Excerpt: ...d that the initially‐proffered class representative (Lorraine Larson) was not sufficiently typical to faithfully represent the classes because: 1. She had a pre‐existing, and unrelated, adversarial relationship with the defendant, having lost her job under a discipline cloud; 2. She had an office with a door, and could eat at her workstation, removing her entirely from the concern regarding travel time tardiness; 3. She had a settlement agree...

Excerpt: ...“Doe” placeholders from 10 to 20. There is no opposition filed. According to the proof of service, notice of the motion was timely provided to defense counsel. According to plaintiff's counsel, defense counsel declined to stipulate to the request for leave. To amend a pleading already at issue, the sponsoring party is required first to seek leave of court by way of noticed motion. (CCP §473(a)(1).) Pursuant to CRC 3.1324, the moving party mu...

Excerpt: ... action and the health of that party is such that preference is necessary to prevent prejudicing that party's interest therein. Plaintiff is 79 years of age, and the plaintiff – which usually means she has a substantial interest in the action warranting trial preference. However, whether plaintiff's health “is such that a preference is necessary to prevent prejudicing the party's interest in the litigation,” (CCP §36(a)(2)), is not quite c...

Excerpt: ...f civil claims relating to FERC licenses; and (3) statute of limitations. Brief Factual Background Defendant Tri‐Dam is a cooperative venture between co‐defendants Oakdale Irrigation District and the South San Joaquin Irrigation District (collectively referred to as “TriDam”). Tri‐Dam holds a federal license to operate and maintain a hydroelectric project between the Tulloch Dam, the Donells Dam and the Beardsley Dam, and encompassing t...

Excerpt: ...ponses. On 3/31/22, counsel for plaintiff emailed defense counsel to inquire about the overdue responses to the RPD. Defense counsel did not respond. On 07/18/22, plaintiff filed and served the pending motion. Although the motion involves both the Special Interrogatory and the RPDs, thus requiring the tender of two filing fees per Govt. Code §70617, plaintiff has not responded to the motion. This Court would like to believe that the silence is e...

Excerpt: ...ced underneath a mattress in a room containing the suspect's personal effects. The balance of the funds ($1,200.00) were located inside the suspect's wallet, which was on the mattress in question. The house was filled with cannabis plants (1,562) and a reasonably sophisticated growing operation. According to Deputy Seawell, the “street value” of the cannabis collected from the residence exceeded $4M, removing the operation from any “persona...

Excerpt: ...urrer to these same causes of action (filed by other parties), and gave plaintiff 30 days with which to amend to cure. In opposition to this pending demurrer, plaintiff acknowledges his intent to amend the operative pleading in such a way as to also cure the concerns raised by Real Time Resolutions Inc. Thus, as a practical matter, the demurrer may be treated as substantively MOOT, although there is the related question of whether plaintiff shoul...

Excerpt: ...reto, counsel's supporting declaration must demonstrate that defendant “failed to respond to the meet and confer request or otherwise failed to meet and confer in good faith.” (CCP §439(a)(3)(B).) Counsel's declaration provides only that he placed one phone call, and elected not to leave a message when nobody answered the phone. That is hardly compliant with the spirit, if not the letter, of the statute. The statute specifically provides tha...

Excerpt: ...rfect pleading by directing a demurrer and motion to strike at this now‐operative pleading. The operative pleading presently includes the following six causes of action: statutory Right to Repair Act; breach of written sales contracts; intentional concealment/nondisclosure, negligent nondisclosure, intentional misrepresentation, and negligent misrepresentation. Defendants contend that the nondisclosure and misrepresentation claims fail to inclu...

Excerpt: ....7 (adopted 1/1/18), this Court elects to proceed given the time‐sensitive nature of this anomalous proceeding. In November of 2007, Gus Zamora (father), Dave Zamora (son) and Clyde Clapp (Gus' close friend) pooled together their respective resources to acquire APN 073‐044‐006, commonly known as 1521 Country View Drive in Valley Springs. [Because of the common last names, the court will refer to the parties by their first names in this ruli...

Excerpt: ...t a stand‐alone cause of action, also finding that in the context of public entity liability, it was surplusage. Plaintiff's motion, which is described as a motion for reconsideration under CCP §1008, is defective in numerous respects. First, a motion for reconsideration may only be pursued by the party aggrieved “within 10 days after service upon the party of written notice of entry of the order.” (CCP §1008(a).) Plaintiff was served wit...

Excerpt: ...th residences. The history between plaintiff and defendant is complex, as reflected in the various legal proceedings between them. (See 20CH45068, 21UD13373, 21UD13416, and 21CH45278.) In this seemingly ordinary civil action, plaintiff alleges thirteen (13) causes of action, ranging from breach of contract to invasion of privacy and assault. Before the Court is plaintiff's motion for judgment on the pleadings (defendant's answer, filed 09/02/21),...

Excerpt: .... Since the inception of this action, plaintiffs have been represented by Attorney Michael Abbott. Defense counsel mail‐served the motion to expunge to Attorney Abbott's office on 06/21/22. Defense counsel personally dropped off (through a mail slot) the demurrer to Attorney Abbott's office on 06/29/22. On 07/15/22, defense counsel sent to Attorney Michael Abbott, via overnight mail, a notice of having not received any opposition to the pending...

Excerpt: ...relief) causes of action, filed by defendant IRBC2 Properties. Motion to Expunge – Granted, Without Prejudice A lis pendens is a recorded document giving constructive notice to the world that an action is pending in the courts which may have an impact on the litigants' right or title to the property. (See Park 1000 Investment Group II v. Ryan (2010) 180 Cal.App.4th 795, 807; Formula Inc. v. Superior Court (2008) 168 Cal.App.4th 1455, 1462; Palm...

Excerpt: ...ederal court to set aside the foreclosure sale, and (7) resisting eviction efforts. Plaintiff does not dispute that his deed of trust allowed for undisclosed assignments, that the foreclosure sale was free from procedural defects, and that the current owners qualify for BFP status. Nevertheless, plaintiff contends that the law of wrongful foreclosure has changed over the past decade in his favor, entitling him to try it all over again. Defense Mo...

Excerpt: ...nk Answer failed to state any defense to the action. pursuant to CCP §438. Despite there being no opposition to the motion, this Court denied the motion on procedural grounds. On 12/03/21, plaintiff filed a second motion for judgment on the pleadings (CCP §438), contending (again) that the blank Answer failed to state any defense to the action. pursuant to CCP §438. Despite there being no opposition to the motion, this Court recognized that th...

Excerpt: ...2016, and thereafter as a Senior Code Enforcement Officer, until he voluntarily resigned from the County in August of 2017. During the latter two years of his tenure with the County, he twice applied for the position of Building Official, which was considered a professional promotion from code enforcement. Although plaintiff had performed many of the duties associated with the Building Official position, the County considered his experience to be...

Excerpt: ...ich consists of two homes situated on a 10‐acre parcel. The lease was to expire on 01/01/22. Smith agreed to pay $2,800/month in rent for use of the whole premises (including both homes), though Cartwright noted additional time was needed “to relocate the occupant” of the front, older house. Critical to the current disputes, Smith paid an additional $20,000 to secure an option to purchase the subject property for $625,000. So long as Smith ...

Excerpt: ...fter “CA‐DAA”) to plaintiff's Second (negligence), Fourth (dangerous condition of public property) and Fifth (premises liability) causes of action set forth in the operative First Amended Complaint. According to defendant, the Second and Fifth causes of action are displaced by Govt. Code §815, and plaintiff failed to exhaust administrative remedies to preserve the Fourth cause of action. Second and Fifth Causes of Action Generally, each pe...

Excerpt: ...r not honoring an alleged agreement to reverse course in 21JD6338 and/or submit the juvenile dependency dispute to arbitration ▪ 21CV45540: petition to confirm alleged arbitration award against Calaveras County Health and Human Service – Child Protective Services (not using Judicial Council form) On 04/15/22, this Court entered an order sustaining without leave to amend the County's demurrer to the respective operative pleading in both 21CV45...

Excerpt: ...hose other requests have since been withdrawn, likely based on plaintiffs' representation that the other defendants have reached a settlement.) Summary Judgment The purpose of the law of summary judgment is to provide courts with a mechanism to cut through the parties' pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute. A defendant may prevail on the motion in one of three ways:...

Excerpt: ... analysis. The motion for class certification is GRANTED in part and DENIED in part. Class Certification Basics A plaintiff advocating for class treatment must establish by admissible evidence an ascertainable and sufficiently numerous class, a well‐defined community of interest, and substantial benefits from certification that render proceeding as a class superior to the alternatives. A class is ascertainable when it is defined in terms of obj...

Excerpt: ...han eight (8) causes of action and spanning no more than 20 pages. CCP §430.41 In late 2015, Governor Brown signed S.B. 383 into law with the goal of reducing litigation abuses and time‐wasting. While the legislation lacks the teeth necessary to make a serious dent in the litigation issues it sought to eradicate (see Dumas v. Los Angeles County Board of Supervisors (2020) 45 Cal.App.5th 348 at 355, and Olson v. Hornbrook Community Services Dis...

Excerpt: ...reclosure proceedings commenced, the wrong entity was calling the shots (see Opp.Brf. 10:25). Before the Court are brought by all the parties who have generally appeared in the action demurrers to the operative First Amended Complaint: (1) Henry and Julie Martinez, the putative BFPs who currently own the subject property. They have demurred to the Third (wrongful foreclosure), Fourth (cancellation of instruments), Fifth (slander of title) and Sev...

Excerpt: ...ved a claim from Global Discoveries, as assignee of Stephen Alongi, a party in interest. Based on the information provided, County rejected the claim from Global Discoveries, concluding that the information provided did not establish that Stephen Alongi was in fact a party in interest as defined by R&T Code §4675. Global Discoveries modified its claim, contending that its assignee was at least entitled to a 1/3 intestate succession interest in t...

Excerpt: ...his end, parties who settle disputes in good faith are immunized from claims for equitable indemnity or contribution. (CCP §877.6(c).) There is no precise yardstick for measuring “good faith,” but it must harmonize the public policy favoring settlements with the competing public policy favoring equitable sharing of costs among co‐obligors. At a minimum, the settlement must be within the reasonable range (aka “ballpark”) of the settling...

Excerpt: ...filed 03/22/22). Although this Court understands plaintiff's concerns regarding piecemeal and renewed adjudication motions, the solution is not a preemptive strike since such motions are permitted under various circumstances too myriad to decide in a vacuum. (See CCP §437c(f)(2); in accord, Marshall v. County of San Diego (2015) 238 Cal.App.4th 1095, 1104‐1106 [trial court has inherent authority to permit successive summary adjudication motion...

Excerpt: ...y Counsel Kara M. Frank concerning a meet and confer discussion with plaintiff. 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.(CCP §§ 425.10(a), 459; in accord, Blank v. Kirwan (1985) 39 C...

Excerpt: ...ded answer, no amended answer appears in the Court file. However, also missing from the Court file is any proof that plaintiff served defendant with notice of the Court's Order. (See CCP §1019.5(a): “when a motion is granted or denied, unless the court otherwise orders, notice of the court's decision or order shall be given by the prevailing party to all other parties”). As such, there is no competent proof that the time to file an amended a...

Excerpt: ...473(a)(1).) Pursuant to CRC 3.1324, the moving party must specify in the moving papers by page, paragraph, and line number the allegations proposed to be added and/or deleted; and include with the moving papers a copy of the proposed amended pleading and a declaration specifying the effect of the amendment(s); why the amendment is necessary and proper; when the facts giving rise to the amended allegations were discovered; and the reasons why the ...

Excerpt: ...sue 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. In general, a pleading is adequate if it contains a reasonably precise statement of the ultimate facts, in ordinary and concise language, and with sufficient detail to ...

Excerpt: ... appointed.) The first motion involves a request for production of all communications concerning the subject property between plaintiff and Tanko Well Drilling (No. 10), Dave's Plumbing (No. 11), AL Guy Jordan Company (No. 13), Mark Lawrence Baymiller (No. 15), Life Safety Fire Protection (No.17), American Gutter Solutions (No. 18), and WeatherbyReynolds Consulting Engineers, Inc. dba Weatherby‐Reynolds‐Fritson Engineering (No. 19). For each,...

Excerpt: ...defendant Ronald Parker to produce at his deposition documents responsive to the following categories: • No. 11: “All non‐privileged writings relating to your responsibility for the subject brush fire at issue in this action on July 12, 2017.” • No. 13: “All non‐privileged writings relating to your claims against MAT Holdings, Inc. in this action.” • No. 19: “All writings which support defendant's denial of liability for the i...

Excerpt: ...ceipt of any opposition to the motion. Contrary to popular belief, there is no true heightened pleading requirement for a punitive damage prayer based on malice or oppression (as there is for fraud). However, conclusions of law without factual support are insufficient to withstand pleading attack. (See Curcini v. County of Alameda (2008) 164 Cal.App.4th 629, 650; Smith v. Superior Court (1992) 10 Cal.App.4th 1033.) In the context of a non‐inten...

Excerpt: ...oof of Service indicating that Ian Braman was personally served with the summons and complaint on 01/04/22 at 3:00 p.m. at his workplace. However, defendant advises that the service package was in fact left with a co‐ worker (Kathy Bandy) because defendant was on the phone. Defendant admits to receiving the service package within 10 minutes of its delivery to the office, and further admits that he went to greet the process server in the lobby, ...

Excerpt: ...o promote fairness by involving all parties potentially affected by a judgment. Intervenors here claims to be potential members of a class based on the operative allegations, but are concerned that their interests are not being adequately protected by the current class representatives. According to intervenors, the current class representatives and class counsel “propose to take the case in a different direction [and] are neither committed nor ...

Excerpt: ..., objection‐free responses” to form interrogatories, special interrogatories, and requests for production of documents. Although plaintiffs missed the stated deadline for doing so, counsel explains that he succumbed to COVID and was innocently delayed in serving what has now been served. He further points out that even a hint of a meet and confer would have revealed counsel's plight. Further, in the interests of justice and judicial economy, ...

Excerpt: ...action set forth in the operative Second Amended Complaint. The pleading is very challenging to navigate, due in large part to plaintiffs' reference to defendants by multiple code names. With regard to the Second (nuisance), Fifth (fiduciary duty), and Tenth (implied warranty) causes of action, defendants contend that these common law claims are displaced (aka preempted) by the statutory Right to Repair Act. The California Supreme Court, in McMil...

Excerpt: ...rt this day is the initial hearing on plaintiff's application for provisional certification of a class, preliminary approval of class settlement, and approval of a PAGA settlement. The gross settlement amount (“GSA”) is $170,000.00, which is intended to cover an unknown number of non‐exempt hourly employees suffering one of many wage/hour violations. This is a non‐reversionary settlement (meaning nothing goes back to the defendant). The p...

Excerpt: ...nty Superior Court Case No SCV260362 (hereinafter “Judgment”) for the amount of $965,000.00. On 01/10/19, defendant Rose Ortiz and Dan Riordan executed an Assignment of Equity in favor of plaintiff, pledging “in reduction of that certain Judgment all right title and interest in any and all equity which they may hold in 2235 Skunk Ranch Road, Murphys.” It is alleged that Rose Ortiz owned the property, and that Dan Riordan had some equitabl...

Excerpt: ...duction of the report requested, plaintiffs are correct that the varying responses are inconsistent and permit ambiguity. A party responding to an RPD is obligated to provide a response which mirrors one of these three responses: (1) a verified statement of compliance, which includes the actual documents (organized and labeled or as they are kept in the usual course of business) or a clear indication as to when and how the documents will be provi...

Excerpt: ...CCP §473(a)(1).) Pursuant to California Rules of Court, Rule 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 papers: ▪ a copy of the proposed amended pleading; and ▪ a declaration specifying: (1) the effect of the amendment(s); (2) why the amendment is necessary and proper; (3) when the facts giving rise to t...

Excerpt: ...t. The motion is GRANTED. Plaintiff reportedly effectuated service of the summons on The Resort at Lake Tulloch, LLC, by leaving a copy of the service package with an unidentified male answering the door at 1034 E. Belmont Abbey Lane, Claremont, CA 91711‐1463. According to the POS, this was an attempt to sub‐serve the agent for service of process. The POS indicates that the address where service occurred was a home, not a business. Pursuant t...

Excerpt: ...hether it was extended pursuant to statute. The County deemed the map expired, and thus unavailable to record. The planning commission denied petitioner's appeal, as did the Board of Supervisors. Before the Court first is respondent's demurrer to the Petition. 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 includ...

Excerpt: ...e time (see Minute Order dated 07/02/21), and at that time found “a reasonably possibility that Petitioner can state a good cause of action.” However, since that time, an interesting wrinkle has come to light necessitating further briefing. On 05/07/19, 82% of the qualified electorate approved Appaloosa Road Community Services District Measure B, which increased the annual parcel tax in the Appaloosa Zone from $75 to $175. The ballot itself i...

Excerpt: ...rt this day is the initial hearing on plaintiff's application for provisional certification of a class, preliminary approval of class settlement, and approval of a PAGA settlement. The gross settlement amount (“GSA”) is $170,000.00, which is intended to cover an unknown number of non‐exempt hourly employees' claims of at least one of many wage/hour violations. This is a non‐reversionary settlement (meaning nothing goes back to the defenda...

Excerpt: ...tedly covering both residences; defendant has a contrary interpretation of events. The litigation history between plaintiff and defendant is complex, as reflected in the various legal proceedings between them. (See 20CH45068, 21UD13373, 21UD13416, and 21CH45278.) In this seemingly straightforward civil action, plaintiff alleges thirteen (13) causes of action, ranging from breach of contract to invasion of privacy and assault. Before the Court is ...

Excerpt: ...mation 7 th COA: Breach of Mandatory Duties 8 th COA: Negligence Per Se 9 th COA: Intentional Infliction of Emotional Distress 10th COA: Negligent Infliction of Emotional Distress 11th COA: Estoppel 12th COA: Breach of Implied‐In‐Fact Contract 13th COA: Breach of Implied Covenant of Good Faith and Fair Dealing 14th COA: Common Count As this Court has previously observed, the varied claims and contentions makes this case a challenge to resolve...

Excerpt: ...r she failed to check any of the boxes. As such, she has neither admitted anything, nor has she denied anything. A statutory motion for judgment on the pleadings is similar to a demurrer, except that the motion (1) can be made at any time 30 days prior to the initial trial date, but (2) only after defendant has answered and (3) only on the grounds of subject‐matter jurisdiction or failure to state a cause of action. (CCP §438(c)‐(f).) The ru...

Excerpt: ...me (see Minute Order dated 07/02/21), and at that time found “a reasonably possibility that Petitioner can state a good cause of action.” However, since that time, a curious wrinkle has come to light necessitating further briefing. On 05/07/19, 82% of the qualified electorate approved the Appaloosa Road Community Services District Measure B, which increased the annual parcel tax in the Appaloosa Zone from $75 to $175. The ballot itself identi...

Excerpt: ...es was representing itself in the action. Attorney Jeffrey was not representing Pollock & James and had no obvious authority to file anything on behalf of Pollock & James, especially something as material as a dismissal of their claim. (See CRPC 1.2(a) and Maddox v. City of Costa Mesa (2011) 193 Cal.App.4th 1098, 1105.) Even though an attorney in the law firm of Pollock & James signed the Request for Dismissal, there is no indication that Attorne...

Excerpt: ...nly within the “four corners” of the pleading (which includes exhibits attached and incorporated therein) or at matters outside the pleading which are judicially noticeable under Evidence Code §§ 451 or 452. In general, a pleading is adequate if it contains a reasonably precise statement of the ultimate facts, in ordinary and concise language, and with sufficient detail to acquaint a defendant with the nature, source and extent of the claim...

Excerpt: ...ay. Instead, counsel has made what appear to be empty promises to comply. All of the motions on calendar this day are unopposed. Motion #1: This motion is actually several motions in one, but under the circumstances this Court will forgive the failure to tender proper motion fees. (See Govt. Code §70617.) This is a refiling of the motion previously filed with a defective notice. Although plaintiffs filed opposition to that motion, they did not o...

Excerpt: ...that the pleading plaintiff wants judgment on is its complaint filed 05/12/21, though the motion makes repeated reference to defendant's answer filed 06/30/21. The request for judicial notice is granted pursuant to Evidence Code §§ 452 and 453. A statutory motion for judgment on the pleadings is similar to a demurrer, except that the motion (1) can be made at any time 30 days prior to the initial trial date, but (2) only after defendant has ans...

Excerpt: ...roperty”). Before the Court is the continued hearing on plaintiff's unopposed motion to consolidate this civil action with 21CV45366. As previously noted, both lawsuits involve claims of adverse possession to the same property by the same putative owners against many of the same defendants. At the prior hearing, this Court made the following salient observations: First, there was a due process concern regarding plaintiff's failure to serve Char...

Excerpt: ...standing discovery. The motion remains unopposed. As an initial matter, this motion as presented is technically deficient in that it combines 136 separate motions into one. Plaintiffs are seeking 136 distinct orders, which means there are 136 motions here. (See CCP §1003.) Pursuant to Govt Code §70617, defendants must tender $60 for each motion seeking an order even if the motions are heard together. Although one commingled memorandum is permis...

Excerpt: ...ivate nuisance. Pursuant to CCP §§ 435 and 436, a party may move for an order striking from a pleading “any irrelevant, false or improper matter” or “any part of any pleading not drawn in conformity” with laws, rules or orders. A motion to strike is to be used sparingly, and only as is warranted to excision averments that have no basis in the action or which are not recoverable as a matter of law. See Ferraro v. Camarlinghi (2008) 161 C...

Excerpt: ... date for compliance on 08/30/21. Defendant did not timely (or ever) serve responses. (See Freshman Decl Para 3.) Pursuant to CCP §2033.280(b), the party propounding RFAs may “move for an order that the genuineness of any documents and the truth of any matters specified in the requests be deemed admitted, as well as for a monetary sanction.” The trial court “shall” grant the motion unless it finds that the party to whom the requests for ...

Excerpt: ...ure to include this language in the notice may be a basis for the Court to deny the motion.” Although defendant is representing himself, he is still required to adhere to all the procedural requirements for law and motion, including all local rules. Based on defendant's failure to include the required language, the motion is DENIED, without prejudice to refile, to the extent it otherwise is timely and appropriate pursuant to relevant statutes. ...

Excerpt: ...er “P&J”). According to the allegations of the operative pleading, both Callison and P&J had vested interests in the referenced real property transaction. On 10/06/21, new counsel for Callison filed a Request for Dismissal on behalf of P&J, despite there being no documentation in the court file that P&J ever retained Attorney Jeffrey in this action or that said counsel had in fact substituted as that party's representative. The dismissal was ...

Excerpt: ...ng party in a civil action may recover, as a matter of right, attorney's fees when authorized by contract or statute. The “prevailing party” is the party with a net monetary recovery or for whom judgment is entered. (CCP §1032(a)(4).) There is no question here that defendant is the prevailing party, having secured both a judgment in its favor (see 06/18/18 Judgment), as well as in the instant matter an unqualified affirmance before the Third...

Excerpt: ..., plaintiffs commenced the within action, naming “Sherry Crum” as a codefendant. On 09/09/20, plaintiffs effectuated substituted service upon “Sherry Crum” by leaving a copy of the summons and complaint with “Thomas Crum (an occupant)”. On 10/27/20, plaintiffs filed and served a Request for Entry of Judgment against “Sherry Jeffcrum” to the same address used for substituted service; Default was entered. On 07/01/21, this Court –...

Excerpt: ...s a desire to specify additional building standards. To amend a pleading already at issue, the sponsoring party is required first to seek leave of court by way of noticed motion. (CCP §473(a)(1).) Motions for leave are to follow the regular notice requirements contained in CCP §1005(b). Pursuant to California Rules of Court, Rule 3.1324, the moving party must: a) Specify in the moving papers by page, paragraph, and line number the allegations p...

Excerpt: ...l be scheduled. According to plaintiffs' counsel, the parties also agreed that if the survey showed encroachments, “they would be removed.” On 05/21/19, defendant Carol Gordon passed away. The oral settlement was never reduced to writing. On 04/10/20, plaintiffs filed a “Creditor's Claim” in a related Heggstad petition for the ostensible purpose of protecting the oral settlement. (See 19PR8204.) On 05/04/20, the estate tendered to plainti...

Excerpt: ... defective because there is no indication in the moving papers that petitioner served a copy of the motion and waited the required 21 days “safe harbor” before filing this motion. (See CCP §128.7(c)(1); Primo Hospitality Group, Inc. v. Haney (2019) 37 Cal.App.5th 165, 173‐174; Martorana v. Marlin & Saltzman (2009) 175 Cal.App.4th 685, 698.) The safe harbor period is mandatory, and the full 21 days must be provided absent a court order shor...

Excerpt: ... provide defendant (homeowner) with landscape services for a fixed amount of $9,480.00. According to plaintiff, this was a heavily discounted estimate, offered on defendant's promise that she had more future projects. Apparently, those “other” projects never came to fruition, and the former working relationship degenerated. On 09/05/20, defendant filed a small claims action (apparently in Contra Costa or Alameda County) against plaintiff and ...

Excerpt: ...cial Notice is granted pursuant to Evidence Code Sections 452 and 453 as to all eight offered exhibits; see 18CV43734 and 19CV44032). (This is a renewed motion, the prior having been denied without prejudice for failing to comply with Local Rule 3.3.7.) Pursuant to CCP §405.30, anyone with an interest in real property may move a court for an order expunging a lis pendens. A court “shall” grant a motion to expunge if either of the following c...

Excerpt: ...erved upon defendant Requests for Admission, Set One, by regular US Mail at defendant's service address. Pursuant to CCP §§ 1013 and 2033.250, defendant had 35 days from the mailing to provide a verified written response. Defendant did not timely (or ever) serve responses. (See Kenosian Declaration, Paragraph 5.) Pursuant to CCP §2033.280(b), the party propounding RFAs may “move for an order that the genuineness of any documents and the trut...

Excerpt: ...g Claim, (hereinafter referred to as “subject property”). Before the Court is an unopposed motion to consolidate this civil action with a nearlyidentical civil action filed by plaintiffs (21CV45366). Both lawsuits involve claims of adverse possession to the same property by the same putative owners against many of the same defendants. Both complaints were verified (though only the 2021 lawsuit was verified by both Gilbert and David). The case...

Excerpt: ...ere they are sued. Venue is not jurisdictional in the fundamental sense, though certain actions can “only” be brought in specific counties. The test largely begins with whether the main relief sought in the original operative pleading relates to rights in realty (local) or personalty (transitory). Venue is to be determined at the outset of the action based on the averments set forth in the operative pleading when the motion to transfer is fir...

Excerpt: ...s, and duplication. As an initial matter, through his support memorandum, Vorhees “requests that Special Master Sarah Burke manage both the Valley Springs and Voorhees matters.” (Support Memo at 6:16‐17.) Voorhees did not, however, include this relief, or the grounds therefore, in the notice of motion. As such, the matter is not properly before the Court through the present motion. (See CCP §1010: “the notice of a motion, other than for ...

Excerpt: ...ct discovery. Moving party has failed to comply with Local Rule 3.3.7, enacted January 1, 2018, in that the Notice of Motion does not include the mandatory language regarding the Court's tentative ruling system. Pursuant to said local rule, lack of compliance provides a specific ground to deny any such procedurally‐deficient motion. Based solely upon moving party's failure to comply with Local Rule 3.3.7, the motion is DENIED without prejudice ...

Excerpt: ...ion. A Plaintiff may only move for Judgment on the Pleadings pursuant to Code of Civil Procedure section 438, on grounds “that the complaint states facts sufficient to constitute a cause or causes of action against the defendant and the answer does not state facts sufficient to constitute a defense to the complaint.” (Cal Code Civ. Proc., § 438, subd. (c)(1)(A).) “The grounds for motion provided for in this section shall appear on the face...

Excerpt: ...ted, the Court finds that KDI is a suspended corporation. KDI appears to concede the point by failing to file an opposition to the motion. A suspended corporation may not prosecute or defend an action in a California court. (See Ransome‐Crummey Co. v. Super. Ct. (1922) 188 Cal. 393, 396‐97.) Based on the foregoing, the motion is GRANTED. The clerk shall provide notice of this ruling to the parties forthwith. PMZ is to prepare a formal Order p...

Excerpt: ...esponses are incomplete and evasive. Defendant further requests the Court impose monetary sanctions pursuant to Code of Civil Procedure sections 2030.300 (d) and 2031.310 (h), against Plaintiff and his counsel in the amount of $500. Plaintiff's request for judicial notice is GRANTED. The Court takes judicial notice of the Complaint filed in this action. A. INTERROGATORIES A party propounding interrogatories has the burden of filing a motion to co...

Excerpt: ...pecially without a motion required by Rule of Court 8.36.” Plaintiff's request for judicial notice is GRANTED. The Court takes judicial notice of the subject matters thereof. The gravamen of Defendant's demurrer is that the entire action must be dismissed because the original Plaintiff was not the real party in interest, and further because the original Plaintiff lacked the capacity to maintain an action in California. (See Demurrer at 2:15‐2...

Excerpt: ...o comply with Local Rule 3.3.7, the motion is DENIED, without prejudice to refile, to the extent it otherwise is timely and appropriate pursuant to relevant statutes. However, the Court additionally notes that all authorities cited by Defendant are to the Federal Rules of Civil Procedure, the Federal Rules of Evidence, and/or federal appellate cases, none of which are applicable to a state court proceeding such as this; even had defendant complie...

Excerpt: ...d to substitute a third amended petition upon conferring with his client but to date has not signed a stipulation regarding same. Concerned about statutory time limits, respondent filed the present demurrer. No opposition has been filed to the demurrer. The Court interprets the uncontroverted assertion that petitioner's counsel agreed to file a third amended petition, in conjunction with the lack of filed opposition to the demurrer, as a tacit ad...

Excerpt: ... voluntarily comply with the aforementioned discovery requests.” (Notice of Motion at 1:24‐2:7.) Plaintiffs concede that they have failed to timely produce responses to the subject discovery requests. (See Opposition at 2:8‐14.) Plaintiffs therefore do not oppose the present motion. (See Id. at 2:8‐9.) The Court finds good cause for issuing an order compelling Plaintiffs to produce responses to Defendant's Form Interrogatories Sets One, S...

Excerpt: ...intiff's Complaint on the ground that it fails to state facts sufficient to constitute a cause of action against any of them for Fraudulent Conveyance. (See id. at 2:6‐7.) Defendants first argue that all three causes of action fail as to Defendant Laughlin Trust because a trust cannot be sued. This is true for “an express trust [that is] merely a relationship by which one person or entity holds property for the benefit of some other person or...

Excerpt: ...n and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of motion.” (Carlton v. Quint (2000) 77 Cal.App.4th 690, 697, quoting Tate v. Super. Ct. (1975) 45 Cal.App.3d 925, 930.) “This rule applies even when no notice was given at all.” (Ibid.) The Notice of Motion asserts that Plaintiffs move, pursuant to Code of Civil Procedure sections 473, subdivision (a)(1) and 382, for leave to ...

Excerpt: ...ly to have evidentiary support and/or contained denials of contentions that are not warranted based on the evidence.1 Plaintiff also moves for an award of sanctions against Defendant's counsel Ashley Gonzalez, pursuant to Section 128.7, on the same asserted grounds. As to Plaintiff's request pursuant to section 426.16, “[i]f the court finds that a special motion to strike [brought pursuant to this section] is frivolous or is solely intended to ...

Excerpt: ...gal non‐ conforming use; [and] (b) direct the [Board] to grant the appeal on the grounds that the Angels Gun Club's activities on [the subject parcels of real property] have expanded and [therefore] no longer constitute a legal non‐conforming use….” (Second Amended Petition (SAP) at 8:22‐27.) “Administrative mandamus under section 1094.5 is appropriate to inquire ‘into the validity of any final administrative order or decision made ...

Excerpt: ...ocedure Section 1048 governs severance of trial based on causes of action.1 “The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action, including a cause of action asserted in a cross‐complaint, or of any separate issue or of any number of causes of action or issues, preserving the right of trial by jury required by the...

Excerpt: ...int (Proposed SAC). “The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any term...

Excerpt: ...the written agreement at issue in the litigation contains a mandatory arbitration provision for which no exception applies. California law strongly favors arbitration. (Prima Donna Development Corp. v. Wells Fargo Bank, N.A. (2019) 42 Cal.App.5th 22, 35 (Prima Donna).) A proceeding to compel arbitration is, in essence, a suit in equity to compel specific performance of a contract. (California Teachers Assn. v. Governing Bd. (1984) 161 Cal.App.3d ...

Excerpt: ...Civil Procedure section 430.10 (a), on the grounds that the action is moot. A party may demurrer to a CCP 1085 petition for writ of mandate (CCP §1089.) In ruling on a demurrer, the Court must accept as true all allegations of fact contained in the petition. (Sheehan v. San Francisco 49ers, Ltd. (2009) 45 Cal.4th 992, 998.) The Court must also accept as true facts that may be inferred from those expressly alleged. (Cundiff v. GTE Cal., Inc. (200...

Excerpt: ...n. Respondent further demurs to the “purported claim for relief for breach of the Brown Act…on the ground that it fails to state facts sufficient to constitute a cause of action, in that Petitioner's claim is not timely and fails to allege facts constituting a breach of the Brown Act's statutory provisions.” (See Demurrer at 2:21‐24.) A party may demurrer to a petition, brought under Code of Civil Procedure section 1085, for writ of manda...

Excerpt: ...itations on discovery conducted by Plaintiff. Specifically, “Defendant requests the Court issue a protective order limiting questioning to a maximum of four hours, directing Plaintiff's counsel to prioritize areas of inquiry needed to oppose [Defendant's pending Motion for Summary Judgment], and limiting the questioning to the valid topics of inquiry not previously covered in the first day of PMQ deposition. (See Motion at 2:7‐11.) Defendant ...

Excerpt: ...oud moves, pursuant to Code of Civil Procedure sections 2030.300, 2031.310, and 2031.320, for an ordering requiring Defendant Victor Vieira to: (1) provide further, complete, verified, objection‐free responses to Form Interrogatories Nos. 7.1 through 7.3; (2) provide further, complete, verified, objectionfree responses to Special Interrogatories Nos. 1 and 15; and (3) provide further, complete, verified objection‐ free responses and documents...

Excerpt: ...at the Court will not enforce such a contract. (See id. at 2:24‐28.) A complaint must contain “facts constituting the cause of action.” (Code Civ. Proc., § 425.10, subd. (a)(1).) Where it does not, the party against whom the complaint has been filed may object by demurrer. (See id. At §430.10, subd. (e).) A demurrer is treated as “admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or la...

Excerpt: ...lleged in the Petition for Inspection and Abatement Warrant (Petition). City fails to identify any authority by which this Court may make such an order. The Court agrees with City's assertion that Government Code section 38773.5 authorizes City to adopt an ordinance establishing “a procedure for the abatement of a nuisance and make the cost of abatement of a nuisance upon a parcel of land a special assessment against that parcel.” (Gov. Code,...

Excerpt: ...r. Peters so moves on the grounds that the default was entered as a result of his mistake of fact and/or excusable neglect. No opposition appears in the Court's file. The Court finds from the evidence presented that Mr. Peters was under a good faith belief that he had timely filed a pleading in response to the Complaint. (See Peters' Declaration at ¶¶ 5 6.) The Court had ordered this pleading stricken, as to Mr. Peters only, based on Mr. Peters...

Excerpt: ...d 88. The motion is GRANTED. Plaintiffs' request for sanction is DENIED. A. General Discussion “In the…context of a request to produce documents, a party who seeks to compel production must show ‘good cause' for the request (§ 2031, subd. (l)) – but where…there is no privilege issue or claim of attorney work product, that burden is met simply by a fact‐specific showing of relevance.” (Glenfed Development Corp. v. Super. Ct. (1997) ...

Excerpt: ...�defendant Hanford has not complied with Local Rule 3.3.7 enacted January 1, 2018, by failing to include the mandatory language in the notice of motion regarding the Court's tentative ruling system. Pursuant to said local rule, lack of compliance provides a specific ground to deny any such procedurally‐ deficient motion. Based solely upon cross‐defendant Hanford's failure to comply with Local Rule 3.3.7, the motion is DENIED without prejudice...

Excerpt: ...dmitted he was issued the subject credit card, he was to repay the principal amount and finance charges, he received monthly statements, and he does not dispute the amount owed. Defendant filed this motion on March 25, 2021. Plaintiff's Request for Judicial Notice was GRANTED as to Exhibits 1 and 2 pursuant to Evidence Code section 452(d) on March 29, 2021. As this is a debt collection case in which plaintiff provided sufficient evidence as to th...

Excerpt: ...mber 18, 2019. Although no trial date has been set, plaintiff filed this motion on April 27, 2021. Plaintiff's Request for Judicial Notice is GRANTED as to Exhibits 1, 2, and 3, pursuant to Evidence Code sections 452 and 453. Code of Civil Procedure §1048(a) provides that “[w]hen actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actio...

Excerpt: ...bing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly.�...

Excerpt: ...k to strike her claims as untimely. Health & Safety Code §11488.5(a)(1), provides, in pertinent part, that “[a]ny person claiming an interest in the property seized pursuant to Section 11488 may, unless for good cause shown the court extends the time for filing, at any time within 30 days . . . after receipt of action notice, file with the superior court of the county in which the defendant has been charged with the underlying or related crimi...

Excerpt: ...or failure to comply with Local Rule 3.3.7. On March 29, 2021, defendant refiled the general and special demurrer to the fourth cause of action on the grounds that plaintiff failed to state facts sufficient to constitute a viable cause of action. Defendant's request for judicial notice as to plaintiff's original Complaint, plaintiff's First Amended Complaint, and plaintiff's Second Amended Complaint, pursuant to Evidence Code sections 452 and 453...