Tentative Rulings, Nevada City - Law and Motion

 

Case No. CU15-081089, Love v. Green Tree Servicing, 1/19/2018 

Defendant Green Trees unopposed Motion for Judgment on the Pleadings as to Plaintiff Karen Love is granted.

Defendants Requests for Judicial Notice are granted in their entirety.

The grounds for a motion for judgment on the pleadings must appear on the face of the complaint or from a matter of which the court may take judicial notice. Richardson-Tunnell v. School Ins. Program for Employees (2007) 157 Cal.App. 4th 1056, 1061. Accord Bufil v. Dollar Financial Group, Inc. (2008) 162 Cal.App.4th 1193, 1202; Saltarelli & Steponovich v. Douglas (1995) 40 Cal.App.4th 1, 5; Weil & Brown, Civ. Pro. Before Trial (The Rutter Group 2012) 7:292.

In considering a motion for judgment on the pleadings, courts consider whether properly pled factual allegations, assumed to be true and liberally construed, are sufficient to constitute a cause of action. Stone Street Capital, LLC v. Cal. State Lottery Com'n (2008) 165 Cal.App.4th 109, 116; Fire Ins. Exchange v. Sup. Ct. (2004) 116 Cal. App. 4th 446, 452-53.

In the present case, Plaintiff Karen Love is not a signatory to the loan. Additionally, she had no ownership interest in the property at the time the causes of action arose. Thus, she has no standing to assert any of the claims in the Second Amended Complaint.

The burden is on the complainant to show the court that a pleading can be amended successfully, in order to obtain an order allowing leave to amend. McKenney v. Purepac Pharmaceutical Co. (2008) 167 Cal.App.4th 72, 78; Weil & Brown, Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group 2010), 7:130 (citing Goodman v. Kennedy (1976) 18 Cal.3d 335, 349). Because plaintiff has failed to show the court that the pleading can be amended successfully, leave to amend is denied.


Defendant Green Trees 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. CU15-081082, Kilroy v. Pettis, 1/19/2018 

Plaintiffs Motion for New Trial is denied.

New trials shall not be granted unless moving parties show a reasonable probability that a more favorable result could have been obtained, were it not for an error. Winfred D. v. Michelin No. Amer., Inc. (2008) 165 Cal.App.4th 1011, 1038.

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).

A new trial shall not be granted upon the ground of insufficiency of the evidence to justify the verdict or other decision, nor upon the ground of excessive or inadequate damages, unless after weighing the evidence the court is convinced from the entire record, including reasonable inferences therefrom, that the court or jury clearly should have reached a different verdict or decision. CCP 657.

Here, the court finds no miscarriage of justice or irregularity of the proceedings relating to the motion for non-suit as to conversion. Plaintiff Kilroy testified clearly that there was never any type of interference, prevention, or hindrance that deprived him of his possession of the excavator. Thus, the element of interference was not shown.

Additionally, the verdict was not against the law and there sufficient evidence to justify the jurys verdict. Plaintiff failed to carry his burden of proof in demonstrating that the P road was a bargained for contract or within the scope of what Traylor was asked to do.

Therefore, the motion for new trial 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) 265-1273 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. CU17-082663, Warren v. O'Dea, 1/19/2018 

Plaintiffs counsels Motion to be Relieved as Counsel is denied without prejudice. There is no proof of service on client in the courts file.

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. CU14-080886, Berman v. HSBC Bank, 1/19/2018 

Defendant HSBCs Demurrer to the Third Amended Complaint is overruled.

Defendants Request for Judicial Notice is granted.

As to the judicial estoppel argument, Plaintiff listed this exact court case in his Schedule of Assets, Form 107 page 4. Thus, this argument is without merit.

As to the corrected and remedied argument, Defendant did not remedy the issue prior to the recordation of the initial trustees deed upon sale. Thus, Plaintiff may be entitled to statutory damages. This argument fails.

Any Answer must be filed and served by January 29, 2018.

Plaintiffs 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. CU17-082184, TBF Financial v. Offerings Wholesale, 1/19/2018 

Plaintiffs unopposed Motion for Summary Judgment is granted as prayed.

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. 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. 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.

The court finds that plaintiff has met its burden of persuasion that all elements of each cause of action can be established. See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.

Defendants have not opposed this motion. Without a separate statement of undisputed facts with references to supporting evidence it is impossible to demonstrate the existence of disputed facts. Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 115.

Therefore, Plaintiff is entitled to summary judgment.

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.