Civil & Probate

-ADR
  ADR Forms
  ADR FAQ's


-Case Management
  Mediation Panel
  Case Management Forms

-Probate
  Probate FAQ's

-Tentative Rulings




Tentative Rulings, Nevada City - Law and Motion

>Case No. CU14-080719, Deschaine v. JP Morgan Chase, 2/27/15 in Department V
>Case No. CU14-080579, Weir v. Beebe, 2/27/2015 in Department V
>Case No. UD14-00154, Goodell v. Luna, 2/27/15 in Department V

Case No. CU14-080719, Deschaine v. JP Morgan Chase, 2/27/15 in Department V 

Defendant’s Demurrer to the First Amended Complaint is sustained without leave to amend.

Requests for Judicial Notice

Defendant’s Request for Judicial Notice and Plaintiffs’ Request for Judicial Notice are granted in their entirety.

Factual Contentions

In reading the First Amended Complaint as a whole, Plaintiffs primarily allege two issues. First, Plaintiffs allege that Defendant breached Section 4, Paragraph 4 of the Note by refusing to accept payments in a form other than certified funds back in October 2010, constituting either a repudiation or anticipatory breach of the contract. Secondly, Plaintiffs allege that Defendant’s statement that Plaintiffs should “not bother making further payments” because Plaintiffs were already in default excused Plaintiffs’ further performance on the loan. Neither argument provides sufficient grounds for any of the causes of action set forth in the First Amended Complaint.

Breach of Contract

As to the cause of action for breach of contract, Section 4, Paragraph 4, which is the basis for the breach of contract claim, provides only that payments are to be made in US Dollars. It does not state whether cash, checks, cashier’s checks, or money orders are required. Moreover, Section 6 of the Notice provides that the Defendant “may take any action required … without waiving any other right or remedy it may have” for Plaintiffs’ failure to comply with their payment of obligations. The fact that Defendant had previously accepted personal checks does not change the terms of the Note. Accordingly, Plaintiffs have failed to allege a breach by Defendant.

Cancellation of Notice of Default

As to the cause of action for Cancellation of the Notice of Default, as stated in the prior ruling on Demurrer, “Plaintiffs allege no payment of any kind after September 2010 until the Notice of Default was recorded in April, 2014. This lack of payment is clearly within the scope of the nature of the breach contained in the Noticed of Default. The Court agrees with Defendants that Plaintiffs cannot reasonably assume they may continue to own and occupy property without any payment whatsoever. Plaintiffs’ contention that Defendants told them not to make payments due to a pending foreclosure cannot possibly be construed as a waiver of that same right to foreclose.” Plaintiffs have failed to allege that such document is void or voidable as the basis of the allegations are legally without merit.

Unfair Business Practices

In the cause of action for B&P §17200, Plaintiffs allege that they were induced to go into default in order to get a loan modification. However, Plaintiffs own allegations stated that it was Plaintiffs who approached Defendants for the modification. Further, that Defendants had a policy not to engage in a modification unless the loan was three months in arrears, does not show unfairness.

Plaintiffs also allege that the refusal of Defendants to put the denial of the loan modification in writing was unfair. However, as previously stated, “Plaintiffs cannot set the Defendants’ standard or rules for loan modification.”

The facts fail to show unfairness.

Conclusion

The demurrer is sustained without leave to amend. Plaintiffs have failed to allege sufficient facts to support any cause of action. Leave to amend was previously granted on the same grounds set forth above, and Plaintiffs have been unable to correct such defects. Accordingly, leave to amend is denied.

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.

Angela L. Bradrick, research attorney for the Superior Court of Nevada County, will act as judge pro tem on the Court's February 27, 2015 law and motion calendar and has issued this tentative ruling. Any party who does not wish to stipulate to her hearing this matter must notify the other parties and then notify the Court's probate, law and motion judicial assistant at (530) 265-1273, by 4:00 p.m. on February 26, 2015. Since no judge will be available for the February 27, 2015 law and motion calendar, if any party declines to stipulate, the matter will be continued to March 13, 2015, at 10:00 a.m. If all parties stipulate to Angela L. Bradrick hearing the matter but wish to argue at the hearing, they must notify the probate, law and motion judicial assistant by 4:00 p.m. on February 26, 2015. If you do not so notify the parties or the Court, the tentative ruling shall become the final ruling. California Rule of Court 3.1308, Local Rule 4.05.3. IF ORAL ARGUMENT IS REQUESTED OR APPEARANCES ARE REQUIRED, THESE MATTERS WILL BE HEARD IN DEPARTMENT 5. Any argument is limited to five minutes.

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. CU14-080579, Weir v. Beebe, 2/27/2015 in Department V 

Petitioner’s Motion for Attorney’s Fees and Respondent’s Motion to Set Aside Void Judgment are continued on the court’s own motion to March 6, 2015, at 1:00 pm in Dept. 6, to be heard by Judge Sean P. Dowling, assigned by the Judicial Council. CourtCall is permitted.

IF ORAL ARGUMENT IS REQUESTED OR APPEARANCES ARE REQUIRED, THESE MATTERS WILL BE HEARD IN DEPARTMENT 5. 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.

Angela L. Bradrick, research attorney for the Superior Court of Nevada County, will act as judge pro tem on the Court's February 27, 2015 law and motion calendar and has issued this tentative ruling. Any party who does not wish to stipulate to her hearing this matter must notify the other parties and then notify the Court's probate, law and motion judicial assistant at (530) 265-1273, by 4:00 p.m. on February 26, 2015. Since no judge will be available for the February 27, 2015 law and motion calendar, if any party declines to stipulate, the matter will be continued to March 6, 2015, at 10:00 a.m. If all parties stipulate to Angela L. Bradrick hearing the matter but wish to argue at the hearing, they must notify the probate, law and motion judicial assistant by 4:00 p.m. on February 26, 2015. If you do not so notify the parties or the Court, the tentative ruling shall become the final ruling. California Rule of Court 3.1308, Local Rule 4.05.3. Any argument is limited to five minutes.


Case No. UD14-00154, Goodell v. Luna, 2/27/15 in Department V 

Plaintiff’s Motion for Summary Judgment is granted.

Plaintiff’s burden is to show that defendants have defaulted in their obligations, that the defendants continue in possession, and set forth that amount of rent if the action is based on a three day notice to pay rent or quit. CCP§§ 1161 and 1166.; Northrop v. Chaparral Energy Inc. (1985) 168 Cal.App.3d 725.

Here, the Declaration in support of the motion demonstrates that defendants have defaulted and that they continue in possession.

Furthermore, the court notes that the sole affirmative defense set forth in the Answer was for breach of the warranty of habitability. A habitability defense is not available as an affirmative defense for a tenant in a UD based on a 60 day notice to quit. CCP 1174.2; Green v. Superior Court 10 Cal.3d 631, Knight v. Hallsthammar (1981) 29 Cal.3d 46, 57.

Moreover, the time in which to file an Amended Answer, five days, has long since expired. CCP §1167.3.

Thus, Plaintiff is entitled to Summary Judgment as a matter of law.

The Court notes that the Answer of Phil Ansboro was rejected by the clerk as the default had already been entered. Plaintiff must hold a default prove-up hearing as to that defendant prior to a final judgment and writ of possession being issued. Accordingly, a default prove-up is hereby set for Monday, March 2, 2015, at 2:00 pm in Dept. 6.

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.

Angela L. Bradrick, research attorney for the Superior Court of Nevada County, will act as judge pro tem on the Court's February 27, 2015 law and motion calendar and has issued this tentative ruling. Any party who does not wish to stipulate to her hearing this matter must notify the other parties and then notify the Court's probate, law and motion judicial assistant at (530) 265-1273, by 4:00 p.m. on February 26, 2015. Since no judge will be available for the February 27, 2015 law and motion calendar, if any party declines to stipulate, the matter will be continued to March 13, 2015, at 10:00 a.m. If all parties stipulate to Angela L. Bradrick hearing the matter but wish to argue at the hearing, they must notify the probate, law and motion judicial assistant by 4:00 p.m. on February 26, 2015. If you do not so notify the parties or the Court, the tentative ruling shall become the final ruling. California Rule of Court 3.1308, Local Rule 4.05.3. IF ORAL ARGUMENT IS REQUESTED OR APPEARANCES ARE REQUIRED, THESE MATTERS WILL BE HEARD IN DEPARTMENT 5. Any argument is limited to five minutes.

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.