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Tentative Rulings, Nevada City - Law and Motion

>Case No. M07-000944, City of Grass Valley PD v. Hernandez, 9/26/2014
>Case No. CU13-079381, Warren v. Spencer, 9/26/2014
>Case No. CU14-080703, MUFG Union Bank v. Eslick, 9/26/2014
>Case No. CL12-079053, RCA v. Mejia, 9/26/2014
>Case No. CU14-080230, Scott v. Ron Fischer Towing, 9/26/2014
>Case No. CU08-074305, La Vereda v. Bates, 9/26/2014 at 11:00 AM - Judge Thomas Anderson

Case No. M07-000944, City of Grass Valley PD v. Hernandez, 9/26/2014 

Plaintiff’s unopposed Motion for Withholding Order Against Non-Debtor Spouse is granted as prayed. See Code of Civil Procedure section 706.109.

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. CU13-079381, Warren v. Spencer, 9/26/2014 

Initially, the court notes that Defendant’s Motion for Order Requiring Plaintiffs to Immediately Replenish Trust Account, Defendant’s Motion to Increase Bond, and Defendant’s Order to Show Cause re Contempt have been dropped by the moving party on September 19, 2014.

Plaintiffs’ Motion to Reduce Bond is granted.

Code of Civil Procedure §996.030(a) provides: “The court if a bond is given or ordered in an action or proceeding, or the officer if a bond is given or ordered other than in an action or proceeding, may determine that the amount of the bond is excessive and order the amount reduced to an amount that in the discretion of the court or officer appears proper under the circumstances. The order is subject to any limitations in the statute providing for the bond.”

In the present case, the Court’s Tentative Decision after trial has determined that Defendant Spencer acknowledged that the Notice of Default was premature and that it was rescinded. Accordingly, the injunction was properly granted and there was no harm to the Defendant in granting it.

Based on the foregoing, bond is hereby reduced to $0 effective immediately.

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. CU14-080703, MUFG Union Bank v. Eslick, 9/26/2014 

Plaintiff’s OSC re Appointment of Receiver is granted.

Code of Civil Procedure §§ 564(b) and (c) allows a receiver for inspection of property and repair of property with hazardous materials. In the present case, Plaintiff alleges that it is concerned about the existence of hazardous substances on the real property as a result of the auto repair facility.

Additionally, Civil Code §2938 allows a lender to enforce its right to collect rents and profits from its real property. Here, paragraph 28(k) of the Deed of Trust establishes the right of the bank to obtain the appointment of the receiver and ¶28(h) allows for the collection of rents.

According, Kenneth Weaver is hereby appointed receiver pending further order of the court. The court notes that bond has been posted and is sufficient.

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. CL12-079053, RCA v. Mejia, 9/26/2014 

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

In Santisas v. Goodin (1998) 17 Cal.4th 599, the California Supreme Court held that if an action asserts both contract and tort or other non-contract claims, the statute regarding attorney fee awards in action on contract applies only to attorney fees incurred to litigate the contract claims.

Defendant references Plaintiff’s first cause of action for common counts for his contention that non-contract claims are asserted and so attorney’s fees should be permitted.

However, Civil Code §1717.5, which is an action on book account, provides: “in any action on a contract based on a book account…” Thus, a book account cause of action sounds in contract. As such, there are no “non-contract” claims set forth in the complaint.

Moreover, Civil Code §1717.5 provides that the court has discretion to determine that there is no prevailing party for purposes of this section. Accordingly, the court determines that there is no prevailing party on this claim.

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. CU14-080230, Scott v. Ron Fischer Towing, 9/26/2014 

Personal appearances are required by Plaintiffs Nancy Scott and Steve Scott as to the OSC re Dismissal. Failure to personally appear shall result in the action being dismissed.

Defendant’s counsel is also ordered to appear at the hearing; however, CourtCall is permitted for Defendant’s counsel. At the hearing, the Court will address the Motion to Deem Admissions Admitted.

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. CU08-074305, La Vereda v. Bates, 9/26/2014 at 11:00 AM - Judge Thomas Anderson 

This tentative ruling is issued by Judge Thomas Anderson. If oral argument is requested, such oral argument shall be heard on Friday, September 26, 2014, at 11:00 am in Dept. 6.

Defendants’ Motion to Dismiss is denied.

The thrust of Defendants’ argument is that, because the alternative causes of action for failure to pay were dismissed, then the claims for foreclosure of security interests fail.

However, Defendants provide no authority for this proposition. In fact, the opposite is true. A foreclosure cause of action is an independent cause of action with the following elements:


1. Obligation provisions (e.g., promissory note) executed, delivered or assumed, with recordation date to define priority over subsequent liens;
2. Security provisions (e.g., deed of trust or mortgage) including described real property;
3. plaintiff's status (e.g., note owner, payee, beneficiary, mortgagee, or assignee);
4. default of defendant supporting right to foreclose (e.g., breach, nonpayment of principal or interest);
5. interests claimed in the property by other defendants; and
6. attorney's fees and other expenses, if provided for in the security instrument.

5 Witkin Cal. Pro. (5th 2008) Pleading §675; Cal. Civ. Prac. Real Property Litig. (Thomson Reuters 2012) §4:116. See also Arabia v. BAC Home Loans Servicing, L.P. (2012) _ Cal.App.4th _, _, 2012 WL 3264380, 4 (plaintiffs must establish loan is in default, and amount, before court will order the property sold towards satisfying the balance, and a deficiency judgment against the debtor will be the difference between the fair market value at the time of foreclosure, and the amount of indebtedness).

Just because Plaintiffs dismissed other claims for relief, the facts upon which the foreclosure claims remain well pled, and previously adjudicated, by this Court.

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.