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Tentative Rulings, Nevada City - Law and Motion

>Case No. CU14-080227, Rossetta v. Citimortgage, 10/31/2014
>Case No. CU13-079604, Cherms v. Franks, 10/31/2014
>Case No. CU14-080739, Patch v. County of Nevada, 10/31/2014
>Case No. CU11-077838, Perrie v. Crowe, 10/31/2014
>Case No. CU13-079802, Lipton v. Zoller, 10/31/2014

Case No. CU14-080227, Rossetta v. Citimortgage, 10/31/2014 

Plaintiffís Motion for Leave to File Third Amended Complaint and Defendants Citimortgage and US Bankís Demurrer to the Second Amended Complaint are continued on the courtís own motion to November 21, 2014, at 10:00, in Dept. 6, to allow the court additional time to review the pleadings.

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. CU13-079604, Cherms v. Franks, 10/31/2014 

Defendantsí Motion for Leave to Amend is denied without prejudice.

Procedurally, a motion for leave to file an amended pleading must include (1) a copy of the proposed and numbered amendment, (2) specifications by reference to pages and lines the allegations that would be deleted and added, and (3) a declaration specifying the effect, necessity and propriety, date of discovery and reasons for delay. CRC Rule 3.1324(a) Ė (b).

Defendants failed to provide a copy of the proposed amendment, a reference to pages and lines, or a declaration in support with the moving papers. The filing of some of these required documents with the reply documents is insufficient.

In addition, the court notes that the motion was not timely filed pursuant to CCP ß1005. The motion was required to be filed by October 8, 2014, but was not filed until October 9, 2014. In addition, the motion was not timely served. It was required to be served by mail by October 3, 2014, but was served on October 9, 2014.

Plaintiffsí 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 Courtís tentative ruling. In order to argue at the hearing, you must notify the parties and thereafter notify the courtís 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. CU14-080739, Patch v. County of Nevada, 10/31/2014 

Respondentís Demurrer to the Petition is overruled in part, sustained with leave to amend in part, and without leave to amend in part.

As an initial matter, Petitionerís counselís reference to the courtís comments at the prior hearing is improper. Such statements were comments, not findings, of this court. Counsel is admonished.

The Request for Judicial Notice is granted in its entirety.

The demurrer is sustained with leave to amend on the grounds that Petitioner has failed to allege that he has no adequate remedy of law. While Petitioner argues in the opposition that he has no adequate remedy at law, no such allegation is set forth in the Petition.

The demurrer to the first cause of action for procedural due process violations due to failure to consider constitutional issues and the second cause of action which alleges that the administrative review process exceeds the countyís authority because of the failure to consider Constitutional issues, are sustained without leave to amend. Petitioner has provided no legal authority to support the argument that hearing officers have the authority or the requirement to analyze Constitutional issues. Petitionerís reliance on the cases of Hamilton v. Gourley 103 Cal.App.4th 351 and US Ecology v. State of California 92 Cal.App.4th 113 are without merit, as neither case even remotely addressed such issue.

The demurrer to the third cause of action which alleges that the Countyís ordinance is preempted by state law and the sixth cause of action whereby Petitioner alleges cultivation is permitted by the legislature so it cannot constitute a nuisance, are sustained without leave to amend. California cities and counties may enforce marijuana cultivation statutes by nuisance actions and police powers. See City of Riverside v. Inland Empire Patients Health and Wellness Center (2013) 56 Cal.4th 729, 762; Maral v. City of Live Oak (2013) 221 Cal.App.4th 975, 806.

The demurrer to the fourth cause of action based allegations that the failure to consider subsequent remedial measures equated to a due process violation is overruled. The ordinance provides the hearing officer shall consider the matter de novo.

The demurrer for uncertainty to the fifth cause of action which alleges that the Countyís interpretation of a legally established ďresidenceĒ is improper is sustained with leave to amend. Petitioner has failed to allege any facts which explain how or why such an interpretation is erroneous or how such interpretation adversely affected his rights.

The motion to strike the Petition is granted with leave to amend. Code of Civil Procedure ß1086 requires Petitions to be verified by the beneficially interested party.

Any amended petition must be served and filed by November 10, 2014.

Moving partyís 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 Courtís tentative ruling. In order to argue at the hearing, you must notify the parties and thereafter notify the courtís 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. CU11-077838, Perrie v. Crowe, 10/31/2014 

RCAís Motion for Order Determining Judgment Creditorís Rights to Money & Enforcement of Lien is denied.

A dismissal of the entire action with prejudice was filed on January 23, 2013. Voluntary dismissal of an entire action deprives the court of both subject matter and personal jurisdiction in that case, except for the limited purpose of awarding costs and attorney fees. Lewis C. Nelson & Sons, Inc. v. Lynx Iron Corp. (App. 5 Dist. 2009) 94 Cal.Rptr.3d 468, 174 Cal.App.4th 67. After the proper exercise of the right to voluntarily dismiss an action or special proceeding a trial court lacks jurisdiction to enter further orders in the dismissed action or special proceeding, except for matters such as attorney's fees. In re Conservatorship of Martha P. (App. 4 Dist. 2004) 12 Cal.Rptr.3d 142, 117 Cal.App.4th 857.

Moreover, a Judgment Creditor who has filed a Notice of Lien does not become a party to the action, and such a lien does not exist until the making of an order allowing it. See Egly v. Superior Court (1970) 6 Cal.App.3d 476. As such, consent of the Judgment Creditor was not required prior to entering the dismissal.

Accordingly, this court lacks jurisdiction to make any orders in this case. It appears that this motion should more properly have been filed in the underlying case which contains the judgment.

Moving partyís 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 Courtís tentative ruling. In order to argue at the hearing, you must notify the parties and thereafter notify the courtís 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. CU13-079802, Lipton v. Zoller, 10/31/2014 

Appearances are required for hearing on the Stipulation Motion to Continue Trial.

Defendantís counselís declaration provides this court with no information regarding whether there are additional attorneys in his law firm that can take this matter to trial on the currently set trial date of January 27, 2015.

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.