Excerpt: ...da Potier on be half of Plaintiffs Genesis PVB; 3NT Management, LLC; and Craig Bordon. * A Demurrer to the Second Amended Complaint, was partially sustained and partially overruled. Attorney Jasun Molinelli of Hanson Bridgett LLP filed an Answer, for Defendants George Gr afer; Raquel Grafer; George 7820, LLC; George 7820, Inc.; Raquel 1331, LLC; and Two Grafers Management, LLC [May 23, 2019]. * A Cross complaint was filed [May 23, 2019] on beha...

Excerpt: ...ue to unnecessar y delay in seeking the amendment, the court may refuse permission to file an amended pleading. CrossDefendant argues that Cross- Complainant has unjustifiably delayed the request and that actual prejudice exists. ln considering the questions of unnecessary delay and prejudice to cross -defendant, the court previously was persuaded that it is necessary to include all family members on the title to the real property in the pleadi...

Excerpt: ...arty to comp lete their tasks with no harassment. On May 3, 2023, the parties executed and filed a Stipulation and Order formalizing the agreement. An enforceable settlement agreement under Code of Civil Procedure (CCP) §664.6 must either be entered into orally before a court or be in writing and signed by the parties. (S ee In re Marriage of A ssemi (1994) 7 Cal.4th 896, 905.) These alternative requirements aim to minimize misunderstandings. D...

Excerpt: ...ther the alle gations in the 5AC, “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.) While a government claim need not match the specificity of a pleading in a civil action, it must still provide a reasonable account of what the entity is alleged to have done. When a civil action follows the rejection of a government claim, the ...

Excerpt: ... pay all escrow fees an d carry back the entire purchase price (minus $1,000) as a promissory note with only 3% interest. Based on the amortization schedule provided by escrow, plaintiffs were not due to be paid in full until after two of three plaintiffs had reached the age of 1 07. Plaintiffs allege in their Complaint that many of the terms “understood" by the parties did not make it into the Residential Purchase Agreement (RPA) signed by...

Excerpt: ...plaintiff's cause of ac tion and raises the legal issue, regardless of the existence of triable issues of fact, of whether the complaint states a cause of action. The standard of review for a motion for judgment on the pleadings is the same as that for a general demurrer. The pl eadings are to be treated as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. “We review the complaint ...

Excerpt: ...sen concerning t he survey described in the settlement. To summarize, plaintiff's surveyor first provided a thirty -foot easement centered on the existing easement then, after receiving defendant's objections, reduced the width to eighteen feet. Defendant nevertheless refus es to execute and allow the recording of the Deed of Easement, wanting the width of the entire linear easement surveyed and reflected in the deed. An enforceable settlement ...

Excerpt: ...d for the Law & Motion calendar shall include the following language in the notice: 3.3.7 Tentative Rulings (Repealed Eff. 7/1/06; As amended 1/1/18) All parties appearing on the Law and Motion calendar shall utilize the tentative ruling system. Tentative Rulings are av ailable by 2:00 p.m. on the court day preceding the scheduled hearing and can be accessed either through the court's website or by telephoning 209- 754-6285. The tentative ruling ...

Excerpt: ...ge is limited to the "four comers" of the pleading (which includes exhibits attached and incorporated therein), or from matters outside the pleading which are judicially noticeable. The complaint is read as a whole. Material facts properly pleaded are assumed true, but conte ntions, deductions or conclusions of fact/law are not. In general a pleading is adequate if it contains a reasonably precise statement of the ultimate facts, in ordin...

Excerpt: ...never agreed to, or intended, between the Parties. On October 10, 2024, Special Interrogatories, Set Two, were served on defendant. By letter to defense counsel dated December 5, 2023, plaintiff demanded that answers (without objection) and extended the date to Decembe r 19, 2023. When defense counsel was relieved, plaintiff further extended the time to respond to the discovery to January 26, 2024. This motion was filed on February 9. 2024. To d...

Excerpt: ...� The latest cross -complaint was filed after a January 19, 2024, hearing where the Court granted leave to file the Fourth Amended Cross -Complaint. Cross - defendant argues for reconsideration of this ruling because cross -complainant had inexcusably delayed the request, that actual prejudice to the parties exists, and procedurally that facts in support of the motion were improperly included in the reply brief instead of the moving pleadings. ...

Excerpt: ...ties LLC. v Foster in Calaveras County Superior Court Case No.20 UD13121.” (Motion for Leave to File Amended Answer, 2:10 -15.) Courts have long exercised liberality in permitting amendments to pleadings, particularly amendments to answers. Permalab - Metalab Equipment Corp. v. Maryland Cas. Co. (1972) 25 Cal.App.3rd 465, 472. Defendants' remedy is to request leave of the court to amend their answer to assert the defenses. " If either party...

Excerpt: ...imary grounds fo r the motions are the unenforceability of an illegal contract, i.e., unpermitted cannabis cultivation. Defendant contends that he is entitled to summary judgment/adjudication because plaintiff cannot recover on any of the causes of action stated in the C omplaint (Breach Of Oral Contract, Breach Of Written Contract, Common Count: Goods and Services Rendered, Intentional Misrepresentation, Negligent Misrepresentation, and False Pr...

Excerpt: ...ide a default or default judgment on such terms as may be just and to allow the defendant to defend the action on a finding that the defendant's motion to set aside the default or default judgment was made within the period permitted by CCP §  473.5(a), and that defendant 's lack of actual notice of the action in time to defend was not caused by his or her avoidance of service of summons or inexcusable neglect. An evaluation of an attorney...

Excerpt: ...ame a participatin g mental health and substance abuse provider in the defendant's network. Plaintiff alleges that defendant improperly terminated the agreement and therefore plaintiff's participating provider status. Defendant has moved for an order compelling all claims to arbitration and stay court proceedings under the Federal Arbitration Act (“FAA”) and the terms of the arbitration clause of the parties' agreement. Defendant makes three ...

Excerpt: ...the inclusion of the following language on all matters noticed for the Law & Motion calendar: Pursuant to Local Rule 3.3.7, the Court will make a tentative ruling on the merits of this matter by 2:00 p.m. the court day before the hearing. The complete text of the tentative ruling may be accessed on the Court's website or by calling 209 -754- 6285 and listening to the recorded tentative ruling. If you do not call all other parties and the Court by...

Excerpt: ... argue that Lambert entitles them to the expungement of the recorded mechanic's lien for two reasons: (1) the lien is unjustiÞed because defendant was not licensed during the subject construction project; and (2) the amount of the lien, is overstated (and therefore unjustiÞed). A Lambert motion to remove a mechanic's lien is recognized as a device that allows the property owner to obtain speedy relief from an unjustiÞed lien, or a lien of an u...

Excerpt: ...o separate discovery motions brought by plainti
¯. On October 11 2023 plainti
¯ served second set of form interrogatories second set of special interrogatories second set of requests for admission and second set of document production requests to defendant who has not responded to these discovery requests requested an extension of time to respond or contacted plainti
¯'s counsel (Initial Motion). Plainti
¯'s 330-page Second Motion soug...

Excerpt: ...ion and viability. Specifically, defendants claim that plaintiff has engaged in a pattern of collecting rent from various Park renters and entering into new rental agreements purporting to let spaces she is not legally entitled to lease, interfering with Park financial obligations, such as payments and payroll, and that plaintiff intends to continue taking those rent or lease payments. The motion is based on a request for judicial notice, declara...

Excerpt: ...ing commerce." (9 U.S.C. S 2.) The US Supreme Court has interpreted the FDA's application broadly, stating that the FAA is a "body of substantive law enforceable in both state and federal courts." (Perry v. Thomas, (1987) 482 U.S. 483, 489 [citing Southland Corp. v. Keating (1984) 465 U.S. 1, 11—12]. Here, the arbitration agreements signed by each plaintiff expressly provide that the FAA governs their terms and that they evidence a transaction ...

Excerpt: .... (Code of Civil Procedure 5430.30(a).) Objections to a complaint may be made on grounds including the court lacking subject matter jurisdiction of the cause of action alleged, and the complaint not stating facts sufficient to constitute a cause of action. (CCP. S 430.10.) "Where written documents are the foundation of an action and are attached to the complaint and incorporated therein by reference, they become a part of the complaint and may be...

Excerpt: ...that the trial of any issue or any part thereof shall precede the trial of any other issue or any part thereof in the case." Additionally, CCP S 1048(b) allows the court to order a separate trial of any cause of action, any separate issue, or any number of causes of action or issues "in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy . "As the cases explain, the objective of th...

Excerpt: ...tion of a class action, a fee refund, and a declaration that an element of defendant's fee is invalid. Defendant has demurred pursuant to Code of Civil Procedure section 430.10 (e), contending the second amended complaint fails to state facts sufficient to constitute a cause of acton in that they are barred by the applicable statute of limitations outlined in Government Code section 53759 (a), and asserting that the Court has no jurisdiction over...

Excerpt: ...ught by plaintiff. On October 11, 2023, plaintiff served second set of form interrogatories, second set of special interrogatories, second set of requests for admission, and second set of document production requests to defendant who has not responded to these discovery requests, requested an extension of time to respond, or contacted plaintiff's counsel (Initial Motion). The 330-page Second Motion seeks to compel further responses to the supplem...

Excerpt: ...). During the deposition, the deponent made it clear that he would not answer any questions regarding the purpose of his meetings and communications with Carolyn or Francille Peters (Carolyn's daughter whom Mr. Cottrell says was authorized to speak for Carolyn) unless a court ordered him to do so. The Separate Statement filed in conjunction with this motion, sets out five questions where Mr. Cottrell was instructed not to answer the question: 1. ...

Excerpt: ...he plaintiff must plead facts showing two elements: (1) the defendant has subjected an elder to statutorily defined physical abuse, neglect or financial abuse; and (2) the defendant acted with recklessness, malice, oppression, or fraud in the commission of the abuse. (Carter v. Prime Healthcare Paradise Valley LLC (2011) 198 Cal.App.4th 396, 407.) "The plaintiff must allege (and ultimately prove by clear and convinc:ing evidence) facts establishi...

Excerpt: ...te motions brought by plaintiff/cross-defendant: 1. Motion to Strike Cross-complaint; 2. Demurrer to Cross-complaint; 3. Demurrer to Answer; 4. Demurrer to Cross-complaint; and 5. Demurrer to Answer. Notices of Nan-opposition have been filed on each as defendant/cross-complainant has did not file any opposition or response. The court is entitled to consider that lack of opposition to be an admission that the demurrers and motions to strike are me...

Excerpt: ...ard of attorney's fees is a mandatory form of relief regardless of whether the plaintiff is awarded any other form of relief (Arace v. Medico Investments, LLC (2020) 48 Cal. App. 5th 977.) Similarly, a trial court's award of attorney's fees is reviewed for an abuse of discretion, and the appellate court will not disturb the trial court's judgment unless it is clearly wrong (See Meridian Financial Services, Inc. v. Phan (2021) 67 Cal. App. 5th 657...

Excerpt: ...cs was the holder of a right-to-apply for a commercial cannabis cultivation permit, a limited number of which have been issued and acknowledged by Calaveras County. (See Calaveras County Code of Ordinances, tit. 17, art. 2, Ch. 17.95.) Plaintiff argues that the right-to-apply is a government "franchise" that has substantial value and is transferable (i.e., saleable). In this matter, plaintiff sold GC Organics the subject righto-apply before the p...

Excerpt: ...ach cause of action stated therein. A demurrer presents an issue of law regarding the sufficiency of the allegations set forth in the complaint. The challenge is limited to the "four corners" of the pleading (which includes exhibits attached and incorporated therein), or from matters outside the pleading which are judicially noticeable. The complaint is read as a whole. Material facts properly pleaded are assumed true, but contentions, deductions...

Excerpt: ...rom representation of defendant Initially, the Court notes moving party failed to include the mandatory notce language of Local Rule 3.3.7 (adopted 1/1/18) which provides: Pursuant to Local Rule 3.3.7, the Court will make a tentative ruling on the merits of this matter by 2m p.m. the court day before the hearing. The complete text of the tentative ruing may be accessed on the Court's website or by calling 209-754-5285 and listening to the recorde...

Excerpt: ...07.03. Plaintiff Smith seeks to enjoin WolfSmith from transferring assets or monies to defendant Wolfman. REQUEST FOR STAY Plaintiff filed a Request for Dismissal of the Fifth Cause of Action for Dissolution of Limited Liability Company, on October 12, 2023, thus rendering the Request for Mandatory stay MOOT; on that basis, the Mohon For stay is DENIED. ORDER to SHOW CAUSE and MOTION for PRELIMINARY INJUNCTION The general rule concerning pleading...

Excerpt: ...aud occurred. A vague inclusion of terms contained in the second amended complaint such as: "under the false pretense that false promises," "intentional representations," and/or "The fraud of Defendants, and each of them, was and is malicious, oppressive, despicable, and justifies the recovery of punitive and exemplary damages in amounts according to proof" does not provide the requisite specificity. The effect of this general rule is twofold: (1...

Excerpt: ...challenges the imposition and collection of portions of water rates charged to customers. The plaintiff seeks a certification of class action, a fee refund and a declaration that an element of the UPIJD fee is invalid. Defendant UPUD has demurred pursuant to Code of Civil Prc„cedure section 430.10 (e), alleging plaintiff fails to state facts suffcient to constitute a cause of action in that the contentions are barred by the applicable statute o...

Excerpt: ... and special interrogatories. Although the practice of filing commingled motions for further responses is generally frowned upon, a review of the papers reveals a relatively simple solution. As for the merits, a review of the papers on file reveals that defendants' written responses are not A party to special interrogatories has an obligation to provide responses which are "as complete and straightforward" as pssible, which obligates the party to...

Excerpt: ...udicaton because neither of the two causes of action stated in the operative First Amended Complaint (negligence and premises liability) can succeed against it. According to UPC, it did not owe plaintiff any duty of care to protect him from injuries caused by diving into a submerged boulder because: 1. UPC had no control over the water level in the lake, and thus had no ability to warn or guard against a boulder that became invisible; 2. plaintif...

Excerpt: ...nt on co-defendant Fox Realty and Management Co. by leaving a copy of the papers with Valerie Slagle — who is reported to be assistant to Colin Lightfoot, owner and principal of Fox Realty and Management Co, and she also is Fox' registered agent for service of process. Fox does not dispute receiving actual notice via the summons. On 10/18/22, plaintiff effectuated personal service of the summons and complaint on codefendant Cathy Nitchey. She w...

Excerpt: ...edure SS 512.060 and 515.010, a writ of possession "shall" issue if (1) the plaintiff has established the probable valid-ty of its claim to possession of tangible property and (2) the plaintiff has provided an undertaking of not less than twice the value of defendant's interest, if any, in the property. To establish probable validity, plaintiff must show that it is "more likely than not" that the plaintiff will obtain a judgment against the defen...

Excerpt: ...ny service; instead, the bill appears to be based on Electric Rule 17.2. Before the Court is a demurrer to the operative Complaint, which includes a challenge to each cause of action stated therein. A demurrer presents an issue of law regarding the sufficiency of the allegations set forth in the complaint. The challenge is limited to the "four corners" of the pleading (which includes exhibits attached and incorporated therein), or from matters ou...

Excerpt: ...ed at the operative First Amended Complaint, and all five causes of action stated therein. Short of the merits, this Court noted that defense counsel has failed to faithfully discharge his statutory obligaton to file with the demurrer a declaration attesting to a meet and confer. The declaration filed fails to identify how the meet and confer conference took place, and falls to provide any details relating thereto. Given the date of service for t...

Excerpt: ...-party for more than double what plaintiffs offered. Before the Court is plaintiffs' motion for entry of a default judgment (specific performance), and defendant's motion to set aside entry of default. Neither motion is opposed. Procedurally, the Court will decide first on defendant's motion for reasons that will become clear in the ruling. Defendant seeks discretionary relief under CCP 5473. To qualify for discretionary relief, the party seeking...

Excerpt: ...Plaintiff seeks permission to add new defendants and new causes of action. There is, at present, no trial date set. To amend a pleading already at issue, the sponsoring party is required first to seek leave of court by way of noticed motion. (CCP Pursuant to CRC 3.1324, the moving party must: (a) specify in the moving papers by page, paragraph, and line number the allegations proposed to be added and/or deleted; and (b) include with the moving pa...

Excerpt: ...ndant, the prayer for punitive damages is not drawn in conformity with the laws due to a lack of sufficient averments. Contrary to popular folklore, there is no heightened pleading requirement for a punt-ive damage prayer based on malice or oppression. However, in light of the future evidentiary burden facing plaintiff, it is reasonable to consider that the averments should at least permit a factfinder to have "no substantial doubt" that defendan...

Excerpt: ... "the Ranch"). The property was previously burdened by a 16.5 foot prescriptive easement belonging to Linkletter Properties for ingress and egress to adjacent property (with the right to erect a fence with a gate), but plaintiff maintained a co-equal easement over a similar strip for cattle grazing and herding. According to plaintiff, the dueling co-equal easements were unburdened by judgment, merger and eventual extinguishment. Despite the loss ...

Excerpt: ...ime to file an amended pleading as a matter of right has lapsed (CCP 5472), leaving this Court with the requisite task of deciding whether defendant's objection to the Complaint is well-taken, and if any method of cure is feasible. Pertinent Background In or about December of 2019, the brother of Charles Laguna (hereinafter "Charles" for ease of reference) purchased property on Black Oak Drive next door to Elizabeth Mary Edwards (hereinafter "dec...

Excerpt: ...plication indicates that his previously-disclosed mailing address (P.O. Box 1592, San Andreas) is no longer valid. Nonjudicial forfeiture proceedings must comport with various due process protections, including proper notice to persons who claim a lawful possessory interest in the property seized. (Ramirez v. Tulare County District Attorney's Office (2017) 9 Cal.App.5th 911, 925-930; Cuevas v. Superior Court (2013) 221 Cal.App.4th 1312, 1320-1327...

Excerpt: ...Limit Partners LLC to be registered with the Secretary of State using plaintffs' home address as its principal physical address. On 04/21/23, plaintiffs reported the mail and false filing to the Sheriff's Department. They also reported same to the Attorney General, the Secretary of State, and the Postmaster General. According to plaintiffs, their prompt reaction was guided in large part from a fear that they might (again) be the victims of some i...

Excerpt: ...ttle during trial. Motions in limine minimize sidebar conferences and disruptions during trial, enhance efficiency of the trial process, reduce the need for special limiting instructions, and — in some cases — reduce the number of appellate concerns.l There are two types of motons in limine: evidentiary, and Defendant's motion is evidentiary, which is presumptively authorized by Evidence Code 5353 (objection waived if not timely raised). (See...

Excerpt: ...73, 21UD13416, and 21CH45278). Before the court is a motion by Attorney Loving to withdraw from his ongoing representation of Smith in cases 21CV45132, 21 UD13373, and 21 UD13416. No opposition is noted from Smith himself. The motion filed in 210013373 is MOOT in light of the recently filed substitution of attorney. An attorney may withdraw as counsel of record if the client breaches the agreement to pay fees, insists on pursuing invalid claims o...

Excerpt: ...report was taken. The investigating officer noted that the golf cart operator was at fault for failing to set the parking brake when leaving the cart at the top of an embankment. The officer further noted in the report that the golf cart was insured through the California Fair Service Authority. On 12/09/22, petitioners submitted to the County of Calaveras an application to present a late claim for damages associated with the gold cart incident. ...