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Tentative Rulings, Nevada City - Law and Motion

>Case No. CU15-081030, Empire Golf v. Asian Pacific Group, 5/22/2015
>Case No. CU15-081043, Ewald v. Nationstar Mtg., 5/22/2015
>Case No. CU14-080361, Spann v. Grass valley School District, 5/22/2015

Case No. CU15-081030, Empire Golf v. Asian Pacific Group, 5/22/2015 

Defendant’s Motion to Quash Service of Summons for Lack of Jurisdiction is denied.

Initially, the court notes that it appears that Defendant has confused the concepts of jurisdiction and venue.

Jurisdiction refers to subject matter and personal jurisdiction. Subject matter jurisdiction refers to the power of the court to decide a case. Milliken v. Gray (1969) 276 Cal.App.2d 595, 600. Here, the subject matter jurisdiction is proper because it is within the general jurisdiction of the superior court because of the nature of the case; an action based on breach of contract seeking unlimited damages. As for personal jurisdiction, the California Superior Courts have personal jurisdiction over all business organizations registered in this state or doing business in this state. Here, there are no allegations that Defendant is a California limited liability company. Accordingly, personal jurisdiction has been established.

What Defendant actually appears to object to is venue in this case. Venue is determined by CCP §395.5: where the contract is made or to be performed or where the obligation arises or the breach occurs, among others. Here, the agreement provides for services to be rendered in Nevada County. Thus, venue is appropriate.

Further, to the extent Defendant seeks to change venue to another county within the State of California, Defendant has failed to present any evidence whatsoever in support of such request. A motion to change venue must be supported by competent evidence. Tutor-Saliba-Perini Joint Venture v. Sup. Ct. (1991) 233 Cal. App. 3d 736, 744; Weil & Brown, Civ. Pro. Before Trial (The Rutter Group 2012) ¶¶3:573, 3:576.1. No declarations in support of the motion were filed.

Accordingly, this court has both subject matter and personal jurisdiction over Defendant, and venue is proper in Nevada County. The motion is denied.

Any responsive pleading must be served and filed by June 1, 2015.

Plaintiff’s 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 Court’s tentative ruling. In order to argue at the hearing, you must notify the parties and thereafter notify the court’s 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. CU15-081043, Ewald v. Nationstar Mtg., 5/22/2015 

Defendant’s Demurrer to the Complaint is overruled.

Defendant only challenged the cause of action for breach of contract. The court finds that plaintiff has alleged the existence of a contract. The letter upon which plaintiff relies is not the specific “not a loan” language of Nungaray. Rather, the letter clearly states “[Y]ou are approved…” and describes specific conditions that, if met, “your mortgage would then be permanently modified.” The clear language provides that, if the conditions are met, the loan would be modified.

Defendant’s Motion to Strike is overruled. Plaintiff’s pleading provides facts that a jury may find to support fraud, oppression, or malice which support a claim for punitive damages. Additionally, the contract alleged to have been breached incorporates the original mortgage which includes an attorney’s fee provision that is applicable to defendant.

Any answer must be served and filed by June 1, 2015.

Defendant’s 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 Court’s tentative ruling. In order to argue at the hearing, you must notify the parties and thereafter notify the court’s 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. CU14-080361, Spann v. Grass valley School District, 5/22/2015 

(1) Plaintiff’s Motion for Attorney’s Fees

Plaintiff’s Motion for Attorney’s Fees is denied.

“Fees are permitted under section 1021.5 and the private attorney general doctrine ‘in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any.’” Riverside Sheriff's Ass'n v. County of Riverside (2007) 152 Cal.App.4th 414, 421. Accord Hogar v. Community Dev. Com'n of City of Escondido (2007) 157 Cal.App.4th 1358, 1364.

In deciding whether to award fees under Section 1021.5, and the necessity and financial burden of private enforcement, in their equitable discretion, judges properly consider all relevant circumstances, including whether parties seeking fees attempted informal resolution before litigation. Vasquez v. State of Cal. (2008) 45 Cal.4th 243, 257.

“The decision whether to award attorney fees lies within the discretion of the trial court and will not be disturbed on appeal absent a prejudicial abuse of discretion resulting in a manifest miscarriage of justice.” California Licensed Foresters Assn. v. State Bd. Of Forestry (1994) 30 Cal.App.4th 562, 568-569.

Here, the court finds that Plaintiff’s lawsuit did not confer a significant benefit on the general public or a large class of persons.

Thus, there is no basis for an award of attorney’s fees and the motion is denied.

(2) Plaintiff’s Motion for New Trial

Plaintiff’s Motion for New Trial is denied.

First, Plaintiff’s objection to the Declaration of Richard Hutchison is sustained (hearsay and not under penalty of perjury).

Code of Civil Procedure Section 662.5, regarding orders for a new trial conditioned on an additur or remittitur, provides that such orders shall be made, to the extent the court, in its independent judgment, determines from the proof to be fair and reasonable, unless the affected party consents to the addition or reduction of the verdict. Dell'Oca v. Bank of New York Trust Co., N.A. (2008) 159 Cal. App. 4th 531, 547. See also generally Cal. Prac. Guide: Civ. Trials and Ev. (The Rutter Group 2012) ¶8:1439 et seq.

Here, Plaintiff argues that Defendants never produced any evidence to support the affirmative defense of mitigation and did not present any evidence by its own economist to set forth damages other than that of what Plaintiff presented.

However, Defendants attacked the credibility of Plaintiff’s economist during his testimony. It is clear that the jury did not put any weight into his testimony. Moreover, as the jury found that the Defendant had good cause to terminate Plaintiff, it makes logical sense that damages for a year of unemployment would not have been proper under the facts of the case; rather, only the damages related to Defendant’s failure to follow its own policies and procedures were awarded.

Thus, the court denies the motion for new trial on the issue of damages.

(3) Plaintiff’s Motion for Judgment Notwithstanding the Verdict

Plaintiff’s Motion for Judgment Notwithstanding the Verdict is denied.

First, Plaintiff’s objection to the Declaration of Richard Hutchison is sustained (hearsay and not under penalty of perjury).

“A motion for judgment notwithstanding the verdict may be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence in support.” Sweatman v. Department of Veterans Affairs (2001) 25 Cal. 4th 62, 68. Accord Stillwell v. Salvation Army (2008) 167 Cal.App.4th 360, 374.

As to a motion for judgment notwithstanding the verdict, trial courts may not weigh the evidence or judge credibility, all reasonable inferences must be drawn in favor of plaintiffs, and conflicting evidence is to be disregarded, in order to ascertain whether there is no substantial evidence to support the verdict, as a matter of law. McCoy v. Pacific Maritime Assn. (2013) _ Cal.App.4th _, _.

A motion for judgment notwithstanding the verdict by definition applies to jury, and not court, trials. Herr v. Nestle U.S.A., Inc. (2003) 109 Cal.App.4th 779, 788.

Here, Plaintiff argues that Plaintiff presented evidence that his termination caused him to be out of work for just over a year and suffered damages of $113,125.82, and that Defendants never produced any evidence to support the affirmative defense of mitigation and did not present any evidence by its own economist to set forth damages other than that of what Plaintiff presented.

However, Defendants attacked the credibility of Plaintiff’s economist during his testimony. It is clear that the jury did not put any weight into his testimony. Moreover, as the jury found that the Defendant had good cause to terminate Plaintiff, it makes logical sense that damages for a year of unemployment would not have been proper under the facts of the case; rather, only the damages related to Defendant’s failure to follow its own policies and procedures were awarded.

Thus, the court denies the motion for judgment nothwithstanding the verdict.

(4) Defendants’ Motion for Attorney’s Fees

Defendant’s Motion for Attorney’s Fees is denied.

Code of Civil Procedure §1038(a) provides, “In any civil proceeding under the Government Claims Act (Division 3.6 (commencing with Section 810) of Title 1 of the Government Code) or for express or implied indemnity or for contribution in any civil action, the court, upon motion of the defendant or cross-defendant, shall, at the time of the granting of any summary judgment, motion for directed verdict, motion for judgment under Section 631.8, or any nonsuit dismissing the moving party other than the plaintiff, petitioner, cross-complainant, or intervenor, or at a later time set forth by rule of the Judicial Council adopted under Section 1034, determine whether or not the plaintiff, petitioner, cross-complainant, or intervenor brought the proceeding with reasonable cause and in the good faith belief that there was a justifiable controversy under the facts and law which warranted the filing of the complaint, petition, cross-complaint, or complaint in intervention. If the court should determine that the proceeding was not brought in good faith and with reasonable cause, an additional issue shall be decided as to the defense costs reasonably and necessarily incurred by the party or parties opposing the proceeding, and the court shall render judgment in favor of that party in the amount of all reasonable and necessary defense costs, in addition to those costs normally awarded to the prevailing party. An award of defense costs under this section shall not be made except on notice contained in a party’s papers and an opportunity to be heard.”

The meaning of “good faith” for determining whether section 1038 fees and costs must be awarded encompasses the equitable principle of fairness, and “reasonable cause” is denied as whether a reasonable attorney would consider the claim tenable. Carroll v. State (1990) 217 Cal.App.3d 134.

Here, the court does not find that the proceeding was not brought in good faith and with reasonable cause. While the court ultimately granted non-suit as to the claims for defamation, negligent hiring, intentional infliction of emotional distress, and fraud, such claims do not appear to be based on bad faith; rather, they were merely without merit.

Accordingly, the motion for attorney’s fees is denied.

(5) Defendants’ Motion to Strike Plaintiff’s Memo of Costs or Apportion Costs

Defendants’ Motion to Strike Plaintiff’s Memorandum of Costs is granted.
As to attorney fees where claims are not on a contract, and the fees provision sufficiently broadly includes tort claims, a court has no discretion to deny prevailing-party status when one of the following statutory factors applies: “‘[1] the party with a net monetary recovery, [2] a defendant in whose favor a dismissal is entered, [3] a defendant where neither plaintiff nor defendant obtains any relief, and [4] a defendant as against those plaintiffs who do not recover any relief against that defendant’….” Wakefield v. Bohlin (2006) 145 Cal. App. 4th 963, 974-78, 989 (quoting CCP §1032(a)(4)), disapproved on other grounds by Goodman v. Lozano (2010) 47 Cal.4th 1327, 1338.

“Apportionment of costs is authorized, at the court's discretion, only under those comparatively unusual circumstances when the court must determine which party prevailed” according to Code of Civil Procedure Section 1032(a)(4). Smock v. State of Cal. (2006) 138 Cal. App. 4th 883, 889.

The court finds that, while Plaintiff prevailed on one of nine causes of action and obtained a “net monetary recovery,” Defendants prevailed on eight causes of action. Plaintiff’s recovery was far below his “litigation objections going into trial.” See Goodman v. Lozano (2010) 47 Cal.4th 1327.

Therefore, the court finds no prevailing party and the motion to strike the memorandum of costs is granted.

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 Court’s tentative ruling. In order to argue at the hearing, you must notify the parties and thereafter notify the court’s 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.