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Tentative Rulings, Nevada City - Law and Motion

>Case No. CU13-079389, Erickson v. County of Nevada, 12/19/2014 at 1:30 p.m.
>Case No. CU14-080733, Mejia v. RCA, 12/19/2014
>Case No. UD14-00147, Neil v. Hobbs, 12/19/2014
>Case No. CU13-079937, Rainn v. Gauna, 12/19/2014
>Case No. CU14-080853, Sox v. Wells Fargo, 12/19/2014

Case No. CU13-079389, Erickson v. County of Nevada, 12/19/2014 at 1:30 p.m. 

Plaintiff’s Petition for Writ of Mandate re Supplemental Complaint

Preliminary Issues:

Objections

County objects to the Declaration of Allan Haley in support of the opening brief with the two exhibits attached, as wells as 9 statements set forth in the Opening brief, as references to extra-record evidence which are irrelevant and improper and therefore should be stricken.

Plaintiffs oppose the objections. They state that a motion to strike under CCP 435, 436, and 437 is directed at pleadings, but the declaration in support of the opening brief is not a “pleading.” Further, Plaintiffs contend that the evidence is not part of the administrative record. Yet, they included the deposition testimony of Mr. Foss which is also extra-judicial. They argue County’s objections are not well taken.

The objections are sustained. The material is extra-judicial because the issues are limited to the administrative record only.

County filed another objection to evidence in support of the reply brief. Attached to the reply is a copy of people’s signatures who oppose the cell tower. This is not authenticated and is irrelevant. This objection is sustained.

Request for Judicial Notice

The County asks us to take judicial notice of the 3rd DCA briefs in the related case as well as briefs in the federal court in the related case. All are irrelevant to our determination today. Further, one is an unpublished opinion in the cell case. The Court denies the Request for Judicial Notice.

Ruling:

Plaintiffs’ writ is denied. County has remedied substantially all of the defects found present in the initial writ hearing, with the exception of the preparation of the Management Plan deed. The terms of the restrictive deed are sufficiently certain to implement the Management Plan. The preparation of the deed is purely ministerial. Any deed in conformity with the standards set forth in its Management Plan will suffice. New or additional restrictions cannot be contained in the deed. The Court shall retain jurisdiction to determine issues concerning the preparation of the specific language of the deed restriction. This reservation of jurisdiction shall terminate upon issuance of the Plaintiffs’ building permit.

Discussion:

1. County has now made a VIR (Visually Important Ridgeline) finding in Resolution 14-397. This determination is supported by findings based on substantial evidence that the ridgeline is both prominent and of high scenic value, as contained in the Board Resolution. County considered the presence of NID water tanks and the camouflaged mono-pine cell tower in its determination that the ridgeline remains a VIR.

2. The finding of a VIR is properly made in connection with the Plaintiffs’ permit application and the reprocessing of that application following the original writ hearing. In particular the Court finds City of Orange v. Valenti (1974) 37 Cal.App.3d 240, 243-244, Sunset View Cemetery Assn v. Kraintz (1961) 196 Cal.App.2d 115, 122-123, and Munns v. Stenman (1957) 152 Cal.App.2d 543, 552-554 inopposite. Those cases involve the enactment of ordinances effecting a retroactive blockage of a proposed development or permit. Here, the VIR ordinance existed well before the permit application and provided notice to those planning hilltop construction that their project may be subject to the terms of the ordinance. To hold otherwise requires the County to maintain a public inventory of all visually important ridges prior to any permit application in order to avoid retroactivity. The Court finds that the VIR ordinance may be applied concurrently with the permit application, rather than as precedent thereto.

3. The Management Plan is properly imposed as a condition pursuant to the VIR ordinance.

4. The revised Management Plan, as amended by Board Resolution 14-397, is supported by the evidence and the VIR ordinance. The totality of the evidence from the prior permit proceedings and the current permit proceedings, including the evidence relied upon by the Board in its findings and the sightline evidence previously reviewed by the Court, provide substantial evidentiary support for the currently approved restricted area. In particular,

a. The area of screening protection is downsized such that the issue of over-breadth found in the prior writ hearing has been resolved. The Court will not second guess the Board findings on this issue. Further, because of the downsizing, the term “screening” is now sufficiently certain to be used in its ordinary sense, that is, to obscure sight, within the ridgeline, of the proposed garage.

b. The proposed deed restriction, based on the reduced area, now shows a sufficient nexus between the proposed project and the condition, such that the prior constitutional infirmity has been removed. The deed restriction no longer remains in perpetuity, but only so long as the project exists.

c. The provisions for thinning, removal, and for down and dead trees, are now sufficiently certain, setting forth an adequate process for determination of issues as they arise and considering relevant criteria such as biological, forestry and arboricultural issues. Tying the ratio of replanted trees to that in the general area of the removed tree is sufficiently certain.

d. The provision permitting satisfaction of screening by the owner agreeing to utilize trees off site (i.e., adjoining property) is unnecessary, but it is an accommodation that the Plaintiffs are permitted to utilize. No burden is placed on Plaintiffs as a result.

e. The provisions for review of an adverse County action are sufficient.

f. The provisions adequately address fire department orders and recommendations, regardless of changes in districts and jurisdictions.

5, The deed preparation provisions are ministerial in nature. The essential terms and conditions of the deed are set forth in the Management Plan. Because parties tend to become overly concerned about precise language, the Court will retain jurisdiction to oversee the preparation of the deed, pending issuance of the Plaintiffs’ building permit.

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. CU14-080733, Mejia v. RCA, 12/19/2014 

Defendant RCA’s Anti-SLAPP Motion to Strike and Defendant Dignity Health’s Anti-SLAPP Motion to Strike are granted.

Standard of Review

In ruling on an Anti-SLAPP Motion to Strike under Code of Civil Procedure §425.16, the court must engage in a two-step process. First, the court decides whether defendant has made a threshold showing that the challenged cause of action is one arising from protected activity (i.e., that the acts of which plaintiff complains were taken in furtherance of defendant’s right of petition or free speech). If such a showing has been made, the court then determines whether plaintiff has demonstrated a probability of prevailing on the claim. Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 66.

In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based. CCP § 425.16(b)(2). Only evidence admissible at trial may be considered. Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1497. Moreover, the court must accept as true the evidence favorable to plaintiff. Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291.

Objections to Evidence

Plaintiff’s Objection to the Declaration of Jennifer Walters is sustained as to #4 (hearsay). The remaining objections are overruled.

Defendant RCA’s Objections to the Declaration of John Vodonick are sustained as to items 4-6 (lack of foundation). The remaining objections are overruled.

Request for Judicial Notice

Defendant RCA’s Request for Judicial Notice is granted in its entirety.

Preliminary Matter

Initially, Plaintiff’s argument that Defendant RCA’s motion was not timely filed and is procedurally defective is without merit. CCP §425.16(f) provides that the Court Clerk is to schedule the hearing within 30 days after service of the motion “unless docket conditions of the court require a later hearing.” “The effect is to place the burden on the court clerk, not moving party’s counsel, to explain why it is necessary to schedule a later hearing date. [See Stats. 2005, ch. 535, §3] Rutter Group: Civil Procedure Before Trial (2014) 7:965.

As this Court only hears law and motion matters one day per week, the motion was set on a date as close to 30 days after service as practicable by the court.

Analysis

In the present case, as to the first prong, the gravamen of the complaint arises from RCA’s acts in furtherance of the Constitutional right of petition. The Constitutional right to petition includes the basic act of filing litigation. Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 106, 1119-1120. Pleadings and process in a case are generally viewed as privileged communications. See Navellier v. Sletten (2002) 29 Cal.4th 82. Every claim of malicious prosecution is a cause of action arising from protected activity because every such claim necessarily depends upon written and oral statements in a prior judicial proceeding. Daniels v. Robbins (2010) 182 Cal.App.4th 204, 215.

As to the second prong, relating to the probability of prevailing on the merits, the Court determines that Plaintiff has not demonstrated she can prevail on the merits.

As to the first cause of action for malicious prosecution, Plaintiff cannot prevail because that claim requires proof that the prior litigation was commenced by Defendant or at Defendant’s direction, the prior litigation terminated in Plaintiff’s favor, the prior action was brought without probable cause, and that it was initiated with malice.

The prior action resulted in a voluntary dismissal. A voluntary dismissal is not a favorable termination. See Contemporary Services v. Staff Pro, Inc. (2007) 152 Cal.App.4th 1043, 1057.

Moreover, Plaintiff has not established that RCA lacked probable cause in initiating the underlying collection action or in obtaining the default judgment. Plaintiff also has not established that RCA acted with malice. The motive of the defendant must have been something other than that of the satisfaction in a civil action for some personal or financial purpose. See Daniels v. Robbins (2010) 182 Cal.App.4th 204, 224-225. Here, no wrongful motives are demonstrated.

As to the second cause of action for conversion, Plaintiff has failed to show that either Defendant wrongfully withheld any money. According to the evidence in support of the motion, RCA has no money of Mejia received through wage garnishment. One check was received from the Sheriff’s Department but that check was not cashed and was returned to the Sheriff’s Dept. Further, the claim is barred by the litigation privilege under Civil Code § 47(b). This applies to any communication with some relation to litigation; it is not limited to statements made during trial or other proceedings. It is extended to post-judgment enforcement activities. See Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1063.
As to the third cause of action for B&P §17200, this claim also arises from the purported communicative conduct in the juridical forum. The litigation privilege, as set forth above, also applies.

As to the fourth cause of action for Civil Code § 1788.15(a), this claim requires a debt collector to know service of process has not been legally effected. An independent registered process server was used. Plaintiff has not shown that RCA knew the process server’s return was improper.

Accordingly, the motions are granted. Leave to amend is denied. See Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1073.

Defendant RCA’s attorney is to submit a formal order for both matters herein 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. UD14-00147, Neil v. Hobbs, 12/19/2014 

Defendants’ Demurrer to the Complaint is overruled.

First, the motion was not timely filed as required by CCP §1005(b). It was required to be filed by November 26, 2014, but was filed on December 3, 2014. Additionally, there is no proof of service on the Plaintiff as required by CCP §1005(b).

Secondly, on the merits, CCP §1161(2) provides, in pertinent part, “if payment may be made personally, the usual days and hours that person will be available to receive the payment…” In the present case, the 3-Day Notice did not allow for personal payments. Accordingly, there was no requirement that the days and times of which the rent could be made be set forth.

Any Answers must be served and filed by December 24, 2014.

Moving party 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. CU13-079937, Rainn v. Gauna, 12/19/2014 

Plaintiff’s Motion for Reconsideration

Plaintiff’s Motion for Reconsideration is denied.

"A motion for reconsideration may only be brought if the party moving for reconsideration can offer 'new or different facts, circumstances, or law' which it could not, with reasonable diligence, have discovered and produced at the time of the prior motion.... A motion for reconsideration will be denied absent a strong showing of diligence." Forrest v. State Of Cal. Dept. Of Corps. (2007) 150 Cal.App.4th 183, 202. See also Baldwin v. Home Sav. of Am. (1997) 59 Cal. App. 4th 1192, 1199 (noting that 1992 amendment to CCP §1008 tightened diligence requirements).

Disagreement with a ruling is not a new fact that will support the granting of a motion for reconsideration. Gilberd v. AC Transit (1995) 32 Cal.App.4th 1494, 1500.

In the present case, Plaintiff purports to have “new” facts upon which to base this motion. However, Plaintiff’s own moving papers state, “In Plaintiff’s opposition to the Demurrer and in oral arguments, Plaintiff specifically stated that new facts had emerged…” [Motion 1:8-10.] Thus, this Court has already considered, and rejected, such allegations. These “new” facts are not “new.”

Furthermore, Plaintiff states that there is new law to support the motion based on the de-publication of two cases. However, California state and federal courts have almost uniformly rejected Plaintiff’s securitization and arguments.

As an unrelated third party to the contract, and not the victim, plaintiffs lack standing to claim invalid transfers of beneficial interests under promissory notes. Jenkins v. JP Morgan Chase Bank, N.A. (2013) 216 Cal.App.4th 497, 514-15 (Plaintiff lacked standing to enforce investment trust‘s pooling and servicing agreement and so there was no actual controversy supporting declaratory relief).

As to claims of illegal assignments, borrowers must allege and show prejudice as to claims of the lack of authority to transfer a promissory note. Fontenot v. Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 272 (noting that it is difficult to conceive how borrowers could show prejudice from an unauthorized transfer, because borrowers must anticipate the legal possibility of note transfers to different creditors, defaults in payments on the note cause any prejudice via foreclosure, and original lenders would be the ones prejudiced by an unauthorized loss). Accord Herrera v. Fed. Nat’l Mort. Assoc. (2012) 205 Cal.App.4th 1495, 1508.

Additionally, as to deeds of trust, as distinguished from mortgages, trustees may initiate foreclosure, without the prior recording of assignments of beneficial interests evidencing current holders of promissory notes having the power to sell properties. Haynes v. EMC Mortgage Corp. (2012) 205 Cal. App. 4th 329, 336.

Accordingly, the “law” is not new.

As there are no new facts or law, the motion for reconsideration is denied.

Defendants’ Motion to Dismiss

Defendants’ Motion to Dismiss pursuant to Code of Civil Procedure §581(f)(1) is granted.

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. CU14-080853, Sox v. Wells Fargo, 12/19/2014 

Plaintiff’s OSC re Preliminary Injunction is continued on the court’s own motion to January 30, 2015, at 10:00 am in Dept. 6, to be heard with the Defendant’s Demurrer to the Complaint. The TRO issued on 10/22/14 shall remain in full force and effect until further order of the court.

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.