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Tentative Rulings, Nevada City - Law and Motion

>Case No. CU13-079790, Wermes v. Beneficial California, 4/18/2014
>Case No. CU13-079359, Barrie v. CalTrans, 4/18/2014
>Case No. CU11-077856, Nagler v. Johnson, 4/18/2014
>Case No. CU12-079154, Roth v. Swope Medical Group, 4/18/2014
>Case No. CU09-074323, American Contractors Indemnity Company v. Pavone, 4/18/2014
>Case No. CU14-080226, Lighter v. US Bank 4/18/2014
>Case No. CU12-079115, Croft v. Deutsche Bank, 4/18/2014
>Case No. CU13-079657, Lollich v. FedEx, 4/18/2014

Case No. CU13-079790, Wermes v. Beneficial California, 4/18/2014 

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

As for the first cause of action for breach of contract, the demurrer is sustained. Plaintiffs fail to allege the terms of the contract verbatim or attach said contract to the Second Amended Complaint. The court is unable to determine if Plaintiffs allege the purported modifications were the contracts that were breached, or if the original Note and Deed of Trust are the contracts that are alleged to have been breached. There are a mis-mash of allegations without clarification. Plaintiffs have also failed to allege that they fully performed under the agreement and their damages.

As to the second cause of action for fraud, the demurrer is sustained. The cause of action fails because it is not pled with specificity: how, when, where, to whom, and by what means. Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73. Also, claims against a corporation must include the names of the persons who made the misrepresentation, their authority, to whom they spoke, what they said, and when it was said. Tarmann v. State Farm Mut. Auto. Ins. Co. (1991) 2 Cal.App.4th 153, 157. Plaintiffs repeatedly make only generalized allegations regarding “Agents of Beneficial” without names, dates, or the specific words or statements used. Conclusory allegations are not permitted for fraud claims.

As to the third cause of action for violation of B&P §17200, the demurrer is sustained. Because this claim is dependent upon the other causes of action which are not properly pled, this claim, too, fails.

As to the fourth cause of action for breach of the implied covenant of good faith and fair dealing, the demurrer is sustained. Plaintiffs have failed to plead an underlying contract and the purported breach is not tethered to any express contractual provision.

The burden is on the complainant to show the court that a pleading can be amended successfully, in order to obtain an order allowing leave to amend. McKenney v. Purepac Pharmaceutical Co. (2008) 167 Cal.App.4th 72, 78; Weil & Brown, Cal. Prac. Guide: Civ. Pro. Before Trial (The Rutter Group 2010), ¶7:130 (citing Goodman v. Kennedy (1976) 18 Cal.3d 335, 349). Because plaintiff has failed to show the court that the pleading can be amended successfully, leave to amend is denied. Furthermore, Plaintiffs have had multiple opportunities to correct these defects, and have failed to do so.

Defendant is directed to file both an order after hearing and a judgment of dismissal. The currently set trial, PTC, and MSC dates are hereby vacated.

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.

EXECUTIVE ORDER NO. 135: INTERIM CHANGE TO LOCAL RULE 4.05.3

Local Rule 4.05.3 A. is hereby changed to read “Tentative Rulings will be available by 10:00 a.m. of the court day before each regularly scheduled law and motion calendar and posted on the Court’s website (www.nevadacountycourts.com) not later than 2:00 p.m. of the court day before the scheduled hearing.”

This change will become effective on April 1, 2013 and will be reflected in the next regular revision of the Local Rules of this Court.


Case No. CU13-079359, Barrie v. CalTrans, 4/18/2014 

Defendant’s Motion to Compel Further Responses has been continued by the moving party to May 2, 2014, at 10:00 am in Dept. 6. No appearances are required.

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.

EXECUTIVE ORDER NO. 135: INTERIM CHANGE TO LOCAL RULE 4.05.3

Local Rule 4.05.3 A. is hereby changed to read “Tentative Rulings will be available by 10:00 a.m. of the court day before each regularly scheduled law and motion calendar and posted on the Court’s website (www.nevadacountycourts.com) not later than 2:00 p.m. of the court day before the scheduled hearing.”

This change will become effective on April 1, 2013 and will be reflected in the next regular revision of the Local Rules of this Court.


Case No. CU11-077856, Nagler v. Johnson, 4/18/2014 

Cross-Complainant Johnson’s Motion for Summary Adjudication Against Cross-Defendant Black Bart’s Duty to Defend is granted.

Request for Judicial Notice

Cross-Complainant’s Request for Judicial Notice is granted in its entirety.

Objections to Evidence

Cross-Defendant’s Objections to Evidence are sustained as to items 4 (hearsay) and 5 (hearsay). The remaining objections are overruled.

The court notes that it may take judicial notice that pleadings were filed containing certain allegations and arguments, but a court may not take judicial notice of the truth of the facts alleged. Evidence Code §452(d); Oiye v. Fox (2012) 211 Cal.App.4th 1036. Thus, as to items 1 and 2, the First Amended Complaint and the Cross-Complaint, the court takes judicial notice of the allegations contained therein, but not of the truth of the facts alleged.

Standard of Review

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843. In analyzing motions for summary judgment, courts must apply a three-step analysis: (1) identify the issues framed by the pleadings to be addressed; (2) determine whether moving party showed facts justifying a judgment in movant's favor; and (3) determine whether the opposing
party demonstrated the existence of a triable, material issue of fact. Sun v. City of Oakland (2008) 166 Cal.App.4th 1177, 1182-83; McGarry v. Sax (2008) 158 Cal.App.4th 983, 994; Hinesley v. Oakshade Town Center (2005) 135 Cal. App. 4th 289, 294.

Analysis

The subcontract agreement between Johnson and Black Bart specifically includes an indemnity provision which provides that Black Bart will hold Johnson “harmless from and against all of the following: 1. Any claim, liability, loss, damage, cost expenses, including reasonable attorney’s fees, awards, fines or judgments arising by reason of…design defects… or other loss, damage or expenses, including any of the same…” [SSUMF #13]

The First Amended Complaint provides, “All defendants were in some way involved in either the construction of the deck and/or its component parts or parts that were and are adjacent to and/or tied in to the deck. Defendants, and each of them, carelessly constructed and/or repaired the deck and/or supplied materials which were defective or not designed to be incorporated into this deck’s construct…” [RJN #1]

The Cross-Complaint alleges in the first cause of action that the Subcontract Cross-Defendants were subject to written subcontracts which provided for indemnity and that Cross-Complainant had tendered its defense. [RJN #2]

In the case of Crawford v. Weather Shield Mfg. Inc. (2008) 44 Cal.4th 541, the California Supreme Court set forth the requisite elements that must be established for an indemnitee to prevail against an indemnitor for breach of the duty to defend in the context of a construction defect action: (1) a claim against the indemnitee; (2) arising out of, or related to, the work of the indemnitor; (3) which claim, as alleged, is encompassed by the parties’ agreement; (4) a tender of defense from the indemnitee to the indemnitor; (5) a lack of acceptance by the indemnitor; and (6) the absence of language in the parties’ agreement limiting or excluding a duty to defend under subdivision (4) of Civil Code section 2778.

Moreover, a “contractual promise to ‘defend’ another against specified claims clearly connotes an obligation of active responsibility, from the outset, for the promisee’s defense against such claims. The duty promised is to render, or fund, the service of providing a defense on the promisee’s behalf—a duty that necessarily arises as soon as such claims are made against the promisee, and may continue until they have been resolved.” Id at 553-554.

Here, it is undisputed that Plaintiffs made claims against Defendant/Cross-Complainant for defects to the deck and its component parts, that the subcontract between Cross-Complainant Johnson and Cross-Defendant Black Bart contains an indemnity provision that does not exclude a duty to defend, and that Cross-Complainant tendered its defense to Cross-Defendant. All other elements set forth under Crawford have been set forth and are undisputed.

In fact, the court notes that Cross-Defendant failed to present any evidence whatsoever in support of its opposition. There are no declarations or evidence provided in opposition to the motion.

Therefore, as Cross-Complainant has established all required elements to establish the duty to defend by Cross-Defendant Black Bart, and no evidence to contradict these facts has been presented, Cross-Complainant is entitled to summary adjudication as to the duty to defend.



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.

EXECUTIVE ORDER NO. 135: INTERIM CHANGE TO LOCAL RULE 4.05.3

Local Rule 4.05.3 A. is hereby changed to read “Tentative Rulings will be available by 10:00 a.m. of the court day before each regularly scheduled law and motion calendar and posted on the Court’s website (www.nevadacountycourts.com) not later than 2:00 p.m. of the court day before the scheduled hearing.”

This change will become effective on April 1, 2013 and will be reflected in the next regular revision of the Local Rules of this Court.


Case No. CU12-079154, Roth v. Swope Medical Group, 4/18/2014 

Defendant Zimmerman’s Motion for Summary Judgment and Defendants Hunter and Swope Medical’s Motion for Summary Judgment have been dropped by the moving parties. No appearances are required.

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.

EXECUTIVE ORDER NO. 135: INTERIM CHANGE TO LOCAL RULE 4.05.3

Local Rule 4.05.3 A. is hereby changed to read “Tentative Rulings will be available by 10:00 a.m. of the court day before each regularly scheduled law and motion calendar and posted on the Court’s website (www.nevadacountycourts.com) not later than 2:00 p.m. of the court day before the scheduled hearing.”

This change will become effective on April 1, 2013 and will be reflected in the next regular revision of the Local Rules of this Court.


Case No. CU09-074323, American Contractors Indemnity Company v. Pavone, 4/18/2014 

Respondent Pavone’s Motion for Distribution of Interpleaded Funds is continued by the request of the moving party to May 9, 2014, at 10:00 am, in Dept. 6. No appearances are required.

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.

EXECUTIVE ORDER NO. 135: INTERIM CHANGE TO LOCAL RULE 4.05.3

Local Rule 4.05.3 A. is hereby changed to read “Tentative Rulings will be available by 10:00 a.m. of the court day before each regularly scheduled law and motion calendar and posted on the Court’s website (www.nevadacountycourts.com) not later than 2:00 p.m. of the court day before the scheduled hearing.”

This change will become effective on April 1, 2013 and will be reflected in the next regular revision of the Local Rules of this Court.


Case No. CU14-080226, Lighter v. US Bank 4/18/2014 

The Motion to Exclude Evidence, the Motion to Declare Vexatious Litigants, the Motion to Consolidate, and the Demurrer are continued on the court’s own motion to May 9, 2014, at 10:00 am in Dept. 6, to be heard by Judge Charles Ervin. No appearances are required.

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.

EXECUTIVE ORDER NO. 135: INTERIM CHANGE TO LOCAL RULE 4.05.3

Local Rule 4.05.3 A. is hereby changed to read “Tentative Rulings will be available by 10:00 a.m. of the court day before each regularly scheduled law and motion calendar and posted on the Court’s website (www.nevadacountycourts.com) not later than 2:00 p.m. of the court day before the scheduled hearing.”

This change will become effective on April 1, 2013 and will be reflected in the next regular revision of the Local Rules of this Court.


Case No. CU12-079115, Croft v. Deutsche Bank, 4/18/2014 

Plaintiff’s unopposed Motion for Leave to File a Second Amended Complaint is granted as prayed. The proposed Second Amended Complaint shall be served and filed by April 28, 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.

EXECUTIVE ORDER NO. 135: INTERIM CHANGE TO LOCAL RULE 4.05.3

Local Rule 4.05.3 A. is hereby changed to read “Tentative Rulings will be available by 10:00 a.m. of the court day before each regularly scheduled law and motion calendar and posted on the Court’s website (www.nevadacountycourts.com) not later than 2:00 p.m. of the court day before the scheduled hearing.”

This change will become effective on April 1, 2013 and will be reflected in the next regular revision of the Local Rules of this Court.


Case No. CU13-079657, Lollich v. FedEx, 4/18/2014 

Plaintiff’s Stipulated Motion to Continue Trial is granted.

The case is hereby reclassified to Class 2, with a new disposition date of November 23, 2014. The currently set MSC, PTC, and trial dates are vacated.

A trial setting CMC is set for May 27, 2014, at 9:00 am in Dept. 6. Parties are directed to file updated CMC statements with available trial dates through November 2014 by May 16, 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.

EXECUTIVE ORDER NO. 135: INTERIM CHANGE TO LOCAL RULE 4.05.3

Local Rule 4.05.3 A. is hereby changed to read “Tentative Rulings will be available by 10:00 a.m. of the court day before each regularly scheduled law and motion calendar and posted on the Court’s website (www.nevadacountycourts.com) not later than 2:00 p.m. of the court day before the scheduled hearing.”

This change will become effective on April 1, 2013 and will be reflected in the next regular revision of the Local Rules of this Court.