Daley, Christopher V. Emmons, Shannon

CU0000944    Jaime Lopez vs. Tahoe Preservation Associates LP, et al. Plaintiff’s motion to compel further responses to interrogatories is granted with the exception of a further response by Care Housing GP LLC as to Interrogatory 3.2.  Plaintiff’s motion to compel production of documents is granted.  Plaintiff’s motion to deem requests for admissions as admitted is granted (unless responses without objections are produced prior to the hearing).   The objection to a further response to Interrogatory 3.2 as to Care Housing GP LLC is well founded.  That interrogatory has been answered.  Defendants’ remaining objections to all other discovery requests lack merit.  The discovery propounded seeks relevant information and is not overbroad, burdensome or oppressive, especially given the election by defendants to raise 25 different defenses in each answer. Sanctions are awarded to plaintiff in the amount of $3,150.00.  Defendants’ request for sanctions is denied. 

CU0000634    Carla Marie Vieira vs. Cal. Department of Transportation, et al. The June 14, 2024 hearing is continued from 10:00 a.m. to 3:00 p.m. in Dept. 6.  No appearances are required. Defendant California Department of Transportation’s (DOT) motions for summary judgment against Richard Knolle and Andrea Janecek, in their individual capacities, are denied.    The applicable law for this matter is well summarized in Simms v. Bear Valley Community Healthcare District (2022) 80 Cal.App.5th 391:  A claim for personal injury against a public entity, such as Simms's medical malpractice claim, generally must be presented to the public entity “not later than six months after the accrual of the cause of action.” ([Government Code] § 911.2, subd. (a).)  … “ ‘[F]ailure to timely present a claim for money or damages to a public entity bars a plaintiff from filing a lawsuit against that entity.’ ” (City of Stockton v. Superior Court (2007) 42 Cal.4th 730, 738, 68 Cal.Rptr.3d 295, 171 P.3d 20; § 945.4 [with limited exceptions, “no suit for money or damages may be brought against a public entity ... until a written claim therefor has been presented to the public entity and has been acted upon by the board, or has been deemed to have been rejected by the board”].) A claim has been presented to the public entity when the public entity “receives a document which contains the information required by section 910 and is signed by the claimant....” (Phillips [v. Desert Hosp. Dist. (1989) 49 Cal.3d 699, 707], 263 Cal.Rptr. 119, 780 P.2d 349; see § 910.2 [signature requirement].) The information required by section 910 includes the “date, place, and other circumstances of the occurrence or transaction which gave rise to the claim asserted” and “[a] general description of the ... injury, damage or loss incurred so far as it may be known at the time of presentation of the claim.” (§ 910, subds. (c), (d).) Where the claimant seeks less than $10,000, the claim must also state “the amount claimed,” including an estimate of any prospective damages, “together with the basis of computation of the amount claimed.” (Id., subd. (f).) Where the amount sought exceeds $10,000, “no dollar amount shall be included in the claim,” but the claim “shall indicate whether the claim would be a limited civil case.” (Ibid.) “[A] claim need not contain the detail and specificity required of a pleading, but need only ‘fairly describe what [the] entity is alleged to have done.’ ” (Stockett [v. Association of Cal. Water Agencies Joint Powers Ins. Authority (2004) 34 Cal.4th 441, 446], 20 Cal.Rptr.3d 176, 99 P.3d 500.) Moreover, “ ‘[w]here there has been an attempt to comply [with the claims statute] but the compliance is defective, the test of substantial compliance controls.’ ” (Wood v. Riverside General Hospital (1994) 25 Cal.App.4th 1113, 1118, 31 Cal.Rptr.2d 8 (Wood).) “Substantial compliance contemplates that there is at least some compliance with all of the statutory requirements.” (Del Real v. City of Riverside (2002) 95 Cal.App.4th 761, 769, 115 Cal.Rptr.2d 705 (Del Real).) … There is a recognized and important distinction, however, between a claim that is inadequate because it does not substantially comply with the requirements of section 910 and a document that is not a claim at all. “A claim that fails to substantially comply with sections 910 and 910.2 may still be considered a ‘claim as presented’ if it puts the public entity on notice both that the claimant is attempting to file a valid claim and that litigation will result if the matter is not resolved.” (Del Real, supra, 95 Cal.App.4th at p. 769, 115 Cal.Rptr.2d 705; see § 910.8 [requirement that public entity give notice “[i]f ... a claim as presented fails to comply substantially” with statutory requirements].) A “claim as presented” is also sometimes called a “trigger-claim” because its receipt by a public entity “triggers a duty by the public entity to notify the potential claimant of the claim's insufficiency stating, with particularity, the defects or omissions.” (Green v. State Center Community College Dist. (1995) 34 Cal.App.4th 1348, 1358, 1354, 41 Cal.Rptr.2d 140 (Green); see § 910.8 [requiring notice of insufficiency of claim]; see also § 911.3, subd. (a) [notice requirement for claims returned as untimely].) “If the public entity fails to send this notice, it waives any defenses as to the sufficiency of the claim based upon a defect or omission.” (Green, supra, 34 Cal.App.4th at p. 1358, 41 Cal.Rptr.2d 140; see § 911 [waiver by failure to give notice of insufficiency]; see also § 911.3, subd. (b) [waiver by failure to give notice of untimeliness].) (Simms, supra, 80 Cal.App.5th at 399–401.) At bar, the claim for $5 million dollars against the state, filed by an attorney on behalf of the decedent Judith Knolle and her estate, included both damages personal to the deceased, and damages personal to the survivors of the deceased.  The “burial and funeral expenses; pain and suffering” are claims by the estate of the deceased.  “[C]ompensation for the loss of the deceased’s companionship and support” can only be claimed by survivor(s) of the deceased.  The court need not decide whether sufficient information was disclosed on the face of the filed claim to reasonably enable California DOT to make an adequate investigation of the merits of the claim and to settle it without the expense of a lawsuit, had it desired. The court assumes, arguendo, that there was not substantial compliance.  That said, the court concludes nevertheless that this was a claim as presented or trigger claim.  DOT was placed on notice that the estate and  very likely survivors of the decedent were attempting to file a valid claim and that litigation would  result if the matter was not resolved.  This in turn triggered a duty by DOT to notify the potential claimant of the claim's insufficiency stating, with particularity, the defects or omissions.  That was not done here.  Where, as here, the public entity fails to send this notice, it waives any defenses as to the sufficiency of the claim based upon a defect or omission under Government Code section 911. Summary judgment is denied.

CL0000939     Discover Bank vs. Sharon Deal Appearances are required.  The court is favorably inclined to grant the motion to relieve counsel. 

CU0001178    Gregory Ludlum vs. Joshua Terranova, et al. The hearing on the demurrer is continued to 6/28/24.

CU0000562    Don Zeppenfeld, et al. v. Martin Reilley, et al. Defendants’ motion for reconsideration is continued until August 2, 2024 at 10:00 a.m.  Additional briefing is requested to address this question:  Is the instant lawsuit an “enforcement proceeding” for purposes of Code of Civil Procedure section 683.160?  Be sure to comment on the relevance, if any, of Code of Civil Procedure section 681.010.  Both parties’ briefs of no more than 5 pages shall be submitted by July 12, 2024 at noon.  No appearances are required.     

CL0000944     U.S. Bank National Association vs. Rocky Stone Dropped from the calendar.  A request for dismissal has been filed.

CU0000836    Leanne Price vs. James Kitchen, et al. Appearances are required for a hearing with Judge Picquet. 5-31-2024 Civil L&M Tentative Rulings

CU0000795    Mark G. Jones vs. Barbara L. Reamer, et al. The motion to consolidate and the motion for a stay are denied.  The motion for reclassification is denied without prejudice.  In the second amended complaint for the instant case, plaintiff Jones alleges wrongful foreclosure in connection with three properties (the Christie Lane property and the Copenhagen Drive properties) against, among others, three trustee sale purchasers of the properties: Sierra Asset Investors, SPFF, and Veritas Capital (the “trustee sale bidders”).  In case CL0001025, Sierra Asset Investors seeks to evict defendant Jones from the Christie Lane property.  As a preliminary matter, plaintiff Jones erroneously filed his motion to consolidate in the unlawful detainer case.  Notice should have been given to all parties in both cases, but the motion itself should have been filed in the instant case, which was the first in time and is the low-number case.  See Rules of Court, Rule 3.350. Turning to the merits, “Code of Civil Procedure section 1048 grants discretion to the trial courts to consolidate actions involving common questions of law or fact.”  Todd-Stenberg v. Dalkon Shield Claimants Trust (1996) 48 Cal.App.4th 976, 978.   At bar, the trustee sale bidders are named as defendants in counts four (injunction) and thirteen (quiet title), respectively.  Other than alleging that the trustee sale bidders purchased the properties at issue, the SAC includes the following allegation regarding these defendants: “they may have also wrongfully and/or unlawfully participated in the wrongful and illegal Trustee’s Sale of Plaintiff’s Property at foreclosure.”  SAC para. 95 (italics supplied).   All three defendants have been served, a default has been entered as to SPFF, and there presently is no answer or other responsive pleading from Sierra Asset Investors or Veritas Capital. On this record, the pleadings in the wrongful foreclosure action do not frame any material or significant issue of law or fact in common with the issues in the unlawful detainer action.  The unlawful detainer action has one overriding issue:  whether Jones has a right to possession of the property.  Contrary to the suggestion of Jones, both cases, as presently pled, do not involve complex issues regarding the determination of title.  “In unlawful detainer proceedings, ordinarily the only triable issue is the right to possession of the disputed premises, along with incidental damages resulting from the unlawful detention.”  Coyne v. De Leo (2018) 26 Cal.App.5th 801, 817; see, e.g., High v. Cavanaugh (1962) 205 Cal.App.2d 495, 498; Cheney v. Trauzettel (1937) 9 Cal.2d 158, 159.  More specifically, a plaintiff-purchaser in an unlawful detainer action need prove only that the sale was in compliance with Civil Code section 2924 and that they thereafter duly perfected title. See Stephens, Partain & Cunningham v Hollis (1987) 196 Cal.App.3d 948, 952.  “‘Matters affecting the validity of the trust deed or primary obligation itself, or other basic defects in the plaintiff's title, are neither properly raised in this summary proceeding for possession …, nor are they concluded by the judgment.’” MCA, Inc. v. Universal Diversified Enterprises Corp. (1972) 27 Cal.App.3d 170, 176, quoting, Cheney, 9 Cal.2d at 160. The request for a stay is denied for similar reasons.  No good cause has been demonstrated why the unlawful detainer proceedings herein must or should be held in abeyance pending resolution of the wrongful foreclosure action.  Plaintiff in the unlawful detainer action has a right to invoke use of summary unlawful detainer proceedings.  See Coyne, 26 Cal.App.5th at 817 (“The purpose of the unlawful detainer statutes is to provide the landlord with a summary, expeditious way of getting back his property when a tenant fails to pay the rent or refuses to vacate the premises at the end of his tenancy.”); see Vasey v. California Dance Co. (1977) 70 Cal.App.3d 742, 746.  General issues related to the validity of title are not properly part of the unlawful detainer action and, as necessary, can be resolved as part of the wrongful foreclosure action.  A stay, under the circumstances presented, is not warranted.    The motion for reclassification of the unlawful detainer case pursuant to Code of Civil Procedure section 403.040 is denied without prejudice.  That issue must be presented to and decided by the assigned judge in the unlawful detainer matter.    

CU19-083787 Michael Hayward Vs. Eva Krivak-Tetley The June 14, 2024 hearing is continued from 10:00 a.m. to 3:00 p.m. in Dept. 6.  No appearances are required. The motion to tax costs is denied.  The declaration in opposition establishes that the cost in question is the cost of a copy of the deposition of a co-defendant, which is a reasonably necessary litigation expense.  See Code Civ. Proc. § 1033.5. 6-7-24 Civil Law and Motion Tentative Rulings

CU0000079    Walter Crawford v. The County of Nevada Defendants’ motion for summary judgment is continued until July 26, 2024 at 10:00 a.m.   No appearances are required.

CU0001159    Jon Landon vs. Harmony Ridge Resorts, et al. The hearing on the demurrer is continued to 6/28/24.

CU21-085797  Koslin and Koslin Construction, Inc. vs. GV Development, LLC The motions for summary adjudication by defendant GV Development Group, LLC (GVD) and defendant Smith are denied.  Standard A defendant moving for summary judgment based on the affirmative defense of the statute of limitations carries its burden by presenting evidence establishing that the plaintiff’s claim is time barred; it then falls to plaintiff to counter with evidence creating a dispute about a fact relevant to that defense, that is, plaintiff must submit evidence that would allow a reasonable trier of fact to find in plaintiff’s favor on the statute of limitations issue.  See Genisman v. Carley (2018) 29 Cal.App.5th 45, 49. Second Cause of Action for Breach of the Confidential Agreement against Defendants Smith and GVD, Third Cause of Action For Breach of the Construction Agreement against Defendant GVD and Third Cause of Action for Breach of Agreements to Pay Change Orders against Defendant GVD Defendant GVD argues that both the second and third causes of action are time barred and that it is entitled to judgment as a matter of law.  Defendant Smith argues that the second cause of action is time barred.  Specifically, they argue the statute of limitations for these claims accrued no later than December 2015--pointing to various emails in the second half of 2015 to suggest that Smith/GVD breached the agreements at that time—and hence the claims were time barred as of December 2019.  See Exhibits C-I to GVD’s 1/11/24 Separately Bound Evidence.   The court is not persuaded. The instant action was filed in September 2021.  An action for breach of a written contract must be filed within four years of the breach.  See Code of Civil Procedure section 337(a).  As an initial matter, defendants appear to have failed to meet their burden of establishing a breach or repudiation in 2015 based on the e-mails presented.  The emails, standing alone, are subject to various interpretations/inferences and suggest the existence of a material dispute as to whether there was a breach or repudiation in 2015.  There is certainly no definitive statement or indication that defendants had breached or repudiated the agreements. See Exhibits C-I to GVD’s 1/11/24 Separately Bound Evidence.  Assuming defendants met their burden, there are sufficient disputed facts to defeat summary adjudication as to this issue. The evidence presented by plaintiff, in combination with the e-mails, creates a material dispute as to whether there was a definitive breach or repudiation in 2015.  See Koslin Decl. paras. 58-60, 61-73, Exs. 2 and 5.  Among other things, Koslin had asked via email in 2015 that unpaid invoices be credited to his capital account, which, per the terms of the confidential agreement, he could do at his sole discretion.   See Exhibits H and B to GVD’s 1/11/24 Separately Bound Evidence.  There is evidence that Koslin received a partial payment in January 2019.  See Exhibit 5 to Koslin Decl.   “A few months before the action was filed in 2021, Smith [told Koslin] ‘We will be paid all of our money back as soon as these three houses sell.’ [referring to certain lots that were substantially complete.]” Koslin Decl., para 47.  A reasonable juror could conclude, from all of the e-mails as well as the recollections of Koslin, that there was no definitive breach or repudiation in 2015.  Lastly, “when there are ongoing contractual obligations the plaintiff may elect to rely on the contract despite a breach, and the statute of limitations does not begin to run until the plaintiff has elected to treat the breach as terminating the contract.”  Romano v. Rockwell Internat., Inc. (1996) 14 Cal.4th 479, 489.  A reasonable trier of fact could conclude that this case involved an interrelated operating agreement, confidential agreement and construction contract and that plaintiff did not make an election to treat a breach by defendants as terminating the contract until 2021.  See Koslin Decl. paras 45- 46 and Exhibit 2.  Fourth Cause of Action for Fraud against Defendant Smith Defendants argue that this claim arose in 2011, is now time-barred, and that they are entitled to judgment as a matter of law.   The court is not persuaded.   As a preliminary matter, GVD is not named in this cause of action (although the prayer for relief references GVD).  GVD lacks standing to seek summary adjudication of this claim and its motion is denied on that basis alone.  Turning to the merits, in cases of fraud, the three year statute of limitations commences when the plaintiff discovers the injury.  See Code of Civil Procedure section 338(d). (In an action “on the ground of fraud”, “The cause of action in that case is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud ….”). At bar, the court assumes arguendo that both defendants have standing to seek summary adjudication of this claim and that both defendants met their burden of presenting evidence that plaintiff’s claim is time-barred by pointing to plaintiff’s complaint which alleges that Smith’s actions took place in 2011, ten years before the complaint was filed.  See Exhibit A, para 61 to 1/11/24 GVD’s Separately Bound Evidence.  That said, plaintiff has met his burden of presenting evidence that would allow a trier of fact to find that the claim is not time-barred.  Koslin declares:  “It was not until Smith wrote a letter on August 12, 2021, that I discovered that he had in fact reduced my capital account by $150,000 and that distributions were being calculated since 2011 based on that reduction in my capital account.”  Koslin Decl., para 48.  This statement in Koslin’s declaration is sufficient to raise a triable issue of fact that that fraud was undiscovered until 2021 and that the action did not accrue until that date.  The motions are denied in their entirety.

CU0001293    Minta Mae Stovall vs. WMPD LLC, et al. Plaintiff’s motion for trial preference is granted. Per Code of Civil Procedure section 36(f), the trial must be set within 120 days of the order granting preference. The trial and associated dates will be set at the June 24, 2024 case management conference. The motion of defendants Alderson and WMPD to quash service of summons is denied. As a preliminary matter, the court need not resolve plaintiff’s June 7, 2024 evidentiary objections to the Alderson declaration for purposes of this motion.  The court sustains plaintiff’s June 7, 2024 objections to MMSP/Alderson’s request for judicial notice. Alderson/WMPD first argue that they were exempt from service of process during Alderson’s court appearance in California due to the application of the “Immunity Rule.”  The court disagrees.  The Immunity Rule no longer applies under current law. See Severn v. Adidas Sportschuhfabriken, 33 Cal.App.3d 754, 762 (1973); Silverman v. Superior Ct., 203 Cal.App.3d 145, 149 (1988).  In addition, Alderson did not appear at the courthouse voluntarily, but to surrender on an arrest warrant.  Under these facts, the Immunity Rule would not apply even if the court were inclined to revive it.  Next, Anderson/WMPD argue that this court lacks personal jurisdiction because moving parties do not have sufficient minimum contacts with the state.  The court is not persuaded. “A court may exercise specific jurisdiction over a nonresident defendant only if: (1) the defendant has purposefully availed himself or herself of the forum benefits; (2) the controversy is related to or arises out of [the] defendant's contacts with the forum; and (3) the assertion of personal jurisdiction would comport with fair play and substantial justice.”  Pavlovich v. Superior Ct., 29 Cal.4th 262, 269 (2002) (citations and internal quotations omitted).  Here, the evidence presented, including the verified complaint, sufficiently establishes that Anderson/WMPD have purposely availed themselves of this forum’s benefits by taking an interest in, conducting transactions pertaining to, and commencing foreclosure proceedings on a real property located in this forum.  See Plaintiff Op, at 9:27-10:20. Anderson/WMPD also suggest that a forum selection clause compels that this matter be litigated in the state of Nevada.  Not so.  “[A] party may move to stay or dismiss the action on the ground of inconvenient forum.”  Miller-Leigh LLC v. Henson (2007) 152 Cal.App.4th 1143, 1150. The application of a forum selection clause is not properly before the court at this time for resolution and is irrelevant to the question of personal jurisdiction. In light of the court’s orders granting trial preference and the resulting accelerated trial timeline, moving defendants shall file their answer/responsive pleading by July 1, 2024.