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: ...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: ... 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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ...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: ..., 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: ...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: ...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: ...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: ...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...