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Tentative Rulings, Truckee - Law and Motion

>Hart v. Christman TCU13-5496
>Lewis v. First Franklin Mortgage TCU13-5535
>Kaufer v. Ally Financial TCL13-5533
>Riverview Townhomes Owners’ Association T10-4142C

Hart v. Christman TCU13-5496 

Defendant’s Motion for Reconsideration or for Relief or for Transfer is granted.

As an initial matter, the court notes that the declaration in support of the requested relief provides very few facts to support miscommunication or any explanation for the delay in forwarding court documents to another law office in the same state. Thus, the relief sought under CCP §473(b) for excusable neglect is weak. However, a mistake can be found based on the facts presented.

Therefore, the order setting aside the order transferring case is hereby set aside. This case shall be transferred to Orange County forthwith.

This order, however, is contingent upon Defense counsel’s payment of sanctions to the court in the amount of $100 and to Mr. Hardy in the amount of $100. Such sanctions shall be paid forthwith.

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.

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.


Lewis v. First Franklin Mortgage TCU13-5535 

Defendants’ Demurrer to the Amended Complaint is sustained without leave to amend.

Defendants’ Request for Judicial Notice is granted in its entirety.

As to the first 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. Plaintiff has not pled sufficient facts to demonstrate that defendants exceeded their traditional roles. Additionally, California law expressly rejects the proposition that a legal duty of care arises in connection with a borrower’s attempt at a potential loan modification. Ragland v. US Bank (2012) 209 Cal.App.3d 182. Plaintiff also fails to allege damages.

The demurrer to the fourth cause of action for breach of contract and the fifth cause of action for breach of the implied covenant relating to the deed of trust is sustained without leave to amend. As currently pled, the claim is barred by the statute of limitations because Plaintiff specifically alleges in paragraph 213 that the failure to record an assignment occurred in 2006. Moreover, Plaintiff failed to clearly state which provision in the deed of trust was breached as to these causes of action.

The demurrer to the ninth cause of action for fraudulent misrepresentation is sustained without 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 10th cause of action for civil conspiracy is sustained without leave to amend. Plaintiff has not pled sufficient and clear facts to support a formation and operation of a conspiracy.

The demurrer to the 11th cause of action for violation of the UCL is sustained without leave to amend. The claim fails for lack of standing because Plaintiff has not pled he suffered an injury in fact or any wrongful conduct (because all of the other claims upon which this cause of action is based fail).

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.

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.

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.


Kaufer v. Ally Financial TCL13-5533 

Cross-Complainant Ally Financial’s Application for Writ of Possession is continued on the court’s own motion to May 12, 2014, at 1:30 pm in Dept. A.

As an initial matter, Cross-Complainant failed to use the mandatory Judicial Council forms required for such application. See forms CD-100 and CD-110.

In addition, Code of Civil Procedure §515.010 requires the court to set an undertaking at twice cross-defendant’s interest in the vehicle. While the memorandum of points and authorities provides that cross-defendant has no interest, the application is not verified and the declaration in support of the application does not contain this information.

These defects must be corrected prior to the continued hearing date.

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.

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.


Riverview Townhomes Owners’ Association T10-4142C 

Plaintiff’s Motion for Leave to Amend the Complaint and Defendant James Hardie Building Products’ Motion for Summary Judgment are continued on the court’s own motion to April 28, 2014, at 1:30 pm in Dept. A, to be heard with Defendant Rounds & Broker’s Motion for Summary Judgment and Defendant Groves Fischer’s Motion for Summary Judgment.

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.