Tentative Rulings, Nevada City - Law and Motion

 

Tentative Ruling Case No. CU18-083096 Bumgarner v. Lake Wildwood Assoc. 

Petitioners Bumgarner and Maynards Motion for Reconsideration is denied.

"A motion for reconsideration may only be brought if the party moving for reconsideration can offer 'new or different facts, circumstances, or law' which it could not, with reasonable diligence, have discovered and produced at the time of the prior motion . . . . A motion for reconsideration will be denied absent a strong showing of diligence." Forrest v. State Of Cal. Dept. Of Corps. (2007) 150 Cal.App.4th 183, 202. See also Baldwin v. Home Sav. of Am. (1997) 59 Cal. App. 4th 1192, 1199 (noting that 1992 amendment to CCP 1008 tightened diligence requirements).

Here, Petitioners have failed to demonstrate that the purported new or different facts related to the adoption of the Code of Conduct could not, with reasonable diligence, have been discovered and produced at the time of the prior petition. Appropriate diligence has not been demonstrated and reconsideration is denied on this ground alone.

In addition or in the alternative, contrary to the argument of Petitioners, Respondent Lake Wildwood Association did not violate the requirements of Civil Code sections 4350, et seq. when it adopted the Code of Conduct. The Association has satisfied the requirements of Civil Code section 4350 with respect to the Code of Conduct and the court concludes that the Code of Conduct is a valid and enforceable rule. The operating rule change requirements of Civil Code section 4360 apply under only seven circumstances delineated in Civil Code section 4355(a), none of which are applicable to this case.

The court will not consider the 11 July 2019 declarations of Robert Bumgarner, Michael Thomas and Paul Towne in support of Petitioners reply, all of which were submitted without leave of the court and all of which are untimely.

Accordingly, the motion for reconsideration is denied.

Respondents attorney is to submit a formal order that sets out verbatim the tentative ruling herein and complies with California Rule of Court 3.1312, and is thereafter to prepare, file and serve notice of order.

This is the Courts tentative ruling. In order to argue at the hearing, you must notify the parties and thereafter notify the courts law and motion secretary at (530) 265-1380 by 4:00 p.m. the court day before the hearing. If you do not so notify the parties and court, the tentative ruling shall become the final ruling. Any argument is limited to five minutes. California Rule of Court 3.1308, Local Rule 4.05.3.

Unless the court orders otherwise, the court does not provide court reporters for civil law and motion hearings and case management conferences at the court's expense. 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. Local Rule 10.00.3B.

YOU MAY SCHEDULE A TELEPHONIC APPEARANCE (AT LEAST TWO COURT DAYS PRIOR TO HEARING) USING VCOURT AT THE FOLLOWING INTERNET SITE: http://nccourt.net/onlinesvcs/vcourt.shtml


Tentative Ruling: Case No. CU18-083066 Rosemary Vannberg v. Williams et al. and Case No. CU18-083067 Darci Vannberg v. Williams et al. July 19, 2019, at 11:00 am in Dept. 6. 

This tentative ruling is issued by Judge Thomas M. Anderson. If oral argument is requested, such oral argument shall be heard on Friday, July 19, 2019, at 11:00 a.m. in Dept. 6.

Motions for New Trial

Plaintiff Rosemary Vannberg and Plaintiff Darci Vannbergs Motions for New Trial as they relate to the attorneys fees orders are denied.

Code of Civil Procedure Section 657 permits a full or partial new trial on various grounds quoted below:

1. Irregularity in the proceedings of the court, jury or adverse party, or any order of the court or abuse of discretion by which either party was prevented from having a fair trial.

2. Misconduct of the jury; and whenever any one or more of the jurors have been induced to assent to any general or special verdict, or to a finding on any question submitted to them by the court, by a resort to the determination of chance, such misconduct may be proved by the affidavit of any one of the jurors.

3. Accident or surprise, which ordinary prudence could not have guarded against.

4. Newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial.

5. Excessive or inadequate damages.

6. Insufficiency of the evidence to justify the verdict or other decision, or the verdict or other decision is against law.

7. Error in law, occurring at the trial and excepted to by the party making the application.

Oakland Raiders v. National Football League (2007) 41 Cal.4th 624, 633 (listing the statutory grounds for new trial).

By these motions, Plaintiffs rely on subsections (1), (6), and (7).
Plaintiffs allege the courts ruling was incomplete, the court improper did not have sufficient information about billing, mis-applied the controlling law, and because Defendant was not billed for the services, the fees should not have been permitted.

However, the motion appears to re-argue the same contentions made in the opposition to the motions for fees. The motion is merely a disagreement with the prior rulings.

As for Plaintiffs arguments that the motion for attorneys fees was not timely filed, such arguments are without merit. CRC 8.104 provides that the time begins to run from Notice of Entry of Judgment. The 12/28/18 document referenced by Plaintiffs is a Notice of Entry of Order. It is not the Judgment, nor a Notice of Entry of Judgment. Judgment in this case was not even filed until 4-3-19, well after the motion for fees was filed. Thus, the motions for attorneys fees were not untimely filed.

Accordingly, the motions for new trial are denied.

Motions to Correct Clerical Errors

Plaintiff Rosemary Vannberg and Plaintiff Darci Vannbergs Stipulated Motions to Correct Clerical Errors are granted as prayed. Plaintiffs may submit new, corrected judgments for the Court to sign.

Motion to Quash

Defendant Williams Motion for Protective Order is denied.

The filing of an anti-slapp motion stays discovery. On October 12, 2018, this court permitted limited discovery allowing a deposition up to 4 hours only so as to address the arguments in the anti-slapp motion. Because this discovery was limited to the arguments in the anti-slapp motion, the one-deposition rule cannot be used to later disallow a further deposition. Thus, the court finds good cause to allow more than one deposition under CCP 2025.610(b).

Defendants attorney is to submit a formal order that sets out verbatim the tentative ruling herein and complies with California Rule of Court 3.1312 and is thereafter to prepare, file and serve notice of order.

This is the Courts tentative ruling. In order to argue at the hearing, you must notify the parties and thereafter notify the courts law and motion secretary at (530) 265-1380 by 4:00 p.m. the court day before the hearing. If you do not so notify the parties and court, the tentative ruling shall become the final ruling. Any argument is limited to five minutes. California Rule of Court 3.1308, Local Rule 4.05.3.

Unless the court orders otherwise, the court does not provide court reporters for civil law and motion hearings and case management conferences at the court's expense. 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. Local Rule 10.00.3B.

YOU MAY SCHEDULE A TELEPHONIC APPEARANCE (AT LEAST TWO COURT DAYS PRIOR TO HEARING) USING VCOURT AT THE FOLLOWING INTERNET SITE: http://nccourt.net/onlinesvcs/vcourt.shtml


Tentative Ruling Case No. CU18-082709 Smith v. Nguyen 7/19/19 at 9:00 a.m. Dept. 6 

Plaintiffs motion for reconsideration is denied.

Firstly, there is no proof of service of the motion for reconsideration on Defendant in the courts file.

Secondly, the motion was untimely filed. Motions for reconsideration must be filed within 10 days of the ruling. See CCP 1008. Here, the summary judgment ruling was filed and served by mail on May 28, 2019. The last date for filing the present motion was June 12, 2019 (ten days after May 28, with five additional days for mail service). The instant motion was not filed until June 14, 2019.

Thirdly, while Plaintiffs counsel alleges attorney mistake, Plaintiffs counsel does not rely on CCP 473. Rather, the motion is based solely on CCP 1008. "A motion for reconsideration [under s CCP 1008] may only be brought if the party moving for reconsideration can offer 'new or different facts, circumstances, or law' which it could not, with reasonable diligence, have discovered and produced at the time of the prior motion . . . . A motion for reconsideration will be denied absent a strong showing of diligence." Forrest v. State of Cal. Dept. Of Corps. (2007) 150 Cal.App.4th 183, 202. See also Baldwin v. Home Sav. of Am. (1997) 59 Cal. App. 4th 1192, 1199 (noting that 1992 amendment to CCP 1008 tightened diligence requirements). Here, Plaintiff has not shown that there exist any new or different facts not available at the time of the hearing. As such, the requirements of CCP 1008 have not been met.

For all of the foregoing reasons, the motion for reconsideration is denied.

Moving partys attorney is to submit a formal order that sets out verbatim the tentative ruling herein and complies with California Rule of Court 3.1312, and is thereafter to prepare, file and serve notice of order.

This is the Courts tentative ruling. In order to argue at the hearing, you must notify the parties and thereafter notify the courts law and motion secretary at (530) 265-1380 by 4:00 p.m. the court day before the hearing. If you do not so notify the parties and court, the tentative ruling shall become the final ruling.
Any argument is limited to five minutes. California Rule of Court 3.1308, Local Rule 4.05.3.

Unless the court orders otherwise, the court does not provide court reporters for civil law and motion hearings and case management conferences at the court's expense. 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. Local Rule 10.00.3B.

YOU MAY SCHEDULE A TELEPHONIC APPEARANCE (AT LEAST TWO COURT DAYS PRIOR TO HEARING) USING VCOURT AT THE FOLLOWING INTERNET SITE: http://nccourt.net/onlinesvcs/vcourt.shtml


Tentative Ruling Case No. CU16-081890 Van Fossen v. Klement July 19, 2019 11:00 a.m. Dept. 6 

This tentative ruling is issued by Judge Thomas Anderson. If oral argument is requested, such oral argument shall be heard on Friday, July 19, 2019, at 11:00 a.m. in Dept. 6.

Defendants Motion for Reconsideration is denied. The Motion for Clarification is granted as follows:

As to the motion for reconsideration, there are no new facts or law to support reconsideration. Thus, the motion for reconsideration is denied.

As for clarification, this courts 5-8-19 was quite clear. However, to be more expansive: No funds that are located in Mr. Bells client trust account shall be distributed until the property at Little Valley Road is also sold and the court is made aware of all funds that are to be distributed. If there are any business loans that are recorded against the real property at Little Valley Road, such loans shall be paid from escrow from the sale of Little Valley Road. To the extent any business loans are not recorded against the real property, the loans are to be paid by the signer/guarantors of the loan(s). The order that all referee fees be paid by Defendants share is clear. These referee fees are in addition to Mr. Laws permitted real estate commissions.

The request to re-open trial is denied. The request to lower the listing price of Little Valley Road is denied. Mr. Law shall decide the proper listing price, as stated in this courts 6-26-18 order.

Moving partys attorney is to submit a formal order that sets out verbatim the tentative ruling herein and complies with California Rule of Court 3.1312 and is thereafter to prepare, file and serve notice of order.

This is the Courts tentative ruling. In order to argue at the hearing, you must notify the parties and thereafter notify the courts law and motion secretary at (530) 265-1380 by 4:00 p.m. the court day before the hearing. If you do not so notify the parties and court, the tentative ruling shall become the final ruling.
Any argument is limited to five minutes. California Rule of Court 3.1308, Local Rule 4.05.3.

Unless the court orders otherwise, the court does not provide court reporters for civil law and motion hearings and case management conferences at the court's expense. 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. Local Rule 10.00.3B.


Tentative Ruling:Case No.CL19-083593 Golden Empire v. Tringale 7/19/19 at 9:00 a.m. Dept. 6 

Defendant Tringales Demurrer is sustained with leave to amend.

As an initial matter, the court notes that Defendant failed to file the declaration stating that the parties met and conferred prior to filing the demurrer as required by CCP 430.41.

On the merits, Plaintiff has failed to allege whether the contract is oral or written and failed to recite the terms verbatim or attach a copy of any written agreement. In addition, Plaintiff must allege facts to demonstrate that the claim is not barred by the applicable statutes of limitation.

Any amended complaint shall be served and filed by July 29, 2019.

Moving partys attorney is to submit a formal order that sets out verbatim the tentative ruling herein and complies with California Rule of Court 3.1312, and is thereafter to prepare, file and serve notice of order.

This is the Courts tentative ruling. In order to argue at the hearing, you must notify the parties and thereafter notify the courts law and motion secretary at (530) 265-1380 by 4:00 p.m. the court day before the hearing. If you do not so notify the parties and court, the tentative ruling shall become the final ruling. Any argument is limited to five minutes. California Rule of Court 3.1308, Local Rule 4.05.3.

Unless the court orders otherwise, the court does not provide court reporters for civil law and motion hearings and case management conferences at the court's expense. 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. Local Rule 10.00.3B.

YOU MAY SCHEDULE A TELEPHONIC APPEARANCE (AT LEAST TWO COURT DAYS PRIOR TO HEARING) USING VCOURT AT THE FOLLOWING INTERNET SITE: http://nccourt.net/onlinesvcs/vcourt.shtml


Tentative Ruling Case No. CU18-083398 Madrigal v. Lagerwey July 19, 2019 at 9:00 a.m. Dept. 6 

Cross-Defendant Lincoln Nationals Demurrer to the Cross-Complaint is dropped at its request given the pendency of a request for dismissal as to that defendant.

Because there is but one complaint in a civil action . . ., the filing of an amended complaint moots a motion directed to a prior complaint. State Compensation Ins. Fund v. Superior Court (2010) 184 Cal.App.4th 1124, 1131.

Cross-Complainant Lagerwey filed a First Amended Cross-Complaint on 19 June 2019. Accordingly, Cross-Defendant Kincades Demurrer to the Cross-Complaint, and Cross-Defendants Hawkins, Cosick, and Madrigals Motions to Strike the Cross-Complaint are all denied, without prejudice, as moot.

Any argument is limited to five minutes.California Rule of Court 3.1308, Local Rule 4.05.3.

Unless the court orders otherwise, the court does not provide court reporters for civil law and motion hearings and case management conferences at the court's expense. 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. Local Rule 10.00.3B.

YOU MAY SCHEDULE A TELEPHONIC APPEARANCE (AT LEAST TWO COURT DAYS PRIOR TO HEARING) USING VCOURT AT THE FOLLOWING INTERNET SITE: http://nccourt.net/onlinesvcs/vcourt.shtml


Tentative Ruling Case No. UD 19-00084 Grass Valley MHP v. Brokaw 7/19/19 at 9:00 a.m. Dept. 6 

Defendants unopposed Motion to Set Aside Default is granted.

The court finds excusable neglect and that Defendant was diligent in filing the present motion. See CCP 473.

The proposed Answer must be served and filed by July 22, 2019.

Moving partys attorney is to submit a formal order that sets out verbatim the tentative ruling herein and complies with California Rule of Court 3.1312, and is thereafter to prepare, file and serve notice of order.

This is the Courts tentative ruling. In order to argue at the hearing, you must notify the parties and thereafter notify the courts law and motion secretary at (530) 265-1380 by 4:00 p.m. the court day before the hearing. If you do not so notify the parties and court, the tentative ruling shall become the final ruling. Any argument is limited to five minutes. California Rule of Court 3.1308, Local Rule 4.05.3.

Unless the court orders otherwise, the court does not provide court reporters for civil law and motion hearings and case management conferences at the court's expense. 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. Local Rule 10.00.3B.

YOU MAY SCHEDULE A TELEPHONIC APPEARANCE (AT LEAST TWO COURT DAYS PRIOR TO HEARING) USING VCOURT AT THE FOLLOWING INTERNET SITE: http://nccourt.net/onlinesvcs/vcourt.shtml


Tentative Ruling: Case No. CU19-083808 Law v. Metz July 19, 2019, at 10:00 a.m. in Dept. 6. 

This tentative ruling is issued by Pro Tem Judge Angela L. Bradrick. If oral argument is requested, such oral argument shall be heard on Friday, July 19, 2019, at 10:00 a.m. in Dept. 6.

Mr. Metz Motion for Reconsideration of the Civil Harassment Restraining Order is denied.

First, the proof of service showing that the motion was served is improperly completed. Paragraph 2 of the proof of personal service does not state whom was served with the motion.

Secondly, "[a] motion for reconsideration may only be brought if the party moving for reconsideration can offer 'new or different facts, circumstances, or law' which it could not, with reasonable diligence, have discovered and produced at the time of the prior motion.... A motion for reconsideration will be denied absent a strong showing of diligence." Forrest v. State Of Cal. Dept. Of Corps. (2007) 150 Cal.App.4th 183, 202. See also Baldwin v. Home Sav. of Am. (1997) 59 Cal. App. 4th 1192, 1199 (noting that 1992 amendment to CCP 1008 tightened diligence requirements).

Disagreement with a ruling is not a new fact that will support the granting of a motion for reconsideration. Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.

Here, Defendant only disagrees with the courts ruling. This is insufficient grounds for reconsideration. Moreover, Defendants own admissions during trial relating to his charging at Plaintiff despite knowledge of the temporary restraining order and Mr. Metzs repeated visits to Mr. Laws home despite being asked not to go there, were grounds for the issuance of the order. The emails and letters to the neighbors were not the primary grounds upon which to grant the three year restraining order.

Therefore, the motion for reconsideration is denied.

Moving partys attorney is to submit a formal order that sets out verbatim the tentative ruling herein and complies with California Rule of Court 3.1312, and is thereafter to prepare, file and serve notice of order.

This is the Courts tentative ruling. In order to argue at the hearing, you must notify the parties and thereafter notify the courts law and motion secretary at (530) 265-1380 by 4:00 p.m. the court day before the hearing. If you do not so notify the parties and court, the tentative ruling shall become the final ruling.
Any argument is limited to five minutes. California Rule of Court 3.1308, Local Rule 4.05.3.

Unless the court orders otherwise, the court does not provide court reporters for civil law and motion hearings and case management conferences at the court's expense. 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. Local Rule 10.00.3B.

YOU MAY SCHEDULE A TELEPHONIC APPEARANCE (AT LEAST TWO COURT DAYS PRIOR TO HEARING) USING VCOURT AT THE FOLLOWING INTERNET SITE: http://nccourt.net/onlinesvcs/vcourt.shtml