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. CU14-080329, Nevada City School District v. Calif. Dept. of Education, 9/19/2014 at 1:00 p.m - Judge Charles Ervin
>Case No. CU13-080193, Frazier v. Swan Investments, 9/19/2014
>Case No. CU14-080226, Lighter v. US Bank, 9/19/2014 - 1:00 pm, Judge Candace Heidelberger
>Case No. CU13-079980, Glaspey v. Strum, 9/19/2014
>Case No. CU14-080232, Arzt v. Goldstein, 9/19/2014

Case No. CU14-080329, Nevada City School District v. Calif. Dept. of Education, 9/19/2014 at 1:00 p.m - Judge Charles Ervin 

This tentative ruling is issued by Judge Charles Ervin. If oral argument is requested, such oral argument shall be heard on Friday, September 19, 2014, at 1:00 pm in Dept. 6. CourtCall is permitted.

Real Party J.H.’s Motion for Leave to Intervene and Demurrer

Real Party J.H.’s Motion for Leave to Intervene is granted and the demurrer is sustained as to the writ causes of action only, without leave to amend.

Code of Civil Procedure §389(a) provides:

A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party.

“Where the plaintiff seeks some type of affirmative relief, which, if granted, would injure or affect the interest of a third person not joined, that third person is an indispensable party.” Redevelopment Agency v. Commission on State Mandates (1996) 43 Cal.App.4th 1188, 1197.

In the present case, student JH claims an interest relating to the subject of this action and her absence may impair her ability to protect that interest. For example, if the Court were to rule that the CDE’s decision was erroneous—so that the school district did NOT have to pay the money for services--then the school district may thereafter seek repayment by JH and family. Clearly, JH should have the right to argue whether or not the CDE was proper in their determination. Her absence would impair her ability to protect that interest.

Thus, JH is an indispensable party as to the writ petition causes of action (one and two). The Court notes that the statute of limitations has expired to file such an action against JH. To clarify, JH is not an indispensable party as to the third cause of action for illegal expenditure of taxpayer funds, as any ruling in that cause of action would not prejudice any of JH’s interests.

Code of Civil Procedure §389(b) provides:

(b) If a person as described in paragraph (1) or (2) of subdivision (a) cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed without prejudice, the absent person being thus regarded as indispensable. The factors to be considered by the court include: (1) to what extent a judgment rendered in the person’s absence might be prejudicial to him or those already parties; (2) the extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided; (3) whether a judgment rendered in the person’s absence will be adequate; (4) whether the plaintiff or cross-complainant will have an adequate remedy if the action is dismissed for nonjoinder.

In the present case, the equitable considerations of section 389(b) do “not furnish a basis for refraining from dismissing the suit. Nor do any policy considerations underlying the rules for joinder of parties in section 389… call for a different result. The statutory and decisional law, properly applied, call for a dismissal…” See Save Our Bay Inc. v. San Diego Unified Port Dist. (1996) 42 Cal.App.4th 686, 699.

Thus, JH was required to be joined to the writ petition causes of action. Since Petitioners failed to join JH as a party within the applicable statute of limitations, it is appropriate to dismiss the first and second causes of action for writ of mandate entirely as to JH and all Respondents.

Respondents’ Demurrer to Entire Complaint and Third Cause of Action

The demurrer to the first and second causes of action for failure to name an indispensable party is sustained without leave to amend based on the analysis set forth above. JH is an indispensable party to these causes of action and the statute of limitations has passed upon which to add her as a party to the writ of mandate claims.

The demurrer is sustained with leave to amend as to the argument that no facts are set forth demonstrating any wrongful acts by the State Board of Education. Plaintiffs must plead actual facts regarding SBE’s actions or omissions.

The demurrer to the third cause of action for illegal expenditure of taxpayer funds is overruled. The precise language of Code of Civil Procedure 526a appears to limit its application to actions against officers of a county, town, city, or city and county of the state or any agent or other person acting on behalf of any of such entities. However, the statute is not so restricted in its application. See Blair v. Pitchess (1971) 5 Cal. 3d 258; Los Altos Property Owners Assn. v. Hutcheon (1977) 69 Cal. App. 3d 22.

Any amended complaint must be served and filed by September 29, 2014.

Petitioner’s attorney is to submit a formal order that sets out verbatim the tentative ruling herein for both matters 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. CU13-080193, Frazier v. Swan Investments, 9/19/2014 

Defendants Rough & Ready Land Co. & Miller’s Motion to Compel Plaintiffs’ Further Responses to Form Interrogatories and Defendants Rough & Ready Land Co. & Miller’s Motion to Compel Plaintiffs’ Further Responses to Request for Production of Documents are granted.

Parties failing to serve timely responses to discovery requests waive any objections thereto. Pelton v. Delta Packaging Prods. (2008) 165 Cal.App.4th 1658, 1577 n.13; Sinaiko Healthcare Consulting, Inc. v. Pac. Healthcare Consultants (2007) 148 Cal. App. 4th 390, 404.

“The court, on motion, may relieve that party from this waiver, based upon conditions that response in substantial compliance was served, and the failure was result of mistake, inadvertence or excusable neglect.” Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants (2007) 148 Cal. App. 4th 390, 408.

In the present case, Plaintiff served untimely responses in substantial compliance. However, no explanation for the failure to produce timely responses was provided in the Declaration of Mr. Haydu filed on September 8, 2014. Thus, this court is unable to find any mistake, inadvertence or excusable neglect. As such, Plaintiffs’ counsel’s request for relief from the waiver of the objections is denied.

Plaintiffs shall serve supplemental responses and responsive documents, without objections, to the Form Interrogatories and Request for Production of Documents, by September 29, 2014.

Defendants are awarded sanctions in the total amount of $1,000.

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. CU14-080226, Lighter v. US Bank, 9/19/2014 - 1:00 pm, Judge Candace Heidelberger 

This tentative ruling is issued by Judge Candace Heidelberger. If oral argument is requested, such oral argument shall be heard on Friday, September 19, 2014, at 1:00 pm, in Dept. 6. CourtCall is permitted.

Plaintiffs’ Motion to Tax Costs is granted in part and denied in part.

“'Prevailing party' includes the party with a net monetary recovery, a defendant in whose favor a dismissal is entered, a defendant where neither plaintiff nor defendant obtains any relief, and a defendant as against those plaintiffs who do not recover any relief against that defendant.’” Lincoln v. Schurgin (1995) 39 Cal. App. 4th 100, 104 (quoting CCP §1032).

Here, Defendant US Bank was dismissed. As such, it is a prevailing party and is entitled to allowable costs.

The motion to tax is granted as to the three transcript fees of $705.00, 741.50 and $705.00, as agreed to by Defendant US Bank.

The motion to tax is likewise granted as to the $177.50 for models, blowups and photocopies. “Costs for photocopies are allowable only if they are copies of exhibits; other copy costs are expressly disallowed by statute.” El Dorado Meat Co. v. Yosemite Meat and Locker Service, Inc. (2007) 150 Cal.App.4th 612, 618. As this case did not go to trial, the documents were not helpful to the “trier of fact” and the certification costs are not expressly permitted by the statute.

The motion to tax the three motion filing fees of $60 each is denied. Filing and motion fees are allowable as costs. CCP §1033.5(a)(1).

The motion to tax the CourtCall Fees of $344 is denied. "If a specific cost item is not identified in either section 1033.5, subdivision (a), or subdivision (b), it may be awarded in the trial court's discretion under section 1033.5, subdivision (c)(4), provided it satisfies the further requirement of section 1033.5, subdivision (c)(2), that it was reasonably necessary to the conduct of the litigation." Seever v. Copley Press, Inc. (2006) 141 Cal.App.4th 1550, 1558. Accord Gibson v. Bobroff (1996) 49 Cal. App. 4th 1202, 1207; Michell v. Olick (1996) 49 Cal. App. 4th 1194, 1200. Here, in its discretion, the court finds the costs were reasonable and necessary to the conduct of the litigation.




Defendant US Bank’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. CU13-079980, Glaspey v. Strum, 9/19/2014 

Plaintiffs’ Motion to Continue Trial is denied.

“Continuances are granted only on an affirmative showing of good cause requiring a continuance.” In re Marriage of Falcone and Fyke (2008) 164 Cal.App.4th 814, 823.

A trial court has broad discretion with regard to denying a request for a trial continuance. Pham v. Nguyen (1997) 54 Cal.App.4th 11, 13-18.

In the present case, Plaintiff’s counsel’s declaration in support of the motion does not establish good cause to continue the trial date. Plaintiff’s counsel provides only that Dr. Orisek has recommended a discogram. Counsel does not state that Plaintiff intends to undergo the discogram or for what date the discogram is set. No explanations are made regarding to delay in seeing Dr. Orisek or that Plaintiff or counsel has been diligent.

Defendant Chappell’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. CU14-080232, Arzt v. Goldstein, 9/19/2014 

Defendants’ Motion to Strike Portions of the Second Amended Complaint is granted in part without leave to amend.

The third cause of action in its entirety is hereby stricken. At the hearing on the prior demurrer, Plaintiff stipulated to dismiss Defendant Goldstein from this claim with prejudice. But, Goldstein was the only defendant and remains the only defendant listed as to this cause of action. Thus, pursuant to the stipulation and this court’s order after hearing from 8/1/14, this entire cause of action is stricken.

Section 2:23-25 of the Second Amended Complaint is stricken. This provision references the third cause of action which is stricken as set forth above.

Section 14:1-6 is also stricken. This provision makes allegations against Goldstein alone. However, he is not a named defendant as to the first cause of action.

The motion to strike the remaining provisions is denied. While there remains some mild improper use of the word “defendants” even though one defendant is named, the Second Amended Complaint is clear that only Defendant Softwareflair is a named defendant to these claims.

Any Answer must be served and filed by August 11, 2014.

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.