Tentative Rulings, Nevada City - Law and Motion

 

Case No. CU17-082346, Chalmers v. Nationstar, 7/21/2017 

Plaintiffs OSC re Preliminary Injunction is denied.

First, this request is denied on procedural grounds. The court has only been provided with a proof of service on Defendant Nationstar. There is no proof of service of the summons, complaint, ex parte application, TRO, or OSC on two of the defendants: NRZ and Residential Investment. Additionally, a First Amended Complaint was filed and there is no proof of service of that document on Defendants Quality Loan, NRZ or Residential Investment. Thus, the OSC is denied on procedural grounds.

Secondly, the OSC is denied on substantive grounds. Plaintiff alleges that her loan modification was improperly denied based on erroneous calculations of her income. However, Plaintiff does not allege an error in the foreclosure process. Rather, Plaintiff dislikes the result of the underwriting process.

The law is clear that Plaintiff is not entitled to a modification just because an application was submitted. Calculations under the Home Affordable Modification Program (HAMP), involve assigning values to certain variables that are largely within servicers' discretion, such that there is no entitlement to loan modifications. Williams v. Geithner (D.Minn. 2009) 2009 WL 3757380, 6.

Moreover, it appears that Plaintiff does not have standing to pursue this lawsuit as she is no longer owner of the property in question. The court grants Defendants request for judicial notice in its entirety and specifically references Exhibit H, wherein Plaintiff granted her interest in the property to Chabot Enterprises Inc. Not only does Plaintiff not have standing, but indispensable parties have not been named.

Thus, the OSC is denied. Plaintiff has failed to demonstrate a probable validity of prevailing on the merits.


The TRO issued on June 21, 2017 is hereby vacated.

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.


Case No,. CU17-082183, Cross v. Schisler, 7/21/2017 

Defendants Integrated Consulting and Meltons Motion to Quash Service of Summons for Lack of Personal Jurisdiction is continued on the courts own motion to September 1, 2017, at 10:00 am in Dept. 6.

The court determines that unless Plaintiff can demonstrate that Defendant Michal was an agent of Defendants Integrated Consulting and Melton, that insufficient minimum contacts with the state of California have been shown.

Thus, this court hereby allows discovery related to the sole issue of jurisdiction, specifically whether Defendant Michal was an agent of the moving defendants.

Plaintiff shall file and serve any additional pleadings and/or declarations relating to agency and jurisdiction by August 21, 2017.

Defendants may file any additional pleadings and/or declarations in response to Plaintiffs filing by August 28, 2017.

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.


Case No. CU17-082069, Coleman v. Booker, 7/21/2017 

Appearances are required for hearing on Defendant Carla Bookers Motion to Compel Compliance with Defendants Request for Inspection of Land & Sanctions.

Plaintiff is ordered to provide a copy of the Notice given on April 14, 2017, by counsel for the realtor-defendants relating to the already completed inspection.

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.


Case No. CU17-082091, Snell v. Cookson & Bowman Ins., 7/21/2017 

Defendants Demurrer to the First Amended Complaint is overruled.

As to the third cause of action, the court finds that Plaintiff has not pled negligent false promise. Rather, the complaint alleges that Defendants stated that adequate coverage was, in fact, obtained. See paragraph 13. Further, the court finds that the claim is pled with adequate specificity. See paragraphs 9-11 and 21-22.

As to the fourth cause of action, the court finds that Plaintiff has alleged a duty above reasonableness by pleading a misrepresentation as to the nature and scope of the coverage. See Fitzpatrick v. Hayes (1997) 57 Cal.App.4th 916, 927.

Defendants Motion to strike the prayer for punitive and exemplary damages is denied. Fraud, oppression or malice has been adequately alleged. Defendants unopposed Motion to Strike the request for attorneys fees is granted. Plaintiff failed to plead contractual or statutory support for such request.

Any Answer must be served and filed by July 31, 2017.

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.


Case No. CU17-082050, Swift v. Google, 7/21/2017 

Plaintiffs Motion for Leave to File Second Amended Complaint is denied.

A court can deny a motion for leave to amend based on the objectionable subject matter of the amendment, the conduct of the moving party, or the belated presentation of the amendment. Roemer v. Retail Credit (1975) 44 Cal.App.3d 926, 939.

When a trial court denies leave to amend, the decision has been upheld on grounds such as the fact that the amendment contained objectionable subject matter or because of the conduct of the moving party or belated presentation of the amendment. Atkinson v. Elk Corp. (2003) 109 Cal. App. 4th 739, 759.

In moving for leave to amend a pleading, moving parties must explain inconsistencies between the prior and proposed pleadings. Oakland Raiders v. National Football League (2005) 131 Cal. App. 4th 621, 653.

Here, the proposed amendment contains objectionable subject matter. Plaintiff makes absurd allegations about Google employees behavior without any objective allegations that the named individuals were agents of Google or acted with permission of the corporate defendant.

Additionally, the amendment is being presented belatedly. At no time does Plaintiff cite to CCP 473(b) to explain his delay in filing the motion for leave to amend prior to the courts deadline of May 22, 2017. Such ex parte application was filed on June 5, 2017, well after the courts deadline.

Further, Plaintiff has failed to explain the inconsistencies between the prior and the proposed pleading. In prior pleadings, Plaintiff alleges an individual named Gregg Williams merely used a Google map to access Plaintiffs property. But, Plaintiff now alleges that Mr. Williams shot at him and so did a Google employee. There are additional inconsistencies relating to marijuana grows and messes made on the property.

Accordingly, the motion for leave to amend is denied.

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.


Case No. TO15-002008, People v. Jones, 7/21/2017 

Real Parties in Interest Paul Jones, Grayson Jones, and Jacolyn Jones Motion for Terminating Sanctions is denied.

CCP 2023.030 provides, in pertinent part, To the extent authorized by the chapter governing any particular discovery method or any other provision of this title, the court, after notice to any affected party, person, or attorney, and after opportunity for hearing, may impose the following sanctions against anyone engaging in conduct that is a misuse of the discovery process: (d) The court may impose a terminating sanction by one of the following orders: (3) An order dismissing the action, or any part of the action, of that party.

A prerequisite to the imposition of a dismissal sanction is that a party has willfully failed to comply with a court order.  Laguna Auto Body v. Farmers Ins. Exchange (App. 4 Dist. 1991) 231 Cal.App.3d 481.

Rather than decide the facts with respect to the intentional destruction of evidence and impose a nonmonetary sanction on a pretrial motion in circumstances not contemplated by the discovery statutes, we believe that in most cases of purported spoliation the facts should be decided and any appropriate inference should be made by the trier of fact after a full hearing at trial. New Albertsons, Inc. v. Sup. Ct. (2008) 168 Cal.App.4th 1403, 1431.

Here, there was no court order to produce the money and no showing of a willful destruction or spoliation of the evidence at this juncture. Thus, it is premature to grant terminating sanctions at this juncture.

However, Real Parties alternative Motion for Issue Sanctions is granted. The court hereby orders the following issue sanctions:

The lawful source of the currency was the Real Parties herein; the currency was not contaminated by a controlled substance; and Petitioner is prohibited from pursing the theory of forfeiture articulated in paragraph V of the petition.

The inability of the Real Parties to test the seized currency for controlled substance contamination and to analyze and argue the serial numbers reliance is paramount.

Real Parties Motion for Jury Instructions is denied as moot. As this court has made the above order relating to the issue sanctions, the requested instruction is no longer necessary.






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.


Case No, CU17-82083, Mullican v. Butler, 7/21/2017 

Defendants Motion to Set Aside Default is denied.

First, there is no proof of service of the motion on Plaintiff as required by CCP 1005(b).

Secondly, on the merits, Code of Civil Procedure section 473(b) provides: "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....

The question of whether a mistake of law is excusable neglect is a question of fact, based on being reasonable as to the misconception, and justified in not knowing the correct law, as contrasted with ignorance of the law and negligence in learning it. Ron Burns Const. Co., Inc. v. Moore (2010) 184 Cal.App.4th 1406, 1414.

Here, Defendant was served with the Summons which clearly provides that Defendant had 30 calendar days to respond. The court finds Defendants mistake to not be reasaonable. Thus, the motion is denied on both procedural and substantive grounds.

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.


Case No. CU17-82211, Husak v. Anchor Roofing, 7/21/2017 

Defendant Versicos Demurrer to the Complaint is sustained with leave to amend in part and overruled in part.

As to the arguments relating to statutes of limitations, although Plaintiff argues in the opposition that the discovery rule tolls the statutes of limitation, no such allegations are clearly set forth in the complaint. Thus, Plaintiff is granted leave to amend to set forth such allegations, if appropriate.

The demurrer is overruled as to the argument relating to patent defects. The court cannot determine as a matter of law at the pleading stage that the defects alleged are patent or latent.

As to the 2nd c/a for negligence, the demurrer is sustained with leave to amend. The complaint does not set forth any allegations that Versico had a duty to perform. While Plaintiff argues in the opposition that such duty may be inferred from the pleading, the court grants leave to amend to clearly set forth the required element of duty.

As to the 3rd c/a for breach of implied warranty, the demurrer is sustained with leave to amend. Plaintiff must clearly allege that it was a purchaser of the product in question. Civil Code 1794(a).

As to the 3rd party contract argument, the demurrer is sustained with leave to amend. Plaintiffs do not allege a written contract between Versico and Anchor and there is no allegation that Verisco breached that agreement with Anchor.

Any amended complaint must be served and filed by July 31, 2017.

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.