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Tentative Rulings, Nevada City - Law and Motion

>Case No. CU14-080876, McDaniel v. McDaniel, 4/24/2015
>Case No. CU15-081035, Robison v. Gerkensmeyer, 4/24/2015
>Case No. CU13-079346, City of Loyalton v. Stantec, 4/24/2015
>Case No. CU14-080886, Berman v. HSBC Mortgage, 4/24/2015

Case No. CU14-080876, McDaniel v. McDaniel, 4/24/2015 

Defendant McDaniel’s Motion to Set Aside Default is granted.

Under Code of Civil Procedure § 473(b), the burden is on the moving party to show that the neglect was excusable: i.e., that the default could not have been avoided through the exercise of ordinary care. Jackson v. Bank of America (1983) 141 Cal.App.3d 55, 58. Doubtful cases are usually resolved in favor of granting relief: “Because the law strongly favors trial and disposition on the merits, any doubts in applying section 473 must be resolved in favor of the party seeking relief from default.” Elston v. City of Turlock (1985) 38 Cal.3d 227, 233. Where the party in default moves promptly to seek relief, and no prejudice to the opposing party will result from setting aside the default and letting the case go to trial on the merits, “very slight evidence will be required to justify a court in setting aside the default.” Id.

This case is a doubtful one. However, Defendant has explained the delay in securing counsel until after the holidays. While there is no explanation for the delay in filing the motion two months after securing counsel, the law strongly favors disposition on the merits. Further, because this case is not at issue as to other defendants, the court finds no prejudice to Plaintiff.

Defendant shall file its responsive pleading by May 4, 2015.

Moving party’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. CU15-081035, Robison v. Gerkensmeyer, 4/24/2015 

Plaintiff’s Application for Right to Attach Order is denied without prejudice.

To obtain a right to attach order, the plaintiff has the burden of proving: that the claim is one on which an attachment may be issued; the probable validity of such claim; and that the attachment is not sought for any purpose other than to secure recovery on the claim. CCP § 484.090; see Loeb & Loeb v. Beverly Glen Music, Inc., 166 CA3d at 1116; Chino Comm'l Bank, N.A. v. Peters (2010) 190 CA4th 1163, 1169]. A claim has “probable validity” where “it is more likely than not that the plaintiff will obtain a judgment against the defendant on that claim.” [CCP § 481.190; see Kemp Bros. Const., Inc. v. Titan Elec. Corp. (2007) 146 CA4th 1474, 147; Goldstein v. Barak Const. (2008) 164 CA4th 845, 852.

In the present case, Plaintiff has not provided the court with any declarations or evidence to demonstrate the probability of prevailing on the claims. Further, the complaint is unverified. Thus, there is no evidence before this court demonstrating any probable validity of the claims.

Moving party’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. CU13-079346, City of Loyalton v. Stantec, 4/24/2015 

Plaintiff’s Motion to Amend Complaint

Plaintiff’s Motion to Amend the Complaint is granted.

“The trial court has discretion to permit or deny the amendment of the complaint, but instances justifying the court's denial of leave to amend are rare.” Armenta ex rel. City of Burbank v. Mueller Co. (2006) 142 Cal.App.4th 636, 642.

Courts generally do not consider the validity of proposed amendments to a pleading. Kittredge Sports Co. v. Sup. Ct. (1989) 213 Cal. App. 3d 1045, 1047; Atkinson v. Elk Corp. (2006) 109 Cal. App. 4th 739, 760 (“the better course of action would have been to allow … [plaintiff] to amend the complaint and then let the parties test its legal sufficiency in other appropriate proceedings.”); Weil & Brown, Civ. Pro. Before Trial (The Rutter Group 2012) ¶6:644.

Here, the court finds no substantial prejudice to any party because the trial date has recently been vacated due to the appointment of a court appointed expert.

Additionally, while Defendants Cox and Travelers contend that the proposed additional claims are without merit, such arguments are more suited for a demurrer, as a motion for leave to amend is not the proper vehicle for testing the validity of the proposed amendments.

The proposed amended complaint must be filed and served by May 4, 2015.

Sierra Nevada’s Motion to Bifurcate

Sierra Nevada’s Motion to Bifurcate is dropped as moot. This court was informed at the mandatory settlement conference that the case has settled as to this moving party.

Cox & Traveler’s Motion to Bifurcate

Cox & Traveler’s Motion to Bifurcate is denied without prejudice. This motion should be heard by the judge assigned for trial. As it is uncertain which judge will try this matter at this time, the matter is deferred to the trial judge. Cox & Travelers may re-notice the motion once the matter is re-set for trial, or may submit it as a motion in limine.




Case Management

The Case Management Conference is continued to June 1, 2015, at 9:00 am in Dept. 6, to allow time to receive an initial status report from the court appointed expert. New case management conference statements are not required for the continued CMC unless changes to trial availability occur between now and the continued CMC.

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. CU14-080886, Berman v. HSBC Mortgage, 4/24/2015 

Plaintiff’s OSC re Preliminary Injunction is denied without prejudice. There is no proof of service of the TRO or OSC re Preliminary Injunction as required by this court’s March 12, 2015, order. The TRO issued on March 12, 2015 is hereby dissolved.

The case management conference is continued on the court’s own motion to June 22, 2015, at 9:00 am in Dept. 6. The case is not yet at issue.

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.