Tentative Rulings, Truckee - Law and Motion

 

Jones v. Powdr Corp. Case No. TCU19-7248 

Superior Court of Nevada County
Tentative Ruling
Truckee Branch


Defendant Ohrans Demurrer to Complaint is sustained with leave to amend.

Civil Code section 2238 states, unless required by or under the authority of law to employer that particular agent, a principal is responsible to third persons for the negligence of his agent in the transaction of the business of the agency, including wrongful acts committed by such agent in and as part of the transaction of such business This statue confirms that it is the principal, not to the agent, who is responsible and who has the duty to third persons. The law is clear that in California, an agent is not liable to third persons for allegedly nonfeasance. Fisher v. General Petroleum (1954) 123 Cal.App.2d 770.

Plaintiff has alleged that defendant Ohran is an agent of defendants Powdr and Boreal. As such, she has no individual liability as an agent; rather, it is the principal that is liable for nonfeasance.

Plaintiffs reliance on Peredia v. HR Mobile Services (2018) 25 Cal.App.5th 680, 692-693 is misplaced. That case says: This appeal addresses the circumstances under which a safety consultant retained by a California employer owes a duty of care to the employers workers. Such facts are not analogous to the facts as alleged in this complaint.

Thus, the demurrer is sustained. Leave to amend is granted in the event Plaintiff can plead facts to support affirmative misfeasance by defendant Ohran.

Any amended complaint must be served and filed by June 20, 2019.

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) 582-7835 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


Cuvelier v. Witte Case No. TCU18-7057 

Superior Court of Nevada County
Tentative Ruling
Truckee Branch


Plaintiffs Stipulation Motion for Relief from Waiver of Jury Trial is granted.

CCP 631(g) provides: The court may, in its discretion upon just terms, allow a trial by jury although there may have been a waiver of a trial by jury.

Here, it appears that Plaintiffs counsel inadvertently failed to timely pay jury fees. As the present motion is stipulated to by Defendant and there is no prejudice to either party, the motion is granted.

Plaintiffs counsel shall submit the required jury fee deposit by June 20, 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) 582-7835 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


Warren v. Glenshire Residents Assoc. Case No. TCU18-7184 

Superior Court of Nevada County
Tentative Ruling
Truckee Branch


Cross-Defendant Warrens Anti-Slapp Motion is denied.

Moving parties have the initial burden to demonstrate that a cause of action is subject to a special motion to strike. Martinez v. Metabolife Inter. Ins. (2003) 113 Cal.App.4th 181, 186; Fox Searchlight Pictures Inc. v. Paladino (2001) 89 Cal.App.4th 294, 304. Specifically, courts decide whether moving parties have made a prima facie showing that the attacked claims arise from a protected activity, including defendants right of petition, or free speech, under a constitution, in connection with issues of public interest. Healy v. Tuscany Hills Landscape & Recreation Corp., (2006) 137 Cal. App. 4th 1, 5; Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 278; Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 671; Quinlon Ent. v. Consumer Cause (2002) 29 Cal.4th 53, 67; Gov. Gray Davis Committee v. Amer. Taxpayers Alliance (2002) 102 Cal.App.4th 449, 458-59; Weil & Brown, Cal. Prac. Guide: Civ. Pro Before Trial (The Rutter Group 2012) 7:244.1; CCP 425.16(e).

Here, cross-defendant has failed to demonstrate that each cause of action arise from Warrens protected activity.

Specifically, as to the conversion and breach of fiduciary duty causes of action, there are no allegations whatsoever set forth in the cross-complaint that the improperly applied comp time related to any right of petition, free speech, or has any public interest. In fact, the motion states only that this cause of action is based on a malicious lie. This is not a prima facie showing of a protected activity.

As to the causes of action for intentional misrepresentation and negligent misrepresentation, the cross-complaint does not allege that statements relating to whether or not the board meetings needed to be open or closed occurred during an open board meeting. Rather, this appears to be a private conversation between Pres. Pam stock and cross-defendant Warren. Thus, again, cross-defendant fails to show any protected activity whatsoever.

As to the cause of action for extortion, cross-defendant has failed to demonstrate that his statements were made in a public forum. In fact, the opposite is alleged. It is stated that these statements were set forth in a closed forum, not open to the public. Thus, this cause of action does not arise from any protected activity.

Moreover, even if this court were to find that each of the causes of action arise from conduct by cross-defendant during a protected activity, cross-defendant has failed to demonstrate that Glenshire cannot prevail on its claims.

A prevailing defendant as to a special motion to strike is entitled to mandatory, reasonable attorney fees and costs. Ketchum v. Moses (2001) 24 Cal.4th 1122, 1141 -1142; CCP 425.16(c); Weil & Brown, Cal. Prac. Guide: Civ. Pro Before Trial (The Rutter Group 2012) 7:259.

The attorneys fees and costs recoverable are only those incurred as to the special motion to strike, and not as to other litigation events. Lafayette Morehouse, Inc. v. Chronicle Pub. Co. (1995) 39 Cal.App.4th 1379, 1383; Weil & Brown, Civ. Pro. Before Trial (The Rutter Group 2012) 7:261.

Here, the court finds that Glenshires request for attorneys fees as it relates to opposing this meritless motion at 15 hours at $250 per hour is reasonable. Thus, the court awards attorneys fees to cross-complainant in the amount of $3,750.

Glenshires 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) 582-7835 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


Hilton v. Hung Case No. TCU17-6849 

Superior Court of Nevada County
Tentative Ruling
Truckee Branch


Defendants Stipulated Motion to Continue the Mandatory Settlement Conference date is granted in part.

The MSC currently set for 6/14/19 is hereby vacated. However, the proposed date of 6/28/19 is not available with the court. The court notes that June 21 and July 12 are both available with the court. Parties are directed to meet and confer prior to hearing and then are ordered appear to choose a new date. Telephonic appearances are permitted.

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


Gogolewski v. Van Leuven Case No. TCU18-7106 

Superior Court of Nevada County
Tentative Ruling
Truckee Branch


Plaintiffs unopposed Motion to Strike Defendants General Denial is granted.

Where a party willfully disobeys a discovery order, courts have discretion to impose terminating, issue, evidence or monetary sanctions. E.g., CCP 2023.010(g), 2030.290(c); R.S. Creative, Inc. v. Creative Cotton, Ltd. (1999) 75 Cal.App.4th 486, 495; Weil & Brown, Cal. Practice Guide: Civ. Pro. Before Trial (The Rutter Group 2012) 8:1203.

A trial court has broad discretion to impose discovery sanctions, but two facts are generally prerequisite to the imposition of nonmonetary sanctions.: (1) absent unusual circumstances, there must be a failure to comply with a court order, and (2) the failure must be willful. Biles v. Exxon Mobil Corp. (2004) 124 Cal. App. 4th 1315, 1327.

Here, Defendant has ignored the court Order requiring him to submit to a deposition before April 8, 2019, and has disregarded the Amended Notice of Taking Deposition. Thus terminating sanctions are warranted.

Defendants General Denial filed 10/5/18 is hereby stricken. Plaintiff may enter Defendants default.

The currently set MSC, PTC, and trial dates are hereby vacated. A default prove-up hearing is set for 7/29/19 at 1:30 pm in Dept. A.

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) 582-7835 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


TB/Triple T Ventures v. Van Dyke Law Group Case No. TCU19-7257 

Superior Court of Nevada County
Tentative Ruling
Truckee Branch


Petitioners unopposed Petition to Confirm Arbitration Award is granted as prayed.

The CMC currently set for 8/16/19 is hereby vacated. This case is not subject to case management.

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) 582-7835 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