room, using racial epithets and other verbal abuse) did not make his battery of the neighbor sufficiently foreseeable for imposition of a tort duty; it did not “put defendants on notice of [the assailant's] propensity for violence.”), with Madhani v. Cooper (2003) 106 Cal.App.4th 412, (“the plaintiff's neighbor in the defendant's apartment building shoved, bumped and physically blocked the plaintiff and her mother on several occasions, as well as berating them. Despite the plaintiff's frequent complaints to the defendant's property manager, no action was taken against the assailant, who ultimately pushed the plaintiff down the building's stairs, injuring her. The Court of Appeal held the landlord had a duty to evict the assaultive tenant if necessary, observing that ‘[i]t is difficult to imagine a case in which the foreseeability of harm could be more clear.’ ”); see also Sturgeon v. Curnutt (1994) 29 Cal App 4th 301, 308 (“ When there is no evidence a tenant has violent propensities or handles firearms unsafely while drinking, a landlord's knowledge that the tenant misuses alcohol and possesses firearms is not a cue the landlord needs to protect visitors from injury. Therefore, Sturgeon's injury was not reasonably foreseeable, and the defendants did not owe her a duty of care.”)

Moving to the third factor, the court “look[s], then, to the circumstances of this case to see if” [defendants were] “on notice of facts” making an explosion related to illicit, butane, honey-oil manufacturing by a tenant of the apartment complex “highly foreseeable.”  Castaneda, 41 Cal.4th at 1220-1221.  “In assessing whether the facts show ‘heightened foreseeability’ of third party crimes, [Supreme Court] precedents have focused on whether there were prior similar incidents from which the property owner could have predicted the third party crime would likely occur ….”  Id. at 1221.  The record demonstrates that defendants had prior knowledge of marijuana smell and smoke from the apartment of tenants Patche and Rex.  That said, marijuana use and possession in small quantities is lawful under California law.  Moreover, “[n]o one had reported that” Patche or Rex had engaged in any activity suggesting that they were engaged in anything other than marijuana use and more specifically suggesting that they were engaged in illicit and/or dangerous drug manufacturing activities.  See Castaneda, 41 Cal.4th at 1221.  In short, defendants “had no reason to expect” that these tenants were engaged in butane, honey-oil extraction.  See id. at 1222.   In these circumstances, illicit, butane-honey oil manufacturing by the offending tenants was not highly foreseeable and defendants “did not have a tort duty to prevent it by evicting” the offending tenants.  “[T]he possibility of [illicit drug manufacturing, specifically, butane, honey-oil manufacturing] established by this evidence does not rise to a level of heightened foreseeability necessary to impose a duty to evict.”  Id. at 1221.  Because defendants had no duty to plaintiffs under the facts presented, summary judgment is proper.

2.  CU0001134           U-Haul Co. of California, et al. vs. Clifford Webb, et al.

Motion to Compel Response to Request for Production of Documents

Plaintiff’s December 11, 2024 motion to compel defendant’s response to request for production of documents is granted.  Plaintiff’s motion for monetary sanctions is granted in part.  Defendant is ordered to serve verified responses and responsive documents without objections within ten days of this order and is ordered to pay plaintiff monetary sanctions in the sum of $610.00.  

If a party fails to timely serve a response to a demand for production of documents, Code of Civil Procedure Section 2031.300 authorizes the propounding party to move for an order compelling responses. Section 2023.030 gives the court discretion to issue monetary sanctions against a party for its misuse of the discovery process, which includes failing to respond to an authorized method of discovery and failing to meet and confer to resolve a discovery dispute.  See Code Civ. Proc. §2023.010(d)(i).

On August 21, 2024, plaintiff served defendant with demand for documents, set one.  In the spirit of cooperation, plaintiff granted defendant an extension to October 25, 2024 to serve a response.  Defendant has not responded to this authorized discovery request. 

While defendant did not oppose plaintiff’s motion, his failure to respond to plaintiff’s demand for production of documents is a misuse of the discovery process that necessitated plaintiff’s motion.  See Code Civ. Proc. 2023.010(d)(i).  Monetary sanctions are proper, including $60.00 for the filing fee and $550 in attorney’s fees (2.0 hours as the reasonable time to prepare the motion at $275 per hour), for a total award of $610.00. 

Motion to Compel Answers to Special Interrogatories

Plaintiff’s December 11, 2024 motion to compel defendant’s responses to special interrogatories is granted.  Plaintiff’s motion for monetary sanctions is granted in part.  Defendant is ordered to serve verified responses without objections within ten days of this order and is ordered to pay plaintiff monetary sanctions in the sum of $610.00.  

If a party fails to timely serve a response to interrogatories, Code of Civil Procedure Section 2030.290 authorizes the propounding party to move for an order compelling responses. Section 2023.030 gives the court discretion to issue monetary sanctions against a party for its misuse of the discovery process, which includes failing to respond to an authorized method of discovery and failing to meet and confer to resolve a discovery dispute.  See Code Civ. Proc. §2023.010 (d)(i).

On August 21, 2024, plaintiff served defendant with special interrogatories, set one.  In the spirit of cooperation, plaintiff granted defendant an extension to October 25, 2024 to serve responses.  Defendant has not responded to this authorized discovery request. 

While defendant did not oppose plaintiff’s motion, his failure to respond to plaintiff’s special interrogatories is a misuse of the discovery process that necessitated plaintiff’s motion.  See Code Civ. Proc. §§ 2023.010(d) (i), 2023.030.  Monetary sanctions are proper, including $60.00 for the filing fee and $550.00 in attorney’s fees (2.0 hours as the reasonable time to prepare the motion at $275.00 per hour), for a total award of $610.00.  

Motion to Deem Admissions Admitted

Plaintiff’s December 11, 2024 motion for its requests for admissions to be deemed admitted is conditionally granted, unless defendant provides fully compliant responses prior to the commencement of the hearing.  Plaintiff’s motion for monetary sanctions is granted in part in the sum of $610.00.  

If a party to whom requests for admissions have been directed fails to serve a timely response, Civil Procedure section 2033.280(b) authorizes the requesting party to move for an order that the truth of any matters specified in the requests be deemed admitted. Code of Civil Procedure section 2033.280(c) states that the Court shall make the requested order to deem the admissions admitted unless, before the hearing on the motion, the party to whom the requests for admission have been directed has served a proposed response that is in substantial compliance with Code of Civil Procedure section 2033.220. However, it is mandatory that the Court impose a monetary sanction on the party or attorney, or both, whose failure to serve a timely response to Requests for Admission necessitated the motion. Code Civ. Proc. § 2033.280(c).

On August 21, 2024, plaintiff served defendant with request for admissions, set one.  In the spirit of cooperation, plaintiff granted defendant an extension to October 25, 2024 to serve responses.  Defendant has not responded to this authorized discovery request. 

While defendant did not oppose plaintiff’s motion, his failure to respond to plaintiff’s requests for admissions is grounds for them to be deemed admitted.  In addition, monetary sanctions are mandatory and proper, including $60.00 for the filing fee and $550.00 in attorney’s fees (2.0 hours as the reasonable time to prepare the motion at $275 per hour), for a total award of $610.00.

3.  CU0001258           Randy Lee Miller vs. Nevada Commons, LLC

Defendants' December 6, 2024 motion to continue trial is granted.

Trial dates are firm.  Continuances are generally disfavored and require an affirmative showing of good cause if they are to be granted.  See California Rules of Court, Rule 3.1332(c). 

The following factors may constitute good cause under this Rule of Court:

• The addition of a new party if: (A) The new party has not had a reasonable opportunity to conduct discovery and prepare for trial; or (B) The other parties have not had a reasonable opportunity to conduct discovery and prepare for trial in regard to the new party's involvement in the case;

• A party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts. 

Rule of Court 3.1332(d) allows the court to consider additional factors in ruling on a motion to continue trial: 

• Whether there was any previous continuance, extension of time, or delay of trial due to any party;
• The prejudice that parties or witnesses will suffer as a result of the continuance;
• Whether the parties have stipulated to a continuance;
• Whether the interests of justice are best served by a continuance, by the trial of the matter, or by imposing conditions on the continuance;

Defendants’ motion makes the required showing of good cause.  A new party was recently brought into the case, and the parties need additional time to conduct discovery relating to that party and for that party to conduct discovery relating to them.  There is nothing in the motion to suggest that the parties have not been diligent in conducting discovery, and depositions have been scheduled. 

The court vacates the current trial, pre-trial conference, and mandatory settlement conference dates.  Trial is set on September 16, 2025, 09:00; pre-trial conference is set on September 5, 2025, 11:00; and mandatory settlement conference is set on August 25, 2025, 10:00.

4.  CU22-086160        Kevin Malone vs. William Ferreira

Defendant’s October 28, 2024 motion for joinder is denied. 

Code of Civil Procedure §1008(a) states that a party may “within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order.” 

Defendant’s previous motion for joinder was denied on September 8, 2023.  This current motion, which is almost identical to the original motion, was filed on October 28, 2024, 416 days later.  It is untimely and denied on that ground alone.

In addition, the motion fails to provide new or different facts, circumstances, or law upon which the court might reconsider its original order and demonstrate why, in the exercise of diligence, these new facts, circumstances or law, could not have been provided at the time of the prior motion.  The law cited in the motion is the same as in the earlier motion.  While the new motion does provide more than 140 pages of texts and call records, those records do not constitute new facts or circumstances.  Rather, they pre-date the earlier motion by four years and were inexplicably not included in the original motion. 

Both plaintiff and Stephanie Stone seek monetary sanctions against defendant for filing a frivolous motion.  Plaintiff’s request is based on Code Civ. Proc. §128.7 and seeks an order to show cause regarding sanctions; Stone’s request is based on Code Civ. Proc §128.5. 

The requests for sanctions and/or an order show cause are denied as presented.  Such motions must be separately filed and must be preceded by notice and an opportunity to withdraw.  See Code of Civil Procedure §§ 128.5(f)(1), 128.7(c)(1).  Defendant is admonished that he is potentially subject to significant sanctions for filing frivolous motions. 

5.  CU19-083425        Fire Insurance Exchange vs. Powermax Electric Co., et al.

The November 1, 2024 motion of defendant Powermax Electric Co., Ltd., Guangdong (Powermax) for summary judgment as to the complaint of plaintiff Fire Insurance Exchange is removed from calendar.    

Plaintiff notes that the motion was served by email on November 1, 2024; the hearing date is January 17, 2025 (77 days after service); and hence, Powermax has provided inadequate notice for the motion, citing the new notice period of 81 days under Code of Civil Procedure section 437c, as amended by AB 2049.  Plaintiff is correct that notice was inadequate. 

Code of Civil Procedure section 437c(a)(2) provides, in relevant part, that “[n]otice of [a summary judgment] motion and supporting papers shall be served on all other parties to the action at least 75 days before the time appointed for hearing.”  See, e.g., Cole v. Superior Court (2022) 87 Cal.App.5th 84, 87.  Effective January 1, 2025, AB 2049 increased the 75-day requirement for serving a motion for summary judgment to 81 days.   Of note, “section 437c extends the 75-day noticing period required for motions for summary judgment based on the method of service.”  Cole, 87 Cal.App.5th at 87.  Moreover, there is a “two-day extension of the noticing period that applies to motions for summary judgment that are served electronically.”  Id. at 88.  Explains the Cole court:

Section 437c does not expressly reference any extension of the notice period for electronic service. However, section 1010.6, which sets forth the rules for electronic service generally, provides that: “If a document may be served by mail, express mail, overnight delivery, or facsimile transmission, electronic service of that document is deemed complete at the time of the electronic transmission of the document or at the time that the electronic notification of service of the document is sent.” (Id., subd. (a)(3).) The statute further provides that “[a]ny period of notice ... which time period or date is  prescribed by statute or rule of court, shall be extended after service by electronic means by two court days.” (Id., subd. (a)(3)(B).) The statute lists three exceptions to this general rule, but the list does not include motions for summary judgment. (Ibid.)

The statute also provides that “[t]his extension applies in the absence of a specific exception provided any other statute or rule of court.” (Id., subd. (a)(3)(C).)

Id. at 87–88 (italics added).

Of significance, “in light of the express statutory language, trial courts do not have authority to shorten the minimum notice period for summary judgment hearings.”  Urshan v. Musicians' Credit Union (2004) 120 Cal.App.4th 758, 765, quoting McMahon v. Superior Court (2003) 106 Cal.App.4th 112, 118 (italics added).  Moreover, if the notice given is invalid, a trial court has no authority to continue the hearing for the required number of deficient days in order to cure the defect.  See Robinson v. Woods (2008) 168 Cal.App.4th 1258, 1267-1268. 

The minimum notice period can be shortened only if the parties “expressly consent” to the same.  Urshan, 120 Cal.App.4th at 768 (“[W]aiver of the right to the statutorily mandated minimum notice period for summary judgment hearings should not be inferred from silence. Waiver of minimum notice in this context should only be based on the affirmative assent of the affected parties.”).  Absent the same, if defendant wishes to refile the motion, “the notice period ha[s] to begin anew, and 75 days is mandatory where notice is given personally.” Robinson, 168 Cal.App.4th at 1268. 

Lastly, a motion filed with inadequate notice can, in the discretion of the court, be taken off calendar.  See ibid.(“If the trial court did not want to continue the impending trial date for the necessary amount of time [to hear a summary judgment motion with invalid notice], it could have taken the motion off calendar.”); R & A Vending Services, Inc. v. City of Los Angeles (1985) 172 Cal.App.3d 1188, 1193–1194 (“ ‘The court for good cause has discretion in the control and regulation of its calendar or docket.  It is permissible for good cause to delay a trial or hearing to a later date or to drop or strike a case from the calendar, to be restored on motion of one or more of the litigants or on the court's own motion.’ ”) (citations omitted).

At bar, the summary judgment motion is set for Friday, January 17, 2025.  Utilizing the basic

75-day notice period (and excluding the day of the hearing), 75 days prior to January 17, 2025 would be Sunday, November 3, 2024.  See Code Civ. Proc § 12c(a).  Both that Sunday and Saturday, November 2, 2024 are excluded from the computation.  See Code Civ. Proc § 12. Thus, the last day to give notice under the 75-day basic period would be Friday, November 1, 2024.  See Code Civ. Proc § 12c(a).  Because electronic service was utilized, the notice period then must be extended by two court days.  See Code Civ. Proc §§ 12c(b), 1010.6.  Two court days prior thereto would be Wednesday, October 30, 2024.  Thus, the latest date for service of the motion and all supporting papers was October 30, 2024.  Powermax served the papers two days late, on November 1, 2024. 

Even though plaintiff has filed an opposition, it has not expressly waived its right to the statutorily mandated minimum notice period for summary judgment hearings. The court cannot simply continue the hearing for the required notice period, because that would extend the hearing date well beyond the current trial date of February 18, 2025.  Powermax, of course, can seek relief in connection with the trial date if it wishes.  The court, however, will not continue the trial date on its own motion and without input from all parties.

Under these circumstances, the motion has been untimely served and is removed from calendar on that ground. fn1

________________________________________________

fn1  The same result would transpire were the court to conclude that the new 81-day period applied.  Contrary to the suggestion of plaintiff, however, it does not appear that the new notice requirements apply here.  “[S]tatutes are not to be given a retrospective operation unless it is clearly made to appear that such was the legislative intent.” Aetna Cas. & Surety Co. v. Ind. Acc. Com. (1947) 30 Cal.2d 388, 393.  Moreover, Code of Civil Procedure section 3 provides that no part of the code is retroactive “unless expressly so declared.”  The court has not been directed to any authority suggesting that the legislature intended this new time-period to be applied retrospectively. 

---

January 10, 2025 Dept. 6 Civil Law and Motion Tentative Rulings

1.         CL0001183                 Wells Fargo Bank, N.A. vs. Evan S. Burford

Plaintiff’s unopposed November 14, 2024 motion to vacate notice of settlement and enter judgment is granted. 

Code of Civil Procedure section 664.6 (a) provides:

If parties to pending litigation stipulate, in a writing signed by the parties outside of the presence of the court or orally before the court, for settlement

of the case, or part thereof, the court, upon motion, may enter judgment

pursuant to the terms of the settlement. If requested by the parties, the court

may retain jurisdiction over the parties to enforce the settlement until

performance in full of the terms of the settlement.

In this case, the parties agreed by stipulation to have the court retain jurisdiction to enter judgment if defendant defaulted on agreed settlement payments.  Here, defendant has defaulted on the required payment terms.  Entry of judgment is proper. 

2.         CU0000128                Douglas J. Schultz vs. Marianne L. Stevenson, et al.

Plaintiff’s September 18, 2024 motion for interlocutory judgment of partition is granted. 

Plaintiff’s Request for Judicial Notice

Plaintiff’s request for judicial notice of recorded property records (Exhibits 1, 2, and 6) is granted.  Plaintiff’s request for judicial notice of court records in this and other courts (Exhibits 3, 4, 5, 7, and 8) is also granted. 

Plaintiff’s Objections to Defendant’s Declarations

To the extent that the court indicates that it need not resolve an objection hereafter it means that given the disposition described infra, it did not have to resolve the objection. 

The objections to the Diamond declaration are overruled as moot with one exception: the court need not resolve objection 14.

Objection 1 to the Griesbach declaration is overruled as moot; the court need not resolve any other remaining objections in connection with this declaration.

As for the Stevenson declaration, the court rules as follows with respect to the plaintiff’s objections on pp.1-6:  Objections 1-12 and 28-29 are sustained; the court need not resolve objections 13-27, 30. 

As for plaintiff’s objections on pp.7-34 (which appears to include some duplicative numbering of objections from 16 to 30): Objections 16-25 are sustained; the court need not resolve any other remaining objections.

Defendant’s Request for Judicial Notice

The court need not resolve plaintiff’s objection to Defendant’s request for judicial notice of the Federal Aviation Administration registration, attached as Exhibit 1 (erroneously identified as Exhibit 6) to defendant’s opposition .

Partition

Civil Code §872.210 provides:

If the court finds that the plaintiff is entitled to partition, it shall

make an interlocutory judgment that determines the interests of

the parties in the property and orders the partition of the property

and, unless it is to be later determined, the manner of partition.

A partition action may not be brought by a spouse in an action seeking partition of community or quasi-community property.  Civil Code §872.210.  That is not an issue in this case.  Despite multiple efforts by defendant to invalidate it, this court has recognized the validity of the Dubai divorce between the parties, determined that the parties are no longer married and determined that plaintiff’s partition action is not barred by Civil Code §872.210.

“A co-owner of property has an absolute right to partition unless barred by a valid waiver.” LEG Investments v. Boxler (2010) 183 Cal.App.4th 484, 493, citing Code Civ. Proc. § 872.710(b).  An implied waiver may occur when the co-owners of the property agree to use it in a manner that is inconsistent with partition. See, e.g., Nazzisi v. Nazzisi (1962) 203 Cal. App. 2d 121 (property settlement agreement between divorced parties waived the wife’s right to partition).

In the instant case, it is undisputed that the parties took title to the subject property as tenants in common when they purchased it.  See Schultz Decl. ¶ 3; RJN ¶ 1, Ex. 1; Def. Ans. ¶ 9.  As such, either party has an absolute right to partition.  Moreover, there is also no dispute that plaintiff did not waive his right to partition.  Indeed, defendant makes no waiver argument at all in her opposition. 

Defendant contends, however, that partition should be denied because plaintiff has unclean hands. Defendant makes numerous allegations of misconduct against plaintiff to demonstrate that plaintiff has unclean hands.  For example, defendant alleges that plaintiff: 1) has been untruthful with the court as to his residency and military service; 2) has been unfaithful to his spouse; 3) initiated and completed a sham divorce proceeding in Dubai; 4) has been untruthful regarding his children and engaged in conduct to estrange them from defendant; 5) was absent during home construction, forcing defendant to make labor improvements to the property and forcing defendant to “prematurely cash out her 401K and investments to pay the mortgage”; 6) conspired with a caretaker friend on the property to create a marijuana grow and forced defendant to participate in the same; 7) used visitation as a weapon to limit time the parties’ children would be with defendant; 8) repeatedly threatened and attempted to have defendant arrested by reporting false crimes; 9) entered the subject property on various occasions in 2021 and 2022 to commit thefts of personal property; and 10) threatened and harassed defendant generally.  Defendant also alleges 11) that she paid for 50% of the mortgage from April to October 2021 and paid almost $40,000 in connection with mortgage arrears in April 2021.  The court, having carefully considered the record as a whole, is not persuaded.   

“The doctrine of unclean hands prevents a party from obtaining either legal or equitable relief when that party has acted inequitably or with bad faith relative to the matter for which relief is sought.”  People v. Wickham (2013) 222 Cal.App.4th 232, 238 (italics added). However, “it is not every wrongful act nor even every fraud which prevents a suitor in equity from obtaining relief. The misconduct which brings the clean hands doctrine into operation must relate directly to the transaction concerning which the complaint is made, i.e., it must pertain to the very subject matter involved and affect the equitable relations between the litigants. Accordingly, relief is not denied because the plaintiff may have acted improperly in the past or because such prior misconduct may indirectly affect the problem before the court.”  Fibreboard Paper Products Corp. v. East Bay Union of Machinists (1964) 227 Cal.App.2d 675, 728–729 (italics added).

The instant claim is for partition of real property and the controversy to be decided is whether an interlocutory judgment to partition the real property of the parties should issue.  As for allegation 3, supra, this court has already concluded, following extensive briefing and argument, that the parties are divorced pursuant to the Dubai decision.  The overwhelming majority of the other misconduct alleged by defendant (e.g., allegations 1, 2, 4, 7, 8, 10, supra), even if assumed to be true, is wholly unrelated to the subject matter of the instant partition action.  Even if some of the alleged misconduct is assumed true and considered to be tangentially related to the real property subject to dispute (e.g.,  allegations 5, 6, 9, 11, supra), defendant has failed to persuasively establish how any of that conduct pertains to the instant partition action and affects the equitable relations between the parties as to the property.  It is undisputed that each party, by title, has a 50% interest in the property and neither has waived the same.  That said, defendant has failed to persuasively establish how any of that purported misconduct, as a matter of fairness or equity, should affect either plaintiff’s unwaived right to partition in connection with his one-half interest in the property or defendant’s own unwaived right to partition in connection with her one-half interest in the property.  In short, even assuming defendant engaged in numerous bad or wrongful acts, defendant has not established to the satisfaction of the court that plaintiff has acted inequitably or with bad faith relative to this real property partition matter for which he seeks relief.  The showing made does not demonstrate that, as a matter of equity, plaintiff should be barred from obtaining any relief.

Thus, the court finds and concludes that the plaintiff is entitled to partition of the real property, and that both parties have a 50% interest in the same.

As a general matter, “[t]he court shall order that the property be divided among the parties in accordance with their interests in the property as determined in the interlocutory judgment.”  Code Civ. Proc. § 872.810.  However, “[n]otwithstanding Section 872.810, the court shall order that the property be sold and the proceeds be divided among the parties in accordance with their interests in the property” if, among other things,  “[t]he court determines that, under the circumstances, sale and division of the proceeds would be more equitable than division of the property.”  Code Civ. Proc. § 872.820.

Such is the case here.  The parties both agree that the real property cannot be divided.  See SAC ¶ 27 and Def. Ans. ¶ 27.   The court agrees and determines that, under the circumstances, sale and division of the proceeds would be more equitable than division of the property.   

Given the contentious nature of this litigation as displayed in the declarations and exhibits to this motion and others, a referee is clearly necessary and is in the interests of both parties.  The referee will oversee the sale of the property and, among other things, render an accounting. See Civil Code §873.010 (allowing the court to determine the need and amount of a referee’s bond, set the referee’s compensation, instruct the referee, and require the referee to provide interim and final accountings). 

In summary, plaintiff’s motion for interlocutory judgment of partition by sale and for appointment of a referee is granted.  A review hearing is set for February 28, 2025, at 10:00 a.m. in Department 6.  The parties shall exchange the names of five nominees for referee not later than January 31, 2025 and shall meet and confer in an effort to agree upon a referee.  Plaintiff shall file a declaration on or before February 15, 2025 informing the court of the names of the nominated referees and of the agreed-upon referee or of the parties’ inability to agree upon a referee.  If no agreement has been reached, the court will appoint a referee from the list of ten names exchanged by the parties.  The parties shall also meet and confer with respect to plaintiff’s September 18, 2024 proposed order.  Plaintiff shall file a proposed order, approved by defendant, by no later than February 15, 2025.  If the parties disagree regarding any terms, they shall file a joint submission by the same date indicating their areas of agreement, disagreement, and their respective positions as to any disputed provisions.    

3.         CU0000512                eCapital Asset Based Lending v. Nicole Medina, et al.

Defendants' December 6, 2024 motion for protective order is denied.

Code of Civil Procedure section 2025.420 provides in pertinent part:

1. Before, during, or after a deposition, any party, any deponent, or any other affected natural person or organization may promptly move for a protective order. The motion shall be accompanied by a meet and confer declaration under Section 2016.040. 
2. The court, for good cause shown, may make any order that justice requires to protect any party, deponent, or other natural person or organization from unwarranted annoyance, embarrassment, or oppression, or undue burden and expense. 

(Bold added).

Whether a motion for protective order is promptly sought turns on the facts of the case.  Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal App 4th 261, 317.  Based on the facts of this case, the court finds that defendants did not promptly seek this relief.

Plaintiff served the deposition notices on September 6, 2024.  Defendants did not file a motion for protective order even after meet and confer efforts failed.  Instead, they simply did not show up, requiring plaintiff to file a motion to compel their depositions. 

Plaintiff’s motion to compel was filed on October 28, 2024.  Defendants waited until December 6, 2024, more than one month later, to file their motion for protective order.  They also did not file a timely opposition to the motion to compel, which was granted (including plaintiff’s request for monetary sanctions based on defendants’ misuse of the discovery process).

The party moving for a protective order also has the burden of showing good cause for the order.  Nativi v. Deutsche Bank National Trust Co. (2014) 223 Cal App 4th 261, 318.  Defendants have failed to meet that burden.  The court has already ruled that plaintiff is entitled to take defendants’ depositions before the hearing on defendants’ motion for summary judgment.  Indeed, Code of Civil Procedure §437c specifically allows a court to deny or continue a motion for summary judgment if the opposing party needs to conduct discovery to obtain additional facts to justify opposition.  Code Civ. Proc. §437c(h). 

On its own motion, the court schedules a case management conference for March 3, 2025, at 9:00 a.m. in Department 6.

4.         CU18-082824             Samuel MacGregor vs. Charles Elwood Yeager, et al.

No appearance is required.  On its own motion, the court continues the December 11, 2024 motion to amend judgment to February 28, 2025, at 9:00 a.m. in Department 6.  Defendant/cross-complainant shall correct the following deficiencies in the motion: (1) The motion and declaration are not signed, and (2) the proof of service states that service was completed on December 27, 2018.  Defendant/cross-complainant shall file a signed motion and corrected proof of service with notice of continued hearing not later than one week before the continued hearing. 

5.         CU19-083425             Fire Insurance Exchange vs. Powermax Electric Co., et al.

The October 25, 2024 motion of cross-defendant Powermax Electric Co., Ltd., Guangdong (Powermax) for summary judgment as to the cross-complaint of Air-Vent, Inc. is denied. 

AVI contends the motion was served by email on October 25, 2024; the hearing date is January 10, 2025 (77 days after service); and hence, Powermax has provided inadequate notice for the motion, citing the new notice period of 81 days under Code of Civil Procedure section 437c, as amended by AB 2049.  AVI is correct that notice was inadequate. 

Code of Civil Procedure section 437c(a)(2) provides, in relevant part, that “[n]otice of [a summary judgment] motion and supporting papers shall be served on all other parties to the action at least 75 days before the time appointed for hearing.”  See, e.g., Cole v. Superior Court (2022) 87 Cal.App.5th 84, 87.  Effective January 1, 2025, AB 2049 increased the 75-day requirement for serving a motion for summary judgment to 81 days.   Of note, “section 437c extends the 75-day noticing period required for motions for summary judgment based on the method of service.”  Cole, 87 Cal.App.5th at 87.  Moreover, there is a “two-day extension of the noticing period that applies to motions for summary judgment that are served electronically.”  Id. at 88.  Explains the Cole court:

Section 437c does not expressly reference any extension of the notice period for electronic service. However, section 1010.6, which sets forth the rules for electronic service generally, provides that: “If a document may be served by mail, express mail, overnight delivery, or facsimile transmission, electronic service of that document is deemed complete at the time of the electronic transmission of the document or at the time that the electronic notification of service of the document is sent.” (Id., subd. (a)(3).) The statute further provides that “[a]ny period of notice ... which time period or date is  prescribed by statute or rule of court, shall be extended after service by electronic means by two court days.” (Id., subd. (a)(3)(B).) The statute lists three exceptions to this general rule, but the list does not include motions for summary judgment. (Ibid.) The statute also provides that “[t]his extension applies in the absence of a specific exception provided any other statute or rule of court.” (Id., subd. (a)(3)(C).)

Id. at 87–88 (italics added).

Of significance, “in light of the express statutory language, trial courts do not have authority to shorten the minimum notice period for summary judgment hearings.”  Urshan v. Musicians' Credit Union (2004) 120 Cal.App.4th 758, 765, quoting McMahon v. Superior Court (2003) 106 Cal.App.4th 112, 118 (italics added).  Moreover, if the notice given is invalid, a trial court has no authority to continue the hearing for the required number of deficient days in order to cure the defect.  See Robinson v. Woods (2008) 168 Cal.App.4th 1258, 1267-1268.  The minimum notice period can be shortened only if the parties “expressly consent” to the same.  Urshan, 120 Cal.App.4th at 768 (“[W]aiver of the right to the statutorily mandated minimum notice period for summary judgment hearings should not be inferred from silence. Waiver of minimum notice in this context should only be based on the affirmative assent of the affected parties.”) 

At bar, the summary judgment motion is set for Friday, January 10, 2025.  Utilizing the basic 75-day notice period (and excluding the day of the hearing), 75 days prior to January 10, 2025 would be Sunday, October 27, 2024.  See Code Civ. Proc § 12c(a).  Both that Sunday and Saturday, October 26, 2024 are excluded from the computation.  See Code Civ. Proc § 12. Thus, the last day to give notice under the 75-day basic period would be Friday, October 25, 2024.  See Code Civ. Proc § 12c(a).  Because electronic service was utilized, the notice period then must be extended by two court days.  See Code Civ. Proc §§ 12c(b), 1010.6.  Two court days prior thereto would be Wednesday, October 23, 2024.  Thus, the latest date for service of the motion and all supporting papers was October 23, 2024.  Powermax served the papers two days late, on October 25, 2024.  Even though AVI has filed an opposition, it has not expressly waived its right to the statutorily mandated minimum notice period for summary judgment hearings.

Under these circumstances, the motion has been untimely served and is denied on that ground. fn1

______________________________________________

fn 1  The same result would transpire were the court to conclude that the new 81-day period applied.  Contrary to the suggestion of AVI, however, it does not appear that the new notice requirements apply here.  “[S]tatutes are not to be given a retrospective operation unless it is clearly made to appear that such was the legislative intent.” Aetna Cas. & Surety Co. v. Ind. Acc. Com. (1947) 30 Cal.2d 388, 393.  Moreover, Code of Civil Procedure section 3 provides that no part of the code is retroactive “unless expressly so declared.”  The court has not been directed to any authority suggesting that the legislature intended this new time-period to be applied retrospectively. 

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December 27, 2024 Dept. 6 Civil Law and Motion Tentative Rulings

1.  CL0001438     JPMorgan Chase Bank N.A. vs. Marta A. Cacho-Sousa

Defendant’s 25 November 2024 motion to set aside default and default judgment is granted.

Code of Civil Procedure section 473(b) allows a court, "upon terms as may be just", to set aside a default and default judgment entered against a party through that party's mistake, inadvertence, surprise, or excusable neglect.  The motion must be made within a reasonable time not to exceed six months, and it must include a copy of the proposed answer.

A trial court has broad discretion to grant relief under Code of Civil Procedure Section 473(b), which is to be liberally construed.  “Any doubts existing as to the propriety of setting aside a default thereunder will be resolved in favor of a hearing on the merits.” Berman v. Klassman (1971) 17 Cal. App. 3d 900, 909. 

Defendant’s motion was filed in a timely manner.  It also attaches a copy of her proposed motion.  Thus, it is procedurally proper. 

Substantively, defendant, a self-represented party, bases her motion on the ground of mistake.  She checks off the box that states that she did not understand that she was required to respond to the summons and complaint.  Plaintiff argues that defendant’s misunderstanding, while a mistake, is not excusable.   

If there were no explanation for defendant’s mistake, the court might be inclined to deny the motion.  However, defendant’s motion provides additional information regarding why she misunderstood her duty to respond to the complaint.  Specifically, she explains that she was engaged in settlement discussions with plaintiff’s collection agency.  While waiting for a response to her offer, and without her knowledge, plaintiff filed the complaint.  Plaintiff does not dispute this explanation. 

Here, plaintiff is a debt collection agency.  Defendant is a self-represented party.  It is well established that a court cannot simply ignore rules of procedure when it becomes aware of the fact that a party is in pro per.  See County of Orange v Smith (2005) 132 Cal App 4^th 1434, 1444.  At the same time, however, “the law looks with disfavor upon a party, who, regardless of the merits of the case, attempts to take advantage of the mistake, surprise, inadvertence, or neglect of his adversary.”  Weitz v. Yankosky (1966) 63 Cal.2d 849, 855. 

The evidence before the court shows that the parties were in pre-litigation settlement discussions and working towards an agreed-upon debt reduction.  Plaintiff served the complaint in the midst of these settlement discussions.   Because defendant was waiting for a response to her last offer, she believed that she did not have to respond to the complaint.    Her belief was mistaken and, under the circumstances herein, excusable. 

There is no prejudice to plaintiff by the court setting aside the default and default judgment.  In such a case, only “very slight” evidence is required to justify a court in setting aside the default.  Buckert v. Briggs (1971) 15 Cal. App. 3d 296, 302–303. 

Defendant’s motion is granted.

2.  CL0001749     JPMorgan Chase Bank N.A. vs. Marta Cacho-Sousa

Defendant’s 25 November 2024 motion to set aside default and default judgment is denied.

Code of Civil Procedure section 473(b) allows a court, “upon terms as may be just”, to set aside a default and default judgment entered against a party through that party’s mistake, inadvertence, surprise, or excusable neglect.  The motion must be made within a reasonable time not to exceed six months, and it must include a copy of the proposed answer.

A trial court has broad discretion to grant relief under Code of Civil Procedure Section 473(b), which is to be liberally construed.  “Any doubts existing as to the propriety of setting aside a default thereunder will be resolved in favor of a hearing on the merits.” Berman v. Klassman (1971) 17 Cal. App. 3d 900, 909. 

Defendant’s motion was filed in a timely manner.  It also attaches a copy of her proposed motion.  Thus, it is procedurally proper. 

Substantively, defendant, a self-represented party, bases her motion on the ground of mistake.  She checks off the box that states that she did not understand that she was required to respond to the summons and complaint but offers no explanation as to why.  Plaintiff argues that defendant’s misunderstanding, while a mistake, is not excusable. 

The court agrees with plaintiff.  On this record, plaintiff has failed to establish that her mistake was excusable.

Defendant’s motion is denied. 

3.  CU0001310    Michelle R. Szura vs. Jeanette Enrichi-Roppe

Respondent's 5 December 2024 motion to terminate the civil harassment order is denied.  

A party against whom a restraining order is issued may move for an order terminating the restraining order.  See Code of Civil Procedure §527.6(j)(1).  It is within the court’s discretion to grant or deny the motion on a case-by-case basis considering the “relevant circumstances”, which may include (1) a material change in the facts, (2) a change in the law, or (3) the ends of justice.  See Yost v. Forestiere (2020) 51 Cal App 5th 509, 526-527.

In this case, respondent’s motion to terminate the restraining order makes no showing to support termination of the order.  First, to the extent that respondent challenges venue or jurisdiction, that claim lacks merit.  Venue and jurisdiction were proper in this court because petitioner alleged that she was harassed by respondent at petitioner’s place of business in this county.  See 4 April 2024 Petition. 

Second, contrary to the suggestion of respondent, Ms. Szura, her sister, did execute and file a petition seeking a restraining order against petitioner.  See id. 

Third, contrary to any suggestion of respondent, this court has jurisdiction over her person.  Defendant filed an April 2024 motion to dismiss requesting that the petition be dismissed arguing, in short, that there were no grounds for issuance of a restraining order.  See 12 April 2024 Resp. Mot. to Dismiss; 22 April 2024 Verified Supplement for Mot. to Dismiss.  “(W)here the defendant appears, and asks some relief which can only be granted on the hypothesis that the court has jurisdiction of (the) cause and person, it is a submission to the jurisdiction of the court as completely as if he had been regularly served with process, whether such an appearance, by its terms, be limited to a special appearance or not.”  Goodwine v. Superior Court of Los Angeles County (1965) 63 Cal.2d 481, 484.  In addition, respondent was later served with notice of the request for a civil harassment restraining order by publication.  See 17 June 2024 Proof of Publication.  In short, there are no changes in the facts, material or otherwise.  There is no change in the law.  The ends of justice would not be served by terminating the restraining order.  Respondent’s motion is denied. 

Petitioner’s request for a finding of contempt against respondent is denied without prejudice.  Any request for an order to show cause regarding contempt must be made by noticed motion.

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December 20, 2024 Dept. 6 Civil Law and Motion Tentative Rulings

1.  CU0000592           Aaron Faust vs. Tom Capozzo, et al.

Plaintiff’s motion for attorney’s fees and costs is granted in part and denied in part.

Code of Civil Procedure section 580b provides: 

[N]o deficiency shall be owed or collected, and no deficiency judgment shall lie, for any of the following:

***

(3) Under a deed of trust or mortgage on a dwelling for not more than four families given to a lender to secure repayment of a loan that was used to pay all or part of the purchase price of that dwelling, occupied entirely or in part by the purchaser.

The parties agree that plaintiff obtained a decree of judicial foreclosure under a purchase money trust deed.  They also agree that he cannot recover a deficiency judgment under Code of Civil Procedure §580b.  The issue before the court is whether plaintiff’s request for attorneys’ fees and costs presently constitutes an impermissible deficiency judgment.  Until the property is sold it presently appears unknown whether there will or will not be any surplus proceeds.   

In the case of Birnam v Loeb (1998) 64 Cal.App.4th 502, cited by both parties, the court found that defendant’s request for an equitable set-off against plaintiff’s pre-foreclosure judgment was not a deficiency judgment per se, as it “was not measured by the difference between the fair market value of the property held as security and the outstanding indebtedness. It was measured by the amount of attorney's fees and costs incurred by plaintiffs in pursuit of their tort action against defendants.”  Id., at 511.   

However, after discussing the legislative intent of CCP §580b, which is to “relieve debtors under a purchase money trust deed from any personal liability on the debt” the Birnam court found that to grant the request for attorney’s fees would go against the economic policy considerations underlying section 580b and would “operate in a practical manner to abrogate section 580b”.  Id., at 511-512, 517. 

The court disallowed the equitable set-off for attorney’s fees and costs, holding:

To allow the equitable set-off under the circumstances of this case would allow defendants to look beyond the security for recovery of the debt and recover more than the fair market value of the property at the time of foreclosure.  As discussed above, the Legislature intended to relieve debtors under a purchase money trust deed from any personal liability on the debt. (Roseleaf Corp. v. Chierighino, supra, 59 Cal.2d at p. 42; Long v Superior Court (1985) 170 Cal.App.3d 499, 504.)

More directly on point is  Thoryk v. San Diego Gas & Electric Co. (2014) 225 Cal.App.4th 386, 402–403.  There, “the nonjudicial foreclosure, at which Highland acquired the property for less than the full  amount of the outstanding indebtedness, did not extinguish all of the debt on the note. The question is what further recourse Highland should have, that does not contravene the purpose of the antideficiency statutes.”  Id at 402-403.  Per the court of appeal, the answer was none:  “The debtor-creditor relationship was not preserved, and thus Highland's claim for attorney fees and interest, based on the note, is not now enforceable, without a stronger showing of the availability of additional or mixed collateral, beyond the real property security. Id. at 404 (italics added).  “Highland has not shown current entitlement to any continuing interest and attorney fees that would be recoverable and consistent with antideficiency protections.”  Ibid. 

Code of Civil Procedure §726 provides, in pertinent part:

1. There can be but one form of action for the recovery of any debt or the enforcement of any right secured by mortgage upon real property …, which action shall be in accordance with the provisions of this chapter.  In the action the court may, by its judgment, direct the sale of the encumbered real property …, and the application of the proceeds of the sale to the payment of the costs of court, the expenses of levy and sale, and the amount due plaintiff, including, where the mortgage provides for the payment of attorney's fees, the sum for attorney's fees as the court shall find reasonable, not exceeding the amount named in the mortgage.

Only if a deficiency judgment is not barred by Code of Civil Procedure section 580b, can the fees and costs be assessed against the defendant personally.  In that case, the following requirements must be satisfied:

[I]f the prohibition of Section 580b is applicable, the decree shall so declare and there shall be no judgment for a deficiency. In the event that a deficiency is not waived or prohibited and it is decreed that any defendant is personally liable for the debt, then upon application of the plaintiff filed at any time within three months of the date of the foreclosure sale and after a hearing thereon at which the court shall take evidence and at which hearing either party may present evidence as to the fair value of the real property … as of the date of sale, the court shall render a money judgment against the defendant or defendants for the amount by which the amount of the indebtedness with interest and costs of levy and sale and of action exceeds the fair value of the real property … sold as of the date of sale.

Code Civ. Proc. § 726.

Finally, Code of Civil Procedure section 580c allows, but does not require, the court, in any case where a deed of trust or mortgage is judicially foreclosed upon, to order the trustor to pay the reasonable attorney’s fees necessary for “processing the judicial foreclosure,” as well as “the actual cost of publishing, recording, mailing and posting notices, litigation guarantee, and litigation cost of suit.”

In the case at bar, plaintiff’s attorney prepared the judgment and decree of foreclosure issued in this case.  The judgment does not specifically include an award of attorney’s fees and costs, but it does order that plaintiff be paid “the sums adjudged due” after the sale of the subject property and payment of expenses for the levy and sale.  Order, at 2:20-22.  This necessarily includes attorney’s fees and costs pursuant to the deed of trust.

The judgment further orders that the defendants will not be personally liable for any deficiency between the sale price and the “total amount due plaintiff”, which necessarily includes attorney’s fees and costs.  As such, while plaintiff may recover those fees and costs from any surplus proceeds after the foreclosure sale, Code of Civil Procedure §580b prohibits him from collecting them directly from defendants.  To issue a contrary order would, as noted by the court in Birnam v Loeb (1998) 64 Cal.App.4th 502, contravene the Legislative intent of this code section.

Code of Civil Procedure §726 supports the court’s order in that it includes in the term “amount due plaintiff” attorneys’ fees where the mortgage provides for them.  Even then, only reasonable attorney’s fees may be paid, and they are to come from the proceeds of the sale pursuant to a writ of execution in accordance with Code of Civil Procedure §726(e) and 716.020, not directly from defendant. 

Plaintiff has met his burden of establishing that some of the fees requested are reasonable under CCP §726 and “necessary for processing the judicial foreclosure” under CCP §580c.  The declaration of plaintiff’s attorney states that he spent 49.7 hours on this case from the date that defendant’s demurrer to the third amended complaint was filed.  It details 25 hours of work and seemingly claims additional compensation for the remainder.  The court finds that 25 hours of attorney time was reasonable and awards fees in the total amount of $8,750.00.  Reasonable costs are approved in the amount of $600.00.  Total costs and fees awarded, thus, are $9,350.00.

Plaintiff’s motion is granted, in part.  Plaintiff is entitled to attorneys’ fees and costs as indicated but only insofar as there are surplus proceeds from the foreclosure sale.  If the surplus is less than the total fees and costs, plaintiff is entitled to the surplus that remains.   To the extent that plaintiff seeks attorneys’ fees and costs directly from defendants, the motion is denied. 

2.  CU0001116           Zachariah Salsbury vs. Hansen Bros. Enterprises

Plaintiff’s 19 November 2024 motion to approve Private Attorneys General Act (PAGA) settlement and to dismiss such claims with prejudice is granted as prayed. 

Settlement of a PAGA claim is subject to mandatory court review and approval to ensure that “any negotiated resolution is fair to those affected.” Williams v Superior Court (2017) 3 Cal. 5th 531, 549; Lab. Code § 2699(s)(2).  The court has reviewed plaintiff’s unopposed motion and finds that the Private Attorneys General Act settlement between the parties is fair to those affected.  A dismissal review hearing is set for February 21, 2025, at 10:00 a.m. in Department 6. 

3.  CU0001613           In the Matter of Judith Bowen

Town of Truckee (“Town”)’s 22 November 2024 demurrer to the petition and complaint is sustained without leave to amend.  The Town’s 22 November 2024 motion to strike is denied without prejudice as moot. 

The court applies the well-established standards regarding a demurrer.  See e.g., Code Civ. Proc., § 430.10, subds. (a), (e), (f); Writers Guild of America, West, Inc. v. City of Los Angeles (2000) 77 Cal.App.4th 475, 477;  Ellenberger v. Espinosa (1994) 30 Cal.App.4th 943, 947; Planning & Conservation League v. Castaic Lake Water Agency (2010) 180 Cal.App.4th 210, 225–226; Flying Dutchman Park, Inc. v. City and County of San Francisco (2001) 93 Cal.App.4th 1129, 1134.

The court judicially notices the following Town Exhibits without opposition by petitioners: Nos. 1, 3, 4, 13 and 14.  The court judicially notices the following Town Exhibits over the objections by petitioners: Nos. 7 and 12.  The court need not address the other requests for judicial notice and does not consider the documents therein.  The court sustains petitioners’ objection to the declaration of D. Nishimori and does not consider that evidence.

 The Petition/Complaint and All Claims

The Town demurs to the petition and complaint (as well as each claim therein) arguing that: 1. the petition/complaint fails to state sufficient facts to constitute a cause of action, see Code Civ. Proc., § 430.10, subd. (e); and 2. the Court has no jurisdiction over the subjects of the causes of action alleged in the same.  See Code Civ. Proc., § 430.10, subd. (a).

The Town argues, first, that petitioners had no vested right to operate short-term rentals.  The court agrees that the petition is defective in this regard.

 “Petitioners do no[t] dispute that [the Town] may attempt to restrict short-term residential rentals of RVs in the Town of Truckee,” and assert only that they must be allowed to maintain their “lawful nonconforming use” or otherwise be paid compensation for a taking under Article I, Section 19 of the California Constitution.  Comp. ¶ 46.  “A nonconforming use is one which lawfully existed prior to the effective date of the zoning restriction and which continued thereafter in nonconformity with the ordinance.” County of Sonoma v. Rex (1991) 231 Cal.App.3d 1289, 1297. 

At present, petitioners have failed to allege that their nonconforming use is one which lawfully existed prior to the effective date of Ordinance 2023-12.  Indeed, the judicially noticeable facts suggest that petitioners’ property (located in an area zoned for general commercial) was never zoned for the specific use to which they put it, See City of Corona v. Naulls (2008) 166 Cal.App.4th 418, 433 (“[W]here a particular use of land is not expressly enumerated in a city’s municipal code as constituting a permissible use, it follows that such use is impermissible.”); Truckee Municipal Code (“TMC”) TMC §§ 18.03.020, subd. (E) (“If a proposed use of land is not specifically listed… the use shall not be allowed”), 18.12.020 (definition of Commercial General), 18.12.030 (table identifying permitted uses), Town Exh. 1 (zoning map).   Moreover, it appears that petitioners never obtained the required transient occupancy registration certificate.  TMC § 3.24.020.  In addition, it is not at all clear, based on the current record, how the proposed use is authorized either by the Mobilehome Parks Act or Department of Housing and Community Development regulations.  The demurrer is sustained on this ground. 

The Town argues that petitioners failed to pay owed transient occupancy taxes (“TOT”), barring their claim.  The court disagrees.  “A taxpayer ordinarily must pay a tax before commencing a court action to challenge the collection of the tax. This rule, commonly known as ‘pay first, litigate later,’ is well established and is based on a public policy reflected in the state Constitution, several statutes, and numerous court opinions.” Mojave Pistachios, LLC v. Superior Court (2024) 99 Cal.App.5th 605, 625, quoting County of Los Angeles v. Southern Cal. Edison Co. (2003) 112 Cal.App.4th 1108, 1116. Of note, there are “several recognized exceptions to the ‘pay first’ rule. One arises when the tax ordinance being challenged provides for criminal penalties for failure to pay.”  Mojave Pistachios, LLC, 99 Cal.App.5th at 628.  “An infraction is a criminal matter.”  People v. Simpson (2014) 223 Cal.App.4th Supp. 6, 9, citing Pen. Code, §§ 16, 19.6. Truckee Municipal Code section 3.24.140, under “Chapter 3.24 TRANSIENT OCCUPANCY TAX,” explicitly notes, “Any person who violates any provision of this chapter shall be guilty of an infraction, punishable by fine as determined by the Court.” 

The Town also argues that petitioners never requested a hearing or appeal on the amount of their overdue TOT, failing to exhaust administrative remedies and depriving the court of jurisdiction in connection therewith.  The court agrees with respect to the 25 February 2024 tax lien associated with an assessment of approximately $27,000. 

Exhaustion is jurisdictional, see California Correctional Peace Officers Assn. v. State Personnel Board (1995) 10 Cal.4th 1133, 1151, and an exhaustion requirement is inferred where procedural requirements “provide affirmative indications of the Legislature’s desire” that a public entity be allowed to consider, in the first instance, issues raised during that process.  See Williams & Fickett v. County of Fresno (2017) 2 Cal.5th 1258, 1271.  “[F]ailure to exhaust administrative remedies is a proper basis for demurrer.” Gupta v. Stanford University (2004) 124 Cal.App.4th 407, 411.  Chapter 3.24 of the Truckee Municipal Code provides a detailed procedure and timelines for challenging a TOT assessment, including a hearing before the tax administrator where the operator can present evidence and arguments, and provides for an administrative appeal to the Town Council.   See TMC §§ 3.24.090; 3.24.100.  Petitioners never requested a hearing or appeal on the amount of their overdue TOT as required within 10 days of the 25 January 2024 notice; as such, those amounts became “final and conclusive.”  TMC § 3.24.090; Town Exs. 7 and 12.  The demurrer is sustained on this ground. 

The Second Cause of Action

The Town further demurs to the second cause of action in the petition/complaint, arguing that the action is uncertain, ambiguous and unintelligible.  See Code Civ. Proc.§430.10(f).  The demurrer is sustained on this ground.  

Petitioners plead that the Town violated the California Constitution’s due process, takings, and special legislation clauses. Comp. ¶¶ 66–82. Petitioners seek declaratory and injunctive relief, and compensatory damages related thereto. 

Each of these claims has unique elements and unique potential relief.  When these claims are alleged in combination, it is difficult to ascertain the exact basis for each.  The individual claims should be pleaded separately with the required specificity for each.

Leave to Amend

“Where the complaint is defective, ‘[i]n the furtherance of justice great liberality should be exercised in permitting a plaintiff to amend his complaint, and it ordinarily constitutes an abuse of discretion to sustain a demurrer without leave to amend if there is a reasonable possibility that the defect can be cured by amendment.’ ” Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 970–971 (citation omitted). However, “[t]he plaintiff has the burden of demonstrating that “there is a reasonable possibility the plaintiff could cure the defect with an amendment.” Jo Redland Trust, U.A.D. 4-6-05 v. CIT Bank, N.A. (2023) 92 Cal.App.5th 142, 162. “The burden of proving such reasonable possibility is squarely on the plaintiff.” Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.

In this case, there is has been no specific showing by plaintiffs that they can amend the petition/complaint to correct these defects.  Therefore, on this record, leave to amend is denied.

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December 13, 2024 Dept. 6 Civil Law and Motion Tentative Rulings

1.         CL0002037     Joseph Pryor v. Named Individual

Appearances are required by all parties. 

2.         CU0000284    Tod DuBois v. Scott Fetty, et al.

Plaintiff's 4 November 2024 motion to file a second amended complaint is denied.

Code of Civil Procedure section 473(a)(1) provides that a court may, in furtherance of justice and on such terms as may be proper, allow a party to amend a pleading to correct a mistake in the name of a party.  A motion to amend must do the following: 

• Include a copy of the proposed amendment or amended pleading, which must be

          serially numbered to differentiate it from previous pleadings or amendments;

• State what allegations in the previous pleading are proposed to be deleted, if any, and where, by page, paragraph, and line number, the deleted allegations are located; and
• State what allegations are proposed to be added to the previous pleading, if any, and where, by page, paragraph, and line number, the additional allegations are located.

Cal. Rule of Court 3.1324(a).

A motion to amend a pleading must also be accompanied by a declaration that includes the following:

• The effect of the amendment;
• Why the amendment is necessary and proper;
• When the facts giving rise to the amended allegations were discovered; and
• The reasons why the request for amendment was not made earlier.

Ibid.

Plaintiff’s motion fails to comply with the requirements of the Rules of Court.  While the notice states that the amendment is limited to correcting the name of a defendant and the memorandum of points and authorities states that there are also new allegations of a recently discovered use permit, the proposed amended complaint adds many other allegations to and deletes many other allegations from the amended complaint, including but not limited to, an added request for punitive damages.  See Sec. Amd. Comp. at 11:12-13.  It does not inform the court when the facts giving rise to the amended allegations were discovered and the reasons why the request for amendment was not made earlier.

3.         CU0000512    eCapital Asset Based Lending v. Nicole Medina, et al.

Motion to Compel Plaintiff’s Further Discovery Responses

Defendants’ 23 October 2024 motion to compel plaintiff’s further responses to special and form interrogatories, demand for documents and request for admissions is denied.  Defendants’ motion for monetary sanctions against plaintiff and its attorney is also denied.  Plaintiff’s request for monetary sanctions against defendants and their attorney is granted in part.

Timeliness

On 6 September 6, 2024, plaintiff served its second set of further amended responses to requested discovery on defendants (by mail and e-mail).  Per defendants’ suggestion and the parties’ agreement, the deadline for any motion to compel was 30 days after receipt of any responses.  See, e.g., Code. Civ. Proc. §2030.300(c)(allowing agreed extensions-interrogatories), §2031.310(c) (documents), §2033.290(c)(requests for admissions). Under the parties’ agreement, the deadline for a motion to compel was no later than 6 October 2024 (30 calendar days).  Defendants filed and served their motion by email on 23 October 2024 in contravention of the parties’ agreement.  As such, the demanding party, defendants, waived their right to compel any further responses and their motion is denied on that ground.  See Code Civ. Proc. §2030.300(c)(waiver-interrogatories), §2031.310(c) (documents), §2033.290(c)(requests for admissions);  Golf & Tennis Pro Shop, Inc. v. Superior Court (2022) 84 Cal.App.5th 127, 137, citing Vidal Sassoon, Inc. v. Superior Court (1983) 147 Cal.App.3d 681, 683 (deadlines for motions to compel further responses are “mandatory and the court may not entertain a belated motion to compel.”); Sexton v. Superior Court (1997) 58 Cal.App.4th 1403, 1410 (“the 45-day limitation … is only “jurisdictional” in the sense that it renders the court without authority to rule on motions to compel other than to deny them.”).

In addition, by statute, notice of a motion to compel must be given within 45 days after service of any responses.  See, e.g., Code. Civ. Proc. §2030.300(c)(45-day deadline-interrogatories), §2031.310(c) (documents), §2033.290(c)(requests for admissions); § 1010.6(a)(3) (extension of time for electronic service).  Here, defendants had until 23 October 2024 to give notice of their motions (45 calendar days after service plus 2 court days).  Defendants filed their motion on 23 October 2024 and served the motion by e-mail.  While electronic service of that document was deemed complete on that date, the period of notice was extended as a matter of law by two court days to 25 October 2024. See Code Civ. Proc. § 1010.6(a)(3). As such, the demanding party, defendants, waived their right to compel any further response even under the more generous statutory time period, and their motion is denied on that ground.  See Code Civ. Proc. §2030.300(c), §2031.310(c), §2033.290(c);  Golf & Tennis Pro Shop, Inc. 84 Cal.App.5th at 137, citing Vidal Sassoon, Inc., 147 Cal.App.3d at 683; Sexton, 58 Cal.App.4th at 1410.

Monetary Sanctions

Code of Civil Procedure sections 2030.300(d), 2031.310(h), and 2033.290(d) provide for mandatory monetary sanctions against any party, person, or attorney who unsuccessfully makes or opposes a motion to compel a further response to interrogatories, demand for documents, or request for admissions, “unless [the court] finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.” 

Defendants’ request for monetary sanctions is denied.  Plaintiff acted with substantial justification in opposing defendants’ motion both on procedural and substantive grounds. 

Plaintiff’s request for monetary sanctions in the amount of $5,427.50 against defendants’ counsel is granted.  Defendants’ attorney failed to meet and confer regarding plaintiff’s further amended responses and almost 400 pages of documents; the amended responses, in fact, were complete and fully responsive, and defendants filed an untimely motion.  Defendants had no substantial justification for bringing the motion. Sanctions shall be paid by counsel no later than 17 January 2025.

Motion to Compel Defendants’ Deposition

Plaintiff’s 28 October 2024 motion to compel defendants’ depositions is granted. Plaintiff’s request for sanctions against defendants and their counsel is granted in part.

Defendants’ Untimely Opposition

Defendants failed to timely file an opposition to the motion originally set for hearing on 22 November 2024.  (Indeed, Plaintiff filed a notice of non-opposition on 15 November 2024).  Defendants then filed an untimely 10 December 2024 opposition, without leave of the court, solely three days prior to the 13 December 2024 continued hearing date.  See Code of Civ. Proc. § 1005(b)(“All papers opposing a motion ... shall be filed ... and ... served on each party at least nine court days, and all reply papers at least five court days before the hearing.”) 

“A trial court has broad discretion under rule 3.1300(d) of the Rules of Court to refuse to consider papers served and filed beyond the [applicable] deadline without a prior court order finding good cause for late submission.” Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 765; see Rancho Mirage Country Club Homeowners Assn. v. Hazelbaker (2016) 2 Cal.App.5th 252, 261-262 (“trial court has broad discretion to accept or reject late-filed papers,” especially where the relevant party made “no attempt to demonstrate good cause for having failed to adhere to the applicable deadline”); Mackey v. Trustees of California State University (2019) 31 Cal.App.5th 640, 657 (no abuse of discretion by court in rejecting declarations filed three days before hearing date on motion for summary judgment.)  Here, defendants have made no showing of good cause for their late submission either before it was filed or in their opposition declaration.  Moreover, as noted in the ruling regarding defendant’s motion to compel, defendants have a history of filing/serving tardy motions and noncompliance with the Rules of Civil Procedure.  The opposition will not be considered. 

Motion to Compel

 “Any party may obtain discovery … by taking in California the oral deposition of any person, including any party to the action.”  Code Civ. Proc. § 2025.010.  Generally, the objecting party has three calendar days before the deposition date to object, otherwise the objecting party waives the objections.  See Code Civ. Proc. § 2025.410, et seq.  If, after service of a deposition notice, a party to the action … without having served a valid objection under Section 2025.410, fails to appear for examination, or to proceed with it, or to produce for inspection any document…, the party giving the notice may move for an order compelling the deponent's attendance and testimony, and the production for inspection of any document… described in the deposition notice.”  Code Civ. Proc., § 2025.450(a). 

Here, defendants failed to: 1) appear at the duly noticed depositions on September 26 and 27, 2024, 2) meet and confer to select mutually agreeable dates, and 3) failed to serve any timely objections three days in advance of the depositions.  The motion to compel defendants’ deposition is therefore warranted. The depositions shall be completed no later than 31 January 2025.

If a motion to compel a party’s deposition is granted, “the court shall impose a monetary sanction under Chapter 7 (commencing with Section 2023.010) in favor of the party who noticed the deposition and against the deponent…, unless the court finds that the one subject to the sanction acted with substantial justification or that other circumstances make the imposition of the sanction unjust.”  Code Civ. Proc. § 2025.450(g)(1).  Failing to appear at a duly noticed deposition, which is an authorized method of discovery, is a misuse of the discovery process, warranting sanctions.  See Code Civ. Proc. § 2023.010(d).  Moreover, refusing to meet and confer warrants sanctions.  See Code Civ. Proc. § 2023.010(i). 

Sanctions are warranted as there has been no showing that defendants acted with substantial justification or that circumstances make the imposition of sanctions unjust.  Sanctions in the reduced amount of $3,900.00 are awarded in favor of plaintiff and against defendants.  Sanctions shall be paid no later than 17 January 2025.

4.         CU0000562    Don Zeppenfeld, et al. v. Martin T. Reilley, et al. 

No appearance is required.  Plaintiff’s 21 October 2024 motion to compel further production of documents or responses to interrogatories is continued on the court’s motion until January 24, 2025, at 10:00 a.m. in Department 6.  The court needs additional information to resolve the instant motions.  No later than 20 December 2024, plaintiff shall submit a declaration of no more than two pages which includes all discovery propounded, as well as any and all responses, including supplemental responses to the same.  The declaration shall also detail what agreements the parties reached to extend the deadline for filing the instant motions to compel.  Lastly, Rule of Court 3.1345(c)(3) required that a separate statement include the “text of each response, answer, or objection, and any further responses or answers.”   To the extent that there have been has been any further responses or answers for any request, plaintiff shall submit a concise outline of the supplemental response or answer for each such request.  See Rule of Court 3.145(b)(2).  Defendants may file an optional declaration of no more than two pages in response no later than 27 December 2024.

 

5.         CU0001418    John Albert Bacon and Sandra Jacoby Bacon, Trustees of the John Albert Bacon and Sandra Jacoby Bacon Revocable Trust Dated May 19, 1988 v. Statewide Homes, Inc. 

No appearances are required.  On the court’s own motion, cross-defendant’s demurrer and motion to remove mechanics lien are continued to January 24, 2025, at 10:00 a.m. in Department 6. 

6.         CU0001190    Alice Branton, et al. vs. Zarlasht Fakiri, D.O., et al.

Defendants’ 30 September 2024 motion to compel arbitration and stay this proceeding are granted. 

Agreement to Arbitrate

Code of Civil Procedure section 1281.2 provides in pertinent part:

On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party to the agreement refuses to arbitrate that controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists. 

The burden is on the party seeking to compel arbitration to prove the existence of an agreement to arbitrate.  See Toal v. Tardif (2009) 178 Cal.App.4th 1208, 1217.  If that burden is met, the burden shifts to the party opposing arbitration to produce evidence to challenge the validity of the agreement to arbitrate.  See Gamboa v. Northeast Community Clinic (2021) 72 Cal.App.5th 158.

The parties agree that decedent signed the arbitration agreement on October 26, 2022.  The parties agree that she had authority and the mental capacity to sign it.  Thus, defendants have met their burden of proving the existence of an agreement to arbitrate, placing the burden on plaintiffs to establish that the agreement was not valid. 

Execution of Another Arbitration Agreement

Plaintiffs contend that “there is no arbitration agreement applicable to the relevant admission because defendants failed to have Ms. Branton execute another agreement upon her readmission to the facility on November 10, 2022,” citing Health and Safety Code section 1599.651.  Opp. at 12-14.  The court is not convinced.    

Health & Safety Code section 1599.651 is not applicable to the instant motion. Section 1599.651 relates to readmission of persons to long-term health care facilities when a prior executed contract of admission exists and requirements for the same.  The section does not govern arbitration agreements.  Moreover, as defendants note, the preamble to the agreement expressly states that the arbitration agreement applies to the resident’s admission to the facility “including any applicable readmissions.”  Def. Mot, Ex. D at 1.

 Failure to Explain Arbitration Agreement

Plaintiffs argue that defendants were required by 42 CFR §483.70(m)(2)(i) to fully explain the arbitration agreement to decedent and that defendants’ admissions staff failed to adequately do so.  See Opp. at 6-10.  The court is not persuaded.

Title 42, Code of Federal Regulations section 483.70(m)(2), a rule promulgated by the Centers for Medicare & Medicaid Services (“Centers”), provides, in relevant part:

Binding arbitration agreements. If a facility chooses to ask a resident or his or her representative to enter into an agreement for binding arbitration, the facility must comply with all of the requirements in this section.

…

(2) The facility must ensure that:

(i) The agreement is explained to the resident and his or her representative in a form and manner that he or she understands, including in a language the resident and his or her representative understands;

(ii) The resident or his or her representative acknowledges that he or she understands the agreement;

….

42 C.F.R. § 483.70.

Of note, in the most recent, relevant administrative record for this regulation (associated with the adoption of a final rule in 2019), the Centers expressly indicated that its “[2019] final rule does not purport to regulate the enforceability of any arbitration agreement…” 84 Fed. Reg. 34718-01 at *34718.  It further added that, “This rule in no way would prohibit two willing and informed parties from entering voluntarily into an arbitration agreement.”  Ibid. at *34,732.  [i]

 As a preliminary matter, the court is not convinced that a failure to comply with this regulation, standing alone, can serve as a ground that exists at law or in equity for the revocation of the instant arbitration contract as required by Title 9, United States Code, section 2. As the Centers stated when enacting the regulation, section 483.70(m) has no effect on enforceability of an arbitration agreement.   The 2019 rule “establishes the conditions for receipt of federal funding through the Medicare and Medicaid programs.” Northport Health Services of Arkansas, LLC v. U.S. Department of Health and Human Services (8th Cir. 2021) 14 F.4th 856, 868.  “So, for example, if an [long term care] facility entered into an arbitration agreement with a resident without complying with the [2019] Rule …, see 42 C.F.R. § 483.70(n)(1), the arbitration agreement would nonetheless be enforceable, absent a showing of ‘generally applicable contract defenses, such as fraud, duress, or unconscionability,’  [AT&T Mobility LLC v.] Concepcion, 563 U.S. 333], 339; see 9 U.S.C. § 2.”   Ibid.  “[Centers for Medicare and Medicaid Services] would simply enforce the regulation through a combination of administrative remedies, including denial of payment and civil monetary penalties.”  Ibid.

Plaintiffs argue that defendants’ unilateral mistake of law (i.e., that defendants' agents did not know they were required to explain the arbitration agreement to decedent and did not understand any of the specifics of the agreement) is a ground to revoke the agreement, citing Civil Code section 1578.  Pl. Supp. at 2.  Plaintiffs further argue that defendants’ misrepresentations (i.e., as fiduciaries, defendants failed to advise decedent that they were required by federal law to explain the agreement to her and offered her no information regarding the same including the rights waived by decedent) constitute grounds to revoke the arbitration agreement, citing Civil Code section 1689(b)(1).  The court does not agree.

“Civil Code section 1689[(b)(1] provides that a party to a contract may rescind the contract if his consent was given by mistake or fraud exercised by or with the connivance of the party as to whom he rescinds ….”  Merced County Mut. Fire Ins. Co. v. State of California (1991) 233 Cal.App.3d 765, 771.

Thus, when a party has been induced by fraud or mistake to enter into a contract, the party may have the contract set aside….  When contracting parties have entered into a contract under a material mistake of law or fact, the parties are entitled to be relieved by reason of their mutual mistake. This mistake may be reflected in an innocent misrepresentation by one party, believed by the other. Thus, rescission is available for a unilateral mistake, when the unilateral mistake is known to the other contracting party and is encouraged or fostered by that party.

Ibid. 

 “A mistake of law as defined by Civil Code section 1578 exists … when one side misunderstands the law at the time of contract and the other side knows it, but does not rectify that misunderstanding.”  Hedging Concepts, Inc. v. First Alliance Mortgage Co. (1996) 41 Cal.App.4th 1410, 1421; Civil Code § 1578(2).  “Unilateral mistake is ground for relief where the mistake is due to the fault of the other party or the other party knows or has reason to know of the mistake. Architects & Contractors Estimating Services, Inc. v. Smith (1985) 164 Cal.App.3d 1001, 1007–1008.

 At bar, contrary to the suggestion of plaintiffs, there is no record evidence that decedent’s consent to the arbitration agreement was given by mistake or obtained through duress, menace, fraud, or undue influence or that defendants acted in a conniving manner in obtaining her consent.  There is similarly no evidence that decedent was actually operating under any sort of mistake of law either caused by defendants or known by defendants.  Decedent executed an arbitration agreement that plainly and simply explained the consequences of the same.  While it is true that defendants’ employees did not explain the arbitration agreement to decedent in any level of detail, that evidence is insufficient to demonstrate that decedent, in fact, consented to the agreement as result of mistake or misrepresentation. [ii]

Venue Selection Provision

In a related argument, plaintiffs contend that the arbitration agreement violated federal law because it did not allow for selection of a venue that was convenient for both parties, citing 42 C.F.R. §483.70(m)(2)(iv).  Opp. at 11-12. The court cannot agree.

Title 42, section 483.70(m)(2)(iv) provides, in pertinent part, that “If a facility chooses to ask a resident or his or her representative to enter into an agreement for binding arbitration… the facility must ensure that … the [arbitration] agreement provides for the selection of a venue that is convenient for both parties.”  First, based on the same authority noted above, the court is not convinced that a failure to comply with this rule, standing alone, can serve as a ground that exists at law or in equity for the revocation of the instant arbitration contract as required by Title 9, United States Code section 2.  Second, plaintiffs have failed to identify, much less establish, any ground that exists in law or in equity for revocation of the arbitration agreement as a result of this purported venue violation. 

Non-parties to the Arbitration Agreement

Plaintiffs argue that the wrongful death beneficiaries did not sign or consent to the subject arbitration agreement and, as such, their wrongful death claims, predicated on elder abuse and neglect, should not be subject to the arbitration agreement.  They specifically assert that the case at bar is not governed by Ruiz v. Podolsky (2010) 50 Cal.4th 838 and progeny.  See Opp. at 14-16.  The court disagrees.

First, “[t]he arbitration agreement's plain language manifests an intent between the parties to bind [decedent’s] heirs, i.e., the wrongful death claimants, to any claims of professional negligence. …”    See Def. Mot, Ex. D, Holland v. Silverscreen Healthcare, Inc. (2024) 101 Cal.App.5th 1125, 1133. 

Second, the agreement complies with the disclosure requirements of Code of Civil Procedure section 1295(a) and (b).  See ibid.

Third, the survivors’ claims against defendants sounds in professional negligence. See First Amended Complaint ¶¶81-96; [iii] Holland, 101 Cal.App.5th at 1133.

Fourth, “the law is clear that the cause of action for a violation of the Elder Abuse Act belongs to the elder victim; the claim does not pass on to survivors.”  Holland v. Silverscreen Healthcare, Inc. (2024) 101 Cal.App.5th 1125, 1132.  “[I]f the [survivors] cannot maintain a claim for abuse under the Elder Abuse Act in their own name, it makes no sense for them to be able to pursue a claim for wrongful death based upon that same alleged abuse.”  Id. at 1134. 

“Applying these legal principles, [the court] conclude[s] that the [survivors]’ wrongful death claim falls squarely within the scope of Ruiz and must be ordered to arbitration.

Id. at 1133; see id. at 1132 (“Ruiz held ‘that all wrongful death claimants are bound by arbitration agreements entered into pursuant to section 1295, at least when ... the language of the agreement manifests an intent to bind these claimants.’ ”)

Plaintiffs also contend that Code of Civil Procedure section 1281.2(c) precludes binding arbitration due to the presence of defendants who are not parties to the agreement but against whom plaintiffs are also asserting claims.  See Opp. at 16.  Not so.  

“[The court must] examine the language of the contract to determine whether the parties intended to apply the [Federal Arbitration Act (“FAA”)] to the exclusion of California procedural law and, if any ambiguity exists, to determine whether section 1281.2(c) conflicts with or frustrates the objectives of the FAA.” Maxwell v. Atria Management Co., LLC (2024) 105 Cal.App.5th 230, 248–249, review filed (Oct. 29, 2024).  “The procedural aspects of the FAA do not apply in state court absent an express provision in the arbitration agreement.”  Avila v. Southern California Specialty Care, Inc. (2018) 20 Cal.App.5th 835, 840 (italics added); see Cronus Investments, Inc. v. Concierge Services (2005) 35 Cal. 4th 376, 394 (“Our opinion does not preclude parties to an arbitration agreement to expressly designate that any arbitration proceeding should move forward under the FAA's procedural provisions rather than under state procedural law.”)

In this case, there is an express provision indicating that the parties intended to apply the FAA to the exclusion of California procedural law.  Article 4 of the 2022 arbitration agreement specifically provides that the FAA applies, and that “the procedures set forth in the FAA shall govern any petition to compel arbitration.” Def Mot, Ex. D.  Article 5 also explicitly states California Code of Civil Procedure section 1281.2(c) shall not apply. Ibid.  Thus, section 1281.2 does not preclude arbitration. 

Health and Safety Code section 1430(b) claim

Plaintiffs contend that their Health and Safety Code §1430(b) claim cannot be arbitrated pursuant to state law, citing Health & Safety Code §1599.81(d).  See Opp. at 16.  The court begs to differ, yet again.

Health & Safety Code §1599.81(d), provides, "In the event the [admission contract] contains an arbitration clause, the contract attachment pertaining to arbitration shall contain notice that under section 1430, the patient may not waive his or her ability to sue for violation of Patient’s Bill of Rights.” 

As a preliminary matter, section 1599.81(d) simply requires notice that a patient may not waive their right to sue for violation of the Patient’s Bill of Rights.  It does not announce any public policy forbidding such a waiver.

Health and Safety Code section 1430(b)(1)(C) provides, in pertinent part, “An agreement by a resident or patient of a skilled nursing facility or intermediate care facility to waive that resident's or patient's rights to sue pursuant to this subdivision [regarding a civil action for violation of a patient’s bill of rights] is void as contrary to public policy.”  This court, like the District Court for the Eastern District of California, concludes that this section is invalid and preempted by the Federal Arbitration Act.  See Valley View Health Care, Inc. v. Chapman (2,014) 992 F.Supp.2d 1016, 1050 (provision of section 1430(b), to wit, that “An agreement by a resident or patient of a skilled nursing facility or intermediate care facility to waive his or her rights to sue pursuant to this subdivision shall be void as contrary to public policy, “was “invalid, unlawful and preempted by the FAA.”).  The section 1430 claim can be arbitrated.

[i] Effective September 16, 2019, the Centers for Medicare & Medicaid Services adopted a “final rule amending the requirements that Long-Term Care … facilities must meet to participate in the Medicare and Medicaid programs,” and, specifically, “repeal[ed its previous] prohibition on the use of pre-dispute, binding arbitration agreements.”  As part of that final rule, it redesignated and amended previous § 483.70(n)(1)(ii) and (iii) as § 483.70(n)(2)(i) and (ii).  84 Fed. Reg. 34718-01 at *34733.  On May 10, 2024, the Centers redesignated paragraph (n) to be (m), the provision now at issue.  89 Fed. Reg. 40876-01 at *40999.

[ii]Plaintiffs’ evidentiary objections number 1 and 2 are overruled.  The court takes note of the clarifications offered by plaintiffs in connection with both objections. 

[iii]The parties referenced the First Amended Complaint, the operable complaint at the time the motion was filed.  A Second Amended Complaint has now been filed.  It appears that the relevant allegations in the wrongful death claim are substantially the same in both complaints. 

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December 6, 2024 Dept. 6 Civil Law and Motion Tentative Rulings

1.         CU0000128    Douglas J. Schultz vs. Marianne L. Stevenson, et al.

Defendant Stevenson’s 6 November 2024 request for a stay is denied. 

Defendant Stevenson requests the court to stay plaintiff’s petition for an interlocutory judgment in an action now pending in the Civil Department, Department 6, Nevada County Case No. CU0000128 (action for partition of real property/conversion and unjust enrichment), pending the resolution of a newly filed 4 November 2024 request for order in Nevada County Case No. FL0001430 (a domestic violence restraining order matter) in the Family Law Department, Departments 3/5.  Per defendant, she has filed a petition in Case No. FL0001430 requesting “the Family Law Court to take jurisdiction  over (1) Civil Case #CU0000128, (2) to Deny Comity of the Sharia Divorce Decree of 9/20/2020, (3) to Hear her Dissolution of Marriage Motion, (4) to award Ms. Stevenson the marital home in lieu of all other marital property.”  She argues that a stay is warranted “because the granting of the Interlocutory Judgment for Partition of the family home will cause defendant irreparable damage and deny her the right to have this matter heard in the Family Law Court.”  The court is not persuaded.

The issue presented is priority of jurisdiction.  The law is well established and summarized by Levine v. Smith (2006) 145 Cal.App.4th 1131: 

Even between superior courts of different counties, having coequal jurisdiction over a matter, the first court of equal dignity to assume and exercise jurisdiction over a matter acquires exclusive jurisdiction.  ….

Under the doctrine of priority of jurisdiction, the first superior court to assume and exercise jurisdiction in the case acquires exclusive jurisdiction until the matter is disposed of.  The doctrine avoids the risk of simultaneous proceedings or conflicting decisions.  [A]nother court, though it might originally have taken jurisdiction, is wholly without power to interfere, and may be restrained by prohibition. The rule is generally invoked where a proceeding is still pending; when it is completed and judgment has become final, jurisdiction has been exhausted and the rule has no application.

Id. at 1135 (citations and quotations omitted).

Glade v. Glade (1995) 38 Cal.App.4th 1441 explains these principles in greater detail:

Even though a superior court is divided into branches or departments, pursuant to California Constitution, article VI, section 4, there is only one superior court in a county and jurisdiction is therefore vested in that court, not in any particular judge or department. Whether sitting separately or together, the judges hold but one and the same court. Because a superior court is but one tribunal, [a]n order made in one department during the progress of a cause can neither be ignored nor overlooked in another department ....

... It follows, ... where a proceeding has been ... assigned for hearing and determination to one department of the superior court by the presiding judge ... and the proceeding ... has not been finally disposed of ... it is beyond the jurisdictional authority of another department of the same court to interfere with the exercise of the power of the department to which the proceeding has been so assigned .... If such were not the law, conflicting adjudications of the same subject-matter by different departments of the one court would bring about an anomalous situation and doubtless lead to much confusion.  ...

One department of the superior court cannot enjoin, restrain, or otherwise interfere with the judicial act of another department of the superior court. Even between superior courts of different counties, having coequal jurisdiction over a matter, the first court of equal dignity to assume and exercise jurisdiction over a matter acquires exclusive jurisdiction.  [¶] A judgment rendered in one department of the superior court is binding on that matter upon all other departments until such time as the judgment is overturned. ...

Id. at 1449–1450(citations and quotations omitted).

At bar, the instant lawsuit in Case No. CU0000128 was filed in 2022, assigned for determination to the Civil Department in accordance with the Local Rules of the court and served on defendant  in or about January 2023.  Since the inception of the case in 2022, numerous issues have been adjudicated by the assigned judge in the Civil Department, certain matters have been the subject of writ proceedings in the Third District Court of Appeal, and a hearing regarding entry of an interlocutory judgment is now scheduled for 10 January 2025.  The civil action has not been finally adjudicated. 

In Case No. FL 0001430, a request for a DVRO restraining order was originally filed by defendant in July 2023 in the Family Law Department.  A hearing is scheduled for 16 December 2024 in connection with the DVRO request and a motion to quash the 4 November 2024 request for orders.   A hearing is scheduled for 18 December 2024 in connection with the actual 4 November 2024 request for orders (including requests for custody orders, support orders and, among other things, the request that the Family Law Department take jurisdiction of the civil action). 

Under the doctrine of priority of jurisdiction, the Civil Department was and is the first superior court to assume and exercise jurisdiction in the civil lawsuit and has acquired exclusive jurisdiction over all matters encompassed within that case (including claims related to real property partition, conversion of other property, and unjust enrichment) until the matter is finally disposed of.  It is beyond the jurisdictional authority of another department of this same court, including the Family Law Department, to interfere with the exercise of the power of the Civil Department insofar as it relates to the pending civil proceeding.  No good cause has been stated  why the Civil Department, with exclusive jurisdiction, should stay its already ongoing and active proceedings as to the civil action during the pendency of any newly initiated proceedings in the Family Law Department.  Accordingly, the request is denied.

Plaintiff’s request for sanctions is denied without prejudice.  Any such request must be separately filed and served. 

A copy of this order will be filed in the instant case and filed under separate caption in Case No. FL001430.

2.         CU0000591    Antonio De La Pena vs. Nevada Woods Apartments, et al.

No appearance is required.  On its own motion, the court continues the summary judgment motion to January 17, 2025, at 10:00 a.m. in Dept. 6. 

3.         CU0000795    Mark G. Jones vs. Barbara L. Reamer, et al.

The demurrer of defendant SPFF, Inc. to the fourth and thirteenth causes of action of plaintiff's second amended complaint is sustained without leave to amend.  

Request for Judicial Notice:

Defendant’s request for judicial notice is granted in its entirety.  The court notes that defendant’s demurrer incorrectly refers to the second amended complaint as Exhibit A to its request for judicial notice.  The second amended complaint is the is the subject of the demurrer and, of course, is part of the court’s file.    

Meet and Confer Requirements

Preliminarily, Code of Civil Procedure section 430.41 requires the parties to meet and confer before incurring the time and expense of a demurrer.  “As part of the meet and confer process, the demurring party shall identify all of the specific causes of action that it believes are subject to demurrer and identify with legal support the basis of the deficiencies.”  Code Civ. Proc. §430.41(a).  This section requires the demurring party to file and serve with the demurrer a declaration describing the parties’ meet and confer efforts or stating that the responding party failed to meet and confer.  Id.

Defendant’s attorney submitted a declaration indicating that he made multiple requests by email that plaintiff dismiss his client and stating the grounds for the request.  He did not attach the emails, but he indicates that plaintiff did not respond.   

Plaintiff asserts that Mr. Macias’ declaration fails to address plaintiff’s efforts to schedule a meet and confer conference.  Plaintiff fails to describe those efforts or provide evidence that he made any such effort.  Receiving no response, defendant filed its demurrer. 

Although Mr. Macias did not include the emails referenced in his declaration, he does represent that he stated the grounds for his requests that plaintiff dismiss his client.  The fact that plaintiff did not respond seemingly left Mr. Macias no choice but to file the demurrer.  On this record, the meet and confer requirement has been satisfied. 

Legal Standard

“A demurrer tests the sufficiency of the complaint as a matter of law.”  Berg & Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1034.  “It has been consistently held that “a plaintiff is required only to set forth the essential facts of his case with reasonable precision and with particularity sufficient to acquaint a defendant with the nature, source and extent of his cause of action.” Doheny Park Terrace Homeowners Assn. Inc. v. Truck Ins. Exchange (2005) 132 Cal.App.4th 1076, 1099, cited with approval by Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550. 

A demurrer lies only where the defects appear on the face of the pleading or are judicially noticed.  Code Civ. Proc. §§ 430.30, 430.70. Thus, the only issue addressed by a demurrer is “whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.”  Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747; Accord McKenney v. Purepac Pharmaceutical Co.  (2008) 162 Cal.App.4th 72, 79.

Fourth Cause of Action for Injunctive Relief

An injunction is an equitable remedy that protects a legal right by requiring the enjoined party to take or refrain from taking some specified action. Comfort v. Comfort (1941) 17 Cal.2d 736.  Injunctive relief, on the other hand, is a remedy, not a cause of action. Roberts v. Los Angeles County Bar Assn. (2003) 105 Cal.App.4th 604, 618. 

A meritorious cause of action, therefore, must underlie a request for injunctive relief.  City of South Pasadena v. Department of Transportation (1994) 29 Cal.App.4th 1280, 129.   As such, a demurrer to a standalone cause of action seeking injunctive relief is properly sustained.  Granny Purps, Inc. v. County of Santa Cruz (2020) 53 Cal.App.5th 1, 9.

Plaintiff is correct that a demurrer lies only when the grounds appear on the face of the complaint.  Code Civ. Proc. §430.30(a).  In this case, the second amended complaint shows no factual allegations of wrongdoing by defendant in connection with its purchase of the subject property.  Although the fourth cause of action is generally alleged against all defendants, the specific facts alleged therein pertain to claimed improprieties of the foreclosure sale and do not assert any wrongdoing by defendant in connection with its purchase.  

In the first 43 paragraphs of the second amended complaint, the only allegation against defendant SPFF, LP is that it was one of the “successful bidders at the Trustee sale” and that a trust deed upon sale was recorded.  See SAC, at 9:13-15. With no supporting facts whatsoever, plaintiff argues that it is “virtually certain” that defendant was or should have been “well aware” about plaintiff’s litigation when it purchased the property.  See SAC, at 6:21-23.  He goes on to note that every prospective purchaser of property risks foreclosure if they claim “convenient ignorance”, which is how he describes defendant’s lack of knowledge of alleged improprieties of the trustee’s sale.  Ibid. at 6:27.

On this record, plaintiff has failed to allege a meritorious cause of action underlying his request for injunctive relief.  This is, effectively, a standalone request for injunctive relief.  Moreover, the deed of trust was recorded within 21 days of the sale, and the sale was deemed perfected on the date of the sale.  See SAC at 9:3-4; Civil Code §2924h.   Thus, there is no further act by defendant in connection with its purchase that can be the subject of an injunction. 

Thirteenth Cause of Action for Quiet Title

A cause of action to quiet title seeks to establish title against adverse claims to real property or any interest therein. See Code Civ. Proc. § 760.020.  Thus, a defendant in a quiet title action must be one who asserts an adverse claim to a plaintiff’s title.  Defendant SPFF, Inc. does not have an adverse claim to the subject property.  As explained, supra, it purchased the property as a bona fide purchaser at a trustee’s sale.  After acquiring a duly perfected title, and before plaintiff filed his second amended complaint, it transferred its title to the property.  See Demurrer, at 2:15-17; RJN, Exh. “B”.   

A second requirement for a quiet title action is recordation of a lis pendens, which must be done immediately upon filing the quiet title action.  See Code Civ. Proc. § 760.010(b).  Plaintiff’s second amended complaint, which names defendant for the first time, was filed on December 5, 2023.  Plaintiff did not seek to record a notice of lis pendens at or before that date.  As recordation of a notice of lis pendens is a prerequisite to a cause of action to quiet title, plaintiff’s complaint fails as a matter of law. 

Remaining Causes of Action

Plaintiff argues that the first-third and fifth-twelfth causes of action in the second amended complaint are alleged against all defendants, including SPFF, Inc.  As pointed out in the demurrer, only the fourth and thirteenth causes of action are alleged against this defendant. 

Leave to Amend

“Where the complaint is defective, ‘[i]n the furtherance of justice great liberality should be exercised in permitting a plaintiff to amend his complaint, and it ordinarily constitutes an abuse of discretion to sustain a demurrer without leave to amend if there is a reasonable possibility that the defect can be cured by amendment.’ ” Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 970–971 (citation omitted). However, “[t]he plaintiff has the burden of demonstrating that “there is a reasonable possibility the plaintiff could cure the defect with an amendment.” Jo Redland Trust, U.A.D. 4-6-05 v. CIT Bank, N.A. (2023) 92 Cal.App.5th 142, 162. “The burden of proving such reasonable possibility is squarely on the plaintiff.” Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.

In this case, there is has been no showing by plaintiff  that he can amend his complaint to state causes of action for injunctive relief or quiet title against defendant SPFF, Inc.  Therefore, leave to amend is denied.

4.         CU0001190    Alice Branton, et al. vs. Zarlasht Fakiri, D.O., et al.

Demurrer

Defendant's demurrer to the first and second causes of action of the second amended complaint is overruled.  

Request for Judicial Notice:

Defendant’s request for judicial notice is granted in its entirety.

Demurrer Standard

“A demurrer tests the sufficiency of the complaint as a matter of law.”  Berg & Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1034.  “It has been consistently held that ‘“a plaintiff is required only to set forth the essential facts of his case with reasonable precision and with particularity sufficient to acquaint a defendant with the nature, source and extent of his cause of action” Doheny Park Terrace Homeowners Assn. Inc. v. Truck Ins. Exchange (2005) 132 Cal.App.4th 1076, 1099, cited with approval by Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550. 

“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed (Code Civ. Proc., §§ 430.30, 430.70). The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.'”  Hahn v. Mirda  (2007) 147 Cal.App.4th 740, 747.  Accord McKenney v. Purepac Pharmaceutical Co.  (2008) 162 Cal.App.4th 72, 79. 

Fenimore v. Regents of University of California (2016) 245 Cal.App.4th 1339, 1348 sets forth the applicable standard:  

 Under the Elder Abuse and Dependent Adult Civil Protection Act (the Elder Abuse Act or the Act) (§ 15600 et seq.), abuse of an elder or dependent adult may take several forms, including “neglect” and “[t]he deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.” (§ 15610.07, subd. (a).) As pertinent here, neglect means “[t]he negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person  in a like position would exercise.” (§ 15610.57, subd. (a)(1).) Neglect includes, but is not limited to, the “[f]ailure to provide medical care for physical and mental health needs” and the “[f]ailure to protect from health and safety hazards.” (Id., subd. (b)(2), (3); see § 15610.35, subds. (a), (e).) 

The Elder Abuse Act's heightened remedies do not apply to acts of professional negligence. (§ 15657.2; Delaney [v. Baker (1999) 20 Cal.4th 23, 32,] 82 Cal.Rptr.2d 610, 971 P.2d 986.) Hence, the Act does not provide liability for simple or gross negligence by health care providers. (Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 88, 50 Cal.Rptr.3d 266 (Sababin ).) Plaintiffs must plead and prove something more than negligence—that is, reckless, oppressive, fraudulent, or malicious conduct. (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406, 129 Cal.Rptr.3d 895 (Carter ).) “The latter three categories involve ‘intentional,’ ‘willful,’ or ‘conscious’ wrongdoing of a ‘despicable’ or ‘injurious’ nature.” (Delaney, supra, at p. 31, 82 Cal.Rptr.2d 610, 971 P.2d 986.) Recklessness is “a subjective state of culpability greater than simple negligence, which has been described as a ‘deliberate disregard’ of the ‘high degree of probability’ that an injury will occur. [citations.] Recklessness, unlike negligence, involves more than ‘inadvertence, incompetence, unskillfulness, or a failure to take precautions’ but rather rises to the level of a ‘conscious choice of a course of action ... with knowledge of the serious danger to others involved in it.’ ” (Id. at pp. 31–32, 82 Cal.Rptr.2d 610, 971 P.2d 986.)

 Id. at 1346-7. 

Ordinarily, mere allegations of a “delay in diagnosis and proper treatment” will show nothing more than “mere incompetence or unskillfulness, i.e., negligence.” 

Id. at 1348.   

“[A] principal may be liable for the wrongful conduct of its agent . . .  in one of three ways: (1) if the principal directly authorizes ... [the tort …] … to be committed; (2) if the agent commits the tort in the scope of his employment and in performing service on behalf of the principal, …; or (3) if the principal ratifies its agent's conduct after the fact by ... voluntar[ily] elect[ing] to adopt the [agent's] conduct ... as its own.”   Doe v. Roman Catholic Archbishop of Los Angeles (2016) 247 Cal.App.4th 953, 969 (citations and quotations omitted). 

 Defendant’s demurrer tests the first cause of action of plaintiffs’ second amended complaint for elder abuse and neglect, and the second cause of action for negligence/willful misconduct. 

First Cause of Action for Elder Abuse and Neglect:

In its prior order sustaining the demurrer by Dr. Fakiri with leave to amend as to the first amended complaint, this court ruled that plaintiffs’ allegations failed to establish that Dr. Fakiri engaged in reckless, oppressive, fraudulent, or malicious conduct as required by Welfare and Institutions Code § 15657.  In their second amended complaint, plaintiffs add allegations that Dr. Fakiri’s agents, the nurse practitioners, recklessly neglected decedent.  See .  Second Amended Complaint (SAC), SAC 7, 32-38, 41, 44, 47, 52, 59, 62, 63.  The relevant allegations related to nurse practitioners, liberally construed, allege sufficient facts to establish that these practitioners engaged in conduct that was reckless, namely the decision by practitoners not to transfer decedent to the hospital when her condition was deteriorating in disregard of doctor’s orders and decedent’s known serious respiratory condition. The allegations are also sufficient to allege that these practitioners committed these actions in the scope of their agency and in performing service on behalf of the principal, Dr. Fakiri. 

Second Cause of Action for Negligence/Willful Misconduct:

Willful misconduct is not a separate tort.  As noted in Berkley v. Downs (2007) 152 Cal. App. 4th 518, 526, citing Simmons v. Southern Pac. Transportation Co. (1976) 62 Cal.App.3d 341, 360, willful misconduct is “simply an aggravated form of negligence, differing in quality rather than degree from ordinary lack of care."  Its pleading requirements are similar to negligence but stricter.”  Ibid. 

For the same reasons noted above, the court concludes that the second amended complaint adequately alleges a cause of action for willful misconduct, that is aggravated negligence, against Dr. Fakiri given the alleged acts of his agents.    

Motion to Strike

Defendant's motion to strike is granted in part and denied in part.  

Request for Judicial Notice:

Defendant’s request for judicial notice is granted in its entirety.

Standard of Review

A motion to strike lies either (1) to strike any “irrelevant, false or improper matter inserted in any pleading” or (2) to strike any pleading or part thereof “not drawn or filed in conformity with the laws of this state, a court rule or order of court.” Cal. C. Civ. Proc. § 436. As with a demurrer, the grounds for a motion to strike must appear on the face of the pleading under attack. Code Civ. Proc. § 437.

When determining the effect of a pleading, the allegations “must be liberally construed, with a view to substantial justice between the parties.” Code Civ. Proc. § 452.  Thus, in ruling on a motion to strike, the allegations of the complaint are to be read in context and presumed true. Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255. 

A complaint need only allege ultimate facts, not evidentiary facts. "[A] plaintiff is required to only set forth the essential facts of his case with reasonable precision and with particularity sufficient to acquaint the defendant with the nature, source and extent of his cause of action." Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.  Even conclusory allegations will not be stricken when they are supported by other factual allegations. Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6.

The claim for punitive damages asserted in the causes of action for elder abuse and negligence/willful misconduct and prayer is stricken as to this defendant.  See SAC ¶¶ 66, 76, Prayer 4.  The allegations of the complaint are insufficient to satisfy the requirements of the first sentence of Civil Code section 3294(b) (i.e., employment of an unfit employee with conscious disregard, authorization, ratification or personal culpability for wrongful conduct). 

The claim by plaintiffs that defendant subjected decedent to “neglect” as defined at Welfare and Institutions Code sections 15610.57, 15610.63 asserted in plaintiffs' second cause of action will not be stricken.  The demurrer to the first cause of action under that Code was overruled.

To the extent that the prayer seeks punitive damages for the second cause of action for negligence/willful misconduct, it is in violation of Code of Civil Procedure section 425.1.  The prayer is stricken as to that claim for this defendant.

The claim for expert fees and attorney’s fees will not be stricken.  Plaintiffs’ second amended complaint adequately alleges facts sufficient to constitute a cause of action for elder abuse and neglect against Dr. Fakiri.  Fees are authorized for this claim.

5.         CU0001582    Philip Vitola vs. Michael Hayward

Respondent’s motion to amend the civil harassment order is granted.

A party against whom a restraining order is issued may move for an order modifying the restraining order.  Code of Civil Procedure §527.6(j)(1).  The restrained party has the burden of proving, by a preponderance of the evidence, “that a reasonable probability does not exist that a particular act of harassment which the restraining order was intended to prevent will be committed in the future”.  Yost v. Forestiere (2020) 51 Cal App 5^th 509, 515.  It is within the court’s discretion to grant or deny the motion  on a case by case basis considering the “relevant circumstances”.  Ibid, at 527. 

In considering a modification request, a court can, but is not required to, apply the grounds set forth in Code of Civil Procedure 533, the general injunction statute, which include (1) a material change in the facts, (2) a change in the law, or (3) the ends of justice. Yost v. Forestiere (2020) 51 Cal App 5th 509, 526; citing Luckett v. Panos (2008) 161 Cal App 4th 77, 85. 

In this case, respondent asks the court to modify the restraining order.  Specifically, he seeks an order allowing peaceful contact with petitioner at the sporting, academic, and extracurricular events of respondent’s children and argues that this modification is in the best interest of the children, as it would reduce their stress and anxiety by fostering a “more cooperative co-parenting environment” Mot. at 2:6-10. 

The parties agree that respondent should be permitted to attend his children’s events even when petitioner is present.  The court agrees that it is in the best interests of the children for respondent, their biological father, to attend their activities.  However, given the history of these parties, that permission cannot be unfettered.  The court will modify the civil harassment order to include a provision to allow respondent to attend any sporting, academic, and extracurricular events of respondent’s biological children so long as respondent: 1)  stays at least 5 yards away from petitioner at all times at any indoor event; 2) stays at least 15 yards away from petitioner at any outdoor event and 3)  abides with all other conduct orders on these occasions, including no actual contact or communications with petitioner.      

6.         CU0001602    Stonecrest Acquisitions, LLC vs. County of Nevada

The Demurrer by the County of Nevada is sustained without leave to amend.

Meet and Confer Requirement

Preliminarily, Code of Civil Procedure section 430.41 requires the parties to meet and confer before incurring the time and expense of a demurrer.  “As part of the meet and confer process, the demurring party shall identify all of the specific causes of action that it believes are subject to demurrer and identify with legal support the basis of the deficiencies.”  Code Civ. Proc. §430.41(a).  This section requires the demurring party to file and serve with the demurrer a declaration describing the parties’ meet and confer efforts or stating that the responding party failed to meet and confer.  Id.

The declaration from respondent’s attorney does not satisfy the requirements of this section.  It does not identify with legal support the basis of the deficiencies in the petition for writ of mandamus.  While it references an email that provided the legal argument for why the petition should be dismissed, it inexplicably does not include the email.  It also does not describe petitioner’s response or state that petitioner failed to meet and confer.    

The court in the exercise of discretion will excuse this noncompliance and address the merits of the motion.  Respondent is advised that more robust compliance with this requirement is expected in any future filings of this nature.     

Standard of Review

“A demurrer tests the sufficiency of the complaint as a matter of law.”  Berg & Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1034.  “It has been consistently held that ‘“a plaintiff is required only to set forth the essential facts of his case with reasonable precision and with particularity sufficient to acquaint a defendant with the nature, source and extent of his cause of action”’” Doheny Park Terrace Homeowners Assn. Inc. v. Truck Ins. Exchange (2005) 132 Cal.App.4th 1076, 1099, cited with approval by Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550. 

A demurrer lies only where the defects appear on the face of the pleading or are judicially noticed.  Code Civ. Proc. §§ 430.30, 430.70. Thus, the only issue addressed by a demurrer is “whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.'”  Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747; Accord McKenney v. Purepac Pharmaceutical Co.  (2008) 162 Cal.App.4th 72, 79.

The Demurrer

Carloss v. County of Alameda (2015) 242 Cal.App.4th 116, 126–127, sets forth the general law with respect to the dispute at issue:

 “The general revenue of a city and county is collected by a tax on all nonexempt real property within the jurisdiction of the taxing agency.” (5 Miller & Starr, Cal. Real Estate (3d ed.) § 11:158, p. 11–512.) Under the statute, tax on real property “is a lien against the property assessed.” (§ 2187.) If the tax is unpaid, a default is declared and tax-defaulted residential property may be sold after five years of delinquency. (§§ 3351-3352, 3361, subd. (a).) Tax-defaulted property is generally sold at public auction to the highest bidder. (§§ 3691, 3693.) The sale proceeds are used to pay taxes and costs. (§§ 3698.5, 4672, 4672.1, 4672.2, 4673, 4673.1.) Any excess in the sale proceeds is held in a trust fund and “parties of interest” in the property have one year to file a claim for the excess proceeds. (§§ 4674, 4675.) Unclaimed proceeds are transferred to the county general fund. (§ 4674.)

“[P]arties of interest and their order of priority are: [¶] (A) First, lienholders of record prior to the recordation of the tax deed to the purchaser in order of their priority. [¶] (B) Second, any person with title of record to all or any portion of the property prior to recordation of the tax deed to the purchaser.” ( § 4675, subd. (e)(1).)

Id. at 126-127 (italics added).  Critical to resolution of the instant dispute is the meaning of title of record. 

“Title of record” is not defined in the statute or elsewhere in any California code. Title is generally understood to denote ownership or “the legal right to control and dispose of property” (Black's Law Dict. (8th ed. 2004) p. 1522, col. 2) and “title of record” has been variously defined as “title as it appears in the public records after the deed is properly recorded” (id. at pp. 1523, col. 2, 1524, col. 1) or “[a] title to real estate, evidenced and provable by one or more conveyances or other instruments all of which are duly entered on the public land records” (Black's Law Dict. (5th ed. 1979)  pp. 1145, col. 2, 1146, col. 1).  “Any written ‘instrument’ that affects the title to or possession of real property” may be recorded (5 Miller & Starr, Cal. Real Estate, supra, § 11:4, p. 11–21), including a grant deed, deed of trust and numerous other instruments (id., § 11:6). While a recorded grant deed may be the best evidence, there is no language in the statute specifying that only a recorded grant deed may establish “title of record.”

Id. at 127–128.

Of significance, however, “title of record may be established in the absence of a recorded grant deed.”  Id. at 132.  The standard is as follows:

“Title of record” must be proven, and a recorded grant deed will most often be the best and simplest form of evidence to establish that fact. But when for some reason the grant deed cannot be produced, that proof may consist of recorded instruments of various types, the assessor's records, and testimony that, as a whole, establishes that the claimant or the claimant's predecessor in interest held title of record immediately prior to the tax-default sale.

Id. at 130.

The county argues, among other things, that the petition fails because it does not allege any facts to show that petitioner is a party of interest entitled to claim excess proceeds from the tax sale.  See Mot. at 6:7.  Petitioner argues that the petition adequately alleges facts evidencing Stonecrest’s status as a party of interest, specifically as a person with title of record.  See Opp. at 4:2-13 (specific allegations cited by Stonecrest as sufficient).  The county has the better argument.

At bar, there is a defect that appears on the face of the pleading.  There are no facts alleged that establish that petitioner held title of record immediately prior to the tax-default sale.  Petitioner, of course, alleges that heirs to decedent assigned their interests to petitioner via a contract and certain assignments.  See Petition ¶ 10.e.  Those documents, however, make clear that the heirs did not have marketable title to the property, that petitioner was only acquiring a potential future interest in the property, and that all parties recognized that petitioner could only obtain marketable title to the property once decedent’s estate was probated.  See Petition, Ex. A.  There are no allegations in the petition to suggest that the condition precedent in that contract was satisfied, that the heirs obtained title, and that petitioner obtained title prior to the tax-default sale.  In order to allege that one is a person with title of record, as noted previously, there must be allegations that, as a whole, will establish that the claimant “held title of record immediately prior to the tax-default sale.”  Carloss, 242 Cal.App.4th at 130.  “Title is generally understood to denote ownership or ‘the legal right to control and dispose of property.’ ”  Ibid. at 127.  A demurrer on this ground, thus, is well founded.    

Leave to Amend

A demurrer should not be sustained without leave to amend if the complaint states a cause of action under any theory or if there is a reasonable probability the defect can be cured by amendment.  See Seidler v. Municipal Court (1993) 12 Cal.App.4th 1229, 1233.

Petitioner requests leave to amend if the demurrer is sustained but does not indicate how it can cure the noted defects or state a cause of action under any theory.  On this record, therefore, the demurrer is sustained without leave to amend.

7.         CU22-086160 Kevin Malone vs. William Ferreira

No appearances are required.  The court is aware of defendant’s request to continue his motion for joinder of party.  On its own motion, the court continues the motion to January 17, 2025, at 10:00 a.m. in Dept. 6.   Defendant is reminded that he must abide by the applicable Code of Civil Procedure and Local Rule requirements for the filing of all requests and motions including motions for relief on shortened notice.

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November 22, 2024 Dept. 6 Civil Law and Motion Tentative Rulings

1.  CU0000410    Taylor Strunk v. Stagecoach Motel et al

Motion to be Relieved as Counsel

Appearances are required by counsel for plaintiffs and plaintiffs Taylor Strunk and Mia Strunk-Kehm.  The motion by Ilan N. Rosen Janfanza is conditionally granted so long as the court can verify the current address for plaintiffs and their knowledge of the next scheduled case management conference on December 2, 2024, 9:00 a.m.  A new proposed order must be lodged that lists the current address for plaintiffs and the conference date. 

Motion for Monetary and Terminating Sanctions

Request for Judicial Notice:

Defendants’ request for judicial notice is granted in its entirety.

Code of Civil Procedure section 2030.300(e) provides:

If a party fails to obey an order compelling further response to interrogatories, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of, or in addition to, that sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010).

Similarly, Code of Civil Procedure section 2031.310(i) provides:

Except as provided in subdivision (j), if a party fails to obey an order compelling further response, the court may make those orders that are just, including the imposition of an issue sanction, an evidence sanction, or a terminating sanction under Chapter 7 (commencing with Section 2023.010). In lieu of, or in addition to, that sanction, the court may impose a monetary sanction under Chapter 7 (commencing with Section 2023.010).

Monetary and terminating sanctions may also be imposed against a party who misuses the discovery process as defined by Code of Civil Procedure Section 2023.030:

• Failing to respond or to submit to an authorized method of discovery.
• Making, without substantial justification, an unmeritorious objection to discovery.
• Disobeying a court order to provide discovery.
• Failing to confer in person, by telephone, or by letter with an opposing party or attorney in a reasonable and good faith attempt to resolve informally any dispute concerning discovery, if the section governing a particular discovery motion requires the filing of a declaration stating facts showing that an attempt at informal resolution has been made.

The imposition of a terminating sanction is typically not to be resorted to by the court as a first measure.  See, e.g., Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1292 (terminating sanctions are justified by persistent and willful non-compliance in discovery]) see also Sherman v. Kinetic Concepts, Inc. (1998) 67 Cal.App.4th 1152, 1163 (repeated failure to respond combined with non-compliance with court order justifies imposition of terminating sanctions); McGinty v. Superior Court (1994) 26 Cal.App.4th 204, 210 (extreme sanctions are disfavored). 

In evaluating the propriety of terminating sanctions, often described as the sanction of last resort, it has been held that “dismissal is a proper sanction to punish the failure to comply with a rule or an order only if the court's authority cannot be vindicated through the imposition of a less severe alternative.”  Rail Services of America v. State Compensation Ins. Fund (2003) 110 Cal App 4^th 323, 331; see  Lopez v. Watchtower Bible & Tract Society of New York, Inc. (2016) 246 Cal.App.4th 566, 572-573 (trial court “erred in issuing terminating sanctions as the initial remedial measure without first attempting to compel compliance with its discovery orders by using lesser sanctions or by imposing evidentiary or issue sanctions”).

Moreover, where a motion to compel has been previously granted, “the sanction should not operate in such a fashion as to put the prevailing party in a better position than he would have had if he had obtained the discovery sought and it had been completely favorable to his cause.”  Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 793.

In the instant action, the court finds that plaintiff’s conduct warrants the imposition of monetary sanctions.  There is no substantial justification as to why defendants were forced to incur the time and expenses of two motions before plaintiffs finally served verified responses without objections. 

Before the motions, plaintiffs failed to respond to discovery, served objections after defendants granted multiple extensions of time to serve responses, failed to meet and confer to attempt informal discovery dispute resolution, and failed to comply with the court’s order to serve discovery and pay monetary sanctions. 

In the recently filed declaration, plaintiffs’ attorney informed the court that they lost contact with their clients between March and May 2024 but then indicated that contact was resumed in October 2024.  As noted by defendants’ attorney, it is unclear from the declaration whether there was contact between May and October 2024 and there is no explanation as to the lack of contact when plaintiffs have resided at the same address for more than five years.  In any event, failure on the part of clients to maintain contact with their counsel or vice versa does not constitute appropriate justification for the discovery lapses here. 

Plaintiffs have served the responses to defendants’ discovery requests.  However, the circumstances set forth in the plaintiffs’ opposition to the motion and declaration of plaintiffs’ attorney do not show circumstances that would make the imposition of monetary sanctions unjust.  Therefore, plaintiffs and their attorneys are ordered to pay monetary sanctions of $1,740.50 in connection with the instant motion.  The court confirms its previous order of sanctions against plaintiffs and their counsel, jointly and severally, in the amount of $4,120.00.  All sanctions must be paid within 30 days.    

2.  CU0000562    Don Zeppenfeld, et al. v. Martin T. Reilley, et al.

No appearances are required.  On its own motion, the court continues plaintiff’s motion to compel defendant’s further responses to special interrogatories to December 13, 2024, at 10:00 a.m. in Department 6. 

3.  CU0000592    Aaron Faust vs. Tom Capozzo, et al.

No appearances are required.  On its own motion, the court continues plaintiff’s motion for attorney’s fees to December 20, 2024, at 10:00 a.m. in Department 6. 

4.  CU0001460    In the Matter of Carolyn Bronson

Petitioner’s motion for approval of accounting, discharge of practice administrator, reimbursement of expenses to the practice administrator and exoneration of bond is granted as prayed. 

5.  CU0001461    In the Matter of Mortgage Lender Services, Inc.

The motion of Mortgage Lender Services, Inc. for an order depositing surplus proceeds, setting hearing on distribution of surplus proceeds from the sale, awarding fees and costs, and discharging the trustee is granted in part and otherwise deferred.

Request for Judicial Notice:

Petitioner’s Request for Judicial Notice is granted.

Applicable Law

A trustee may file an interpleader action to resolve a dispute about the proceeds of a trustee’s sale.  See Code Civ. Proc. §2924j(e).  Unless an interpleader action is filed, Civil Code section 2924j allows a trustee to deposit with the court surplus proceeds after a trustee’s sale once the costs and expenses of the trustee’s sale and the obligation secured by the deed of trust are made.  Within thirty days of execution of the deed of trust, the trustee must give notice of the completed trustee’s sale and potential claim to all or part of the proceeds of the trustee’s sale to “all persons with recorded interests in the real property as of the date immediately prior to the trustee’s sale.” Code Civ. Proc. §2924j(a). 

The potential claimants have thirty days to present proof of claim to the surplus proceeds.   See Code Civ. Proc. §2924(a)(4)(C).  The trustee has 90 days to determine the priority of claims.   See Code Civ. Proc. §2924j(b).  If unable to do so, it may, within ten days, deposit the funds with the clerk along with a declaration that includes the following:

The date of the trustee’s sale, a description of the property, the names and addresses of all persons sent notice pursuant to subdivision (a), a statement that the trustee exercised due diligence pursuant to subdivision (b), that the trustee provided written notice as required by subdivisions (a) and (d), and the amount of the sales proceeds deposited by the trustee with the court.  In addition, the trustee must submit a copy of the trustee’s sales guarantee and any information relevant to the identity, location, and priority of the potential claimants. 

Code Civ. Proc. §2924j(c).

Before depositing the proceeds and declaration, the trustee must give notice of its intent to deposit the proceeds to the parties with a recorded interest in the property that was the subject of the trustee’s sale.  Those parties have thirty days to file a notice of claim to the deposited proceeds.  See Code Civ. Proc. §2924j(d). 

If a conflict exists as to the total proceeds, the trustee may deposit the total proceeds with the clerk.  Once the funds are deposited, the trustee is discharged of any further responsibility for the disbursement of the proceeds.  The court has 90 days after the funds are deposited to consider all claims filed at least fifteen days before the date on which the hearing is set by the court. See ibid.  

The Instant Case

In this case, the trustee’s sale took place on June 26, 2023; seemingly tardy notice of the same was given to potential claimants on September 22, 2023.  That notwithstanding, Mark Jones and Tahoe Donner Association presented claims to the trustee.  Over the ensuing months, the trustee and Mark Jones engaged in discussions and email exchanges over Mr. Jones’ objections to the disbursement of the proceeds.  The conflicts were not resolved, prompting the trustee to file a petition and declaration regarding unresolved claims followed by this motion for an order to deposit the surplus proceeds, to discharge the trustee, and to award the trustee attorney’s fees and costs. 

Mark Jones filed a notice of claim and an opposition to the trustee’s petition and motion.  Barbara Reamer, Mitchell T. Clarin, the Eric S. Reamer Pension Plan, the Mitch Clarin Pension Plan, Mortgage Lender Services, Inc., and Sierra Asset Investments, LLC have since filed lien notices for judgments against Mark Jones in connection with his lawsuit against those individuals and entities (Case No. CU0000795).

Further proceedings must be set before the court can address the merits.  Accordingly, the court now issues the following order:

Petitioner Mortgage Lender Services is directed to deposit surplus proceeds from the sale of the instant properties with the court in accordance with Civil Code section 2924j(c).

A hearing regarding distribution of surplus proceeds pursuant to Civil Code section 2924j(d) is set for February 20, 2025, at 10:00 a.m. in Department 6.  All further requests for relief shall be addressed at that hearing. 

The clerk shall serve written notice of this order by first class mail on the following claimants:

Mark Jones

14527 Christie Lane

Truckee, California 96161

Tahoe Donner Association

Attention Todd Martyn-Jones

11509 Northwood Blvd.

Truckee, California 96161.

Mr. Jones utilizes the above address on his pleadings.  To the extent that he wishes to utilize any other physical address for notices, he must specifically advise the court and all parties in writing. 

Any and all claims in connection with this matter must be filed no later than 15 calendar days prior to the scheduled hearing.

The court is in receipt of the July 22, 2024 claim and September 9, 2024 supplement from Mr. Jones.  No further claims need be filed by Mr. Jones. 

The court has received the notice of lien by Sierra Asset Investments and Barbara L. Reamer, et al. No later than 15 days prior to the hearing, these judgement creditors shall advise the court in a brief of no more than 3 pages what action, if any, judgment creditors request in connection with any final order for distribution of funds to judgment debtor Jones with citation to applicable authority for any actions requested.  Mr. Jones may file a response of no more than 3 pages no later than 10 days prior to the hearing. 

6.  County of Nevada v. Wild Earth Property, LLC

The unopposed petition of the County of Nevada for an order to abate sub-standard building and appoint Richardson C. Griswold as receiver is granted as prayed except as noted.  The court denies, without prejudice, petitioner’s request for any immediate order as to costs of enforcement relating to the subject property, including attorneys’ fees.  The county may seek recovery of such costs and fees at a later date by appropriate noticed motion. 

7.  CU22-086174 Michael Robert Pasner vs. Song Kowbell

Respondent’s motion for attorneys’ fees is granted in part and denied in part.

Code of Civil Procedure section 527.6(s) provides, “The prevailing party in an action brought pursuant to this section [for a civil harassment order] may be awarded court costs and attorney’s fees, if any.”  “Section 527.6(i) states that the prevailing party ‘may’ be awarded attorney fees. The normal rule of statutory construction is that when the Legislature provides that a court or other decisionmaking body “may” do an act, the statute is permissive, and grants discretion to the decisionmaker. … [T]he decision whether to award attorney fees to a prevailing party—plaintiff or defendant—under section 527.6(i) is a matter committed to the discretion of the trial court.”  Krug v. Maschmeier (2009) 172 Cal.App.4th 796, 802.  

Courts utilize Code of Civil Procedure section 1032 as guidance for determining who is the prevailing party for purposes of section 527.6.  Elster v. Friedman (1989) 211 Cal. App. 3d 1439, 1443.

Code of Civil Procedure section 1032 . . . states in part: "(a) ... (4) 'Prevailing party' includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant. When any party recovers other than monetary relief and in situations other than as specified, the 'prevailing party' shall be as determined by the court .... 

Ibid. (italics added). 

In the original case at bar, both parties were represented by retained counsel and the court granted each party’s request for a civil harassment restraining order against the other.  There was no net monetary recovery and no dismissal entered against either party on their petition.  There was no defendant as against a plaintiff who did not recover relief against that defendant.  In this situation, in the exercise of its discretion, the court determines that there was no prevailing party.  Both parties obtained relief, both paid attorney’s fees in connection therewith, and both shall bear those costs on their own.   

The analysis differs in connection with petitioner’s request to terminate the petition.  Here, respondent prevailed; petitioner’s request for termination was denied.  Reasonable fees are calculated to be $1.797.70 (6.35 hours) for August and $800.00 for October (2 hours), for a total of $2,597.70. 

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November 15, 2024 Dept. 6 Civil Law and Motion Tentative Rulings

1.  CU0000512    eCapital Asset Based Lending v. Nicole Medina, et al.

No appearance is required.  On its own motion, the court continues defendant’s motion to compel further discovery to November 22, 2024, at 10:00 a.m. in Department 6.  The motion will be heard with plaintiff’s motion to compel deposition testimony.

2.  CU0000108    JM Streamline Inc., dba Streamline Construction v. Tahoe Forest Hospital District, et al.

The motion of defendants Tahoe Forest Hospital, Dylan Crosby, and Cameron Delano for leave to file a cross-complaint is granted as prayed.

Compulsory Cross-Complaint

Defendants first argue that their claims are against the plaintiffs who sued them, making such claims compulsory under Code of Civil Procedure section 428.50.  Defendants did not file their indemnity cross-complaint when they filed their answer to the fifth amended complaint and seek leave of the court to do so.  Leave is warranted.    

It is well-established that the law favors the allowance of amended pleadings, including the filing of cross-complaints, both compulsory and permissive.  The objective is to allow for trial on the merits whenever possible.  Foot’s Transfer Storage Co. v. Superior Court (1980) 114 Cal. App. 3d 897, 901.  

Code of Civil Procedure section 428.50 provides:

(a) A party shall file a cross-complaint against any of the parties who filed the complaint or cross-complaint against him or her before or at the same time as the answer to the complaint or cross-complaint.

(b) Any other cross-complaint may be filed at any time before the court has set a date for trial.

(c) A party shall obtain leave of court to file any cross-complaint except one filed within the time specified in subdivision (a) or (b). Leave may be granted in the interest of justice at any time during the course of the action.

Code of Civil Procedure section 426.50 provides:

A party who fails to plead a cause of action subject to the requirements of this article, whether through oversight, inadvertence, mistake, neglect, or other cause, may apply to the court for leave to amend his pleading, or to file a cross-complaint, to assert such cause at any time during the course of the action. The court, after notice to the adverse party, shall grant, upon such terms as may be just to the parties, leave to amend the pleading, or to file the cross-complaint, to assert such cause if the party who failed to plead the cause acted in good faith. This subdivision shall be liberally construed to avoid forfeiture of causes of action.  (Italics added).

A cross-complaint is “compulsory” when it “arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause of action which the plaintiff alleges in his complaint.” Code Civ. Proc. § 426.10; see Silver Organizations Ltd. v. Frank (1990) 217 Cal.App.3d 94, 101 (cross-complaint is compulsory if “it seeks affirmative claims for relief which evolve from ‘a series of acts or occurrences logically interrelated’ and thus is a related cause of action subject to forfeiture if not pleaded in the instant action as provided in section 426.30.”).

A cross-complaint for indemnity “is almost by definition transactionally related to the claims asserted by the plaintiff.” Time for Living, Inc. v. Guy Hatfield Homes/All American Dev. Co. (1991) 230 Cal.App.3d 30, 39.  “An indemnity claim effectively seeks to apportion among the parties to the indemnity action the precise liability claimed by the plaintiff in the main action; therefore the indemnity claim of necessity arises out of the same occurrences or series of occurrences as asserted by the plaintiff.”  Ibid.

A motion to file a compulsory cross-claim “must be granted unless bad faith of the moving party is demonstrated where forfeiture would otherwise result.”  Silver Orgs Limited, 217 Cal.App.3d at 99.  Unless accompanied by bad faith, “[f]actors such as oversight, inadvertence, neglect, mistake or other cause, are insufficient grounds to deny the motion. . . .”  Ibid.  Moreover, any decision to deny a motion to file a compulsory cross-complaint must be supported by substantial evidence of the moving party’s bad faith.  Id. at 99-100; Foot’s Transfer & Storage Co., Ltd. v. Superior Court (1980) 114 Cal. App. 3d 897, 902 (“strong showing of bad faith” required to support denial).  

In ruling on a motion to leave to file a cross-complaint, a court does not evaluate the merits of the allegations in the proposed pleading.  “[E]ven if the proposed legal theory is a novel one, ‘the preferable practice would be to permit the amendment and allow the parties to test its legal sufficiency by demurrer, motion for judgment on the pleadings or other appropriate proceedings.’” Kittredge Sports Co. v. Superior Court (1989) 213 Cal. App. 3d 1045, 1048. 

Here, the two proposed cross-claims for indemnification are compulsory because they arise out of the same transaction or occurrence (i.e. DeGooyer’s alleged exposure to asbestos) and raise legal issues relevant to the intentional infliction of emotional distress claim (i.e. whether conduct and omissions are the proximate cause of DeGooyer’s alleged injury or damages). Moreover, plaintiff makes no showing of bad faith on the part of defendants in seeking leave to file their indemnity cross-complaint. 

Plaintiffs make various arguments regarding the merits of the allegations in the proposed cross-complaint.  Plaintiffs can advance those arguments in other motions if desired; these arguments do not, at this juncture, justify a different outcome for the motion at bar.

Permissive Cross-Complaint

Defendants make the alternate argument that if their cross-complaint is deemed a permissive one, then it is in the interests of justice to grant leave to file it under Code Civ. Proc. §428.50(c).  The court agrees.

Code of Civil Procedure section 428.10(b) provides that “[a] party against whom a cause of action has been asserted in a complaint…may file a cross-complaint setting forth…[a]ny cause of action he has against a person alleged to be liable thereon, whether or not such person is already a party to the action, if the cause of action asserted in his cross-complaint [] arises out of the same transaction [or] occurrence …” as the cause of action brought against him.   The court has discretion to grant leave to file a permissive cross-complaint “at any time during the course of action,” and “in the interest of justice.” Code Civ. Proc. §428.50(c); Crocker Nat. Bank v. Emerald (1990) 221 Cal.App.3d 852, 864. 

In the case at bar, the interests of justice would be served by an order granting defendants leave to file the proposed cross-complaint.  As noted before, a complaint for indemnity is almost by definition transactionally related to the claim asserted by plaintiff DeGooyer.  Adjudicating the indemnity claims in the underlying action would avoid the possibility of conflicting rulings and inconsistent factual findings; it also would avoid the time and expense of duplicative discovery and motions.

Leave is granted for defendants to file a cross-complaint.  Defendants shall file their proposed cross-complaint within ten days of this order.

3.  CU0000108    JM Streamline Inc., dba Streamline Construction v. Tahoe Forest Hospital District, et al.

The motion of defendant Tim Cates for leave to file a cross-complaint against JM Streamline is granted. 

Defendant argues that its indemnity cross-complaint against plaintiff JM Streamline is permissive one and that it is in the interests of justice to grant leave to file it under Code Civ. Proc. §428.50(c).  The court agrees.

It is well-established that the law favors the allowance of amended pleadings, including the filing of cross-complaints.  The objective is to allow for trial on the merits whenever possible.  Foot’s Transfer Storage Co. v. Superior Court (1980) 114 Cal. App. 3d 897, 901.  

Code of Civil Procedure section 428.10(b) provides that “[a] party against whom a cause of action has been asserted in a complaint…may file a cross-complaint setting forth…[a]ny cause of action he has against a person alleged to be liable thereon, whether or not such person is already a party to the action, if the cause of action asserted in his cross-complaint [] arises out of the same transaction [or] occurrence …” as the cause of action brought against him.   The court has discretion to grant leave to file a permissive cross-complaint “at any time during the course of action,” and “in the interest of justice.” Code Civ. Proc. §428.50(c); Crocker Nat. Bank v. Emerald (1990) 221 Cal.App.3d 852, 864. 

A cross-complaint for indemnity “is almost by definition transactionally related to the claims asserted by the plaintiff.” Time for Living, Inc. v. Guy Hatfield Homes/All American Dev. Co. (1991) 230 Cal.App.3d 30, 39.  “An indemnity claim effectively seeks to apportion among the parties to the indemnity action the precise liability claimed by the plaintiff in the main action; therefore the indemnity claim of necessity arises out of the same occurrences or series of occurrences as asserted by the plaintiff.”  Ibid.

In ruling on a motion to leave to file a cross-complaint, a court does not evaluate the merits of the allegations in the proposed pleading.  “[E]ven if the proposed legal theory is a novel one, ‘the preferable practice would be to permit the amendment and allow the parties to test its legal sufficiency by demurrer, motion for judgment on the pleadings or other appropriate proceedings.’ ” Kittredge Sports Co. v. Superior Court (1989) 213 Cal. App.3d 1045, 1048.

In the case at bar, the interests of justice would be served by an order granting defendant Cates leave to file the proposed cross-complaint.  A complaint for indemnity is almost by definition transactionally related to claims asserted by the plaintiff DeGooyer.  Adjudicating the indemnity claims in the underlying action would avoid the possibility of conflicting rulings and inconsistent factual findings; it also would avoid the time and expense of duplicative discovery and motions.

Plaintiffs make various arguments regarding the merits of the allegations in the proposed cross-complaint.  Plaintiffs can advance those arguments in other motions if desired; they do not, at this juncture, justify a different outcome for the motion at bar.

Leave is granted for defendant to file a cross-complaint.  Defendant shall file its proposed cross-complaint within ten days of this order.

4.  CU0001375        Rubi Ambrosio-Tully v. Silas Timothy Thompson

No appearance is required.  On its own motion, the court continues the motion for reconsideration to December 27, 2024, at 10:00 a.m. in Department 6.  Respondent shall serve the motion at least sixteen court days before the continued hearing date.  If petitioner has served the civil harassment order on respondent, she shall file that proof of service forthwith.  The clerk is instructed to serve the minute order on both parties.

5.  CU19-084255 Abdulla Awadalla, et al. vs. Gina Cataldo, et al. 

Plaintiffs’ motion for attorney’s fees and costs related to enforcing the judgment against defendants, including this motion, is granted in part. 

Request for Judicial Notice

Plaintiffs’ request for judicial notice is granted in its entirety.

Code of Civil Procedure section 685.040 provides:

The judgment creditor is entitled to the reasonable and necessary costs

of enforcing a judgment. Attorney’s fees incurred in enforcing a judgment

are not included in costs collectible under this title unless otherwise provided

by law. 

In this case, the lease agreement includes an attorney’s fees provision.  Specifically, section 40 provides:

In any action or proceeding arising out of this Agreement, the prevailing party between Landlord and Tenant shall be entitled to reasonable attorney fees and costs, except as provided in paragraph 39A.

Plaintiffs’ Request for Judicial Notice, Exhibit 1, Pg. 13-20.

There is no dispute that plaintiffs are the prevailing party.  The court entered an amended judgment in their favor in the amount of $157,926.83.  As such, plaintiffs are entitled to recover reasonable costs and attorney’s fees incurred to enforce their amended judgment.  They are also entitled to reasonable costs and attorneys’ fees incurred to recover reasonable costs and attorneys’ fees to enforce the amended judgment (see Ketchum v. Moses (2001) 24 Cal 4th 1122, 1141 (“[F]ollow[ing] the rule of the overwhelming majority of courts that have considered the question .... [w]e hold ... that, absent circumstances rendering the award unjust, fees recoverable ... ordinarily include compensation for all hours reasonably spent, including those necessary to establish and defend the fee claim.”)

The court finds that plaintiffs have made a satisfactory showing that the attorney’s fees and costs incurred in enforcing the judgment are reasonable.  Plaintiffs have made every effort to enforce the amended judgment against defendants, including recording abstracts of judgment in Nevada County and Placer County, filing a writ of execution, and placing a levy on defendants’ bank account.  The costs and attorney’s fees incurred for these efforts are recoverable under Code of Civil Procedure section 685.070. 

Plaintiffs argue that these efforts were caused by defendants, who have “put up roadblocks to collecting the judgment”, including transferring property to the trust of defendant Green’s parents.  Motion at 9:13.  Defendants have not filed an opposition and have made no showing to the contrary.

Reasonableness of Attorney’s Fees

“[A] court assessing attorney fees begins with a touchstone or lodestar figure, based on the ‘careful compilation of the time spent and reasonable hourly compensation of each attorney … involved in the presentation of the case.’ ”  Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131-1132.  The proper calculation of the lodestar figure is one of the trial court’s fundamental functions in determining the amount of attorneys’ fees to be awarded.  Serrano v. Priest (Serrano III) (1977) 20 Cal.3d 25, 48.  The calculation of the lodestar anchors the fee analysis to an objective determination such that the fee award is not arbitrary.  Id. at 49, fn. 23.  Calculation begins with a determination of the number of hours reasonably spent by each biller and their respective “reasonable” rates of compensation.  See Serrano III, supra, 20 Cal.3d at 48.

The court awards plaintiffs the $11,403.26 incurred between February 1, 2023 and September 25, 2023.  The declaration of plaintiffs’ attorney provides detailed billing statements and invoices reflecting the number of hours worked during that time in connection with enforcement of the judgment.  This evidence, which is not disputed by defendants, is reasonable on its face.  See Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 488; see also Bender v. County of Los Angeles (2013) 217 Cal.App.4th 968, 987 (the “[v]erified time statements of the attorneys … are entitled to credence in the absence of a clear indication the records are erroneous”)(italics added).  The court finds the billing to be appropriate and justified given the experience of counsel and the complexity of the issues at bar. See Davis v. City of San Diego (2003) 106 Cal.App.4th 893, 903 (trial court may make a determination of a reasonable rate for lodestar purposes based solely on counsel’s own declaration); see also Syers Properties III, Inc. v. Rankin (2014) 226 Cal.App.4th 691, 702.

The declaration of plaintiffs’ attorney estimates that his colleague spent 13 hours preparing this motion and that he spent two hours reviewing it.  There are no billing statements or invoices presented for these hours, which total $5,010.00 in fees.  The court will allow for ten hours to prepare the motion and one hour for its review, which totals $3,665.00, as reasonable attorneys’ fees in connection with preparation of the motion.

Plaintiffs’ attorney anticipates another eight hours will be spent reviewing defendants’ opposition, preparing a reply, and attending the hearing, for which plaintiffs seek $2,730.00.  The court denies these fees, as defendants have not opposed the motion, which is granted, making an appearance by plaintiffs’ attorney unnecessary.

Plaintiffs are awarded attorneys’ fees and costs as prayed in the amount of $15,068.26. 

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November 8, 2024 Dept. 6 Civil Law and Motion Tentative Rulings

1.  CL0001974     Tri Counties Bank vs. V.B.L.

Appearances are required.  The Clerk is directed to send a copy of the tentative ruling to both parties via e-mail. 

2.  CU0000410    Taylor Strunk v. Stagecoach Motel, et al.

No appearances are required.  The court received a November 5, 2024 declaration from plaintiffs.  Defendants may file any response to the same no later than November 15, 2024, at noon.  On the court's own motion, the hearing is continued until November 22, 2024, at 10:00 a.m. in Department 6.

 

3.  CU0001190    Alice Branton, et al. vs. Zarlasht Fakiri, D.O., et al.

No appearances are required in connection with the motion to compel arbitration filed by defendant Edelweiss Holdings, LLC, et al.  Plaintiffs argue that moving defendants were required by 42 Code of Federal Regulation section 483.70(m)(2)(i) to fully explain the arbitration agreement to decedent.  The parties shall each submit supplemental briefing of no more than three pages to explain whether a purported failure to comply with this federal regulation is a ground that exists at law or in equity for the revocation of a contract.  See 9 U.S.C. § 2.

4.  CU0001601    In Re: Sarah Deal

Appearance is required.  Plaintiff shall inform the court of the status of service of her claim opposing forfeiture. 

5.  CU22-086174 Michael Robert Pasner vs. Song Kowbell

No appearances are required.  Respondent’s motion for attorneys’ fees is continued at the request of respondent until November 22, 2024, at 10:00 a.m. in Dept. 6. 

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November 1, 2024 Dept. 6 Civil Law and Motion Tentative Rulings

1.  PR0000440     In the Matter of Katherine Rupert Kinaman

Petitioner’s September 30, 2024 motion to continue trial is STRICKEN. 

Non-attorneys may not practice law for others without being active members of the bar. See Drake v. Superior Court (1994) 21 Cal.App.4th 1826, 1830. A power of attorney does not grant a non-attorney the right to bring or pursue a lawsuit on behalf of the principal. See In re Marriage of Caballero, 27 Cal. App. 4th 1139, 1151 (1994) (“Despite broad statutory language of the power of attorney with respect to claims and litigation, the attorney in fact may not act as an attorney at law on behalf of his principal, even though the principal could appear in propria persona.”); Drake, 21 Cal.App.4th at 1831 (“Long before passage of the Power of Attorney Act, the law distinguished between an attorney in fact and an attorney at law and emphasized that a power of attorney is not a vehicle which authorizes an attorney in fact to act as an attorney at law.”).

Petitioner’s motion to continue trial was filed by an individual who is not licensed to practice law in California.  Consequently, the motion is stricken.  Trial remains scheduled for November 5, 2024. 

2.  SC0000372     Thomas Deal v. Fred Gerkensmeyer

This ruling is issued by Judge James LaPorte.

Petitioner's motion for reconsideration is DENIED.

Code of Civil Procedure Section 1008(a) states that a party may “within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order.” 

Petitioner’s motion fails for the following reasons:

The original motion was not served on respondent, and the amended motion was filed and served more than ten days after notice of entry of the order;

The original and amended motion make no showing of new or different facts, circumstances, or law.  First, the case cited by petitioner, Gruzen v. Henry (1978) 84 Cal App 3d 515, is not new law; it was published in 1978.  Second, the motion does not show new or different facts for the court to consider. 

Specifically, at the trial, petitioner made the argument presented in the Gruzen case, that is, that respondent was not entitled to back rent because he had not taken out permits to make it a legal dwelling.  Respondent testified on the issue, albeit vaguely, but petitioner did not produce readily available governmental records regarding the dispute nor an agency statement that the permit was never issued.   

Even if petitioner included in his motion newly discovered evidence of permits or lack thereof, that would not warrant granting his motion for reconsideration because there is no reason why he did not present that evidence at the trial.  “To move for new trial or reconsideration of a prior court order on the basis of “new or different facts” or newly discovered evidence, the moving party must provide a satisfactory explanation for the failure to produce that evidence at an earlier time.  Shiffer v. CBS Corp. (2015) 240 Cal. App. 4^th 246, modified on denial of rehearing. 

3.  CU0001511    Cassandra Triplett vs. Sammie's Friends Animal Shelter, et al.

The demurrer of defendant Julie Carrol is overruled.  The demurrer of defendant Sammie's Friends is overruled.  Defendants shall file an answer within ten days of this order.  

Request for Judicial Notice 

Defendants request the court to take judicial notice of Sammie’s Friends’ filings with the Secretary of State that it is a 503(c) non-profit corporation, including its Articles of Incorporation, Certificate of Amendment to Articles of Incorporation, Statement of Information CA Non-Profit Corporation.  The request is GRANTED.

The filings, specifically, the facts stated in the Articles of Incorporation, state facts that are “not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.”  Evid. Code §452(h).

Meet and Confer Requirements

Defendants filed a declaration outlining the parties’ meet and confer efforts.  This declaration complies with the meet and confer requirements of Code of Civil Procedure section 430.41.

Reply Brief

The court, in the exercise of its discretion, has considered the tardy reply submitted by plaintiffs. 

Legal Standard

“A demurrer tests the sufficiency of the complaint as a matter of law.” Berg & Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1034.  “It has been consistently held that “a plaintiff is required only to set forth the essential facts of his case with reasonable precision and with particularity sufficient to acquaint a defendant with the nature, source and extent of his cause of action.” Doheny Park Terrace Homeowners Assn. Inc. v. Truck Ins. Exchange (2005) 132 Cal.App.4th 1076, 1099, cited with approval by Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550. 

A demurrer lies only where the defects appear on the face of the pleading or are judicially noticed.  Code Civ. Proc. §§ 430.30, 430.70. Thus, the only issue addressed by a demurrer is “whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.”  Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747; accord McKenney v. Purepac Pharmaceutical Co.  (2008) 162 Cal.App.4th 72, 79.

Demurrer by Defendant Julie Carrol

Defendant Julie Carrol argues that the complaint fails to state any cause of action against her because she was a volunteer of a non-profit organization at the time of the incident; as such, she is protected from liability by the Volunteer Protection Act of 1997.  The court is not persuaded. 

The Volunteer Protection Act of 1997, codified in 42 United States Code sections 14501-14505, shields individuals who volunteer with 501(c)(3) non-profits under the following conditions:

• The volunteer was acting within the scope of their responsibilities;
• If appropriate or required, the volunteer possessed any required license or certification;
• The harm did not result from willful or criminal misconduct, gross       negligence, reckless misconduct, or a conscious flagrant indifference to    the rights or safety of the individual harmed; and
• The harm was not caused by the volunteer operating a motor vehicle,  vessel, aircraft, or other vehicle that must either be insured or operated with a license under state law.

42 U.S.C.A. § 14503 (a).

At the time of the incident, per the complaint, defendant Carroll was acting as a volunteer with defendant Sammie’s Friends, a 501(c)(3) non-profit organization.  See Complaint, 2:14, Request for Judicial Notice, Exh. A.  Moreover, she apparently was acting within the scope of her responsibilities.  See complaint at 3:9-14.  In addition, the complaint does not allege that plaintiff was injured as the result of defendant’s willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious flagrant indifference to the rights/safety of the individual harmed; it alleges that plaintiff was injured as a result of negligence.  See id. at 4:27-5:6.    

That said, the complaint is silent as to whether the volunteer had any required license or certification or whether the same was appropriate or required.  There also are no judicially noticed facts regarding the same.

Thus, as it stands, there is no defect based on the complaint as pled or judicially noticed facts with respect to the first, second, third, and fourth causes of action.  The demurrer by defendant Carrol is overruled.

Demurrer by Sammie’s Friends

Primary Assumption of the Risk

Defendant Sammie’s Friends argues that the doctrine of primary assumption of risk, as embodied in the veterinarian's rule and firefighter’s rule, bars all causes of action brought by plaintiff because at the time of the incident, she was acting in her capacity as an animal control officer.  Plaintiff questions whether the doctrine of assumption of the risk is a defense to any claim other than the strict liability claim.  Plaintiff also contends that her claims are not by barred by assumption of the risk because she was not acting in her animal control officer capacity with respect to the dog. The court need not reach plaintiff’s first argument and agrees with plaintiff’s latter argument. 

The court assumes, without deciding, that assumption of the risk applies to all claims at issue.  See, e.g., Gregory v. Cott (2014) 59 Cal.4th 996, 1001, 1012 (“Primary assumption of risk is a complete bar to recovery. It applies when, as a matter of law, the defendant owes no duty to guard against a particular risk of harm.   …  Absence of duty bars recovery for intentional torts as well as for negligence.”); Amezcua v. Los Angeles Harley-Davidson, Inc. (2011) 200 Cal.App.4th 217, 228 (“ ‘assumption of risk’ can be a complete defense to claim of negligence.”)

As for the merits of the asserted defense, the common thread running through the cases related to the firefighter’s and veterinarian’s rule is that the injury occurred while the plaintiff was in the course of “remedying a dangerous situation” and was injured as the result of negligence that was “the cause of his or her employment.”  Gregory v. Cott (2014) 59 Cal.4th 996, 1002.  Notes the Supreme Court, “[B]ecause the risk of injury from those causes is inherent in the occupations of firefighters and veterinarians, it is settled that no duty is owed to protect them from the very dangers they are hired to confront.”  Id. at 1007. 

Thus, in Priebe v. Nelson (2006) 39 Cal.4th 1112, cited by both parties, a kennel worker was bitten by a dog while kenneled and under her care.  The court ruled that the owner of the dog had no duty to protect plaintiff from the risk of injury that she was employed to confront, that is, the “risk [of] being bitten by dogs under their care in the unfamiliar surroundings of a boarding kennel.”  Id. at 1125.

Similarly, in Nelson v. Hall (1985) 165 Cal.App.3d 709, also cited by both parties, a veterinary assistant was bitten while assisting in the treatment of a dog that suddenly turned around and bit her.  “A veterinarian or a veterinary assistant who accepts employment for the medical treatment of a dog, aware of the risk that any dog, regardless of its previous nature, might bite while being treated, has assumed this risk as part of his or her occupation.”  Id. at 715. 

In the case at bar, plaintiff was an animal control officer.  She was also on defendant’s premises while in the scope of her employment as an animal control officer.  However, unlike the caretaker in Gregory, the kennel worker in Priebe, or the veterinary assistant in Nelson, plaintiff was not on defendant’s premises for any reason related to the dog, which was not under her custody or control when it bit her.  Rather, she was at the site to drop off two goats.  As such, the primary assumption of risk doctrine does not bar any of the causes of action of her complaint.

Common Law Strict Liability

Defendant also argues that the third cause of action fails to state facts sufficient to constitute a cause of action for common law strict liability.  The court does not agree.

“It is not the law that a vicious propensity means only the type of malignancy exhibited by a biting dog, that is, a propensity to attack human beings. Any propensity on the part of a domestic animal, which is likely to cause injury to human beings under the circumstances in which the party controlling the animal places him, is a dangerous or vicious propensity within the meaning of the law.” Talizin v. Oak Creek Riding Club (1959) 176 Cal.App.2d 429, 435. The facts alleged in plaintiff’s complaint sufficiently demonstrate defendant’s knowledge of Lenny’s dangerous or vicious propensities.  See Complaint ¶¶ 19-22.

4.  CU20-084791 Community Environmental Advocates, et al., vs. City of Grass Valley

The return to the peremptory writ of mandate is ACCEPTED, and the motion to discharge the peremptory writ of mandate is GRANTED.

The scope of a trial court’s review of a return to the writ is to determine whether “there [has] been adequate compliance with the previously issued writ.” National Parks and Conservation Assn. v. County of Riverside (1999) 71 Cal.App.4th 1341, 1352.  In evaluating compliance, the court will review “de novo” whether the party has complied with the California Environmental Quality Act’s procedures, but afford substantial deference to the party’s substantive factual conclusions. POET, LLC v. State Air Resources Bd. (2017) 12 Cal.App.5th 52, 62-63.

Respondent’s motion demonstrates, in detail, that it has complied with the terms of the writ related to the Dorsey Marketplace Project, including opening the issues to public comment on the supplement to the final environmental impact report and responding to the concerns raised by petitioners.  Petitioners do not oppose this motion. 

The court finds that the city has complied with the terms of the peremptory writ of mandate.  Accordingly, the writ is discharged. 

5.  CU0000164    In Re Nancy Footlik

Plaintiff's September 19, 2024 motion against Robinson and Fulton to produce records in compliance with deposition subpoena is GRANTED; plaintiff's request for sanctions is GRANTED.

Plaintiff confirms receipt of the trust document.  Defendant shall produce without objection all documents identifying assets of the trust no later than November 8, 2024, noon.  These documents are relevant to the instant dispute and timely objections to the request were not made.

Code of Civil Procedure section 2023.010 authorizes the court to impose monetary sanctions against a party, person, or attorney who misuses the discovery process, which includes the following:

(d) Failing to respond or to submit to an authorized method of discovery.

***

(h) Making or opposing, unsuccessfully and without substantial justification, a motion to compel or to limit discovery.

There is no dispute that Robinson and Miller failed to respond to a duly served deposition subpoena.  The firm did not comply, and it did not object or file a motion to quash.  Rather, it waited almost three months to produce only some of the requested documents, further evidencing that it had no substantial justification for not responding to an authorized method of discovery and no substantial justification for opposing this motion. 

Plaintiff’s motion for monetary sanctions against Robinson and Fulton is GRANTED.  Sanctions in the amount of $1,750.00 shall be paid no later than November 8, 2024, noon. 

October 25, 2024 Dept. 6 Civil Law and Motion Tentative Rulings

1.  CL0002037     Joseph Pryor vs. Sergio Aguilar, Jr.

All parties are ordered to appear for argument. 

2.  CU0000108    JM Streamline Inc., DBA Streamline Construction vs. Tahoe Forest Hospital District, et al

On the court’s own motion, the motion for leave to file cross-complaint filed by defendant Tim Cates is continued to November 15, 2024, at 10:00 a.m. in Department 6.

On the court’s own motion, the motion for leave to file cross-complaint filed by defendants Tahoe Forest Hospital District, Dylan Crosby, and Cameron Delano is also continued to November 15, 2024, at 10:00 a.m. in Department 6.

3.  CU0000128    Douglas J. Schultz vs. Marianne L. Stevenson, et al.

Motion to Compel Plaintiff’s Deposition

No appearance is required.  Defendant’s motion to compel plaintiff’s deposition is GRANTED.  The motion for sanctions is DENIED.

Code of Civil Procedure section 2025.210 allows a party to notice another party’s deposition.  If the party fails to comply with a proper deposition notice, Code of Civil Procedure section 2025.450 allows the noticing party to seek to compel that party’s deposition. 

The parties dispute numerous issues.  What is not disputed is defendant’s right to take plaintiff’s deposition.  The third amended deposition is a proper deposition notice, served after plaintiff confirmed his availability.  Plaintiff did not appear for that deposition.

Defendant’s request for an order compelling plaintiff’s deposition within 45 days of entry of order is appropriate.  The parties are ordered to meet and confer, and defendant’s attorney is to file a declaration by October 31, 2024 stating the agreed-upon date for plaintiff’s deposition.  That date will be deemed the court-ordered deposition date for purposes of any future motions to compel, should plaintiff not appear on the ordered date.

The court finds that there was substantial justification for defendant to file the instant motion and substantial justification for plaintiff to oppose it.  Sanctions are denied. 

The court has not considered plaintiff’s request for judicial notice or plaintiff’s declaration filed after defendant’s reply brief.  Any objections thereto are denied as moot.

Motion for Interlocutory Judgment

On the court’s own motion, the hearing on plaintiff’s motion for interlocutory judgment is continued to January 10, 2025 at 10:00 a.m.   Briefing is allowed only in accordance with the Rules of Civil Procedure.  Supplemental briefing of any kind requires leave of the court.

4.  CU0001190    Alice Branton, et al. vs. Zarlasht Fakiri, D.O., et al.

On the court’s own motion, defendants’ motion to compel arbitration is continued to November 8, 2024, at 10:00 a.m. in Department 6.

5.  CU0001461    In the Matter of Mortgage Lender Services, Inc.

No appearance is required.  On the court’s own motion, the motion to deposit surplus funds is continued to November 22, 2024, at 10:00 a.m. in Department 6. 

6.  CU19-084309 Michael Rainey vs. Nevada Irrigation District Board of Directors

No appearance is required.  Defendant Nevada Irrigation District (NID)’s motion for judgment on the pleadings pursuant to Code of Civil Procedure section 438(c)(1)(B)(ii) and the common law is granted.

Defendant’s request for judicial notice is granted.

In the June 24, 2024 statement of decision related to the bench trial for the first cause of action regarding inverse condemnation, the court concluded, in part: "Plaintiffs have failed to establish by a preponderance of credible evidence that: (1) the inherent risks manifested i.e., leakage/ seepage from the NID Canal; and (2) such leakage/ seepage was a substantial cause of their landslide property damage."  Statement of Decision at 4; see also 4, n. 2. 

To prevail on his remaining claims of nuisance (second cause of action) and dangerous condition (third cause of action), plaintiff Pachaud must prove that NID "proximately" caused the landslide related damage to his property. See Gov't Code § 835 (dangerous condition causation); Mellon v. Boustred (2010) 183 Cal.App.4th 521, 542 (nuisance causation).  Plaintiffs’ failure to establish causation during the bench trial is dispositive of Plaintiff Pachaud's remaining second and third causes of action.  The court has already concluded that NID's Red Hill Canal did not cause or contribute to the landslide damage on both plaintiffs' properties. That being the case, plaintiff Pachaud cannot state a cause of action on the remaining nuisance and dangerous condition causes of action as to his property.  See, e.g., Bookout v. State of California ex. Rel Department of Transportation (2010) 186 Cal. App. 4th 1478, 1481, 1488; McCorkle v. State Farm Ins. Co. (1990) 221 Cal. App. 3d 610, 616.

The court is not persuaded by any of plaintiff Pachaud’s arguments to the contrary, including those premised on the decision in Darbun Enterprises, Inc., v. San Fernando Community Hospital (2015) 239 Cal. App. 4th 399.  In short, the court made it clear in its decision granting bifurcation that it would decide the issue of liability in connection with the inverse condemnation claim, which expressly and necessarily included the issue of causation.  Darbun has no application to this case.  

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October 11, 2024 Dept. 6 Civil Law and Motion Tentative Rulings

1.  CU0000861    Patrick H. Dwyer vs. Dr. Andrea L. Harris et al

Motion to Compel Plaintiff’s Deposition

Defendant’s motion to compel plaintiff’s deposition is GRANTED.

Code of Civil Procedure section 2025.210 allows a party to notice another party’s deposition.  If the party fails to comply with a proper deposition notice, Code of Civil Procedure section 2025.450 allows the noticing party to seek to compel that party’s deposition. 

The parties have agreed to October 28, 2024 as the date for plaintiff’s deposition.  Given the number of times the deposition was set, canceled by plaintiff, and re-noticed, he is ordered to appear on the agreed-upon date. 

Motion to Compel Production of Documents

Defendants’ motion to compel documents responsive to Request Nos. 1, 6-8, 10, 28, and 29 is GRANTED.

A party may obtain the discovery through a request for production of documents that are in the possession, custody, or control of any other party to the action. (Code Civ. Proc., § 2031.010, subd. (a) - (e).)  If a party fails to produce requested discoverable documents, e.g., through inspection or copying, the requesting party may move for an order compelling compliance. (Code Civ. Proc., § 2031.320, subd. (a). 

In connection with plaintiff’s previous motion for protective order, the court determined that the above categories of documents were not subject to protection, either because the request sought records for medical conditions that plaintiff has placed at issue in this case or because the request did not seek privileged or confidential documents and/or plaintiff had already affirmed that the requested documents were not in his possession. 

Plaintiff shall produce documents responsive to these requests on or before October 18, 2024.   

Defendant’s Motion for Protective Order

Defendants’ motion is granted in part and denied in part.

1. Plaintiff shall have the burden of filing a motion with the court for any dispute arising out of the protective order.

On a motion to compel production of documents, the moving party has the burden of showing good cause for production (Code Civ. Proc. 2031.310(b)(1)).  Similarly, on a motion for protective order, the moving party has the burden of showing good cause for keeping the disputed documents protected (Code Civ. Proc. 2031.060(b)).  As this is a motion for protective order by plaintiff, it is his burden to file any motion relating to the protective order.

2. The protective order will include language confirming that it does not apply to facts, information, or assertions placed at issue in the subject lawsuit.

3. The protective order shall not include a stipulation to file documents in this lawsuit under seal.

4. Any consultants to whom documents have been provided shall be held to the terms of the protective order, including consultants retained prior to issuance of the protective order.

There is no reason that consultants already retained should not be bound by the terms of the protective order, the purpose of which is to protect plaintiff’s confidential information.  To the extent that defendants’ consultants have such information, they should be subject to the protective order.  There is also no burden on defendants to see to it that they are.

2.  CU0000128    Schultz, Douglas J. v. Stevenson, Marianne L. et al

No appearance is required.  On the court’s own motion, the hearing on plaintiff’s motion for interlocutory judgment is continued to October 25, 2024, at 10:00 a.m. in Department 6, the same date as defendant’s motion to compel plaintiff’s deposition.  Should that motion be granted, the hearing on the subject motion will be continued to a date after the deposition. 

3.  CU0000956    Schroyer, Howard v. DuBois, Tod

Respondent's motion for reconsideration is DENIED.

Code of Civil Procedure Section 1008(a) states that a party may “within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order.” 

Respondent’s motion fails because it provides no new or different facts, circumstances, or law upon which the court may reconsider its order.

4.  CU0001134    U-Haul Co. of California et al vs. Clifford Webb et al

Defendant’s unopposed motion to set aside default is granted.  Defendant’s answer that was filed before entry of default shall stand as defendant’s responsive pleading.

Code of Civil Procedure section 473(b) allows a court to set aside a default entered against a party through that party's mistake, inadvertence, surprise, or excusable neglect.  The motion must be made within a reasonable time, in no case exceeding six months, after entry of default. 

Preliminarily, defendant’s motion asserts that default was entered against him on March 19, 2024.  That is incorrect; that default was against co-defendant Clifford Webb.  Default against Mr. Baga was entered on February 20, 2024, which makes his motion filed on September 5, 2024 untimely under CCP 473.

CCP section 473.5 does provide the requested relief.  That section provides:

When service of a summons has not resulted in actual notice

to a party in time to defend the action and a default or default

judgment has been entered against him or her in the action, he 

or she may serve and file a notice of motion to set aside the 

default or default judgment and for leave to defend the action.

The notice of motion shall be served and filed within a reasonable

time, but in no event exceeding the earlier of: (i) two years after

entry of a default judgment against him or her; or (ii) 180 days

after service on him or her of a written notice that the default or

default judgment has been entered. 

The motion must include a sworn declaration showing that “the party's lack of actual notice in time to defend the action was not caused by his or her avoidance of service or inexcusable neglect”  Id. 

While default against Peter Baga was entered on February 20, 2024, it was not served on him until March 21, 2024.  Thus, he had until September 17, 2024 to seek to set it aside.  As his motion was filed on September 5, 2024, it is timely. 

The declaration supporting defendant’s motion shows that his lack of notice of the request for default was caused by excusable neglect and not avoidance of service or inexcusable neglect.  In the months between December 2023 and April 2024, defendant was, in his words, “deathly ill” with double pneumonia and double RSV.  While his illness did not prevent him from filing a responsive pleading, it was a basic general denial, which did not require the effort that a motion to set aside a default would have required.

“Courts favor relief from entry of default or default judgment because of a long-standing judicial preference for determining a matter on its merits; thus, any doubts are resolved in favor of the party seeking relief from default”. Rappleyea v Campbell (1994) 8 C4th 975, 980. Under the facts presented, defendant’s motion to set aside default is timely and it shows excusable neglect.  Any doubts should be resolved in his favor, particularly when there is no prejudice to plaintiff, who did not oppose the motion.

5.  CU0001491    Amy Barker vs. Dynasty Valley, LLC, a California limited liability company

Plaintiff’s motion to compel arbitration of her individual, class, and representative claims is granted.

General rules of contract interpretation apply to what the parties already agree is a valid arbitration agreement.  Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal. 4th 223, 236.  Among those rules are that the language of a contract governs its interpretation if the language is “clear and explicit and does not involve an absurdity.” Civ. Code 1638.  Moreover, to the extent possible, the intention of the parties is to be determined from the writing itself.  Civ. Code 1639.  Finally, “the whole of a contract is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the other.” Civ. Code 1640. 

The case of Garner v. Inter-State Oil Co. (2020) 52 Cal.App.5th 619, cited by plaintiff, and the case of Nelsen v. Legacy Partners Residential, Inc. (2012) 207 Cal.App.4th 1115, cited by defendant, are instructive.

In Garner, plaintiff alleged employment-related claims and sought class certification.  Based on an arbitration agreement signed by both parties, the trial court granted defendant’s motion to compel arbitration of only the individual claims.  The Court of Appeal reversed, holding that, read as a whole, the plain language of the arbitration agreement - which included class action claims - gave plaintiff the right to arbitrate his class action claims. 

On the other hand, in Nelson, also an employment-related class action lawsuit, the arbitration agreement that both parties signed was limited by its terms to plaintiff’s individual claims.  Noting that the agreement identified only the two parties and that there was no language reflecting an intent to allow class arbitration, the court concluded that the agreement did not permit class arbitrations. 

Defendant highlights the terms of the Agreement identifying the parties:  “My employment”, “I may enjoy”, “my compensation”, to argue that the Agreement is limited to individual claims.  In doing so, defendant ignores the terms of the Agreement that includes class actions:  “As well as claims I seek to bring as a representative or part of a class”. 

Tying together the Dispute Resolution Policy, which provides that “all” disputes relating to employment with Defendant are to be arbitrated, with the terms of the Agreement, which includes representative and class claims, the parties’ clear intent is that the Agreement includes claims, not only by individual employees of defendant, but also claims by employees as representative or part of a class. 

Defendant argues that it is the arbitrator, and not the court, that has authority to determine the enforceability of the terms of the Arbitration Agreement.  In fact, that issue is determined by the court unless there is “clear and unmistakable evidence” that the parties agree to delegate that issue to the arbitrator.  Ajamian v. CantorCO2e, L.P. (2012) 203 Cal.App.4th 771, 781.  Incorporation of the Rules of the American Arbitration Association do not constitute such evidence.  Id.

6.  CU0001578    duBois, Tod v. McGuckin, Tiffany

7.  CU0001579    duBois, Tod v. McGuckin, Jon

Petitioner’s motion for reconsideration is DENIED.

Code of Civil Procedure Section 1008(a) states that a party may “within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order.” 

Respondent’s motion fails because it provides no new or different facts, circumstances, or law upon which the court may reconsider its order.

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October 4, 2024 Dept. 6 Civil Law and Motion Tentative Rulings

1.  CU0001500    In the Matter of Erin Jennings

No appearance is required.  On the court’s own motion, the hearing on the petition for name change is continued to November 22, 2024, at 9:30 a.m. in Department 6.  Petitioner is required to publish the order to show case at least once each week for four successive weeks before the date set for hearing on the petition in a newspaper of general circulation.  Petitioner must also file a proof of service as to the minor’s other parent.

2.  CU0001541    In the Matter of John Ray Dewey

The petition for name change is granted as prayed. 

3.  CU0001554    In the Matter of Elizabeth Molaro

The petition for name change is granted as prayed.

4.  CU0001562    In the Matter of Dawn Thibeault

No appearance is required.  On the court’s own motion, the hearing on the petition for name change is continued to November 22, 2024, at 9:30 a.m. in Department 6.  Petitioner is required to publish the order to show case at least once each week for four successive weeks before the date set for hearing on the petition in a newspaper of general circulation.  Petition must be signed by both parents if both consent, or it must be served on the non-signing parent if that parent does not consent to the name change.

5.  CL0001030     TD Bank USA, N.A. vs. Heather Haddock

Plaintiff's July 9, 2024 unopposed, motion to vacate dismissal and to enter judgment is GRANTED.

Code of Civil Procedure section 664.6 (a) provides:

If parties to pending litigation stipulate, in a writing signed by the parties outside of the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.

A request for the trial court to retain jurisdiction under CCP section 664.6 "must conform to the same three requirements which the Legislature and the courts have deemed necessary for section 664.6 enforcement of the settlement itself: the request must be made (1) during the pendency of the case, not after the case has been dismissed in its entirety, (2) by the parties themselves, and (3) either in a writing signed by the parties or orally before the court.  The request must be express, not implied from other language, and it must be clear and unambiguous."   Mesa RHF Partners, L.P. vv. City of Los Angeles (2019) 33 Cal App 5th 913, 917-918.   

In this case, the parties agreed to have the court retain jurisdiction to enforce the settlement until performance in full of the terms of the settlement.  That request satisfies the requirements set forth in Code of Civil Procedure section 664.6.  Specifically, the request was made during the pendency of the case in a clear and unambiguous writing signed by both parties. 

Among other things, the parties agreed that the court could set aside the dismissal and enter judgment if defendant failed to make payments as previously agreed.  Defendant has defaulted on that term of the settlement agreement. 

The dismissal entered on May 6, 2024 is set aside and vacated.  Judgment in the amount of $3,979.61 is entered against defendant. 

6.  CU0000191    David Elliott, et al. vs. Ellen Nevarez, et al.

The application of Logan M. Owens to appear pro hac vice is granted as prayed.  The application of Robert L. Shannon to appear pro hac vice is granted as prayed.

7.  CU0001517    Lake Life Resorts LLC vs. Tod duBois

Respondent’s September 10, 2024 motion for reconsideration of the court’s August 29, 2024 restraining order is DENIED.

Code of Civil Procedure Section 1008(a) states that a party may “within 10 days after service upon the party of written notice of entry of the order and based upon new or different facts, circumstances, or law, make application to the same judge or court that made the order, to reconsider the matter and modify, amend, or revoke the prior order.” 

Respondent’s motion fails for the following reasons:

• It was served electronically to an unrepresented party who has not consented to electronic service in violation of Rule of Court 2.251(c)(3)(B) and Code of Civil Procedure section 1010.6(c)(2);
• It was filed on September 10, 2024, more than ten days after the order granting the petition for workplace violence restraining order was issued in respondent’s presence on August 29, 2024 and served on respondent in court.

• It provides no new or different facts, circumstances, or law upon which the court may reconsider its order and has not demonstrated why, through the exercise of diligence, such facts could not have been presented at the original hearing.

8.  P20-16664      In the Matter of Sandra Robinson

The motion to be relieved as counsel is granted as prayed.

9.  CU0001190    Alice Branton, et al. vs. Zarlasht Fakiri, D.O., et al.

Demurrer

Defendant Dr. Fakiri’s and Dr. Cheema, M.D., Inc., dba Capital Medical Extended Care’s (Capital Medical) September 4, 2024 demurrer to the first and second causes of action of plaintiffs’ first amended complaint is sustained as to defendant Dr. Fakiri and overruled as to defendant Capital Medical. 

Request for Judicial Notice

Plaintiffs’ request for judicial notice is granted in its entirety.

Demurrer Standard

“A demurrer tests the sufficiency of the complaint as a matter of law.”  Berg & Berg Enterprises, LLC v. Boyle (2009) 178 Cal.App.4th 1020, 1034.  “It has been consistently held that ‘“a plaintiff is required only to set forth the essential facts of his case with reasonable precision and with particularity sufficient to acquaint a defendant with the nature, source and extent of his cause of action.”  Doheny Park Terrace Homeowners Assn. Inc. v. Truck Ins. Exchange (2005) 132 Cal.App.4th 1076, 1099, cited with approval by Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550. 

“A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed. (Code Civ. Proc., §§ 430.30, 430.70). The only issue involved in a demurrer hearing is whether the complaint, as it stands, unconnected with extraneous matters, states a cause of action.'”  Hahn v. Mirda  (2007) 147 Cal.App.4th 740, 747; accord McKenney v. Purepac Pharmaceutical Co.  (2008) 162 Cal.App.4th 72, 79.

Defendants’ demurrer lies against the first cause of action of plaintiffs’ first amended complaint for elder abuse and the second cause of action for negligence/willful misconduct contained in plaintiffs’ first amended complaint.  Specifically, defendants argue that the facts pled fail to state these causes of action. 

First Cause of Action for Elder Abuse and Neglect

Defendants argue, among other things, that “The first cause of action does not allege facts on the part of Dr. Fakiri and CAPITAL MEDICAL amounting to conduct constituting ‘recklessness, oppression, fraud or malice’ as required by Welfare and Institutions Code § 15657.”  The court agrees in part. 

Fenimore v. Regents of University of California (2016) 245 Cal.App.4th 1339, 1348 sets forth the applicable standard: 

  

Under the Elder Abuse and Dependent Adult Civil Protection Act (the Elder Abuse Act or the Act) (§ 15600 et seq.), abuse of an elder or dependent adult may take several forms, including “neglect” and “[t]he deprivation by a care custodian of goods or services that are necessary to avoid physical harm or mental suffering.” (§ 15610.07, subd. (a).) As pertinent here, neglect means “[t]he negligent failure of any person having the care or custody of an elder or a dependent adult to exercise that degree of care that a reasonable person  in a like position would exercise.” (§ 15610.57, subd. (a)(1).) Neglect includes, but is not limited to, the “[f]ailure to provide medical care for physical and mental health needs” and the “[f]ailure to protect from health and safety hazards.” (Id., subd. (b)(2), (3); see § 15610.35, subds. (a), (e).)

The Elder Abuse Act's heightened remedies do not apply to acts of professional negligence. (§ 15657.2; Delaney [v. Baker (1999) 20 Cal.4th 23, 32,] 82 Cal.Rptr.2d 610, 971 P.2d 986.) Hence, the Act does not provide liability for simple or gross negligence by health care providers. (Sababin v. Superior Court (2006) 144 Cal.App.4th 81, 88, 50 Cal.Rptr.3d 266 (Sababin ).) Plaintiffs must plead and prove something more than negligence—that is, reckless, oppressive, fraudulent, or malicious conduct. (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 406, 129 Cal.Rptr.3d 895 (Carter ).) “The latter three categories involve ‘intentional,’ ‘willful,’ or ‘conscious’ wrongdoing of a ‘despicable’ or ‘injurious’ nature.” (Delaney, supra, at p. 31, 82 Cal.Rptr.2d 610, 971 P.2d 986.) Recklessness is “a subjective state of culpability greater than simple negligence, which has been described as a ‘deliberate disregard’ of the ‘high degree of probability’ that an injury will occur. [citations.] Recklessness, unlike negligence, involves more than ‘inadvertence, incompetence, unskillfulness, or a failure to take precautions’ but rather rises to the level of a ‘conscious choice of a course of action ... with knowledge of the serious danger to others involved in it.’ ” (Id. at pp. 31–32, 82 Cal.Rptr.2d 610, 971 P.2d 986.)

Id. at 1346-7.

Ordinarily, mere allegations of a “delay in diagnosis and proper treatment” will show nothing more than “mere incompetence or unskillfulness, i.e., negligence.”  Id. at 1348.   Here, the relevant allegations related to Dr. Fakiri do not allege sufficient facts to establish that the Doctor engaged in conduct that was reckless, oppressive, fraudulent, or malicious.  See Amended Complaint ¶¶ 39, 42.  However, the relevant allegations related to Capital Medical staff, liberally construed, do allege sufficient facts to establish that staff engaged in conduct that was reckless, namely the decision by two members of staff not to transfer decedent to the hospital when her condition was deteriorating in disregard of doctor’s orders and decedent’s known serious respiratory condition. See Amended Complaint ¶¶ 39, 42, 45, 50; e.g., Sababin, 144 Cal.App.4th at 90.

Defendants argue in addition that “The first cause of action does not allege facts on the part of CAPITAL MEDICAL constituting authorization or ratification of the alleged abuse as required by Welfare and Institutions Code § 15657.”  The court does not agree. 

Ratification is the “voluntary election by a person to adopt in some manner as his own an act which was purportedly done on his behalf by another person, the effect of which, as to some or all persons, is to treat the act as if originally authorized by him.”  Fretland v. County of Humboldt (1999) 69 Cal.App.4th 1478, 1490-1491.  Failure to discharge an agent after learning of misconduct is one such act that may be considered ratification.   C.R. v. Tenet Healthcare Corp. (2009) 169 Cal App 4th 1094, 1111.  Retention of financial benefits of the agent’s act may be another.  Reusche v. California Pacifica Title Ins. Co. (1965) 231 Cal.App.2d 731, 737.  The operative complaint includes such allegations.  See Amended Complaint ¶ 37.

The demurrer to the first claim is sustained as to defendant Dr. Fakiri and overruled as to Capital Medical. 

Second Cause of Action for Negligence/Willful Misconduct

Defendants argue that the second cause of action fails to set forth sufficient facts for a cause of action for willful misconduct.  They also allege that there are insufficient allegations of even negligence against Dr. Fakiri.    

As a preliminary matter, “[a]ll that is necessary as against a general demurrer is to plead facts entitling the plaintiff to some relief. In determining whether the complaint is sufficient as against the demurrer on the ground that it does not state facts sufficient to constitute a cause of action, the rule is that if on consideration of all the facts stated it appears the plaintiff is entitled to any relief at the hands of the court against the defendants the complaint will be held good”.  Gressley v. Williams (1961) 193 Cal App 2d 636, 639.  The second cause of action does not plead sufficient facts to establish breach of a duty or causation as to Dr. Fakiri; it does plead sufficient facts supporting a claim for negligence against the other Capital Medical personnel.  See Berkley v. Dowds (2007) 152 Cal.App.4th 518, 526 (negligence elements).   

Similarly, the second cause of action alleges sufficient facts to establish willful misconduct on the part of the Capital Medical medical personnel (other than the Doctor), but is insufficient as to the Doctor.   See Berkley, 152 Cal.App.4th at 528 (elements willful misconduct); Amended Complaint ¶¶ 39, 42, 45, 50.

The demurrer to the second claim is sustained as to defendant Dr. Fakiri and overruled as to Capital Medical. 

Leave to Amend

“Where the complaint is defective, ‘[i]n the furtherance of justice great liberality should be exercised in permitting a plaintiff to amend his complaint, and it ordinarily constitutes an abuse of discretion to sustain a demurrer without leave to amend if there is a reasonable possibility that the defect can be cured by amendment. [Citations.]’ ” Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 970–971. However, “[t]he plaintiff has the burden of demonstrating that “there is a reasonable possibility the plaintiff could cure the defect with an amendment.”  Jo Redland Trust, U.A.D. 4-6-05 v. CIT Bank, N.A. (2023) 92 Cal.App.5th 142, 162.   “The burden of proving such reasonable possibility is squarely on the plaintiff.”  Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.

Plaintiffs have not established, as is their burden, how the defects at issue regarding Dr. Fakiri can be remedied.  Leave to amend is denied on this record.

Answer

Defendant Capital Medical shall file an answer to the operative complaint within ten days after service of notice of the order. 

Motion to Strike

Defendant Fakiri’s and defendant Capital Medical’s September 4, 2024 motion to strike is granted in part and denied in part.

Standard of Review

A motion to strike lies either (1) to strike any “irrelevant, false or improper matter inserted in any pleading” or (2) to strike any pleading or part thereof “not drawn or filed in conformity with the laws of this state, a court rule or order of court.” Cal. C. Civ. Proc. § 436. As with a demurrer, the grounds for a motion to strike must appear on the face of the pleading under attack. Cal. C. Civ. Proc. § 437.

When determining the effect of a pleading, the allegations “must be liberally construed, with a view to substantial justice between the parties.” Cal. C. Civ. Proc. § 452.  Thus, in ruling on a motion to strike, the allegations of the complaint are to be read in context and presumed true. Clauson v. Superior Court (1998) 67 Cal.App.4th 1253, 1255. 

A complaint need only allege ultimate facts, not evidentiary facts. "[A] plaintiff is required to only set forth the essential facts of his case with reasonable precision and with particularity sufficient to acquaint the defendant with the nature, source and extent of his cause of action." Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 550.  Even conclusory allegations will not be stricken when they are supported by other factual allegations. Perkins v. Superior Court (1981) 117 Cal.App.3d 1, 6.

Claim for Punitive Damages

As a preliminary matter, defendants contend that plaintiffs have not complied with Code of Civil Procedure section 425.13.  That is correct. 

Section 425.13(a) provides, in relevant part, that “[i]n any action for damages arising out of the professional negligence of a health care provider, no claim for punitive damages shall be included” unless the plaintiff “within two years after the complaint or initial pleading is filed or not less than nine months before the date the matter is first set for trial, whichever is earlier” files a motion demonstrating a “substantial probability” he or she will prevail on the claim.

Covenant Care, Inc. v. Superior Court (2004) 32 Cal.4th 771, 780.  Of note, these requirements do not apply to punitive damage claims in actions alleging elder abuse.  See id. at 776.

Both named defendants, Dr. Fakiri and Dr. Cheema, dba Capital Medical are health care providers.  See Code Civ. Proc. § 425.13 (“For the purposes of this section, “health care provider” means any person licensed or certified pursuant to Division 2 (commencing with Section 500) of the Business and Professions Code, or licensed pursuant to the Osteopathic Initiative Act, or the Chiropractic Initiative Act, or licensed pursuant to Chapter 2.5 (commencing with Section 1440) of Division 2 of the Health and Safety Code ….”)  Moreover, the second cause of action arises out of purported negligence of or ratified by the health care providers.  As such, with respect to the second cause of action, the allegations related to punitive damages are stricken, namely Amended Complaint paragraph 74. 

Defendants also contend that the operative complaint does not allege “facts constituting the type of extreme misconduct needed to give rise to a claim for punitive damages.”  The court is not persuaded.

A complaint requesting punitive damages must include “specific factual allegations showing that defendant's conduct was oppressive, fraudulent, or malicious.” Today's IV, Inc. v. Los Angeles County Metropolitan Transportation Authority (2022) 83 Cal App 5th 1137, 1193. A claim for punitive damages without sufficient factual allegations to support it constitutes improper matter that should be stricken.

Welfare and Institutions Code section 15657 allows for enhanced remedies if plaintiff makes a showing of recklessness, malice, oppression, or fraud.  This section does not provide for recovery of punitive damages based on recklessness, but if malice, oppression, or fraud are shown, such damages may be recoverable under Civil Code section 3294. 

Civil Code section 3294 provides: 

“Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.

“Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.

“Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.

Plaintiffs’ first amended complaint does not contain facts supporting an allegation of fraud, but, liberally construed, does include support for allegations of oppression and malice, namely the decision not to transfer decedent to the hospital when her condition was deteriorating in disregard of doctor’s orders. 

Defendants also argue that plaintiffs have not alleged facts constituting authorization or ratification.  Again, the court is not persuaded.  An employer who neither directs nor ratifies the act of its employer is not liable for punitive damages.  See Ebaugh v. Rabkin (1972) 22 Cal. App.3d 891, 895.  Here, however, plaintiffs’ first amended complaint alleges facts to support a claim for ratification as discussed previously.

The motion to strike the claim for punitive damages related to the first cause of action, namely Amended Complaint paragraph 64, is denied.    

Lastly, the motion to strike the prayer for punitive damages against all defendants is denied, given that punitive damages can properly be sought with respect to the first cause of action as to defendant Capital Medical. 

Claim for Neglect

The court has concluded that plaintiffs have stated a claim for neglect as to defendant Capital Medical.  As such, defendants’ request to strike allegations of neglect in the second cause of action, Amended Complaint paragraph 69, is denied. 

Claim for Attorney’s Fees

Welfare and Institutions Code section 15657 allows for the recovery of attorney’s fees and costs in an elder neglect case if plaintiff establishes recklessness by clear and convincing evidence.  Recklessness is defined as a “conscious choice of a course of action with knowledge of the serious danger to others involved in it.” Delaney v. Baker (1999) 20 Cal.4th 23, 31-32. 

As explained in the ruling on defendants’ demurrer, plaintiffs’ first amended complaint makes an adequate showing of recklessness.  Therefore, defendants’ motion to strike the prayer for attorney’s fees, Amended Complaint Prayer, Item 3, is denied. 

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 September 20, 2024 Dept. 6 Civil Law and Motion Tentative Rulings

1.  CL0001432    Cavalry SPV I LLC as assignee of Citibank N.A. vs. Lennie Mitchell

No appearance is required.  Defendant’s August 23, 2024 motion to set aside default and default judgment and motion to stay execution are DENIED without prejudice.  Defendant has not filed a proof of service of the motion on plaintiff.  By law, plaintiff must be served with all moving papers and defendant must provide proof of the same.  See Code Civ. Proc. §1005(b).

2.  CU0000396    Amanda Peterson, et al. v. Larry Holt, et al.

Plaintiff’s August 29, 2024 motion to compel defendant’s deposition and production of documents is DENIED. 

The decision for this matter is governed by Pelton-Shepherd Industries, Inc. v. Delta Packaging Products, Inc. (2008) 165 Cal.App.4th 1568:

Subdivision (a) of section 2024.020 specifies that “[e]xcept as provided in this chapter, any party shall be entitled as a matter of right ... to have motions concerning discovery heard on or before the 15th day, before the date initially set for the trial of the action.” (Italics added.) Thus, if a party properly notices a discovery motion to be heard on or before the discovery motion cutoff date, that party has a right to have the motion heard. By negative implication, a party who notices a discovery motion to be heard after the discovery motion cutoff date does not have a right to have the motion heard. But the fact that a party does not have a right to have a discovery motion heard after the discovery motion cutoff date does not mean the court has no power to hear it, or that the court errs in hearing it. Indeed, subdivision (a) of section 2024.050 specifically allows a discovery motion to be heard after the discovery motion cutoff date by providing that “the court may grant leave ... to have a motion concerning discovery heard, closer to the initial trial date, or to reopen discovery after a new trial date has been set.” But that statute also specifies that such leave may be granted “[o]n motion of any party.” (§ 2024.050, subd. (a).) Moreover, such a motion must be accompanied by a meet and confer declaration, and in exercising its discretion to grant or deny the motion the court must consider various factors, including (but not limited to) “[t]he necessity and the reasons for the discovery” and “[t]he diligence or lack of diligence of the party seeking ... the hearing of a discovery motion, and the reasons that ... the discovery motion was not heard earlier.” (§ 2024.050, subds. (a) & (b)(1), (2).)

Id. at 1586–1587 (italics supplied).

That discovery is closed in the present case is without dispute.  At the June 26, 2024 hearing on defendant’s motion to continue trial, defense counsel made an oral motion to re-open discovery.  Plaintiff, through counsel, objected and the court indicated that a motion to re-open discovery would need to be filed.  To the court’s knowledge, no party has filed such a request and discovery remains closed. 

 This court lacks the discretion to simply hear the motion to compel without first deciding whether discovery should be reopened for that purpose under all of the relevant circumstances. See id. at 1588 (“By simply hearing the motion to compel without first deciding whether discovery should be reopened for that purpose under all of the relevant circumstances, the trial court ‘transgresse[d] the confines of the applicable principles of law” and thereby abused its discretion.’”)(citation omitted). 

3.  CU0000795    Mark G. Jones vs. Barbara L. Reamer, et al

The August 8, 2024 motion to set aside default filed by defendant SPFF, LP is GRANTED.  Plaintiff’s request for costs and for his time in the amount of $1,000 is DENIED.

CCP Section 473(b) provides, in pertinent part:

The court may, upon any terms as may be just, relieve a party or

his or her legal representative from a judgment, dismissal, order,

or other proceeding taken against him or her through his or her

mistake, inadvertence, surprise, or excusable neglect. Application

for this relief shall be accompanied by a copy of the answer or other

pleading proposed to be filed therein, otherwise the application shall

not be granted, and shall be made within a reasonable time, in no case

exceeding six months, after the judgment, dismissal, order, or proceeding

was taken.

A trial court has broad discretion to grant relief under Code of Civil Procedure section 473(b), which is to be liberally construed.  “Any doubts existing as to the propriety of setting aside a default thereunder will be resolved in favor of a hearing on the merits.” Berman v. Klassman (1971) 17 Cal. App. 3d 900, 909.  Moreover, when there is no showing of prejudice to the party opposing the motion to set aside a default, only “very slight” evidence is required to justify a court in setting aside the default.  Buckert v. Briggs (1971) 15 Cal. App. 3d 296, 302–303.   Relief under section 473(b) may be granted for a default and default judgment based on a party’s failure to inform an attorney of the service of the summons and complaint if that failure is the result of excusable inadvertence. See Benjamin v. Dalmo Mfg. Co. (1948) 31 Cal. 2d 523, 527; see also Pearson v. Continental Airlines (1970) 11 Cal. App. 3d 613, 617; Gorman v. California Transit Co. (1926) 199 Cal. 246, 248-249; and Bernards v. Grey (1950) 97 Cal. App. 2d 679, 686.

Here, the court is persuaded the default was obtained and entered as the result of SPFF’s inadvertence, mistake, excusable neglect, and surprise, and SPFF has acted with appropriate diligence to attempt to remedy its error.  See Navarro Decl. ¶¶ 2-3, Brozek Decl. ¶¶ 3-5, Macias Decl. ¶¶ 2-7.  Relief is warranted.  The court is not persuaded by any of plaintiff’s arguments to the contrary. 

When a court sets aside a default, it has discretion under Code of Civil Procedure section 473(c) to impose a penalty of up to $1,000 on the defaulting party or its attorney.  The court is not inclined to penalize defendant, which promptly contacted an attorney upon discovering that it had been served with a complaint.  That attorney acted reasonably thereafter to retrieve relevant court documents and attempt to informally resolve this matter prior to filing the instant motion.

Defendant shall file the demurrer attached to its motion, including a declaration setting forth the parties’ meet and confer efforts, within ten days of notice of this order.

4.  CU0001461    In the Matter of Mortgage Lender Services, Inc.

The July 16, 2024 motion for an order to deposit surplus proceeds from sale and discharging petitioner Mortgage Lender Services, Inc., and the related July 22, 2024 claim of Mark Jones are continued on the court’s motion to October 25, 2024, at 10:00 a.m. in Dept. 6.

5.  CL0001447    Vanessa Starkey vs. Jeremiah Storer

Appearances are required.  Defendant’s September 9, 2024 demurrer is overruled.  Plaintiff has adequately alleged a cause of action for unlawful detainer for nonpayment of rent.  Plaintiff has adequately alleged that plaintiff and defendant are proper parties; the former is the alleged owner of the tenancy and defendant is allegedly in wrongful possession of the same. This court also has jurisdiction over the instant matter dispute.  Defendant shall file an answer to the complaint within five days of notice of this decision.

6.  CL0001887    Paul Kolbus v. William Hackett

Appearances are required.  Defendant’s August 14, 2024 demurrer is overruled.  There is no proof that defendant has served a notice of hearing on plaintiff in connection with the demurrer as required by law.  See Cal. Rule Court 3.1320(c).  Defendant shall file a responsive pleading to the complaint within five days of notice of this decision.

7.  PR0000440     In the Matter of Katherine Rupert Kinaman

No appearance is required.  The June 13, 2024 motion of Nicholas Pastor to be relieved as attorney for Katherine Kinaman is granted as prayed.  The court is satisfied that Ms. Kinaman has been provided adequate notice of the instant motion by service of the required documents on June 20, 2024 and on September 13, 2024.

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 September 13, 2024 Dept. 6 Civil Law and Motion Tentative Rulings

1.  CL0001357    Student Loan Solutions, LLC vs. Juliet L Hiles-Mcgrath

Defendant’s July 10, 2024 motion to dismiss the complaint is DENIED.

Involuntary dismissals are governed by Code of Civil Procedure sections 583.110 to 583.430, which address dismissals for failure to serve a summons and complaint, for failure to bring an action to trial or for new trial, or for delay in prosecution.  A party looking for a dismissal on the grounds of statute of limitations can do so by a demurrer, see Code Civ. Proc. § 430.10, or a motion for summary judgment.  See Code Civ. Proc. § 437(c).  Defendant’s motion to dismiss on the basis of a statute of limitations defense is improper.

Even if plaintiff’s motion were proper, the complaint is not barred by the four-year statute of limitation for breach of a written contract under Code of Civil Procedure section 337.  Each installment has a separate limitations period which starts running the day immediately after an installment payment is due.  See Conway v. Bughouse. Inc., 105 Cal. App. 3d 194, 202 (1980).  Moreover, the loan at issue in this case contains an acceleration clause, which gave plaintiff the option to call the entire outstanding loan amount due and payable if defendant failed to make a monthly installment payment.  See Trigg v. Arnott (1937) 22 Cal App.2d 455, 459.

In this case, the complaint was filed on January 11, 2024. Plaintiff is only seeking installments from four years before that date through the end of the loan, with the final installment owing on December 30, 2028.  Those payments, excluding pre-judgment interest, total $11,033.28, and all fall within the applicable four-year statute of limitations.

2.  CU0000180    John Cano v. Jordan Jiannino 

Plaintiff’s August 14, 2024 motion to continue the October 22, 2024 trial is DENIED.

The applicable standard is summarized in Reales Investment, LLC v. Johnson (2020) 55 Cal.App.5th 463, 468:

Trial continuances are “disfavored” and may be granted “only on an affirmative showing of good cause.” Cal. Rules of Court, rule 3.1332(c). The party requesting a continuance must do so “by a noticed motion or an ex parte application” and “with supporting declarations.” Cal. Rules of Court, rule 3.1332(b). California Rules of Court, rule 3.1332(c) lists seven circumstances “that may indicate good cause.” California Rules of Court, rule 3.1332(d) lists additional factors the trial court may consider, including “the proximity of the trial date, whether there were previous trial continuances, the length of the requested continuance, and the prejudice that parties or witnesses would suffer as a result of the continuance.”

Id. at 468 (parentheses and citations omitted).

Preliminarily, the court notes that this motion is the fourth request for a trial continuance.  The case was originally set for trial on October 17, 2023.  That date was continued by stipulation to March 19, 2024, June 18, 2024, and October 22, 2024, with the court warning the parties that further continuances “shall be highly disfavored.”  Currently, trial is scheduled for October 22, 2024, with a seven-day estimate.   

Plaintiff seeks a continuance due to the reported unavailability of an expert.  Rules of Court, rule 3.1332(c)(7) authorizes a continuance if a party’s expert is unavailable for trial due to “excusable circumstances.”  While an out-of-state teaching engagement may constitute an excusable circumstance, plaintiff’s attorney does not explain why he only recently learned about this expert’s unavailability.  When the parties agreed upon the current trial date, presumably diligent counsel did so after confirming the availability of trial counsel, clients, witnesses, and experts or immediately advised them of the new date.   There has been no showing as to when counsel contacted this expert to advise them of the current trial date.  Moreover, there has been no showing why this expert cannot testify remotely during the period scheduled for trial, a common practice in trials these days.   On this record, no persuasive showing of excusable circumstances has been demonstrated. 

Plaintiff argues that additional time is needed to obtain an updated report from plaintiff’s neurosurgeon regarding his treatment plan, including possible surgery.  Rules of Court, rule 3.1332(c)(6) allows for a trial continuance based on a party’s “excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts.”  This ground does not justify a continuance, however.  Plaintiff reportedly had a follow up appointment scheduled for August 15, 2024, and presumably proceeded with the same.  Plaintiff has more than adequate time between August 15 and the scheduled trial date to utilize the additional information from this encounter for purposes of a late October trial. The court notes, moreover, that there has been no detailed explanation as to why this information is, in fact, essential.   

Plaintiff also argues that a trial continuance of five-months is warranted due to the unavailability of counsel.  Unavailability of trial counsel because of excusable circumstances can be grounds for a continuance.  See Cal. Rules of Court, rule 3.1332(c)(3).  Here, however, plaintiff has utterly failed to make the requisite showing of excusable circumstances.  Plaintiff has provided no explanation for counsel’s unavailability or any specific reason as to why the attorneys are unavailable for the next five months.

To the extent plaintiff premises his request for a continuance on Code of Civil Procedure Code section 595.2, that request also lacks merit.  Section 595.2 is directory only and relates to a request by the parties for a thirty-day continuance, not a five-month continuance.  See Pham v. Nguyen (1997) 54 Cal.App.4th 11, 15–16.

All trial and pretrial dates remain as previously set. 

3.  CU20-084697 Barbara Miller vs. Pamela Gorman, et al.

Plaintiff’s motion to strike defendant’s memorandum of costs is DENIED.  The motion to tax costs is GRANTED IN PART AND DENIED IN PART.

Motion to Strike

Recovery of Costs in General

Code of Civil Procedure section 1032 entitles a prevailing party as a matter of right to recover costs after trial.  The procedure for recovering such costs is set forth in Rules of Court, rule 3.1700(1)(a), which provides:

A prevailing party who claims costs must serve and file a memorandum

of costs within 15 days after the date of service of the notice of entry of

judgment or dismissal by the clerk under Code of Civil Procedure section

664.5 or the date of service of written notice of entry of judgment or

dismissal, or within 180 days after entry of judgment, whichever is first. 

Timeliness of Defendant’s Memorandum of Costs (MC)

Plaintiff argues that defendant’s MOC is untimely, pointing to the fact that defendant served the judgment on special verdict on May 24, 2024 and did not file the MOC until   June 13, 2024, seventeen days later.  This argument lacks merit.

Rule of Court 3.1700 calculates the timeliness based on service of the notice of entry of judgment, which was done on May 30, 2024.  The MOC was filed fourteen days later and was timely. 

That said, defendant did not timely file the MOC worksheet that is to accompany the MOC summary.  It was not filed until August 8, 2024, seemingly an oversight, as the proof of service (filed August 8, 2024) includes it. 

Without the worksheet, a party is unable to determine which costs are reasonably necessary to the conduct of the litigation as opposed to merely convenient or beneficial to its preparation.  See Code Civ. Proc. § 1033.5(c)(2).  Of note, however, it appears from plaintiff’s motion that the worksheet was served because plaintiff’s motion to tax costs references specific line items from the worksheet.  Thus, there is no prejudice to plaintiff for the late filing of that worksheet. See Pollard v. Saxe & Yolles Development Co. (1974) 12 Cal. 3d 374, 381 (trial court, in the absence of prejudice, has broad discretion in allowing relief on grounds of inadvertence from a failure to timely file a memorandum of costs).

Validity of Defendant’s Statutory Offer to Compromise

Plaintiff argues that defendant’s Code of Civil Procedure section 998 offer (998 offer) was not made in good faith and is, therefore, invalid for purposes of cost recovery.  The court is not persuaded.

When a party serves a valid statutory offer to compromise that is rejected and the rejecting party does not obtain a more favorable result, Code of Civil Procedure section 998 allows for the recovery of expert fees incurred after the date of service of the statutory offer to compromise. As with other discretionary costs, the fees must have been reasonable and reasonably necessary for the conduct of the litigation.  See

Code Civ. Proc. 1033.5(c)(2),(3). 

When evaluating whether a 998 offer has a “reasonable prospect of acceptance,” courts evaluate circumstances of the case at the time of the offer.  See Burch v. Children’s Hospital of Orange County Thrift Stores, Inc. (2003) 109 Cal.App.4th 537, 548. The court looks at whether the offer was within the “range of reasonably possible results” at trial, considering all of the information the offeror knew or reasonably should have known; and whether the offeror knew the offeree had sufficient information, based on what the offeree knew or reasonably should have known, to assess whether the “offer [was] a reasonable one,” such that the offeree had a “fair opportunity to intelligently evaluate the offer.” Elrod v. Oregon Cummins Diesel, Inc. (1987) 195 Cal.App.3d 692, 699-700.

Defendant’s statutory offer to compromise for $30,000 satisfies both criteria.  The offer was made on March 23, 2022, one and one- half years after the answer was served, well into the discovery period, and immediately prior to the filing of discovery and dispositive motions.  It was also made days after plaintiff filed her own detailed “policy demand.”  The record as a whole demonstrates that plaintiff had sufficient information as of that time to intelligently evaluate the offer made by defendant.  In addition, the offer was in the range of a reasonably possible results at trial considering the knowledge of both parties when the offer was made; indeed, the offer turned out to be four times more than the jury’s $7,500 verdict, before costs.

The court finds that defendant’s statutory offer to compromise was valid and entitles defendant to reasonable and reasonably necessary costs after March 23, 2022. 

Motion to Tax Costs

Having determined that defendant’s 998 offer was valid and her memorandum of costs timely, the court turns to the specific items of cost that plaintiff seeks to strike.  See defendant’s declaration filed 7/22/24 for receipts, bills, etc.

Defendant’s Request for Expert Fees

Plaintiff seeks to strike $27,485.00 in line 8 for defendant’s expert fees in connection with expert deposition and trial testimony.  She argues that defendant’s MOC does not satisfy the reasonableness and necessity requirements of C.C.P. § 1033.5 because there is no detail or explanation to support the request for these expert fees. 

Defendant’s opposition and supporting documentation provide that detail and explanation and make an adequate showing that the fees were reasonable and were reasonably necessary for the conduct of the litigation.  Plaintiff did not file a reply to rebut this showing. 

However, the court requires clarification as to the amounts requested by defendant for this category of costs.  Specifically, line 8b shows a total of $31,220.00.  Like plaintiff, the court calculates the items in line 8 to be $27,485.00.  However, the court is unable to determine the basis for $2,995.00 for lines 8b5-7.  Thus, the court allows for $24,490.00 for expert fees. 

Plaintiff seeks to strike $3,110.00 in line 16 for Dr. Paul Berg’s medical expert fees.  According to defense counsel’s declaration, Dr. Berg was originally retained to address plaintiff’s damages “based solely on pain and suffering.”  Defendant’s opposition and supporting documentation make an adequate showing that the fees were reasonable and were reasonably necessary for the conduct of the litigation.  Plaintiff did not file a reply to rebut this showing.  This cost is recoverable.

Plaintiff seeks to strike $10,455.00 in line 16 for Von Haenel and Associates, a forensic engineering firm.  Both parties retained forensic engineers; plaintiff retained two.  The fact that plaintiff elected to withdraw her experts during trial does not negate the reasonableness or need for defendant to retain hers.  This cost is recoverable. 

Plaintiff seeks to strike $25,150.00 in line 16 for Dr. Peter Sfakianos’ medical expert fees.  Dr. Sfakianos was defendant’s primary medical expert and was needed to rebut plaintiff’s injury claims.  While plaintiff asserts that his fees are not reasonable, she does not explain how she came to that conclusion even after defendant provided Dr. Sfakianos’ bills. These costs can be recovered.

Plaintiff seeks to strike $5,400.00 in line 16 for Authentic 4D fees.  Plaintiff’s motion incorrectly identifies this vendor as a jury consultant.  Defendant explains that it provided services to review and analyze imaging studies for use by defendant’s medical experts.  The supporting documentation supports this cost, which is recoverable.

Defendant’s Request for “Prohibited” Costs

Plaintiff seeks to strike $10,830.00 in line 12 for “court reporter transcript fees,” arguing that defendant is only entitled to transcripts ordered by the court under Code of Civil Procedure section 1033.5(b)(5).  As correctly pointed out by defendant and demonstrated in the supporting documentation, this line item is not for transcripts but for court reporter fees.  Plaintiff has not argued the unreasonableness of this item, which is recoverable. 

Plaintiff seeks to strike $22,148.03 in line 16 charged by Blue Print Trial Consulting.  Defense counsel’s declaration confirms that this is a jury consultant which was necessary because defense counsel, whose office is in Sacramento County, claims to be unfamiliar with the demographics of its neighbor, Nevada County.  Code of Civil Procedure section 1033.5(b)(4) prohibits the recovery of costs for investigation of jurors, which is within the purview of a jury consultant.  Even if this cost is not prohibited, it is a cost that was beneficial to trial preparation but not reasonably necessary to its conduct.  This cost is not allowed.

Defendant’s Request for “Unnecessary” Costs

To be allowed under Code of Civil Procedure section 1033.5, costs must be “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation".  They must also be “reasonable in amount.” See Code Civ. Proc. § 1033.5(c)(2). 

Plaintiff seeks to strike $150.00 in line 1(b) for notice of jury fees as duplicative of jury fees in line 2(a).  Defendant has not addressed this objection in her opposition, other than to say that it cannot be determined where a duplicate entry was made.  It appears that this is a duplicate charge and is stricken.

Plaintiff seeks to strike $1,897.60 in line 4 for videotaping depositions, arguing that none of the depositions in this case were videotaped, which defendant confirms.  Without explaining what such charges are, defendant explains that “video charges” were incurred. Defendant has not demonstrated, however, what these video charges, in fact, were.  On this record, the court concludes the video charges were not reasonably necessary to the litigation.  This cost is stricken.

Plaintiff seeks to strike $4,076.25 in line 16 charged by Sacramento Legal Video Center, arguing that this item should be stricken without additional details.  Defense counsel’s declaration confirms that this vendor provided trial tech support services, which was necessary to assist counsel with its PowerPoint and demonstrative exhibits.  Courts have allowed these discretionary costs. See Bender v County of Los Angeles (2013) 217 Cal App 4^th 968, 989-990.  The court finds this was a reasonably necessary cost for the conduct of the litigation. 

Plaintiff seeks to strike $950.00 in line 16 for defendant’s share of the mediator’s fee.  “The question whether mediation fees should be awarded as costs in a particular matter must be determined based on the facts and circumstances of the particular action.”  Berkeley Cement, Inc. v. Regents of the Univ. of Cal., 30 Cal.App.5th 1133, 1143.  Plaintiff has not set forth facts supporting her conclusory assertion that the mediation was not necessary to the conduct of the litigation or her assertion that Mr. Harris’ fee was not reasonable.  If she thought his fee was too high, she could have proposed another less expensive mediator.  This cost is recoverable.

Plaintiff seeks to strike $2,339.39 in line 16 for defense counsel’s lodging and travel costs as a cost not necessary to the conduct of the litigation.  Defendant argues that the cost is recoverable because defense counsel was required to attend trial in person and incurred these costs to get there and stay overnight.  The court agrees.  This is a recoverable cost. 

Defendant may recover the following items of costs, either because plaintiff did not object to them or because defendant is entitled to them:

            $1,790.02        Filing and motion fees

            $10,830.00      Court reporter fees

            $1,048.32        Jury fees

            $1,607.05        Service of process

            $865.60           E-filing

            $7,254.93        Deposition costs

            $950.00           Mediator fee

            $4,076.25        Trial tech support

            $24,490.00      Expert fees pursuant to CCP 998

            $5,400.00        Authentic 4D

            $10,455.00      Van Haenel and Associates

            $25,150.00      Dr. Peter Sfakianos

            $2,339.39        Lodging and travel for defense counsel

            $3,110.00        Dr. Paul Berg

            $99,366.56

The following items of costs are stricken because defendant did not oppose plaintiff’s motion to tax them or because the court deems them not recoverable:

            $1,897.60        Video charges related to depositions

            $150.00           Duplicate jury fee entry

            $22,148.03      Blue Print Trial Consulting

            $6,730.00        Unsupported or miscalculated expert fees

          $30,925.63

4.  CU21-085655 Nicholas Findley vs. Christopher Anderson, et al.

The August 20, 2024 motion of defendants Anderson, HG Logistics, LLC, Enlighted Objects, LLC, Griffon Management, LLC, and Mericratic Society, LLC, to continue the November 5, 2024 trial is DENIED. 

The applicable standard is summarized in Reales Investment, LLC v. Johnson (2020) 55 Cal.App.5th 463, 468:

Trial continuances are “disfavored” and may be granted “only on an affirmative showing of good cause.” Cal. Rules of Court, rule 3.1332(c). The party requesting a continuance must do so “by a noticed motion or an ex parte application” and “with supporting declarations.” Cal. Rules of Court, rule 3.1332(b). California Rules of Court, rule 3.1332(c) lists seven circumstances “that may indicate good cause.” California Rules of Court, rule 3.1332(d) lists additional factors the trial court may consider, including “the proximity of the trial date, whether there were previous trial continuances, the length of the requested continuance, and the prejudice that parties or witnesses would suffer as a result of the continuance.”

Id. at 468 (parentheses and citations omitted).

Continuances can be warranted upon a showing of a “significant, unanticipated change in the status of the case as a result of which the case is not ready for trial.”  Rules of Court, rule 3.1332(c)(7).  They can also be warranted for a party's excused inability to obtain essential testimony, documents, or other material evidence despite diligent efforts.  See Rules of Court, rule 3.1332(c)(6). “In exercising its discretion [regarding a request for a continuance] the court may properly consider the extent to which the requesting party's failure to secure the contemplated evidence more seasonably results from a lack of diligence on his part.”  Rodriguez v. Oto (2013) 212 Cal.App.4th 1020, 1038 (citing cases).

Defendants seek a continuance arguing that the action has just recently been placed at issue and that they need to conduct additional discovery.  The court is not persuaded.    

Some history is in order.  A complaint against defendants was filed on July 21, 2021, over three years ago.  The lawsuit was stayed, at the request of the parties, until the end of 2022 to allow the parties to mediate and resolve the dispute.  As part of a November 2022 order, defendants were permitted until January 27, 2023 to respond to the pending complaint. 

No defendants filed any response to the original complaint on or after January 27, 2023.  Defendants Anderson and Enlightened filed a February 2023 cross complaint and amended March 2023 cross complaint; the latter was answered by plaintiff on April 11, 2023.

During the June 20, 2023 CMC, the court was advised that the parties had agreed to the filing of an amended complaint and agreed to the setting of trial for May 7, 2024.  The court was advised that the amended complaint would be filed in no more than approximately 60 days. 

Nine months later, plaintiff filed a first amended complaint on February 21, 2024.  At no time during this nine-month period, did any party advise the court regarding the delay or seek any relief in connection therewith.

On March 20, 2024, defendants, ex parte, sought to continue the May 2024 trial date for six months.  The court conducted a hearing with all parties regarding the same on March 26, 2024.  At the request of the parties, the court set trial for November 5, 2024.  The court advised the parties that the trial date was firm, and that it would not entertain further continuances given the age of the case.  The court also advised the parties that it had great concerns as to whether the parties were proceeding with appropriate diligence.       

For reasons unknown, defendants did not file a demurrer and motion to strike until three months thereafter, June 6, 2024 (set for hearing on July 12, 2024).  Ultimately, on motion of the court, those motions were continued until August 24, 2024 and denied.  Defendants then answered the amended complaint on September 3, 2024. 

Due to a discovery dispute with respect to interrogatories propounded on March 28, 2024, defendants filed a motion to compel on June 6, 2024, granted by Judge Kellegrew on August 30, 2024. 

Per defendants, there is still a need to conduct further discovery, including the deposition of plaintiff.  Reportedly, defendants have requested plaintiff’s availability for the same since April but have not been given a date.  This showing is woefully insufficient to merit a continuance.  There is no explanation offered as to what discovery has been conducted by defendants to date in this matter (initiated in 2021), what specific discovery still needs to be conducted, why such additional discovery and preparation will require six months of time, and why, with the exercise of diligence, this additional discovery and preparation could not have been completed previously.  

The parties are ordered to meet and confer forthwith regarding plaintiff’s deposition date and to set the same and complete the same prior to the discovery cutoff, 30 days prior to trial.  

All trial and pretrial dates remain as previously set. 

5.  PR0000440     In the Matter of Katherine Rupert Kinaman

No appearances are required.  The motion to be relieved as counsel is DENIED without prejudice. 

Mr.  Pastor has not corrected the deficiencies set forth in the tentative ruling for the hearing on July 19, 2024, the original date set for the motion.  Specifically, there was insufficient information to allow the court to determine that the client was served at her most recent address, as the proof of service reflected that the client was served at a Kelseyville address, but the proposed order notes a Clear Lake address as the client’s last known address.  In addition, the court instructed Mr. Pastor to include a notice of the court’s tentative ruling system.

It is also noted that the motion was not served on Ravare Rupert, identified in the original petition as having limited power of attorney for Katherine Rupert. 

Mr. Pastor is reminded that trial is set to begin on November 5, 2024.

6.  TCU10-4288  Community Facilities District No. 04-1 vs. Grays Station, LLC

Plaintiff’s unopposed July 31, 2024 motion to modify default judgment is GRANTED.

Government Code section 53356.1 provides, in pertinent part:

(c) [i]n the event that a lot or parcel of property has not been sold

pursuant to judgment in the foreclosure action at the time that

subsequent special taxes become delinquent, the court may include

the subsequent special taxes, interest, penalties, costs, fees, and other

charges in the judgment or modified judgment.

The amended judgment entered in January 2021 provides that the judgment may be amended at any time prior to sale of the property to include “any or all additional Special Tax Installments, penalties, interest and other fees, along with accrued attorneys’ fees and costs, that become due and owing after entry of this Judgment.” Amended Judgment ¶ 14.  Moreover, it appears that defendant purchased the property with notice of plaintiff’s delinquent special tax liens. 

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September 6, 2024 Dept. 6 Civil Law and Motion Tentative Rulings

1.  CU0001532          Jonathan Cronan vs. Scott Melville

2.  CL0001802           Scott Melville vs. Jonathan Cronan

Cronan’s unopposed August 8, 2024 motions for consolidation of his quiet title action (the 1532 case) with Melville’s separate and related unlawful detainer action (the 1802 case) are GRANTED.  If any party wishes to appear, they must advise the clerk’s office and all parties that argument is requested and the hearing will be continued to Tuesday, September 10, 2024, at 10:00 a.m. in Dept. 6.  If no party requests to appear, the court will adopt the tentative ruling as the final ruling effective September 6, 2024.

Code of Civil Procedure section 1048(a) provides:

When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions; it may order all the actions consolidated and it may make such orders concerning proceedings therein as may tend to avoid unnecessary costs or delay.

 “[A]n action for unlawful detainer can co-exist with other causes of action in the same complaint,” but only “so long as the entire case is treated as an ordinary civil action, not as a summary proceeding.” (Lynch & Freytag v. Cooper (1990) 218 Cal.App.3d 603, 608). 

[T]he trial court has the power to consolidate an unlawful detainer proceeding with a simultaneously pending action in which title to the property is in issue. That is because a successful claim of title by the tenant would defeat the landlord's right to possession. ([Citation omitted.]) When an unlawful detainer proceeding and an unlimited action concerning title to the property are simultaneously pending, the trial court in which the unlimited action is pending may stay the unlawful detainer action until the issue of title is resolved in the unlimited action, or it may consolidate the actions. [(Citation omitted].)

Martin-Bragg v. Moore (2013) 219 Cal.App.4th 367, 385

Here, consolidation is proper because both cases involve an overriding common question of fact, right to title, related to the same single property. Case No. CU001532 shall be the lead case. 

3.  CU0000634          Carla Marie Vieira vs. California Department of Transportation, et al.

The court re-adopts its previous tentative ruling that was issued for the hearing date of August 2, 2024.  It is restated below.

The July 3, 2024 motions of plaintiff Andrea Janecek and plaintiff Richard Knolle for reconsideration are DENIED.  If any party wishes to appear, they must advise the clerk’s office and all parties that argument is requested and the hearing will be continued to Tuesday, September 10, 2024, at 10:00 a.m. in Dept. 6.  If no party requests to appear, the court will adopt the tentative ruling as the final ruling effective September 6, 2024.

CCP section 1008(b) provides, “[a] party who originally made an application for an order which was refused in whole or part ... may make a subsequent application for the same order upon new or different facts, circumstances, or law” set forth in an accompanying affidavit.  (See Global Protein Products, Inc. v. Le (2019) 42 Cal.App.5th 352, 362.) In addition, a moving party must “show diligence with a satisfactory explanation for not presenting the new or different information earlier ....” (Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC (2015) 61 Cal.4th 830, 833.)   

The motions were timely filed.  That said, plaintiffs have failed to demonstrate that the denial letter to plaintiff Vieira, the public information at the Department of General Services related to attorneys, or the case of Wences v City of Los Angeles (2009) 177 Cal App 4th 305, are new facts, circumstances or law justifying reconsideration of the order granting summary judgment in favor of defendant.  The motions also do not sufficiently demonstrate why any such facts, circumstances, or law could not have been discovered earlier than plaintiffs discovered them.   

Even if the court were to reconsider its previous order, its ruling would be affirmed.  As held in the original order, the individual plaintiffs failed to submit a timely government tort claim and failed to submit an application to present a late government tort claim.  Moreover, defendant did fail to give notice of any insufficiency or defect as to the individual claims, because no proper claim was filed by plaintiffs in their individual capacities.  None of the new purported facts or law alters these conclusions.   

4.  CU0000663           Brian Kelley, et al. vs. Rebecca Aycock, et al.

Defendants’ July 29, 2024 motion to strike portions of plaintiff’s first amended complaint is DENIED.  If any party wishes to appear, they must advise the clerk’s office and all parties that argument is requested and the hearing will be continued to Tuesday, September 10, 2024, at 10:00 a.m. in Dept. 6.  If no party requests to appear, the court will adopt the tentative ruling as the final ruling effective September 6, 2024.

Meet and Confer Requirement

Preliminarily, Code of Civil Procedure section 435.5 requires the parties to meet and confer before incurring the time and expense of a motion to strike.  “As part of the meet and confer process, the moving party shall identify all of the specific allegations that it believes are subject to being stricken and identify with legal support the basis of the deficiencies. The party who filed the pleading shall provide legal support for its position that the pleading is legally sufficient, or, in the alternative, how the pleading could be amended to cure any legal insufficiency” (Id.). 

In the declarations supporting the motion and opposition, counsel do little more than point fingers at each other for not satisfying the requirement to meet and confer.  Counsel are admonished that the meet and confer requirement is just that, a requirement. 

Requests for Judicial Notice

Defendants’ July 29, 2024 request for judicial notice lacks merit and is denied.  Defendants’ August 29, 2024 amended request for judicial notice is untimely, lacks merit and is denied. 

Motion

A motion to strike lies either (1) to strike any “irrelevant, false or improper matter inserted in any pleading[,]” (Code Civ. Proc. § 436(a)); or (2) to strike any pleading or part thereof “not drawn or filed in conformity with the laws of this state, a court rule or order of court.”  (Code Civ. Proc. § 436(b)). As with demurrers, the grounds for a motion to strike must appear on the face of the pleading under attack.  (See Code Civ. Proc. § 437.)

A complaint requesting punitive damages must include “specific factual allegations showing that defendant's conduct was oppressive, fraudulent, or malicious” (Today's IV, Inc. v. Los Angeles County Metropolitan Transportation Authority (2022) 83 Cal.App.5th 1137, 1193.) 

Civil Code section 3294(a) authorizes the recovery of punitive damages in cases where the defendant has been guilty of oppression, fraud, or malice. “Malice” means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others. (Civil Code § 3294(c)(1) [italics added].) “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person's rights. (Civil Code § 3294(c)(2).)  Despicable conduct is conduct that is “so vile, base, contemptable, miserable, wretched or loathsome that it would be looked down upon and despised by most ordinary decent people.” (Pacific Gas & Electric v. Superior Court (2018) 24 Cal.App.5th 1150, 1159.)  A conscious disregard for the safety of others may constitute malice. (G. D. Searle & Co. v. Superior Court (1975) 49 Cal.App.3d 22, 28.)  “‘Conscious disregard’ means ‘that the defendant was aware of the probable dangerous consequences of his conduct, and that he willfully and deliberately failed to avoid those consequences…’ Put another way, the defendant must ‘have actual knowledge of the risk of harm it is creating and, in the face of that knowledge, fail to take steps it knows will reduce or eliminate the risk of harm.’” (Butte Fire Cases (2018) 24 Cal.App.5th 1150, 1159.)

The court, having carefully reviewed the operative complaint, concludes that the complaint includes sufficient, specific factual allegations to show that defendant Rebecca Aycock’s conduct was malicious for purposes of a claim for punitive damages.  (See FAC ¶¶ 1, 7, 17-18, 22-24).  The court further concludes that the complaint includes sufficient, specific factual allegations to show that defendant Paula Aycock’s conduct was malicious for purposes of a claim for punitive damages.  (See FAC ¶¶ 1, 7, 17-18, 22-24, 26-31).

5.  CU0001162           Miles Hagood vs. Harley-Davidson Motor Company, Inc.

On the court’s own motion, plaintiff’s July 24, 2024 motion to compel further responses to requests for production of documents is continued to October 4, 2024, at 10:00 a.m. in Dept. 6.  If any party wishes to appear, they must advise the clerk’s office and all parties that argument is requested and the hearing will be continued to Tuesday, September 10, 2024, at 10:00 a.m. in Dept. 6.  If no party requests to appear, the court will adopt the tentative ruling as the final ruling effective September 6, 2024.

6.  PR0000252            In the Matter of Ronald Louis Clark

Petitioner Debra McBrien’ June 6, 2024 motion for summary adjudication as to the first cause of action for rescission of the September 3, 2021 will is GRANTED.  If any party wishes to appear, they must advise the clerk’s office and all parties that argument is requested and the hearing will be continued to Tuesday, September 10, 2024, at 10:00 a.m. in Dept. 6.  If no party requests to appear, the court will adopt the tentative ruling as the final ruling effective September 6, 2024.

Requests for Judicial Notice

Petitioner’s June 6, 2024 unopposed request for judicial notice is granted in its entirety. 

Respondent’s August 8, 2024 unopposed request for judicial notice is granted in its entirety. 

Evidentiary Objections

Neither party submitted objections to the other party’s evidence. 

Standard of Review

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)  In analyzing motions for summary judgment, courts must apply a three-step analysis: (1) identify the issues framed by the pleadings to be addressed; (2) determine whether moving party showed facts justifying a judgment in movant's favor; and (3) determine whether the opposing party demonstrated the existence of a triable, material issue of fact. (See Sun v. City of Oakland (2008) 166 Cal.App.4th 1177, 1182-83; McGarry v. Sax (2008) 158 Cal.App.4th 983, 994; Hinesley v. Oakshade Town Center (2005) 135 Cal. App. 4th 289, 294.)

A plaintiff filing a motion for summary judgment must meet their burden of showing that there is no defense to a cause of action and that they moving party has proved each element required for that cause of action which would entitle them to judgment.  Once that burden is met, it then shifts to the defendant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.  The defendant may not rely upon the mere allegations or denials of its pleadings to show that a triable issue of material fact exists but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action or a defense thereto. (See Code Civ. Proc. 437c(p)(1).) 

A motion for summary judgement or summary adjudication is a proper and recognized mechanism for disposing of claims in probate court. (See Prob. Code section 1000; In re Goddard’s Estate (1958) 164 Cal App.2d 152.)  It may be utilized to rule as a matter of law whether a decedent had testamentary capacity such that a will should be invalidated.

Probate Code section 6100.5(a)(1)(c) provides, in pertinent part, “(a) An individual is not mentally competent to make a will if, at the time of making the will (1) the individual does not have sufficient mental capacity to be able to: …(c) remember and understand the individual's relations to living descendants, spouse, and parents, and those whose interests are affected by the will.”

In determining testamentary capacity, a court decides the question of whether, at the time the will is made, the testator has sufficient mental capacity to “remember, and understand his relations to, the persons who have claims upon his bounty and whose interests are affected by the provisions of the instrument." (Andersen v. Hunt (2011) 196 Cal.App.4th 722, 727).

Based on evidence submitted by both parties, it is undisputed that petitioner and decedent shared a mother but not a father, and that decedent, in fact, had three living siblings (petitioner Debra McBrien, Arthur Gallez, Jr., and Brenda Davis) at the time he executed the September 3, 2021 will in question.  (Indeed, in its order of February 22, 2024, the court determined that petitioner is the sister of decedent.)  This notwithstanding, decedent declared in the will that he was an only child and had no siblings.  The clear inference, thus, is that at the time of making his will, decedent did not remember or understand that he, in fact, had siblings.  Petitioner has met her burden of establishing that the decedent was not mentally competent to make a will because, at the time of the purported instrument, he did not remember or did not understand his relations to persons who had claims upon his bounty and whose interests were affected by the provisions of the will. 

Respondent argues that Mr. Clark was an only child because he had no siblings that shared both parents.  Per respondent: “The petitioner fails to distinguish between ‘only child’ status and nuclear family and extended or preliminary family unit thus the asser[tion] that Mr. Clark was incapable of understanding his family relations stand debunked.” (Opposition Memorandum at p. 3:22-24.)  Respondent’s argument is not persuasive.  The relevant provisions of the Probate Code do not render half-siblings (those who share only one parent) to be of lesser standing to siblings who share both parents. “[R]elatives of the halfblood inherit the same share they would inherit if they were of the whole blood.” (Prob. Code, § 6406.)

The burden shifted to respondent to show that a triable issue of one or more material facts existed as to the first cause of action or a defense thereto.  Respondent has failed to set forth any specific facts showing that a triable issue of material fact exists as to the cause of action.  As such, petitioner is entitled to summary adjudication as to that first cause of action solely. 

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These are the Court’s tentative rulings.  In order to argue at the hearing, you must notify the parties and, thereafter, notify the clerk’s office by email at OA@nccourt.net or by calling (530)362-4309 by 4:00 p.m. the court day prior to the date and time set for hearing.  If you do not so notify all other parties and the Court, the tentative ruling shall become the final ruling of the Court.  Any argument is limited to five (5) minutes per party, unless the Court determines additional argument time is needed.  See California Rule of Court 3.1308, Local Rule 4.05.3.

Personal appearances are permitted.  You may also appear via video by arranging a remote Zoom appearance at the time notice of request for oral argument is made by emailing: nccounter@nccourt.net

Unless the Court orders otherwise, the Court will not be able to provide court reporters for probate or civil law and motion hearings and does not provide court reporters for case management conferences.  Any litigant who wants a record of a law and motion matter or a case management conference must arrange for the presence of a court reporter at his or her expense.  See Local Rule 10.00.3 B.

FOR ALL LAW AND MOTION MATTERS, UNLESS OTHERWISE ORDERED, THE PREVAILING PARTY SHALL SUBMIT A FORMAL ORDER SETTING OUT VERBATIM THE TENTATIVE RULING ANNOUNCED HEREIN (OR THE ORDER OF THE COURT FOLLOWING ORAL ARGUMENT SHOULD IT DIFFER FROM THE TENTATIVE RULING) IN COMPLIANCE WITH CALIFORNIA RULE OF COURT 3.1312 AND SHALL, THEREAFTER, PREPARE, FILE AND SERVE NOTICE OF THE ORDER PURSUANT TO THE RULE OF COURT.