Excerpt: ...ent Amendment to the Agreement (“the Amendment”) were entered into by individuals who were not named parties to the action and to which the Court's jurisdiction does not extend. This jurisdictional concern has been previously raised by the Court to counsel, yet it was not sufficiently briefed in conjunction with the instant motion. The Agreement and the Amendment provide that net proceeds shall be distributed first to reimburse Mr. Sarid for ...

Excerpt: ...ity Care Facilities Act (“The Act”). “A superior court must evaluate two interrelated factors when ruling on a request for a preliminary injunction: (1) the likelihood that the plaintiff will prevail on the merits at trial and (2) the interim harm that the plaintiff would be likely to sustain if the injunction were denied as compared to the harm the defendant would be likely to suffer if the preliminary injunction were issued.” Smith v. A...

Excerpt: ...dant and counsel elected not to participate in. Sanctions were therefore imposed. Mr. Pickering now brings this motion, asking the Court to reconsider the imposition of sanctions related to the Motion to Compel. CCP § 1008, which governs motions for reconsideration, provides that: [w]hen an application for an order has been made to a judge, or to a court, and . . . granted, . . . any party affected by the order may, within 10 days after service ...

Excerpt: ...nly allowed in exceptional cases. Balboa Ins. Co. v. Aguirre (1983) 149 Cal. App. 3d 1002, 1010. Because of the fundamental unfairness to opposing counsel, were the Court to consider these new pieces of evidence without providing an opportunity to respond, the Court declines to consider the new evidence in the reply briefing. Requests for Judicial Notice: Both parties request judicial notice be taken of the published opinion of the Third District...

Excerpt: ...s the Court take judicial notice of (1) a complaint filed in the federal case referenced in the moving papers; (2) Christine Eatmon's request for dismissal in this action; (3) plaintiffs' answer to the cross‐complaint in this action; and (4) the Declaration of Jason Eatmon filed in support of Christine Eatmon's previous motion for protective order. Cal. Evidence Code section 452 governs the taking of judicial notice. “Although the existence o...

Excerpt: ... the pleadings.” Coyne v. Krempels (1950) 36 Cal. 2d 257, 262. A motion for judgment on the pleadings has the same function as a general demurrer but is made after the time for a demurrer has expired. Except as provided by statute, the rules governing demurrers apply. Cloud v. Northrup Crumman Corp. (1998) 67 Cal. App. 4th 995, 999. A motion for judgment on the pleadings is proper when “the complaint does not state facts sufficient to constit...

Excerpt: ...A Notice of Conditional Settlement of the entire action was filed by Plaintiff on August 17, 2018, indicating that a Request for Dismissal would be filed no later than November 15, 2021. An Order to Show Cause Re: Sanctions issued on April 19, 2019 to Plaintiff and Counsel for failure to appear at the Resolution Review hearing on April 15, 2019 and failure to timely proceed with default. This matter has been continued several times due to the com...

Excerpt: ...and October of 2017 at two different firms. Legal Standard. An attorney has a duty to maintain inviolate the confidence and, at every peril to himself or herself, to preserve the secrets of his or her client. Bus. & Prof. Code § 6068(e). The fiduciary nature of the attorneyclient relationship is one of the highest character, and is owed even after the termination of the relationship. Styles v. Mumbert (2008) 164 Cal. App. 4th 1163, 1167; citing ...

Excerpt: ... in the related Federal Bankruptcy cases. Cal. Evidence Code section 452 governs the taking of judicial notice. “Although the existence of a document may be judicially noticeable, the truth of statements contained in the document and its proper interpretation are not subject to judicial notice if those matters are reasonably in dispute.” Unruh‐Haxton v. Regents of University of California (2008) 162 Cal. App. 4th 343, 364 (internal citation...

Excerpt: ...H Kelly requests that the Court take Judicial Notice of 16 items, including pleadings filed by JH Kelly and AECOM in this Court and in Federal Court. Cal. Evidence Code section 452 governs the taking of judicial notice. “Although the existence of a document may be judicially noticeable, the truth of statements contained in the document and its proper interpretation are not subject to judicial notice if those matters are reasonably in dispute.�...

Excerpt: ...ction 128.5.” There does not appear to be any allegation here that the motion was filed for the purpose of causing unnecessary delay (in fact, as Defendant points out, several of the defendants charged in the FAC have not yet been served). The allegation is limited to the argument that the motion was frivolous. CCP §128.5 defines frivolous as “totally and completely without merit or for the sole purpose of harassing an opposing party.” “...

Excerpt: ...for the full amount demanded” in the underlying action. Defendant has objected, stating that he is complying with the terms of the agreement, and making scheduled payments, but never agreed to a term exposing him to liability greater than $15,000. Defendant has indicated he is willing to sign the settlement paperwork and comply with the terms to which he agreed, omitting item 4(E). This matter settled in open court on June 24, 2019. The ten mat...

Excerpt: ...ecessitates a substitution of attorney. That substitution of attorney has been filed as of October 4, 2019 (although the Court notes that defense counsel failed to use the mandatory Judicial Council Form MC‐050). “Before, during, or after a deposition, any party, any deponent . . . may promptly move for a protective order.” CCP §2025.420(a). On a showing of good cause, the court “may make any order that justice requires to protect any pa...

Excerpt: ...evaluate two interrelated factors when ruling on a request for a preliminary injunction: (1) the likelihood that the plaintiff will prevail on the merits at trial and (2) the interim harm that the plaintiff would be likely to sustain if the injunction were denied as compared to the harm the defendant would be likely to suffer if the preliminary injunction were issued.” Smith v. Adventist Health System/West (2010) 182 Cal. App. 4th 729, 749. In ...

Excerpt: ... However, even if the motion were to have been filed in a timely fashion, it is unlikely that the Court would grant it on the merits. There is no absolute right to counsel in civil cases. Payne v. Superior Court (Los Angeles) (1976) 17 Cal. 3d 908. A trial court is to exercise its “sound discretion” in determining the appropriate method by which to ensure meaningful access to the court. Jameson v. Desta (2009) 179 Cal. App. 4th 672, 678. Want...

Excerpt: ...e the motion has not been withdrawn, the Court will rule on the merits. Legal authority. Which county constitutes the proper venue in a particular case is determined according to CCP § 392 et seq. In applying these statutes, courts generally look to the main relief sought, as determined by the complaint. See Massae v. Superior Court (1981) 118 Cal.App.3d 527, 530. A defendant is entitled to have an action tried against him in his county of resid...

Excerpt: ...Defendant alleges that the clerk improperly exceeded his or her authority in entering default judgment against defendant and cites to CCP § 473(d) and the Court's inherent equitable powers to set aside a void judgment or order in support. Under CCP § 473(d), the court may, “on motion of either party after notice to the other party, set aside any void judgment or order.” Defendant alleges that the Revolving Loan Agreement relied upon by Plai...

Excerpt: ...ust grant that party leave to file the cross‐complaint so long as the party acted in good faith and has given proper notice to the adverse party. CCP § 426.50. The Court finds that the proposed cross‐complaint is compulsory as it “arises out of the same transaction, occurrence, or series of transactions or occurrences as the cause of action which the plaintiff alleges in his complaint.” CCP § 426.10(c). Specifically, the cross‐complai...

Excerpt: ...ction is based upon a contract, fails to make ascertainable whether the contract is written, oral, or implied by conduct (CCP § 430.10(g)). A demurrer is treated “as admitting all material facts properly [pled], but not contentions, deductions or conclusions of fact or law.” Hood v. Hacienda La Puente Unified School District (1998) 65 Cal.App.4th 435, 438. For purposes of ruling on a demurrer. the plaintiff's allegations must be accepted...

Excerpt: ...ion Code § 44808 and design immunity pursuant to Gov. Code § 830.6. Defendants' Objections to Evidence: Objection No. 1: OVERRULED Objection No. 2: SUSTAINED Objection No. 3: OVERRULED Objection No. 4: OVERRULED Factual Background: In May of 2016, Plaintiff was a second grade student at Boulder Creek Elementary School, part of the Enterprise Elementary School District. On May 16, 2016, at 1:56 p.m., the school bell rang and Plaintiff was dismis...

Excerpt: ...dge. When and if the Defendant is served, the moving party may have more certain information upon which to base this motion, and/or the parties may wish to stipulate to a different venue. Otherwise, this motion is denied at this time, without prejudice. The motion is DENIED without prejudice. A proposed order was lodged with the Court which will be modified to reflect the denial. ...

Excerpt: ...tion. This is a medical malpractice action relating to a hysterectomy procedure. Among other things, plaintiff is claiming emotional distress relating to the incident. Defendant submits that plaintiff has placed her therapy sessions with Ms. Zinn at issue, by claiming them as damages relating to alleged emotional distress. Ms. Zinn has also been mentioned repeatedly in plaintiff's responses to Form Interrogatories, Special Interrogatories, and de...

Excerpt: ...ated that the action will proceed to a default prove‐up hearing. Plaintiff Federal National Mortgage Association (FNMA) now moves for an order substituting MTGLQ Investors, L.P. (MTGLQ) as plaintiff in place of FNMA. The motion is brought because FNMA has transferred its beneficial interest in the property to MTGLQ. Following transfer of an interest in an action or proceeding, the action or proceeding may be continued in the name of the origina...

Excerpt: ...e motion was granted on September 25, 2017, and Ms. Salas was given leave to file a verified answer. When no verified answer was filed, Ms. Salas' default was taken on October 23, 2017. Proof of service relating to Vint Stevenson was next filed in December 2017. It demonstrated substituted service on May 4, 2017, and his default was taken on January 8, 2018. Nevertheless, an Order to Show Cause (OSC) re Monetary Sanctions issued from this Court i...

Excerpt: ...ith the Court. A Claim of Exemption has an unusual procedure. Most of the documents are “filed” by the parties with the levying officer. The only document filed directly with the Court by the Judgment Creditor is the “Notice of Hearing” which sets a hearing date. This document is served on both the levying officer and the Judgment Debtor. The service of this document triggers the levying officer to file with the Court the original Claim o...