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Tentative Rulings, Nevada City - Law and Motion

>Case No. CU14-080535, Stevens v. Utility Tree Service, 3/27/2015
>Case No. P14-15576, Wallace Trust v. Schaub, 3/27/2015
>Case No. CU09-074323, ACIC v. Pavone, 3/27/2015 10:30 a.m. - Pro Tem Bradrick
>Case No. CU15-081046, Leadford v. Herghelegiu, 3/27/2015

Case No. CU14-080535, Stevens v. Utility Tree Service, 3/27/2015 

Mr. Thyberg’s unopposed Motion to be Relieved as Counsel is granted. This order shall become effective upon filing proof of service of the signed order after hearing on client and opposing counsel.

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. P14-15576, Wallace Trust v. Schaub, 3/27/2015 

The Demurrer to the First Amended Petition is sustained with leave to amend.

The Petition fails to state a claim as currently pled.

The terms of the Foundation trust are very clear. It is irrevocable. ¶9. The donors/grantors get the income for life. ¶2(A). The managing trustee, who is Schaub, has all the powers to do all acts “as if the absolute owner thereof.” ¶5(7). Thus, Schaub may invest and distribute accordingly. There is a limited right of amendment. ¶10. Only Schaub can amend, and he can only amend if it is needed to comply with the Internal Revenue Code.

There are no provisions in the trust that prohibits Schaub from distributing money to charities while the Wallaces were still alive. So, if the Wallaces wanted to give money to a charity, he could write the check. This activity does not affect the terms of the trust. Schaub, at any time, could have objected to that distribution. Based on the facts presented, however, he just never did. The “conduct” that Petitioner relies on in an attempt to vary the terms of the trust is actually fully consistent with the terms of the trust.

The petition, as currently pled, does not state a claim. The orders sought are in direct contravention to the plain, unambiguous terms of the trust.

However, leave to amend is granted. “Unless the complaint shows on its face that it is incapable of amendment, denial of leave to amend constitutes an abuse of discretion, irrespective of whether leave to amend is requested or not.” McDonald v. Superior Court (1986) 180 Cal.App.3d 297, 303-304; City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 747.

Any Amended Petition must be served and filed by April 6, 2015.

Respondent’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. CU09-074323, ACIC v. Pavone, 3/27/2015 10:30 a.m. - Pro Tem Bradrick 

This tentative ruling is issued by Pro Tem Judge Angela L. Bradrick. If oral argument is requested, such oral argument shall be heard on Friday, March 27, 2015, at 10:30 am in Dept. 6. Courtcall is permitted.

The Yeager Claimants’ Motion for Disbursement of Funds is granted in part with instructions.

Initially, the Court finds that the Yeager claimants are the only remaining claimants to the funds on deposit with the court. Thus, Victoria D’Angelo Yeager, Charles Yeager, and Charles Yeager as trustee of the Charles Yeager Trust are jointly entitled to the funds. A Judgment in favor of these three claimants jointly shall issue in the amount of the current principal balance of $266,741.00 and interest thereon.

However, because the Notice of Lien filed with the court on June 25, 2010 by the Bowlin parties, along with the order for attorney’s fees from that same court, exceeds the funds on deposit with the court, this court cannot distribute any funds to the Yeager parties at this time.

Rather, the Judgment Creditors are directed to file an application seeking an order that the claimants’ rights to money under the judgment created above be attached or otherwise applied to the satisfaction of the lien pursuant to CCP §491.460. An accounting of funds received as a credit against the judgment shall be provided along with the application, addressing the points set forth in the reply to the motion for disbursement.

The Bowlin parties’ 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. Counsel is also directed to prepare the Judgment set forth above.

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. CU15-081046, Leadford v. Herghelegiu, 3/27/2015 

Defendants’ Motion to Expunge Lis Pendens is denied.

Code of Civil Procedure Section 405.30 provides that property owners may seek to remove an improperly recorded lis pendens by filing a motion to expunge, based upon any of several statutory bases, including: The pleading does not contain a real property claim (see CCP §405.31); claimant failed to comply with the requirements of Section 405.22 (see §405.23); claimant failed to establish the probable validity of a real property claim by a preponderance of the evidence (see §405.32); claimant is secured by an undertaking (see §405.33); and, claimant failed to file an undertaking ordered by the court (see §405.34). Kirkeby v. Sup. Ct. (2004) 33 Cal. 4th 642, 648.

When a motion to expunge a lis pendens is filed, the burden is on the opposing party to show that the complaint contains allegations of a real-property claim, and to evidence the probable validity of the claim based upon a preponderance of evidence. CCP §§405.32, 405.30; Kirkeby v. Sup. Ct. (2004) 33 Cal. 4th 642, 648; Weil & Brown, Civ. Pro. Before Trial (The Rutter Group 2012) ¶9:436.

"Plaintiff may establish the prima facie merit of his action by competent material allegations in a verified complaint, by affidavit, or by other proof allowed by the trial court." McKnight v. Sup. Ct. (1985) 170 Cal.App.3d 291, 299 ("The material allegations of the verified complaint demonstrate that no valid basis exists for expungement of the lis pendens on the ground that plaintiff did not present a prima facie case affecting title to the subject real property.").

In the present case, the verified complaint establishes all elements for a prima facie case affecting title to the two parcels of real property at issue. Thus, the pleading contains a real property claim. The motion is denied.

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.