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Tentative Rulings, Truckee - Law and Motion

>A-Rooter-Man Plumbing v. Wolsheimer TCL14-5833
>Cambridge Real Estate v. Fike TUD14-5680
>California Capital Ins. v. Estrada TCL13-5566
>Arndell Family Trust v. Generation Mortgage TCU14-5809

A-Rooter-Man Plumbing v. Wolsheimer TCL14-5833 

Defendant’s Demurrer to the Complaint is sustained with leave to amend.

Civil Code § 8412 provides that a contractor may not enforce a lien unless the contractor records a claim of lien after the contractor completes the contract and before either 90 days after completion of the work or 60 days after the owner records a notice of completion or cessation. The complaint must show that the claim of lien was filed within the period. Clements v. TR Bechtel Co. (1954) 43 Cal.2d 227, 238.

Here, the complaint alleges that the work was complete on or about January 2, 2014. Thus, under Civil Cod § 8412, the 90 day period ended on or about 4/2/14. The complaint does not attach a copy of the lien or allege that a lien was recorded within that time frame. Where a plaintiff fails to record the lien within the time allowed by law, plaintiff waives its right to a lien. Stanislaus Lumber Co. v. Pike (1942) 51 Cal.App.2d 54, 58.

However, leave to amend is granted. Leave to amend must be allowed where there is a reasonable possibility of successfully stating a cause of action, even where parties do not request leave to amend in the trial court. Schulz v. Neovi Data Corp. (2007) 152 Cal. App. 4th 86, 92.

After a demurrer is sustained with leave to amend, plaintiffs may add new claims involving legal theories based upon prior allegations. Datig v. Dove Books, Inc. (1999) 73 Cal.App.4th 964, 983 n. 19.

Here, Plaintiff has alleged that it can successfully plead a claim for breach of contract or open book account. As such, leave to amend is granted.

Any amended complaint must be served and filed by September 18, 2014.

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) 582-7835 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.


Cambridge Real Estate v. Fike TUD14-5680 

Defendants’ Motion to Set Aside Default Judgment is denied.

Plaintiff recovered possession to the unit on February 18, 2014. Similar to a petition for relief from forfeiture under CCP §1179, the petition must be filed prior to restoration of the premises to the Plaintiff. See California Practice Guide; Landlord-Tenant (Rutter Group, 2014) 9:443. As possession was already restored to the Plaintiff, this motion is untimely and must be 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) 582-7835 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.


California Capital Ins. v. Estrada TCL13-5566 

This tentative ruling is issued by Judge John Kennelly. If oral argument is requested, such oral argument shall be heard on Monday, September 5, 2014, at 1:30 pm in Dept. A.

Plaintiff’s Motion for Attorney’s Fees and Expenses is granted in part.

In the present case, Plaintiff is entitled to attorney’s fees as prevailing party under Civil Code §1717 as the lease contains an attorney’s fees provision.

“The determination of what constitutes a reasonable fee generally ‘begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate….’” “[T]he lodestar is the basic fee for comparable legal services in the community; it may be adjusted by the court based on factors including, as relevant herein, (1) the novelty and difficulty of the questions involved, (2) the skill displayed in presenting them, (3) the extent to which the nature of the litigation precluded other employment by the attorneys, (4) the contingent nature of the fee award….” Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 154. Trial courts properly may use equitable considerations to reduce the lodestar amount of attorney fees, including on the basis that certain fees were unnecessary. EnPalm, LLC v. The Teitler Family Trust, etc. (2008) 162 Cal.App.4th 770, 778.

Here, the court finds that a reasonable number of hours for the work performed is 50 hours. A reasonable hourly rate for this community if $275/hr. Thus, Plaintiff is awarded attorney’s fees in the amount of $13,750. The expenses are granted as prayed.

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) 582-7835 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.


Arndell Family Trust v. Generation Mortgage TCU14-5809 

(1) Defendants Reverse Mortgage, Waterfall Victoria, Waterfall Asset, and NDEx
West’s Demurrer to First Amended Complaint

Defendants’ Request for Judicial Notice is granted in its entirety. A court may take judicial notice of the fact of a document's recordation, the date the document was recorded and executed, the parties to the transaction reflected in a recorded document, and the document's legally operative language, assuming there is no genuine dispute regarding the document's authenticity. From this, the court may deduce and rely upon the legal effect of the recorded document, when that effect is clear from its face. Fontenot v. Wells Fargo (2011) 198 Cal.App.4th 256, 265.

The demurrer as to all causes of action based on uncertainty is sustained with leave to amend. The First Amended Complaint is uncertain as to which defendant each cause of action is alleged against. See California Rule of Court 2.112(4).

The demurrer to the first cause of action for breach of contract is sustained with leave to amend. Plaintiffs essentially allege that they entered into an oral modification of the reverse mortgage which required the lender to advance and pay for future property taxes. But, there is no writing to support this contention. These allegations violate the Statute of Frauds. To the extent that Plaintiffs contend that the Statute of Frauds does not apply due to equitable estoppel, such facts must be set forth in the complaint.

The demurrer to the 2nd cause of action for breach of the covenant of good faith is sustained with leave to amend. Because there is no valid contract alleged, there can be no breach of the implied covenant, as it can only arise from contractual obligations.

The demurrer to the third cause of action for breach of fiduciary duty, the demurrer is sustained without leave to amend. Lenders and servicers do not owe a borrower a fiduciary duty. Perlas v. GMAC Mortgage (2010) 187 Cal.App.4th 429, 436.

As to fourth cause of action for negligence, the demurrer is sustained without leave to amend. A financial institution generally has no duty of care to a borrower unless the institution exceeds the scope of the traditional role of a lender of money. Nymark v. Heart Fed. Savings & Loan (1991) 231 Cal.App.3d 1089, 1095. Lenders do not have a common-law duty of care in negligence, to offer, consider, or approve a loan modification, to offer foreclosure alternatives, or to handle loans so as to prevent foreclosure. Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal. App. 4th 49, 68.

The demurrer to the fifth cause of action for fraudulent misrepresentation and the sixth cause of action for negligent misrepresentation is sustained with leave to amend. 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.

The demurrer to the seventh cause of action for wrongful foreclosure in violation of Civil Code § 2924 et seq is sustained without leave to amend. As can be seen by judicially noticeable documents, the substitution of trustee and the notice of default set forth all requirements.

The demurrer to the 8th cause of action for Civil Code § 2932.5 is sustained without leave to amend. The assignment of deed of trust was recorded as shown in the judicially noticeable documents. Further, the complaint fails to show any prejudice from the assignment because it did not change the obligations under the note. See Fontenot v. Wells Fargo Bank (2011) 198 Cal.App.4th 256. Additionally, the complaint fails to show prejudice because the deed of trust specifically stated that the note can be sold without prior notice to the borrower.

The demurrer to the ninth cause of action for cancellation of instruments is sustained with leave to amend. Plaintiffs fail to plead facts to support no legal or factual basis.

The demurrer to the 10th cause of action for B&P §17200 is sustained with leave to amend. Because Plaintiffs rely on the claims set forth above, which fail, this claim likewise fails.

The demurrer to the 11th cause of action for injunctive relief is sustained without leave to amend. Injunctive relief is a remedy, not a cause of action. See 5 Witkin, Cal. Procedure (5th ed.), Pleading, §822, at 238.

The demurrer to the 12th cause of action for declaratory relief is sustained with leave to amend. The very issues that are raised in this cause of action will be resolved by other causes of action so this request for declaratory relief is unnecessary and serves no purpose. California Ins. Guar. Ass’n v. Super. Ct. (1991) 231 Cal.App.3d 1617, 1623.

The demurrer to the 13th cause of action for slander of title is sustained with leave to amend. As set forth above and in the judicially noticeable documents the Assignment to Waterfall had been properly recorded.

The demurrer to the 14th cause of action for quiet title is sustained with leave to amend. , “It is settled that an action to set aside a trustee's sale for irregularities in sale notice or procedure should be accompanied by an offer to pay the full amount of the debt for which the property was security.” Mabry v. Superior Court (2010) 185 Cal.App.4th 208, 213, quoting Arnolds Management Corp. v. Eischen (1984) 158 Cal.App.3d 575, 578.


(2) Defendants Reverse Mortgage, Waterfall Victoria, Waterfall Asset, and NDEx
West’s Motion to Strike Portions of FAC

Defendants’ Motion to Strike is granted with leave to amend. Because the claims for fraud are not properly pled, there is no basis for the claims for punitive and exemplary damages.

(3) Defendant Generation Mortgage’s Demurrer to First Amended Complaint

Defendant’s Request for Judicial Notice is granted in its entirety. A court may take judicial notice of the fact of a document's recordation, the date the document was recorded and executed, the parties to the transaction reflected in a recorded document, and the document's legally operative language, assuming there is no genuine dispute regarding the document's authenticity. From this, the court may deduce and rely upon the legal effect of the recorded document, when that effect is clear from its face. Fontenot v. Wells Fargo (2011) 198 Cal.App.4th 256, 265.

Defendant’s Demurrer based on statute of limitations is sustained with leave to amend. The complaint alleges that Plaintiffs first learned of the depletion of funds in fall of 2009. Thus, any allegations based on the depletion of loan proceeds are barred by SOL of CCP 338. Further, to the extent the complaint relies on an oral contract, the statute of limitations is two years. It appears that any such claims for breach of oral contract may be barred.

The demurrer to the first cause of action for breach of contract is sustained with leave to amend. Plaintiffs essentially allege that they entered into an oral modification of the reverse mortgage which required the lender to advance and pay for future property taxes. But, there is no writing to support this contention. These allegations violate the Statute of Frauds. To the extent that Plaintiffs contend that the Statute of Frauds does not apply due to equitable estoppel, such facts must be set forth in the complaint.

The demurrer to the 2nd cause of action for breach of the covenant of good faith is sustained with leave to amend. Because there is no valid contract alleged, there can be no breach of the implied covenant, as it can only arise from contractual obligations.

The demurrer to the third cause of action for breach of fiduciary duty, the demurrer is sustained without leave to amend. Lenders and servicers do not owe a borrower a fiduciary duty. Perlas v. GMAC Mortgage (2010) 187 Cal.App.4th 429, 436.

As to fourth cause of action for negligence, the demurrer is sustained without leave to amend. A financial institution generally has no duty of care to a borrower unless the institution exceeds the scope of the traditional role of a lender of money. Nymark v. Heart Fed. Savings & Loan (1991) 231 Cal.App.3d 1089, 1095. Lenders do not have a common-law duty of care in negligence, to offer, consider, or approve a loan modification, to offer foreclosure alternatives, or to handle loans so as to prevent foreclosure. Lueras v. BAC Home Loans Servicing, LP (2013) 221 Cal. App. 4th 49, 68.

The demurrer to the fifth cause of action for fraudulent misrepresentation and the sixth cause of action for negligent misrepresentation is sustained with leave to amend. 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.

The demurrer to the seventh cause of action for wrongful foreclosure in violation of Civil Code § 2924 et seq is sustained without leave to amend. As can be seen by judicially noticeable documents, the recorded assignments of the Deed of Trust show that Generation no longer holds any interest as a matter of law.

The demurrer to the 8th cause of action for Civil Code § 2932.5 is sustained without leave to amend. The assignment of deed of trust was recorded as shown in the judicially noticeable documents. Further, the complaint fails to show any prejudice from the assignment because it did not change the obligations under the note. See Fontenot v. Wells Fargo Bank (2011) 198 Cal.App.4th 256. Additionally, the complaint fails to show prejudice because the deed of trust specifically stated that the note can be sold without prior notice to the borrower.

As to ninth cause of action for cancellation of instruments the demurrer is sustained without leave to amend. Plaintiffs seek to cancel the notice of default. But, Generation has no interest as a matter of law.
The demurrer to the 10th cause of action for B&P §17200 is sustained with leave to amend. Because Plaintiffs rely on the claims set forth above, which fail, this claim likewise fails.

The demurrer to the 11th cause of action for injunctive relief is sustained without leave to amend. Injunctive relief is a remedy, not a cause of action. See 5 Witkin, Cal. Procedure (5th ed.), Pleading, §822, at 238.

The demurrer to the 12th cause of action for declaratory relief is sustained with leave to amend. The very issues that are raised in this cause of action will be resolved by other causes of action so this request for declaratory relief is unnecessary and serves no purpose. California Ins. Guar. Ass’n v. Super. Ct. (1991) 231 Cal.App.3d 1617, 1623.

The demurrer to the 13th cause of action for slander of title is sustained with leave to amend. As set forth above and in the judicially noticeable documents that Generation no longer has any interest in the property.

The demurrer to the 14th cause of action for quiet title is sustained with leave to amend. , “It is settled that an action to set aside a trustee's sale for irregularities in sale notice or procedure should be accompanied by an offer to pay the full amount of the debt for which the property was security.” Mabry v. Superior Court (2010) 185 Cal.App.4th 208, 213, quoting Arnolds Management Corp. v. Eischen (1984) 158 Cal.App.3d 575, 578. Furthermore, the complaint must be properly verified under California law. CCP §446.

(4) Defendant Generation Mortgage’s Motion to Strike Portions of First Amended Complaint

Defendant’s Motion to Strike is granted with leave to amend. Because the claims for fraud are not properly pled, there is no basis for the claims for punitive and exemplary damages.

(5) Plaintiff’s Motion for Leave to Amend Complaint

Plaintiff’s Motion for Leave to Amend Complaint is denied. The motion was not timely served or filed. CCP §1005(b).

Any amended complaint must be served and filed by September 18, 2014.

Plaintiff’s attorney is to submit a formal order that sets out verbatim the tentative ruling for all matters 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) 582-7835 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.