Excerpt: ...lifornia Rules of Court, rule 3.920, 3.921. The order must set forth the exceptional circumstances justifying the appointment; the scope of the reference; the referee's name, etc.; the referee's powers and report requirements; and objection requirements; the fees; and a specific finding regarding the parties' ability to pay. Code of Civil Procedure section 639(d); California Rules of Court, rule 3.920(c), 3.922. Such orders are, however, generall...

Excerpt: ... Defendant's facts. Defendant fails to meet its burden on the first issue, the argument that Plaintiff has demonstrated unclean hands. Any party may move for summary judgment or adjudication. Code of Civil Procedure section 437c(a), (f). A defendant is entitled to summary judgment if demonstrating “that the action has no merit.” Code of Civil Procedure section 437c(a). For summary adjudication, the party may seek adjudication of one or more c...

Excerpt: ... section 396a; (3) Code of Civil Procedure section 446; (4) the Complaint fails to state a cause of action; (5) the complaint is based on hearsay in violation of Evidence Code section 1200; (6) the Complaint lacks authentication by a Real Party In Interest; and (7) the Court lacks Subject Matter Jurisdiction due to failure of the County to exhaust its administrative remedies. The demurrer is OVERRULED in its entirety. Defendant is required to ans...

Excerpt: ... loans worth approximately $10 million, each of which was secured by a deed of trust in one of Plaintiffs' three properties. Defendant contends that Plaintiffs repeatedly defaulted on certain loan covenants and as a result, Defendant notified Plaintiffs that it would impose the default interest rate if the defaults were not cured in 30 days. The first covenant default appears to be in July 2016 and relates to Plaintiffs' violation of Section 6.01...

Excerpt: ... In determining what venue rules to apply, courts look to whether an action is transitory or local. See, Brown v. Sup. Ct. (1984) 37 Cal.3d 477, 482, fn.5. This is determined at the outset from the allegations in the original complaint. Ibid. Where the main relief relates to real property rights, the action is local. Ibid. These include actions for recovery of possession of land; injury to real property, such as trespass; partition; foreclosure o...

Excerpt: ...party, it is normally an abuse of discretion to refuse to allow amendment if the denial will deprive a party of a meritorious claim or defense. Morgan v. Sup. Ct. (1959) 172 Cal.App.2d 527, 530; Mabie v. Hyatt (1998) 61 Cal.App.4th 581, 596. Thus, normally delay alone is not a sufficient reason to deny amendment, unless the delay has resulted in prejudice to another party. Hirsa v. Sup. Ct. (Vickers) (1981) 118 Cal.App.3d 486, 490. Prejudice exis...

Excerpt: ...r other remedy. However, Plaintiff fails to state facts sufficient to constitute any cause of action and the allegations are fundamentally unclear. Nothing indicates what Defendants actually did, who Defendant Claudine Kent even is or how she is involved, what defamation occurred, when, or the context or nature of it. As for demurring party, Plaintiff fails to state any statutory bases of liability, which is required for this Defendant as a gover...

Excerpt: ... 7, 8-9. Venue in transitory actions generally is properly in the county where the defendant resides, with certain exceptions. Code of Civil Procedure section 395(a). Venue in contract actions is also proper where the contract was entered into, i.e., where the words of acceptance were spoken, or where the obligation was to be performed. Code of Civil Procedure section 395(a). Contrary to the rule for actions against individuals, in actions agains...

Excerpt: ...ly when the plaintiff discovers, or through reasonable diligence should have discovered, the injury and its negligent cause. Leaf v. San Mateo (1980) 104 Cal.App.3d 398, 407. It has been well established that this standard applies to claims for professional medical negligence under Code of Civil Procedure section 340.5. See Kitzig v. Nordquist (2000) 81 Cal.App.4th 1384, 1391; Barber v. Sup. Ct (1991) 234 Cal.App.3d 1076. The failure to allege da...

Excerpt: ...he settlement checks were being prepared and would be sent to Plaintiffs. Accordingly to the Plaintiffs, it was not until February 6, 2019, that the defense first stated that the checks would not be sent without the signing of further documents. Therefore, the Court has made a proportional reduction of attorney fees from 14.4 hours to 10 hours, plus costs and fees. The award is against Defendant and his attorney as requested in the motion. The re...

Excerpt: ... were breached: Defendants issued policies which provided coverage in the form of monetary compensation to pay for repairing or rebuilding the improvements in the case of damage thereto; Defendants failed to pay funds sufficient to cover the rebuilding of the property improvements as allegedly provided in the policies; Plaintiffs state that Defendants failed to pay benefits due under specific coverage provisions which they list. See, e.g., FAC ¶...

Excerpt: ...authority to do so, by health-care directive or any other method. Flores v. Evergreen at San Diego, LLC (2007) 148 Cal.App.4th 581; Paparigan v. Libby Care Center, Inc. (2002) 99 Cal.App.4th 298, 302; Hogan v. Country Villa Health Services (2007) 148 Cal.App.4th 259. Defendants refer to a “durable power of attorney” attached to the Murray declaration, but the declaration includes no such exhibit and does not even refer to such an exhibit, ins...

Excerpt: ...itten. ¶BC-1. It includes a copy of the agreement. Defendant argues that the complaint is untimely, but nothing in the complaint shows any cause of action to be untimely. Plaintiff shows that the parties entered into the contract in September 2010 but states that Defendant has breached the contract from 2016 through the present. Claims for breach of written contract fall under the four- year statute of limitations of Code of Civil Procedure sect...

Excerpt: ...t payable to Plaintiff for services which she provided in this litigation, which notice must not set forth any claimed amount owed and must not indicate that Kyrias is a judgment creditor against Plaintiff or that Plaintiff is a judgment debtor, or that there has been any judgment in favor of Kyrias or against Plaintiff. Kyrias may file a lien notice but the lien notices she has filed improperly claim that she is enforcing a judgment against Plai...

Excerpt: ...to prevail Plaintiff must show not only that it paid the Loss but that it had a legal duty to do so. The court in Fireman's Fund did, in fact, hold that where an insurer paid a claim as a “volunteer” without any obligation to do so, it has no right to seek subrogation under equitable principles. It also noted that there was no evidence of a contractual basis for recovery since no evidence showed an appropriate contractual relationship on whic...

Excerpt: ...ocedure section 438(c). It is not apparent as a matter of law that Cross-Defendants/Plaintiffs have not breached the alleged “Governing Documents” or “Declaration” or “Rules and Regulations” by continuing to take the position that they are paying “under protest” given the allegations and terms of the documents. It is also not apparent as a matter of law that these documents do not forbid vacation rentals as alleged. The mere fact ...

Excerpt: ...de from the specific Plaintiffs' damages and they both involve the same question of liability. Allowing both cases to go forward separately would create a risk of inconsistent rulings and waste of time. Plaintiffs have some potentially valid concerns about the different complexity of issues and length of trials but these are uncertain and minimal compared to the factors supporting consolidation. Moreover, both are set to start trial soon. The pre...

Excerpt: ...insurance company. However, the statements about Defendant's expertise are basically described as part of standard advertising materials and the like, Defendant seems sufficiently more likely to know the statements origin than Plaintiffs, and these are not the real alleged fraud, which Plaintiffs allege was the representations about the policy limits. As for those representations, the specific statements which Defendant challenges are only part o...

Excerpt: ...would result in an award that is unjust, arbitrary and oppressive, or confiscatory.” The court also will require the notice packets to include a final hearing date that is at least 10, but not more than 20, days after the deadline for objecting or opting-out. The proposed notice, attached to the moving papers, is mostly clear yet detailed, with a full explanation of the lawsuit, and what to do in order to opt out or object to the settlement. Ho...

Excerpt: ...will be necessary based on any new responses resulting from the motion on the requests for admissions. Moreover, while Defendant generally responded to each part of 17.1, many responses are vague “not applicable” or simple reiterations of the groundless objections. Sanctions awarded to the moving party for time actually spent, with more to be awarded on proof of additional reasonable time and expense. The amount awarded based on time spent so...

Excerpt: ...et forth clearly and distinctly with no apparent ambiguity. The provision thus appears to cover all of the claims between these two parties and, because of the terms of the provision, the statement from Brody in Exhibit 6 that the terms were the result of negotiation, and the nature of Brody's employment and position, there is no indication of procedural or substantive unconscionability. The moving party also demonstrates that the parties have al...

Excerpt: ...ontrary. Defendant also presents no facts or evidence in opposition. Defendant instead objects to Plaintiff's evidence, particularly the documents in Exhibit B, as inadmissible hearsay which does not meet the requirements for the business-records exception under Evidence Code section 1271. Evidence Code section 1271 governs the admissibility of business records, and information therefrom, as an exception to the hearsay rule. It states, in full, �...

Excerpt: ...rsion and negligence regarding the property do not indicate that a bailment occurred as a matter of law or that Plaintiff in any way willingly left the property with Defendant or entered into an agreement with him regarding it. It is also not certain when the injury, or knowledge thereof, finally occurred for the cause of action to accrue. Finally, the cause of action for intentional infliction of emotional distress is based not only on the alleg...

Excerpt: ... stating that they are suing Defendants for engaging in activities which require a permit and for which they have no permit. Courts must look to the “principal thrust or gravamen” of a claim and a party may not invoke the anti-SLAPP statute where the claims involving protected activity are only incidental to a cause of action that is fundamentally based on nonprotected activity. Martinez v. Metabolife Int'l, Inc. (2003) 113 Cal.App.4th 181, 1...

Excerpt: ...o strike, along with the filing fee for this motion. The court has considered the complexity of the legal issues, the length of the motion with supporting documents, and the lack of detail to support the requested costs. This results in $15,170 for attorneys' fees, $337.50 for the paralegal, and the costs of $150, for a total of $15,657.50. The prevailing party is to prepare an order conforming with the order of the court, submitting it to the op...