Daniel Botwinis vs. Patrice Fleming et al

January 26, 2026 Truckee Civil Law & Motion Tentative Rulings

1. CL0003210 WELLS FARGO BANK, NA vs. MARTIN B BARRON JR, an individual

Appearance required by Plaintiff to show cause as to why this case should not be dismissed and/or Plaintiff sanctioned for failure to serve the Summons and Complaint on Defendant despite the fact this case has been pending for almost five (5) months and a declaration re non-service was filed on October 7, 2025.

Absent good cause being shown, the Court intends, on its own motion, to set the matter for dismissal pursuant to CCP section 583.420 and vacate the trial date set for May 15, 2026 at 11:00 a.m.

2. CL0002502 WELLS FARGO BANK, N.A. vs. JAMIE LAMOUREUX, an individual

Appearance required by Plaintiff to show cause as to why this case should not be dismissed and/or Plaintiff sanctioned for failure to file a request for default judgment despite the fact default was entered as requested over three (3) months ago.

Absent good cause being shown, the Court intends, on its own motion, to set the matter for dismissal pursuant to CCP section 583.420.

3. CL0002625 Absolute Resolutions Investments LLC vs. Jamie Lamoureux

Appearance required by Plaintiff to show cause as to why this case should not be dismissed and/or Plaintiff sanctioned for failure to file a request for default/default judgment despite the fact Defendant was served with the Summons and Complaint over eight (8) months ago.

Absent good cause being shown, the Court intends, on its own motion, to set the matter for dismissal pursuant to CCP section 583.420.

4. CL0003244 JPMORGAN CHASE BANK, N.A. vs. Dolores Corona

Appearance required by Plaintiff to show cause as to why this case should not be dismissed and/or Plaintiff sanctioned for failure to serve the Summons and Complaint on Defendant despite the fact this case has been pending for almost five (5) months.

Absent good cause being shown, the Court intends, on its own motion, to set the matter for dismissal pursuant to CCP section 583.420 and vacate the trial date set for May 15, 2026 at 11:00 a.m.

5. CU0000657 Daniel Botwinis vs. Patrice Fleming et al

Defendants’ Coldwell Banker Real Estate, LLC; NRT West Inc.; Alan Nicholls; Kirstin Wilson; and Pilar Zolezzi Rioja (“CB Defendants”) unopposed motion for summary adjudication as to the causes of action for intentional tort (battery) and claim for punitive damages against the CB Defendants is granted.

Legal Standard

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. See Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.

“A party may move for summary adjudication as to one or more causes of action within an action...[or] one or more claim for damages as specified in Section 3294 of the Civil Code.” Code Civ. Proc. § 437c(f)(1).

In moving for summary judgment or summary adjudication, a “defendant . . . has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to the cause of action.” Code Civ. Proc. § 437c(p)(2).

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. See 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.

Thus, once the defendant has satisfied their burden, the burden shifts to the plaintiff “to show, by responsive separate statement and admissible evidence, that triable issues of fact exist.” Ostayan v. Serrano Reconveyance Co. (2000) 77 Cal. App. 4th 1411, 1418 (disapproved on other grounds by Black Sky Cap., LLC v. Cobb (2019) 7 Cal. 5th 156, 165); see also Code Civ. Proc. § 437c(p)(2).

A plaintiff’s failure to provide a separate statement with the opposition may “constitute a sufficient ground, in the court’s discretion, for granting the motion.” Code Civ. Proc. § 437c(b)(3).

Analysis

“The essential elements of a cause of action for battery are: (1) defendant touched plaintiff, or caused plaintiff to be touched, with the intent to harm or offend plaintiff; (2) plaintiff did not consent to the touching; (3) plaintiff was harmed or offended by defendant’s conduct; and (4) a reasonable person in plaintiff’s position would have been offended by the touching.” So v. Shin (2013) 212 Cal.App.4th 652, 669.

“The crimes of assault and battery are intentional torts. In the perpetration of such crimes negligence is not involved.” Bartosh v. Banning (1967) 251 Cal.App.2d 378, 385.

“In an action for civil battery the element of intent is satisfied if the evidence shows defendant acted with a ‘willful disregard’ of the plaintiff’s rights.” Ashcraft v. King (1991) 228 Cal.App.3d 604, 613 (internal citation omitted).

A claim for punitive damages is defined by Civil Code § 3294, and includes damages, where, “[i]n an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud, or malice, the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.” Civ. Code § 3294(a).

Malice, fraud and oppression are defined as conduct “intended by defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others”; “despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights”; and “an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of...causing injury.” Civ. Code § 3294(c)(1)-(3).

“Mere negligence, even gross negligence, is not sufficient to justify such an award” for punitive damages. Kendall Yacht Corp. v. United California Bank (1975) 50 Cal. App. 3d 949, 958.

For an employer to be liable for punitive damages for the actions of an employee, it must be shown that “the employer had advance knowledge of the unfitness of the employee and employed him or her with a conscious disregard of the rights or safety of others or authorized or ratified the wrongful conduct for which the damages are awarded or was personally guilty of oppression, fraud, or malice.” Civ. Code § 3294(b).

“With respect to a corporate employer, the advance knowledge and conscious disregard, authorization, ratification or act of oppression, fraud, or malice must be on the part of an officer, director, or managing agent of the corporation.” Ibid.

The Court finds Defendants’ separate statements of undisputed facts in support of summary adjudication of the cause of action for intentional tort (battery), which reference Defendants’ evidence, suffice to establish that one or more elements of the claim fail as a matter of law.

Specifically, the undisputed facts show that the cause of action for intentional tort (battery) has no merit for the following reasons: none of the CB Defendants physically touched Plaintiff or put in motion causing Plaintiff to be touched on the day of the incident (SSUMF ## 4, 6, 9); none of the CB Defendants created or placed the bear mat in front of the front door to the premises (SSUMF ## 3, 5, 7, 9); there is no evidence the CB Defendants caused Plaintiff to be touched with the intent to harm or offend him (SSUMF ## 3-15).

More, the undisputed facts as to the prayer for punitive damages as to these Defendants show that the claim for punitive damages has no merit for the following reasons: there is no evidence any of the CB Defendants ever intended to harm or injure Plaintiff prior to the incident (SSUMF ## 11, 14, 15); there is no evidence any of the CB Defendants either intentionally omitted information about the bear mat (SSUMF # 11) or had actual knowledge of the presence of the bear mat at the premises prior to the (SSUMF # 13, 15).

Additionally, there is no evidence that an officer, director, or managing agent of the corporation Defendants had advance knowledge or intended to harm Plaintiff. (SSUMF # 11, 13-15).

Conclusion

Accordingly and considering the shifting of the burden of proof to Plaintiff, who has not opposed the motion, the unopposed motion for summary adjudication is granted.

6. CU0001398 Brianna Vigrass v. Avian Borden, et al.

No appearance required. Petitioner’s Second Amended Petition is approved without additional appearance taking note Petitioner, the minor and counsel appeared previously in this matter, and Petitioner has now filed the second amended petition addressing the issues raised by the Court previously.

Accordingly and as indicated by the Court previously, Petitioner’s and counsel’s appearance is waived for today’s proceeding.

7. CU0001662 Pankaj Gupta vs. Bamboo Ide8 Insurance Services et al

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