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Tentative Rulings, Nevada City - Law and Motion

>Case No. CU14-080582, Anderson v. Wells Fargo, 10/24/2014
>Case No. CL14-080294, American Express v. Schmoe, 10/24/2014
>Case No. CU13-079997, Webb v. Ford Motor, 10/24/2014
>Case No. CL12-078288, RCA v. Leonard, 10/24/2014
>Case No. CU13-079937, Gauna v. JP Morgan Chase, 10/24/2014
>Case No. CU14-080702, Harlan v. Holt, 10/24/2014

Case No. CU14-080582, Anderson v. Wells Fargo, 10/24/2014 

Plaintiffs’ 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).

A court reasoned that the requirement of new or different law was not satisfied where it was available before the original hearing. See Scott Co. of Cal. v. United States Fidelity & Guaranty Ins. Co. (2003) 107 Cal.App.4th 197, 205, disapproved on other grounds by Le Francois v. Goel (2005) 35 Cal.4th 1094, 1107 n.5.

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, Plaintiffs argue that this court relied on the case of Keshtgar v. US Bank (2014) 226 Cal.App.4th 1201, which in turn relied on the case of Yvanova v. New Century Mortgage Corp. 2014 WL 2149797, in making its ruling on the demurrer to the second and fifth causes of action. The California Supreme Court has granted review of the Yvanova case. Plaintiffs argue that this grant of review provides new, or emerging, law, that supports Plaintiffs’ position. However, this is not new facts or law which was not available at the time of the original hearing in this case. Review was granted in Yvanova on August 27, 2014, a full two weeks prior to the hearing in this case. As such, Plaintiffs have not established new facts or law as required by CCP 1008.

Moreover, as to the second and fifth causes of action, this Court provided additional grounds for sustaining the demurrer without leave to amend based on res judicata. Even if this Court did find Plaintiffs’ arguments persuasive as to Yvanova, these grounds would remain as a reason to sustain the demurrer without leave to amend.

As to Plaintiffs’ arguments relating to the cause of action for Civil Code §2923.6, no new facts or law are presented. Rather, Plaintiffs merely express disagreement with the ruling, which does not support the granting of a motion for reconsideration.

As to Plaintiffs’ arguments relating to the cause of action for negligence, Plaintiffs rely on the case of Alvarez v. BAC Home Loans 2014 WL 3883282 stating that this also is new law. However, Alvarez was decided on 8/7/14, a full month before the hearing in this case. Thus, the information was available at the time of the hearing and do not constitute new facts or law.

The motion, therefore, is denied.

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.


Case No. CL14-080294, American Express v. Schmoe, 10/24/2014 

Plaintiff’s unopposed Motion to Set Aside Judgment is granted. The Court finds that the attorney’s failure to arrive timely in the courtroom to be excusable neglect. The judgment entered 9/2/14 is hereby set aside.

Trial is hereby re-set for Monday, December 1, 2014, at 1:30 pm in Dept. 6. Plaintiff shall serve notice of the order and the new trial date on Defendant forthwith.

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. CU13-079997, Webb v. Ford Motor, 10/24/2014 

Defendant’s Motion to Sever the Statute of Limitations Defense & Try it First is denied.

"Code of Civil Procedure section 598 allows a party to seek an order before trial ‘that the trial of any issue or any part thereof shall precede the trial of any other issue or any part thereof in the case,' where ‘the convenience of witnesses, the ends of justice, or the economy and efficiency of handling the litigation would be promoted thereby ….'" Estate of Young (2008) 160 Cal. App. 4th 62, 90.

“In general, ‘[w]hether there shall be a severance and separate trials on issues in a single action is a matter within the discretion of the trial court . . . .’ " Shade Foods, Inc. v. Innovative Products Sales & Marketing, Inc. (2000) 78 Cal. App. 4th 847, 911. Accord Regents of Univ. of Cal. v. Sheily (2004) 122 Cal. App. 4th 824, 833; Royal Surplus Lines Ins. Co. v. Ranger Ins. Co. (2002) 100 Cal. App. 4th 193, 205; Finley v. Sup. Ct. (2000) 80 Cal. App. 4th 1152, 1163; Grappo v. Coventry Financial Corp. (1991) 235 Cal.App.3d 496, 504. See also generally Weil & Brown, Civ. Pro. Before Trial (The Rutter Group 2012) ¶¶12:415 – 12:424; Cal. Prac. Guide: Civ. Trials and Ev. (The Rutter Group 2012) ¶4:430.

“In actions involving both legal and equitable issues, most courts will try the equitable issues first without a jury ... because this may obviate the necessity for jury trial of the legal issues. I.e., the court's rulings on the equitable issues may establish rights or defenses that leave nothing further to be tried.” Cal. Prac. Guide: Cal. Civ. Trials and Ev. (The Rutter Group 2012) ¶2:162. See also generally 7 Witkin, Cal. Pro. (5th ed. 2008) Trial §86.

In the present case, Defendant has not shown that the statute of limitations defense can be determined without addressing delayed discovery and fraudulent concealment, both of which are jury questions. The issues are inextricably tied to the ultimate question of the whether the action is barred by the statute of limitations.

The court notes that the Reply references Paragraph 65 of the First Amended Complaint for the proposition that the date of actual discovery occurred in 2010. However, that reference is in error. In fact, Paragraph 66 of the First Amended Complaint specifically states that discovery occurred in August 2011.

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. CL12-078288, RCA v. Leonard, 10/24/2014 

RCA’s Motion for Attorney’s Fees is continued on the court’s own motion to November 7, 2014, at 10:00 am, to be heard with Dignity’s Demurrer, Dignity’s Motion to Strike, Leonard’s Motion to Continue Trial, and RCA’s Motion to Sever.

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, Gauna v. JP Morgan Chase, 10/24/2014 

The Motion to Compel is dropped as moot. An order sustaining Defendants’ Demurrer to the entire complaint was sustained without leave to amend on 9/18/14.

The court notes that Defendants have filed a Notice of Entry of Order. However, a Judgment of Dismissal is required to be submitted to the court.

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.


Case No. CU14-080702, Harlan v. Holt, 10/24/2014 

Plaintiffs’ Motion for Interlocutory Judgment of Partition and for Appointment of Referee is denied.

As an initial matter, Defendant’s objections to the declaration of Duane Harlan are sustained as to items 3, 4, 6, 8, 9, 14-16, 18, 20-24 (foundation, legal conclusions).

Code of Civil Procedure § 872.820 provides that the court shall order the property sold and proceeds divided when the court determines that under the circumstances, sale and division of the proceeds would be more equitable than division of the property; and, for the purpose of making the determination, the court may appoint a referee and take into account his report.

In the case of Butte Creek Island Ranch v. Crim (1982) 136 Cal.App.3d 360, the court articulated three factors relevant to whether partition by sale is more equitable than partition in kind: (1) whether partition in kind is permissible under applicable subdivision laws; (2) whether the property can be divided into parcels of roughly equal value, such that any differences in value could be balanced by way of compensatory payments; and (3) whether division of the property would substantially diminish the value of each party’s interest.

In the present case, Plaintiff has argued the three factors, but failed to present any evidence to support such arguments. There is only one declaration from Plaintiff Duane Harlan in support. There are no declarations from appraisers or land use experts providing information about whether the property can be divided into parcels of roughly equal value or whether division of the property would substantially diminish the value of each party’s interest.

Moreover, Plaintiff’s contention that the water rights “may” not be divisible is speculation only. Again, no evidence is presented that such water right are not divisible.

Based on the evidence presented, or lack thereof, this court is unable to determine that under the circumstances, sale is more equitable than division of the property.

Additionally, this motion seeks a judgment without filing all necessary pleadings required for a motion for summary judgment pursuant to CCP §437c. This requested determination of factual issues in the absence of trial is denied.

Accordingly, the motion is denied.

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.